G.R. Nos. 140619-24 - March 9, 2001
BENEDICTO E. KUIZON, JOSELITO RANIERO J. DAAN AND ROSALINA T. TOLIBAS, petitioners, v. HON. ANIANO A. DESIERTO, in his capacity as OMBUDSMAN and the HON. SANDIGANBAYAN (FOURTH DIVISION), respondents.
This is a petition for certiorari under Rule 65 of the Rules of Court filed by incumbent Municipal Mayor of Bato, Leyte, Benedicto E. Kuizon, Joselito Raniero J. Daan and Rosalina T. Tolibas to set aside the approval by the respondent Ombudsman Aniano A. Desierto of the Memorandum dated May 17, 1999 of Paul Elmer M. Clemente of the Office of the Chief Legal Counsel, Office of the Ombudsman, recommending the prosecution of herein petitioners.
The cases subject of this petition emanated from a complaint1 filed on December 8, 1995 by one Melanio Saporas with the Office of the Ombudsman-Visayas (OMB-Visayas) against petitioner Benedicto Kuizon for Nepotism and Malversation Thru Falsification of Public Documents in connection with the forging of signatures of some casual laborers of Bato, Leyte in the payroll slips of the municipality and the drawing of their salaries on different dates. The case was docketed as OMB-VIS-CRIM-95-0646.
Attached to Saporas' complaint is the affidavit of one Zacarias Kuizon who claimed to have been formerly hired by petitioner Kuizon as a laborer at Bato, Leyte. Petitioner Kuizon allegedly had already dispensed with the services of Zacarias for the month of February, 1995 but the latter's signature was forged in the payroll for the said month and somebody took his salary in the amount of P890.00 for that period.2
In an Evaluation Report dated December 19, 1995, June L. Iway, Graft Investigation Officer I of the OMB-Visayas, recommended that petitioners Rosalina T. Tolibas and Joselito Raniero J. Daan, Paymaster/Municipal Treasurer and Timekeeper, respectively, should be included in the complaint as respondents.
In an Order dated December 19, 1995, petitioners were ordered to file their counter-affidavits. On February 20, 1996, petitioners submitted their Answer with Special Affirmative Defenses,3 attaching therewith the counter-affidavits of petitioners Daan and Tolibas4 as well as the affidavits of several witnesses5 to rebut the accusations of Saporas and Zacarias Kuizon.
Meanwhile on November 15, 1995, Saporas filed another complaint against petitioners with the Office of the Ombudsman, Manila docketed as OMB-2-96-0049. The complaint was referred to the Office of the Deputy Ombudsman for the Visayas in an Indorsement dated January 29, 1996. On March 21, 1996, petitioners were required to file their respective counter-affidavits. On April 22, 1996, petitioner Kuizon, assisted by Atty. Leo-Giron, filed his counter-affidavit,6 attaching therewith the counter-affidavits of petitioners Tolibas and Daan. OMB-Visayas granted petitioners' Motion for Consolidation of Cases and Setting of Hearing of the two (2) complaints.
On May 28, 1996, complainant Saporas submitted the affidavits of Ceferino Cedejana7 and Concordio Cedejana8 in support of his allegations in OMB-2-96-0049. Both Ceferino and Concordio made virtually similar allegations as those made by Zacarias except the amounts representing their salaries for the month of February, 1995 which are P2,136.00 and P1,157.00, respectively.
Petitioners filed a Motion to Exclude the Affidavits of Ceferino and Concordio9 which was denied in an Order dated July 8, 1996. They filed their supplemental counter-affidavit on July 26, 1996 in compliance with the order requiring them to do so. On separate dates, petitioners filed their Joint Position Paper10 and Joint Supplemental Memorandum.11
On June 20, 1997, OMB-Visayas thru Graft Investigation Officer I Samuel Malazarte issued a Resolution12 in OMB-VIS-CRIM-95-0646 and OMB-2-96-0049 recommending the filing of the Informations for Malversation and Falsification of Public/Official Document on two (2) counts each against all the petitioners before the Sandiganbayan. GIO Malazarte recommended however the dismissal of the complaint for nepotism against petitioner Kuizon. The pertinent portion of the said Resolution states:
The Resolution was approved by the respondent Ombudsman Aniano A. Desierto on September 5, 1997.
