607 Phil. 28
Nowhere could be gleaned from the said order that Respondent Sheriff, Costelo, Jr. was authorized to conduct public auction sale of the property on execution. Neither was there any evidence presented that the Sheriff of MTCC, Branch 2, Cebu City has delegated such authority to Sheriff Costelo, Jr., to conduct a public auction sale of the property on execution. The Respondent Sheriff could have exercised prudence and restraint in the performance of his duty. Instead of conducting [a] public auction sale of the property on execution, he could have filed his return of the property levied, to the MTCC, Branch 2, Cebu City for its sheriff to conduct the public auction sale, pursuant to the provision of the 2nd paragraph of Sec.  Rule 39, 1997 Rules of Civil Procedure. Blinded by the expectation of sheriff's fees, the respondent sheriff had forgotten his bounden duties and responsibilities as employee of the judiciary that public office is a public trust.On March 22, 2007, respondent filed with the RTC of Carigara, Leyte, a Motion for Reconsideration of the Report and Recommendation of Judge Garrido; and on June 1, 2007, an Omnibus Supplemental Motion for Reconsideration/Motion to Re-Open the Case and to Inhibit the Investigating Judge. He claimed that the penalty of dismissal from service was too harsh, considering the circumstances of the case, and submitted the following to support his motion: (1) affidavit of Roberto dela Peña recanting his earlier affidavit and testimony that his signature in the Certificate of Sale was falsified; (2) Daily Time Records of the court employees of the RTC, Branch 11, Calubian, Leyte, showing perfect attendance and no late days for the month of November 2001, except for Utility Worker Elpidio Gudmalin, who filed a leave of absence from November 13 to 15, 2001; (3) photocopy of the Order dated November 8, 2001 of the Investigating Judge during the hearing in Sp. Proc. No. 714, to prove that the Investigating Judge himself conducted a hearing on November 8, 2001; and (4) PNP Leyte Crime Laboratory Report dated June 7, 2007, stating that the signature of Roberto dela Peña appearing on the duplicate copy of the Sheriff's Certificate of Sale and his signature duly submitted belonged to one and the same person.
The Certificate of Sale, Minutes of Auction Sale dated November 8, 2001, are fictitious, fabricated and spurious documents, mere concoction of facts to give a semblance of legality to the illegal acts of Sheriff Costelo, Jr. This evaluation finds support from the Certification issued by the Cebu PAGASA and the Philippine Coast Guard, Cebu Station, Cebu City, viz:Evidence admissible when original document is a public record. When the original of a document is in the custody of a public officer or is recorded in a public office, its contents may be proved by a certified copy issued by the public officer in custody thereof. (emphasis theirs)
CERTIFICATION - Cebu PAGASA
On November 6, 7 & 8, 2001, Storm Signal No. 2, with heavy rains of gusty winds of 54 to 65 kilometers per hour were raised over the entire provinces of Cebu, Samar, Leyte, Dinagat Island, Bohol, Masbate and Panay Island, with rough to very rough seas, with wave height of 3 to 5 meters.
CERTIFICATION - Philippine Coast Guard
On these three days that the typhoon battered these islands in the Visayas, no vessels of 2000 gross tonnage and less were given clearance to leave Cebu for Leyte, Samar and other Visayan islands.
Obviously, it was impossible for the judgment creditor Doris Sunbanon to be present in Leyte on November 6, 7 & 8, 2001, moreso, in Calubian, Leyte attending a public auction sale on November 8, 2001 at the Office of the Regional Trial Court, Branch 11, Calubian, Leyte, when all water and air transportation facilities in Cebu were not given any clearance to leave for Leyte and the other Visayan islands. Experience had taught us that when PAGASA raises typhoon signal No. 2 over the provinces affected, school classes and offices, both public and private, are automatically suspended.
Judgment Creditor Doris U. Sunbanon was not presented in Court during the hearing of this case, to corroborate the allegation of Respondent Sheriff that she was present during the auction sale of the real property on execution on November 8, 2001 in Calubian, Leyte, nor in the days prior thereto. There was no evidence presented that indeed, Doris U. Sunbanon was in Leyte on the aforesaid dates. Not even hotel bills, receipts of her stay in Leyte or marine vessel or airplane tickets were presented for her return trip to Cebu City from Leyte, after the November 8, 2001 alleged auction sale, indicia of her absence in the public auction sale of the real property on execution on November 8, 2001.
