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[A.M. OCA IPI No. 02-1427-P. January 31, 2005]

RE: MANOTOK SERVICES vs. ANUNCIACION

Gentlemen:

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

A.M. OCA IPI No. 02-1427-P (Re: Manotok Services, Inc., represented by Atty-In-Fact Rosa R. Manotok vs. Efren H. Anunciacion, Sheriff III, Metropolitan Trial Court, Branch 6, Manila for dereliction of duty and abuse of authority.)

Considering the Report dated November 9, 2004 of the Office of the Court Administrator, to wit:

1. COMPLAINT dated June 19, 2002 of Manotok Services, Inc., charging respondent Sheriff with dereliction of duty and abuse of authority relative to Civil Case No. 155587-CV, Manotok Services, Inc., vs. Romeo Ortega and "Against All Those Claiming Rights Under Him", for ejectment.

Complainant, plaintiff in the aforesaid case, alleges that on November 23, 1999, after the submission of the parties' respective position papers, the Court rendered judgment, the dispositive portion of which reads:

WHEREFORE, judgment on the merit is hereby rendered in favor of the plaintiff as follows:

1. Ordering the defendant and all persons claiming rights under him to voluntarily vacate Lot 5-C, Blk. 2913 at 2948 Dagupan Extension, Tondo, Manila and surrender possession thereof to the plaintiff;

2. Ordering the defendant to pay to plaintiff the sum of P94,526.40 representing rental in arrears as of January 1988 and thereafter to pay the amount of P2,500.00 a month until the lot is actually vacated;

3. Ordering the defendant to pay the plaintiff the amount of P5,000.00 as and for attorney's fees plus the cost of suit.

SO ORDERED.

The judgment became final and executory after defendant failed to take an appeal from it within the reglementary period. Thereafter, a motion for execution was filed by the complainant.

On July 20, 2000, the Court ordered the issuance of a writ of execution which was done on October 10, 2000. However, respondent Sheriff refused to implement the writ of execution, citing Rule 39, Section 10, par. D of the 1997 Rules of Civil Procedure, giving the impression that he was acting as counsel for the defendant.

2. COMMENT dated August 28, 2002 of respondent Sheriff. He claims that as sheriff-designate of Metropolitan Trial Court, Branch 6, Manila, he was directed to implement the writ of execution issued on October 10, 2000 in Civil Case No. 155587, Manotok Services, Inc., vs. Romeo Ortega, et al.

Pursuant thereto, on September 28, 2001, when respondent Sheriff went to serve copies of the writ of execution and notice to vacate premises upon the defendants, he found that there was a seven (7)-door building erected on the premises occupied by different families, including the defendant.

On October 3, 2001, respondent Sheriff served a copy of the writ to the Barangay Chairman with the request that he be present as it was being implemented.

On October 5, 2001, at about 9:00 a.m., respondent Sheriff together with another sheriff from the OCC and representatives of plaintiff-corporation proceeded to implement the writ in the presence of the Barangay Chairman.

Respondent Sheriff claims that except for one (1) door that remained locked, the building was readily and voluntarily vacated by the occupants. Since he was not armed with a break-open order or a writ of demolition, respondent asked the representatives of the plaintiff-corporation to desist from demolishing the building and instead ordered them to secure the area and provide two security guards on a 24 hour basis.

Respondent Sheriff explains that his ministerial duty to execute the decision was limited by the provision of Section 10(d), Rule 39 of the Rules of Court which requires a special order from the court for the removal of improvements on the subject property. Without any motion from the plaintiff for the demolition of the aforesaid structure, he could not fully execute the decision of the court.

EVALUATION: Respondent Sheriff is charged with misconduct for his alleged failure to implement the Writ of Execution in Civil Case No. 155587-CV. Indeed, there was partial execution of the judgment pursuant to the writ, but respondent allegedly refused to fully implement the writ because of the presence of a structure on the subject lot. He cited Section 10(d), Rule 39 of the Rules of Court which provides that:

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.

When a party refuses to yield possession of property as directed in the writ of execution, contempt is not the remedy. The Sheriff must oust said party from the property but if demolition is involved, there must be a hearing on motion and due notice for issuance of a special order by the court. In such a case, the plaintiff should file a motion for issuance of a writ of demolition, in the absence of which the Sheriff can not validly proceed to cause demolition of the structure.

RECOMMENDATION: Respectfully submitted to this Honorable Court is the recommendation that the instant administrative complaint against respondent Sheriff Efren H. Anunciacion of Branch 6, Metropolitan Trial Court, for dereliction of duty and abuse of authority, be DISMISSED for lack of merit.

and finding the evaluation and recommendation thereon to be in accord with law and the facts of the case, the Court hereby approves and adopts the same.

ACCORDINGLY, the administrative complaint against Sheriff Efren H. Anunciacion is DISMISSED.

SO ORDERED.

Very truly yours,

(Sgd.) LUDICHI YASAY-NUNAG
Clerk of Court

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