Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JAN 31 2005.

A.M. OCA IPI No. 03-1667-RTJ (Emelda A. Magtoto vs. Judge Artemio S. Tipon, Branch 46, Manila.)

Acting on the Report of the Office of the Court Administrator (OCA) dated April 23, 2003, to wit:

A. Sworn letter-complaint of Emelda A. Magtoto, charging Judge Artemio S. Tipon with Dishonesty, Malfeasance, Incompetence and Inefficiency in connection with Criminal Cases Nos. 95-141733 and 95-141734.

The complaint alleges as follows:

1. During the early stages of the hearing of the subject cases, respondent's actuations were beyond reproach and above suspicion. Knowing fully well that the court has jurisdiction over the case, he readily denied several motions of accused Alex Ku which raised the issue of jurisdiction;

2. After a while, several unpleasant events took place, which completely changed the attitude of the respondent;

3. In one instance, complainant was approached by a lady stenographer who is a confidant of the judge, and insinuated monetary consideration in exchange for a favorable judgment;

4. Complainant ignored what the lady said, but not long thereafter, from a very reliable source, she learned that the respondent judge was seen with the accused Alex Ku in a restaurant;

5. Initially, complainant kept her cool thinking that the same is just a rumor. However, when the respondent started to be arrogant and acted as if he is the counsel of Mr. Ku, she became quite bothered;

6. On 06 March 2002, Mr. Ku filed a memorandum and motion to dismiss the case against him for lack of jurisdiction. Notwithstanding the fact that said issue of jurisdiction had already been ruled upon by the court seven (7) years ago, barely five (5) days after the motion was filed, on 11 March 2002, the respondent issued an Order dismissing the subject cases for lack of jurisdiction "without prejudice to the filing of the information in the proper court of Quezon City," without giving complainant's counsel the opportunity to comment or oppose the same;

7. On 24 April 2002, complainant's counsel filed a motion to strike out the memorandum and motion of Alex Ku on the ground that the prosecutor was not furnished a copy of the motion;

8. On the scheduled date of hearing of complainant's motion, despite admission of the counsel of Alex Ku that they failed to furnish the prosecutor a copy of Mr. Ku's motion, the respondent who was apparently biased, acted as counsel for Mr. Ku and stated that "this court can motu proprio dismiss the case if it appears on evidence at hand that the court has no jurisdiction";

9. Several instances on record show that the respondent has capriciously and whimsically abused his discretion by hastily denying all the motions filed by complainant, including the omnibus motion for reconsideration and the notice of appeal which he erroneously claims to have all been filed out of time;

10. His two (2) Orders are diametrically opposed to each other in that the one dated 11 March 2002, the dismissal was "without prejudice to the filing of the information in the proper court of Quezon City"; whereas, the Order dated 27 May 2002 stated that "the court will not interfere with the City Prosecutor of Quezon City's exercise of discretion in case the complainant pursues her right to file a case in Quezon City." If there is no guarantee that the Quezon City Court would assume jurisdiction, why did respondent dismiss the subject cases on that ground?

B. 2^nd Indorsement dated 22 March 2003 of Judge Artemio S. Tipon, giving his comment on the instant administrative complaint. Respondent alleges that the complaint is absolutely false, not to say libelous and malicious, false, because the alleged solicitation never happened, otherwise, complainant would have named the stenographer and the person who allegedly saw him in the company of Alex Ku in a restaurant; malicious, because it was filed almost a year after the dismissal of the information and she hides under the "privilege communication" rule to avoid a counterclaim for damages. He further claims that he never authorized any stenographer or employee in his court to solicit money from litigants in exchange for a favorable judgment, and neither did he dine with any litigant.

In refutation of the allegations contained in the complaint, respondent alleges as follows:

1. There was complete misapprehension of facts. Complainant had all the chances to state her position on the issue of jurisdiction since on 04 March 2002, it appearing from the evidence that the crime was committed in Quezon City, respondent gave the parties until 11 March 2002 to submit position papers on why the case should not be dismissed for lack of jurisdiction of the Manila RTC, but only the accused complied. Instead, complainant's counsel filed on 25 April 2002 (or 44 days after the deadline) a "motion to strike out the memorandum and motion filed by accused 11 March 2002," alleging that complainant was not furnished a copy thereof, citing Sec. 16, Rule 110 of the Rules of Court. And which motion was not addressed to the accused as required by Sec. 5, Rule 15 of the Rules of Court, but to the Branch Clerk of Court;

