EN BANC
JORDAN P. OKTUBRE,
Complainant,
A.M.
No.
MTJ-02-1444
(formerly A.M. OCA
IPI No. 01-1000-MTJ)
July 22, 2004
-versus-
JUDGE RAMON P.
VELASCO,
MUNICIPAL TRIAL
COURT, MAASING, SOUTHERN LEYTE,
Respondent.
chanroblesvirtualawlibrary
D E C I S I O N
PER
CURIAM:
This is a Complaint for
grave misconduct, abuse of authority, oppression, and gross ignorance
of
the law filed by Jordan P. Oktubre (“complainant”) against Judge Ramon
P. Velasco (“respondent Judge”) of the Municipal Trial Court, Maasin
City,
Southern Leyte (“MTC Maasin”).
Complainant is the attorney-in-fact
of one Peggy Louise D’Arcy vda. De Paler (“D’Arcy”), a non-resident
American.
D’Arcy is the widow of Abraham Paler (“Abraham”), a resident of Maasin
City, Southern Leyte. Respondent Judge is Abraham’s nephew.cralaw:red
During his lifetime,
Abraham built a four-storey commercial and residential building (“Paler
building”) in Maasin City on a lot he owned in common with his
siblings.
After Abraham died, none of his heirs petitioned for the settlement of
his estate. D’Arcy, through complainant, administered the Paler
building.
At the time material to this case, three tenants[1]
occupied the Paler building with some rooms reserved for Abraham’s
relatives.
While he had a room in the Paler building, complainant rarely used it
as
he stayed most of the time in Javier, Sogod, Southern Leyte. The
tenants
pay their rent to complainant.cralaw:red
Shortly after his appointment
to the MTC Maasin in March 1998, respondent Judge, with D’Arcy’s
permission,
stayed in the Paler building for a few days. He sought an extension of
his stay but D’Arcy turned down his request since during her next visit
to the country she would use the room respondent Judge then
occupied.
Nevertheless, respondent Judge was able to continue staying in the
Paler
building by transferring to a room reserved for a sister of Abraham.cralaw:red
Complainant alleges
that D’Arcy’s refusal to grant extension to respondent Judge’s stay
triggered
the following series of events narrated in his Complaint:
6. In April 2000[,]
Judge Velasco in a surprise move sent letters xxx to the tenants of the
building in which he passed himself off as the administrator of the
estate
of Gaspar Paler [Abraham’s father] and co-heir of Abraham Paler, and
directed
said tenants to deposit their monthly rentals to his office at [the]
Municipal
Trial Court (MTC) of Maasin City despite the fact that no action has
been
filed yet for that matter in court;chanrobles virtual law library
x
x
x
10. In August 2000,
Judge Velasco sent a strongly worded letter to Dr. [D’Arcy] with the
very
obvious purpose of intimidating the latter. The letter contains
categorical
declarations that he is taking over possession of the building,
misrepresentation
among others of Judge Velasco that he did it in collaboration with his
other relatives, legal arguments, and mostly intimidating words coming
from a Judge-Lawyer. Worse, he used his office’s (MTC)
letterhead
[for] this personal but threatening 5-page letter x
x
x;
x
x
x
12. [On September 9,
2000], Judge Velasco without my knowledge and permission moved out from
the garage [of the Paler building] the service jeep owned by Dr.
[D’Arcy]
and put it outside of the building causing it to be exposed to the sun
and rain;
x
x
x
14. Worried about the
vehicle, Dr. [D’Arcy] right away instructed me to return the vehicle
(jeep)
to the garage and to do something in such a way that it could not
anymore
be removed by Judge Velasco;chanrobles virtual law library
15. On September 15,
2000, I proceeded to Maasin City with the sole intention of having the
vehicle returned to its rightful place. Upon arrival, I was thankful
that
Judge Velasco was then at Cebu City so that I could be able to return
the
jeep without fear of opposition by or confrontation with him.
