Javier v. Office of the Ombudsman

SECOND DIVISION

[G.R. No. 232997. November 10, 2021.]

PETE GERALD L. JAVIER AND DANILO B. TUMAMAO, petitionersvs. OFFICE OF THE OMBUDSMAN AND TASK FORCE ABONO-FIELD INVESTIGATION OFFICE OF THE OFFICE OF THE OMBUDSMAN, respondents.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, Second Division, issued a Resolution dated10 November 2021which reads as follows:

"G.R. No. 232997 (Pete Gerald L. Javier and Danilo B. Tumamao v. Office of the Ombudsman and Task Force Abono-Field Investigation Office of the Office of the Ombudsman). — Before the Court is a Petition for Certiorari with Prayer for the Issuance of a "Temporary Restraining Order and/or Writ of Preliminary Injunction 1 under Rule 65 of the Rules of Court filed by Pete Gerald L. Javier (Javier) and Danilo B. Tumamao (Tumamao) (collectively, petitioners) assailing the September 12, 2016 Resolution 2 and March 3, 2017 Joint Order 3 of the Ombudsman in OMB-C-C-11-0423-G. In the assailed Resolution, 4 the Office of the Ombudsman (Ombudsman) found probable cause to prosecute petitioners for violation of Section 3 (e) of Republic Act No. (RA) 3019 5 while the assailed Joint Order 6 denied petitioners' several motions for reconsideration filed individually and jointly.

The Antecedents

On July 4, 2011, The Task Force Abono, Field Investigation Office, Office of the Ombudsman (Task Force Abono) filed a Complaint 7 against the public officials and private individuals who were involved in the purchase of 15,333 bottles of Bio Nature Liquid Organic Fertilizer (Bio Nature) at P750.00 per bottle for a total amount of P11,449,750.00 from Feshan Philippines, Inc. (Feshan). Javier and Tumamao, as the Provincial Accountant and Provincial Agriculturist of LGU-Isabela, respectively, were among the public officials charged in the complaint. 8

Task Force Abono averred that Tumamao made an undated Purchase Request No. 201-04-13-004 for the purchase of Bio Nature at P750.00 per bottle, while then Provincial Vice-Governor Santiago P. Respicio (Respicio) approved the corresponding Purchase Order (PO) No. 04-03-004, albeit undated. 9

The Inspection and Acceptance Report (IAR) showed that Supply Officer Soledad B. Bulusan inspected, verified, and found the items in order as to quantity and that the items were received by Property Officer Arnold G. Beltran on March 29, 2004. Javier and William Dadez Nicolas, Sr., acting as Provincial Accountant and Assistant Provincial Accountant, signed the March 29, 2004 Disbursement Voucher (DV) No. 302-04-03-00168 allowing the payment of P11,395,206.82, net of tax, as approved by Respicio. As proof of receipt, Feshan issued Official Receipt No. 3022 dated April 5, 2004. 10

In the October 12, 2004 Commission on Audit (COA) Observation Memorandum No. 2004-014 and January 18, 2007 Sworn Statement, COA State Auditor IV Beatris A. Pataueg noted the following irregularities attending the Feshan transaction: (1) the 15,333 bottles of Bio Nature were purchased through direct contracting with Feshan, allegedly the sole and exclusive distributor of Bio Nature; (2) the PO and the IAR lack material and specific information as required under COA Circular No. 96-0101; (3) the distribution of 14,571 bottles out of the 15,333 bottles were not supported with a master list of actual farmer-recipients; and (4) based on the canvass conducted by the COA on similar foliar fertilizers, there was an overpricing of P9,475,794.00 as the product costs only P120.00 per bottle and the P750.00 per bottle of Bio Nature was beyond the 10% tolerable allowance under COA Circular No. 85-55-A. 11 aScITE

In his defense, Javier explained that his act of signing the DV and Journal Entry Voucher (JEV) was in compliance with his sworn duty as the Provincial Accountant. He signed the DV because all the supporting documents show that the questioned transaction was complete, i.e., the approved PO up to the IAR show that the 15,333 bottles of Bio Nature were delivered to LGU-Isabela. He asserted that it was purely ministerial on his part to order the recording of the vouchers as they were already paid by LGU-Isabela. Javier added that he did not question the pricing, specifications, and quantity of goods delivered because these matters were outside his jurisdiction. He further asserted that he did not participate in choosing the supplier as he was not a member of the Bids and Awards Committee (BAC) of LGU-Isabela. 12

