Crim Rev Kokoy

3/16/2021 SUPREME COURT REPORTS ANNOTATED VOLUME 470
754 SUPREME COURT REPORTS ANNOTATED

Romualdez vs. Marcelo
*
G.R. Nos. 165510-33. September 23, 2005.
BENJAMIN (“KOKOY”) T. ROMUALDEZ, petitioner, vs.

HON. SIMEON V. MARCELO, in his official capacity as
the Ombudsman, and PRESIDENTIAL COMMISSION ON
GOOD GOVERNMENT, respondents.
Remedial Law; Certiorari; Lack of jurisdiction and excess of

jurisdiction distinguished in Punzalan vs. Dela Peña; Grave abuse
of discretion implies a capricious and whimsical exercise of
judgment that is equivalent to lack of jurisdiction.—A petition for
certiorari is the proper remedy when any tribunal, board, or
officer exercising judicial or quasi-judicial functions has acted
without or in excess of its jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction and there is
no appeal, nor any plain, speedy, and adequate remedy at law. In
Punzalan v. Dela Peña, lack of jurisdiction and excess of
jurisdiction were distinguished. Respondent acts without
jurisdiction if he does not have the legal power to determine the
case. Where the respondent, being clothed with the power to
determine the case, oversteps his authority as determined by law,
then he is performing a function in excess of his jurisdiction.
Grave abuse of discretion implies a capricious and whimsical
www.central.com.ph/sfsreader/session/000001783a396c928864f9cb003600fb002c009e/t/?o=False 1/24
exercise of judgment that is equivalent to lack of jurisdiction. In

other words, the power of discretion is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility. It
must be so patent and gross as to amount to an evasion of positive
duty and a virtual refusal to perform the duty enjoined or to act at
all in contemplation of law.
Same; Criminal Procedure; Preliminary Investigation;
Ombudsman; The Office of the Special Prosecutor
(OSP)/Ombudsman is the proper authority to conduct the
preliminary investigation of the alleged offenses committed by
petitioner.—We held that the OSP/Ombudsman is the proper
authority to conduct the preliminary investigation of the alleged
offenses committed by petitioner. Pursuant thereto, there is no
need for a new complaint to be filed by PCGG because the
Ombudsman, on its own, may conduct a preliminary investigation
of offenses committed by public officers. Moreover, the
_______________
* FIRST DIVISION.
755
VOL. 470, SEPTEMBER 23, 2005 755
denial of his motion to dismiss was concomitant with Section 4 of

the Revised Rules of Procedure of the Office of the Ombudsman
disallowing a motion to dismiss except on the ground of lack of
jurisdiction.
Same; Same; Same; A preliminary investigation is not a trial

of the case on the merits and has no purpose except that of
determining whether a crime has been committed and whether
there is probable cause to believe that the accused is guilty thereof
and it does not place the person against whom it is taken in
jeopardy.—A preliminary investigation is merely inquisitorial,
and it is often the only means of discovering the persons who may
be reasonably charged with a crime, to enable the fiscal to prepare
the complaint or information. It is not a trial of the case on the
merits and has no purpose except that of determining whether a
crime has been committed and whether there is probable cause to
believe that the accused is guilty thereof, and it does not place the
person against whom it is taken in jeopardy.
Same; Same; Prescription; Factors to be Considered in
Resolving the Issue of Prescription.—In Domingo v.
Sandiganbayan, we considered the following in resolving the
issue of prescription: (1) the period of prescription for the offense
charged; (2) the time the period of prescription starts to run; and
(3) the time the prescriptive period was interrupted.
Same; Courts; The assignment of a docket number is an
internal matter designed for efficient record keeping; Court agrees
that the use of the docket number of the dismissed cases was
merely for reference.—Petitioner’s claim that the preliminary
investigation be dismissed because it referred to the same docket
numbers of the dismissed informations, is erroneous. The
assignment of a docket number is an internal matter designed for
efficient record keeping. It is usually written in the Docket Record
in sequential order corresponding to the date and time of filing a
case. This Court agrees that the use of the docket numbers of the
dismissed cases was merely for reference. In fact, after the new
informations were filed, new docket numbers were assigned, i.e.,
Criminal Cases Nos. 28031-28049. Plainly, these are entirely
different cases from those that have been dismissed given that
Criminal Cases Nos. 13406-13429 were not mentioned.
756

SPECIAL CIVIL ACTION in the Supreme Court.

