Danilo Oliveros y Iba�ez vs. Office of the Ombudsman, et al.

Manila

THIRD DIVISION

[ G.R. No. 210597. September 28, 2020 ]

DANILO OLIVEROS Y IBA'EZ, PETITIONER, VS. OFFICE OF THE OMBUDSMAN, DANTE M. QUINDOZA, DIONISIO SAMEN, ERNIE LAZO, SIXTO INALES, OSCAR IGNA, ED HERNANDEZ, VICTORIO SUNGA, RONALD SALVACION, ANGEL PINEDA, DONATO AMADO, ROMEO GALURAN, AND ELMER AVANZADO, RESPONDENTS.

DECISION

LEONEN, J.:

The Office of the Ombudsman's finding on the absence of probable cause to file an information shall be binding, unless it is convincingly shown that this determination was tainted with grave abuse of discretion.

This Court resolves the Petition for Certiorari1'filed by Danilo Oliveros'y'Iba'ez (Oliveros), who assails the Office of the Ombudsman's September 12, 20112'and October 8, 20133'Orders dismissing his complaint for violation of Section 3(e) of Republic Act No. 3019, or the Anti-Graft and Corrupt Practices Act.

On March 12, 2005, Oliveros filed a Sinumpaang Salaysay against Dante M. Quindoza (Quindoza), Engineer Dionisio Samen (Engr. Samen), Ernie Lazo,4'Sixto Inales, Oscar Igna, Ed Hernandez, Victorio Sunga, Ronald Salvacion, Angel Pineda, Donato Amado, Romeo Galuran, and Elmer Avanzado (collectively, respondents). He accused them of violating Section 3(e) of Republic Act No. 3019.5

Oliveros narrated that on July 1, 2003, around 20 men led by Engr. Samen arrived at his house and informed his wife to get all their belongings, as the house would be demolished.6

When Oliveros's wife asked if they had a permit or court order, the engineer replied that they did not need a court order because "may sarili silang batas[.]"7'According to Oliveros, Engr. Samen said that the demolition was through the order of Quindoza, the Bataan Economic Zone administrator.8

Oliveros's case was lodged with the Office of the Provincial Prosecutor of Bataan, which set the case for preliminary investigation and docketed it as I.S. No. 05-239.9

Respondents filed a Joint Counter-Affidavit,10'arguing that Oliveros was guilty of forum shopping because his wife had earlier filed a similar complaint on July 31, 2003. This was docketed as Criminal Case No. 03-7760, before the Municipal Trial Court of Mariveles, Bataan.11

Respondents averred that in Criminal Case No. 03-7760, the Regional Trial Court of Bataan had already ruled that the Municipal Trial Court had no jurisdiction, as one of the accused occupied a position with Salary Grade 28, making the case fall within the Sandiganbayan's jurisdiction.12'Thus, the case records were transmitted to the Office of the Ombudsman,'13'docketed as OMB-L-C-05-0613-F.14

For that same reason, respondents also claimed that the Office of the Provincial Prosecutor lacked jurisdiction over the case Oliveros filed.15

In its April 25, 2007 Resolution, the Office of the Provincial Prosecutor recommended that an information be filed against respondents for violating Republic Act No. 3019 and Presidential Decree No. 1096, or the National Building Code. The case was then subjected to review by the Office of the Deputy Ombudsman for Luzon, docketed as OMB-L-C-07-0487-E.16

In a Review Action17'issued on June 28, 2007, the Office of the Deputy Ombudsman for Luzon terminated Oliveros's case to avoid duplicity and conflicting findings in the two cases separately filed by the spouses. It disposed of the case without prejudice to the outcome of the other case, which was already forwarded to the Office of the Ombudsman for review.18

Oliveros moved to appeal19'before the Office of the Ombudsman. The Motion to Appeal was treated as a Motion for Reconsideration of the Review Action.20

On September 12, 2011, the Office of the Ombudsman issued an Order21'reversing the Office of the Provincial Prosecutor's recommendation and dismissing Oliveros's complaint for lack of probable cause.22

The Office of the Ombudsman ruled that respondents did not show manifest partiality, evident bad faith, or gross inexcusable negligence in demolishing Oliveros's house in the PEZA compound.23

The Office of the Ombudsman deemed the demolition in consonance with Section 14(i) of Republic Act No. 7916.24'It also found that respondents complied with the required due notice through an April 9, 2003 demand letter sent to Oliveros.25

The Office of the Ombudsman also disagreed with the recommendation that an information be filed for violation of Section 301 of Presidential Decree No. 1096 for the demolition without a building permit.26'It ruled that Section 14(i) of Republic Act No. 7916, on which the demolition hinged, does not require PEZA to obtain a demolition permit before demolishing structures within its jurisdiction.27

The Office of the Ombudsman further discussed:

Moreover, R.A. No. 7916, being a particular law or specific law when it comes to houses, buildings or other structures constructed without the necessary permit within the PEZA is the more applicable law than P.D. 1096 which is a general law. In case of conflict between a specific and a general law, the specific law prevails.

