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444 Phil. 876


[ G.R. No. 148944, February 05, 2003 ]




A special civil action for certiorari, prohibition, and mandamus is before us.

The facts are fairly simple.

Petitioner Alvin B. Garcia, as then mayor of Cebu City, signed a contract with F.E. Zuellig on May 7, 1998. F.E. Zuellig is the Philippine distributor of Bitumex, a brand name of an asphalt product. The contract essentially provided that F.E. Zuellig shall be the exclusive supplier of asphalt for the city’s asphalt batching plant for a period of three years, from 1998 to 2001, with the initial delivery of asphalt in September, 1998.

Subsequently, petitioner was elected to a new term as mayor. The respondent Deputy Ombudsman for the Visayas thereafter sought to hold him administratively liable on the aforesaid contract and ordered him preventively suspended for six months. Petitioner came to us in an earlier petition alleging grave abuse of discretion.

In Garcia v. Mojica,[1] we held for petitioner, stating that the six-month suspension period was no longer necessary, as respondent had sufficient time to gather evidence without petitioner’s intervention during his nearly one-month suspension. Furthermore, we ruled that as pronounced in Salalima v. Guingona,[2] an official’s reelection expresses the sovereign will of the electorate to forgive or condone any act or omission constituting a ground for administrative discipline committed during the previous term.

Newspaper accounts of the alleged anomalies on the subject contract started to surface in the local media in March of 1999. Respondent Deputy Ombudsman, in a letter dated March 30, 1999, required the Director of the Commission on Audit (COA) of Region VII to conduct a special audit. On the same day, it likewise requested the City Administrator of the Office of the Mayor to submit documents pertaining to the asphalt supply of the city and a copy of the subject contract.

Special Prosecution Officer Jesus Rodrigo T. Tagaan of the Office of the Ombudsman was assigned to conduct the inquiry docketed as INQ-VIS-99-0132. In his report,[3] Special Prosecution Officer Tagaan recommended that a criminal and an administrative complaint be filed against petitioner Garcia and several others. On June 21, 1999, Tagaan filed an affidavit[4] with the Graft Investigation Office against petitioner Garcia and others for violation of Section 3(g) of Republic Act No. 3019 or the Anti-Graft and Corrupt Practices Act.

On August 16, 1999, the Office of the City Auditor filed with the Deputy Ombudsman its report which was prepared by State Auditors Hilario S. Cabreros and Sulpicio C. Quejada, Jr. The COA Special Audit Report concluded:
x            x             x

IN SUM, the propriety of the foregoing transactions is highly questionable in view of the fact that payment[s] were made even if the items were not yet delivered which is a clear case of ADVANCE PAYMENT in violation of existing law, rules and regulations.[5]

x            x             x
State Auditors Cabreros and Quejada thereafter submitted a joint affidavit dated September 29, 1999 on their findings. The relevant portions of the joint affidavit are as follows:

x            x             x
  1. That by virtue of SP Resolution No. 3167 and adopting the Committee on Awards Resolution series of 1997, a three (3) year contract was made and executed by and between the City of Cebu represented by Hon. Alvin B. Garcia hereinafter referred to as the “buyer” and F.E. Zuellig Inc. represented by its General Manager, Michel Miloda hereinafter referred to as the “Seller”;

  2. That said three (3) year contract was VOID since there was no available appropriation/ funds to cover the proposed expenditures at the time of the execution of the contract in violation of Section 85 and 86 of PD 1445 otherwise known as the State Audit [C]ode of the Philippines. Consequently, the officers entering into the contract shall be liable to the government as provided for in Section 87 of the same code. Moreover, the execution by the City Mayor of a three (3) year contract exceeded the authority granted to him by the Sangguniang Panlungsod per SP Resolution No. 3167;
x            x             x
  1. That the City of Cebu is obligated to pay F.E. Zuellig Inc. a fixed amount in dollar ($443.18) per metric ton but payable in Philippine Peso which situation is disadvantageous to the City in view of the fluctuating valuation of the Philippine Peso vis a vis the US Dollar. As a result, the City will get only the equivalent quantity of Bitumen depending upon the prevailing rate of Philippine Peso at the time of payment. And besides, Sections 45 and 47 of COA Circular No. 92-386 provide: that the price must be certain and definite in amount and must be in Philippine Currency specially so that the contracting party is a firm operating in the Philippines;

