EN BANC
|
ERNESTO FRANCISCO, JR., Petitioner, - versus - OMBUDSMAN ANIANO A. DESIERTO, JOSEPH EJERCITO
ESTRADA, MARIANO Z. VELARDE, FRANKLIN M. VELARDE, ROBERT C. NACIANCENO, REY
DIVINO S. DAVAL-SANTOS, SOLEDAD S. MEDINA-CUE, PATRICK B. GATAN, LUIS V.
MEDINA-CUE, SILVESTRE A. DE LEON, RAMON V. DUMAUAL, RUBEN A. DE OCAMPO,
MARIANO A. BENEDICTO II, GREGORIO R. VIGILAR, LUIS JUAN L. VIRATA, CESAR E.
A. VIRATA, MANUEL B. ZAMORA, JR., RONALDO B. ZAMORA, FRISCO F. SAN JUAN and ARSENIO
B. YULO Respondents. |
G.
R. No. 154117
Present:
PUNO, C.J., QUISUMBING,* YNARES-SANTIAGO, CARPIO, CORONA, CARPIO MORALES, CHICO-NAZARIO, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION,**
PERALTA, BERSAMIN, DEL CASTILLO, and ABAD, JJ. Promulgated: October 2, 2009 |
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R
E S O L U T I O N
LEONARDO-DE
CASTRO, J.:
Before the Court is a petition for
review on certiorari filed under Rule 45 of the 1997 Rules of Civil
Procedure to review and set aside the Resolution[1]
issued by the Office of the Ombudsman dated November 16, 2001 dismissing, for lack of evidence, the
case filed by petitioner Ernesto B. Francisco, Jr. (hereinafter, petitioner);
and the Order,[2] likewise
issued by said Office, dated June 24, 2002 denying,
for lack of merit, petitioners Motion for Reconsideration.
I.
STATEMENT
OF FACTS.
On 16 April 2001, petitioner filed
a Complaint-Affidavit docketed as OMB-0-01-0577 with the Office of the
Ombudsman, alleging that the following respondents, by their individual acts
and/or by conspiring and confederating with one another, have committed the
offenses/acts enumerated hereunder:
a)
For
violation of Republic Act No. 7080, otherwise known as an Act Defining and
Penalizing the Crime of Plunder, specifically Section 2, in relation to Section
1, sub-paragraph d(1), (3) and (6), as amended, by Republic Act No. 7659[:]
1. Joseph Ejercito Estrada former
President of the
Republic
of the Philippines
2.
Mariano
Bro. Mike Z. Velarde
3.
Franklin
M. Velarde
4.
Gregorio
R. Vigilar former Secretary of
[Department
of Public Works and Highways (DPWH)] and Chairman, [Toll Regulatory Board
(TRB)]
5.
Mariano
E. Benedicto II Executive Director, TRB
6.
Ramon
V. Dumaual former Officer-in-Charge,
TRB
7.
Frisco
San Juan former Chairman, [Public
Estates Authority (PEA)]
8.
John
Does and Jane Does
b)
For
violation of Section 3(a) of [Republic Act No. 3019:]
1.
Joseph
Ejercito Estrada
2.
Gregorio
R. Vigilar
3.
Mariano
E. Benedicto
4.
Ramon
V. Dumaual
5.
Frisco
San Juan
6.
John
Does and Jane Does
c)
For
violation of Section 3(e) of R.A. No. 3019:
1.
Joseph
Ejercito Estrada
2.
Mariano
Brother Mike Z. Velarde
3.
Franklin
M. Velarde
4.
Gregorio
R. Vigilar
5.
Mariano
E. Benedicto II
6.
Ramon
V. Dumaual
7.
Ruben
de Ocampo
8.
Frisco
San Juan
9.
Arsenio
B. Yulo former Chairman and
[General] Manager, PEA
10. Robert Nacianceno former
[Metro Manila
Development Authority
(MMDA)] Manager and
Chairman, Paraņaque City
Appraisal Committee
(PCAC)
11. Patrick B. Gatan DPWH
Representative,
PCAC Member
12. Luis V. Medina-Cue Pasay
City Assessor,
PCAC Member
13. Soledad V. Medina-Cue Paraņaque
City Assessor,
PCAC Member
14. Rey Divino Daval-Santos OIC Paraņaque City
Engineers Office, PCAC
Member
15. Silvestre de Leon Paraņaque
City Treasurer,
PCAC Member
16. Ronaldo B. Zamora former
Executive Secretary
17. Luis J. L. Virata
18. Manuel B. Zamora, Jr.
19. Cesar E.A. Virata
20. John Does and Jane Does
d)
For
violation of Section 3(g) of R.A. 3019;
1.
Joseph
Ejercito Estrada
2.
Mariano
Brother Mike Z. Velarde
3.
Franklin
M. Velarde
4.
Gregorio
R. Vigilar
5.
Mariano
E. Benedicto, II
6.
Ramon
V. Dumaual
7.
Ruben
de Ocampo
8.
Frisco
San Juan
9.
Ronaldo
B. Zamora
10. Luis J. L. Virata
11. Manuel B. Zamora, Jr.
12. Cesar E.A. Virata
13. John Does and Jane Does
e)
For
violation of Section 3(h) of R.A. 3019;
1. Ronaldo B. Zamora
f)
For
violation of Section 3(j) of R.A. 3019;
1.
Joseph
Ejercito Estrada
2.
Mariano
Brother Mike Z. Velarde
3.
Franklin
M. Velarde
2.
Gregorio
R. Vigilar
3.
Mariano
E. Benedicto, II
4.
Frisco
San Juan
5.
Ronaldo
B. Zamora
6.
Luis
J. L. Virata
7.
Manuel
B. Zamora, Jr.
8.
Cesar
E.A. Virata
9.
John
Does and Jane Does
[g] For violation of Section 7(a) and (d) of
R.A. 6713;
1. Ronaldo B. Zamora[3]
On May 31, 1990, during the
administration of President Corazon Aquino, the Republic of the Philippines,
through the Toll Regulatory Board (TRB),[4]
granted the Public Estates Authority (PEA) a Toll Operation Certificate to
construct, rehabilitate, maintain and operate a toll expressway, namely, (a)
Seaside Drive at Paraņaque to C-6 at Bacoor, Cavite; and (b) Expressway
Extension to Noveleta/Kawit.
On February 3, 1994, during the
administration of President Fidel Ramos, Renong Berhad, Majlis Amanah Rakyat
(MARA), and the PEA entered into a Memorandum of Understanding to jointly
undertake the implementation of the tollway project.[5]
On December 27, 1994, also during
the administration of President Ramos, Renong Berhad, MARA and the PEA entered
into a Joint Venture Agreement to develop and operate as a toll road the R-1
Expressway Extension. The entire project
became known as the MCTE Project.[6]
On August 17, 1995, Renong Berhad,
MARA, PEA and United Engineers (Malaysia) Berhad entered into a Novation
Agreement whereby Renong Berhad assigned to United Engineers (Malaysia) Berhad
(UEM) its rights, liabilities and obligations under the Joint Venture Agreement.[7]
On July 26, 1996, the Republic of
the Philippines, acting through the TRB, PEA and UEM-MARA Philippines
Corporation (UMPC) entered into a Toll Operations Agreement (TOA)[8]
for the design, construction, operation and maintenance of the MCTE project,
which covered the Manila-Cavite Toll Expressway, the R-1 Expressway, the C-5
Link Expressway, and the R-1 Expressway Extension. President Fidel Ramos approved the TOA on the
same day, July 26, 1996. Under the terms
of the TOA:
1.
UEM-MARA
shall design and construct the expressways covered by the TOA;
2.
TRB
shall ensure the availability and assume responsibility for the acquisition of
the lands required for the right of way including the costs for procuring the
area for the right of way;
3.
PEA
shall operate and maintain the expressways; and
4.
PEA
shall advance the funds necessary for the acquisition of the Right of Way
subject to reimbursement by the Republic of the Philippines.[9]
On August 9, 1997, the
TRB approved the original alignment for the C-5 link. On the basis of this alignment, the TRB
issued notices to the owners of all properties affected, some of which either
belonged to AMVEL Land Corporation (AMVEL) or were part of joint venture
agreements between AMVEL and the property owners. Private respondent Mariano Z. Velarde is the
Chairman of AMVEL while private respondent Franklin M. Velarde is the Executive
Vice President.
Among those property owners to whom
TRB sent notices were the following:
a.
Mariano Z. Velarde;
b.
Asuncion de Jugo;
c.
Cornelia Medina;
d.
Rosario Medina; and
e.
Silvestre Medina.[10]
Under the Memorandum of Agreement[11]
(MOA) between PEA and the Republic of the Philippines through the TRB and the
DPWH, the obligations of PEA and TRB/DPWH with respect to the acquisition of
the right-of-way were set forth. Under
the MOA, the parties agreed that
PEA
shall have the following obligations:
1.
To
pay the purchase price of the lots to be expropriated for right of way as
determined and requested by TRB/DPWH, x x x
2.
To
pay the expenses incurred in the relocation or eviction of squatters for the
right-of-way requirements, subject to TRB/DPWHs repayment x x x;
3.
The
total amount to be disbursed in the acquisition of right-of-way and the
additional expenses incurred in the relocation and eviction of squatters shall
not exceed the amount borrowed under the loan agreement.[12]
On the other hand, TRB shall have the following
obligations:
1.
To
identify and locate the lots to be acquired for the right-of-way;
2.
To
negotiate with individual owners of the lands their purchase price in
accordance with Executive Order No. 329 dated July 11, 1988, Executive Order
No. 368 dated August 24, 1989 and Executive Order No. 369 dated September 14,
1989;
3.
To
cause the removal and/or relocation of the squatters that may hinder the
construction of the expressway;
4.
To
prepare the necessary documents between the TRB/DPWH and the lot owners and
owners of improvements;
5.
To
cause the cancellation of the Certificate of Title in the name of individual
lot owners; [and]
6.
To
certify to the PEA that the lots for payment are free from all encumbrances and
liens in accordance with the TOA.
It was pursuant to this MOA that
the TRB identified and negotiated with the owners of the properties affected by
the construction of the Tollway Project C-5 Link Expressway. Among the properties affected by the Tollway
Project were properties owned or held by AMVEL Land Development Corporation
(AMVEL), namely:
Land
No. Landowner TCT
No. Affected Area
(sq m)
Lot
1-A Corazon & Cornelia
Medina 33989 1,520
Lot
1-B AMVEL Land Development 33989 6,583
Corp.
(AMVEL)
Lot
2-A AMVEL 33988 6,062
Lot
B-3-1 ADV Realty Corp. 122510 2,153
Lot
1 AMVEL 33550 6,643
Lot
2-B AMVEL 31446 3,908
Lot
2-C-1 AMVEL 31460 3,813
Lot
2-D-1 Ma. Asuncion de Jugo 113793
753
Lot
2-F-1 Rona Agustines 113796 2,973
Lot
1 Julieta Evangelista, et
al. 122378 5,229
Lot
3-A E. Tirona, et al. 133990 16,543
Lot
2-B AMVEL 31988 16,313
Lot
4-A Tirona, et al. 133991 7,075
Total 79,568
Pursuant to the MOA, the TRB
requested the Paraņaque City Appraisal Committee (PCAC) of the Metropolitan
Manila Development Authority (MMDA) to appraise the affected properties. This Appraisal Committee was created by
virtue of Executive Order No. 329 dated July 11, 1988 as amended by Executive
Order No. 369 dated August 24, 1989 specifically for the purpose of determining
the fair valuation of properties to be purchased or acquired for development
and infrastructure projects for public use.[13]
On April 21, 1998, PCAC issued
Resolution Nos. 98-5,[14]
98-6[15]
and 98-7[16]
appraising properties along Dr. A. Santos Avenue as follows:
1.
All lots abutting Dr. A. Santos Avenue
at TWENTY FIVE THOUSAND PESOS (P25,000.00)
per sq. m.;
2.
All lots interior of Dr. A. Santos
Avenue particularly along Palasan and Calang-Calangan, Bgy. San Dionisio at
TWENTY THOUSAND PESOS (P20,000.00)
per sq. m.;
3.
All untitled lots abutting Dr. A. Santos
Avenue at SEVENTEEN THOUSAND FIVE HUNDRED PESOS (P17,500.00) per sq. m.; and
4.
All untitled lots interior of Dr. A.
Santos Avenue along Palasan and Calang-Calangan at FOURTEEN THOUSAND PESOS (P14,000.00) per sq. m.[17]
On May 6, 1998, the PCAC
transmitted copies of Resolution Nos. 98-5, 98-6, 98-7 to the TRB.[18]
On May 7, 1998, the TRB, through
its Resolution No. 98-26, approved the acquisition of properties affected by
the C-5 Link in accordance with the PCAC appraisals.[19]
On May 8, 1998, the TRB, through
Ramon V. Dumaual, made Payment Instructions[20] to
PEA to pay AMVELs property at P20,000.00
per sq. m. pursuant to the PCAC Recommendation.
On April 28, 1998, PEA received a
copy of the Memorandum from then President Fidel Ramos, dated April 27, 1998,
regarding the Request of Bro. Mike Velarde Re: DPWH Road Right of Way
Payments/Settlement on C-5 (PEA-Renong Berhad). The Memorandum contained the handwritten
marginal note of then President Fidel V. Ramos directing the DPWH to
Fast-Track the remaining issues NLT April 30, 1998 re the C5-Coastal Road
Project in order to alleviate heavy traffic congestion in the area. At that time, one of the remaining issues was
the payment of the purchase price of AMVEL lands for the right of way, which
was then fixed at P20,000.00 per sq. m.[21]
To determine further the fair
market value of the affected lands, the matter was referred to three
independent appraisers, namely: Asian Appraisal, Inc.; Royal Asia Appraisal
Corporation, and Cuervo Appraisal, Inc.
On October 6, 1998, Asian
Appraisal, Inc. submitted its Appraisal Report[22]
on the affected lands. It determined the
fair market value at P422,622,000.00 for 130,848 sq. m., or P3,229.87 per sq. m.
In its letters dated October 19 and
20, 1998, AMVEL questioned the valuation and sought a reconsideration of said
appraisal. In reply thereto, the TRB, in
its letter dated October 20, 1998, informed AMVEL that it would commission
another private appraisal company to determine the true market value of the
properties in the area.
On December 28, 1998, Royal Asia
Appraisal Corporation submitted its Appraisal Report[23] on
the affected lands. It determined the
fair market value at P4,395,179,000.00 for 319,398 sq. m., or P13,760.82 per sq. m.
In a letter[24]
dated November 8, 1998, AMVEL also
questioned the valuation of Royal Asia and claimed that it was not
realistically indicative of the prevailing market value of the properties. To break the impasse, AMVEL proposed that a
third appraisal be conducted to which then Secretary of the DPWH, respondent Gregorio
Vigilar, agreed. For this purpose,
Cuervo Appraisers, Inc. was engaged to conduct a third appraisal.
On December 9, 1998, AMVEL
complained of the long-delayed payment for its lands while other landowners
adjoining [their] property also affected by the C-5 road right-of-way have
already been paid at a price of P25,000.00 per sq. m.[25]
In his reply dated December 29, 1998,
respondent Vigilar took exception to the claim of AMVEL that there was
long-delayed payment, considering that several appraisals of the affected
properties were made. In the same
letter, he proposed that the average of the three (3) private appraisals be
used as a final valuation.
On January 11, 1999, Cuervo
Appraisers, Inc. submitted its Fair Market Value Appraisal[26] of
the affected lands. It determined the
fair market value at P4,531,752,000 for 251,764 sq. m., or P18,000 per sq. m.
Further negotiations ensued between
the parties. Finally, a consensus was
reached to fix the price by averaging the four appraisals done by MMDA, Royal
Asia, Asian Appraisal, and Cuervo.
On January 15, 1999, the TRB,
through its Resolution No. 99-02,[27]
approved the purchase price of P1,221,799,804.00
for the acquisition of a total area of 79,598 sq. m. The average price per sq. m., as approved by
the TRB, was P15,350.00.
On February 17, 1999, respondent
Joseph E. Estrada, then President of the Republic of the Philippines, issued
Administrative Order No. 50 entitled Prescribing the Guidelines for the
Acquisition of Certain Parcels of Private Land for Public Use including the
Right of Way, Easement of Several Public Infrastructure Projects.
