Republic of the
Supreme Court
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NECENIO GILLANA, |
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A.M. No. P-07-2307 |
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Complainant, |
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(Formerly OCA I.P.I. No. 03-1740-P) |
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Present: |
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YNARES-SANTIAGO,
J., |
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Chairperson, |
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AUSTRIA-MARTINEZ, |
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CHICO-NAZARIO, |
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BALBINO B. GERMINAL, |
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NACHURA, and |
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Sheriff IV, Regional Trial Court, |
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REYES, JJ. |
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Branch 60, |
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Occidental, |
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Promulgated: |
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Respondent. |
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March 14,
2008 |
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R E S O L U T I O N
AUSTRIA-MARTINEZ,
J.:
Necenio Gillana (complainant) charges
Sheriff Balbino B. Germinal (respondent) of the
Regional Trial Court (RTC), Branch 60 of Cadiz City, Negros Occidental with failure to implement a writ of
demolition and failure to liquidate the money for its implementation.[1]
In the complaint dated June 28,
2003, complainant as the Judicial Administrator of the Intestate Estate of Spouses
Gervacio Jimenez, avers: The Municipal Trial Court in
Cities (MTCC) of Sagay City issued on May 30, 2001 a
2nd Alias Writ of Demolition in Civil Case No. 949[2] and a
Writ of Demolition dated June 7, 2002 in Civil Case No. 1295[3] which it
forwarded to respondent for implementation since the MTCC did not have a
sheriff of its own and was under the jurisdiction of RTC Branch 60. Respondent asked for money for the demolition
of the structures of the defendants in the two cases. As complainant could not give the amount
initially asked for by respondent, it was agreed that respondent would just
demolish five of the ten structures stated in the writs for P10,000.00. The
structures they agreed to demolish were those of Danilo
Panonce, Lucia Fernandez, Cesar Francisco and Andres Casipong defendants in Civil Case No. 949; and of Ladislao Fernandez Diongson,
defendant in Civil Case No. 1295. In
spite of having received the amount however, as evidenced by a receipt dated P10,000.00 which he
received from complainant.[4]
In his Comment dated
Respondent further contends that: he
did not ask for the amount of P10,000.00; it was unexpectedly given him
by complainant; respondent instructed complainant's lawyer to deposit the money
with the clerk of court but said counsel insisted that respondent sign the
receipt and accept the amount, threatening that if respondent would not accept
it directly, they would look for another sheriff and report the matter to this
Court; he believed in good faith that he was not obliged to liquidate the
amount of P10,000.00, as said amount was for the food and transportation
of the police and the demolition team and not for the sheriff's expenses;
neither did the counsel nor complainant's representative ask for the
liquidation of the amount either verbally or in writing; and in any event,
attached to the Comment was the liquidation of the expenses incurred, showing
that no amount accrued to respondent's personal benefit.[6]
Complainant filed a Reply refuting
respondent’s allegations.[7]
The Court in its Resolution dated
In his Report dated P5,000.00.[10]
The Court does not agree.
While there is no question that
sheriffs must act with considerable dispatch in executing judgments,[11] it is
equally true, however, that in the enforcement of judgments and writs, sheriffs
must know what is inherently right and wrong and must act with prudence and
caution. They are called to exercise due
care and reasonable skill in the performance of their duties.[12] They cannot just demolish any house within
the property of the victorious plaintiff, even if the writ of demolition
contains the phrase “and any and all persons claiming rights under them”
following the names of the defendants to a case. Evidence must be presented to establish that persons whose
properties are to be demolished but whose names do not appear in the complaint
derived their rights from defendants impleaded
therein.[13]
If there is objection to the demolition
of structures being claimed by persons not parties to the case, the appropriate
course of action for the sheriff is to inform the judge of the situation by way
of a partial sheriff's return and wait for instructions on the proper procedure
to be observed.[14]
In this case respondent filed a
Sheriff's Partial Return of Service dated September 30, 2002, explaining that
he was not able to implement the writ of demolition because when he, together
with two policemen and four members of the demolition team, went to the subject
area on September 26, 2002, the scheduled date of demolition, he found out that
Panonce had no house or improvements on the lot; and
Cesar Francisco's house was being claimed by Jonathan Francisco, Lucia
Fernandez's house by Ruel Carton and Andrea Casipong's house by Lydia Adena,
all supported by Declarations of Real Property.[15]
Considering that the decision was
rendered by the MTCC way back in 1994 and respondent went to the area to
implement the writ only in 2002, as the writ of demolition was indorsed to him
only in 2001, respondent acted prudently when de did not push through with the
demolition and instead brought to the court's attention, by way of partial return,
the question of what particular structures were to be demolished in order for
the court and the parties to clarify the same and for the court to give further
instructions for respondent to carry out.
Under the premises, the Court finds
that respondent cannot be faulted for failing to implement the writ.
The Court notes, however, that
respondent failed to observe Section 14 of Rule 39 of the Rules of Court, to
wit:
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.
for which he should
be disciplined.
Respondent
admitted that he received the writ of demolition on
Respondent is required to make a
return and submit it to the court immediately upon satisfaction of the judgment
in part or in full; and if the judgment could not be satisfied in full, to make
a report to the court within 30 days after his receipt of the writ and to state
why full satisfaction could not be made.
