Cabrera vs. Lapid

Resolutions of the Ombudsman in preliminary investigations of criminal cases are not appealable to the Supreme Court by petition for review on certiorari under Rule 45; the exclusive remedy is a petition for certiorari under Rule 65 upon a showing of grave abuse of discretion amounting to lack or excess of jurisdiction. Absent such showing, the Ombudsman's determination of probable cause and dismissal of the complaint will not be disturbed.

Amelia M. Cabrera presented herself as lessee-operator of a fishpond tract under a lease agreement with the Municipality of Sasmuan, Pampanga. Manuel Lapid, Fernando Baltazar, Reynaldo F. Cabrera and Diony Ventura were, respectively, the Governor of Pampanga, Mayor of Sasmuan, Vice-Mayor of Sasmuan, and PNP-Region 3 Superintendent in Pampanga. Criminal complaints for violation of Section 3(e) of the Anti-Graft and Corrupt Practices Act and Article 324 of the Revised Penal Code against public officers fall within the investigatory jurisdiction of the Office of the Ombudsman through preliminary investigation.

Petitioner Amelia M. Cabrera claimed to have entered into a lease agreement with the Municipality of Sasmuan over a tract of land for fishpond operations. She allegedly spent approximately ₱5,000,000.00 for its construction before operations commenced in August 1995. A month later, she learned from newspaper reports of the impending demolition of her fishpond as purportedly illegal and blocking the flow of the Pasak River, prompting her to send the fishpond administrator to dissuade respondents from destroying the property.

Despite her pleas, the fishpond was demolished on 10 October 1995 by dynamite blasting. According to petitioner, the demolition was purposely carried out in the presence of media representatives and other government officials to gain media mileage. She imputed evident bad faith to Mayor Baltazar and Vice-Mayor Cabrera for allowing the destruction despite prior knowledge of the lease, and gross inexcusable negligence to Governor Lapid and Senior Superintendent Ventura for ordering destruction without first verifying legality.

Respondents, for their part, denied criminal liability at the preliminary investigation. Mayor Baltazar and Vice-Mayor Cabrera jointly asserted that the fishpond was an illegal structure because it was erected on the seashore, at the mouth of the Pasak River, and sat on inalienable land, and that demolition was done by Task Force Bilis Daloy upon the directive of then President Fidel V. Ramos. Governor Lapid averred that the lease between petitioner and the municipality, represented by then Mayor Abelardo Panlaqui, was executed two weeks before Mayor Baltazar took his oath in 1995; that the Department of Agriculture was the agency authorized to enter into licensing agreements, and its Regional Director certified petitioner's operation was not covered by any fishpond lease agreement or application; and that the Municipal Health Officer had certified the fishpond as a nuisance per se and recommended its abatement before demolition.

In November 1995 petitioner filed her Complaint-Affidavit with the Ombudsman. The Ombudsman dismissed the complaint upon declaring the fishpond a nuisance per se subject to abatement through police power, and on reconsideration found from DENR records that the property had not been declared disposable or included in areas devoted to fishpond development, rendering the lease void ab initio and the removal justified under Sec. 28 of P.D. No. 704 without need of judicial proceedings for abatement as determined by the district health officer.

• Validity of Lease Contract: Petitioner maintained that the Ombudsman erred and exceeded authority in ruling that the lease contract between the Municipality of Sasmuan and petitioner is null and void, invoking Sec. 149 of R.A. No. 7160 as vesting exclusive authority to grant fishery privileges in municipalities.
• Nuisance Per Se: Petitioner argued that the Ombudsman erred in ruling that the demolition was validly made by virtue of the health officer's declaration that the fishpond was a nuisance per se, questioning the certification as issued before the ocular inspection which took place only on demolition day and contending a judicial proceeding was necessary to determine whether flooding was caused.
• Police Power: Petitioner maintained that the Ombudsman erred in ruling that the demolition was part of the proper exercise of the police power of the State.
• Due Notice and Hearing: Petitioner argued that the Ombudsman erred in ruling that petitioner was given due notice and hearing before the fishpond was blasted.
• Probable Cause: Petitioner maintained that the Ombudsman erred in ruling that probable cause does not exist to indict respondents for violation of Section 3(e) of the Anti-Graft and Corrupt Practices Act and Article 324 of the Revised Penal Code, taking the position that questions of substance were decided contrary to law and applicable decisions.