Tumamao, on the other hand, narrated that as the Provincial Agriculturist, he recommended Bio Nature because it is organic and has a three-fold effect: as a fertilizer, a growth enhancer, and for crop protection or pest control. He emphasized that other products then being commercialized at that time did not offer the same properties of` Bio Nature. With the general mandate of the Provincial Agriculture Office to disseminate appropriate technologies that are profitable and safe to its farmers and fisherfolks, Tumamao took advantage of the opportunity to test and share Bio Nature to pertinent farmer-constituents, particularly priority rice-growing municipalities with history of disease outbreaks. 13

Furthermore, he warned then Provincial Vice-Governor Respicio that the price of Bio Nature was exorbitant and advised him to haggle and negotiate with the distributor for a lower price. 14

As a member of the BAC with respect to agriculture and fishery procurement, Tumamao asserted that Feshan was the only company that can provide Bio Nature because it is the sole importer and distributor of Bio Nature in the Philippines. Invoking Section 50 of RA 9184, 15 he averred that the process of direct contracting with Feshan was necessary and warranted under the circumstances. 16

Ruling of the Ombudsman

On September 12, 2016, the Ombudsman approved the Resolution 17 finding probable cause to indict Respicio, Javier, and Tumamao for violation of Section 3 (e) of RA 3019. 18

Javier filed a motion for partial consideration, while Tumamao filed an urgent motion for partial consideration. Both petitioners jointly filed a supplemental joint motion for reconsideration and a motion for reconsideration. However, the Ombudsman denied petitioners' motions in its Joint Order 19 dated March 3, 2017. 20

Hence, the petition.

Issues

I. WHETHER THE OMBUDSMAN ACTED WITH GRAVE ABUSE OF DISCRETION IN NOT DISMISSING THE CRIMINAL COMPLAINT AGAINST PETITIONERS ON THE GROUND THAT THEIR RIGHT TO SPEEDY TRIAL, HAS BEEN VIOLATED; AND

II. WHETHER THE OMBUDSMAN ACTED WITH GRAVE ABUSE OF DISCRETION IN HOLDING THAT PROBABLE CAUSE EXISTED TO JUSTIFY THE INDICTMENT OF PETITIONERS FOR VIOLATION OF SECTION 3(E) OF RA NO. 3019.

Arguments of Petitioners

Petitioners stress that they were never involved nor participated in the procurement of the 15,333 bottles of Bio Nature, but merely performed their respective functions as Provincial Accountant and Provincial Agriculturist of LGU-Isabela. Petitioners argue that there is no probable cause to hold them liable for violation of Section 3 (e) of RA 3019. 21

Petitioners also aver that the Ombudsman's five-year delay in resolving the criminal complaint filed against them was unjustified. They contend that instead of presenting any plausible reason to justify the inordinate delay, the Ombudsman focused on their purported inaction or silence in asserting their right to speedy disposition of cases. Citing the case of Coscolluela v. Sandiganbayan, 22 petitioners counter that the inaction or failure of a party to urge the speedy disposition of one's case pending before the Ombudsman does not negate the violation of said party's right to speedy disposition of cases. 23 For petitioners, the lengthy delay in the preliminary investigation and criminal complaint filed against them caused them prejudice. 24

Our Ruling

The petition is dismissed for mootness.

The Court's pronouncement in the case of Javier & Tumamao v. Sandiganbayan docketed as G.R. No. 237997 25 (G.R. No. 237997), which involved the same parties and the same factual antecedents, already dismissed the Information filed by the Ombudsman with the Sandiganbayan against herein petitioners for violation of the latter's constitutional right to speedy disposition of cases.

Apparently, pending the resolution of the instant petition, the Ombudsman proceeded to file the Information for violation of Section 3 (e) of RA No. 3019 before the Sandiganbayan which was docketed as Crim. Case No. SB-17-CRM-1781.

Petitioners therein filed their respective Motion[s] to Quash on the ground of inordinate delay which the Sandiganbayan denied for lack of merit. Petitioners sought reconsideration, but to no avail. Aggrieved, petitioners filed a Petition for Certiorari before the Court which was docketed as G.R. No. 237997.

The Court granted the petition in G.R. No. 237997 and ordered the dismissal of the Information after finding that petitioners' constitutional right to the speedy disposition of cases was violated. The Court declared that there was an unexplained delay of five years from the time the counter-affidavits were filed to the termination of the preliminary investigation through the approval of the Ombudsman's resolution finding probable cause. The Court found that petitioners filed their counter-affidavits on November 15, 2011 and November 22, 2011, respectively; and that after these dates, the record borne out that the case had become dormant until December 5, 2016 when the Ombudsman approved the resolution finding probable cause against Javier and Tumamao. The dispositive portion of the Decision promulgated on June 10, 2020 reads: HEITAD

WHEREFORE, the petition is hereby GRANTED. The assailed Resolutions dated January 25, 2018 and March 1, 2018 Sandiganbayan Sixth Division are ANNULLED and SET ASIDE. The Sandiganbayan is likewise ordered to DISMISS Crim. Case No. SB-17-CRM-1781 for violation of the Constitutional right to speedy disposition of cases of petitioners Pete Gerald L. Javier and Danilo B. Tumamao.

