LUMEN POLICARPIO, COMPLAINANT, VS. ELY B. FAJARDO, RESPONDENT.

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 Griño-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 #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) Rolls 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., Sta. 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 GR 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 Griño-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,
1963, 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 C-1), it was rejected by the court.  On April 3, 1972, Judge Cornejo
rendered a decision ordering Atty. Policarpio and her
mother Modesta 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.).

“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. M-6), 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.
O, O-1, O-3 and O-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, O-5, R to R-4,
S to S-4, T to T-4, U to U-7, V to
V-3 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 sabibin wala rin
siya at nagtuturo, ay hind na sila kumibo.  Ang ginawa ko ay tinanong ko sila kung sino
sila at ano ang 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 ang 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 my plea they proceeded to perform the said levy.  Once more I begged 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 ang sheriff at sinabing hindi sa
inaalisan kayo ng autorization bilang sheriff pero hintayin ninyo
ang mayari 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.).

“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 floor mats

9 rolls assorted color curtains

30 rolls assorted color curtain 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 cancelled 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 N-8).  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 yards 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 only 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
Palicarpio’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’s 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
was 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 sales-boys.  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 yardage 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 by 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 cut from the rolls and
bundles while they were in the custody of Fajardo and
Li Yao,
is confirmed by the enormous discrepancy between the yardage (9,044 yards)
measured on March 17, 1973
by the House of Decor (Exh. K) and
the yardage (4,605 yards) delivered to Leonila on May 18, 1973 by the Manila Sheriff (Exhs. P to P-14).  Some 4,439 yards disappeared within a space
of two months while the goods were in the custody of Li Yao
and Fajardo.

“Fajardo’s delivery of the goods to
Li Yao, instead of keeping them 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 of 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 hi s 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 actuations 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, Muñoz Palma, Concepcion, Jr., Martin, Santos, Fernandez, and Guerrero, JJ., concur.

Aquino, J., did not take part.