FIRST DIVISION
[A.M. No. P-11-2978. June 4, 2014.]
RODANTE D. MARCOLETA, complainant, vs. REYNALDO ODTUHAN, SHERIFF IV, REGIONAL TRIAL COURT, BRANCH 108, PASAY CITY, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution dated June 4, 2014 which reads as follows:
"A.M. No. P-11-2978 — RODANTE D. MARCOLETA, Complainant, v. REYNALDO ODTUHAN, SHERIFF IV, REGIONAL TRIAL COURT, BRANCH 108, PASAY CITY, Respondent.
This is an administrative complaint for grave abuse of authority, grave misconduct, and conduct unbecoming a public official, filed by complainant Rodante D. Marcoleta against respondent Reynaldo Odtuhan, Sheriff IV of the Regional Trial Court (RTC), Branch 108 of Pasay City, in connection with the implementation of the Writ of Replevin issued in Civil Case No. R-PSY-10-04634-CV, entitled East West Banking Corporation vs. Suzette O. Recto, et al.
The RTC issued an Order dated November 11, 2010 granting the prayer of East West Banking Corporation (East West Bank), plaintiff in Civil Case No. R-PSY-10-04634, for the issuance of a writ of replevin for a motor vehicle. The RTC issued the Writ of Replevin on the same day, addressed to respondent, with the following directive:
WHEREAS, plaintiff in the above-entitled case has filed a complaint with prayer for immediate recovery of a personal property herein more fully described as follows: TCacIE
| MAKE | : | HYUNDAI TUCSON CRDI AT |
| MODEL | : | 2008 |
| MOTOR NO. | : | D4EA6060216 |
| SERIAL NO. | : | KMHJM81VP7U594690 |
and that said plaintiff has filed a sufficient bond in the amount of P1,185,800.00 and was duly approved by the Honorable Court.
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NOW THEREFORE, the City/Provincial Sheriff or any of his lawful deputies is hereby commanded to take from the defendants the above-described motor vehicle and to retain the same within five (5) days in your custody and after the lapse of five (5) days to return/deliver the said motor vehicle to the plaintiff subject to the provisions of Section[s] 5, 6 and 7 of Rule 60 of the Rules of Court, provided that your legal fees and all the necessary expenses are fully paid. 1
Respondent proceeded to implement the foregoing Writ on November 26, 2010.
However, complainant charged respondent with irregularly implementing the Writ of Replevin. Complainant asserts a right to the vehicle subject of the Writ under a Deed of Assignment dated February 9, 2009, wherein Suzette Recto, the registered owner, assigned the said vehicle to complainant in consideration of a short-term financial accommodation. In his Complaint-Affidavit dated December 30, 2010, filed before the Office of the Court Administrator (OCA), complainant alleged that:
2. In the afternoon of November 26, 2010, the brother of [complainant's wife, Edgardo Magbitang (the driver), drove the above-described vehicle to do some errands, i.e., to withdraw some cash from the Allied Bank Branch along Sumulong Highway near Masinag Market in Antipolo City and then later, to go to LBC along Marcos Highway for money transfer.
3. After having withdrawn the cash from the said bank but before catering the vehicle, a certain person approached the said driver and asked him whether he knows a certain Suzette Recto. Upon getting a negative answer from the driver, the man introduced himself as a sheriff who was allegedly directed to take the above-described vehicle due to a purported case of Replevin. Per his court ID, the man was identified as one RE[Y]NALDO A. ODTUHAN, a sheriff for Branch 108 of the Regional Trial Court of Pasay City.
4. Not familiar with the court processes, the driver became so frightened because he thought that it was just a modus operandi of a hold upper who, at that time was backed by two more men who were then driving what appeared to be a silver sedan. To allay the driver's fears he was advised to call the [complainant's] wife who, at that time was already waiting for the driver to return for another errand.
5. The driver opened the vehicle but the sheriff managed to force himself inside the vehicle and sat on the vehicle's passenger seat. At this juncture, the [complainant] already received a call from his wife as regards the ongoing incident. Minutes later, the [complainant] received a call from his wife's driver.