SO ORDERED. 26 (Emphasis omitted)

Here, both petitions indubitably sought the dismissal of the case because of the inordinate delay incurred by the Ombudsman in resolving the case. But because of the Court's Decision dated June 10, 2020 in G.R. No. 237997 which ordered the Sandiganbayan to dismiss Crim. Case No. SB-17-CRM-1781 against herein petitioners, the instant petition questioning the Ombudsman's finding of probable cause against them had already become moot.

An issue is said to have become moot and academic when it ceases to present a justiciable controversy so that a declaration on the issue would be of no practical use or value. 27

The petition also sought for the issuance of a temporary restraining order and/or writ of preliminary injunction enjoining the Ombudsman from proceeding with the implementation of the assailed order and ultimately, the setting aside of the assailed orders. 28 However, the Court finds that the reliefs initially sought for in this petition had been rendered superfluous by supervening events, and thus, the answer to petitioners' question as to whether the Ombudsman committed grave abuse of discretion in finding probable cause against them no longer has any practical value. In fine, there is nothing more left for the Court to do considering that the concomitant Information filed by the Ombudsman before the Sandiganbayan was already dismissed.

In Go v. Sandiganbayan, 29 the Court held that "[w]ith the dismissal of the criminal cases by the Sandiganbayan, the Court's opinion on whether the same should proceed and whether the Sandiganbayan should try the cases will serve no useful purpose other than as a theoretical exercise," to wit:

Courts of justice constituted to pass upon substantial rights will not consider questions where no actual interests are involved, Courts generally decline jurisdiction over moot cases because there is no substantial relief to which petitioner will be entitled and which WILL anyway be negated by the dismissal of the petition. This Court, therefore, ought to abstain from expressing its opinion in the case at bar where no legal relief is needed or called for. 30 (Emphasis supplied.)

In conclusion, the Court is constrained to dismiss the present petition as it has been rendered moot by the pronouncement of the Court in G.R. No. 237997.

WHEREFORE, the petition is DISMISSED for being moot.

The Court NOTES the letter dated October 18, 2021 of Ms. Caroline A. De Leon, OIC, Central Records Division, Office of the Ombudsman, forwarding the records of OMB-C-C-11-04-23-G consisting of two (2) white folders, in compliance with the Resolution dated September 13, 2021.

SO ORDERED."

By authority of the Court:

(SGD.) TERESITA AQUINO TUAZONDivision Clerk of Court

Footnotes

1.Rollo, Vol. I, pp. 3-40.

2.Id. at 44-62; signed by Graft Investigation and Prosecution Officer III Rachel T. Cariaga-Favila, Director Adoracion A. Agbada, Deputy Ombudsman for Luzon Gerard A. Mosquera; Approved by Ombudsman Conchita Carpio Morales.

3.Id. at 64-72; signed by Graft Investigation and Prosecution Officer III Rachel T. Cariaga-Favila, Director Adoracion A. Agbada, Deputy Ombudsman for Luzon Gerard A. Mosquera; Approved by Ombudsman Conchita Carpio Morales.

4.Id. at 64-70.

5. Entitled "Anti-Graft and Corrupt Practices Act," approved on August 17, 1960.

6.Rollo, Vol. I, pp. 64-70.

7.Id. at 74-91.

8.Id. at 45 and 49.

9.Id. at 49.

10.Id.

11.Id. at 49-50.

12Rollo, Vol. II, pp. 594-595.

13Id. at 581.

14.Id. at 582.

15. "Government Procurement Reform Act," approved on January 10, 2003.

16.Rollo, Vol. II, p. 583.

17.Rollo, Vol, I, pp. 44-62.

18.Id. at 56.

19.Id. at 64-70.

20.Id. at 70.

21.Id. at 23-36.

22. 714 Phil. 55 (2013).

23.Rollo, Vol. I, pp. 20-21.

24.Id. at 22.

25. Promulgated on June 10, 2020.

26.Javier and Tumamao v. Sandiganbayan, supra note 25.

27.Banco Filipino Savings and Mortgage Bank v. Hon. Tuazon, Jr., 469 Phil. 79 (2004).

28.Rollo, p. 39.

29. 559 Phil. 338 (2007).

30.Id. at 347.