358 Phil. 675
DAVIDE, JR., J.:
Negotiate And/or Inter (sic) Into A Contract With the Board of Liquidators, Office of The President of The Philippines In The Acquisition Of The Garcia-Diapo Enterprise, Lot No. 2, PSU-134402 Tax Declaration No. 154 Which Is At Present In the Position (sic) Of The Board of Liquidators Scheduled For Public Bidding On September 19, 1988.Pursuant to the resolution, petitioner proceeded to Manila on 6 September 1988 and submitted to one Wenceslao Buenaventura, a Director and the General Manager of the Board of Liquidators, a copy of Resolution No. 19 S. 1998, together with petitioner’s letter-proposal wherein, on behalf of the Municipality of New Washington and pursuant to his authority under the Resolution, he offered to buy the lot on a government-to-government basis at a price mutually acceptable to the parties.
RESOLVED, to reject the offer of the Sangguniang Bayan of New Washington, Province of Aklan, and Mr. Tomas Manalang to purchase the parcel of land covered by TCT No. 3278 located in New Washington, Aklan, and instead, the Ad Hoc Committee on Bids shall conduct a public bidding over said land on 19 September 1988.Petitioner returned to New Washington and informed the SB thereof of the denial. He likewise submitted to the Municipal Treasurer his voucher for P1,401.00 for the transportation expenses he incurred for the trip, which was covered by an itinerary of travel. He then sought the opinion of the Provincial Auditor, Atty. Antonio Tabang, as regards the municipality’s participation in the bidding. The latter informed the municipality of the requirements in order that a municipal government validly participate in a public bidding, which he set forth in his affidavit as quoted in the Order of 15 July 1997 of Special Prosecution Officer III Pascual, thus:
[I]n order that a municipal government can participate in a public bidding it has to get a Sangguniang Bayan Resolution authorizing him [sic] to participate in a public bidding and to appropriate an amount needed for the bidding representing the Municipality, although I mentioned that this is a rare case where a Municipality will participate in a public bidding; that said resolution ha[s] to be reviewed and approved by the Sangguniang Panlalawigan in accordance with the existing law and regulation; that I further told Mayor Venus that for him to draw a cash advance needed for the purpose, the Resolution must be approved by the authority concerned and the cash advance must be pre-audited by my office before the municipal Treasurer release[s] the payment, and that this procedure/requirements [sic] will take time, not less than two (2) weeks at most [sic], and cannot meet the scheduled date of the bidding set [for] 19 September 1988.In view of the numerous requirements, the SB doubted whether New Washington could participate in the public bidding.
Private respondents alleged in their letter-complaint, thus:In their Joint Affidavit in support of the complaint, private respondents alleged that in contravention of the resolution and authority, in evident bad faith and for the sole purpose of self-interest, petitioner bought the lot in his name and for personal gain, and that they never suspected otherwise because from 1988 up to May 1990, the lot was utilized as a garage for fire trucks and for the municipal mushroom culture laboratory. It was only when petitioner lost in the 1992 elections and "ejected the Municipal Firetruck" that they came to know that petitioner bought the land in his name and not for the municipality.
That on or about the period from September to October, 1988, in the Municipality of New Washington, Province of Aklan, Philippines, and City of Manila, Philippines, and within the jurisdiction of this Honorable Office, the above-named respondent being then the duly elected Mayor of New Washington, Aklan, did then and there wilfully, unlawfully and feloniously having been previously authorized to negotiate and/or enter into a contract with the Board of Liquidators, Office of the President of the Philippines, in the acquisition of the Garcia-Diapo Lot No. 2, PSU-134402, Tax Declaration No. 154 and covered with TCT No. T-16837 which was already then acquired by the Board of Liquidators and scheduled for public bidding on September 19, 1988 and further, having withdrawn money from the Municipality Treasury for said purpose as expenses thereof in the amount of P1,401.00, to the prejudice of the Municipality of New Washington and for his own personal benefit, entered into a Contract of Sale with the Board of Liquidators in his own name and purchased the aforementioned lot for and in his own behalf in contravention with [sic] the Anti-Graft and Corrupt Practices [Act] (Republic Act No. 3019, As Amended, Section 3, Par. H thereof).
