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507 Phil. 727


[ G.R. NOS. 165510-33, September 23, 2005 ]




This is a petition for certiorari[1] under Rule 65 of the Revised Rules of Civil Procedure assailing the resolutions dated July 12, 2004,[2] and September 6, 2004[3] of the Office of the Special Prosecutor (OSP)/Ombudsman, recommending that informations be filed in the Sandiganbayan charging petitioner Benjamin "Kokoy" T. Romualdez with violation of Section 7 of R.A. No. 3019 (Anti-Graft and Corrupt Practices Act) for non-filing of Statement of Assets and Liabilities (SAL).[4]

The antecedent facts show that on February 22, 1989, 24 informations docketed as Criminal Cases Nos. 13406-13429 were filed against petitioner before the Sandiganbayan for his alleged failure to file the SAL from 1962 to 1985.[5]

A warrant of arrest was issued on February 28, 1989,[6] but this was not served because of petitioner's exile from the country.  On October 21, 1991, he filed through counsel a Motion to Recall Warrants of Arrest,[7] alleging that the preliminary investigation conducted by the Presidential Commission on Good Government (PCGG) was invalid for lack of jurisdiction.  He also filed an Urgent Ex-Parte Motion to Hold in Abeyance Implementation of Warrants of Arrest and/or to Recall the Same.[8]  On November 4, 1991, the Sandiganbayan issued an order to defer the enforcement of the arrest warrant on the condition:
(1) that the cash deposit equivalent to the aggregate amount of the bond shall serve as a provisional cash bond for the accused's temporary liberty upon his personal appearance to the court;
that the cash deposit shall be made within five (5) days from receipt hereof by movant's counsel, said act of deposit representing the conformity of the accused to the conditions hereof;

that the accused himself shall arrive in the Philippines within thirty (30) days from counsel's receipt hereof;

that accused shall personally present himself to this Court on the next succeeding working day after his arrival for completion of the bailbond process.[9]
Due to his non-compliance with these terms, the Sandiganbayan denied on January 24, 1992[10] petitioner's motion to recall the warrant of arrest.  Petitioner moved for reconsideration which the Sandiganbayan denied on April 24, 1992.  It also declared that until petitioner submits himself to the jurisdiction of the court, the issue regarding his compliance with the conditions imposed in the resolution of November 4, 1991, will not be entertained.[11]

Hence, on May 27, 1992, he filed a petition[12] with this Court, docketed as G.R. No. 105248, assailing the resolutions of the Sandiganbayan dated January 24, 1992, April 24, 1992 and November 4, 1991.

In a Decision dated May 16, 1995, this Court declared invalid the preliminary investigation conducted by the PCGG for lack of jurisdiction.  However, it held that the invalidity or absence of a preliminary investigation did not affect the jurisdiction of the Sandiganbayan or impair the validity of the informations.  Thus, the Sandiganbayan was ordered to suspend the proceedings pending the holding of a proper preliminary investigation by the Office of the Ombudsman.[13]

The dispositive portion of the Decision reads:
WHEREFORE, the petition is DENIED and the challenged Resolutions of January 24, 1992 and April 24, 1992 are AFFIRMED; but the respondent Sandiganbayan is DIRECTED to order the Office of the Ombudsman to forthwith conduct a proper preliminary investigation of the charges embodied in the informations filed against petitioner; to suspend the proceedings pending termination thereof; and thereafter to take action on petitioner's cases as may be warranted by the results of said preliminary investigation.

Pursuant to the above Decision, the Sandiganbayan ordered[15] the petitioner to submit his counter-affidavit, the PCGG its reply-affidavit, and the OSP its report on the reinvestigation.

Petitioner failed to file his counter-affidavit as directed.  On April 27, 2000, he returned to the Philippines and voluntarily surrendered.[16]  He filed a Motion to Quash on June 2, 2000.[17]  The clarificatory hearing scheduled on the same date was reset to June 9, 2000.

On June 8, 2000, one day before the scheduled clarificatory hearing, the Sandiganbayan denied in open court petitioner's motion to quash[18] and the reconsideration thereof and also terminated the preliminary investigation.[19]   His arraignment scheduled on June 26, 2000[20] was reset to July 28, 2000.[21]

On July 27, 2000, petitioner filed a petition for certiorari and prohibition[22] with this Court, docketed as G.R. Nos. 143618-41.  He assailed the orders of the Sandiganbayan (1) denying his motion to quash and his oral motion for reconsideration; (2) ordering the termination of the preliminary investigation; and (3) setting his arraignment on July 28, 2000.  He claimed that the criminal cases against him were based on void informations, hence, the Sandiganbayan must be enjoined from arraigning him on July 28, 2000.

