A.M. No. P-03-1718




SECOND DIVISION A.M. No. P-03-1718 March 11, 2004 SEVERINO NICDAO, petitioner, vs. SILVESTRE J. ESGUERRA, Sheriff IV, respondent. R E S O L U T I O N AUSTRIA-MARTINEZ, J.: Before us is an administrative complaint against Silvestre Esguerra, Sheriff IV, for Abuse of Authority filed by Severino Nicdao, defendant in Civil Case No. 711, entitled Antonio Marasigan, et al. vs. Severino Nicdao, an action for Ejectment. In his complaint, Nicdao alleges that on December 27, 2002, respondent sheriff, taking advantage of their absence, implemented the writ of demolition issued by the MTC, Paombong, Bulacan in Civil Case No. 711; that without a break open order from the MTC, respondent sheriff forced himself into their house, demolished the same and confiscated their personal properties; that respondent sheriff was able to list only three properties belonging to them, to wit: an aquarium, a refrigerator and a generator but failed to account for several others including their jewelries. In his Comment dated March 19, 2003, respondent sheriff explains as follows: Upon receipt of a copy of the writ of execution issued by the MTC for the implementation/execution of the decision issued in Civil Case No. 711, he served a notice to vacate the subject premises upon complainant on March 3, 2000 giving him five days within which to vacate the subject premises but the latter refused to do so. He submitted his Preliminary Report on April 3, 2000 informing the trial court of the complainant’s refusal to vacate the premises. Two years later, or on December 4, 2002, he received a copy of an alias writ of demolition from MTC, Paombong giving him thirty days to implement the same and to make a return. He served the writ together with a notice to vacate to the complainant giving him again three days within which to vacate the premises. Considering that no temporary restraining order (TRO) was issued in the case, he decided to implement the writ of execution on December 27,2002. All personal belongings inside the house/studio were properly inventoried in the presence of a police officer and since defendant thru his son, refused to heed his request to secure their personal belongings, he requested the barangay officials to secure the same for safekeeping but said barangay official likewise refused his request for fear that they might be involved in the problem. In view of that development, he had no alternative but to keep/install, with the plaintiff Marasigan’s conformity, all the inventoried personal belongings in the garage of the latter which is adjacent to the premises subject of Civil Case No. 711. On the same date of implementation, December 27, 2002, he submitted before the trial court a copy of his return on alias writ of demolition dated December 7, 2002 with the attached copy of Delivery of Possession. On January 3, 2003, he submitted a copy of his Report dated January 2, 2003 to the Court, narrating all the proceedings undertaken by him in connection with the implementation of the Writ of Execution and Alias Writ of Demolition effected on December 27, 2002. Based on the conflicting factual allegations posited by the complainant and respondent sheriff, the OCA recommended that the case be re-docketed as a regular administrative matter and the case referred to the Executive Judge of the Regional Trial Court of Malolos, Bulacan for investigation, report and recommendation within sixty days from receipt of the records. Finding the recommendation of the OCA to be well-taken, the Court in a Resolution dated July 9, 2003 ordered the case to be re-docketed as a regular administrative matter and referred the same to Executive Judge Guillermo P. Agloro of RTC, Malolos for investigation, report and recommendation. Judge Agloro submitted his Final Report which was noted in the Court’s Resolution dated November 17, 2003. In the said report, Judge Agloro narrated the established facts of the case, to wit: On December 27, 2002, private complainant Severino Nicdao, who was then residing at no. 12 San Isidro I, Paombong, Bulacan, testified that he left for Manila at around 6:00 a.m. with the rest of his family with the exception of one son, Sherwin Nicdao, who was then residing at no. 77 Guinhawa St., Malolos, Bulacan. Further, complainant testified that he padlocked his house and nobody was left home; and when he returned, he saw his house already demolished and his belongings were no longer inside his house. Consequently, he looked for the plaintiff and the sheriff; and when he could not see them, he went to the municipal hall and blottered the incident at the Paombong Police Station. Thereafter, private complainant testified that he filed this formal complaint on January 14, 2003 against respondent Esguerra with the Office of the Chief Justice, Supreme Court (p.002, Rollo); and likewise filed a list of his personal belongings with the same office on January 29, 2003. . . . On the other hand, respondent Esguerra testified that upon receipt of the alias writ of demolition on December 4, 2002, a notice to vacate was prepared and served on December 9, 2002 together with the copy of the writ of demolition and the writ of execution dated February 7, 2002 issued by the MTC-Paombong, Bulacan, upon private complainant who received the same thru the son, Sonny Nicdao upon private complainant’s instruction, at his residence located at San Isidro I, Paombong, Bulacan (pp. 130-132, Rollo). Instead of implementing the notice to vacate despite the three (3)-day grace period, respondent Esguerra went to see private complainant Nicdao on December 16, 2003.1 However, respondent Esguerra was only able to talk to private complainant Nicdao’s daughter-in-law. Thereafter, respondent Esguerra informed private complainant Nicdao’s daughter-in-law if