Neither any of the Court personnel of RTC Branch 11, Calubian, Leyte, who were allegedly present and had signed the logbook on November 8, 2001 was presented in Court, to corroborate the testimony of Sheriff Costelo, Jr., that indeed, they were holding office on November 8, 2001, despite typhoon signal no. 2 in the provinces of Samar and Leyte, indicative that the logbook allegedly signed by [the] Court employees is spurious and of doubtful authenticity, unavailing and undeserving credit for it can be easily accomplished to serve one's ulterior motive.
The validity, genuineness, authenticity and due execution of the Certificate of Sale issued by Respondent Sheriff Costelo, Jr., dated November 8, 2001, was put in issue when Notary Public Roberto Dela Peña of Calubian, Leyte, who allegedly notarized the Certificate of Sale on November 8, 2001 was put to the witness stand. Roberto Dela Peña denied that he notarized the alluded Certificate of Sale and that his signature appearing on the acknowledgment portion of the said document is fake, a product of falsification and forgery. The entries denominated as Document 161, Page 37, Book 3, Series of 2000, appearing on the Certificate of Sale were forged, falsified and fictitious entries.
Document No. 161, Page No. 37, Book 3, Series of 2000 as entered in the Notarial Register of Notary Public Roberto Dela Peña refers to a document denominated as Cancellation and Discharge of Mortgage, executed by and between Spouses Fileo and Angeles Arias, and Baruel Rimandaman, Leonila B. Pepito and Alfredo Lagora, and not the Certificate of Sale issued by the respondent sheriff.
Court's observation and examination of the said entries on page 37 of the Notarial Register of Roberto Dela Peña, appears to be genuine and authentic, without any erasure or alteration, written in freehand writing and in chronological order of events, written in the middle portion of page 37 of the notarial registry, indicative that the document entered thereto is the true act of the notary public in recording his transaction for the day, pursuant to his oath of office.
There is credence to the testimony of Roberto Dela Peña that the Certificate of Sale issued by the respondent sheriff, was fictitious, falsified and a product of forgery. Moreover, Roberto Dela Peña, being 70 years old and in the twilight of his life, testified clearly and in a straightforward manner, relative to the entries on page 37 of his Notarial Register. Other infirmities in the other pages in his Notarial Register could only be attributed to old age.
Sheriff Margarito Costelo, Jr. having acted without [any] authority to conduct a public auction sale of the real property on execution, the public auction sale is illegal, invalid and void ab initio. Under the rules, supra, the public auction sale of the real property on execution shall only be conducted at the office of the Clerk of Court, MTCC, Branch 2, Cebu City, the Court which issued the Writ of Execution.
Judiciary officers must, at all times, be accountable to the people. They serve with utmost degree of integrity, responsibility, loyalty and efficiency in their duties. In the case at bar, respondent sheriff, Margarito Costelo, Jr. has [been] remiss of his duties and must account to the people who repose their trust on him. Such grave misconduct committed by the respondent sheriff, deserves the highest degree of sanctions. The respondent sheriff is a disgrace to the Judiciary.
WHEREFORE, premises considered, it is most respectfully recommended:
- That the public auction sale of real property on execution be declared Null and Void;
- That respondent MARGARITO COSTELO, JR., be dismissed from the service for Grave Misconduct, Dishonesty and unfit of a judicial officer (sic), with forfeiture of all benefits, except leave credits, if any, with prejudice for re-employment in the government or any agency and instrumentality thereof, including government-owned and controlled corporations.
We find no reason to disturb the findings of Judge Crisostomo Garrido. During the course of the investigation, the Investigating Judge saw the demeanor of the witnesses and he personally knows the conditions prevailing in the area during the time that there was allegedly a typhoon. Respondent had the opportunity to present transcripts of court hearing, if any, on November 8, 2001. The belated submission of the joint affidavit of his co-employees after learning that he would be dismissed from the service can be taken as a mere act of saving respondent from the recommended penalty of dismissal.The Court agrees with the recommendation of the OCA affirming the findings of Judge Garrido.
We are inclined to believe that the Daily Time Records submitted [for] the month of November 2001 did not reflect the true attendance of court employees. It would seem improbable that in a coastal town like Calubian, all the employees would register a perfect attendance with no late despite hoisting of Storm Signal No. 2 in the province for 3 days. As convincingly observed by the Investigating Judge, not one among the court personnel who were allegedly present on November 8, 2001 testified during the investigation "indicative that the logbook signed by the court employees is spurious and of doubtful authenticity x x x."
