Quiambao vs Desierto : 149069 : September 20, 2004 : J. Ynares-Santiago : First Division : Decision

FIRST DIVISION

ENRICO P. QUIAMBAO, G.R. No. 149069

Petitioner,

Present:

Davide, Jr., C.J. (Chairman),

- versus - Quisumbing,

Ynares-Santiago,

Carpio, and

Azcuna, JJ.

HON. ANIANO DESIERTO, in his

official capacity as Ombudsman, Promulgated:

SANDIGANBAYAN (First Division),

and CIELO MACAPAGAL-SALGADO,

Respondents. September 20, 2004

x ---------------------------------------------------------------------------------------- x

DECISION

YNARES-SANTIAGO, J.:

This petition for certiorari seeks to annul and set aside (a) the Ombudsman’s Memorandum dated June 14, 2001 denying petitioner’s motion for reconsideration of Ombudsman Prosecutor II Raymundo Julio A. Olaguer’s Memorandum dated November 9, 1998; (b) the Ombudsman’s Order dated August 17, 2000 disapproving the Special Prosecutor’s Memorandum date November 9, 1999 recommending the dismissal of the charge against all the accused; and (c) the Amended Information dated January 13, 1999 filed before the respondent Sandiganbayan, which was docketed as Criminal Case No. 24790. This is also a petition for prohibition to enjoin the Ombudsman from further prosecuting the case and the Sandiganbayan from hearing Criminal Case No. 24790.[1]

Petitioner Enrico P. Quiambao served as Provincial Administrator of Pampanga from July 1, 1995 until June 30, 1998. During his term, the Provincial Government of Pampanga, headed by its then Governor Manuel M. Lapid, embarked on a low-cost housing project to benefit the provincial employees of Pampanga who were displaced by the Mt. Pinatubo eruption in 1991. On October 13, 1997, the Sangguniang Panlalawigan of Pampanga passed the following Resolutions:

RESOLUTION NO. 340

A RESOLUTION AUTHORIZING HON. MANUEL M. LAPID, GOVERNOR, PROVINCE OF PAMPANGA TO NEGOTIATE FOR THE PURCHASE OF A PARCEL OF LAND WITHIN SAN FERNANDO, PAMPANGA SUITABLE FOR LOW-COST HOUSING PROJECT FOR PROVINCIAL EMPLOYEES.

THE SANGGUNIANG PANLALAWIGAN OF PAMPANGA, in session assembled:

RESOLVED, as it hereby resolved that the Sangguniang Panlalawigan of Pampanga authorizes, as it hereby authorizes Hon. Manuel M. Lapid, Governor, Province of Pampanga to negotiate for the purchase of a parcel of land within San Fernando, Pampanga suitable for low-cost housing project for provincial employees.

RESOLVED FINALLY, that copies of this Resolution be furnished the Provincial Governor, the Provincial Treasurer, the Provincial Budget Officer and the Provincial Auditor, all of San Fernando, Pampanga for information and guidance.

APPROVED.[2]

RESOLUTION NO. 341

A RESOLUTION AUTHORIZING HON. MANUEL M. LAPID, GOVERNOR, PROVINCE OF PAMPANGA TO ENTER INTO A CONTRACT OF LOAN WITH THE PHILIPPINE NATIONAL BANK OR WITH ANY FINANCING INSTITUTION FOR A LOW COST HOUSING PROJECT FOR PROVINCIAL EMPLOYEES AND FOR OTHER PURPOSES.

THE SANGGUNIANG PANLALAWIGAN OF PAMPANGA, in session assembled:

RESOLVED, as it is hereby resolved, that the Sangguniang Panlalawigan of Pampanga authorizes, as it hereby authorizes Hon. Manuel M. Lapid, Governor, Province of Pampanga to enter into a contract of loan with the Philippine National Bank or with any financing institution for a low cost housing project for provincial employees and for other purposes.

