SECOND DIVISION
[ G.R. NO. 134509, April 12, 2005 ]VENANCIO R. NAVA v. NATIONAL BUREAU OF INVESTIGATION +
VENANCIO R. NAVA, PETITIONER, VS. NATIONAL BUREAU OF INVESTIGATION, REGIONAL OFFICE NO. XI, DAVAO CITY, RESPONDENT.
D E C I S I O N
VENANCIO R. NAVA v. NATIONAL BUREAU OF INVESTIGATION +
VENANCIO R. NAVA, PETITIONER, VS. NATIONAL BUREAU OF INVESTIGATION, REGIONAL OFFICE NO. XI, DAVAO CITY, RESPONDENT.
D E C I S I O N
TINGA, J.:
In this Petition[1] filed pursuant to Section 27,[2] Republic Act No. 6770, otherwise known as "The Ombudsman Act of 1989," in relation to Rule 45 of the Revised Rules of Court, petitioner Venancio R. Nava
(hereinafter, Nava) assails the disapproval[3] by the Ombudsman of the Order[4] of the Office of the Special Prosecutor recommending the dismissal of the case against him and his co-accused Aquilina Granada (hereinafter,
Granada) for alleged Falsification Thru Reckless Imprudence in OMB Cases No. 3-93-3219 and No. 3-96-0462, in which the public respondent National Bureau of Investigation (NBI) was the complainant. The Order was issued to resolve the Motion for
Reinvestigation[5] filed by Nava. The Order reads in part:
The case subject of this Petition emanated from anonymous letter-complaints[7] filed before the Office of the Ombudsman in Mindanao alleging that fake Equivalent Record Forms (ERFs) of several teachers of the Davao City National High School were made the bases for the Plantilla Allocation List (PAL) for calendar year 1988 and for the teachers' corresponding promotion and salary upgrading.[8]
The Office of the Ombudsman in Mindanao referred the matter to the NBI in Region XI (NBI-XI) and directed it to conduct a fact-finding investigation.[9] The investigation by the NBI-XI disclosed, among others, the submission by a certain Myrna Rosales-Velez of a Service Record (DECS Form No. 93) containing fabricated facts and the handing in of fake ERFs by other teachers which were the bases of the PAL approved as correct by Nava who was then the Department of Education, Culture and Sports (DECS) Regional Director for Region XI.[10] The NBI recommended the filing of appropriate charges against the teachers and officials concerned.[11]
Acting on the findings of the NBI, the Office of the Ombudsman in Mindanao, in a Joint Resolution[12] dated 23 October 1996, recommended the indictment of Nava before the Sandiganbayan for Falsification of Official Documents thru Reckless Imprudence.[13] The pertinent portions of the Joint Resolution state:
Thus, the filing of an Information[17] against Nava and his co-accused Granada before the Sandiganbayan on 20 November 1996. The Information was docketed as SB Criminal Case No. 23519, the accusatory portion of which reads as follows:
In Arias v. Sandiganbayan,[25] the Court absolved the accused therein, who was an auditor in an engineering district, from the indictment that he conspired in the overpricing of land purchased by the government by approving the vouchers for its payment. The Court concluded, to wit:
Corollarily, the NBI asserted that the Ombudsman did not err in not applying the principles laid down by the Court in Arias v. Sandiganbayan[33] and Magsuci v. Sandiganbayan[34] as Nava's knowledge of the infirmity of the ERFs cannot controvert the truth that he had acted in bad faith when he approved the said ERFs and thereafter the PAL.[35]
Moreover, it is discretionary on the Ombudsman whether or not to rely on the findings of fact of the investigating prosecutor in making a review of the latter's report and recommendation, as he can very well make his own findings of fact. And citing the case of Knecht, et al. v. Desierto et al.,[36] the NBI further pleaded that it is beyond the Court's ambit to review the exercise of the Ombudsman in prosecuting or dismissing a complaint filed before it.[37]
In the Comment[38] filed by the Solicitor General also on its behalf, the NBI explained that for the ERFs to be processed and approved, they must be accompanied by the teachers' service records, performance ratings, special order of bachelor's degree, transcripts of records of undergraduate course or masteral units earned, if any, and a consolidated record of training seminars and workshops attended. Had Nava exercised ordinary prudence or reasonable care or caution, he would have noticed the absence of supporting documents accompanying the ERFs. Nava's sole reliance on the certification and initials of his subordinates is indicative of a wanton attitude and gross lack of precaution.[39]
The NBI also argued that the Ombudsman, in denying the recommendation of the Special Prosecutor, committed no error in fact and in law. He merely exercised his prosecuting powers based on the constitutional mandate.[40]
Further, the NBI pointed out that the instant Petition is one for review on certiorari pursuant to Section 27 of R.A. 6770 in relation to Rule 45 of the Rules of Court, which provision of law had already been declared unconstitutional in Fabian v. Desierto[41] and reiterated in Namuhe v. Ombudsman.[42] Pursuant to the Court's ruling, appeals from orders, directives or decisions of the Ombudsman in administrative disciplinary cases should be taken to the Court of Appeals by way of a petition for review under Rule 43 of the Rules of Court. In any event, as the instant case is not an administrative disciplinary case, the proper remedy should have been a petition for certiorari under Rule 65 of the Rules of Court. However, even assuming that this remedy was pursued, since there is nothing on record to even suggest that the Ombudsman committed grave abuse of discretion in refusing to have the case against Nava dismissed, the NBI insists that the Petition must fail.[43]
Nava in his Consolidated Reply[44] stressed that the instant Petition was filed on 3 September 1998 before the promulgation of the Fabian case on 16 September 1998; and maintained that it was then his honest position that Section 27 of R.A. 6770 was available as a remedy in non-administrative cases notwithstanding its silence on the matter. In this instance, however, he posited that the Court of Appeals may likewise not take cognizance of the Petition in light of the Court's ruling in Tirol, Jr. v. Justice del Rosario,[45] that the right to appeal to the Court of Appeals granted to an aggrieved party in administrative disciplinary cases as ruled in Fabian is not available to a party aggrieved by an order and decision of the Ombudsman in criminal cases, like finding probable cause to indict accused persons. Nava implored the Court to consider the instant Petition instead as a petition for certiorari under Rule 65 of the Rules of Court as the actuations of the Ombudsman amount to a grave abuse of discretion amounting to lack or excess of its jurisdiction.[46]