6. The [complainant] first talked to the man who introduced himself as a sheriff and informed the former that the East West Bank filed a case of Replevin against the vehicle's registered owner (Suzette Recto) due to her failure to pay the required monthly amortization. As it was a Friday, the [complainant] requested that he be given until Monday, November 29, in order to resolve the issue at hand as he did not know that the vehicle was mortgaged to the bank when it was assigned to him. He explained to the sheriff that since he has five (5) days to retain the vehicle into his custody, it is still within his power to allow the [complainant] to keep the vehicle considering that he already knew its whereabouts and the persons who are actually using said vehicle. The [complainant] explained that the requested period is solely for the purpose of determining the regularity of the actions being taken, to verify the facts with the registered owner of the subject vehicle and for inventory.
7. The sheriff could not grant the [complainant's] request because according to him the representatives of the bank — who were then with him at that time — disagreed. He countered that the vehicle be placed instead in the premises of the bank while the options of the concerned parties are being considered. Then the [complainant] talked to their driver and told him to stay put and wait for Ms. Recto who was then on her way to meet with them.
8. Minutes later, and for the second time, [complainant] talked to the sheriff and, as a last ditch effort, he requested the latter was to wait for Suzette Recto who was then proceeding to the place where the vehicle was, after which the [complainant] will also be there in about an hour after winding up his meeting in Quezon City at 2:30 PM. SEHTIc
9. But after [complainant's] conversation with the sheriff, the latter tricked the driver by acceding that they can proceed to the LBC outlet nearby (which was located near the corner of Marcos Highway and Sumulong Highway) so that the driver can do the transfer of money as tasked by [complainant's] wife. The sheriff asked to stay inside the vehicle and requested that the air conditioning be left open on the pretext that it was too hot outside and that he will wait for the driver until he completes his errand. But when the driver returned, the vehicle's engine was already off and its doors closed. When the driver approached the vehicle where the sheriff and his companions were, they refused to return the car keys — instead the sheriff tried to hand the case documents to the driver saying, "ikaw pagagalitan ka lang ng ate at kuya mo,ako mawawalan pa ako ng trabaho pag nagkataon". When the driver refused to receive the documents, the sheriff dropped the papers by the road, hastily closed the windows of their car and left hurriedly. It was too late for the driver to realize that while he was talking to the sheriff, one of his companions surreptitiously drove away the vehicle subject of replevin.
10. The sheriff blatantly violated the Writ of Replevin dated November 11, 2010 in that "the City/Provincial Sheriff or any of his lawful deputies was commanded to take from the defendants the above-described motor vehicle and to retain the same within five (5) days in your custody and after the lapse of five (5) days to return/deliver the said motor vehicle to the plaintiff . . .". Based on his representation while talking with the affiant, the sheriff was then with two (2) representatives of East West Bank who were then instructing him to take the vehicle and to deliver the same immediately to the nearest branch of the said Bank for alleged safe keeping.
11. Because the taking of the vehicle was hurriedly done, and despite the request for proper turnover, among others, the sheriff did not observe proper procedures on turn-over and inventory of personal properties not subject of the replevin. As a result, personal belongings like CDs/DVDs, two (2) cell phones, two (2) protocol plates [No. 8], one (1) set of security plate (RDV XXX), two (2) pairs of girl's shoe, a bottle of perfume, an umbrella and several vital documents for printing have not been returned. 2
Respondent explained his side in his Comment, thus: DcICEa
3. By way of narration and in refutation of the allegations of the complainant, on November 26, 2010 after serving summons and other court processes in another case, the undersigned received a call from an East West Bank representative informing me that while they were traversing Sumulong Highway in front of Allied Bank Antipolo Branch, they chanced upon a vehicle which was on their watchlist which happens to be a case assigned to me. Upon receipt of that call, I asked Union Bank representative after implementation of their writ, that instead of proceeding to the office in Pasay, I requested that I be brought to RTC, Antipolo for proper coordination and the same time to meet with the East West Bank representatives. Afterwhich, the undersigned together with the East West Bank representatives proceeded to the area, Allied Bank Antipolo Branch. We waited, until a man approached the subject vehicle which was later identified as Edgardo L. Magbitang, the driver and brother-in-law of complainant Congressman Rodante Marcoleta. I introduced myself as Court Sheriff and showed my court I.D. simultaneously informing him that the vehicle is subject of a writ of replevin issued by the Court and likewise showed him the court processes. At that juncture, Mr. Magbitang requested that I personally talk to his brother-in-law, Congressman Marcoleta, which I acceded. So, we then proceeded to the residence of Congressman Rodente Marcoleta inside Filinvest East, Antipolo City. Upon arrival thereof, we were informed that Congressman had already left. I then asked Mr. Magbitang if I could talk to Congressman Marcoleta via mobile phone. Mr. Magbitang on the other hand told me that he already tried calling his brother-in-law but he ran out of cellphone load. The undersigned then asked the East West Bank representative[s], to use their mobile phone as Mr. Magbitang refused saying that "Magagalit kasi yon kung ibibigay ko number nya sa ibang tao." Instead, Mr. Magbitang alighted from the vehicle and had his mobile phone loaded at a nearby store while the engine was still on as I was inside the subject vehicle. Then, we left Filinvest and parked right outside the gate of the subdivision and made calls.