On July 30, 2002, we granted the petition holding that it is the prosecutor which is the Ombudsman, and not the PCGG, which must subscribe and file the informations because the crimes ascribed to petitioner do not relate to alleged ill-gotten wealth, and were therefore, beyond the ambit of the PCGG's jurisdiction.  The informations were filed by PCGG, an unauthorized party and could not even be cured by conducting another preliminary investigation.  Since the informations were invalid, they cannot serve as basis for criminal proceedings.  We also found that the Sandiganbayan gravely abused its discretion when it abruptly terminated the reinvestigation.[23]

The dispositive portion of the Decision reads:
WHEREFORE, in view of the foregoing, the petition is GRANTED.  The assailed orders of the Sandiganbayan dated June 8, 2000 are ANNULLED and SET ASIDE.

Pursuant to the foregoing Decision, the Sandiganbayan in a resolution dated February 10, 2004, dismissed Criminal Cases Nos. 13406-13429.[25]

On March 3, 2004, the OSP directed petitioner to submit his counter-affidavit.  He failed to comply so another order dated April 14, 2004 was issued but this was returned because petitioner was not found in the given address.

On April 26, 2004, petitioner filed a Motion to Dismiss instead of a counter-affidavit.[26]  He alleged that the order involved previously dismissed cases, hence, there was no legal justification for the OSP and the Ombudsman to further conduct preliminary investigation.

On May 12, 2004, petitioner filed a counter-affidavit[27] adopting all the allegations in the motion to dismiss.  The PCGG filed its Opposition[28] insisting that the quashal of the informations for lack of authority by the PCGG to file the same did not mean that petitioner is already exempt from criminal prosecution.  The Ombudsman can still file new informations should it find that probable cause exists.

In a Memorandum dated July 12, 2004,[29] the OSP ordered the Motion to Dismiss filed by petitioner expunged for being a prohibited pleading pursuant to Section 3(c), Rule 112 of the Revised Rules of Criminal Procedure and Section 4(d), Rule II of the Rules of Procedure of the Office of the Ombudsman.  Considering that the motion to dismiss was grounded on the quashal of the informations and not on lack of jurisdiction, the OSP declared the motion to dismiss as a mere scrap of paper.  Also, the petitioner was deemed to have waived his right to file a counter-affidavit.  As such, his counter-affidavit was not given due course.

Consequently, based solely on complainant's evidence, the OSP determined there was probable cause that petitioner violated Section 7 of RA No. 3019 and accordingly recommended the filing of 24 informations before the Sandiganbayan.

On September 6, 2004, the OSP denied petitioner's motion for reconsideration.[30]

Thereafter, 19 informations docketed as Criminal Cases Nos. 28031-28049 were filed with the Sandiganbayan for failure of petitioner to file his SAL for the period 1967-1985 during his tenure as Ambassador Extraordinary and Plenipotentiary,[31] while 4 informations docketed as Criminal Cases Nos. 04-231857-04-231860[32] were filed with the Regional Trial Court of Manila for petitioner's failure to file his SAL from 1963 to 1966 during his tenure as Technical Assistant in the Department of Foreign Affairs.

Hence, this petition on the following grounds:

The issues for resolution are the following: (1) whether or not the Ombudsman acted with grave abuse of discretion in denying petitioner's motion to dismiss the preliminary investigation; and (2) whether or not the offenses charged against petitioner have prescribed.

Petitioner argues that respondent's act of proceeding with the preliminary investigation constitutes patently reversible error.  He claims that since Criminal Cases Nos. 13406-13429 have already been dismissed, the PCGG should have filed a new complaint with a new docket number.  He insists that the Ombudsman could not conduct another preliminary investigation using the old docket numbers.

Petitioner also maintains that the offenses for which he was charged had already prescribed in February 2001, hence the preliminary investigation conducted anew by the Ombudsman should be terminated.

In their Comments,[33] respondents aver that the dismissal of Criminal Cases Nos. 13406-13429 did not mean that the preliminary investigation was terminated, as this Court specifically directed the Ombudsman to conduct the same.  Besides, the Ombudsman is duly authorized to investigate on its own or upon complaint the acts or omissions of public officials or employees.  Thus, it need not wait for the filing of another complaint before conducting a preliminary investigation.  Respondents also deny that the offenses have prescribed since the period was tolled when the petitioner was out of the country.

