BENITO B. NATE, COMPLAINANT, VS. HON. ENRIQUE A. AGANA, SR., ETC, ET AL., RESPONDENTS.

This is an administrative case for misconduct, grave abuse of authority
and grave coercion filed by Benito B. Nate, a deputy sheriff of the Court of
First Instance of Rizal, Pasay City Branch, against District Judge Enrique A.
Agana, Sr., Court of First Instance of Rizal, Branch XXVIII, Pasay City, and
Atty. Herminio T. Ubana, deputy clerk of the same Court.

By resolution of this Court dated November 15, 1974, the case was referred to Associate Justice Magno S.
Gatmaitan of the Court of Appeals for investigation, report and
recommendation.  In his report dated January 29, 1975, Justice Gatmaitan
made the follow­ing recommendation:

“IN VIEW WHEREOF, Investigator respectfully recommends
complete exoneration of both respondents; x x x.”

For reasons which need not be stated here, this Court resolved:

“to return the records to the
Honorable Justice Gatmaitan for reinvestigation, and subsequent submission to
the Court of his report and recommendation based on such
re-investigation.”

In response thereto Justice Gatmaitan asked that he be replaced
by another investigator.  His request was
granted and Associate Justice Ricardo C. Puno was designated in his place.  Owing to Justice Puno’s designation as
Judicial Consultant in the Supreme Court, he was replaced by Associate Justice
Luis B. Reyes of the Court of Appeals who conducted a full re-investigation of
the case.

The report of Associate Justice Luis B. Reyes insofar as relevant
reads as follows:

“This case (Adm. Matter No.
P-690-CFI) stemmed from the letter-complaint of Herino Concepcion, addressed to
the Secretary of National Defense, dated September 21, 1973, charging respondents Judge Enrique A.
Agana, Sr., Deputy Clerk of Court Herminio Ubana and then Deputy Sheriff (now
complainant) Benito B. Nate, with violation of Sec. 3, par. (h), of Republic
Act 3019, otherwise known as Anti-Graft
and Corrupt Practices Act.

From the letter-complaint, it appears that pursuant to the order of
respondent Judge Agana, dated July 30, 1973, and the writ of execution issued
in Civil Case No. 2778-P, Court of First Instance of Rizal, Branch XXVIII-Pasay
City, then Deputy Sheriff Nate levied on a Renault car which Herino Concepcion
bought on September 4, 1973, for P5,000.00 at the
auction sale conducted by Deputy Sheriff Nate. 
After paying the P5,000.00 which was delivered
by Deputy Sheriff Nate to Atty. Juan G. Atencia, counsel for the judgment
creditor, Herino Concepcion received the Renault car and a certificate of
sheriff’s sale from Deputy Sheriff Nate. 
After he had delivered the car to Herino Concepcion, Deputy Sheriff Nate
borrowed it to be used by him for a
while.  According to Herino Concepcion,
“although I was taken aback by his un­usual action, I could not in good
grace refuse him, but I told him to return the car to me the following
day”.  Deputy Sheriff Nate who used
the car failed to return it to Herino Concepcion on September 5, 1973.  When
Herino Concepcion called him by telephone the next day and told him that he
needed the car, Deputy Sheriff Nate promised to return it in the afternoon of
that day, but he failed to do so.

On September 7, 1973,
when Herino Concepcion personally contacted Deputy Sheriff Nate at the Pasay
City Hall to get the car, the
latter told him that Judge Agana borrowed the car that day.

On September 10, 1973,
Atty. Juan G. Atencia informed Herino Concepcion that in a telephone
conversation he had with Judge Agana, the latter told him that he (Judge Agana)
was using the car and wanted to pay therefor even P6,000.00.  Later, Herino Concepcion told Deputy Sheriff
Nate to get the car from the judge, since he was the one who lent the car
without his knowledge or consent.

Late on the evening of September 18, 1973, Herino Concepcion
received a telephone call from Deputy Sheriff Nate, informing him that he was
ins­tructed by Deputy Clerk of Court Herminio Ubana to tell him (Concepcion) to
agree to sell the car to Judge Agana; otherwise, he (Ubana) would see to it
that the certificate of sheriff’s sale in his (Concepcion) favor would be
annulled.