We first dispose of the remedy issue raised by respondent NBI in its Comment[47] filed on its behalf by the Solicitor General. It asserted that since the instant Petition was filed pursuant to Section 27 of R.A. 6770, Nava's appeal should be taken to the Court of Appeals by way of a petition for review under Rule 43 of the Rules of Court according to Fabian. An alternative would be to file a petition for certiorari under Rule 65 of the Rules of Court to the Court as the instant case is not an administrative disciplinary case.[48]
We agree that the alternative remedy avails. Reiterating Tirol,[49] we held in Mendoza-Arce v. Office of the Ombudsman (Visayas),[50] that although as a consequence of the decision in Fabian,[51] appeals from the orders, directives, or decisions of the Ombudsman in administrative cases are now cognizable by the Court of Appeals, nevertheless in cases in which it is alleged that the Ombudsman has acted with grave abuse of discretion amounting to lack or excess of jurisdiction, a special civil action of certiorari under Rule 65 may be filed with this Court to set aside the Ombudsman's order or resolution. In Kuizon v. Desierto,[52] we held that the Court has jurisdiction over such petitions questioning resolutions or orders of the Office of the Ombudsman in criminal cases. As Nava himself beseeched the Court to consider his Petition as a petition for certiorari under Rule 65, we shall treat the same as one.
Coming now to the merits, the Petition cannot succeed.
In certiorari proceedings under Rule 65 of the Rules of Court, questions of fact are generally not permitted, the inquiry being limited essentially to whether or not the respondent tribunal had acted without or in excess of its jurisdiction or with grave abuse of discretion.[53]
Grave abuse of discretion implies a capricious and whimsical exercise of judgment tantamount to lack of jurisdiction. In other words, the exercise of power is 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 or a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.[54]
Deliberating upon the Petition and the arguments in support thereof side by side with the comments of the respondent thereon, we find that the Petition fails to show a grave abuse of discretion or any act without or in excess of jurisdiction on the part of the Ombudsman. Nava's asseveration that the Ombudsman gravely abused his discretion when he disapproved the recommendation of the Special Prosecutor urging the dismissal of the case against the petitioner and without giving any reasons therefor is specious. The Ombudsman is not duty bound to render anew a statement of facts or elaborate on the applicable law.[55] As we held in Cruz, Jr. v. People:[56]
The Ombudsman's act of disapproving the recommendation of the Special Prosecutor to dismiss the case against Nava was not whimsical or capricious. He disapproved the recommendation of the Special Prosecutor because in his estimation, there was sufficient evidence to indict the accused. This was an exercise of the powers of the Ombudsman based on constitutional mandate and the courts should not interfere in such exercise.
Congruently with the rule that criminal prosecutions may not be restrained, either through a preliminary or final injunction or a writ of prohibition, the Court ordinarily does not interfere with the Ombudsman's exercise of discretion in determining whether there exists a reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof, and thereafter in filing the corresponding information with the appropriate courts,[60] save for the following instances:
Further, it needs repeating that while it is the Ombudsman who has the full discretion to determine whether or not a criminal case should be filed in the Sandiganbayan, once the case has been filed with said court, it is the Sandiganbayan, and no longer the Ombudsman, which has full control of the case so much so that the Information may not be dismissed without the approval of said court.[68]
Next, Nava contends that he was not accorded the opportunity to file a motion for reconsideration within five (5) days from receipt thereof and before the filing of the Information[69] in violation of Section 7 of Administrative Order No. 7, as amended by Administrative Order No. 9, which provides that:
Finally, reliance on the cases of Arias and Magsuci cannot be countenanced as they are not on all fours with the present Petition. In both cases, trial on the merits had already been held, as in fact the judgment of conviction was challenged in the petition, and therefore the Court had the opportunity to appreciate the evidentiary matters which came out of the trial. On the other hand, Nava's allegations in the case involve evidentiary issues which could be resolved only in a full-blown trial and not presently in this Petition.
ACCORDINGLY, the instant Petition is DISMISSED. Costs against petitioner.
SO ORDERED.
Puno, Austria-Martinez, Callejo, Sr., and Chico-Nazario, JJ., concur.
[1] Dated 1 September 1998; Rollo, pp. 13-75 with annexes.
[2] SEC. 27. Effectivity and Finality of Decisions. -
. . . .
In all administrative disciplinary cases, orders, directives, or decisions of the Office of the Ombudsman may be appealed to the Supreme Court by filing a petition for certiorari within ten (10) days from receipt of the written notice of the order, directive or decision or denial of the motion for reconsideration in accordance with Rule 45 of the Rules of Court.
[3] See Rollo, p. 75.
[4] Id. at 72-75; Dated 4 May 1998; Penned by Special Prosecutor II Manuel A. Corpuz and concurred in by Director Victorio U. Tabanguil (Prosecution Bureau), Deputy Special Prosecutor Robert E. Kallos and Special Prosecutor Leonardo P. Tamayo.
[5] Id. at 61-71; Dated 6 May 1997.