With
the assistance of xxx two [others], I returned the vehicle to the
garage
and removed one of its wheels and placed it inside the computer room of
the building;
x
x
x
17. On September 22,
2000, Judge Velasco destroyed the padlock of my room and changed it
with
another one including the second floor entrance padlock to the third
floor
with the precise purpose of controlling the ingress and egress of the
said
building;[2]
On 28 September 2000,
complainant filed a complaint against respondent Judge with the Punong
Barangay of Abgao, Maasin City. Complainant charged respondent
Judge
for changing the lock of his room and of the door leading to the third
floor of the Paler building. Complainant also charged respondent
Judge for taking the jeep out of the garage of the Paler
building.
On 2 October 2000, complainant and respondent Judge met at the Office
of
Punong Barangay of Abgao for mediation but there was no settlement as
respondent
Judge questioned complainant’s residency in Abgao. Complainant
described
what transpired after the meeting thus:
20. x x
x After the hearing, a police officer approached and informed me that
the
chief of Police of Maasin City wanted to talk to me. As expected
[of] every law-abiding citizen, I went with them to the Police
Station.
Thereat, the Chief of Police confronted me with a warrant of
arrest.
The warrant and the supporting documents show[ed] that I was charged
with
Robbery in relation to the wheel I removed [from the jeep] and it was
issued/signed
by Judge Velasco. While still in a state of shock because of this
malicious prosecution, the police authorities placed me behind bars;
21. That upon
further examination of the complaint docketed as Criminal Case No. 5485
of [the MTC Maasin] as well as the attached document thereto, it was
found
out to the surprise of everyone that the complaint of Robbery filed by
the Chief of Police was supported by the sole affidavit dated September
29, 2000 of a witness in the person of no other than Judge Ramon
Velasco
himself, xxx;
22. That I was
locked up in jail for about six (6) hours before I was able to put up a
cash bond of P24,000.00 before the RTC, Br. 25, Maasin City. As I
was about to be released in the afternoon of the same day, a subpoena
was
served at me in the City Jail which required me to file my
counter-affidavit
to the complaint [for Robbery] x x x;chanrobles virtual law library
23. That on October
16, 2000, I received another Order dated October 4, 2000 issued by the
respondent [J]udge directing me to submit [a] counter-affidavit in
another
case [for] Malicious Mischief docketed as Crim. Case No. R-5486 of [MTC
Maasin]. The Complaint xxx was supported by the same and only
affidavit
of Judge Velasco dated September 29, 2000 which he used in the
aforecited
criminal Complaint of Robbery x x x;chanrobles virtual law library
24. That about
the first week of November 2000, I received another subpoena dated
October
23, 2000 issued by Judge Velasco. This time a Criminal Case of
Falsification
by Private Individuals and Use of Falsified Documents was filed against
Dr. [D’Arcy], my principal. The Complaint docketed as Criminal
Case
No. 5493 of [MTC Maasin], was supported by xxx yet [another] xxx
affidavit
of Judge Velasco xxx dated October 18, 2000 x x
x;[3]
Complainant sought to
annul the warrant of arrest in Criminal Case No. 5485 by filing a
petition
for certiorari in the Regional Trial Court (“RTC”), Branch 25, Maasin
City.
The RTC granted the petition and annulled the warrant in its Order of 7
December 2000.[4]
Because of these events,
complainant filed this complaint on 18 January 2001. Complainant
prays that the Court discipline respondent Judge for using his sala’s
letterhead,
for his failure to inhibit himself from his own criminal complaints,
and
for his issuance of the warrant of arrest in Criminal Case No. 5485.cralaw:red
In his Comment dated
18 April 2001, respondent Judge admitted doing the acts complainant
recounted
about the Paler building, its tenants, and D’Arcy’s jeep. Respondent
Judge
claimed, however, that he merely acted to protect his maternal
co-heirs’
interest in the Paler building and in the other properties claimed by
D’Arcy.
