409 Phil. 1

SECOND DIVISION

[ A.M. No. MTJ-01-1355, April 20, 2001 ]

REGINO AND CONCESO BARBARONA, COMPLAINANTS, VS. JUDGE ALEJANDRO T. CANDA, PRESIDING JUDGE OF THE MUNICIPAL CIRCUIT TRIAL COURT OF LILOY-TAMPILISAN, ZAMBOANGA DEL NORTE, RESPONDENT.

D E C I S I O N

MENDOZA, J.:

This administrative complaint[1] was filed by Regino and Conceso Barbarona against Judge Alejandro T. Canda of the Municipal Circuit Trial Court of Liloy-Tampilisan, Zamboanga del Norte, for allegedly  knowingly rendering an unjust judgment, ignorance of the law, incompetence, grave abuse of discretion, and grave misconduct.

Complainants Regino and Conceso Barbarona are brothers.  Conceso and complainants' father, Hermogenes Barbarona, were the defendants in a case for quieting of title and damages, docketed as Civil Case No. 356, in respondent judge's court.  Gerardo Magallanes, the plaintiff in that case, alleged that he was the true and lawful owner and possessor of two parcels of land registered under TCT Nos. T-44256, ZN and T-44257, ZN in Barrio Pias, Municipality of Liloy, Zamboanga del Norte, having purchased them from Felipa R. Goria who had assured him that the parcels of land were no longer tenanted as the tenants thereon had executed affidavits of voluntary surrender of landholdings. However, Magallanes alleged he and his workers were prevented from cutting  the bamboo thickets on the parcels of land by complainant Conceso Barbarona and  Hermogenes Barbarona who claimed ownership of the bamboos thickets.  (It appears that at the instance of complainants,  the Municipal Agrarian Reform Officer set a pre-litigation conference between the parties.) Magallanes therefor prayed that respondent judge declare his titles to the properties clear from any cloud of doubt and order the Barbaronas to respect his  ownership and possession and  to pay damages.

The Barbaronas moved for the dismissal of the case on the ground of lack of jurisdiction of the court.  They alleged that they were tenants and that the case involved a landlord-tenant relationship.  In addition, they contended that the case involved a cause of action which was incapable of pecuniary estimation.[2]However, in his order,[3] dated May 16, 1995, respondent judge denied the Barbaronas' motion and declared them in default.  The order was based on the fact that the motion to dismiss lacked proof of service and was thus considered a mere scrap of paper which did not toll the running of the reglementary period to file an answer.

Accordingly, Magallanes presented his evidence ex parte, after which respondent judge rendered judgment on June 13, 1995 in favor of Magallanes, declaring "[his] titles to and interest in the subject properties as clear from clouds" even as it held the Barbaronas' "claim on the bamboo groves to be unfounded and unconstitutional." Respondent judge ordered the Barbaronas to pay Magallanes P5,000.00 as moral damages, P2,000.00 as attorney's fees, and P1,000.00 as refund for actual expenses in the preparation and filing of the complaint.[4]On appeal, the Regional Trial Court of Sidanga, Zamboanga del Norte, affirmed respondent judge's decision and later denied the Barbaronas' motion for reconsideration.[5] Upon the finality of his decision, respondent judge issued a writ of execution on November 25, 1996.  Accordingly, a parcel of land, Lot No. 1081, Pls-65, situated at San Francisco, Liloy, Zamboanga del Norte, declared in the name of Hermogenes Barbarona, was levied upon and sold at public auction to satisfy the award of damages to Gerardo Magallanes, who had made the highest bid of  P8,000.00.  As the Barbaronas failed to redeem the property within one (1) year, on June 10, 1998, a final deed of sale was executed in favor of Magallanes.[6]

Complainants Regino and Conceso Barbarona then filed the instant complaint against respondent judge, alleging the following:

(1)
Respondent judge in ignorance of P.D. Nos. 316 and 1038 failed to make a preliminary determination as to whether a tenancy relationship exists between the parties, which fact is apparent in the pleadings in this case. Had he done so or at least referred the case to the Department of Agrarian Reform for certification of a tenancy relationship between the parties, he would have realized that he should not have taken cognizance of Civil Case No. 356.
(2)
Respondent judge connived with the plaintiff and the latter's predecessor-in-interest to eject complainants' family from their landholdings.
(3)
Respondent judge is incompetent and grossly inefficient. Complainants had received information that he had failed to dispose of his cases either in accordance with the law or within the reglementary period; hence the need to conduct an audit of his docket.
(4)
Respondent judge is guilty of grave misconduct because instead of doing his job, he is busy in his copra and trucking business and personally attends to his copra store.
(5)
As a notary public ex oficio, respondent judge undertakes the preparation and acknowledgment of private documents, contracts, and other conveyances which bear no direct relation to his functions and charges notarial fees at the same rate as private practitioners despite the presence of several notaries in the area. As proof, complainants presented a Deed of Absolute Sale, dated July 9, 1993, notarized by respondent judge.[7]