4. First, I was able to talk to the wife of Congressman Marcoleta and I explained to her why I was there. She then requested me to wait for the call of Congressman Marcoleta which I acceded. In the meantime, I explained to Mr. Magbitang that the seizure of the vehicle is imminent as it [was] by virtue of a court order. I then asked him if there are valuables inside the vehicle and he said, "Wala, yong tools lang". But just the same, I checked the vehicle for possible valuables, I also asked East [W]est Bank representative to [sit] inside the subject vehicle and assist me in the inventory of possible personal belongings. Attached hereto is the checklist marked as Annex "1", stating among others that the personal belongings found in the vehicle are as follows:
a. 1 bottle of empty perfume without cap;
b. 1 piece steering wheel lock; &
c. Assorted personal pictures.
Verily, complainant's allegations regarding the properties which were left in the vehicle are untrue considering that there was proper documentation and inventory conducted in the seizure of the vehicle.
5. At this juncture, Mr. Magbitang's mobile phone rang and he handed me the phone and informed me that it was Congressman Marcoleta at the other end. Congressman Marcoleta requested that I forego with the implementation saying that "kilala mo naman ako at alam mo naman kung saan ako nakatira, may utang si Suzette sa amin." In return, I explained to him that "congressman, kasama ko rito ang taga-East West kung gusto nyo po kausapin nyo sila". He said Yes, then I handed the phone to East West bank representative. I overheard East West Bank representative, "Hindi po pwede Congressman kasi kami naman din po ang matatanggal sa trabaho kung pagbibigyan namin kayo". Then the phone was handed to me, Congressman reiterated what he said. I told him, "Sir, abogado naman po kayo, alam nyo po naman ang predicament ko. Baka makasuhan ako ng East West Bank. I'm just doing my job." Then at the top of his voice he said "Walanghiya ka paingles-ingles ka pa, kakasuhan kita ibigay mo ang cel sa bayaw ko at kakausapin ko siya". I overheard him instructing Mr. Magbitang shouting "Huwag na huwag mong ibibigay ang susi." Then there was a deadlock. Mr. Magbitang told me "Sheriff, wag ko daw ibigay ang susi, pagagalitan ako ni kuya pag binigay ko", then I replied, "Mang Ed, kayo pagagalitan lang, ako pwede kong ikatanggal sa trabaho kung hindi ko gawin ang nararapat, napag-utusan lang ako ng husgado". Then, Mr. Magbitang requested that he be brought to LBC to run some errands which I acceded. Mr. Magbitang was at first hesistant to leave the car key and the engines on but I said, "It's too hot, just leave the car key and engines on." Then, he alighted and went inside LBC premises. Instead of forcibly taking from him the car key and cause commotion, I opted to choose the lesser evil. I then alighted from the vehicle and waited for Mr. Magbitang go out of LBC and again handed me his mobile phone. Congressman Marcoleta told me to wait for Suzette Recto, "huwag na huwag kukunin ang sasakyan." Then I replied, "Pasensya na po Congressman, alam nyo pong maiintindihan nyo po ako kasi abogado po kayo", then he shouted "huwag mo akong tuturuan, kakasuhan kita, antay[i]n mo si Suzette". I handed to Mr. Magbitang his phone together with the court processes, he got his phone but he refused to even hold the court processes so I left a copy on his side. I then handed the car key to East West Bank representative, and instructed him to leave the area because I'm not sure if it was Suzette who is coming over. Then we left the area. CASTDI
6. That I took custody of the vehicle for five (5) days afterwhich, I delivered the same to plaintiff bank as provided by law.
