IRENEO CABREANA AND ANNA ROSE CABREANA, COMPLAINANTS, VS. HON. JUDGE CELSO AVELINO, PRESIDING JUDGE OF BRANCH XIII, CFI OF CEBU, RESPONDENT.

This is an administrative case filed by complainant-spouses Ireneo Cabreana and Anna Rose Cabreana against Judge Celso Avelino, Presiding Judge of Branch XIII of the Court of
First Instance of Cebu for “serious misconduct,
abuse of authority, prevarication and oppression.”

The backdrop of the case is as follows:

Complainant-spouses Ireneo Cabreana and Anna Rose Cabreana
are the plaintiffs in Civil Case No. R-15988 before Branch XIII of the Court of
First Instance of Cebu, presided by herein respondent
judge, against the defendant T & E Tumakay
Enterprises, owned and operated by Teody O. Tumakay, seeking rescission of sale, with damages against
therein defendant firm for having sold to plaintiffs therein and complainants
herein pieces of furniture which were not made in accordance with
specifications and/or defectively manufactured.

On August 4, 1977,
a motion was filed by plaintiff-spouses for an ocular inspection of the
furniture sold, which was granted by respondent judge.  In the same motion, plaintiff-spouses
proposed the appointment of the clerk of court of Branch XIII, Atty. Alejandro Grengia, as the com­missioner.

It was on the occasion of this ocular inspection that the
incidents complained of took place, thus –

“xx                             xx                                 xx.

“5. That pursuant to the order of the respondent judge, the ocular
inspection was set in the afternoon of August 31, 1977, on which occasion the
said respondent judge rode in the car of defendant Tumakay,
with the said defendant Tumakay himself driving the
same, to and fro, the place where the ocular inspection was to be con­ducted at
the home of complainants at Estaca, Minglanilla, Cebu, where the
respondent judge himself conducted the ocular inspection;

“6.     That when respondent
judge arrived in the place where the ocular inspection was to be conducted, but
before the actual or formal ocular inspection started, the respondent judge
started to behave strangely and queerly, by showing hostility on complainants
right in their home, treating them shabbily and rudely, talking to complainants
in a harsh, sarcastic and in an insulting manner, while being friendly and
chummy to defendant Tumakay, as shown by the joint
affidavit of the herein complainants, a copy of which is hereto attached as
Annex ‘C’;

“7.     That when the ocular
inspection commenced, and the herein complainant Anna Rose Cabreana
was asked in the direct examination to point out to the respondent where the
defects of workmanship were in the furniture, and the said Anna Rose Cabreana would point at the cracks in the furnitures, the respondent judge would distort the facts
through his grossly erroneous observation and orders the same to be placed on
record in the stenographic notes that the cracks were merely ‘scratches’, or if
the crack were extensive or severe for a fine furniture, respondent judge would
put it on record that the crack was only an inch long although the crack
extends the entire length of the furniture.

“8.     That in another
instance, when the ocular inspection was conducted on the dresser inside the
bedroom of complainant Anna Rose Cabreana, and the
latter pointed at the crack in the said dresser, the respondent judge who was
seated on the bed nearby, but far enough not to enable him to see the defect
being pointed to, did not even care to rise up to see or look at the defect
referred to and cryptically made his prevaricated observation that the defect
referred to was not a crack but merely a ‘scratch’, although the same was in
fact really a crack.  (These facts are
reflected in the various dialogue in the stenographic notes duly certified by
stenographer Graciana on the pro­ceedings on August
31, 1977, a xerox copy of which is hereto attached as
Annex ‘D’);

“9. That when complainant Anna Rose Cabreana
pointed at the defects in the bookshelf and in the foot stool, the respondent
judge refused to see the defective workmanship, but instead described them
merely as either an ‘art’ or said ‘I can’t see the defect’;

“10.   That such a blatant and
brazen display of deceit, misrepresentation and prevarication constitutes a
case of serious misconduct, abuse of authority, prevarication and oppression,
since said act was committed for the purpose of clearly and patently favoring
the defendant Tumakay;

“11.   That when the subject of materials used was
taken up in the same ocular inspection, that where the parties-litigants agreed
that the materials to be used in the manufacturing of the furnitures
should be narra, as said wood makes a superior
quality of furnitures as same would not be attacked
by wood borers (bokbok), and the ‘bokbok‘
dust were shown to the respondent judge to show that that proves that the
material used was not narra, the said respondent
brushed aside complainant’s allegation stating that the dust may have been just
applied by complainants themselves to simulate ‘bokbok‘
dust, which fact is reflected in the dialogue found in Annex ‘D’;

12.   That
with the clever deceit employed by respondent judge, complainants cannot expect
to obtain a fair and honest dispensation of justice from respondent or even on
appeal, as cases on appeal are adjudicated on the basis of the facts reflected
from the records of the case” (pp. 2-4, rec.).