[6] Id. at 74-75.
[7] Id. at 30-34.
[8] Id. at 50-51, 72.
[9] Id. at 51.
[10] Id. at 47; The NBI Report reads in part:
CONCLUSION/RECOMMENDATION - Based on documentary evidence on hand we find:
57. NAVA committed FALSIFICATION OF OFFICIAL DOCUMENTS under paragraph 4 of Article 171 of the Revised Penal Code through reckless imprudence (Sarep v. Sandiganbayan, G.R. 68203, 9.13.89) when he approved the Plantilla Allocation List of approved ERFs for CY 1988 of eighty-three (83) secondary school teachers of Davao City High School and other schools in the Region, insofar as the proposed upgrading of Bisnar/Deño/Hofileña/Lim/Manlod/Mumar/Perez and Velez are concerned without verifying the existence of their original ERFs. By such act he caused undue injury to the Government through gross inexcusable negligence in violation of Section 3(e) of Republic Act No. 3019. (Gross negligence is negligence characterized by want of even slight care, acting or omiting (sic) to act in a situation where there is a duty to act, not inadvertently but wilfully and intentionally with a conscious indifference to consequences insofar as other persons may be affected. It is omission of that care which even inattentive and thoughtless men never fail to take on their own property (Alejandro v. People, G.R. 81031, 2.20.89). Purusant (sic) to Circular Letter 84-4 NAVA is personally liable for the illegal disbursement of funds to Subject 12 teachers. Administratively, NAVA is liable for gross neglect of duty, falsification of official documents and conduct grossly prejudicial to the best interest of the service, paragraphs (b), (f), and (t), respectively, of Section 23 of Rule XIV of the Civil Service Law (E.O. 292).
[11] Id. at 101.
[12] Id. at 49-60; in OMB-MIN-93-0454, OMB-3-93-3219, and OMB-3-96-0462.
[13] Id. at 57.
[14] Id. at 54-55.
[15] Id. at 57.
[16] Id. at 58.
[17] Dated 23 October 1996; Id. at 59-60.
[18] Id. at 59.
[19] Id. at 61-71; Dated 6 May 1997.
[20] Id. at 18-19 and 101.
[21] Id. at 101.
[22] G.R. Nos. 81563 and 82512, 19 December 1989, 180 SCRA 309.
[23] 310 Phil. 14 (1995).
[24] Rollo, pp. 20, and 102.
[25] Supra note 22.
[26] Id. at 315-316.
[27] Id. at 316.
[28] Supra note 23.
[29] Id. at 19-20.
[30] Rollo, pp. 109-127 with annexes.
[31] Penned by Special Prosecutor Leonardo Tamayo, Deputy Special Prosecutor Robert E. Kallos, ASAB Director Carlos D. Montemayor, Special Prosecution Officer II Pilarita T. Lapitan; Noticeably, the Office of the Special Prosecutor made a turnaround from its previous position supporting the dismissal of the case against Nava.
[32] Id. at 116.
[33] Supra note 22.
[34] Supra note 23.
[35] Rollo, pp. 116-117.
[36] 353 Phil. 494 (1998).
[37] Rollo, p. 118.
[38] Id. at 99-107.
[39] Id. at 103.
[40] Id. at 104.
[41] 356 Phil. 787 (1998).
[42] 358 Phil. 782 (1998).
[43] Rollo, pp. 106-107.
[44] Id. at 144-152.
[45] 376 Phil. 115 (1999).
[46] Rollo, pp. 150-151.
[47] Id. at 99-107.
[48] Id. at 105.
[49] Supra note 45.
[50] 430 Phil. 101, 112 (2002); See Perez v. Office of the Ombudsman, G.R. No. 131445, 27 May 2004, 429 SCRA 357, 360.
[51] Supra note 41.
[52] G.R. Nos. 140619-24, 9 March 2001, 354 SCRA 158, 172.
[53] Zagada v. Civil Service Commission, G.R. No. 99302, 27 November 1992, 216 SCRA 114, 118.
[54] Perez v. Office of the Ombudsman, supra note 50 at 361-362.
[55] Kuizon v. Desierto, supra note 52 at 177.
[56] G.R. No. 110436, 27 June 1994, 233 SCRA 439.
[57] Id. at 450-451.
[58] Mamburao, Inc. v. Office of the Ombudsman, G.R. Nos. 139141-42, 15 November 2000, 344 SCRA 805, 818.
[59] Kuizon v. Desierto, supra note 52 at 178.
[60] Venus v. Desierto, 358 Phil. 675, 694 (1998).
[61] Ocampo, IV v. Ombudsman, G.R. Nos. 103446-47, 30 August 1993, 225 SCRA 725, 729; Venus v. Desierto, supra note 60 at 694-695; Posadas v. Ombudsman, G.R. No. 131492, 29 September 2000, 341 SCRA 388, 400-401.
[62] Perez v. Office of the Ombudsman, supra note 54 at 363; Presidential Commission on Good Government v. Desierto, G.R. No. 140232, 19 January 2001, 349 SCRA 767, 775.
[63] 325 Phil. 229 (1996).
[64] Ibid.
[65] Supra note 62.
[66] Ibid, borrowing the Court's language in Espinosa v. Office of the Ombudsman, G.R. No. 135775, 19 October 2000, 343 SCRA 744.
[67] Ocampo IV v. Ombudsman, supra note 61 at 730; Venus v. Desierto, supra note 60 at 695; Mamburao, Inc. v. Office of the Ombudsman, supra note 58 at 819.
[68] Ibid.
[69] The Information which was dated 23 October 1996, notably the same date the Joint Resolution was issued, was filed on 20 November 1996.
