Republic of the Philippines
SUPREME COURT
Manila

EN BANC

A.M. No. P-312 August 3, 1977

LUMEN POLICARPIO, complainant,
vs.
ELY B. FAJARDO, respondent.


BARREDO, J.:

Administrative complaint dated March 19, 1973 duly sworn to and filed by Atty. Lumen Policarpio against Ely B. Fajardo, Deputy Sheriff of the Court of First Instance of Rizal, for grave misconduct and abuse of authority. The complaint was filed with the Honorable Secretary of Justice. It was endorsed to Her Honor, Judge Carolina Griń;o-Aquino of the Court of First Instance of Rizal on March 27, 1973 for investigation, report and recommendation.

Incidentally, according to the record, on March 23, 1973, the Philippine Constabulary Metropolitan Command (Metrocom) submitted to the Department of Justice the following record of investigation which more or less embodies the nature of the specific charges against respondent:

Transmitted herewith is a record of investigation concerning the complaint of one, Attorney Lumen Policarpio, against Ely Fajardo, Deputy Sheriff of the Provincial Sheriff of the Province of Rizal for abuse in authority and robbery for appropriate action.

'BRIEF FACTS OF CASE:

Deputy Sheriff, Ely Fajardo, of the office of the Prov'l Sheriff of Rizal was appointed by the Manila City Court, Br. V as Special Sheriff to execute a Writ of Execution against the complainant herein, Atty. Lumen Policarpio in case No. 202468 where the complainant was found to be obligated in the sum of P5,927.70 to the Socio Economic Corporation.

On or abt 070830H Feb. 73, said Sheriff in company of Pat Angelito Estrellado and Antonio Arbolante both of the MMP and several other person entered the Policarpio's Draperies and Textile Store and confiscated the following articles:

Nine (9) Rolls Assorted Color (Draperies)
Nine (9) Rolls Assorted Color (Curtains)
Eight (8) Rolls Assorted Color (Draperies)
Nine (9) Roils Assorted Color (Draperies)
Nine (9) Rolls Assorted Color (Floor Mats)
Nine (9) Rolls Assorted Color (Floor Mats)
Nine (9) Rolls Assorted Color (Curtains)
Thirty (30) Rolls Assorted Color
(Curtains in Plastic Bags)
Forty (40) Bundles Draperies of
Assorted Colors
Twenty Seven (27) Bundles Curtains
(In Plastic Bags Plain & Tinted)
One Hundred Three (103) Bundles
Assorted Printed Draperies
Thirty Six (36) Bundles of Draperies
Assorted Colors
Twenty Five (25) Bundles Draperies
of Assorted Colors
Twenty (20) Bundles Draperies Assorted
Colors
Two (2) Bundles Draperies White Color.

During the execution of the writ, the complainant and Mrs. Leonila Policarpio, registered owner of said store located at 1701 Soler St., Cruz, Manila were absent. Miss Victoria Loyola, Secretary of Atty. Policarpio who was present during the raid, alleged that over her objection, the said Deputy Sheriff and companions ransacked the establishment, loaded the confiscated articles in a waiting truck, car and taxi. The confiscated items were deposited by said Sheriff at the bodega of the Socio Economic Corporation at Republic Supermarket Bldg., Soler St., corner Rizal Avenue. A sales boy of said establishment who was also present alleged that besides these articles seized, the Sheriff took also one (1) portable radio stereo worth P500 owned by her employer, Baby Policarpio.

The complainant herein, Atty. Policarpio claimed that the total amount of the articles seized by the Sheriff is worth P800,000.00. She charged that the acts of the Sheriff was abusive amounting to robbery as the properties confiscated were more than enough to pay the debt of P5,927.70. Hence, this charge of robbery.

We are fully aware that appointments of Special Sheriffs by inferior courts are abhorred This is enunciated in the case of the Commissioner of Public Highways and Auditor General versus Honorable Judge Lourdes P. San Diego G.R. L-30098 promulgated 18 February 1970. Moreover, subject Sheriff did not deliver the confiscated articles to a bonded warehouse or to the court which issued the Writ of Execution. (pp. 6-8, Record.)