2. The claim that he was very much committed to Alex Ku that he was not only biased but also acted as his lawyer is absolutely nonsense. Although the title of the pleading filed by accused Ku is memorandum and motion, the same is actually a position paper, which was filed in compliance with the Court's Order. And which position paper was not the reason why the case was dismissed but because on the basis of the evidence presented, it appeared that the crime was committed in Quezon City. In fact, even without accused'[s] position paper, there was no way that the Court of Manila could continue trying the accused for a crime committed in Quezon City;

3. Complainant's lawyer does not seem to know her criminal procedure that before an Information is filed in court, the prosecutor must first conduct a preliminary investigation unless waived, and if he finds that probable cause exists, he files the required information. This is the reason why in its subsequent Order dated 27 May 2002, the Court said that "it will not interfere with the City Prosecutor of Quezon City in the exercise of his discretion in determining the existence of probable cause before acting on the complaint." The Court made no assurance that once the dismissal is implemented, the Quezon City Court would assume jurisdiction;

4. If a court has jurisdiction, there is no other alternative but to dismiss the case. The acts allegedly committed by accused Alex Ku fall under Article 315, 1^st paragraph, 2^nd sentence of the Revised Penal Code, and the essential element of such felony is accused's receipt of the subject pieces of jewelry from the complainant under an obligation to make delivery of or to return the same. Inasmuch as the accused received said article from the complainant in Quezon City, the case should be filed therein.

EVALUATION: Upon careful consideration and evaluation of the parties' respective positions and arguments, this Office finds the instant administrative complaint bereft of merit.

The respondent Judge's dismissal of the subject case for lack of jurisdiction was in order. As aptly pointed out by the respondent, the denial of the motion to dismiss filed by the accused during the early stages of the proceedings in the subject case was primarily based on the information filed in court that the act complained of took place in Manila. Whether or not the crime was committed somewhere else is a matter to be proven during the trial. However, upon reception of evidence, it was revealed that the situs of the crime was in Quezon City. The essential element of the crime is the receipt of the accused of the pieces of jewelry from the private complainant in Quezon City; hence, it is the Court of Quezon City and not Manila which has jurisdiction over the subject case. Further, it should be stressed herein that a case may be dismissed at any stage of the proceeding when it is established that the court has no jurisdiction over the same. Moreover, complainant herself admitted that she did not transact any business or dealing with the accused in Manila.

Anent the allegation of corruption, the comment submitted by the respondent denying the said charge is worthy of consideration as the same is supported by affidavits of his employees, unlike the claim of complainant which appears to be quite empty. Emphasis should be given to the fact that complainant did not even name the alleged lady stenographer who approached her and insinuated some monetary consideration for a judgment in her favor, as well as the alleged reliable source who saw the respondent with the accused in a restaurant.

RECOMMENDATION: Respectfully submitted for the consideration and approval of the Honorable Court our recommendation that the instant case be DISMISSED for lack of merit.

In a Resolution dated July 7, 2003, complainant Magtoto was required to file a reply to the respondent's comment. However, a copy of the said resolution sent to the complainant was returned to the Court unserved with notation "RTS Unclaimed," thus prompting the Court to resend a copy of the Resolution of July 7, 2003 in the complainant's address at 1864 Trinidad Rizal St., 1012 Tondo, Manila. This was likewise returned unserved, this time with the notation "Notice Left Add. Out."

The Court is in accord with the findings and the recommendation of the OCA and resolves to dismiss the complaint against the respondent for lack of merit.

Indeed, as a matter of policy, in the absence of fraud, dishonesty or corruption, the acts of a judge in his judicial capacity are not subject to disciplinary action even though such acts are erroneous.[1] To hold otherwise would be to render judicial office untenable, for no one called upon to try the facts or interpret the law in the process of administering justice can be infallible in his judgment.[2] Moreover, the filing of an administrative complaint against a judge is not the appropriate remedy where judicial recourse is still available. In the absence of fraud, malice or dishonesty in rendering the assailed decision or order, the remedy of the aggrieved party is to elevate the assailed decision or order to the higher court for review and correction.[3]

While it the Court's duty to investigate and determine the truth behind every matter in complaints against judges and other court personnel, it is also its duty to see to it that they are protected and exonerated from baseless administrative charges. The Court will not shirk from its responsibility of imposing discipline upon its magistrates, but neither will it hesitate to shield them from unfounded suits that serve to disrupt rather than promote the orderly administration of justice.[4]

WHEREFORE, the instant administrative complaint against Judge Artemio S. Tipon is DISMISSED for lack of merit.

Very truly yours,

(Sgd.) LUDICHI YASAY-NUNAG

Clerk of Court

[1] Castaños v. Escaño, 251 SCRA 174 (1995).

[2] Sacmar v. Reyes-Carpio, 400 SCRA 32 (2003).