[70] The provision has been amended by Administrative Order No. 15, S. 2001, signed on 16 February 2001, to read as follows:
Section 7. Motion for Reconsideration.-
a) Only one motion for reconsideration or reinvestigation of an approved order or resolution shall be allowed, the same to be filed within five (5) days from notice thereof with the Office of the Ombudsman, or the proper Deputy Ombudsman as the case may be, with corresponding leave of court in cases where the information has already been filed in court.
b) The filing of a motion for reconsideration/reinvestigation shall not bar the filing of the corresponding information in Court on the basis of the finding of probable cause in the resolution subject of the motion.
[71] Supra note 52 at 174-175 citing Pecho v. Sandiganbayan, 238 SCRA 116 (1994).
Movant VENANCIO NAVA and AQUILINA GRANADA have to rely in good faith upon their subordinates. In the absence of any proof that they have knowledge of the irregularity committed by their subordinates they cannot be held criminally liable for having acted with reckless imprudence. In the instant case the accused could not have suspected any irregularity in the preparation of the PAL based on the ERF's (sic) as the said ERF's (sic) were certified as true copies by the responsible official in the Division Office therefore as noted by Superintendent Luceria de Leon.On 21 May 1998, the Ombudsman disapproved the recommendation of his subordinates with nary an explanation.
In short, absence of any proof to the contrary, the accused enjoys the presumption of regularity in the performance of their official duty.
WHEREFORE, premises considered, it is respectfully recommended that the Motion For Reinvestigation be GRANTED and that the case as against VENANCIO NAVA and AQUILINA GRANADA be DISMISSED for insufficiency of evidence.
Manila, Philippines, May 4, 1998.[6]
The case subject of this Petition emanated from anonymous letter-complaints[7] filed before the Office of the Ombudsman in Mindanao alleging that fake Equivalent Record Forms (ERFs) of several teachers of the Davao City National High School were made the bases for the Plantilla Allocation List (PAL) for calendar year 1988 and for the teachers' corresponding promotion and salary upgrading.[8]
The Office of the Ombudsman in Mindanao referred the matter to the NBI in Region XI (NBI-XI) and directed it to conduct a fact-finding investigation.[9] The investigation by the NBI-XI disclosed, among others, the submission by a certain Myrna Rosales-Velez of a Service Record (DECS Form No. 93) containing fabricated facts and the handing in of fake ERFs by other teachers which were the bases of the PAL approved as correct by Nava who was then the Department of Education, Culture and Sports (DECS) Regional Director for Region XI.[10] The NBI recommended the filing of appropriate charges against the teachers and officials concerned.[11]
Acting on the findings of the NBI, the Office of the Ombudsman in Mindanao, in a Joint Resolution[12] dated 23 October 1996, recommended the indictment of Nava before the Sandiganbayan for Falsification of Official Documents thru Reckless Imprudence.[13] The pertinent portions of the Joint Resolution state:
Likewise, this Office finds prima facie evidence to hold respondent DECS Regional Director Venancio Nava and Administrative Officer Aquilina Granada liable for Falsification of Official Documents thru Reckless Imprudence. Evidence on record would show that respondents Nava and Granada are liable for the charge of falsification for their act of approving and certifying as correct the Plantilla Allocation List (PAL) based on the approved Equivalent Record Forms (ERFs) of the subject teachers without verifying and scrutinizing the ERFs which turned out to be only certified copies of none-existing documents. Their defense that at their level of responsibility, it is not fair and right to expect them to be responsible for such verification as they relied and depended on the processing and verification of the subject documents to their subordinates, cannot be given credence. In fact, such admission all the more bolstered the evidence against the respondents for reckless imprudence in the performance of their official functions. Indeed respondents Nava and Granada who are holding sensitive positions, are liable for their failure to detect the falsity of the Equivalent Record Forms (ERFs) and even approved and certified correct the Plantilla Allocation List based on the fake or falsified Equivalent Record Forms. In fact, even their subordinates in the Regional Office have knowledge of the non-existence of the subject ERFs. On record is the list of DCHS teachers with approved ERFs as of 1988, submitted by Administrative Officer Rolando Suase (Records, pp. 47-48 in OMB-3-96-0462). In the said list, not one of the subject teachers appear. Moreover, a certification dated 15 January 1993, issued by Administrative Officer Edilberto Madria disclosed that based on the files of subject teachers, same do not have approved ERFs for the years 1987, 1988 and 1989 (Record, p. 61).[14]The Joint Resolution was approved by Ombudsman Aniano A. Desierto on 15 November 1996.[16]
. . . .
