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[A.M. No. OCA-IPI-99-720-RTJ.June 21, 1999]

TUBIL vs. JUDGE TAN

SECOND DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JUN 21, 1999.

A.M. No. OCA-IPI-99-720-RTJ(Francisco A. Tubil vs. Judge Alvin L. Tan, Regional Trial Court, Brand, 44 Dumaguete City.)

This is a complaint filed by complainants Francisco A. Tubil charging respondent Judge Alvin L. Tan of the Regional Trial Court, Branch 44, Dumaguete City with incompetence, gross ignorance and violation of canons of judicial ethics. This case arose in connection with the decision rendered by respondent judge in Civil Case No. 12302, entitled "Bobby Gavino M. Cosca v. Francisco Tubil, et al."

It appears that Civil Case No. CC-209 (for unlawful detainer and damages) was filed by one Bobby Gavino M. Cosca against the complainant. This case was dismissed by the Fifth Municipal Circuit Trial Court of Dauin, Negros Oriental, on motion of the complainant, because of the failure of Cosca and his lawyer to attend the preliminary conference called by the trial court. Hence, on appeal, respondent judge reversed the said decision and remanded the case to the trial court for further proceedings for the following reason:

As correctly asseverated by appellant, he and his counsel's absence during the preliminary conference on July 16, 1998 was not without any valid reason. The Trial Court, in the interest of justice, and in order that all the issues in the case may be joined should have deferred the preliminary conference, which after all was the first preliminary conference in the case and [instead, resolved] the motion [for the herein complainant Tubil to produce a deed of sale], considering the material allegations contained therein which no doubt would certainly affect the respective possessory claims of the parties to the subject lot.

The mandatory character of Section 7 of the Revised Rules on Summary Procedure contemplates a situation where the failure of the plaintiff to appear during the preliminary conference is unjustifiable or when it is done deliberately to delay the proceedings in the case. This situation does not obtain in the case at bar.

Complainant filed a motion for reconsideration but respondent judge denied the same. He then filed a special civil action or certiorari in this Court, docketed as UDK-12689, questioning the decision of respondent judge. On March 8, 1999, consistent with the principle of hierarchy of courts, the First Division of the Court referred the petition for certiorari to the Court of Appeals for appropriate disposition. On March 23, 1999, complainant filed the instant administrative complaint, alleging:

9) That the Respondent Honorable Judge TAN, risking his intellectual credibility, his statute, his honor and indeed, his judgeship, rendered a DECISION that with due respect, stinks to high heavens, being contrary to law, to the evidence, and even to common sense.

..

10) That to allow the respondent Honorable Judge to correct or amend his blatant "error", the Complainant filed a MOTION FOR RECONSIDERATION . . . but it was not even given the courtesy of being perused as the Order Of Denial was immediately prepared in two (2) days time from its receipt thereof..

(11) That it was then that it dawned upon the herein Complainant the reason for the unethical, malicious, malevolent, and spiteful actuations of the Respondent Honorable Judge TAN.

And that was because the Respondent Honorable Judge TAN is the brother-in-law of one P/Pfc. LEVI DORADO whose sister, RENEE DORADO TAN, is married to the former.This P/Pfc. LEVI DORADO was the Complainant in Administrative Case No. 82-0535 filed with the National Police Commission against the herein Complainant, FRANCISCO A. TUBIL, with the Respondent Honorable Judge TAN acting as the former's Private Prosecutor and/or Legal Counsel.

This case was dismissed per DECISION of the Adjudication Board of the National Police Commission. . . . It is very clear now, that the Respondent Honorable Judge TAN, being a poor loser, harbored a deep hatred for the herein Complainant, having "lost face" to his wife, RENEE.

This was in 1992, but still, that long span of time, stretching to 1998 (sixteen [16] long years) did not dampen his deepseated enmity and heartburning animosity against the herein Complainant, so much so, that when he got the chance to exact his virulent revenge, he disparage[d] the law, dishonored justice, disregarded all consequences, and gravely abused his judicial discretion by rendering his assailed Decision.

For consideration is the memorandum of the Office of the Court Administrator recommending the dismissal of the complaint for lack of merit.The memorandum states in part:

After a careful study of the allegations in this complaint and those in [the] "Petition" filed in this Court, we are of the considered opinion that acting on the matters complained of in this administrative complaint should be deemed premature.The matters raised as issues in the petition are the very same incidents alleged in this complaint for which an administrative sanction is prayed against the judge.

This Court has ruled [that] "if a complainant disagrees with the respondent's ruling, his remedy is to point out errors on appeal from the decision.To hold a Judge administratively liable for every erroneous ruling or decision he renders, assuming that he has erred, would be nothing short of harassment and would make his position unbearable" (Dizon vs. de Borja, 37 SCRA 48).

The recommendation is well taken.Issues pertaining to a judge's exercise of his judicial function are matters more properly raised on appeal.(Choa v. Chiongson, 253 SCRA 371 (1996)) Mere suspicion that a judge is partial to one of the parties is not enough to sustain the charge that he favored certain parties.(Gonzales v. Bersamin, 254 SCRA 652 (1996)) If complainant disagrees with respondent judge's decision, his remedy is to question the same in an appropriate judicial proceeding, as he in fact did by filing a petition for certiorari.Resort to judicial remedies, as well as the entry of judgment in the corresponding action or proceeding, is a pre-requisite for the taking of administrative, civil, or criminal action against the judge concerned.(In Re: Joaquin T. Borromeo, 241 SCRA 405 (1995)) Complainant must wait for the final outcome of his petition for certiorari, which was referred by the Court to the Court of Appeals and, on that basis, determine whether or not an administrative complaint against respondent judge lies.A judge is generally not liable for acts done in good faith and within the scope of his function such.Even if the Court of Appeals upholds complainant's petition, respondent judge cannot be held administratively liable in the absence of showing not only of the manifestly unjust character of the challenged decision but also of malice, bad faith, or wrongful conduct in rendering the said decision.(Flores v. Abesamis, 275 SCRA 302 (1997); Barroso v. Arche, 67 SCRA 161 (1975))

For the foregoing considerations, the Court RESOLVED to DISMISS the complaint against respondent Judge Alvin L. Tan for lack of merit.

Very truly yours,

(Sgd.) TOMASITA B. MAGAY-DRIS
Clerk of Court

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