RESOLVED FINALLY, that copies of this Resolution be furnished the Provincial Governor, the Provincial Treasurer, the Provincial Auditor, the Provincial Budget Officer, the Provincial Accountant and the Philippine National Bank, all of San Fernando, Pampanga for information.

APPROVED.[3]

Negotiations began for the acquisition of the properties to be used for the project. On October 30, 1997, Governor Lapid wrote the Philippine National Bank (PNB), San Fernando Branch, requesting for a loan in the amount of One Hundred Four Million Pesos (P104,000,000.00) to be secured by a “hold-out” on the province’s deposit with the bank amounting to P130 Million. PNB eventually granted the loan. The documents for the loan application as well as the promissory note covering the P104 Million loan were executed on November 3, 1997.

On the same date, November 3, 1997, the property owners, through their attorney-in-fact Abelardo Miranda, Jr., executed the corresponding Deed of Absolute Sale for the two parcels of land totaling 40 hectares for the consideration of P104 Million. Petitioner Quiambao, as Provincial Administrator, and Provincial Treasurer Jovito Sabado prepared and signed the P104 Million check paid to Miranda. Governor Lapid signed the Deed of Sale as representative of the province of Pampanga. While the boundaries and descriptions of the subject lots were indicated in the deed, the exact numbers of the Transfer Certificates of Title (TCT) were initially left blank and filled only on November 20, 1997, when TCT No. 439720-R and TCT No. 439721-R were issued in the name of the Municipality of San Fernando, Pampanga.

Records show, however, that the sellers, through Abelardo Miranda, Jr., executed a second Deed of Absolute Sale on November 17, 1997, wherein the amount of the consideration was pegged at only Five Million Pesos (P5,000,000.00). The two lots were reflected in this deed to be part of a mother title described as TCT No. 290669. Moreover, this deed was used as basis for payment of the transfer tax, registration fees and capital gains tax. The signature of Governor Lapid or any representative of the Province of Pampanga did not appear on the face of the second deed of sale.

On January 28, 1998, then Vice-Governor Cielo Macapagal-Salgado, along with three members of the Sangguniang Panlalawigan, wrote a letter to Ombudsman Aniano P. Desierto requesting for an investigation of Governor Lapid, petitioner Quiambao in his capacity as Provincial Administrator, and Provincial Treasurer Jovito Sabado, for “any act of impropriety, dishonesty, irregularity or misconduct”[4] in the purchase of the lots in question.

In a letter dated February 3, 1998, the Sangguniang Panlalawigan informed Governor Lapid that under Resolution Nos. 340 and 341, he was given “full powers to initiate, undertake, negotiate and consummate the purchase of the 40-hectare property, including the contract with the Philippine National Bank, which, indeed, was the purpose, aim, in substance and in fact of the two resolutions”.[5] On February 24, 1998, the Sangguniang Panlalawigan likewise wrote the PNB informing it that Governor Lapid was duly authorized to take out the loan from the Bank to pay for the lots and use the deposits of the Provincial Government of Pampanga as hold-out against the loan.[6]

Not content with the foregoing letters, the Sangguniang Panlalawigan passed Resolution No. 118 and Ordinance No. 5 both dated April 22, 1998, which provide:

RESOLUTION NO. 118

A RESOLUTION RATIFYING AND ACCEPTING THE TERMS AND CONDITIONS OF THE CONTRACT OF LOAN SET FORTH BY THE PHILIPPINE NATIONAL BANK IN CONNECTION WITH THE LOAN APPLICATION OF THE PROVINCE FOR A LOAN AS DEPOSIT HOLD-OUT FOR AND IN BEHALF OF THE PROVINCE OF PAMPANGA.