After a meticulous examination of the pleadings of both parties, giving due consideration to documentary evidences [sic] respectively submitted in support of their contending [sic] allegations, the undersigned investigator determines to be of no sufficient basis the present charge [for] violation of Section 3, paragraph (h), of R.A. 3019, the pertinent provision of which reads as follows:Then Ombudsman Conrado M. Vasquez, however, disapproved the resolution, with a marginal note to "[c]onsider the possible liability of [petitioner] for a violation of Section 3(e), R.A. 3019 [since] [t]here is a pervading showing of bad faith on the part of [petitioner] in maneuvering to acquire for himself a piece of property which he himself knew to be badly needed by the municipality."
"h. Directly or indirectly having financial or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from having any interest."
It would be of some worth citing the case of Trieste, Sr. vs. Sandiganbayan, 145 SCRA 508, to clarify the application of the above-pertinent provision wherein the Supreme Court said: "What is contemplated in Section 3(h) of the anti-graft law is the actual intervention in the transaction in which one has financial or pecuniary interest in order that liability may attach (Opinion No. 306, Series 1961 and Opinion No. 94, Series 1972 of the Secretary of Justice). xxxx. For the law aims to prevent dominant use of influence, authority and power (Deliberation on Senate Bill 293, May 6, 1959, Constitutional Record, Vol. II, page 603)." And as was cited in Macariola vs. Asuncion, 114 SCRA 77, regarding a ruling in one case involving the application of Article 216 of the Revised Penal Code which has a similar prohibition [against] public officers [from] directly or indirectly becoming interested in any contract or business in which it is his official duty to intervene, "(I)t is not enough to be a public official to be subject to this crime; it is necessary that by reason of his office, he has to intervene in said contracts or transactions; and hence, the official who intervene [sic] in contracts or transactions which have no relation to his office cannot commit this crime" (People vs. Meneses, C.A. 40 O.G. 11th Supp. 134, cited by Justice Ramon C. Aquino; Revised Penal Code, p. 1174, Vol. II 1976).
Evidently, the above citations find appropriate application [so] as to dismiss the charge in the instant case. The representation made by the respondent former mayor Eriberto L. Venus before the Board of Liquidators pursuant to the authority given him by the Sangguniang Bayan of New Washington, Aklan, per Resolution No. 19, s. 1988, to negotiate and/or enter into a contract with the Board for the purchase by the municipality of New Washington of the subject lot, did not constitute actual intervention as contemplated in the aforecited provision of the anti-graft law. What the same respondent did was merely to make arrangement [sic] or bargain with the Board regarding the offer of the Sangguniang Bayan of New Washington. He was not a member of the Board of Liquidators, and his being the authorized representative of the municipality of New Washington to deal with the Board or his capacity as mayor of New Washington, Aklan, were not reasons for him to intervene in the transaction of the Board. The respondent was not in the position to intercede in whatever official capacity in the Board’s deliberation/meeting to decide on whether to accept or reject the offer made. The decision was purely the exclusive prerogative of the Board, which in fact rejected the offer per its Resolution No. 420, s. 1988. And there was absolutely no evidence that the respondent had, in his capacity as then Mayor, used his influence, power, and authority in the rejection of the offer of the municipality of New Washington, Aklan, and in the award to him of the contract for the sale of [the] subject lot when he subsequently tendered his own personal bid. Hence, no legal prohibition exists against the respondent’s acquisition of the property in question.
The complainants charge that the municipality of New Washington was prejudiced when the respondent, having been previously authorized to negotiate and/or enter into a contract with the Board of Liquidators for the acquisition of the subject lot and having withdrawn money from the Municipal Treasury for said purpose as expenses thereof in the amount of P1,401.00, entered into a Contract of Sale with the Board of Liquidators on his own behalf and for his personal benefit. It need be pointed out, however, that pursuant to the authority given him the respondent had in fact made negotiations by manifesting the offer of the municipality of New Washington through a letter to the Director & General Manager, Wenceslao M. Buenaventura, of the Board of Liquidators dated September 7, 1988 (Annex "C" of counter-affidavit). Unluckily, aforesaid offer was rejected by the Board, per its Resolution No. 420, s. 1988 (Annex "E"), which decided that the Ad Hoc Committee on Bids should instead conduct a public bidding over [the] subject lot on September 19, 1988. Accordingly, the members of the Sangguniang Bayan of New Washington were informed by the respondent of the rejection of their offer. And having done what he had been mandated and authorized to do, although unsuccessfully, the respondent reasonably claimed reimbursement for his actual expenses in connection thereof in the amount of P1,401.00 as justified by him in his Itinerary of Travel dated September 12, 1988 (Annex "C" of complaint or Annex "A" of respondent’s reply to complainant’s rejoinder), for which Disbursement Voucher No. 101-88-09-632 (Annex "B" of complaint) was duly prepared and approved.