Certiorari.
The facts are stated in the opinion of the Court.

Otilia Dimayuga-Molo for petitioner.
Solomon F. Lumba Special Legal Counsel PCGG.
YNARES-SANTIAGO, J.:
1
This is a petition for certiorari under Rule 65 of the
Revised Rules of Civil2
Procedure assailing the
3
resolutions
dated July 12, 2004, and September 6, 2004 of the Office
of the Special Prosecutor (OSP)/Ombudsman,
recommending that informations be filed in the
Sandiganbayan charging petitioner Benjamin “Kokoy” T.
Romualdez with violation of Section 7 of R.A. No. 3019
(Anti-Graft and Corrupt Practices Act) 4for non-filing of
Statement of Assets and Liabilities (SAL).
The antecedent facts show that on February 22, 1989, 24
informations docketed as Criminal Cases Nos. 13406-13429
were filed against petitioner before the Sandiganbayan 5
for
his alleged failure to file the SAL from 1962 to 1985. 6
A warrant of arrest was issued on February 28, 1989,
but this was not served because of petitioner’s exile from
the country. On October 21, 1991, he filed through counsel
7
7
a Motion to Recall Warrants of Arrest, alleging that the
preliminary investigation conducted by the Presidential
Commission on Good Government (PCGG) was invalid for
lack of jurisdiction. He also filed an Urgent Ex-Parte
Motion to Hold in Abeyance Implementation of Warrants of
Arrest and/or to
_______________
1 Rollo, pp. 3-39.

2 Id., at pp. 40-51.
3 Id. at pp. 52-56.
4 Id., at p. 50.
5 Records, Vol. I, pp. 253-300.
6 Id., at p. 3.
7 Id., at pp. 33-37.
757
VOL. 470, SEPTEMBER 23, 2005 757

8
Recall the Same. On November 4, 1991, the
Sandiganbayan issued an order to defer the enforcement of
the arrest warrant on the condition:
(1) that the cash deposit equivalent to the aggregate

amount of the bond shall serve as a provisional cash
bond for the accused’s temporary liberty upon his
personal appearance to the court;
(2) that the cash deposit shall be made within five (5)
days from receipt hereof by movant’s counsel, said
act of deposit representing the conformity of the

accused to the conditions hereof;
(3) that the accused himself shall arrive in the
Philippines within thirty (30) days from counsel’s
receipt hereof;
(4) that accused shall personally present himself to
this Court on the next succeeding working day after9
his arrival for completion of the bailbond process.
Due to his non-compliance with these 10 terms, the

Sandiganbayan denied on January 24, 1992 petitioner’s
motion to recall the warrant of arrest. Petitioner moved for
reconsideration which the Sandiganbayan denied on April
24, 1992. It also declared that until petitioner submits
himself to the jurisdiction of the court, the issue regarding
his compliance with the conditions imposed in 11the
resolution of November 4, 1991, will not be entertained.
12
Hence, on May 27, 1992, he filed a petition with this
Court, docketed as G.R. No. 105248, assailing the
resolutions of the Sandiganbayan dated January 24, 1992,
April 24, 1992 and November 4, 1991.
In a Decision dated May 16, 1995, this Court declared
invalid the preliminary investigation conducted by the
PCGG for lack of jurisdiction. However, it held that the
invalidity or
_______________
8 Id., at pp. 41-43.

9 Id., at p. 44.
10 Id., at pp. 100-106.
11 Id., at pp. 181-182.
12 Id., at pp. 189-232.
758

absence of a preliminary investigation did not affect the

jurisdiction of the Sandiganbayan or impair the validity of
the informations. Thus, the Sandiganbayan was ordered to
suspend the proceedings pending the holding of a proper
preliminary 13 investigation by the Office of the
Ombudsman.
The dispositive portion of the Decision reads:
“WHEREFORE, the petition is DENIED and the challenged

