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FIRST DIVISION

G.R. No. 114944 - June 19, 2001

MANUEL C. ROXAS and AHMED S. NACPIL, petitioners, v. HON. CONRADO M. VASQUEZ, Ombudsman and JOSE DE FERRER, Deputy Special Prosecutor, and the HONORABLE SANDIGANBAYAN, respondents.

YNARES-SANTIAGO, J.:

The instant petition for certiorari and prohibition seeks to set aside the Orders of the Ombudsman dated October 19, 19931 and February 10, 1994,2 insofar as they found probable cause to charge petitioners Police General Manuel C. Roxas and Police Colonel Ahmed S. Nacpil for violation of Section 3 (e) of the Anti-Graft and Corrupt Practices Act; and to prohibit respondents from trying petitioners in Criminal Case No. 18956 before the Sandiganbayan.

Petitioners Roxas and Nacpil were Chairman and Member, respectively, of the Bids and Awards Committee of the PC-INP. The other Members of the Committee were:

F/Brig. Gen. Mario C. Tanchanco

F/Brig. Gen. Diosdado B. Codoy

P/Lt. Col. Juhan A. Kairan

P/Lt. Col. Concordio Apolonio

P/Maj. Reynold E. Osia

Sometime in September 1990, the PC-INP invited bids for the supply purchase of sixty five (65) units of fire trucks. Accordingly, the public bidding was held on September 14, 1990, where the following suppliers submitted their respective bids, to wit:

Supplier

Bid Price

1. Aeolus Phil.

P 1,218,240.00

2. V.G. Roxas Enterprises

1,720,764.00

3 CISC

1,943,549.64

4. Tahei Co., Ltd.

2,292,784.00

5. Viceroy Const. Comm'l Corp.

2,385,775.00

6. Sumitomo Corp.

2,521,730.00

7. Worldtrade Inter NW

2,700,000.00

8. Accumetrix

2,844,844.20

9. Comm'l Mfr. Corp.

2,985,000.00

10. Asianet Tech

3,012,606.00

11. Philipps Associate

3,016,348.303

The lowest bidder, Aeolus Philippines, was disqualified since its fire trucks had a water tank capacity of only 1,800 liters, far below the required 3,785 liter capacity.

After the opening of the bids, Director General Cesar Nazareno created a Technical Evaluation Committee composed of four members, headed by Gen. Mario C. Tanchanco, to conduct ocular inspections of the overseas plant facilities and equipment of the five qualified lowest bidders. On December 4, 1990, the Technical Committee submitted its report to General Nazareno, rating the quality of the inspected fire trucks based on the ranking of their respective companies from the lowest to the highest bidder as follows:

1. Toyota Morita

2. Ssangyong

3. Nikki-Hino

4. Morita-Isuzu

On December 18, 1990, the Bids and Awards Committee came up with its own listing of lowest bidders whose offered fire trucks met with the agency's minimum requirements, as follows:

1. V.G. Roxas Enterprises (Kanglim)

2. CISC (Ssangyong)

3. Taihei Corp. (Nikki/Hino)

4. Sumitomo Corp. (Isuzu Morita)

On December 20, 1990, Gen. Tanchanco submitted his Inspection Findings4 to Gen. Nazareno, recommending only two fire trucks, namely Morita Isuzu and Nikki-Hino.

On the other hand, on December 28, 1990, the Bids and Awards Committee voted to award the contract in favor of the Korean company CISC, which offered Ssangyong fire trucks.5 On January 2, 1991, it submitted its recommendation to Gen. Nazareno for the procurement of Ssangyong fire trucks.6

Gen. Nazareno, however, as approving authority, refused to act on the recommendation and, instead, created a Review Committee with Gen. Flores as Chairman. Gen. Tanchanco also submitted his Inspection Findings to this Review Committee, reiterating his recommendation of the Morita Isuzu and Nikki-Hino fire trucks.

On March 21, 1991, Gen. Flores submitted his Memorandum to Gen. Nazareno, stating that the action of the Bids and Awards Committee resulted in a failure to bid.7 Accordingly, Gen. Nazareno ordered the Bids and Awards Committee to review its recommendations and consider the findings of the Review Committee.

