This case (Adm. Matter No. P-690-CFI) stemmed from the letter- complaint of Herino Concepcion, addressed to the Secretary of National Defense, dated September 21, 1973, chargin respondents Judge Enrique A. agana, Sr., Deputy clerk of Court Herminio Ubana and then deputy sheriff (now complainant) Benito B. Nate, with violation of Sec 3, par. (h), of Republic Act 3019, otherwise known as Anti-Graft and Corrupt Practices Act.
From the letter-complaint, it appears that pursuant to the order of respondent Judge Agana, dated July 30, 1973, and the writ of execution issued in Civil Case No. 2778-P, Court of First Instance of Rizal Branch XXVIII-Pasay City, then Deputy Sheriff Nate levied on a Renault car which Herino Concepcion bought on September 4, 1973, for P5,000.00 at the auction sale conducted by Deputy Sheriff Nate After paying the P5,000.00 which was delivered by Deputy Sheriff Nate to Atty. Juan G. Atencia, counsel for the judgment creditor, Herino Concepcion received the Renault car and a certificate of sheriff's sale from Deputy Sheriff Nate. After he had delivered the car to Herino Concepcion, Deputy Sheriff Nate borrowed it to be used by him for a while. According to Herino Concepcion, "although I was taken aback by his unusual action, I could not in good grace refuse him, but I told him to return the car to me the following day". Deputy Sheriff Nate who used the car failed to return it to Herino Concepcion on September 5, 1973. When Herino Concepcion called him by telephone the next day and told him that he needed the car, Deputy Sheriff Nate promised to return it in the afternoon on that day, but he failed to do so.
On September 7, 1973, when Herino Concepcion personally contacted Deputy Sheriff Nate at the Pasay City Hall to get the car, the latter told him that Judge Agana borrowed the car that day.
On September 10, 1973, Atty. Juan G. Atencia informed Herino Concepcion that in a telephone conversation he had with Judge Agana, the latter told him that he (Judge Agana) was using the car and wanted to pay therefor even P6,000.00. Later, Herino Concepcion told Deputy Sheriff Nate to get the car from the judge, since he was the one who lent the car without his knowledge or consent.
Late on the evening of September 18, 1973, Herino Concepcion received a telephone call from Deputy Sheriff Nate informing him that he was instructed by Deputy Clerk of Court Herminio Ubana to tell him (Concepcion) to agree to sell the car to Judge Agana; otherwise, he (Ubana) would see to it that the certificate of sheriff's sale in his (Concepcion) favor would be annulled.
On December 27, 1973, then Deputy Sheriff Nate filed a sworn letter- complaint with the Department of National Defense, charging respondents Judge Agana and Deputy Clerk of Court Ubana with misconduct, grave abuse of authority and grave coercion, alleging that on October 1, 1973, in connection with the complaint of Herino Concepcion, he was summoned by the Prosecution Staff, Military Tribunals, and then and there he executed an affidavit admitting and confirming the contents of the letter-complaint of Herino Concepcion, and stating that he could not return the car to him, because since the morning of September 5, 1973, respondent Judge Agana was using the car with intention to own it by paying P5,000.00 for it; that respondent Deputy Clerk of Court Ubana became angry with him when he did not succeed in carrying out his instruction to convince Concepcion to sell his car to Judge Agana, and told him that the certificate of sheriff's sale in favor of Concepcion "had to be annulled"; that on September 19, 197,3, respondent Judge Agana instructed Deputy Clerk of Court Ubana and him Nate to get in touch with Atty. Benitez, counsel for plaintiff, and Atty, Tejada, counsel for defendants, in Civil Case No. 2778-P and to tell them to oppose the motion for satisfaction of judgment and to question the sale of the car to Concepcion; that Atty. Benitez having filed his opposition to the motion for satisfaction of judgment and questioned the sale of the car to Concepcion; respondent Judge Agana issued an order for the Deputy Clerk of Court to take custody of the car; and that even after he had issued the order, respondent Judge Agana continued to use the car.