As sheriff, it was respondent's duty to continue making a report every
30 days on the proceedings being taken thereon until the judgment was fully
satisfied. The reason for this was to
update the court on the status of the execution and to give it an idea as to
why the judgment was not satisfied, with the ultimate purpose of ensuring the
speedy execution of decisions.[17]
For failing to observe the
requirements set forth in Section 14, Rule 39 of the Rules of Court, the Court
finds respondent guilty of simple neglect of duty. As complainant failed to show that respondent
was motivated by bad faith or malice in failing to comply with this Rule, a
mere reprimand is proper.[18]
Respondent also failed to comply
with Section 9, Rule 141 of the Rules of Court which was in effect when
respondent received money from the complainant. Although Rule 141 was amended
by A.M. No. 04-2-04-SC in 2004, the old provision applies to this case, as the
offense took place prior to the amendment.
It reads:
Sec.
9. Sheriffs and other
persons serving processes. ---
x x x x
In addition to
the fees herein above 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 of
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.
From this provision it is clear that
a sheriff is required to secure the court's prior approval of the estimated
expenses and fees needed to implement a court process. The requesting party shall then deposit the
amount with the Clerk of Court, and the expenses shall 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.[19]
Respondent's claim that the amount
of P10,000.00 was unexpectedly given him by
complainant and that he was forced to accept it cannot excuse him from
liability. Respondent should know that
as sheriff, he is not allowed to receive any voluntary payments from the parties
in the course of the performance of their duties, for to do so would be
inimical to the best interest of the service.
Even assuming arguendo that such
payments were indeed given and received in good faith, this fact alone would
not dispel the suspicion that these were made for less than noble purposes.[20] Good faith on the part of respondent, or lack
of it, in proceeding to properly execute his mandate would be of no moment, for
he is chargeable with the knowledge that being the officer of the court tasked therefor, it behooves him to make due compliances.[21]
His claim that he did not liquidate
his expenses because the complainant never demanded it from him also betrays
his ignorance of the aforestated Rule. No demand on
the part of the requesting party is needed, as the rule itself mandates that
the sheriff should liquidate the expenses incurred by him within the same
period for rendering a return on the process.
Whether or not he personally benefited from the amount he received is
immaterial.[22]
For respondent's act of receiving
money from complainant without observing the proper procedure laid down by the rules, the Court finds him liable for
simple misconduct.[23] Simple
misconduct is a less grave offense, which carries a penalty of
suspension of one (1) month and
one (1) day to six (6) months for the first offense.[24] Considering however that this is respondent's
first offense of this nature which serves to mitigate his liability,[25] the
Court finds that a penalty of fine in the sum of P5,000.00, with a stern
warning that a repetition of the same offense shall be dealt with more
severely, is reasonable and just.[26]
WHEREFORE, the Court finds
respondent Balbino B. Germinal, Sheriff IV of the
Regional Trial Court, Branch 60 of Cadiz City, Negros
Occidental GUILTY of SIMPLE NEGLECT OF DUTY, for which he is REPRIMANDED; and
SIMPLE MISCONDUCT, for which he is FINED in the sum of P5,000.00, with a STERN WARNING that repetition of the same or
similar offenses shall be dealt with more severely.
SO ORDERED.
MA. ALICIA AUSTRIA-MARTINEZ
Associate
Justice
WE CONCUR:
CONSUELO
YNARES-SANTIAGO
Associate Justice
Chairperson
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MINITA V. CHICO-NAZARIO Associate Justice |
ANTONIO EDUARDO B. NACHURA Associate Justice |
RUBEN T. REYES
Associate Justice
[1] Rollo, pp. 1-3.
[2] Entitled “Intestate Estate of
the late Spouses Gervacio Jimenez and Lucia Abello,
represented by Necenio Gillana,
Judicial Administrator v. Danilo Panonce,
et al.”
[3] Entitled “Intestate Estate of
the late Spouses Gervacio Jimenez and Lucia Abello,
represented by Necenio Gillana,
Judicial Administrator v. SPO4 Ladislao Fernandez Diongson, Jr. alias 'Boy Diongson,’
et al.”
[4] Supra note 1.
[5] Rollo, pp. 36-39.
[6]
[7]
[8]
[9] Judge Alon submitted a Manifestation dated October 23, 2006 saying that there has been a delay in the investigation due to the parties' request for resettings and that he will exert all efforts to terminate the case the soonest possible time; id. at 212.
[10]
[11] Bautista v. Orque, Jr., A.M. No.
P-05-2099,
[12] Collado v. Sevidal, A.M. No. P-05-2073,
[13] Amor v. Leyva, A.M. No. P-02-1536,
[14] Collado v. Sevidal, supra note 12, at 7.
[15] Rollo, p. 14.
[16] Rollo, p. 14.
[17] Bernabe
v. Eguia, 458 Phil. 97, 107 (2003); see also Mangubat v. Camino, A.M. No. P-06-2115,
[18]
Punzalan v. Macalisang, A.M. No. P-06-2268,
[19] Tan v. Paredes, A.M. No.
P-04-1789,
[20]
[21] Villaluz v. Bautista, 387 Phil. 544, 554 (2000).
[22] See Guevarra v. Sicat, Jr., 446 Phil. 872 (2003).
[23]
[24] Rule IV Section 52 B (2) Uniform Rules on Administrative Cases in the Civil Service, Civil Service Commission Memorandum Circular No. 19, s. 1999.
[25]