SECOND DIVISION
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Attys. ricardo d.
gonzales & ernesto d. rosales, Complainants, -versus- ARTHUR G. CALO, Sheriff IV, Regional Trial C, Branch 5, Respondent. |
A.M. No. P-12-3028 [Formerly
OCA IPI No. 11-3649-P] Present: CARPIO, Chairperson, BRION, PEREZ, SERENO, and REYES, JJ. Promulgated: April 11, 2012 |
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D E C I S I O N
PEREZ, J.:
In a
verified Complaint[1] dated 2
May 2011, complainants Atty. Ricardo D. Gonzalez and Atty. Ernesto D. Rosales,
in their capacity as counsels for the Rural Bank of Cabadbaran (Agusan), Inc.,
charged Arthur G. Calo, Sheriff IV, Regional Trial Court (RTC), Branch 5,
Butuan City, with grave abuse of authority, falsification, arrogance, grave
misconduct and gross dishonesty in connection with the implementation of the
writ of possession in Special Proceeding No. 4808. The writ of possession,[2]
dated
Complainants
alleged that instead of coordinating with them, as was the usual practice of
sheriffs when implementing writs, respondent never bothered to get in touch
with them. Thus, to facilitate matters,
complainants delivered P1,000.00 to respondent to answer for whatever expenses
the implementation would occasion. When
respondent still did not communicate with them, complainant Gonzalez wrote him
a letter[3]
dated
On
Respondents
Report stated that the writ of possession in Special Proceeding No. 4808 was
served on
Complainants
asserted that [b]ecause it was obvious that the Sheriff was now playing
judge, complainant Gonzalez filed an Omnibus Motion to Inhibit[8]
respondent from implementing the writ, claiming that he and respondent could no
longer work cordially, to the prejudice of the interest of his client bank. Upon being directed to comment on the motion
for his inhibition, respondent denied having been remiss in his duty to
implement the writ, declared that he will not inhibit and asserted that he will
proceed with the implementation of the writ on
True to
his word, but without waiting for the resolution of the motion to inhibit him,
respondent went to the Rural Bank on P1,000.00 as expenses incurred in the
implementation, which amount Ms. De Jesus was forced to give because respondent
would not leave her desk.[10]
Complainants
further alleged that while the occupants indeed vacated the premises, a big
room supposedly containing their personal effects was allowed to be padlocked. Thus, while the writ was ostensibly
implemented and respondent made a return, in reality, the writ was not fully
implemented because the house cannot be demolished until the things are
removed. They added that respondents
act of demanding money from their bank manager violates the Rules requiring
sheriffs to receive only court-approved amounts from litigants.
Pursuant
to the directive of the Office of the Court Administrator (OCA), respondent
submitted his Comment[11]
to the allegations against him. He alleged that:
1. While admittedly he gave the occupants a period of 3 months to vacate the premises subject of the writ of possession, he did so only out of sheer compassion and for humanitarian reasons;
2. In connection with the service of his Sheriffs
Report dated
3. The writ of possession was fully
implemented on P1,000.00 as reimbursement for the expenses incurred as indicated in
the Liquidation of Expenses[13]
dated
Complainants
filed a Reply[15] dated P1,000.00 so he would leave and allow her to attend to her work.
In its
evaluation report[17]
dated P10,000.00 and warned that the commission of a
similar act in the future will be dealt with more severely.
We
agree with the conclusion of the OCA that respondent is liable for neglect of
duty but differ with the recommended penalty.
From the allegations of the
complaint, it is clear that respondent violated the provisions of the Rules of
Court prescribing the duties of sheriffs in the implementation of court writs
and processes.
Sections 10 (c) and (d), Rule 39 of
the Rules of Court provide for the manner by which a writ for the delivery or
restitution of real property should be enforced by a sheriff. Thus:
SEC. 10. Execution of judgments for specific act.
x x x x
(c)
Delivery or restitution of real property.
The
officer shall demand of the person against whom the judgment for the delivery
or restitution of real property is rendered and all persons claiming rights
under him to peaceably vacate the property within three (3) working days, and
restore possession thereof to the judgment obligee; otherwise, the officer
shall oust all such persons therefrom with the assistance, if necessary, of
appropriate peace officers, and employing such means as may be reasonably
necessary to retake possession, and place the judgment obligee in possession of
such property. Any costs, damages, rents or profits awarded by the judgment
shall be satisfied in the same manner as a judgment for money.
(d) Removal of
improvements on property subject of execution. When the property subject
of the execution contains improvements constructed or planted by the judgment
obligor or his agent, the officer shall not destroy, demolish or remove said
improvements except upon special order of the court, issued upon motion of the
judgment obligee after due hearing and after the former has failed to remove
the same within a reasonable time fixed by the court.