Considering that the authority given the respondent was "to negotiate and/or enter into a contract with the Board of Liquidators", and that the negotiated transaction or offer pursuant thereof had been rejected by the Board and instead a public bidding was called, no contract for the sale of subject lot to the municipality of New Washington could possibly be pursued based thereon. There being no subsequent authority for the respondent to tender before the Ad Hoc Committee on Bids a bid offer of the municipality of New Washington, the respondent’s authority to represent the municipality concerned for purposes of acquiring the subject lot had been effectively terminated upon the rejection of their offer of a negotiated purchase. That he transacted and bidded [sic] for said purchase on his own and not upon any authority or official representation is shown by his letter-request to Governor Corazon L. Cabagnot dated September 17, 1988 (Annex "C" of respondent’s reply to complainants’ rejoinder) for authority to travel to Manila and the 1st Indorsement dated September 17, 1988 of Governor Cabagnot (Annex "D") granting such authority.
WHEREFORE, premises considered, the undersigned respectfully recommends the DISMISSAL of the instant complaint.
Ines justified his conclusion in this manner:Deputy Special Prosecutor Robert E. Kallos recommended the approval of Ines’ resolution. Special Prosecutor Leonardo P. Tamayo concurred with Ines’ recommendation, while Ombudsman Aniano Desierto approved the resolution on 26 April 1996.
The undersigned Special Prosecution Officer totally agrees with the observations / recommendation made by GIO Carla N. Tanco as lengthily expounded in her Resolution. Based on the circumstances and evidence at hand, it is crystal clear that respondent acted in bad faith in acquiring the lot for himself instead of for his municipality. It is a fact that he was commissioned by the SB to negotiate with the Board of Liquidators for the acquisition of said lot through public bidding but sequences [sic] of events would now prove that he ha[d] a hidden motive to personally acquire the lot in his own name. Being commissioned by the SB, he now become an agent of the Municipality of New Washington. Thus, he should have acted as representative of his Municipality in [sic] which he leads as the Mayor. This job demands utmost good faith, fidelity, candor and fairness. The New Civil Code imposes upon the agent the absolute obligation to make a full disclosure or complete account to his principal of all his transactions and other material fact [sic] relative to the agency. So much so that the law does not countenance any stipulation exempting the agent from such obligation and considers such exemption as void (Domingo vs. Domingo, 42 SCRA 131). Respondent could not place good faith as his defense inasmuch [sic] there is good faith only when there is an honest intention to abstain from taking as [sic] unconscientious advantage from [sic] another. Respondent should have acted with "delicadeza" by not having personally purchased the lot for himself. The nature of the relationship between him as the Mayor and agent with the principal which is the municipality is fiduciary in nature which demands the agent from placing oneself in a position which ordinarily excites conflicts between self interest and integrity.
That sometime during the period from September to October 1988, and for sometime prior or subsequent thereto, in the Municipality of New Washington, Philippines, and within the jurisdiction of this Honorable Court, accused ERIBERTO L. VENUS, a public officer, being then the Municipal Mayor of New Washington, Aklan, while in the performance of his official functions, taking advantage of his position, and committing the offense in relation to his office, through evident bad faith, did then and there wilfully, unlawfully and criminally cause undue injury to the government, particularly to the Municipality of New Washington, Aklan and to public interest, as follows: that accused Mayor Venus after having been previously authorized by the Sangguniang Bayan of New Washington, Aklan to negotiate and/or enter into a contract in behalf of said Municipality with the Board of Liquidators of the Office of the President for the purchase/acquisition of the latter’s Garcia-Diapo Lot No. 2, situated in front of the New Washington Town Hall, and which was scheduled for public bidding on September 19, 1988, and that said accused after having withdrawn money from the Municipality Treasury the amount of P1,401.00 as travelling expense in going to Manila to negotiate said transaction, did then and there maneuver said sales deal and enter into a Contract of Sale with the said Board of Liquidators in his own name instead, and purchased the aforementioned lot for and in his own behalf despite the fact that he knew that said lot is badly needed by the Municipality which is proposed to be the site of the Fire Fighting Station of the Municipality; to the damage and prejudice of the Municipality of New Washington, Aklan and public interest.The Information was filed with the Sandiganbayan on 2 May 1996 and docketed therein as Criminal Case No. 23332.
