A.M. No. RTJ-04-1885             November 17, 2004

JUDGE MARIVIC TRABAJO-DARAY, Regional Trial Court, Branch 36, General Santos City, respondent.



This administrative complaint arose in connection with Criminal Case No. 132801 which is a case for estafa through falsification of public document filed against Tetsuo Adachi, Eiji Kawai, Richard Friend, Gari Ocampo, Ma. Lynn Gesmundo and Atty. Raul Josefino Miguel.

In a verified-complaint dated February 17, 2003 filed before the Office of the Court Administrator, State Prosecutor Pablo Formaran III, Atty. Felino M. Ganal, and Kanemitsu Yamaoka charged respondent judge with patent injustice, partiality and gross ignorance of the law bordering on incompetence relative to her conduct in Criminal Case No. 13280.2 Complainants aver that the said criminal case was initially raffled to RTC Branch 23, General Santos City, then presided by Judge Jose Majaducon. Because of said criminal case, Judge Majaducon issued a hold departure order against Tetsuo Adachi and Eiji Kawai, prohibiting them from leaving the country until the case is terminated.3 When Judge Majaducon subsequently inhibited himself, the criminal case was re-raffled to Branch 36, presided by Acting Presiding Judge Antonio Lubao.

On June 6, 2002, Judge Lubao also issued a hold departure order against the other accused, namely: Richard Friend, Gari Ocampo, and Ma. Lynn Gesmundo, with the exception of Atty. Raul Josefino Miguel. Thereafter, accused Friend and Ocampo filed a motion for reconsideration praying for the lifting of the hold departure order. Complainant Yamaoka, through counsel, filed his opposition thereto. On December 4, 2003, the two-named accused filed an Addendum to the Motion for Reconsideration,4 to which a Comment/Opposition was also filed by the prosecution.

On December 15, 2002, an Urgent Motion to Lift Hold Departure Order (or to allow Friend to travel to the United States)5 was filed by Friend alleging that he had no intention to become a fugitive from justice considering that upon the filing of the information, he voluntarily submitted himself to the court's jurisdiction, posted bail and signed a waiver of appearance. On December 23, 2003, Friend filed a 2nd Urgent Motion to Resolve Pending Motion for Reconsideration to Lift Hold Departure alleging therein that Presiding Judge Lubao went on leave without resolving his pending motion to lift hold departure order; that there is an urgent necessity for him to return to California, USA, not only for business reasons but for the medical treatment of his youngest son who is suffering from serious developmental delays due to seizure.6

Meanwhile, respondent Judge Daray, in her capacity as Acting Executive Judge of the RTC of General Santos City and Pairing Judge of Acting Presiding Judge Lubao who was on leave of absence, issued an Order dated December 26, 2002, the dispositive portion of which reads:

WHEREFORE, by way of reiteration and considering the discussion above, the Motion for Reconsideration submitted by accused Richard Friend and Gari Ocampo for the lifting of the Hold Departure Order is hereby DENIED. However, on the alternative prayer of accused Richard Friend, said accused Richard Friend is hereby GIVEN PERMISSION to travel on December 27, 2002 to the United States of America subject to the conditions above-mentioned.


Aggrieved by the issuance of the Order dated December 26, 2002, complainants filed the instant administrative complaint against respondent judge alleging that: (1) the 2nd Urgent Motion to Resolve Pending Motion for Reconsideration to Lift Hold Departure Order is a litigious motion; (2) there was no notice of hearing addressed to the opposing parties and said motion was not heard at all; (3) the motion is not supported by appropriate medical certificate and respondent judge did not bother to check the veracity of the allegations therein; (4) Criminal Case No. 13280 is assigned to Judge Lubao and respondent judge took advantage of the former's absence by acting on the pending motions although she was in Digos City; (5) respondent judge failed to institute safeguards to insure the subjection to legal process of Friend, who appears to be a permanent resident of the United States by requiring him to post an additional bond as he had no known address in the Philippines; and (6) the hold departure order was practically lifted without any hearing.8

In her Comment, respondent judge vehemently denied that she committed any infraction of law and the rules in issuing the assailed order. She explained that the order was issued in the exercise of her judicial functions as pairing judge of Judge Lubao who was then on leave of absence when the 2nd Urgent Motion To Resolve Pending Motion For Reconsideration To Lift Hold Departure Order was filed by the accused. She insisted that she studied the records, not "with unseemly haste" as the complainants insinuated, because she even brought the records of the case to her house on Christmas day.9

Respondent judge also asserted that she did not commit gross ignorance of the law in acting on the subject motion without a hearing. She argued that the motion was not litigious as it merely contained the same allegations found in the motion for reconsideration earlier filed by the accused; that it was her assessment that the alternative prayer to allow Friend to travel was urgent because of the immediate medical attention needed by his son; that the alternative prayer would not prejudice the rights of the prosecution since Friend was not a flight risk after having previously traveled to the United States and returning to the Philippines to attend the hearing of his case.