Asked to comment on the
administrative case filed against him, respondent judge filed his comment dated
December 1, 1977 traversing complainants’ allegations, and alleging that:

“Respondent admits the truth of the allegations contained in
paragraphs 1, 2, 3, 4 and 5 of the complaint, but denies the allegations in
paragraphs 6, 7, 8, 9, 10, 11 and 12.  In
the joint affidavit submitted (Annex ‘C’) in support of the complaint, there
are assertions that are false and baseless. 
For example, complainants state
that the Branch Clerk of Court, Atty. Alejandro C. Grengia
(not ‘Gengia‘ as appearing in the affidavit), was
appointed commissioner for purposes of the ocular inspection as prayed for in
complainants’ motion (Annex ‘B’ of complaint) and that on the date and time
when said ocular inspection was to take place, the Presiding Judge, out
of the blues, ordered that he would conduct the ocular inspection himself
(underscoring supplied).  This is
farthest from the truth since respondent never appointed the Branch Clerk of
Court to conduct the ocular inspection, although it is admitted that the
complainants’ motion for ocular inspection proposes the appointment of the
Branch Clerk.  To belie complainants’
contention, it needs only a reference to the Court Order dated August 8, 1977 that resolved com­plainants’
motion for ocular inspection.

“It is emphasized that
the complaint is premised on the alleged partiality and bias of respondent,
solely on the basis of the proceedings taken during the actual ocular
inspection conducted on August 31, 1977, copy of which has been attached to the
complaint (Annex ‘D’).

“Respondent denies vehemently the charge of partiality and
bias, but maintains the view that all remarks made by him during the ocular
inspection and incorporated in the transcript of proceedings are but a
necessary consequence of the inspection in order to record all the observations
of the Court so that it may later on be properly and clearly guided in the
determination of the issues raised by the parties in their respective
pleadings.  If some of the remarks made
by respondent in the course of the ocular inspection are not complimentary to
complainants, the same are but incidental to the primordial purpose of an
ocular inspection, which is for the Court to inform itself of the actual state
of matters relevant to the cause of action.

“During the ocular inspection, complainants pointed to minor
scratches on the floor of their bedroom with the aid of a flashlight,
notwithstanding the fact that the inspection was conducted on a very bright
afternoon at the early hour of past 2:00 o’clock
P.M. or thereabouts.  These
are the scratches which, in the hearing of August 4, 1977 plaintiff Anna Rose Cabreana while testifying claims as constituting damage
worth P1,500.00 representing the deduction
in the total purchase price of the furniture.

“For a more thorough and detailed further
understanding of the circumstances which complainants base their complaint,
certain pleadings that form part of the records of Civil Case No.
R-15988 are herewith submitted, marked as Annexes and forming integral parts of
this comment, and more particularly specified in the enumeration below.

“It is humbly contended that the complaint has no factual nor
legal basis upon which a possible administrative action may lie against the
respondent, since the acts complained of have been done in the performance of
his official duties as Judge” (pp. 10-11, rec.).

Respondent judge prayed
that the complaint should be dismissed for lack of merit.

After considering the
complaint under oath and respondent judge’s comment thereon, complainants’
reply thereto as well as respondent’s rejoinder to said reply, the Court
resolved to refer the complaint to Associate Justice Jose A. R. Melo of the Court of Appeals for investigation, report and
recom­mendation.

At
the hearing set by the Investigating Justice on January 7, 1981, complainants manifested that they were
submitting, without further argument or presentation of evidence, their case on
the basis of their joint affidavit and the transcripts of stenographic notes
taken during the ocular inspection on August 31, 1977. 
Likewise, respondent judge manifested that he was submitting the case on
the basis of his answer.

In
his report submitted on February 3, 1981, the Investigating Justice made the
following findings:

“xx                             xx                                 xx.