It is also recommended that respondents Venancio Nava and Aquilina Granada, be indicted before the Sandiganbayan for Falsification of Official Documents thru Reckless Imprudence.[15]
Thus, the filing of an Information[17] against Nava and his co-accused Granada before the Sandiganbayan on 20 November 1996. The Information was docketed as SB Criminal Case No. 23519, the accusatory portion of which reads as follows:
That during the Calendar Year 1988 and sometime prior or subsequent thereto, at Davao City, Philippines and within the jurisdiction of this Honorable Court, the said accused, both public officers, Venancio R. Nava being the DECS-XI Regional Director with salary grade 28 and Aquilina B. Granada, being the Administrative Officer of the same office; while in the performance of their official duties, thus committing an offense in relation to their office, did then and there unlawfully and feloniously through gross inexcusable negligence, certified as correct and approved without verifying and scrutinizing the Plantilla Allocation List for the Calendar Year 1988 and earlier of the Davao City High School Teachers, based on the approved Equivalent Record Forms which turned out to be photocopies of none (sic) existing Equivalent Record Forms, thereby enabling the subject teachers to be upgraded in their salary grade from Teacher I to Teacher III with corresponding salary increase as in fact same teachers were able to collect salary differentials.Nava filed before the Second Division of the Sandiganbayan a Motion for Reinvestigation[19] which was granted in a Resolution dated 22 September 1997.[20] On 4 May 1998, Special Prosecution Officer Manuel A. Corpuz (hereinafter, Special Prosecutor) recommended the dismissal of the charges against Nava and Granada for insufficiency of evidence. This recommendation was, however, disapproved by the Ombudsman.[21] Hence, the instant Petition in which Nava contends that the Ombudsman gravely erred or was "manifestly mistaken" in disapproving the recommendation of dismissal of the case against him, which disapproval, he further avers, is based on an erroneous conclusion drawn from "undisputed" facts which assumes the nature of a question of law reviewable by this Honorable Court. Petitioner cites the cases of Arias v. Sandiganbayan[22] and Magsuci v. Sandiganbayan[23] to support his stance that the case against him should have been ordered dismissed.[24]
CONTRARY TO LAW.[18]
In Arias v. Sandiganbayan,[25] the Court absolved the accused therein, who was an auditor in an engineering district, from the indictment that he conspired in the overpricing of land purchased by the government by approving the vouchers for its payment. The Court concluded, to wit:
We would be setting a bad precedent if a head of office plagued by all too common problems-dishonest or negligent subordinates, overwork, multiple assignments or positions, or plain incompetence-is suddenly swept into a conspiracy conviction simply because he did not personally examine every single detail, painstakingly trace every step from inception, and investigate the motives of every person involved in a transaction before affixing his signature as the final approving authority.[26]It further held that:
(H)eads of offices have to rely to a reasonable extent on their subordinates and on the good faith of those who prepare bids, purchase supplies, or enter into negotiations . . . There has to be some added reason why he should examine each voucher in detail. Any executive head of even small government agencies or commissions can attest to the volume of papers that must be signed. There are hundreds of documents, letters, memoranda, vouchers, and supporting papers that routinely pass through his hands. The number in bigger offices or departments is even more appalling.[27]In Magsuci v. Sandiganbayan,[28] the Court acquitted the accused therein, a regional director, of the charges that he approved the payment of a work order based on a Certificate of Completion and Accomplishment Report which turned out to be falsities, allegedly in conspiracy with the contractor and the engineer who was tasked with the duty to accomplish said certificate and report. The Court ruled in this wise:
In concluding petitioner's involvement in the conspiracy, the Sandiganbayan could only point to Magsuci's having (1) noted the Accomplishment Report and Certification submitted by Enriquez, (2) signed the disbursement voucher with the usual certification on the lawful incurrence of the expenses to be paid, and (3) co-signed four checks for the payment of P352,217.16 to Ancla. The Sandiganbayan concluded that the petitioner would not have thusly acted had he not been a party to the conspiracy.In the Comment[30] filed by the Office of the Ombudsman on behalf of the NBI, through the Office of the Special Prosecutor,[31] it was put forward that as head of office and the final approving authority of the ERFs, it behooved Nava to see to it that the supporting documents were attached to the PAL. Nava should have taken the necessary measures to verify the contents of the ERFs. Yet he did nothing other than affix his signature signifying that the ERFs were in order. His contention then that he had acted in good faith crumbles since he had known that the ERFs of the teachers did not have the supporting documents to warrant their approval and the eventual inclusion of the teachers' names in the PAL.[32]
Fairly evident, however, is the fact that the action taken by Magsuci involved the very functions he had to discharge in the performance of his official duties. There has been no intimation at all that he had foreknowledge of any irregularity committed by either or both Engr. Enriquez and Ancla. Petitioner might have indeed been lax and administratively remiss in placing too much reliance on the official reports submitted by his subordinate (Engineer Enriquez), but for conspiracy to exist, it is essential that there must be a conscious design to commit an offense. Conspiracy is not the product of negligence but of intentionality on the part of the cohorts.[29]
Corollarily, the NBI asserted that the Ombudsman did not err in not applying the principles laid down by the Court in Arias v. Sandiganbayan[33] and Magsuci v. Sandiganbayan[34] as Nava's knowledge of the infirmity of the ERFs cannot controvert the truth that he had acted in bad faith when he approved the said ERFs and thereafter the PAL.[35]
Moreover, it is discretionary on the Ombudsman whether or not to rely on the findings of fact of the investigating prosecutor in making a review of the latter's report and recommendation, as he can very well make his own findings of fact. And citing the case of Knecht, et al. v. Desierto et al.,[36] the NBI further pleaded that it is beyond the Court's ambit to review the exercise of the Ombudsman in prosecuting or dismissing a complaint filed before it.[37]
In the Comment[38] filed by the Solicitor General also on its behalf, the NBI explained that for the ERFs to be processed and approved, they must be accompanied by the teachers' service records, performance ratings, special order of bachelor's degree, transcripts of records of undergraduate course or masteral units earned, if any, and a consolidated record of training seminars and workshops attended. Had Nava exercised ordinary prudence or reasonable care or caution, he would have noticed the absence of supporting documents accompanying the ERFs. Nava's sole reliance on the certification and initials of his subordinates is indicative of a wanton attitude and gross lack of precaution.[39]