Respondent Judge also stated the following qualifications: (1) he
changed
the padlock of the grill door leading to the third floor as this was
already
“worn-out”; (2) he had to open forcibly complainant’s room to clean it
as it was already “stinking”; (3) he temporarily transferred the jeep
out
of the Paler building because the garage had to be cleaned; and (4) he
sent the demand letters to the Paler building’s tenants based on Rule 73[5]
of the Rules of Court. Respondent Judge added that complainant
illegally
destroyed the lock of the garage gate when he returned the jeep.[6]
On his filing and taking
cognizance of his own complaints for Robbery, Malicious Mischief, and
Falsification
and Use of Falsified Documents, respondent Judge alleges:chanrobles virtual law library
P-LVIII
That construing
the
actuation of the complainant [in filing the complaints before the
Barangay
Captain] to be deliberate in defiance of my order and utmost disrespect
of my person and my official capacity [sic] and to vindicate my name,
honor
and reputation, and evident infractions of our penal laws, I filed the
criminal complaint for Robbery against the private complainant Jordan
Oktubre
and docketed as Crim. Case No. 5485 and another criminal complaint for
Malicious Mischief docketed as Crim. Case No. R-5486 xxx;
P-LIX
That the
x
x x institution of the criminal complaint for Robbery was
not
a malicious suit as it was anchored on facts as conveyed and attested
by
[witnesses] and the corpus delicti of the crime of Robbery and
Malicious
Mischief are established as shown by the destroyed garage padlock and
the
fact of loss of the right wheel rim and tire of the jeep;
P-LX
It is further
qualified
admitted [sic] that the institution of the suit against the private
complainant
Jordan Oktubre was by way of protecting the interest of my co-heirs and
to enforce the law as my judicial mandate dictates;chanrobles virtual law library
P-LXI
That it is
likewise
admitted that another criminal case for Falsification of Document by
Private
Individuals and Use of Falsified Document was filed against the
principal
of Jordan P. Oktubre in the person of Dr. Peggy D’Arcy Paler and
docketed
as Crim. Case No. R-5493 on the basis of the unearthed evidently
fraudulent
and deliberate act of falsification by non-disclosure of a material
fact
relative to her citizenship, she being an American citizen, on her
Affidavit
of Sole Adjudication x x x;
P-LXII
That after proper
evaluation
of the Complaint for Robbery against complainant Jordan P. Oktubre and
referral to jurisprudence on this matter, particularly the cited cases
of PP. vs. Abapo, 239 SCRA 373, Webb vs. De Leon, et al., GR 121234, 63
SCAD 196, in utmost good faith, with the end in view of dispensation of
justice expeditiously [sic] and not to frustrate the ends of justice
and
finding probable cause thereof for the issuance of a Warrant of Arrest,
[I] verily issued the Warrant of Arrest against complainant Jordan
Oktubre;
P-LXIII
That it is further
admitted
that the Court [in the complaint for Robbery] issued a subpoena to the
complainant to submit his counter-affidavit and other controverting
evidences
pursuant to Rule 112, Sec. 3, Rules
of Court x x x;[7]chanrobles virtual law library
Respondent Judge
inhibited
himself from the three criminal cases in his Orders of 4, 6, and 25
October
2000.
In its Report (“Report”)
dated 13 March 2002, the Office of the Court Administrator (“OCA”)
recommends
that respondent Judge be fined P10,000 for grave misconduct, gross
ignorance
of the law and grave abuse of authority. The Report reads:
The records of this
case show that complainant Mr. Jordan Oktubre was arrested and detained
pursuant to a Warrant of Arrest xxx and a Commitment Order xxx issued
by
the respondent [J]udge, the basis for which is a Criminal Complaint for
Robbery supported by an affidavit executed by the respondent Judge
Ramon
Velasco. Also, in Criminal Case No. 5486 for “Malicious
Mischief”,
records show that the complaint is supported by [the] lone affidavit of
Judge Ramon Velasco xxx and in an Order marked Annex “I”, accused
Jordan
Oktubre was directed to submit his counter-affidavit by the respondent.cralaw:red
Aggrieved by the issuance
of respondent Judge of the warrant of arres], herein complainant
elevated
the matter to the Regional Trial Court, Branch 25, Maasin, Southern
Leyte
via “Certiorari and/or Prohibition with Application for Temporary
Restraining
Order and Writ of Preliminary Injunction”. The RTC in its Order
dated
December 7, 2000 x x x ruled that “respondent
J]udge
in issuing a warrant of arrest violative of [Rule 112, Sec. 6, par. 2
of
the Rules of Court]
may not only be committing grave abuse of discretion but gross
ignorance
of the law x x x”. Consequently, the warrant of
arrest was declared null and void.cralaw:red
Considering that respondent
Judge is the complainant of the cases, his issuance of the warrant of
arrest
is in violation of Sec. 6, Rule 112 of the Rules
of Court and Sec. 37 of the Judiciary
Act of 1980. Having resorted to such act, he acted as the
private
complainant, x x x judge and executioner.chanrobles virtual law library
It was also noted that
in the letters xxx sent to the tenants of the Paler Building and to Dr.