Section
14 of Rule 39, on the other hand, requires sheriffs, after implementation
of the writ, to make a return thereon:
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
afore-quoted sections of Rule 39 enumerate the following duties of a sheriff: first,
to give notice of the writ and demand that the judgment obligor and all persons
claiming under him vacate the property within three (3) days; second,
to enforce the writ by removing the judgment obligor and all persons claiming
under the latter; third, to remove the latters personal belongings in the
property as well as destroy, demolish or remove the improvements constructed
thereon upon special court order; and fourth, to execute and make a
return on the writ within 30 days from receipt of the writ and every thirty (30) days thereafter until it is
satisfied in full or until its effectivity expires.[18]
These
provisions leave no room for any exercise of discretion on the part of the
sheriff on how to perform his or her duties in implementing the writ. A sheriffs compliance with the Rules is not
merely directory but mandatory.[19] Thus, herein
respondent evidently overstepped his authority when he gave the occupants of
the property a grace period of 3 months within which to vacate the premises. It is well settled that a sheriffs functions
are purely ministerial, not discretionary.[20] Once a writ is placed in his hand, it becomes
his duty to proceed with reasonable speed to enforce the writ to the letter,
ensuring at all times that the implementation of the judgment is not
unjustifiably deferred, unless the execution of which is restrained by the
court.[21]
In addition to
respondents unauthorized act of giving the occupants of the property time to
vacate the same, respondent also failed to file his sheriffs return. The Rules clearly provide that it is
mandatory for sheriffs to execute and make a return on the writ of execution
within 30 days from receipt of the writ and every thirty (30) days thereafter until
it is satisfied in full or its effectivity expires. Even if the writs are unsatisfied or only
partially satisfied, sheriffs must still file the reports so that the court, as
well as the litigants, may be informed of the proceedings undertaken to
implement the writ. Periodic reporting also provides the court
insights on the efficiency of court processes after promulgation of judgment. Over all, the purpose of periodic reporting is
to ensure the speedy execution of decisions.[22]
In the case of Cebu International Finance Corporation v. Cabigon,[23] the
Court applied the foregoing Section 14 of Rule 39 to discipline a sheriff who
failed to file a return after service of a writ of possession. Likewise, in Ong v. Pascasio, [24]
the Court, adopting the findings of the evaluation report of the OCA, held administratively
liable under the same provision, a sheriff who, failing to implement a writ of
possession, did not render the required report.
In this case, respondent was clearly remiss in the performance of his mandated
duties: he unilaterally gave the occupants 3 months,
instead of the three (3) days provided
by the Rules, to vacate the property; when he did evict the occupants from the
premises, a room containing their personal effects was padlocked, therefore
delaying the demolition of the improvements introduced on the property; finally,
respondent failed to make a return on the writ of possession after he
implemented the same. As observed by
the OCA in its Report dated
Respondent likewise
disregarded Section 10, Rule 141 of the Rules of Court, as amended by A.M. No.
04-2-04-SC dated
With regard to sheriffs expenses in executing writs issued pursuant to court orders or decisions or safeguarding the property levied upon, attached or seized, including kilometrage for each kilometer of travel, guards fees, warehousing and similar charges, the interested party shall pay said expenses 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. THE LIQUIDATION SHALL BE APPROVED BY THE COURT. 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 sheriffs expenses shall be taxed as costs against the judgment debtor.
Thus,
a sheriff is guilty of violating the Rules if he fails to observe the
following: (1) prepare an estimate of expenses to be
incurred in executing the writ; (2) ask for the court's approval of his
estimates; (3) render an accounting; and (4) issue an official receipt for the
total amount he received from the judgment debtor. In the instant case, none of these procedures
were complied with by respondent sheriff.[26]
The records of this case reveal that,
sometime in January 2011, after the issuance of the writ of possession,
respondent accepted the amount of P1,000.00 initially given by
complainants to defray the expenses of implementation, without submitting an
estimate of the expenses or seeking the courts approval therefor. An accounting of this amount was made only on
6 May 2011 or more than four (4) months
after respondent received the same, when the Rules require that amounts
received by a sheriff are subject to liquidation within the same period for
rendering a return on the process, which is, thirty days. Then, on the day he actually executed the
writ, respondent demanded another P1,000.00 from Ms. De Jesus. Again, this amount was received by respondent
without submitting an estimate to or obtaining prior approval from the court.