Resolutions of January 24, 1992 and April 24, 1992 are
AFFIRMED; but the respondent Sandiganbayan is DIRECTED to
order the Office of the Ombudsman to forthwith conduct a proper
preliminary investigation of the charges embodied in the
informations filed against petitioner; to suspend the proceedings
pending termination thereof; and thereafter to take action on
petitioner’s cases as may be warranted by the results of said
preliminary investigation.
14
IT IS SO ORDERED.”
Pursuant15
to the above Decision, the Sandiganbayan
ordered the petitioner to submit his counter-affidavit, the
PCGG its reply-affidavit, and the OSP its report on the
rein-vestigation.
Petitioner failed to file his counter-affidavit as directed.
On April 27, 2000, he 16returned to the Philippines and
voluntarily surrendered.
17
He filed a Motion to Quash on
June 2, 2000. The clarificatory hearing scheduled on the
same date was reset to June 9, 2000.
_______________
13 See Romualdez v. Sandiganbayan, 313 Phil. 870; 244 SCRA 152

(1995). Penned by Chief Justice Andres R. Narvasa and concurred in by
Associate Justices Florentino P. Feliciano, Teodoro R. Padilla, Florenz D.
Regalado, Hilario G. Davide, Jr. (now Chief Justice), Flerida Ruth P.
Romero, Josue N. Bellosillo, Jose A.R. Melo, Reynato S. Puno, Jose C.
Vitug and Vicente V. Mendoza.
14 Id., at p. 888.
15 Records, Vol. I, p. 469.
16 Records, Vol. II, pp. 18-20.
17 Id., at pp. 26-30.
759
VOL. 470, SEPTEMBER 23, 2005 759

On June 8, 2000, one day before the scheduled clarificatory

hearing, the Sandiganbayan18 denied in open court
petitioner’s motion to quash and the reconsideration 19
thereof and also terminated the preliminary investigation.
20
His arraignment
21
scheduled on June 26, 2000 was reset to
July 28, 2000.
On July 27, 2000,
22
petitioner filed a petition for certiorari
and prohibition with this Court, docketed as G.R. Nos.
143618-41. He assailed the orders of the Sandiganbayan (1)
denying his motion to quash and his oral motion for
reconsideration; (2) ordering the termination of the
preliminary investigation; and (3) setting his arraignment
on July 28, 2000. He claimed that the criminal cases
against him were based on void informations, hence, the
Sandiganbayan must be enjoined from arraigning him on

July 28, 2000.
On July 30, 2002, we granted the petition holding that it
is the prosecutor which is the Ombudsman, and not the
PCGG, which must subscribe and file the informations
because the crimes ascribed to petitioner do not relate to
alleged ill-gotten wealth, and were therefore, beyond the
ambit of the PCGG’s jurisdiction. The informations were
filed by PCGG, an unauthorized party and could not even
be cured by conducting another preliminary investigation.
Since the informations were invalid, they cannot serve as
basis for criminal proceedings. We also found that the
Sandiganbayan gravely abused its discretion
23
when it
abruptly terminated the reinvestigation.
_______________
18 Id., at pp. 34-38.

19 Id., at pp. 32-33.
20 Id., at p. 39.
21 Id., at p. 44.
22 Id., at pp. 58-98.
23 See Romualdez v. Sandiganbayan, 434 Phil. 670; 385 SCRA 436
(2002). Penned by Associate Justice Consuelo Ynares-Santiago and
concurred in by Chief Justice Hilario G. Davide, Jr. and Associate Justices
Jose C. Vitug, Santiago M. Kapunan, and Ma. Alicia Austria-Martinez.
760

The dispositive portion of the Decision reads:

“WHEREFORE, in view of the foregoing, the petition is

GRANTED. The assailed orders of the Sandiganbayan dated June
8, 2000 are ANNULLED
24
and SET ASIDE.
SO ORDERED.”
Pursuant to the foregoing Decision, the Sandiganbayan in

