Tuesday, October 25, 2011

Ministerial duty of sheriff to enforce writ of execution - A.M. No. P-09-2716

A.M. No. P-09-2716

"x x x.

The Findings and Recommendations of the OCA

In its Report dated July 6, 2010, the OCA[6] found the respondent liable for simple neglect of duty:

It has been said that the sheriff’s duty to execute a judgment is ministerial. A purely ministerial act is one “which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to the exercise of his own judgment upon the propriety of the act done.” Otherwise stated, a sheriff need not look outside the plain meaning of the writ. In this case, it was respondent Sheriff’s duty to use reasonable and necessary force to see that judgment debtors vacate the premises. Any exercise of discretion may be used only when a sheriff is faced with an ambiguous execution order, in which case prudence and reasonableness dictate that he seeks clarification from the judge.

The non-implementation of the writ for almost two years cannot be justified by the allegation that the property is not properly identified and that the persons are not parties to the civil case. To exercise compassion and discretion to the extent that the sheriff substitutes his own standard of justice which has been properly determined in contentious proceedings is to encroach upon the power of a judge, which amounts to grave abuse of authority. He should have acted promptly to clarify the court order.

The explanations offered by the respondent are hollow and undeserving of merit. Evidently, respondent was not only remiss in his implementation of the writ, but likewise derelict in his submission of the returns thereof.[7]

The OCA recommended that the respondent be suspended without pay for one (1) month, with a stern warning that a repetition of the same or similar act shall be dealt with more severely.

The Court’s Ruling

We agree with the findings of the OCA that the respondent is administratively liable, but we differ on the characterization of the offense and the recommended penalty.

The duties of the sheriff in implementing writs of execution are explicitly laid down in the Rules of Court (Rules). Paragraphs (c) and (d) of Section 10, Rule 39 of the Rules provide for the manner a writ for the delivery or restitution of real property shall be enforced by the sheriff:

Section 10. Execution of judgments for specific act. –

x x x x

(c) Delivery or restitution of real property. – The officer shall demand of the person against whom the judgment for the delivery or restitution of real property is rendered and all persons claiming rights under him to peaceably vacate the property within three (3) working days, and restore possession thereof to the judgment obligee, otherwise, the officer shall oust and such persons therefrom with the assistance, if necessary, of appropriate peace officers, and employing such means as may be reasonably necessary to retake possession, and place the judgment obligee in possession of such property. Any costs, damages, rents or profits awarded by the judgment shall be satisfied in the same manner as a judgment for money.

(d) Removal of improvements on property subject of execution. –When the property subject of the execution contains improvements constructed or planted by the judgment obligor or his agent, the officer shall not destroy, demolish or remove said improvements except upon special order of the court, issued upon motion of the judgment obligee after due hearing and after the former has failed to remove the same within a reasonable time fixed by the court.

After the implementation of the writ, Section 14, Rule 39 of the Rules requires sheriffs to execute and make a return on the writ of execution:

SEC. 14. Return of writ of execution. - The writ of execution shall be returnable to the court issuing it immediately after the judgment has been satisfied in part or in full. If the judgment cannot be satisfied in full within thirty (30) days after his receipt of the writ, the officer shall report to the court and state the reason therefor. Such writ shall continue in effect during the period within which the judgment may be enforced by motion. The officer shall make a report to the court every thirty (30) days on the proceedings taken thereon until the judgment is satisfied in full, or its effectivity expires. The returns or periodic reports shall set forth the whole of the proceedings taken, and shall be filed with the court and copies thereof promptly furnished the parties.

The above provisions enumerate the following duties of a sheriff: first,to give notice of the writ and demand that the judgment obligor and all persons claiming under him vacate the property within three (3) days; second,to enforce the writ by removing the judgment obligor and all persons claiming under the latter; third, to remove the latter’s personal belongings in the property as well as destroy, demolish or remove the improvements constructed thereon upon special court order; and fourth, to execute and make a return on the writ within 30 days from receipt of the writ and every 30 days thereafter until it is satisfied in full or until its effectivity expires.

Clearly, these provisions leave no room for any exercise of discretion on the part of the sheriff on how to perform his or her duties in implementing the writ. A sheriff’s compliance with the Rules is not merely directory but mandatory.[8] A sheriff is expected to know the rules of procedure pertaining to his functions as an officer of the court.[9]

In this case, we find that the respondent was remiss in performing his mandated duties. In the first place, the respondent failed to implement and enforce the writ within the prescribed period provided under the Rules. As the records show, the respondent failed to serve the writ and the notices to vacate to the occupants of the property within three (3) days. Moreover, the respondent failed to evict the occupants of the subject property, and to remove their personal belongings, and the structures and improvements they introduced. Aside from these, the respondent failed to make periodic reports, thus depriving the court of the opportunity to know and ensure the speedy execution of its decision.[10]

We are not unmindful that the respondent had been given several opportunities over a long period of time - almost two (2) years - to comply with his duties in implementing the writ. The records show that the respondent imputed the delay in executing the writ to his hectic work schedule. We also note that his half-hearted attempts and refusal to execute the writ were due to his misgivings and doubts on the soundness and propriety of the writ. The records also show that the respondent only acted on the writ when the complainant sought the intervention of Judge Necesario. Even then, the respondent’s insincere efforts to comply with his duties were obvious; it particularly stood out when he carelessly designated Tipgos to do his court duties for him. The extent of his indifference and carelessness totally emerged after his inhibition when another sheriff acted in his place and immediately served the writ on, and promptly evicted, the occupants of the property.

