Respectfully returned to the Supreme Court, thru the Judicial Consultant, with the following report on the investigation of the administrative complaint filed by Atty. Lumen Policarpio, in behalf of her sister Leonila Policarpio, against Rizal Deputy Sheriff Ely B. Fajardo for excessive and oppressive enforcement of a writ of execution:
On September 26, I3 Asian Surety & Insurance Company, Inc., Modesta Policarpio, Simeon Policarpio, and Lumen R. Policarpio, of 256 Naval Street, Navotas, Rizal, signed in favor of the Socio-Economic Financing Corporation a joint and several promissory note for P2,500 payable within sixty (60) days, with 1% interest per month (Exh. B).
On May 19, 1971, or eight (8) years later, the creditor sued Modesta Policarpio and Lumen R. Policarpio in the City of Manila, the venue stipulated in the note, for recovery of the debt. The address of the defendants, as indicated in the complaint, was 256 Naval Street, Navotas Rizal, the same address which was used in the promissory note (Exh. Q The case was entitled "Socio Economic Corporation vs. Lumen Policarpio and Modesta Policarpio." It was docketed as Civil Case No. 202468 in Branch V of the Manila City Court.
Modesta Policarpio did not contest the action. Atty. Lumen Policarpio opposed it on the ground that her signature in the promissory note (Exh. B) was allegedly "not genuine." However, despite the findings of the handwriting expert of the National Bureau of Investigation upholding Atty. Policarpio's defense (Exhs. C and C1), it was rejected by the court. On April 3, 1972, Judge Cornejo rendered a decision ordering Atty. Policarpio and her mother Modesto Policarpio 'to pay the plaintiff (Socio-Economic Financing Corporation) jointly and severally the sum of P2,500 plus interest thereon at the rate of 1% per month from September 26, 1963 until fully paid; P400 as and for attorney's fees, plus costs (Exh. 2).
On February 5, 1973, Judge Pabalate, (the successor of Judge Cornejo) issued a writ of execution (Exh. A or 5). It was entrusted for enforcement to Ely B. Fajardo, a deputy sheriff of Rizal, at the instance of the judgment creditor. Although, as previously stated, the debtor's address appearing in the complaint was 256 Naval Street, Navotas, Rizal, their address in the writ of execution was 1701 Zurbaran Street, Sta. Cruz, Manila (Exh. A, p. 41 Rec.).lwphl@itç
On February 7, 1973, at nine o'clock in the morning, respondent Deputy Sheriff Fajardo, accompanied by two Manila policemen (Patrolman Arbolante and Estrellado) and by the judgment creditor's lawyers, Attys. Francisco Brillantes and Magno Dajao, a lady employee of the Socio-Economic Financing Corporation, and about ten (10) laborers, arrived at 1701 Zurbaran Sta. Cruz, Manila. They brought along a truck, a taxicab, and a car.
The ground floor of 1701 Zurbaran Street, which is near Manila's Central Market, is occupied by Policarpio's Draperies (Exh. M6 an establishment which belongs to Leonila Policarpio, a younger sister of Atty. Policarpio. "Policarpio's Draperies" has been the registered business name of Leonila Policarpio since 1962 (Exhs. 0, 0-1, 0-3 and 0-4). She owns and manages that store. She possesses a license, mayor's permit, health certificate and SSS membership certificate, as owner of the store (Exhs. E, E-1 and E-2, Q-2, 0-5, R to R-4, S to S-4, T to T-4, U to U-7, V to V3 and W.
On the mezzanine of the same building is located the law office of her sister, Atty. Lumen Policarpio.
The inventory of the merchandise in the store on December 31, 1972 (less than two months before the levy shows that it contained stocks-in-trade worth P1,197,963.00 (Exh. D).
When Fajardo and his companions arrived at 1701 Zurbaran Street, two sales boys, Alberto Hipolito and a certain Leonardo, were in the store. Hipolito summoned Victoria Loyola, the secretary of Atty. Policarpio, to attend to the sheriff. Fajardo inquired about the office of Atty. Policarpio. Victoria indicated the mezzanine. Fajardo did not go up to the office. He asked for Atty. Policarpio. He was told that she was attending a court hearing in Pasig, Rizal. He also asked for the owner of the store. He was told that Leonila Policarpio was in Hagonoy, Bulacan, to find out a customer's requirements for draperies. Fajardo showed the writ of execution (Exh. A) to Victoria. Not knowing what the paper meant, Victoria asked him to wait for Atty. Policarpio or for Leonila, the owner of the store. Fajardo did not care to wait. He ordered the laborers to haul away the contents of the store. Victoria repeatedly apprised him that the store belonged to Leonila Policarpio but Fajardo paid no attention to her. Three hundred forty-five (345) bolts and bundles of drapery materials were seized and loaded in the truck, a taxicab, and a car.