x x x x x x x x x

WHEREAS, in Sangguniang Panlalawigan letter dated February 24, 1998 addressed to VP Largion Najera of PNB, the approving members confirmed that they gave full power and authority to Gov. Lapid to initiate, undertake, negotiate and consummate the purchase of the subject 40-hectare property including the authority to enter into that contract of loan with PNB for P104 Million and to do other acts necessary and proper to implement the project such as but not limited to the use of the deposits of the Provincial Government of Pampanga with PNB San Fernando Branch as hold-out against the loan and the payment of the lot from the proceeds of the said loan.

x x x x x x x x x

THE SANGGUNIANG PANLALAWIGAN OF PAMPANGA, in session assembled:

RESOLVED, as it is hereby resolved, that the Sangguniang Panlalawigan of Pampanga ratifies and accepts, as it hereby ratifies and accepts the terms and conditions of the contract of loan set forth by the Philippine National Bank in connection with the loan application of the Province of Pampanga for a loan vs. deposit hold-out for and in behalf of the Province of Pampanga.

x x x x x x x x x

RESOLVED FINALLY, that the loan be guaranteed by the Savings Account of the Province deposited in the PNB San Fernando, Pampanga Branch under Account No. 470-542111(illegible).

APPROVED.[7]

ORDINANCE NO. 05

AN ORDINANCE AFFIRMING THE LOAN GRANTED BY THE PHILIPPINE NATIONAL BANK TO THE PROVINCIAL GOVERNMENT OF PAMPANGA AMOUNTING TO P104,000,000.00 FOR THE PAYMENT OF THE PURCHASE OF LOT INTENDED FOR LOW-COST HOUSING FOR PROVINCIAL OFFICIALS, EMPLOYEES AND OTHERS.

x x x x x x x x x

Section 1. It is hereby appropriated that the amount of One Hundred Four Million (P104,000,000.00) Pesos representing the loan from the Philippine National Bank is appropriated and disbursed for the payment of lot located at Maimpis, San Fernando, Pampanga, including the use of the deposits of the Provincial Government with the said bank as hold-out against the loan.

x x x x x x x x x

APPROVED.[8]

On August 21, 1998, an Information for violation of Section 3(e) of Republic Act No. 3019[9] was filed by the Ombudsman against petitioner, Governor Lapid and Provincial Treasurer Sabado. On January 13, 1999, the Ombudsman filed before the Sandiganbayan an Amended Information impleading other provincial officials of Pampanga, the sellers of the lots and their agent, Abelardo Miranda, Jr. The case was docketed as Criminal Case No. 24790 entitled “People of the Philippines, plaintiff v. Manuel M. Lapid, et al., accused”. As filed, the Amended Information read:

That in the month of November, 1997, or sometime prior or subsequent thereto, in San Fernando, Province of Pampanga, and within the jurisdiction of this Honorable Court, above-named accused MANUEL M. LAPID, ENRICO P. QUIAMBAO, JOVITO S. SABADO, BENJAMIN G. YUZON, NIDA P. MANALAD, BIENVENIDO C. OCAMPO, LUZVIMINDA R. SORIANO and MA. LUISA R. SAN ANTONIO, all public officers, being then the Provincial Governor, Provincial Administrator, Provincial Treasurer, Provincial Accountant, and Budget Officer of the Provincial Government of Pampanga, and Registrar of Deeds, Chief, Assessment Division, and Clerk of the Bureau of Internal Revenue (BIR), Pampanga, respectively, conspiring and confederating with one another and with accused private citizens ABELARDO C. MIRANDA, JR., FELIPE S. CUYUGAN, SR., VIRGINIA H. CUYUGAN, GERVACIO SINGIAN, FRANCISCA G. SINGIAN, WILFREDO VERGARA and PILAR P. VERGARA, committing the crime herein charged in relation to, and taking advantage of, their official functions, acting with manifest partiality, evident bad faith, and gross inexcusable negligence, did then and there willfully, unlawfully and criminally cause undue injury to the Provincial Government as a whole and to the public interest, by then and there causing the approval and subsequent release of the amount of ONE HUNDRED FOUR MILLION (P104,000,000.00) PESOS, Philippine Currency, in public funds, as contained in PNB Check No. 000219301 dated November 3, 1997 obtained through a loan from Philippine National Bank (PNB), to accused ABELARDO C. MIRANDA, JR., Attorney-in-Fact for the vendors, accused FELIPE S. CUYUGAN, SR., VIRGINIA H. CUYUGAN, GERVACIO SINGIAN, FRANCISCA G. SINGIAN, WILFREDO VERGARA and PILAR P. VERGARA, of a 40-hectare property located in San Fernando, Pampanga, as purported consideration for the purchase of the aforesaid property despite the following facts known to the accused: first, that the November 3, 1997 Deed of Sale which purports to convey to the Province of Pampanga title over properties was conspicuously defective as it left blank the transfer certificate(s) of titles and lots it referred to; second, that it was not by virtue of the said November 3, 1997 Deed of Sale that the ownership over the property was transferred to the Province of Pampanga, but, instead, by virtue of a Deed of Sale dated November 17, 1997, which stipulated the purchase price of FIVE MILLION (P5,000,000.00) PESOS, which November 17, 1997 Deed of Sale was used for registration and tax purposes, depriving the government of the correct taxes due on the ONE HUNDRED FOUR MILLION (P104,000,000.00) PESOS actually paid for said acquisition; third, that accused MANUEL M. LAPID was not authorized to purchase the property as his authority under Resolution No. 340 of the Provincial Board of Pampanga dated October 13, 1997 was only to negotiate for the purchase of a parcel of land within San Fernando, Pampanga; fourth, that accused MANUEL M. LAPID was not authorized to use the ONE HUNDRED FOUR MILLION (P104,000,000.00) PESOS loan obtained from PNB as payment for the said lot acquisition, thereby depriving the use of the said government fund for the purposes it was intended, as his authority under Resolution No. 341 of the Provincial Board of Pampanga dated October 13, 1997 was merely to enter into a contract of loan with the PNB or any financial institution; and fifth, that the public fund in the amount of ONE HUNDRED FOUR MILLION (P104,000,000.00) PESOS was disbursed without the required duly approved voucher and certificate of availability of funds; to the damage and prejudice of the government.

CONTRARY TO LAW.[10]

On September 20, 1999, petitioner filed before the Office of the Ombudsman a Motion for Reconsideration of the November 9, 1998 Memorandum recommending the filing of Amended Information. Meanwhile, Ombudsman Prosecutor II Raymundo Julio A. Olaguer recommended the withdrawal of the Information filed in the Sandiganbayan.[11] However, the Ombudsman disapproved the recommendation of the OSP and directed the prosecution of the criminal charge.[12] The Ombudsman likewise denied the Motion for Reconsideration filed by petitioner.[13]

Hence, this petition on the following grounds:

PUBLIC RESPONDENT OMBUDSMAN GRAVELY ABUSED HIS DISCRETION WHEN HE DISAPPROVED THE RECOMMENDATION OF THE SPECIAL PROSECUTOR AND DEPUTY SPECIAL PROSECUTOR FOR THE DISMISSAL OF THE CASE AGAINST ALL THE ACCUSED NOTWITHSTANDING THAT THE AFORESAID RECOMMENDATION IS BASED ON STRONG AND VALID GROUNDS.[14]

II.

PUBLIC RESPONDENT OMBUDSMAN GRAVELY ABUSED HIS DISCRETION WHEN HE APPROVED THE RECOMMENDATION OF THE SPECIAL PROSECUTOR AND SPECIAL PROSECUTION OFFICER III FOR THE DENIAL OF PETITIONER’S MOTION FOR RECOMMENDATION NOTWITHSTANDING THAT THE GROUNDS IN SUPPORT OF SAID RECOMMENDATION ARE NOT MERITORIOUS AND THERE IS NO PROBABLE CAUSE AGAINST PETITIONER.[15]

The petition has no merit.

