THIRD
DIVISION
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M.A. JIMENEZ ENTERPRISES, INC., represented by CESAR CALIMLIM and
LAILA BALOIS,
Petitioner, - versus - THE HONORABLE
OMBUDSMAN, JESUS P. CAMMAYO, ARTURO Respondents. |
|
G.R.
No. 155307 Present: CARPIO MORALES, J., Chairperson, BRION, BERSAMIN, ABAD,* and VILLARAMA, JR., JJ. Promulgated: June 6, 2011 |
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VILLARAMA, JR., J.:
Before us is a special civil action
for certiorari and mandamus[1]
praying that the Resolution[2]
dated February 5, 2002 and Order[3]
dated June 27, 2002 of the Ombudsman in OMB Case No. 0-01-0400 be nullified and
a writ of mandamus be issued directing the Ombudsman to file informations
against respondents for violation of Section 3(e) of Republic Act (R.A.) No.
3019 or the Anti-Graft and Corrupt Practices Act.
The facts, as culled from the records,
are as follows:
On January 20, 1999, the Department of
Public Works and Highways (DPWH) entered into a contract[4]
for the proposed construction of the Baguio General Hospital and Medical
Center (BGHMC) Building (Phase I) with Royson and Co., Inc. (Royson), represented
by its President, respondent Manuel V. Roy. The contract was approved by DPWH
Secretary Gregorio R. Vigilar on
On
Construction of a provisional slope
protection measure in the construction and excavation area was then
started. Unfortunately, on
On
The City Engineer of Baguio, for its
part, found the following:
1. That the construction being implemented by Royson and Co., Inc. is not covered by a building and excavation permit.
2. That the personnel of Royson & Co., Inc. alleged that no death resulted in the accident that happened on February 7, 2000 within their construction area.
3. That portion of Mr. & Mrs. Jimenez garage allegedly encroached inside the property of BGH.
4. That the
retaining wall is located approximately
5. That cracks on
their driveway approximately
Royson subsequently proceeded to build
reinforced concrete slope protection, a grouted riprap, and a retaining wall for
the compound. However, on
Asserting that its property was damaged as a result,
petitioner, through its representatives, Cesar Calimlim and Laila Balois, filed
an Affidavit-Complaint[8]
against all respondents before the Office of the Ombudsman.
Petitioner alleged that it is the owner of the land adjacent
to the project site and that the said land was covered by TCT No. 31565. Before the incident, the land together with
its improvements was valued at P25
million. However, according to
petitioner, its property has now become virtually useless and danger-prone and can
no longer be used profitably as the surrounding land has been eroded. Petitioner claimed that the damage to its
property was due to respondents gross negligence, incompetence and/or malicious
conduct because they failed to construct a perimeter fence in the excavations
made for the expansion of the BGHMC despite the fact that petitioner had
written Royson about the possibility of an erosion happening. Thus, petitioner charged all the respondents
of causing undue injury to it in the discharge of their official and
administrative functions through manifest partiality, evident bad faith and
inexcusable negligence in the construction of the expansion project of the
BGHMC and its retaining wall.
Petitioner also averred in its
affidavit-complaint that it filed a complaint for damages against the
respondents before the Regional Trial Court of Quezon City, docketed as Civil
Case No. Q-01-43224.
Respondent Teodoro
Barrozo, the former City Engineer of Baguio City, filed his Counter-Affidavit[9] denying any
liability under R.A. No. 3019. He
claimed that the project in question was not a public-work project of the City
Government of Baguio but a project of the national government over which the Baguio
City Engineer has no control and supervision.
He maintained that the City Engineers Office was never negligent or
remiss in its duty: when it found out that the project was without the
necessary permits, it immediately required the manager of Royson and BGHMC to
obtain permits.
Respondent Jesus P.
Cammayo, then Assistant Secretary of the DPWH, also submitted his
Counter-Affidavit[10] denying that he was
negligent in the performance of his duties and responsibilities. He also asserted that there was no basis for
liability on his part because he had no participation whatsoever in the
preparation, execution and approval of the contract and the project plans. The Contract for the Proposed Construction of
the BGHMC (Phase I) was executed between DPWH, through Undersecretary Edmundo V.
Mir, and Royson and was approved by DPWH Secretary Gregorio Vigilar. The BGHMC
Project was a locally funded special project classified under Special
Buildings, and as such, it was directly supervised by the Project Management Office
for Special Buildings (PMO-SB) headed by the Project Director, Engr. Arturo
Santos. It was also directly managed by Project Manager, Architect Angelito
Damo, who was under the direct control and supervision of Engr. Santos. Although he supervises and/or controls the
PMO-SB, Cammayo averred that he does not directly participate in the actual
oversight of the construction of the BGHMC Project.