In compliance with the directive, the Bids and Awards Committee limited its choice to the two brands recommended by Gen. Tanchanco and, by majority vote, elected Nikki-Hino of the Tahei Co., Ltd. as the lower bidder. Thus, the Bids and Awards Committed submitted its Memorandum to Gen. Nazareno dated May 9, 1991, embodying the aforesaid recommendation.8

Thereafter, the Contract of Purchase and Sale of sixty-five units of Nikki-Hino fire trucks was executed between Gen. Nazareno, on behalf of the PC-INP, and Tahei Company, Ltd. The corresponding Purchase Order was then prepared with the following signatories:

1. Col. Nicasio Custodio, Chief, PNP Logistics Support Command

2. Major Obedio Espeña, Acting Chief, PNP Procurement Center

3. General Cesar Nazareno, Director General, PNP

4. Luis Santos, Secretary, DILG

Pursuant to a disbursement voucher signed by Custodio, Espeña and Gen. Nazareno, together with the PNP Chief Accountant, Generosa Ramirez, the PNP paid Tahei Co., Ltd. the amount of P167,335,177.24, representing marginal deposit for the sixty-five units of fire truck. The Disbursement Voucher showed that, while the bid price of Tahei Co., Ltd. was only P2,292,784.00 per unit, the price appearing on the Purchase Order was P2,585,562.00 per unit. Hence, there was a discrepancy of P292,778.00 per unit of fire truck, or a total of P19,030,570.00 for all the sixty-five fire trucks.

The Commission on Audit discovered the irregularities in the bidding, awarding and purchase of the sixty five fire trucks, thus prompting then DILG Secretary Rafael Alunan III to file a complaint on February 12, 1993 for violation of Section 3 (e) of Republic Act No. 3019 before the Ombudsman, against the following:

1. Dir. Gen. Cesar Nazareno, PNP

2. Dep. Dir. Manuel Roxas, PNP

3. Fire Marshal Mario Tanchanco

4. Fire B/Gen. Diosdado Godoy (Ret.)

5. P/Sr. Supt. Ahmed Nacpil, PNP

6. P/Supt. Juhan Kairan, PNP

7. CInsp. Reynaldo Osea, PNP

8. Dep. Dir. Gen. Gerardo Flores, PNP

9. Dir. Nicasio Custodio, PNP

10. Supt. Obedio Espeña, PNP

11. Former DILG Secretary Luis Santos

12. Ms. Generosa Ramirez

The Deputy Ombudsman for the Military conducted a preliminary investigation where respondents submitted their respective counter-affidavits. On March 19, 1993, it recommended the indictment of all respondents, except Generosa Ramirez.9

On review, the Office of the Special Prosecutor Review Committee recommended the dismissal of the complaints against Manuel Roxas, Ahmed Nacpil, Diosdado Codoy, Juhan Kairan and Generosa Ramirez.10 This latter recommendation was approved by the Special Prosecutor and the Ombudsman in a Memorandum dated April 15, 1993.

Accordingly, the appropriate Information was filed by the Ombudsman before the Sandiganbayan, where it was docketed as Criminal Case No. 18956, against Cesar Nazareno, Gerardo Flores, Mario Tanchanco, Nicasio Custodio, Reynold Osia, Obedeo Espena and Luis Santos.11 Roxas, Nacpil, Codoy, Kairan and Ramirez were not included among the accused.

However, upon motion of Generals Flores and Tanchanco, a reinvestigation was conducted by the Office of the Special Prosecutor. On October 19, 1993, without any notice to or participation of petitioners, the Office of the Special Prosecutor issued the first assailed Order, dismissing the charges against Flores and Tanchanco, and recommending that Gen. Manuel Roxas, P/Lt. Col. Ahmed Nacpil, P/Lt. Col. Julian Kairan be likewise indicted. Deputy Special Prosecutor Jose de Ferrer voted for the approval of the recommendation, while Special Prosecutor Aniano A. Desierto dissented. Ombudsman Conrado M. Vasquez approved the recommendation.