she could relay the message to his father-in-law to vacate the property peacefully. Despite the request, complainant Nicdao failed to vacate the property peacefully such that on December 26, 2002, respondent Esguerra went to see the former informing him that he will implement the alias writ of demolition the following day, December 27, 20032 (pp. 13, TSN, September 11, 2003) as there is no temporary restraining order issued preventing the implementation of the same. Further, respondent Esguerra informed Mr. Nicdao that he is only given a period of 30 days from receipt to implement the alias writ of demolition reckoned from December 4, 2002 or up to January 4, 2003. On December 27, 2002, respondent proceeded to the residence of private complainant Nicdao to implement the writ at on or about 8:00 a.m.; however when respondent arrived, the house was padlocked. Consequently, respondent went to the barangay captain as well as to the PNP-Paombong to request formally for assistance (pp. 137-138, Rollo). Thereafter, with the assistance of 3 barangay councilors together with a police personnel in the person of PO3 Joseph de Guzman, respondent then proceeded to the residence of private complainant. Upon arrival, respondent Esguerra then inquired from the barangay and nearby houses where complainant Nicdao was, but nobody knew where the private complainant and his family went. Thereafter, at about 10:00 a.m., respondent removed the padlock; however, after removal thereof, respondent saw a person taking a video footage, who he later knew to be Sherwin or Wen-wen, the son of private complainant Nicdao. Respondent then approached the son and told him --- A. . . . ‘nandyan ka pala, kanina ko pa kayo hinahanap ng Tatay mo upang makapag-usap at kung puwede pakikuha nyo na ang mga gamit nyo sa bahay.’ Q. What was his answer if any after you told him that? A. And he answered while he was taking the coverage on my implementation and my other companions, he told me ‘kung gusto po nyo kausapin nyo ang abogado namin’ (talk to my lawyer and here I am presently talking with him over the cellphone). . . . . . . . . . A. The lawyer told me ‘kung ayaw mong sumakit ang katawan mo sa asunto ay lubayan mo na ang pag-implement nyan at meron ka bang break-open order?’ (pp. 22-23, TSN. September 11, 2003). After his conversation with the private complainant’s lawyer, respondent went back to the residence of Mr. Nicdao and entered the same; and there, respondent took pictures of the actual arrangement of the interior and the personal belongings of the private complainant (Exhibit "2", "2-a" to "2-k" inclusive). Thereafter, respondent Esguerra started actual demolition of private complainant’s house. The personal belongings of private complainant were then brought out of the house, inventoried, and placed inside "aparadors" which were sealed by placing scotch tape around to secure the same (p. 8, TSN, September 8, 2003); and brought to the adjacent garage of plaintiff Marasigan. A listing of the personal belongings inside the house was witnessed by the barangay officials, namely: Councilor Efnir Gonzales, Rene Ventura, Chito Pascual, and Barangay Tanod Secretary Lamberto Lindayag and PO3 Joseph de Guzman (Rollo, pp. 139-141) and whose signature appears on said listing. When the request was made by respondent Esguerra to turn over the belongings of complainant Nicdao to the barangay officials, they refused; consequently, it was safekept in the adjacent garage of the plaintiff. Likewise, considering that there was a money judgment, and as stated in the inventory listing, "personal properties were levied by virtue of writ of execution dated February 7, 2000 in Civil Case No. 711, entitled ‘Antonio Marasigan vs. Severino Nicdao’, to wit: 1) one (1) set of aquarium with three (3) fishes; 2) one (1) unit refrigerator; 3) one (1) unit generator with Serial No. 0687 . . ." (pp. 34-35, TSN, September 11, 2003). Thereafter, a Sheriff’s Report was made on January 2, 2003 (pp. 134-136, Rollo).3 While the investigation pends, complainant filed with Judge Agloro a "Request for the Recovery of Personal Properties/Belongings Alleged to be Ready to be Returned to Defendant/Complainant".4 From the foregoing facts, Judge Agloro concluded that respondent Sheriff did not abuse nor exceed his authority in the implementation of the writ of demolition and that respondent Sheriff substantially complied with the requirements under the Rules of Court relative to the implementation of the same. Hence, Judge Agloro recommended that the complaint filed against respondent Sheriff be dismissed and that the "Request for the Recovery of Personal Properties/Belongings Alleged to be Ready to be Returned to Defendant/Complainant" filed before his court be granted. In a Resolution dated November 17, 2003, the Court referred to the OCA Judge Agloro’s Final Report for evaluation, report and recommendation. The OCA submitted its Memorandum dated December 22, 2003 adopting the recommendation of Judge Agloro that the complaint be dismissed for lack of merit and that the request for the "Recovery of Personal Properties/Belongings Alleged to be Ready to be Returned to Defendant/Complainant" filed by complainant before Executive Judge of Malolos, Bulacan be granted. This case arose from an ejectment case docketed as Civil Case No. 711 decided against the complainant ordering him to vacate the subject premises. A writ of execution dated February 7, 2000 was issued for the implementation and execution of the decision in the said case. A notice to vacate was served on complainant on March 3, 2000. A writ of demolition dated July 10, 2000 was issued. Per the respondent Sheriff’s Report, these writs were returned unimplemented. On November 20, 2002, the subject alias writ of demolition was issued