[SP No. 58017. March 7, 2003]

BENJAMIN R. MILITAR, petitioner, vs. HON. ANIANO A. DESIERTO, in his capacity as Ombudsman, HON. NICANOR J. CRUZ, JR., in his capacity as Officer-in-Charge, Ombudsman, Visayas, Arturo C. MOJICA, in his capacity as Deputy Ombudsman for Visayas, VIRGINIA PALANCA-SAntiago, in her capacity as Graft Investigator III, Onbudsman, Visayas, VENERANDO RALPH P. SANTIAGO, JR., in his capacity as Graft Investigator I, Ombudsman, Visayas, RODRIGO WENCESLAO and CONRADO MIAGA, respondents.

1. THE OMBUDSMAN ACT (REPUBLIC ACT NO. 6770);

POWER OF OMBUDSMAN TO DISMISS A

COMPLAINT WITHOUT GOING THROUGH A

PRELIMINARY INVESTIGATION, UPHELD.

Under R.A. No. 6770, the Ombudsman has the power to investigate and conduct preliminary investigation. Absent any grave abuse of discretion tainting it, the courts will not interfere with the Ombudsman's supervision and control over the preliminary investigation conducted by him. In fact, the Ombudsman has the power to dismiss a complaint outright without going through a preliminary investigation (Mamburao vs. Office of the Ombudsman, G.R. No. 139141-42, November 15, 2000). In the case at bar, the Resolution of the Ombudsman Visayas dismissing petitioner's complaint for having found no probable cause to prosecute private respondent after a careful study of the records is in accord with the jurisdiction granting leeway to the investigating powers of the Ombudsman.

2. ID.; ID.; SUMMARY DISMISSAL OF COMPLAINT BY THE OMBUDSMAN NOT AMOUNTING TO GRAVE ABUSE OF DISCRETION.-This Court cannot impute grave abuse of discretion on the part of the public respondent in view of the summary dismissal of petitioner's complaint. Otherwise stated, it is beyond the ambit of this Court to review the exercise of discretion of the Ombudsman in prosecuting or dismissing a complaint filed before it. Such initiative and independence are inherent in the Ombudsman who, beholded to no one, acts as the

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champion of the people and preserver of the integrity of the public service. (infra, Mamburao).

ORIGINAL ACTION in the Court of Appeals.

The facts are stated in the opinion of the Court.

Benjamin R. Militar for petitioner.

Solicitor General Ricardo P. Galvez, Assistant Solicitor General Carlos N. Ortega and Solicitor Nathaniel E. Baldono for respondents.

BELLO, E.R. JR., J.:

At bar is a special civil action for certiorari under Rule 65 of the Rules of Civil Procedure seeking to annul the respondent Ombudsman's dismissal of petitioner's complaint on the ground that there was no basis for the criminal prosecution of the private respondents.

The controversy stemmed from a barangay resolution no. II series of 1995 passed by Sangguniang Barangay of Lamanoc, Merida, Leyte dated October 4, 1995 entitled "A Resolution Requesting DECS-Merida District thru the Central School Principal Mr. Bonifacio Avila, to allow the Barangay Council of Lamanoc to Construct a Barangay Street on the Northeast Site of Lamanoc Primary School Site."

A portion of the barangay resolution is hereby quoted:

"Whereas, it has been observed that people do not have easy accessibility to the beach along the particular area near the school site;

Whereas, due to lack of passageway, people have no choice but to "trespass" on the school grounds in order to reach the beach, thus destroying some school properties especially the fence and the plants;

Whereas, further observations revealed that the construction of such barangay street would be beneficial to everyone including the school children and damage to school properties would be prevented if a permanent street would be constructed thereat;

* "(Rollo, pp. 36-37)

Pursuant to the barangay resolution, the barangay street was constructed.

On October 22, 1998, petitioner Benjamin Militar filed a complaint with the OmbudsmanVisayas (Rollo, pp. 28-29) against private respondents Rodrigo Wenceslao, municipal mayor of Merida, Leyte and Conrado Miaga, then Barangay Captain of Lamanoc, Merida, Leyte for gross violation of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act by constructing a road in Barangay Lamanoc, Merida Leyte for the sole benefit of a resort owned by Mayor Rodrigo Wenceslao.

In their counter-affidavits, private respondents denied petitioner's allegations. Respondent Wenceslao claimed that although he owned a beach resort in Barangay Lamanoc, the construction of the barangay road referred to in the complaint has nothing to do with it. The road was constructed based on a barangay resolution for the benefit of the people who wanted to have access to the beach. Moreover, its construction was neither paid out of municipal funds nor by barangay funds, but out of national funds released through the Office of the District Engineer of Leyte 4th Engineering District of the Department of Public Works and Highways. They attached joint affidavits of three fisherman and 17 residents of their municipality who can attest to the fact that the existing barangay road is being used by the residents in going to and coming out from the beach or sea.

The Office of the Ombudsman Visayas rendered a Resolution dated February 4, 1999, which provides:

"From a careful study of the records, this Office believes that the respondents committed no violation under any of the provisions of R.A. 3019. Any public officer or private person may violate the anti-graft law only if he commits any of the unlawful acts or omissions enumerated in Sections 3, 4, 5 and 6 thereof. But reading the records, even with the stretch of immigration, this Office finds nothing which suggests that respondents committed any of these acts or omissions, particularly those under Section 3.

