Republic
of the Philippines
Supreme
Court
Manila
THIRD DIVISION
GERMAN AGUNDAY, A.M. No. P-05-2003
Complainant, (Formerly A.M. OCA IPI No.
97-218-P)
Present:
- versus - CARPIO MORALES, J., Chairperson,
BRION,
BERSAMIN,
VILLARAMA, JR., and
SERENO,
JJ.
LEMUEL B. VELASCO,
Deputy Sheriff, Office of the Promulgated:
Clerk of Court, Regional Trial
Court, Virac, Catanduanes,
Respondent. December 6, 2010
x----------------------------------------------------------------------------------------x
D E C I S I O N
BRION, J.:
We resolve as an administrative
matter the affidavit-complaint,[1]
dated October 21, 1996, of German Agunday (complainant)
charging Clerk of Court VI Prospero V. Tablizo, Deputy Sheriff Lemuel B. Velasco,
Process Server Valentin Gonzales and Court Aide Isidro Guerrero, all from the
Regional Trial Court (RTC) of Virac,
Catanduanes, with grave misconduct, gross ignorance of the law, and
incompetence.
This
case traces its roots from a civil case (for recovery of ownership and
possession with damages) filed by Lope Panti, Sr. and Francisca Panti (plaintiffs) before the RTC, Branch 43,
Virac, Catanduanes, against the complainant (therein defendant). The RTC decided in favor of the plaintiffs.
The dispositive portion of this decision reads:
WHEREFORE, judgment is hereby rendered:
(1) Declaring Transfer Certificate of Title No. 3892 in the name of plaintiff Francisca Panti valid;
(2) Ordering defendant to vacate that portion of subject lot equivalent to 23.1357 square meters of the 56.4737 he actually occupies on Lot C-1 immediately adjoining the area actually occupied by plaintiffs;
(3) Ordering plaintiffs to reconvey to defendant 13.3380 square meters of the land erroneously included in Transfer Certificate of Title No. 3892.
The parties’ mutual claim for damages and attorney’s fees is denied.
Costs against both parties.[2]
The complainant appealed to the Court
of Appeals (CA), with the appeal docketed
as CA-G.R. CV No. 37494. The CA, in its decision of August 9, 1995, modified
the RTC decision, as follows:
THE FOREGOING CONSIDERED, the appealed decision is hereby modified: plaintiff is directed to reconvey to the defendant/appellant an area measuring 13.38 square meters.[3]
In
his affidavit-complaint, the complainant alleges that Tablizo, as Clerk of
Court and Ex-Officio Provincial
Sheriff, issued, on July 9, 1996, a writ of execution and possession which
varied the terms of the dispositive portion of the CA decision. Pursuant to
this writ, Velasco, Gonzales and Guerrero, in conspiracy with the plaintiffs,
caused the demolition of his (Agunday’s) house without first notifying him or his
brother-in-law, Santos Burce. Velasco, Gonzales and Guerrero allegedly effected
the demolition without coordinating with the barangay officials and the Municipal Engineering Office, and
without securing a writ of demolition from the RTC. The complainant further claims that Velasco,
Gonzales and Guerrero did not prevent the plaintiffs from taking his personal
belongings from the demolished house.
The
complainant maintains that the 13.38-square meter land subject of the modified
CA decision has not been reconveyed to him. Velasco, however, made it appear in
the Certificate of Turn-Over of Real Estate Property Ownership dated August 21,
1996, that the 13.38-square meter lot had already been turned over to him
(complainant).
Velasco
and Gonzales filed their respective comments to the complaint. Guerrero filed a
counter-affidavit, while Tablizo filed an answer. They all denied the charges made
against them in the affidavit-complaint.
In
his reply to the comment, the complainant maintains that the respondent, Tablizo,
Guerrero and Gonzales conspired with the plaintiffs in effecting the demolition
of his house. He claims they did not do
anything to prevent the demolition despite the absence of an order of
demolition from the RTC.
In
our Resolution dated October 12, 1998,[4] we
referred the case to Executive Judge Alfredo A. Cabral of the RTC of San Jose,
Camarines Sur, for investigation, report and recommendation. Judge Cabral sought
a reconsideration of this resolution, citing, among others, his heavy caseload.