The petition lacks merit.

Petitioner came to this Court through a special civil action for certiorari under Rule 65 of the Revised Rules of Civil Procedure imputing grave abuse of discretion on the Ombudsman in denying his motion to dismiss the preliminary investigation.

A petition for certiorari is the proper remedy when any tribunal, board, or officer exercising judicial or quasi-judicial functions has acted without or in excess of its jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction and there is no appeal, nor any plain, speedy, and adequate remedy at law.[34]

In Punzalan v. Dela Peña,[35] lack of jurisdiction and excess of jurisdiction were distinguished.  Respondent acts without jurisdiction if he does not have the legal power to determine the case.  Where the respondent, being clothed with the power to determine the case, oversteps his authority as determined by law, then he is performing a function in excess of his jurisdiction.

Grave abuse of discretion implies a capricious and whimsical exercise of judgment that is equivalent to lack of jurisdiction.  In other words, the power of discretion is exercised in an arbitrary or despotic manner by reason of passion or personal hostility.  It must be so patent and gross as to amount to an evasion of positive duty and a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.[36]

In denying the motion to dismiss the preliminary investigation, the Ombudsman resolved:
After a careful evaluation of the arguments/contentions of both parties, complainant (PCGG) and respondent Romualdez, the undersigned finds the contentions of the PCGG more credible.

The Motion to Dismiss filed by respondent Benjamin Romualdez should be expunged, the same being a prohibited pleading.  Sec. 3 (c) of Rule 112 of the Revised Rules of Criminal Procedure, which provides that "the respondents shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit."  Thus, it is incumbent upon the accused to file a counter-affidavit, and not a motion to dismiss.  Moreover, Section 4 (d) of the Rules of Procedure of the Office of the Ombudsman provides: "No motion to dismiss shall be allowed except for lack of jurisdiction."  Respondent argued in his motion to dismiss that Criminal Cases Nos.  13406-13429 were already dismissed by the Sandiganbayan by virtue of its Minute Resolution dated February 10, 2004, and not lack of jurisdiction.  Hence, such motion is a mere scrap of paper, without any legal force and effect.


The authority of the Office of The Special Prosecutor/Ombudsman to conduct preliminary investigation in these cases is pursuant to the Supreme Court's Decision dated July 20, 2002 in G.R.F Nos. 143618-143641 entitled Benjamin "Kokoy" T. Romualdez vs. Sandiganbayan.

The Honorable Supreme Court specifically stated in said Decision that the Sandiganbayan committed grave abuse of discretion when it prematurely terminated the preliminary investigation being conducted by this Office on June 8, 2000, which the Supreme Court itself ordered....

Hence, the quashal of the informations in Criminal Cases Nos. 13406-13429 before the Sandiganbayan, First Division for lack of authority of the PCGG to file the same is without prejudice to the filing of new informations by this Office should it find probable cause after the conduct of preliminary investigation.


Respondent Romualdez failed to file his counter-affidavit and/or present his controverting evidence despite the sending of notices and copies of the complaint with supporting evidence to his known address and through his counsel on record.  However, he opted to file a Motion to Dismiss, through his counsel, which this Office cannot take cognizance for reasons cited hereof.

In view thereof, these cases must be resolved on the basis solely of the complainant's evidence.

Thus, after a careful evaluation of the evidence on records, the undersigned finds that respondent violated Section 7 of R.A. [3019] since the time he was appointed Technical Assistant, with the rank of FAO, Class III in the Philippine Consulate, Ambassador and Provincial Governor of Leyte from 1961 until February, 1986 he never filed his Statement of Assets and Liabilities.[37]
The ruling of the OSP/Ombudsman is consistent with the Decision of this Court in Velasco v. Hon. Casaclang,[38] where we held that, the Deputy Ombudsman properly denied the motion to quash and motion for reconsideration of petitioner therein, pursuant to the applicable provisions of the Revised Rules of Court and Administrative Order (AO) No. 07 of the Ombudsman.  Section 4 (d) of AO No. 07 disallows a motion to quash (or dismiss) except on the ground of lack of jurisdiction.  In that case, as in this one, no absence of jurisdiction is perceived.