Finally, under R.A. No. 7916, summary eviction or demolition is authorized despite laws, decrees, orders, and executive issuances to the contrary.28

On May 4, 2012, Oliveros moved for reconsideration, but his Motion was denied in the Office of the Ombudsman's October 8, 2013 Order.29

Aggrieved, Oliveros filed this Petition for Certiorari.30

On April 21, 2014, this Court required the Office of the Ombudsman and respondents to comment on the Petition.31'The Office of the Ombudsman, as well as Engr. Samen, Inales, and Salvacion, filed their respective comments. This Court then required petitioner to submit the new address of one of the respondents, Ernie Lazo.32

On February 16, 2015, petitioner informed33'this Court that respondent Ernie Lazo had retired three years prior and no longer resided in Mariveles, Bataan. He also stated that Quindoza retired, allegedly went to the United States in 2014, and had yet to return to the Philippines.34

On June 13, 2016, this Court required petitioner to provide the forwarding addresses of the remaining respondents who have not filed a comment.35'Petitioner complied with the directive, as noted in the September 28, 2016 Resolution.36

On February 15, 2017,37'this Court deemed as served copies of the September 28, 2016 Resolution sent to the remaining respondents. It also required petitioner anew to provide their correct addresses,38'with which petitioner complied.39

On July 5, 2017,40'this Court again required respondents Oscar Igna and Ed Hernandez to file a comment. When Ed Hernandez failed to comply, this Court issued a show-cause order, and when he still failed to do that, he was fined.41'As for Oscar Igna, this Court again required petitioner to provide his current address, since the notice was returned unserved.42

Later, this Court learned that the show cause order for respondent Ed Hernandez was returned unserved, with a postal note saying that he was deceased. Thus, on November 19, 2018, this Court required petitioner to verify his death.43'Petitioner later confirmed that Ed Hernandez had already died on November 4, 2017,44'which this Court noted in the June 26, 2019 Resolution.45

On September 18, 2019, this Court dispensed with the comments of respondents Oscar Igna, Victoria Sunga, Angel Pineda, Donato Amado, Romeo Galuran, and Elmer Avanzado.46

Before this Court, petitioner argues that the documentary evidence supports a finding of probable cause that respondents violated Section 3(e) of Republic Act No. 3019 and Presidential Decree No. 1096.47

In addition, petitioner claims that the demolition was illegal for not complying with the requirements for summary demolition under Section 14(i) of Republic Act No. 7916,48'which provides that "the summary demolition should be caused or conducted by the director general or his [or her] authorized representative[.]"49

Petitioner points out that in the Demolition Order, the Director General at the time, Lilia B. De Lima, authorized respondent Quindoza, then Bataan Economic Zone administrator, to cause the demolition. Petitioner points out that since respondent Engr. Samen led the summary demolition, and not respondent Quindoza, the demolition was illegal. He argues that there was no evidence that the Director General authorized respondent Engr. Samen to conduct the summary demolition.50

Besides, petitioner posits, even if respondent Quindoza delegated the authority to respondent Engr. Samen, this would still be illegal, since the law does not allow the further delegation of authority to cause summary demolitions.51

Petitioner admits that Republic Act No. 7916 is the specific law when it comes to houses and other structures without permit inside the PEZA zone, and thus, prevails over Presidential Decree No. 1096, a general law. However, he insists that since Republic Act No. 7916 is silent on the procedure for summary demolition, Presidential Decree No. 1096 must govern.52

For these reasons, petitioner argues that the Office of the Ombudsman gravely abused its discretion when it dismissed the case.53

On the other hand, the Office of the Ombudsman argues in its Comment54'that a finding of probable cause is not reviewable by the courts unless grave abuse of discretion is sufficiently shown.55'It also notes that petitioner raised issues that touch on factual findings, requiring a review of the evidence presented, which is improper in a certiorari petition.56

In their Comment,57'respondents Samen, Sixto Inales, and Ronald Salvacion raise that petitioner did not state in this Petition when he received a copy of the September 12, 2011 Order, making it impossible to determine if he filed his Motion for Reconsideration on time.58

On the substantive issue, respondents maintain that the demolition under Section 14 of Republic Act No. 7916 does not require a building permit.59'They also point out that petitioner's house was illegally erected, and was akin to a nuisance which could be summarily abated.60

This Court resolves the main issue of whether or not the Office of the Ombudsman gravely abused its discretion in dismissing the complaint based on lack of probable cause.

