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[G.R. No. 147565. May 16, 2001]

LOPEZ vs. HON. DEPUTY OMBUDSMAN FOR LUZON, et al.

SECOND DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated MAY 16, 2001.

G.R. No. 147565(Marcial F. Lopez vs. The Hon. Deputy Ombudsman for Luzon and Northern Negros Growers Multi-purpose Cooperative Inc.)

Petitioner is the District Collector of Customs of Legaspi City. He is charged, together with six others from his office, with violation of �3(e) of the Anti-Graft and Corrupt Practices Act and estafa in a complaint filed with the Deputy Ombudsman for Luzon by respondent Northern Negros Growers Multi-purpose Cooperative.

The complaint against petitioner allege substantially that on June 11, 1999, then District Collector of Customs for Legaspi City, Jose A. Blanco, without any valid cause, ordered the seizure and detention of the "MV Florida," then docked at the port of Legaspi City, and its cargo of 10,885 bags of sugar. Upon motion of TCL Merchandise and Brokerage, the alleged consignee of the cargo, however, Nestor M. Borjal, who had replaced Blanco as District Collector of Customs, ordered the warrant quashed. The Government appealed the ruling to the Commissioner of Customs, who affirmed the same. On review by the Secretary of Finance, through Undersecretary Solomon S. Cua, the ruling was likewise affirmed.

Private respondent alleged that notwithstanding the foregoing and despite having been furnished a copy of the decision of Undersecretary Cua, petitioner Lopez nevertheless proceeded to sell the seized bags of sugar on March 2, 2000 for which reason private respondent, as the cargo's shipper, was deprived possession of the cargo to its damage and prejudice. It alleged that petitioner acted with bad faith and grave abuse of authority. It was contended that the sugar should have been released to private respondent.

Petitioner moved to dismiss the complaint against him. He contended that the Office of the Ombudsman had no jurisdiction over the case because the seizure and forfeiture case of the vessel and its cargo was still the subject of investigation by the Bureau of Customs pursuant to �6O2(g) of the Tariff and Customs Code.

Petitioner's motion was denied, as was the motion for reconsideration which he subsequently filed. Hence, this special civil action for certiorari and prohibition to set aside the orders of respondent Deputy Ombudsman denying petitioner's motion to dismiss and to enjoin the Deputy Ombudsman from proceeding with the preliminary investigation of the complaint filed by respondent Northern Negros Multi-purpose Cooperative. Petitioner reiterates his earlier contention that the Office of the Ombudsman has no jurisdiction over the complaint because the matter is still pending investigation before the Bureau of Customs.

Petitioner's contention has no merit. To begin with, as respondent Deputy Ombudsman said in his order of December 11, 2000, the complaint against petitioner alleged acts committed in relation to the discharge of his official functions. The case thus falls under �3(e) of Republic Act No. 3019. Indeed, Republic Act No. 6770, �15(1), vests in the Ombudsman and his deputies the power to investigate and prosecute any act or omission of any public officer or employee when such act appears to be illegal, unjust, improper, or insufficient.

It cannot be rightly contended that S.I. No. 005-99 is still pending before the Bureau of Customs because the Government's failure to appeal Undersecretary Cua's ruling to the Court of Tax Appeals within 30 days from receipt of a copy of the decision rendered such final and executory (Tariff and Customs Code, �2315). This is so notwithstanding that there is a pending request in the office of the Commissioner of Customs to reopen S.I. No. 005-99 especially since such has remained unacted up to the present.

Petitioner claims that he acted in good faith as he sold the sugar pursuant to the authority granted by the Commissioner of Customs and the Department of Finance; that the sale was conducted in accordance with law; and that respondent corporation has no standing to file the criminal complaint against him. These are matters of defense which should be raised in his counter-affidavit which public respondent, in his February 14, 2001 order, had required petitioner to file and not in this petition. It is premature for petitioner to raise these matters in a petition for prohibition as public respondent has yet to receive his counter-affidavit and evaluate the merit of the complaint filed against him.

For the foregoing reasons, the Court RESOLVED to DISMISS the petition for lack of showing that the Deputy Ombudsman for Luzon committed grave abuse of discretion.

Very truly yours,

(Sgd.) TOMASITA M. MAGAY-DRIS

Clerk of Court

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