According to complainant Nate respondent Ubana prepared an affidavit for his signature but when he refused to sign it, respondent Judge Agana intervene in Ubana's behalf. The reason why he refused to sign the affidavit, so complainant Nate claimed, is that it contained a statement that the car was in his possession since September 5, 1973, up to the date of the prepared affidavit. Complainant Nate further stated in his sworn letter-complaint that because respondents Judge Agana and Deputy Clerk of Court failed to make him sign the prepared affidavit, they ordered him to resign from his office as Deputy Sheriff. Later, he was charged with the crime of infidelity in the custody of prisoner before the military authorities. After hearing, he was exonerated.
It appears that on November 23, 1973, Herino Concepcion executed an Affidavit of Withdrawal of Complaint, "in order to exculpate whatsoever from liability District Judge Enrique A. Agana, Sr. and Deputy Clerk of Court Herminio Ubana". The affidavit was admittedly prepared by respondent Deputy Clerk of Court Ubana.
At the outset of the re-investigation, attempts were made to secure the appearance of Herino Concepcion at the re-investigation so that he could testify on the real reason or reasons which induced him to withdraw the complaint he addressed to the Secretary of National Defense, dated September 21, 1973, against respondents, including complainant Benito B. Nate
All efforts to contact Herino Concepcion produced negative results. His present whereabouts are unknown even to the complainant and his counsel who were requested to, but could not, locate his address.
Atty. Juan G. Atencia, the lawyer who prepared the letter-complaint of Herino Concepcion, was called to testify on the said letter-complaint. He confirmed the content of that letter-complaint to the effect that he had a telephone conversation with respondent Judge Agana on September 10, 1973, who then told him that he was using Concepcion's car and wanted to pay the latter even P6,000.00 for it. Atty. Atencia testified that in the morning of September 10, 1973, he called up the Deputy Sheriff Nate in the sala of respondent Judge Agana about the car which he borrowed from Concepcion and has not returned. According to Atty. Atencia, while he was talking with Deputy Sheriff through the telephone, the latter told him that respondent Judge Agana was there and he was giving the telephone to him; that assuming Judge Agana was at the other end of the line, he (Atty. Atencia) had a conversation with him who then told him (Atty. Atencia) that he would pay even P6,000.00 to Herino Concepcion if the latter would want to sell the car; that he conveyed the message to Concepcion in the afternoon of September 10, 1973, but the latter was reluctant to sell the car, as he needed it; that the last time he met Concepcion was when the latter told him that he was able to cash the check covering the refund of the amount of P5,000.00 which he paid for the car when he purchased it at the auction sale; that Concepcion never told him that the letter-complaint he filed in the Office of the Secretary of National Defense was the result of a misunderstanding as stated in his Affidavit of Withdrawal of Complaint; and that after receiving the refund of the amount he paid for the car, Concepcion lost interest in his complaint against respondents.
Atty. Atencia stated that he was not sure that he was talking with Judge Agana at the other end of the line, because he was not familiar with his voice. Complainant Nate on the other hand, insisted that he (Atty. Atencia) was talking with respondent Judge Agana, because he was then beside the latter.
There are no pictures of respondent Judge Agana using the car. The picture of the car presented by the complainant (Exhibit "P-2") shows that his co-employee was inside, driving it. Complainant Nate said that his said co-employee was driving the car for respondent Judge Agana. Respondent Judge Agana declared that the man in the car resembled his messenger named Pablo, but he was never his driver. Neither respondents nor complainant presented that employee of the court to testify. Respondent Judge Agana claimed that he never saw the car and he never used it. According to him, he has three cars and has his own driver. But respondent Judge Agana did not present his driver to confirm his testimony that he never used the car.
Lorenzo C. Sta. Ana, Clerk of Court and ex-Oficio Sheriff, Court of First Instance, Pasay City Branch, testified, confirming the statement of complainant Nate that he was transferred from the sala of respondent Judge Agana and detailed to another court, but denied that respondents or any one of them demanded complainant Nates separation from the service. He, however, declared that one time Nate told him that he liked to have his office near his room, as he had a case in the sala of respondent Judge Agana, and he was "being persecuted"; and that Nate told him once again that respondents "harassed or persecuted him",
Sta. Ana testified also that respondent Deputy Clerk of Court Herminio Ubana handed to him a folder containing documents against Nate for proper administrative action; that before he could take any action Ubana went back to his office and retrieved the folder with the documents. The reason for taking it back, according to respondent Ubana, being that there had been.- pending investigation of a criminal case against Nate and they did not want it to appear that he was being persecuted.