Refuting the allegations contained in the Information filed before the Sandiganbayan, petitioner argues that, first, the titles which were subject of the sale still had to be issued and extracted from the mother title and hence, it was reasonable that the titles were indicated in the November 3, 1997 Deed of Sale only upon the subdivision of the lots and the issuance and registration of the titles by the Registry of Deeds of Pampanga. Without the Deed of Sale, no annotation can be made on the mother title, and the two titles cannot be issued. Second, the November 17, 1997 Deed of Sale was unilaterally executed by the sellers through their agent Abelardo Miranda, Jr., without the knowledge or consent of the respondents public officials. The capital gains and documentary stamp taxes based on the P104 Million purchase price have been correctly paid. Third, the letters of the Sangguniang Panlalawigan of Pampanga dated February 3 and February 28, 1998 as well as its Resolution No. 118 and Ordinance No. 5 show that full authority was given to Governor Lapid not only to negotiate but to consummate the purchase of the 40-hectare property. Fourth, the documents likewise show that Governor Lapid was authorized by the Sangguniang Panlalawigan to enter into a contract of loan with the PNB for P104 Million and to use the deposits of the province as a hold-out against the loan. Fifth, there is no issue as regards the alleged non-compliance with the Accounting and Auditing Rules of the Commission on Audit, particularly P.D. 1445 and R.A. 7160, on the disbursement of public funds since a duly approved voucher and certificate of availability of funds were accomplished.

Petitioner also argued that the elements of the crime of violation of Section 3(e) of R.A. No. 3019, as amended, are absent in this case. The purchased land had the lowest price and best location among all the other properties offered for sale. No undue injury was caused to any party. Likewise, no evident bad faith or gross negligence exists as the transactions involved were authorized and benefited the Province of Pampanga which was not prejudiced by the hold-out loan since it still owned the funds and its time deposit earns interest. Furthermore, the best bank terms were obtained for the province – low interest rate of 3.75%, payable within one year, compared to the prevailing commercial rate at the time of almost 30% per year. No conspiracy exists among the fifteen respondents considering that each belong to different offices and agencies of the government; their acts or participation, if any, are totally independent of each other.

The law allegedly violated is R. A. No. 3019, Section 3(e). There are two ways of violating Section 3(e), R.A. No. 3019, to wit: (a) by causing any undue injury to any party, including the Government; and (b) by giving any private party unwarranted benefit, advantage or preference. In order to be held guilty of this crime, the act of the accused that caused undue injury must have been done with evident bad faith or with gross inexcusable negligence.[16] The elements of the offense, essential for the conviction of an accused, are as follows:

(1) The accused is a public officer or a private person charged in conspiracy with the former;

(2) The said public officer commits the prohibited acts during the performance of his or her official duties or in relation to his or her public positions;

(3) That he or she causes undue injury to any party, whether the government or a private party;

(4) Such undue injury is caused by giving unwarranted benefits, advantage or preference to such parties; and

(5) That the public officer has acted with manifest partiality, evident bad faith or gross inexcusable negligence.[17]

We find that the Ombudsman did not commit any grave abuse of discretion in finding probable cause for and sanctioning the filing of an Information against petitioner and his co-accused on charges of violation of Section 3(e), R.A. No. 3019. Probable cause has been defined as the existence of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted.[18] The term does not mean “actual and positive cause” nor does it import absolute certainty. It is merely based on opinion and reasonable belief. Probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission complained of constitutes the offense charged.[19]

The existence or lack of bad faith on the part of the petitioner and his co-accused as well as the injury that may have been caused to the province of Pampanga by the assailed transaction, as elements of the crime, are evidentiary in nature. The issues upon which the charges are built pertain to factual matters that cannot be threshed out conclusively during the preliminary stage of the case. Precisely, there is a trial for the presentation of prosecution’s evidence in support of the charge.