“Respondent does not deny that he arrived at the house of
complainants in Estaca, Minglanilla,
Cebu which is situated some 20
kilometers away from the court house in Cebu City,
in the company of and riding in the car of defendant Tumakay.  Neither does he dispute his description, as
appearing in the transcript of stenographic notes, of defects in the furniture
inspected as scratches.  Undersigned
investigator could have gone to Cebu to inspect and
see for himself the defects in the furniture but considering the time that has
elapsed, which is around 6 years, from the time the ocular inspection was conducted
by respondent judge, undersigned thought it better to desist therefrom for, indeed, in the meantime, the furniture may
have developed additional defects and blemishes during the years that have
passed.  It is, therefore, upon the basis
of the transcript of stenographic notes taken during the ocular inspection upon
which the complaint may be resolved.

“Altogether, upon a reading of the transcript of stenographic
notes of the ocular inspection conducted on August 31, 1977 appearing on pages
57 to 92 of the records, undersigned is given the impression that, indeed,
respondent judge behaved in such a manner as to give the impression that he is
biased against complainants.  Thus, when
a certain dining set was inspected, alleged cracks thereon were described by
respondent as mere scratches:

‘Mrs. Cabreana:

Here are the cracks over here and then
here on this side also right here is the crack and then over here, Your Honor,
this is cracking also, and then we have these scratches over there on the glass
and then over here, Your Honor, if you look at it you can see the cracks all
way to the chairs.

‘Court:

This is not a crack on the glass.  That is a scratch.

‘Mrs. Cabreana:

These are scratches on the glass.  And on this chair if you stand right there,
Your Honor, you could see the cracks. 
These cracks here are marked.

‘Atty. Varela, Jr.

I notice that on these chairs there are
pieces of strings.  What are those pieces
of strings, what do they indicate?

‘Mrs. Cabreana:

They indicate the cracks on the chairs.

‘Court:

Where is that crack?

‘Mrs. Cabreana

It is here, your Honor.

‘Court:

I can’t see the crack.

‘Mrs. Cabreana:

This one here is a crack.

‘Court

It is a slight crack about one inch.

‘Mrs. Cabreana:

And then here, your
Honor.

‘Court:

Slowly because the stenographer
cannot indicate all the alleged defects.

‘Court Interpreter:

The witness is pointing to the base of
the dining table.

‘Mrs. Cabreana:

From here up to here and this one here
and also on the other side, your Honor.  This one is also starting to crack.

‘Court

That is not a crack,
that is a scratch.

‘Mrs. Cabreana:

Here is another one, Your Honor.

‘Court

out one inch
long.

‘Mrs. Cabreana:

Don’t you notice on this chair here, then
down here?  (Witness
referring to the base of the dining table).  It’s starting to crack right there, Your
Honor.  Can you see it?

‘Court:

It is like a scratch, not a crack.  You discovered all these scratches after two
months?

‘Witness:

Before two months.  (Tsn.,
August 31, 1977, pp. 3-6, Records, pp. 59-62).

“It is, of course,
not disputed that respondent may make his own observations but the better
procedure for him to have followed would have been to ask the opposing counsel
who was also present during the proceedings to make his observations, and for
respondent to reserve his findings.  But
as it was, respondent directly contradicted the witness, describing obvious
cracks as appearing in the photograph as submitted by complainants, as simple
scratches.

“Concerning a certain cabinet, the following dialogue took
place:

‘Mrs. Cabreana:

This is straight and this one is not.

‘Court

What do you mean by this is straight?

‘Mrs. Cabreana:

The left side is straight and the right
side is not.

‘Court:

When
we are facing it, this is the left side.

Atty: Varela,
Jr.:

Facing
the cabinet, the right side is straight and the left side is not.          

‘Court:

But
the Court does not see any curve or any sign that the left side is not
straight.

‘Mrs. Cabreana:

This
is supposed to be a sliding door.  There are no ball bearings put on the sliding doors.

‘Court

Is
there in the contract that there should be ball bearings?

‘Mrs. Cabreana:

That
was supposed to be a sliding door.

‘Court:

Is
there in your contract between the defendant that
there should be a ball bearing?

‘Mrs. Cabreana:

No,
it was not specified to be sliding doors.

‘Court:

What
do you call these doors now?

‘Mrs. Cabreana:

Sliding doors that won’t slide.

‘Court:

Atty.
Grengia, you see if it will slide or not.

‘Atty.
Grengia (after opening the door):

It
will slide, however when we have to move the glass it will not really slide
smoothly.

‘Court:

Let
me see (after opening the door).  It will
slide; the door is sliding.  Maybe
you want the American way of making things, the perfect way of making in America.

‘Mrs. Cabreana:

It
is like this one here, Your Honor.

