A.M. No. RTJ-06-2016

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

CORAZON R. TANJUATCO, A.M. No. RTJ-06-2016

Complainant, (Formerly OCA I.P.I. No. 04-2120-RTJ)

Present:

PUNO, C.J.,

QUISUMBING,

YNARES-SANTIAGO,

- versus - CARPIO,

AUSTRIA-MARTINEZ,

CORONA,

CARPIO-MORALES,

AZCUNA,

TINGA,

CHICO-NAZARIO,

VELASCO, JR.,

NACHURA,

LEONARDO-DE CASTRO,

BRION, and

JUDGE IRENEO L. GAKO, JR., PERALTA, JJ.

Regional Trial Court,

Branch 5, Cebu City, Promulgated:

Respondent.

March 23, 2009

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R E S O L U T I O N

VELASCO, JR., J.:

This administrative case stemmed from the sworn-complaint[1] dated September 24, 2004 of Corazon R. Tanjuatco filed with this Court, charging Regional Trial Court (RTC) Judge Ireneo L. Gako, Jr., now retired, with Knowingly Rendering Unjust Judgment, Gross Partiality and/or Gross Ignorance in connection with a contract rescission case filed with respondent’s court.

By Resolution dated August 9, 2006, the Court resolved to refer the administrative complaint, which was earlier redocketed as a regular administrative matter, to Court of Appeals (CA) Associate Justice Josefina Guevarra-Salonga for investigation, recommendation, and report.[2]

From the complaint, respondent’s comment thereon, with their respective annexes, and other documents on record, the Court gathers the following material facts:

Complainant’s father, Vicente S. del Rosario (Vicente S.), and her brother, Pantaleon, co-owned eight (8) parcels of land located in Alumnus, Basak-San Nicolas, Cebu City, with an aggregate area of 21,000 square meters. Via a “Contract to Buy and Sell” dated August 23, 1985,[3] Vicente S. and Pantaleon, for PhP 2,156,040, sold the property to the City of Cebu, for the latter’s abattoir project. As agreed upon, the purchase price was to be deposited and to remain in escrow with the Philippine National Bank (PNB) until lot titles shall have been delivered to the city. Following the 1986 Edsa event, however, the newly-designated OIC-Mayor of Cebu City, John H. Osmeña, unilaterally stopped the construction of the abattoir.

On May 7, 1987, Vicente S. died, leaving behind the following heirs: his wife, Ceferina Urguiaga, and their eight (8) children, among whom are complainant, Pantaleon, and Carlos del Rosario.

Later developments saw Vicente S.’s heirs filing a petition for the partition of his estate. Docketed as Civil Case No. CEB-17236 of the RTC of Cebu City, the petition, after several transfers, eventually landed in Branch 5 of the court, then presided by respondent judge. According to the respondent, he held “preliminary conferences among the heirs of Vicente S. x x x for the purpose of settling the case amicably.”[4] The complainant, on the other hand, narrated that the respondent held several meetings in his chambers during the preliminary conferences.[5] Upon the heirs’ motion, the respondent subsequently inhibited himself from handling the case.

At about the same time and based on the above narrated facts, Vicente B. del Rosario (Vicente B.), represented by his father, Pantaleon, filed a case against the City of Cebu for the rescission of the “Contract to Buy and Sell” covering the eight (8) lots adverted to. Docketed as Civil Case No. CEB-27334 and entitled Vicente B. del Rosario, represented by his Attorney-in-Fact, Pantaleon U. del Rosario v. City of Cebu, the complaint, with attachments, was raffled to the respondent’s Branch 5. The complaint originally carried the Verification/Certification of Non- Forum Shopping signed by Pantaleon. The verification was subsequently replaced by another executed by Vicente B., the plaintiff, based on plaintiff’s motion for leave to amend complaint. This motion recited that

during the hearing [on] x x x July 3, 2002, this Honorable Court told this representation to amend the complaint because the verification/certification of non-forum shopping x x x should have been executed by plaintiff Vicente B. del Rosario who is the real party in interest x x x and to allege that the amount deposited in escrow inclusive of interest accrued should be paid to plaintiff by way of rentals.[6]