On being required to answer, respondent filed, thru counsel, on April 16, 1973 an unverified answer denying the material allegations of the complaint and claiming that he acted in accordance with law in performing his duties as the designated special sheriff to carry out the execution ordered by the City Court of Manila in Civil Case No. 202468 against Atty. Lumen Policarpio. In other words, respondent, being deputy sheriff of the Court of First Instance of Rizal, undertook the service of the writ of execution of the City Court of Manila under a designation as special sheriff.

After due investigation, on September 26, 1974, the Honorable Judge Carolina Griń;o-Aquino submitted the following report to this Court, the supervision of all personnel of lower courts having been transferred thereto:

Respectfully returned to the Supreme Court, thru the Judicial Consultant, with the following report on the investigation of the administrative complaint filed by Atty. Lumen Policarpio, in behalf of her sister Leonila Policarpio, against Rizal Deputy Sheriff Ely B. Fajardo for excessive and oppressive enforcement of a writ of execution:

On September 26, I3 Asian Surety & Insurance Company, Inc., Modesta Policarpio, Simeon Policarpio, and Lumen R. Policarpio, of 256 Naval Street, Navotas, Rizal, signed in favor of the Socio-Economic Financing Corporation a joint and several promissory note for P2,500 payable within sixty (60) days, with 1% interest per month (Exh. B).

On May 19, 1971, or eight (8) years later, the creditor sued Modesta Policarpio and Lumen R. Policarpio in the City of Manila, the venue stipulated in the note, for recovery of the debt. The address of the defendants, as indicated in the complaint, was 256 Naval Street, Navotas Rizal, the same address which was used in the promissory note (Exh. Q The case was entitled "Socio Economic Corporation vs. Lumen Policarpio and Modesta Policarpio." It was docketed as Civil Case No. 202468 in Branch V of the Manila City Court.

Modesta Policarpio did not contest the action. Atty. Lumen Policarpio opposed it on the ground that her signature in the promissory note (Exh. B) was allegedly "not genuine." However, despite the findings of the handwriting expert of the National Bureau of Investigation upholding Atty. Policarpio's defense (Exhs. C and C1), it was rejected by the court. On April 3, 1972, Judge Cornejo rendered a decision ordering Atty. Policarpio and her mother Modesto Policarpio 'to pay the plaintiff (Socio-Economic Financing Corporation) jointly and severally the sum of P2,500 plus interest thereon at the rate of 1% per month from September 26, 1963 until fully paid; P400 as and for attorney's fees, plus costs (Exh. 2).

On February 5, 1973, Judge Pabalate, (the successor of Judge Cornejo) issued a writ of execution (Exh. A or 5). It was entrusted for enforcement to Ely B. Fajardo, a deputy sheriff of Rizal, at the instance of the judgment creditor. Although, as previously stated, the debtor's address appearing in the complaint was 256 Naval Street, Navotas, Rizal, their address in the writ of execution was 1701 Zurbaran Street, Sta. Cruz, Manila (Exh. A, p. 41 Rec.).lwphl@itç

On February 7, 1973, at nine o'clock in the morning, respondent Deputy Sheriff Fajardo, accompanied by two Manila policemen (Patrolman Arbolante and Estrellado) and by the judgment creditor's lawyers, Attys. Francisco Brillantes and Magno Dajao, a lady employee of the Socio-Economic Financing Corporation, and about ten (10) laborers, arrived at 1701 Zurbaran Sta. Cruz, Manila. They brought along a truck, a taxicab, and a car.

The ground floor of 1701 Zurbaran Street, which is near Manila's Central Market, is occupied by Policarpio's Draperies (Exh. M6 an establishment which belongs to Leonila Policarpio, a younger sister of Atty. Policarpio. "Policarpio's Draperies" has been the registered business name of Leonila Policarpio since 1962 (Exhs. 0, 0-1, 0-3 and 0-4). She owns and manages that store. She possesses a license, mayor's permit, health certificate and SSS membership certificate, as owner of the store (Exhs. E, E-1 and E-2, Q-2, 0-5, R to R-4, S to S-4, T to T-4, U to U-7, V to V3 and W.