‘Court:

Is
there in your contract that the bookcase which the defendant would make would
be like that one you pointed to us?

‘Mrs. Cabreana:

Yes.

‘Court:

Where is that portion of the contract:

‘Mrs. Cabreana:

I don’t have it.’ (Tsn., Aug. 31, 1977, pp. 19-12; Record, pp. 66-68).

“Again, respondent judge appeared to be brusque and curt with
the witness.  He was practically
cross-examining her in regard to the contract. 
But the irritating and insulting treatment of complainant.  Mrs. Cabreana by
respondent judge becomes the more obvious when he said upon inspecting the
door, that perhaps complainants would want the American way of making
things.  He was actually personally
insulting com­plainant Mrs. Anna Rose Cabreana who is
an American.

“Again, when some footstools were inspected, the legs of which
are not straight, respondent judge immediately arrived at the conclusion that
such mis-aligned legs of the stools is art and not a
defect.  Once more, We
beg to quote the following from the transcript of stenographic notes:

‘Mrs. Cabreana:

The two front legs are not straight.

‘Atty. Varela, Jr.:

How about the other one?

‘Mrs. Cabreana:

That one is all right, Vicente.

‘Court:

What do you mean by they are not
straight?

‘Mrs. Cabreana:

This one is pointing this way and this
one is pointing that way.

‘Court:

I
don’t understand you.

‘Mrs. Cabreana:

This
is supposed to be done like this, not like that.

‘Court:

Atty. Varela, I don’t
understand your client.

‘Atty. Varela, Jr.

My
client is stating that the legs are not straight.  If you sit on this footstool, the front leg
is veered to the right while the right leg is veered to the left.

‘Court:

I
think that is an art.  Don’t you like that.  All of them are
curving inside.  I think that is an
art.  I don’t see any defect there.  Is there any portion of the contract which
says that the legs of that stool should be straight?

‘Mrs. Cabreana:

No.

‘Court:

That
looks like an art.’ (Tsn., Aug. 31,
1977, pp. 13-14; Record, pp. 69-70).

“In regard to the presence of borers
(bukbok) in the furniture com­plained of, the
following dialogue took place:

‘Mrs. Cabreana:

The
drawers don’t shut real good.  There are signs of ‘bukboks
in this one and in here.

‘Court:

Where
is the ‘bokbok‘ there?

‘Mrs. Cabreana:

This
is from the ‘bokbok‘, Your Honor.

‘Court:

When
there are ‘bokboks‘ there are holes from where they
come from.  This one has no holes of ‘bokboks‘.  Your
lawyer can see.

‘Atty. Varela, Jr.:

I would like to make an observation that
when this dresser was opened by the witness there was a sign of ‘bokbok‘.

‘Court:

No, there was none.  Where is the ‘bokbok‘
there?  Don’t fool the court.

‘Atty. Varela, Jr.:

I am not fooling the court, Your
Honor.  We request the court not to wipe
the thing there.

‘Court:

We are looking if there is a hole where
the ‘bokbok‘ comes from because you can put white
substance there.

‘Atty. Varela, Jr.:

It is not necessary that there must be
holes.

‘Court:

Where will the ‘bokbok‘
come from?

‘Mrs. Cabreana:

Open that one, please.

‘Atty. Varela, Jr.:

I would like to make of record that when
Atty. Grengia, the Clerk of Court, opened the third
drawer, he had difficulty in opening it, and in fact Atty. Son had to hold the
dresser to help Atty. Grengia open
the third drawer.  The right side has
three drawers and the middle drawer is opened by the witness.  Inside the drawer there is … how do we call
this?

‘Court:

You don’t like that to be touched.  How can we know if it is a white substance.  You are
very delicate; you don’t like that to be touched.’ (Tsn., Aug. 31, 1977, pp. 15-17; Record, pp. 71-73).

“In this
exchange, respondent judge was practically accusing complainants or their
counsel of planting evidence when he said ‘because you can put white substance
there’.  The situation became so
exacerbated that Atty. Varela, Jr., counsel for complainants, had to remind
respondent judge not to wipe the powdery substance which was supposed to have
been the traces of borers.

“During the
entire proceedings at the ocular inspection it was only once that counsel for
defendant therein was consulted by respondent judge and it was in regard to the
presence of ‘bokbok‘ or borers:

‘Court:

Do you agree that that is ‘bokbok?’

