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G.R. No. 151007 July 17, 2006 TRIPLEX ENTERPRISES, INC., petitioner, vs.

PNB-REPUBLIC BANK and SOLID BUILDERS, INC., respondents. DECISION CORONA, J.: This petition for review on certiorari under Rule 45 of the Rules of Court assails the May 29, 2001 decision1 of the Court of Appeals in CA-G.R. SP No. 53033 which dismissed the petition for certiorari filed by petitioner Triplex Enterprises, Inc. for lack of merit. The case stemmed from an action for annulment of contract, mandamus and damages filed by petitioner against Leverage & Services Group, Inc.2 and respondents PNB-Republic Bank and Solid Builders, Inc. before the Regional Trial Court of Pasig City, Branch 153. It was docketed as Civil Case No. 64941. Petitioner sought to annul the sale of two parcels of land situated in Tagaytay City by PNB-Republic Bank to Solid Builders, Inc. and to compel PNB-Republic Bank to award instead the sale to it as the highest bidder. Petitioner's claim was rejected by PNB-Republic Bank due to the sale of the properties to Solid Builders, Inc. After the rejection of petitioner's bid, Atty. Romeo Roque, the real estate broker whose services were engaged by petitioner for its negotiations with PNB-Republic Bank concerning the Tagaytay properties, obtained a legal opinion3 from the Office of the Government Corporate Counsel (OGCC): xxx xxx xxx In summary therefore, - (b) the authority given to the Committee/SMCC to dispose of and approve the sale of acquired assets under Board Resolution No. 000231-1993 is subject to Board approval if the amount is over P3 Million. The absence therefore of the required Board approval on the sale of the subject properties to Solid Builders did not perfect the contract to sell the subject properties; (c) it follows therefore that the Bank may now entertain other offers to purchase the subject properties but any disposition of the subject properties must be with the prior approval of the Board of Directors of the Bank.4 During the pre-trial conference, petitioner marked the December 7, 1994 opinion of the OGCC as Exhibit "C" and offered the matter of its existence for stipulation between the parties. Respondents admitted the existence of the opinion but manifested their disagreement with its contents. During trial, petitioner called Atty. Roque to testify. When Roque's testimony was offered specifically with respect to the legal opinion of the OGCC, counsels for respondents objected to its admission for being violative of the rule on attorneyclient privilege between the OGCC and PNB-Republic Bank. The trial court sustained the objection. Petitioner moved for the reconsideration of the court a quo's refusal to admit its evidence but it was denied in an order dated February 26, 1999. The order disallowed the presentation and admission in evidence of any testimony referring to the December 7, 1994 opinion of the OGCC. The prohibition was based on the ground that the testimony was in violation of the rule on privileged communication between attorney and client, i.e., the OGCC and PNB-Republic Bank. Aggrieved, petitioner filed a petition for certiorari with the Court of Appeals. However, the appellate court dismissed the petition. Petitioner moved for reconsideration but the same was denied. Hence, this petition. Petitioner claims that the Court of Appeals erred when it ruled that the trial court did not commit grave abuse of discretion in disallowing the presentation and admission in evidence of Roque's testimony. The petition has no merit. Certiorari as a special civil action is proper 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, and there is no appeal nor any plain, speedy and adequate remedy at law.5 The writ may be issued only where it is convincingly proved that the lower court committed grave abuse of discretion, or an act too patent and gross as to amount to an evasion of a duty, or to a virtual refusal to perform the duty enjoined or act in contemplation of law, or that the trial court exercised its power in an arbitrary and despotic manner by reason of passion or personal hostility.6 While certiorari may be maintained as an appropriate remedy to assail an interlocutory order in cases where the tribunal has issued an order without or in excess of jurisdiction or with grave abuse of discretion, it does not lie to correct every

controversial interlocutory ruling. In this connection, we quote with approval the pronouncement of the appellate court: In this jurisdiction, there is an "erroneous impression that interlocutory [orders] of trial courts on debatable legal points may be assailed by certiorari. To correct that impression and to avoid clogging the appellate court with future certiorari petitions it should be underscored that the office of the writ of certiorari has been reduced to the correction of defects of jurisdiction solely and cannot legally be used for any other purpose."7 The writ of certiorari is restricted to truly extraordinary cases wherein the act of the lower court or quasi-judicial body is wholly void.8 Moreover, it is designed to correct errors of jurisdiction and not errors in judgment.9 The rationale of this rule is that, when a court exercises its jurisdiction, an error committed while so engaged does not deprive it of the jurisdiction being exercised when the error is committed.10 Otherwise, every mistake made by a court will deprive it of its jurisdiction and every erroneous judgment will be a void judgment.11 When the court has jurisdiction over the case and person of the defendant, any mistake in the application of the law and the appreciation of evidence committed by a court may be corrected only by appeal.12 The determination made by the trial court regarding the admissibility of evidence is but an exercise of its jurisdiction and whatever fault it may have perpetrated in making such a determination is an error in judgment, not of jurisdiction. Hence, settled is the rule that rulings of the trial court on procedural questions and on admissibility of evidence during the course of a trial are interlocutory in nature and may not be the subject of a separate appeal or review on certiorari. They must be assigned as errors and reviewed in the appeal properly taken from the decision rendered by the trial court on the merits of the case.13 Here, petitioner assails the order of the trial court disallowing the admission in evidence of the testimony of Roque on the opinion of the OGCC. By that fact alone, no grave abuse of discretion could be imputed to the trial court. Furthermore, the said order was not an error of jurisdiction. Even assuming that it was erroneous, the mistake was an error in judgment not correctable by the writ of certiorari. WHEREFORE, the petition is hereby DENIED. Costs against petitioner. SO ORDERED. G.R. Nos. 139913 & 140159 January 16, 2004 TERESITA S. DAVID, BENJAMIN S. DAVID,PACIFICO S. DAVID, NEMESIO S. DAVID, CELINE S. DAVID, CRISTINA S. DAVID, PAULINA S. DAVID, and LEONIE S. DAVID-DE LEON, Petitioners, vs. AGUSTIN RIVERA, Respondent. DECISION TINGA, J.: Claiming to be the owner of an eighteen thousand (18,000)square meter portion (hereafter, "subject land") of Lot No. 38-B,1 a five (5)-hectare lot situated at MacArthur Highway, Dau, Mabalacat, Pampanga, herein respondent Agustin Rivera filed on May 10, 1994 a Complaint 2 for "Maintenance of Peaceful Possession with Prayer for Restraining Order and Preliminary Injunction" before the Provincial Adjudication Board (PARAB) of San Fernando, Pampanga against petitioners heirs of Spouses Cristino and Consolacion David.3 The respondent averred that the petitioners had been harassing him for the purpose of making him vacate the subject land although it had already been given to him sometime in 1957 by the parents of the petitioners as "disturbance compensation", in consideration of his renunciation of his tenurial rights over the original eighteen (18)-hectare farmholding. For their part, the petitioners filed a Complaint4 for ejectment before the Municipal Circuit Trial Court (MCTC) of Mabalacat and Magalang, Pampanga. They alleged that the respondent was occupying the subject land without paying rentals therefor. The petitioners also averred that they need the subject land for their personal use but the respondent refused to vacate it despite repeated demands. In his Answer5 to the ejectment complaint, the respondent asserted that the MCTC had no jurisdiction over the case in light of the tenancy relationship between him and the predecessors-in-interest of the petitioners, as evidenced by the Certification6 issued by the Municipal Agrarian Reform Office (MARO) of Mabalacat, Pampanga. He likewise reiterated his claim of ownership over the subject land and informed the court of the complaint he had earlier filed before the PARAB.

On January 31, 1995, or during the pendency of the ejectment case, the PARAB rendered its Decision7 declaring the respondent as tenant of the land and ordering that his peaceful possession thereof be maintained. Expectedly, the petitioners appealed the PARAB Decision to the Department of the Agrarian Reform Adjudication Board (DARAB). On September 28, 1995, the MCTC rendered its Decision8 ordering the respondent to vacate the subject land. The court found that there was a dearth of evidence supportive of the respondents claim that the land is agricultural or that it is devoted to agricultural production. Further, it ruled that the petitioners as the registered owners have a better right to possession of the subject land. The decretal portion of the Decision reads: WHEREFORE, premises considered, judgment is hereby rendered in favor of herein plaintiffs and against herein defendant and any one claiming rights under him by ordering the latter to: (1) Vacate the subject premises and to peacefully turn over possession of the same to the plaintiffs or to their authorized representatives; (2) To pay the plaintiffs the amount of P720,000.00 as reasonable rentals in arrears as of July, 1994 and to pay monthly rentals of P12,000.00 from August, 1994 up to the time he (defendant) finally vacates the premises; (3) To pay the plaintiffs the amount of P20,000.00 as attorneys fees and to pay the cost of the suit; (4) Defendant(s) counterclaim is hereby DENIED for lack of proof. SO ORDERED. Without appealing the MCTC Decision but within the period to appeal, the respondent filed before the Regional Trial Court (RTC) of Angeles City a Petition9 for prohibition with preliminary injunction and/or temporary restraining order, seeking the nullification of the MCTC Decision. The thrust of the petition was that the MCTC had no jurisdiction as the issue before it was agrarian in nature. On October 30, 1995, the RTC issued a Temporary Restraining Order10 enjoining the petitioners from enforcing the MCTC Decision. Thereafter, it proceeded to hear the respondents application for preliminary injunction. On November 29, 1995, the RTC granted the motion and ordered the issuance of Writ of Preliminary Injunction upon the posting of bond in the amount of P500,000.00.11 On January 30, 1996, the petitioners filed their Answer12 to the Petition for prohibition in which they asserted that the MCTC could not be divested of its jurisdiction by simply interposing the defense of tenancy. The petitioners also disputed the respondents claim that he acquired the subject property by way of disturbance compensation for the reason that in 1956, when the property was allegedly given, the law providing for the payment of disturbance compensation was not yet in effect. Moreover, the petitioners contended, no proof had been adduced evidencing the conveyance of the property in favor of the respondent. The case went to trial with the respondent as petitioner presenting his evidence in chief. However, after the respondent had rested his case, the petitioners filed a Motion to Dismiss13 raising as grounds, inter alia: (1) that the extraordinary remedy of prohibition could not be made a substitute for the available and speedy recourse of appeal; (2) the jurisdiction of the MCTC of Mabalacat, Pampanga was legally vested, determined as it was by the averments of the complaint in conformity with Rule 70 of the Rules of Court; hence, the decision of the ejectment court was a legitimate and valid exercise of its jurisdiction. On February 25, 1998, the RTC issued an Order14 denying the motion to dismiss. The court ruled that the motion, which was filed after the presentation of the plaintiffs evidence, partakes of a demurrer to evidence which under Section 1, Rule 33 of the Rules of Court, 15 may be granted only upon a showing that the plaintiff has shown no right to the relief prayed for. Noting that "the evidence presented by the petitioner establishes an issue which is addressed to [the] court for resolution. . . whether or not the respondent court had jurisdiction over the subject matter of the case filed before it", the RTC ruled that the denial of the motion to dismiss is proper. The petitioners moved for reconsideration16 but was denied in an Order17 dated June 23, 1998. Subsequently, the petitioners filed a Petition for Certiorari18 in the Court of Appeals. On September 3, 1999, the appellate court rendered a Decision,19 finding no grave abuse of discretion on the part of the RTC in denying the motion to dismiss, as well as the motion for reconsideration of its order. The appellate court ratiocinated that the order of denial is merely interlocutory and hence cannot be assailed in a petition for certiorari under Rule 65 of the Rules of Court. In

addition, it held that issues raised in the petition for prohibition were genuine and substantial, necessitating the presentation of evidence by both parties. The petitioners now come before us, seeking the nullification of the decision of the Court of Appeals. At the crux of the petition is the issue of whether the denial of the motion to dismiss by way of demurrer to evidence was afflicted with grave abuse of discretion. In the Resolution of October 4, 1999,20 we denied the petition for failure of the petitioners to accompany the same with a clearly legible duplicate original or a certified true copy of the assailed decision. The petitioners filed a new petition primarily on the basis of Philippine Airlines v. Confesor,21 where this Court held that a petition dismissed under Circular No. 1-8822 may be filed again as a new petition as long as it is done within the reglementary period. In the Resolution23 of March 8, 2000, we allowed the re-filing of the petition and required the respondent to comment thereon. In his Comment,24 the respondent counters that the RTC did not commit grave abuse of discretion in denying the motion to dismiss inasmuch as the MCTC had no jurisdiction to render the assailed judgment. He points out that the PARAB had already declared him the owner of the land and that the PARAB decision was affirmed by the Department of Agrarian Reform Adjudication Board (DARAB) in its Decision25 dated March 6, 2000. We deny the petition. At the outset, it may be well to point out that certiorari does not lie to review an interlocutory order denying a motion to dismiss, even if it is in the form of a demurrer to evidence filed after the plaintiff had presented his evidence and rested his case. Being interlocutory, an order denying a demurrer to evidence is not appealable. Neither can it be the subject of a petition for certiorari. After such denial, the petitioners should present their evidence and if the decision of the trial judge would be adverse to them, they could raise on appeal the same issues raised in the demurrer.26 However, it is also settled that the rule admits of an exception, i.e., when the denial of a demurrer is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction.27 Thus, the petitioners submit that the trial court acted with grave abuse of discretion in denying the demurrer. They insist that appeal, not prohibition, is the proper remedy to question the judgment of the MCTC and that the question of jurisdiction is one of law which may be ruled upon without the evidence of the parties. We are not convinced. We uphold the Court of Appeals. It is clear that the respondent filed the petition for prohibition to correct what he perceived was an erroneous assumption of jurisdiction by the MCTC. Indeed, the propriety of the recourse to the RTC for a writ of prohibition is beyond cavil in view of the following considerations: First. The peculiar circumstances obtaining in this case, where two tribunals exercised jurisdiction over two cases involving the same subject matter, issue, and parties, and ultimately rendered conflicting decisions, clearly makes out a case for prohibition. The MCTC manifestly took cognizance of the case for ejectment pursuant to Section 33 of Batas PambansaBlg. 129,28 as amended. On the other hand, the ratiocination of the DARAB, which the respondent echoes, is that the case falls squarely within its jurisdiction as it arose out of, or was connected with, agrarian relations. The respondent also points out that his right to possess the land, as a registered tenant, was submitted for determination before the PARAB prior to the filing of the case for ejectment. Indeed, Section 50 of R.A. 665729 confers on the Department of Agrarian Reform (DAR) quasi-judicial powers to adjudicate agrarian reform matters.30 In the process of reorganizing the DAR, Executive Order No. 129-A31 created the DARAB to assume the powers and functions with respect to the adjudication of agrarian reform cases.32 Section 1, Rule II of the DARAB Rules of Procedure enumerates the cases falling within the primary and exclusive jurisdiction of the DARAB, which is quoted hereunder in so far as pertinent to the issue at bar: Section 1. Primary And Exclusive Original and Appellate Jurisdiction. The board shall have primary and exclusive jurisdiction, both original and appellate, to determine and adjudicate all agrarian disputes involving the implementation of the Comprehensive Agrarian Reform Program (CARP) under Republic Act no. 6657, Executive Order Nos. 228, 229, and 129-A, Republic Act No. 3844 as amended by Republic Act No. 6389, Presidential Decree No. 27 and other agrarian laws and their implementing rules and regulations. Specifically, such jurisdiction shall include but not be limited to cases involving the following: a) The rights and obligations of persons, whether natural or juridical engaged in the management,

cultivation and use of all agricultural lands covered by the CARP and other agrarian laws; ... g) Those cases previously falling under the original and exclusive jurisdiction of the defunct Court of Agrarian Relations under Section 12 of Presidential Decree No. 946, except sub-paragraph (Q) thereof and Presidential Decree No. 815. It is understood that the aforementioned cases, complaints or petitions were filed with the DARAB after August 29, 1987. Matters involving strictly the administrative implementation of Republic Act No. 6657, otherwise known as the Comprehensive Agrarian Reform Law (CARL) of 1988 and other agrarian laws as enunciated by pertinent rules shall be the exclusive prerogative of and cognizable by the Secretary of the DAR. h) And such other agrarian cases, disputes, matters or concerns referred to it by the Secretary of the DAR. Prescinding from the foregoing, it is safe to conclude that the existence of prior agricultural tenancy relationship, if true, will divest the MCTC of its jurisdiction the previous juridical tie compels the characterization of the controversy as an "agrarian dispute." Agrarian dispute refers to any controversy relating to tenurial arrangements, whether leasehold, tenancy, stewardship or otherwise, over lands devoted to agriculture, including disputes concerning farmworkers' associations or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of such tenurial arrangements.33 Even if the tenurial arrangement has been severed, the action still involves an incident arising from the landlord and tenant relationship. Where the case involves the dispossession by a former landlord of a former tenant of the land claimed to have been given as compensation in consideration of the renunciation of the tenurial rights, there clearly exists an agrarian dispute. On this point the Court has already ruled: Indeed, section 21 of Republic Act No. 1199, provides that 'all cases involving the dispossession of a tenant by the landlord or by a third party and/or the settlement and disposition of disputes arising from the relationship of landlord and tenant . . . shall be under the original and exclusive jurisdiction of the Court of Agrarian Relations.' This jurisdiction does not require the continuance of the relationship of landlord and tenant at the time of the dispute. The same may have arisen, and often times arises, precisely from the previous termination of such relationship. If the same existed immediately, or shortly, before the controversy and the subject-matter thereof is whether or not said relationship has been lawfully terminated, or if the dispute otherwise springs or originates from the relationship of landlord and tenant, the litigation is (then) cognizable only by the Court of Agrarian Relations . . .34 As earlier pointed out, jurisdiction over agrarian reform matters is now expressly vested in the DAR, through the DARAB. With the facts doubtlessly presenting a question of jurisdiction, it follows that the respondent has availed of the proper, speedy and adequate remedy which is the special civil action of prohibition. It is a settled rule that prohibition is the proper remedy to afford relief against usurpation of jurisdiction or power by an inferior court,35 or when, in the exercise of jurisdiction in handling matters clearly within its cognizance the inferior court transgresses the bounds prescribed to it by the law, or where there is no adequate remedy available in the ordinary course of law by which such relief can be obtained."36 The purpose of a writ of prohibition is to keep a lower court within the limits of its jurisdiction in order to maintain the administration of justice in orderly channels.37 Second. While appeal is the recognized remedy to question the judgment of an inferior court, this does not detract from the authority of a higher court to issue a writ of prohibition to restrain the inferior court, among other instances, from proceeding further on the ground that it heard and decided the case without jurisdiction.38 Since the right to prohibition is defeated not by the existence, but by the adequacy, of a remedy by appeal, it may accordingly be granted where the remedy by appeal is not plain, speedy or adequate.39 To say, as the petitioners argue, that the MCTC Decision has already attained finality because the respondent opted to file a petition for prohibition instead of an appeal is to sacrifice needlessly respondents right at the altar of technicalities. Should tenancy relationship be duly proven, the respondent as a tenant should be protected in keeping with the social justice precept enshrined in the Constitution.40 Also noteworthy is the fact that the petition for prohibition was filed within the reglementary period to appeal; hence, it