Respondent judge denies the charges against him.  He alleges that he had no personal interest whatsoever in the outcome of Civil Case No. 356.  He contends that the motion to dismiss filed by the Barbaronas in Civil Case No. 356 did not show proof of service, and for that reason the motion was a mere scrap of paper which did not suspend the running of the period to file an answer. As no answer had been filed by the Barbaronas within the reglementary period, respondent judge says he had no other alternative but to declare them in default and allow Magallanes to present his evidence ex parte.

Respondent judge also alleges that he did not refer Civil Case No. 356 to the Department of Agrarian Reform (DAR) for preliminary determination as to whether the case was cognizable by him pursuant to P.D. No. 316 because he had no basis to do so, the Barbaronas having failed to file any responsive pleading.  Respondent judge denies having decided cases not in accordance with law or failing to resolve incidents and decide cases within the mandated period and neglecting his judicial duties because of his business.  He says he is not engaged in business.  Finally, he also denies preparing and acknowledging notarial documents.  He admits that he notarized the Deed of Absolute Sale, dated July 9, 1993, attached to the complaint but justifies his action on the ground that there was no available notary in the municipality of Liloy at the time, and that this is allowed under Supreme Court Circular No. 1-90 dated February 26, 1990.

On April 5, 2000, the Court referred the case to the Executive Judge of the Regional Trial Court of Liloy, Zamboanga del Norte, for investigation, report, and recommendation.

On November 10, 2000, Executive Judge Mariano S. Macias filed his report recommending that the instant case be dismissed for lack of merit. Anent the alleged irregularities committed by respondent judge in Civil Case No. 356, Executive Judge Macias opines that the same should be addressed in a judicial proceeding.  He finds the charges that respondent judge engaged in business, neglected his judicial duties, acted improperly as a notary public, and charged exorbitant fees therefor to be without any basis in fact.

We will deal with each of the charges against respondent judge.

First.  Respondent Judge's Failure to Determine Whether a Tenancy Relationship Existed Between the Parties in Civil Case No. 356

Respondent judge contends that there was no basis for him to refer the case to the DAR for preliminary determination of whether a tenancy relation existed between the parties as required by P.D. Nos. 316[8] and 1038[9] or for himself to conduct a "clarificatory hearing" because complainants failed to file any responsive pleadings and for that reason were declared in default.

This is not so.  Magallanes alleged in his complaint that defendants (including herein complainant Conceso Barbarona) had referred the dispute to the Municipal Agrarian Officer at Zamboanga del Norte.  This is equivalent to an allegation that the defendants were claiming the protection of agrarian laws.[10]

Be that as it may, we hold that the failure of respondent judge to refer Civil Case No. 356 to the DAR for preliminary consideration cannot be taken against him.  At the time Gerardo Magallanes' complaint was filed on February 27, 1995, P.D. Nos. 316 and 1038, which  require a preliminary determination of the existence of a tenancy relationship between the parties, have already been expressly repealed in 1988 by R.A. No. 6657, §76 which provides:

Repealing Clause.- Section 35 of Republic Act No. 3844, Presidential Decree No. 316, the last two paragraphs of Section 12 of Presidential Decree No. 946, Presidential Decree 1038, and all other laws, decrees, executive orders, rules and regulations, issuances, or parts thereof  inconsistent with this Act are hereby repealed or amended accordingly.