  2. That the price offered by F.E. Zuellig Inc. to sell its product in Bitucontainers was at P17, 727.20 per metric ton which purportedly it (sic) included the technology but the very same product could be purchased at a lower price in the local market at P8,975.00 per metric ton. As a consequence, the City Government had to pay the amount of P19,417,918.00 just for the use of Bitucontainers alone. The reasonableness therefore of the price paid is HIGHLY DOUBTFUL;

  3. That before the execution by the City Mayor of a three (3) year contract, the City Government had already purchased Asphalt 85/100 Penetration Grade Bulk from F.E. Zuellig Inc. per Purchase Order Nos. 3164, 1453, and 1948;

  4. That the transactions mentioned in the immediately preceding paragraph were HIGHLY QUESTIONABLE in view of the fact that full payments were made even if the items were not yet delivered, whereas PO No. 695 subject of the inquiry (under contract) calls for the delivery of 600 metric tons of Asphalt 85/100 at P17,727.20 or a total amount of P10,636,320.00 [and these] were not delivered at all in spite of full payment made all of which [are] in violation of Section 338 of RA 7160 and Section 88 of PD1445;[6]
x            x             x
The State Auditors later filed a supplemental joint affidavit dated April 18, 2000, wherein they disclosed other details such as the alleged ghost deliveries of asphalt.[7]

Special Prosecution Officer Tagaan resigned from office in January, 2000 and his name was subsequently dropped as complainant. Hence, during the joint clarificatory hearing and preliminary conference before the Deputy Ombudsman on September 12, 2000, the counsel of respondents therein averred that the dropping of the name of Special Prosecution Officer Tagaan as complainant in the case deprived them of the right to confront their accusers.[8] On October 3, 2000, the Deputy Ombudsman issued an Order requiring petitioner Garcia to submit his counter-affidavit pursuant to the conduct of a preliminary investigation, thus:
x x x          x x x          x x x

WHEREFORE, and pursuant to Sec. 4, Paragraph B, Rule II and Section 5, Paragraph A, Rule III of Administrative Order No. 7 issued by the Office of the Ombudsman, you are hereby ordered to file your counter-affidavit to the herein attached fact-finding inquiry report of the Complainant, COMMISSION ON AUDIT-Region VII, Cebu City, together with the Joint Statement of State Auditors Hilario Cabreros and Sulpicio Quejada, Jr., as well as their Supplemental Joint Affidavit to the said COA report, within TEN (10) DAYS from receipt hereof with proof of service thereof to the complainant/s who may file his/her/their reply-affidavit within TEN (10) DAYS from receipt of such counter-affidavit. Your failure to file your counter-affidavit and other controverting evidence/s will mean a waiver on your part to refute the charges against you and the case will be resolved on the evidence/s on record.[9]

x x x          x x x          x x x
Petitioner Garcia did not comply with the said Order and instead filed, on November 22, 2000, a Motion to be Furnished a Copy of the Complaint-Affidavit and Motion to Suspend Implementation of the Order dated October 3, 2000. In a second Order dated December 26, 2000, respondent Deputy Ombudsman denied the Motion and gave petitioner Garcia another period of ten days within which to file his counter-affidavit. Petitioner again refused to comply and filed a Motion for Reconsideration dated January 17, 2001 and a Supplemental Manifestation with a Motion to Dismiss on the Ground of Lack of Jurisdiction dated February 1, 2001.

On June 18, 2001, the Deputy Ombudsman issued a third Order stating in part that:
x            x             x

To avoid further delay in the resolution of this case, which may prejudice other respondents who have timely filed their counter-affidavits, this Office resolves to consider the Motions, Manifestations and Supplemental Motions of respondent Garcia which now formed part of the records of the case as his ANSWER to the complaint pursuant to Section 4(c), Rule II of Administrative Order No. 7 of the Office of the Ombudsman.

WHEREFORE, premises considered, the preliminary investigation of this case is now considered TERMINATED and this Office will now proceed to resolve the same on the basis of the evidence on record.[10]

x            x             x
Seeking now to dismiss the criminal investigation before the Ombudsman, docketed as OMB-VIS-CRIM-99-0546, and to restrain respondents from proceeding with the preliminary investigation on the matter, petitioner has filed the present case.

Petitioner raises the following questions:



We start with the rules.

