SECOND DIVISION
ELISEO
SOREÑO,
SR.,
Complainant,
A.M.
No.
P-00-1360
January 18, 2000
-versus-
ATTY. RHODERICK
MAXINO AND NOEL TAMBOLERO,
Respondents.
D E C I S I
O N
MENDOZA,
J.:chanroblesvirtuallawlibrary
This is a complaint against
respondents Atty. Rhoderick Maxino, clerk of court and ex-officio
sheriff
of the Municipal Trial Court in Cities, Dumaguete City, and Noel
Tambolero,
deputy sheriff of the same court, for "robbery with hold-up" and
violation
of the Anti-Graft and Corrupt Practices Act (R.A. No. 3019). The
complaint,
dated April 15, 1996, alleges that on February 28, 1996, at around
11:30
in the morning, respondents, with other persons, went to complainant's
shop in Daro, Dumaguete City and, for no apparent reason except to
intimidate
him, respondent Maxino pulled his gun on him and his children; that
respondents
then took four tricycles belonging to him (complainant), saying,
"Musugot
ka ug dili, kuha-on nako imong mga pedicabs." ("Whether you like it or
not, I will get your pedicabs."); and that when complainant asked to be
shown any court order for respondents' actions, respondent Maxino
replied,
"Ako ang Korte." ("I am the court.") The complaint also alleges that a
letter was sent to respondent Maxino demanding the return of the
tricycles
but a few days later, complainant received a letter from one "Mucho"
Uypitching
in which the latter claimed ownership of the tricycles and indicated he
would not return them to complainant.
In their joint comment,
respondents admit having seized the four tricycles of complainant but
claim
that the seizure of the tricycles was made to enforce the order, dated
February 26, 1996, issued by Judge Felipe T. Torres, MTCC, Branch 2,
granting
an extrajudicial foreclosure of mortgage filed by Ramas Uypitching
Sons,
Inc. It appears that the tricycles were the subject of a chattel
mortgage
agreement between complainant and Ramas Uypitching Sons, Inc.
Respondent
Maxino denied he pulled a gun on complainant and the latter's family.
He
said he identified himself to complainant as the city sheriff and
informed
the latter of the purpose of their visit. However, complainant refused
to surrender the tricycles and even warned respondents that there would
be bloodshed if respondents insisted on taking the tricycles. This
prompted
respondents to request the assistance of two policemen (PO3 Arcadio
Credo
and PO2 Nathaniel Rubia). When respondent Maxino presented to
complainant
copies of the petition for extrajudicial foreclosure, the latter got
the
documents and, without reading them, threw them back at respondents.
One
of complainant's sons then approached respondents and inquired as to
the
reason for the seizure. After respondents explained his mission to
complainant's
son, the latter pleaded with his father to surrender the tricycles. It
was only then that complainant yielded to the authorities.cralaw:red
Respondents also claim
that they tendered receipts of seizure to complainant but he refused to
receive the same. On February 29, 1996, Notice of Embargo and Notice of
Auction Sale were sent to complainant, but he did not appear at the
auction
sale held on March 11, 1996. The four tricycles were sold to Ramas
Uypitching
Sons, Inc. as the highest and only bidder and a Sheriff's Certificate
of
Sale was issued to it on March 11, 1996. Complainant failed to exercise
his right of redemption over the said articles. Sworn affidavits of PO3
Arcadio Credo and PO2 Nathaniel Rubia corroborating respondents'
narration
of the event in question were attached to respondents' comment.chanrobles virtuallaw libraryred
For the foregoing reasons,
respondents pray that the complaint be dismissed for lack of merit.cralaw:red
On June 17, 1998, the
Court designated Judge Temistocles B. Diez of the Regional Trial Court,
Branch 37, Dumaguete City, to investigate the case and submit a report
and recommendation. In his report, dated June 30, 1999, Judge Diez
recommended
the dismissal of the complaint. His recommendation is concurred in by
the
Office of the Court Administrator in its Memorandum dated December 2,
1999.cralaw:red
We find the recommendation
to be well-taken. It is clear that respondents seized complainant's
tricycles
in connection with the extrajudicial foreclosure of mortgage on the
tricycles.cralaw:red
As the Investigating
Judge states in his report:
[The] contention of
complainant is rather difficult to believe. In the first place, this is
denied by respondents and his witnesses. In the second place, it would
be the height of naivet‚ to believe that respondent Maxino or any
sheriff
for that matter, would execute a court order without bringing the said
order, or showing it to the respondent, more so in this case which
involves
the seizure of four pedicabs. It must be remembered that there was an
application
by RUSI or Uypitching for the foreclosure of the chattel mortgage on
the
said pedicabs and an Order of Judge Torres approving the said
application.