On December 27, 1973, then Deputy Sheriff Nate filed a sworn
letter-complaint with the Department of Na­tional Defense, charging respondents
Judge Agana and Deputy Clerk of Court Ubana with misconduct, grave abuse of
authority and grave coercion, alleging that on October 1, 1973, in connection
with the complaint of Herino Concepcion, he was summoned by the Prosecution
Staff, Military Tribunals, and then and there he executed an affidavit
admitting and confirming the contents of the letter-complaint of Herino
Concepcion, and stating that he could not return the car to him, because since
the morning of September 5, 1973, respondent Judge Agana was using the car with
intention to own it by paying P5,000.00 for it; that respondent Deputy Clerk of
Court Ubana became angry with him when he did not succeed in carrying out his
instruction to convince Concepcion to sell his car to Judge Agana, and told him
that the certificate of sheriff’s sale in favor of Concepcion “had to be
annulled”; that on September 19, 1973, respondent Judge Agana instructed
Deputy Clerk of Court Ubana and him (Nate) to get in touch with Atty. Benitez,
counsel for plaintiff, and Atty. Tejada, counsel for defendants, in Civil Case
No. 2778-P and to tell them to oppose the motion for satis­faction of judgment
and to question the sale of the car to Concepcion; that Atty. Benitez having
filed his opposition to the motion for satis­faction of judgment and questioned
the sale of the car to Concepcion; respondent Judge Agana issued an order for
the Deputy Clerk of Court to take custody of the car; and that even after he
had issued the order, res­pondent Judge Agana continued to use the car.

According to complainant Nate, respondent Ubana prepared an
affidavit for his signature but when he refused to sign it, respondent Judge
Agana intervene in Ubana’s behalf.  The
reason why he refused to sign the affidavit, so complainant Nate claimed, is
that it contained a statement that the car was in his possession since September 5, 1973, up to the date of
the prepared affidavit.  Complain­ant
Nate further stated in his sworn letter-complaint that because respondents
Judge Agana and Deputy Clerk of Court failed to make him sign the prepared
affidavit, they ordered him to resign from his office as Deputy Sheriff.  Later, he was charged with the crime of
infidelity in the custody of pri­soner before the military authorities.  After hearing, he was exonerated.

It appears that on November
23, 1973, Herino Concepcion executed an Affidavit of Withdrawal of
Complaint, “in order to exculpate whatsoever from liability District Judge
Enrique A. Agana, Sr. and Deputy Clerk
of Court Herminio Ubana”.  The
affidavit was admittedly prepared by respondent De­puty Clerk of Court Ubana.

At the outset of the re-investiga­tion, attempts were made to
secure the appearance of Herino Concepcion at the re-investigation so that he
could tes­tify on the real reason or reasons which induced him to withdraw the
complaint he addressed to the Secretary of National Defense, dated September 21, 1973, against
respondents, including com­plainant Benito B. Nate.

All efforts to contact Herino Concepcion produced negative
results.  His present whereabouts are
unknown even to the complainant and his counsel who were requested to, but
could not, locate his address.

Atty. Juan G. Atencia, the lawyer who prepared the letter-complaint
of Herino Concepcion, was called to testify on the said letter-complaint.  He con­firmed the content of that letter-com­plaint
to the effect that he had a telephone conversation with respondent Judge Agana
on September 10, 1973, who
then told him that he was using Concepcion’s
car and wanted to pay the latter even P6,000.00 for
it.  Atty. Atencia testified that in the
morning of September 10, 1973,
he called up the Deputy Sheriff (Nate) in the sala of respondent Judge
Agana about the car which he borrowed from Concepcion
and has not returned.  According to Atty.
Atencia, while he was talking with Deputy Sheriff through the tele­phone, the
latter told him that res­pondent Judge Agana was there and he was giving the
telephone to him; that assuming Judge Agana was at the other end of the line,
he (Atty. Atencia) had a conversation with him who then told him (Atty.
Atencia) that he would pay even
P6,000.00 to Herino Concepcion if the latter would want to sell the car; that
he conveyed the message to Concepcion in the afternoon of September 10, 1973,
but the latter was reluctant to sell the car, as he needed it; that the last
time he met Concepcion was when the latter told him that he was able to cash
the check covering the refund of the amount of P5,000.00 which he paid for the
car when he purchased it at the auction sale; that Concepcion never told him
that the letter-complaint he filed in the Office of the Secretary of National
Defense was the result of a misunderstanding as stated in his Affidavit of
Withdrawal of Complaint; and that after receiving the refund of the amount he
paid for the car, Con­cepcion lost interest in his complaint against
respondents.

