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[A.M. OCA IPI No. 04-1850-P.� February 7, 2005]

ORENSE vs. FUENTEBELLA

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated FEB 7 2005 .

Adm. Matter O.C.A. I.P.I. No. 04-1850-P (Sps. Miguel and Gina Orense vs. Rex Fuentebella, Sheriff III, MTCC, Bago City .)

This treats of the Report dated 21 December 2004 submitted by the Office of the Court Administrator (OCA).

Complainants Spouses Miguel and Gina Orense filed before the Office of the Ombudsman (Visayas) complaints for robbery and malicious mischief against respondent Rex Fuentebella relative to Civil Case No. 1649 entitled "Jose Alabad, et al. v. Carlos Orense" for Forcible Entry and Detainer with Preliminary Mandatory Injunction. The complaints were forwarded to the OCA on 6 January 2004.

Complainants allege that while at the poblacion of Bago City, they were informed that some persons were demolishing their house. They immediately went home and saw their house totally demolished and all their personal properties missing. They saw at the scene respondent Fuentebella with heavily armed policemen and some workers. When complainants asked respondent why their house was demolished without notice or warning, he allegedly told them that the demolition was authorized by the Office of the City Mayor upon the request of Josefina Alabado. According to complainants, respondent did not show any legal and valid authority for the demolition. Complainants also claim that respondent carted away their personal properties worth P25, 000.00.

In his Comment dated 3 March 2004, respondent explains that Carlos Orense, the parent of complainants and the defendant in Civil Case No. 1649, was the true owner of the small hut that was demolished. It was built during the pendency of the civil case. He likewise asserts that complainants were fully aware of all court orders and processes issued and served on Carlos Orense, including the writ of demolition. At the time respondent tried to enforce the writ, Carlos Orense and his family, together with relatives and neighbors, barricaded the pathway leading to plaintiff Jose Alabad's lot. Respondent likewise denies the allegation that he carted away complainants' personal properties. He claims that he performed his duty according to the mandate of the court. Some barangay officials, including the chairman, were in fact present the whole time the demolition order was being implemented.

The OCA recommends the dismissal of the complaints for lack of merit. It found that the charges are not supported by evidence. Administrative cases, being penal in character, must be established by clear and convincing evidence. Complainant has the burden of proof to establish the charges by substantial evidence. In the instant case, complainants failed to satisfactorily establish by substantial evidence the charges against respondent. There is a presumption in favor of the respondent that he performed his official duties regularly. A mere affidavit cannot overcome the presumption that official duty has been regularly performed. Respondent was even able to present the Writ of Execution and the Writ of Demolition issued by the trial court, as well as the notice to vacate and the sheriff's return of the writ of demolition, thereby sufficiently refuting complainants' allegations.

Finding the recommendation to be in accord with the law and facts of the case on record, the same is APPROVED. The complaints against Rex Fuentebella, Sheriff III, MTCC, Bago City, are DISMISSED for lack of merit.

Very truly yours,

(Sgd.) LUDICHI YASAY-NUNAG
Clerk of Court

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