It was thus unnecessary to refer the case to the DAR, and respondent judge correctly proceeded to hear the case.[11]

That respondent judge went on to declare the Barbaronas in default and eventually decide the case against them does not necessarily mean, as the latter now charge, that he connived with the plaintiff.  The fact was that the Barbaronas filed a defective motion to dismiss as a result of which the period for filing an answer expired without them being able to file one.  Hence, they were declared in default.  Indeed, complainant Regino Barbarona later admitted during the hearing that complainants had no evidence to prove conspiracy between the plaintiff and respondent judge to evict them from the properties in question.[12]

Second. Respondent Judge's Alleged Pre-occupation with a Lucrative Trucking and Copra Buying and Selling Business Resulting in the Neglect of his Judicial Duties

As shown in the investigation of Executive Judge Mariano S. Macias, the foregoing charge likewise was merely based on conjecture. Complainants admitted that they did not have any evidence that respondent judge was engaged in business. They only knew that respondent judge "had a truck and [that] he was buying copra."[13]Complainants had the burden of proof to show that the respondent judge committed the acts complained of, and they failed to discharge this burden.[14]As to the alleged inefficiency of respondent judge, the Court finds no evidence to support this allegation.  To the contrary, the monthly accomplishment reports of respondent judge for the year 1998 show that, with the exception of the month of September,[15] respondent judge has no cases which were ". . . Submitted for Decision but not yet Decided at the End of the Month."

Third. Respondent Judge's Alleged Notarization of a Document which Bears No Relation to his Functions and Charging of Exorbitant Notarial Fees Therefor.

Circular No. 1-90 of the Supreme Court provides:

MTC and MCTC judges may act as notaries public ex oficio in the notarization of documents connected only with the exercise of their official functions and duties [Borre v. Mayo, Adm. Matter No. 1765-CFI, October 17, 1980, 100 SCRA 314; Penera v. Dalocanog, Adm. Matter No. 2113-MJ, April 22, 1981, 104 SCRA 193].  They may not, as notaries public ex oficio, undertake the preparation and acknowledgment of private documents, contracts and other acts of conveyances which bear no direct relation to the performance of their functions as judges.  The 1989 Code of Judicial Conduct not only enjoins judges to regulate their extra-judicial activities in order to minimize the risk of conflict with their judicial duties, but also prohibits them from engaging in the private practice of law (Canon 5 and Rule 5.07).

However, the Court, taking judicial notice of the fact that there are still municipalities which have neither lawyers nor notaries public, rules that MTC and MCTC judges assigned to municipalities or circuits with no lawyers or notaries public may, in the capacity as notaries public ex oficio, perform any act within the competency of a regular notary public, provided that:  (1) all notarial fees charged be for the account of the Government and turned over to the municipal treasurer (Lapena, Jr. v. Marcos, Adm. Matter No. 1969-MJ, June 29, 1982, 114 SCRA 572); and (2) certification be made in the notarized documents attesting to the lack of any lawyer or notary public in such municipality or circuit.

In support of their allegation that respondent judge had notarized a deed of sale in violation of the foregoing circular of this Court, complainants presented during the investigation a Deed of Absolute Sale (Exh. 1), dated July 9, 1993, identified as Doc. No. 190, Page No. 63, Book No. VIII, Series of 1993 of the notarial book of respondent judge.  In the investigation, however, complainants admitted that they did not have evidence that respondent judge charged the vendor, Lourdes T. Torrino, or the vendee, Jean Galicia Lim, any notarial fees.[16]

On the other hand, respondent judge presented as witness Rosalio M. Manigsaca, who had been Clerk of Court of the MCTC of Liloy-Tampilisan since June 1, 1983.  Manigsaca testified that the Deed of Absolute Sale (Exh. 1) in question is not on file in their office.  He surmised that the copy must have been among the documents which had been destroyed in a fire that occurred when respondent judge was still holding office near the Fatima Market.  However, Manigsaca said that upon verification of the Book of  Accounts and the Cash Book in the office, he found out that their office issued on July 12, 1993, Official Receipt No. 14597865 (Exh. 14) for P18.50 to a certain S. Lim.  Manigsaca testified that he believed "S. Lim" to be Susano Lim, the husband of Jean Galicia Lim, the vendee in the July 9, 1993 Deed of Absolute Sale.  Mr. Manigsaca explained that the discrepancy in the dates of notarization by respondent judge and the official receipt for notarial fees was due to the fact that the Deed of Absolute Sale was finished late in the afternoon of July 9, 1993, which was a Friday, so that the official receipt for its notarization was only  issued the following Monday, on July 12, 1993.[17]

Thus, respondent judge does not dispute the fact that he notarized the Deed of Sale, dated July 9, 1993, between Lourdes T. Torrino, as vendor, and Jean Galicia Lim, as vendee.  The question, therefore,  is whether he complied with Circular No. 1-90.  The rationale for the circular can be found in the 1989 Code of Judicial Conduct which not only enjoins judges to regulate their extrajudicial activities to minimize the risk of conflict with their judicial duties but also prohibits them from engaging in the private practice of law.[18]