On the mezzanine of the same building is located the law office of her sister, Atty. Lumen Policarpio.

The inventory of the merchandise in the store on December 31, 1972 (less than two months before the levy shows that it contained stocks-in-trade worth P1,197,963.00 (Exh. D).

When Fajardo and his companions arrived at 1701 Zurbaran Street, two sales boys, Alberto Hipolito and a certain Leonardo, were in the store. Hipolito summoned Victoria Loyola, the secretary of Atty. Policarpio, to attend to the sheriff. Fajardo inquired about the office of Atty. Policarpio. Victoria indicated the mezzanine. Fajardo did not go up to the office. He asked for Atty. Policarpio. He was told that she was attending a court hearing in Pasig, Rizal. He also asked for the owner of the store. He was told that Leonila Policarpio was in Hagonoy, Bulacan, to find out a customer's requirements for draperies. Fajardo showed the writ of execution (Exh. A) to Victoria. Not knowing what the paper meant, Victoria asked him to wait for Atty. Policarpio or for Leonila, the owner of the store. Fajardo did not care to wait. He ordered the laborers to haul away the contents of the store. Victoria repeatedly apprised him that the store belonged to Leonila Policarpio but Fajardo paid no attention to her. Three hundred forty-five (345) bolts and bundles of drapery materials were seized and loaded in the truck, a taxicab, and a car.

Victoria Loyola, in her statement to the Manila Metropolitan Police, described the incident in this manner:

Kanina po samantalang akoy nasa opisina ni Atty. Lumen Policarpio na kung saan ako naglilingkod bilang isang sekretaria, ay tinawag ako ng salesboy ni Leonila Policarpio na si Alberto Hipolito, at sinabi niya sa akin na may mga taong humahanap kay Atty. Lumen Policarpio. Kinausap ko sila kung ano ang kanilang kailangan. Sinabi nila sa akin kung nasaan si Attorney.

Nang sabihin ko sa kanila na wala si Attorney ay sinabi nila na contakin ko iyon. Tinawag ko si Atty. pero hindi ko siya nakontak. Ang ginawa po nila ay si Leonila ang kanilang hinanap at nang sabihin wala rin siya at nagtuturo, ay hindi na sila kumibo. Ang ginawa ko ay tinanong ko sila kung sino sila at ano and kanilang kailangan. Sinabi po nang isa na siyay si ELY FAJARDO, isang Special Sheriff ng Rizal Province at sinabi niyang siya ay naroron dahil sa siyay ang peperform ng levy sa pagaari ni Atty. Policarpio. At ipinakita niya and isang kopya ng execution na noon lang ng oras na iyon ibinigay at noon ko lang nakita.

I plead to them not to make action yet because I have to wait for Attorney Policarpio or the owner of the Policarpio's Draperies, Leonila Policarpio because I have no discretion over the merchandise or whatever is inside the store. But despite may plea they proceeded to perform the said levy. Once more I billed to them not to take out any of the merchandise from the premises because those merchandise do not belong to Atty. Policarpio.

One of them asked me about the address of Atty. Policarpio and I told them it is located on the mezzanine floor and for the second time told that the goods do not belong to Attorney Policarpio. Pero hindi nila ako inintindi at ginawa nila ay hinakot na nila ang mga paninda sa isang truck, isang taxi at isang kotse. Wala po akong magawa. Hindi po nagtagal ay dumating si Alfredo Clemente at sinabi ko sa kanya ang nangyari. Ang ginawa niya ay pinakiusapan din niya and sheriff at sinabing hindi sa inaalisan kayo ng autorization bilang sheriff pero hintayin niyo ang may-ari ng tindahan. Pero hindi rin siya inintindi tuloy din ang kanilang paghahakot sa mga paninda. Pagkatapos po noon ay umalis na sila. (Exh. 4, p. 125 Rec.).lwphl@itç

Fajardo listed in the receipt the properties levied on by him as follows:

1 unit sewing machine "General"
1 unit sewing machine "Regal"
1 unit refrigerator "Consul"
9 rolls assorted color curtains
9 rolls assorted color draperies
8 rolls assorted color draperies
9 rolls assorted color draperies
9 rolls assorted color floor mats
9 rolls assorted color curtains
30 rolls assorted color curtains in plastic bags
27 bundles curtains in plastic bags
103 bundles assorted printed draperies
36 bundles draperies of assorted colors
40 bundles draperies of assorted colors
25 bundles draperies of assorted colors
20 bundles draperies of assorted colors
2 bundles draperies white color

Fajardo did not determine the yardage in the rolls and bundles of cloth that he levied on.

After loading 345 rolls and bundles in the vehicles and finding no more room in the truck for the refrigerator and two sewing machines, Fajardo decided to leave those appliances behind. He canceled them from the receipt (Exh. H) which he signed and delivered to Albert Hipolito.

Fajardo took the goods to the Republic Supermarket where he delivered them to William Li Yao, president of the Socio-Economic Financing Corporation. They were deposited in the bodega of the Republic Supermarket.

When Leonila Policarpio arrived at her store at noon of the same day she was dismayed to find out that her store had been stripped of its contents (Exhs. N N-1 to N8 She went to the office of Li Yao at the Republic Supermarket and protested against the seizure of her goods because she was in no way involved in the case he had filed against Atty. Lumen Policarpio and Modesta Policarpio. He refused to return the merchandise to her. She was simply told to file a third-party- claim. She did so on the same day, February 7, 1973 (Exh. G).

In connection with Leonila's third-party claim, Judge Pabalate appointed on March 7, 1973 a committee composed of his branch clerk of court and a representative each from Rustan and the House of Decor, to ascertain the value of the goods seized from Leonila's store (Exh. J-1). Rustan estimated that two-thirds (2/3) of the goods were imported drapery materials worth not less than P76,375 (Exh. J Rustan could not determine the value of the local drapery materials because it does not deal in them (Exh. J).

The House of Decor, which examined the goods on March 17, 1973, measured 9,044 yards of drapery materials, and estimated them to be worth P74,350 (Exh. K), except 295 years of Thai silk which it did not price.

On February 7, 1973, Fajardo sent to Leonila Policarpio a notice that the levied goods would be sold at public auction on February 17, 1973, at ten o'clock in the morning, on the ground floor of the Republic Supermarket (Exh. F). No copy of the notice was sent to the judgment debtors, Modesta Policarpio and Atty. Lumen Policarpio. However, the sale did not proceed because Atty. Policarpio filed in the Manila Court of First Instance a petition for relief from the decision of Judge Cornejo (Civil Case No. 89864). Judge, now Justice, Conrado Vasquez granted her prayer for a writ of preliminary injunction to stop the sheriff's sale.

Leonila Policarpio also filed an action for replevin against Fajardo, the Socio-Economic Financing Corporation, and William Li Yao in the Manila City Court (Civil Case No. 220431) (Exh. 1). However, she withdrew it on August 3, 1973 and refiled it in the Manila Court of First Instance (Civil Case No. 90667).

Upon her posting a P200,000 replevin bond Judge (now Court of Appeals Justice) Ameurfina Herrera issued a writ of replevin in Civil Case No. 90667 ordering the delivery to her of the goods seized from her store by Fajardo.

On May 18, 1973, the representative of the Sheriff of Manila seized the goods from Fajardo and the Socio-Economic Financing Corporation (Exh. 11). By actual measurement, made in the presence of the Sheriff and the representatives of Rustan and the House of Decor, the Deputy Sheriff of Manila delivered to Leonila Policarpio on .4,604 yards of assorted drapery materials which he had received from Li Yao and Fajardo (Exhs. P to P-14).

Findings. — After a careful examination of the evidence, the court finds respondent Deputy Sheriff Ely B. Fajardo GUILTY of gross misconduct and grave abuse of authority in the performance of his duties as special sheriff in civil Case No. 202468.