Victoria Loyola, in her statement to the Manila Metropolitan Police, described the incident in this manner:
Kanina po samantalang akoy nasa opisina ni Atty. Lumen Policarpio na kung saan ako naglilingkod bilang isang sekretaria, ay tinawag ako ng salesboy ni Leonila Policarpio na si Alberto Hipolito, at sinabi niya sa akin na may mga taong humahanap kay Atty. Lumen Policarpio. Kinausap ko sila kung ano ang kanilang kailangan. Sinabi nila sa akin kung nasaan si Attorney.
Nang sabihin ko sa kanila na wala si Attorney ay sinabi nila na contakin ko iyon. Tinawag ko si Atty. pero hindi ko siya nakontak. Ang ginawa po nila ay si Leonila ang kanilang hinanap at nang sabihin wala rin siya at nagtuturo, ay hindi na sila kumibo. Ang ginawa ko ay tinanong ko sila kung sino sila at ano and kanilang kailangan. Sinabi po nang isa na siyay si ELY FAJARDO, isang Special Sheriff ng Rizal Province at sinabi niyang siya ay naroron dahil sa siyay ang peperform ng levy sa pagaari ni Atty. Policarpio. At ipinakita niya and isang kopya ng execution na noon lang ng oras na iyon ibinigay at noon ko lang nakita.
I plead to them not to make action yet because I have to wait for Attorney Policarpio or the owner of the Policarpio's Draperies, Leonila Policarpio because I have no discretion over the merchandise or whatever is inside the store. But despite may plea they proceeded to perform the said levy. Once more I billed to them not to take out any of the merchandise from the premises because those merchandise do not belong to Atty. Policarpio.
One of them asked me about the address of Atty. Policarpio and I told them it is located on the mezzanine floor and for the second time told that the goods do not belong to Attorney Policarpio. Pero hindi nila ako inintindi at ginawa nila ay hinakot na nila ang mga paninda sa isang truck, isang taxi at isang kotse. Wala po akong magawa. Hindi po nagtagal ay dumating si Alfredo Clemente at sinabi ko sa kanya ang nangyari. Ang ginawa niya ay pinakiusapan din niya and sheriff at sinabing hindi sa inaalisan kayo ng autorization bilang sheriff pero hintayin niyo ang may-ari ng tindahan. Pero hindi rin siya inintindi tuloy din ang kanilang paghahakot sa mga paninda. Pagkatapos po noon ay umalis na sila. (Exh. 4, p. 125 Rec.).lwphl@itç
Fajardo listed in the receipt the properties levied on by him as follows:
1 unit sewing machine "General"
1 unit sewing machine "Regal"
1 unit refrigerator "Consul"
9 rolls assorted color curtains
9 rolls assorted color draperies
8 rolls assorted color draperies
9 rolls assorted color draperies
9 rolls assorted color floor mats
9 rolls assorted color curtains
30 rolls assorted color curtains in plastic bags
27 bundles curtains in plastic bags
103 bundles assorted printed draperies
36 bundles draperies of assorted colors
40 bundles draperies of assorted colors
25 bundles draperies of assorted colors
20 bundles draperies of assorted colors
2 bundles draperies white color
Fajardo did not determine the yardage in the rolls and bundles of cloth that he levied on.
After loading 345 rolls and bundles in the vehicles and finding no more room in the truck for the refrigerator and two sewing machines, Fajardo decided to leave those appliances behind. He canceled them from the receipt (Exh. H) which he signed and delivered to Albert Hipolito.
Fajardo took the goods to the Republic Supermarket where he delivered them to William Li Yao, president of the Socio-Economic Financing Corporation. They were deposited in the bodega of the Republic Supermarket.
When Leonila Policarpio arrived at her store at noon of the same day she was dismayed to find out that her store had been stripped of its contents (Exhs. N N-1 to N8 She went to the office of Li Yao at the Republic Supermarket and protested against the seizure of her goods because she was in no way involved in the case he had filed against Atty. Lumen Policarpio and Modesta Policarpio. He refused to return the merchandise to her. She was simply told to file a third-party- claim. She did so on the same day, February 7, 1973 (Exh. G).
In connection with Leonila's third-party claim, Judge Pabalate appointed on March 7, 1973 a committee composed of his branch clerk of court and a representative each from Rustan and the House of Decor, to ascertain the value of the goods seized from Leonila's store (Exh. J-1). Rustan estimated that two-thirds (2/3) of the goods were imported drapery materials worth not less than P76,375 (Exh. J Rustan could not determine the value of the local drapery materials because it does not deal in them (Exh. J).
The House of Decor, which examined the goods on March 17, 1973, measured 9,044 yards of drapery materials, and estimated them to be worth P74,350 (Exh. K), except 295 years of Thai silk which it did not price.
On February 7, 1973, Fajardo sent to Leonila Policarpio a notice that the levied goods would be sold at public auction on February 17, 1973, at ten o'clock in the morning, on the ground floor of the Republic Supermarket (Exh. F). No copy of the notice was sent to the judgment debtors, Modesta Policarpio and Atty. Lumen Policarpio. However, the sale did not proceed because Atty. Policarpio filed in the Manila Court of First Instance a petition for relief from the decision of Judge Cornejo (Civil Case No. 89864). Judge, now Justice, Conrado Vasquez granted her prayer for a writ of preliminary injunction to stop the sheriff's sale.