The Constitution vested the Office of the Ombudsman with powers and duties to investigate on its own, or on complaint by any person, any illegal, unjust, improper or inefficient act or omission of any public official or employee.[39]  Section 15(1) of R.A. No. 6770 or The Ombudsman Act of 1989 delineated the investigatory and prosecutory functions of the Ombudsman, to wit:
SEC. 15. Powers, Functions and Duties. – The Office of the Ombudsman shall have the following powers, functions and duties:

Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient.  It has the primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases;
We held that the OSP/Ombudsman is the proper authority to conduct the preliminary investigation of the alleged offenses committed by petitioner.  Pursuant thereto, there is no need for a new complaint to be filed by PCGG because the Ombudsman, on its own, may conduct a preliminary investigation of offenses committed by public officers.  Moreover, the denial of his motion to dismiss was concomitant with Section 4 of the Revised Rules of Procedure of the Office of the Ombudsman disallowing a motion to dismiss except on the ground of lack of jurisdiction.

Besides, we held in Romualdez v. Sandiganbayan,[40] that:
The Sandiganbayan also committed grave abuse of discretion when it abruptly terminated the reinvestigation being conducted by Prosecutor Lucero.  It should be recalled that our directive in G.R. No. 105248 for the holding of a preliminary investigation was based on our ruling that the right to a preliminary investigation is a substantive, rather than a procedural right.  Petitioner's right was violated when the preliminary investigation of the charges against him were conducted by an officer without jurisdiction over the said cases.  It bears stressing that our directive should be strictly complied with in order to achieve its objective of affording petitioner his right to due process.
Petitioner's claim that the preliminary investigation be dismissed because it referred to the same docket numbers of the dismissed informations, is erroneous.  The assignment of a docket number is an internal matter designed for efficient record keeping.  It is usually written in the Docket Record in sequential order corresponding to the date and time of filing a case.[41]

This Court agrees that the use of the docket numbers of the dismissed cases was merely for reference.  In fact, after the new informations were filed, new docket numbers were assigned, i.e., Criminal Cases Nos. 28031-28049.  Plainly, these are entirely different cases from those that have been dismissed given that Criminal Cases Nos. 13406-13429 were not mentioned.

Petitioner also alleges that respondents acted with grave abuse of discretion in not dismissing the preliminary investigation on the ground of prescription of the offense.  This allegation is a matter of defense which must be settled in a full-blown trial.   Evidence must be received to resolve the case on its merits.

In Domingo v. Sandiganbayan,[42] we considered the following in resolving the issue of prescription: (1) the period of prescription for the offense charged; (2) the time the period of prescription starts to run; and (3) the time the prescriptive period was interrupted.

Petitioner is being charged under Section 7 of R.A. No. 3019, a special law.  Section 11 of the same statute provides for the period of prescription for the offense charged, i.e., 15 years.  However, the applicable rule on the time the period of prescription starts to run is Section 2 of Act No. 3326, which provides:
SEC. 2.  Prescription shall begin to run from the day of the commission of the violation of the law, and if the same not be known at the time, from the discovery thereof and the institution of judicial proceedings for its investigation and punishment.

The prescription shall be interrupted when proceedings are instituted against the guilty person, and shall begin to run again if the proceedings are dismissed for reasons not constituting jeopardy.
This Court quotes the concurring and dissenting opinion of Justice Reynato S. Puno in Presidential Ad Hoc Committee v. Hon. Desierto:[43]
The law on prescription of special crimes like violation of R.A. No. 3019 (Anti-Graft Law) is provided for in Section 2 of Act No. 3326, viz:
"SEC. 2.  Prescription shall begin to run from the day of the commission of the violation of the law, and if the same be not known at the time, from the discovery thereof ..."
The application of this provision is not simple and each case must be decided according to its facts.  It involves a careful study and analysis of contentious facts:  (a) when the commission of the violation of the law happened; (b) whether or not the violation was known at the time of its commission, and (c) if not known then, the time of its discovery.  In addition, there is the equally difficult problem of choice of legal and equitable doctrines to apply to the above elusive facts.  For the general rule is that the mere fact that a person entitled to an action has no knowledge of his right to sue or of the facts out of which his right arises, does not prevent the running of the statute. This stringent rule, however, admits of an exception.  Under the "blameless ignorance" doctrine, the statute of limitations runs only upon discovery of the fact of the invasion of a right which will support a cause of action.  In other words, courts decline to apply the statute of limitations where the plaintiff neither knew nor had reasonable means of knowing the existence of a cause of action. Given all these factual and legal difficulties, the public respondent should have ordered private respondents to answer the sworn complaint, required a reply from the petitioners and conducted such hearings as may be necessary so he could have all the vital facts at his front and, upon their basis, resolve whether the offense charged has already prescribed. (Emphasis supplied)
It is noteworthy that petitioner did not raise the defense of prescription in his motion to dismiss the preliminary investigation.  It is only in this petition that he raised this issue.  As this case has never progressed beyond the filing of the informations against petitioner, it is only prudent that evidence be gathered through trial on the merits to determine whether the offense charged has already prescribed.