On February 26, 2003, Isidro and Michael Alain Reyes de Leon, heirs of Teresita de Leon, who in turn was Virgilio S.’s niece, moved to intervene in Civil Case No. CEB-27334, but the court denied the motion.[7]

By decision dated May 28, 2004, respondent rescinded the contract in question and awarded the whole purchase price as rentals to Vicente B. The following events then transpired: (1) Carlos del Rosario interposed his own motion for intervention; (2) on August 13, 2004, the city of Cebu filed a notice of appeal with the RTC;[8] and (3) on September 8, 2004, Vicente B. moved for execution pending appeal, which the court granted conditioned upon his posting of a bond.[9]

It is against the foregoing state of things that the complainant filed her complaint alleging, in gist, the following:

1. During the rescission case hearing on July 3, 2002, the respondent instructed Pantaleon’s counsel to amend the complaint and to attach instead the verification of his son Vicente B., and to allege that the amount deposited on the escrow, exclusive of the interest accrued, should be paid to Vicente B. by way of rentals. Vicente B. was, therefore, made to appear as the plaintiff. By these actuations, the respondent was no longer acting as an impartial trier of facts. He was in fact lawyering for Pantaleon.

2. The respondent admitted the Amended Complaint despite the fact that Vicente B. failed to pay the appropriate filing fee for the additional relief sought in the complaint.

3. On May 28, 2004, the respondent rendered judgment ordering contract rescission and awarding the purchase price therefor in escrow to Vicente B. as rentals, despite his knowledge that one-half of the subject property belongs to the estate of the deceased Vicente S. and was already within the jurisdiction and custody of the court handling the partition case.

4. The respondent issued an Order allowing execution pending appeal while the motion for intervention filed by Carlos del Rosario remained unresolved.

In his Comment,[10] respondent, inter alia, alleged that: his May 28, 2004 decision, far from being unjust, was based on the law and evidence and was in fact beneficial to complainant, Cebu City being ordered to return the eight (8) lots subject of the case; Carlos del Rosario’s motion to intervene was filed only after the decision was rendered; he was not aware that four of the eight lots involved in Civil Case No. CEB-27334 were included in Civil Case No. CEN-17236 for partition; there was no need to implead the complainant as she and the other heirs could very well be represented by Pantaleon who owned four of the lots in question and is a co-owner of the other four; no damage was done to the complainant because the case is on appeal with the CA; the complainant did not move for intervention in the rescission case as an indispensable party; and the matter of plaintiff Virgilio B.’s non-payment of the filing fees was not brought to the court’s attention. Apropos the allegation about his having instructed the plaintiff’s counsel on what to do in the case, respondent countered that it is the court’s duty, in the course of a hearing, to suggest to litigants and their counsels to follow the proper procedures so that cases be speedily resolved.

On September 20, 2006, respondent judge reached the compulsory retirement age of 70. The Court, however, ordered that the release of his retirement benefits be held in abeyance until the resolution of this administrative case and to hold these benefits available to answer for any monetary penalty that may be imposed.

Following due hearings, the Investigating Justice submitted on December 6, 2006 an investigation report. In it, she recommended that respondent judge be adjudged guilty of knowingly rendering an unjust judgment and grave misconduct in the performance of his duties and be meted the penalty of dismissal. She predicated her recommendation on the guilt of respondents on three (3) main premises, to wit: (1) respondent proceeded with the rescission case without impleading indispensable parties; (2) he “lawyered” for the plaintiff, thus betraying his partiality towards a party in a case; and (3) he denied and/or refused to act on the motion to intervene of an indispensable party. Here are some excerpts of the investigation report:

Admittedly, respondent presided over the Partition Case, having held preliminary conferences x x x. The fact that he conducted conferences among the heirs of the deceased Vicente coupled by the fact that the Partition Case was filed by one of the heirs in defiance to the position of the other heirs respecting the settlement of the vast estate, would sufficiently serve notice to him that there is a severe conflict of interests among said heirs. Respondent judge may very well insist that he did not have the opportunity to read the voluminous case records as well as the Rescission Case [which] would have alerted him of the need to implead all the heirs of the deceased Vicente.

