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419 Phil. 544
EN BANC
[ G.R. No. 136470, October 16, 2001 ]
VENANCIO R. NAVA, PETITIONER, VS. COMMISSION
ON AUDIT, REGION XI, REPRESENTED BY ITS DIRECTOR, DAVAO, CITY, RESPONDENT.
D E C I S I O N
BUENA, J.:
This petition for review on certiorari
under Rule 45 of the Rules of Court, seeks to review the Ombudsman’s disapproval
of the Resolution dated May 21, 1998, of the Office of the Special Prosecutor,
which recommended that petitioner Nava be dropped from the Information filed
against him in Criminal Case No. 23459 before the Sandiganbayan.
The antecedents are simple.
The Commission on Audit (COA),
Regional Office No. XI, Davao City, conducted an audit investigation on the
procurement of the Department of Education and Culture (DECS) Division Office
of Davao City, particularly of construction materials for its 1991 School
Building Program. The audit report
revealed, among others, that the DECS Division Office purchased construction
materials and supplies from Giomiche Incorporated, a Manila based supplier. In order to determine the reasonableness of
the prices, the resident auditor compared the prices of the construction
materials purchased from Giomiche with those sold by reputable suppliers and
establishment in Davao City. A
comparison showed that the items sold to the DECS Division Office exceeded the
prevailing market prices in the city, ranging from 6.09% to 695.45%, resulting
to a government loss of P512,967.69. The audit likewise revealed that the procurement was not made through a
public bidding.
On November 8, 1993, the COA
Regional Office, through Director Amado C. Baul, transmitted the audit report
to the Deputy Ombudsman, Office of the Ombudsman-Mindanao, Sta. Ana, Davao
City, for appropriate action.[1]
Finding prima facie
evidence to proceed with the preliminary investigation, the Office of the Ombudsman
directed the petitioner and concerned officers[2] of the DECS who had a hand in the transaction to file
their answer and other controverting evidence.
Petitioner Nava denied the charges
explaining that his alleged participation in the purchase of overpriced school
construction materials was limited to the signing of the “Invitation to Bid”
and approving the purchase order. He
claims that the “Invitation to Bid” cannot by itself cause any irregularity, it
being the initial action in the purchasing process of procurement and that it
has no relevance or bearing on whether or not the amounts finally paid
constitute overpayment or overpricing. He also maintains that he signed the purchase orders upon recommendation
of DECS Division Superintendent Luceria M. de Leon and that his act of affixing
his signature on the purchase orders was merely ministerial.
On July 25, 1996, the Ombudsman,
through Graft Investigation Officer I, Jovito A. Coresis, Jr. issued a
Resolution, the decretal portion of which reads:
“WHEREFORE, finding sufficient evidence to hold that the offense of violation of Section 3 (g) and (e) of RA 3019 and falsification have been committed and that the hereunder list of persons are probably guilty thereof, let the following criminal Information be filed with the following courts, namely:
“x x x x x x x x x
“B) Violation of Section 3 (g) of RA 3019 relative to the overpricing of construction materials with the Sandiganbayan against:
“1. DECS Regional Director VENANCIO NAVA (with salary _____),
“2. DECS Assistant Director SUSANA CABAHUG,
“3. DECS Regional Administrative Officer AQUILINA B. GRANADA,
“4. DECS Finance Officer, CARLOS BAUTISTA,
“5. DECS Division Superintendent LUCERIA M. DE LEON,
“6. DECS Division Administrative Officer EDILBERTO MADRIA,
“7. DECS Supply Officer FELIPE PANCHO, and
“8. GEOMICHE, Incorporated President JESUSA DELA CRUZ.’
“x x x x x x x x x
“SO RESOLVED.”[3]
In warranting the prosecution of
the petitioner and his co-respondents, the Ombudsman ratiocinated in this wise:
“Apropos the alleged overpricing of construction materials, this Office finds that the DECS Division of Davao City purchased the following construction materials from Geomiche, Incorporated thru its President Jesusa dela Cruz which per comparison between the price actually paid and the price per canvass by the COA showed overpricing ranging from 6.09% to 695.45%, thus:
“x x x x x x x x x
“Verily, the contract for the purchase of the above-enumerated construction materials at overpriced costs ranging from 6.09% to 695.45% was grossly and manifestly disadvantageous to the government for it left the government short-changed by a hefty sum of P512,967.69 – the total amount of the overprice.