The NBI also argued that the Ombudsman, in denying the recommendation of the Special Prosecutor, committed no error in fact and in law. He merely exercised his prosecuting powers based on the constitutional mandate.[40]
Further, the NBI pointed out that the instant Petition is one for review on certiorari pursuant to Section 27 of R.A. 6770 in relation to Rule 45 of the Rules of Court, which provision of law had already been declared unconstitutional in Fabian v. Desierto[41] and reiterated in Namuhe v. Ombudsman.[42] Pursuant to the Court's ruling, appeals from orders, directives or decisions of the Ombudsman in administrative disciplinary cases should be taken to the Court of Appeals by way of a petition for review under Rule 43 of the Rules of Court. In any event, as the instant case is not an administrative disciplinary case, the proper remedy should have been a petition for certiorari under Rule 65 of the Rules of Court. However, even assuming that this remedy was pursued, since there is nothing on record to even suggest that the Ombudsman committed grave abuse of discretion in refusing to have the case against Nava dismissed, the NBI insists that the Petition must fail.[43]
Nava in his Consolidated Reply[44] stressed that the instant Petition was filed on 3 September 1998 before the promulgation of the Fabian case on 16 September 1998; and maintained that it was then his honest position that Section 27 of R.A. 6770 was available as a remedy in non-administrative cases notwithstanding its silence on the matter. In this instance, however, he posited that the Court of Appeals may likewise not take cognizance of the Petition in light of the Court's ruling in Tirol, Jr. v. Justice del Rosario,[45] that the right to appeal to the Court of Appeals granted to an aggrieved party in administrative disciplinary cases as ruled in Fabian is not available to a party aggrieved by an order and decision of the Ombudsman in criminal cases, like finding probable cause to indict accused persons. Nava implored the Court to consider the instant Petition instead as a petition for certiorari under Rule 65 of the Rules of Court as the actuations of the Ombudsman amount to a grave abuse of discretion amounting to lack or excess of its jurisdiction.[46]
We first dispose of the remedy issue raised by respondent NBI in its Comment[47] filed on its behalf by the Solicitor General. It asserted that since the instant Petition was filed pursuant to Section 27 of R.A. 6770, Nava's appeal should be taken to the Court of Appeals by way of a petition for review under Rule 43 of the Rules of Court according to Fabian. An alternative would be to file a petition for certiorari under Rule 65 of the Rules of Court to the Court as the instant case is not an administrative disciplinary case.[48]
We agree that the alternative remedy avails. Reiterating Tirol,[49] we held in Mendoza-Arce v. Office of the Ombudsman (Visayas),[50] that although as a consequence of the decision in Fabian,[51] appeals from the orders, directives, or decisions of the Ombudsman in administrative cases are now cognizable by the Court of Appeals, nevertheless in cases in which it is alleged that the Ombudsman has acted with grave abuse of discretion amounting to lack or excess of jurisdiction, a special civil action of certiorari under Rule 65 may be filed with this Court to set aside the Ombudsman's order or resolution. In Kuizon v. Desierto,[52] we held that the Court has jurisdiction over such petitions questioning resolutions or orders of the Office of the Ombudsman in criminal cases. As Nava himself beseeched the Court to consider his Petition as a petition for certiorari under Rule 65, we shall treat the same as one.
Coming now to the merits, the Petition cannot succeed.
In certiorari proceedings under Rule 65 of the Rules of Court, questions of fact are generally not permitted, the inquiry being limited essentially to whether or not the respondent tribunal had acted without or in excess of its jurisdiction or with grave abuse of discretion.[53]
Grave abuse of discretion implies a capricious and whimsical exercise of judgment tantamount to lack of jurisdiction. In other words, the exercise of power is 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 or a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.[54]
Deliberating upon the Petition and the arguments in support thereof side by side with the comments of the respondent thereon, we find that the Petition fails to show a grave abuse of discretion or any act without or in excess of jurisdiction on the part of the Ombudsman. Nava's asseveration that the Ombudsman gravely abused his discretion when he disapproved the recommendation of the Special Prosecutor urging the dismissal of the case against the petitioner and without giving any reasons therefor is specious. The Ombudsman is not duty bound to render anew a statement of facts or elaborate on the applicable law.[55] As we held in Cruz, Jr. v. People:[56]
It may seem that that the ratio decidendi of the Ombudsman's disapproval may be wanting but this is not a case of total absence of factual and legal bases nor a failure to appreciate the evidence presented. What is actually involved here is merely a review of the conclusion arrived at by the investigating prosecutor as a result of his study and analysis of the complaint, counter-affidavits, and the evidence submitted by the parties during the preliminary investigation. The Ombudsman here is not conducting anew another investigation but is merely determining the propriety and correctness of the recommendation given by the investigating prosecutor, that is, whether probable cause actually exists or not, on the basis of the findings of the latter. Verily, it is discretionary upon the Ombudsman if he will rely mainly on the findings of fact of the investigating prosecutor in making a review of the latter's report and recommendation, as the Ombudsman can very well make his own findings of fact. There is nothing to prevent him from acting one way or the other. As a matter of fact, Section 4, Rule 112 of the Rules of Court provides that "where the investigating assistant fiscal recommends the dismissal of the case but his findings are reversed by the provincial or city fiscal or the chief state prosecutor on the ground that a probable cause exists, the latter may, by himself, file the corresponding information against the respondent or direct any other assistant fiscal or state prosecutor to do so, without conducting another preliminary investigation.[57]Likewise, it cannot be said that the Ombudsman committed a grave abuse of discretion because he opined differently from the Special Prosecutor that, under the facts obtaining in the case, there is probable cause to believe that Nava is guilty of the offense charged. If the Ombudsman may dismiss a complaint outright for lack of merit, it necessarily follows that it is also within his discretion to determine whether the evidence before him is sufficient to establish probable cause.[58] In case of conflict between the conclusion of the Ombudsman and the Special Prosecutor, the former's decision shall prevail since the Office of the Special Prosecutor is under the supervision and control of the Ombudsman.[59]
The Ombudsman's act of disapproving the recommendation of the Special Prosecutor to dismiss the case against Nava was not whimsical or capricious. He disapproved the recommendation of the Special Prosecutor because in his estimation, there was sufficient evidence to indict the accused. This was an exercise of the powers of the Ombudsman based on constitutional mandate and the courts should not interfere in such exercise.