Besides, respondent x x x cannot simply feign ignorance of the Partition Case. Before he had rendered his now assailed Decision, [he] was even reminded by plaintiff Vicente of the pendency of the Partition Case when the latter filed his opposition to the motion of intervenors De Leon.

So viewed, respondent judge need not wait for the complainant or the other heirs to intervene in the Rescission Case, since it is his duty as a judge to ensure that all indispensable parties are impleaded before resolving a case. Law and jurisprudence clearly and explicitly dictate compulsory joinder of indispensable parties. The absence of an indispensable party in a case renders ineffectual all the proceedings subsequent to the fling of the complaint including the judgment.

Parenthetically, when an action involves reconveyance of property x x x owners of property over which reconveyance is asserted are indispensable parties x x x.

x x x x

Still and all respondent judge opted x x x to exclude the complainant and the other heirs of the deceased Vicente based on the bare supposition that since Pantaleon owns the remaining half of the subject lots and that Pantaleon is also an heir of the deceased, there is no longer any need to implead the other heirs. x x x

Clearly, this manifests the bias and partiality of the respondent judge in favor of Pantaleon. At this point, it bears to stress that respondent judge is at a complete loss as to what capacity Pantaleon stands in the Rescission Case. In his Comment dated March 8, 2005, respondent judge refers to Pantaleon, and not plaintiff Vicente, as the plaintiff in the Rescission Case and the supposed owner of half of the subject lots.

x x x Whether the Rescission Case was resolved speedily is of no moment x x x. What remains is the fact that respondent judge favored Pantaleon and disposed of the Rescission Case to the detriment of the other heirs of the deceased Vicente. x x x

Worse, respondent judge had inexcusably failed to act on a motion to intervene filed by one of the heirs of the deceased Vicente. While said motion to intervene was filed after the assailed Decision had been rendered, respondent judge should have prudently acted on it especially so since the motion itself had raised the issue of non-joinder of indispensable parties. x x x

Needless to state, whenever it appears to the court in the course of a proceeding that an indispensable party has not been joined, it is the duty of the court to stop the trial and order the inclusion of such party. Such an order is unavoidable, for it is precisely “when an indispensable party is not before the court (that) the action should be dismissed.”

What further reflects respondent judge’s utter betrayal of his duties and responsibilities as a judge is his admission that he had in fact taught Pantaleon what to do in the case. x x x

Certainly, the fact that respondent judge instructed Pantaleon to withdraw the verification and certification of non-forum shopping and replace it with one executed by plaintiff Vicente is blatantly partial, irregular and in direct violation of procedural rules. Respondent judge should have dismissed the complaint outright as provided under Section 5 of Rule 7 of the Rules of Court. x x x

x x x x

All the foregoing are telling proofs that the act of the respondent judge knowingly rendering the assailed Decision is indisputably unlawful, anomalous and is totally inconsistent with any claim of good faith in the performance of his judicial functions. The evidence on record proves that the respondent judge committed acts amounting to grave misconduct.

The Court is unable to fully agree with the recommendation and the premises and arguments holding it together.

We start off with the role of the respondent in the matter of the amendment of the complaint. As complainant claims, respondent judge instructed Pantaleon’s counsel to amend the complaint in Civil Case No. CEB-27334 and to attach to the amended complaint the verification of his son, Vicente B., and to allege that the amount deposited in escrow, exclusive of the interest accrued, should be paid to Vicente B. by way of rentals.

