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A.M. OCA IPI No. 03-1589-P. July 12, 2006]

CORAZON AND RICARDO TUBOG v. RENATO A. FERNANDEZ, JR., DEPUTY SHERIFF III, METROPOLITAN TRIAL COURT, BRANCH 21, MANILA

Sirs/Mesdames:

Quoted hereunder, for your information, is a resolution of this Court dated JULY 12, 2006

A.M. OCA IPI No. 03-1589-P (Corazon and Ricardo Tubog v. Renato A. Fernandez, Jr., Deputy Sheriff III, Metropolitan Trial Court, Branch 21, Manila)

Acting on the Report of the Office of the Court Administrator (OCA) dated June 5, 2006, to wit:

This refers to the Resolution dated 29 March 2006 of the First Division of this Honorable Court referring the report and recommendation of Executive Judge Caroline Rivera-Colasito to the Office of the Court Administrator (OCA) for evaluation, report and recommendation.

The case stemmed from a sworn complaint filed by spouses Ricardo and Corazon Tubog against herein respondent for Grave Misconduct, Conduct Unbecoming a Public Employee and Conduct Prejudicial to the Best Interest of the Service.

According to complainants, respondent attempted to demolish their house located at 401 Pavia St., Tondo, Manila even though the Decision sought to be enforced covers only a portion of the house which encroached upon the lot owned by the late Francisca Balagso. They claim that on 10 March 2003, respondent, together with six (6) SWAT men, forcibly entered their dwelling, went up the roof and began hammering and tearing it down. They also alleged that respondent failed to coordinate with the nearest police precinct when he carried out the demolition.

Respondent, on the other hand, claimed that the instant administrative complaint is the last ditch effort of the complainants to prevent the enforcement of the Decision of the MeTC, Branch 21, Manila. He explained that he merely followed the lawful order of the court.

In his Partial Report dated 11 August 2000, which he submitted together with his comment, respondent stated that he served the Writ of Execution and Notice to Pay and Vacate the Premises on 25 May 2000. However, complainant Corazon Tubog filed a Motion to Nullify the Writ and Notice which was eventually denied by the court. On 27 June 2000, respondent verbally advised the former to leave the premises but on 04 July 2000, she filed a Motion for Reconsideration with Prayer to Defer the Implementation of the Writ. On 18 July 2000, respondent went to complainants' house to enforce the writ but complainant Ricardo Tubog threatened to throw a grenade if he persists in implementing the writ. On 19 July 2000, complainant Corazon Tubog filed a motion to cite respondent for contempt which was denied by the court for lack of merit. On 02 August 2000, respondent, together with two (2) policemen, went to the premises but found the same to be closed and padlocked. He went back on 08 August 2000 and sought the assistance of the Barangay Chairman but the premises remained closed.

Thereafter, a Writ of Demolition was issued by the court on 04 November 2002.

In the Sheriff's Return dated 17 March 2003, respondent stated that after the denial of complainant's Motion for Reconsideration, he went to the premises on 10 March 2003 to implement the Writ of Demolition. He coordinated with Brgy. Chairman Simbulan but the latter refused to acknowledge his letter-request and even questioned the order of the court. He proceeded to complainant's house where complainant Corazon Tubog refused to receive the order of the court. A heated argument ensued. He desisted from implementing the writ after the police officers who accompanied him failed to provide the necessary assistance.

He returned on 12 March 2003 but was again unable to enforce the writ. The following day, complainant filed another motion and respondent and the plaintiffs were advised by the court to maintain the status quo until the motion could be resolved.

In their Reply dated 01 June 2003, complainants pointed out that while the dispositive portion of the Decision mentions only "a portion of the lot" over which part of the house stands, the tenor of the Writ of Execution or Notice to Vacate seemed to indicate the entire house or premises. They proposed that a survey be conducted by an independent geodetic engineer but the MeTC did not give due course to the proposal, hence the matter was elevated to the RTC.

Adopting the recommendation of the Office of the Court Administrator, the Second Division of the Supreme Court referred the matter to the Executive Judge of MeTC, Manila for investigation, report and recommendation.

In her Resolution dated 02 November 2005, Executive Judge Caroline Rivera-Calosito, claims that the case was set for hearing several times in order to give the parties the opportunity to substantiate their respective claims and defenses.

She was able to gather that the complainants are still residing in the premises in question. After respondent decided to defer the implementation of the writ to let emotions cool down and to prevent a bloody confrontation between the two (2) parties, status quo was maintained. Thus, on the issue of whether or not respondent demolished the whole house or a portion thereof, which was the essence of the investigation being required by the Court, the answer is both in the negative. She gave credence to the explanation of respondent that he was just beginning to determine the portion of the house which was found encroaching on the property of the plaintiff when he and his crew were besieged with flying bottles and stones and decided to defer the implementation of the writ.

Executive Judge Rivera-Colasito concluded that complainants failed to substantiate their charges and recommended the dismissal of the complaint for lack of merit.

The undersigned sees no reason to deviate from the findings of Executive Judge Rivera-Colasito. Unless there are strong and impelling reasons to disturb the Investigating Judge'[s] findings of facts the same must, as a matter of judicial policy, be accorded with the highest respect. Respondent's assertion that he was unable to implement the writ of execution was not disputed by the complainants. Moreover, the complaint does not contain any allegation that complainants were evicted from their dwelling or that their house was demolished by the respondent.

WHEREFORE, in view of the foregoing, it is most respectfully recommended that the instant administrative case be DISMISSED for lack of merit.

These findings are well taken.

It is settled that the burden of substantiating the charges in an administrative proceeding against a court employee falls on the complainant, ^[1] cralaw who must be able to prove the allegations in the complaint with substantial evidence. In the absence of evidence to the contrary, the presumption that the respondent regularly performed his or her duties will prevail. Even in administrative cases, if a court employee is to be disciplined for a grave offense, the evidence against him or her should be competent and derived from direct knowledge. ^[2] cralaw Moreover, a sheriff is a ministerial officer who performs his duties in the context of a given set of facts in a prescribed manner, and without regard to the exercise of his own judgment upon the propriety or impropriety of the act done. ^[3] cralaw In this case, it appears that Deputy Sheriff Fernandez was not remiss in performing his duties.

CONSIDERING THE FOREGOING, the Court resolves to DISMISS the instant administrative complaint against Renato A. Fernandez, Jr. for lack of merit.

Very truly yours,

(Sgd.) ENRIQUETA ESGUERRA-VIDAL
Clerk of Court

First Division

Endnotes:

^[1] cralaw Cortes v. Agcaoili , 355 Phil. 848, 880 (1998), citing Lachica v, Flordeliza , A.M. No. MTJ-94-921, March 5, 1996, 254 SCRA 278, 284.

^[2] cralaw Sierra v. Tiamson , A.M. No. RTJ-04-1847, July 21, 2004, 434 SCRA 560, 563.

^[3] cralaw Sismaet v. Sabas , A.M. No. P-03-1680, May 27, 2004, 429 SCRA 241, 248.

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