EN BANC
[A.M. No. P-04-1892.
MANUEL TAN, complainant, vs. JUSTINIANO C.
DELA CRUZ, JR. Sheriff III, MeTC, Branch 38 Quezon City, respondent.
R E S O L U T I O N
PER CURIAM:
On April 24, 2003, Manuel Tan (Tan) filed a letter-complaint[1] dated April 22, 2003 against Justiniano C. dela Cruz, Jr. (dela Cruz), Sheriff III, Metropolitan Trial Court (MeTC), Branch 38, Quezon City, charging the latter with Dereliction of Duty, Gross Misconduct, Acts Prejudicial to Public Service and Dishonesty.
The records disclose the antecedents:
Judgment[2]
was rendered in favor of Tan in Civil Case No. 38-25885 for ejectment against
Edgar Mata (Mata). Thereafter, a Writ of Execution[3]
dated
On
Confusion as to the implementation of the writ arose when Mata’s
counsel, Atty. Faustino Tugade, Sr. (Atty. Tugade), filed an Urgent Motion
to Recall/Set-Aside Writ of Execution Issued Against “Angelita Somonod” But
Being Enforced Against Defendant Edgar Mata[5]
dated March 14, 2002 praying, among others, that the writ be set aside
pending the determination of the supersedeas bond which Mata has to pay or
deposit to stay the execution of the writ.
Tan filed a Comment/Opposition[6]
dated
Complicating matters further, Atty. Alberto Habitan (Atty.
Habitan) wrote a letter[9]
dated
One month later, Atty. Habitan filed a Manifestation and Motion[10] dated August 16, 2002 alternatively praying that the Writ of Execution be declared moot and academic as Mata had already vacated the subject premises or that its implementation be held in abeyance considering the presentation of a title containing the same description, area and location as the property subject matter of the case.
Citing the foregoing events, Dela Cruz filed a Sheriff’s
Report[11]
dated
However, before the writ could be amended, it appears that a Temporary Restraining Order (TRO) dated October 17, 2002 was issued by the Regional Trial Court (RTC) of Quezon City, Branch 82, upon the application of the Estate of Feliza Ubaldo-San Agustin in Civil Case No. Q02-47821, enjoining the MeTC to cease and desist from implementing the writ and to preserve the status quo.
After the TRO was lifted, Tan filed an Urgent Ex-Parte
Manifestation/Motion[12]
dated
On
In its Order[18]
dated
In his letter-complaint, Tan faults dela Cruz for the delay in
the implementation of the writ after the first Notification was served
upon the occupants of the subject premises. According to Tan, the writ was not
implemented after the five (5)-day period to vacate given to the occupants in
the first Notification. Again,
after the second Notification was served, dela Cruz allegedly stalled
the implementation of the writ when he asked for further instruction from the
court just because of the letter from Atty. Habitan dated P20,000.00 as sheriff’s fees and that he gave the
latter a partial advance payment of P5,000.00 with the balance to be
paid upon the full implementation of the judgment.
On the other hand, in his Comment[20]
dated
On
Upon the OCA’s recommendation in its Agenda Report[22]
dated
Pursuant to the Court’s directive, Judge Dizon submitted her Report and Recommendation dated June 29, 2004 recommending that dela Cruz be sternly warned and reprimanded for failing to comply with Section 9, Rule 141 of the Rules of Court on the procedure for determining, disbursing and liquidating sheriff’s expenses. Judge Dizon, however, found that the delay in the implementation of the writ was not attributable to dela Cruz considering the supervening events and filing of several pleadings bearing on the case over which dela Cruz had no control.
We do not wholly agree.
The Court notes dela Cruz’ virtual silence as regards Tan’s
allegation that he and dela Cruz agreed on the amount of P20,000.00 as
sheriff’s expenses and that he gave dela Cruz P5,000.00 as partial
payment with the balance to be paid upon full implementation of the writ. A perusal of dela Cruz’ Comment and Affidavit[24]
reveals that while he denies all allegations contained in Tan’s
letter-complaint, he fails to set forth the substance of the matters upon which
he relies to support his denial. His
general denial is thus tantamount to an admission that he received money from
Tan without complying with Section 9, Rule 141 of the Rules of Court, which
provides:
Sec. 9. Sheriffs and other persons service processes.--…
In addition to the fees hereinabove fixed, the party requesting the process of any court, preliminary, incidental, or final, shall pay the sheriff’s expenses in serving or executing the process, or safeguarding the property levied upon, attached or seized, including kilometrage for each kilometer travel, guards’ fees, warehousing and similar charges, in an amount estimated by the sheriff, subject to the approval of the court. Upon approval of said estimated expenses, the interested party shall deposit such amount with the clerk of court and ex-officio sheriff, who shall disburse the same to the deputy sheriff assigned to effect the process, subject to liquidation within the same period for rendering a return on the process. Any unspent amount shall be refunded to the party making the deposit. A full report shall be submitted by the deputy sheriff assigned with his return, and the sheriff’s expenses shall be taxed as costs against the judgment debtor.