Contrary to the practice of the sheriffs, he did not give the judgment debtors a chance to pay first the amount of the judgment. He made the levy in the absence of the owner of the goods levied upon.

His levy on the contents of Leonila Policarpio's store was not only improvident and reckless, since Leonila Policarpio was not a party in Civil Case No. 202468, but was malicious, hasty and oppressive. The fact that the address of the judgment debtors (Modesta Policarpio and Lumen Policarpio) in the writ of execution was the same as the address of Leonila's store, did not justify Fajardo's levy on the contents of Leonila Policarpio store. He was repeatedly informed by Victoria Loyola that the store belonged to Leonila Policarpio and not to the judgment debtor Lumen Policarpio, He could have verified the fact from Leonila. He cannot, therefore, pretend innocence in levying on the property of Leonila. Fajardo was directed to go to Atty. Lumen Policarpio's law office on the mezzanine of the building but he did not bother to wait for Atty. Policarpio. He vas inordinately impatient and overly eager to lay his hands on the merchandise in Leonila Policarpio's store. His precipitate and imprudent course of conduct was absolutely inexcusable.

Fajardo's levy on all the contents of Leonila's store worth no less than P75,000, including a refrigerator and two sewing machines, to satisfy a picayune judgment of P3,000 in favor of the Socio-Economic Financing Corporation, was excessive and constituted an abusive enforcement of the writ of execution.

Fajardo's pretense that he had no Idea of the prices of drapery materials, was no excuse for the wantonness of his levy. He should have looked at the price tags on the goods or, he could have asked the salesboys. He could have limited his levy to the appliances, i.e. the refrigerator, sewing machines and office equipment with which he was familiar after satisfying himself that they belonged to the judgment debtors.

His receipt for the textiles was inaccurate because he listed only the number of rolls and bundles which he took, without specifying the yardage in each. Because of that omission or ambiguity in the receipt, he allowed anyone who had access to the attached goods, the opportunity to fraudulently take any number of yards from each roll or bundle, with none the wiser except the owner Leonila Policarpio who claims that considerable damage were missing from the rolls and bundles that the Manila Sheriff recovered from Fajardo and Li Yao pursuant to the writ of replevin in Civil Case No. 90667.

Leonila Policarpio produced a beautiful panel of "concerto" satinized brocade drapery material costing P150 per panel of 3-1/2 yards length per panel. She had contracted to install that kind of drapery in the house of Mrs. Cristina Aguinaldo Suntay in Hagonoy, Bulacan. A roll of that expensive material, containing 24 panels (85) yards was taken b Fajardo from her store. When it was returned to her only, one panel remained in the roll.

Leonila Policarpio's complaint that a large quantity of material had been from the rolls and bundles while they were in the custody Fajardo and Li Yao, is confirmed b the enormous discrepancy between the yardage (9,044 yards) measured on March 17, 1973 the House of Decor (Exh. K) and the yardage (4,605 yards) delivered Leonila on May 18, 1973 by the Manila Sheriff (Exhs. P to P-14, Some 4,439 and disappeared within a space of the months while the goods ere in the custody of Li Yao and Fajardo.

Fajardo's delivery of the goods to Li Yao, instead of keeping then in the sheriff's bodega, was irregular and improper. It demonstrated his complete and absolute subordination of himself' to Li Yao. He behaved like a minion of Li Yao instead of as an officer of the Court. He is unworthy to continue as a deputy sheriff.

Recommendation. — WHEREFORE, the immediate dismissal of respondent Ely B. Fajardo from the office of deputy sheriff of Rizal is recommended.

We have carefully considered the foregoing report in the light of the recorded evidence submitted therewith and We are fully convinced that the conclusions of Her Honor, the Investigator, are fully supported by the evidence. The recommendation of the Investigator for the immediate dismissal of respondent from the service is more than amply justified, and indeed respondent's separation from the ranks of judicial employees is overdue.

Anyone who goes over the record of this case cannot escape the conclusion that respondent acted with gross inefficiency, grave abuse of authority and total disregard to the requirements of fairness, not to speak of the elementary rules governing the implementation of judicial or court processes of the nature herein involved.