On March 30, 1999, respondent
Estrada issued two (2) Memoranda to respondent Benedicto, the Executive
Director of TRB. The first Memorandum[28]
states:
You are
hereby directed to proceed with right of way acquisition of properties covered
by the TRB Resolution #99-02 dated January 15, 1999, subject to existing laws, rules
and regulations.
The second Memorandum[29]
states:
The
contracts for acquisition of the right of way at the C-5 Link of the
Manila-Cavite Toll Expressway, stated in Resolution No. 99-02 of the Toll
Regulatory Board, is hereby approved, subject to compliance with existing laws,
rules and regulations.
Further,
you are directed to submit to this office a certification, stating that the
said contracts are above board, that due diligence has been complied with, that
these contracts are free from all defects and that the terms of the contract
are the most advantageous to the government.
On March 30, 1999, TRB transmitted
to PEA the Deeds of Absolute Sale executed by TRB and AMVEL as well as the
other parties represented by AMVEL. TRB
advised PEA that it shall immediately inform PEA of the approval by the
President, and that, in the meantime, PEA should take note of the Deed of Sale
and prepare for the eventual payment of the properties in accordance with the
TOA and the MOA.[30]
On April 5, 1999, the TRB, in
compliance with the Memorandum of the President dated March 30, 1999 and
pursuant to its express obligations under the MOA to certify to PEA that the
lots to be acquired were free from all liens and encumbrances, issued its
Compliance and Certification[31]
stating that the Deed of Sale between the Republic of the Philippines and AMVEL
Land Development Corp., dated March 30, 1999 was above-board; that due
diligence had been complied with in the negotiation and execution thereof; that
to the best of our knowledge, the same are free from defects and that the terms
thereof are not disadvantageous to the Government.
Based on such Compliance and
Certification issued by the TRB, PEA paid fifty percent (50%) of the purchase
price to AMVEL.[32]
On April 8, 1999, respondent Benedicto
sent a memorandum[33]
to the TRB informing it that:
a. The
parties executed three (3) deeds of sale on [March 30, 1999];
b. The amounts for the right of way acquisition
were those stated in the TRBs Resolution No. 99-02;
c. Total amount payable of P1,221,766,640
actually lower by 33,244 from the Board approved amount of P1,221,799,884. [34]
On April 29, 1999, or after nearly
a year of negotiations for the purchase of the properties subject of the Right
of Way and upon receipt of the required documentation, PEA released the balance
of the purchase price for the AMVEL properties.[35]
II.
PETITIONERS
ALLEGATIONS
Petitioner, in his
complaint-affidavit[36]
filed before the Office of the Ombudsman, alleges irregularities in the
above-mentioned transactions. In
particular, petitioner contends that the government acquisition of the AMVEL
lands took place in just two and a half working days, considering that it was
Holy Tuesday on March 30, 1999, the date that respondent Estrada issued the
Memorandum to TRB and PEA to proceed with the acquisition of lands for the
right-of-way of the C-5 Link of the MCTE Project, and PEA immediately released
on April 5, 1999 fifty percent (50%) of the total purchase price. He points out that Holy Wednesday was a half-working
day, and what followed was a long holiday, commencing on Holy Thursday and
ending on Easter Sunday.[37] Petitioner alleges that it was due to the personal
intervention of respondent Estrada and his close association with respondent
Mariano Velarde that AMVEL was able to close this deal. In his 183-page petition, he alleges:
65. Respondent Mike Velarde received a
P685,892,495.00 windfall from the government for a property which he acquired
for almost nothing! His only capital
was his closeness to respondent Estrada and the tremendous amount of influence
he wielded in the latters administration.
Of course, all of these he owes to his mostly impoverished flock who
voted for respondent Estrada after Brother Mike endorsed him as tiyak yon.[38]
Petitioner claims that the nine (9)
parcels of land sold by AMVEL to the government, subject of his complaint, were
outrageously overpriced. He alleges that
the Transfer Certificates of Title covering said parcels of land and their
corresponding areas, declared market values, assessed values and selling prices
are as follows:[39]
|
Transfer Certificate of Title |
Area (sq. meters) |
Declared Market Value (Pesos) |
Assessed Value (Pesos) |
Selling Price (Pesos) |
|
140389 |
2,153 |
1,507,100 |
301,420 |
33,059,315 |
|
140388 |
6,643 |
4,650,100 |
930,020 |
102,003,265 |
|
131446 |
3,908 |
1,914,920 |
382,980 |
60,007,340 |
|
140402 |
3,813 |
1,868,370 |
373,670 |
58,548,615 |
|
140396 |
9,427 |
6,598,900 |
1,319,780 |
144,751,585 |
|
140397 |
44,669 |
31,268,300 |
6,253,660 |
685,892,495 |
|
140404 |
753 |
368,970 |
73,790 |
11,562,315 |
|
140405 |
2,973 |
1,456,770 |
291,350 |
45,650,415 |
|
140408 |
5,299 |
2,562,210 |
512,440 |
81,366,145 |
|
Total |
79,638 |
52,195,640 |
10,439,110 |
1,222,841,490 |
Petitioner likewise claims that
based on the 1999 tax declarations, AMVEL sold parcels of land, which were undeveloped
agricultural lands and salt-making beds (salinar) but which had been
reclassified as residential, to the government at a price which was more than
2,300% percent of their total declared market value and 11,700% percent of
their total assessed value.[40]
Petitioner asserts that the
purchase price for right-of-way acquisition should be the equivalent of the
zonal value plus ten (10%) percent thereof, based on Administrative Order No.
50,[41]
which respondent Estrada issued on February 17, 1999 and was made effective immediately. Since the zonal value of the subject parcels
of land was set the year before at Four Thousand Five Hundred Pesos (P4,500.00)
per sq. m. by the Department of Finance,[42]
the purchase price should have been Four Thousand Nine Hundred Fifty Pesos (P4,950.00)
only, for a total purchase price of Three Hundred Ninety-Four Million Two
Hundred-Eight Thousand and One Hundred Pesos only (P394,208,100.00). He claims that the price that the government
paid (P15,355.00 per sq. m.) was 310% of the zonal value.[43]
Petitioner argues that [by] not
following the guidelines set by Administrative Order No. 50, the government was
defrauded of the staggering amount of [P828,633,390.00] and burdened
with the payment of interest. The
government was made to pay in full when the guidelines set by said
Administrative Order provided that, should the landowner refuse to accept the
purchase price, the government would be mandated to initiate expropriation
proceedings and deposit only ten (10%) percent of the offered amount.[44]
Petitioner notes that even
respondent Estrada chose not to follow the guidelines prescribed by
Administrative Order No. 50 by directing TRB to proceed with the acquisition
and approving [AMVELs] Deeds of Sale.
He alleges that there was no legal impediment to its application because
the Deeds of Sale for the AMVEL acquisitions were executed long after the
effectivity date of Administrative Order No. 50.[45]
Petitioner questions the findings
of the government appraisal body, MMDA-PCAC, that the subject parcels of land
have already been developed, and that these were classified as commercial
lands. He relies on a document found
among the records of the Legal Office of the Presidential Management Staff[46]
that states that the lands were formerly salt-making beds (SALINAR) which are
not suitable for residential or commercial purposes; that AMVEL merely
covered these salt factories with trash and other low-grade filling materials;
that the properties did not even have access to the highway .. [until] AMVEL
built a bridge from said properties to Dr. A. Santos Avenue
when it was
already negotiating with the government; and that AMVEL knew beforehand about
the proposed highway when it acquired the properties at a purchase price of Two
Thousand Pesos (P2,000.00) per sq. m., properties that were later sold
to the government at Fifteen Thousand Three Hundred Fifty-Five Pesos (P15,355.00)
per sq. m.[47]
The rest of petitioners
allegations were summarized by respondent Office of the Ombudsman in the
questioned Resolution,[48]
which summary we find to be succinct and hereby quote in part below:
The complainant
points out that much earlier, in March 1996, the heirs of a certain Andres
Buenaventura filed an action for annulment of title and reconveyance against the
Tirona-Medina families before the RTC-Paranaque, docketed as Civil Case No.
96-0141. The Buenaventura heirs claimed
that they were rightful owners of the parcel of land covered by TCT No. 14729. The Buenaventura heirs caused the annotation
of a Notice of Lis Pendens on TCT No. 14729.
This notice of Lis Pendens was carried over to the subdivided lots
covered by TCT Nos. 133988, 133990 and 133991.
On 06 November 1998,
AMVEL submitted to the TRB what it claimed to be a Decision dated 29 October
1998 of the Court of Appeals First Division in CA-G.R. No. 54402, which
supposedly affirmed the Decision of the RTC-Paranaque dismissing the case filed
by the Buenaventura heirs. The purported
Court of Appeals Decision was signed by Associate Justices Oswaldo Agcaoili,
Fidel Purisima and Corona Ibay-Somera.
The complainant
alleges that the supposed 28 October 1998 Decision was falsified and
non-existent. In fact, the records of
the Court of Appeals show that, on 22 February 1999, its Docket was instructed
to (a)wait result of the investigation of NBI as per instructions of J.
Valdez. However, based on the same
records, nothing was heard or mentioned again about the result of the said NBI
investigation.
Notwithstanding the
attempt to defraud the government with the submission of the falsified and
non-existent Court of Appeals Decision, TRB did not charge AMVEL and, instead,
proceeded with the execution of the Deeds of Sale on 30 March 1999.
The complainant
further alleges that the original projected cost of the right-of-way for the
MCTE Project at the time the Toll Operation Agreement between the government
and the foreign investor, Renong Berhad, was being deliberated in late 1995,
was P900 million only. However, by the
time the Toll Operation Agreement was approved by the Office of the President
on 26 July 1996, the cost of the right-of-way acquisition had already risen to
P1.7 billion.
The Toll Operation
Agreement dated 26 July 1996 itself, in paragraph 5.04 thereof, likewise
provides that the Grantee (PEA) shall advance the funds necessary for the
acquisition of the Right of Way except land to be reclaimed subject to a
limit of [P1.7 million] and such funds shall be reimbursed by the
Grantor to the Grantee.
As late as October
1998, UEM-MARA Philippines Corporation (UMPC), the local subsidiary of UEM
Berhad and a signatory to the Toll Operation Agreement, in a report to the
Board of Investments entitled Manila Cavite Toll Expressway Project-Project
Description October 1998, reported in its Summary of Project Costs that the
total right-of-way cost is only P1.7 billion.
This is broken down as follows: C-5 Link Expressway, P1.356 billion; and
R-1 Extension Expressway, P344 million.
UMPC further reported that TRB on the other hand will be responsible
for the acquisition of the right-of-way which will be financed by PEA in
accordance to the terms and conditions of NEDA as stipulated in the TOA.
Also, under the
aforesaid NEDA Board Resolution No. 2, the Malaysian government agency, Majilis
Amanah Rakyat (MARA) and Renong Berhads construction affiliate, United
Engineers Berhad (UEB), were supposed to advance P900 million of the P1.7
billion cost of right-of-way acquisition to be guaranteed by the national
government. Further, MARA and UEB would
secure foreign currency denominated loans for the P900 million that they were
willing to advance.
It appears that the
project proponents did not even comply with the aforesaid condition for NEDAs
approval of the project. The Malaysian
firms were no longer made to advance the sum of P900 million.
Instead, on 5
December 1997, a Loan Agreement was executed among PEA, as borrower, the
Republic of the Philippines, as guarantor, and a syndicate of local and foreign
banks, namely, Solidbank Corporation, Far East Bank and Trust Company (now part
of the Bank of the Philippine Islands), Asianbank Corporation, Chinatrust
(Phils.) Commercial Bank Corporation, Australia and New Zealand Banking Group
Limited, Standard Chartered Bank, The Bank of Nova Scotia (Manila Offshore
Branch), The Development [Bank] of Singapore Ltd., and Bank of America
(hereinafter collectively referred to as the lender banks).
The Lead Arranger for
the loan was Exchange Capital Corporation, which is majority-owned by
respondents Luis J. L. Virata and Manuel B. Zamora, Jr. [The] Co-Lead Arrangers
were FEB Investments, Inc. and SolidBank.
As earlier mentioned,
TRB sent notices of acquisition to the landowners of the parcels of land that
would be affected by the C-5 Link sometime in 1997. Thereafter, the TRB Officer-in-Charge
requested the Paranaque City Appraisal Committee to appraise the said parcels
of land. Thus, the City Appraisal
Committee came out with Resolution No. 98-5 dated 21 April 1998 with bloated
appraisals of said properties.
Complainant asseverates
that in what appears to be an attempt to legitimize the bloated appraisal
made by the Paraņaque City Appraisal Committee on 21 April 1998, on 7 May 1998,
TRB and PEA entered into a Memorandum of Agreement which, among others,
explicitly provides that TRB shall identify and locate the lots of land sought
to be acquired for the right-of-way and negotiate with the individual owners
of the land the purchase price in accordance with Executive Order No. 329 dated
July 11, 1998, Executive Order No. 368 dated August 24, 1989 and Executive
Order NO. 269 dated September 4, 1989.
These Executive Orders were even made part of the Memorandum of
Agreement.
The complainant
points out that seven (7) months after respondent Mike Velarde got his
P1,222,841,490.00, on 23 November 1999, respondent Estrada, together with
respondents Ronaldo B. Zamora, then Executive Secretary, Gregorio R. Vigilar,
then Public Works and Highways Secretary, and Frisco San Juan, then PEA
Chairman, gave his imprimatur and approval to the proposal of a four (4)
month-old, P15 million company, the Coastal Road Corporation (CRC), to take
over UMPC and the P7.73 billion MCTE Project (including the 800-hectare
reclamation project along Manila Bay going towards Cavite). This is now the subject of a separate case
before the Ombudsman entitled Ernesto B. Francisco, Jr. vs. Joseph Ejercito
Estrada, et al., docketed as OMB Case NO. 0-00-1758.
Complainant Francisco
further points out that the beneficial owners of CRC are respondents Luis J. L.
Virata and Manuel B. Zamora, Jr.
Respondent Luis J. L. Virata is also CRCs President and Chief Executive
Officer, while respondent Cesar E.A. Virata is CRCs Chairman of the Board and
is also a beneficial owner of CRC to the extent of ten (10%) [percent] of its
equity.
Also, on 23 November
1999, respondent Estrada, in the presence of respondents Ronaldo B. Zamora,
Gregorio R. Vigilar and Frisco San Juan, gave his imprimatur and approval to
CRCs proposal to de-prioritize the construction of the C-5 Link Expressway, on
the one hand, and to prioritize the R-1 Expressway Extension, on the
other. This was done despite the lack of
the requisite evaluation and approval of the TRB Board and the fact that CRC
does not have the requisite financial and technical capability and track record
to take over the MCTE Project. Worse,
the de-prioritization of the C-5 Link despite the P1.85 billion already spent
for right-of-way acquisitions caused the government tremendous losses in terms
of the interest on the dollar-denominated loan used to fund the said
acquisitions.
Respondents LUIS J.
L. VIRATA and MANUEL B. ZAMORA, JR. had another reason for pushing the
prioritization of the R-1 Expressway Extension.
Respondents wanted to expedite the development of the Caylabne Bay Resort
in Ternate, Cavite. In the words of
respondent Luis J. L. Virata, the Caylabne Bay Resort will be developed into a
top-quality resort . . . with a whole bunch of a Mediterranean-looking
buildings and with a first-class resort operation. In an interview with Mr. Philip Cu-Unjieng,
which appeared in the 7 February 1999 issue of the Philippine Star, respondent
Virata himself had categorically admitted how critical is the R-1 Expressway
Extension to the development of the Caylabne Bay Resort.
The real
problem is that under UMPCs project timetable, the construction schedule of
the C-5 Link Expressway was set from March 1997 to September 1999, while that
of the R-1 Extension was set almost near the same period, from October 1997 to
September 1999. Thus, the idea is for
both expressways to be constructed and finished almost at the same time. However, by October 1998, both were already
delayed by eighteen (18) months and fourteen (14) months, respectively. Instead of correcting the problem, the government
allowed respondent Luis J. L. Virata and Manuel B. Zamora, J. to take over the
project despite their lack of financial and technical capability to do so. They even tried to borrow from public funds
from the Development Bank of the Philippines to finance their acquisition of
UEM Berhads share in UMPC.
