THIRD DIVISION
|
DANILO D. COLLANTES, Petitioner, - versus - HON. SIMEON MARCELO, in
his capacity as Ombudsman, and the FACT FINDING INTELLIGENCE BUREAU as
represented by Atty. Maria Olivia Elena A. Roxas, Respondents. |
G.R.
Nos. 167006-07
Present: YNARES-SANTIAGO, J.,
Chairperson, AUSTRIA-MARTINEZ, CHICO-NAZARIO, and NACHURA, JJ. Promulgated: August 14, 2007 |
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D E C I S I O N
NACHURA, J.:
This special civil action for certiorari and prohibition under Rule 65 of the Rules of Court
seeks to annul and set aside the Memorandum[1] of
the Office of the Ombudsman (Ombudsman), dated
Virgilio Cervantes (Cervantes) was
the owner of two (2) parcels of land located at Barangay Sampaloc, Tanay, Rizal, covered by Transfer Certificate of
Title (TCT) Nos. M-10944 and M-15213 (448471), with land areas of 46,481 and
13,019 square meters, respectively, or a total of 59,500 square meters. Sometime in the 1970s, the government,
through the Department of Public Works and Highways (DPWH), took 21,558 square
meters of the said parcels of land and constructed thereon the
In 1998, Cervantes sold the subject
parcels of land (59,500 sq. m.), together with other parcels, to R.J. Pamintuan
Furnishing Corporation (RJ Pamintuan).
Actual sale of the subject properties was effected on
It appears that prior to the said
transfer of titles, RJ Pamintuan already claimed just compensation for the
affected portions of the parcels of land.
The claim was referred to DPWH Regional Director Pleyto, who in turn
requested[7]
the Rizal Provincial Appraisal Committee (R-PAC)[8] to
fix the “current market value” of the subject land. Initially, the R-PAC refused[9] to
act on Pleyto’s request. However, R-PAC
later acceded and fixed the market value of the property at P606.66 per
square meter.[10] The R-PAC, thus, concluded that the fair
market value of the property may be fixed between P19,752,697.93 and P21,181,612.50,
taking into consideration the value of the property as appraised, together with
the consequential damages on the remaining land and fruit-bearing trees.[11]
After a series of consultation with the
DPWH Legal Services, RJ Pamintuan, represented by Teresita Pamintuan, and the
Republic of the P982.54 per square meter, for a
total consideration of P14,503,272.94.
Pamintuan waived and renounced her rights on the remaining 6,797 square
meters.
In a letter-complaint dated
After due proceedings, Graft Investigation Officer
Wilfred L. Pascasio issued a Joint Resolution[13] recommending the filing of an Information for
violation of Section 3(e) of R.A. No. 3019, as amended. This joint resolution was,
however, set aside on
It
appears therefore that the pieces of evidence at hand are still insufficient to
establish the existence of undue injury or the giving of unwarranted benefits
to private respondent absence of (sic) the disbursement vouchers, the check
which the DPWH issued in payment to the private respondent or cash amount, if
any, and such other documents which would sufficiently establish that the
payment in the amount of P14,683,727.94 were actually effected by the
DPWH in favor of the private respondent.
x
x x x
FOREGOING PREMISES BEING
CONSIDERED, we most
respectfully recommend these complaints lodged against respondents SALVADOR A. PLEYTO, TERESITA
FABIAN-PAMINTUAN, OSCAR R. BARAQUEO (sic), DANILO O. COLLANTES and CARLOS
Z. RODENAS be provisionally DISMISSED,
without prejudice to the refiling of the same in case the complainant (FFIB)
will be able to present sufficient evidence to establish that the contract
alluded to in the complaint had been actually been implemented.
Meanwhile, let [the] entire records of this case be
reproduced, downgraded as a CPL and thereafter referred to the FFIB for further
fact finding investigation.
ACCORDINGLY, the herein Joint Resolution dated
The Acting Ombudsman
approved the recommendation on
After further fact-finding investigation,
the Fact Finding and Intelligence Bureau (FFIB) revived the cases filed against
the DPWH officials[16]
and the members of R-PAC, with the case
docketed as OMB C-C-03-0383-G.
Baraquero,
Collantes, and Rodenas of the RPAC filed their Joint Counter-Affidavit (with
Manifestation).[17] They moved for the dismissal of the case
arguing that similar cases had already
been filed and dismissed for lack of evidence, and, therefore, the revival is unwarranted. Likewise, they denied the charges against
them alleging that they only acted on the request of Pleyto to fix the current
market value of the property. They did
so by conducting a hearing and investigation.