“Moreover, the said purchases were made without a public bidding in violation of Executive Order No. 298, Series of 1940. Furthermore, two (2) sets of purchase orders were prepared: one set was issued by the DECS Division Office and another set by the DECS Regional Office. Finally, the payments made to Geomiche were split, thus: payment under Voucher No. 91-05-02-SB forP1,500,000.00 was supported by a set of purchase orders issued by the DECS Division Office BUT ONLY for the amount ofP70,505,21; another payment to Geomiche under Voucher No. (illegible) in the amount ofP557,093.25 was supported by a set of purchase orders issued by the DECS Regional Office BUT ONLY forP71,429.75 in violation of COA rules and regulations prohibiting splitting of payment.
“In fine, the failure to conduct a public bidding, the preparation of two sets of purchase orders, the splitting of payments to Geomiche-seemingly separate and distinct acts though-yet lead to the inescapable conclusion that they were segments of a grand conspiratorial design on the part of the DECS Officials and Jesusa dela Cruz of Geomiche to enter into a contract of purchase of construction materials grossly and manifestly disadvantageous to the government. Since in conspiracy, the liability of one is the liability of all who have participated in such conspiracy, the following persons should be held liable for violation of Section 3 (g) of R.A. 3019, namely:
“x x x x x x x x x”[4]
Thereafter, an Information was
filed before the Sandiganbayan against herein petitioner which was docketed as
Criminal Case No. 23459.[5]
On May 6, 1997, petitioner moved
for a reinvestigation before the Sandiganbayan[6] contending that the acts imputable to him, i.e.,
approving the disbursement voucher, purchase order and invitation to bid and in
signing the checks for payment, are not indicative of any conspiracy to
prejudice the government. He argues
that his actions are the very functions he had to discharge in the performance
of his official duties as Regional Director of the DECS and had to rely in good
faith on the representation of his subordinates.
On June 6, 1997, the Sandiganbayan
ordered the reinvestigation of the case.
On May 21, 1998, Special
Prosecution Officer Diosdado V. Calonge, issued a Resolution recommending that
petitioner, together with Susana Cabahug and Felipe Pancho, be dropped from the
complaint and the Information filed against them before the Sandiganbayan be
withdrawn. Special Prosecutor Calonge
maintains that the respondents “cannot be held liable for entering into a
contract grossly and manifestly disadvantageous to the government because their
individual participation in the questioned transaction are purely ministerial
acts, without indication that they are attended by bad faith nor gross
inexcusable negligence.”[7] However, Ombudsman Aniano A. Desierto, disapproved
the above recommendation and ordered the prosecution to proceed under the
existing Information in Criminal Case No. 23459.
Aggrieved, petitioner filed this
present petition raising the following issues, to wit:
“I. WHETHER OR NOT THE HONORABLE OMBUDSMAN GRAVELY ERRED IN CONCLUDING THAT PETITIONER IS LIABLE FOR VIOLATION OF SECTION 3(G) OF RA 3019 IN APPROVING THE AFORESAID DISBURSEMENT VOUCHER, PURCHASE ORDER, INVITATION TO BID AND IN SIGNING THE CHECKS IN PAYMENT BASED ON THE AFORESAID UNDISPUTED FACTS OF THE CASE;
“II. WHETHER OR NOT THE HONORABLE OMBUDSMAN GRAVELY ERRED IN NOT ABSOLVING THE PETITIONER BY NOT APPLYING IN HIS FAVOR PERTINENT DECISIONS OF THE HONORABLE COURT IN THE CASES OF ARIAS VS. SANDIGANBAYAN AND MAGSUCI VS. SANDIGANBAYAN.”
The petition should be dismissed.
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.[8]
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.[9] 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.[10]
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.[11]
Thus, by availing of a wrong or
inappropriate remedy, the petition merits an outright dismissal.