Respondents Mariano Z. Velarde,
Franklin M. Velarde, Luis Juan L. Virata, Cesar E.A. Virata, Manuel Zamora,
Jr., Ronaldo Zamora, Mariano E. Benedicto II, Frisco F. San Juan, Ruben A. de
Ocampo, and Ramon V. Dumaual filed individual Counter-Affidavits; while
respondents Robert C. Nacianceno, Reydivino Bernabe Daval-Santos, Soledad
Samonte Medina-Cue, Patrick Beltran Gatan, Luis Vicente Medina-Cue, and
Silvestre San Agustin de Leon, all members of PCAC, filed a Joint
Counter-Affidavit. Respondents Joseph
Estrada and Arsenio Yulo were ordered to file their counter-affidavits, but
they did not file any.
Based on its findings of fact, the
Office of the Ombudsman resolved to dismiss the case for lack of evidence.[49]
Petitioner filed a Motion for
Reconsideration[50] on
January 14, 2002, alleging that serious errors of law and/or irregularities had
been committed prejudicial to his interest, as follows:
1.
The
Ombudsman did not conduct fact-finding in the instant case and pursue
investigation requested by the complainant.
2.
The
Ombudsman did not issue the subpoena
duces tecum requested by the complainant as would afford the complainant
the chance to file a reply-affidavit.
3.
The
inhibition of Desierto came too late since he had already prejudged the case.
4.
The
Ombudsman did not act on the motion for the inhibition of Overall Deputy
Ombudsman Margarito P. Gervacio, Jr. At
any rate, Gervacio, out of delicadeza
or sense of decency, should have voluntarily inhibited himself.
5.
The
Overall Deputy Ombudsman does not have authority to approve the dismissal of
the instant case.
6.
The
Ombudsman took at their face value the arguments of, and interpretation of the
law by, the respondents, on the one hand, and totally disregarded the evidence
of complainant, on the other.
7.
In
their haste to dismiss the instant case, Desierto and Gervacio did not consider
additional evidence submitted by the complainant. [51]
Respondent Office of the Ombudsman
denied petitioners Motion for Reconsideration in an Order[52]
dated June 24, 2002.
III.
ASSIGNMENT
OF ERRORS
Petitioner raises the following assignment
of errors against the questioned Resolution and Order issued by the Office of
the Ombudsman:
I
The respondent
Ombudsman committed a serious error of law in ruling that the
transaction/negotiation for the purchase of affected lands was consummated as
early as May 1998 and that Administrative Order No. 50 finds no application
to the already perfected contract between TRB and AMVEL.
II
The respondent Ombudsman
committed a serious error of law and grave abuse of discretion amounting to
excess or lack of jurisdiction, in concluding, without basis in fact, that
respondents complied with the prescribed procedure in determining a fair and
reasonable valuation of the properties in question and in not finding that
respondents committed plunder and/or graft.
III
The respondent
Ombudsman committed a serious error of law and grave abuse of discretion
amounting to lack or excess of jurisdiction in not finding that respondents
committed plunder and/or graft when they changed the original alignment of the
Sucat Interchange which increased the affected land area of Amvel from 63,629
sq. mtrs. to 80,256 sq. mtrs. or a difference of 16,897 sq. mtrs. which was
sold to the government for about P259,115,495.00.
IV
The respondent
Ombudsman committed a serious error of law and grave abuse of discretion
amounting to lack or excess of jurisdiction in not finding that respondents
committed plunder and/or graft when respondent Mike Velarde made a billion-peso
killing from the transaction.
V
The respondent
Ombudsman committed a serious error of law and grave abuse of discretion
amounting to lack or excess of jurisdiction in not finding that respondents
committed graft when they proceeded with the transaction despite the fact that
44,699 sq. mtrs. of land sold to the government did not have a clean title at
the time of sale.
VI
The respondent
Ombudsman committed a serious error of law and grave abuse of discretion
amounting to lack or excess of jurisdiction in not finding that respondents
committed plunder and graft when they bloated the cost of the road-right-of-way
and depleted the proceeds of the US$68.6 Million loan for right-of-way
acquisition.
VII
The respondent
Ombudsman committed a serious error of law and grave abuse of discretion
amounting to lack or excess of jurisdiction in not finding that respondents
committed graft when they de-prioritized the R-1 Expressway Extension over that
of the C-5 Link Expressway.
VIII
The respondent
Ombudsman committed grave abuse of discretion amounting to lack or excess of
jurisdiction when he deliberately did not conduct fact-finding to gather more
evidence in the case below despite repeated requests by the complainant.
IX
The respondent
Ombudsman committed grave abuse of discretion amounting to lack or excess of
jurisdiction when he deliberately failed to act on motions to issue subpoena duces tecum and ad
testificandum to further strengthen the case.
X
The Ombudsman
committed grave abuse of discretion amounting to lack or excess of jurisdiction
when he failed to act on the motion for the inhibition of Overall Deputy
Ombudsman Margarito P. Gervacio, Jr.
Likewise, Overall Deputy Ombudsman Gervacio committed grave abuse of discretion
amounting to lack of jurisdiction when he failed to voluntarily inhibit himself
out of delicadeza or a sense of
decency.
IV.
THEORY
OF RESPONDENTS
A. COMMENT OF RESPONDENTS ROBERT C. NACIANCENO,
REYDIVINO B. DAVAL-SANTOS, SILVESTRE S.A. DE LEON, PATRICK B. GATAN, SOLEDAD S.
MEDINA-CUE, AND LUIS V. MEDINA-CUE
The case docketed as OMB-0-01-0577
is primarily an action to hold them accountable for violation of Section 3 (e)
of R.A. 3019, the Anti-Graft and Corrupt Practices Act, on account of their
approval, in 1998, of PCAC Resolution No. 9805 ... as the same resolution had
been allegedly used to justify the alleged over-pricing and related graft and
corrupt practices of other respondents in connection with the acquisition of
lands by the national government, in 1999, for the right of way of the C-5 Link
of the Manila-Cavite Toll Expressway Project.
Respondents were charged in their
respective [capacities] as the
Chairman and members of the [PCAC] created under [Executive] Order No. 329, as
amended by Executive Order No. 369, primarily for the determination of the
reasonable compensation to be paid to properties that will be affected by
public works and projects in Paraņaque City.[53]
Section
3(e) of Rep. Act No. 3019, under which respondents are charged, provides:
(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.
(Underscoring supplied by respondents.)
Respondents claim that they are neither
alleged nor shown to be, as they in fact are not, officers and employees of
offices or government corporations charged with the grant of licenses or
permits or other concessions.[54]
Respondents assert that PCAC Resolution
No. 98-5 is recommendatory in nature, and that the adoption of the recommendations
was within the prerogative and discretion of the implementing officers, most of
all Fidel V. Ramos, then the President of the Republic at the time of issuance
of said resolution.
Respondents note that the alleged
acts of plunder and graft and corrupt practices attributed to the other
respondents have been shown to have transpired during the incumbency of
respondent Joseph E. Estrada as President of the Republic, and after the issuance of said PCAC
Resolution No. 98-5.[55]
Respondents further argue as
follows:
[PCAC]
had undertaken diligently and carefully the study and evaluation of the
properties that will be affected by the C-5 Link Expressway in Barangay San
Dionisio, Paraņaque City, taking cognizance of the sale of comparable property,
the applicable BIR Zonal Value, the opinion solicited from the residents of the
properties near the subject parcels of land, the condition or status of the
parcels of land, the presence of other buildings and structure near the
vicinity of the properties, and the consequential damages to the owners of the
affected properties. And, contrary to the allegation of
petitioner, the BIR Zonal Value (6th Revision) which took effect on
February 2, 1998 provides for P20,000.00 per sq. m. value for commercial land
along Dr. A. Santos Avenue; and P30,000.00 per sq. m. value for Commercial land
along Ninoy Aquino Avenue; furthermore, while the allegations of the
complainant that the zonal value of the residential regular (RR) lands in Dr.
A. Santos Avenue, San Dionisio, Paraņaque City, was fixed by the Department of
Finance at P4,500.00 per sq. m. just a year before the AMVEL sale, the same
department has fixed the zonal value of commercial land along Dr. A. Santos
Avenue, Brgy. San Dionisio, Paraņaque City at P20,000.00 and along Ninoy Aquino
Avenue at P30,000.00 per sq. m. Paraņaque
City Ordinance No. 97-08, prescribes the land use plan and the zoning of the
Municipality of Paraņaque, [and] provides that the lands along Dr. A. Santos
Avenue is classified as within C-3
high intensity commercial zone.[56] (Emphasis added)
[The] valuation of
the subject properties is justified, and shown to be consonant and consistent
with existing accepted appraisal practice and procedures in the appraisal of
properties, considering that:
a)
The appraisal of the properties was based on such factors as
location, accessibility, selling prices of comparable properties, opinion of
people living within the vicinity of the subject properties, the amenities
present like water, electricity, transportation and communication with the
vicinity of the property and the status or condition of the parcels of
land. The Committee has noted that the
parcels of land have been developed to mean a great change in its former
condition as salt beds or Salinas and the complainant has acknowledged this
truth in his complaint when he stated that the former salt beds are filled up
or covered by filling materials;
b)
During the ocular inspection conducted by the technical committee
tasked to inspect the subject properties, these parcels of land were already
filled and developed.
c)
Ordinance No. 98-08, which prescribed the land use plan and zoning
of the Municipality
of Paraņaque, provides that Barangay San Dionisio where subject properties are
located, is within C-3 high intensity commercial zone.[57]
B.
COMMENT OF
PRIVATE RESPONDENTS MARIANO Z. VELARDE AND FRANKLIN M. VELARDE
Private respondents Velarde allege
that the transactions involving the purchase of the subject nine (9) parcels of
land were perfected before Administrative Order No. 50 came into effect. The sale was perfected on May 8, 1998, almost
a year before the issuance of Administrative Order No. 50, when the TRB sent a
letter to the PEA instructing the latter to prepare the checks representing
payments for the subject properties.[58]
Private respondents Velarde aver
that Amvel never questioned the amount of the purchase price, gave its
imprimatur to the purchase price set by TRB, and the last thing to be done was
the actual receipt of the checks in payment thereof by Amvel. Unfortunately, however, Amvel was not
paid. Instead, TRB conducted a series of
appraisals of the subject property.
As of December 9, 1998, Amvel wrote
to the DPWH Secretary, asking that it be
paid the purchase price set by the PCAC as directed by TRB.[59] In a letter dated January 20, 1999, TRB
informed Amvel that it was willing to purchase the latters properties at a
price arrived at by adopting a formula close to averaging all four (4)
appraisals obtained from the PCAC, as well as the three (3) private appraisal
companies.[60] Thereafter, TRB issued Resolution No. 99-02
on January 15, 1999 approving the purchase of the subject properties in the
aggregate amount of P1,221,799,804.00.[61]
On April 22, 1999, Amvel was able
to receive full payment of the agreed purchase price, but the amount received
was P1,221,766,640.00.[62]
Private respondents argue that the
subject properties were not overpriced.
The properties were zoned and classified as commercial areas, not
agricultural or residential. Massive
development and improvement works were immediately carried out and introduced
after these properties were acquired by Amvel through purchase or joint venture
agreements.[63]
Private respondents
cited several factors why a higher appraisal value than the one eventually used
should be adopted, and these are:
a.
The PCAC, as early as April 21, 1998
(way before the election of respondent Estrada to the presidency in the May 10,
1998 elections), had already fixed the price of the properties on the site,
along with those found in the area: between P20,000.00 and P25,000.00
per sq. m.
b.
In 1997, the site was appraised at P18,000.00
per sq. m., and a portion of the same with an area of 49,316 sq. m. covered by
TCT No. 133550 was given a development loan accommodation by Metrobank in the
amount of P550,000,000.00.
c.
The current Bureau of Internal Revenue
(BIR) zonal valuation appraised the vicinity at P25,000.00 per sq. m.
Private respondents claim that the
other properties affected by the C-5 Link Project adjacent to and near the
vicinity of the site were acquired and paid for by the government at P25,000.00
per sq. m. in accordance with the MMDA appraisal.[64] For the subject properties, the government
was able to save P4,645.00 per sq. m.[65]
The private appraisal companies
were engaged by TRB and not Amvel. The
final purchase price was imposed upon Amvel by the government, and respondents
Velarde had no hand in fixing the said amount.
Private respondents Velarde merely acted within the bounds of their
duties and powers as officers of Amvel.
It was only natural that they would negotiate for an amount most
advantageous to the said company. The
fact that the purchase price of the subject properties considerably plummeted
would certainly negate the allegation that respondent Mariano Z. Velarde
exerted influence on respondent Estrada or any other public officer for that
matter.
Furthermore, private respondents
aver that, except for a small portion, Amvel acquired the properties at prices
ranging from not less than P7,500.00 per sq. m. to as high as P9,000.00
per sq. m. Petitioner thus failed to
take into consideration the significant incidental expenses for the
acquisition, consolidation, improvement and development of the subject
properties.
Private respondents claim that the
re-alignment of the C-5 Link Project has actually resulted in the significant
reduction and decrease of the affected areas, that is, from the original 12
hectares to 7.9 hectares. Hence,
petitioner completely erred in claiming that the realignment had actually
resulted in a greater profit to Amvel.
The subject property, measuring 79,568 sq. m., was just 34.28% of the
total area of the site, which was 232,078 sq. m.
To provide a background
of the transactions leading to the purchase by the government of the subject
properties, private respondents gave its version of the antecedent facts, as
follows:
a. As early as June 1994, a company
by the name of ADV Realty had set its sights in developing [a] large expanse
of undeveloped parcels of raw lands around the Ninoy Aquino International
Airport (NAIA) and in Barangay San Dionisio, Paraņaque City into a commercial
and business park by entering into various joint venture agreements with several
landowners, particularly the Medina-Tirona family.[66]
b. A large amphitheater would also
be constructed to serve as a multi-purpose complex that would principally serve
as the venue for the weekly prayer meetings and healing sessions of the members
of the El Shaddai Movement of which herein respondent Mariano Z. Velarde is the
Servant Leader.
c. In order to consolidate the whole
area, joint ventures were likewise forged with the other landowners of the
adjacent properties who were all prominent families of Paraņaque City (e.g., Medina-Evangelista, Balinghasay
and Santos). More importantly, for those
properties that were not available for joint venture, ADV Realty acquired them
by purchase.
d. In 1996, development efforts were
immediately poured and instituted into the properties in accordance with the
master plan and the business development concepts for the area. In 1997, ADV Realty was able to consolidate a
23-hectare property and pre-development operations thereon were in full
blast. ADV Realtys name was then
changed into Amvel Land Development Corporation.
e. However, Amvel was notified by
the government, through the TRB, in the last quarter of 1997 that the site will
be affected by the C-5 Link Project.
Ex-president Fidel V. Ramos was still the incumbent president at that
time.
f. Upon examining the proposed
alignment of the aforesaid project, Amvel was surprised to find out that it
would cut across right at the center of the site. This would render the whole property
unattractive to prospective investors as the C-5 Link Project would block all
possible ingress to and egress from the property, making accessibility a major
concern.
g. This would entail a re-evaluation
and a radical change in the master plan of the commercial and business
park. Once the C-5 Link Project would be
constructed, the remaining property of Amvel would be divided into two (2)
portions. Both portions would be
enclosed by the proposed C-5 Link Project and the rivers found on the north and
west side of the property.
h. Even other property owners in the
area, most notably the SM Holdings Property and ADELFA Property, Inc., also
raised objections to the C-5 link Project as the original plan of the said
Project posed serious threat to their respective developmental plans for their
properties.
i.
As
a result, Amvel, along with SM Holdings Property and ADELFA Property, Inc.,
negotiated for the re-alignment of the C-5 Link Project.
j.
As
a consequence thereof, Amvel was constrained to construct another bridge as a
passageway for the portion located at the southern side of the property. To accomplish such a task, Amvel was forced
to purchase the property where the bridge would be constructed.
k. The final re-alignment plan that
was jointly prepared by Amvel, SM Prime Holdings and ADELFA Properties, Inc.
and duly approved by the TRB, had actually and in reality resulted in the
substantial reduction of the portion of the site that would be affected by the
C-5 Link Project. From the original area
of TWELVE (12) hectares, it was reduced to only 7.9 hectares.
l.