In
our Resolution dated October 6, 1999,[5] we
granted Judge Cabral’s request, and referred the case to the Executive Judge of
the RTC of Tabaco City, Albay. Executive Judge Cesar Bordeos recommended the
dismissal of the case due to the complainant’s failure to appear at the
hearing. The Court, in its Resolution of
October 17, 2001,[6] ordered Judge Bordeos to
conduct a more “earnest and exhaustive fact-finding investigation” of the case.
Due
to Judge Bordeos’ retirement, we designated Executive Judge Arnulfo B. Cabredo of
the RTC, Tabaco City, to continue with the investigation of the case.[7] Judge
Cabredo, however, was dismissed from the service due to misconduct; thus, we
referred the case to Executive Judge Virginia G. Almonte of the RTC, Branch 17,
Tabaco City.
In
her Investigation Report dated P10,000.00 for his
infraction. She, however, recommended the dismissal of the charges against
Tablizo, Gonzales, and Guerrero for lack of merit.
In
our Resolution of January 21, 2004, we noted Judge Almonte’s Investigation
Report. We, thereafter, referred the
case to the Office of the Court Administrator (OCA) for evaluation, report and
recommendation.
The
OCA, in its Memorandum dated
1. this case be RE-DOCKETED as a regular administrative matter;
2. the complaint against respondents Prospero V. Tablizo, Valentin Gonzales and Isidro Guerrero be DISMISSED for lack of merit;
3.
respondent Sheriff Lemuel B. Velasco be FOUND
GUILTY of Neglect of Duty and be accordingly FINED in the amount of Ten
Thousand Pesos (P10,000.00); and
4.
the Fiscal Management Office, Office of the
Court Administrator, be DIRECTED to IMMEDIATELY RELEASE the withheld amount of P20,000.00
to Valentin Gonzales.
The OCA held that the evidence does
not show that Tablizo, Guerrero and Gonzales had a hand in the demolition of the
complainant’s house. Lope Panti, Sr.,
the plaintiff in Civil Case No. 1528, admitted that the demolition of
complainant’s house was through his own act and initiative. Tablizo, Guerrero and Gonzales only learned
of the demolition from the complainant’s cousin when the demolition was almost
complete. The OCA added that Velasco even directed Lope to stop the demolition
since the same was illegal. Lope
initially complied, but continued with the demolition after the respondent,
Tablizo, Guerrero and Gonzales had left.
The OCA, nonetheless, found Velasco
liable for neglect of duty for his failure to reconvey the 13.38 square meters
of the subject property to the complainant. The OCA reasoned out that for a
period of eight years, more or less, the complainant had been deprived of his right
to enjoy the 13.38-square meter portion of the subject lot that had been
adjudged by the CA to belong to him.
As regards the charge that Tablizo
issued a writ of execution and possession that varied the terms of the
dispositive portion of the CA decision, the OCA held that the issue is a
judicial matter which should have been raised in an appropriate judicial
proceeding.
In our Resolution of April 27, 2005, we
resolved to adopt the OCA’s recommendations. Accordingly, we dismissed the
complaint against Tablizo, Gonzales, and Guerrero for lack of merit. Thereafter,
Velasco manifested that he is submitting the case for resolution on the basis
of the pleadings/records filed and submitted.
THE COURT’S RULING
We agree with the OCA that Velasco is
administratively liable for neglect of duty.
We, however, modify the penalty imposed on him.
Velasco not involved in the demolition
We concur with the OCA’s finding that Velasco did not have
a hand in the demolition of the complainant’s house. Lope himself admitted in
his affidavit, dated March 18, 1997, that he alone ordered the demolition of
the complainant’s house. Lope’s court testimony likewise shows that Velasco had
no participation in the demolition, thus:
ATTY. DOTE:
Q: Where were you on July 22, 1996 at about 4:00 o’clock (sic) in the afternoon?
WITNESS:
A: At my store.
Q: While at your store[,] what happened, if any?
A: On July 22, 1996[,] at about 4:00 o’clock (sic) in the afternoon[,] I was in the store and Mr. Lemuel Velasco came over to that store and told me or asked me if I was already prepared to make the survey and that the survey will be done tomorrow morning.
Q: What did you do after Lemuel Velasco told you that the area is to be surveyed?
A: After that I told my son Leopoldo to prepare and get some workers for
the survey, to remove the house of Mr. German Agunday because it will be an
obstacle in the survey.