a resolution dated February
25
10, 2004, dismissed Criminal
Cases Nos. 13406-13429.
On March 3, 2004, the OSP directed petitioner to submit
his counter-affidavit. He failed to comply so another order
dated April 14, 2004 was issued but this was returned
because petitioner was not found in the given address.
On April 26, 2004, petitioner 26
filed a Motion to Dismiss
instead of a counter-affidavit. He alleged that the order
involved previously dismissed cases, hence, there was no
legal justification for the OSP and the Ombudsman to
further conduct preliminary investigation. 27
On May 12, 2004, petitioner filed a counter-affidavit
adopting all the allegations28 in the motion to dismiss. The
PCGG filed its Opposition insisting that the quashal of
the informations for lack of authority by the PCGG to file
the same did not mean that petitioner is already exempt
from criminal prosecution. The Ombudsman can still file
new informations should it find that probable cause
29
exists.
In a Memorandum dated July 12, 2004, the OSP
ordered the Motion to Dismiss filed by petitioner expunged
for being a prohibited pleading pursuant to Section 3(c),
Rule 112 of the Revised Rules of Criminal Procedure and
Section 4(d), Rule II
_______________
24 Id., at p. 683.
25 Rollo, p. 57.
26 Id., at p. 61-63.
27 Id., at pp. 66-68.
28 Id., at pp. 71-74.
29 Id., at pp. 40-51.
761
VOL. 470, SEPTEMBER 23, 2005 761

of the Rules of Procedure of the Office of the Ombudsman.

Considering that the motion to dismiss was grounded on
the quashal of the informations and not on lack of
jurisdiction, the OSP declared the motion to dismiss as a
mere scrap of paper. Also, the petitioner was deemed to
have waived his right to file a counter-affidavit. As such,
his counter-affidavit was not given due course.
Consequently, based solely on complainant’s evidence,
the OSP determined there was probable cause that
petitioner violated Section 7 of RA No. 3019 and
accordingly recommended the filing of 24 informations
before the Sandiganbayan.
On September 6, 2004, 30
the OSP denied petitioner’s
motion for reconsideration.
Thereafter, 19 informations docketed as Criminal Cases
Nos. 28031-28049 were filed with the Sandiganbayan for
failure of petitioner to file his SAL for the period 1967-1985
during his tenure 31
as Ambassador Extraordinary and
Plenipotentiary, while 4 informations 32
docketed as
Criminal Cases Nos. 04-231857-04-231860 were filed with
the Regional Trial Court of Manila for petitioner’s failure to
file his SAL from 1963 to 1966 during his tenure as
Technical Assistant in the Department of Foreign Affairs.
Hence, this petition on the following grounds:
I. RESPONDENT ACTED WITHOUT JURISDICTION AND/OR

WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OF JURISDICTION IN DENYING PETITIONER’S
MOTION TO DISMISS THE PRELIMINARY INVESTIGATION
OF CRIM. CASES NOS. 13406-13429 NOTWITHSTANDING
THE FACT THAT THE SAID CASES HAD ALREADY BEEN
DISMISSED BY THE SUPREME COURT AND BY THE
SANDIGANBAYAN;
_______________
30 Id., at pp. 52-56.

31 Id., at pp. 158-213.
32 Id., at pp. 214-225.
762

II. RESPONDENT ACTED WITHOUT JURISDICTION AND/OR

WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OF JURISDICTION IN CONDUCTING A PRELIMINARY
INVESTIGATION OF ALLEGED OFFENSES THAT HAD
ALREADY PRESCRIBED.
The issues for resolution are the following: (1) whether or

not the Ombudsman acted with grave abuse of discretion in
denying petitioner’s motion to dismiss the preliminary
investigation; and (2) whether or not the offenses charged
against petitioner have prescribed.
Petitioner argues that respondent’s act of proceeding

with the preliminary investigation constitutes patently
reversible error. He claims that since Criminal Cases Nos.
13406-13429 have already been dismissed, the PCGG
should have filed a new complaint with a new docket
number. He insists that the Ombudsman could not conduct
another preliminary investigation using the old docket
numbers.
Petitioner also maintains that the offenses for which he
was charged had already prescribed in February 2001,
hence the preliminary investigation conducted anew by the
Ombudsman should be terminated.
33
In their Comments, respondents aver that the
dismissal of Criminal Cases Nos. 13406-13429 did not
mean that the preliminary investigation was terminated,
as this Court specifically directed the Ombudsman to
conduct the same. Besides, the Ombudsman is duly
authorized to investigate on its own or upon complaint the
acts or omissions of public officials or employees. Thus, it
need not wait for the filing of another complaint before
conducting a preliminary investigation. Respondents also
deny that the offenses have prescribed since the period was
tolled when the petitioner was out of the country.
The petition lacks merit.
_______________
33 Id., at pp. 310-316, 331-363.
763
VOL. 470, SEPTEMBER 23, 2005 763