Petitioners learned that four (4) Informations dated June 20, 1997 were filed against them on September 16, 1997 with the Sandiganbayan14 by the Office of the Ombudsman.15 The cases were docketed as Criminal Case Nos. 2416716 and 2416917 for Falsification of Public/Official Document and Criminal Case Nos. 2416818 and 2417019 for Malversation of Public Funds.
On October 22, 1996, Saporas filed with the OMB-Visayas another Affidavit-Complaint20 for Malversation of Public Funds Thru Falsification of Public Documents and violation of R.A. No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act against herein petitioners and three others, namely, Municipal Treasurer Lolita S. Regana, Municipal Accountant Ofelia F. Boroy and Budget Officer Glafica R. Suico for alleged connivance in including in the payrolls for the construction of the municipal building of Bato, Leyte, names of workers whose services were already terminated, making it appear that they still worked and received salaries even after their termination from service. The affidavits of Andres Soso Pague21 and Danilo Cortes22 were attached to the said complaint which was docketed as OMB-VIS-CRIM-96-1173 and OMB-VIS-ADM-96-0474.
Only petitioner Daan filed his counter-affidavit in OMB-VIS-CRIM-96-1173.23 Petitioners Kuizon and Tolibas as well as the three (3) other respondents therein, namely, Regana, Boroy and Suico filed an Answer/Counter-Affidavits/Manifestation in OMB-VIS-ADM-96-047424 as shown in the caption of their pleading. Attached therewith were the affidavits of petitioners' witnesses Felipe Cortez25 , Melquiades Jupista, Alberto Gerongco, Noel Umapas,26 Jhonny Mariño, Ricardo Garao, Savino Kuizon,27 Domingo Echevarre,28 Alfonso Tabale, Alberto Gerongco, Romeo Marino, Vicente Marino29 and Marciano Bohol.30
On July 28, 1997, OMB-Visayas thru Graft Investigation Officer I Venerando Ralph P. Santiago, Jr. issued a Resolution31 in OMB-VIS-CRIM-96-1173 finding sufficient grounds to hold petitioners for trial for Malversation of Public Funds and Falsification of Public Documents. The Resolution reads in part, thus:
The Resolution was approved by the respondent Ombudsman Aniano A. Desierto on September 19, 1997.
Upon verification, the petitioners learned that two (2) Informations33 both dated July 28, 1997 were filed against them in September, 1997 by the Office of the Ombudsman with the Sandiganbayan.34 The cases were docketed as Criminal Case Nos. 24195 for Malversation of Public Funds and 24196 for Falsification of Public Documents.
Petitioners filed two (2) separate Motions for Reinvestigation35 both dated October 4, 1997 in Criminal Case Nos. 24167 to 24170 and Criminal Case Nos. 24195 to 24196. Petitioners likewise filed a Motion for Consolidation of Criminal Case Nos. 24195 and 24196 with the four (4) other cases which was granted by the Sandiganbayan (Third Division) in its Order36 dated October 30, 1997.
In an Order dated November 24, 1997,37 the Sandiganbayan (Fourth Division) granted the two (2) Motions for Reinvestigation filed by the petitioners. On June 10, 1999, Special Prosecution Officer II Lemuel M. De Guzman filed a Manifestation38 with the Sandiganbayan which reads as follows:
Thereafter, the Sandiganbayan set the criminal cases for hearing on August 16, 18 to 20, 1999. Petitioner Daan filed with the Sandiganbayan an Urgent Motion for Reinvestigation and to Defer Arraignment40 dated August 12, 1999. In an Order dated August 16, 1999, the motion was denied by the Sandiganbayan.41 Petitioners were arraigned on the same date and they all pleaded "not guilty" to the crimes charged.42 The pre-trial and the trial on the merits were then set upon agreement of the parties.
On September 6, 1999, petitioners filed a petition before the Court of Appeals captioned "Benedicto E. Kuizon, et al. vs. Hon. Aniano A. Desierto, et al." and docketed as CA-G.R. SP No. 54898, assailing the approval by the respondent Aniano A. Desierto of the Memorandum of his Legal Counsel which recommended the continued prosecution of the petitioners. The Court of Appeals issued a temporary restraining order in a Resolution dated September 17, 1999. On even date, petitioners filed a Motion for Suspension of Proceedings and/or Postponement with the Sandiganbayan.
On October 19, 1999, the Court of Appeals promulgated a Resolution43 which states:
On November 4, 1999, petitioners filed the instant petition based on the following grounds:
On December 1, 1999, this Court issued a Status Quo Order.