and implemented by respondent Sheriff. The issue is: whether the respondent Sheriff implemented the writ within the scope of his authority. Complainant contends that it was grave abuse of authority on the part of the Sheriff of having implemented the writ without a break-open order. The records disclose that the alias writ of demolition dated November 20, 2002 was served on complainant on December 9, 2002 together with the writ of execution dated February 7, 2000 ejecting him from the subject premises and a Notice to Vacate dated December 9, 2002 giving them three days to vacate the said premises. These were received by the complainant through his son who signed receipt thereof.5 The complainant did not vacate the premises. On December 16, 2002, respondent Sheriff went again to the complainant but was able to talk only with complainant’s daughter-in-law.6 On December 26, 2002, respondent Sheriff informed complainant that he will implement the alias writ of demolition the following day, December 27, 2002.7 It is therefore clear that complainant has been forewarned several times of the impending implementation of the writs of execution and demolition. Despite his claim that he and his family left for Manila as early as 6 o’clock in the morning on the scheduled date of demolition, December 27, 2002 because of the holiday season, it is quite obvious that they left the subject premises to evade the said demolition. In the case of Arcadio vs. Ilagan,8 we held: The name of the process commonly resorted to by the successful party in an action of ejectment, for the purpose of being placed by the sheriff in the actual possession of the land recovered is called a habere facias possessionem. . . . No need for sheriffs and respondent lawyer to secure a break open order where the character of the writ in their hands authorized them if necessary to break open the apartment, if they could not otherwise execute its command.9 . . . (Emphasis supplied) Cases of forcible entry and detainer are summary in nature, for they involve perturbation of social order which must be restored as promptly as possible, and, accordingly, technicalities or details of procedure which may cause unnecessary delays should carefully be avoided. Hence, when an officer duly qualified to act under a writ of execution in an ejectment case should be obstructed by a lock or a latch, he is not expected to lie in wait around the premises until such time as the tenants arrive. He has the right to employ force necessary to enable him to enter the house and enforce the judgment. If the rule were otherwise, and as experience has shown, the prevailing party will be at the mercy of his adversary who will stop at nothing to thwart execution.10 In the more recent case of Morta vs. Sanez,11 we ruled that: It is only when there is no occupant in the premises that the sheriff may lawfully cause a demolition without the need of securing a "break-open order. The writ of execution and the alias writ of demolition partake of the nature of a habere facias possessionem. It is undisputed that no one was in the subject premises when the respondent Sheriff arrived – the kitchen door and the front door were locked.12 Respondent Sheriff under the aforecited circumstances is authorized to employ necessary force to implement the lawful orders of the court. Moreover, respondent Sheriff sought the assistance of the police and the barangay officials to witness the proceedings. Anent the claim of the complainant that he lost several valuable personal properties during the demolition, he submitted, as proof, a listing of these properties.13 A perusal of the records shows that during the demolition, an inventory was made by the demolition team. Every item taken out was listed and witnessed by the police and three barangay officials who accompanied respondent Sheriff in the implementation of the writs. Their signatures appear on the side of the said list.14 As between the list submitted by the complainant and the inventory made by the demolition team, the latter has a greater probative value considering that it was signed by disinterested persons and public officers. If ever there were valuables that complainant had lost, he has only himself to be blamed for there was sufficient notice for him to safekeep or get his belongings before or even during the demolition. Instead of heeding the request of the respondent Sheriff to get their belongings, complainant’s son who arrived at the premises, continued instead to take video footage of the ongoings. WHEREFORE, the complaint filed against respondent Sheriff Silvestre J. Esguerra, Sheriff IV, MTC of Paombong, Bulacan is DISMISSED for lack of merit. The "Request for Recovery of Personal Properties/Belongings Alleged to be Ready to be Returned to Defendant/Complainant" filed by complainant Severino Nicdao before the Executive Judge of the Regional Trial Court of Malolos, Bulacan may be granted by the Municipal Trial Court of Paombong, Bulacan in Civil Case No. 711, subject to the condition that only those listed in the inventory made by the demolition team and witnessed by the barangay officials may be ordered returned to complainant Severino Nicdao. SO ORDERED. Quisumbing, (Acting Chairman), Callejo, Sr., and Tinga, JJ., concur. Puno, (Chairman), J., on leave. Footnotes 1 Should be December 16, 2002. 2 Should be December 27, 2002. 3 Final Report submitted by Judge Agloro 4 Rollo, p. 606. 5 TSN, September 5, 2003, p. 67; Rollo, p. 405. 6 TSN, September 11, 2003, p. 9; Rollo, p. 530. 7 TSN, September 5, 2003, p. 71; Rollo, p. 409. 8 143 SCRA 168. 9 Id., pp. 174-175. 10 Id., pp. 175-176. 11 343 SCRA 177, 182. 12 TSN, September 5, 2003, pp. 76-77; Rollo, pp. 414-415. 13 Rollo, pp. 26-28. 14 Rollo, pp. 139-141. The Lawphil Project - Arellano Law Foundation