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[A.M. OCA IPI No. 04-1878-P.  March 28, 2005]

VALDEVIESO vs. MARASIGAN

SECOND DIVISION

Sirs and Mesdames:

Quoted hereunder, for your information, is a resolution of this Court dated MAR 28 2005.

A.M. OCA IPI No. 04-1878-P (Bernardo M. Valdevieso vs. Hermenegildo I. Marasigan, Clerk of Court IV, RTC-OCC, Kabacan, North Cotabato.)

The instant administrative complaint arose when Bernardo M. Valdevieso filed a verified Complaint dated January 26, 2004 charging Hermenegildo I. Marasigan with grave misconduct, violation of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, and conduct unbecoming of a government employee relative to Civil Case No. 2029 entitled "Geronimo Nonilon, et al. vs. Bernardo Valdevieso, et al."

The complainant, the defendant in the said civil case, made the following allegations in his complaint:

5.  By virtue of a Writ of Execution issued by the Regional Trial Court, Branch 8, Batangas City in Civil Case No. 2029, in the sum of P1,030,600.00, defendant, on June 20, 2003, levied two (2) real properties registered in the name of Evangeline Valdevieso married to complainant Bernardo Valdevieso;

6.  On June 23, 2003, defendant issued a Notice of Sale on Execution of Real Property and scheduled the Public Auction on July 22, 2003 at 10:00 in the morning. A copy of which is hereto attached as Annex "A";

7.  On July 11, 2003, a Judgment Obligee's Bid was filed by plaintiffs in Civil Case No. 2029 enumerating the amount of the principal judgment awards plus interests, cost of suit, publication expenses and sheriff's fees. Copy of which is hereto attached as Annex "B";

8.  The publication expenses is P50,000.00 while the Sheriff's legal fees is P25,000.00;

9.  Complainant, thru the liaison officer of Weena Express, Inc., asked from the defendant the Official Receipts of the publication fee (as his office causes the publication of the notice of sale) and sheriff's expenses but the latter did not give any copy to the liaison officer;

10. Complainant later found out that the publication expenses was only P12,000.00 per Statement of Account issued by The Cotabato Northerner. Copy is hereto attached as Annex "C";

11. The defendant also failed to give an itemized statement of his expenses/legal fees;

12. The unlawful act of collecting excessive payments of sheriff's fees and publication fees caused prejudice to the complainant as a form of extortion. ^[1] cralaw

In his Comment dated April 14, 2004, the respondent denied the allegations in the complaint. He explained that his participation in the execution of judgment of the subject civil case was limited only to the scheduling of the date of raffle and the delivery of the notice of sale. He averred that he had no participation whatsoever in the collection of publication fees and that the publication was done twice, not just once as alleged by the complainant. Moreover, it is the prerogative of the publisher to send the statement of account to the interested parties copy furnished the Clerk of Court. He likewise had no participation in the preparation of the Judgment Obligee's Bid dated July 11, 2003. The respondent further pointed out that the reason why there is no official receipt as to the sheriff's legal fees is due to the fact that complainant's spouse filed an Accion Reivindicatoria with Prayer for Injunction and Temporary Restraining Order docketed as Civil Case No. 02-21. Hence, the execution proceedings of the subject civil case was held in abeyance pending the resolution of the aforementioned action.

The respondent also admitted that the complainant's liaison officer requested for copies of the records of the execution of judgment. The expediente of the case was shown in its entirety to the said officer, and no receipts were found. According to the respondent, this is because only two official receipts were issued by him dated December 20, 2000: O.R. No. 13594559 for the Writ of Execution in the amount of P36.00, and O.R. 13595134 for P4.00. No such receipt for "sheriff's legal commission" was issued by him.

In its Report dated January 7, 2005, the Office of the Court Administrator made the following evaluation and recommendation:

A perusal of the records of the instant case reveals that there is an utter lack of evidence to support the charges against the respondent clerk of court. A charge of grave misconduct is a grave offense punishable with dismissal from the service on its first commission. Administrative cases being penal in character, convincing proof is required for conviction. Complainants have the burden of proving by substantial evidence the allegations in the complaint (Morales, Sr. vs. Judge Dumlao, A.M. No. MTJ-01-1339, February 13, 2002). A corroborating affidavit of a witness on the alleged extortion would strengthen the case. There being none, mere suspicion without proof can not be a basis for conviction.

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

The Court agrees that there is, indeed, no evidence that the respondent was remiss in the performance of his duties. Under Rule 141, Section 9 of the Rules of Court, the sheriff or any other person serving processes is authorized to collect additional sums from a requesting party, subject to the following requirements: first, to make an estimate of the expenses to be incurred by him; second, to obtain court approval for such estimated expenses; third, the approved amount shall be deposited by the interested party with the clerk of court and ex-officio sheriff; fourth, the clerk of court shall disburse the amount to the executing sheriff; and fifth, the executing sheriff shall liquidate his expenses within the same period for rendering a return on the writ. ^[2] cralaw In this case, there is no evidence on record that any request for additional sheriffs fees was made, or that any such fees were deposited to the respondent as the branch clerk of court. In fact, a perusal of the complaint itself will show that the complainant made no allegation that it was the respondent himself who collected or received the alleged "excessive payments of sheriff's fees."

Considering that the complainant failed to prove the allegations in the complaint by substantial evidence, the presumption that the respondent has regularly performed his duties will prevail. ^[3] cralaw It is settled that in administrative proceedings, the complainant has the burden of proving, by substantial evidence, the allegations in his complaint. Such evidence must be competent and derived from direct knowledge. ^[4] cralaw Charges based on mere conjectures and suppositions cannot be given credence and must forthwith be dismissed. ^[5] cralaw

The Court thus resolves to DISMISS the instant administrative complaint against respondent Hermenegildo I. Marasigan for lack of merit.

Very truly yours,

(Sgd.) LUDICHI YASAY-NUNAG

Clerk of Court

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