William Villaluz Paraz Bailiff in the sala of respondent Judge Agana, refused to confirm the statements attributed to him, as quoted in paragraph II, sub-paragraph 3, of the Resolution, dated July 30, 1975.
Atty. Castillo Reyno testified that sometime in the middle of September, 1973, he had a case assigned in the sala of respondent Judge Agana, entitled "Cadavillo vs. Arellano and PHHC" and, as the service of summons was quite delayed, their clerk-messenger Bernardo Basco was sent to find out from Deputy Clerk of Court the cause of the delay. Basco later reported that an employee named Alice in the Office of the Deputy Clerk of Court was charging P40.00 for the service of the summons. Atty. Reyno's secretary, Escolastica R. Sison, upon being informed by Basco, went to the office of the Deputy Clerk of Court and there confronted employee Alice why she was asking P40.00 for the service of the summons to the PHHC when it is just a stone-throw from the Quezon City Hall where the office of the Deputy Clerk of Court is located. Employee Alice told Escolastica R. Sison that it was Deputy Sheriff Nate who was charging the amount of P40.00. When the matter was reported to him, Atty. Castillo Reyno went to the office of respondent Judge Agana and informed him of the reported act of mulcting by Deputy Sheriff Nate Respondent Judge Agana having advised Atty. Reyno to put his complaint in writing, the latter wrote a letter, dated November 19, 1973, and, with enclosed sworn statements of B.T. Basco, Jr., and E -R. Sison, sent it to respondent Judge Agana who must have received it on the same day.
Atty. Castillo Reyno was emphatic in saying that he made the complaint against Deputy Sheriff Nate at his own initiative, and as a member of the bar he had to complain the way he did.
Atty, Salvador Paras testified that on October 16, 1973, he was in the chambers of respondent Judge Agana with several other people when Deputy Clerk of Court Ubana came in with Deputy Sheriff Nate saying: "Ito po si Nate Siya na lang daw ang gagawa ng kanyang affidavit". Judge Agana asked Nate whether he knew how to make one and, when Nate answered in the affirmative, Judge Agana advised him to state only the truth. Further testifying, Atty, Paras declared that after Nate had left he asked Judge Agana to confirm what their messenger related to him (Atty. Paras), that is, that he (respondent Judge Agana) was asking P400.00 from him through Nate Respondent Judge Agana denied having asked for any amount of money from any one, and requested Atty. Paras to tell his messenger to execute an affidavit. The messenger was not able to execute any affidavit as he died the same month.
According to respondent Judge Agana, complainant Nate admitted to him later that he asked for P400.00 from the office of Atty. Paras, but he denied having used his name.
Respondent Judge Agana declared that he was not aware, and complainant Nate did not even give him any hint, that he executed an affidavit before the JAGO on October 1, 1973. The declaration of respondent Judge Agana is confirmed by complainant Nate himself when he testified on cross-examination during the hearing on January 6, 1975, that neither of the respondents knew of the affidavit he executed on October 1, 1973. Respondent Deputy Clerk Ubana also declared that as late as October 16, 1973, he did not know that complainant Nate had executed the affidavit before the JAGO.
When complainant Nate cross-examined respondent Judge Agana (the former was not assisted by counsel then), the latter testified:
Q Mr. respondent, what prompted you to endorse the confidential memorandum of respondent Deputy Clerk?
A When I received reports about anomalies being committed in my office, these reports if you remember very well, I called your .attention, I asked you the truth if you demanded that amount of ... P400.00 from the client of Atty. Paras using my name and you answered 'I did not use your name.And I told you, 'but did you ask for the P400.?' and you said 'yes.' I asked you again: 'Is it true that you got P860.00 to serve notices for summons and garnishments?' You did not deny these charges. Then I asked you again about a certain Mr. Imperial that you ask from him P300. to levy a car, again you did not deny. Again I asked you about a report demanding P400. to serve a summons and Mrs. Balbuena was even included in this charge and whom I also asked to resign, you did not deny, I asked you to submit a resignation within 2 days, otherwise, I will take the necessary action.