Petitioner came to this Court through a special civil action

for certiorari under Rule 65 of the Revised Rules of Civil
Procedure imputing grave abuse of discretion on the
Ombudsman in denying his motion to dismiss the
preliminary investigation.
A petition for certiorari is the proper remedy when any
tribunal, board, or officer exercising judicial or quasi-
judicial functions has acted without or in excess of its
jurisdiction, or with grave abuse of discretion amounting to
lack or excess of jurisdiction and there is no34appeal, nor any
plain, speedy, and adequate remedy35
at law.
In Punzalan v. Dela Peña, lack of jurisdiction and
excess of jurisdiction were distinguished. Respondent acts
without jurisdiction if he does not have the legal power to
determine the case. Where the respondent, being clothed
with the power to determine the case, oversteps his
authority as determined by law, then he is performing a
function in excess of his jurisdiction.
Grave abuse of discretion implies a capricious and
whimsical exercise of judgment that is equivalent to lack of
jurisdiction. In other words, the power of discretion is
exercised in an arbitrary or despotic manner by reason of
passion or personal hostility. It must be so patent and gross
as to amount to an evasion of positive duty and a virtual
refusal to perform the 36
duty enjoined or to act at all in
contemplation of law.
In denying the motion to dismiss the preliminary
investigation, the Ombudsman resolved:
After a careful evaluation of the arguments/contentions of both

parties, complainant (PCGG) and respondent Romualdez, the
under-signed finds the contentions of the PCGG more credible.
_______________
34 People v. Hon. Chavez, 411 Phil. 482, 491; 358 SCRA 810, 817 (2001).
35 G.R. No. 158543, 21 July 2004, 434 SCRA 601, 609.
36 Samson v. Office of the Ombudsman, G.R. No. 117741, 29 September
2004, 439 SCRA 315, 320.
764

The Motion to Dismiss filed by respondent Benjamin Romual-dez

should be expunged, the same being a prohibited pleading. Sec. 3
(c) of Rule 112 of the Revised Rules of Criminal Procedure, which
provides that “the respondents shall not be allowed to file a
motion to dismiss in lieu of a counter-affidavit.” Thus, it is
incumbent upon the accused to file a counter-affidavit, and not a
motion to dismiss. Moreover, Section 4 (d) of the Rules of
Procedure of the Office of the Ombudsman provides: “No motion
to dismiss shall be allowed except for lack of jurisdiction.”
Respondent argued in his motion to dismiss that Criminal Cases
Nos. 13406-13429 were already dismissed by the Sandiganbayan
by virtue of its Minute Resolution dated Febru-ary 10, 2004, and
not lack of jurisdiction. Hence, such motion is a mere scrap of
paper, without any legal force and effect.
...
The authority of the Office of The Special Prosecutor/Ombuds-
man to conduct preliminary investigation in these cases is
pursuant to the Supreme Court’s Decision dated July 20, 2002 in
G.R.F Nos. 143618-143641 entitled Benjamin “Kokoy” T.
Romualdez vs. Sandiganbayan.
The Honorable Supreme Court specifically stated in said
Decision that the Sandiganbayan committed grave abuse of
discretion when it prematurely terminated the preliminary
investigation being conducted by this Office on June 8, 2000,

which the Supreme Court itself ordered.…
Hence, the quashal of the informations in Criminal Cases Nos.
13406-13429 before the Sandiganbayan, First Division for lack of
authority of the PCGG to file the same is without prejudice to the
filing of new informations by this Office should it find probable
cause after the conduct of preliminary investigation.
...
Respondent Romualdez failed to file his counter-affidavit
and/or present his controverting evidence despite the sending of
notices and copies of the complaint with supporting evidence to
his known address and through his counsel on record. However,
he opted to file a Motion to Dismiss, through his counsel, which
this Office cannot take cognizance for reasons cited hereof.
In view thereof, these cases must be resolved on the basis
solely of the complainant’s evidence.
765
VOL. 470, SEPTEMBER 23, 2005 765