[D’Arcy], respondent [Judge] used the letter head of his Office
“Municipal
Trial Court of Maasin, Southern Leyte” and signed the same as its
Presiding
Judge. This to our mind, constitutes undue influence.[8]
The OCA’s recommendation
finding respondent Judge guilty of Grave Misconduct, Gross Ignorance of
the Law and Grave Abuse of Authority is well-taken. However, the Court
finds the recommended penalty disproportionate to respondent Judge’s
offenses
and instead imposes on him the penalty of dismissal from service.cralaw:red
Respondent Judge
is Liable for Grave
Misconduct and
Grave Abuse of Authority
Canon 2, Rule 2.03 (“Rule
2.03”) of the Code
of Judicial Conduct (“Code”)
provides:
A judge shall not allow
family, social or other relationships to influence judicial conduct or
judgment. The prestige of judicial office shall not be used or
lent
to advance the private interests of others, nor convey or permit others
to convey the impression that they are in a special position to
influence
the judge.cralaw:red
Rule 3.12 of the Code
(“Rule 3.12”), which is substantially similar to Rule 137, Section 1
(“Rule
137, Section 1”) of the 1964 Rules of Court,[9]
mandates that:
A judge should take
no part in a proceeding where the judge’s impartiality might reasonably
be questioned. These cases include, among others, proceedings
where:chanrobles virtual law library
(a) the
judge
has personal knowledge of disputed evidentiary facts concerning the
proceeding;
(b) the judge
served
as executor, administrator, guardian, trustee or lawyer in the case or
matters in controversy, or a former associate of the judge served as
counsel
during their association, or the judge or lawyer was a material witness
therein;
(c) the judge’s
ruling
in a lower court is the subject of review;
(d) the
judge
is related by consanguinity or affinity to a party litigant within the
sixth degree or to counsel within the fourth degree;
(e) the judge
knows
that the judge’s spouse or child has a financial interest, as heir,
legatee,
creditor, fiduciary, or otherwise, in the subject matter in controversy
or in a party to the proceeding, or any other interest that could be
substantially
affected by the outcome of the proceeding.
In every instance
the
judge shall indicate the legal reason for inhibition. (Emphasis added.)
For inappropriately
using
his Office’s letterhead and for acting on his own criminal complaints
against
complainant and D’Arcy, respondent Judge violated these rules.
Thus,
he is liable for grave misconduct[10]
and grave abuse of authority.
On Respondent
Judge’s Use of
His Office’s
Letterhead
Respondent Judge does
not deny sending several letters bearing his sala’s letterhead on
matters
involving an apparent dispute in the administration of the estates of
two
relatives. His excuse for doing so is that he wanted to protect the
interest
of his maternal co-heirs in the Paler building and other disputed
properties.