Q: Why did you tell your son to demolish the house which according to you, will be an obstacle to the conduct of the survey?
A: Because Mr. Velasco told me that there will be a survey.
Q: Do you know that the survey that will be conducted is to determine whether the house of Mr. Agunday is encroaching upon your lot?
A: The house is encroaching on my lot.
Q: You mean to say that you know already that the house has encroached upon your lot?
A: Because before we had a case between us. I already procured the services of a private surveyor.
Q: You mean to say that you did not wait for the Sheriff to tell you that
the house of Mr. Agunday will be removed because it was occupying part of your
lot?
A: No, I did not wait for the Sheriff because I already know that it was encroaching.
x x x x
Q: x x x After
the demolition, what happened next?
A: Lemuel Velasco came over.
Q: Who was with him?
A: I do not know the names of those who were with him?
x x x x
Q: When Lemuel Velasco arrived, what did he do, if any?
A: He told us to stop the demolition which we were doing.
Q: And what did you do when you were told to stop?
A: Because the demolition was already about to be finished so we stopped and we took a rest but when Mr. Velasco left, we continued with the demolition.[8]
These exchanges clearly establish that Velasco was not in
any way involved in the demolition of the complainant’s house; Lope alone
ordered the demolition of the complainant’s house. Velasco, in fact, only
arrived on the scene when the demolition was almost finished. Velasco even ordered
Lope and his men to stop the demolition. We, thus, find no basis to support the
complainant’s claim that Velasco conspired with the plaintiffs, Tablizo,
Guerrero and Gonzales to effect the demolition of his house.
Velasco liable for neglect of duty
We, nonetheless, hold Velasco liable
for his failure to reconvey the 13.38 square meters of the subject property to
the complainant. We find no merit in his excuse that
his failure to implement the writ of execution and possession was due to the
complainant’s refusal to sign the Certificate of Turn-Over of Real Estate
Property Ownership.
The records disclose that when
Velasco received the writ of execution and possession, he saw the need for a
relocation survey in order to determine the 13.38 square meters that must be
reconveyed to the complainant. He informed Lope of the need for a relocation
survey, and left to him the hiring of the surveyor. Lope hired a surveyor and
ordered him (surveyor) to conduct a relocation survey. Thereafter, Lope ordered
the demolition of the complainant’s house based on the result of the relocation
survey that the house was encroaching on.
As the implementing sheriff, it was
Velasco’s duty to inform both Lope
and the complainant regarding the need for a relocation survey, to ensure that the
relocation survey would be witnessed by all the parties concerned. He has to
personally supervise the conduct of the relocation survey, and not delegate
this duty to one of the interested parties. More importantly, he should have
requested the surveyor, during the survey, to point to the complainant the exact
metes and bounds of the property to be reconveyed to him. As explained by Judge
Almonte in her Investigation Report:
Velasco can not deliver the
portion of the lot decreed for Agunday by merely making him sign the
Certificate of Turn-Over of Real Estate Property Ownership that he prepared.
There should be an actual delivery, pointing to Agunday the metes and bounds of
the 13.38 square meters pursuant to the survey plan prepared by the surveyor.
Also, the relocation survey should have been conducted in the presence of both
parties in Civil Case No. 1528, possibly assisted by their counsel. The
particular surveyor should have been the choice of both and not the unilateral
preference of one party. Velasco, as the implementing Sheriff had to supervise
the conduct of the relocation survey. x x
x
It appears, however, that it
was only Lope Panti who was informed by the Sheriff about the need for the
relocation survey and he left it to the former, the hiring of a surveyor. The
survey was then conducted on July 23, 1996[,] right after the house was
demolished and this was without the direct supervision of Velasco. Agunday was
not present. Yet on the basis of the results of the survey, Velasco prepared
the Certificate of Turn-Over of Real Estate Property Ownership (Exh. 1-I).
Agunday, however, did not sign the certificate. Thereafter, Velasco filed in
Court a Sheriff Partial Return of Writ of Execution, indicating, among others,
that Agunday “did not recognize” the survey made by Engr. Fernando Asuncion and
the area of 13.38 square meters was not officially reconveyed to him (Exh.
1-H).[9]
We cannot, therefore, fault the
complainant for refusing to recognize the results of the relocation survey. As
earlier discussed, he was not informed by Velasco regarding the need for a
relocation survey. Neither did he witness the relocation survey. In addition,
the surveyor was hired by Lope, and the survey was done at the latter’s
instance. These circumstances rendered the integrity of the survey highly
suspect.