Subsumed under this is the issue of whether the governing law in the demolition of structures within a PEZA territory is Republic Act No. 7916 or Presidential Decree No. 1096.

The Petition is dismissed.

The Office of the Ombudsman's finding on the absence of probable cause to file an information shall be binding, unless it is convincingly shown that such determination was tainted with grave abuse of discretion.61

The determination of probable cause entails an assessment of facts, which is a function of the Office of the Ombudsman. Moreover, the determination of probable cause is generally an executive function.62'Thus, in the absence of grave abuse of discretion, courts should refrain from disturbing the findings of the Office of the Ombudsman, in keeping with the principle of separation of powers.63

Petitioner has failed to sufficiently establish his case. The Office of the Ombudsman did not commit grave abuse of discretion in not finding probable cause against respondents.

Petitioner's case relies on his argument that it is Presidential Decree No. 1096, or the National Building Code, and not Republic Act No. 791664'that must be applied in situations of a summary demolition of a structure within a PEZA-owned or administered area.

Section 14(i) of Republic Act No. 7916 provides:

SECTION 14. Powers and Functions of the Director General. ' The director general shall be the overall coordinator of the policies, plans and programs of the ECOZONES. As such, he shall provide overall supervision over and general direction to the development and operations of these ECOZONES. He shall determine the structure and the staffing pattern and personnel complement of the PEZA and establish regional offices, when necessary, subject to the approval of the PEZA Board.

In addition, he shall have the following specific powers and responsibilities:

. . . .

(i) To require owners of houses, buildings or other structures constructed without the necessary permit whether constructed on public or private lands, to remove or demolish such houses, buildings, structures within sixty (60) days after notice and upon failure of such owner to remove or demolish such house, building or structure within said period,'the director general or his authorized representative may summarily cause its removal or demolition at the expense of the owner, any existing law, decree, executive order and other issuances or part thereof to the contrary notwithstanding[.] (Emphasis supplied)

On the other hand, petitioner cites the following National Building Code provisions as applicable to this case:

SECTION 213. Penal Provisions. ' It shall be unlawful for any person, firm or corporation, to erect, construct, enlarge, alter, repair, move, improve, remove, convert, demolish, equip, use, occupy, or maintain any building or structure or cause the same to be done contrary to or in violation of any provision of this Code.

Any person, firm or corporation who shall violate any of the provisions of this Code and/or commit any act hereby declared to be unlawful shall upon conviction, be punished by a fine of not more than twenty thousand pesos or by imprisonment of not more than two years or by both such fine and imprisonment: Provided, that in the case of a corporation firm, partnership or association, the penalty shall be imposed upon its officials responsible for such violation and in case the guilty party is an alien, he shall immediately be deported after payment of the fine and/or service of his sentence.1'шphi1

SECTION 1108. Demolition. ' (a) The work of demolishing any building shall not be commenced until all the necessary pedestrian protective structures are in place.

(b) The Building Official may require the permittee to submit plans, specifications and complete schedule of demolition. When so required, no work shall be done until such plans, specifications and schedule are approved by the Building Official.

Petitioner argues that when it comes to the manner of actual demolition of a particular building or structure, Presidential Decree No. 1096 becomes the special law and Republic Act No. 7916 is deemed as the general law, as the latter never mentions how a summary demolition of a house or structure inside the PEZA zone is to be made.65

This Court finds that there is no inconsistency with the provisions of Presidential Decree No. 1096 and Republic Act No. 7916, as held in'PEZA v. Carantes.66

Carantes'involved the issue of which between PEZA and the local building official had the authority to issue permits to build structures within the PEZA-owned or administered areas. In deciding the case, this Court discussed how PEZA assumes the power to enforce the National Building Code by virtue of Presidential Decree No. 1716.67'This Court held:

P.D. No. 1716 further amended P.D. No. 66, the law creating the EPZA, by creating the PEZA. Section 11 of R.A. No. 7916 provides that the existing EPZA created under P.D. No. 66 shall evolve into and be referred to as the PEZA in accordance with the guidelines and regulations set forth in an executive order issued for the purpose.

Thus, on October 30, 1995, Executive Order No. 282 was enacted. Under Section 1 thereof,'all the powers, functions and responsibilities of EPZA under P.D. No. 66, as amended, insofar as they are not inconsistent with the powers, junctions and responsibilities of the P EZA, under R.A. No. 7916, shall be assumed and exercised by PEZA.