This explanation is flimsy. Even if he is the “administrator” of the
estates
of Abraham and Gaspar Paler (“Gaspar”), Abraham’s father, and
representative
of his maternal co-heirs,[11]
respondent Judge has no business using his sala’s letterhead for
private
matters. Respondent Judge should know that a court’s letterhead should
be used only for official correspondence. Respondent Judge aggravates
his
liability when, in his letters to the tenants, he further required them
to pay their rent at the MTC Maasin, although he was then staying at
the
Paler building. By these calculated steps, respondent Judge in the
words
of Rule 2.03, clearly intended to “use the prestige of his judicial
office”
to advance the interest of his maternal co-heirs.chanrobles virtual law library
On Respondent
Judge’s Failure
To Recuse Himself
from His Criminal Complaints
As we noted in Perez
v. Suller,[12]
the rule on disqualification of judges under Rule 3.12 and Rule 137,
Section
1 stems from the principle that no judge should preside in a case in
which
he is not wholly free, disinterested, impartial and independent. A
Judge
should not handle a case in which he might be perceived to be
susceptible
to bias and partiality. The rule is intended to preserve the people’s
faith
and confidence in the courts of justice.cralaw:red
True, a judge should
possess proficiency in law so that he can competently construe and
enforce
the law. However, it is more important that he should act and behave in
such a manner that the parties before him have confidence in his
impartiality.[13]
Indeed, even conduct that gives rise to the mere appearance of
partiality
is proscribed.[14]
Here, although he is
the complainant in the three criminal complaints, respondent Judge did
not disqualify himself from the cases. Worse, he even issued a
warrant
of arrest in Criminal Case No. 5485, resulting in the arrest and
detention
of complainant. By doing so, respondent Judge violated Rule 3.12 and,
by
implication Section 1 of Rule 137, which covers the preliminary stages
of criminal prosecution. To be sure, the situation in this case does
not
fall under any of the instances enumerated in Rule 3.12. Nevertheless,
as the provision itself states, such enumeration is not exclusive. More
importantly, paragraph (d) prohibits a judge from sitting in a case
where
he is related to a party or to counsel within the sixth and fourth
degree
of consanguinity or affinity, respectively. Thus, there is more
reason
to prohibit a judge from doing so in cases where he is a party. Indeed,
the idea that a judge can preside over his own case is anathema to the
notion of impartiality that such was no longer included in the
enumeration
in Rule 3.12 nor covered by Section 1 of Rule 137.chanrobles virtual law library
Respondent Judge’s subsequent
inhibition from the three cases does not detract from his culpability
for
he should not have taken cognizance of the cases in the first place.
The
evil that the rule on disqualification seeks to prevent is the denial
of
a party of his right to due process. This became fait accompli when
respondent
Judge refused to abide by such rule. Equally damaging was the effect of
respondent Judge’s conduct on the image of the judiciary, which without
a doubt, immeasurably suffered from it. It is well to remind
respondent
Judge:
As public
servants,
judges are appointed to the judiciary to serve as the visible
representation
of the law, and more importantly, of justice. From them, the
people
draw their will and awareness to obey the law xxx. If judges, who
swore to obey and uphold the constitution, would conduct themselves xxx
in wanton disregard and violation of the rights of complainant, then
the
people, especially those with whom they come in direct contact, would
lose
all their respect and high regard for the institution of the judiciary
itself, not to mention, cause the breakdown of the moral fiber on which
the judiciary is founded.[15] Respondent Judge
is
Liable for Gross
Ignorance of the Law
Respondent Judge does
not deny that he did not conduct a preliminary investigation on the
complaint
for robbery in Criminal Case No. 5485 where he issued the warrant of
arrest
against complainant. As justification, he claims that he acted in good
faith based on pertinent jurisprudence. This explanation deserves scant
consideration. Section 3 of Rule 112 sets out in detail the procedure
for
conducting preliminary investigation, thus:
Procedure.-
Except as provided for in Sec. 7 hereof, no complaint or information
for
an offense cognizable by the Regional Trial Court shall be filed
without
a preliminary investigation having been first conducted in the
following
manner:chanrobles virtual law library
(a) The complaint shall state the address of the respondent and shall
be
accompanied by the affidavits of the complainant and his witnesses, as
well as other supporting documents in such number of copies as there
are
respondents, plus two (2) copies for the official file. The said
affidavits
shall be subscribed and sworn to before any fiscal or government
official
authorized to administer oath, or, in their absence or unavailability,
before a notary public, who must certify that he personally examined
the
affiants and that he is satisfied that they voluntarily executed and
understood
their affidavits.
