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A.M. OCA IPI No. 05-2369-RTJ.
SPOUSES ARTHUR AND ROSE TIU v. JUDGE HILARIO L. LAQUI, CLERK OF COURT SHIGLINDE DESIREE P. GLIPO AND SHERIFF RAFAEL C. CHAVEZ, REGIONAL TRIAL COURT, BRANCH 218, QUEZON CITY
First Division
Sirs/Mesdames:
Quoted hereunder, for your information, is a resolution of this
Court dated
A.M. OCA IPI No. 05-2369-RTJ (Spouses Arthur and Rose Tiu v. Judge Hilario L. Laqui, Clerk of Court Shiglinde Desiree P. Glipo and Sheriff Rafael C. Chavez, Regional Trial Court, Branch 218, Quezon City)
Acting on the Report of the Office of the Court Administrator
(OCA) dated
1. COMPLAINT dated
Complainants, assisted by their counsel, Atty. Eladio Samson, aver that respondent Judge hastily rendered a decision granting Banco de Oro's petition without resolving first the pleadings which were filed by the parties in the said LRC case and despite the pendency of the case for "Annulment of Public Auction Sale and Certificate of Sale" filed by the complainants involving the same property subject of the petition. They allege that respondent Judge, in his obvious attempt to facilitate an early disposition of said LRC case, even made it appear in his decision that complainants did not appear in the initial scheduled hearing on July 28, 2005 in order to justify the ex-parte presentation of evidence of Banco de Oro before the Clerk of Court, when they were not even notified of said hearing nor their counsel, Atty. Samson.
They also claim that the subsequent issuance of the writ of possession by respondent Clerk of Court was similarly done in bad faith as it was made prior to the lapse of the reglementary 15-day period to file an appeal and before they could even get a copy of the said decision. Worst, despite their timely filing of an appeal, respondent Sheriff callously and by brute force, through the assistance of fifteen men commissioned by Banco de Oro, physically removed complainants and their four children who are grade schoolers out of their house. They aver that respondent Sheriff gained entry to their house by breaking the window pane of complainant's kitchen and once inside, they destroyed the door knob of its main door facilitating, the entry of his complements like a mob who swarmed into their house and indiscriminately removed all their belongings out from it.
Complainants contend that even assuming arguendo that they are not considered parties in the ex-parte proceeding, respondent Judge's decision is subject to the general rule on appeal and so the writ of possession should not have been issued readily. They maintain that while it is true that the right to appeal is just a statutory right, it is an essential part of the justice system which should not be denied them. While they commend the zealousness of respondents in the performance of their responsibilities, they assert that this must not be at the expense of substantial justice.
Complainants conclude that respondents' administrative liabilities lie in their failure to consider the basic and elementary rule that "once an appeal has been perfected, they cannot implement the decision." They add that respondents in proceeding to implement the writ of possession committed an oversight amounting to bad faith and grave abuse of judicial authority to the point of taking the law in their hands. For this incompetence, complainants claim that respondents are no longer deserving to stay in their respective judicial offices.
2. COMMENT dated
At the outset, respondent stresses that the issuance of the writ of possession being questioned by the complainants was pursuant to Act 3135 which is a special law, both substantive and procedural and applicable to extrajudicial foreclosure of real estate mortgage. He cites several jurisprudence which show that under this Act, the duty of the court to issue a writ of possession pursuant to an extrajudicial foreclosure sale is ministerial. He claims that given these jurisprudence, it is a mistake for complainants to assume that because the grant of writ of possession was under a "Decision" and not by virtue of an order ipso facto, their case was now outside the procedural ambit of Act 3135 as amended and converts the same into an ordinary judgment, the execution of which is procedurally governed by Rule 39 of the Rules of Court.
He also considers as "argumentum non-sequitur" complainants' act of over-stressing their right to appeal when appeal is not a proper remedy to question an order granting the issuance of a writ of possession but the filing of a petition to set aside the sale and cancel the writ of possession in the court in which possession was requested. He claims that the issues raised in the instant complaint have already been resolved when he denied the Notice of Appeal filed by the complainants from his order granting the issuance of the Writ of Possession.
Respondent thus denies the charges of grave misconduct and gross ignorance of the law against him. He asserts that if there is someone who is grossly ignorant of the law, it is Atty. Samson who assisted the complainants in filing a patently baseless, unmeritorious and harassing suit.
