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[A.M. OCA IPI No. 04-1928-RTJ. January 17, 2005]
COCJIN vs. DIAZ
SECOND DIVISION
Gentlemen:
Quoted hereunder, for your information, is a resolution of this Court dated JAN 17 2005.
R E S O L U T I O N
A.M. OCA IPI No. 04-1928-RTJ (Leonardo Cocjin, Jr. vs. Judge Gregorio D. Diaz, RTC, Br. 68, Dumangas, Iloilo.)
Acting on the Report of the Office of the Court Administrator (OCA) dated October 11, 2004, to wit:
REASON FOR AGENDA: Filed with the Office of the Court Administator is a LETTER COMPLAINT of Retired Judge Leonardo Cocjin, Jr. charging Presiding Judge Gerardo D. Diaz of the aforementioned Regional Trial Court with Partiality, Grave Abuse of Discretion and Gross Ignorance of the Law relative to Civil Case No. 97-105 entitled "Rodolfo Corneja vs. Leonardo Cocjin, Jr." for Specific Performance with Damages.
Complainant states that he is the defendant in the afore-cited civil case. With gross ignorance of the law, a decision was rendered in favor of the plaintiff and against him on 23 June 2000 by respondent judge. On even date, a writ of execution was issued without waiting for the said decision to become final. Complainant points out that the 23 June 2000 date of the writ of execution cannot be considered as a mere lapse nor as a clerical error since the same date is borne out by the records and confirmed by the 13 August 2003 letter of the respondent to the Honorable Deputy Court Administrator Zenaida Elepa�o. Evidently, respondent took the law upon himself when he issued the writ knowing fully well that no motion for its issuance was filed by the plaintiff.
Respondent judge acted with bias and partiality when he dismissed the motion for reconsideration filed by the complainant within the 15-day reglementary period to appeal. Moreover, respondent judge did not deduct the amount of Php. 5,000.00 received by the plaintiff from the Php. 11,500.00 purchase price, which was admitted in his pleadings.
Within the requested extended period to submit his response to the complaint, respondent judge filed his COMMENT dated 19 February 2004. He argues that the allegations of the complainant are bereft of merit.
According to the respondent judge, counsel of record of the complainant received the 23 June 2000 Decision on 27 July 2000. A Notice of Appeal was filed by the said counsel on 3 August 2000, however, no appellate court docket fees were paid. On 15 August 2000 or four (4) days beyond the reglementary period to appeal reckoned from the time of receipt of the decision by the complainant's counsel, complainant by himself filed a Motion for Reconsideration of the said decision. It was only on 21 August 2000 or ten (10) days beyond the period to appeal that the appellate docket fees were paid. Consequently, the respondent judge, in an Order dated 5 October 2000, denied the Notice of Appeal on the ground that his court did not acquire jurisdiction over it because the docket fees were paid beyond the reglementary period. The Motion for Reconsideration filed by the complainant on 15 August 2000 was not given due course ' for being very irregular and contradictory to the rule on substitution of counsel.'
Contrary to the complainant's allegation, the Writ of Execution was issued on 11 May 2001 or only after the Motion for Execution of Judgment had been filed. Afterwards, the writ was forwarded to the Clerk of Court of the RTC of Caloocan City on 11 May 2001 for appropriate action.
Respondent admits that he mistakenly indicated in his letter to Deputy Court Administrator Elepano that the Writ of Execution was issued on 23 June 2002 instead of 11 May 2001 which is the correct date. This mistake was inadvertently made 'without malice nor with intention to mislead this Office.'
OTHER RELEVANT INFORMATION: The records of the OCA reveal that respondent Judge also stands charged with Violation of R.A. 3019, knowingly rendering an unjust judgment and gross ignorance in OCA IPI No. 04-2075-RTJ which is pending.
EVALUATION: There is no merit in the instant administrative complaint.