Agreeing with the complainant, the Investigating Justice stated the observation that said actuations of respondent judge is “partial, irregular and in direct violation of procedural rules,” adding that the original complaint should have been dismissed outright pursuant to Section 5, Rule 7 of the Rules of Court.

We are not persuaded.

Contrary to complainant’s posture, the assailed suggestions made by respondent may be viewed as an attempt to comply with the guidelines laid down in Administrative Matter No. 03-1-09-SC, more known as the Rule on Guidelines to be Observed by Trial Court Judges and Clerks of Courts in the Conduct of Pre-trial and Use of Deposition-Discovery Measures. The policy behind the pre-trial guidelines is to abbreviate court proceedings and ensure prompt disposition of cases and decongest court dockets. Pursuant to this policy, the judge is expected to determine during pre-trial if there is a need to amend the pleadings.

Sec. 5 of the pre-trial guidelines reads:

5. If all efforts to settle fail, the trial judge shall:

a. Adopt the minutes of preliminary conference as part of the pre- trial proceedings and confirm markings of exhibits or substituted photocopies and admissions on the genuineness and due execution of documents;

b. Inquire if there are cases arising out of the same facts pending before other courts and order its consolidation if warranted;

c. Inquire if the pleadings are in order. If not, order the amendments if necessary;

d. Inquire if interlocutory issues are involved and resolve the same;

e. Consider the adding or dropping of parties.

As it were, respondent judge noticed that the person who verified Vicente B.’s complaint was his attorney-in-fact, obviously leading the respondent to conclude that the verification was defective. He believed a correction was in order to prevent future complications, such as the filing of a motion to dismiss the complaint which undeniably will only prolong or delay the case.

In actuality, no clear benefit redounded to Vicente B. as a result of respondent’s suggestion, for the requirement on verification may be made by the party, his lawyer or his representative or any person who personally knows the truth of the facts alleged in the pleading.[11]

Thus, Pantaleon’s verification accompanying the original complaint would have had sufficed.

Complainant’s assertion that respondent made it appear that Pantaleon was the plaintiff is a bit specious. The title of the case, no less, clearly indicated that Vicente B. is the plaintiff, not Pantaleon.

The Investigating Justice erred too when she concluded that the complaint should have been dismissed outright under Sec. 5, Rule 7 of the Rules of Court. Sec. 5, Rule 7 refers to certification against forum shopping. The correct and applicable rule is the preceding Sec. 4 of Rule 7 which deals with verification.

Even if the Investigator cited the correct Rule (Sec. 4, Rule 7), she would still be incorrect in her conclusion that the complaint should be dismissed, for it is basic that verification is only a formal, not jurisdictional, requisite.[12] Accordingly, even if the verification is flawed or defective, the Court may still give due course to the pleading if the circumstances warrant the relaxation of the rule in the interest of justice.[13]

On another point, the Investigating Justice faulted the respondent for not impleading complainant and her brother, Carlos del Rosario, as parties-plaintiffs. She reasoned that respondent need not wait for complainant and the other heirs to intervene, it being the court’s duty to implead all indispensable parties before resolving the case.

To a certain extent, the Investigating Justice is correct.

While it is true that the pre-trial guidelines (A.M. No. 03-1-09-SC) obliges the judge, if proper, to add or drop parties to the case, the inclusion of parties-plaintiffs is a different situation.

Intervening in a case is not a matter of right but of sound discretion of the Court. Sec. 2, Rule 19 of the Rules on the subject, Time to intervene, specifically provides that “the motion to intervene may be filed at anytime before rendition of judgment by the trial court.” Thus, intervention to unite with the plaintiffs must be filed before rendition of judgment. Thus, respondent acted within the bounds of the rules when he denied Carlos del Rosario’s intervention, filed as the corresponding motion was after the assailed decision was rendered.