But even if we consider the
present petition as one filed under Rule 65 of the Rules of Court, we find no
merit in petitioner’s stance that the Ombudsman committed grave abuse of
discretion. In disapproving the recommendation
of Prosecutor Calonge, Ombudsman Desierto was merely exercising his powers
based upon constitutional mandate and the courts should not interfere in such
exercise.[12] His determination of the existence of a reasonable
ground to believe that the crime has been committed and that petitioner is
probably guilty thereof, is not tantamount to grave abuse of discretion.[13]
This Court has almost always
adopted, quite aptly, a policy of non-interference in the exercise of the
Ombudsman’s constitutionally mandated powers.[14] 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 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 were 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.[15]
Petitioner’s argument that he
could not be indicted for violation of Section 3(g) of RA 3019, because he
acted in good faith when he approved the disbursement voucher, purchase order,
invitation to bid and signed the checks after the same had been processed by
his subordinates, are evidentiary in nature and are matters of defense, the
truth of which can be best passed upon after a full-blown trial on the
merits. It is not for the public
prosecutor to decide whether there is evidence beyond reasonable doubt of the
guilt of the person charged. A
preliminary investigation is conducted for the purpose of determining whether a
crime has been committed, and whether there is probable cause to believe that
the accused is guilty thereof and should be held for trial. It is not the occasion for full and exhaustive
display of the parties’ evidence; it is for the presentation of such evidence
only as may engender a well-grounded belief that an offense has been committed
and that the accused is probably guilty thereof.[16]
WHEREFORE, the petition is hereby DISMISSED for lack of
merit. The Sandiganbayan is hereby
directed to proceed with dispatch the arraignment and trial of the case.
SO ORDERED.
Kapunan, and Panganiban, JJ., on official leave.
[1] Annex “A”, p. 27 of
Petition.
[2] Susana Cabahug,
Luceria M. de Leon, Aquilina B. Granada, Carlos Bautista, Edilberto Madria,
Felipe Pancho and Giomiche Incorporated represented by its President Jesusa
dela Cruz.
[3] Annex “B” of
Petition, pp. 30-47, Rollo.
[4] See Resolution, pp.
10-13.
[5] See
Information
“THE UNDERSIGNED Graft Investigation Officer I of the Office of the Ombudsman for Mindanao, hereby accused (sic) VENANCIO R. NAVA, x x x; of the crime of Violation of Sec. 3 (g) of R.A. 3019, committed as follows:
‘That on or during the period comprising the
calendar year 1991, in the City of Davao, Philippines and within the
jurisdiction of this Honorable Court, the accused VENANCIO NAVA, x x x, all
public officers being then the Regional Director with salary grade of 27, x x
x, of the Department of Education, Culture and Sports, Region XI, while in the
performance of their duties, committing the offense in relation to their
office, taking advantage of their official positions, conspiring, confederating
with each other, and with Geomiche Incorporated President JESUSA DELA CRUZ, to
wit: 1. DECS Regional Director VENANCIO NAVA approved the disbursement voucher,
purchase order and invitation to bid and signed the checks for payment; x x x
which acts though seemingly separate and distinct yet parts of a grand
conspiratiorial design to defraud the government, did then and there, wilfully,
unlawfully, criminally, purchase in behalf of the DECS Division Office of Davao
City, from Geomiche Incorporated represented by Jesusa dela Cruz construction
materials at overpriced costs ranging from 6.09% to 695.45% thus enter into a
contract grossly and manifestly disadvantageous to the government for it left
the DECS short-changed by a hefty sum of P512,967.69 - the total amount of the
overprice.’”
[6] Annex “C” of
Petition, pp. 48-56, Rollo.
[7] Annex “D” of
Petition, pp. 57-65, Ibid.
[8] The Ombudsman Act.
[9] Fabian vs. Desierto,
295 SCRA 470 [1998].
[10] Tirol, Jr. vs. Del
Rosario, 317 SCRA 779 [1999].
[11] Ibid.
[12] Ocampo, IV vs.
Ombudsman, 225 SCRA 725, 730 [1993].
[13] Venus vs. Desierto,
298 SCRA 196 [1998].
[14] Alba vs. Nitorreda,
254 SCRA 753, 765-766 [1996].
[15] Young vs.
Office of the Ombudsman, 228 SCRA 718, 722-723 [1993].
[16] Olivarez vs. Sandiganbayan,
248 SCRA 700, 711 [1995]; Deloso vs. Desierto, 314 SCRA 126 [1999].