Sections (2) and (4), Rule II of Administrative Order No. 7 or the Rules of Procedure of the Office of the Ombudsman provide:
x            x             x

Sec. 2. Evaluation – Upon evaluating the complaint, the investigating officer shall recommend whether or not it may be:

dismissed outright for want of palpable merit:

referred to respondent for comment;

endorsed to the proper government office or agency which has jurisdiction over the case;

forwarded to the appropriate office or official for fact-finding investigation;

referred for administrative adjudication; or

subjected to a preliminary investigation

x            x             x

Sec. 4. Procedure – The preliminary investigation of cases falling under the jurisdiction of the Sandiganbayan and the Regional Trial Court shall be conducted in the manner prescribed in Section 3, Rule 112 of the Rules of Court, subject to the following provisions:

If the complaint is not under oath or is based only on official reports, the investigating officer shall require the complainant or supporting witnesses to execute affidavits to substantiate the complaints.

After such affidavits have been secured, the investigating officer shall issue an order, attaching thereto a copy of the affidavits and other supporting documents, directing the respondent to submit, within ten (10) days from receipt thereof, his counter-affidavits and controverting evidence with proof of service thereof on the complainant. The complainant may file reply affidavits within ten (10) days after service of the counter-affidavits.

If the respondent does not file a counter-affidavit, the investigating officer may consider the comment filed by him, if any, as his answer to the complaint. In any event, the respondent shall have access to the evidence on record

No motion to dismiss shall be allowed except for lack of jurisdiction. Neither may a motion for a bill of particulars be entertained. If respondent desires any matter in the complaint’s affidavit to be clarified, the particularization thereof may be done at the time of clarificatory questioning in the manner provided in paragraph (f) of this section.

If the respondent cannot be served with the order mentioned in paragraph 6 hereof, or having been served, does not comply therewith, the complaint shall be deemed submitted for resolution on the basis of the evidence on record.

If, after the filing of the requisite affidavits and their supporting evidences, there are facts material to be the case which the investigating officer may need to be clarified on, he may conduct a clarificatory hearing during which the parties shall be afforded the opportunity to be present but without the right to examine or cross-examine the witness being questioned. Where the appearance of the parties or witnesses is impracticable, the clarificatory questioning may be conducted in writing, whereby the questions desired to be asked by the investigating officer or a party shall be reduced into writing and served on the witness concerned who shall be required to answer the same in writing and under oath.

Upon the termination of the preliminary investigation, the investigating officer shall forward the records of the case together with his resolution to the designated authorities for their appropriate action thereon.

No information may be filed and no complaint may be dismissed without the written authority or approval of the Ombudsman in cases falling within the jurisdiction of the Sandiganbayan, or the proper Deputy Ombudsman in all other cases.

x            x             x
We recognize the importance of the complainant submitting his affidavit and the affidavits of his witnesses. The reason is that after the Ombudsman and his deputies have gathered evidence, their investigation ceases to be general and exploratory, and the proceedings take on an adversarial nature.[12]

Petitioner argues that the Ombudsman cannot compel him to file a counter-affidavit because no valid complaint exists against him. He claims that the COA Special Audit Report and the supporting affidavits submitted by State Auditors Cabreros and Quejada do not constitute a valid complaint. Petitioner cites Duterte v. Sandiganbayan[13] wherein we held that a COA Special Audit Report is not equivalent to the affidavits required under Section 4, Rule II of A.O. No. 7.

Petitioner’s reliance on Duterte is misplaced. When petitioners therein were asked to file a comment on a COA Special Audit Report, they were already being subjected to a preliminary investigation without being so informed. They were directed to submit a point-by-point comment under oath on the mere allegations in a civil case before the Regional Trial Court which had already been dismissed and on the COA Special Audit Report. Moreover, said petitioners were not furnished a single affidavit of any person charging them of any offense.

In this case, the Deputy Ombudsman’s Order dated October 3, 2000 requiring petitioner to submit his counter-affidavit was accompanied by the COA Special Audit Report and the joint affidavit and supplemental joint affidavit of State Auditors Cabreros and Quejada.

Petitioner does not deny his receipt of these documents, but he argues that the joint affidavits accompanying the COA Special Audit Report do not comply with the specific legal standards by which the sufficiency of a complaint is judged. He cites Matilde, Jr. v. Jabson[14] and contends that the complaint filed against him prior to his filing his counter-affidavit must allege the acts complained of as constituting an offense. He further maintains that these allegations must be in an ordinary and concise language to enable a person of common understanding to know what offense is intended to be charged and the court to render proper judgment.