Atty. Atencia stated that he was not sure that he was talking with
Judge Agana at the other end of the line, be­cause he was not familiar with his
voice.  Complainant Nate, on the other
hand, insisted that he (Atty. Atencia)
was talking with respondent Judge Agana, because he was then beside the latter.

There are no pictures of respondent Judge Agana using the car.  The picture of the car presented by the
complainant (Exhibit “P-2”) shows that his co-employee was inside,
driving it.  Complainant Nate said that
his said co-employee was dri­ving the car for respondent Judge Agana.  Respondent Judge Agana declared that the man
in the car resembled his messenger named Pablo, but he was never his
driver.  Neither respondents nor
complainant pre­sented that employee of the court to tes­tify.  Respondent Judge Agana claimed that he never
saw the car and he never used it. 
According to him, he has three cars and has his own driver.  But res­pondent Judge Agana did not present
his driver to confirm his testimony that he never used the car.

Lorenzo C. Sta. Ana, Clerk of Court and ex-Oficio Sheriff, Court of
First Instance, Pasay City Branch, testified, confirming the statement of
complainant Nate that he was transferred from the sala of respondent
Judge Agana and de­tailed to another court, but denied that respondents or any
one of them demanded complainant Nate’s separation from the service.  He, however, declared that one time Nate told
him that he liked to have his office near his room, as he had a case in the sala
of respondent Judge Agana, and he was “being persecuted”; and that
Nate told him once again that respondents “harassed or persecuted
him”.

Sta. Ana testified also that res­pondent Deputy Clerk of Court
Herminio Ubana handed to him a folder containing documents against Nate for
proper ad­ministrative action; that before he could take any action, Ubana went
back to his office and retrieved the folder with the documents.  The reason for taking it
back, according to respondent Ubana, being that there had been a pending
investiga­tion of a criminal case against Nate and they did not want it to appear that he was being persecuted.

William Villaluz Paraz, Bailiff in the sala of respondent
Judge Agana, re­fused to confirm the statements attributed to him, as quoted in
paragraph II, sub­paragraph 3, of the Resolution, dated July 30, 1975.

Atty. Castillo Reyno testified that sometime in the middle of
September, 1973, he had a case assigned in the sala of respondent Judge
Agana, entitled “Cadavillo vs. Arellano and PHHC”, and, as the ser­vice
of summons was quite delayed, their clerk-messenger Bernardo Basco was sent to
find out from Deputy Clerk of Court the cause of the delay.  Basco later reported that an employee named Alice
in the Office of the Deputy Clerk of Court was charging P40.00 for the service
of the summons.  Atty. Reyno’s secretary,
Escolastica R. Sison, upon being informed by Basco, went to the office of the
Deputy Clerk of Court and there confronted employee Alice why she was asking
P40.00 for the service of the summons to the PHHC when it is just a stone-throw
from the Quezon City Hall where the office of the Deputy Clerk of Court is
located.  Employee Alice
told Escolastica R. Sison that it was Deputy Sheriff Nate who was charging the
amount of P40.00.  When the matter was
reported to him, Atty. Castillo Reyno went to the office of respondent Judge
Agana and informed him of the reported act of mulcting by Deputy Sheriff
Nate.  Respondent Judge Agana having
advised Atty. Reyno to put his complaint in writing, the latter wrote a letter,
dated November 19, 1973,
and, with enclosed sworn statements of B.T. Basco, Jr., and E.R. Sison, sent it
to respondent Judge Agana who must have
received it on the same day.