cannot be claimed that the same was used as substitute for a lost appeal. At this point, let it be stressed that we are not passing upon the propriety of the issuance of a writ of prohibition in favor of the respondent. As we have earlier pointed out, adjudication on this matter is best left to the RTC, where the case for prohibition pends, after the reception of the evidence of both parties. Third. We cannot also sustain the petitioners assertion that jurisdiction is a question of law; hence, the RTC could have ruled on the matter without the reception of the parties evidence. The very issue determinative of the question of jurisdiction is the realrelationship existing between the parties. It is necessary that evidence thereon be first presented by the parties before the question of jurisdiction may be passed upon by the court. It should be pointed out that the petitioners elevated to the appellate court the Order of the RTC denying their motion to dismiss by way of demurrer to evidence. A demurrer to evidence is an objection by one party to the adequacy of the evidence of his adversary to make out a case. Otherwise stated, the party demurring challenges the sufficiency of the whole evidence to sustain a verdict.41 In this case, the trial court ruled that respondents evidence in support of his application for a writ of prohibition was sufficient to require the presentation of petitioners contravening proof. The RTC did not commit grave abuse of discretion in so ruling. The Court of Appeals is therefore correct in upholding the lower courts denial of the petitioners motion to dismiss. WHEREFORE, for lack of merit, the petition for review is DENIED. The assailed decision of the Court of Appeals is AFFIRMED. SO ORDERED. G.R. No. 137237 September 17, 2002 ANTONIO PROSPERO ESQUIVEL and MARK ANTHONY ESQUIVEL, petitioners, vs. THE HON. OMBUDSMAN, THE SANDIGANBAYAN (THIRD DIVISION), THE PEOPLE OF THE PHILIPPINES and HERMINIGILDO EDUARDO, respondents. RESOLUTION QUISUMBING, J.: This special civil action for certiorari, prohibition, and mandamus1 with prayer for preliminary injunction and/or temporary restraining order seeks to annul and set aside: (1) the Ombudsman resolution2 dated June 15, 1998 finding prima facie case against herein petitioners, and (2) the order3 denying petitioners motion for reconsideration. Further, in their supplemental petition,4 petitioners assail the Sandiganbayan for taking cognizance of cases without or beyond its jurisdiction. They impleaded that court and the People of the Philippines as additional parties in this case.1wphi1.nt The factual antecedents of this case are as follows: PO2 Herminigildo C. Eduardo and SPO1 Modesto P. Catacutan are both residents of BarangayDampulan, Jaen, Nueva Ecija, but assigned with the Regional Intelligence and Investigation Division (RIID), Police Regional Office 3, Camp Olivas, San Fernando, Pampanga. In their respective complaintaffidavits,5 filed before the Philippine National Police Criminal Investigation and Detection Group (PNP-CIDG), Third Regional Office, Camp Olivas, San Fernando, Pampanga, Eduardo and Catacutan charged herein petitioners Antonio Prospero Esquivel,6 municipal mayor of Jaen and his brother, Mark Anthony "Eboy" Esquivel, barangay captain of barangay Apo, Jaen, with alleged illegal arrest, arbitrary detention, maltreatment, attempted murder, and grave threats. Also included in the charges were SPO1 Reynaldo Espiritu, SPO2 Nestor Villa Almayda, and LTO Officer Aurelio Diaz. PO2 Eduardo and SPO1 Catacutan likewise accused P/S Insp. Bienvenido C. Padua and SPO3 Inocencio P. Bautista of the Jaen Municipal Police Force of dereliction of duty. The initial investigation conducted by the PNP-CIDG showed that at about 12:30 p.m. of March 14, 1998, PO2 Eduardo was about to eat lunch at his parents house at Sta. Monica Village, Dampulan, Jaen, Nueva Ecija, when petitioners arrived. SPO1 Espiritu, SPO2 Almayda, LTO Officer Diaz, and several unidentified persons accompanied them. Without further ado, petitioners disarmed PO2 Eduardo of his Cal. 45 service pistol, which was covered by a Memorandum Receipt and COMELEC Gun Ban Exemption. They then forced him to board petitioners vehicle and brought him to the Jaen Municipal Hall. PO2 Eduardo also stated that while they were on their way to the town hall, Mayor Esquivel mauled him with the use of a firearm and threatened to kill him. Mayor Esquivel pointed a gun at PO2 Eduardo and said, "Putang-inamo, papatayinkita,

aaksidentihinkitadito, bakitmoakokinakalaban!" (You son of a bitch! I will kill you, I will create an accident for you. Why are you against me?)Upon reaching the municipal hall, Barangay Captain Mark Anthony "Eboy" Esquivel shoved PO2 Eduardo inside an adjacent hut. Mayor Esquivel then ordered SPO1 Espiritu to kill him, saying "Patayinmonaiyan at gawanngsenaryo at report." (Kill him, then create a scenario and make a report.) At this point, according to SPO1 Catacutan, he arrived to verify what happened to his teammate, PO2 Eduardo, but Mayor Esquivel likewise threatened him. Mayor Esquivel then ordered P/S Insp. Bienvenido Padua of the Jaen Police Station to file charges against PO2 Eduardo. Then, the mayor once again struck PO2 Eduardo in the nape with a handgun, while Mark Anthony "Eboy" Esquivel was holding the latter. PO2 Eduardo then fell and lost consciousness. When he regained his consciousness, he was told that he would be released. Prior to his release, however, he was forced to sign a statement in the police blotter that he was in good physical condition. PO2 Eduardo told the PNP-CIDG investigators that he was most likely maltreated and threatened because of juetengand tupada. He said the mayor believed he was among the law enforcers who raided a jueteng den in Jaen that same day. He surmised that the mayor disliked the fact that he arrested members of crime syndicates with connections to the mayor.7 In support of his sworn statement, PO2 Eduardo presented a medical certificate showing the injuries he suffered and other documentary evidence.8 After the initial investigation, the PNP-CIDG Third Regional Office forwarded the pertinent records to the Office of the Deputy Ombudsman for Luzon for appropriate action.9 The Office of the Deputy Ombudsman for Luzon conducted a preliminary investigation and required petitioners and their companions to file their respective counter-affidavits. In their joint counter-affidavit,10 petitioners and their companions denied the charges against them. Instead, they alleged that PO2 Eduardo is a fugitive from justice with an outstanding warrant of arrest for malversation. They further alleged that the gun confiscated from PO2 Eduardo was the subject of an illegal possession of firearm complaint. On June 15, 1998, the Deputy Ombudsman for Luzon issued the impugned resolution11 recommending that both Mayor Esquivel and Barangay Captain Mark Anthony "Eboy" Esquivel be indicted for the crime of less serious physical injuries, and Mayor Esquivel alone for grave threats. The charges against the other respondents below were dismissed, either provisionally or with finality. On August 14, 1998, Ombudsman Aniano A. Desierto approved the aforesaid resolution. Thereafter, separate informations docketed as Criminal Case No. 2477712 for less serious physical injuries against Mayor Esquivel and Mark Anthony "Eboy" Esquivel, and Criminal Case No. 2477813 for grave threats against petitioner mayor, were filed with the Sandiganbayan. On August 26, 1998, petitioners moved for reconsideration of the August 14, 1998 resolution of the Deputy Ombudsman for Luzon. As directed by the Sandiganbayan, they likewise filed a motion for reconsideration/reinvestigation14 with the Office of the Special Prosecutor (OSP). That motion was, however, denied by the OSP in the assailed order15 dated December 7, 1998. On December 11, 1998, the Ombudsman approved the OSPs order of denial. On February 8, 1999, petitioners were arraigned in both cases, and they pleaded not guilty to the charges. With their failure to extend the suspension of proceedings previously granted by the Sandiganbayan by virtue of their motion for reconsideration, petitioners elevated the matter to this Court alleging grave abuse of discretion on the part of public respondents in rendering the resolution and the order. On June 9, 1999, we denied for lack of merit petitioners motion16 reiterating their plea for the issuance of a TRO directing public respondents to refrain from prosecuting Criminal Cases Nos. 24777 and 24778.17 Petitioners now submit the following issues for our resolution: 1. WHETHER OR NOT RESPONDENT OMBUDSMAN GRAVELY ABUSED HIS DISCRETION IN DISREGARDING THE ADMISSION OF PRIVATE RESPONDENT THAT HE WAS IN GOOD PHYSICAL CONDITION WHEN HE WAS RELEASED FROM THE POLICE HEADQUARTERS OF JAEN, NUEVA ECIJA; 2. WHETHER OR NOT RESPONDENT OMBUDSMAN GRAVELY ABUSED HIS DISCRETION IN FINDING PROBABLE CAUSE FOR GRAVE THREATS WHEN PETITIONERS WERE LEGALLY EFFECTING THE ARREST OF THE PRIVATE RESPONDENT BY VIRTUE OF THE WARRANT OF ARREST ISSUED BY THE REGIONAL TRIAL COURT OF GAPAN, NUEVA ECIJA

UNDER CRIM. CASE NO. 4925 FOR MALVERSATION OF GOVERNMENT PROPERTY; and 3. WHETHER OR NOT RESPONDENT SANDIGANBAYAN HAS JURISDICTION OVER THE OFFENSES FILED AGAINST PETITIONERS. Petitioners formulation of the issues may be reduced to the following: (1) Did the Ombudsman commit grave abuse of discretion in directing the filing of the informations against petitioners? (2) Did the Sandiganbayan commit grave abuse of discretion in assuming jurisdiction over Criminal Cases Nos. 24777 and 24778? Petitioners argue that the Ombudsman committed grave abuse of discretion when he failed to consider the exculpatory evidence in their favor, namely, the admission of PO2 Eduardo that he was in good physical condition when he left the police station in Jaen, Nueva Ecija.18 With such admission, PO2 Eduardo is now estopped from claiming that he was injured since it is conclusive evidence against him and need not be proven in any other proceeding.19 Public respondents, represented by the Office of the Ombudsman through the OSP, counter that petitioners raise a factual issue which is not a proper subject of a certiorari action. They further postulate that this is the very same defense advanced by petitioners in the charges against them and being evidentiary in nature, its resolution can only be threshed out in a full-blown trial.20 We find the present petition without merit. The Ombudsman is empowered to determine whether there exists reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof and, thereafter, to file the corresponding information with the appropriate courts.21 Settled is the rule that the Supreme Court will not ordinarily interfere with the Ombudsmans exercise of his investigatory and prosecutory powers without good and compelling reasons to indicate otherwise.22 Said exercise of powers is based upon his constitutional mandate23 and the courts will not interfere in its exercise. The rule is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman, but upon practicality as well. Otherwise, innumerable petitions seeking dismissal of investigatory proceedings conducted by the Ombudsman will grievously hamper the functions of the office and the courts, in much the same way that courts will be swamped if they had to review the exercise of discretion on the part of public prosecutors each time they decided to file an information or dismiss a complaint by a private complainant.24 Thus, in Rodrigo, Jr. vs. Sandiganbayan,25 we held that: This Court, moreover, has maintained a consistent policy of non-interference in the determination of the Ombudsman regarding the existence of probable cause, provided there is no grave abuse in the exercise of such discretion. In this case, petitioners utterly failed to establish that the Ombudsman acted with grave abuse of discretion in rendering the disputed resolution and order. There was no abuse of discretion on the part of the Ombudsman, much less grave abuse in disregarding PO2 Eduardos admission that he was in good physical condition when he was released from the police headquarters.26 Such admission was never brought up during the preliminary investigation. The records show that no such averment was made in petitioners counter-affidavit27 nor was there any document purporting to be the exculpatory statement attached therein as an annex or exhibit. Petitioners only raised this issue in their motion for reconsideration.28 In his opposition to said motion, PO2 Eduardo did admit signing a document to the effect that he was in good physical condition when he left the police station. However, the admission merely applied to the execution of said document and not to the truthfulness of its contents. Consequently, the admission that petitioners brand as incontrovertible is but a matter of evidence best addressed to the public respondents appreciation. It is evidentiary in nature and its probative value can be best passed upon after a full-blown trial on the merits. Given these circumstances, certiorari is not the proper remedy. As previously held, but now bears stressing: . . . [t]his Court is not a trier of facts and it is not its function to examine and evaluate the probative value of all evidence presented to the concerned tribunal which formed the basis of its impugned decision, resolution or order.29 Petitioners would have this Court review the Sandiganbayans exercise of jurisdiction over Criminal Cases Nos. 24777-78. Petitioners theorize that the latter has no jurisdiction over their persons as they hold positions excluded in Republic Act

No. 7975.30 As the positions of municipal mayors and barangay captains are not mentioned therein, they claim they are not covered by said law under the principle of expressiouniusestexclusio alterius.31 Petitioners claim lacks merit. In Rodrigo, Jr. vs. Sandiganbayan,32Binay vs. Sandiganbayan,33 and Layus vs. Sandiganbayan,34 we already held that municipal mayors fall under the original and exclusive jurisdiction of the Sandiganbayan. Nor can Barangay Captain Mark Anthony Esquivel claim that since he is not a municipal mayor, he is outside the Sandiganbayans jurisdiction. R.A. 7975, as amended by R.A. No. 8249,35 provides that it is only in cases where "none of the accused (underscoring supplied) are occupying positions corresponding to salary grade 27 or higher"36 that "exclusive original jurisdiction shall be vested in the proper regional trial court, metropolitan trial court, municipal trial court, and municipal circuit court, as the case may be, pursuant to their respective jurisdictions as provided in Batas PambansaBlg. 129, as amended."37 Note that under the 1991 Local Government Code, Mayor Esquivel has a salary grade of 27.38 Since Barangay Captain Esquivel is the co-accused in Criminal Case No. 24777 of Mayor Esquivel, whose position falls under salary grade 27, the Sandiganbayan committed no grave abuse of discretion in assuming jurisdiction over said criminal case, as well as over Criminal Case No. 24778, involving both of them. Hence, the writ of certiorari cannot issue in petitioners favor. For the same reason, petitioners prayer for a writ of prohibition must also be denied. First, note that a writ of prohibition is directed to the court itself, commanding it to cease from the exercise of a jurisdiction to which it has no legal claim.39 As earlier discussed, the Sandiganbayans jurisdiction over Criminal Cases Nos. 24777-78 is clearly founded on law. Second, being an extraordinary remedy, prohibition cannot be resorted to when the ordinary and usual remedies provided by law are adequate and available.40 Prohibition is granted only where no other remedy is available or sufficient to afford redress. That the petitioners have another and complete remedy at law, through an appeal or otherwise, is generally held sufficient reason for denying the issuance of the writ.41 In this case, petitioners were not devoid of a remedy in the ordinary course of law. They could have filed a motion to quash the informations at the first instance but they did not. They have only themselves to blame for this procedural lapse as they have not shown any adequate excuse for their failure to do so. Petitioners did make a belated oral motion for time to file a motion to quash the informations, during their much delayed arraignment,42 but its denial is not a proper subject for certiorari or prohibition as said denial is merely an interlocutory order.43 Third, a writ of prohibition will not be issued against an inferior court unless the attention of the court whose proceedings are sought to be stayed has been called to the alleged lack or excess of jurisdiction.44 The foundation of this rule is the respect and consideration due to the lower court and the expediency of preventing unnecessary litigation;45 it cannot be presumed that the lower court would not properly rule on a jurisdictional objection if it were properly presented to it.46 The records show that petitioners only raised the issue of the alleged lack of jurisdiction by the Sandiganbayan before this Court.1wphi1.nt Nor can petitioners claim entitlement to a writ of mandamus. Mandamus is employed to compel the performance, when refused, of a ministerial duty, this being its chief use and not a discretionary duty.47 The duty is ministerial only when the discharge of the same requires neither the exercise of official discretion nor judgment.48 Hence, this Court cannot issue a writ of mandamus to control or review the exercise of discretion by the Ombudsman, for it is his discretion and judgment that is to be exercised and not that of the Court. When a decision has been reached in a matter involving discretion, a writ of mandamus may not be availed of to review or correct it, however erroneous it may be.49 Moreover, as earlier discussed, petitioners had another remedy available in the ordinary course of law. Where such remedy is available in the ordinary course of law, mandamus will not lie.50 WHEREFORE, the instant petition is DISMISSED for lack of merit. Costs against petitioners. SO ORDERED. G.R. No. 107040 April 12, 2000 PILO MILITANTE, petitioner, vs. HON. COURT OF APPEALS, Former Sixth Division, NATIONAL HOUSING AUTHORITY, represented by its

Project Manager, ANNABELLE D. CARANGDANG, and the REPUBLIC OF THE PHILIPPINES, respondents. PUNO, J.: Petitioner files this petition for review of the Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 25429 1 upholding the constitutionality of Presidential Decree (P.D.) No. 1315. Petitioner PiloMilitante is the registered owner of three (3) contiguous parcels of land with an aggregate area of 1,590 square meters in Balintawak, Caloocan City. The three parcels are covered by TCT Nos. 53066-A, 53067 and 53068, all derived from TCT No. 71357 issued by the Register of Deeds of Caloocan City. Twenty-four (24) squatter families live in these lots. In 1975, President Marcos issued Presidential Decree (P.D.) No. 13152 expropriating forty (40) hectares of land in Bagong Barrio, Caloocan City, covered by TCT Nos. 70298, and 73960, and portions of TCT Nos. 71357, 2017 and 2018. Section 1 of said P.D. reads: Sec. 1. The real properties covered by Transfer Certificate of Title Nos. 70289, 73960 and a portion of 71357 identified as Lot Nos. 3593, 3594 and 3629 in the name of Maria B. Castro and Lot No. 3206 in the name of Bonifacio Co as Tax Declaration No. 25395 with an aggregate area of 403,799 square meters, more or less; Lot Nos. 3591 and 3592 containing a total area of 1440 square meters in the name of Abdon Chan as per Tax Declaration Nos. 24853 and 24854 and Lot Nos. 3603, 3605 and 3607 containing a combined area of 1,590 square meters in the name of Pio [sic] Militante as per Tax Declaration No. 24876 all of which were previously covered by Transfer Certificate [of] Title No. 71357 and the adjacent real properties covered by Transfer Certificates of Title No. 2017 and 2018 registered in the name Leonora Carriedo containing an area of 141,133 square meters, more less and all located at Bagong Barrio, Caloocan City, Metro Manila, having been identified as a blighted area and included in the SIR Program established under Letters of Instructions No. 555 and ZIP Program as provided by Executive Order No. 6-77 dated 21 July 1977 of the Governor, Metropolitan Manila, are hereby declared expropriated. The National Housing Authority hereinafter referred to as the "Authority" is designated administrator for the national government and is authorized to immediately take possession, control and disposition of the expropriated properties with the power of demolition of their improvements. Pursuant thereto, the Authority with the government of Caloocan City and in consultation with the Metro Manila Commission shall evolve and implement a comprehensive development plan for the condemned properties. The land expropriated was identified in the decree as a slum area that required the upgrading of basic facilities and services and the disposal of the lots to their bona fide occupants in accordance with the national Slum Improvement and Resettlement (SIR) Program and the Metro Manila Zonal Improvement Program (ZIP). 3 It set aside P40 million as the maximum amount of just compensation to be paid the landowners. 4 The NHA, as the decree's designated administrator for the national government, undertook the implementation of P.D. 1315 in seven (7) phases called the Bagong Barrio Project (BBP). The properties covered by Phases 1 to 6 were acquired in 1978 and 1979. BBP Phase 7, which includes petitioner's land, was not among those acquired and paid for in 19781979. On September 11, 1979, Proclamation No. 1893 declared the entire Metropolitan Manila area as Urban Land Reform Zone. Proclamation No. 1893 was amended on May 14, 1980 by Proclamation No. 1967 which identified 244 sites in Metropolitan Manila as Areas for Priority Development and Urban Land Reform Zones. Meanwhile, on June 2, 1978, P.D. No. 1396 created the Department of Human Settlements (DHS) and placed the NHA under the supervision of said Department. 5 On February 7, 1981, Executive Order No. 648 transferred the regulatory functions of the NHA to the Human Settlements Regulatory Commission (HSRC), a quasi-judicial body attached to the DHS. 6 On September 24, 1981, petitioner wrote the HSRC seeking a declaration of non-coverage from the Urban Land Reform Program of the government. On October 2, 1981, HSRC Commissioner Raymundo R. Dizon, Jr. issued a certificate declaring petitioner's lots "outside the declared Urban Land Reform Zone." The certification reads as follows:

Mr. PiloMelitante [sic] 110 G. de Jesus St. Caloocan City. Re: Subject Land Description 3605, 3607 of the Survey of Cadastral Case Cadastral 1606. a. Tax Decl. No. 52773 b. Location St., Caloocan City c. Title 53066, 53067, 53068 d. Owner PiloMelitante [sic]

: Certification : Lot No. 3603, Cadastral Caloocan No. 34 GLRO Record No. : : G. de Jesus : :

Dear Mr. Militante: Anent your request dated 24 September 1981 concerning the abovementioned subject property, please be informed that said parcel of land is located outside the declared Urban Land Reform Zone (LURZ) [sic]. Very truly yours, RAYMUNDO R. DIZON, JR. Commissioner. 7 With this certificate, petitioner asked the NHA to relocate the squatters on his land. Acting on the request, General Gaudencio Tobias, NHA General Manager, sent a letter dated October 6, 1981 to Mayor MacarioAsistio, Jr., of Caloocan City, to conduct a census of the families occupying petitioners lots.8 The NHA called the squatters for a dialogue "to look into the possibility of amicably settling the eviction problem and/or to find out why a clearance should be issued or not for the removal/demolition of all the illegal structures in the said property." 9 The squatters did not attend the meeting. In view of their failure to attend, Joaquin Castano, Acting Division Manager, Resettlement Division, NHA, wrote a memorandum to the Department Manager, Resettlement Department, NHA, recommending the issuance of a demolition clearance. 10 On January 21, 1982, NHA General Manager Tobias granted clearance to dismantle and remove all illegal structures on petitioner's property within three (3) months from receipt of the order. Clearance was also granted for the relocation of the 24 families to the SapangPalay Resettlement Project. The clearance was addressed to Mayor Asistio and reads as follows: Sir: This has reference to the letter of Mr. PiloMelitante [sic] which was received by our Office on 24 September 1981 regarding his request for the relocation of the families presently occupying his property situated at G. de Jesus Street, Balintawak, that City, covered by TCT Nos. 53066, 53067 and 53068, subject of 1st Indorsement of City Engineer Jose Uson. Evaluation of the request shows the same to merit favorable consideration. In view thereof, clearance is hereby given that Office to dismantle and/or remove all the illegal structures from the above-cited properties within three (3) months upon receipt hereof, pursuant to the provisions of LOIs 19 and 19-A, and its implementing directives from the Office of the President. A. Qualified for government resettlement assistance to SapangPalay Resettlement Project: [list of names of the 24 occupants] B. Disqualified from government resettlement assistance NONE This clearance shall also cover all other structures on subject premises whose owners refused to be interviewed and those who entered the same after the conduct of census survey in 1981. May we request that the affected families be served written notices given them at least

fifteen (15) days within which to vacate voluntarily and/or prepare for their relocation, copies of which must be furnished this Office. To ensure the smooth conduct of relocation operation thereat, we further request that you inform this Authority at least one (1) week ahead of the scheduled date of implementation of this clearance so we could send our representative to coordinate the same. Very truly yours, G. V. TOBIAS Maj. Gen., AFP (Ret) General Manager. 11 The demolition did not take place. In a letter dated September 16, 1982, General Tobias inquired from Mayor Asistio whether Caloocan City had plans of developing petitioner's properties in the Bagong Barrio Project. On December 13, 1982, Mayor Asistio replied that "considering the said properties are private in character, the City has no plans presently or in the immediate future to develop or underwrite the development of said properties." 12 Four (4) years later, in 1986, BBP Phase 7 was listed as among the priority projects for implementation under the government's Community Self-Help Program. 13 The NHA, through General Tobias, approved an emergency fund of P2 million for the acquisition of petitioner's lots. NHA started negotiations with petitioner. In 1987, petitioner, through an authorized representative, made an initial offer of P200.00 per square meter. The NHA made a counter-offer of P175.00 per square meter. Petitioner increased his price to P1,000.00 and later to P3,000.00. NHA General Manager Raymundo R. Dizon, Jr. informed petitioner that NHA's maximum offer was P500.00. This was rejected by petitioner, through his lawyer, in a letter dated March 20, 1989.
14

On September 8, 1990, petitioner, through counsel, requested for a revalidation of his demolition clearance and relocation of the squatters. 15 On January 15, 1991, NHA General Manager Monico Jacob revalidated the demolition clearance and informed Mayor Asistio that the NHA was making available enough serviced home lots in BagongSilang Resettlement Project for the 24 families. The letter of revalidation reads: Honorable Macario C. Asistio, Jr. Mayor Caloocan City Re: Revalidation of Letter-Advice on the Relocation and Resettlement of Twenty-four (24) Families from G. de Jesus St., Balintawak, Caloocan City. Dear Mayor Asistio, This has reference to the twenty-four (24) squatter families from G. de Jesus St., Balintawak, Caloocan City for relocation and resettlement by your City pursuant to the authority vested by LOIs 19, 19-A and 691. Finding the documents submitted by your City to NHA to be in order, the provisions of the aforementioned LOIs and the implementing directive from the Office of the President on squatter relocation and resettlement may be enforced. In accordance with the existing provisions of LOI 19 that indigent families be given resettlement assistance, we are advising you that the National Housing Authority is making available enough serviced homelots in BagongSilang Resettlement Project for twenty-four (24) families qualified for resettlement assistance per attached approved master list. We are sending our NHA representatives to cause the accomplishment and issuance of the necessary Entry Passes for the families going to our resettlement project and to provide technical assistance and monitor your relocation operation. We trust that the established policies, procedures and guidelines on squatter prevention and resettlement including the conduct of information drive, inter-agency

coordination and the issuance of notices to affected families, would be strictly observed to ensure peaceful, orderly and humane relocation operation. Kindly be informed further that the effectivity of this letter advice is valid only for three (3) months from receipt hereof, subject to revalidation upon your recommendation if necessary. Very truly yours, MONICO V. JACOB General Manager. 16 Respondent Annabelle Carangdang, NHA Project Manager in Bagong Barrio, refused to implement the clearance to eject the squatters on petitioner's land. At the conference of February 13, 1991, Carangdang claimed that petitioners land had already been declared expropriated by P.D. 1315. Petitioner then filed with the respondent Court of Appeals a "Petition for Prohibition and Mandamus with Declaration as Inexistent and Unconstitutional Presidential Decree No. 1315" against the NHA and Carangdang. In a decision dated April 24, 1992, the respondent Court of Appeals dismissed the petition and held that petitioner failed to overcome the presumption of the decree's constitutionality. 17 Petitioner's motion for reconsideration was also denied on August 31, 1992. 18 Hence, this recourse where petitioner raises the following issues: I WHETHER OR NOT RESPONDENT ANNABELLE CARANGDANG CAN BE COMPELLED TO EFFECT THE DIRECTIVE/ MEMORANDUM OF RELOCATION/ RESETTLEMENT SUBJECTING THE SAID 24 SQUATTER FAMILIES FROM UNLAWFULLY OCCUPYING PETITIONERS SUBJECT PROPERTY WITHOUT DECLARING P.D. 1315 AS VOID AND UNCONSTITUTIONAL; AND II WHETHER OR NOT SAID P. D. 1315 AT LEAST UP TO THE EXTENT OF PETITIONERS PROPERTIES ADVERSELY AFFECTED CAN BE DECLARED NULL AND VOID FOR BEING UNCONSTITUTIONAL. 19 We deny the petition. First. Petitioner is not entitled to the writ of prohibition. Section 2 of Rule 65 provides: Sec. 2. Petition for prohibition. When the proceedings of any tribunal, corporation, board, or person, whether exercising functions judicial or ministerial, are without or in excess of its jurisdiction, or with grave abuse of discretion, and there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court alleging the facts with certainty and praying that judgment be rendered commanding the defendant to desist from further proceedings in the action or matter specified therein. x xx x xx xx x20 Prohibition is a preventive remedy. 21 It seeks for a judgment ordering the defendant to desist from continuing with the commission of an act perceived to be illegal. In the case at bar, petitioner does not pray that respondent Carangdang should be ordered to desist from relocating the squatters. What petitioner challenges is respondent Carangdang's refusal to

implement the demolition clearance issued by her administrative superiors. The remedy for a refusal to discharge a legal duty is mandamus, not prohibition. Second. The petitioner is not also entitled to a writ of mandamus. Section 3, Rule 65 provides: Sec. 3. Petition for mandamus. When any tribunal, corporation, board, or person, unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy, and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court alleging the facts with certainty and praying that judgment be rendered commanding the defendant, immediately or at some other specified time, to do the act required to be done to protect the rights of petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the defendant. 22 Mandamus is a writ commanding a tribunal, corporation, board, or person to do the act required to be done when it or he unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, there being no other plain, speedy, and adequate remedy in the ordinary course of law. 23 It is incumbent upon petitioner to show that he has a well-defined, clear and certain right to warrant the grant of the writ of mandamus. 24 He failed to discharge this burden. The records show that there is no direct order from the NHA General Manager addressed to respondent Carangdang to evict the squatters and demolish their shanties on the subject property. The NHA demolition clearance issued by General Tobias on January 21, 1982 was addressed to Mayor Asistio, the mayor of Caloocan City. The clearance's revalidation by NHA General Manager Monico Jacob was likewise addressed to Mayor Asistio.1wphi1.nt Furthermore, mandamus is an extraordinary remedy that may be availed of only when there is no plain, speedy and adequate remedy in the ordinary course of law. A petition for mandamus is premature if there are administrative remedies available to the petitioner. 25 If superior administrative officers could grant the relief prayed for, special civil actions are generally not entertained. 26 In the instant case, petitioner has not exhausted his administrative remedies. He may seek another demolition order from the NHA General Manager this time directly addressed to respondent Carangdang or the pertinent NHA representative. In fact, the Government Corporate Counsel 27 asserts that petitioner should have brought Carangdang's inaction to the attention of her superiors. There is therefore no extreme necessity to invoke judicial action as the administrative set-up could have easily corrected the alleged failure to act. 28 The General Manager, as Chief Executive Officer of the NHA, has the power of supervision over the operations and internal affairs of NHA. 29 Third. Petitioner's procedure in assailing the constitutionality of P.D. No. 1315 is flawed. His principal concern is the relocation of the squatters on his land. If he could attain this aim, petitioner himself admits in his Petition that "there may not be a need for declaring P.D. No. 1315 null and void." 30 Indeed, petitioner assails P.D. No. 1315, purely out of pique against respondent Carangdang who refused to implement the demolition order of her superior. To use petitioner's own words, he has to attack the

constitutionality of P.D. No. 1315 "to . . . break respondent Carangdang's hypocrisy and pretension." We hold that petitioner has no privilege to assail P.D. No. 1315 as unconstitutional to serve a petty purpose. Moreover, the facts reveal that petitioner's land is not in clear danger of expropriation. P.D. No. 1315 was issued way back in 1975. It covered 40 hectares of land in Bagong Barrio, Caloocan City. Almost all of these 40 hectares had been expropriated as early as 1979 except the 1,590 sq. m. lot of petitioner. Considering this long lapse of time, it is doubtful if the government would still desire to expropriate petitioner's lot which only measures 1,590 sq. m. There is another reason why petitioner's lot may no longer be expropriated by government. The land sought to be expropriated under P.D. No. 1315 is defined as an area "identified as a blighted area and included in the SIR Program" which means Slum Improvement and Resettlement Program. On October 2, 1981, however, HSRC Commissioner Dizon, Jr. certified that petitioner's lot is "outside the declared Urban Land Reform Zone." With this certification, there is reason to believe that taking petitioner's tiny lot of 1,590 sq. m. will serve no social purpose. Finally, petitioner cannot blow hot and cold on the constitutionality of P.D. No. 1315. He did not question its constitutionality when it was decreed in 1975. In 1987, he even negotiated with NHA for the price of his land. Implicitly but clearly, he recognized the validity of the decree. The negotiation unfortunately fell and the government did not take any further step to expropriate his land. It was only in 1991 after respondent Carangdang refused to eject the squatters in petitioner's land that petitioner, out of pique, alleged that P.D. No. 1315 is constitutionally infirmed. A well recognized rule in constitutional law is that estoppel may operate to prevent a party from asserting that an act is unconstitutional. 31 There is also merit to the cautionary words of the Solicitor General that to allow petitioner's flipflopping stance "might spawn legal and social ramifications which cannot just be lightly ignored," 32 since almost all of the 40 hectare land covered by P.D. No. 1315 had been expropriated and awarded to the poor people of our society without their landowners challenging the validity of the decree. In his Concurring Opinion, our esteemed colleague, Mr. Justice Mendoza, denigrates this warning and cites Alfonso v. Pasay City33 as authority for the view that "if property is taken by the government without the benefit of expropriation proceedings and is devoted to public use, such as a road, after many years, the property owner may no longer bring an action for recovery of his land, but may simply demand payment of just compensation for his land." 34 A careful reading of the Alfonso case, however, will show that this Court did not rule that the only remedy of an aggrieved landowner in such a situation is to "simply demand payment of just compensation." To be sure, this Court contemplated the remedy of restoring possession to the aggrieved landowner. If it did not order the remedy, it was only because it was no longer feasible as the lot involved had already been converted to a road. The exact ruling states: 35 As registered owner, he could bring an action to recover possession at any time because possession is one of the attributes of ownership of land. However, said restoration of possession by the City of Pasay is neither convenient nor feasible because it is now and has been used for road purposes. So, the only relief available is for the City of Pasay to make due compensation, which it could and should have done years ago since 1925. In the case at bar, the landowners concerned may not opt for the right to be paid just compensation. The process is not an easy one and may take years especially in light of the budget difficulties of the government. We take judicial notice of the fact that the current budget deficit of the government amounts to P8.9 billion. IN VIEW WHEREOF, the petition is dismissed. No costs. SO ORDERED.

G.R. No. 133033 June 15, 2005 PAMANA, INC., petitioner, vs. THE HONORABLE COURT OF APPEALS (Former Ninth Division), FEDERICO HERNANDEZ, DANILO HERNANDEZ, ISAGANI VILLANUEVA, ROMEO VILLANUEVA, ISAIS VILLANUEVA, ROSITA PACHECO, CRISTITUTO PACHECO, ANNABELLE PACHECO, TERESITA FLORES, NORMA VILLAMIN, LIZA LIWANAG, ANSELMO SATURNO, ROBERTO VILLANUEVA, EDEN BLANCA, FRANCISCO CAYANAN, ISIDRA MANGIRON, CRESENCIO TOLENTINO, VIRGILIO VILLANUEVA, PABLO MANIMTIM, FEDELIZA ALVAREZ, MAMERTO ALVAREZ, LYDIA ZAPANTA, FILOMINO ENCARNACION, CARLITO ALMENDRALA, NORMA SOLON, ROMEO HENURALDA, NELIA CHAVEZ, MARISSA GONZALES, MARIA SANONE, ISABEL CONDE, LILY GECES, MAGDALENA RIVERA, JIMMY RAZON, JESSIE BEBIS, CORAZON DE VERA, MARISSA GAMUTIN, JESSIE ROBLEDO, EDUARDO MANAGA, NESTO CORVILLA, GUILLERMO DEL SOL, MARIQUITA BAMBILLA, GABRIELA MENDRALA, JORGE SATURNO, ANASTACIO ALVAREZ and DEMETRIA ALVAREZ, respondents. DECISION GARCIA, J.: On appeal to this Court by way of this petition for review on certiorari under Rule 45 of the Rules of Court are the following issuances of the Court of Appeals in CA-G.R. SP No. 45879, to wit: 1. Decision dated January 7, 1998,1 setting aside the Order of Execution and the writs of execution and demolition issued by the Municipal Trial Court of Calamba, Laguna insofar as Lots 5 and 7 are concerned, in the ejectment suit thereat commenced by the petitioner against the herein respondents; and 2. Resolution dated March 5, 1998,2 denying petitioners motion for reconsideration. Reviewed, the records disclose the following factual backdrop: On April 17, 1996, in the Municipal Trial Court of Calamba, Laguna two (2) separate complaints,3 both for forcible entry with prayer for a writ of preliminary injunction, were filed by the petitioner against two (2) sets of defendants (now, the respondents). Docketed in the same court as Civil Cases No. 3414 and 3424, the complaints uniformly alleged, inter alia, that petitioner is the owner and in lawful possession of parcels of land located at barrios Bocal and Lecheria, Calamba, Laguna its ownership thereof being evidenced by "Transfer Certificates of Title T-159894, T-162413, T-159897, T-204488, and T-159898", which titles, per record, respectively covered Lot 2-B-3-D-2, Lot 2-B-3-C, Lot 8, Lot 3 and Lot 4 of the subdivision plan (LRC) Psd-282033; and that, sometime in 1995, respondents, by means of force, strategy and stealth, unlawfully entered and occupied said parcels and built their shanties thereon. In their answer,4 respondents denied the material allegations of the complaints and averred that the lots they are in occupancy of are not owned by the petitioner because what they are occupying are Lot 5 of TCT No. T-66140 and Lot 7 of TCT No. T-61703, both owned and registered in the name of the Philippine Sugar Estate Development Corporation which gave them permission to occupy the same. Respondents thus prayed for the dismissal of the complaints for petitioners lack of cause of action against them. The cases were heard and tried jointly by the MTC under the Rules on Summary Procedure. And, on December 10, 1996, that court rendered a joint decision5 thereon, ordering the respondents "to vacate the premises in question" and to pay attorneys fees and the costs, to wit: WHEREFORE, judgment is hereby rendered in favor of [petitioner] in both cases and against the [respondents], ordering the latter and all persons claiming under them to vacate the premises in question and to pay attorneys fees jointly and severally the amount of P5,000.00 in both cases and costs. SO ORDERED (Emphasis supplied). In time, respondents went on appeal to the Regional Trial Court at Calamba, Laguna. Initially, in a decision6 dated June 4, 1997, the RTC set aside that of the MTC and ordered the remand of the cases to the latter, explaining that the suits could not have been covered by the Rules on Summary Procedure because the defense interposed by the respondents raised the question of ownership, reason for which the MTC should have directed petitioner to adduce in evidence its muniments of title "to show that the portion (occupied) by the [respondents] is embraced in [petitioners] property."