As to the affidavit of Notary Public Roberto Dela Peña recanting his earlier testimony, the same hardly deserves credence. The Court has invariably regarded affidavits of recantation as highly unreliable. As held in People vs. Rojo (114 SCRA 304), an affidavit of retraction which indicates it [to] be a mere afterthought has no probative value.
As to the PN[P] Crime Laboratory Report yielding a same signature result, it must be noted that Roberto Dela Peña gave a specimen of his signature only on 31 May 2007, after he has executed his affidavit recanting his earlier testimony.
The rest of the alleged newly discovered evidence are obtainable at the time the investigation was conducted. For an evidence to be considered "newly discovered," it could not have been discovered prior to the trial by the exercise of due diligence.
In view of the foregoing, it is respectfully recommended that the instant case be redocketed as a regular administrative case and that, as submitted by the Investigating Judge, respondent Sheriff Margarito A. Costelo, Jr. be DISMISSED FROM THE SERVICE effective immediately with forfeiture of all benefits except his accrued leave credits with prejudice to reemployment in any branch or instrumentality of the government, including government-owned or controlled corporations.
Even assuming that respondent was given the authority to hold an auction sale, the complainant was able to establish during the investigation that the former did not actually conduct a public auction sale of the property on execution, in violation of paragraphs (c) and (d) of Section 15, Rule 39 of the Rules of Civil Procedure, quoted as follows:
Acting on the Amended Motion filed by plaintiff-movant for being well-taken and meritorious, the same is hereby granted.
The deficiency judgment in the amount of P143,294.39 is supported by the sheriff's return of the Writ of Execution already attached to the expediente of the case.
WHEREFORE, the Deputy Sheriff of this Court (Court) or the Deputy Sheriff of the Regional Trial Court of Calubian, Leyte is hereby authorized to levy on the property of the defendants situated in Calubian, Leyte for the full satisfaction of the deficiency judgment up to the extent of the sum of P143,294.39 exclusive of costs.
Sec. 15. Notice of Sale of Property on Execution. - Before the sale of property on execution, notice thereof must be given as follows:The fact that a public auction sale could not have possibly taken place on November 8, 2001 is corroborated by the Certifications of Cebu PAGASA and the Philippine Coast Guard that there was a typhoon on the date of sale. Moreover, no evidence was presented in court to prove that Sunbanon was at the auction sale. Neither did any of the court personnel of the RTC, Branch 11, Calubian, Leyte, testify that they held office during the storm on November 8, 2001.
x x x x
(c) In case of real property, by posting for twenty (20) days in the three (3) public places abovementioned, a similar notice particularly describing the property and stating where the property is to be sold, and if the assessed value of the property exceeds fifty thousand (P50,000.00) pesos, by publishing a copy of the notice once a week for two (2) consecutive weeks in one newspaper selected by raffle, whether in English, Filipino, or any major regional language published, edited and circulated or, in the absence thereof, having general circulation in the province or city;
(d) In all cases, written notice of the sale shall be given to the judgment obligor, at least three (3) days before the sale, except as provided in paragraph (a) hereof where notice shall be given at any time before the sale, in the same manner as personal service of pleadings and other papers as provided by section 6 of Rule 13.
The notice shall specify the place, date and exact time of the sale which should not be earlier than nine o'clock in the morning and not later than two o'clock in the afternoon. The place of the sale may be agreed upon by the parties. In the absence of such agreement, the sale of real property or personal property not capable of manual delivery shall be held in the office of the clerk of court of the Regional Trial Court or the Municipal Trial Court which issued the writ or which was designated by the appellate court. In the case of personal property capable of manual delivery, the sale shall be held in the place where the property is located.
Sec. 1. Court personnel shall at all times perform official duties properly and with diligence, and to commit themselves exclusively to the business and responsibilities of their office during working hours.The Uniform Rules on Administrative Cases in the Civil Service likewise provides that grave misconduct is punishable by dismissal from the service under Section 52-A(3), Rule IV thereof, while falsification of official document is also punishable by dismissal from the service under Section 52-A(6) thereof.
Sec. 3. Court personnel shall not alter, falsify, destroy or mutilate any record within their control. This provision does not prohibit amendment, correction or expungement of records or documents pursuant to a court order.
Sec. 6. Court personnel shall expeditiously enforce rules and implement orders of the court within the limits of their authority.