7. That the allegation of complainant that since the undersigned has under the law five (5) days custody it is still within his power to allow the complainant to keep the vehicle is misplaced. Section 6 of Rule 60 of the Revised Rules of Court provides:
"SEC. 6. Disposition of property by sheriff — If within five (5) days after the taking of the property by the sheriff, the adverse party does not object to the sufficiency of the bond, or of the surety or sureties thereon; or if the adverse party so objects and the court affirms its approval of the applicant's bond or approves a new bond, or if the adverse party requires the return of the property but his bond is objected to and found insufficient and he does not forthwith file an approved bond, the property shall be delivered to the applicant. If for any reason the property is delivered to the applicant, the sheriff must return it to the adverse party."
Simply put, nowhere in the above-cited rule that [the] sheriff [has] discretion to return subject vehicle so that the adverse party can negotiate with the bank. The said rule presupposes the filing of a counter-replevin bond within the five-day custody period so that the vehicle can be returned to the adverse party. In the present case, the herein complainant did not object to the bond posted by the bank nor did he file a counter bond to warrant the return of the subject vehicle[.]
xxx xxx xxx
9. In paragraphs 3 and 4 of the complaint-affidavit, it was stated among others that I introduced myself to the driver as a sheriff and I immediately apprised him of my purpose and to allay the fear of the driver, I advised him to call the complainant's wife. Hence, this clearly establishes that I have undertaken the proper procedure in the implementation of the writ of replevin and that I never forcefully nor surreptitiously take the vehicle; aITDAE
xxx xxx xxx
11. That I have been in the judiciary for 17 years and as court sheriff for 10 years at that. I have at all times, acted with propriety, decorum and integrity as mandated by law in all my official dealings. The truth of the matter is, in my 10 years as Court Sheriff and in my 44 years of existence, this is the first time that a case was filed against me. I was just doing my job which I have sworn to do and will continue to do regardless of whoever is involved. In this regard, I invoke that the presumption of regularity in the performance of my official functions when I caused the implementation of the writ of replevin on November 26, 2010; &
12. To further attest to the truthfulness of my averments, the self-explanatory joint affidavit of MR. MICHAEL HONRADO and MR. REYNANTE CONDES of East West Bank is hereto attached and marked as Annex "2." 3
Complainant countered in his Reply that respondent is lying about serving court processes in another case on November 26, 2010 when the latter received a call from East West Bank representatives regarding the whereabouts of the vehicle subject of the Writ of Replevin in Civil Case No. R-PSY-10-04634. Respondent was just trying to conceal that he was with the East West Bank representatives all along. Complainant likewise argued that respondent did not refute and only made a general denial of the allegations in the Complaint-Affidavit. A general denial is deemed an admission of all the averments in the complaint. Complainant further dismissed as self-serving the inventory of the personal items found inside the subject vehicle because it was prepared by East West Bank representatives. Complainant insisted on his right of possession over the subject vehicle by virtue of the Deed of Assignment dated February 9, 2009, and the lack of notice to Suzette Recto, the registered owner of the vehicle, about the replevin case. Complainant was only appealing for more time so he could exhaust all possible and available remedies, yet, respondent answered him with "obtrusive and obtruding statements" that seriously offended him. Lastly, complainant pointed out that respondent himself admitted that he handed the key to the vehicle to East West Bank representatives and even instructed the bank representatives to immediately leave the area with the vehicle, which would lead one to believe that the vehicle was not in respondent's custody for the five-day period required by the Rules. Even the Motor Vehicle Inspection and Appraisal Report of East West Bank showed that the bank purportedly received the vehicle on December 1, 2010 only, the fifth day from implementation of the Writ of Replevin on November 26, 2010, which meant that respondent did not retain custody of the vehicle for the full five-day period.
In a Resolution dated August 31, 2011, the Court re-docketed the instant administrative complaint against respondent as a regular administrative matter and referred the same to the Executive Judge (Investigating Judge) of RTC-Pasay City, for investigation, report, and recommendation, considering the conflicting factual allegations of the parties.