Cammayo added that in any event, he
did all he could do to prevent damage to petitioners property. He stressed that in the original plans for
the project, there was no provision for the construction of any reinforced
slope protection or retaining wall for the area adjacent to or near petitioners
property. Thus, there was no obligation
to construct such permanent protection measures. But recognizing the need for slope
protection, he initiated the construction of provisional slope protection
measures. A supplemental agreement
providing for the addition of a reinforced concrete slope protection and
grouted riprap, among others, was also executed on
He also maintained that
when the reinforced concrete slope protection and the retaining wall of the
BGHMC project collapsed on
Respondent Manuel Factora meanwhile claimed
that he is the Medical Center Chief of the BGHMC and as such he had no
participation whatsoever in the contract between the Republic of the
Philippines through the DPWH and Royson.
Being the Chief of the BGHMC, his concern is the proper and efficient
operation and management of the hospital as well as the welfare of the patients
brought to the hospital for treatment.[11]
In a Resolution dated
On
Not satisfied, petitioner filed the
instant petition contending that the Ombudsman acted without jurisdiction or
with grave abuse of discretion in issuing the assailed resolution and
order. Petitioner contends that:
A.
THE UNCONTROVERTED FACTS PROVE THAT CONSTRUCTION AND EXCAVATION ON THE BGHMC EXPANSION PROJECT WERE UNDERTAKEN WITHOUT BUILDING AND EXCAVATION PERMITS, SLOPE AND SOIL ANALYSIS.
B.
THE COLLAPSE OF THE RETAINING WALL AND THE EVENTUAL DAMAGE TO THE PROPERTY ARE SUFFICIENT TO RAISE A PRESUMPTION OR PERMIT AN INFERENCE OF NEGLIGENCE ON THE PART OF THE RESPONDENTS.
C.
EFFORTS TO CONSTRUCT THE RETAINING WALL WERE DONE ONLY AFTER DAMAGE HAD BEEN CAUSED TO PETITIONERS PROPERTY.[12]
The sole issue to be resolved is
whether the Ombudsman acted with grave abuse of discretion amounting to lack or
excess of jurisdiction in dismissing the complaint against all the respondents.
Petitioner asserts that there is
probable cause to charge respondents with violation of Section 3(e) of R.A. No.
3019. Petitioner insists that the
collapse of the retaining wall was due to respondents gross inexcusable
negligence in their respective duties because they failed to ensure that the
necessary building and excavation permits have been secured before excavation
commenced. Petitioner assails the
finding of the Ombudsman that the collapse was due to unusually heavy rains and
typhoon Feria and the pre-war tunnel that caved-in which were all beyond the
scope of respondents authority. Petitioner
argues that the occurrence of heavy rains at the time of construction should
not be considered as force majeure as to exempt respondents from
liability. It points out that there was
no proof that the collapse was due to the rains, and that it had forewarned the
respondents of the possibility of erosion occurring but they continued being
negligent. The Ombudsman likewise committed grave abuse of discretion in holding
that the property damaged was BGHMCs property based on the report of the DPWH-CAR
engineers because said engineers were allegedly in no position to determine
whether petitioner encroached on a portion of BGHMCs property.
As to Cammayos protestations of good
faith and due diligence in trying to protect petitioners property from damage,
petitioner alleged that the effort to construct a retaining wall was done only
after the two landslides. And although
petitioner had attached a copy of the supplemental agreement to its complaint
before the Ombudsman, petitioner contended that Cammayos allegation that he
initiated the construction of provisional slope protection was also allegedly
not proven.
Respondents, for their part, maintained
that the Ombudsman did
not act with grave abuse of discretion when it dismissed the complaint
against them. They further claim that
the petitioner failed to establish that it suffered actual damage; that respondents
DPWH and BGHMC officials gave unwarranted benefits, advantage or preference to
any private party or even to the government; or that respondents acted with
gross inexcusable negligence.
Private respondent Roy meanwhile
stressed that under Roysons contract with the DPWH, it had no obligation to
secure the permits and that it was issued a Notice to Proceed prior to its
construction of the BGHMC expansion project.
We dismiss the petition.
It is well-settled that the determination of probable cause against those in public office during a preliminary investigation is a function that belongs to the Ombudsman.[13] The Ombudsman is vested with the sole power to investigate and prosecute, motu proprio or upon the complaint of any person, any act or omission which appears to be illegal, unjust, improper, or inefficient.[14] It has the discretion to determine whether a criminal case, given its attendant facts and circumstances, should be filed or not.[15] As explained in Esquivel v. Ombudsman:[16]
The Ombudsman is empowered 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. Settled is the rule that the Supreme Court will not ordinarily interfere with the Ombudsmans exercise of his investigatory and prosecutory powers without good and compelling reasons to indicate otherwise. Said exercise of powers is based upon his constitutional mandate and the courts will not interfere in its exercise. 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, innumerable petitions seeking dismissal of investigatory proceedings conducted by the Ombudsman will grievously hamper the functions of the office and the courts, in much the same way that courts will be swamped if they had to review the exercise of discretion on the part of public prosecutors each time they decided to file an information or dismiss a complaint by a private complainant.