Later, however, on petitioners motion for reconsideration, the RTC, in an order7 dated August 22, 1997, set aside its earlier decision and affirmed en totothe appealed MTC decision, explaining that the Rules on Summary Procedure, as amended, applies even if the issue of ownership is involved, adding that the remedy left to respondents is to contest petitioners ownership in an appropriate forum and not in the forcible entry case filed against them. With neither of the contending parties taking an appeal from the aforementioned order of the RTC, said order became final and executory and the cases ultimately remanded to the MTC. Hence, on October 10, 1997, the MTC, again on petitioners motion, issued a Writ of Execution commanding the sheriff "to cause the [respondents] to forthwith remove from said premises" and to restore petitioner thereto. This was followed by a Writ of Demolition,8 ordering the sheriff to destroy and demolish respondents houses and constructions, it appearing that despite the earlier writ, respondents refused to vacate the lot "subject-matter of these cases". On November 6, 1997, respondents went to the Court of Appeals via a Petition for Prohibition with prayer for a temporary restraining order, thereat docketed as CA-G.R. SP No. 45879, praying the appellate court to restrain the sheriff from implementing the writ of demolition, which, according to them, the sheriff is poised to implement the next day, November 7, 1997. Acting on the petition, the Court of Appeals forthwith issued a temporary restraining order on November 7, 1997, but the same "appears to have been received by the Sheriff after the houses of the [respondents] had been destroyed", albeit respondents "have remained in the premises".9 As stated at the outset hereof, the Court of Appeals, in a decision10 dated January 7, 1998, set aside the MTCs Order of Execution, Writ of Execution and Writ of Demolition "insofar as Lots 5 and 7 covered by T.C.T. Nos. T-66140 and T-61703 are concerned", and directed petitioner and the sheriff to desist from implementing said writs against the respondents. We quote the dispositive portion of the same decision: WHEREFORE, the Order of Execution, the Writ of Execution and the Writ of Demolition issued in Civil Cases Nos. 3414 and 3424 are SET ASIDE insofar as Lots 5 and 7 covered by T.C.T. Nos. T-66140 and T-61703 are concerned and (petitioner, the sheriff and the MTC) are ordered to desist from further implementing the same against the [respondents]. The Supplemental Petition for Damages filed by the [respondents] is not admitted, the same being properly cognizable by another forum. Costs against the [petitioner]. SO ORDERED. With its motion for reconsideration having been denied by the appellate court in its resolution11 of March 5, 1998, petitioner Pamana, Incorporated is now with us thru the instant recourse, contending that the Court of Appeals gravely erred XXX WHEN IT GAVE DUE COURSE AND ACTED FAVORABLY ON THE PETITION FOR PROHIBITION WITH PRAYER FOR TEMPORARY RESTRAINING ORDER OF A FINAL AND EXECUTORY DECISION. XXX WHEN IT RULED THAT THE DECISION OF THE MUNICIPAL TRIAL COURT OF CALAMBA IN CIVIL CASES NOS. 3414 AND 3424 DO NOT INCLUDE LOTS 5 & 7 THE PREMISES OCCUPIED BY PRIVATE RESPONDENTS. XXX WHEN IT PROHIBITED THE IMPLEMENTATION OF THE WRIT OF DEMOLITION, AS PROHIBITION IS A PREVENTIVE REMEDY AND DOES NOT LIE TO RESTRAIN AN ACT WHICH IS ALREADY FAIT ACCOMPLI. The petition lacks merit. Petitioners first assigned error raises a procedural question, namely, the propriety of respondents resort to the special civil action of prohibition in CA-G.R. SP No. 45879. To petitioner, the Court of Appeals should have dismissed said petition because prohibition, under Rule 65 of the Rules of Court, may only be availed of if there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law, contending that what the respondents should have done, which they did not, was to interpose an appeal from the RTCs order of August 22, 1997, which affirmed en totothe earlier decision of the MTC ordering them to vacate the premises in question. We are not persuaded. Appeal as a remedy is available only in cases where there is an error of judgment on the part of a court, tribunal or quasijudicial agency.12 An error of judgment is one which a court may commit in the exercise of its jurisdiction and which error is reviewable only by appeal.13 It is, therefore, an instance where a court having jurisdiction on the subject matter of the case renders an erroneous decision.

Here, respondents do not impute any error of judgment on the part of the MTC when it ordered them to vacate the premises in question. Neither do they question the correctness of the RTCs order dated August 22, 1997, affirming en toto the appealed decision of the MTC. As it were, respondents merely prayed in the petition they filed in CA-G.R. SP No. 45879 that a writ of prohibition be issued commanding the sheriff to cease and desist from further enforcing the Writ of Demolition because, according to them, the properties whereon their houses stand are not among the parcels of land involved in the ejectment suits filed against them by the petitioner. Appeal, therefore, is not the remedy they ought to have availed of under the circumstances. But even assuming, so petitioner argues,that no appeal was available, nonetheless, respondents should have filed with the appellate court a petition for certiorari and not prohibition, invoking, in support thereof, our ruling in Presbiterio, et al. vs. Judge Sotero Rodas.14 The Court disagrees. To begin with, petitioners reliance on Presbiterio, et al. is misplaced. Presbiterioinvolved the propriety of the trial courts order directing the execution of its judgment pending appeal unless the defendants therein post a supersedeas bond of P92,000.00. We there held that the proper remedy for the petitioners is certiorari, not prohibition, thus: Upon the facts above stated, we think the proper remedy for the petitioners, if any, is certiorari to annul or modify the order of the respondent judge for the filing of a supersedeas bond (section 1, rule 67), and not prohibition to require the respondent judge to desist from enforcing said order. In here, the propriety of the MTCs issuance of an Order of Execution, Writ of Execution and Writ of Demolition is beyond question, more so that its decision of December 19, 1996 has already become final and executory. What is dubious in this case is the sheriffs act of implementing the writs thus issued insofar as Lots 5 and 7 are concerned, which lots, so respondents maintain, are not the "premises in question" referred to in the decision sought to be executed. Besides, the special civil action of certiorari is directed only against a tribunal, board or officer exercising judicial or quasijudicial functions.15 It is not available as a remedy for the correction of acts performed by a sheriff during the execution process, which acts are neither judicial nor quasi-judicial but are purely ministerial functions.16 Upon the other hand, prohibition is directed against a tribunal, corporation, board, officer or person exercising judicial, quasi-judicial or ministerial functions.17 Likewise, certiorari and prohibition differ as to purpose. For while certiorari is aimed at "annulling or modifying" a proceeding, prohibition is directed at "commanding the respondent to desist from further proceedings in the action or matter specified in the petition".18 Precisely, in the petition for prohibition filed by respondents in CA-G.R. SP No. 45879, they did not seek to annul or modify the Order of Execution, Writ of Execution and Writ of Demolition issued by the MTC. What they there assailed was the sheriffs power and authority to implement said writs vis-vis the lots actually occupied by them, namely, Lot No. 5 and Lot No. 7 of TCT Nos. T-66140 and T-61703, respectively, then registered in the name of the Philippine Sugar Estate Development Corporation. It is as regards those lots that they want the sheriff restrained and prohibited from implementing said writs, more particularly the writ of demolition. Consequently, prohibition, not certiorari, is the appropriate remedy for them. We shall now address the lynchpin issue in this case. Petitioner puts the Court of Appeals to task in ruling that the MTC decision does not include Lots No. 5 and 7, the very lots occupied by respondents. We sustain the Court of Appeals. Be it remembered that in the very complaints filed by the petitioner before the MTC, it is there clearly stated that the subjects thereof are its parcels of land in Barrios Bocal and Lechirea, more specifically those covered by its TCT No. T159894, T-162413, T-159897, T-204488 and T-159898. As borne by the records, and this is not disputed by the petitioner, TCT No. T-159894 refers to Lot 2-B-3-D-2; TCT No. T-162413 to Lot 2-B-3-C; TCT No. T-159897 to Lot 8; TCT No. T-204488 to Lot 3; and TCT No. T-159898 to Lot 4. When, in its decision, the MTC ordered the respondents "to vacate the premises in question", said premises could be none other than the aforementioned lots, to wit: Lot 2-B-3-D2; Lot 2-B-3-C; Lot 8; Lot 3; and Lot 4, precisely because these are the lots respectively covered by petitioners five (5) titles mentioned in its complaints. Lots 5 and 7, respectively covered by TCT No. T-66140 and T61703, in the name of the Philippine Sugar Estate

Development Corporation, and whereon respondents built their houses, are and could not have been embraced in the phrase "premises in question" spoken of in the MTC decision. For sure, petitioner no less admits in the present petition that in the complaints it filed with the MTC, it "did not list down lots 5 and 7 covered by TCT-66140 and T-61703", alleging that it was "not aware that said lots were separately titled and that the same were still with the seller".19 Yet, in the process of executing the writs of execution and demolition, the sheriff proceeded to implement the same on Lots 5 and 7 which, as above-observed, could not have been embraced in the phrase "premises in question", found in the MTC decision. In short, the sheriff went beyond the very mandate of the MTC. This, the sheriff cannot do as his duty is to strictly comply with the directive of the court in accordance with its letter and without deviating therefrom, and to see to it that the execution is done in strict conformity with the judgment sought to be executed. He is in no capacity to vary the judgment and deviate therefrom based on his own interpretation thereof. "As agents of the law, sheriffs are called upon to discharge their duties with due care and utmost diligence because in serving the courts writs and processes and implementing its order, they cannot afford to err without affecting the integrity of their office and the efficient administration of justice" 20(Emphasis supplied). In Wenceslao vs. Madrazo,21 the Court stressed: It is a settled rule that the sheriff's duty in the execution of a writ issued by a court is purely ministerial.22 When a writ is placed in the hands of a sheriff it is his duty, in the absence of any instructions to the contrary, to proceed with reasonable celerity and promptness to execute it according to its mandate. He is to execute the order of the court strictly to the letter23 (Emphasis supplied). In Villareal vs. Rarama, et al.24 the Court emphasized the importance of the faithful implementation of a writ of execution: The sheriff, as an officer of the court upon whom the execution of a final judgment depends, must necessarily be circumspect and proper in his behavior. Execution is the fruit and end of the suit and is the life of the law. Thus, when a writ is placed in the hands of a sheriff it is his duty, in the absence of any instructions to the contrary, to proceed with reasonable celerity and promptness to execute it according to its mandate. He is to execute the directives of the court therein strictly in accordance with the letter thereof and without any deviation therefrom (Emphasis supplied). To stress, Lots 5 and 7 are never included in the complaints for ejectment filed by the petitioner before the MTC. Consequently, the sheriffs act of implementing the writs on said lots by causing the demolition of respondents houses thereat clearly constitutes a violation of his mandate, restrainable by prohibition. Finally, petitioner insists that the appellate court committed error when it prohibited the implementation of the Writ of Demolition even as the sheriff has already caused the demolition of respondents houses and other constructions. To petitioner, the acts sought to be restrained are already fait accompli,and, therefore, may no longer be abated. Again, we disagree. It is a matter of record that the petition for prohibition in CA-G.R. SP No. 45879 was filed on November 6, 1997, while the Writ of Demolition was scheduled for implementation only on November 7, 1997. To quote the Court of Appeals in its decision of January 7, 1998: Thus on November 6, 1997, the defendants [referring to herein respondents] filed this petition seeking a writ of prohibition against the respondent Sheriff, commanding him to cease and desist from further proceeding with the writ of demolition which was scheduled for implementation on November 7, 1997 (Emphasis supplied). Sure, petitioner would want to take exception from the above factual finding of the Court of Appeals by invoking the Sheriffs Return,25 which we quote, as follows: Respectfully returned to the Honorable Court, Municipal Trial Court, Calamba, Laguna the attached herein Writ of Demolition in the above-entitled case with the information that defendants houses and construction from plaintiffs subject premises were already demolished. Hence, the Writ of Demolition is hereby returned Satisfied. We observe, however, that the above quoted Sheriffs Return is dated November 25, 1997. In no way, therefore, does the same return conclusively or at least, persuasively prove that the demolition was effected prior to respondents filing of their petition for prohibition with the Court of Appeals. Petitioner having failed to prove its point, the Court of Appeals finding must be left undisturbed. Besides, it appears

undisputed that respondents are still in occupancy of Lots 5 and 7. In any event, insofar as Lots 5 and 7 are concerned, we agree with the Court of Appeals when it said in its resolution of March 5, 1998, thus: xxx But granting that the order of demolition has been fully implemented, this does not alter our decision setting aside the order of execution and writs complained of and ordering respondents to desist from further implementing the same.26 WHEREFORE, the instant petition is DENIED, and the assailed decision and resolution of the Court of Appeals AFFIRMED. Costs against petitioner. SO ORDERED. G.R. No. L-2422 September 30, 1949 MARCELO ENRIQUEZ, petitioner, vs. HIGINIO B. MACADAEG, Judge of the Court of First Instance of Cebu, MELITON YBURAN, and THE PHILIPPINE NATIONAL BANK, respondents. Lamberto L. Macarias for petitioner. Ramon B. de los Reyes for respondent Philippine National Bank. Jesus Esmea Campos for the other respondents. REYES, J.: This is a petition for a writ of mandamus to compel the respondent judge to dismiss a civil action pending in his court. The civil action in question is for the recovery of a piece of real property situated in Negros Oriental, the complaint alleging that the said property had been bought by plaintiff at an execution sale but that, notwithstanding the sale, the judgment debtor, as supposed owner of said property, subsequently mortgaged the same to the Philippine National Bank and refused to surrender possession thereof to plaintiff, whereupon, the latter brought suit (MelitonYburan vs. Marcelo Enriquez and The Philippine National Bank, civil case No. R552 of the Court of First Instance of Cebu) to have himself declared owner of said property and placed in possession thereof. Before filing their answer, the defendants in that case moved for the dismissal of the complaint on the ground, among others, that, as the action concerned title to and possession of real estate situated in Negros Oriental, venue was improperly laid in the Court of First Instance of Cebu. The motion having been denied, the defendants filed the present petition for mandamus to compel the respondent judge to dismiss the action. Answering the petition, the respondent judge puts up the defense that the act sought to be ordered involves the exercise of judicial discretion and that petitioner has another adequate remedy, which is by appeal. Section 3 of Rule 5 of the Rules of Court requires that actions affecting title to or recovery of possession of real property be commenced and tried in the province where the property lies, while paragraph 1 (b) of Rule 8, provides that defendant may, within the time for pleading, file a motion to dismiss the action when "venue is improperly laid." As the action sought to be dismissed affects title to and the recovery of possession of real property situated in Oriental Negros, it is obvious that the action was improperly brought in the Court of First Instance of Cebu. The motion to dismiss was therefore proper and should have been granted. But, while the respondent judge committed a manifest error in denying the motion, mandamus is not the proper remedy for correcting that error, for this is not a case where a tribunal "unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office" or "unlawfully excludes another from the use and enjoyment of a right." (Section 3, Rule 67, Rules of Court.) It is rather a case where a judge is proceeding in defiance of the Rules of Court by refusing to dismiss an action which would not be maintained in his court. The remedy in such case is prohibition (section 2, Rule 67), and that remedy is available in the present case because the order complained of, being merely of an interlocutory nature, is not appealable. While the petition is for mandamus, the same may well be treated as one for prohibition by waiving strict adherence to technicalities in the interest of a speedy administration of justice pursuant to section 2, Rule 1, Rules of Court. Wherefore, let a writ of prohibition issue, enjoining the respondent judge or his successor from taking cognizance of this case unless it be to dismiss the same in accordance with the Rules. Without costs. So ordered. G.R. No. 156067 August 11, 2004 MADRIGAL TRANSPORT, INC., petitioner, vs. LAPANDAY HOLDINGS CORPORATION; MACONDRAY

AND COMPANY, INC.; and LUIS P. LORENZO JR., respondents. DECISION PANGANIBAN, J.: The special civil action for certiorari and appeal are two different remedies that are mutually exclusive; they are not alternative or successive. Where appeal is available, certiorari will not prosper, even if the ground therefor is grave abuse of discretion. Basic is the rule that certiorari is not a substitute for the lapsed remedy of appeal. The Case Before us is a Petition for Review1 under Rule 45 of the Rules of Court, assailing the February 28, 2002 Decision2 and the November 5, 2002 Resolution3 of the Court of Appeals (CA) in CA-GR SP No. 54861. The challenged Decision disposed as follows: "WHEREFORE, in consideration of the foregoing premises, private respondents Lapanday and Lorenzo, Jr.s Motion for Reconsideration dated 10 February 2000 is GRANTED. Accordingly, the Resolution dated 10 January 2000 is RECONSIDERED and SET ASIDE, thereby dismissing the Petition for Certiorari dated 10 September 1999."4 The assailed Resolution denied reconsideration. The Facts The pertinent facts are undisputed. On February 9, 1998, Petitioner Madrigal Transport, Inc. ("Madrigal") filed a Petition for Voluntary Insolvency before the Regional Trial Court (RTC) of Manila, Branch 49.5 Subsequently, on February 21, 1998, petitioner filed a Complaint for damages against Respondents Lapanday Holdings Corporation ("Lapanday"), Macondray and Company, Inc. ("Macondray"), and Luis P. Lorenzo Jr. before the RTC of Manila, Branch 36.6 In the latter action, Madrigal alleged (1) that it had entered into a joint venture agreement with Lapanday for the primary purpose of operating vessels to service the shipping requirements of Del Monte Philippines, Inc.;7 (2) that it had done so on the strength of the representations of Lorenzo, in his capacity either as chairman of the board or as president of Del Monte, Lapanday and Macondray; (3) that Macondray had thereafter been appointed -- allegedly upon the insistence of Lapanday -- as broker, for the purpose of securing charter hire contracts from Del Monte; (4) that pursuant to the joint venture agreement, Madrigal had purchased a vessel by obtaining a P10,000,000 bank loan; and (5) that contrary to their representations and guarantees and despite demands, Lapanday and Lorenzo had allegedly been unable to deliver those Del Monte charter hire contracts.8 On February 23, 1998, the insolvency court (RTC Branch 49) declared petitioner insolvent.9 On March 30, 1998 and April 6, 1998, Respondents Lapanday, Lorenzo and Macondray filed their respective Motions to Dismiss the case pending before the RTC Branch 36.10 On December 16, 1998, Branch 36 granted the Motion, for failure of the Complaint to state a cause of action. Applying Sections 32 and 33 of the Insolvency Law,11 the trial court opined that upon the filing by Madrigal of a Petition for Voluntary Insolvency, the latter lost the right to institute the Complaint for Damages. The RTC ruled that the exclusive right to prosecute the actions belonged to the court-appointed assignee.12 On January 26, 1999, petitioner filed a Motion for Reconsideration,13 which was later denied on July 26, 1999.14 Subsequently, petitioner filed a Petition for Certiorari with the Court of Appeals, seeking to set aside the December 16, 1998 and the July 26, 1999 Orders of the trial court.15 On September 29, 1999, the CA issued a Resolution requiring petitioner to explain why its Petition should not be dismissed outright, on the ground that the questioned Orders should have been elevated by ordinary appeal.16 On January 10, 2000, the appellate court ruled that since the main issue in the instant case was purely legal, the Petition could be treated as one for review as an exception to the general rule that certiorari was not proper when appeal was available.17 Respondents Lapanday and Lorenzo challenged this ruling through a Motion for Reconsideration dated February 10, 2000.18 The CA heard the Motion for Reconsideration in oral arguments on April 7, 2000.19 Ruling of the Court of Appeals On February 28, 2002, the appellate court issued the assailed Decision granting Respondents Lapanday and Lorenzos Motion for Reconsideration and dismissing Madrigals Petition for Certiorari. The CA opined that an order granting a motion to dismiss was final and thus the proper subject of an appeal, not certiorari.20