As to the charge of incompetence, respondent judge stressed that she studied and evaluated the records of the case and the applicable jurisprudence before issuing the assailed order. She stated that her competence as a judge was recognized by the Supreme Court when she was named the acting presiding judge of two courts in General Santos City and as acting executive judge of the same city.

On June 12, 2003, Atty. Ganal filed a Supplemental Complaint10 on the ground that respondent judge exhibited manifest partiality and patent injustice against his client Kanemitsu Yamaoka in handling 3 cases filed by his client against the group of Friend and Kawai, namely: (1) Criminal Case No. 16151 for perjury pending before RTC, Branch 35; (2) Criminal Case No. 13280 for estafa pending before RTC, Branch 36; and, (3) Corporate Case No. 1 pending before RTC, Branch 23.

In Criminal Case No. 16151 which resulted in a judgment of conviction for perjury of the accused who appealed the judgment to branch 35 which was presided by respondent judge, complainant Ganal averred that respondent judge showed partiality when she denied the prosecution's first and only extension of time to file appellee's brief, but granted a similar motion for extension to the accused. Complainant further alleged that respondent, without resolving the motion for inhibition earlier filed by the prosecution, resolved the appealed decision by rendering a highly dubious judgment of acquittal of accused Kawai "despite the presence of all the elements of the crime and the existence of overwhelming evidence supporting Kawai's guilt."11

As regards Criminal Case No. 13280 for estafa, the letter-complaint reiterated the averments contained in the February 17, 2003 complaint. Specifically, it alleged that respondent judge took advantage of Judge Lubao's absence when she hastily granted ex parte on December 26, 2002 a motion filed on December 23, 2002 which allowed accused Friend to stay indefinitely in the United States.

The letter-complaint also charged respondent judge of partiality in keeping Corporate Case No. 1 archived since August 2002 resulting in the delay in the enforcement of SEC Order of Injunction and Appointment of a Management Committee which was later affirmed by the Supreme Court and Court of Appeals in G.R. No. 146079 and CA-G.R. SP No. 59356 respectively. According to complainant Ganal, respondent not only sat on the motion for reconsideration to reactivate the case but also failed to act on the motion for inhibition, both filed by Yamaoka. Complainant stated that respondent, in acting the way she did, had no other intention than to allow Kawai and Adachi to continue with the control of the company and dissipate its assets to the prejudice of his client Yamaoka.

In answer to the Supplemental Complaint, respondent judge gave the following justifications:

(1) In Criminal Case No. 16151 which was an appeal filed by accused Kawai who was convicted for perjury by the municipal court, Branch 1, General Santos City, respondent judge averred that upon the receipt of the notice of appeal on August 1, 2002, she gave the appellant until October 12, 2002 to submit the appeal brief and for appellee to submit their own appeal brief within 15 days from receipt of the copy of appellant's brief. She denied appellee's request for a 30-day extension to submit its memorandum. Although the said memorandum was received only on December 16, 2002, yet she considered it in her decision of acquittal on January 10, 2003.

(2) As to Criminal Case No. 13280, respondent judge argued that assuming she had erred in granting accused Friend permission to travel, the same could not be a basis for any administrative liability in the absence of fraud, dishonesty or corruption.

(3) As to Corporate Case No. 1, respondent judge explained that the said case, which was originally docketed as SEC Case No. 11-95-5199 DV-200, was transferred to RTC, Branch 23, General Santos City by virtue of R.A. 8779 and A.M. No. 00-11-03-SC. SEC Hearing Officer, in an Order dated July 21, 1999, denied Yamaoka's prayer for the appointment of a management committee and for preliminary injunction. Thereafter, Yamaoka filed a petition for certiorari before the SEC en banc, which reversed the decision of the Hearing Officer and ordered the creation of a management committee of the Yamaoka Nippon Corporation (now Pescarich). Pescarich filed a petition with the Court of Appeals which reversed the decision of the SEC. On appeal, the Supreme Court again reversed the decision of the Court of Appeals. However on Pescarich's motion for reconsideration, the Supreme Court remanded the case to the Court of Appeals for the resolution of certain factual issues. This decision by the Supreme Court brought about the "motion to archive" filed by Pescarich before RTC, Branch 23.Respondent judge averred that she could not have been incompetent just because she granted the motion to archive the case while the Court of Appeals was resolving the issues of fact. Moreover, the Supreme Court would not have appointed her Acting Presiding Judge of RTC Branches 23 and 35, both of General Santos City or Acting Executive Judge had she been incompetent and remiss in her responsibilities.

On December 16, 2003, the OCA made the following recommendations:12

(1) As regards her action in Criminal Case No. 16151, respondent be found guilty for failing to decide the motion to disqualify her before she rendered her decision acquitting Eiji Kawai. For this she should be fined P5,000.00.