Atty. Castillo Reyno was emphatic in saying that he made the
complaint against Deputy Sheriff Nate at his own initiative, and as a member of
the bar he had to complain the way he did.

Atty. Salvador Paras testified that on October 16, 1973, he was in the cham­bers of
respondent Judge Agana with several other people when Deputy Clerk of Court
Ubana came in with Deputy Sheriff Nate, saying “Ito po si Nate.  Siya na lang daw ang
gagawa ng kanyang affidavit”.  Judge
Agana asked Nate whether he knew how to make one and, when Nate answered in the
affirmative, Judge Agana advised him to state only the truth.  Further testifying, Atty. Paras declared that
after Nate had left he asked Judge Agana to confirm what their messenger
related to him (Atty. Paras), that is, that he (respondent Judge Agana) was
asking P400.00 from him through
Nate.  Respondent Judge Agana denied
having asked for any amount of money from any one, and requested Atty. Paras to
tell his messenger to execute an affidavit. 
The messenger was not able to execute any affidavit as he died the same
month.

According to respondent Judge Agana, complainant Nate admitted to
him later that he asked for P400.00 from the office of Atty. Paras, but he
denied having used his name.

Respondent Judge Agana declared that he was not aware, and
complainant Nate did not even give him any hint, that he executed an affidavit
before the JAGO on October 1, 1973.  The declaration of res­pondent Judge Agana is
confirmed by com­plainant Nate himself when he testified on cross-examination
during the hearing on January 6, 1975,
that neither of the respondents knew of
the affidavit he executed on October 1, 1973.  Respondent
Deputy Clerk Ubana also declared that as late as October 16, 1973, he did not know that complainant Nate had
executed the affidavit before the JAGO.

When complainant Nate cross-examined respondent Judge Agana (the
former was not assisted by counsel then), the latter testified:

“Q   Mr.
respondent, what prompted you to endorse the
confidential memorandum of respondent Deputy Clerk?

“A    When
I received reports about anomalies being committed in my office, these reports
if you remember very well, I called your attention, I asked you the truth if
you demanded that amount of P400.00 from the client of Atty. Paras using my
name and you answered ‘I did not use your name’ And I told you, ‘but did you
ask for the P400.?’ and you said ‘yes.’
I asked you again:  ‘Is it true that you
got P860.00 to serve notices for summons and garnishments?’ You did not deny
these charges.  Then I asked you again
about a certain Mr. Imperial that you ask from him P300. to
levy a car, again you did not deny. 
Again I asked you about a report demanding P400. to
serve a summons and Mrs. Balbuena was even included in this charge and whom I
also asked to resign, you did not deny. 
I asked you to submit a resignation within 2 days,
otherwise, I will take the necessary action.

Investigator:

When did this happen Judge?

Judge Agana:

A day
before November 16, Your Honor. 
The day I endorsed the confidential information, at that time this
confidential information was not written. “

(T.s.n., pp. 65-67, hearing on January 7, 1975)

Respondents were not able to include the other questionable
activities of complainant Nate in the confidential memorandum, dated November 16, 1973, because while the
affiants, through their counsel Atty. L. Castillo Reyno, had already expressed
their com­plaints against Nate verbally, Atty. Reyno endorsed their affidavits
in his letter to respondent Judge only on November 19, 1973. 
The position of respondents is that having received the affidavits only
on November 19, 1973, it was impossible for respondent De­puty Clerk Ubana to
have made reference thereto and to include them in his con­fidential memorandum
to respondent Judge on November 19, 1973; and it was likewise impossible for
respondent Judge to have made reference to them in his first indorse­ment to
the commanding officer of the UIOG also on the same date, November 16, 1973.

Respondents denied that they engaged in a sort of “fishing
expedition” against complainant Nate, and claimed that they merely
“endorsed the anomalies he committed to the authorities for proper
action”.

