444 Phil. 876
AZCUNA, J.:
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
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
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]x x x
- 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”;
- 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
- 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;
- 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;
- 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;
- 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
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.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
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.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
We start with the rules.I.
DOES THE COA SPECIAL AUDIT REPORT CONSTITUTE A VALID COMPLAINT THAT IS SUFFICIENT TO SUPPORT A CRIMINAL PROCEEDING?II.
DID RESPONDENTS ACT WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION BY UNILATERALLY CONVERTING A MERE COA FACT-FINDING REPORT INTO A COMPLAINT AND IN REQUIRING PETITIONER TO SUBMIT A COUNTER-AFFIDAVIT IN RESPONSE TO THE SAME?[11]
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]x x x
Sec. 2. Evaluation – Upon evaluating the complaint, the investigating officer shall recommend whether or not it may be:
a) dismissed outright for want of palpable merit:b) referred to respondent for comment;c) endorsed to the proper government office or agency which has jurisdiction over the case;d) forwarded to the appropriate office or official for fact-finding investigation;e) referred for administrative adjudication; orf) subjected to a preliminary investigationx 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:
a) 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.b) 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.c) 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 recordd) 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.e) 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.f) 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.g) 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