We will first dispose of the procedural issues raised by the parties. Respondent alleges that the petition was filed out of time considering that more than sixty (60) days had elapsed from the time respondent Sandiganbayan's Order dated August 16, 1999 denying petitioners' Motion to Defer Arraignment and petitioner Daan's Urgent Motion for Reinvestigation and to Defer Arraignment was rendered. The erroneous filing by the petitioners of their petition with the Court of Appeals did not allegedly toll the running of the period to file the same with this Court.49 In reply thereto, petitioners submit that the 60-day period should not be strictly applied to them considering that they originally filed their petition with the Court of Appeals within the prescribed period. They maintain that the Court of Appeals has concurrent jurisdiction with this Court on special civil actions for certiorari under Rule 65 applying the doctrine in St. Martin Funeral Homes vs. National Labor Relations Commission.50 Petitioners now raise the issue as to which court has jurisdiction over petitions for certiorari under Rule 65 questioning resolutions or orders of the Office of the Ombudsman in criminal cases.51
In dismissing petitioners' petition for lack of jurisdiction, the Court of Appeals cited the case of Fabian vs. Desierto.52 The appellate court correctly ruled that its jurisdiction extends only to decisions of the Office of the Ombudsman in administrative cases.53 In the Fabian case, we ruled that appeals from decisions of the Office of the Ombudsman in administrative disciplinary cases should be taken to the Court of Appeals under Rule 43 of the 1997 Rules of Civil Procedure. It bears stressing that when we declared Section 27 of Republic Act No. 677054 as unconstitutional, we categorically stated that said provision is involved only whenever an appeal by certiorari under Rule 45 is taken from a decision in an administrative disciplinary action. It cannot be taken into account where an original action for certiorari under Rule 65 is resorted to as a remedy for judicial review, such as from an incident in a criminal action.55 In fine, we hold that the present petition should have been filed with this Court.
It follows that the instant petition was filed late. A petition for certiorari should be filed not later than sixty (60) days from notice of the judgment, order or resolution sought to be assailed.56 The present petition was filed with this Court only on November 24, 1999 which is more than sixty (60) days from the time petitioners were notified of the adverse resolutions issued by the Office of the Ombudsman. The erroneous filing of the petition with the Court of Appeals did not toll the running of the period.
But even on its merit, the petition cannot succeed. Petitioners primarily invoke denial of due process. They contend that they were not accorded the opportunity to file a Motion for Reconsideration since they were not furnished copies of the adverse Resolutions issued by the OMB-Visayas prior to their approval by the respondent Ombudsman Desierto. The Office of the Ombudsman allegedly railroaded the preliminary investigation of the cases in violation of Sections 6 and 7 of Administrative Order No. 07, as amended by Administrative Order No. 09 which provides that:
Section 6 of the aforequoted provision speaks of two (2) approving authorities with respect to resolutions issued by the Office of the Ombudsman. Hence, the phrase "as finally approved by the Ombudsman or by the proper Deputy Ombudsman."
As succinctly discussed in the respondent's Comment, it is the procedure in the Office of the Ombudsman that any Memorandum and/or Resolution of any criminal case pending before its Office which involves high ranking officials under R.A. 824957 should have the approval of the Ombudsman before the same may be released and considered the official action of the Office of the Ombudsman. Since petitioner Kuizon falls under the category of high ranking officials under R.A. 8249 who is charged with conspiracy with the other two (2) petitioners, the Resolutions dated June 20, 1997 and July 28, 1997 need the approval of the Honorable Ombudsman.58 This finds support in Sec. 4 (g), Rule II of Administrative Order No. 07 which provides:
Prescinding from the foregoing discussions, the resolutions which must be furnished to the petitioners refer to those approved by the respondent Ombudsman. Respondent alleges that copies of the challenged Resolutions as approved by the Honorable Ombudsman on different dates59 were sent to the parties by registered mail on September 12, 1997 and September 24, 1997, respectively.60 Petitioners deny having received copies of these resolutions.
The issue is not of momentous legal significance for non-compliance with Sections 6 and 7 of Administrative Order No. 7 does not affect the validity of the Informations filed with the Sandiganbayan. In the case of Pecho vs. Sandiganbayan,61 we held:
Petitioners further allege that the OMB-Visayas resolved the case in OMB-CRIM-96-1173 solely on the basis of the complaint of Saporas and the affidavits of Cortes and Pague. Petitioners' Answer/Counter-Affidavits/Manifestation were allegedly ignored.63 The contention is belied by the records of the case. Petitioners were all required to file their counter-affidavits but only petitioner Daan complied. Petitioners (except Daan) must perforce suffer the consequences of their inaction.
