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G.R. NO. 180681 - Rolando Z. Tigaz v. Office of the Ombudsman

G.R. NO. 180681 - Rolando Z. Tigaz v. Office of the Ombudsman

PHILIPPINE SUPREME COURT DECISIONS

FIRST DIVISION

G.R. NO. 180681 : March 18, 2013

ROLANDO Z. TIGAS, Petitioner, v.OFFICE OF THE OMBUDSMAN, represented by MERCEDITAS N. GUTIERREZ, in her capacity as Ombudsman, Respondent.

R E S O L U T I O N

SERENO, C.J.:

Before this Court are the following pleadings filed by petitioner: ( 1) the 3 December 2007 Petition for certiorari and prohibition with prayer for the issuance of a writ of preliminary injunction and/or a temporary restraining order;1 (2) the 17 September 2008 Supplemental Petition;2 and (3) the 05 January 2009 Second Supplemental Petition.3chanroblesvirtualawlibrary

Filed under Rule 65 of the Rules of Court, these pleadings assail the Ruling4 of the Office of the Ombudsman in OMB-C-C-07-0340-G, finding probable cause to indict petitioner and his Sangguniang Bayan members (SB members) for violation of Section 3(b) of Republic Act No. (R.A.) 3019; as well as the Resolutions of the Fourth Division of the Sandiganbayan in CC No. SB-07-CRM-0071, denying his plea to quash5 the criminal Information filed against him. Petitioner also questions the resolution6 of the Sandiganbayan granting the prosecution's Motion to suspend him pendente lite.

R.A. 3019 (Anti-Graft and Corrupt Practices Act), Section 3(b) provides:chanroblesvirtualawlibrary

Corrupt practices of public officers. In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:chanroblesvirtualawlibrary

(b) Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any other person, in connection with any contract or transaction between the Government and any other part, wherein the public officer in his official capacity has to intervene under the law

The facts are as follows:chanroblesvirtualawlibrary

In purchasing lots intended for a public market, the Municipality of Samal, Bataan, issued a check worth P2,923,000 to the seller. However, the SB members gave only P2,500,000 to the vendor, of which P90,000 was further deducted for capital gains tax. In effect, the SB members received P513,000. This amount was not accounted for by receipts or other documentary evidence.7chanroblesvirtualawlibrary

Petitioner Rolando Z. Tigas, then municipal mayor, was also involved in the transaction, to wit:8 (1) the SB members informed him of their intent to buy the lots; (2) he signed the 3 February 2005 Deed of Conditional Sale one day prior to the issuance of Sangguniang Bayan Resolution No. 05-001dated 4 February 2005, through which they accepted the offer to sell the lots even before the provincial assessor had appraised it; and (3) he asked the provincial assessor to appraise the lot at P105 per square meter, notwithstanding the Philippine National Bank's appraisal thereof at P97 per square meter.

The National Bureau of Investigation (NBI) got wind of the transaction through an anonymous letter.9 After its investigation, it filed the 2 May 2007 Complaint10 with respondent Office of the Ombudsman against petitioner and the SB members for violating Section 3(g) and (i) of R.A. 3019. In turn, as alleged by the OSG, the Office of the Ombudsman proceeded to conduct a preliminary investigation through Overall Deputy Ombudsman Orlando C. Casimiro, and only after then Ombudsman Merceditas N. Gutierrez had inhibited herself from the proceedings.11 Subsequently, respondent issued its 21 August 2007 recommendation to the Sandiganbayan for the filing of an Information for violation of Section 3(b) of R.A. 3019 against petitioner and the SB members and of Section 3(i) against the SB members alone.12 Hence, petitioner filed this Rule 65 petition.

Without this Court giving due course to the petition, the incidents before the Sandiganbayan continued. Specifically, the latter refused to quash the Information13 and even imposed a suspension pendente lite against petitioner.14 As a result, he filed before this Court his Supplemental Petition, followed by his Second Supplemental Petition, assailing the actions of the Sandiganbayan.

In his Rule 65 pleadings, petitioner mainly asserts that grave abuse of discretion attended his case, because then Ombudsman Gutierrez was extremely prejudiced in investigating him. He anchors his imputation of bias on irregularities consisting of the following:15 (1) his indictment for an offense different from what he was charged with; and (2) the finding of probable cause despite a dearth of evidence. He also supports his allegation of prejudice by citing the fact that the Ombudsman's brother lost in the mayoralty race against him.16 As for the errors of the Sandiganbayan, he argues that it erred in not quashing the Information and in suspending him pendente lite.

In its 3 June 2008 Comment,17 the Office of the Solicitor General (OSG) refutes the existence of bias on the part of the Ombudsman. The OSG also advances that the Office of the Ombudsman's finding of probable cause for violation of Section 3(b) of R.A. 3019 was based on the records and the evidence on hand. Further, in its 22 February 2009 Consolidated Comment,18 the OSG posits that a Rule 65 petition is an improper remedy to question the Sandiganbayan's refusal to quash the Information.

Hence, we discuss the pertinent issues in this case:chanroblesvirtualawlibrary

I. Whether the Office of the Ombudsman gravely abused its discretion and acted with manifest partiality in finding probable cause against petitioner

II. Whether the Sandiganbayan gravely abused its discretion in refusing to quash the Information and in imposing a suspension pendente lite on petitioner

Prefatorily, the Court notes that petitioner only raised the issue of bias after respondent promulgated the assailed rulings. His belated action weakens his claim, given the proscription that litigants cannot be permitted to speculate upon the action of a court, but only to raise an objection pertaining to bias and prejudgment after a decision has been rendered.19chanroblesvirtualawlibrary

To impute bias in no less than a special civil action for certiorari petitioner must show not only strong grounds stemming from extrajudicial sources,20 but also palpable error that may be inferred from the decision or order itself.21chanroblesvirtualawlibrary

In this case, the alleged irregularities during the proceedings invoked by petitioner cannot be considered as irregularities in the first place.

Firstly, we have squarely held in Galario v. Office of the Ombudsman (Mindanao)22 that there is nothing inherently irregular or illegal in filing an indictment against the respondent for an offense different from that charged in the initiatory complaint, if the indictment is warranted by the evidence developed during the preliminary investigation.

Secondly, as regards the finding of probable cause, it appears extant that the exercise of the wide prerogative by the Office of the Ombudsman was not whimsical, capricious or arbitrary,23 given the supporting documentary evidence it had appreciated together with the NBI and the Sandiganbayan. In the determination of probable cause, absolute certainty of evidence is not required, for opinion and reasonable belief are sufficient.24 Besides, any other defense contesting the finding of probable cause that is highly factual in nature25must be threshed out in a full-blown trial, and not in a special civil action for certiorari before this Court. 26chanroblesvirtualawlibrary

Thirdly, petitioner's election victory over the Ombudsman's brother does not clearly establish prejudice. In De la Cruz v. DECS, 27 this Court has declared that kinship alone does not establish bias and partiality. There must be convincing proof to show bias, otherwise, the presumption of regularity in the performance of official duty prevails.

Since the imputation of bias to the Office of the Ombudsman is without support, this Petition for certiorari and prohibition, with prayer for the issuance of a writ of preliminary injunction and/or a temporary restraining order, fails. And because the first petition holds no water, his Supplemental Petition and Second Supplemental Petition have no basis to rely upon. In any event, the OSG correctly argues that a Rule 65 petition is an inappropriate remedy to question the refusal of the Sandiganbayan to quash an information and, its imposition of suspension pendente lite. The remedy still available to petitioners is not the filing of a special civil action for certiorari, but the continuance of the case in due course.28chanroblesvirtualawlibrary

IN VIEW THEREOF, the 21 August 2007 Resolution and 10 October 2007 Order in OMB-C-C-07 -0340-G issued by the Office of the Ombudsman, as well as the 14 July 2008, 2 September 2008 and 9 December 2008 Resolutions in No. SB-07-CRM-0071 issued by the Fourth Division of the Sandiganbayan, are AFFIRMED. Consequently, the 3 December 2007 Petition for certiorari and prohibition with prayer for the issuance of a writ of preliminary injunction and/or a temporary restraining order, the 17 September 2008 Supplemental Petition, and the 05 January 2009 Second Supplemental Petition filed by petitioner are hereby DENIED for lack of merit.

SO ORDERED.


Endnotes:


1 Rollo, pp. 3-49.ςrαlαωlιbrαrÿ

2 Id. at 468-503.ςrαlαωlιbrαrÿ

3 Id. at 716-743.ςrαlαωlιbrαrÿ

4 Id. at 51-80; Resolution dated 21 August 2007 and Order dated 10 October 2007 issued by the Office of the Ombudsman.ςrαlαωlιbrαrÿ

5 Id. at 504-518; Resolutions dated 14 July 2008 and 2 September 2008 issued by the Fourth Division of the Sandiganbayan; penned by Associate Justice Jose R. Hernandez, with Associate Justices Gregory S. Ong and Samuel R. Martires concurring.ςrαlαωlιbrαrÿ

6 Id. at 796-804; Resolution dated 9 December 2008.ςrαlαωlιbrαrÿ

7 Id. at 64; Resolution dated 21 August 2007.ςrαlαωlιbrαrÿ

8 Id. at 66-67.ςrαlαωlιbrαrÿ

9 Id. at 91; National Bureau of Investigation Disposition Form dated 16 April 2007.ςrαlαωlιbrαrÿ

10 Id. at 81-89; letter-complaint dated 2 May 2007.ςrαlαωlιbrαrÿ

11 Id. at 70; the 21 August 2007 Resolution contained a notation "By virtue of the Routing Slip authorizing the undersigned to handle the case."ςrαlαωlιbrαrÿ

12 Id. at 221-223.ςrαlαωlιbrαrÿ

13 Id. at 504-518.ςrαlαωlιbrαrÿ

14 Id. at 796-804.ςrαlαωlιbrαrÿ

15 Id. at 25-32.ςrαlαωlιbrαrÿ

16 Id. at 34.ςrαlαωlιbrαrÿ

17 Id. at 399-424.ςrαlαωlιbrαrÿ

18 Id. at 432-463.ςrαlαωlιbrαrÿ

19 Chavez v. PEA AMARI, 451 Phil. 1, 41 (2003).ςrαlαωlιbrαrÿ

20 Ong v. Basco, G.R. NO. 167899, 6 August 2008, 561 SCRA 253, 261.ςrαlαωlιbrαrÿ

21 Philippine Commercial International Bank v. Spouses Dy, G.R. NO. 171137, 5 June 2009, 588 SCRA 612, 632.ςrαlαωlιbrαrÿ

22 G.R. NO. 166797, 10 July 2007 citing Avila v. Sandiganbayan and Ombudsman, 366 Phil. 698 (1999); and Enrile v. Salazar, 264 Phil. 593 (1990).ςrαlαωlιbrαrÿ

23 Ramiscal, Jr., v. Sandiganbayan, G.R. Nos. 172476-99, 15 September 2010, 630 SCRA 505, 517-518.ςrαlαωlιbrαrÿ

24 Ganaden v. Honorable Office of the Ombudsman, G.R. Nos. 169359-61, 1 June 2011, 650 SCRA 76, 83.ςrαlαωlιbrαrÿ

25 Odin Security Agency, Inc. v. Sandiganbayan (Second Division), 417 Phil. 673, 681-682.ςrαlαωlιbrαrÿ

26 Esquivel v. The Hon. Ombudsman (Third Division), 437 Phil. 702, 712 (2002).ςrαlαωlιbrαrÿ

27 464 Phil. 1033, 1048 (2004).

28 (xxx source text unreadable xxx)

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