CONTRARY TO LAW.
Allow the court to findOn 22 August 1997, Victor A. Pascual filed a Manifestation, to which was attached a copy of his Order of 15 July 1997, informing the Sandiganbayan of the disapproval of the Ombudsman of his recommendation to dismiss the case.
absence of bad faith.
Probable cause exists.
To justify his recommendation, Pascual stated:
A thorough review of the record of the case together with the new documentary evidence submitted by the parties, undersigned find[s] no probable cause to warrant further prosecution of this case.
While it is an admitted fact, that accused/respondent Venus went to Manila on September 6, 1988 on [an] official trip to purposely convince the Board of Liquidators to enter into a negotiated contract of sale of the said property at a nominal amount, however, this part of [the] negotiation which did not materialize does not necessarily mean that accused is liable for [a] [v]iolation of Sec. 3(e) of R.A. 3019. Records disclosed [sic] that the accused did really perform all the necessary acts mandated in Resolution 19, S-1988.
It likewise appears that on September 7, 1988 or immediately upon arrival in Manila respondent Mayor Venus went directly to the Office of the Board of Liquidators in San Miguel [sic] Manila submitting thereto, the letter dated September 7, 1988 of the Municipality of New Washington, pertinent portion of which states: "xxx offering to buy for our municipality at a price mutually agreeable to us, on a government to government basis xxx."
On September 8, 1988, the Board of Liquidators in its Resolution No. 420 Series of 1988 rejected the said offer by stating:
"RESOLVED, to reject the offer of the Sangguniang Bayan of New Washington, Province of Aklan, and Mr. Tomas Manalang to purchase the parcel of land covered by TCT No. 3278 located in New Washington, Aklan, and instead, the AD [sic] Hoc Committee on Bids shall conduct a public bidding over the said land on 19 September 1988."
On September 9, 1988, respondent/accused returned back [sic] to New Washington with a negative result. However, he did not stop from [sic] there but instead, asked for the opinion/advice of the Provincial Auditor, Atty. Antonio Tabang, and in the latter’s affidavit submitted to this office it is stated therein, specifically that,
"xxx in order that a municipal government can participate in a public bidding it has to get a Sangguniang Bayan Resolution authorizing him [sic] to participate in a public bidding and to appropriate an amount needed for the bidding representing the Municipality, although I mentioned that this is a rare case where a Municipality will participate in a public bidding; that said resolution have [sic] to be reviewed and approved by the Sangguniang Panlalawigan in accordance with the existing law and regulation; and I further told Mayor Venus that for him to draw a cash advance needed for the purpose, the Resolution must be approved by the authority concerned and the cash advance must be pre-audited by my office before the Municipal Treasurer released [sic] the payment, and that this procedure/requirements [sic] will take time, not less than two (2) weeks at most [sic], and cannot meet the scheduled date of the bidding set on 19 September 1988."
All the above facts were disclosed by the accused to the Sangguniang Bayan and therefore, it cannot be said that he had a hidden motive to personally acquire the lot for himself. This fact disputed the Comment/Opposition of complainants’ interpretation of the Resolution No. 19 Series of 1988 by the Sangguniang Bayan of New Washington, Aklan.
Subsequently, on the 19th of September 1988 accused decided to participate in the public bidding only after finding the impossibility of the Municipality to participate because of budgetary constraints; lack of material time to appropriate funds; secure the approval of the Sangguniang Panlalawigan, and drawing of [a] cash advance from the Municipal Treasurer for [the] bid price upon prior approval of the auditor.
Hence, accused’s subsequent act of participating in the public bidding on September 19, 1988, did not constitute evident bad faith as there was no intention to cause damage to the Municipality. He did not use the money of the Municipality for his personal interest nor did he use his office as a Mayor in order to participate in the said bidding. Earnest efforts were exerted to facilitate the buying of the said lot for the Municipality. Evident bad faith connotes a manifest deliberate intent on the part of the accused to do wrong or cause damage. This is absent in this case.