Petitioners Roxas and Nacpil, together with Kairan, filed a Motion for Reconsideration. The Review Committee of the Office of the Special Prosecutor recommended that the Motion be granted and the charge against the movants be dismissed. However, Deputy Special Prosecutor de Ferrer and Ombudsman Vasquez disapproved the recommendation in the second assailed Order dated February 10, 1994.

Thus, on March 27, 1994, the Office of the Ombudsman filed an Amended Information with respondent Sandiganbayan,12 impleading petitioners as additional accused.

Hence, the instant petition anchored upon the following grounds:

RESPONDENTS OMBUDSMAN VASQUEZ AND DSP DE FERRER ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN HOLDING, ON REINVESTIGATION, PETITIONERS LIABLE FOR ALLEGED CRIMINAL VIOLATION OF SECTION 3 (E) OF THE ANTI-GRAFT & CORRUPT PRACTICES ACT CONSIDERING THAT:

A. THE ORDERS, ANNEXES "A" AND "A-1" FATALLY SUFFER FROM PROCEDURAL INFIRMITIES IN THAT:

1. THE ORDER DATED 15 APRIL 1993 DISMISSING THE CHARGE AGAINST PETITIONERS HAD LONG BECOME FINAL. HENCE, IT COULD NO LONGER BE RE-OPENED ON REINVESTIGATION SOUGHT BY GENERALS FLORES, TANCHANCO AND THE OTHER ACCUSED.

2. RESPONDENT OMBUDSMAN VASQUEZ AND THE OSP HAD LOST JURISDICTION OVER PETITIONERS UPON ITS DISMISSAL ORDER DROPPING THE CHARGES AGAINST THEM FOR INSUFFICIENCY OF EVIDENCE.

3. ON REINVESTIGATION, NO NEW MATTER OR EVIDENCE WAS PRESENTED BY GENERALS FLORES, TANCHANCO AND THE OTHER ACCUSED TO WARRANT RESPONDENT OMBUDSMAN'S REVERSAL OF ITS EARLIER ORDER DISMISSING THE CHARGE AGAINST PETITIONERS.

4. PETITIONERS' INDICTMENT, ON REINVESTIGATION, WAS WITHOUT NOTICE NOR PARTICIPATION OF PETITIONERS, HENCE, NULL AND VOID FOR BEING VIOLATIVE OF THEIR CONSTITUTIONAL RIGHT TO DUE PROCESS.

B. IN ANY EVENT, THERE EXISTS NO PROBABLE CAUSE AGAINST PETITIONERS FOR VIOLATION OF SECTION 3 (E) OF THE ANTI-GRAFT & CORRUPT PRACTICES ACT.13

Petitioners invoke Rule II, Section 7 of the Rules of Procedure of the Office of the Ombudsman, which provides that Motions for Reconsideration or Reinvestigation against approved Orders or Resolutions must be filed within fifteen (15) days from notice of the same.14 They argue that no such Motion for Reconsideration or Reinvestigation was filed by any of the complainants, namely, the DILG, the Commission on Audit or the PNP, of the April 15, 1993 Memorandum which dismissed the charges against them for insufficient evidence. Indeed, no such Motion for Reconsideration or Reinvestigation had ever been filed to date.

Petitioners further allege that while some of the accused in Criminal Case No. 18956 filed Motions for Reinvestigation, none of the said Motions questioned the dismissal of the charges against them. Hence, petitioners argue that the dismissal had become final and could no longer be opened during reinvestigation.

In criminal prosecutions, a reinvestigation, like an appeal, renders the entire case open for review. It matters not that the complainants did not seek a reinvestigation or reconsideration of the dismissal of the charges against petitioners. Consistent with its independence as protector of the people15 and as prosecutor to ensure accountability of public officers, the Ombudsman is not and should not be limited in its review by the action or inaction of complainants. On the other hand, it is clear from Section 15 of R.A. 6770 that the Ombudsman may motu proprio conduct a reinvestigation to assure that the guilty do not go unpunished.