‘Atty. Son:

We cannot agree, Your Honor.’ (Tsn., Aug. 31, 1977; Record, p. 73).

“Rather, during the entire ocular
inspection respondent judge participated most actively, asking questions and
making comments and observations.  The
definite impression conveyed to the undersigned is that the behavior of
respondent judge during the proceedings is that he was brusque and severe
towards the witness, Mrs. Cabreana.  He displayed undue interference in the
conduct of the inspection or trial and showed unwarranted intolerance and
unjustified impatience to the point of almost maliciously distorting facts in
the presence of complainants and despite their protest.  He practically charged complainants with
planting evidence in regard to the ‘bokbok‘ all of
which of course, is conduct(ed) reprehensible of one who is supposed to be an
impartial person.

“Further compounding the situation of respondent judge is the
fact that he went to the residence of complainants when the ocular inspection
was conducted in the company of and riding in the car of defendant Tumakay.  It must be
said that a judge is precisely given transportation allowance in order that he
may not compromise himself, no matter how innocently, in hitching a ride with
parties.

“It is the duty of a member of the the
Bench to maintain at all times the high esteem and regard to which Our courts of justice must be entitled if the administration
of justice is to succeed.  It is said
that the office of a judge exists for one solemn end — to promote justice and
thus aid in securing the contentment and happiness of the people.  This primary and principal and consequently
imposes on a member of the Bench heavy responsibilities.  Certain duties are cast upon him in respect
to behavior, in relation to the State and the citizens, the litigants, the
practitioners of law, and the witnesses, and court officials (Canons of
Judicial Ethics, 1).  In fine, heavy and
tremendous as are the burdens of a judicial office, the occupant thereof must
exercise extreme restraint in such a way that his independent frame of mind
would not be compromised, and thus remaining uncompromised, evoke respect,
perhaps admiration even, from litigants. 
Any act which tends to undermine the people’s respect for, and
confidence in, the administration must be avoided, and if committed,
immediately and swiftly censured.  The
language employed by respondent judge as well as his demeanor during the ocular
inspection leave much to be desired.  A
judge must comport himself with respect for the parties and the witnesses if he
expects respect from them.  He must not
display impatience and anger, and most especially bias and predilection in
favor of or against one or the other party. 
But as it is, respondent judge appears to have thrown to the winds his
facade of impartiality” (pp. 2-12, Justice Melo’s
Report).

The Investigating Justice of the Court of Appeals recommended
that respondent judge be suspended for a period of one month, and severely
admonished to refrain from such behavior in the future.

WE have meticulously gone over the records of the case and WE are
satisfied that the observations and conclusions made by the Investigating
Justice are fully substantiated and supported by the evidence on record.

However, the penalty recommended by the Investi­gating Justice is
too light for such a misconduct committed by respondent judge in the
performance of his official duties.

Indeed, it appears clear to US that respondent judge falls short
of the required judicial norm of conduct. 
That the acts complained of have been done in the performance of
official duties, as respondent contends, aggravates his intolerance, lack of
restraint and impatience.

Moreover, respondent judge’s hitching a ride in the car of a
party litigant in going to and from the place of the ocular inspection,
deserves the stern reprobation of this Court. 
Respondent judge ought to know that by riding in the car of defendant
therein, he openly exposed himself and the office he holds to suspicion, thus
impairing the trust and faith of the people in the administration of justice.

Time and again, WE have stated that a judge’s official conduct
should be free from the appearance of impropriety, and his personal conduct and
behavior should be beyond reproach.  He
should be temperate, patient, and impartial, having always in mind that every
litigant is entitled to “nothing short of the cold neutrality of an
independent, wholly-free, disinterested and impartial tribunal” (30A Am. Jur. 56; Luque vs. Kayanan, L-26826, August
29, 1969, 29 SCRA 165, 178).

WHEREFORE, FINDING RESPONDENT JUDGE OF BRANCH XIII OF THE
COURT OF FIRST INSTANCE OF CEBU GUILTY OF SERIOUS
MISCONDUCT, HE IS HEREBY ORDERED TO PAY A FINE EQUIVALENT TO THREE MONTHS’
SALARY WITH A WARNING THAT A REPETITION OF THE SAME OR SIMILAR ACTS WILL BE
DEALT WITH MORE SEVERELY.

LET A COPY OF THIS DECISION BE ENTERED IN RESPONDENT’S PERSONAL
RECORD.

SO ORDERED.

Fernandez, Guerrero, De Castro, and
Melencio-Herrera, JJ., concur.