(2) As regards her failure or refusal to rule on the motion to reactivate Corporate Case No. 1, we believe that the private complainant has a judicial remedy, that of elevating the matter on appeal. As held in Pagayanan vs. de la Victoria, supra, respondent can not be held answerable for her refusal to re-activate the case as prayed for by complainant Yamaoka. However, it has not been denied that Yamaoka had filed, as early as September 2002, motions for reconsideration with the end in view to re-activate the case, respondent should be held guilty for inefficiency for not resolving the motions within the period given by law. For this lapse it is recommended that respondent be fined P5,000.00.

(3) As regards her grant of permission for accused Friend to leave for the U.S.A., we believe she committed a serious offense under Rule 140. However, to dispel any doubt, it is necessary that testimony be heard regarding certain matters such as when Judge Lubao had gone on leave to determine whether his absence was prolonged in order to justify respondent's taking over the case. It is, therefore recommended that this case be assigned to an Associate Justice of the Court of Appeals for investigation, report and recommendation within sixty (60) days.

In a Resolution dated February 16, 2004,13 the Supreme Court referred the complaints against respondent to Court of Appeals Justice Marina L. Buzon for investigation, report and recommendation.

On September 30, 2004, the investigating Justice, finding that respondent judge showed manifest partiality and bias in favor of Eiji Kawai and Richard Friend, recommended that she be fined the amount of P30,000.00, with a stern warning that a repetition of the same act in the future be dealt with more severely.

On January 10, 2003, respondent judge rendered a decision in Criminal Case No. 16151 acquitting the accused Kawai. The said decision was rendered despite a pending motion for inhibition filed by complainant Yamaoka and upon manifestation and request by the private prosecutor setting the motion for hearing on January 30, 2003.

The issue of voluntary inhibition is primarily a matter of conscience and sound discretion based on valid reasons on the part of the judge. Nonetheless, where a judge's impartiality and fairness is put in issue in a motion for inhibition, prudence dictates that he put the matter to rest by resolving the same instead of letting the question hang in the air and thereafter rendering a decision which would heighten the suspicion of the party seeking his recusal. If a judge feels that granting a particular motion would be contrary to a provision of the Revised Rules of Court, then he should forthwith issue an order denying the motion instead of allowing the motion to remain unresolved.14 Respondent judge's act of ignoring the motion for inhibition becomes suspect in the light of her previous act of denying Yamaoka's first and only extension of time to file appellee's brief but granting a similar motion for extension to the accused.

Respondent's excuse that no urgent motion for inhibition was filed in Criminal Case No. 16151 since it did not bear the notation "RECEIVED" cannot be given credence in view of her admission, during clarificatory questions by the investigating justice, that had the Manifestation with urgent motion for inhibition been filed with her court in Digos City, only the Manifestation would bear the stamp mark "RECEIVED" and the motion attached thereto would no longer bear said notation.15 Moreover, as observed by the investigating justice in her report, while in her Decision, respondent noted the Manifestation dated January 3, 2003 filed by the public prosecutor,16 she however did not point out therein that no such urgent motion for inhibition was attached thereto.

Also, by failing to resolve the motions relative to Corporate Case No. 1, i.e., the motion for reconsideration to reactivate the case and the motion for inhibition filed by Yamaoka, respondent judge not only failed in her duty to act promptly in disposing the court's business but worse, she sullied her actions with a cloud of suspicion which erode public confidence in the judiciary.

Section 4 Rule 37 of the Rules of Court provides that a motion for new trial or reconsideration shall be resolved within 30 days from the time it is submitted for resolution. As observed by the investigating Justice, since no comment on the motion for reconsideration was received by the court in December 2002 or early January 2003, respondent judge should have resolved the motion for reconsideration on the first week of February, 2003. Verily, respondent's tendency to foot-drag in resolving the motions filed by Yamaoka becomes too glaring and suspect considering the seeming haste with which she resolved the criminal cases in favor of Kawai and Friend.

The Code of Judicial Conduct enjoins trial court judges, as paragons of justice in the first instance, to dispose of the court's business promptly and to decide cases and motions within the required periods. We have stressed often enough that delay in the administration of justice undermines the faith of the people in the judiciary, which is expected to hear their supplications promptly.17

In Criminal Case No. 13280, respondent judge granted on December 26, 2002, without hearing, 2 urgent motions to lift hold departure order (or to allow accused Richard Friend to travel to the U.S.A. The first motion received by the court on December 17, 2002 did not contain a notice of hearing while the notice of hearing in the second motion dated December 23, 2002 was addressed to the Clerk of Court of Branch 36 requesting that he submit the same to the consideration of the Court/Executive Judge. Clearly, the said motions did not comply with Section 4, Rule 15 of the Rules of Court requiring that a written motion shall be set for hearing by the applicant, except those which the court may act upon without causing prejudice to the rights of the adverse party. A motion without notice of hearing is pro forma. A mere scrap of paper, and presents no question which the court would decide.18