Had
Amvel really intended to capitalize on the business opportunity brought about
by the C-5 Link Project, as wrongfully alleged by petitioner, it could have
proposed a re-alignment plan that would consume a larger portion of the site.
Private respondents argue that the
subject properties were not bought by Amvel for the purpose of selling them to
the government, in the light of the proposed construction of the C-5 Link
Project. After Amvel and TRB finally
agreed on the terms of the sale, all the portions of the site that were caught
along the path of the C-5 Link Project were sold to the government.[67] These properties are described in the
following table:
|
TCT
No. |
Original
Size (sq m) |
Previous
owner |
Date
of JVA/ Purchase |
Size
sold to govt. |
|
140397 140396 |
122,694 10,099 |
Emmanuel Tirona, Ma. Aurora T.
Mercado, Rosario T. Medina and Corazon T. Medina |
(JVA with ADV Realty) November
16, 1994 |
44,669 9,427 |
|
140388 |
49,316 |
Josefina, Adelaida, Jose and
Teofilo, all surnamed Balinghasay |
Purchased by ADV realty on
January 23 1998. |
6,643 |
|
140389 |
15,721 |
Balinghasays |
Purchased, by ADV Realty on
January 21, 1997 |
2,153 |
|
140402 |
3,813 |
Arcadio
C. Santos |
Purchased by ADV realty on
September 12, 1997 |
3,813 |
|
131446 |
3,908 |
Victor
B. Santos |
Purchased by ADV Realty in 1997 |
3,908 |
|
140404 140405 |
2 parcels 19,543 sq m |
Ma.
Asuncion Jugo, Jose Ramon L. Santos and Rona S. Agustines |
JVA with ADV Realty on May 27,
1997 |
753 2,973 |
|
140408 |
62,448 |
Leonor
Crisostomo, Julieta, Amelia, Elizabeth, Angela Katrina and Kristina Isabela,
all surnamed Medina |
Land Development Agreement with
ADV Realty on December 19, 1996 |
5,229 |
The properties acquired by the
government that were previously owned by (1) Emmanuel Tirona, Ma. Aurora T.
Mercado, Rosario T. Medina and Corazon T. Medina; (2) Ma. Asuncion Jugo, Jose
Ramon L. Santos and Rona S. Agustines; and (3) Leonor Crisostomo, Julieta,
Amelia, Elizabeth, Angela Katrina and Kristina Isabela, all surnamed Medina,
were all part and parcel of larger tracts of land that were subject of several
joint venture agreements. The remaining
portions were developed in accordance with the undertaking of Amvel under said
agreements.
In a Memorandum of Agreement[68]
dated February 2, 2000 entered into by Emmanuel Tirona, Ma. Aurora T. Mercado,
Rosario T. Medina and Corazon T. Medina, and Amvel, the latter paid the former
the amount of P320,000,000.00 as their share of the purchase price paid
by the government in acquiring the portion of the property subject of the
Development Joint Venture Agreement (with a Lease Clause) entered into by the
same parties.
Private concrete roads were already
constructed within the vicinity and modern drainage systems were already
installed therein. More than one (1)
million cubic meters of soil were deposited on the site to raise its elevation
above the highest flood level recorded in the area, appropriately compacted
with the use of heavy equipment as required in a business/commercial land use.
If Amvel had an advance information
that the C-5 Link Project would traverse a portion of the site way back in
1996, then it should have only focused its sight and poured its resources on
the 79,568 sq. m. of land affected by the said Project by simply purchasing
only to the extent of the same. Because
of the intrusion of the C-5 Link Project into its property, Amvel had to
re-evaluate and change the master plan to conform to the significant changes in
the shape and configuration of the site, which was destructively broken into
two parts by the C-5 Link Project. That
the C-5 Link Project greatly reduced the viability and marketability of the
intended commercial and business park is beyond cavil, as the construction of
the C-5 Link Project would leave Amvel with a property enclosed or bounded by a
highway and rivers without any access, thereby forcing it to incur major
additional costs and expenses to build the necessary bridges and access roads
to connect the remaining portions to the Ninoy Aquino Avenue.
Amvel, as a consequence of the
Project, likewise incurred delays in introducing the needed developments it
undertook to infuse into the property, subject of the Land Development
Agreement it entered into with the Medina family. The amount of P10,000,000.00 was paid
by Amvel to the Medina family as penalty for the aforementioned delay.[69]
Respondents Velarde allege that
they had no participation whatsoever in the preparation of the fabricated CA
Decision[70] dated
October 29, 1998 in Buenaventura-Santiago,
et al. v. Sps. Medina, et al., docketed as CA G.R. No. CV 54402. Amvel received a copy of said decision on November
25, 1998. After receiving the same,
Amvel immediately furnished a copy to the TRB and the Register of Deeds of
Paraņaque City, to have the same annotated on the Transfer Certificates of
Title covering the parcels of land subject of the aforesaid case. When Amvel tried to secure a certified true
copy of the said decision from the CA, as required by the Register of Deeds and
the TRB, it discovered that the case was still pending for resolution and no
such decision had been promulgated.
Amvel sent a letter dated February 8, 1999 to the Register of Deeds of
Paraņaque City to explain what happened and request that the annotations
already made on the titles be immediately canceled.[71] On the same date, Amvel sent a letter to the
TRB informing the latter of its discovery that the alleged decision was
spurious.[72] Amvel requested that the CA conduct a
full-blown investigation regarding the matter.
C.
COMMENT
OF RESPONDENT DUMAUAL[73]
Respondent Dumaual was
Officer-in-Charge of the TRB from November 28, 1997 to September 8, 1998.
In his statement of the facts, he
pointed out that the alignment of the C-5 Link Expressway project was revised
on April 1998 because, during the discussion with AMVEL on the acquisition of
right-of-way (ROW) for the revised alignment, it was found that an area
between the south slip road and the main C-5 Link would not be acquired for
ROW, which in effect would have produced a pocket with limited use.[74]
On September 16, 1998, a Memorandum
was sent by respondent to the Board suggesting that the south slip road be
located nearer to the main C-5 Link to maximize use of real estate. As of that date, TRB was still unable to
formalize the transaction with AMVEL and to pay the latter. Respondent Dumaual, despite due diligence,
was unable to determine the veracity of the relevant titles submitted for
payment. He wrote to the TRB about the
problems with the titles and recommended that said properties be
expropriated. He was relieved as OIC of
TRB on September 8, 1998 and had no more personal knowledge regarding the other
allegations of petitioner.[75]
D. COMMENT OF PRIVATE RESPONDENT VIGILAR
Private respondent
Vigilar raises the following grounds for the dismissal of the petition:
1.
The
petition is not the proper remedy.
Petitioner cannot invoke Rule 45 to question the subject resolution and
order of the Ombudsman.
2.
The
petition fails to raise any question of law.
3.
In
any case, the Office of the Ombudsman acted correctly, on the basis of evidence
presented, in dismissing the complaint considering that
a.
Private
respondent Vigilar, being the ex-officio chairman of the TRB during the
relevant period, was in no position to be legally responsible for the TRBs
acquisition of AMVELs properties.
b.
The
transaction between the TRB and AMVEL concerning the right-of-way for the C-5
Link was perfected before the promulgation of Administrative Order No. 50.
c.
The
transaction between the TRB and AMVEL concerning the right-of-way for the C-5
Link is valid, regular, and complies faithfully with Executive Order No. 132,
the law governing at the time the contract of sale was perfected. The said purchase was not grossly and
manifestly disadvantageous to the government.
d.
The
evidence does not support a finding of probable cause for the crime of plunder
against private respondent Vigilar.
e.
The
evidence does not support a finding of probable cause for violation of Section
3 (A), (E), (G) and (J) of Republic Act 3019 against private respondent
Vigilar.
f.
The
petition, like petitioners complaint before the Ombudsman, is built on
malicious half-truths, hearsay and even fabricated evidence.
Private respondent Vigilar avers
that he only exercised administrative supervision over the TRB under the
provisions of Sec. 38, Ch. 7, Book IV of the Revised Administrative Code of
1987; and that he acted in good faith, relying on the recommendation of the
technical officers of the TRB, and cites Arias
v. Sandiganbayan[76] to support this averment.
He asserts that as early as May 7,
1998, the TRB had already approved the properties to be affected by the C-5
Link based on the PCAC recommendation of P20,000 per sq. m., and such
approval was made in accordance with Executive Order No. 132, the law then
prevailing. Unfortunately, the TRB had
limited funds, so, hoping for a lower price, it started negotiations with the
property owners, including AMVEL. The
TRB and AMVEL agreed subsequently that the price should be adjusted by hiring
independent appraisers and getting the average of the values to be determined by
these independent appraisers and the values stated in the PCAC
resolutions. Later, on January 15, 1999,
in keeping with that agreement, the TRB approved the new, substantially reduced
purchase price of P15,350.00 per sq. m.
More than a month later, on February 17, 1999, Administrative Order No.
50 was promulgated setting new standards for the determination of the fair and
reasonable value of private lands that would be expropriated for government
infrastructure projects. This Administrative
Order was intended to supplant Executive Order No. 132.
Private respondent alleges that it
is a basic fact that a contract of sale is perfected at the moment there is a
meeting of minds upon the thing which is the object of the contract and upon
the price (Article 1475 [1], Civil Code).
Therefore, at the time TRB and AMVEL agreed as to the process for
determining the purchase price, the contract of sale was already perfected.
The requisites for a valid price in
a contract of sale are: (1) it must be real; (2) it must be in money or its
equivalent; and (3) it must be certain or ascertainable at the time of the
perfection of the contract (Articles 1471, 1458, 1468, 1469 and 1473, Civil
Code).[77] Under Article 1469, price is considered
certain if it be so with reference to another thing certain, or that the
determination thereof be left to the judgment of a specified person or persons. Said article further provides: Even before
the fixing of the price by the designated third party, a contract of sale is
deemed to be perfected and existing.
Private respondent Vigilar avers
that from the time AMVEL agreed sometime in the middle of 1998 that the price
would be the average of the values stated in the independent appraisers
reports and the PCAC resolutions, the government could no longer re-negotiate for
a lower price. Thus, even before the TRB
approved the price at P15,350.00 per sq.m. on January 15, 1999, the
price had already become certain. It was
immaterial that the Deeds of Sale were signed later. The execution of these Deeds of Sale was a
mere formality; it was meant to document a contract that had been perfected
earlier.[78]
Private respondent claims that
applying Administrative Order No. 50 retroactively to the contract between the
TRB and AMVEL violates Article 4 of the Civil Code, which provides that [l]aws
shall have no retroactive effect, unless the contrary is provided. Administrative Order No. 50 does not state
that it is exempt from this rule; it does not provide for retroactive effect.
Petitioner has not shown that
private respondent Vigilar, as Secretary of the DPWH and concurrent TRB
chairman, amassed any ill-gotten wealth to warrant a charge of plunder. Petitioner does not allege that private
respondent Vigilar received any money or derived any benefit, of any kind, from
the right-of-way acquisition of the affected lands.
Regarding the allegation that he
violated Sec. 3 (a) of R.A. No. 3019, private respondent points out that it is
not clear whether he was accused of being the public official who persuaded,
induced, or influenced another public officer to perform an act in violation of
rules and regulations; or the one who was so persuaded, induced, or
influenced. Petitioner likewise failed
to prove that the elements of violation of Section 3 (a), (e), (g) and (j) of
Rep. Act No. 3019 have been committed by private respondent Vigilar. Thus, petitioners case against him is
inadequate.
Private respondent argues that petitioner
likewise failed to prove conspiracy. He
states that a conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it.[79] He cites the well-settled rule that conspiracy
must be proven as clearly as the commission of the offense itself.[80]
Petitioner alleges that respondents
Estrada, Ronaldo Zamora, and Vigilar gave their imprimatur to the takeover by the Coastal Road Corporation of the
UMPC, as well as the de-prioritization of the construction of the C-5 Link
when, on November 23, 1999, they were present in a photo-op that took place
in Malacaņang. Private respondent avers that
the photo-op was staged by Cavite government officials to show their
constituents that the MCTE Project was being fast-tracked. Respondents merely graced the occasion in
response to requests made by these local officials. They could not be taken to court simply
because of this; otherwise, it would be guilt by photograph, which was
contrary to plain and common sense.[81]
Private respondent points out
petitioners reliance on a certain executive summary[82]
to support the latters allegation that the subject transaction was grossly
anomalous. This document, according to
private respondent, has absolutely no evidentiary value, as its origin is
unknown, and it is unsigned. As regards
petitioners submission of a Special Report dated August 16, 2000 from the Philippine Daily Inquirer as evidence,
private respondent points out that newspaper and magazine articles are hearsay
twice removed and have no evidentiary value whatsoever. Private respondent Vigilar cites in support
of this contention the decision laid down by this Court in People v. Woolcock, et al.[83]
E. COMMENT OF RESPONDENT OFFICE OF THE OMBUDSMAN
Public respondent raises the
following grounds for the denial of the instant petition:
1.
The
assailed resolution and order of the public respondent are not appealable under
Rule 45 of the Rules of Court.
2.
Petitioner
has not adduced sufficient evidence to show that the transactions involving the
purchase of the AMVEL lands under Executive Order No. 132, Series of 1937 are unlawful
or irregular.
3.
Whether
under Administrative Order No. 50, Series of 1999 or Executive Order No. 132,
Series of 1937, respondents substantially complied with the prescribed
procedure in determining a fair and reasonable valuation of the properties in
question while exercising the power of eminent domain.
4.
There
is no law or particular rule that prohibits the re-alignment of the C-5 Link
Project.
5.
There
is nothing unlawful or irregular in getting a reasonable return on investment;
neither is there evidence of bloating of prices.
6.
Petitioners
assertion that TCT No. 140397 (formerly TCT No. (S-14729) 876474) comprising
fifty-six (56%) percent of the total area sold by AMVEL to the government was
not a clean title is rendered moot and academic by the Court of Appeals
Decision dated 21 April 1999 and the Memorandum of Agreement executed by and between
the contending parties.
7.
The
public respondent cannot act on complaints based on mere speculations and
conjectures.
8.
Matters
that are left to the exercise of wisdom and discretion of the Office of the
Ombudsman are not appealable under Rule 45 of the 1997 Rules of Civil
Procedure, and absent any jurisdictional infirmity, the Ombudsmans
determination of probable cause, or the lack of it, deserves great respect and
finality.
According to public respondent, the
law on sales contemplates the consummation of the sales transaction at the
moment there is a meeting of minds of the parties thereto, upon the thing which
is the object of the contract and upon the price.[84] In the case at bar, the meeting of the minds
for the purchase of AMVEL properties occurred on May 8, 1998, the date TRB
instructed PEA to pay the checks for the properties expropriated through the
mode of voluntary sales. Public
respondent alleges:
Significantly,
the purchase transactions over the subject properties are negotiated ones. On 9 August 1997, notices of acquisition were
sent by TRB to the affected landowners.
In view of the acceptance by AMVEL of the amount offered by the
government during the negotiation process, no expropriation proceeding was
initiated in court. Upon appraisal by
the [PCAC], the parties successfully arrived into an agreement as to the value
or purchase price of the affected properties on or before 08 May 1998, as
evidenced by a letter sent by respondent Ramon V. Dumaual, Officer-in-Charge,
Toll Regulatory Board, to the Public Estates Authority, instructing the latter
to prepare the checks representing payments for the subject properties. It is therefore clear that the governing law
at that given time was still Executive Order No. 132, Series of 1937, and not
Administrative Order No. 50, which took effect on 17 February 1999.[85]
Public respondent Ombudsman
contends that in claiming that the subject properties were overpriced,
petitioner failed to consider that the transactions were entered into by the
State in the exercise of the power of eminent domain, which necessarily
involves a derogation of a fundamental or private right of the people. Public respondent asserts that [the]
appraisal or assessment of the property subject of the taking is not based
solely on the market value or zonal valuation made thereof by the Bureau of
Internal Revenue (BIR).[86]
Administrative
Order No. 50, which petitioner believes should have
been followed, provides the following standards for the assessment of the value
of the land:
SECTION 3.Standards for the
Assessment of the Value of the Land Subject of Expropriation Proceeding. x x x
(a)
The classification and
use for which the property is suited;
(b)
The developmental
costs for improving the land;
(c)
The value declared by
the owners;
(d)
The current selling
price of similar lands in the vicinity;
(e)
The reasonable
disturbance compensation for the removal and/or demolition of certain
improvements on the land and for the value of improvements thereon;
(f)
The size, shape or
location, tax declaration and zonal valuation of the land;
(g)
The price of the land
as manifested in the ocular findings, oral as well as documentary evidence
presented; and
(h)
Such facts and events
so as to enable the affected property owners to have sufficient funds to
acquire similarly-situated lands of approximate areas as those required from
them by the government, and thereby rehabilitate themselves as early as
possible.
