EN
BANC
A.M. No. RTJ-10-2225
-- Atty. Tomas Ong
Cabili, Complainant, versus Judge Rasad G. Balindong, Respondent.
Promulgated:
September 6, 2011
x
----------------------------------------------------------------------------------------
x
DISSENTING
OPINION
ABAD, J.:
Is it right to impose the
penalty of fine of P40,000.00 upon Judge Rasad G. Balindong for issuing
a temporary restraining order, pending hearing of an application for
preliminary injunction, that enjoins a sheriff from executing, in violation of
the rules governing satisfaction of judgment against State instrumentalities,
upon Mindanao State Universitys Congress-appropriated funds needed for its
operations?
The Facts and the Case
Complainant Atty. Tomas Ong Cabili (Atty. Cabili) was counsel
of the Heirs of Jesus Ledesma in the latters action for damages against the
Mindanao State University (MSU) and others arising from the death of the late
Jesus Ledesma in Civil Case 06-254 of the Regional Trial Court (RTC) of Iligan
City, Branch 6.[1] The RTC rendered judgment[2]
against the defendants, including MSU, ordering them to pay damages to the
Heirs. On appeal,[3]
the Court of Appeals (CA) affirmed the RTC decision[4]
which became final and executory.[5]
Eventually, on motion of the Heirs, on March 6, 2009 the
RTC Branch 6 caused the issuance of a writ of execution against the
defendants. The Office of the Solicitor
General (OSG) belatedly filed an opposition to the issuance of the writ,
resulting in its denial on the ground of mootness of the motion.[6] Meantime, the Sheriff of Branch 6, Sheriff
Gerard Peter Gaje, served a notice of garnishment on MSUs funds with the Land
Bank of the PhilippinesMarawi City Branch by reason of MSUs failure to obey the
writ.
On April 1, 2009, to prevent seizure of its Land Bank
deposits that it needed for operations, MSU filed a special civil action of prohibition
and mandamus with application for the
issuance of a temporary restraining order (TRO) and, subsequently, a preliminary
injunction before the RTC Branch 8, presided over by respondent acting
presiding judge, Judge Rasad G. Balindong, against Land Bank and Sheriff Gaje.[7]
In
its petition, MSU averred that it is a state university, funded by
appropriations law enacted by Congress; that despite OSG opposition to the
issuance of a writ of execution against it, such writ was issued and Sheriff
Gaje garnished upon MSUs deposits with Land Bank, who in turn gave notice to
MSU that it was putting on hold the sum of P2,726,189.90 on its deposit
in Account 2002-0000-35; that, this money being government funds, Sheriff Gaje
was executing on the same in violation of Commission on Audit (COA) Circular
2001-002 dated July 31, 2001 and SC Administrative Circular 10-2000; and that
unless restrained, the garnishment of government fund would disrupt MSUs operations.
After due hearing, Judge Balindong issued a TRO, enjoining Land
Bank and Sheriff Gaje from proceeding with the garnishment of the MSU deposit
with Land Bank.[8] To determine whether the issuance of a writ
of preliminary injunction was warranted, Judge Balindong heard the parties and
required them to submit memoranda.
Instead of submitting a memorandum, Sheriff Gaje filed a motion to
dismiss on the ground that RTC Branch 8 had no jurisdiction to issue an
injunction order against another court of equal rank. Finding merit, on April 28, 2009 Judge
Balindong issued an Order, dismissing the petition.
For having initially taken cognizance of the case and
issuing a TRO, Atty. Cabili filed the present administrative action Judge
Balindong for gross ignorance of the law, grave abuse of authority, abuse of discretion
and/or grave misconduct prejudicial to the interest of the judicial
service. The Office of the Court
Administrator (OCA) found ground to hold Judge Balindong guilty of gross
ignorance of the law for interfering with the judgment of a co-equal
court. It recommended the imposition of
a fine of P40,000.00 on Judge Balindong with a stern warning against a
future offense.[9]
The majority would want to adopt the recommendation.
The Issue Presented
The issue in this case is whether or not Judge Balindong of
RTC Branch 8 acted with gross ignorance of the law when he issued the TRO,
pending hearing on the application for preliminary injunction that enjoined
Sheriff Gaje from garnishing MSUs Congress-appropriated operating funds for
the satisfaction of the judgment of RTC Branch 6.
The Dissent
With all due respect, I dissent from my colleagues. The majority concludes that Judge Balindong
exceeded his authority when he temporarily restrained the writ of execution
issued by a co-equal court, RTC Branch 6.
Judge Balindongs act, said the majority, betrayed his gross ignorance
of the policy of peaceful co-existence among courts of the same judicial plane
and the elementary rule of non-interference with the proceedings of a court of
co-equal jurisdiction.
But
there is quite a huge difference between a) issuing a TRO that enjoins the
sheriff from enforcing the writ of execution of a co-equal court against
specific assets that are exempt from execution and b) issuing one that
altogether enjoins a co-equal court from enforcing its judgment.
Here,
MSUs action before Branch 8, presided over by Judge Balindong, was not directed
against the final decision of Branch 6 of the Court or its enforceability against
MSU but against Sheriff Gajes authority to look for the judgment debtors
assets, not exempt from execution, upon which he could satisfy the
judgment. Clearly, Judge Balindongs TRO
was addressed to the sheriff, enjoining him from enforcing the writ of
execution, a writ directed in general against all assets of MSU and the other
defendants that were not exempt from execution.