Records show that the barangay road in question was constructed based on Barangay Resolution No. II, Series of 1995, which was duly approved by the officials of Barangay Lamanoc. From the wordings of this Resolution, the lack of passageway from the national highway to the beach, necessitated the opening just to gain access to the beach thereby destroying some school properties, such as: fence

and plants. As observed by the barangay officials, the construction of the road would benefit everyone, including the school children and the school itself whose properties were frequently damaged by the tresspassers. The road, therefore, was constructed primarily for the benefit of the people who frequently used the school premises everytime they went to the beach, and any benefit derived by the respondent Mayor from this road, if there is, is only incidental and violates no law, particularly R.A. 3019.

WHEREFORE, for all the foregoing, the undersigned most respectfully recommends that this case be DISMISSED for lack of merit.

So ordered." (rollo, p. 57-58)

Petitioner filed a Motion for Reconsideration

(Rollo, pp. 59-63) of such Resolution on July 2, 1999 which was denied in an Order dated

July 8, 1999. (Rollo, pp. 80-81)

Thereafter, a Motion for the Designation of a New Investigator was filed by petitioner on August 2, 1999. Public respondent denied the motion for inhibition in an Order dated August 13, 1999. (Rollo, p. 66)

In an Order dated August 13, 1999, the public respondent denied the Motion for Inhibition (Rollo, p. 66).

On November 22, 1999, the Ombudsman Manila issued on Order denying petitioner's Urgent Petition for Review.

On December 29, 1999, petitioner filed a Motion for Reconsideration of the Order. In a letter of "1st Indorsement" dated January 18, 2000, the Motion for Reconsideration was

For the petitioner, the regularity of the passage of the resolution was therefore brought into question by the complaint. Yet, no effort was made by the public respondents to even

In an Order dated January 19, 2000, the Ombudsman Visayas denied petitioner's motion.

Hence, this petition questioning the actuations of the respondents officers of the Ombudsman in dismissing summarily petitioner's complaint against private respondents Wenceslao and Miaga.

The issue presented by this case is whether or not public respondent Ombudsman committed grave abuse of discretion amounting to lack or excess of jurisdiction when it refused to investigate petitioner's complaint.

Petitioner argued that the case was dismissed outright without any preliminary hearing, much less investigation. According to petitioner, in all the orders dismissing his complaint, respondent officials of the Ombudsman never went beyond the questioned barangay resolution as bases for their factual findings when in fact the falsity of the barangay resolution was the basis of the complaint filed. Petitioner maintained that the recitals of the barangay resolution are false as accessibility to the beach did not require the questioned barangay road because the barangay constituents avail of the beach in some other areas of the barangay. Moreover, the people use other access to the beach, which is the unfinished road in the middle of the barangay, not the school grounds; thus, there is no basis therefore to trespass to the school grounds, in going to the beach. Also, it is most ironic that school children would

benefit from the road leading to a resort, as stated in the ultimate paragraph of the barangay resolution, when the respondent barangay captain questioned the existence of a resort near the school because its presence would bother the children.

their rules of procedure.

The petition is bereft of merit.

To begin with, under R.A. No. 6770, the Ombudsman has the power to investigate and conduct preliminary investigation. Absent any grave abuse of discretion tainting it, the courts

will not interfere with the Ombudsman's supervision and control over the preliminary investigation conducted by him. In fact, the Ombudsman has the power to dismiss a complaint outright without going through a preliminary investigation. (Mamburao vs. Office of the Ombudsman, G.R. No. 13914142, November 15, 2000).

In the case at bar, the Resolution of the Ombudsman Visayas dismissing petitioner's complaint for having found no probable cause to prosecute private respondents after a careful study of the records is in accord with the jurisprudence granting leeway to the investigating powers of the Ombudsman. The resolution amply explained the reason of the dismissal, that is, if there was benefit that resulted to the beach resort owned by respondent Mayor, it was merely incidental. In short, the complaint stands on a shaky foundation which prompted the public respondents to dismiss the complaint.

In the case of Presidential Ad Hoc Fact

Finding Committee on Behest Loans vs. Desierto (G.R. No. 136192, August 14, 2001), the Supreme Court ruled that the Ombudsman may dismiss the complaint if he finds it to be insufficient in form or substance, or if he otherwise finds no ground to continue with the inquiry, or he may proceed with the investigation of the complaint if, in his view, it is in due and proper form. In fact, the Ombudsman has the power to dismiss a complaint outright without going through a preliminary investigation.

Thus, this Court cannot impute grave abuse of discretion on the part of the public respondent in view of the summary dismissal of petitioner's complaint. Otherwise stated, it is beyond the ambit of this Court to review the exercise of discretion of the Ombudsman in prosecuting or dismissing a complaint filed before it. Such initiative and independence are inherent in the Ombudsman who, beholden to no one, acts as the champion of the people and preserver of the integrity of the public service. (infra, Mamburao).

In our jurisprudence, "grave abuse of discretion" implies such "capriciousness and whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to an evasion of positive duty or virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility. (People vs. Chavez, G.R. No. 140690, June 19, 2001).

Considering the above pronouncement, the petition for certiorari must fail absent grave

abuse of discretion on the part of public respondents.

WHEREFORE, the instant petition is hereby DENIED. The Orders of the respondent Ombudsman dismissing petitioner's complaint is AFFIRMED.

So ORDERED.

Garcia and Pestaño, JJ., concur.

Petition denied. Orders of the Ombudsman affirmed.

CERTIFACATION

Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the above decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.

(SGD.) CANCIO C. GARCIA Associate Justice Chairman, First Division