Executive Order No. 132 issued on
December 27, 1937, on the other hand, laid down the following procedure:
(i)
The
Director of the Bureau of Public Works, City or District Engineer or other
officials concerned shall make the necessary negotiations with [the] owner of
the property needed for public use with a view to having it donated, or sold to
the government at not to exceed the assessed valuation prior to the
investigation and survey of the project.
(j)
If
the negotiation fails, the officials concerned shall forthwith and by formal
notification submit the matter to an Appraisal Committee which is hereby
created and which shall be composed of the Provincial Treasurer, as Chairman,
and the District Engineer and the District Auditor, as members, of the province
where the land is located. If the
property is situated in a chartered city the Appraisal Committee shall be
composed of the City Treasurer, as Chairman and the City Engineer and City
Auditor, as members thereof. x x x
Public respondent contends that
there was sufficient compliance with the guidelines and prescribed procedure
set forth in both issuances. The
referral to PCAC for the determination of the fair market value of the
properties was in order. PCACs
appraisal of P20,000.00 per sq. m. was a result of several factors:
assessing the location accessibility; selling prices of comparable properties;
the amenities present like water, electricity, transportation and communication
within the vicinity; and the status or condition of the parcels of land. TRBs act of subjecting the properties to
another round of appraisal by independent appraisal companies was but a
manifestation that it was protecting the governments interests by ensuring
that it would not be put to a disadvantageous position by the appraisal
recommended by PCAC. The result of the
appraisals conducted by the three independent appraisal companies led TRB to
come up with an average appraisal in the amount of P15,355.00 per sq. m.
in purchasing AMVELs properties. The
amount was below the original recommendation of PCAC to purchase AMVELs
properties at P20,000.00 per sq. m.
The determination of this just compensation price was fair and
reasonable.
The Zonal Valuation (6th
Revision) that took effect on February 2, 1997 fixed the amount of P4,500.00
per sq. m. as valuation of the residential regular (RR) lands situated on Dr.
A. Santos Avenue, San Dionisio, Paraņaque City.
Commercial land along the same place was fixed at P20,000.00 per
sq. m. and along Ninoy Aquino International Airport at P30,000.00 per
sq. m. The affected AMVEL properties
were classified by Ordinance No. 97-08 as within the C-3 high-intensity
commercial zone.
Public respondent claims that the
Appraisal Committees created under E.O. 132 are endowed with special technical
knowledge, skills, expertise and training on the subject of appraisal; that the
discretion given to the authorities on this matter is of such wide latitude
that the Court will not interfere therewith, unless it is apparent that it is
being used as a shield to a fraudulent transaction; and that government
agencies or bodies dealing with basically technical matters deserve to be
disentangled from undue interference from the courts, and so from the Ombudsman
as well (Concerned Officials of the
Metropolitan Waterworks and Sewerage System [MWSS] v. Vasquez,[87]
citing Felipe Ysmael, Jr. & Co., Inc.
v. Deputy Executive Secretary[88]).[89]
Public respondent further contends:
[The]
final re-alignment plan duly approved by the TRB resulted in the substantial
reduction of the area traversed by the C-5 Link Project from the original area
of twelve (12) hectares to only 7.9 hectares, and only after averaging the
appraisals of government and private appraisers. This factual circumstance indicated prudence
on the part of private respondent PEA and TRB officials in effecting the power
of eminent domain, as they gave due regard to the rights of the landowners
thereof. Again, the reduction in the
expropriated private lands upon consideration of the rights of the landowners
may not be criminally actionable absent any showing of irregularity aliunde.
x x x
There are
well-observed rules in the field of real estate. Judicial notice may be taken of a cardinal
rule, which is likewise of common knowledge, that the value of real property
appreciates over time and at a rate which depends on the extent of development
of the area where the land is situated.
Thus, the price sold at any given time does not mean that the same price
would be utilized for a subsequent sale thereof, especially where the property
has undergone development or has been converted into land for commercial
purposes. [Even] petitioner concedes
that AMVEL developed the lands which were sold to the government. Thus, it was but reasonable for the price of
the lands to have appreciated. Besides,
private respondents Velarde and/or AMVEL being engaged in real estate business,
it is only natural for them to ensure that profits are obtained on top of their
investments, or even speculate, for that matter. As declared by this Honorable Court in the
case of Tatad vs. Garcia, Jr.,
in all cases where a party enters into a contract with the government, he does
so, not out [of] charity and not to lose money, but to gain pecuniarily.[90]
x x x
In relation to petitioners allegation that
the bloated cost of right-of-way (ROW) project depleted the proceeds of the US
$68.6 Million loan for the right of way acquisition, the public respondent
finds the said allegation vague and without factual basis. The
amount of loan proceeds was not a factor that should be considered in
appraising the value of the subject properties.[91] (Emphasis
ours)
F. COMMENT OF RESPONDENTS RONALDO B. ZAMORA, MANUEL B.
ZAMORA, JR., CESAR E.A. VIRATA, AND LUIS L. VIRATA
1. Petition should be dismissed as Petitioner is guilty
of forum-shopping
Private respondents allege that petitioner
admits that he previously filed a complaint[92]
with respondent Office of the Ombudsman against respondents Ronaldo B. Zamora,
Manual B. Zamora, Jr., and Luis J. L. Virata (OMB Case No. 0-00-1758); however,
he did not attach a copy of said complaint to his petition filed before this
Court. Said complaint was dismissed by
the Ombudsman. Petitioners Motion for
Reconsideration in said case was still pending as of the time of the filing of
the Comment. Private respondents conclude
that petitioner had filed multiple suits involving the very same issues against
respondents, and he merely rehashed the very same charges and allegations in
the second complaint. This, according to
private respondents, was forum shopping, defined by this Court in Gatmaytan v. Court of Appeals,[93] as the institution of two (2) or more
actions or proceedings grounded on the same cause on the supposition that one
or the other court would make a favorable disposition.
Both complaints filed by petitioner
are grounded on the same causes and allegations surrounding the purported
illegality of the transfer of the Coastal Road Project to the Coastal Road
Corporation. Respondents contend
further:
[Petitioner] simultaneously and
successively availed himself of several judicial remedies by filing two (2)
separate complaints against herein respondents, all substantially founded on
the same essential facts and circumstances, and all raising substantially the
same issues. Petitioner obviously did
this to increase his chances of obtaining a favorable decision if not in one
case or one court or tribunal, then in another.[94]
2. Petition does not raise any
question of law.
Private
respondents submit that a question of law exists when there is a doubt or controversy
as to what the law is on a certain state of facts, and there is a question of
fact when the doubt or difference arises as to the truth or falsehood of facts. They further submit that [one] test is
whether the appellate court can determine the issue raised without reviewing or
evaluating the evidence, in which case it is a question of law; otherwise it
will be a question of fact. The question
must not involve the examination of the probative value of the evidence
presented.[95]
3.
Petition, on its
face, does not raise any credible factual issue in respect to the dismissal of
the complaint against respondents.
Petitioner failed to controvert the
findings of fact and law made by the Ombudsman in his assailed Resolution. Furthermore, the Ombudsman, in its Resolution dated July 16, 2001 in OMB
Case No. 00-00-1758, comprehensively passed upon the very same allegations of
petitioner in OMB Case No. 0-001-00577.
Petitioners allegations in his
complaint are contradictory. On the one
hand, he claims that the de-prioritization of the C-5 Link Expressway and the
prioritization of the R-1 Expressway Extension would benefit Caylabne Bay
Resort. On the other hand, complainant
himself alleges that the de-prioritization of the C-5 Link Expressway will
result in a minimal increase in vehicle volume along the R-1 Expressway. Clearly then, no appreciable benefit would
result if Coastal Road Corporation indeed pushed for the de-prioritization of
the C-5 Link Expressway because the alleged benefit to Caylabne Bay Resort
would be negated by the revenue loss due to minimal increase in the vehicular
volume along the entire expressway.[96]
4.
The petition,
like petitioners complaint before the Ombudsman, is anchored on hearsay
evidence twice removed.
Private respondents allege that in
building a case against them regarding the purported de-prioritization of the
C-5 Link Expressway, petitioner quotes extensively from the February 7, 1999
article from the Philippine Star
newspaper. They contend that [it] is
elementary that newspaper and magazine articles are hearsay twice removed and
have no evidentiary value whatsoever.[97]
G. COMMENT OF PRIVATE RESPONDENT RUBEN A. DE OCAMPO[98]
Private respondent Ruben de Ocampo (de
Ocampo) argues that the dismissal by the public respondent of the complaint in
the proceedings a quo should be
sustained in toto because:
1. Petitioner fails to raise
distinct and pure questions of law in the instant petition which omission is
fatal to his appeal by certiorari
pursuant to Rule 45 of the 1997 Rules of Civil Procedure.
2. The petitioner has no legal
standing to institute the charges with the Office of the Ombudsman for alleged
violations of Sec.2 in relation to Sec. 1 sub-paragraph d(1), (3) and (6) of
R.A. 7080, and Sec. 3 sub-paragraph (e) and (g) of R.A. 3019.
3. The facts as alleged in the
complaint-affidavit and herein petition for review do not constitute the
commission of any offense on the part of respondent De Ocampo and no evidence
whatsoever was presented against respondent De Ocampo to support the allegations
in petitioners complaint-affidavit.
De Ocampo avers that he held the
position of Public Utility Regulation Officer II at the Toll Regulatory Board, a
position rated at Salary Grade-15, and one that was neither managerial nor
supervisorial in nature. As such, he
neither had recommendatory nor decision-making powers or functions as regards the
TRB.
De Ocampo contends that petitioner
lacks the required personal knowledge of facts constitutive of the charges in
the latters Complaint before the Office of the Ombudsman. Petitioner failed to allege the means by
which he supposedly came to be acquainted with the material facts stated in his
Complaint. According to him:
It
is patent and undeniable that Petitioner was never privy to the contracts and
communications alleged in his Complaint and in this Petition for Review. Nowhere in the records does it appear that
Petitioner ever participated in any of the transactions referred to. Petitioners conclusions are merely hearsay
and should therefore be disregarded. x x x [99]
De Ocampo cites Section 20 of Rep.
Act No. 6770, The Ombudsman Act of 1989, which states:
SECTION 20.Exceptions. The Office of the Ombudsman
may not conduct the necessary investigation of any administrative act or
omission complained of if it believes that:
(1)
The complainant has an
adequate remedy in another judicial or quasi-judicial body;
(2) The complaint pertains to a matter outside the jurisdiction of the Office of the Ombudsman;
(3) The complaint is trivial, frivolous, vexatious or made in bad faith;
(4) The complainant has no sufficient personal interest in the subject matter of the grievance; or
(5) The complaint was filed after one (1) year from the occurrence of the act or omission complained of.
In this case, de Ocampo alleges
that petitioner failed to show any interest in or show proof of personal
knowledge of the transactions as investigated by the Office of the Ombudsman,
and has neither alleged nor proven that his rights have been violated or that
he has been put at a disadvantage by the consummation of the assailed
transactions through any act or omission of de Ocampo.[100]
Furthermore, private respondent
contends:
[The]
acts complained of by Petitioner occurred more than one (1) year prior to the
institution of the original Complaint before the Office of the Ombudsman on 16
April 2001. The last assailed
transaction, more specifically, the act of then President Estrada in granting
his imprimatur and approval to CRCs proposal to deprioritize the construction
of the C-5 Link Expressway and to prioritize the R-1 Expressway Extension, was
consummated on 23 November 1999 or at least one (1) year and four (4) months
prior to the filing of the Complaint.
The above-quoted Sec. 20 par. 5 of R.A. 6770 clearly states that The
Office of the Ombudsman may not conduct the necessary investigation of any
administrative act or omission of if it believes that
The complaint was filed after one year from the occurrence of the
act or omission complained of.
Considering the length of time which elapsed between the act complained
of and the filing of the Complaint, the Office of the Ombudsman should not have
even considered the charges put
forth by Petitioner. In any event, the
Complaint was correctly and cogently dismissed by the Ombudsman for utter lack
of merit. x x x [101]
H. COMMENT OF PRIVATE RESPONDENT FRISCO F. SAN JUAN
Private
respondent Frisco F. San Juan (San Juan) raises the following arguments in his
Comment:
I. The petition must be dismissed
outright as it does not raise pure questions of law or cite any special and
important reasons for its allowance under Rule 45 of the Revised Rules of
Court.
II. In any case, respondent Ombudsman
did not commit any reversible error or grave abuse of discretion in dismissing
petitioners complaint a quo, in
that:
a. Petitioner completely failed to
establish the existence of any of the elements of plunder in order for the
complaint to prosper as against respondent San Juan or any of his
co-respondents.
b. Nor was petitioner able to
establish any violation by respondent San Juan of the Anti-Graft and Corrupt
Practices Act. On the contrary, the
acquisition of the AMVEL Properties for the governments tollway project was
neither disadvantageous to the government nor did it give any unwarranted
benefits, advantages or preference to any party.
c. Petitioner failed to otherwise
specify any act or behavior on the part of Respondent San Juan which
constitutes a breach of the Code of Conduct and Ethical Behavior for public
officials and employees.
d. Petitioners other imputations
and insinuations of anomalies in respect of the subject expressway construction
are equally baseless and purely speculative accusations of wrongdoing on
respondents part.
e. Given the patently baseless and
utterly deficient complaint for plunder, graft, etc., the additional
fact-finding proceedings which petitioner sought to have in the case would
have added nothing to petitioners cause against respondents.[102]
San Juan, the Chairman of the PEA from July 1998 to February
2001, submits that a petition for review on certiorari,
under the mode of appeal provided by Rule 45 of the 1997 Rules of Civil
Procedure, is required to raise only questions of law which shall be
distinctly set forth in the petition, the Honorable Court not being a trier of facts. Thus, in certiorari
proceedings under Rule 45, the findings of fact below as well as the
conclusions on the credibility of witnesses are generally not disturbed, the
question before the court being limited to questions of law.[103]
According to San Juan, Rule 45 likewise provides that for the
petitions to be filed under it to be allowed, there must be special and
important reasons therefor, as when the court a quo has decided a question of substance not heretofore determined
by the Honorable Court, or has decided it in any way probably not in accord
with law or with the applicable decisions thereof; or when the court a quo has so far departed from the
accepted and usual course of proceedings, or so far sanctioned such departure
by a lower court as to call for the exercise of the power of supervision of this
Court.
San Juan contends that at the heart of all the purported
serious errors of law raised by petitioner are essentially factual questions,
which petitioner would have the Honorable Court resolve. Thus, San Juan avers that petitioner asks
that this Honorable Court determine:
·
if
based on the appraisals of the properties involved, the right-of-way
acquisitions were overpriced;
·
if
the purchase of the subject properties had been consummated on 7 May 1998 ;
·
if
there was compliance with the procedure for the valuation of the properties
involved;
·
if
respondents amassed wealth from the subject transaction as to be liable for
plunder;
·
if
President Estrada intervened in the purchase of the right-of-way and the
payment thereof;
·
if
the titles transferred to the Republic were clean;
·
and
so on.
San Juan concludes from the above that all these
questions require an appreciation of the evidence and an examination of the
probative value of the proofs presented to determine the truth or falsity of
the factual claims of the parties below; these are thus factual questions.
As regards petitioners allegations of plunder, San
Juan notes that nowhere in the complaint was it alleged that respondent San
Juan or any of his co-respondents received any art of the purchase price for
the lands purchased by the Government from AMVEL from the right of way.[104] The initiative of the TRB not only in
renegotiating the purchase price and in causing the re-appraisal of the
properties by three (3) appraisers but also in successfully reducing the
purchase price cannot be the product of, and is in fact inconsistent with,
respondents supposed connivance or collusion with AMVEL.