Thereafter, they issued the appraisal report. Finally, they denied liability for the
contract, arguing that they had no hand in its execution.
On
WHEREFORE, let an information be filed forthwith
in Court for the prosecution of respondents
The
complaint against ROMEO PANGANIBAN,
LAMBERTO A. AGUILAR and GODOFREDO T.
ZABALE be DISMISSED for
insufficiency of evidence.
It is further recommended, that then
Assistant Secretary Manuel G. Bunan (sic) and then Secretary Gregorio R.
Vigilar be subjected to fact-finding investigation for possible gross
inexcusable negligence in violation of Section 3 (e) of R.A. 3019, as amended.[19]
This was approved by the
Ombudsman on
An Urgent Joint Motion for Reconsideration
was filed by Baraquero, Collantes, and Rodenas, but the Ombudsman denied the
same in the assailed Supplemental Order,[20]
for having been tardily filed and for lack of merit.
Hence, this petition by Collantes, positing
these issues:
I
WHETHER OR NOT PUBLIC
RESPONDENT GRAVELY ABUSED
HIS DISCRETION AMOUNTING
TO LACK OR
EXCESS OF JURISDICTION WHEN HE
RECOMMENDED THE FILING OF INFORMATION AGAINST PETITIONER FOR ALLEGED VIOLATION
OF SECTION 3(e) OF THE ANTI-GRAFT AND CORRUPT PRACTICES ACT DESPITE LACK OF
PROBABLE CAUSE AGAINST HIM.
II
WHETHER OR NOT PUBLIC RESPONDENT GRAVELY
ABUSED HIS DISCRETION WHEN
HE FAILED TO
RECONSIDER THE MEMORANDUM DATED
We find merit in the petition.
The
rule is that as far as crimes cognizable by the Sandiganbayan are concerned,
the determination of probable cause during the preliminary investigation is a
function that belongs to the Office of the Ombudsman. The Ombudsman is empowered to determine, in
the exercise of his discretion, whether probable cause exists, and to charge
the person believed to have committed the crime as defined by law.[22] As a rule, courts should not interfere with
the Ombudsman’s investigatory power, exercised through the Ombudsman
Prosecutors, and the authority to determine the presence or absence of probable
cause, except when the finding is tainted with grave abuse of discretion
amounting to lack or excess of jurisdiction.
In such case, the aggrieved party may file a petition for certiorari under Rule 65 of the Rules of
Court.[23] Petitioner thus rightly elevated his case to
this Court ascribing grave abuse of discretion on the part of the Ombudsman in
giving due course to the complaint.
There is grave abuse of discretion
where power is exercised in an arbitrary, capricious, whimsical or despotic
manner by reason of passion or personal hostility, so patent and gross as to
amount to evasion of a positive duty or virtual refusal to perform a duty
enjoined by law.[24] When the Ombudsman does not take essential
facts into consideration in the determination of probable cause, there is abuse
of discretion.[25] The Court has consistently issued a writ of certiorari in any of the following
instances:
1.
When necessary to afford adequate protection to
the constitutional rights of the accused;
2. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions;
3. When there is a prejudicial question that is sub judice;
4. When the acts of the officer are without or in excess of authority;
5. Where the prosecution is under an invalid law, ordinance or regulation;
6. When double jeopardy is clearly apparent;
7. Where the court has no jurisdiction over the offense;
8. Where it is a case of persecution rather than prosecution;
9. Where the charges are manifestly false and motivated by the lust for vengeance;
10. When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied.[26]
Petitioner was charged with violation
of Section 3(e) of R.A. No. 3019, which states:
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
(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.
The elements of the offense are: 1) the accused must be a public officer
discharging administrative, judicial or official functions; 2) he must have
acted with manifest partiality, evident bad faith or inexcusable negligence;
and 3) that his action caused any undue injury to any party, including the
government, or gave any private party unwarranted benefits, advantage or
preference in the discharge of his functions.[27] Evidently, mere bad faith or partiality and
negligence per se are not enough for
one to be held liable under the law, since the act constitutive of bad faith or
partiality must, in the first place, be evident or manifest, respectively,
while the negligent deed should be both gross and inexcusable. It is further required that any or all of
these modalities ought to result in undue injury to a specified party.[28]
The
issue of whether or not there was evident bad faith on the part of petitioner
in performing his function as a member of the R-PAC, is most relevant in the
instant case. The Ombudsman, in finding
probable cause, concluded that petitioner acted with evident bad faith because
of the allegedly wrong appraisal he made on the subject properties which
appeared to be unquestionably high and based on the current market value in
1998 and not at the time of the taking in 1970.