Petitioners also claim that their Answer/Counter-Affidavits/Manifestation was intended for both the administrative as well as the criminal complaints. The records reveal otherwise. The docket number in the said pleading's caption which states "OMB-VIS-ADM-96-0474" indicates that it is for the administrative case only. The fault lies with the petitioners when they indicated therein an incomplete docket number. It is their duty to see to it that all the entries in their pleading including its caption are accurate. If indeed the petitioners committed an oversight in placing the wrong or incomplete docket number in their pleading, they should have filed the proper motion or manifestation to correct the purported inaccuracies. It is not the obligation of the Office of the Ombudsman to supply or supplant any deficiency found in the litigants' pleadings.
The essence of due process is reasonable opportunity to be heard and submit evidence in support of one's defense.64 What the law proscribes is lack of opportunity to be heard.65 The facts show that preliminary investigations were conducted prior to the filing of the Informations. Petitioners filed their Answer with Special Affirmative Defenses in OMB-VIS-CRIM-95-0646. Petitioner Kuizon filed his Counter-Affidavit together with the attached affidavits of petitioners Tolibas and Daan in OMB-2-96-0049. When petitioners learned that four (4) Informations were filed against them, they filed a Motion for Reinvestigation which the Sandiganbayan granted. It is clear therefore that petitioners were not deprived of due process.
We now come to the issue raised by petitioners Daan and Tolibas that there was no reinvestigation conducted on them. It appears from the records that the Office of the Special Prosecutor who was authorized to conduct the reinvestigation of the cases did not notify petitioners Daan and Tolibas of the proceedings. Only petitioner Kuizon filed his counter-affidavit which was solely considered by Special Prosecutor Lemuel de Guzman in his Memorandum.66 Be that as it may, we rule against the petitioners. The procedural defect was waived by petitioners when they entered their plea of "not guilty" to the information. The settled rule is that when an accused pleads to the charge, he is deemed to have waived the right to preliminary investigation and the right to question any irregularity that surrounds it.67 The invalidity or absence of a preliminary investigation does not affect the jurisdiction of the court which may have taken cognizance of the information nor impair the validity of the information or otherwise render it defective.68
The petitioners further asseverate that respondent Desierto gravely abused his discretion when he simply approved the recommendation of the Legal Counsel recommending the filing of information in court despite the clear absence of reasonable justification.69 We reject petitioners' claim. What is involved is merely a review and affirmation by the respondent Ombudsman of the findings made by the investigating prosecutor. He need not restate the facts and elaborate on the applicable law. In Cruz, Jr. vs. People,70 we held:
In case of conflict in the conclusions of the Ombudsman and the special prosecutor, it is self-evident that the former's decision shall prevail since the Office of the Special Prosecutor is under the supervision and control of the Ombudsman.72 The action of the respondent Ombudsman in disapproving the findings of Special Prosecutor De Guzman and approving that of Legal Counsel Clemente does not per se constitute grave abuse of discretion.
Petitioners Daan and Tolibas also claim that their evidence consisting of the affidavit of Pague will show that there is no probable cause to indict them. The contention lacks merit. We reiterate the rule of long standing that in the absence of grave abuse of discretion, this Court will not interfere with the exercise by the Ombudsman of his constitutionally mandated investigatory and prosecutory powers.73 His findings of probable cause are entitled to great respect. The rationale behind the said rule has been aptly discussed in Ocampo, IV vs. Ombudsman,74 thus:
Equally unmeritorious is the petitioners' claim that the Sandiganbayan committed grave abuse of discretion in proceeding with the trial of their cases. The Sandiganbayan granted petitioners' motion for reinvestigation. It correctly denied petitioner Daan's subsequent Motion for Reinvestigation and to Defer Arraignment in view of the respondent Ombudsman's final action to proceed with the prosecution of the cases. Jurisdiction has been acquired by the Sandiganbayan over the person of the petitioners as they appeared at the arraignment and pleaded not guilty to the crimes charged.
WHEREFORE, the petition is DISMISSED and the Sandiganbayan is hereby ORDERED to proceed with the trial of the cases at bar with dispatch. Costs against petitioners.
Davide, Jr., C .J ., Kapunan, Pardo and Ynares-Santiago, JJ ., concur.
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