G.R. No. 187268, September 04, 2013
JOVITO C. PLAMERAS, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.
D E C I S I O N
WHEREFORE, finding accused Jovito C. Plameras, Jr. guilty beyond reasonable doubt of the offense of violation of Section 3(c) of Republic Act No. 3019 (R.A. No. 3019), judgment is hereby rendered sentencing the said accused to an indeterminate prison term of SIX (6) years and ONE (1) month as minimum to TEN (10) years as maximum, and to suffer perpetual disqualification from public office.2
The purchase of 1,356 desks and 5,246 armchairs by the Province of Antique was made in apparent violation of existing rules and regulations as evident [sic] by the following facts:chanroblesvirtualawlibraryConsequently, an Information15 was filed before the Sandiganbayan, the accusatory portion of which reads:chanroblesvirtualawlibrary
As a result thereof, delivery of desks and armchairs was delayed and the said desks and armchairs delivered are defective. Moreover, the remaining 3,468 desks and chairs amounting to P2,697,168.00 have not been delivered by the supplier despite demands. Unwarranted benefit was thus given to the supplier and undue injury was caused to the government.
- Payment was made before the desks and chairs were delivered;
- Procurement was made without the required authorization from the Provincial School Board;
- Proper procedure was disregarded, there being no bidding process.
Respondent’s evident bad faith and manifest partiality are indicated by the fact that the purchase and payment of the desks and chairs were made in clear violation of existing COA rules and regulations.
The pending civil case filed by the Province of Antique for the reimbursement of the amount of P5,666,600.00 is not determinative of the guilt or innocence of respondent in this case. The issues in the civil case are independent of the issue of whether or not there is a prima facie case against respondent for Violation of Sec. 3(e) of R.A. 3019, as amended. No prejudicial question therefore, need be resolved in this case.14
That in or about the month of April 1997, at the Municipality of San Jose, Province of Antique, Philippines, and within the jurisdiction of this Honorable Court, above-named accused, a public officer, being then the Provincial Governor of the Province of Antique, in such capacity and committing the offense in relation to office, with deliberate intent, with manifest partiality and evident bad faith, did then and there willfully, unlawfully and feloniously disburse or cause the payment of the amount of FIVE MILLION SIX HUNDRED SIXTY-SIX THOUSAND SIX HUNDRED PESOS (P5,666,600.00), Philippine Currency, to Jesusa T. Dela Cruz/CKL Enterprises,) for the purchase of 1,356 desks and 5,246 armchairs, without authorization from the Provincial School Board and without observance of the proper procedure, there being no bidding process, and before delivery of the said desks and chairs purchased by the Province of Antique, resulting in delayed delivery of desks and armchairs which are defective, and non-delivery of sixty (60) desks valued at SEVENTY THREE THOUSAND THREE HUNDRED SIXTY PESOS (P73,360.00), Philippine Currency, and three thousand four hundred eight (3,408) armchairs, valued at TWO MILLION SIX HUNDRED NINETY- SEVEN ONE HUNDRED SIXTY-EIGHT PESOS (P2,697,168.00), Philippine Currency, thus, accused in the course of the performance of his official functions had given unwarranted benefit to Jesusa T. Dela Cruz/CKL Enterprises, to the damage and injury of the Province of Antique, and detriment public interest.16Prior to his arraignment, or on 16 August 2000, petitioner filed a Motion for Reinvestigation and/or Suspend Proceedings17 which was granted in the 23 August 2000 Resolution of the Sandiganbayan cancelling the arraignment and further directing the Office of the Special Prosecutor (OSP) to reevaluate its findings and conclusions of the case. As a result, the OSP issued the 29 May 2001 Order,18 recommending the withdrawal of the Information due to the existence of undisputed facts that led to irrefutable conclusions negating criminal liablity on the part of the petitioner.19 However, upon review, the Office of the Ombudsman in its 18 July 2001 Memorandum,20 set aside and ignored said recommendation ratiocinating that the grounds, as set forth, are matters of evidence to be ventilated in court.
x x x. On March 12, 1997, he [Moscoso] was in the governor’s office when an unidentified Tagalog-speaking DECS lady representative and Jesusa dela Cruz of CKL Enterprises visited the accused in the latter’s office to personally hand, and in fact they handed, to the governor two checks worth P5,666,667.00, as the share of the province from the Poverty Alleviation Fund of DECS from the national government. The checks were intended for the Antique Provincial School Board for the procurement of chairs and desks to be used by the elementary and high school students of the different municipalities of Antique. In answer to the question of the governor, the DECS representative told the governor that there was no need for a public bidding inasmuch as a public bidding was already held in the Central Office of DECS, and it failed because there was only one bidder, CKL Enterprises, in view of which the DECS resorted to a negotiated contract with the lone bidder. When asked by the accused if there was still a need for public bidding inasmuch as the fund was from the national government, the provincial treasurer said the procurement entered into by the national government should be resorted to inasmuch as those were national funds and do not involve the local procedures. Thereupon, on the instruction of the accused, he called some of the members of the provincial school board at the office of the accused for consultation. The accused informed the members of the school board present about the funds received from DECS and that inasmuch as it was only a consultation dialogue that they were having, the procurement system by the national government would be followed like rest of the recipient provinces had done.In his own testimony, petitioner added that:chanroblesvirtualawlibrary
After almost a month later, or on April 8, 1997, the same DECS representative and Jesusa dela Cruz returned to the office of the accused bringing with them the Purchaser-Seller Agreement, which the accused, after reading, signed. After that, the accused gave him a copy of the agreement. In a matter of days thereafter, or on April 12, 1997, the two ladies came back handing two documents that is, the sales invoice and the bank draft, for the signature of the accused. Because of the voluminous routine work of the accused, and because the DECS representative and Jesusa dela Cruz told him that the sales invoice and the bank draft would satisfy the conditions of the Purchaser-Seller Agreement, the accused just immediately signed the sales invoice and the bank draft30 x x x.chanrob1esvirtualawlibrary
x x x. The DECS representative told him that such Purchaser-Seller Agreement was the standard format of the DECS that was followed by all the beneficiary provinces. The DECS representative informed him that sometime in November 1996, DECS conducted a public bidding for the purchase of desks and armchairs but it resulted to a failure and so DECS resorted to a negotiated contract and awarded the contract to CKL Enterprises. He forgot the name of the lady DECS representative. Although the DECS representative told him that the resolution of Provincial School Board may no longer be necessary, after he had signed the Purchaser-Seller Agreement, he still consulted the members of the Provincial School Board about the Purchaser-Seller Agreement and about the assistance from the Poverty Alleviation Fund of the DECS. He knew and was aware that an important condition of the Purchaser-Seller Agreement was that payment shall be effected upon submission of delivery receipts, inspection report, acceptance report, sales invoice and letter to the bank to effect payment equal to the equivalent amounts of the units delivered. After signing the agreement, he applied for a letter of credit with Land Bank, Pasig Branch, and he attached to the application a copy of the Purchaser-Seller Agreement to inform Land Bank of the conditions of payment, because it was Land Bank that would pay the supplier. He paid Land Bank for the letter of credit the amount of P5,666,600.00 through a check on April 16, 1997. The application was approved by the Land Bank the day after he filed it, which approval he came to know because Land Bank informed CKL about it through the Irrevocable Domestic Letter of Credit No. 97073/D. Land Bank also issued a draft. On April 24, 1997, Jesusa dela Cruz returned to the accused’s office and had him sign Sales Invoice No. 0220 as well as assured him that “the other required documents will follow”, referring to the delivery receipt, acceptance report, sales invoice and letter of the bank which will prove performance of the seller under the contract and which performance will be the basis of payment by Land Bank. He signed the sales invoice and the bank draft upon this assurance of Jesusa dela Cruz thinking that the required documents will pass his office. On March 2, 1998 Provincial General Services Officer Pedro Juluat, Jr. gave him a Summary Report on the desks and armchairs delivered to the province by CKL showing a shortage of delivery. Meanwhile, on the same day that he signed the sales invoice and the bank draft on April 24, 1997 CKL Enterprises/Jesusa T. dela Cruz negotiated the letter of credit and Land Bank fully paid CKL which he came to know after writing Land Bank on November 26, 1998, and which full negotiation and full payment Land Bank certified on December 4, 1998. Land Bank Pasig branch, through its manager Leila C. Martin, informed him through a letter, dated December 11, 1998, that the negotiation was based on the bank draft and the sales invoice. There was misrepresentation in securing his signature on the sales invoice because he was assured that the other (required) documents will follow, only to realize that the letter of credit was fully negotiated that same day. Gov. Exequiel Javier filed a case against him at the Office of the Ombudsman.31For his part, Atty. Marciano G. Delson stated that:chanroblesvirtualawlibrary
He handled the administrative case of former DECS Undersecretary Nachura and the late former Secretary Gloria before the Office of the Ombudsman in connection with the purchase of armchairs and desks from CKL Enterprises through a negotiated contract. There was a failed bidding so the DECS proceeded with the execution of the negotiated contract. The Poverty Alleviation Program of the DECS was a project for the acquisition of school desks for the poorest provinces around the country. The mode of payment in that contract was a letter of credit opened by the DECS Central Office with the Land Bank, with the payment to CKL conditioned that delivery of the desks to the recepients.32In rebuttal, the prosecution presented another witness named Lydia de Asis,33 Head of International Banking Department of the LBP who testified that when her department received the Letter of Credit Application Form from LBP Pasig Branch, only the application with the sales invoice and the duly accepted beneficiary’s draft were received without any copy of the Purchaser-Seller Agreement. Under the Letter of Credit, only those two documents were required, with the draft duly accepted by the petitioner.
THE HONORABLE SANDIGANBAYAN GRAVELY ERRED IN TREATING THE PURCHASER-SELLER AGREEMENT ENTERED INTO BY CKL WITH THE PROVINCE OF ANTIQUE SEPARATE AND INDEPENDENT OF THE MOTHER CONTRACT ENTERED INTO BY CKL WITH THE DEPARTMENT OF EDUCATION, CULTURE AND SPORTS. THESE TWO (2) AGREEMENTS WERE COMPONENTS OF ONLY ONE PROJECT WHICH WAS THE POVERTY ALLEVIATION FUND (PAF) PURCHASE OF SCHOOL DESKS PROGRAM OF THE DEPARTMENT OF EDUCATION CULTURE AND SPORTS TO ASSIST THE MOST DEPRESSED PROVINCES IN THE COUNTRY.
THE HONORABLE SANDIGANBAYAN ERRED IN FINDING THAT PETITIONER PLAMERAS VIOLATED THE PROCUREMENT RULES ON PUBLIC BIDDING. IT WAS THE DECS AS IMPLEMENTING AGENCY THAT WAS REQUIRED TO CONDUCT THE BIDDING, THE FAILURE OF WHICH RESULTED TO PROCUREMENT BY NEGOTIATED CONTRACT. THE PROVINCE OF ANTIQUE WAS ONLY A BENEFICIARY.
THE HONORABLE SANDIGANBAYAN ERRED IN FINDING THAT PETITIONER PLAMERAS VIOLATED SECTION 338 OF RA 6170, WHICH PROHIBITS ADVANCE PAYMENT. IN THE FIRST PLACE, PETITIONER DID NOT PAY CKL. THERE WAS NO ADVANCE PAYMENT SINCE THE OPENING OF THE LETTER OF CREDIT WITH THE LAND BANK OF THE PHILIPPINES IS NOT TANTAMOUNT TO AND CANNOT BE EQUATED TO PAYMENT IN FAVOR OF CKL IN VIEW OF THE STRICT INSTRUCTIONS PRESCRIBED FOR THE RELEASE BY THE BANK OF PAYMENT. SINCE THE OFFICE OF THE OMBUDSMAN EXONERATED DECS OFFICIALS WHO USED THE SAME SCHEME IN THE INITIAL IMPLEMENTATION OF THE PROGRAM, THERE IS NO REASON WHY THE SAME TREATMENT CANNOT BE ACCORDED [TO PETITIONER].
THE HONORABLE SANDIGANBAYAN ERRED IN FINDING BEYOND REASONABLE DOUBT THAT PETITIONER PLAMERAS ACTED WITH EVIDENT BAD FAITH AND MANIFEST PARTIALITY. PETITIONER WAS OBVIOUSLY THE VICTIM OF THE COLLUSION AMONG CKL, DECS, AND LAND BANK PERSONNEL.
THE HONORABLE SANDIGANBAYAN ERRED IN FINDING PETITIONER PLAMERAS GUILTY OF GIVING UNWARRANTED BENEFITS, ADVANTAGE OR PREFERENCE IN THE DISCHARGE OF HIS FUNCTIONS TO CKL. IT WAS NOT [PETITIONER] BUT THE LAND BANK OF THE PHILIPPINES PERSONNEL WHO PAID THE MONEY TO CKL IN VIOLATION OF THE TERMS OF THE LETTER OF CREDIT. THE CONCLUSION OF THE HONORABLE SANDIGANBAYAN THAT [PETITIONER] DID NOT ATTACH A COPY OF THE PURCHASER-SELLER AGREEMENT TO HIS APPLICATION FOR A LETTER OF CREDIT HAS NO BASIS. ON THE CONTRARY, IT WAS STIPULATED BY THE PARTIES THAT THE DELIVERY RECEIPT, ACCEPTANCE AND INSPECTION REPORTS AND A LETTER OF AUTHORITY ARE REQUIREMENTS FOR THE RELEASE OF THE FUND.34
A petition for review under Rule 45 of the Rules of Court should cover only questions of law. Questions of fact are not reviewable. A question of law exists when the doubt centers on what the law is on a certain set of facts. A question of fact exists when the doubt centers on the truth or falsity of the alleged facts.chanrob1esvirtualawlibraryIn another case, the Court also held that:chanroblesvirtualawlibrary
There is a question of law if the issue raised is capable of being resolved without need of reviewing the probative value of the evidence. The issue to be resolved must be limited to determining what the law is on a certain set of facts. Once the issue invites a review of the evidence, the question posed is one of fact.39Neither can we go into a re-evaluation as an exception to the rule.
Section 3. 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:chanroblesvirtualawlibraryFor the aforecited provision to lie against the petitioner, the following elements must concur:chanroblesvirtualawlibrary
x x x x
(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.chanrob1esvirtualawlibrary
We focus on the next elements, there being no dispute that the first element of the offense is present.
1) The accused must be a public officer discharging administrative, judicial or official functions; 2) He must have acted with manifest partiality, evident bad faith or gross inexcusable negligence; and 3) That his action caused undue injury to any party, including the government, or giving any private party unwarranted benefits, advantage or preference in the discharge of his functions.43
Sec. 356. General Rule in Procurement or Disposal. – Except as otherwise provided herein, acquisition of supplies by local government units shall be through competitive public bidding. x x xThe petitioner admitted in his testimony51 that he is aware of such requirement, however, he proceeded just the same due to the alleged advice of the unnamed DECS representative that there was already a negotiated contract – a representation or misrepresentation he willfully believed in, without any verification. As a Governor, he must know that negotiated contract can only be resorted to in case of failure of a public bidding. As it is, there is no public bidding to speak of that has been conducted. Intentionally or not, it is his duty to act in a circumspect manner to protect government funds. To do otherwise is gross inexcusable negligence, at the very least, especially so, that petitioner acted on his own initiative and without authorization from the Provincial School Board. This can be proved by his failure to present even a single witness from the members of the Board whom he consulted as he claimed.
1Rollo, pp. 56-105.cranad
2 Id. at 103.cranad
3 Exhibit “5,” records, volume III, pp. 142-148.cranad
4 Exhibit “7,” folder of exhibits.cranad
5 Exhibit “8,” id.cranad
6 Exhibit “9,” id.cranad
7 Exhibit “10,” id.cranad
8 Exhibit “13,” id.cranad
9 Exhibit “14,” id.cranad
10 Exhibit “15,” id.cranad
11 Exhibit “16,” id.cranad
12 Exhibit “17,” id.cranad
13 Records, volume I, pp. 5-7.cranad
14 Id. at 6-7.cranad
15 Id. at 1-3.cranad
16 Id. at 1-2.cranad
17 Id. at 50-55.cranad
18Rollo, pp. 127-142.cranad
19 Id. at 140.cranad
20 Records, volume I, pp. 108-110.cranad
21 Id. at 171.cranad
22 Id. at 406.cranad
23 Id. at 424.cranad
24Rollo, pp. 214-218.cranad
25 Records, volume II, pp. 6-40.cranad
26 Id. at 127-129.cranad
27 TSN dated 14 January 2008.cranad
28 TSN dated 13 August 2007.cranad
29 TSN dated 1 October 2007.cranad
30Rollo, pp. 72-74.cranad
31 Id. at 76-79.cranad
32 Id. at 75.cranad
33 TSN dated 3 April 2008.cranad
34Rollo, pp. 23-26.cranad
35 Exhibit “18,” folder of exhibits.cranad
36 Records, volume I, pp. 150-151.cranad
37 Wikipedia, The Free Encyclopedia.cranad
38 G.R. No. 163868, 4 June 2009, 588 SCRA 249, 256.cranad
39Microsoft Corporation v. Maxicorp, Inc., 481 Phil. 550, 561 (2004).cranad
40Castillo v. Court of Appeals, 329 Phil. 150, 152 (1996)
41 G.R. No. 97214, 18 July 1994, 234 SCRA 175, 185-186.cranad
42 Exhibit “18,” folder of exhibits.cranad
43Uriarte v. People, 540 Phil. 477, 493 (2006), citing Santos v. People, 520 Phil. 58, 68 (2006); Cabrera v. Sandiganbayan, 484 Phil. 350, 360 (2004), and Jacinto v. Sandiganbayan, 258-A Phil. 20, 26 (1989).cranad
44People v. Atienza, G.R. No. 171671, 18 June 2012, 673 SCRA 470, 480 citing Gallego v. Sandiganbayan, 201 Phil. 379, 383 (1982).cranad
45Uriarte v. People, supra note 42.cranad
46 Id. at 494, citing Alvizo v. Sandiganbayan, 454 Phil. 32, 72 (2003).cranad
47 Id., citing Sistoza v. Desierto, 437 Phil. 117, 132 (2002)
48Albert v. Sandiganbayan, G.R. No. 164015, 26 February 2009, 580 SCRA 279, 290 citing Air France v. Carrascoso, et. al., 124 Phil. 722, 737 (1966).cranad
49Albert v. Sandiganbayan, id. at 290, citing Sistoza v. Desierto, supra note 46 at 132.cranad
50 Section 27, Rule 5 of COA Circular No. 92-386, otherwise known as the “Rules and Regulations on Supply and Property Management in the Local Governments.”
51 TSN, 15 January 2008, p. 20.cranad
52 About.com. Banking/Loans, How Letters of Credit Work by Justin Pritchard.