Among such powers is the administration and enforcement of the National Building Code of the Philippines in all zones and areas owned or administered by EPZA, as expressly provided in Section 6 of P.D. No. 1716:

SEC. 6. The administration and enforcement of the provisions of Presidential Decree No. I 096, otherwise known as the National Building Code of the Philippines in all zones and areas owned or administered by the Authority shall be vested in the Administrator or his duly authorized representative. He shall appoint such EPZA qualified personnel as may be necessary to act as Building Officials who shall be charged with the duty of issuing Building Permits in the different zones. All fees and dues collected by the Building Officials under the National Building Code shall accrue to the Authority. . . .

This function, which has not been repealed and does not appear to be inconsistent with any of the powers and functions of PEZA under R.A. No. 7916, subsists. . . .

By specific provision of law, it is PEZA, through its building officials, which has authority to issue building permits for the construction of structures within the areas owned or administered by it, whether on public or private lands.'Corollary to this, PEZA, through its director general may require owners of structures built without said permit to remove such structures within sixty (60) days. Otherwise, PEZA may summarily remove them at the expense of the owner of the houses, buildings or structures.68'(Emphasis supplied, citations omitted)

Thus, under the law, PEZA's director general and authorized representatives may summarily demolish structures within PEZA-owned or administered areas if constructed without a permit.

We likewise agree with the Office of the Ombudsman's finding that petitioner failed to establish that respondents exhibited manifest partiality, evident bad faith, or gross inexcusable negligence in demolishing petitioner's house inside the Bataan Economic Zone.

The elements for a finding of a violation of Section 3(e) of Republic Act No. 3019 are as follows:

(1) the offender is a public officer;

(2) the act was done in the discharge of the public officer's official, administrative or judicial functions;

(3) the act was done through manifest partiality, evident bad faith, or gross inexcusable negligence; and

(4) the public officer caused any undue injury to any party, including the Government, or gave any unwarranted benefits, advantage or preference.69

This Court has interpreted what are meant by manifest partiality, evident bad faith, or gross inexcusable negligence, which fall under the third element. In one case, it explained:

"Partiality" is synonymous with "bias" which "excites a disposition to see and report matters as they are wished for rather than as they are." "Bad faith does not simply connote bad judgment or negligence; it imputes a dishonest purpose or some moral obliquity and conscious doing of a wrong; a breach of sworn duty through some motive or intent or ill will; it partakes of the nature of fraud." "Gross negligence has been so defined as negligence characterized by the want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but wilfully and intentionally with a conscious indifference to consequences in so far as other persons may be affected. It is the omission of that care which even inattentive and thoughtless men never fail to take on their own property."70'(Citations omitted)

Here, according to the Office of the Ombudsman, records showed that respondents complied with the due notice requirement under Section 14(i) of Republic Act No. 7916. Moreover, the law does not require PEZA to obtain a demolition permit before structures within its jurisdiction could be demolished. There is also no showing that the respondents acted in an unjust and inhumane way in the demolition.

The Office of the Ombudsman's ruling that there was no finding of probable cause must be respected, without any showing of grave abuse of discretion. This Court has held:

The Ombudsman has the discretion to determine whether a criminal case, given its attendant facts and circumstances, should be filed or not. The Ombudsman may dismiss the complaint should the Ombudsman find the complaint insufficient in form or substance, or the Ombudsman may proceed with the investigation if, in the Ombudsman's view, the complaint is in due form and substance.'Hence, the filing or non-filing of the information is primarily lodged within the "full discretion" of the Ombudsman.71'(Emphasis supplied, citations omitted)

Lastly, petitioner argues that the demolition was illegal because it was not the administrator himself who actually caused the demolition. It bears noting that petitioner had posited contradictory arguments when he said, on one hand, that Presidential Decree No. 1096 is the applicable law, and on the other, that respondents failed to comply with Section 14(i) of Republic Act No. 7916 on who the authorized person to lead the demolition is. In any case, he is mistaken.

Petitioner seemingly equates authority and its valid delegation with physical presence. This argument fails to persuade. Section 14 of Republic Act No. 7916 provides that either the director general or their authorized representatives can carry out the summary demolition. The records show that respondent Engr. Samen was acting under the orders of respondent Quindoza, the Bataan Economic Zone administrator, who is in turn supervised by the director general through a Demolition Order.72'To insist that the administrator must be physically present in every demolition is to go beyond the law.

All told, petitioner has failed to show that the Office of the Ombudsman gravely abused its discretion.

WHEREFORE, the Petition for Certiorari is'DISMISSED.

SO ORDERED.