Furthermore, even if the Petition could be treated as an appeal, it would still have to be dismissed for lack of jurisdiction, according to the CA.21 The appellate court held that the issues raised by petitioner involved pure questions of law that should be brought to the Supreme Court, pursuant to Section 2 of Rule 50 and Section 2(c) of Rule 41 of the Rules of Court.22 Hence, this Petition.23 The Issues In its Statement of Issues, petitioner contends: "I The Honorable Court of Appeals committed egregious error by ruling that the order of the lower court which granted private respondents Motions to Dismiss are not proper subjects of a Petition for Certiorari under Rule 65. A. Section 5, Rule 16 does not apply in the present case since the grounds for dismissal [were] petitioners purported lack of capacity to sue and its failure to state a cause of action against private respondents, and not any of the three (3) grounds provided under said provision, namely, res judicata, extinction of the claim, and Statute of Frauds. B. Section 1 of Rule 41, which is the applicable provision in petitioners case, expressly proscribes the taking of an appeal from an order denying a motion for reconsideration or one which dismisses an action without prejudice, instead, the proper remedy is a special civil action under Rule 65. C. A petition for certiorari under Rule 65 was correctly resorted to by petitioner from the dismissal order of the lower court, which had clearly acted with grave abuse of discretion amounting to lack of jurisdiction. "II The Honorable Court of Appeals committed serious error in ruling that it had no jurisdiction to entertain the Petition for Certiorari filed by petitioner before it. A. Section 2, Rule 50 nor Section 2(c) and Section 2(c), Rule 41 find no application in the present case, since said rule contemplates of a case where an appeal is the proper remedy, and not where the appropriate remedy is a petition for certiorari where questions of facts and laws may be reviewed by the court a quo. B. The court a quo erroneously concluded that it has no jurisdiction over the subject matter of the petition based on the wrong premise that an appeal from the lower courts dismissal order is the proper remedy by applying Section 2, Rule 50 and Section 2(c), Rule 41 of the Rules of Court."24 The Courts Ruling The Petition is unmeritorious. First Issue: Remedy Against Dismissal of Complaint The resolution of this case hinges on the proper remedy: an appeal or a petition for certiorari. Petitioner claims that it correctly questioned the trial courts Order through its Petition for Certiorari. Respondents insist that an ordinary appeal was the proper remedy. We agree with respondents. Appeal Under Rule 41, Rules of Court, an appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by the Rules of Court to be appealable.25 The manner of appealing an RTC judgment or final order is also provided in Rule 41 as follows: Section 2. Modes of appeal. (a) Ordinary appeal. The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original jurisdiction shall be taken by filing a notice of appeal with the court which rendered the judgment or final order appealed from and serving a copy thereof upon the adverse party. No record on appeal shall be required except in special proceedings and other cases of multiple or separate appeals where the law or these Rules so require. In such cases, the record on appeal shall be filed and served in like manner. (b) Petition for review. The appeal to the Court of Appeals in cases decided by the Regional Trial Court

in the exercise of its appellate jurisdiction shall be by petition for review in accordance with Rule 42. (c) Appeal by certiorari. In all cases where only questions of law are raised or involved, the appeal shall be to the Supreme Court by petition for review on certiorari in accordance with Rule 45.26 An order or a judgment is deemed final when it finally disposes of a pending action, so that nothing more can be done with it in the trial court. In other words, the order or judgment ends the litigation in the lower court. Au contraire, an interlocutory order does not dispose of the case completely, but leaves something to be done as regards the merits of the latter.27 Petition for Certiorari A petition for certiorari is governed by Rule 65, which reads: Section 1. Petition for certiorari. When any tribunal, board or officer exercising judicial or quasijudicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of its or his jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require. The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of Section 3, Rule 46.28 A writ of certiorari may be issued only for the correction of errors of jurisdiction or grave abuse of discretion amounting to lack or excess of jurisdiction. The writ cannot be used for any other purpose, as its function is limited to keeping the inferior court within the bounds of its jurisdiction.29 For certiorari to prosper, the following requisites must concur: (1) the writ is directed against a tribunal, a board or any officer exercising judicial or quasi-judicial functions; (2) such tribunal, board or officer has acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction; and (3) there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law.30 "Without jurisdiction" means that the court acted with absolute lack of authority.31 There is "excess of jurisdiction" when the court transcends its power or acts without any statutory authority.32 "Grave abuse of discretion" implies such capricious and whimsical exercise of judgment as to be equivalent to lack or excess of jurisdiction; in other words, power is exercised in an arbitrary or despotic manner by reason of passion, prejudice, or personal hostility; and such exercise is so patent or so gross as to amount to an evasion of a positive duty or to a virtual refusal either to perform the duty enjoined or to act at all in contemplation of law.33 Appeal and Certiorari Distinguished Between an appeal and a petition for certiorari, there are substantial distinctions which shall be explained below. As to the Purpose. Certiorari is a remedy designed for the correction of errors of jurisdiction, not errors of judgment.34 In Pure Foods Corporation v. NLRC, we explained the simple reason for the rule in this light: "When a court exercises its jurisdiction, an error committed while so engaged does not deprive it of the jurisdiction being exercised when the error is committed. If it did, every error committed by a court would deprive it of its jurisdiction and every erroneous judgment would be a void judgment. This cannot be allowed. The administration of justice would not survive such a rule. Consequently, an error of judgment that the court may commit in the exercise of its jurisdiction is not correct[a]ble through the original civil action of certiorari."35 The supervisory jurisdiction of a court over the issuance of a writ of certiorari cannot be exercised for the purpose of reviewing the intrinsic correctness of a judgment of the lower court -- on the basis either of the law or the facts of the case, or of the wisdom or legal soundness of the decision.36 Even if the findings of the court are incorrect, as long as it has jurisdiction over the case, such correction is normally beyond the province of certiorari.37 Where the error is not one of jurisdiction, but of an error of law or fact -- a mistake of judgment -- appeal is the remedy. 38 As to the Manner of Filing. Over an appeal, the CA exercises its appellate jurisdiction and power of review. Over

a certiorari, the higher court uses its original jurisdiction in accordance with its power of control and supervision over the proceedings of lower courts. 39 An appeal is thus a continuation of the original suit, while a petition for certiorari is an original and independent action that was not part of the trial that had resulted in the rendition of the judgment or order complained of.40 The parties to an appeal are the original parties to the action. In contrast, the parties to a petition for certiorari are the aggrieved party (who thereby becomes the petitioner) against the lower court or quasijudicial agency, and the prevailing parties (the public and the private respondents, respectively).41 As to the Subject Matter. Only judgments or final orders and those that the Rules of Court so declare are appealable.42 Since the issue is jurisdiction, an original action for certiorari may be directed against an interlocutory order of the lower court prior to an appeal from the judgment; or where there is no appeal or any plain, speedy or adequate remedy.43 As to the Period of Filing. Ordinary appeals should be filed within fifteen days from the notice of judgment or final order appealed from.44 Where a record on appeal is required, the appellant must file a notice of appeal and a record on appeal within thirty days from the said notice of judgment or final order.45 A petition for review should be filed and served within fifteen days from the notice of denial of the decision, or of the petitioners timely filed motion for new trial or motion for reconsideration.46 In an appeal by certiorari, the petition should be filed also within fifteen days from the notice of judgment or final order, or of the denial of the petitioners motion for new trial or motion for reconsideration.47 On the other hand, a petition for certiorari should be filed not later than sixty days from the notice of judgment, order, or resolution.48 If a motion for new trial or motion for reconsideration was timely filed, the period shall be counted from the denial of the motion.49 As to the Need for a Motion for Reconsideration. A motion for reconsideration is generally required prior to the filing of a petition for certiorari, in order to afford the tribunal an opportunity to correct the alleged errors. Note also that this motion is a plain and adequate remedy expressly available under the law.50 Such motion is not required before appealing a judgment or final order.51 Certiorari Not the Proper Remedy if Appeal Is Available Where appeal is available to the aggrieved party, the action for certiorari will not be entertained. Remedies of appeal (including petitions for review) and certiorari are mutually exclusive, not alternative or successive.52 Hence, certiorari is not and cannot be a substitute for an appeal, especially if ones own negligence or error in ones choice of remedy occasioned such loss or lapse.53 One of the requisites of certiorari is that there be no available appeal or any plain, speedy and adequate remedy.54 Where an appeal is available, certiorari will not prosper, even if the ground therefor is grave abuse of discretion. Second Issue: CA Jurisdiction Petitioner was ascribing errors of judgment, not jurisdiction, in its Petition for Certiorari filed with the Court of Appeals. The issue raised there was the trial courts alleged error in dismissing the Complaint for lack of cause of action. Petitioner argues that it could still institute the Complaint, even if it had filed a Petition for Insolvency earlier.55 As petitioner was challenging the trial courts interpretation of the law -- posing a question of law -- the issue involved an error of judgment, not of jurisdiction. An error of judgment committed by a court in the exercise of its legitimate jurisdiction is not necessarily equivalent to "grave abuse of discretion."56 The instant case falls squarely with Barangay Blue Ridge "A" of QC v. Court of Appeals.57 In that case, the trial court granted the Motion to Dismiss on the ground of failure to state a cause of action. After the Motion for Reconsideration was denied, petitioner filed a Petition for Certiorari with the CA. The appellate court denied the Petition on the ground that the proper remedy was appeal. Holding that an error of judgment should be reviewed through an ordinary appeal, this Court upheld the CA. The Dismissal -- a Final Order An order of dismissal, whether correct or not, is a final order.58 It is not interlocutory because the proceedings are terminated; it leaves nothing more to be done by the lower court. Therefore the remedy of the plaintiff is to appeal the order.59 Petitioner avers that Section 5 of Rule 1660 bars the filing of an appeal when the dismissal is based on lack of cause of action. It adds that Section 5 limits the remedy of appeal only to dismissals grounded on prior judgments or on the statute of limitations, or to claims that have been extinguished or are unenforceable. We find this interpretation absurd.

The provision is clear. Dismissals on the aforesaid grounds constitute res judicata. However, such dismissals are still subject to a timely appeal. For those based on other grounds, the complaint can be refiled. Section 5, therefore, confirms that an appeal is the remedy for the dismissal of an action. Citing Sections 1(a) and 1(h), Rule 41,61 petitioner further claims that it was prohibited from filing an appeal. Section 1(a) of the said Rule prohibits the filing of an appeal from an order denying a motion for reconsideration, because the remedy is to appeal the main decision as petitioner could have done. In fact, under Section 9, Rule 37, the remedy against an order denying a motion for reconsideration is to appeal the judgment or final order. Section 1(h) does not apply, because the trial courts Order did not dismiss the action without prejudice.62 Exception to the Rule Not Established by Petitioner We are not unaware of instances when this Court has granted certiorari despite the availability of appeal.63 Where the exigencies of the case are such that the ordinary methods of appeal may not prove adequate -- either in point of promptness or completeness, so that a partial if not a total failure of justice could result -- a writ of certiorari may still be issued.64 Petitioner cites some of these exceptions to justify the remedy it has undertaken with the appellate court,65 but these are not applicable to the present factual milieu. Even assuming that the Order of the RTC was erroneous, its error did not constitute grave abuse of discretion. Petitioner asserts that the trial court should not have dismissed the Complaint or should have at least allowed the substitution of the assignee in petitioners stead.66 These alleged errors of judgment, however, do not constitute a despotic, capricious, or whimsical exercise of power. On the contrary, petitioner availed of certiorari because the 15-day period within which to file an appeal had already lapsed. Basic is the rule that certiorari is not a substitute for the lapsed remedy of appeal. As previously stressed, appeal -- not certiorari -- was the correct remedy to elevate the RTCs Order granting the Motion to Dismiss. The appeal, which would have involved a pure question of law, should have been filed with the Supreme Court pursuant to Section 2 (c) of Rule 41 and Section 2 of Rule 50,67 Rules of Court. WHEREFORE, this Petition is DENIED, and the challenged Decision and Resolution AFFIRMED. Costs against petitioner. SO ORDERED. G.R. No. 149404 September 15, 2006 MA. SALVACION G. AQUINO, petitioner, vs. COURT OF APPEALS (Eight Division), ST. PAUL's COLLEGE OF MANILA, INC. and SR. NATIVIDAD DE JESUS FERRAREN, S.P.C., respondents. DECISION GARCIA, J.: Assailed and sought to be set aside in this petition for certiorari under Rule 65 of the Rules of Court is the August 6, 2001 Decision1 of the Court of Appeals (CA) in CA-G.R. SP No. 63907 which affirmed an earlier decision of the National Labor Relations Commission (NLRC) dismissing the petitioner's complaint for illegal dismissal against the herein private respondents, St. Paul's College of Manila and its president and college dean, Sister Natividad De Jesus Ferraren, S.P.C. In brief, the pertinent facts are: Petitioner, a professor in the respondent St. Paul's College of Manila for 22 years, verbally accepted sometime in February, 1998 a tutorial and a summer teaching load for the summer of 1998. Subsequently, the petitioner decided to leave for the United States in response to an urgent request from her brother and sister-in-law thereat to help them take care of their children, thus necessitating a revision of her summer schedule. Hence, in a letter dated March 31, 1998 and addressed to respondent Sister Natividad De Jesus Ferraren, president and college dean of the respondent college, the petitioner proposed a change in her teaching schedule to accommodate her departure for abroad on April 27, 1998. Unfortunately, it was only on April 26, 1998 when Sister Ferraren received a copy of said letter as attached to another letter by the petitioner dated April 25, 1998. In that letter of April 25, 1998, the petitioner apologized for not being able to seek Sister Ferraren's prior approval of change in her teaching schedule but explained that the change had been made with the approval of her (petitioner's) department chairperson, Ms. Shirley Agatep and the college's registrar, Ms. Lilia B. Santos. It was only upon the belated receipt of the said April 25 letter that Sister Ferraren learned for the first time of the petitioner's plan to depart for abroad and of her proposal to alter her summer teaching schedule. Despite her knowledge

of the need for a schedule change as early as March of 1998, the petitioner never bothered to mention about it even when she signed her conformity to the summer load schedule fixed by the college and despite an April 15, 1998 memorandum reminding all teachers to comply with their teaching schedules or risk disciplinary action. Conformably with the existing college's policy whereby only its president and college dean can approve changes in the schedules of classes and applications for leave, Sister Ferraren wrote department chairperson Ms. Shirley Agatep and college registrar Ms. Lilia B. Santos to submit their written explanations regarding the petitioner's allegations that the two had approved the change in her summer teaching schedule. Both denied the imputed approval and even stated in their respective written explanations that because they are without authority to act on the matter, they merely advised the petitioner to secure the approval of Sister Ferraren. While admitting to having merely endorsed the petitioner's request for a change of schedule, Ms. Agatep further expressed surprise on how it came about that it was only on April 25, 1998 when the endorsed request was delivered by the petitioner to Sister Ferraren. Thereafter, in a memorandum dated May 19, 1998 to which was attached the aforementioned written explanations of Ms. Agatep and Ms. Santos, the petitioner was required to show cause within five (5) days from receipt of said memorandum why she should not be subjected to disciplinary action, including dismissal, for: (1) taking a leave without the explicit approval of the college dean and president; (2) abandonment of employment; (3) fraud and willful breach of trust; (4) failure to observe contractual obligations with the school; (5) serious misconduct or willful disobedience in connection with work; and (6) insubordination, all punishable under the College's Faculty Manual. On June 2, 1998, the respondent college officially started the school year 1998-1999 with a seminar for all faculty members. Petitioner was neither present thereat nor did she communicate her whereabouts. At this time, the respondent college had not yet even received any response from her to the show-cause memorandum adverted to. Classes commenced with the petitioner still nowhere to be found, compelling the respondent college to hire the services of a substitute teacher to take over some of her more important subjects while her other classes were left unattended. Meanwhile, the petitioner continued to remain in the college's payroll as a full-time professor for the subjects assigned to her, including those momentarily taken over by the substitute teacher. On June 10, 1998, the petitioner surfaced and came forward to personally deliver to Sister Ferraren her written compliance to the show-cause memorandum. In it, she admitted having changed her schedule without first seeking Sister Ferraren's approval but with the explanation that she had been constantly trying as early as March of that year to write for an approval of adjustment in her teaching schedule but to no avail. She further explained that it was only when she ran out of time that she decided to leave her letter-request for schedule adjustment with Sister Ferraren's secretary on April 25, 1998. Upon handing over her aforesaid written compliance to Sister Ferraren, the petitioner verbally requested the latter to simply set it aside and pleaded to Sister Ferraren to forgo conducting an administrative hearing on her case so as not to apprise the other teachers of the details of the incident, and expressed her desire to merely retire instead. Sister Ferraren immediately accommodated her desire for early retirement but directed the petitioner to reduce the same in writing to facilitate the release of her unpaid salaries and benefits as an early retiree. The petitioner told Sister Ferraren that she would bring a written request therefor the following day. In turn, Sister Ferraren assured her of the expedient release of her salaries and benefits. Hence, after the petitioner left, Sister Ferraren instructed the college's accounting department to compute all the salaries and benefits due the petitioner and distributed her remaining classes to other teachers. The accounting department accordingly struck the petitioner's name off the payroll of the college starting June 10, 1998 after computing her unpaid salaries and benefits. As things turned out later, however, the petitioner failed to submit her promised written request for early retirement despite several attempts on the part of the college to contact her for the purpose. Sensing that the petitioner was deliberately avoiding Sister Ferraren and that she may be contemplating of filing a case for illegal dismissal, the respondent college decided to hold an administrative hearing on the various charges proferred against her in the showcause memorandum, which charges remained pending before she optionally retired on June 10, 1998. Accordingly, formal

notices dated July 9, 1998 were separately sent to the petitioner, Ms. Agatep and Ms. Santos directing them to appear at a formal hearing on July 17, 1998 to explain their sides. A day before the scheduled hearing, the petitioner came back and verbally informed Sister Ferraren of her intention to attend the hearing whereat she would admit her mistake and put on record her decision to simply retire. During the hearing, however, the petitioner, in a complete turn about of what she verbally told to Sister Ferraren, did not admit her mistake nor make of record her decision for an early retirement. Instead, she excused herself from the hearing for allegedly feeling ill and asked for a resetting thereof in two (2) weeks, after which she left even as the hearing committee informed her that the hearing would nonetheless proceed as to Ms. Agatep and Ms. Santos who were then ready to present their sides. Before leaving, however, the petitioner was assured by the committee that she would be informed of the minutes of the hearing and that she may respond in writing should she be unable to attend the next hearing. This was noted in the minutes of the July 17 hearing, which minutes were duly sent to the petitioner on July 21, 1998, together with a notice for the next hearing date on July 30, 1998. On July 29, 1998, or a day before the next hearing, the respondent college and Sister Ferraren received a letter from the petitioner's counsel to the effect that his client does not intend anymore to attend any hearings. In the same letter, the counsel demanded for his client's reinstatement with full backwages and without loss of seniority rights and benefits. The following day, the investigating committee proceeded with the hearing, and eventually reached the conclusion that the petitioner was guilty of the charges stated in the showcause memorandum. Even then, the committee recommended to allow the petitioner's early retirement and the payment of her benefits in acknowledgment of her desire to simply retire. It was against the foregoing backdrop of events when, on October 6, 1998, the petitioner filed with the Labor Arbiter a complaint for illegal dismissal and non-payment of salaries against the herein private respondents. In his decision of December 22, 1999, Labor Arbiter Romulo S. Protacio found for the petitioner. But on appeal by the private respondents, the NLRC, in its decision of December 29, 2000, reversed that of the labor arbiter. From the NLRC's reversal decision, the petitioner went to the CA in CA-G.R. SP No. 63907. As stated at the threshold hereof, the appellate court, in its decision dated August 6, 2001, affirmed that of the NLRC. Hence, the petitioner's present recourse under Rule 65 of the Rules of Court raising the following issues: 1. Whether the CA committed grave abuse of discretion in affirming the NLRC's finding that the private respondents have granted the petitioner an early retirement; 2. Whether the CA committed grave abuse of discretion in affirming the NLRC's finding that the private respondents have not illegally dismissed the petitioner and hence not entitled to reinstatement with backwages and without loss of seniority rights and other benefits appertaining to her position; 3. Whether the CA committed grave abuse of discretion in affirming the NLRC's finding that Sister Ferraren cannot be held personally liable for the petitioner's claims; and 4. Whether the CA committed grave abuse of discretion in not awarding moral and exemplary damages and attorney's fees to the petitioner. We DENY. It bears emphasis that the petitioner has come to this Court via the vehicle of certiorari under Rule 65 of the Rules of Court. In their Comment2 to the petition, the private respondents very much put in issue the propriety of the remedy resorted to by the petitioner. We sustain the private respondents. One of the requisites for the issuance of a writ for certiorari is that there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law. Section 1, Rule 65 of the Rules of Court is emphatic on this. It reads: Section 1. Petition for certiorari. - When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with

certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require. [Emphasis supplied] xxx xxx xxx The special civil action of certiorari cannot be allowed when a party to a suit fails to appeal a judgment to the proper forum despite the availability of the remedy of appeal.3 Certiorari is not and cannot be used as a substitute for appeal, where the latter remedy is available.4 If any, the petitioner's proper recourse would have been to elevate the assailed CA decision to this Court via a petition for review under Rule 45 of the Rules of Court. Moreover, let alone the fact that the petitioner erroneously resorted to Rule 65 when appeal by way of a petition for review under Rule 45 was available, the error is worse compounded by the circumstance that the petitioner did not file any motion for reconsideration with the CA prior to the filing of the present petition. The general rule is that a previous motion for reconsideration in the court of original proceeding is necessary before invoking the certiorari jurisdiction of a higher court. A petition for certiorari will not generally be entertained unless the public respondent has had, through a motion for reconsideration, a chance to correct or rectify the error imputed to him.5 But even if we were to overlook the error in the mode of appeal and suspend the application of procedural rules, as urged by the petitioner, still the petition must fail. As it is, the questions raised in this recourse, be it under Rule 45 or Rule 65 of the Rules of Court, are basically one of facts. Hornbook is the rule that in a petition for review, only errors of law may be raised.6 Section 1 of Rule 45 expressly says so, to wit: Section 1. Filing of petition with the Supreme Court. - A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth. [Emphasis supplied] On the other hand, in a petition for certiorari under Rule 65, only jurisdictional issues may be raised, as when a court or tribunal has acted "without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction." The extraordinary writ of certiorari cannot legally be used for any other purpose. In a special civil action for certiorari, the Court cannot correct errors of fact which the lower court or tribunal may have committed. Deference to the expertise acquired by the NLRC and the limited scope granted in the exercise of certiorari jurisdiction restrain any probe into the correctness of the NLRC's evaluation of evidence.7 Factual findings of agencies exercising quasi-judicial functions, like the NLRC, are accorded not only respect but even finality, aside from the consideration that this Court is essentially not a trier of facts.8 Hence, in certiorari proceedings under Rule 65, judicial review does not go as far as to evaluate the sufficiency of evidence upon which the NLRC based its determinations, the inquiry being limited essentially to whether said tribunal has acted without or in excess of its jurisdiction or with grave abuse of discretion. And an act of a court or tribunal may only be considered as in grave abuse of discretion when it is performed in a capricious or whimsical exercise of judgment which is equivalent to lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of positive duty or to a 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 or personal hostility.9 Here, there is no indication whatsoever that any grave abuse of discretion attended the proceedings below. For sure, the findings of fact were well substantiated by the evidence presented. We see no reason to disturb such findings. Further, those findings fully support the decision reached by the NLRC as affirmed by the CA. WHEREFORE, the petition is DISMISSED and the assailed decision of the CA is hereby AFFIRMED. Costs against the petitioner. SO ORDERED. G.R. No. 179895 December 18, 2008 FERDINAND S. TOPACIO, petitioner, vs. ASSOCIATE JUSTICE OF THE SANDIGANBAYAN

GREGORY SANTOS ONG and THE OFFICE OF THE SOLICITOR GENERAL, respondents. DECISION CARPIO MORALES, J.: Ferdinand Topacio (petitioner) via the present petition for certiorari and prohibition seeks, in the main, to prevent Justice Gregory Ong (Ong) from further exercising the powers, duties and responsibilities of a Sandiganbayan Associate Justice. It will be recalled that in Kilosbayan Foundation v. Ermita,1 the Court, by Decision of July 3, 2007, enjoined Ong "from accepting an appointment to the position of Associate Justice of the Supreme Court or assuming the position and discharging the functions of that office, until he shall have successfully completed all necessary steps, through the appropriate adversarial proceedings in court, to show that he is a natural-born Filipino citizen and correct the records of his birth and citizenship."2 On July 9, 2007, Ong immediately filed with the Regional Trial Court (RTC) of Pasig City a Petition for the "amendment/ correction/ supplementation or annotation of an entry in [his] Certificate of Birth," docketed as S.P. Proc No. 11767-SJ, "Gregory Santos Ong v. The Civil Registrar of San Juan, Metro Manila, et al."3 Meanwhile, petitioner, by verified Letter-Request/Complaint4 of September 5, 2007, implored respondent Office of the Solicitor General (OSG) to initiate post-haste a quo warranto proceeding against Ong in the latters capacity as an incumbent Associate Justice of the Sandiganbayan. Invoking paragraph 1, Section 7, Article VIII of the Constitution5 in conjunction with the Courts Decision in Kilosbayan Foundation v. Ermita,6 petitioner points out that natural-born citizenship is also a qualification for appointment as member of the Sandiganbayan and that Ong has failed to meet the citizenship requirement from the time of his appointment as such in October 1998. The OSG, by letter of September 25, 2007, informed petitioner that it "cannot favorably act on [his] request for the filing of a quo warranto petition until the [RTC] case shall have been terminated with finality."7 Petitioner assails this position of the OSG as being tainted with grave abuse of discretion, aside from Ongs continuous discharge of judicial functions. Hence, this petition, positing that: IN OCTOBER OF 1998, RESPONDENT WAS NOT DULY-QUALIFIED UNDER THE FIRST SENTENCE OF PARAGRAPH 1, SECTION 7, OF THE 1987 CONSTITUTION, TO BE APPOINTED AN ASSOCIATE JUSTICE OF THE SANDIGANBAYAN, MERELY ON THE STRENGTH OF AN IDENTIFICATION CERTIFICATE ISSUED BY THE BUREAU OF IMMIGRATION AND A 1ST INDORSEMENT DATED 22 MAY 1997 ISSUED BY THE SECRETARY OF JUSTICE, BECAUSE, AS OF OCTOBER 1998, RESPONDETS BIRTH CERTIFICATE INDICATED THAT RESPONDENT IS A CHINESE CITIZEN AND BECAUSE, AS OF OCTOBER 1998, THE RECORDS OF THIS HONORABLE COURT DECLARED THAT RESPONDENT IS A NATURALIZED FILIPINO CITIZEN.8 (Underscoring supplied) Petitioner thus contends that Ong should immediately desist from holding the position of Associate Justice of the Sandiganbayan since he is disqualified on the basis of citizenship, whether gauged from his birth certificate which indicates him to be a Chinese citizen or against his bar records bearing out his status as a naturalized Filipino citizen, as declared in Kilosbayan Foundation v. Ermita. Ong, on the other hand, states that Kilosbayan Foundation v. Ermitadid not annul or declare null his appointment as Justice of the Supreme Court, but merely enjoined him from accepting his appointment, and that there is no definitive pronouncement therein that he is not a natural-born Filipino. He informs that he, nonetheless, voluntarily relinquished the appointment to the Supreme Court out of judicial statesmanship.9 By Manifestation and Motion to Dismiss of January 3, 2008, Ong informs that the RTC, by Decision of October 24, 2007, already granted his petition and recognized him as a naturalborn citizen. The Decision having, to him, become final,10he caused the corresponding annotation thereof on his Certificate of Birth.11 Invoking the curative provisions of the 1987 Constitution, Ong explains that his status as a natural-born citizen inheres from birth and the legal effect of such recognition retroacts to the time of his birth. Ong thus concludes that in view of the RTC decision, there is no more legal or factual basis for the present petition, or at the very least this petition must await the final disposition of the RTC case which to him involves a prejudicial issue.

The parties to the present petition have exchanged pleadings12 that mirror the issues in the pending petitions for certiorari in G.R. No. 180543, "Kilosbayan Foundation, et al. v. Leoncio M. Janolo, Jr., et al," filed with this Court and in CA-G.R. SP No. 102318, "Ferdinand S. Topacio v. Leoncio M. Janolo, Jr., et al.,"13 filed with the appellate court, both of which assail, inter alia, the RTC October 24, 2007 Decision. First, on the objection concerning the verification of the petition. The OSG alleges that the petition is defectively verified, being based on petitioners "personal knowledge and belief and/or authentic records," and having been "acknowledged" before a notary public who happens to be petitioners father, contrary to the Rules of Court14 and the Rules on Notarial Practice of 2004,15 respectively. This technicality deserves scant consideration where the question at issue, as in this case, is one purely of law and there is no need of delving into the veracity of the allegations in the petition, which are not disputed at all by respondents.16 One factual allegation extant from the petition is the exchange of written communications between petitioner and the OSG, the truthfulness of which the latter does not challenge. Moreover, petitioner also verifies such correspondence on the basis of the thereto attached letters, the authenticity of which he warranted in the same verification-affidavit. Other allegations in the petition are verifiable in a similar fashion, while the rest are posed as citations of law. The purpose of verification is simply to secure an assurance that the allegations of the petition or complaint have been made in good faith; or are true and correct, not merely speculative. This requirement is simply a condition affecting the form of pleadings, and non-compliance therewith does not necessarily render it fatally defective. Indeed, verification is only a formal, not a jurisdictional requirement.17 In the same vein, the Court brushes aside the defect, insofar as the petition is concerned, of a notarial act performed by one who is disqualified by reason of consanguinity, without prejudice to any administrative complaint that may be filed against the notary public. Certiorari with respect to the OSG On the issue of whether the OSG committed grave abuse of discretion in deferring the filing of a petition for quo warranto, the Court rules in the negative. Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, in other words, where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.18 The Court appreciates no abuse of discretion, much less, a grave one, on the part of the OSG in deferring action on the filing of a quo warranto case until after the RTC case has been terminated with finality. A decision is not deemed tainted with grave abuse of discretion simply because the affected party disagrees with it.19 The Solicitor General is the counsel of the government, its agencies and instrumentalities, and its officials or agents. In the discharge of its task, the Solicitor General must see to it that the best interest of the government is upheld within the limits set by law.20 The pertinent rules of Rule 66 on quo warranto provide: SECTION 1.Action by Government against individuals. An action for the usurpation of a public office, position or franchise may be commenced by a verified petition brought in the name of the Republic of the Philippines against: (a) A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise; (b) A public officer who does or suffers an act which, by the provision of law, constitutes a ground for the forfeiture of his office; or (c) An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act. SEC. 2.When Solicitor General or public prosecutor must commence action. The Solicitor General or a public prosecutor, when directed by the President of the Philippines, or when upon complaint or otherwise he has good reason to believe that any case specified in the preceding section can be established by proof, must commence such action.

SEC. 3.When Solicitor General or public prosecutor may commence action with permission of court. The Solicitor General or a public prosecutor may, with the permission of the court in which the action is to be commenced, bring such an action at the request and upon the relation of another person; but in such case the officer bringing it may first require an indemnity for the expenses and costs of the action in an amount approved by and to be deposited in the court by the person at whose request and upon whose relation the same is brought. (Italics and emphasis in the original) In the exercise of sound discretion, the Solicitor General may suspend or turn down the institution of an action for quo warranto where there are just and valid reasons.21 Thus, in Gonzales v. Chavez,22 the Court ruled: Like the Attorney-General of the United States who has absolute discretion in choosing whether to prosecute or not to prosecute or to abandon a prosecution already started, our own Solicitor General may even dismiss, abandon, discontinue or compromise suits either with or without stipulation with the other party. Abandonment of a case, however, does not mean that the Solicitor General may just drop it without any legal and valid reasons, for the discretion given him is not unlimited. Its exercise must be, not only within the parameters get by law but with the best interest of the State as the ultimate goal.23 Upon receipt of a case certified to him, the Solicitor General exercises his discretion in the management of the case. He may start the prosecution of the case by filing the appropriate action in court or he may opt not to file the case at all. He may do everything within his legal authority but always conformably with the national interest and the policy of the government on the matter at hand.24 It appears that after studying the case, the Solicitor General saw the folly of re-litigating the same issue of Ongs citizenship in the quo warranto case simultaneously with the RTC case, not to mention the consequent risk of forumshopping. In any event, the OSG did not totally write finis to the issue as it merely advised petitioner to await the outcome of the RTC case. Certiorari and Prohibition with respect to Ong By petitioners admission, what is at issue is Ongs title to the office of Associate Justice of Sandiganbayan.25 He claims to have been constrained to file the present petition after the OSG refused to heed his request to institute a suit for quo warranto. Averring that Ong is disqualified to be a member of any lower collegiate court, petitioner specifically prays that, after appropriate proceedings, the Court . . . issue the writs of certiorari and prohibition against Respondent Ong, ordering Respondent Ong to cease and desist from further exercising the powers, duties, and responsibilities of a Justice of the Sandiganbayan due to violation of the first sentence of paragraph 1, Section 7, of the 1987 Constitution; . . . issue the writs of certiorari and prohibition against Respondent Ong and declare that he was disqualified from being appointed to the post of Associate Justice of the Sandiganbayan in October of 1998, considering that, as of October of 1998, the birth certificate of Respondent Ong declared that he is a Chinese citizen, while even the records of this Honorable Court, as of October of 1998, declared that Respondent Ong is a naturalized Filipino; x x x26 While denominated as a petition for certiorari and prohibition, the petition partakes of the nature of a quo warranto proceeding with respect to Ong, for it effectively seeks to declare null and void his appointment as an Associate Justice of the Sandiganbayan for being unconstitutional. While the petition professes to be one for certiorari and prohibition, petitioner even adverts to a "quo warranto" aspect of the petition.27 Being a collateral attack on a public officers title, the present petition for certiorari and prohibition must be dismissed. The title to a public office may not be contested except directly, by quo warranto proceedings; and it cannot be assailed collaterally,28 even through mandamus29 or a motion to annul or set aside order.30 In Nacionalista Party v. De Vera,31 the Court ruled that prohibition does not lie to inquire into the validity of the appointment of a public officer. x xx [T]he writ of prohibition, even when directed against persons acting as judges or other judicial officers, cannot be treated as a substitute for quo warranto or be rightfully called upon to perform any of the functions of the writ. If there is a court, judge or officer de facto, the title to the office and the right

to act cannot be questioned by prohibition. If an intruder takes possession of a judicial office, the person dispossessed cannot obtain relief through a writ of prohibition commanding the alleged intruder to cease from performing judicial acts, since in its very nature prohibition is an improper remedy by which to determine the title to an office.32 Even if the Court treats the case as one for quo warranto, the petition is, just the same, dismissible. A quo warranto proceeding is the proper legal remedy to determine the right or title to the contested public office and to oust the holder from its enjoyment.33 It is brought against the person who is alleged to have usurped, intruded into, or unlawfully held or exercised the public office,34 and may be commenced by the Solicitor General or a public prosecutor, as the case may be, or by any person claiming to be entitled to the public office or position usurped or unlawfully held or exercised by another.35 Nothing is more settled than the principle, which goes back to the 1905 case of Acosta v. Flor,36 reiterated in the recent 2008 case of Feliciano v. Villasin,37 that for a quo warrantopetition to be successful, the private person suing must show a clear right to the contested office. In fact, not even a mere preferential right to be appointed thereto can lend a modicum of legal ground to proceed with the action.38 In the present case, petitioner presented no sufficient proof of a clear and indubitable franchise to the office of an Associate Justice of the Sandiganbayan. He in fact concedes that he was never entitled to assume the office of an Associate Justice of the Sandiganbayan.39 In the instance in which the Petition for Quo Warranto is filed by an individual in his own name, he must be able to prove that he is entitled to the controverted public office, position, or franchise; otherwise, the holder of the same has a right to the undisturbed possession thereof. In actions for Quo Warranto to determine title to a public office, the complaint, to be sufficient in form, must show that the plaintiff is entitled to the office. In Garcia v. Perez, this Court ruled that the person instituting Quo Warranto proceedings on his own behalf, under Section 5, Rule 66 of the Rules of Court, must aver and be able to show that he is entitled to the office in dispute. Without such averment or evidence of such right, the action may be dismissed at any stage.40 (Emphasis in the original) The rightful authority of a judge, in the full exercise of his public judicial functions, cannot be questioned by any merely private suitor, or by any other, except in the form especially provided by law.41 To uphold such action would encourage every disgruntled citizen to resort to the courts, thereby causing incalculable mischief and hindrance to the efficient operation of the governmental machine.42 Clearly then, it becomes entirely unwarranted at this time to pass upon the citizenship of Ong. The Court cannot, upon the authority of the present petition, determine said question without encroaching on and preempting the proceedings emanating from the RTC case. Even petitioner clarifies that he is not presently seeking a resolution on Ongs citizenship, even while he acknowledges the uncertainty of Ongs naturalborn citizenship.43 The present case is different from Kilosbayan Foundation v. Ermita, given Ongs actual physical possession and exercise of the functions of the office of an Associate Justice of the Sandiganbayan, which is a factor that sets into motion the de facto doctrine. Suffice it to mention that a de facto officer is one who is in possession of the office and is discharging its duties under color of authority, and by color of authority is meant that derived from an election or appointment, however irregular or informal, so that the incumbent is not a mere volunteer.44 If a person appointed to an office is subsequently declared ineligible therefor, his presumably valid appointment will give him color of title that will confer on him the status of a de facto officer.45 x xx A judge de facto assumes the exercise of a part of the prerogative of sovereignty, and the legality of that assumption is open to the attack of the sovereign power alone. Accordingly, it is a wellestablished principle, dating back from the earliest period and repeatedly confirmed by an unbroken current of decisions, that the official acts of a de facto judge are just as valid for all purposes as those of a de jure judge, so far as the public or third persons who are interested therein are concerned.46 If only to protect the sanctity of dealings by the public with persons whose ostensible authority emanates from the State,

and without ruling on the conditions for the interplay of the de facto doctrine, the Court declares that Ong may turn out to be either a de jure officer who is deemed, in all respects, legally appointed and qualified and whose term of office has not expired, or a de facto officer who enjoys certain rights, among which is that his title to said office may not be contested except directly by writ of quo warranto,47 which contingencies all depend on the final outcome of the RTC case. With the foregoing disquisition, it becomes unnecessary to dwell on the ancillary issues raised by the parties. WHEREFORE, the petition is DISMISSED. SO ORDERED. G.R. No. L-6018 May 31, 1954 EMILIANO MORABE, Acting Chief, Wage Administration Service, petitioner-appellant, vs. WILLIAM BROWN, doing business under the name and style of CLOVER THEATER, respondent-appellee. Assistant Solicitor General Francisco Carreon and Solicitor. Ramon L. Avacena, for appellant. Jimenez B. Buendia and W. RancapLagumbay for appellee. LABRADOR, J.: This is an appeal from a judgment of the Court of First Instance of Manila denying a petition of the chief of the Wage Administration Service for the reinstatement of Pablo S. Afuang by the respondent William Brown. The original petition filed in the Court of First Instance alleges that the respondent had dismissed Pablo S. Afuang because in an investigation conducted by the petitioner of charges against the respondent that the latter paid his employees beyond the time fixed in Republic Act No. 602, the said Afuang was one of the complainants; that the respondent discharged the said employee in violation of section 13 of said Act. The petitioner, therefore, prayed that the respondent be ordered to reinstate Pablo S. Afuang, and that a writ of preliminary mandatory injunction issue for his reinstatement. The court issued a writ of preliminary mandatory injunction. Thereafter, the respondent presented a petition asking for the dismissal of the petition on the ground that Pablo S. Afuang had presented a letter asking excuse or apology from the respondent for having taken his case to court. This motion to dismiss was, however, not acted upon, and the case was heard and the parties presented their evidence. On May 2, 1952, the Court of First Instance rendered judgment finding that the dismissal from the service of Pablo S. Afuang is unlawful and violates section 13 of the Minimum Wage Law, because the fact that he testified at the investigation is not a valid ground for his dismissal from the service. The court, however, refused to grant an order for the reinstatement of said Pablo S. Afuang on the ground that this remedy, which it considers as an injunction, is available only against acts about to be committed or actually being committed, and not against past acts; that injunction is preventive in nature only; and that as the law has already been violated, the remedy now available is for the prosecution of the employer for the violation of the Minimum Wage Law, and not for the reinstatement of Pablo S. Afuang. It, therefore, dismissed the action, as well as the petition for the writ of preliminary mandatory injunction, and that which was theretofore granted was dissolved. Against this judgment an appeal has been prosecuted to this Court. The only assignment of error is that the lower court erred in not ordering the respondent to reinstate Pablo S. Afuang in the service. It is evident that the court a quo erred in considering that mandatory injunction is preventive in nature, and may not be granted by the Court of First Instance once the act complained of has been carried out. The action of the petitioner is not an action of injunction but one of mandamus, because it seeks the performance of a legal duty, the reinstatement of Pablo S. Afuang. The writ known as preliminary mandatory injunction is also a mandamus, though merely provisional in character. In the case at bar, Pablo S. Afuang was entitled to continue in the service of respondent, because his act is expressly provided to be no ground or reason for an employee's dismissal. Section 13 of Republic Act No. 602 states that "it shall be unlawful for any person to discharge or in any other manner to discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act, ...." Pablo S. Afuang was, therefore, unlawfully deprived of his right or privilege to continue in the service of the respondent, because his dismissal was unlawful or illegal. Having been deprived of such right or privilege, it is within the competence of courts to compel the respondent to admit him back to his service.