San Juan further alleges that the negotiation,
perfection and execution of the Deed of Sale of the lands in question between
TRB and Amvel were all done without the participation or involvement of PEA, as
it was never involved in the renegotiation efforts. This is consistent with the terms of the TOA
and the MOA, where the responsibility for acquiring the lands, the
negotiation with its individual owners and the preparation of the necessary
documents including the cancellation of the titles in the name of the
individual lot owners and the transfer thereof in the name of the government
were all vested in TRB without the intervention of PEA.
San Juan alleges that the following steps were
taken to ensure the regularity of the questioned transaction:
1.
Prior to the full
payment of the purchase price to the sellers, TRB ensured that the Deeds of
Sale were executed by authorized signatories, with the required Board
resolutions and Special Powers of Attorney and duly notarized.
2.
TRB likewise made
certain that the real estate taxes covering the remaining quarters of the year
and the documentary stamp taxes due on the transactions equivalent to 1.5% of
the purchase price were shouldered and paid for by AMVEL with the corresponding
tax clearance duly issued by the Bureau of Internal Revenue; and that all
titles to the properties were clean and transferred in the name of the Republic
of the Philippines before the balance of the purchase price was fully
paid.
3.
Other than paying the
purchase price for the properties, the Government did not pay any expenses for
notarization, taxes and transfer fees, registration and processing of the
transfer of titles to the Republic of the Philippines and clearing the
properties of occupants and their relocation.
San Juan concludes that contrary to petitioners
claims, AMVEL never received a windfall from the government for which it
acquired for almost nothing. In truth,
apart from receiving a purchase price reduced to the extent of P370 million,
AMVEL was required to pay, as it did, expenses normally shouldered by a seller
all these on top of what petitioner himself recognized as developments
undertaken by AMVEL on the properties prior to their acquisition by the government.[105]
San Juan contends that tax declarations, which
petitioner presented as evidence of the alleged overpriced purchase price of
the properties, are neither proof of the true market value of properties nor
conclusive evidence of their value, but only enable the assessor to identify
the same for their assessment levels.[106]
Furthermore, San Juan alleges that the
acquisition cost of a property cannot be the sole basis for determining its
fair value; the current value of similar properties and their actual or
potential uses must be considered together with other factors.[107]
Regarding petitioners insistence that Administrative
Order (A.O.) No. 50 should have been applied, San Juans averments are
summarized below:
1.
A.O. No. 50 would have
no application to the contract between TRB and AMVEL which had been priorly
perfected on May 7, 1998.
2.
The Zonal valuation (6th
Division) which took effect on February 2, 1997, fixing the amount of P4,500/sq m as valuation of the affected properties, refers
to residential regular (RR) lands situated in Dr. A. Santos Avenue, San
Dionisio, Paranaque City. The commercial
lands along same place was fixed at P20,000.00/
sq m and along Ninoy Aquino International Airport at P30,000/00 per sq m.
The affected AMVEL properties were classified by Ordinance No. 97-08 as
within the C-3 high intensity commercial zone.
3.
A.O. No. 50 does not
in any way prohibit the conduct of a negotiated sale which is more expeditious
and less expensive for the Government than engaging in a protracted
expropriation proceedings over the properties with the owners thereof. The purported costs in terms of time,
resources and money will not necessarily result in savings for the Government.
4.
Even in expropriation
proceedings, just compensation for the properties must be determined. And by just compensation is meant a fair
and full equivalent for the loss sustained, which is the measure of the
indemnity x x x the market value of the land taken x x x being the sum of money
which a person desirous, but not compelled to buy, and an owner, willing, but
not compelled to sell, would agree on as a price to be given and received for
such property. Thus, to determine just
compensation, the parties must add to the market value, the consequential
damages. (Tuason v. LTA, 31 SCRA 413)
In the present case, the final valuation agreed upon by the TRB and
AMVEL, upon consideration of the market value as determined by four (4)
independent appraisers, constitutes such just compensation that is not only
fair to the seller but to the Government as well.
5.
The Honorable Court
itself had occasion to observe that protracted expropriation proceedings do not
only mean delay and difficulty for the Government, it also results in the
citizen losing faith in the Government and in its readiness to pay for what it
appropriates. x x x
In this case, the properties affected by the right-of-way
involve numerous owners. Thus, in
pursuing a negotiated sale instead of opting for expropriation proceedings and
arriving at a mutually acceptable acquisition price in consideration for the
transfer of clean and unencumbered titles to the Republic, the Government did
not suffer any losses, contrary to petitioners claims.[108]
San Juan claims that neither the TRB nor PEA
could have aborted the purchase of the AMVEL properties based on the alleged
falsification of the Court of Appeals Decision dated October 29, 1998. These properties were essential for the
Tollway Project a fact which petitioner himself concedes is a reasonable,
necessary and urgent public work. Thus,
the TRB, more so PEA, could not have simply re-arranged the project plans and decided
not to acquire the AMVEL properties. In
fact, it is absurd to even suggest that PEA could override the decision to
build a cheaper and faster expressway traversing the AMVEL properties. Not only did the AMVEL properties have the
most advantageous access to the NAIA, their development was the easiest to
implement, because they had already been cleared of squatters and other
occupants.[109]
As for San Juans purported approval of the
take-over of the Tollway Project by the Coastal Road Corporation (CRC), San
Juan states that there is simply no basis for this claim, for the following
reasons:
a.
At the end of 1999,
the Malaysian counterpart could no longer fund the project due to currency
regulations. After CRC offered to take
over the interest of Renong-Berhad, PEA in fact required it so show proof of
its financial and technical capability.
When respondent San Juans term as PEA chairman ended, CRC had not yet
submitted the PEA requirements.
Consequently, respondent San Juan could not have given my approval to
de-prioritize the C-5 project and to prioritize the R-1 Expressway extension as
allegedly proposed by CRC. Other than
his bare allegations, petitioner has not presented any proof to show that
respondent San Juan and the other respondents have turned-over the project to
CRC and acceded to its proposal to de-prioritize C-5 project and to prioritize
the R-1 Expressway Extensions.
b.
x x x [The] Ombudsman
had already dismissed a related complaint by the same petitioner when he
similarly questioned the transfer and takeover of the Project to CRC. Thus, in a Resolution dated 16 July 2001, the
Ombudsman dismissed the complaint for plunder and violation of RA 3019 filed by
the herein petitioner against Joseph Estrada and other respondents for the transfer
and take-over of the MCTE Project to CRC.[110]
San Juan also claims that in asserting that the
acquisition price arrived at for the questioned transaction exceeded the limit
of P1.7 billion for the
right-of-way purchase, petitioner ignores that the landowners of the affected
properties are entitled to just compensation for the taking of their
properties. San Juan contends that such
just compensation is not based on the budget of the government for the project,
but is the fair and full equivalent for the loss sustained, which is the
measure of the indemnity x x x the market value of the land taken x x x being
the sum of money which a person desirous, but not compelled to buy, and an
owner, wiling, but not compelled to sell, would agree on as a price to be given
and received for such property. San
Juan further contends that petitioner has not otherwise shown how the entire
MCTE Project could be achieved within the said limit of P1.7 billion.[111]
V.
ISSUES
The following issues were raised in
the petition as well as in respondents respective Comments:
A.
Whether or not the
petition should be dismissed for using the wrong mode of appeal and for raising
questions of fact
B.
Whether or not
public respondent Office of the Ombudsman committed serious errors of law as well
as grave abuse of discretion amounting to excess or lack of jurisdiction in issuing
the questioned Resolution and Order
VI.
DISCUSSION
A.
Whether or not
petition should be dismissed for using the wrong mode of appeal and for raising
questions of fact
Respondents Office of the
Ombudsman, Mariano Z. Velarde, Franklin M. Velarde, Gregorio R. Vigilar,
Ronaldo B. Zamora, Manuel B. Zamora Jr., Cesar E.A. Virata, Luis L. Virata, and
Frisco F. San Juan contend that a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure
before this Honorable Court is not the proper mode of appeal in questioning any
final order or resolution of the Office of the Ombudsman; thus, the instant
petition should be outrightly dismissed motu
proprio.
Section 1 of Rule 45 of the 1997
Rules of Civil Procedure provides:
Section
1. Filing
of petition with Supreme Court. A party desiring to appeal by certiorari from a judgment or final
order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial
Court or other courts whenever authorized by law, may file with the Supreme
Court a verified petition for review on certiorari. The petition shall raise only questions of
law which must be distinctly set forth.
Private respondents Velarde aver
that the courts referred to in the provision quoted above are the courts
that compose the integrated judicial system and do not include quasi-judicial
bodies or agencies such as the Office of the Ombudsman.[112] They claim that the proper mode of appeal in
questioning the final judgment, order, or resolution of quasi-judicial bodies
or agencies is provided under Rule 43 of
the 1997 Rules of Civil Procedure.
Section 1 of said Rule states:
Section
1. Scope..
This Rule shall apply to appeals from judgments or final orders of the Court
of Tax Appeals and from awards, judgments, final orders or resolutions of or
authorized by any quasi-judicial agency in the exercise of its quasi-judicial
functions. Among these agencies are the
Civil Service Commission, Central Board of Assessment Appeals, Securities and
Exchange Commission, Office of the President, Land Registration Authority,
Social Security Commission, Civil Aeronautics Board, Bureau of Patents,
Trademarks and Technology Transfer, National Electrification Administration,
Energy Regulatory Board, National Telecommunications Commission, Department of
Agrarian Reform under Republic Act No. 6557, Government Service Insurance
System, Employees Compensation Commission, Agricultural Inventions Board,
Insurance Commission, Philippine Atomic Energy Commission, Board of
Investments, Construction Industry Arbitration Commission, and voluntary
arbitrators authorized by law.
To support their contention that
Rule 43 applies to this case, private respondents rely on the Courts ruling in
Fabian v. Desierto,[113] which provides:
Under the
present Rule 45, appeals may be brought through a petition for review on certiorari but only from judgments and
final orders of the courts enumerated in Section 1 thereof. Appeals
from judgments and final orders of quasi-judicial agencies are now required to
be brought to the Court of Appeals on a verified petition for review, under the
requirements and conditions in Rule 43 which was precisely formulated and
adopted to provide for a uniform rule of appellate procedure for quasi-judicial
agencies.
It is
suggested, however, that the provisions of Rule 43 should apply only to
"ordinary" quasi-judicial agencies, but not to the Office of the
Ombudsman which is a "high constitutional body." We see no reason for
this distinction for, if hierarchical rank should be a criterion, that
proposition thereby disregards the fact that Rule 43 even includes the Office
of the President and the Civil Service Commission, although the latter is even
an independent constitutional commission, unlike the Office of the Ombudsman
which is a constitutionally-mandated but statutorily-created body. (Emphasis ours.)
Public respondent Ombudsman
likewise argues that petitioner has taken the wrong mode of appeal, citing the
rule as laid down by this Court in Tirol
v. del Rosario,[114]
which states:
Section
27 of R.A. No. 6770 provides that orders, directives and decisions of the
Ombudsman in administrative cases are appealable to the Supreme Court via Rule
45 of the Rules of Court. However, in
Fabian v. Desierto, we declared that Section 27 is unconstitutional since it
expanded the Supreme Court's jurisdiction, without its advice and consent, in
violation of Article VI, Section 30 of the
Constitution. Hence, all appeals from decisions
of the Ombudsman in administrative disciplinary cases may be taken to the Court
of Appeals under Rule 43 of the 1997 Rules of Civil Procedure.
True, the
law is silent on the remedy of an aggrieved party in case the Ombudsman found
sufficient cause to indict him in criminal or non-administrative cases. We cannot supply such deficiency if none has
been provided in the law. We have held
that the right to appeal is a mere statutory privilege and may be exercised
only in the manner prescribed by, and in accordance with, the provisions of
law. Hence, there must be a law
expressly granting such privilege. The
Ombudsman Act specifically deals with the remedy of an aggrieved party from
orders, directives and decisions of the Ombudsman in administrative
disciplinary cases. As we ruled in Fabian, the aggrieved party is given the
right to appeal to the Court of Appeals. Such
right of appeal is not granted to parties aggrieved by orders and decisions of
the Ombudsman in criminal cases, like finding probable cause to indict accused
persons.
Public respondent avers that no
information has been filed with either the Sandiganbayan
or the Regional Trial Court; and not only did petitioner resort to the wrong
mode of appeal, he also raised factual issues in his petition, which are not
proper grounds for appeal under the rule.
Public respondent further avers that an error in the choice or mode of
appeal is one of the grounds for the dismissal of the appeal under Section 5, Rule
56 of the 1997 Rules of Civil Procedure.[115] This, aggravated by improper grounds raised
on appeal, has rendered the instant petition dismissible.
Although we agree with private
respondents Velarde that a petition for review on certiorari under Rule 45 is not the proper remedy for parties seeking
relief from final judgments, orders, or resolutions of quasi-judicial bodies or
agencies like the Office of the Ombudsman, as has been repeatedly held by this
Court,[116] we
find that the remedy of appeal under Rule 43 posited by private respondents
Velarde is not proper either. This Court
subsequently held that under the ruling in Fabian,
all appeals from decisions of the Ombudsman in administrative disciplinary cases
may be taken to the Court of Appeals under Rule 43 of the 1997 Rules of Civil
Procedure.[117] Said remedy, therefore, is not applicable to
cases involving criminal or non-administrative charges filed before the Office
of the Ombudsman, which is the situation in the case before us now. As we further stated in Tirol v. Del Rosario:
[An]
aggrieved party is not without recourse where the finding of the Ombudsman as
to the existence of probable cause is tainted with grave abuse of discretion,
amounting to lack or excess of jurisdiction. An aggrieved party may file a
petition for certiorari under Rule 65 of the 1997 Rules of Civil
Procedure.
In Fabian v. Desierto,[118]
the case was dismissed and remanded to the Court of Appeals. This case being criminal and not
administrative in nature, however, the conclusion in Fabian is not applicable.
Thus, due to the nature of this
case and the allegations involving grave abuse of discretion committed by the
Office of the Ombudsman, it should have been filed under Rule 65, and not Rule 45, of the 1997 Rules of Civil Procedure.
This Court had already provided this
remedy in Nava v. Commission on Audit,[119] wherein we held:
The remedy availed of by
petitioner is erroneous. Instead of a petition for certiorari under Rule 65 of the Rules of Court, petitioner filed
with this Court the present petition for review on certiorari under Rule 45 of the Rules of Court pursuant to the
provisions of Section 27 of Republic Act No. 6770.
Rule 45
of the Rules of Court provides that only judgments or final orders or
resolutions of the Court of Appeals, Sandiganbayan, the Regional Trial Court
and other courts, whenever authorized by law, may be the subject of an appeal
by certiorari to this Court. It does not include resolutions of the
Ombudsman on preliminary investigations in criminal cases. Petitioner's
reliance on Section 27 of R.A. No. 6770 is misplaced. Section 27 is involved
only whenever an appeal by certiorari
under Rule 45 is taken from a decision in an administrative disciplinary
action. It cannot be taken into account where an original action for certiorari under Rule 65 is resorted to
as a remedy for judicial review, such as from an incident in a criminal action.
In other words, the right to appeal is
not granted to parties aggrieved by orders and decisions of the Ombudsman in
criminal cases, like the case at bar. Such right is granted only from orders or
decisions of the Ombudsman in administrative cases.
An aggrieved party is not left
without any recourse. Where the findings of the Ombudsman as to the existence
of probable cause is tainted with grave abuse of discretion amounting to lack
or excess of jurisdiction, the aggrieved party may file a petition for certiorari under Rule 65 of the Rules of
Court. (Emphasis
ours.)
Again, in Flores v. Office of Ombudsman,[120]
we ruled as follows:
x x x The
instant petition was captioned as a petition for review by certiorari under Rule 45 of the Rules of Court. However, the
arguments raised refer to alleged grave abuse of discretion committed by the
Office of the Ombudsman. In determining the nature of an action, it
is not the caption, but the averments in the petition and the character of the
relief sought, that are controlling. Accordingly,
we are compelled to consider the instant petition as one under Rule 65 of the
Rules of Court.