Congruently with the rule that criminal prosecutions may not be restrained, either through a preliminary or final injunction or a writ of prohibition, the Court ordinarily does not interfere with the Ombudsman's exercise of discretion in determining whether there exists a reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof, and thereafter in filing the corresponding information with the appropriate courts,[60] save for the following instances:
(1) To afford adequate protection to the constitutional rights of the accused;The Court has consistently refrained from interfering with the constitutionally mandated investigatory and prosecutorial powers of the Ombudsman absent any compelling reason.[62] In Alba v. Nitorreda,[63] we have held that:
(2) When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions;
(3) When there is a pre-judicial question which is sub-judice;
(4) When the acts of the officer are without or in excess of authority;
(5) Where the prosecution is under an invalid law, ordinance or regulation;
(6) When double jeopardy is clearly apparent;
(7) Where the court has no jurisdiction over the offense;
(8) Where it is a case of persecution rather than prosecution;
(9) Where the charges are manifestly false and motivated by lust for vengeance;
(10) When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied;
(11) Preliminary injunction has been issued by the Supreme Court to prevent the threatened unlawful arrest of the petitioners.[61]
It is beyond the ambit of this Court to review the exercise of discretion of the Ombudsman in prosecuting or dismissing a complaint filed 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.[64]While in the case of Presidential Commission on Good Government v. Desierto,[65] we reiterated:
The prosecution of offenses committed by public officers is vested in the Office of the Ombudsman. To insulate the Office from outside pressure and improper influence, the Constitution as well as R.A. 6770 has endowed it with a wide latitude of investigatory and prosecutory powers virtually free from legislative, executive or judicial intervention. This Court consistently refrains from interfering with the exercise of its powers, and respects the initiative and independence inherent in the Ombudsman who, "beholden to no one, acts as the champion of the people and the preserver of the integrity of public service."[66]This policy of non-interference is not only based on constitutional and statutory considerations but upon practicality as well. Otherwise, the functions of the courts would 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 could 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.[67]
Further, it needs repeating that while it is the Ombudsman who has the full discretion to determine whether or not a criminal case should be filed in the Sandiganbayan, once the case has been filed with said court, it is the Sandiganbayan, and no longer the Ombudsman, which has full control of the case so much so that the Information may not be dismissed without the approval of said court.[68]
Next, Nava contends that he was not accorded the opportunity to file a motion for reconsideration within five (5) days from receipt thereof and before the filing of the Information[69] in violation of Section 7 of Administrative Order No. 7, as amended by Administrative Order No. 9, which provides that:
Sec. 7. Motion for Reconsideration.We find that the issue not of momentous legal significance for non-compliance with Section 7 of Administrative Order No. 7 does not affect the validity of the Information filed with the Sandiganbayan. An aggrieved party's motion for reconsideration or reinvestigation may nevertheless be filed and acted upon by the Ombudsman if so directed by the court where the information was filed such as what had taken place in this case.[71]
a) Only one motion for reconsideration or reinvestigation of an approved order or resolution shall be allowed; the same to be filed with the Office of the Ombudsman, or of the Deputy Ombudsman as the case may be, within an inextendible period of five (5) days from notice thereof.
b) No motion for reconsideration or reinvestigation shall be entertained after the information shall have been filed in court, except upon order of the court wherein the case was filed.[70]
Finally, reliance on the cases of Arias and Magsuci cannot be countenanced as they are not on all fours with the present Petition. In both cases, trial on the merits had already been held, as in fact the judgment of conviction was challenged in the petition, and therefore the Court had the opportunity to appreciate the evidentiary matters which came out of the trial. On the other hand, Nava's allegations in the case involve evidentiary issues which could be resolved only in a full-blown trial and not presently in this Petition.
ACCORDINGLY, the instant Petition is DISMISSED. Costs against petitioner.
SO ORDERED.
Puno, Austria-Martinez, Callejo, Sr., and Chico-Nazario, JJ., concur.
[1] Dated 1 September 1998; Rollo, pp. 13-75 with annexes.
[2] SEC. 27. Effectivity and Finality of Decisions. -
. . . .
In all administrative disciplinary cases, orders, directives, or decisions of the Office of the Ombudsman may be appealed to the Supreme Court by filing a petition for certiorari within ten (10) days from receipt of the written notice of the order, directive or decision or denial of the motion for reconsideration in accordance with Rule 45 of the Rules of Court.
[3] See Rollo, p. 75.
[4] Id. at 72-75; Dated 4 May 1998; Penned by Special Prosecutor II Manuel A. Corpuz and concurred in by Director Victorio U. Tabanguil (Prosecution Bureau), Deputy Special Prosecutor Robert E. Kallos and Special Prosecutor Leonardo P. Tamayo.
[5] Id. at 61-71; Dated 6 May 1997.
[6] Id. at 74-75.
[7] Id. at 30-34.
[8] Id. at 50-51, 72.
[9] Id. at 51.