A preliminary investigation is merely inquisitorial, and it is often the only means of discovering the persons who may be reasonably charged with a crime, to enable the fiscal to prepare the complaint or information.  It is not a trial of the case on the merits and has no purpose except that of determining whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof, and it does not place the person against whom it is taken in jeopardy.[44]

Consequently, the Ombudsman did not commit grave abuse of discretion in denying petitioner's motion to dismiss the preliminary investigation.  Not only did the Ombudsman have the jurisdiction to conduct a preliminary investigation under the Constitution and R.A. No. 6770, but he also acted within the legal bounds of the authority conferred upon him when he denied the motion to dismiss under Administrative Order No. 07.

As a rule, the Court shall not unduly interfere in the Ombudsman's exercise of his investigatory and prosecutory powers, as provided in the Constitution, without good and compelling reasons to indicate otherwise.[45]

WHERFORE, the petition is DISMISSED.  The resolutions dated July 12, 2004 and September 6, 2004 of the Office of the Special Prosecutor, are AFFIRMED.


Davide, Jr., C.J. (Chairman), Quisumbing, Carpio, and Azcuna, JJ., concur.

[1] Rollo, pp. 3-39.

[2] Id. at 40-51.

[3] Id. at 52-56.

[4] Id. at 50.

[5] Records, Vol. I, pp. 253-300.

[6] Id. at 3.

[7] Id. at 33-37.

[8] Id. at 41-43.

[9] Id. at 44.

[10] Id. at 100-106.

[11] Id. at 181-182.

[12] Id. at 189-232.

[13] See Romualdez v. Sandiganbayan, 313 Phil. 870 (1995).  Penned by Chief Justice Andres R. Narvasa and concurred in by Associate Justices Florentino P. Feliciano, Teodoro R. Padilla, Florenz D. Regalado, Hilario G. Davide, Jr. (now Chief Justice), Flerida Ruth P. Romero, Josue N. Bellosillo, Jose A.R. Melo, Reynato S. Puno, Jose C. Vitug and Vicente V. Mendoza.

[14] Id. at 888.

[15] Records, Vol. I, p. 469.

[16] Records, Vol. II, pp. 18-20.

[17] Id. at 26-30.

[18] Id. at 34-38.

[19] Id. at 32-33.

[20] Id. at 39.

[21] Id. at 44.

[22] Id. at 58-98.

[23] See Romualdez v. Sandiganbayan, 434 Phil. 670 (2002).  Penned by Associate Justice Consuelo Ynares-Santiago and concurred in by Chief Justice Hilario G. Davide, Jr. and Associate Justices Jose C. Vitug, Santiago M. Kapunan, and Ma. Alicia Austria-Martinez.

[24] Id. at 683.

[25] Rollo, p. 57.

[26] Id. at 61-63.

[27] Id. at 66-68.

[28] Id. at 71-74.

[29] Id. at 40-51.

[30] Id. at 52-56.

[31] Id. at 158-213.

[32] Id. at 214-225.

[33] Id. at 310-316, 331-363.

[34] People v. Hon. Chavez, 411 Phil. 482, 491 (2001).

[35] G.R. No. 158543, 21 July 2004, 434 SCRA 601, 609.

[36] Samson v. Office of the Ombudsman, G.R. No. 117741, 29 September 2004, 439 SCRA 315, 320.

[37] Rollo, pp. 43-50.

[38] 355 Phil. 815, 833 (1998).

[39] CONST., Art. XI, Secs. 5 and 13.

[40] Supra, note 23 at 682-683.

[41] Administrative Order No. 36-96 (1996).

[42] 379 Phil. 708, 717 (2000).

[43] 375 Phil. 697, 748-749 (1999).

[44] Cinco v. Sandiganbayan, G.R. Nos. 92362-67, 15 October 1991, 202 SCRA 726, 735-736.

[45] PAFFC on Behest Loans v. Ombudsman Desierto, 418 Phil. 715, 721 (2001).

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