The investigation report stated that it is the “duty of the judge to ensure that all indispensable parties are impleaded before resolving the case.” This may be true with respect to the joinder of defendants as jurisdiction over their persons can be acquired by means of service of summons. With respect to other real parties-in-interest as additional plaintiffs, however, the court cannot simply issue an order towards the impleadment of said parties as additional plaintiffs. These proposed plaintiffs must give their consent to their inclusion as plaintiffs. Otherwise, the addition of such parties will be useless and irregular considering they may be adverse to the idea of being parties-plaintiffs in the first place. Thus, the respondent was correct in not simply adding complainant and Carlos del Rosario as co-plaintiffs of Vicente B. since the RTC had yet to acquire jurisdiction over their persons. As a matter of fact, they filed a motion to intervene but was rejected because it was filed after the decision was promulgated.

To be sure, the Investigating Justice was mistaken in her belief that Pantaleon, the attorney-in-fact of plaintiff Vicente B., cannot represent the other interested heirs like complainant and Carlos del Rosario even without the joinder of the latter as co-plaintiffs.

It should be borne in mind that Pantaleon, Carlos del Rosario, and complainant, as compulsory heirs of Vicente S., are co-owners of the subject lots. And a co-owner may bring an action in that capacity without the necessity of joining all the other co-owners as co-plaintiffs because the suit is deemed to be instituted for the benefit of all.[14] When a suit is brought by one co-owner for the benefit of all, a favorable decision will benefit them but an adverse decision cannot prejudice their rights.[15] Thus, complainant and Carlos del Rosario stood to be benefited by the suit filed by Pantaleon, as attorney-in-fact of Vicente B., as the two, as co-owners, are entitled to their pro-rata share in the monetary award to be adjudged to Vicente B. Thus, there was really no prejudice suffered by complainant or her brother, Carlos, when respondent denied the faulty-filed motion for intervention.

No one called upon to try the facts or interpret the law in the process of dispensing justice can be infallible.[16] To hold judges for every erroneous ruling or order issued, assuming they have erred, would be nothing short of downright harassment and would make the judge’s position untolerable.[17] To dismiss a judge for what may be considered as serious offenses under the Code of Judicial Conduct, there must, ideally, reliable evidence to show that the judicial acts complained of were ill-motivated, corrupt or inspired by a persistent disregard of well-known rules.

While there is no evidence tending to show that respondent perverted his office for some financial benefits or for consideration less than honest, respondent to be sure did not conduct himself, in relation to Civil Case No. CEB-27334, with the exacting partiality required under the Code of Judicial Conduct. As the records show, respondent indeed suggested to Vicente B.’s counsel that the amendment to his complaint should, in relief portion, include a claim for rentals. This to us is improper and at least constitutes simple misconduct.

Simple misconduct is punishable under Rule 140 as follows:

B. If the respondent is guilty of a less serious charge, any of the following sanctions shall be imposed:

1. Suspension from office without salary and other benefits for not less than one (1) nor more than three (3) months; or

2. A fine of more than P10,000.00 but not exceeding P20,000.00.

Since respondent has already retired,[18] only a maximum fine of PhP 20,000 can be imposed under said rule. Since he, however, had previously been adjudged guilty of and penalized for various infractions in more than a few cases,[19] with repeated warnings of more severe sanction in case of repetition, a fine of PhP 100,000 is appropriate.

WHEREFORE, the Court adjudges former Judge Ireneo Lee Gako, Jr. of the RTC, Branch 5 in Cebu City GUILTY of Simple Misconduct. He is hereby meted the penalty of FINE in the amount of one hundred thousand pesos (PhP 100,000) to be deducted from his retirement benefits.

The Office of the Court Administrator is hereby ordered to facilitate the processing of the retirement papers of retired Judge Gako for the speedy release of his retirement benefits.

SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice

WE CONCUR:

REYNATO S. PUNO

Chief Justice

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO