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[G.R. No. 149361.September 18, 2001]

MERCADO vs. HON. DESIERTO et al.

EN BANC

Gentleman :

Quoted hereunder , for your information, is a resolution of this Court dated SEPT 18 2001

G.R. No. 149361 (George P. Mercado vs. Hon. Aniano A. Desierto, Ombudsman, Jose B. Lopez, Barangay Captain, Alfredo I. Calma, Jr., et al.)

At bar is a petition for certiorari seeking the reversal of the Order of the Office of the Ombudsman affirming the joint resolution issued by a graft investigation officer II of the Office of the Deputy Ombudsman for Mindanao which dismissed the twin complaints filed by petitioner George Mercado.

The record shows that respondents were criminally and administratively charged with violation of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, and Misconduct and Conduct Prejudicial to the best interest of the service.

The subject complaint alleged that respondents caused the construction of the Barangay Hall of Barangay Bienvenida without securing a building permit, in violation of the Building Code of the Philippines and Presidential Decree 1096; that the government suffered injury because it is in danger of losing the subject barangay hall as said structure stands on private property.

On the other hand, respondents' joint counter-affidavit contended that the barangay hall was constructed within the 2.70 hectare lot donated by the late Mr. Eustaquio Arieta to Baltazar Q. Solis, the former barangay captain therein from 1972 to 1986. Besides, it was averred, petitioner has no business intervening in the use of the said land since he is neither a resident of Sampao nor the owner of the land. Alicia Arieta Tan, the sole heir of the subject land already prepared a re donation document or Deed of Sale which would be released after the settlement of a land conflict in the Arieta Farm which is adjacent to the Barangay Site. Regarding the building permit, respondents contend that although they failed to secure this from the municipal Engineer of Kapalong, they would get it after the completion of the building since it would be required by the Davao Light and Power Company and the Davao Norte Electric Cooperative for the electrical installation in the building.

Respondents also submitted a document denominated as "Authority" Issued by Manuel W. Tan authorizing respondents Sampao Barangay Council headed by Barangay Captain Jose B. Lopez "to construct the Standard (Amatong) Type Barangay Hall within the three hundred square meters lot area on the property comprising a total of 2.70 hectares of land with Title No. TCT-T-12010; T-49200, located at Barangay Sampao, Kapalong, Davao del Norte." Mr. Tan is the husband of Mrs. Alicia Arieta Tan, the sole daughter of the late Mr. and Mrs. Eustaquio Arieta, whose land comprising an area of 37.0 hectares, includes the 2.70 hectares to be donated to Purok 1, Barangay Site.

Consequently, the graft investigator dismissed both charges thusly:

The failure of the respondents to secure the subject building permit is not tainted with malice. As explained by the respondents, they were not apprised about the need for a building permit during barangay administration seminars. Besides, it was not disputed that said permit has already been processed at the Local Government Unit Engineering Office only that It was withheld in view of the filing of this case.

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The charge of violation of R.A. 3019 is baseless. No proof was submitted showing any injury caused either to the government or to a private person, in the construction of the Barangay Hall of Sampao.

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WHEREFORE, premises considered, these complaints are hereby DISMISSED.

Displeased, petitioner filed a motion for reconsideration but the same was denied.

Undaunted, petitioner filed a petition for review with the Office of the Ombudsman which dismissed the same for being in the nature of a second motion for reconsideration.

More importantly, the Office of the Ombudsman did not find any evidence to show that the government suffered undue injury, meaning actual damage specified, quantified, and proven as an element of the crime charged. Too, there was no showing that the failure of respondents to secure a building permit was inspired by a deliberate intention to violate the law or was in persistent disregard of established rules so as to make them liable for administrative misconduct.

Still unfazed, petitioner filed the instant petition which must necessarily fail.

The Court finds no abuse of discretion, much less grave, committed by the Office of the Ombudsman in dismissing the subject cases. Petitioner failed to present any evidence that the government suffered undue injury and that the public officers charged acted with manifest partiality, evident bad faith or gross inexcusable negligence.

It should also be pointed out that it is beyond the ambit of the Court's jurisdiction to review the exercise of discretion of the Ombudsman in prosecuting or dismissing a complaint filed before it (Alba vs. Nitorreda, 254 SCRA 753 [1996]).

WHEREFORE, petition is dismissed.

Very truly yours,

(Sgd.) LUZVIMINDA D. PUNO

Clerk of Court


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