• Illegality of Fishpond: Respondents Mayor Baltazar and Vice-Mayor Cabrera insisted that contrary to petitioner's claim, the fishpond was an illegal structure because it was erected on the seashore, at the mouth of the Pasak River, and sat on an inalienable land.
• Authority for Demolition: Respondents maintained that the demolition was done by Task Force Bilis Daloy upon the directive of then President Fidel V. Ramos.
• Invalid Lease and Licensing Authority: Respondent Governor Lapid averred that the lease was executed two weeks before respondent Mayor Baltazar took his oath in 1995, that under the law the Department of Agriculture is authorized to enter into licensing agreements for fishpond operations, and that per DA Regional Director certification petitioner's operation was not covered by a fishpond lease agreement or application.
• Nuisance Abatement: Respondent Governor Lapid relied on the certification by the Municipal Health Officer of Sasmuan issued before demolition describing the fishpond as a nuisance per se and recommending its abatement.

• Proper Remedy: Whether direct resort to the Supreme Court via petition for review on certiorari under Rule 45 is the proper remedy to assail a Resolution and Order of the Ombudsman dismissing a criminal complaint after preliminary investigation.
• Grave Abuse of Discretion and Probable Cause: Whether the Ombudsman's dismissal for lack of probable cause, on the grounds of valid exercise of police power and abatement of a nuisance per se, was tainted by grave abuse of discretion amounting to lack or excess of jurisdiction warranting reversal.

• Proper Remedy: No. Direct resort to the Supreme Court from an Ombudsman resolution in a criminal case via Rule 45 is not sanctioned by any rule of procedure, Sec. 27 of R.A. No. 6770 being limited to administrative cases and declared unconstitutional in allowing direct appeal.
• Grave Abuse of Discretion and Probable Cause: No. No grave abuse of discretion was presented or substantiated, the dismissal resting on a finding of lawful abatement and absence of violation of Section 3(e) of R.A. No. 3019 or Article 324 of the Revised Penal Code.

• Proper Remedy: Direct appeal from Ombudsman issuances is not authorized because no rule of procedure sanctions it. Sec. 27 of R.A. No. 6770 allowed direct appeals only in administrative disciplinary cases, not resolutions in criminal cases, and insofar as it allowed direct appeal to the Supreme Court was declared unconstitutional in Fabian vs. Hon. Desierto. The established remedy from Ombudsman resolutions in preliminary investigations of criminal cases is a petition for certiorari under Rule 65, not a petition for review under Rule 45. By availing of the wrong remedy and merely questioning findings and conclusions without imputing grave abuse of discretion, dismissal outright was warranted.
• Grave Abuse of Discretion and Probable Cause: Even treated as a Rule 65 petition, dismissal remained warranted because no grave abuse was demonstrated. Grave abuse means capricious and whimsical exercise of judgment equivalent to lack of jurisdiction, exercised arbitrarily or despotically by reason of passion or personal hostility, so patent and gross as to amount to evasion of positive duty, differentiated from mere error of judgment correctible by appeal. The Resolution dismissed the complaint because respondents validly resorted to police power in demolishing the illegal fishpond following its declaration as nuisance per se, impelled by desire to serve the best interest of the general public, thus negating violation of the graft and destruction provisions. Other assigned errors pertained to lack of probable cause, which are errors of judgment, not jurisdiction. Absent grave abuse, interference with the Ombudsman's supervision and control over preliminary investigation is unwarranted, based on constitutional grant and practicality against swamping courts with challenges to prosecutorial discretion.