3. COMMENT dated
Respondent adopts all the arguments of respondent Judge. In addition, she avers that she deems it
prudent to correct the erroneous supposition of the complainants and counsel
that the ex-parte presentation of evidence was
conducted before her on
4. COMMENT dated
Respondent likewise adopts all the allegations raised by respondent
Judge in his comment. Further, he
explains that while it is true that he facilitated the breaking open of the
kitchen window, the same was done, after the negotiations with the complainants
to vacate the place peacefully, proved futile as complainants locked themselves
up inside the house. As to the
destruction of the main door lock, he claims that it was made in order to
remove the things of the complainants out of the house especially the big
items. He justifies his action by citing
the ruling in Fortune Motors Phils. Inc. v. Mendoza, October 8, 1936, as cited in the
book of Noblejas, that writ of possession includes a break open order. He clarifies that his acts, described as
callous and brutal by the complainants were never done before the eyes or in
the presence of the complainants' children who were only grade schoolers as the latter arrived at the premises at around
EVALUATION : The complaint subject of the present IPI must fail for utter lack of merit. In charging respondents with gross ignorance of the law and grave misconduct, they anchored their complaint essentially on respondent Judge's act of granting the ex-parte petition of Banco de Oro for the issuance of a writ of possession, respondent Clerk of Court's subsequent issuance of the writ of possession and respondent Sheriff's enforcement of the said writ of possession. These acts of respondents, however, do not properly call for their administrative discipline for any offense since they are consistent with law and jurisprudence. Respondent only did what was expected of them.
Complainants' insistence that the regular procedure and period in the finality of judgments or decisions be observed in the case of the decision and the writ of possession in LRC Case No. Q-19540-(05) has no legal bases. "An ex-parte petition for issuance of possessory writ under Section 7 of Act No. 3135 is not, strictly speaking, a judicial process. Even if the same may be considered a judicial proceeding for the enforcement of one's right of possession as purchaser in a foreclosure sale, it is not an ordinary suit filed in court, by which one party 'sues another for the enforcement or protection of a right, or the prevention or redress of a wrong.' It is a non-litigious proceeding and summary in nature as well." [Teresita V. Idolor v. Hon. Court of Appeals, et al., G.R. No. 161028, January 31, 2005].
Complainants' claim that they have the right to appeal the decision of respondent Judge directing the issuance of a writ of possession is likewise flawed. Worth quoting in this respect is [respondent judge's] ratiocination in denying the Notice of Appeal filed by the complainants, thus:
Moreover, it is pointless to approve a notice of appeal when on its face it is very apparent that appeal is not the proper remedy. The remedy of petitioner against an order allowing the issuance of a writ of possession pursuant to an extrajudicial foreclosure is provided under Section 8 of Act 3135 as amended and not to appeal the court's order granting the writ of possession in an ex-parte proceeding. It is only after invoking this right under Section 8 that appeal is the proper remedy given to question the trial court's order allowing the issuance of a writ of possession over the subject properties. The writ of possession issued at an ex-parte proceeding at the instance of the foreclosing mortgagee against the mortgagor is not appealable. Also, jurisprudence abounds that the right to possess an extrajudicially foreclosed property is not affected by the pendency of an action for annulment of foreclosure proceeding or even the mortgage itself. (Songco v. CFI of Rizal, 127 SCRA 320; Mirasol v. IAC, 162 SCRA 306, Jacobs v. CA)
In Vda. De Zaballero v. Court of Appeals (229 SCRA 810), the Honorable Supreme Court held:
It is settled that the buyer in a foreclosure sale becomes the absolute owner of the property purchased if it is not redeemed during the period of one year after the registration of the sale. As such, he is entitled to the possession of the property and can demand it at anytime following the consolidation of ownership in his name and the issuance to him of a new transfer certificate of title. The buyer can, in fact, demand possession of the land even during the redemption period, except that he has to post a bond in accordance with Section 7 of Act 3135 as amended. No such bond is required after the redemption period if the property is not redeemed. Possession of the land then becomes an absolute right of the purchaser as confirmed owner. Upon proper application and proof of title, the issuance of the writ of possession becomes a ministerial duty of the court." [Emphasis ours]
Corollarily, in Vda. De Navarra v. Court of Appeals (204 SCRA 850), the Honorable Supreme Court likewise held:
"The order for a writ of possession issues as a matter of course upon the filing of the proper motion and the approval of the corresponding bond. No discretion is left to the court. And any question regarding the validity and regularity of the sale (and the subsequent cancellation of the writ) is left to be determined in a subsequent proceeding as outlined in Section 8 . Such question is not to be raised as a justification for opposing the issuance of the writ of possession since under the Act, the proceeding for this is ex-parte ."