Petitioner’s argument that he should not be indicted for violation of Section 3(e) of R.A. No. 3019, considering that his participation was purely ministerial, i.e., he merely countersigned the check for P104 Million upon the instructions of the Governor cannot be sustained. We agree with the Ombudsman that the magnitude of the transaction involved should have placed the petitioner and all the provincial officials concerned on guard to see to it that every precaution is set to ensure that the province will not be at a disadvantage. Pampanga’s former Vice-Governor made an allegation that at the time of the transaction, the province’s total deposit with PNB amounted to P167 Million. Of this amount, P130 Million was used as a hold-out for the P104 Million loan of the province. This effectively left the Provincial Government with only P37 Million, of which only P26 Million is classified as “general fund”.[20] The second Deed of Sale allegedly executed by the sellers almost cheated the government of millions of pesos in capital gains and documentary stamp taxes. As the Ombudsman aptly puts it: whatever corrective measures undertaken after-the-fact will not undo whatever violation may have attached. Nonetheless, the exact culpability of the accused, or the lack thereof, would have to be determined in a full-blown trial after the presentation of the evidence.

As a rule, we have consistently adopted a policy of non-interference in the conduct of preliminary investigations and provided sufficient latitude of discretion to the investigating prosecutor to determine what constitutes sufficient evidence as will establish probable cause.[21] As we held in the case of The Presidential Ad-Hoc Fact Finding Committee on Behest Loans v. Ombudsman Aniano Desierto:[22]

The prosecution of offenses committed by public officers is vested in the Office of the Ombudsman. To insulate the Office from outside pressure and improper influence, the Constitution as well as R.A. 6770 has endowed it with a wide latitude of investigatory and prosecutory powers virtually free from legislative, executive or judicial intervention. This court consistently refrains from interfering with the exercise of its powers, and respects the initiative and independence inherent in the Ombudsman who, “beholden to no one, acts as the champion of the people and the preserver of the integrity of the public service”.

The functions of the courts will be hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it, or compelling it to review the exercise of discretion on the part of the prosecutor each time an Information is filed in court or a private complainant’s complaint is dismissed.[23] Ultimately, the discretion to determine whether a case should be filed or not lies with the Ombudsman. It is basically his call. Absent any good and compelling reason which indicates otherwise, his findings of probable cause deserve great respect.

WHEREFORE, the instant petition for certiorari and prohibition is DISMISSED for lack of merit.

SO ORDERED.

CONSUELO YNARES-SANTIAGO

Associate Justice

WE CONCUR:

HILARIO G. DAVIDE, JR.

Chief Justice

LEONARDO A. QUISUMBING ANTONIO T. CARPIO

Associate Justice Associate Justice

ADOLFO S. AZCUNA

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

HILARIO G. DAVIDE, JR.

Chief Justice

[9] SEC. 3. Corrupt practices of public officers. – In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

x x x x x x x x x

(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.

[16] Baylon v. Office of the Ombudsman, 423 Phil. 705 (2001).

[17] Garcia v. Office of the Ombudsman, 382 Phil. 553 (2000); Llorente v. Sandiganbayan, 350 Phil. 820 (1998).

[18] Raro v. Sandiganbayan, 390 Phil. 917 (2000).

[19] Pilapil v. Sandiganbayan, G.R. No. 101978, 7 April 1993, 221 SCRA 349.

[20] Ms. Macapagal-Salgado’s Comment on the Petition for Certiorari, Rollo, p. 435.

[21] Espinosa, et al. v. Office of the Ombudsman, G.R. No. 135775, 19 October 2000, 343 SCRA 744; see also Ocampo IV v. Office of the Ombudsman, G.R. Nos. 103446-47, 30 August 1993, 225 SCRA 725; Young v. Office of the Ombudsman, G.R. No. 110736, 27 December 1993, 228 SCRA 718.

[23] Kuizon v. Desierto, G.R. Nos. 140619-24, 9 March 2001, 354 SCRA 158, citing Ocampo IV v. Ombudsman, supra.