The rule requires the sheriff executing writs or processes to estimate the expenses to be incurred. Upon the approval of the estimated expenses, the interested party has to deposit the amount with the Clerk of Court and Ex-officio Sheriff. The expenses shall then be disbursed to the executing Sheriff subject to his liquidation within the same period for rendering a return on the process or writ. Any unspent amount shall be refunded to the party who made the deposit.[25]
In this case, there is nothing on record to indicate that dela Cruz made an estimate of the expenses to be incurred for execution and had the estimate approved by the court. Neither does it appear that the estimated amount of expenses was deposited with the Clerk of Court and Ex-officio Sheriff, and that he rendered an accounting thereof.
The sheriff’s conduct of unilaterally demanding sums of money from a party-litigant purportedly to defray expenses of execution, without obtaining the approval of the trial court for such purported expense and without rendering an accounting therefor constitutes dishonesty and extortion and falls short of the required standards of public service. Such conduct threatens the very existence of the system of administration of justice.[26]
Dela Cruz’ failure to issue an official receipt for the amount he received from Tan also constitutes a violation of Sec. 113, Art. III, Chapter V of the National Accounting and Auditing Manual which provides “that no payment of any nature shall be received by a collecting officer without immediately issuing an official receipt in acknowledgment thereof.”
We also find dela Cruz liable for failure to implement the writ after serving the first Notification and to make a timely return thereof.
Section 14, Rule 39 of the 1997 Revised Rules of Civil Procedure provides:
Sec. 14. Return of writ of execution.—The writ of execution shall be returnable to the court issuing it immediately after the judgment has been satisfied in part or in full. If the judgment cannot be satisfied in full within thirty (30) days after his receipt of the writ, the officer shall report to the court and state the reason therefor. Such writ shall continue in effect during the period within which the judgment may be enforced by motion. The officer shall make a report to the court every thirty (30) days on the proceedings taken thereon until the judgment is satisfied in full, or its effectivity expires. The returns or periodic reports shall set forth the whole of the proceedings taken, and shall be filed with the court and copies thereof promptly furnished the parties.
The records do not indicate when dela Cruz received the Writ
of Execution dated
In this case, it was only on
However, as regards dela Cruz’ alleged failure to implement the
writ after the second Notification was served, we find no liability. The
circumstances that led to the delay in the implementation of the amended writ
were largely beyond his control. The
records show that on
Anent Tan’s withdrawal of his complaint, Judge Dizon correctly points out that the withdrawal of an administrative complaint does not divest us of our disciplinary authority over court personnel. Neither does it necessarily warrant the dismissal of an administrative complaint. The Court cannot be bound by the unilateral decision of a complainant to desist from prosecuting a case involving the discipline of parties subject to its administrative supervision.[29]
Judge Dizon recommends stern warning and reprimand for dela Cruz.
However, we are convinced that his acts are odious and call for a more severe
penalty. We have held that failure to
make a return makes respondent guilty of malicious nonfeasance warranting
dismissal.[30]
In Padilla vs. Arabia[31]
and Moya v. Bassig,[32]
a sheriff was held liable for dereliction of duty and dismissed for his
failure to sell at a public auction personal properties levied upon under a
writ of execution. In Custodio vs. Fulinara,[33]
a sheriff was dismissed for failure to enforce a writ of execution, to conduct a
public auction sale, and to make a return on the writ of execution. And in Ong vs. Meregildo,[34]
a sheriff who demanded sums of money from a party-litigant without
obtaining approval from the trial court and rendering an accounting thereof,
was found guilty of serious misconduct and conduct prejudicial to the best
interest of the service and dismissed from office.
Besides, dela Cruz has been previously penalized for similar
offenses. In A.M. No. P-91-575 decided on P2,000.00.
In MTJ-01-1379 decided on P5,000.00 for
dereliction of duty. In MTJ-04-1518 decided on
WHEREFORE, respondent Justiniano C. dela Cruz, Jr., Sheriff III of the Metropolitan Trial Court, Branch 38, Quezon City, is hereby found GUILTY of serious misconduct, nonfeasance and conduct prejudicial to the best interest of the service, and is hereby DISMISSED from office, with forfeiture of all retirement benefits and accrued leave credits and with prejudice to re-employment in any branch or instrumentality of government, including government owned and controlled corporations.
SO ORDERED.
Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., and Tinga, JJ., concur.
Azcuna, and Chico-Nazario, JJ., on leave.
[1] Rollo, pp. 1-8.
[2]
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[25] Bercasio vs. Benito, 341 Phil. 404 (1997), citing Section 9, Rule 141 of the Rules of Court.
[26] Ong vs. Meregildo, 233 SCRA 632, cited in Bercasio vs. Benito, supra.
[27]
Benitez vs. Acosta, A.M. P-01-1473,
[28] Supra, note 1 at 129.
[29]
Casanova, Jr. vs. Cajayon, A.M. No. P-02-1595,
[30] Benitez vs. Acosta, supra, citing Sibulo vs. Ramirez, 154 SCRA 101 (1987), Patangan vs. Concha, 153 SCRA 30 (1987), Bareno vs. Cabauatan, 151 SCRA 293 (1987) and Smith Bell & Co. vs. Saur, 96 SCRA 668 (1987).
[31] 242 SCRA 227 (1995) cited in Benitez vs. Acosta, supra.
[32] 138 SCRA 49 (1985) cited in Benitez vs. Acosta, supra.
[33]
94 SCRA 808 (1979) cited in Benitez vs.
Acosta, supra.
[34] Supra, note 26.