We find that respondent judge failed to comply with the requisites under Circular No. 1-90.  In his comment, dated March 2, 1999, respondent judge sought to justify his act by claiming that it was "an isolated [instance]" because there was no available notary public at the time in July 9, 1993.[19] However, even if in truth there was no notary public on July 9, 1993 in the municipality of Liloy, where the Deed of Absolute Sale was prepared, respondent judge failed to certify this fact in the document itself.  Moreover, respondent judge failed to remit the P18.50 fees he received to the municipal treasurer as required by Circular No. 1-90. Instead, he remitted the money to the Judiciary Development Fund.[20]

For violation of Circular No. 1-90, we believe that a fine of  P1,000.00  is appropriate.[21]

WHEREFORE, respondent Judge Alejandro T. Canda of the Municipal Circuit Trial Court of Liloy-Tampilisan, Zamboanga del Norte, is found GUILTY of violation of Circular No. 1-90 and is hereby ordered to pay a FINE of ONE THOUSAND PESOS (P1,000.00). He is WARNED that a repetition of the same or similar acts will be dealt with more severely.

SO ORDERED.

Bellosillo (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur.



[1] Rollo, pp. 1-3.

[2] Id., pp. 25-27.

[3] Id., p. 28.

[4] Id., pp. 29-32.

[5] Id., pp. 35-37.

[6] Id., pp. 48-49.

[7] See Complaint; Rollo, pp. 1-3.

[8] P.D. No. 316 provides in pertinent part:

Sec. 2.  Unless certified by the Secretary of Agrarian Reform as a proper case for trial or hearing by a court or judge or other officer of competent jurisdiction, no judge of the Court of Agrarian Relations, Court of First Instance, municipal or city court, or any other tribunal or fiscal shall take cognizance of any ejectment case or any other case designed to harass or remove a tenant of an agricultural land primarily devoted to rice and corn, and if any such cases are filed, these cases shall first be referred to the Secretary of Agrarian Reform or his authorized representative in the locality for a preliminary determination of the relationship between the contending parties.  If the Secretary of Agrarian Reform finds that the case is a proper case for the court or judge or other hearing officer to hear, he shall so certify and such court, judge or other hearing officer may assume jurisdiction over the dispute or controversy.

[9] P.D. No. 1038 provides in pertinent part:

Sec. 2.  No judge of the courts of agrarian relations, courts of first instance, city or municipal courts, or any other tribunal or fiscal shall take cognizance of any ejectment case or any other case designed to harass or remove a tenant of an agricultural land primarily devoted to rice and/or corn, unless certified by  the Secretary of Agrarian Reform as a proper case for trial or hearing by a court or judge or other officer of competent jurisdiction and, if any such case if filed, the case shall first be referred to the Secretary of Agrarian Reform or his authorized representative in the locality for a preliminary determination of the relationship between the contending parties.  If the Secretary of Agrarian Reform as his authorized representative in the locality finds that the case is a proper case for the court or judge or other hearing officer to hear, he shall so certify and such court, judge, or other hearing officer may assume jurisdiction over the dispute or controversy.

The preliminary determination of the relationship between the contending parties by the Secretary of Agrarian  Reform, or his authorized representative, is not binding upon the court, judge, or hearing officer to whom the case is certified as a proper case for trial.  Said court, judge or hearing judge may, after due hearing, confirm, reverse, or modify said preliminary determination as the evidence and substantial merits of the case may warrant.

[10] See Ualat v. Ramos, 265 SCRA 345 (1996).

[11] Caraan v. Court of Appeals, 289 SCRA 579 (1998).

[12] TSN, p. 3, Oct. 17, 2001.

[13] Id., p. 4.

[14] Saylo v. Rojo, A.M. No. MTJ-99-1225, April 12, 2000.

[15] Respondent judge's accomplishment report for September showed that he failed to decide one criminal case which was submitted for decision on September 3, 1998.

[16] TSN (Regino Barbarona), p. 3, Oct. 17, 2001.

[17] TSN, pp. 3-6, Oct. 25, 2000.

[18] Canons 5 and Rule 5.07.  See also Doughlas v. Lopez, Jr., A.M. No. MTJ-96-1076, Feb. 9, 2000.

[19] Comment, p. 2; Rollo, p. 56.

[20] TSN, p. 8, Oct. 25, 2000.

[21] See Doughlas v. Lopez, Jr., supra; Guillen v. Nicolas, 299 SCRA 623 (1998).



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