The Court respects the relative autonomy of the Ombudsman to investigate
and prosecute, and refrains from interfering when the latter exercises such
powers either directly or through the Deputy Ombudsman, except when there is grave
abuse of discretion.[17]
Indeed, the Ombudsmans determination of
probable cause may only be assailed through certiorari proceedings before this
Court on the ground that such determination is tainted with grave abuse of
discretion defined as such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction. For
there to be a finding of grave abuse of discretion, it must be shown that the
discretionary power was exercised in an arbitrary or despotic manner by reason
of passion or personal hostility, and the abuse of discretion must be so patent
and gross as to amount to an evasion of a positive duty or to a virtual refusal
to perform the duty enjoined or to act in contemplation of law.[18]
Here,
however, an assiduous examination of the records, as well as the
assailed resolution and order of the Ombudsman dismissing the case against all
the respondents for insufficiency of evidence, shows that the Ombudsman did not
act with grave abuse of discretion.
Respondents were charged with violation of Section 3(e) of R.A. No. 3019, the Anti-Graft and Corrupt Practices Act, which is committed as follows:
SEC. 3. Corrupt practices of public officers. - In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:
x x x x
e. Causing any undue injury to any party, including
the Government, or giving any private party any unwarranted benefits, advantage
or preference in the discharge of his official administrative or judicial
functions through manifest partiality, evident bad faith or gross inexcusable
negligence. This provision shall apply
to officers and employees of offices or government corporations charged with
the grant of licenses or permits or other concessions.
The following essential
elements must therefore be present: (1) the accused must be a public
officer discharging administrative, judicial or official functions; (2) the
accused must have acted with manifest partiality, evident bad faith or gross
inexcusable negligence; and (3) the action of the accused caused undue injury
to any party, including the government, or gave any private party unwarranted
benefits, advantage or preference in the discharge of the functions of the
accused.[19]
But
as correctly noted by the Ombudsman, petitioner failed to point out specific
evidence and concrete proof that respondents demonstrated manifest partiality
or evident bad faith in the construction of the BGHMC and its retaining
wall. There is manifest partiality when
there is a clear, notorious, or plain inclination or predilection to favor one
side or person rather than another.[20] Evident bad
faith, on the other hand, connotes a manifest deliberate intent on the part of
the accused to do wrong or cause damage.[21] It connotes not only bad judgment but also
palpably and patently fraudulent and dishonest purpose to do moral obliquity or
conscious wrongdoing for some perverse motive or ill will. [22] Petitioner has not shown that respondents
were impelled by such motives in the performance of their official duties and functions. Neither did petitioner establish that
respondents acted with gross inexcusable negligence. As found by the Ombudsman:
Respondents adopted emergency slope protection at
the onset of the BGHMC Project. The
Supplemental Agreement provided reinforced concrete slope protection and
grouted rip rap, installation of polyurethane sheets and hiring of structural
design specialist x x x. In fact, as
recommended by complainant's Architect Angelo Lazaro three hundred (300) RSB
soil nails were installed on site. The
collapse was due to heavy rains and typhoon Feria. This was followed by the discovery of a
pre-war tunnel under which caved-in and collapsed also. The delay was beyond the control of
respondents. There was the Open public
bidding and the review of plans and structural design by the Bureau of
Design. These factors were beyond the
scope of authority of respondents.
Conformably to the series of acts done by the respondents, we find no
negligence or inexcusable negligence as claimed by complainants. The recommendation of complainants architect
was even implemented and yet, due to force majeure, the collapse
happened.
The Report or Memorandum for
DPWH-CAR dated
The foregoing findings of
the Ombudsman are based on substantial evidence. As long as substantial evidence
supports it, the Ombudsmans ruling will not be overturned. Evidently, the
collapse of the retaining wall was not mainly attributable to respondents acts
but due to a confluence of several factors, such as the unusually heavy rains
during the start of the construction, discovery of a pre-war tunnel which
collapsed, typhoon Feria and the fact that because the construction site was on
a slope, there was always a possibility of a landslide happening in the area.
These factors were beyond respondents control and contributed to soften the
soil on the construction site which resulted in soil erosion and collapse of
the retaining wall.