Moreover, in Vaca v. Court of Appeals (234 SCRA 146), it was held that "the pendency of a separate civil suit questioning the validity of the mortgage cannot bar the issuance of the writ of possession, because the same is a ministerial act of the trial court after title on the property has been consolidated in the mortgagee."
Accordingly, the issuance of the questioned Writ of Possession is well within the bounds of the law.
With respect to the alleged callous and brutal manner by which respondent Sheriff implemented the writ, the same deserves no further consideration since complainants did not offer any other proof to corroborate their claim that respondent Sheriff had in fact been abusive of his authority. Complainants' bare and self-serving allegations which are not even considered evidence and hence not equivalent to proof, cannot be made to prevail over the presumption of regularity in the performance of duty enjoyed by respondent Sheriff.
RECOMMENDATION : Respectfully submitted for the consideration of this Honorable Court is our recommendation that the instant complaint against Judge Hilario L. Laqui, Clerk of Court Atty. Shiglinde Desiree P. Glipo and Sheriff Rafael C. Chavez be DISMISSED for lack of merit. [1] cralaw
We agree with the foregoing recommendation.
A careful perusal of the allegations against Judge Laqui show that his discretion as a judge is being questioned. It must be stressed that the acts of a judge in his judicial capacity are ordinarily not subject to disciplinary action. A magistrate of the law cannot be subjected to liability - civil, criminal or administrative - for any official act, no matter how erroneous, as long as he or she acts in good faith. [2] cralaw Only judicial errors tainted with fraud, dishonesty, gross ignorance, bad faith, or deliberate intent to do an injustice will be administratively sanctioned. [3] cralaw No such bad faith is evident in this case.
There is likewise no evidence to sustain the claim against Clerk of Court Glipo and Sheriff Chavez on the issuance and implementation of the writ of possession. Indeed, the primary duty of sheriffs is to execute judgments and orders of the court to which they belong. [4] cralaw The officers charged with this delicate task must, in the absence of a restraining order, act with considerable dispatch so as not to unduly delay the administration of justice; otherwise, the decisions, orders, or other processes of the courts of justice would be rendered futile. [5] cralaw
Moreover, the burden of proving the charges in an administrative proceeding against court employees falls on the complainant, [6] 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. [7] cralaw Charges based on mere suspicion and speculation cannot be given credence. [8] cralaw
Indeed, while it is our duty to investigate and determine the truth behind every matter in complaints against court personnel, it is also our duty to protect and exonerate them from baseless administrative charges. [9] cralaw
CONSIDERING THE FOREGOING, the charges against Judge Hilario L. Laqui, Clerk of Court Shiglinde Desiree P. Glipo, and Sheriff Rafael C. Chavez, are DISMISSED for lack of merit.
Very truly yours,
(Sgd.) ENRIQUETA ESGUERRA-VIDAL
Clerk of Court
First Division
Endnotes:
[1] cralaw Rollo , pp. 56-60.
[2] cralaw Balsamo v. Suan , A.M. No. RTJ-01-1656, September 17, 2003, 411 SCRA 189, 200.
[3] cralaw Cruz v. Iturralde , 450 Phil. 77, 88 (2003).
[4] cralaw Benitez v. Acosta, 355 SCRA 380 (2001).
[5] cralaw Re: Danilo Cunanan , A.M. No. 91-8-374-OMB, November 28, 1994, 238 SCRA 421, 426, citing Pascual v. Duncan, 216 SCRA 786 (1992).
[6] cralaw Cortes v. Agcaoili, 355 Phil. 848, 880 (1998), citing Lachica v. Flordeliza , 254 SCRA 278, 284 (1996).
[7] cralaw Sierra v. Tiamson , A.M. No. RTJ-04-1847, July 21, 2004, 434 SCRA 560, 563.
[8] cralaw See Lambino v. De Vera, 341 Phil. 62 (1997).
[9] cralaw Cruz v. Iturralde , supra note 3, at 88, citing Sarmiento v. Salamat , 416 Phil. 684 (2001).
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