It simply is unbelievable that respondent Maxino would just seize the
four
pedicabs without showing said documents and explaining to complainant
why
the pedicabs have to be taken. In the third place, his claim that he
was
not shown any papers is belied by his own witness, Jesus Javier, who
declared
on cross-examination that Mr. Soreño was shown some papers by
Atty.
Maxino, and that Mr. Soreño read it; but he cannot say whether
Mr.
Soreño threw it away after reading it because he did not look at
him while reading the papers. (TSN-Sept. 1, 1998, pp. 10-12) In the
fourth
place, the pretended ignorance of complainant as to the [reason] why
Maxino
would get his pedicab is belied by his answer when asked:chanrobles virtuallaw libraryred
Q Why will he get your
pedicab?
A He did not say anything
but I told him that he will have to talk first with Uypitching because
I took it from Uypitching. (TSN-Aug. 18, 1998, p. 5)
Complainant therefore
knew that the seizure of his pedicab had something to do with his
obligation
concerning them with Uypitching that is why he told respondent Maxino
that
he will have to talk first with Uypitching. But while he said that he
will
talk first with Uypitching, he did not go to Uypitching. He reasoned
out
that he did not meet Uypitching because he believed the respondent and
Uypitching had an agreement about the taking of the pedicab and he was
overwhelmed by fear. Complainant, however, did not say what that fear
which
overwhelmed him was.cralaw:red
Nor is there any basis
for complainant's allegations that respondents are guilty of violation
of R.A. No. 3019, 3. Indeed, complainant himself appears to have
abandoned this charge, because he states that:chanrobles virtuallaw libraryred
My complain is only
about this conduct regarding the pulling out of his gun and told me
that
"I am the Court. I am the Judge. Whether you like it or not I am going
to get the pedicab." (TSN-Aug. 18, 1998, p. 9) I am not questioning the
taking of the motorcycle. What I am complaining is the manner Atty.
Maxino
displayed when I asked him whether there was a Court Order and he
answered,
"I am the Court, I am the Judge" and then he pulled his 45 caliber and
cocked it and I felt lost. (TSN-Sept. 21, 1998, p. 17)
The statements of the
two policemen present during the incident likewise belie complainant's
allegations. Moreover, the investigating judge also found that ?
With respect to respondent
Tambolero, complainant declared that during the time that respondent
Maxino
was executing the order, Tambolero was just at the road, about three
meters
away from the shop saying nothing but just waiting. Respondent
Tambolero's
fault if it could be called it, was that he accompanied respondent
Maxino
in the seizure of complainant's pedicab.chanrobles virtuallaw libraryred
It is noteworthy that
the Office of the Deputy Ombudsman for the Visayas, in a resolution,
dated
June 25, 1997, in OMB-2-96-1257, dismissed similar charges filed by
complainant
against respondents.chanrobles virtuallaw libraryred
WHEREFORE, the complaint
against respondents is DISMISSED for lack of merit.cralaw:red
SO ORDERED.
Bellosillo, J., (Chairman),
Quisumbing, Buena, and De Leon, Jr., JJ.,
concur. |