[10] Id. at 47; The NBI Report reads in part:
CONCLUSION/RECOMMENDATION - Based on documentary evidence on hand we find:
57. NAVA committed FALSIFICATION OF OFFICIAL DOCUMENTS under paragraph 4 of Article 171 of the Revised Penal Code through reckless imprudence (Sarep v. Sandiganbayan, G.R. 68203, 9.13.89) when he approved the Plantilla Allocation List of approved ERFs for CY 1988 of eighty-three (83) secondary school teachers of Davao City High School and other schools in the Region, insofar as the proposed upgrading of Bisnar/Deño/Hofileña/Lim/Manlod/Mumar/Perez and Velez are concerned without verifying the existence of their original ERFs. By such act he caused undue injury to the Government through gross inexcusable negligence in violation of Section 3(e) of Republic Act No. 3019. (Gross negligence is negligence characterized by want of even slight care, acting or omiting (sic) to act in a situation where there is a duty to act, not inadvertently but wilfully and intentionally with a conscious indifference to consequences insofar as other persons may be affected. It is omission of that care which even inattentive and thoughtless men never fail to take on their own property (Alejandro v. People, G.R. 81031, 2.20.89). Purusant (sic) to Circular Letter 84-4 NAVA is personally liable for the illegal disbursement of funds to Subject 12 teachers. Administratively, NAVA is liable for gross neglect of duty, falsification of official documents and conduct grossly prejudicial to the best interest of the service, paragraphs (b), (f), and (t), respectively, of Section 23 of Rule XIV of the Civil Service Law (E.O. 292).
[11] Id. at 101.
[12] Id. at 49-60; in OMB-MIN-93-0454, OMB-3-93-3219, and OMB-3-96-0462.
[13] Id. at 57.
[14] Id. at 54-55.
[15] Id. at 57.
[16] Id. at 58.
[17] Dated 23 October 1996; Id. at 59-60.
[18] Id. at 59.
[19] Id. at 61-71; Dated 6 May 1997.
[20] Id. at 18-19 and 101.
[21] Id. at 101.
[22] G.R. Nos. 81563 and 82512, 19 December 1989, 180 SCRA 309.
[23] 310 Phil. 14 (1995).
[24] Rollo, pp. 20, and 102.
[25] Supra note 22.
[26] Id. at 315-316.
[27] Id. at 316.
[28] Supra note 23.
[29] Id. at 19-20.
[30] Rollo, pp. 109-127 with annexes.
[31] Penned by Special Prosecutor Leonardo Tamayo, Deputy Special Prosecutor Robert E. Kallos, ASAB Director Carlos D. Montemayor, Special Prosecution Officer II Pilarita T. Lapitan; Noticeably, the Office of the Special Prosecutor made a turnaround from its previous position supporting the dismissal of the case against Nava.
[32] Id. at 116.
[33] Supra note 22.
[34] Supra note 23.
[35] Rollo, pp. 116-117.
[36] 353 Phil. 494 (1998).
[37] Rollo, p. 118.
[38] Id. at 99-107.
[39] Id. at 103.
[40] Id. at 104.
[41] 356 Phil. 787 (1998).
[42] 358 Phil. 782 (1998).
[43] Rollo, pp. 106-107.
[44] Id. at 144-152.
[45] 376 Phil. 115 (1999).
[46] Rollo, pp. 150-151.
[47] Id. at 99-107.
[48] Id. at 105.
[49] Supra note 45.
[50] 430 Phil. 101, 112 (2002); See Perez v. Office of the Ombudsman, G.R. No. 131445, 27 May 2004, 429 SCRA 357, 360.
[51] Supra note 41.
[52] G.R. Nos. 140619-24, 9 March 2001, 354 SCRA 158, 172.
[53] Zagada v. Civil Service Commission, G.R. No. 99302, 27 November 1992, 216 SCRA 114, 118.
[54] Perez v. Office of the Ombudsman, supra note 50 at 361-362.
[55] Kuizon v. Desierto, supra note 52 at 177.
[56] G.R. No. 110436, 27 June 1994, 233 SCRA 439.
[57] Id. at 450-451.
[58] Mamburao, Inc. v. Office of the Ombudsman, G.R. Nos. 139141-42, 15 November 2000, 344 SCRA 805, 818.
[59] Kuizon v. Desierto, supra note 52 at 178.
[60] Venus v. Desierto, 358 Phil. 675, 694 (1998).
[61] Ocampo, IV v. Ombudsman, G.R. Nos. 103446-47, 30 August 1993, 225 SCRA 725, 729; Venus v. Desierto, supra note 60 at 694-695; Posadas v. Ombudsman, G.R. No. 131492, 29 September 2000, 341 SCRA 388, 400-401.
[62] Perez v. Office of the Ombudsman, supra note 54 at 363; Presidential Commission on Good Government v. Desierto, G.R. No. 140232, 19 January 2001, 349 SCRA 767, 775.
[63] 325 Phil. 229 (1996).
[64] Ibid.
[65] Supra note 62.
[66] Ibid, borrowing the Court's language in Espinosa v. Office of the Ombudsman, G.R. No. 135775, 19 October 2000, 343 SCRA 744.
[67] Ocampo IV v. Ombudsman, supra note 61 at 730; Venus v. Desierto, supra note 60 at 695; Mamburao, Inc. v. Office of the Ombudsman, supra note 58 at 819.
[68] Ibid.
[69] The Information which was dated 23 October 1996, notably the same date the Joint Resolution was issued, was filed on 20 November 1996.
[70] The provision has been amended by Administrative Order No. 15, S. 2001, signed on 16 February 2001, to read as follows:
Section 7. Motion for Reconsideration.-
a) Only one motion for reconsideration or reinvestigation of an approved order or resolution shall be allowed, the same to be filed within five (5) days from notice thereof with the Office of the Ombudsman, or the proper Deputy Ombudsman as the case may be, with corresponding leave of court in cases where the information has already been filed in court.
b) The filing of a motion for reconsideration/reinvestigation shall not bar the filing of the corresponding information in Court on the basis of the finding of probable cause in the resolution subject of the motion.
[71] Supra note 52 at 174-175 citing Pecho v. Sandiganbayan, 238 SCRA 116 (1994).