In his Report and Recommendation dated January 20, 2012, Investigating Judge Edwin B. Ramizo (Ramizo) found as follows:
Evidence on record shows that Sheriff Odtuhan delivered the subject vehicle to [East West Bank] even before the lapse of the mandated five (5) day[s] period. His submission of the Motor Vehicle and Appraisal Report to East West Banking Corporation on 1 December 2010 cannot be considered as delivery of the vehicle to [East West Bank]. At most, it only shows the condition of the vehicle at the time of the taking and the belongings found therein. However, he clearly admitted that after taking possession of the subject vehicle from the driver, he immediately gave the car keys to East West Bank's representatives. No other conclusion can be derived from such admission because Odtuhan failed to produce any evidence to show that after leaving Antipolo City, he recover the car and its key from the bank's representative and thereafter took custody of it for safekeeping. Absent any evidence to the contrary, this Court cannot believe his bare allegation that the vehicle was parked in a secured area under his custody.
As to the unjustified taking of personal property belonging to Marcoleta, the allegations of Sheriff Odtuhan absent any proof to the contrary cannot be taken as evidence against him.
With respect to Sheriff Odtuhan's failure to heed Marcoleta's request for postponement of the implementation of the writ of replevin, this Court believes that by doing so, Sheriff Odtuhan comply with what is mandated to him as a Sheriff Noteworthy, Rule 60 did not allow sheriffs to use their discretion in taking possession of a vehicle subject of replevin. The same rule does not allow postponement of implementation of the writ on request of the defendant. Instead, it gives the defendant the remedy of filing a counterbond within five (5) days from the taking in order to recover the property. This should have been done by complainant Marcoleta instead of demanding the postponement of the implementation of the writ of replevin. THAICD
Accordingly, Sheriff Odtuhan's acts do not constitute grave abuse of authority. Grave abuse of authority has been defined as a misdemeanor committed by a public officer, who under color of his office, wrongfully inflicts upon any person any bodily harm, imprisonment or other injury; it is an act of cruelty, severity, or excessive use of authority. While the Court defined "misconduct" as any unlawful conduct, on the part of a person concerned in the administration of justice, prejudicial to the rights of parties or to the right determination of the cause. It generally means wrongful, improper, unlawful conduct motivated by a premeditated, obstinate or intentional purpose.
As culled from the record, Odtuhan neither excessively use his authority in implementing the writ nor inflict any harm or injury to complainant Marcoleta. At most, he can only be held liable for simple misconduct for his failure to retain possession of the replevied property for a period of five (5) days.
WHEREFORE, considering that this is the first offense of Sheriff Odtuhan, it is respectfully recommended that Sheriff Odtuhan be REPRIMANDED and be warned that any subsequent transgression shall be dealt with sternly. 4
After evaluation of Investigating Judge Ramizo's Report and Recommendation, the OCA submitted to the Court a Memorandum dated September 26, 2012. While the OCA essentially adopted Judge Ramizo's findings and conclusions, it recommended that respondent be fined in the amount of P5,000.00 for simple misconduct, with a warning that a repetition of the same or similar acts shall warrant a more severe penalty.
In accordance with the respective Manifestations of the parties, the administrative matter was submitted for resolution based on the pleadings filed.
The Court agrees with the findings and recommendation of the OCA.
In Villa v. Ayco, 5 the Court emphasized the important role of sheriffs in the administration of justice: ECaITc
The Court recognizes the fact that sheriffs play a vital role in the administration of justice. In view of their important position, their conduct should always be geared towards maintaining the prestige and integrity of the court. In Escobar Vda. de Lopez v. Luna, the Court explained that sheriffs have the obligation to perform the duties of their office honestly, faithfully and to the best of their abilities. They must always hold inviolate and revitalize the principle that a public office is a public trust. As court personnel, their conduct must be beyond reproach and free from any doubt that may infect the judiciary. They must be careful and proper in their behavior. They must use reasonable skill and diligence in performing their official duties, especially when the rights of individuals may be jeopardized by neglect. They are ranking officers of the court entrusted with a fiduciary role. They perform an important piece in the administration of justice and they are required to discharge their duties with integrity, reasonable dispatch, due care, and circumspection. Anything below the standard is unacceptable. This is because in serving the court's writs and processes and in implementing the orders of the court, sheriffs cannot afford to err without affecting the efficiency of the process of the administration of justice. Sheriffs are at the grassroots of our judicial machinery and are indispensably in close contact with litigants, hence their conduct should be geared towards maintaining the prestige and integrity of the court, for the image of a court of justice is necessarily echoed in the conduct, official or otherwise, of the people who work thereat, from the judge to the least and lowest of the ranks.