Existing jurisprudence, as well as the Rules of Court mandate that the Notice of Appeal and the Motion for Reconsideration filed by the complainant should be dismissed. The Rules of Court specifically provides that the appellate court docket and other lawful fees should be paid within the period for taking an appeal. Section 4 of Rule 41 reads:
"Sec. 4. Appellate court docket and other lawful fees. - Within the period for taking an appeal, the appellant shall pay to the clerk of court which rendered the judgment or final order appealed from, the full amount of the appellate court docket and other lawful fees. Proof of payment of said fees shall be transmitted to the appellate court together with the original record or the record on appeal."
As correctly held by the respondent judge, the payment of the docket and other legal fees within the prescribed period is both mandatory and jurisdictional. Section 1 (c), Rule 50 of the Rules of Court provides that "failure of the appellant to pay the docket and other fees as provided in Section 4 of Rule 41" is a ground for the dismissal of the appeal. Indeed, it has been held that failure of the appellant to conform with the Rules on appeal renders the judgment final and executory. (Garcia v. NLRC, 264 SCRA 261).
Complainant's counsel filed the Notice of Appeal before the clerk of court within the prescribed period, but notably without the corresponding docket fees. Indeed, the fees were paid afterwards but beyond the period provided by the Rules. Hence, the respondent judge properly dismissed the Notice of Appeal for failure of the complainant to comply with the requirements.
In the case of Chan v. Court of Appeals (335 SCRA 302), the Court explained in this wise:
"xxx We need not overemphasize that, effective 1 July 1997, Rules 1 to 71 of the Revised Rules of Court have already been superseded by the 1997 Rules of Civil Procedure after the amendment or revision was approved by the Court on 8 April 1997. Under the 1997 Rules of Civil Procedure now invoked by the petitioner, a notice of appeal must be filed within the 15-day reglementary period from receipt of the decision or order appealed from and the docket and other lawful fees must also be paid within the same period. Further, Sec. 4, Rule 41, of the 1997 Rules of Civil Procedure explicitly provides that payment of the full amount of the appellate court docket and other lawful fees should be made within the period for taking an appeal before the clerk of court which rendered the judgment or order appealed from, xxx (Emphasis supplied)
Although there is no rule prohibiting the complainant from filing by himself the Motion for Reconsideration of the 23 June 2000 Decision, nevertheless it was likewise filed beyond the period to appeal justifying the respondent judge to dismiss it.
Verily, the right to appeal is a statutory right and one who seeks to avail of that right must comply with the statute or the rule. (Videogram Regulatory Board v. CA, et al, 265 SCRA 50).
Anent the charge of partiality, there must be convincing proof to show that respondent judge was indeed biased and partial apart from complainant's bare allegations. In administrative proceedings, the burden of proof that respondent committed the act complained of rests on the complainant. Failing in this, the complaint must be dismissed. Mere suspicion that a judge was partial to a party is not enough as there should be adequate evidence to prove the charge. (Abad v. Belen, 240 SCRA 733).
With respect to the other charges, the respondent has successfully proven that they are baseless.
RECOMMENDATION: Respectfully submitted to this Honorable Court is the recommendation that the instant administrative case against the respondent Judge Gerardo D. Diaz be DISMISSED for lack of merit.
The Court fully agrees with the foregoing findings and recommendation of the OCA.
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] cralaw The Court has to be shown acts or conduct of the judge clearly indicative of arbitrariness or prejudice before the latter can be branded the stigma of being biased and partial. [2] cralaw 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. [3] cralaw No such evidence of partiality is present in the case at bar.
The Court resolves to DISMISS the instant administrative complaint against Judge Gregorio D. Diaz for lack of merit.
Very truly yours,
(Sgd.) LUDICHI YASAY-NUNAG
Clerk of Court
Endnotes:
[1] cralaw Casta�os v. Esca�o, 251 SCRA 174 (1995).
[2] cralaw Abdula v. Guiani, 326 SCRA 1 (2000).
[3] cralaw Sacmar v. Reyes-Carpio, 400 SCRA 32 (2003).
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