This case involves a significant
amount of money that was already released by the government to a private
institution, AMVEL, as purchase price for the road right-of-way in a major
infrastructure project that was undertaken by the former and that naturally
affected the general public. Therefore, even
if this case was erroneously filed as shown above, and may be dismissed
outright under the rules, the Court deems it appropriate to brush aside
technicalities of procedure, as this involves matters of transcendental
importance to the public;[121]
and to consider the petition as one for certiorari
filed under Rule 65 of the Rules of Court.[122]
Respondents argue further that the
petition should be instantly dismissed for failing to raise purely questions of
law. As may be gleaned from petitioners
assignment of errors, this Court is being asked to determine the following,
which involve questions of fact:
1.
Whether or not Administrative Order No.
50, s. 1999 is applicable to the sale of the subject properties in this case;
2.
Whether or not private respondents complied
with the prescribed procedure in determining a fair and reasonable valuation of
the subject properties;
3.
Whether or not respondents bloated the
purchase price;
4.
Whether or not respondents changed the
original alignment of the Sucat Interchange, which resulted in an increase in
the size of the AMVEL property sold to the government;
5.
Whether or not respondent Mariano Z.
Velarde made a killing in the sale of the subject properties;
6.
Whether or not a portion of the subject
properties did not have a clean title at the time they were sold to the
government;
7.
Whether or not the cost of the
right-of-way was bloated, which led to the depletion of the proceeds of the
US$68.6 Million loan for the right-of-way acquisition; and
8.
Whether or not respondents de-prioritized
the R-1 Expressway Extension over the C-5 Link Expressway.
It is settled that this Court is
not a trier of facts[123]
and its jurisdiction is limited to errors of law. As we held in Tirol v. Commission on Audit,
There is a question of law in any given case when the doubt or difference
arises as to what the law is on a certain state of facts. A question of fact arises when the doubt or
difference arises as to the truth or falsehood of alleged facts.[124]
Moreover, in Medina v. City Sheriff, Manila,[125] we have stated:
For
this petition to be granted, it must be shown that the respondent appellate
court committed grave abuse of discretion equivalent to lack of jurisdiction
and not mere errors of judgment, for certiorari
is not a remedy for errors of judgment, which are correctible by appeal.
B.
Whether or not
public respondent Office of the Ombudsman committed serious errors of law as
well as grave abuse of discretion amounting to excess or lack of jurisdiction
in issuing the questioned Resolution and Order
In the case now before us,
petitioner wants this Court to review the evidence that was already thoroughly
studied by public respondent Ombudsman and passed upon in the questioned
Resolution.[126] Thus, public respondent found that:
The
uncontroverted facts clearly show that Administrative Order No. 50 was issued
on February 17, 1999, while the transaction/ negotiation for the purchase of
affected lands was consummated as early as May 1998. As correctly pointed out by respondents, the
governing law is Executive Order No. 132, (E.O. No. 132) issued on December 27,
1937, which laid down the following procedure:
a) The Director of the Bureau of Public Works,
City or District Engineer or other officials concerned shall make the necessary
negotiations with owner of the property needed for public use with a view to
having it donated, or sold to the government at not to exceed the assessed
valuation prior to the investigation and survey of the project.
b) If the negotiation fails, the officials
concerned shall forthwith and by formal notification submit the matter to an
Appraisal Committee which is hereby created and which shall be composed of the
Provincial Treasurer, as Chairman, and the District Engineer and the District
Auditor, as members, of the province where the land is located. If the property is situated in a chartered
city the Appraisal Committee shall composed (sic) of the City Treasurer, as Chairman and the City Engineer and
City Auditor, as members. x x x
A perusal
of the guidelines as well as the documentary evidence on the transaction
reveals that respondents complied with the prescribed procedure in determining
a fair and reasonable valuation of the properties in question. The referral for the determination of the
fair market value of the properties to [the] Paranaque City Appraisal Committee
which recommended the payment of P20,000.00 per sq. m. thereof was in
order. The appraisal was a result of
several [factors] ranging from assessing the location accessibility, selling
prices of comparable properties, the amenities present like water, electricity,
transportation and communication within the vicinity and the status or
condition of the parcels of land. TRBs
act of subjecting the properties to another round of appraisal, this time, by
three independent appraisal companies is a manifestation that TRB had made sure
that the Government would not be put in a disadvantageous position in view of a
very high appraisal recommended by PCAC.
Clearly, the result of the appraisals conducted by the three (3) independent
appraiser companies led TRB to come up with an average appraisal in the amount
of P15,355.00 per square [meter] in purchasing AMVELs property. The amount is far below the original
recommendation of PCAC to purchase AMVELs property at P20,000.00 per sq. m.
Complainant
merely relied on
Administrative Order No. 50 issued by respondent Estrada and
on the fact that the valuation must be based on zonal valuation fixed by BIR at
P4,000.00 per sq. m. a year prior to the sale.
As
earlier stated, Administrative Order No. 50 finds no application to the already
perfected contract between TRB and AMVEL.
On the Zonal Valuation (6th Revision) that took effect on
February 2, 1997 whereby it fixed the amount of P4,500.00 per sq. m. as
valuation of the affected properties however refers to residential regular (RR)
lands situated in Dr. A. Santos Avenue, San Dionisio, Paranaque City. The commercial lands along same place was
fixed at P20,000.00 per sq. m. and along Ninoy Aquino International Airport at
P30,000.00 per sq. m. The affected AMVEL
properties were classified by Ordinance No. 97-08, pages 32, 33, 34 as within
the C-3 high intensity commercial zone.
The properties in question being within commercial zone, PCAC properly
recommended valuation of P20,000.00 is justified (sic). We agree with the PCAC
that the appraisal of a property is not limited only to the zonal valuation by
the BIR. As correctly pointed out by
respondents Nacianceno, Daval-Santos, Medina-Cue and de Leon, the appraisal of
properties are also based on location, accessibility, selling prices of
comparable properties, the amenities present like water, electricity,
transportation and communication, etc.
In fact, in Administrative Order No. 50, zonal valuation is only one of
the many factors being considered in the payment of just compensation.
Complainant
also anchored his complaint on two (2) Memoranda dated March 30, 1999, from
then President Estrada x x x.
x x x
We find
no circumstance to consider the two (2) Memoranda anomalous or irregular. The approval of the Deeds of Sale between TRB
and AMVEL by respondent Estrada was in pursuance to the provisions of P.D.
1112.
It may
not be amiss to state that the transaction between TRB and AMVEL was
consummated as early as May 1998 during the administration of former President
Fidel V. Ramos. The payment of the
purchase price was only delayed as the TRB conducted a re-appraisal of the
property until the new administration of respondent Estrada in June 1998. It was only in January 1999 that TRB, then
having come out with a new price per sq. m. after averaging the appraisal of
the three (3) independent appraisers and of PCAC, approved the purchase price
of P1,221,799,806.00 for the acquisition of AMVELs property totaling 79,598
per sq. m. at P15,350.00. This delay in
the determination of the consideration did not affect the already perfected
contract as the consideration thereof was already determined or determinable. The events negate complainants claim that
the transaction was concluded in just 2 ― working days. The insinuation that respondent Estrada
favored AMVEL in approving the purchase of subject properties . . . has no
basis. If indeed AMVEL persuaded
respondent Estrada to act on its favor, then AMVEL could have pushed for the
acquisition of the properties not at P15,350.00 but at P20,000.00 per sq.
m. Besides, the valuation of P15,355.00
per sq. m. paid to AMVEL is much lower than the advertised price of the
properties adjacent to AMVEL pegged at least P19,000.00to P55,000.00 per sq.
m. x x x
Further, [with] respondents Velarde and/or AMVEL, being engaged in
business, it is natural that they engage in profit scheme (sic) which in this case appears justified.
While
there was a complete payment in favor of AMVEL of the purchase price of
P1,221,766,640.00 within one (1) month from the time respondent Estrada
approved the transaction, we find the same not anomalous. The several [Deeds] of Sale executed by the
parties, TRB and AMVEL, stipulate that fifty (50%) percent of the purchase
price shall be paid upon execution of the contract. The other fifty (50%) percent upon issuance
by the Register of Deeds of the corresponding Transfer Certificate of Title
covering the properties in the name of the Republic of the Philippines.
In the
crime of Plunder, the following elements must exist:
2. A public officer acquires wealth
by himself or in connivance with another person;
3. The acquisition of the wealth was
obtained through the means described in Section 1 (d).
In the
instant case, the alleged ill-gotten wealth consisting of the overpriced
purchase price of the properties affected by C-5 Link, was allegedly obtained
by respondents by taking undue advantage of their official position, authority,
relationship, connection or influence to unjustly enrich themselves at the
expense of the Filipino People.
We find
no evidence to support complainants claim of the existence of ill-gotten
wealth. The purchase price of
P1,221,799,804 paid to AMVEL could not be considered as ill-gotten wealth as said
amount is a consideration of a legally entered Deeds (sic) of Sale. There is no
evidence that public respondents benefited/profited or had taken shares with
private respondents in the transaction.
Complainant
contends that public and private [respondents] acts constitute also violation
of Section 3(a), (e), (g), (h) and (j) of Republic Act 3019, as amended.
We find
no evidence to support said allegation.
In
reference to Section 3(a), there is no sufficient evidence showing that
respondents, especially respondent Estrada, induced or influenced anybody to
perform an act in violation of rules and regulation (sic). Neither was there
proof of a violation of any rules or regulations promulgated by competent
authority. Administrative Order No. 50
cannot be considered as the rule violated since it finds no applications (sic) on the questioned transaction.
Insofar
as Section 3(e) is concerned, there was no showing that the government suffered
undue injury when the AMVEL properties were purchased at P15,355.00 per sq.
m. As earlier pointed out, complainant
relied on the valuation of P4,500.00 per sq. m. fixed by the BIR when the said
valuation applies to regular residential land and not to commercial lots fixed
at least P20,000.00 per sq. m. The
P15,355.00 per square meter [price] is
relatively low compared to that recommended by PCAC and contained at BIR Zonal
Valuation which was P20,000.00 per sq. m.
Referring
to Section 3(g), there was no basis to conclude that the contract was grossly
disadvantageous to the government. On
the contrary, the government was able to save money when it decided to purchase
the questioned properties at P15,355.00 per sq. m. and not at P20,000.00.
Section
3(j) has no application in the instant case as it pertains to the granting of a
license, permit or benefit. Assuming as
it does, it established a record that the affected properties were purchased
from persons or [entities] who were legally authorized to sell or own the same
in accordance with the applicable laws, rules and regulations.
We find
no evidence that the elements of Section 3(h) exist. The provision requires that there must be an
actual intervention in the transaction for financial or pecuniary interest by
public respondent. While there was an
intervention by public respondents the same were in pursuance to the exercise
official duties. Neither public
respondents have direct or indirect financial or pecuniary interest with AMVEL.
Considering
that the crimes imputed against the respondents were not shown to exist,
conspiracy could not likewise be appreciated.
It is a well settled ruled that conspiracy must be proven as clearly as
the commission of the offense itself.
WHEREFORE,
premises considered, this case is hereby DISMISSED for lack of evidence.
SO RESOLVED.[127]
Upon Motion for Reconsideration of
petitioner, respondent Office of the Ombudsman issued an Order,[128]
the pertinent portions of which are quoted below:
There is
no truth to the allegation that the Ombudsman deliberately failed to order the
conduct of fact-finding investigation.
To conduct a fact-finding investigation is a question addressed to the
sound discretion of the Ombudsman and not therefore as a matter of right. When the instant complaint was filed
complainant attached voluminous documents which when evaluated was sufficient
in form and substance to conduct preliminary investigation. To that matter, there is no need to conduct
fact-finding activities as the compliant already reached the formal stage of
investigation to determine whether or not probable cause exists to charge
respondents. In the same manner, the
request for subpoena duces tecum cannot be demanded as a matter of policy for
every [case] filed before this Office.
From the very beginning it is the duty of the complainant to present
complete and ample evidence to support his allegation and not to rely on the
coercive processes of this Office lest to be accused of being a tool for every
complainants crusade and be labeled as engaged in fishing evidence.
[Complainant]
questions the inhibition of the Honorable Ombudsman. We view however the same inhibition a prudent
exercise of impartiality. Prudence
dictates that the Honorable Ombudsman himself should inhibit to clear any
suspicion that he would engage in any retaliatory [act] against the complainant
in view of the impeachment case filed by the latter. Far from the accusation that the Honorable
Ombudsman prejudged the case as well as the members of the Panel, we submit
that the resolution was arrived [at] after a painstaking appreciation of the
available evidence of the complainant and respondents.
As a
consequence of the inhibition of the Honorable Ombudsman, the Overall Deputy
Ombudsman, Hon. Margarito P. Gervacio, Jr. had to perform the duties of the
Ombudsman and assumed and took charge of the disposition of the case. This finds support under Section 8 of R.A.
6770, otherwise known as Ombudsman Act of 1989. On the contrary, complainant failed to cite
the particular provision of law allegedly violated when the Overall Deputy
Ombudsman approved the dismissal of the case.
In the same manner we find the insinuations of the complainant against
the Overall Deputy Ombudsman baseless much more sufficient to affect or disturb
whatever findings we have in our resolution.
Complainant
alleges that his evidence were totally disregarded. He forgot however, that respondents have
evidence too. Notwithstanding with the
voluminous documents complainant submitted, this Office has to weigh the
evidentiary value and credibility of the evidence as well as the arguments of
both parties. It so happened that in the
appreciation thereof, we gave credence to the evidence of the other
parties. That judgment cannot be put as
an issue that would warrant the reversal of our decision.
In
general, the Motion for Reconsideration failed to advance new arguments that
would warrant the reversal of the questioned Resolution. There was no new evidence submitted by the
complainant to warrant a second look of our resolution. The supposed documents he attached in the
Motion were already passed upon and examined by this Office. Lastly, complainant miserably failed to point
out specifically the findings or conclusion of the resolution which was
contrary to law.
WHEREFORE,
premises considered, the Motion for Reconsideration of the complainant is
hereby DENIED for lack of merit.
SO
ORDERED.
We find no cogent reason to weigh
all over again the evidence in this case and to reverse the findings of the
public respondent quoted above. This is
because, as we held in Tirol v. COA:
[This]
Court ordinarily does not interfere with the discretion of the Ombudsman to
determine whether there exists reasonable ground to believe that a crime has
been committed and that the accused is probably guilty thereof and, thereafter,
to file the corresponding information with the appropriate courts. This rule is based not only upon respect for
the investigatory and prosecutory powers granted by the Constitution to the
Office of the Ombudsman but upon practicality as well. Otherwise the functions of the courts will be
grievously hampered by immeasurable petitions assailing the dismissal of
investigatory proceedings conducted by the Office of the of the Ombudsman with
regard to complaints filed before it, in as much the same way that the courts
would be extremely swamped if they would be compelled to review the exercise of
discretion on the part of the fiscals or prosecuting attorneys each time they
decide to file an information in court or dismiss a complaint by a private
complainant.[129]
More recently, we had occasion to pass upon a
similar case, the core issue of which was whether the Ombudsman committed grave abuse of discretion in
dismissing petitioners' complaint against the respondents. In that case, we ruled in the negative and,
accordingly, dismissed the petition.[130] Thus, we held:
We
cannot overemphasize the fact that the Ombudsman is a constitutional officer
duty bound to "investigate on its own, or on complaint by any person, any
act or omission of any public official, employee, office or agency, when such
act or omission appears to be illegal, unjust, improper, or inefficient." The raison d 'etre for its creation and
endowment of broad investigative authority is to insulate it from the long
tentacles of officialdom that are able to penetrate judges' and fiscals'
offices, and others involved in the prosecution of erring public officials, and
through the execution of official pressure and influence, quash, delay, or
dismiss investigations into malfeasances and misfeasances committed by public
officers.
In
Presidential Commission on Good
Government (PCGG) v. Desierto, we dwelt on the powers, functions and duties
of the Ombudsman, to wit:
The
prosecution of offenses committed by public officers is vested primarily in the
Office of the Ombudsman. It bears emphasis that the Office has been given a
wide latitude of investigatory and prosecutory powers under the Constitution
and Republic Act No. 6770 (The Ombudsman Act of 1989). This discretion is all
but free from legislative, executive or judicial intervention to ensure that
the Office is insulated from any outside pressure and improper influence.