We do not agree.
The creation of the PAC, as well its
powers and functions, are set forth in Executive Order No. 132, the Procedure to Be Followed in the Acquisition
of Private Property for Public Use and Creating Appraisal Committees. The said order clearly states that the just
compensation of properties taken for public use should first be determined by
the mutual agreement of the property owner and the government agency
involved. In case of failure to arrive
at an acceptable agreement, the PAC comes in to ascertain the market value of
the property. If the recommendation of
the PAC is not acceptable to the government entity or to the property owners,
condemnation proceedings shall be commenced where the just compensation shall
be fixed by independent commissioners.
From the foregoing, it is clear that the PAC’s power, in fixing the fair
market value, is merely recommendatory.
As such, it is subject to review by the property owners and the
government agency concerned. The State
was represented by the DPWH, being the agency concerned with the taking of the
property. It was incumbent upon DPWH to
object to the appraisal made by the R-PAC as it appeared to be erroneously
based on its current market value (value in 1998-1999), and not on the value at
the time of the taking (in 1970).
The recommendatory nature of
petitioner’s function is not negated by DPWH Department Order No. 520, Series
of 1998, which states that the just compensation determined by the appraisal
committee shall be the basis of negotiation with the property owners for the
purchase of the property involved.[29] Assuming that the DPWH indeed uses the
appraisal made by the Committee, still, the same may be objected to by the
property owner. The R-PAC’s appraisal
may likewise be set aside altogether, where the court intervenes through the
commissioners. Neither did such
Department Order exempt the DPWH from its obligation to protect the government
from unlawful claims.
For a public officer to be
charged/convicted under Section 3(e) of R.A. No. 3019, he must have acted with manifest partiality, evident bad
faith or inexcusable negligence. We
cannot subscribe to the Ombudsman’s conclusion that petitioner acted with bad
faith, or with “evident” bad faith, simply because its appraisal appeared to be
unacceptable. In arriving at such
conclusion, the Ombudsman failed to appreciate an important fact, that is, that
the power of the R-PAC is merely recommendatory. [30]
Well-settled is the rule that good
faith is always presumed and the Chapter on Human Relations of the Civil Code
directs every person, inter alia, to
observe good faith which springs from the fountain of good conscience.[31] Specifically, a public officer is presumed to
have acted in good faith in the performance of his duties. Mistakes committed by a public officer are
not actionable absent any clear showing that they were motivated by malice or gross
negligence amounting to bad faith.[32] “Bad faith” does not simply connote bad moral
judgment or negligence. There must be
some dishonest purpose or some moral obliquity and conscious doing of a wrong,
a breach of a sworn duty through some motive or intent or ill will. It partakes of the nature of fraud. It contemplates a state of mind affirmatively
operating with furtive design or some motive of self-interest or ill will for
ulterior purposes.[33]
The law also requires that the public
officer’s action caused undue injury to any party, including the
government, or gave any private party unwarranted benefits, advantage or
preference in the discharge of his functions.
Did the petitioner’s act of appraising the subject properties cause
undue injury? We answer in the
negative. Since the appraisal was still
subject to approval by the parties and further acts had to be done to
consummate the questioned transaction, which are way beyond the petitioner’s
control, the mere wrong appraisal is far from causing undue injury to any
party.
Furthermore, the Ombudsman cannot
impute bad faith on the part of the petitioner on the assumption that he,
together with the other members of the R-PAC, was a “willing partner,” thus, a
part of a conspiracy to cause undue injury to the government. Noteworthy is the pronouncement of this Court
in Sistoza v. Desierto,[34] citing Sabiniano v. Court of Appeals,[35] worded in this wise:
Proof, not mere conjectures or assumptions,
should be proferred to indicate that the accused had taken part in, x x x the
planning, preparation and perpetration of the alleged conspiracy to defraud the
government for, otherwise, any careless use of the conspiracy theory (can)
sweep into jail even innocent persons who may have (only) been made unwitting
tools by the criminal minds really responsible for that irregularity.