Leonila Policarpio also filed an action for replevin against Fajardo, the Socio-Economic Financing Corporation, and William Li Yao in the Manila City Court (Civil Case No. 220431) (Exh. 1). However, she withdrew it on August 3, 1973 and refiled it in the Manila Court of First Instance (Civil Case No. 90667).
Upon her posting a P200,000 replevin bond Judge (now Court of Appeals Justice) Ameurfina Herrera issued a writ of replevin in Civil Case No. 90667 ordering the delivery to her of the goods seized from her store by Fajardo.
On May 18, 1973, the representative of the Sheriff of Manila seized the goods from Fajardo and the Socio-Economic Financing Corporation (Exh. 11). By actual measurement, made in the presence of the Sheriff and the representatives of Rustan and the House of Decor, the Deputy Sheriff of Manila delivered to Leonila Policarpio on .4,604 yards of assorted drapery materials which he had received from Li Yao and Fajardo (Exhs. P to P-14).
Findings. — After a careful examination of the evidence, the court finds respondent Deputy Sheriff Ely B. Fajardo GUILTY of gross misconduct and grave abuse of authority in the performance of his duties as special sheriff in civil Case No. 202468.
Contrary to the practice of the sheriffs, he did not give the judgment debtors a chance to pay first the amount of the judgment. He made the levy in the absence of the owner of the goods levied upon.
His levy on the contents of Leonila Policarpio's store was not only improvident and reckless, since Leonila Policarpio was not a party in Civil Case No. 202468, but was malicious, hasty and oppressive. The fact that the address of the judgment debtors (Modesta Policarpio and Lumen Policarpio) in the writ of execution was the same as the address of Leonila's store, did not justify Fajardo's levy on the contents of Leonila Policarpio store. He was repeatedly informed by Victoria Loyola that the store belonged to Leonila Policarpio and not to the judgment debtor Lumen Policarpio, He could have verified the fact from Leonila. He cannot, therefore, pretend innocence in levying on the property of Leonila. Fajardo was directed to go to Atty. Lumen Policarpio's law office on the mezzanine of the building but he did not bother to wait for Atty. Policarpio. He vas inordinately impatient and overly eager to lay his hands on the merchandise in Leonila Policarpio's store. His precipitate and imprudent course of conduct was absolutely inexcusable.
Fajardo's levy on all the contents of Leonila's store worth no less than P75,000, including a refrigerator and two sewing machines, to satisfy a picayune judgment of P3,000 in favor of the Socio-Economic Financing Corporation, was excessive and constituted an abusive enforcement of the writ of execution.
Fajardo's pretense that he had no Idea of the prices of drapery materials, was no excuse for the wantonness of his levy. He should have looked at the price tags on the goods or, he could have asked the salesboys. He could have limited his levy to the appliances, i.e. the refrigerator, sewing machines and office equipment with which he was familiar after satisfying himself that they belonged to the judgment debtors.
His receipt for the textiles was inaccurate because he listed only the number of rolls and bundles which he took, without specifying the yardage in each. Because of that omission or ambiguity in the receipt, he allowed anyone who had access to the attached goods, the opportunity to fraudulently take any number of yards from each roll or bundle, with none the wiser except the owner Leonila Policarpio who claims that considerable damage were missing from the rolls and bundles that the Manila Sheriff recovered from Fajardo and Li Yao pursuant to the writ of replevin in Civil Case No. 90667.
Leonila Policarpio produced a beautiful panel of "concerto" satinized brocade drapery material costing P150 per panel of 3-1/2 yards length per panel. She had contracted to install that kind of drapery in the house of Mrs. Cristina Aguinaldo Suntay in Hagonoy, Bulacan. A roll of that expensive material, containing 24 panels (85) yards was taken b Fajardo from her store. When it was returned to her only, one panel remained in the roll.
Leonila Policarpio's complaint that a large quantity of material had been from the rolls and bundles while they were in the custody Fajardo and Li Yao, is confirmed b the enormous discrepancy between the yardage (9,044 yards) measured on March 17, 1973 the House of Decor (Exh. K) and the yardage (4,605 yards) delivered Leonila on May 18, 1973 by the Manila Sheriff (Exhs. P to P-14, Some 4,439 and disappeared within a space of the months while the goods ere in the custody of Li Yao and Fajardo.
Fajardo's delivery of the goods to Li Yao, instead of keeping then in the sheriff's bodega, was irregular and improper. It demonstrated his complete and absolute subordination of himself' to Li Yao. He behaved like a minion of Li Yao instead of as an officer of the Court. He is unworthy to continue as a deputy sheriff.
Recommendation. — WHEREFORE, the immediate dismissal of respondent Ely B. Fajardo from the office of deputy sheriff of Rizal is recommended.