It should be noted that in Matilde, the assailed informations not only uniformly charged the accused for simple theft but also alleged that the accused were working in the company to whom the stolen articles belonged and that these accused were “working on or using or producing” the stolen articles as employees of the company. The lower court therein found the accused guilty under Presidential Decree No. 133 which carried a higher penalty than that of simple theft. Hence, this Court ruled that the informations violated the accused persons’ right to be informed of the accusations against them.

The complaint being referred to by petitioner is the complaint filed in court in a criminal case. For purposes of initiating a preliminary investigation before the Office of the Ombudsman, a complaint “in any form or manner” is sufficient.

Section 12, Article XI of the Constitution states that the Ombudsman and his Deputies, as protectors of the people, shall act promptly on “complaints filed in any form or manner against public officials or employees of Government.” In Almonte v. Vasquez,[15] we held that even unverified and anonymous letters may suffice to start an investigation. In permitting the filing of complaints “in any form or manner,” the framers of the Constitution took into account the well-known reticence of the people which keep them from complaining against official wrongdoings. The Office of the Ombudsman is different from the other investigatory and prosecutory agencies of the government because those subject to its jurisdiction are public officials who, through official pressure and influence, can quash, delay or dismiss investigations held against them.[16]

In any case, the joint affidavits submitted by State Auditors Cabreros and Quejada contain allegations specific enough for petitioner to prepare his evidence and counter-arguments. For instance, the affidavits attest that the subject contract was entered into with no available funds appropriated to cover the expenditure, in violation of Sections 85 and 86 of Presidential Decree 1445 or the State Audit Code of the Philippines, making the officers who entered into such a contract liable under Section 87 of the same law. Said affidavits clearly state that petitioner Garcia, by entering into a three-year contract with F.E. Zuellig, exceeded the authority granted to him by the Sangguniang Panlungsod (SP) in SP Resolution No. 3167. The affidavits also outline how the subject contract is allegedly manifestly disadvantageous to the city, in violation of the Anti-Graft and Corrupt Practices Act.[17] All these are serious and specific allegations under oath that warrant asking petitioner to submit a counter-affidavit to present his side.

Finally, the fact that Special Prosecution Officer Tagaan already resigned from his office and that his name was withdrawn as complainant from the case is of no fatal consequence. First, Tagaan’s report and affidavit still form part of the records of the case. He could still be called by subpoena if necessary. Second, we agree with the Solicitor General that Tagaan was a nominal party, whose duty as special prosecutor was to investigate the commission of crimes and file the corresponding complaint whenever warranted.[18] Since the illegal acts imputed are public offenses, the real complainant is the State, which is represented by the remaining complainants.

WHEREFORE, premises considered, the petition is DISMISSED. No costs.


Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, and Callejo, Sr., JJ., concur.
Ynares-Santiago, J., on leave.

[1] 314 SCRA 207 (1999).

[2] 257 SCRA 55 (1996).

[3] Rollo, pp. 325-333.

[4] Id. at 144-145.

[5] Report of the City Auditor, p. 6; rollo, p. 129.

[6] Joint Affidavit of Hilario S. Cabreros and Sulpicio C. Quejada, Jr., pp. 2-3; Annex “D” of Petitioner’s Memorandum; rollo, pp. 245-246.

[7] Rollo, pp. 247-250.

[8] Minutes of the September 12, 2000 Joint Clarificatory Hearing and Preliminary Conference in COA VII v. Garcia, et. al (OMB-VIS-CRIM-99-0546), pp. 17-18; Annex “A” of Petitioner’s Reply to Comment; rollo, pp. 162-163.

[9] Annex “B” of id.; rollo, pp. 164-165.

[10] Annex “B” of Petition; rollo, p. 34.

[11] Petitioner’s Memorandum, p. 10; rollo, p. 205.

[12] Olivas v. Office of the Ombudsman, 239 SCRA 283 (1994).

[13] 289 SCRA 721 (1998).

[14] 68 SCRA 456 (1975).

[15] 244 SCRA 286 (1995).

[16] Deloso v. Domingo, 191 SCRA 545 (1990).

[17] Joint Affidavit and Supplemental Joint Affidavit of State Auditors Hilario S. Cabreros and Sulpicio C. Quejada, Jr., Annexes “D” and “E” of Petitioner’s Memorandum; rollo, pp. 244-250.

[18] Respondents’ Memorandum, p. 11; rollo, p. 304.

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