a. To afford protection to the constitutional rights of the accused (Hernandez vs. Albano, et al., L-19272, January 25, 1967, 19 SCRA 95);Ocampo provided the basis for the general rule insofar as the Ombudsman is concerned, thus:
b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions (Dimayuga, et al. vs. Fernandez, 43 Phil. 304; Hernandez vs. Albano, supra; Fortun vs. Labang, et al., L-38383, May 27, 1981, 104 SCRA 607);
c. When there is a prejudicial question which is sub judice (De Leon vs. Mabanag, 70 Phil. 202);
d. When the acts of the officer are without or in excess of authority (Planas vs. Gil, 67 Phil. 62);
e. Where the prosecution is under an invalid law, ordinance or regulation (Young vs. Rafferty, 33 Phil. 556; Yu Cong Eng vs. Trinidad, 47 Phil. 385, 389);
f. When double jeopardy is clearly apparent (Sangalang vs. People and Alvendia, 109 Phil. 1140);
g. Where the court has no jurisdiction over the offense (Lopez vs. City Judge, L-25795. October 29, 1966, 18 SCRA 616);
h. Where it is a case of persecution rather than prosecution (Rustia vs. Ocampo, CA-G.R. No. 4760, March 25, 1960);
i. Where the charges are manifestly false and motivated by the lust for vengeance (Recto vs. Castelo, 18 L.J. (1953), cited in Rañoa vs. Alvendia, CA G.R. No. 30720-R, October 8, 1962; Cf. Guingona, et al. vs. City Fiscal, L-60033, April 4, 1984, 128 SCRA 577);
j. Where there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied (Salonga vs. Paño, et al., L-59524, February 18, 1985, 134 SCRA 438); and
k. Preliminary injunction has been issued by the Supreme Court to prevent the threatened unlawful arrest of petitioners (Rodriguez vs. Castelo, L-6374, August 1, 1953) (cited in Regalado, Remedial Law Compendium, p. 188, 1988 Ed.)
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.In Young v. Office of the Ombudsman, however, we held that this Court may interfere with the discretion of the Ombudsman in case of clear abuse of discretion.
SEC. 3.Where bad faith is involved, it is obvious that for one to be liable therefor, the bad faith must be "evident." It necessarily follows that since petitioner was not guilty of bad faith in the first place, the issue then of whether such was evident fails to emerge.
(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 ...
We emphasize at this point that the Court has a policy of non-interference in the Ombudsman’s exercise of his constitutionally mandated powers. The overwhelming number of petitions brought to us questioning the filing by the Ombudsman of charges against them are invariably denied due course. Occasionally, however, there are rare cases when, for various reasons there has been a misapprehension of facts, we step in with our review power. This is one such case.In like manner, in Allado v. Diokno, we enjoined, inter alia, respondent trial judge from proceeding any further against petitioners in Criminal Case No. 94-1757 for want of probable cause against them.
It may also be stressed at this point that the approach of the Courts to the quashing of criminal charges necessarily differs from the way a prosecutor would handle exactly the same question. A court faced with a fifty-fifty proposition of guilt or innocence always decides in favor of innocence. A prosecutor, conscious that he represents the offended party, may decide to leave the problem to the discretion of the court.
In the habeas corpus case of Juan Ponce Enrile v. Judge Salazar, et al., (186 SCRA 217 ), the situation was more clear-cut, thus prompting the undersigned ponente to state:
"All courts should remember that they form part of an independent judicial system; they do not belong to the prosecution service. A court should never play into the hands of the prosecution and blindly comply with its erroneous manifestations. Faced with an information charging a manifestly non-existent crime, the duty of a trial court is to throw it out. Or, at the very least and where possible, make it conform to the law." (at p. 244)
"Otherwise stated, it is beyond the ambit of this Court to review the exercise of discretion of the Ombudsman in prosecuting or dismissing a complaint 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."Albeit, there have been rare instances when the Court has intervened but only where there is a clear case of grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the Ombudsman. Indeed, this Court is not a trier of facts; the Ombudsman and the Sandiganbayan are.
"It must be stressed here that a preliminary investigation is essentially inquisitorial, and is often the only means of discovering the persons who may be seasonably charged with a crime, to enable the prosecutor to prepare his 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 persons against whom it is taken in jeopardy. It is not the occassion for the 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."Most importantly, the office of an extraordinary remedy of prohibition is not to correct errors of judgment but to prevent or restrain usurpation by inferior tribunals and to compel them to observe the limitation of their jurisdiction. If the inferior court or tribunal has jurisdiction over the person and subject matter of the controversy, the writ will not lie to stop it from exercising judicial power. The majority in granting the petition for prohibition has effectively prejudged the case and thereby predicted that the evidence against petitioner will not stand before the Sandiganbayan. It is unduly precipitate for this Court to preempt the Sandiganbayan on this matter.