The Code of Conduct for Court Personnel mandates that court employees act properly and with due diligence in the performance of their duties. The same Code also demands that court employees implement the orders of the court within the limits of their authority.[11] In Teresa T. Gonzales La’O & Co., Inc. v. Sheriff Hatab,[12] the Court emphasized the importance of sheriffs and the efficient performance of their functions in the administration of justice, to wit:

[Sheriffs] are tasked to execute final judgments of courts. If not enforced, such decisions are empty victories of the prevailing parties. They must therefore comply with their mandated ministerial duty to implement writs promptly and expeditiously. As agents of the law, sheriffs are called upon to discharge their duties with due care and utmost diligence because in serving the court’s writs and processes and implementing its order, they cannot afford to err without affecting the integrity of their office and the efficient administration of justice.[13]

The respondent failed to observe these standards. The lapse of time it took for the respondent to unsuccessfully execute the writ demonstrates his utter lack of diligence in performing his duties.

We have held time and again that the sheriff's duty in the execution of a writ is purely ministerial.[14] Once the writ is placed in his or her hands, a sheriff is obligated to execute the order of the court strictly to the letter and with reasonable promptness, taking heed of the prescribed period required by the Rules.[15] The respondent is presumed to know all these and he cannot be excused from compliance regardless of his personal views and busy schedule. Any kind of doubt in the proper implementation of the writ would have been addressed if the respondent seasonably asked for a clarification from the court. Regrettably, he only made such request after a considerable time and after he had given the complainant excuses that only delayed the implementation of the writ.

In the recent case of Proserpina V. Anico v. Emerson B. Pilipiña,etc.,[16] we held that the failure of the sheriff to carry out what is a purely ministerial duty, to follow well-established rules in the implementation of court orders and writs, to promptly undertake the execution of judgments, and to accomplish the required periodic reports, constitute gross neglect and gross inefficiency in the performance of official duties.

Gross neglect of duty refers to negligence that is characterized by glaring want of care; by acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally; or by acting with a conscious indifference to consequences with respect to other persons who may be affected.[17] It is the omission of that care that even inattentive and thoughtless men never fail to take on their own property.[18] In cases involving public officials, there is gross negligence when a breach of duty is flagrant and palpable.[19] Gross inefficiency is closely related to gross neglect as both involve specific acts of omission on the part of the employee resulting in damage to the employer or to the latter’s business.[20]

We find that the circumstances in Anico have been duly established in the present case to make the respondent liable for gross neglect of duty and gross inefficiency. Under the circumstances, the records show several infractions committed by the respondent in the performance of his official duties, namely: (1) the failure to implement the writ; (2) the failure to make periodic reports; (3) the failure to execute the writ within the prescribed period; and (4) the utter disregard of the rules on execution and the well-established jurisprudence relating to the ministerial duty of sheriffs in the execution and implementation of a writ.

Under the Revised Uniform Rules on Administrative Cases in the Civil Service (Civil Service Rules), gross neglect of duty and gross inefficiency are classified as grave offenses. Gross neglect of duty is punishable with dismissal from the service for the first offense, while gross inefficiency is punishable with suspension for six (6) months and one (1) day to one (1) year for the first offense, and dismissal for the second offense.[21] The Civil Service Rules also provides that if the respondent is found guilty of two or more charges or counts, the penalty to be imposed should be the penalty corresponding to the most serious charge or count while the other proven charges shall be considered as aggravating circumstances.[22] Thus, for the infractions committed, the respondent is meted the penalty of dismissal from the service with the accessory penalties of forfeiture of all his retirement benefits, except accrued leave credits, and with prejudice to re-employment in any branch or instrumentality of the government, including government- owned or controlled corporations.

As a final note, court personnel should be constantly reminded that any impression of impropriety, misdeed or negligence in the performance of official functions must be avoided.[23] Those who work in the Judiciary must adhere to high ethical standards to preserve the courts’ good name and standing.[24] They should be examples of responsibility, competence and efficiency, and they must discharge their duties with due care and utmost diligence, since they are officers of the Court and agents of the law.[25] Indeed, any conduct, act or omission violative of the norms of public accountability and that may diminish the faith of the people in the Judiciary should not be allowed.[26]

WHEREFORE, premises considered, we find ANICETO BOYLES, Sheriff III, Municipal Trial Court in Cities, Branch 2, Cebu City, GUILTYof gross neglect of duty and gross inefficiency in the performance of his duties, and hereby DISMISS him from the service. This penalty shall carry with it the accessory penalties of forfeiture of all his retirement benefits, except accrued leave credits, with prejudice to re-employment in any branch or instrumentality of the government, including government-owned or controlled corporations.