In this case, the charges against respondent arose from the manner he implemented the Writ of Replevin issued by the RTC in Civil Case No. R-PSY-10-04634 on November 11, 2010.
Rule 60 of the Rules of Court explicitly describes the duties of the sheriff in the implementation of a writ of replevin and provides well-defined steps for the proper implementation of said writ. Pertinent portions of the Rule read:
SEC. 4. Duty of the sheriff. — Upon receiving such order, the sheriff must serve a copy thereof on the adverse party, together with a copy of the application, affidavit and bond, and must forthwith take the property, if it be in the possession of the adverse party, or his agent, and retain it in his custody. If the property or any part thereof be concealed in a building or enclosure, the sheriff must demand its delivery, and if it be not delivered, he must cause the building or enclosure to be broken open and take the property into his possession. After the sheriff has taken possession of the property as herein provided, he must keep it in a secure place and shall be responsible for its delivery to the party entitled thereto upon receiving his fees and necessary expenses for taking and keeping the same. caHCSD
SEC. 5. Return of property. — If the adverse party objects to the sufficiency of the applicant's bond, or of the surety or sureties thereon, he cannot immediately require the return of the property, but if he does not so object, he may, at any time before the delivery of the property to the applicant, require the return thereof, by filing with the court where the action is pending a bond executed to the applicant, in double the value of the property as stated in the applicant's affidavit for the delivery thereof to the applicant, if such delivery be adjudged, and for the payment of such sum to him as may be recovered against the adverse party, and by serving a copy of such bond on the applicant.
SEC. 6. Disposition of property by sheriff. — If within five (5) days after the taking of the property by the sheriff, the adverse party does not object to the sufficiency of the bond, or of the surety or sureties thereon; or if the adverse party so objects and the court affirms its approval of the applicant's bond or approves a new bond, or if the adverse party requires the return of the property but his bond is objected to and found insufficient and he does not forthwith file an approved bond, the property shall be delivered to the applicant. If for any reason the property is not delivered to the applicant, the sheriff must return it to the adverse party.
SEC. 7. Proceedings where property claimed by third person. — If the property taken is claimed by any person other than the party against whom the writ of replevin had been issued or his agent, and such person makes an affidavit of his title thereto, or right to the possession thereof, stating the grounds therefor, and serves such affidavit upon the sheriff while the latter has possession of the property and a copy thereof upon the applicant, the sheriff shall not be bound to keep the property under replevin or deliver it to the applicant unless the applicant or his agent, on demand of said sheriff, shall file a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property under replevin as provided in section 2 hereof. In case of disagreement as to such value, the court shall determine the same. No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is filed within one hundred twenty (120) days from the date of the filing of the bond.
In the Writ of Replevin dated November 11, 2010 in Civil Case No. R-PSY-10-04634, the RTC again explicitly directed respondent, after taking possession of the motor vehicle described therein, "to retain the same within five (5) days in your custody and after the lapse of five (5) days to return/deliver the said motor vehicle to the plaintiff subject to the provisions of sections 5, 6 and 7 of Rule 60 of the Rules of Court."
Sheriffs are ministerial officers. Their office is to execute all writs returnable to the court, unless another is appointed, by special order of the court, for the purpose. 6 When a writ is placed in the hands of a sheriff, it is his duty, in the absence of any instructions to the contrary, to proceed with reasonable celerity and promptness to execute it according to its mandate. He is supposed to execute the order of the court strictly to the letter. 7
It is not an issue herein that respondent introduced himself to complainant and the latter's driver; served a copy of the Writ of Replevin and other court processes upon complainant's driver before taking the vehicle; and took the very same motor vehicle described in the Writ. The complainant alleged that respondent was rude and offensive in implementing the Writ and that several personal items inside the vehicle were lost. Basic is the rule that mere allegation is not evidence and is not equivalent to proof. In administrative proceedings, the complainant bears the onus of establishing, by substantial evidence, the averments of his complaint, 8 which complainant herein failed to do as far as the foregoing charges are concerned.