Velasco
also failed to comply with Section 14, Rule 39 of the Rules of Court. Under this
Rule, the lifetime of a writ of execution is without limit for as long as the
judgment has not been satisfied, but is “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 therefore.”
The officer is mandated to “make a report to the court every thirty (30) days
on the proceedings taken thereon until judgment is satisfied in full, or its
effectivity expires.”[10]
In
the present case, the RTC issued a writ of execution and possession on July 9, 1996. Velasco submitted the Sheriff’s Partial Return
of Writ of Execution on August 23,
1996. However, nothing in the records shows that he made periodic reports to
the court, every 30 days, on the proceedings taken thereon, until the judgment was fully satisfied.
A sheriff’s duty in the execution of a writ issued by a court is purely ministerial. When a writ is placed in the hands of a sheriff, it is his duty, in the absence of instructions, to proceed with reasonable celerity and promptness to execute it according to its mandate.[11] Sheriffs must exert every effort to see to it that the final stage in the litigation process – the execution of a judgment – is carried out in order to ensure a speedy and efficient administration of justice. A decision left unexecuted or indefinitely delayed due to their inefficiency renders it useless. Worse, the parties prejudiced by the inaction tend to condemn the entire judicial system for the lapse.[12]
Velasco’s
failure to implement the writ of execution and possession, as well as to submit
the required periodic report, shows his lack of diligence and zeal in the
performance of his duties. By his actuations, Velasco displayed conduct short
of the stringent standards required of Court employees. We, thus, find him liable for simple neglect of duty, which has
been defined as the failure of an employee to give one’s attention to a task
expected of him, signifying a disregard of duty resulting from carelessness or
indifference. Under Section 52(B)(1) of the Uniform Rules on Administrative
Cases in the Civil Service, simple neglect of duty is a less grave offense
punishable by suspension from office for one (1) month and one (1) day to six
(6) months for the first offense, and dismissal for the second offense.[13]
In
Pesongco v. Estoya,[14]
we found the respondent sheriff guilty of neglect of duty and suspended him for
one (1) month for his failure to fully implement the writ of execution, and for
his failure to make periodic reports to the court. Likewise, in Reyes v. Cabusao,[15]
we imposed a one-month suspension on the respondent sheriff for his delay in
the implementation of the writ of execution.
While the recommended penalty of
one-month suspension is reasonable, the same is not practical
at this point, considering that Velasco’s work would be left unattended by
reason of his absence. Instead of suspension, we impose
a fine equivalent to his one-month salary, so that he can finally
implement the subject writ and perform the other duties of his office.[16]
WHEREFORE,
respondent Sheriff Lemuel B. Velasco is found guilty of simple neglect of duty
and is FINED in an amount equivalent to his
salary for one (1) month. He is warned
that the commission of the same offense or a similar act in the future will be
dealt with more severely. Let a copy of
this decision be attached to his personal record.
SO ORDERED.
ARTURO D. BRION
Associate Justice
WE CONCUR:
CONCHITA CARPIO MORALES
Associate Justice
LUCAS
P. BERSAMIN MARTIN
S. VILLARAMA, JR.
Associate Justice Associate Justice
MARIA LOURDES P.A. SERENO
Associate Justice
[1] Rollo, pp. 2-3.
[2] Id. at 7-8.
[3] Id. at 101-102.
[4] Id. at 57.
[5] Id. at 73.
[6] Id. at 126.
[7] Id. at 128.
[8] TSN,
[9] Investigation Report, p. 19.
[10] See Pesongco v. Estoya, A.M. No. P-06-2131 [formerly OCA I.P.I. No.
05-7-2132-P],
[11] See Zarate v. Judge Untalan, 494 Phil. 208 (2005).
[12] See Aquino v. Martin, 458 Phil. 76 (2003).
[13] See Calo v. Dizon, A.M. No. P-07-2359 [formerly OCA I.P.I. No.
05-2304-P],
[14] Supra note 10.
[15] A.M.
No. P-03-1676 [formerly OCA I.P.I. No. 02-1266-P],
[16] See Mariñas v. Florendo, A.M. No. P-07-2304, February 12, 2009, 578 SCRA 502.