Indeed,
the Ombudsman is empowered to determine whether there exist reasonable grounds
to believe that a crime has been committed and that the accused is probably
guilty thereof and, thereafter, to file the corresponding information with the
appropriate courts. The Ombudsman may thus conduct an investigation if the
complaint filed is found to be in the proper form and substance. Conversely,
the Ombudsman may also dismiss the complaint should it be found insufficient in
form or substance.
Unless
there are good and compelling reasons to do so, the Court will refrain from
interfering with the exercise of the Ombudsman's powers, and respect the
initiative and independence inherent in the latter who, beholden to no one,
acts as the champion of the people and the preserver of the integrity of public
service.
The
pragmatic basis for the general rule was explained in Ocampo v. Ombudsman:
The
rule is based not only upon respect for the investigatory and prosecutory
powers granted by the Constitution to the Office of the Ombudsman but upon
practicality as well. Otherwise, the functions of the courts will be grievously
hampered by innumerable petitions assailing the dismissal of investigatory
proceedings conducted by the Office of the Ombudsman with regard to complaints
filed before it, in much the same way that the courts would be extremely
swamped if they would be compelled to review the exercise of discretion on the
part of the fiscals or prosecuting attorneys each time they decide to file an
information in court or dismiss a complaint by private complainants.
From
the foregoing, it is crystal clear that we do not interfere with the
Ombudsman's exercise of his investigatory and prosecutory powers vested by the
Constitution. In short, we do not review the Ombudsman's exercise of discretion
in prosecuting or dismissing a complaint except when the exercise thereof is
tainted with grave abuse of discretion.[131]
In the recent case Lazatin v. Ombudsman,[132] this Court held that the question of whether the
Ombudsman correctly ruled that there was enough evidence to support a finding
of probable cause pertains to a mere error of judgment. The Court further held:
It must
be stressed that certiorari is a
remedy meant to correct only errors of jurisdiction, not errors of judgment.
This has been emphasized in First
Corporation v. Former Sixth Division of the Court of Appeals, to wit:
It
is a fundamental aphorism in law that a review of facts and evidence is not the
province of the extraordinary remedy of certiorari,
which is extra ordinem beyond the
ambit of appeal. In certiorari proceedings, judicial review does not go as far as to
examine and assess the evidence of the parties and to weigh the probative value
thereof. It does not include an inquiry as to the correctness of the evaluation
of evidence. Any error committed in the
evaluation of evidence is merely an error of judgment that cannot be remedied
by certiorari. An error
of judgment is one which the court may commit in the exercise of its
jurisdiction. An error of jurisdiction is one where the act complained of was
issued by the court without or in excess of jurisdiction, or with grave abuse
of discretion, which is tantamount to lack or in excess of jurisdiction and
which error is correctible only by the extraordinary writ of certiorari. Certiorari will not be issued to cure errors
of the trial court in its appreciation of the evidence of the parties, or its
conclusions anchored on the said findings and its conclusions of law. It is not for this Court to re-examine
conflicting evidence, re-evaluate the credibility of the witnesses or
substitute the findings of fact of the court a quo.[133]
Even if the issues involved here
are factual, petitioner invokes the power of the Court to reverse the decision
of the Ombudsman by alleging that the latter acted with grave abuse of
discretion amounting to lack or excess of jurisdiction. However, as in Morong Water District v. Office of the Deputy Ombudsman,[134] we find that:
[The]
Order and the Resolution of the Ombudsman are based on substantial evidence. In
dismissing the complaint of petitioner, we cannot say that the Ombudsman
committed grave abuse of discretion so as to call for the exercise of our
supervisory powers over him. This court
is not a trier of facts. As long as
there is substantial evidence in support of the Ombudsman's decision, that
decision will not be overturned.
As regards petitioners insistence
that the Office of the Ombudsman should have conducted a fact-finding
investigation and issued subpoena duces
tecum as requested, we find that the Ombudsmans action not to issue the
same was not made in grave abuse of discretion.[135] We have previously ruled regarding this
matter in this wise:
If
the Ombudsman may dismiss a complaint outright for lack of merit, it
necessarily follows that it is also within his discretion to determine whether
the evidence before him is sufficient to establish probable cause. Thus, petitioners may not compel the Ombudsman to
order the production of certain documents, if in the Ombudsman's judgment
such documents are not necessary in order to establish the guilt, or innocence,
of the accused.
It has
been the consistent policy of the Supreme Court not to interfere with the
Ombudsman's exercise of his investigatory powers. xxx
[It] is
beyond the ambit of this Court to review the exercise of discretion of the Ombudsman
in prosecuting or dismissing a complaint filed before it. Such initiative and
independence are inherent in the Ombudsman who, beholden to no one, acts as the
champion of the people and preserver of the integrity of the public
service.
The
rationale underlying the Court's policy of non-interference was laid down in Ocampo v.Ombudsman and reiterated in the
more recent case of Venus v. Desierto,
to wit:
The
rule is based not only upon respect for the investigatory and prosecutory
powers granted by the Constitution to the Office of the Ombudsman but upon
practicality as well. Otherwise, the
functions of the courts will be grievously hampered by innumerable petitions
assailing the dismissal of investigatory proceedings conducted by the Office of
the Ombudsman with regard to complaints filed before it, in much the same way
that the courts would be extremely swamped if they would be compelled to review
the exercise of discretion on the part of the fiscals or prosecuting attorneys
each time they decide to file an information in court or dismiss a complaint by
a private complainant.[136]
Grave abuse of discretion has been
defined as such capricious and whimsical exercise of judgment tantamount to
lack of jurisdiction. The abuse of
discretion must be so patent and gross as to amount to an evasion of a
positive duty or a virtual refusal to perform a duty enjoined by law, or to act
at all in contemplation of law, as where the power is exercised in an arbitrary
and despotic manner by reason of passion or hostility.[137] We do not find this situation to be present
in the instant case so as to merit a reversal of the questioned Resolution and
Order issued by respondent Office of the Ombudsman.
WHEREFORE,
premises considered, the petition is hereby DISMISSED. The assailed
Resolution and Order of the Ombudsman in OMB-0-01-0577 are AFFIRMED.
SO ORDERED.
TERESITA
J. LEONARDO-DE CASTRO
Associate
Justice
WE
CONCUR:
REYNATO
S. PUNO
Chief Justice
(On
official leave)
LEONARDO A. QUISUMBING
Associate Justice
|
CONSUELO YNARES-SANTIAGO Associate Justice
|
|
ANTONIO T. CARPIO Associate Justice
|
RENATO C. CORONA
Associate Justice
|
|
CONCHITA CARPIO MORALES Associate
Justice |
MINITA V. CHICO-NAZARIO Associate
Justice |
|
PRESBITERO J. VELASCO, JR. Associate Justice
|
ANTONIO EDUARDO B. NACHURA Associate Justice
|
|
(On leave) ARTURO D. BRION Associate
Justice |
DIOSDADO M. PERALTA Associate
Justice |
|
LUCAS P. BERSAMIN Associate
Justice |
MARIANO C. DEL CASTILLO Associate
Justice |
|
|
|
Associate
Justice
Pursuant
to Section 13, Article VIII of the Constitution, I certify that the conclusions
in the above decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court.
Chief Justice
* On official leave.
** On sick leave.
[1] Rollo, pp. 184-216.
[2] Id. at 220.
[3] Complaint-Affidavit in OMB-0-01-0577, rollo, pp. 490-494.
[4] Under
Presidential Decree No. 1112, dated March 31, 1977, the Toll Regulatory Board
was created, with powers and functions that include:
Subject to the
approval of the President of the Philippines, to enter into contracts in behalf
of the Republic of the Philippines with persons, natural or judicial, for the
construction, operation and maintenance of toll and facilities such as but not
limited to national highways, roads, bridges, and public thoroughfares. Said contract shall be open to citizens of
the Philippines and/or to corporation or association qualified under the
Constitution and authorized by law to engage in toll operations.
[5] The PEA entered
into a Joint Venture Agreement (JVA) with two Malaysian companies, following an
exchange of state visits between President
Ramos and the Malaysian Prime Minister, Dr. Mahathir Mohammad. The two
Malaysian companies were: Mara, a
corporate agency of the Malaysian government; and Renong, a publicly listed company incorporated in Malaysia.
[6] Rollo, p. 452.
[7] Renong was replaced by United Engineers
Malaysia (UEM), a public company incorporated in Malaysia.
[8] Rollo, pp. 463-468.
[9] Id. at 1750.
[10] Id. at 850.
[11] Id. at 474-478.
[12] Id. at 1751-52.
[13] Id. at 1752.
[14] Id. at 249.
[15] Id. at 251.
[16] Id. at 252.
[17] Id. at 249-252.
[18] Id. at 1406.
[19] Id. at 1198.
[20] Id. at 1176.
[21] Id. at 1754.
[22] Id. at 1078.
[23] Id. at 1104.
[24] Id. at 290-295.
[25] Id. at 1190.
[26] Id. at 1095.
[27] Id. at 1197.
[28] Id. at 224.
[29] Id. at 226.
[30] Id. at 1200.
[31] Id. at 227.
[32] Ibid.
[33] Id. at 227.
[34] Id. at 207-210.
[35] Id. at 1753-1760.
[36] Id. at 490.
[37] Id. at 494-499.
[38] Id. at 64.
[39] Id. at 499.
[40] Id. at 500.
[41] Administrative Order No. 50 provides:
SECTION 1. Conditions to be complied with during the
Negotiated Sale. All government agencies and instrumentalities which are
engaged in public infrastructure projects, including but not limited to the
Department of Public Works and Highways, National Power Corporation, and the
Department of Transportation and Communication, shall first negotiate with the
owner for the acquisition of parcels of private land intended for public use
including the right-of-way easement of such projects by offering in writing a
purchase price of an amount equivalent to ten per cent (10%) higher than the
zonal value of the said property. During the negotiation, the landowner shall
be given fifteen (15) days within which to accept the amount offered by the
concerned government agency as payment for the land.
SECTION 2. Expropriation Proceedings. After the abovementioned period and no acceptance is made by the landowner, the concerned agency, in coordination with the Solicitor General, shall initiate expropriation proceedings in the proper court, depositing ten per cent (10%) of the offered amount.
[42] Id. at 247.
[43] Id. at 505.
[44] Id. at 504.
[45] Id. at 505.
[46] Id. at 253-260.
[47] Id. at 508-509.
[48] Supra note 1 at 193-197.
[49] Id. at 216.
[50] Id. at 971.
[51] Id. at 974-981.
[52] Supra note 2 at 223.
[53] Id. at 1019.
[54] Id. at 1020.
[55] Id.
[56] Id. at 1025.
[57] Id. at 1026.
[58] Id. at 1176.
[59] Id. at 1190.
[60] Id. at 1197.
[61] Id. at 1199.
[62] Id. at 1140.
[63] Id. at 1205.
[64] Id. at 1143.
[65] Id. at 1144.
[66] Id.
at 1147-1149.
[67] Id. at 1152-1155.
[68] Id. at 1301.
[69] Id. at 1310.
[70] Id. at 356-360.
[71] Id. at 1318.
[72] Id. at 1319.
[73] Id. at 1355.
[74] Id. at 850.
[75] Id. at 852.
[76] G.R. No. 81563, December 19, 1989, 180 SCRA 309, 316.
[77] Id. at 1375.
[78] Id. at 1375.
[79] Art. 8, par. 2, Revised Penal Code.
[80] People v. Quilaton, G.R. No. 131835, February 3, 2000, 324 SCRA 670.
[81] Rollo, pp. 1387-1388.
[82] Id. at 253-260.
[83] G.R. No. 110658, May 22, 1995, 244 SCRA 235.
[84] Art. 1475, Civil Code.
[85] Id. at 1577.
[86] Id. at 1578.
[87] G.R. No. 109113, January 25, 1995, 240 SCRA 502.
[88] G.R. No. 79538, October 18, 1990, 190 SCRA 673.
[89] Id. at 1581-1582.
[90] Id. at 1582-1584.
[91] Id. at 1586.
[92] Id. at 1628-1672.
[93] G.R. No. 123332, February 3, 1997, 267 SCRA 487.
[94] Id. at 1601-1602.
[95] Regalado, F.B. Remedial Law Compendium. 1988 Revised Edition, Volume 1, p. 340.
[96] Rollo, p. 1618.
[97] Id. at 1620.
[98] Id.
at 1708.
[99] Id. at 1730.
[100] Id. at
1731-1732.
[101] Id.
[102] Rollo, pp. 1760-1761.
[103] Universal Motors v. Court of Appeals, G.R. No. 47432, January 27, 1992, 205 SCRA 448.
[104] Rollo, p. 1765.
[105] Id. at 1767-1769.
[106] Patalinhug v. CA, G.R. No. 104786, January 27, 1994, 229 SCRA 554.
[107] Sesbreņo v. Central Board of Assessment Appeals, G.R. No. 106588, March 24, 1997, 270 SCRA 360.
[108] Rollo, pp. 1773-1775.
[109] Id. at 1783-1784.
[110] Id. at 1784-1785.
[111] Id. at 1786.
[112] Id. at 1130-1131.
[113] G.R. No. 129742, September 16, 1998, 295 SCRA 470, 486-487.
[114] G.R. No. 135913, November 4, 1999, 317 SCRA 779, 785.
[115] Sec. 5. Grounds for dismissal of appeal. The appeal may be dismissed motu proprio or on motion of the respondent on the following grounds:
x x x
(f) Error in the choice or mode of appeal;
x x x.
[116] Fabian
v. Desierto, supra note 113; Namuhe v. Ombudsman, G.R. No. 124965,
October 29, 1998, 298 SCRA 298; Tirol,
Jr. v. Del Rosario, supra note
114; Tirol, Jr. v. Commission on Audit, G.R. No. 133954, August 3, 2000,
337 SCRA 198.
[117] Tirol, Jr. v. Del Rosario, supra note 114, at 46. Emphasis ours.
[118] Supra note 113.
[119] G.R. No. 136470, October 16, 2001, 367 SCRA 263, 269-270.
[120] G.R. No. 136769, September 17, 2002, 389 SCRA
127, 132.
[121] Tirol v. COA, supra note 116, at 208.
[122] See Santiago
Santiago v. COMELEC, G.R. No. 127325, March 19, 1997, 270 SCRA 106,
134-135 citing Kilosbayan, Inc. v.
Guingona, Jr., G.R. No. 113375, May 5, 1994, 232
SCRA 110, 134.
[123] Sps. Uy v. Court of Appeals, G.R. No. 109197, June 21, 2001, 359 SCRA 262, 268-269 citing Abalos v. CA, G.R. No. 106029, October 19, 1999, 317 SCRA 14; and Valmonte v. CA, G.R. No. L-41621, February 18, 1999, 303 SCRA 278.
[124] Tirol v. COA, supra note 116, at 207.
[125] G.R. No. 113235, July 24, 1997, 276 SCRA 133, 138.
[126] Supra note 1.
[127] Supra note 1 at 210-216.
[128] Supra note 2 at 221-223.
[129] Tirol v. COA, supra note 116, at 208.
[130] ABS-CBN Broadcasting Corp. v. Office of the Ombudsman, G.R. No. 133347, October 15, 2008.
[131] Id., citing PCGG v. Desierto, G.R. No. 139675, July 21, 2006, 496 SCRA 112 and Ocampo v. Ombudsman, G.R. Nos. 103446-47, August 30, 1993, 225 SCRA 726.
[132] G.R. No. 147097, June 5, 2009.
[133] Citing First Corporation v. Former Sixth Division
of the Court of Appeals, G.R. No. 171989, July 4,
2007, 526 SCRA 564, 578.
[134] G.R. No. 116754, March 17, 2000, 328 SCRA 363, 373.
[135] See Mamburao, Inc. v. Office of the Ombudsman, G.R. Nos. 139141-42, November 15, 2000, 344 SCRA 805, 817.
[136] Id.
at 819, citing Venus v. Desierto, 298
SCRA 196 (1998); Velasco v. Casaclang,
294 SCRA 394 (1998), citing Republic v. Sandiganbayan, 200 SCRA 667
(1991) and Zaldivar v. Sandiganbayan,
160 SCRA 843 (1988); Knecht v. Desierto,
291 SCRA 292 (1998), citing Lastimosa v. Ombudsman, 243 SCRA 497
(1995); Ocampo v. Ombudsman, 225 SCRA 725 (1993).
[137] Supra note 130.