The Court also finds that respondent correctly turned down complainant's request for deferment of the implementation of the Writ of Replevin for a few more days so that the issue of ownership of the vehicle could be resolved. It is the duty of respondent, as sheriff, to execute the Writ according to its mandate with reasonable celerity and promptness. Respondent's prerogatives do not give him any discretion to determine who among the parties is entitled to possession of the property covered by the Writ. 9 Complainant should have availed himself of the remedy provided in either Section 6 or 7 of Rule 60 of the Rules of Court.
Nonetheless, respondent still faces administrative liability for failing to comply with the directive in the Rules of Court and the Writ of Replevin for him to keep custody of the subject vehicle for five days before returning/delivering the same to East West Bank.
Every provision in the Revised Rules of Court has a specific reason or objective. In this case, the purpose of the five days is to give a chance to the defendant to object to the sufficiency of the bond or the surety or sureties thereon or require the return of the property by filing a counterbond; 10 as well as to give the third-party claimant time to make an affidavit of his title to or right of possession of the property and to serve such affidavit upon the sheriff while the latter still has possession of the property. 11DHEcCT
As noted by both Investigating Judge Ramizo and the OCA, respondent himself admitted that right after taking possession of the vehicle from complainant's driver, respondent gave the key to the vehicle to the East West Bank representatives, even instructing the said bank representatives to already drive away with the vehicle. Since this is already a deviation from the mandate of the Rules of Court and the Writ of Replevin, as well as standard practices of sheriffs, respondent can no longer rely on the presumption of regularity in the performance of official duty. Respondent did not present any evidence that he subsequently took back possession of the vehicle from East West Bank representatives. He failed to provide details as to when and how the vehicle was returned to his custody.
But even granting that respondent had again taken custody of the vehicle from East West Bank representatives later on in the same day, November 26, 2010, the Motor Vehicle Inspection and Appraisal Report, prepared by the Collections Division of the East West Bank Head Office, showed that the vehicle was already in the possession of the bank on December 1, 2010, just five days after it was replevied. This would mean that respondent already delivered the vehicle to East West Bank a day before the lapse of his mandated five-day period of custody.
Misconduct generally means wrongful, unlawful conduct, motivated by a premeditated, obstinate or intentional purpose. Thus, any transgression or deviation from the established norm, whether it be work-related or not, amounts to misconduct. 12 For grave misconduct to exist, there must be substantial evidence showing that the acts complained of were corrupt or inspired by an intention to violate the law or were in persistent disregard of well-known legal rules. 13 It does not appear to the Court that respondent's actuations herein were motivated by any of these. Thus, in prematurely giving possession of the vehicle to East West Bank representatives, respondent is guilty of simple misconduct.
Simple misconduct is punishable under Section 52 (B) (2) of the Revised Uniform Rules on Administrative Cases in the Civil Service with suspension for one (1) month and one (1) day to six (6) months. However, taking into consideration the mitigating circumstances that respondent has been in the service of the judiciary for 17 years and this is his first offense, the Court deems that a fine amounting to Five Thousand Pesos (P5,000.00) is already sufficient penalty.
WHEREFORE, in view of the foregoing, the Court finds respondent Reynaldo Odtuhan, Sheriff IV of RTC, Branch 108 of Pasay City, GUILTY of simple misconduct and imposes upon him a FINE of Five Thousand Pesos (P5,000.00).
SO ORDERED."
Very truly yours,
(SGD.) EDGAR O. ARICHETADivision Clerk of Court
Footnotes
1. Rollo, p. 7.
2. Id. at 1-3.
3. Id. at 13-15.
4. Id. at 119-120.
5. A.M. No. RTJ-11-2284, July 13, 2011, 653 SCRA 701, 710-712.
6. Torres v. Cabesuela, 418 Phil. 445, 450 (2001).
7. National Bureau of Investigation v. Tuliao, 337 Phil. 80, 87 (1997).
8. Sasing v. Gelbolingo, A.M. No. P-12-3032, February 20, 2013, 691 SCRA 241, 248.
9. National Bureau of Investigation v. Tuliao, supra note 7.
10. Pardo v. Velasco, A.M. No. P-90-408, August 7, 1992, 212 SCRA 323, 328-329.
11. Rules of Court, Rule 60, Section 7.
12. Hernando v. Bengson, A.M. No. P-09-2686, March 10, 2010, 615 SCRA 7, 11.
13. Frani v. Pagayatan, 416 Phil. 205, 211 (2001).