It
must be stressed that sheriffs are not allowed to receive any voluntary payments
from parties in the course of the performance of their duties. Corollary, a sheriff cannot just unilaterally
demand sums of money from a party-litigant without observing the proper
procedural steps. Even assuming such payments were indeed given
and received in good faith, this fact alone would not dispel the suspicion that
such payments were made for less than noble purposes. Neither will complainant's acquiescence or
consent to such expenses absolve the sheriff for his failure to secure the
prior approval of the court concerning such expense.[27]
In
addition to violating Rules 39 and 141 of the Rules of Court, We also find
respondent liable for conduct unbecoming a court employee for his continued
refusal to coordinate with complainants in the implementation of the writ of
possession, despite numerous attempts on their part to get in touch with him. It may be recalled that complainants
endeavored, no less than four (4) times, to communicate with respondent for the
proper and expeditious execution of the writ, but each time, respondent
rebuffed their efforts. Finally, on
To
our mind, the persistent refusal of respondent to cooperate with complainants
in the implementation of the writ runs afoul of the exacting standards required
of those in the judiciary. Time and
again, the Court has emphasized the heavy burden of responsibility which court
officials and employees are mandated to perform. They
are constantly reminded that any impression of impropriety, misdeed or
negligence in the performance of official functions must be avoided. This
is so because the image of the court of justice is necessarily mirrored in the
conduct, official or otherwise, of the men and women who work there.[28] The
conduct of even minor employees mirrors the image of the courts they serve;
thus, they are required to preserve the judiciarys good name and standing as a
true temple of justice.[29]
In
determining the appropriate penalty to be imposed on respondent, the Court considered
the following administrative cases wherein the respondent sheriffs were also
found guilty of violating either Section 14 of Rule 39 or Section 10 of Rule
141:
1. Cebu International Finance Corporation v.
Cabigon,[30]
wherein respondent was found guilty of neglect of duty for violating
Section 14 of Rule 39 and fined in the amount of P10,000.00, respondent
having been previously reprimanded for neglect of duty;
2. Villarico v. Javier,[31]
where respondent violated Section 10 of Rule 141 and the Court faulted him for
Conduct Unbecoming a Court Employee and imposed on him a fine of P2,000.00;
3. Guilas-Gamis v. Beltran,[32]
where the Court, without characterizing the similar offense of violation of
Section 10, Rule 141, imposed on the therein respondent a fine of P2,000.00;
4. Balanag, Jr. v. Osita,[33] wherein
respondent was found guilty of simple neglect of duty for failing to follow the
procedure laid down in Section 9 (now Section 10), Rule 141 of the Rules of
Court and was fined in the amount of P5,000.00; and
5. Tiongco v. Molina,[34]
where the Court found respondent guilty of dereliction of duty and negligence
for failure to comply with the final paragraph of Section 9 (now Section 10),
Rule 141, of the Rules of Court and imposed on him a fine of P5,000.00.
Considering that the violation of the
procedure in the implementation of court processes committed by respondent is
coupled with conduct unbecoming of a court employee, a fine of P20,000.00
is appropriate under the circumstances. Considering further that respondent has
compulsorily retired from the service on P20,000.00
should be deducted from whatever retirement benefits may be due him.
WHEREFORE, the Court finds respondent Arthur
G. Calo, Sheriff IV, RTC, Branch 5, Butuan City, GUILTY of neglect of duty and conduct unbecoming a court employee
and is FINED in the amount of TWENTY THOUSAND PESOS (P20,000.00) to be deducted from the benefits due him.
SO ORDERED.
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JOSE
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WE
CONCUR:
ANTONIO T. CARPIO
Associate Justice
Chairperson
ARTURO D. BRION MARIA LOURDES P. A. SERENO
Associate
Justice Associate Justice
BIENVENIDO L. REYES
Associate Justice
[1] Rollo, pp. 1-10.
[2]
[3]
[4]
[5]
[6]
[7]
[8]
[9]
[10]
[11]
[12]
[13]
[14]
[15]
[16]
[17]
[18] Guerrero-Boylon v. Boyles, A.M. No.
P-09-2716,
[19]
[20] Erdenberger v. Aquino, A.M. No. P-10-2739,
[21] Dy Teban Trading Co., Inc. v. Verga,
A.M. No. P-11-2914,
[22] Anico v. Pilipia, A.M. No. P-11-2896,
[23] A.M.
No. P-06-2107,
[24] A.M.
No. P-09-2628,
[25] Rollo,
p. 89.
[26] Anico
v. Pilipia, supra note 22 at 49-50 citing Bercasio v. Benito,
341 Phil. 404, 410 (1997).
[27]
[28] Manaog
v. Rubio, A.M. No. P-08-2521,
[29]
[30] Supra note 23.
[31] A.M.
No. P-04-1828,
[32] A.M. No. P-06-2184,
[33] A.M.
No. P-01-1454,
[34] A.M.
No. P-00-1373,