(b) Within ten (10) days after the filing of the complaint, the
investigating
officer shall either dismiss it if he finds no ground to continue with
the investigation, or issue a subpoena to the respondent, attaching
thereto
a copy of the complaint, affidavits and other supporting documents.
(c) Such counter-affidavits and other supporting evidence
submitted
by the respondent shall also be sworn to and certified as prescribed in
paragraph (a) hereof and copies thereof shall be furnished by him to
the
complainant. Within ten (10) days from receipt thereof, the respondent
shall submit counter-affidavits and other supporting documents. He
shall
have the right to examine all other evidence submitted by the
complainant.
(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not
submit counter-affidavits within the ten (10) day period, the
investigating
officer shall base his resolution on the evidence presented by the
complainant.chanrobles virtual law library
(e) If the investigating officer believes that there are matters to be
clarified, he may set a hearing to propound clarificatory questions to
the parties or their witnesses, during which the parties shall be
afforded
an opportunity to be present but without the right to examine or
cross- examine. If the parties so desire, they may submit questions to
the investigating officer which the latter may propound to the parties
or witnesses concerned.
(f) Thereafter, the investigation shall be deemed concluded, and the
investigating
officer shall resolve the case within the (10) days therefrom.
Upon
the evidence thus adduced, the investigating officer shall determine
whether
or not there is sufficient ground to hold the respondent for trial.[16]
Criminal Case No. 5485
involves Robbery punishable either with prision mayor (six years and
one
day to 12 years) or prision mayor in its minimum period (six years and
one day to eight years), depending on the value of the property taken.[17]
In either case, the offense falls under the jurisdiction of the
Regional
Trial Courts for which Section 1 of Rule 112 mandates the conduct
of a preliminary investigation.[18]
As one of the officers authorized to conduct preliminary investigation
under Section 2[19]
of Rule 112, respondent Judge is duty-bound to know and strictly follow
the procedure and requirements in Rule 112.chanrobles virtual law library
Respondent Judge aggravated
his liability when he proceeded to issue the warrant of arrest. Section
6 of Rule 112 provides:
When
warrant
of arrest may issue.- x x x (b) By
the Municipal Trial Court- If the municipal trial court judge
conducting
the preliminary investigation is satisfied after an examination in
writing
and under oath of the complainant and his witnesses in the form of
searching
questions and answers, that a probable cause exists and that there is a
necessity of placing the respondent under immediate custody in order
not
to frustrate the ends of justice, he shall issue a warrant of arrest.[20]
(Emphasis supplied.)
This is the same
procedure
prescribed in Section 2,[21]
Article III of the Constitution
and in Section 5, Rule 126[22]
of the Revised
Rules of Criminal Procedure. A judge who issues a
warrant of arrest without first complying with such mandatory procedure[23]
is liable for gross ignorance of the law.[24]
In Cabilao v. Judge Sardido,[25]
we ruled:
We have held, in a number
of cases before this Court, that the procedure described in Section 6
of
Rule 112 is mandatory because failure to follow the same would amount
to
a denial of due process. With respect to the issuance by inferior
courts
of warrants of arrest, it is necessary that the judge be satisfied that
probable cause exists: (1) through an examination under oath and in
writing
of the complainant and his witnesses, which examination should be (2)
in
the form of searching questions and answers. This rule is not merely a
procedural but a substantive rule because it gives flesh to two of the
most sacrosanct guarantees found in the fundamental law: the guarantee
against unreasonable searches and seizures and the due process
requirement.
(Emphasis supplied.)chanrobles virtual law library
The only instance where
the judge may dispense with such procedure is when the application for
the warrant of arrest is filed before a Regional Trial Court
judge.