Indeed,
Judge Balindongs TRO did not enjoin the enforcement of the judgment of a
co-equal branch. It merely restricted
Sheriff Gajes discretion in determining what assets of MSU he can validly
execute upon. From the circumstances
above, it is clear that Sheriff Gaje actually exceeded his authority in serving
the notice of garnishment against the Congress-appropriated funds of MSU that
were deposited with Land Bank.
While
funds of government instrumentalities that have separate and distinct
personalities from the national government are not exempt from execution or
garnishment,[10]
the enforcement of a writ of execution against these funds are not ministerial
compared to the execution of funds belonging to private individuals. An additional requirement, the filing of
claim for payment with the COA, is necessary before execution can prosper.[11] This additional requirement is pursuant to
Commonwealth Act 327, as amended by Section 26 of Presidential Decree 1445,
which vests in the COA the primary jurisdiction to examine, audit, and settle
all debts and claims of any sort due from or owing the Government or any of
its subdivisions, agencies and
instrumentalities, including government-owned and controlled
corporations and their subsidiaries.
As
properly alleged in its petition, MSU is a government instrumentality,[12]
being a creation of Republic Act 1387, as amended. As an instrumentality of the government, its
funds cannot be simply garnished through the mere service of Sheriff Gaje of a
notice of garnishment without proof of approval from the COA.
Consequently,
it cannot be said that Judge Balindong acted with blatant gross ignorance of
the law. His TRO did not enjoin the
enforcement of the final judgment of Branch 8.
He issued a temporary restraining order based on the legally plausible proposition
that there was a need to protect Congress-appropriated funds that MSU, a
government instrumentality for providing higher education for the Muslim
minority in
Actually the issuance by one
court of a TRO or writ of preliminary injunction against the sheriff of another
court who attempts to enforce a judgment against properties that do not belong
to the judgment debtor is common place, is authorized by the rules, and is not
regarded as interference with the authority of a co-equal body.[13] The party prejudiced by the execution has an
option to raise the matter before the court that rendered the judgment or before
some other appropriate court. MSU relied
on this authorized course of action. The
only problem is that the OSG had already filed an opposition to the issuance of
the writ of execution against MSU before Branch 6 and the latter court denied
such opposition. Consequently, the
proper remedy was a special civil action with the Court of Appeals assailing
such denial.
Still Judge Balindong cannot
be regarded as incorrigibly incompetent.
At best he initially incurred an error of judgment. Still, after
appropriate hearing, he declined to issue a writ of preliminary injunction in the
case and instead dismissed the action for lack of jurisdiction. He, therefore, acted reasonably, prudently,
and appropriately. He certainly does not
deserve either the finding that he was guilty of gross ignorance of the law or
the harsh penalty that the majority prescribes for him.[14]
Parenthetically, complainant
Atty. Cabili himself openly declares that Judge Balindong is a good judge[15]
and that the Court should consider in his favor his lack of bad faith in
issuing the TRO in question.
I therefore vote to reduce the penalty imposed on Judge
Rasad G. Balindong to P20,000.00.
ROBERTO A. ABAD
Associate Justice
[1] Entitled City of
[2] Decision dated November 29, 1997.
[3] Docketed as CA-G.R. CV 64832.
[4] Decision dated August 27, 2008.
[5] Rollo, p. 10.
[6] A copy of the OSGs Opposition dated February 8, 2009 was received by
the RTC on March 13, 2009 and was denied by the RTC in its Order dated March
31, 2009.
[7] Docketed as SPL Civil Case 1873-09.
[8] Order dated April 8, 2009.
[9] Judge Balindong was previously found guilty of gross ignorance of the
law and for violation of the lawyers oath and Canons 1, 5, 6 and 11 of the
Code of Professional Responsibility and was fined P30,000.00 and P10,000.00
respectively, in A.M. RTJ-08-2103 entitled: Edna S.V. Benito v. Rasad G. Balindong.
[10] In this case, MSU has a separate juridical personality from the National
Government and has the power to sue and to be sued as provided in Section 5 of
R.A.
[11] National Electrification
Administration v. Morales, G.R. No. 154200, July 24, 2007.
[12] Executive Order 292 or the Revised Administrative Code defines a government instrumentality as any agency of the National Government, not
integrated within the department framework vested within special functions or
jurisdiction by law, endowed with some if not all corporate powers,
administering special funds, and enjoying operational autonomy, usually through
a charter. This term includes
regulatory agencies, chartered institutions and government-owned or controlled
corporations. (Section 2 [10])
Chartered institution
refers to any agency organized or operating under a special charter, and vested
by law with functions relating to specific constitutional policies or
objectives. This term includes the
state universities and colleges and the monetary authority of the State.
(Section 2[12]).
[13] Rules
of Court, Rule 39, Section
16.
[14] Andres
v. Judge Majaducon, A.M. No. RTJ-03-1762, December 17, 2008: [M]ere error
is not sufficient in order to indict a judge for gross ignorance of the law.
For liability to attach, the assailed order, decision or actuation must not
only be contrary to existing law and jurisprudence, but, most importantly, it
must be established that he was moved by bad faith, fraud, dishonesty and
corruption.
[15] Manifestation, rollo, pp.
89-90.