Thus, after a careful evaluation of the evidence on records, the

undersigned finds that respondent violated Section 7 of R.A.
[3019] since the time he was appointed Technical Assistant, with
the rank of FAO, Class III in the Philippine Consulate,
Ambassador and Provincial Governor of Leyte from 1961 until
February, 371986 he never filed his Statement of Assets and
Liabilities.
The ruling of the OSP/Ombudsman is consistent with 38

the
Decision of this Court in Velasco v. Hon. Casaclang, where
we held that, the Deputy Ombudsman properly denied the
motion to quash and motion for reconsideration of

petitioner therein, pursuant to the applicable provisions of
the Revised Rules of Court and Administrative Order (AO)
No. 07 of the Ombudsman. Section 4 (d) of AO No. 07
disallows a motion to quash (or dismiss) except on the
ground of lack of jurisdiction. In that case, as in this one,
no absence of jurisdiction is perceived.
The Constitution vested the Office of the Ombudsman
with powers and duties to investigate on its own, or on
complaint by any person, any illegal, unjust, improper or
inefficient39 act or omission of any public official or
employee. Section 15(1) of R.A. No. 6770 or The
Ombudsman Act of 1989 delineated the investigatory and
prosecutory functions of the Ombudsman, to wit:
SEC. 15. Powers, Functions and Duties.—The Office of the

Ombudsman shall have the following powers, functions and
duties:
(1) Investigate and prosecute on its own or on complaint by any

person, any act or omission of any public officer or employee, office or
agency, when such act or omission appears to be illegal, unjust, improper
or inefficient. It has the primary jurisdiction over cases cognizable by the
Sandiganbayan and, in the exercise of this primary jurisdiction, it may
_______________
37 Rollo, pp. 43-50.

38 355 Phil. 815, 833; 294 SCRA 394, 409 (1998).
39 CONST., Art. XI, Secs. 5 and 13.
766
take over, at any stage, from any investigatory agency of Government,

the investigation of such cases;
We held that the OSP/Ombudsman is the proper authority

to conduct the preliminary investigation of the alleged
offenses committed by petitioner. Pursuant thereto, there
is no need for a new complaint to be filed by PCGG because
the Ombudsman, on its own, may conduct a preliminary
investigation of offenses committed by public officers.
Moreover, the denial of his motion to dismiss was
concomitant with Section 4 of the Revised Rules of
Procedure of the Office of the Ombudsman disallowing a
motion to dismiss except on the ground of lack of
jurisdiction. 40
Besides, we held in Romualdez v. Sandiganbayan, that:
The Sandiganbayan also committed grave abuse of discretion

when it abruptly terminated the reinvestigation being conducted
by Prosecutor Lucero. It should be recalled that our directive in
G.R. No. 105248 for the holding of a preliminary investigation
was based on our ruling that the right to a preliminary
investigation is a substantive, rather than a procedural right.
Petitioner’s right was violated when the preliminary investigation
of the charges against him were conducted by an officer without
jurisdiction over the said cases. It bears stressing that our
directive should be strictly complied with in order to achieve its
objective of affording petitioner his right to due process.
Petitioner’s claim that the preliminary investigation be

dismissed because it referred to the same docket numbers
of the dismissed informations, is erroneous. The
assignment of a docket number is an internal matter
designed for efficient record keeping. It is usually written
in the Docket Record in sequential 41

order corresponding to
the date and time of filing a case.
_______________
40 Supra, note 23 at pp. 682-683.

41 Administrative Order No. 36-96 (1996).
767
VOL. 470, SEPTEMBER 23, 2005 767

This Court agrees that the use of the docket numbers of the
dismissed cases was merely for reference. In fact, after the
new informations were filed, new docket numbers were
assigned, i.e., Criminal Cases Nos. 28031-28049. Plainly,
these are entirely different cases from those that have been
dismissed given that Criminal Cases Nos. 13406-13429
were not mentioned.
Petitioner also alleges that respondents acted with grave
abuse of discretion in not dismissing the preliminary
investigation on the ground of prescription of the offense.
This allegation is a matter of defense which must be settled
in a fullblown trial. Evidence must be received to resolve
the case on its merits. 42
In Domingo v. Sandiganbayan, we considered the
following in resolving the issue of prescription: (1) the
period of prescription for the offense charged; (2) the time
the period of prescription starts to run; and (3) the time the
prescriptive period was interrupted.
Petitioner is being charged under Section 7 of R.A. No.
3019, a special law. Section 11 of the same statute provides
for the period of prescription for the offense charged, i.e., 15