In such a case, the RTC judge can rely on the report of the prosecutor
on the finding of probable cause.[26]
Criminal Case No. 5485 does not fall under such exception.cralaw:red
The Penalty Appropriate
to the Case
The OCA recommends the
imposition of P10,000 fine on respondent Judge. As earlier stated, the
Court finds this penalty disproportionate to the gravity of respondent
Judge’s offenses. In several cases,[27]
we have imposed the penalty of dismissal against judges for grave
misconduct
alone. In OCA v. Judge Bara-acal,[28]
we dismissed a lower court judge for grave misconduct. Considering that
respondent Judge’s grave misconduct is compounded by his other offenses
of grave abuse of authority and gross ignorance of the law, his
dismissal
from service is more than justified.[29]chanrobles virtual law library
WHEREFORE, we find respondent
Ramon P. Velasco, Presiding Judge of the Municipal Trial Court, Maasin
City, Southern Leyte, GUILTY of Grave Misconduct, Gross Ignorance of
the
Law, and Grave Abuse of Authority for violation of Rule 2.03 and Rule
3.12
of the Code
of Judicial Conduct. He is DISMISSED from the service with
forfeiture
of retirement benefits and with prejudice to reinstatement in any
branch
of the government or any of its agencies or instrumentalities,
including
government owned or controlled corporations. However, he shall
receive
any accrued leaves due him as of this date.cralaw:red
SO ORDERED.cralaw:red
Davide, C.J., Puno,
Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio,
Austria-Martinez,
Corona, Carpio-Morales, Callejo, Sr., Azcuna, Tinga, and Chico-Nazario,
JJ., concur.
____________________________
Endnotes:
[1]
LIDEF, Inc., National Census and Statistics Office of Maasin City, and
Joseph Tupas.
[2]
Complaint, pp. 2-4.chanrobles virtual law library
[3]
Ibid., pp. 5-6.chanrobles virtual law library
[4]
Annex 42.chanrobles virtual law library
[5]
Venue and Process, Settlement of Estate of Deceased Persons.
[6]
Comment, pp. 16-20.
[7]
Ibid., pp. 22-24. (Capitalization in the original)
[8]
Rollo, pp. 3-4.chanrobles virtual law library
[9]
This provision states: “No judge or judicial officer shall sit in any
case
in which he, or his wife or child, is pecuniarily interested as heir,
legatee,
creditor or otherwise, or in which he is related to either party within
the sixth degree of consanguinity or affinity, or to counsel within the
fourth degree computed according to the rules of the civil law, or in
which
he has been executor, administrator, guardian, trustee or counsel, or
in
which he has presided in any inferior court when his ruling or decision
is the subject of review, without the written consent of all parties in
interest, signed by them and entered upon the record.
A
judge may in the exercise of his sound discretion, disqualify himself
from
sitting in a case for just or valid reasons other than those mentioned
above.”
[10]
See Cortes v. Judge Catral, 378 Phil. 456 (1999).chanrobles virtual law library
[11]
The Court notes, however, that no petition was ever filed to settle
Gaspar’s
estate. Also, at the time respondent Judge sent the letters to the
tenants
on 1 April 2000 and to D’Arcy on 31 July 2000, the petition to settle
Abraham’s
estate was not yet filed as this was done only on 16 January 2001.
Lastly,
the Special Power of Attorney executed in respondent Judge’s favor by
his
maternal co-heirs was signed only on 3 October 2000.chanrobles virtual law library
[12]
320 Phil. 1 (1995).chanrobles virtual law library
[13]
Fernandez v. Presbitero, A.M. No. 486-MJ, 13
September
1977, 79 SCRA 60 citing Tan, Jr. v. Gallardo, G.R. Nos.
L-41213-14,
5 October 1976, 73 SCRA 306.
[14]
Espiritu v. Judge Jovellanos, 345 Phil. 823 (1997); Balleza
v.
Mun. Judge Astorga, 162 Phil. 575 (1976); Palang v. Hon. Zosa, 157
Phil.
761 (1974).