As to petitioners allegation that respondents DPWH officials and Teodoro Barrozo, by their inaction, were grossly negligent in their official duties, such assertion is bereft of merit. For an action to constitute as gross inexcusable negligence, it is essential to prove that the breach of duty borders on malice and is characterized by flagrant, palpable and willful indifference to consequences insofar as other person may be affected.[24] Here, public respondents had not acted maliciously and with utter and willful indifference or disregard of other persons affected. In fact, by respondent Cammayos act of employing additional slope protection to prevent further landslides in the area, he could not be deemed to have acted with gross inexcusable negligence. In addition, the DPWH through its contractor installed polyurethane sheets for slope protection to the affected area in order to prevent further erosion. Soil nails consisting of steel bars and grouted cement motor was also installed. The project director immediately hired a structural design specialist to prepare plans for a new reinforced concrete retaining wall which will provide for permanent slope protection. Furthermore, as explained by respondents, the delay of the BGHMC administration in obtaining the permits was due to the need to submit documents from other offices which public respondents did not have control over. All these acts negate petitioners assertion that respondents are guilty of gross inexcusable negligence in the construction of the BGHMC expansion project. Gross inexcusable negligence does not signify mere omission of duties nor plainly the exercise of less than the standard degree of prudence. Rather, it refers to negligence characterized by the want of even the slightest care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally, with conscious indifference to consequences insofar as other persons may be affected.[25] Even if respondents failed to fully prevent the landslide which occurred at the construction site, they had exercised due diligence in order to forestall the occurrence of landslide on the area and to adjacent properties and hence, they cannot be deemed to have acted with gross inexcusable negligence.
More importantly, petitioner failed to
substantiate its claim that it suffered damages when its property lost lateral
support by reason of the collapsed retaining wall. In the case of
As
to petitioners prayer for the issuance of a writ of mandamus, suffice to say
that mandamus is similarly unavailing to petitioner for mandamus is employed to
compel the performance of a ministerial, not a discretionary duty. In the performance of an official duty
involving discretion, the corresponding official can only be directed by
mandamus to act, but not to act one way or the other, except where there is
grave abuse of discretion, manifest injustice, or palpable excess of authority.[30]
WHEREFORE, the present petition for
certiorari and mandamus is DENIED
for lack of merit. The Resolution dated
No costs.
SO
ORDERED.
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MARTIN S. VILLARAMA, JR. Associate Justice |
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WE CONCUR: CONCHITA
CARPIO MORALES Associate Justice Chairperson |
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ARTURO D. BRION Associate Justice |
LUCAS P. BERSAMIN Associate Justice |
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ROBERTO A. ABAD Associate Justice |
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A T T E S T A T I O N
I
attest 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
Courts Division.
|
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CONCHITA CARPIO
MORALES Associate Justice Chairperson, Third
Division |
C E R T I F I C A T I O N
Pursuant
to Section 13, Article VIII of the 1987 Constitution and the Division
Chairpersons Attestation, 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 Courts Division.
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RENATO
C. CORONA Chief Justice |
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*
Designated additional member per
Special Order No. 997 dated
[1] Rollo, pp. 4-30.
[2]
[3]
[4]
[5] Records, pp. 89-91.
[6]
[7]
[8]
[9]
[10]
[11]
[12] Rollo, p. 15.
[13] Soriano v. Marcelo, G.R. No. 160772, July 13, 2009, 592 SCRA 394, 402, citing Presidential Commission on Good Government v. Desierto, G.R. No. 139296, November 23, 2007, 538 SCRA 207, 215.
[14] Vergara
v. Ombudsman, G.R. No. 174567,
[15]
[16] G.R. No. 137237,
[17] Galvante v. Casimiro, G.R. No. 162808,
[18] Presidential Commission on Good Government v. Desierto, supra note 13 at 216; Office of the Ombudsman v. Magno, G.R. No. 178923, November 27, 2008, 572 SCRA 272, 287.
[19] Belongilot v. Cua, et al., G.R. No.
160933,
[20] Albert v. Sandiganbayan, G.R. No.
164015,
[21] Tayaban v. People, G.R No. 150194,
[22]
[23] Records, pp. 249-250.
[24] Sistoza
v. Desierto, G.R. No. 144784,
[25] Catindig v. People, G.R. No. 183141,
September 18, 2009, 600 SCRA 749, 769, citing Soriano v. Marcelo, supra
note 13 at 404 and Albert v. Sandiganbayan, supra note 20; De la
Victoria v. Mongaya, A.M. No. P-00-1436,
[26] G.R. No. 161877,
[27] G.R. No. 163178,
[28] Buyagao v. Karon, G.R. No. 162938,
[29] Llorente, Jr. v. Sandiganbayan, G.R.
No. 122166,
[30] Albay Accredited Constructors Association,
Inc. v. Desierto, G.R. No. 133517,