In the case of Manila Electric Co. vs. Del Rosario and Jose, 22 Phil., 433, the lower court ordered the Manila Electric Co. to furnish electric current to Jose, the electric company having cut the current to Jose's house because it suspected him of stealing electricity by the use of a jumper. This Court held that the action was not one of injunction but of mandamus, as it compelled the electric company to furnish Jose with electric service. In the case at bar, the court can also order the respondent to reinstate Pablo S. Afuang. Were we to hold that Afuang may not be reinstated because he has already been dismissed, there would not be any remedy against the injustice done him, or for him to return to the position or employment from which he was unlawfully discharged. This remedy (of ordering reinstatement) has been granted in parallel situations by the Court of Industrial Relations with our approval, when laborers have been illegally separated by their employers without legal or just cause. This remedy has also been granted in similar cases in the United States, from which jurisdiction the Minimum Wage Law or Republic Act No. 602 has been taken. (Walling, etc. vs. O'Grady, et al., No. 2140, Nov. 3, 1943, U. S. District Court, Southern District of New York; 3 WH Case 781.) The judgment appealed from is hereby reversed, and the respondent William Brown is hereby ordered to reinstate Pablo S. Afuang to the position he held prior to his dismissal. Without costs. G.R. No. 8692 September 10, 1913 GODOFREDO B. HERRERA, as municipal president of Caloocan, petitioner, vs. ALBERTO BARRETTO, judge of first instance of Rizal, and CONSTANCIO JOAQUIN, respondents. Office of the Solicitor-General Harvey for petitioner. R. Diokno, and Gibbs, McDonough and Blanco for respondents. MORELAND, J.: This is an application for a writ of certiorari to the Court of First Instance of the Province of Rizal. It appears that on or about the 1st of March, 1913, Constancio Joaquin, believing himself entitled to a license to open and exploit a cockpit in the municipality of Caloocan, and the authorities thereof refusing to issue it to him, began an action against Godofredo B. Herrera as municipal president of said municipality, the officer whose duty he claimed it was to issue cockpit licenses, to obtain a mandamus compelling said official to issue such license. On the presentation of the verified complaint and upon the facts stated therein and the exhibits annexed thereto, the plaintiff asked that the court issue a mandatory injunction directed to the defendant requiring him to issue a provisional license under which the plaintiff might conduct his cockpit during the pendency of the action. The court, in pursuance of such request and upon the facts stated in the complaint and exhibits annexed thereto, issued such order ex parte without notice of the defendant. Thereupon the defendant in that action began a proceeding in this court against the judge of the Court of First Instance who had issued the mandatory injunction relative to the provisional license referred to, Honorable Alberto Barretto, and Constancio Joaquin, plaintiff therein, for a writ of certiorari, alleging that the court below and had acted without jurisdiction in the following particulars: 1. That the said Honorable Alberto Barretto exceeded his jurisdiction in issuing a mandatory injunction, because, according to paragraph ( j), section 40, of the Municipal Code and article 4 of municipal ordinance No. 8 of Caloocan (Exhibit 1 a), the issuance of cockpit licenses in Loma and Maypajo does not pertain to the municipal president of Caloocan but to the municipal council thereof. 2. That the said Honorable Alberto Barretto exceeded his jurisdiction in issuing the mandatory injunction ex parte without giving the municipal president opportunity to show cause why such injunction should not be issued as required by section 202 of the Code of Civil Procedure. 3. That the said Alberto Barretto exceeded his jurisdiction in issuing such mandatory injunction for the reason that the cockpit license which the president of Caloocan had erroneously issued in favor of Constancio Joaquin, on the day of __________, 1913, has been annulled and cancelled by virtue of ordinance No. _____ of the municipal council of Caloocan, which ordinance has been duly approved by the provincial board of Rizal. 4. That there being another action pending between the same parties, founded upon the same facts and

reasons, the Court of First Instance of Rizal had no jurisdiction to issue the mandatory injunction of the 1st of March, 1913 (Exhibit 4), for the reason that such injunction tends to render inefficacious and null the final decision which this honorable court will render in civil case No. 8673. The action referred to in this paragraph is one begun by Antonio Bertol and Tranquilina T., windows of Angeles, against Godofredo B. Herrera and others relating to the validity of a certain ordinance. 5. That there being pending civil case No. 986 mentioned in the previous paragraphs, the Court of First Instance of Rizal lacked jurisdiction to issue the mandatory injunction which he issued on the 1st of March, 1913, for the reason that it tends to render inefficacious and null the decision which the Honorable Richard Campbell will render in civil cause No. 986. This objection is based upon an action previously begun by Antonio Bertol and Tranquilina T., windows of Angeles, against the municipality or the officials thereof for the purpose of having declared null and void municipal ordinance No. 8 of Caloocan, which is the same ordinance upon which was based the complaint of Constancio Joaquin and in which the mandatory injunction was issued. 6. That the said Constancio Joaquin at the present time does not possess a license to maintain and run the said cockpits of Loma and Maypajo, nor does he have the right to exploit the same. It has been repeatedly held by this court that a writ of certiorari will not be issued unless it clearly appears that the court to which it is to be directed acted without or in excess of jurisdiction. It will be not be issued to cure errors in the proceedings or to correct erroneous conclusions of law or of fact. If the court has jurisdiction of the subject matter and of the person, decisions upon all questions pertaining to the cause are decision within its jurisdiction and, however irregular or erroneous they may be, cannot be corrected by certiorari. The Code of Civil Procedure giving Court of First Instance general jurisdiction in actions for mandamus, it goes without saying that the Court of First Instance had jurisdiction in the present case to resolve every question arising in such an action and to decide every question presented to it which pertained to the cause. It had already been held by this court that, while it is a power to be exercised only in extreme cases, a Court of First Instance has power to issue a mandatory injunction to stand until the final determination of the action in which it is issued. While the issuance of the mandatory injunction in this particular case may have been irregular and erroneous, a question concerning which we express no opinion, nevertheless its issuance was within the jurisdiction of the court and its action is not reviewable on certiorari. It is not sufficient to say that it was issued wrongfully and without sufficient grounds and in the absence of the other party. The question is, did the court act with jurisdiction? It has been urged that the court exceeded its jurisdiction in requiring the municipal president to issue the license, for the reason that he was not the proper person to issue it and that, if he was the proper person, he had the right to exercise a discretion as to whom the license should be issued. We do not believe that either of these question goes to the jurisdiction of the court to act. One of the fundamental questions in a mandamus against a public officer is whether or not that officer has the right to exercise discretion in the performance of the act which the plaintiff asks him to perform. It is one of the essential determination of the cause. To claim that the resolution of that question may deprive the court of jurisdiction is to assert a novel proposition. It is equivalent to the contention that a court has jurisdiction if he decides right but no jurisdiction if he decides wrong. It may be stated generally that it is never necessary to decide the fundamental questions of a cause to determine whether the court has jurisdiction. The question of jurisdiction is preliminary and never touches the merits of the case. The determination of the fundamental questions of a cause are merely the exercise of a jurisdiction already conceded. In the case at bar no one denies the power, authority, or jurisdiction of the Court of First Instance to take cognizance of an action for mandamus and to decide every question which arises in that cause and pertains thereto. The contention that the decision of one of those questions, if wrong, destroys jurisdiction involves an evident contradiction. Jurisdiction is the authority to hear and determine a cause the right to act in a case. Since it is the power to hear and determine, it does not depend either upon the regularity of the exercise of that power or upon the rightfulness of the decisions made. Jurisdiction should therefore be distinguished

from the exercise of jurisdiction. The authority to decide a cause at all, and not the decision rendered therein, is what makes up jurisdiction. Where there is jurisdiction of the person and subject matter, as we have said before, the decision of all other questions arising in the case is but an exercise of that jurisdiction. In the case of Chase vs. Christianson (41 Cal., 253), the court said: "Here, then, was jurisdiction of the subject matter and of the person and these conditions conceded, the decision of all other question arising in the case is but the exercise of that jurisdiction and an erroneous decision of any of these other questions could not impair the validity and binding force of the judgment when brought in question collaterally. It is not the particular decision given which makes up jurisdiction, but it is the authority to decide the question at all. Otherwise all distinction between erroneous exercise of jurisdiction upon the hand, and a total want of it upon the other, must be obliterated. In the case of Freeman vs. Thompson (53 Mo., 183), the following is quoted with approval from Paine vs. Mooreland (15 Ohio, 435): "The court once having, by its process, acquired the power to adjudicate upon a person of thing, it has what is called jurisdiction. . . . The distinction is between a lack of power or want of jurisdiction in the court, and a wrongful or defective execution of the power. In the first instance, all acts of a court, not having jurisdiction or power, are void; in the latter, voidable only. A court, then may act, first without power or jurisdiction; second, having power or jurisdiction, may exercise it wrongfully; or third, irregularly. In the first instance the act or judgment of the court is wholly void, and is as though it as though it had not been done; the second is wrong and must be reversed upon error; the third is irregular and must be corrected by motion." In Hardin vs. Lee (51 Mo., 241), the court said: "The judgment though grossly erroneous was not void, the court having acquired jurisdiction of the subject matter. . . . In a word, error and nullity are not legal equivalent or synonymous." In Hagerman vs. Sutton (91 Mo., 519), the court said: "The power to decide correctly and to enforce a decision when correctly made necessarily implies the same power to decide incorrectly and to enforce a decision when incorrectly made. (Devisvs. Packard, 10 Wend., 71.)" In Paine vs. Mooreland (15 Ohio, 435), the court said: "The distinction is between a lack of power or want of jurisdiction in the court, and a wrongful or defective execution of the power. In the first instance all acts of the court, now having jurisdiction or power, are void; in the latter voidable only." In the case of Colton vs. Beardsly (38 Barb., 51), the court said: "The test of jurisdiction is, whether the court has power to enter on the inquiry, and not whether its decision is right or wrong." In Wertheimer vs. Boonville (29 Mo., 25 4), the court said: "It is hard to conceive how the question of jurisdiction can be made to depend on the fact whether the judgment was right or wrong. The mayor unquestionably has authority to decide whether the ordinance had been violated, and after he has determined it, how can it be said he had no jurisdiction?" In O'Rielly vs. Nicholson (45 Mo., 160), the court said: "A judgment, though informal, even to the extent of granting a relief not contemplated in the petition, when the parties are before the court and the relief is within its jurisdiction, is not a void proceeding. The doctrine laid down in Fithian vs. Monks (43 Mo., 502), 'in that it fails to make the readily observable distinction between jurisdiction to act in a given cause, and erroneous exercise of such jurisdiction, . . . should no longer be followed . . . Jurisdiction being acquired error could not oust it, although that error consisted in granting relief not warranted by law.'" In the case of Gray vs. Bowles (74 Mo., 419), the court said: "When a court has jurisdiction of the subject matter of the action and the parties to it, a judgment rendered by it, although it may be an erroneous, irregular, or wrong judgment, cannot be said to be void, but remains valid and binding until reversed or set aside on the ground of such error or irregularity." In States vs. Second Judicial District (24 Mont., 238), the court said: "A judgment was rendered against Baker, who appealed but could not furnish the necessary bonds or security on appeal. The purpose of this application is to set aside the judgment, the relator asserting that the district court was without jurisdiction. The right to hear and determine necessarily carries with it the power to decide wrong as well as right. It did not exceed its jurisdiction although the court may have erred, yet it regularly pursued its authority. Certiorari may not be used to correct errors committed within the jurisdiction of the court."

In Central Pac. vs. Board (43 Cal., 365) the court said: "Mere irregularly intervening in the exercise of an admitted jurisdiction mere mistakes of law committed in conducting the proceedings in an inquiry which the Board had authority to entertain, . . . are not to be considered here upon certiorari, otherwise that writ would be turned into a writ of error . . . Jurisdiction over a question presented being conceded, carries with it necessarily the authority the mere power to decide the question either way." In Lewis vs. Larson (45 Wis., 353), the court said: "The judgment of a justice of the peace will not be reversed on a common-law certiorari, if the justice had jurisdiction to render it, no matter how irregular or erroneous it may be." In the case of Utah Association vs. Budge (16 Idaho, 751), the court said: "If the court had jurisdiction of the person and the subject matter, then it is clear that whatever mistakes has been made has been only an error committed on the part of the trial court in exercising his judgment and applying the law to the case, rather than an excess of jurisdiction in acting in a matter wherein he had not acquired jurisdiction to act or wherein his court has no jurisdiction of the subject in litigation. . . . The court had the jurisdiction, power, and authority to hear and determine that question. It accordingly did so. If the court committed an error in deciding the question thus presented, we answer that the court had jurisdiction to commit the error." Although certiorari may be considered a direct attack upon a judgment as distinguished from a collateral attack, nevertheless, under the laws of these Islands the only ground for the issuance of certiorari being the failure of jurisdiction of the inferior tribunal, the basis of the direct attack upon the judgment becomes in this jurisdiction the same as for collateral attack, inasmuch as, generally speaking, a collateral attack against a judgment is sustainable only when the judgment is void for lack of jurisdiction in the court to pronounce it. Therefore the authorities relative to the ground necessary for a successful collateral attack upon a judgment are authorities in a large sense, pertinent to a discussion as to when a court may be held to have acted without or in excess of jurisdiction. In the case of Cooper vs. Reynolds (10 Wall., 308), the court said: "It is of no avail, therefore, to show that there are errors in the record, unless they be such as prove that the court had no jurisdiction of the case, or that the judgment rendered was beyond its power. This principle has been often held by this court and by all courts, and it takes rank as an axiom of the law." In the case of Cornett vs. Williams (30 Wall., 226), it was declared that "the settled rule of law is, that jurisdiction having attached in the original case, everything done within the power of that jurisdiction, when collaterally questioned, is to be held conclusive of the rights of the parties, unless impeached for fraud." These two cases were cited and approved in the case of Manson vs. Duncanson (166 U. S., 533), wherein the court said: "When a court has jurisdiction it has right to decide every question that may arise in the cause; and whether its decisions be correct or not, its judgment, until reversed, is regarded as binding in every other court. These principles apply in all respects and with special force in this case. It was for the court whose decree is attempted to be impeached, not only to decide on the facts before it, but upon the construction and legal effect of all deeds and muniments of title upon which the proceeding was based. The court having general jurisdiction over the subject matter of decreeing the sale of real estate of a deceased debtor and for the payment of debts, it had the right and was required to determine the question as to the liability of the property for the debts, and whether the case was within its jurisdiction; and though its decision may have been erroneous, it could only be reversed upon a direct appeal." See Shepard vs. Adams, 168 U. S., 618; Gunn vs. Plant, 94 U. S., 664; Parker vs. Kane, 22 Howard, 1; Huff vs. Hutchinson, 14 Howard, 586; Thompson vs. Tolmie, 2 Pet., 157; Hatcher vs. Hendrie, 68 C. C. A., 19. See also, the long list of authorities cited as sustaining this doctrine in 23 Cyc., 1090, where the rule is stated as follows: "Where a court has jurisdiction of the parties and the subject matter, its judgment, although irregular in form, or erroneous or mistaken in law, is conclusive, as long as it remains unreversed and in force, and cannot be impeached collaterally." In the case of Miller vs. Rowan (251 Ill., 344), the court said: "A judgment or decree is not binding upon anyone unless the court rendering the same had jurisdiction of the parties and the subject matter of the cause. The court did have jurisdiction of the parties, and the appellant, who is disputing the binding effect of the decree, was one of the complainants.

Jurisdiction of the subject matter is the power to adjudge concerning the general question involved, and if a bill states a case belonging to a general class over which the authority of the court extends, the jurisdiction attaches and no error committed by the court can render the judgment void. It the court has jurisdiction, it is altogether immaterial, when the judgment is collaterally called in question, how grossly irregular or manifestly erroneous its proceedings may have been. The judgment cannot be regarded as a nullity, and cannot, therefore, be collaterally impeached. Such a judgment is binding on the parties and on every other court unless reversed or annulled in a direct proceeding and is not open to collateral attack. If there is a total want of jurisdiction in a court its proceedings are an absolute nullity and confer no right and afford no protection but will be pronounced void when collaterally drawn in question. (Buckmastervs. Carling, 3 Scam., 104; Swiggartvs.Harber, 1 id., 364; People vs.Seelye, 146 Ill., 189; Clark vs. People, 146 id., 348; O'Brien vs. People, 216 id., 354; People vs.Talmadge, 194 id., 67.)" Trombly vs. Klersy (146 Mich., 648); Chapman vs. Taliaferro (1 Ga. App., 235); Smith vs. Schlink (44 Colo., 200), where the court said: "That the court had jurisdiction of the parties and the subject matter cannot be questioned. This being true, and it not appearing that the judgment was not within the issues presented by the pleadings, however, erroneous it may be, the judgment cannot be held to be void, so as to bring this case within the rule that disobedience of a void decree does not constitute contempt of court." Baldwin vs. Foster (157 Cal., 643), where the court said: Throughout this consideration the fact is to be borne in mind that we are not reviewing this judgment under attack made on direct appeal where errors prejudicial to those appealing would call for a reversal, but we are considering it upon collateral attack, where every intendment is in favor of the judgment and where mere errors and irregularities will not be considered. Upon collateral attack the judgment will be set aside, generally speaking, for but one of three reasons: Lack of jurisdiction of the person, lack of jurisdiction of the subject matter of the action, or an absolute lack of jurisdiction to render such a judgment as the one given. (Moore vs. Martin, 38 Cal., 428; Mayo vs. Foley, 40 Cal., 281; In re James, 99 Cal., 374; 37 Am. St. Rep., 60; 33 Pac., 1122; Wood vs. Jordan, 125 Cal., 261; 57 Pac., 997.) Goodman vs. City (164 Fed., 970); Sawyer vs. Kelly (148 Iowa., 644); Lucy vs. Deas (59 Fla., 552). That certiorari will lie only in case of failure of jurisdiction has been consistently held by this court. The following are substantially all of the cases decided by this court referring to certiorari or prohibition. We include those referring to prohibition for the reason that the ground of its issuance is the same as that in certiorari, viz, lack or excess of jurisdiction: In the case of In re Prautch (1 Phil. Rep., 1 32), the court said: "Under the provisions of the code in certiorari proceedings, it is necessary that it would appear both that the inferior court has exceeded its jurisdiction and that there is no appeal from such court." In his concurring opinion Judge Willard says: "Considering the existence of facts which may confer jurisdiction, the question of whether those facts are presented in such a manner in the affidavit as to invoke the exercise of this jurisdiction is one which the court has the same right to determine as it would have in the decision of any other questions which might arise in a matter within its recognizance. In the exercise of this power it may issue an erroneous order, but such an order is not absolutely void; unless it is remedied during the same action by means of an appeal or otherwise, it will have the effect of a valid order. The Court of First Instance should not give a judgment upon a complaint on a promissory note which does not state a cause of action, but if it does so its judgment is valid unless it is reversed by means of appeal. We cannot defer to any decision of the supreme court of California which sustains a contrary doctrine. Article 528, already cited, establishes the law of these Islands, and we must submit to that. To accept the other rule would be to convert the writ of habeas corpus into a writ of error, a thing which is in no wise permissible. It would make it possible for any defendant by means of such writ to interpose an appeal to this court in all those cases in which an order of arrest should be issued and would oblige us to review the errors of law which are alleged to have been committed by the court in investigating the sufficiency of the affidavit, and this is, in our opinion the very practice which article 528 seeks to avoid."