• Remedy against Ombudsman criminal resolutions — Resolutions of the Ombudsman in preliminary investigations of criminal cases are reviewable only through a petition for certiorari under Rule 65 alleging grave abuse of discretion, not through a petition for review on certiorari under Rule 45. Applied to dismiss outright petitioner's direct Rule 45 appeal from the dismissal of graft and destruction charges.
• Limited appeal under Sec. 27, R.A. No. 6770; Fabian vs. Hon. Desierto — The right to appeal to the Supreme Court under Sec. 27 of the Ombudsman Act is granted only for orders or decisions in administrative disciplinary cases and does not cover criminal resolutions; insofar as it allowed direct appeal to the Supreme Court it was declared unconstitutional. Applied to reject petitioner's reliance on Sec. 27 and Rule 45.
• Grave abuse of discretion distinguished from error of judgment — Grave abuse is capricious, whimsical, arbitrary or despotic exercise of power equivalent to lack of jurisdiction, so patent and gross as to amount to evasion of positive duty or virtual refusal to perform a duty enjoined by law; error of judgment committed within jurisdiction is correctible only by appeal, while error of jurisdiction is correctible by certiorari. Applied to characterize petitioner's attacks on probable cause, police power, nuisance, and notice as mere errors of judgment without jurisdictional defect.
• Non-interference with Ombudsman prosecutorial discretion — Courts will not interfere with the Ombudsman's supervision and control over preliminary investigation and its discretion to prosecute or dismiss, absent grave abuse of discretion, out of respect for constitutional investigatory and prosecutory powers and practicality. Applied to sustain the dismissal based on lawful abatement of an illegal fishpond declared a nuisance per se.

• "The remedy from resolutions of the Ombudsman in preliminary investigations of criminal cases is a petition for certiorari under Rule 65, not a petition for review on certiorari under Rule 45." — States the controlling procedural rule that rendered petitioner's chosen remedy fatally defective.
• "By grave abuse of discretion is meant capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction." — Provides the canonical definition used to test whether the Ombudsman's dismissal could be set aside.
• "those who participated in the blasting of the subject fishpond were only impelled by their desire to serve the best interest of the general public; for the good and the highest good." — Reproduces the Ombudsman's rationale for finding no violation of graft and destruction laws, adopted as basis for lack of probable cause.
• "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." — Articulates the non-interference doctrine shielding prosecutorial discretion absent grave abuse.

• Kara-an vs. Office of the Ombudsman, G.R. No. 119990, June 21, 2004 — Followed as authority that Sec. 27 of R.A. No. 6770 grants appeal only in administrative cases, not criminal resolutions, and that the remedy in criminal actions tainted by grave abuse is Rule 65 certiorari.
• Fabian vs. Hon. Desierto, 356 Phil. 787 (1998) — Followed as controlling invalidation of Sec. 27 of R.A. No. 6770 insofar as it allowed direct appeal to the Supreme Court.
• Solvic Industrial Corporation vs. NLRC, 357 Phil. 430, 438 (1998) — Cited for the definition of grave abuse of discretion as capricious and whimsical exercise equivalent to lack of jurisdiction.
• Corpuz vs. Sandiganbayan, G.R. No. 162214, November 11, 2004 — Cited to distinguish error of judgment correctible by appeal or Rule 45 review from error of jurisdiction correctible only by certiorari.
• Mamburao, Inc. vs. Office of the Ombudsman, G.R. Nos. 139141-42, November 15, 2000 — Followed for non-interference with Ombudsman supervision over preliminary investigation and for the practicality rationale against reviewing every prosecutorial dismissal.

• Sec. 27, R.A. No. 6770 (Ombudsman Act of 1989) — Provides finality and appeal rules for Ombudsman orders; construed as applicable only to administrative disciplinary cases and, insofar as allowing direct Supreme Court appeal, unconstitutional, hence unavailable to petitioner's criminal complaint.
• Sec. 3(e), R.A. No. 3019 (Anti-Graft and Corrupt Practices Act) — Punishes causing undue injury or giving unwarranted benefit through manifest partiality, evident bad faith or gross inexcusable negligence; the Ombudsman found no violation because demolition was impelled by public interest under police power.
• Art. 324, Revised Penal Code — Punishes destruction by explosion and other effective means, with reclusion temporal if safety endangered otherwise prision mayor; the Ombudsman found no crime because blasting abated an illegal nuisance per se.
• Sec. 149, R.A. No. 7160 (Local Government Code of 1991) — Invoked by petitioner for municipal exclusive authority to grant fishery privileges; the Ombudsman harmonized it with remaining P.D. No. 704 provisions to sustain BFAR authority outside municipal waters or non-disposable areas.
• Sec. 28, P.D. No. 704; Sec. 2, 6 and 29, P.D. No. 704 — Sec. 28 directs removal of fishpens or fishponds obstructing free navigation; only Sec. 2, 6 and 29 were expressly repealed by R.A. No. 7160, leaving BFAR licensing authority intact where DENR had not declared the area disposable for fishpond development.

Quisumbing, J., Chairperson, Carpio, Carpio Morales, and Velasco, Jr., JJ., concur.