years. However, the applicable rule on the time the period
of prescription starts to run is Section 2 of Act No. 3326,
which provides:
SEC. 2. Prescription shall begin to run from the day of the

commission of the violation of the law, and if the same not be
known at the time, from the discovery thereof and the institution
of judicial proceedings for its investigation and punishment.
The prescription shall be interrupted when proceedings are
instituted against the guilty person, and shall begin to run again
if the proceedings are dismissed for reasons not constituting
jeopardy.
_______________
42 379 Phil. 708, 717; 322 SCRA 655 (2000).
768

This Court quotes the concurring and dissenting opinion of

Justice Reynato 43S. Puno in Presidential Ad Hoc Committee
v. Hon. Desierto:
The law on prescription of special crimes like violation of R.A. No.

3019 (Anti-Graft Law) is provided for in Section 2 of Act No. 3326,
viz.:
“SEC. 2. Prescription shall begin to run from the day of the commission of
the violation of the law, and if the same be not known at the time, from
the discovery thereof . . .”
The application of this provision is not simple and each

case must be decided according to its facts. It involves a
careful study and analysis of contentious facts: (a) when
the commission of the violation of the law happened; (b)
whether or not the violation was known at the time of its
commission, and (c) if not known then, the time of its
discovery. In addition, there is the equally difficult problem of
choice of legal and equitable doctrines to apply to the above
elusive facts. For the general rule is that the mere fact that a
person entitled to an action has no knowledge of his right to sue
or of the facts out of which his right arises, does not prevent the
running of the statute. This stringent rule, however, admits of an
exception. Under the “blameless ignorance” doctrine, the statute of
limitations runs only upon discovery of the fact of the invasion of
a right which will support a cause of action. In other words, courts
decline to apply the statute of limitations where the plaintiff
neither knew nor had reasonable means of knowing the existence
of a cause of action. Given all these factual and legal
difficulties, the public respondent should have ordered
private respondents to answer the sworn complaint,
required a reply from the petitioners and conducted such
hearings as may be necessary so he could have all the vital
facts at his front and, upon their basis, resolve whether
the offense charged has already prescribed. (Emphasis
supplied)
It is noteworthy that petitioner did not raise the defense of

prescription in his motion to dismiss the preliminary
investigation. It is only in this petition that he raised this
issue. As
_______________
43 375 Phil. 697, 748-749; 317 SCRA 272, 288 (1999).
769
VOL. 470, SEPTEMBER 23, 2005 769

this case has never progressed beyond the filing of the

informations against petitioner, it is only prudent that
evidence be gathered through trial on the merits to
determine whether the offense charged has already
prescribed.
A preliminary investigation is merely inquisitorial, and
it is often the only means of discovering the persons who
may be reasonably charged with a crime, to enable the
fiscal to prepare the complaint or information. It is not a
trial of the case on the merits and has no purpose except
that of determining whether a crime has been committed
and whether there is probable cause to believe that the
accused is guilty thereof, and it does44 not place the person
against whom it is taken in jeopardy.
Consequently, the Ombudsman did not commit grave
abuse of discretion in denying petitioner’s motion to
dismiss the preliminary investigation. Not only did the
Ombudsman have the jurisdiction to conduct a preliminary
investigation under the Constitution and R.A. No. 6770,
but he also acted within the legal bounds of the authority
conferred upon him when he denied the motion to dismiss
under Administrative Order No. 07.
As a rule, the Court shall not unduly interfere in the
Ombudsman’s exercise of his investigatory and prosecutory
powers, as provided in the Constitution,45without good and
compelling reasons to indicate otherwise.
WHERFORE, the petition is DISMISSED. The
resolutions dated July 12, 2004 and September 6, 2004 of
the Office of the Special Prosecutor, are AFFIRMED.
_______________
44 Cinco v. Sandiganbayan, G.R. Nos. 92362-67, 15 October 1991, 202