No reason or explanation whatsoever has been given as to why respondent insisted on immediately proceeding with the levy on the goods in question even after he was informed that the drapery store does not belong to the defendant named in the writ of execution. The evidence that the said store belongs. to Leonila Policarpio and not to complainant Atty. Lumen Policarpio, the defendant in the case, is well nigh conclusive, and respondent has not shown any basis for his assertion otherwise. The least that he should have done was to wait for either Leonila Policarpio or Atty. Lumen Policarpio, as requested by those who were in the store. Under the circumstances, with him already there in the premises, there was no danger of any of the goods being carted away before the appearance of either of those ladies. There was no real urgency that the levy be made then and there.

The manner in which respondent conducted the levy leaves no room for doubt about his bad faith, He made no effort to limit the goods to be levied to the amount called for in the writ, assuming he could make the levy without making a formal demand for payment, which, of course, he could not have done because he refused to wait for Atty. Policarpio, who, considering she was a practicing lawyer with a law office, which he was invited to see, should not have been summarily presumed to be without resources to cover the amount of P5,927.70 which was supposed to be recovered under the judgment of the court. In any event, any person with ordinary sense of values of merchandise and dry goods, and We refuse to believe respondent was entirely devoid of the experience to more or less have Ideas in this respect, could have known that the rolls and rolls, more than 250, of curtains, draperies and door mats, excluding the 30 rolls and 57 bundles contained in plastic bags, practically the whole inventory of the store of Leonila Policarpio, were valued much more than P6,000. Actually, as assessed by reputable entities engaged in the same business, the imported materials alone were worth at least P74,000. Indeed, he must have known he was taking more than was needed, for, according to the finding of Her Honor, he readily left the refrigerator and sewing machines he had already listed when he found there was not enough space for them in the conveyances they had brought along, a truck, a taxicab and a car, which together with the fact that two lawyers, Attys. Francisco Brillantes and Magno Dajao the lady employee of the Socio-Economic Financing Corporation and about ten (10) laborers who accompanied respondent readily suggests that it was really the intention of respondent and his companions to take as much as they could in implementing the writ in their possession.

We agree with the Investigator that respondent's "levy on the contents of Leonila Policarpio's store was not only improvident and reckless — but was malicious, hasty and oppressive apart from being "excessive and an abusive enforcement of (a) writ of execution." We agree also that "Fajardo's delivery of the goods to Li Yao, instead of keeping them in sheriff's bodega, was irregular and improper. It demonstrated his complete and absolute subordination of himself to Li Yao. He behaved like a minion of Li Yao instead of as an officer of the court."

In one word, respondent's conduct in implementing and enforcing the writ of execution in his hands was completely wrong. Everything he did was precisely what a sheriff should not do.

We cannot conclude this decision without reiterating emphatically Our admonition to all judges that "the general practice of the lower courts of appointing 'special sheriffs' (is) unauthorized by law" except "when the sheriff is party to any action or proceeding or is otherwise incompetent to serve process therein" and "when the office of sheriff is vacant" (Commissioner of Public Highways vs. San Diego, 31 SCRA 616).

Furthermore, We feel that for the good of the profession and in the interest of Justice, it is best that the actuation's and participation of Attorneys Francisco Brillantes and Magno Dajao in the incident here in question be inquired into with a view to ascertaining whether or not administrative action may be taken against them as members of the bar for having in any manner helped, assisted or advised respondent in acting as he did.

WHEREFORE, it is hereby ordered that respondent Ely Fajardo, deputy sheriff of the Court of First Instance of Rizal, be immediately dismissed from the service with forfeiture of all benefits otherwise due him. The Solicitor General is directed to conduct the necessary investigation of Attorneys Francisco Brillantes and Magno Dajao as above indicated.

Castro, C.J., Fernando, Teehankee, Makasiar, Antonio, Muń;oz, Palma, Concepcion, Jr., Martin, Santos, Fernandez and concur.

Aquino, J., took no part.


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