Again,
the mere act of petitioner as a member of the R-PAC in appraising the subject
properties cannot be considered an overt act in furtherance of one common
design to defraud the government. A
perusal of the Committee’s Appraisal Report shows that the value fixed by the Committee
was not conclusive, and to reiterate, merely recommendatory. Said report states: The appraised value
arrived at should not be considered final and controlling as it is also
expected from the DPWH to evaluate the report and draw their own conclusion as
regards the equitable valuation of the property.[36]
Thus,
where the evidence patently demonstrates the innocence of the accused, as in
this case, we find no reason to continue with his prosecution; otherwise,
persecution amounting to grave and manifest injustice would be the inevitable
result.[37]
Agencies tasked with the preliminary
investigation and prosecution of crimes should never forget that the purpose of
a preliminary investigation is to secure the innocent against hasty, malicious
and oppressive prosecution, and to protect one from an open and public
accusation of crime, from the trouble, expense and anxiety of a public trial,
and also to protect the State from useless and expensive trials. It is, therefore, imperative upon such
agencies to relieve any person from the trauma of going through a trial once it
is ascertained that the evidence is insufficient to sustain a prima facie case or that no probable
cause exists to form a sufficient belief as to the guilt of the accused.[38]
WHEREFORE, the
instant petition is GRANTED. The Memorandum of the Office of the Ombudsman
(Ombudsman), dated May 11, 2004, and its Supplemental Order dated
SO ORDERED.
ANTONIO
EDUARDO B. NACHURA
Associate
Justice
WE CONCUR:
CONSUELO YNARES-SANTIAGO
Associate
Justice
Chairperson
|
MA. ALICIA AUSTRIA-MARTINEZ Associate
Justice |
MINITA V. CHICO-NAZARIO Associate
Justice |
A T T E S T A T I O N
I attest 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.
CONSUELO
YNARES-SANTIAGO
Associate
Justice
Chairperson,
Third Division
C E R T I F I C A T I O N
Pursuant to Article VIII, Section 13 of the Constitution,
and the Division Chairperson's Attestation, 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.
REYNATO
S. PUNO
Chief Justice
[1] Rollo, pp. 36-62.
[2]
[3]
[4]
[5] The titles include TCT Nos. M-91211 and 91212.
[6] Rollo, p. 38.
[7] The request was embodied in a
letter addressed to the Chairman of R-PAC dated
[8] The R-PAC was composed of Baraquero as Chairman and Rodenas and Collantes, as members.
[9] The reply of R-PAC to Pleyto was
embodied in a letter dated
[10] The market value of the property was
arrived at by taking into consideration the fair market value applied as of
1998 which is P750.00 per square meter; the average value for 1995 which
is P470.00 per square meter; and BIR’s zonal value which is P600.00
per square meter.
[11] Rollo, p. 86.
[12] Dated
[13] Record,
Vol. 1, pp. 10-15.
[14] Rollo, pp. 87-93.
[15]
[16] The re-investigation included Romeo Panganiban, Lamberto A. Aguilar, and Godofredo T. Zabale.
[17] Rollo, pp. 94-98.
[18]
[19]
[20]
[21]
[22] Ramiscal,
Jr. v. Sandiganbayan, G.R. Nos. 169727-28,
[23] Ramiscal, Jr. v. Sandiganbayan, id.; Fuentes v. Sandiganbayan, G.R. No.
164664, July 20, 2006, 495 SCRA 784, 799.
[24] Sistoza v. Desierto, 437 Phil. 117, 129 (2002); Baylon v. Office of the Ombudsman, 423 Phil. 705, 720 (2001).
[25] Ramiscal, Jr. v. Sandiganbayan, supra
note 23; Fuentes v. Sandiganbayan, supra
note 23; Sistoza v. Desierto, id.
[26] Ramiscal, Jr. v. Sandiganbayan, supra note 22, at 395; Fuentes v. Sandiganbayan, supra note 23, at 800; Mendoza-Arce v. Office of the Ombudsman (Visayas), 430 Phil. 101, 113 (2002).
[27] Uriarte
v. People, G.R. No. 169251,
[28] Sistoza v. Desierto, supra note 24, at 130.
[29] Rollo,
pp. 368-369.
[30] See
Caugma v. People, G.R. No. 167048,
April 7, 2006, 486 SCRA 611, 633; Principio
v. Barrientos, G.R. No. 167025, December 19, 2005, 478 SCRA 639, 649.
[31] Venus v. Desierto, 358 Phil. 675, 697 (1998).
[32] Saber
v. Court of Appeals, G.R. No. 132981,
[33] Mendoza-Arce v. Office of the Ombudsman (Visayas), supra note 26, at 115; Baylon v. Office of the Ombudsman, supra note 24, at 724; Llorente, Jr. v. Sandiganbayan, 350 Phil. 820, 843 (1998).
[34] Supra note 24, at 136.
[35] 319 Phil. 92, 98 (1995).
[36] Rollo,
p. 86.
[37] Principio
v. Barrientos, supra note 30, at 652.
[38] Baylon v. Office of the Ombudsman, supra note 24, at 709; Venus v. Desierto, supra note 31, at 699-700.