SCRA 726, 735-736.
45 PAFFC on Behest Loans v. Ombudsman Desierto, 418 Phil. 715, 721;
366 SCRA 428, 435 (2001).
770

SO ORDERED.
Davide, Jr. (C.J.), Quisumbing, Carpio and Azcuna,

JJ., concur.
Petition dismissed, resolutions affirmed.
Note.—Court does not interfere with the Ombudsman’

discretion in the conduct of preliminary investigation.
(Serapio vs. Sandiganbayan, 396 SCRA 443 [2003])
——o0o——
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3/16/2021 SUPREME COURT REPORTS ANNOTATED VOLUME 470

754 SUPREME COURT REPORTS ANNOTATED

BENJAMIN (“KOKOY”) T. ROMUALDEZ, petitioner, vs.

Remedial Law; Certiorari; Lack of jurisdiction and excess of

exercise of judgment that is equivalent to lack of jurisdiction. In

VOL. 470, SEPTEMBER 23, 2005 755

Romualdez vs. Marcelo

denial of his motion to dismiss was concomitant with Section 4 of

Same; Same; Same; A preliminary investigation is not a trial

756 SUPREME COURT REPORTS ANNOTATED

SPECIAL CIVIL ACTION in the Supreme Court.

The facts are stated in the opinion of the Court.

1 Rollo, pp. 3-39.

VOL. 470, SEPTEMBER 23, 2005 757

(1) that the cash deposit equivalent to the aggregate

act of deposit representing the conformity of the

Due to his non-compliance with these 10 terms, the

8 Id., at pp. 41-43.

758 SUPREME COURT REPORTS ANNOTATED

absence of a preliminary investigation did not affect the

“WHEREFORE, the petition is DENIED and the challenged

13 See Romualdez v. Sandiganbayan, 313 Phil. 870; 244 SCRA 152

VOL. 470, SEPTEMBER 23, 2005 759

On June 8, 2000, one day before the scheduled clarificatory

Sandiganbayan must be enjoined from arraigning him on

18 Id., at pp. 34-38.

760 SUPREME COURT REPORTS ANNOTATED

The dispositive portion of the Decision reads:

“WHEREFORE, in view of the foregoing, the petition is

Pursuant to the foregoing Decision, the Sandiganbayan in

VOL. 470, SEPTEMBER 23, 2005 761

of the Rules of Procedure of the Office of the Ombudsman.

Hence, this petition on the following grounds:

I. RESPONDENT ACTED WITHOUT JURISDICTION AND/OR

30 Id., at pp. 52-56.

762 SUPREME COURT REPORTS ANNOTATED

II. RESPONDENT ACTED WITHOUT JURISDICTION AND/OR

The issues for resolution are the following: (1) whether or

Petitioner argues that respondent’s act of proceeding

33 Id., at pp. 310-316, 331-363.

VOL. 470, SEPTEMBER 23, 2005 763

Petitioner came to this Court through a special civil action

After a careful evaluation of the arguments/contentions of both

764 SUPREME COURT REPORTS ANNOTATED

The Motion to Dismiss filed by respondent Benjamin Romual-dez

investigation being conducted by this Office on June 8, 2000,

VOL. 470, SEPTEMBER 23, 2005 765

Thus, after a careful evaluation of the evidence on records, the

The ruling of the OSP/Ombudsman is consistent with 38

motion to quash and motion for reconsideration of

SEC. 15. Powers, Functions and Duties.—The Office of the

(1) Investigate and prosecute on its own or on complaint by any

37 Rollo, pp. 43-50.

766 SUPREME COURT REPORTS ANNOTATED

Romualdez vs. Marcelo

take over, at any stage, from any investigatory agency of Government,

We held that the OSP/Ombudsman is the proper authority

The Sandiganbayan also committed grave abuse of discretion

Petitioner’s claim that the preliminary investigation be

in the Docket Record in sequential 41

40 Supra, note 23 at pp. 682-683.

VOL. 470, SEPTEMBER 23, 2005 767

for the period of prescription for the offense charged, i.e., 15

SEC. 2. Prescription shall begin to run from the day of the