[15]
Cayao v. Del Mundo, A.M. No. MTJ-93-803, 15 September 1993, 226 SCRA
497.
[16]
Superseded by Section 3, Rule 112 of the Revised Rules of Criminal
Procedure,
effective 30 December 2000.
[17]
Revised Penal Code, Art. 299(b).chanrobles virtual law library
[18]
Section 1 of Rule 112 provides: “Definition. —
Preliminary investigation is an inquiry or proceeding for the purpose
of
determining whether there is sufficient ground to engender a well
founded
belief that a crime cognizable by the Regional Trial Court has been
committed
and that the respondent is probably guilty thereof and should be held
for
trial.” Section 7 of Rule 112 provides: “When accused lawfully
arrested
without warrant.— When a person is lawfully arrested without a warrant
for an offense cognizable by the Regional Trial Court the complaint or
information may be filed by the offended party, peace officer or fiscal
without a preliminary investigation having been first conducted, on the
basis of the affidavit of the offended party or arresting officer or
person.
However, before the filing of such complaint or information, the person
arrested may ask for a preliminary investigation by a proper officer in
accordance with this Rule but he must sign a waiver of the provisions
of
Article 125 of the Revised Penal Code, as amended, with the assistance
of a lawyer and in case of non-availability of a lawyer, a responsible
person of his choice. Notwithstanding such waiver, he may apply
for
bail as provided in the corresponding rule and the investigation must
be
terminated within fifteen (15) days from its inception. If the case has
been filed in court without a preliminary investigation having
been
first conducted, the accused may within five (5) days from the time he
learns of the filing of the information, ask for a preliminary
investigation
with the same right to adduce evidence in his favor in the manner
prescribed
in this Rule.”
[19]
“Officers authorized to conduct preliminary investigation. — The
following may conduct preliminary investigation:chanroblesvirtuallawlibrary
(a)
Provincial or city fiscal and their assistants;chanrobles virtual law library
(b)
Judges of the Municipal Trial Courts and Municipal Circuit Courts;
(c)
National and Regional state prosecutors;chanrobles virtual law library
(d)
Such other officers as may be authorized by law.chanrobles virtual law library
Their
authority to conduct preliminary investigation shall include all
crimes cognizable by the proper court in their respective
jurisdictions.”
(Emphasis supplied)
[20]
Superseded by Sec. 6, Rule 112 of Revised Rules of Criminal Procedure.chanrobles virtual law library
[21]
This provision reads: “The right of the people to be secure in their
persons,
houses, papers and effects against unreasonable searches and seizures
of
whatever nature and for any purpose shall be inviolable and no search
warrant
or warrant of arrest shall issue except upon probable cause to be
determined
personally by the judge after examination under oath or affirmation of
the complainant and the witnesses he may produce and particularly
describing
the place to be searched and the person to be seized.” (Emphasis
supplied)
Superseded by Sec. 6, Rule112 of Revised Rules of Criminal Procedure.
[22]
This provision states: “Examination of complainant; record.
— The judge must, before issuing the warrant, personally examine in the
form of searching questions and answers, in writing under oath, the
complainant
and the witnesses he may produce on facts personally known to them and
attach to the record their sworn statements, together with the
affidavits
submitted.”
[23]
Silva v. Presiding Judge, RTC, Negros Oriental, Br. 33, G.R. No. 81756,
21 October 1991, 203 SCRA 140.
[24]
Chu v. Tamin, A.M. No. RTJ-03-1786, 28 August 2003.chanrobles virtual law library
[25]
316 Phil. 134 (1995).chanrobles virtual law library
[26]
Soliven v. Makasiar, G.R. No. L-82585, 14 November 1988, 167 SCRA 393.
[27]
E.g. Guray v. Judge Bautista, 413 Phil. 1 (2001); Arban v. Judge
Borja, 227 Phil. 597 (1986).
[28]
351 Phil. 604 (1998).chanrobles virtual law library
[29]
Under Sections 9 and 11 of Rule 140 of the Rules of
Court,
gross misconduct is a serious charge punishable with
dismissal
from the service. |