Sheriff told to hold off auction

CEBU, Philippines - The Cebu City government advised court sheriff Eugenio Fuentes to withdraw the notice of levy on a lot in the South Road Properties of his own accord and not wait for the city to take legal action against him.

City Hall consultant and lawyer Janeses Ponce said Fuentes can be liable administratively because his action is not in accordance with the order of Regional Trial Court Branch 9 acting Judge James Stewart Himalaloan.

The city is not worried at all over the notice of levy and the scheduled public auction of a 9.7-hectare lot in the SRP in relation to the Rallos lot case on December 13.

Ponce said this because he said that in the first place, the notice to levy is void and was issued by the sheriff without legal basis.

“If he says he’s just following the mandates of the order, I would say then that he would have not made the levy… Because if he is referring to the same order of the judge dated October 26, 2011, it is in the last paragraph that tells the sheriff to exercise utmost prudence and caution strictly observing the procedure and mandates of Sec. 305 (a) or R.A. 7160, Sec. 9 (c), Rule 39 of the Rules of Court and Administrative Circular No. 10-2000 of the Supreme Court,” Ponce said.

Ponce said that the notice of levy issued by Fuentes is void since the beginning and so they do not need to file for a Temporary Restraining Order.

He said that if indeed Fuentes is following the order of the court, then he would have filed the claim before the Commission on Audit.

“If mo-ingon siya na kani iya action is following the orders of the court, then what he would have done is to file a claim at the Commission on Audit and that’s it, human na ang iyang trabaho. Ang kanang pag-levy, pag-attach, there’s no basis for that,” Ponce said.

Administrative Circular No. 10-2000 of the SC states that the prosecution, enforcement or satisfaction of state liability must be pursued in accordance with the rules and procedures laid down in Presidential Decree No. 1445, known as the Government Auditing Code of the Philippines, where it is provided that all money claims against the government must first be filed with the Commission on Audit.

COA-7 director Delfin Aguilar confirmed this and said the issuance of a writ of execution for the satisfaction of the money judgment against the City of Cebu may be considered beyond the powers of the court.

But Fuentes, in a report, insisted that COA opinion will not stop the auction unless the city files for, and will be granted, a TRO.

However, last Wednesday, Himalaloan in his one-page omnibus order inhibited himself from the case citing the reason that the city government is providing assistance to the judiciary which he said “is enough and valid ground for the sitting judge to inhibit himself from the two cases.”

Since he is one of the judges receiving monthly stipend from the city, Himalaloan said that “his exercise of judicial discretion may be questioned on the matter especially as to the indirect contempt case.”

Ponce said they were surprised by the decision of Himalaloan to inhibit from the case as the monthly allowance of judges is supposedly a non-issue.

“In fact, it has never been raised, never once. Kay kami gud sa syudad, mo-fight mi sa kaso based on the merits. Regardless of whether there’s an allowance or not, it was never a factor,” Ponce said.

He said the granting of financial assistance to the judiciary is an assistance granted by the city since it is capable to grant such.

“We rely on the merits of the case. And the city, or the people, has a good case and we are confident about that,” Ponce said.

He admitted that the inhibition might delay the case but they do not see it as a threat.

The Cebu City Government is now preparing for their next possible move to file a petition for annulment of judgment case before the higher court to annul the whole case docketed as Civil Case No. CEB-20388 entitled Heirs of Fr. Vicente Rallos, et al, vs. City of Cebu.

Fuentes clarified yesterday that the order of the court stands unless it was recalled.

“The court order still retained directing the city government to pay P13.3 million as compensation for the Rallos property used as a public road in Sambag 1 same as the public auction will be pushed through,” Fuentes said.

He said as assigned sheriff he has to do his job unless there was an inhibition asking him to stop from further implementing the order.

“If I was asked to inhibit then that’s the time I will not pursue the implementation of the order and to stop the public auction,” Fuentes said.

Earlier, Himalaloan issued an omnibus order stating his inhibition from further hearing and deciding the cases of indirect contempt filed by the Ralloses and the urgent omnibus motion and supplemental urgent omnibus motion to quash the writ of execution and set aside the notice of garnishment. — (FREEMAN)