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DIVINAGRACIA vs. DIAZ

Sirs/Mesdames:

Quoted hereunder, for your information, is a resolution of this Court dated JUN 20 2005.

AM OCA IPI No. 04-2075-RTJ (Ariel Marshall Divinagracia vs. Judge Gerardo D. Diaz, RTC, Branch 68, Dumangas, Iloilo.)

Considering the Report of the Office of the Court Administrator, to wit:

In a Verified Complaint dated 11 August 2004, Ariel Marshall Divinagracia charges respondent Judge Gerardo D. Diaz, RTC, Br. 68, Dumangas, Iloilo with Violation of Sec. 3(e) of R.A. No. 3019 (ANTI-GRAFT AND CORRUPT PRACTICES ACT); Knowingly Rendering An Unjust Judgment; Gross Ignorance of the Law; Manifest Partiality; Evident Bad Faith; and Grave Abuse of Discretion in denying complainant's Motion For Inhibition.

On 13 November 2003, respondent issued a Pre-Trial Order in Civil Case No. 21590 (Dequina vs. Divinagracia, et al.) for Recovery of Ownership and Possession. Complainant filed his comment thereto seeking amendment of the Pre-Trial Order so that it would include Alicia Dequina-Divinagracia as party plaintiff, as well as to correct some typographical errors. This was denied by respondent judge. Complainant filed a Motion for the judge's inhibition which was denied by respondent in his Order dated 26 September 2003. The judge also denied the comment dated 24 November 2003 as well as complainant's Motion for Reconsideration of such denial.

Complainant is the Attorney-in-Fact of the defendants in Civil Case No. 21590 pending with RTC, Branch 68, Dumangas, Iloilo. He alleges that in denying their Motion for Inhibition the judge relied on the Court's ruling in Pp. vs. Gov. Kho (357 S 290) that mere imputation of bias or partiality is not enough ground for a judge to inhibit, especially when the same is without any basis. However, the judge failed to consider that the Court, citing the case of Pimentel vs. Salonga (21 S 160), also reminded judges that when suggestion is made of record that the judge might be induced to act in favor of one party or with bias or prejudice against a litigant arising out of circumstances reasonably capable of inciting such a state of mind, the judge must inhibit.

In his comment and counter-charge dated 18 October 2004, Judge Diaz denied that he is partial and bias towards complainant who failed to point out with particularity manifestations of his impartiality.

The judge alleges that this administrative complaint and the Motion for Inhibition is (sic) ill-motivated and merely intended to harass him to delay the proceedings because his rulings in the civil case were adverse to complainant and defendants.

EVALUATION : The complaint should be dismissed. Settled is the rule that inhibition involves judicial discretion, such that all orders arising from Motions for Inhibition should not be treated as administrative in character but should be considered as judicial. The party who alleged to be aggrieved may apply for the appropriate legal remedy. In the absence of such legal proceeding, the order either for or against inhibition stands. (Circular No. 7 dated 10 November 1980). In the instant case, instead of resorting to available judicial remedies, complainant filed this administrative complaint against respondent An administrative complaint cannot be a substitute for other judicial remedies available to complainants. (Sinnott vs. Barte, 372 SCRA 282)

RECOMMENDATION : Respectfully submitted for the consideration of the Honorable Court is our recommendation that the administrative complaint be DISMISSED for lack of basis.

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.

As to the counter charge of respondent against Atty. Bonifacio A. Alentajan, the same may be dealt with in a separate complaint to be filed by respondent, if he so desires.

ACCORDINGLY, the administrative complaint against Judge Gerardo D. Diaz is DISMISSED.

SO ORDERED.

Very truly yours,

(Sgd.) LUDICHI YASAY-NUNAG
Clerk of Court

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