Respondent judge claims that the two motions were not litigious and, therefore, need not be set for hearing and that the determination of whether a motion is litigious or not is subject to her sound discretion. It may be true that Section 4, Rule 15 of the Rules of the Court affords the judge some measure of discretion to dispense with a hearing where the motion does not prejudice the adverse party, yet where the motion is clearly litigious, as it brings out new matters not raised in earlier motions, specifically, the alternative prayer to allow the accused to travel abroad, the respondent judge should have notified the adverse party and failing to do so, she should not have acted precipitately on the motion to lift the hold departure order.

In Balagtas v. Sarmiento,19 which also involves the irregular grant by the respondent judge of an Urgent Ex-Parte Motion to Leave for Abroad, the Court said:

Considering the litigious nature of Peith's motion and the fact that the criminal and civil aspects of the cases were simultaneously instituted, the public prosecutor and the private offended party should have been notified, failing which, the respondent judge should not have acted upon the motion.

The Rules of Court is explicit on this point. A motion without notice of hearing is pro forma, a mere scrap of paper. It presents no question which the court could decide. The court has no reason to consider it and the clerk has no right to receive it. The rationale behind the rule is plain: unless the movant sets the time and place of hearing, the court will be unable to determine whether the adverse party agrees or objects to the motion, and if he objects, to hear him on his objection. The objective of the rule is to avoid a capricious change of mind in order to provide due process to both parties and to ensure impartiality in the trial.

In granting Peith's Urgent Ex-Parte Motion to Leave for Abroad, the respondent judge violated a basic and fundamental constitutional principle, due process. When the law is elementary, not to be aware of it constitutes gross ignorance thereof. After all, judges are expected to have more than just a modicum of acquaintance with the statutes and procedural rules. Hence, the respondent judge is guilty of gross ignorance of the law.

By and large, respondent's conduct in handling the above-mentioned cases displays partiality. Her propensity of failing to resolve motions filed by Yamaoka but acting with uncharacteristic dispatch in issuing orders favorable to the accused inevitably invite doubts on her probity and integrity. It gives ground for a valid reproach. A judge may not only render a just, correct and impartial decision but should do so in such manner as to be free from any suspicion as to his fairness, impartiality and integrity.20 A judge must not only be impartial he must also appear to be impartial.21 Rule 2.0.1 of the Code of Judicial Conduct enjoins judges to so behave at all times as to promote public confidence in the integrity and impartiality of the judiciary.

WHEREFORE, in view of the foregoing, the finding of the investigating Justice that respondent Judge Marivic Trabajo-Daray is GUILTY of manifest partiality and bias in violation of Rule 2.0.1 of the Code of Judicial Conduct is adopted with the MODIFICATION that the FINE is reduced to P20,000.00. Respondent judge is STERNLY WARNED that a repetition of the same act in the future will be dealt with more severely.


Davide, Jr., C.J., (Chairman), Quisumbing, Carpio, and Azcuna, JJ., concur.


1 Entitled: People v. Tetsou Adachi, Eiji Kawai, Richard Friend, Gari Ocampo, Ma. Lynn Gesmundo and Atty. Raul Josefino Miguel.

2 Rollo, p. 1.

3 Id., p. 11.

4 Id., p. 195.

5 Id., p. 206.

6 Original Records, Exhibit "L".

7 Rollo, pp. 214-215.

8 Id., p. 1.

9 Id., p. 67.

10 Id., p. 55.

11 Id., p. 57.

12 Id., p. 372.

13 Id., p. 388.

14 Request for Assistance Relative to Special Proceedings No. 28 Pending at RTC, Br. 55, Negros Occidental, Presided by Judge Jose Y. Aguirre, Jr., A.M. No. RTJ-01-1624, 26 March 2001, 355 SCRA 62, 67.

15 TSN, 5 August 2004, pp. 52-55.

16 Exhibit "JJ-1".

17 Spouses Jaime and Purificacion Morta v. Judge Bagagñan, A.M. No. MTJ-03-1513, 12 November 2003, 415 SCRA 624, 631.

18 Fajardo v. Court of Appeals, G.R. No. 140356, 20 March 2001, 354 SCRA 736, 743.

19 A.M. No. MTJ-01-1377, 17 June 2004.

20 Agpalasin v. Agcaoili, A.M. No. RTJ-95-1308, 12 April 2000, 330 SCRA 250, 266.

21 De Guzman, Jr. v. Sison, A.M. No. RTJ-01-1629, 26 March 2001, 355 SCRA 69, 89.

The Lawphil Project - Arellano Law Foundation