Likewise, petitioners' insistence that the Ombudsman and the Sandiganbayan had lost jurisdiction over them after the initial dismissal of the charges against them is untenable. In the case of Abdula v. Guiani,16 this Court held:

With respect to the allegation that the respondent had no legal authority to order a reinvestigation of the criminal charge considering that the said charge had been previously dismissed as against them, we hold that respondent did not abuse his discretion in doing so.17

It is not material either that no new matter or evidence was presented during the reinvestigation of the case. It should be stressed that reinvestigation, as the word itself implies, is merely a repeat investigation of the case. New matters or evidence are not prerequisites for a reinvestigation, which is simply a chance for the prosecutor, or in this case the Office of the Ombudsman, to review and re-evaluate its findings and the evidence already submitted.

Neither do the lack of notice to, or participation of, petitioners at the reinvestigation render the questioned issuances of respondent Office of the Ombudsman null and void. This was firmly settled in the recent case of Espinosa v. Office of the Ombudsman,18 where we held as follows --

xxx. And even without such notice, we agree with the observations of the Sandiganbayan that "under the Rules of Procedures of the Office of the Ombudsman [Administrative Order No. 07], particularly Sec. 7, in relation to Sec. 4, while complainants in preliminary investigation before the Ombudsman actively participated therein, their participation is no longer accorded to them as a matter of right in the stage of the reinvestigation." In administrative proceedings, moreover, technical rules of procedure and evidence are not strictly applied; administrative due process cannot be fully equated with due process in its strict judicial sense.19 (italics ours)

At any rate, petitioners cannot argue that they have been deprived of due process. The rule is well established that due process is satisfied when the parties are afforded fair and reasonable opportunity to explain their side of the controversy or an opportunity to move for a reconsideration of the action or ruling complained of.20 In the case at bar, the record clearly shows that petitioners not only filed their respective Counter-Affidavits21 during the preliminary investigation, they also filed separate Motions for Reconsideration22 of the October 19, 1993 Order of the Ombudsman impleading them as accused in Criminal Case No. 18956.

Finally, this Court's consistent policy has been to maintain non-interference in the determination of the Ombudsman of the existence of probable cause, provided there is no grave abuse in the exercise of such discretion. This observed policy is based not only on 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 Court will be seriously 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 with cases 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.23

A careful review of the records fail to show any abuse of discretion on the part of the Ombudsman sufficient for us to interfere in the latter's investigatory and prosecutory functions.

WHEREFORE, in view of all the foregoing, the instant petition is DISMISSED.

SO ORDERED.

Davide, Jr., C.J. (Chairman), Puno, Kapunan and Pardo, JJ., concur.



Endnotes:

1 Rollo, pp. 56-70.

2 Ibid., pp. 71-72.

3 Id., pp. 73-74.

4 Id., pp. 75-76.

5 Id., pp. 77-78.

6 Id., pp. 79-80.

7 Id., pp. 81-82.

8 Id., p. 94.

9 Record, Vol. I, pp. 4-20.

10 Ibid., pp. 21-34.

11 Id., pp. 1-3.

12 Ibid., Vol. I-A, pp. 467-469.

13 Rollo, pp. 26-27.

14 Sec. 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 fifteen (15) days from notice thereof with the Office of the Ombudsman, or the Deputy Ombudsman as the case may be.

(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.

15 CONSTITUTION, Art. XI, Sec. 12.

16 G.R. No. 118821, 18 February 2000.

17 Citing Placer v. Villanueva, 126 SCRA 463, at 471 [1983].

18 G.R. No. 135775, 19 October 2000.

19 Citing Ocampo IV v. Office of the Ombudsman, 225 SCRA 725 [1993].

20 Factoran, Jr. v. Court of Appeals, 320 SCRA 530 [1999].

21 Rollo, pp. 107-122.

22 Ibid., pp. 141-155.

23 Tirol v. Commission on Audit, G.R. No. 133954, 3 August 2000.23




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iting Placer v. Villanueva, 126 SCRA 463, at 471 [1983].

18 G.R. No. 135775, 19 October 2000.

19 Citing Ocampo IV v. Office of the Ombudsman, 225 SCRA 725 [1993].

20 Factoran, Jr. v. Court of Appeals, 320 SCRA 530 [1999].

21 Rollo, pp. 107-122.

22 Ibid., pp. 141-155.

23 Tirol v. Commission on Audit, G.R. No. 133954, 3 August 2000.23




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