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[A.M. No. MTJ-00-1300. November 12, 2001]

DR. GAUDIOSA B. ROSARIO vs. HON.BANQUERIGO et al.

SECOND DIVISION

Gentleman:

Quoted hereunder, for your information, is a resolution of this Court dated NOV 12 2001.

A.M. No. MTJ-00-1300(Dr. Gaudiosa B. Rosario vs. Hon. Tirso F. Banquerigo, presiding Judge, MTC, Tanjay, Negros Occidental.)

In her Affidavit-Complaint dated July 29, 1998, Dr. Gaudiosa B. Rosario charges respondent with incompetence and delay in the administration of justice relative to Civil Case No. 689 entitled, "Raymundo Banogon, et al. vs. Lucresia Saga," for ejectment and damages.

Complainant, who is one of the plaintiffs in Civil Case No. 689, alleges that after the decision in said case has become final and executory, she filed a Motion for Execution. But in spite of the finality of the decision, respondent set the motion into a series of hearings and required the parties to file memorandum. However, notwithstanding their compliance, respondent failed to issue the writ of execution even after the lapse of six (6) months.

Subsequently, a letter dated 05 February 1999 was submitted by complainant requesting this Office to hold in abeyance further action on the complaint. Complainant claims that the Letter-Complaint, together with the attached Affidavit-Complaint, were both prepared by her counsel, Atty. Telesforo Diao, Jr. She signed said documents without Atty. Diao explaining to her their full import. Later, Atty. Diao turned over the entire records of Civil Case No. 689 and after going over the same, she felt the need to reassess her position. She tried to contact Atty. Diao several times to clarify the matter, but the latter was nowhere to be found.

In an indorsement dated 08 February 1999 by then Court Administrator Alfredo L. Benipayo, respondent Judge was required to comment on the complaint. Respondent Judge, in a letter dated March 11, 1999, requested an extension of ten (10) days within which to file his comment. No comment was filed. Thus, in a resolution of the Court dated June 28, 2000, respondent was required to SHOW CAUSE why he should not be disciplinarily dealt with or held in contempt for such failure, and to submit his comment on the administrative complaint. However, the aforementioned resolution of June 28, 2000 was returned to the Court unserved with notation "MOVED," hence, in a resolution dated October 18, 2000, the aforesaid resolution was re-sent to respondent Judge Banquerigo at his regular station, 3rd MCTC of Tayasan-Jimalalud, Negros Oriental.

In his Comment dated January 17, 2001, respondent Judge prays that the instant complaint against him be dismissed for lack of merit. Moreover, respondent Judge explains that the resolution of this Court dated June 28, 2000 was received by the personnel of MCTC Tayasan-Jimalalud only on 12 December 2000 hence, he was not able to read it soon. Respondent Judge expresses also his apology to the Court for not immediately answering the instant complaint due to the following reasons, among others: 1.) that he was misled by the former lawyer of complainant Atty. Telesforo Diao, Jr., when he told him in 1999 that they had already withdrawn the complaint; and, 2.) That he forgot all about the complaint because he was very much occupied due to his different court assignments, thus:

"xxx simultaneously designated as Acting Judge of MCTC Manjuyod-Bindoy-Bacong starting August 2000 until the present and Acting Judge of MCTC Manjuyod-Bindoy-Ayungon, starting October 2000 to the present, and handling all cases coming from the Municipality of Ayungon only which has around One Hundred Eighty (180) cases pending. So at present this is [my] schedule, to wit:

'1) On Mondays, I will be reporting in the Municipality of Bacong;

'2) On Tuesdays, I will be reporting in the Municipality of Tayasan, more than hundred kilometers from Bacong;

'3) On Wednesdays, I will be in the Municipality of Jimalalud, or in MTC Guihulngan; or in MTCC Bais; or in MTC Mabinay; or MCTC Laliberta and Villahermoso;

'4) On Thursdays, I will be in the Municipality of Ayungon; and

'5) On Fridays, I will be in the Municipality of Valencia.'

"The aforementioned schedule of my assignments has contributed to the delay in the preparation of the comments of the complaint of Dr. Gaudiosa Rosario. With this explanation, I hope and pray to the Almighty you will understand all my predicaments. Again, I'm so sorry all about it. To be frank and candid, I have already developed a phobia, that every time I receive a communication from the Supreme Court I am afraid and think that this is another case."

Pertaining to the complaint proper, respondent denies the alleged non-issuance of a writ of execution, claiming that even prior to the issuance of a final entry of judgment on July 1, 1996, a writ of execution had already been issued by then Presiding Judge Sergio T. Perigua on January 30, 1996. Further, on November 20, 1997, Atty. Telesforo Diao, former counsel of the plaintiffs, withdrew their motion for the issuance of an alias writ of execution. Respondent observed that the writ might not have been satisfied due to the supersedeas bond filed by the defendant. Likewise, respondent believes that the writ of execution was not satisfied because of some supervening events like the defendant's filing of a Petition for Review With Prayer for Prohibition, Injunction and Restraining Order before the Regional Trial Court, then to the Court of Appeals and finally to this Court where the petition is still pending. Finally, respondent asserts that on March 3, 2000, the plaintiff through their new counsel, Atty. Frederick Bustamante, filed a motion for the issuance of a writ of execution. After due hearing and finding that defendants failed to pay the monthly rentals for three consecutive months, the court granted the motion in an order dated April 17, 2000.

The letter dated February 5, 1999, of complainant requesting to hold in abeyance further action on the complaint she filed against respondent until after she has informed this Office whether or not to proceed with this case should be disregarded. Giving due course to complainant's request would place respondent at her mercy. Besides, respondent is entitled to a speedy disposition of the administrative complaint against him.

Respondent was able to sufficiently controvert the charges against him. We also find satisfactory his explanations for the delay in the filing of his Comment.

IN VIEW OF THE FOREGOING, the COMPLAINT against respondent Judge Tirso F. Banquerigo is hereby DISMISSED for lack of merit.

SO ORDERED.

Very truly yours,

(Sgd.) TOMASITA M. DRIS

Clerk of Court

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