Investigator:
When did this happen Judge?
Judge Agana:
A day before November 16, Your Honor. The day I endorsed the confidential information, at that time this confidential information was not written.
(T.s.n., pp. 65-67 hearing on January 7, 1975)
Respondents were not able to include the other questionable activities of complainant Nate in the confidential memorandum, dated November 16, 1973, because while the affiants, through their counsel Atty. L. Castillo Reyno, had already expressed their complaints against Nate verbally, Atty. Reyno endorsed their affidavits in his letter to respondent Judge only on November 19, 1973. The position of respondents is that having received the affidavits only on November 19, 1973, it was impossible for respondent Deputy Clerk Ubana to have made reference thereto and to include them in his confidential memorandum to respondent Judge on November 19, 1973; and it was likewise impossible for respondent Judge to have made reference to them in his first indorsement to the commanding officer of the UIOG also on the same date, November 16, 1973.
Respondents denied that they engaged in a sort of "fishing expedition" against complainant Nate and claimed that they merely "endorsed the anomalies he committed to the authorities for proper action". Respondents contended that the confidential memorandum on complainant Nates infidelity in the custody of prisoner had to be lodged with the commanding officer of the UIOG and not be filed with the Supreme Court, because when the crime of infidelity in the custody of prisoner is committed by a public officer, the Military Tribunals shall try and decide the same, exclusive of the civil courts, citing General Order No. 12, dated September 30, 1972.
Respondents denied having demanded the outright resignation and/or separation of complainant Nate from the service, contending that they were merely trying to accommodate his request to be pardoned for his anomalies and to afford him a graceful exit. When complainant Nate cross-examined respondent Judge Agana, the latter testified, as follows:
Q Is it right for you to order complainant to resign?
A Yes, specially when you, yourself admit that you have committed those irregularities, sometimes using my name.
Q Do you know the provisions of the Civil Service Law, that an employee may be removed for cause?
A Precisely, I am giving you a graceful exit. It was more of a consideration, you are a law student and I don't want you to have black record. You were asking me for a chance, you were given that chance when I asked you to resign.
(T.s.n. pp. 67-68 hearing on January 7, 1976)
From the evidence submitted by the complainant and that for respondents, the undersigned finds no sufficient basis for the complaint charging them with grave abuse of authority and grave coercion.
What complainant has considered as grave abuse of authority or grave coercion on the part of respondents is their having told him to resign. But in the face of the evidence of his mulcting activities hereinbefore narrated, a demand for his resignation is not un- justified, since he admitted some of them, asking that "he be given a chance", and respondent Judge Agana simply wanted to give him 'a graceful exit".
However, it is believed that respondent Judge Agana is guilty of misconduct, having used for sometime the car of Herino Concepcion, knowing that it had been levied upon in execution, sold at an auction sale by then Deputy Sheriff Nate and bought by Herino Concepcion, respondent Judge with intent to own the car by offering to buy it even for P6,000.00. Article 1491 of the Civil Code of the Philippines specifically provides that judges, among others, cannot acquire by purchase, either in person or through the mediation of another, the property in litigation or levied upon in execution within the jurisdiction or territory where they exercise their functions. . .
In the case of respondent Judge Agana, his act of using with intent to acquire a car, knowing that it had been levied upon in execution, transcended the bounds of propriety and, therefore, reproachful. Although, respondent Judge Agana did not actually buy the Renault car, because Herino Concepcion refused to sell it to him, his act of using the car, with intent to acquire it by purchase, is no less improper and censurable. The fact that the car had already been acquired by Herino Concepcion at the sheriff's sale when he used and offered to buy it is of no moment. It was still subject to the exercise of his functions as Judge, as shown by the fact that, at that time, the sale of the car to Concepcion was questioned before his court and respondent Judge Agana would have determined the legality of the sale had not the case been amicably settled.
Respondent Deputy Clerk of Court Ubana knowingly cooperated with respondent Judge Agana in the latter's attempt to acquire the car illegally.