Gesmundo, Carandang, Zalameda, and'Gaerlan, JJ., concur.

Footnotes

1'Rollo, pp. 24-43.

2'Id. at 56-62. The Order was penned by Graft Investigation & Prosecution Officer II Edwin B. Carabbacan, reviewed by Director Joaquin F. Salazar, concurred in by Assistant Ombudsman Rolando B. Zoleta, recommended for approval by Deputy Ombudsman for Luzon Francis H. Jardeleza, and was approved by Ombudsman Conchita Carpio Morales.

3'Id. at 96-99. The Order was penned by Graft Investigation & Prosecution Officer III Jose Ronald M. Bersales and approved by Ombudsman Conchita Carpio Morales.

4'At times written as "Hermi Lazo" in the'rollo.

5'Rollo, p. 26.

6'Id. at 26-27.

7'Id. at 26.

8'Id. at 27 and 34.

9'Id. at 27

10'Id. at 46-48.

11'Id. at 46.

12'Id. at 47.

13'Id.

14'Id. at 52-53.

15'Id. at 47.

16'Id. at 27.

17'Id. at 50-54.

18'Id. at 46-47.

19'Id. at 55.

20'Id. at 56.

21'Id. at 56-62.

22'Id. at 61.

23'Id. at 57-58.

24'Id. at 58. An Act Providing For The Legal Framework And Mechanisms For The Creation, Operation, Administration, And Coordination Of Special Economic Zones In The Philippines, Creating For This Purpose, The Philippine Economic Zone Authority (PEZA), And For Other Purposes.

Republic Act No. 7916 (1995), sec. 14 provides:

(i) To require owners of houses, buildings or other structures constructed without the necessary permit whether constructed on public or private lands, to remove or demolish such houses, buildings, structures within sixty (60) days after notice and upon failure of such owner to remove or demolish such house, building or structure within said period, the director general or his authorized representative may summarily cause its removal or demolition at the expense of the owner, any existing law, decree, executive order and other issuances or part thereof to the contrary notwithstanding[.]

25'Id. at 59.

26'Id.

27'Id.

28'Id. at 60.

29'Id. at 96-99.

30'Id. at 24-43.

31'Id. at 101.

32'Id. at 183.

33'Id. at 187-192.

34'Id. at 188. On July 6, 2015, this Court noted petitioner's Manifestation/Compliance and deemed as served the April 21, 2014 and December 1, 2014 Resolutions sent to respondents Ernie Lazo, Oscar Igna, Ed Hernandez, Victoria Sunga, Angel Pineda, Donato Amado, Romeo Galuran, and Elmer Avanzado. This court dispensed with the comments of Ernie Lazo and Dante Quindoza (see'rollo, p. 197).

35'Id. at 201-202.

36'Id. at 201-202.

37'Id. at 245.

38'Id.

39'Id. at 258.

40'Id.

41'Id. at 272 and 280.

42'Id. at 272.

43'Id. at 283-284.

44'Id. at 300.

45'Id. at 312.

46'Id. at 316.

47'Id. at 32.

48'Id. at 34.

49'Id.

50'Id. at 34-35.

51'Id.

52'Id. at 36.

53'Id. at 36-37.

54'Id. at 132-146.

55'Id. at 139-142.

56'Id.

57'Id. at 148-152.

58'Id. at 148.

59'Id. at 150.

60'Id.

61'Beltran and Sarmiento v. Sandiganbayan, G.R. No. 201117, January 22, 2020, [Per J. Leonen, Third Division].

62'Id.

63'Tupaz v. Office of the Deputy Ombudsman for the Visayas, G.R. Nos. 212491-92, March 6, 2019, [Per J. Leonen, Third Division].

64'Subsequently amended by Republic Act No. 8748 on June 1, 1999.

65'Rollo, p. 36.

66'635 Phil. 541 (2010) [Per J. Villarama, Third Division].

67'Further Amending Presidential Decree No. 66 Dated November 20, 1972, Creating The Export Processing Zone Authority (1980).

68'PEZA v. Carantes, 635 Phil. 541,551-553 (2010) [Per J. Villarama, Third Division].

69'Sison v. People, 628 Phil. 573, 583 (2010) [Per J. Corona, Third Division].

70'Fonacier v. Sandiganbayan, 308 Phil. 660, 693-694 (1994) [Per J. Vitug, En Banc].

71'Vergara v. Ombudsman, 600 Phil. 26, 41 (2009) [Per J. Carpio, En Banc].

72'Rollo, p. 67. Memorandum dated July 9, 2001, with the subject: "Demolition Order Re illegally constructed buildings/houses inside the [Bataan Economic Zone]".