Respondents contended that the con­fidential memorandum on
complainant Nate’s infidelity in the custody of prisoner had to be lodged with
the commanding officer of the UIOG, and not to be filed with the Supreme Court,
because when the crime of infidelity in the custody of prisoner is committed by
a public officer, the Military Tribunals shall try and decide the same,
exclusive of the civil courts, citing General Order No. 12, dated September 30,
1972.

Respondents denied having demanded the outright resignation and/or
separation of complainant Nate from the service, contending that they were
merely trying to accommodate his request to be pardoned for his anomalies and
to afford him a graceful exit.  When complainant
Nate cross-examined respondent Judge Agana, the latter testified, as follows:

“Q   Is
it right for you to order complainant to resign?

“A    Yes,
specially when you, your­self admit that you have com­mitted
those irregularities, sometimes using my name.

“Q   Do
you know the provisions of the Civil Service Law, that an employee may be
removed for cause?

“A    Precisely,
I am giving you a graceful exit.  It was
more of a consideration, you are a law student and I don’t want you to have
black record.  You were asking me for a
chance, you were given that chance when I asked you to resign.”

(T.s.n.
pp. 67-68 hearing on January 7, 1975)

From the evidence submitted by the complainant and that for
respondents, the undersigned finds no sufficient basis for the complaint
charging them with grave abuse of authority and grave coercion.

What complainant has considered as grave abuse of authority or
grave coercion on the part of respondents is their having told him to
resign.  But in the face of the evidence
of his mulcting activities hereinbefore narrated, a demand for his resignation
is not unjustified, since he admitted some of them, asking that “he be
given a chance”, and respondent Judge Agana simply wanted to give him
“a grace­ful exit”.

However, it is believed that res­pondent Judge Agana is guilty of
mis­conduct, having used for sometime the car of Herino Concepcion, knowing
that it had been levied upon in execution, sold at an auction sale by then
Deputy Sheriff Nate and bought by Herino Concepcion, respondent Judge with
intent to own the car by offering to buy it even for P6,000.00.  Article 1491 of the Civil Code of the Philippines
speci­fically provides that judges, among others, cannot acquire by purchase,
either in person or through the mediation of another, the property in
litigation or levied upon in execution within the jurisdiction or territory
where they exercise their functions.  x x x.

In the case of respondent Judge Agana, his act of using with intent
to acquire a car, knowing that it had been levied upon in execution,
transcended the bounds of propriety and, therefore, reproachful.  Although, respondent Judge Agana did not
actually buy the Renault car, because Herino Concepcion refused to sell it to
him, his act of using the car, with intent to acquire it by purchase, is no
less improper and censurable.  The fact
that the car had already been acquired by Herino Concepcion at the sheriff’s
sale when he used and offered to buy it is
of no moment.  It was still subject to
the exercise of his functions as Judge, as shown by the fact that, at that time,
the sale of the car to Concepcion was questioned before his court and
respondent Judge Agana would have determined the legality of the sale had not
the case been amicably settled.

Respondent Deputy Clerk of Court Ubana knowingly cooperated with res­pondent
Judge Agana in the latter’s attempt to acquire the car illegally.”

The findings of Associate Justice Luis B. Reyes are amply
supported by the evidence.

WHEREFORE, we find the respondents namely, Judge Enrique
A. Agana, Sr. and Deputy Clerk of Court Herminio T. Ubana guilty of
misconduct.  However, no serious
pecuniary damage appears to have been suffered by Herino Concepcion who even
withdrew his complaint.  Under the circumstances,
the penalty of censure appears to be adequate and the res­pondents are hereby
censured and admonished to be more circumspect in their behaviour.

Let this decision be entered in the personal files of the
respondents.

SO ORDERED.

Fernando, Acting C.J., Antonio, Aquino, Barredo, Santos,
Fernandez, Guerrero, and De Castro, JJ., concur.

Teehankee, J., vote J. Makasiar for the imposition of at least 3 months suspension
with warning that any future violation will be drastically dealt with.

Concepcion, Jr., J., no part.

Melencio-Herrera, J., filed a
separate opinion.