In the of Reyes vs. Roxas(1 Phil. Rep., 625), the court held that the refusal to hear witnesses offered by the defense in a criminal action might constitute error, but was not an excess of jurisdiction to be remedied by certiorari, the court saying: "The complaint in this case does not allege that the court which convicted the petitioner had no jurisdiction to try the case. Neither does it allege that in the prosecution of the case there has been any affirmative action by the judge outside of his jurisdiction. It simply alleges that he has failed to take action; that he has refused to hear the witnesses for the defendant. This, if true, would constitute error, but it would be error committed by the judge in the exercise of a jurisdiction which he possessed. The remedy by certiorari does not apply to this case." In the case of DyChuanLeng vs. Amber (1 Phil. Rep., 535), the court said: "We cannot grant an injunction under this section unless there is a compliance with article 164 and 166. It must appear from the complaint that the plaintiff is entitled to recover in the action. If the complaint states no cause of action no preliminary injunction can be issued. The complaint filed in this court is defective in this respect. It shows upon its face that the petitioner are not entitled to an order of prohibition against the court below. That court had jurisdiction of the action to dissolve the partnership. In that action it had the power to grant a preliminary injunction (art. 164), and to appoint a receiver (art. 174). Having those powers, if in the exercise of them any errors were committed, they could be corrected only on appeal from the final judgment. The facts as alleged, that the complaint was ambiguous; that the judge believed that the plaintiff below was a partner when the defendants denied it; that he fixed the bonds at $1,000 instead of $30,000, as requested by the defendants; that no mention of the bond was made in the writ of injunction; that he refused to hear the defendants' witnesses; that he refused to dissolve the injunction upon a bond which the defendants offered to give, all of these do not show that the court was acting outside of its jurisdiction. They simply show, if they are true, that the court has committed certain errors in exercising its jurisdiction, errors which must be corrected by appeal." In the case of Ivancich vs. Odlin(1 Phil. Rep., 284), the court said at page 287: "The ground upon which the second prohibition is sought is that the attachment ordered by the court is not such an attachment as is authorized by articles 424 et seq. of the Code of Civil Procedure of the Philippine Islands, but on the contrary is an attachment under a procedure not in force here, although it is in force in the United States of America in maritime cases, and that the attachment, moreover, was levied without affidavit, bond, or any of the securities established by law whereby the owners of the steamer can obtain reparation for any damages which may be occasioned them by the unlawful detention of the said steamer; and that the procedure of the court below is devoid of all the formal requisites established by law for the levying of such attachments. xxx xxx xxx The judge, did not, therefore, act without jurisdiction when directing the attachment of the vessel in question, and has not exceeded his jurisdiction. If the excess of jurisdiction upon which the argument was based consists in his having levied the attachment without the fulfillment of the necessary conditions and without following the form prescribed by some law of procedure applicable to the case, it is our opinion that this error is not such an excess of jurisdiction as can be secured by prohibition, and the petitioner has other means whereby this error or procedure may be corrected or remedied. Upon these grounds we decide that the petition for a writ of prohibition must be denied, with the costs to petitioner, and it is so ordered. In the case of Araneta vs. The Heirs of TranquilinoGustilo(2 Phil. Rep., 60), this court said: "This is a petition for a writ of certiorari to review the action of the Court of First Instance of Occidental Negros in requiring a supersedeas bond under section 144 of the Code of Civil Procedure. It does not appear from the petition what the amount involved in the litigation is, nor on what sum that bond was fixed by the court, but it is alleged that the bond is excessive. The court below had jurisdiction to require the bond as a condition of a stay of execution, and to fix its amount. Assuming that the bond was excessive, yet nothing is alleged in the petition which shows that the court exceeded its jurisdiction in the premises or committed any irregularity in its proceedings in exercise thereof. The writ must therefore be denied." In the case of Springer vs. Odlin(3 Phil. Rep., 344), the court said: "The court, on the 30th of May, after hearing both parties, made an order by which it was adjudged that the

claim of Co-Banco had a preference over the claim of Springer and ordered the money in the custody of the clerk to be believed to Co-Blanco, but requiring him to execute a bond for the sum of P400 with sureties for the protection of Springer in case he appealed to the Supreme Court to annul the order. The plaintiff, Springer, alleges in his application for certiorari that the Court of First Instance acted without jurisdiction in making this order of the 30th day of May, 1903; that not being a party in the cause of the United States vs.CatalinoMortes, he has no right to appeal nor has he any plain, speedy, and adequate remedy from the order; and further alleging that Co-Banco had no lien upon the P259.50 in dispute, either by attachment or by execution; nor did the said Co-Blanco on the date of the making of the order in his favor have any right of any other character upon said money. If the Court of First Instance had jurisdiction to render the judgment of the 13th day of May, 1903, in favor of Co-Banco in the case of the United States vs.CatalinoMortes, and in the proceeding in which Springer intervened resulting in the order of May 30, or if the plaintiff, Springer, had any plain, speedy, and adequate remedy by a bill of exceptions, appeal, or otherwise from the order of the 30th day of May, 1903, by which the money in question was directed to be paid to Co-Banco, then the proceeding in certiorari will not lie. In the case of Felizardo vs. Justice of the Peace of Imus (3 Phil. Rep., 635), the court said: "Attorneys Pineda and Escueta, on behalf of FlavianoFelizardo and Francisca Felizardo, upon the facts stated by their complaint, dated April 4, 1904, and upon the ground that there was no other speedy and adequate remedy in the ordinary course of law, pray for an order dissolving the attachment levied upon the property of the petitioners, and that a writ issue to the justice of the peace of Imus, requiring him to absolutely refrain from all further proceedings until a final decision is rendered upon the complaint. By intervening in the suit result in which the attachment was levied, the parties may avail themselves of all the legal remedies provided for the defense of their lawful rights, but cannot avail themselves of the writ of prohibition for the purpose of obtaining a discharge of attachment complained of. The case is one which pertains exclusively to the jurisdiction of the judge who is trying it, and there is no authority of law for interference with the proceedings. In the case of Rubert&Guanis vs. Sweeney (4 Phil. Rep., 473), the court said: "The court below had jurisdiction of the subject matter of that suit and of the parties thereto. It had power by law to grant an injunction in the case and power to dissolve it or modify it. There can be no doubt of the correctness of these propositions, but it is claimed by the plaintiff in this suit that the stipulation made between the parties to the suit below to the effect that the sheriff should hold the money until the final judgment in that case, deprived the court of jurisdiction to make the order modifying the injunction and requiring to sheriff to pay the money to the defendant Lo Shui upon his furnishing a proper bond. When section 516 of the Code of Civil Procedure speaks of a tribunal exercising functions which are without or in excess of its jurisdiction, it covers those cases only in which such tribunal acts without or in excess of the jurisdiction conferred upon it by law. It has no reference to cases where it is claimed that such tribunal acts in excess of jurisdiction which the parties may have attempted by stipulation to confer upon it, or in excess of a jurisdiction to which the parties may by stipulation have attempted to limit the court. The fact that the judge may have committed an error in disregarding the stipulation of the parties has nothing to do with the question of the jurisdiction which by law the judge was authorized to excess. If there was such error in the action of the court below, it was an error that must be corrected by appeal. An action of prohibition cannot be maintained in such cases. (Citing cases.) There is nothing in the case of Yangco vs. Rohde (1 Phil. Rep., 404), relied upon by the plaintiff, in conflict with this rule. As was stated in the case of DyChuanLeng vs. Amber above cited, the writ of prohibition was there granted upon the ground that in no case where the fact of marriage was denied did the Court of First Instance have any jurisdiction to grant temporary alimony.

In the case of Castao vs. Lobinger (7 Phil. Rep., 91), the court said: "The concrete questions raised by the parties to these proceedings are (1) whether or not the judge of the Court of First Instance of Leyte had power to issue an injunction against the justice of the peace of Manila in an action pending in his court, and (2) whether the judge of the said Court of First Instance of Leyte could entertain a petition for a writ of certiorari against the said justice of the peace of the city of Manila. xxx xxx xxx The judge of the Court of First Instance of Leyte had no jurisdiction over the judge of the peace of the city of Manila, and were a judge of the Court of First Instance permitted to grant such extraordinary remedies against a justice of the peace in a district or province other than his own, it would be a serious interference with the proper administration of justice, and a procedure relating to appeals from and other remedies against the judgments of inferior courts would be subverted. It should be borne in mind that the enforcement of the laws jurisdiction of the various courts, concerns the interests of the community at large. The judge of the Court of First Instance of Leyte had no power to take cognizance, on appeal, of a case originally tried in the justice court of the city of Manila, nor has he the power to take cognizance of cases that should ordinarily be tried in the Court of First Instance of Manila, unless by virtue of a special commission. Nor has he the power to issue writs of injunction in connection wit other special and extraordinary remedies sought from the decisions of said justice of the peace. In the case of Herman vs. Crossfield (7 Phil. Rep., 259), the court said: "After the term at which judgment was rendered, a Court of First Instance made an order opening the case for the introduction of additional evidence, the motion therefore having been made and argued during said term. Held, That such order was not void because made after the close of said term and that it could not be reviewed on certiorari." The court at page 261 said: "Whether the order made on the 14th of April was right or wrong is not before us for decision. The court had jurisdiction to decide the motion, even if it were a motion for a new trial, a point which we do not determine. If it decided it incorrectly, the plaintiff who was the defendant in that case, had the right to except to the order and, although he could not bring the case here at once for decision because that order was not a final judgment, yet he could do so after final judgment had been entered and could then have the order in question reviewed." In the case of Somes vs. Crossfield(8 Phil. Rep., 284), the action was one of certiorari. The court said: "The plaintiff, in an action brought by himself in the Court of First Instance of Manila, made a motion for a preliminary injunction restraining the defendants from selling certain property upon execution. After a hearing upon the motion, the court after saying that the plaintiff was not entitled to the preliminary injunction, made the following order: "According, the petition for a preliminary writ of prohibition is denied, and it is hereby further ordered that the proceeds of the sales under the executions already issued, and pending, either in this court or in the hands of the sheriff of the Province of Albay, be deposited in this court, subject to the further orders thereof, upon a bond of P10,000 being filed by the plaintiff to answer for any loss resulting from the failure to apply said proceeds as ordered in the execution issued." The plaintiff thereupon commenced this original action of certiorari in this court, claiming that the court below, in making the order in question, exceeded its jurisdiction. The defendants have demurred to the complaint, and the case is now before us for decision upon such demurrer. xxx xxx xxx That the court below did not exceed its jurisdiction in making that order is free from doubt. (Rubert&Guamisvs. Sweeney, 4 Phil. Rep., 473.) In the case of Artacho vs. Jenkins (11 Phil. Rep., 47), the court said at page 48: "It is alleged in the complaint that, in ordering the issue of a second execution, the defendant judge exceeded his jurisdiction and that such order was absolutely void. This contention cannot be sustained. The court of Pangasinan had jurisdiction of the case of Tan Chu Chay against the plaintiff Artacho, jurisdiction both of the parties and of the subject matter, and the mere fact that some

creditor of Tan Chu Chay had attached the debt due from Artacho to the former did not oust that court from its jurisdiction to proceed with the case. (See among other cases decided by this court: Rubert&Guamisvs. Sweeney, 4 Phil. Rep., 473; Somesvs.Crossfield, 8 Phil. Rep., 284; and Yambertvs.McMicking, 10 Phil. Rep., 95.)" In the case of Lagahit vs. Nengasca and Wislizenus(12 Phil. Rep., 423), the action was one of certiorari. The action in the court below was one over a contested election. The court, speaking through Mr. Chief Justice Arellano, said: "Whether or not the below acted rightly in considering the other candidate as the 'adverse party' and the party defeated in the proceedings is not a matter on which action may be taken by this court in the exercise of its appellate jurisdiction. It is evident that it was a matter within the jurisdiction of the court below to tax the 'adverse party' with the costs. The remedy of certiorari is, therefore, not available, as the purpose thereof is to prevent and remedy extra limitations of jurisdiction and authority, not to correct errors in decisions or mistakes of law, which are proper subjects for appeal and cassation. The first finding is perfectly in accordance with the provision of the law. The court below in deciding upon the protest against the contested election for president of Aloguisan said: 'The court believes that the majority of the electors at the present election voted in favor of the petitioner, Simeon Nengasca.' Whether or not this opinion of the court below is proper cannot be the subject or review by this court. It is a decision which is within the jurisdiction of the lower court as conferred by law. As a result of this opinion of the court below, and in compliance with the provision of the law, the judgment should have been: "Let a writ of mandamus be issued against the board of canvassers requiring the board to correct its canvass in accordance with the facts as found." For the reason above set forth we decide that the order of the Court of First Instance of Cebu recognizing Nengasca as president-elect at the elections in the municipality of Aloguisan, in said province, should be, and is hereby annulled for the reason that it is not within the jurisdiction of the said court to recognize or proclaim a president in a contested election. The action of Ocampo vs. Jenkins (14 Phil. Rep., 681), was one of prohibition. It was held there: "The fact that an appeal is pending in the Supreme Court in a criminal case for libel, under Act No. 277 of the Philippine Commission, does not prevent the prosecution of a civil action for damages under the same Act, which clearly recognizes two distinct actions upon the theory that there are two separate and distinct injuries received from the crime, one by the State and the other by the individual damaged by the libel. In such a case, therefore, a petition for a writ of prohibition enjoining the prosecution of the civil suit while the criminal appeal is pending will be denied." There are certain cases like Lagahit vs. Nengasca and Wislizenusabove cited wherein the court has held that certiorari would lie. In the case of Encarnacion vs. Ambler (3 Phil. Rep., 623), the court said at page 624: "In the case of Eugenio Bonaplata vs. Byron S. Ambler et al. (2 Phil. Rep., 392), which involved the validity of the appointment of Antonio Torres as receiver of the estate of Tan-Tonco in the said cause of Sergia Reyes vs. Fulgencio Tan-Tonco, it was held by this court that section 174 of the Code of Civil Procedure, under which the appointment of the receiver was made, did not authorize the appointment; that no property belonging to Fulgencio Tan-Tanco was the subject of litigation in the case of Sergia Reyes vs. Tan-Tonco; nor did the case fall within either of the other subdivisions of section 174; that the placing of the property of the defendant in said cause in the hands of the receiver for the purpose, after praying fees and expense of distributing the property among the creditors, was practically a bankruptcy proceeding; that there are no bankruptcy laws in force in these Islands; that bankruptcy proceedings have been expressly forbidden by section 524 of the Code of Procedure in Civil Actions until a law shall be enacted; and that consequently the Court of First Instance acted in excess of its jurisdiction in appointing Antonio Torres receiver in said action. We adhere to the views expressed in the decision of this court in the said case of Eugenio Bonaplata vs. Byron S. Amber et al." In the case of United States vs.Siatong (5 Phil. Rep., 463), the court said: "Without its being our purpose to decide if the remedy or certiorari invoked by the provincial fiscal is proper in this case or not, we cannot admits his petition on account of its not being made in due form. The remedy of certiorari

should be petitioned for by formal complaint having all of the requirements prescribed by the Code of Procedure in Civil Actions, and the petition formulated by the fiscal in the form of a brief in a criminal cause does not come up to these requirements, for which reason it is set aside in accordance with law." In the case of Rocha & Co. vs. Crossfield(6 Phil. Rep., 355), the court, on page 358, after quoting the section of the Code of Civil Procedure relating to cases in which a receiver may be appointed, said: "The case at bar does not fall within any of the provisions of this section. There is no allegation in the complaint, as has been before stated, that the plaintiff is the owner of any of the property of Rocha & Co., nor is there any allegation that he has any lien thereon, nor are there any facts alleged in the complaint from which it could be inferred that he was the owner of such property of had any lien thereon. On the contrary, from the facts that are alleged in the complaint it would seem that his separation from the partnership of Carman & Co. left that partnership as a going concern and did not dissolve it. The effect of the provisions of the articles of partnership which are referred to in the complaint is that after the withdrawal of any partner the remaining partners became the owner of all the assets of the partnership and he became a general creditor of the partnership. xxx xxx xxx The case not being one in which a receiver could be appointed, the order making such appointment was void and was beyond the jurisdiction of the court, although that court had jurisdiction of the main action has been settled adversely to the defendants in this suit by the case of Bonaplata vs. Amber (2 Phil. Rep., 392; see also Encarnacionvs. Amber, 3 Phil. Rep., 623; Findlay & Co. vs. Amber, 3 Phil. Rep., 690). That certiorari is the proper remedy in such cases was decided in the case of Blanco vs. Amber (3 Phil. Rep., 358, 735). In the argument in this court it was claimed that this extraordinary remedy would not, lie because the plaintiff, Rocha & Co., had a right to appeal from the order appointment a receiver, although that appeal could not be taken until a final judgment had been entered in the case. That argument is answered by what is said in the case of Yangco vs. Rohde (1 Phil. Rep., 404)." In the case of Baes vs. Cordero (13 Phil. Rep., 466), the court said: "And, if the jurisdiction has not been exceeded, there is not nor could there be any legal ground for the issuance of the writ of certiorari, because these proceedings can only exclusively be granted to remedy abuses committed in the exercise of a power or jurisdiction. Sections 217 and 514 of the Code of Civil Procedure providing for such relief unequivocally and specifically refer to the act of exceeding or going beyond the jurisdiction; and this court has repeatedly held that, in order that certiorari may issue, it is absolutely necessary to show that the respondent has exceeded his power or jurisdiction. (In re Prautch, 1 Phil. Rep., 132; De los Reyes vs.Roxas, 1 Phil. Rep., 625; Springer vs.Odlin, 3 Phil. Rep., 344.)" In the case of Arzadon vs. Chanco(14 Phil. Rep., 710); the court decided as follows: "Certiorari is the proper remedy whenever an inferior tribunal, board, or officer exercising judicial functions has exceeded its or his jurisdiction, and no appeal, nor any plain, speedy, and adequate remedy exists to correct such excess or extra limitation. (Secs. 217 and 514, Code of Civil Procedure). The jurisdiction of Courts of First Instance to hear and decide election contests is exclusive and final (sec. 27 of the Election Law); consequently, decisions rendered by them in the exercise of said jurisdiction cannot be reviewed by means of an appeal. As they are not appealable and as against them no other plain, speedy and adequate remedy exists, it is evident that they constitute a proper subject for the extraordinary remedy of certiorari. Therefore, if the court below has exceeded his jurisdiction in rendering the above-cited decision it is proper to annul and the same by virtue of said proceedings." In that case the Court of First Instance made the following order: "By the foregoing, Silvestre Arzadon appears to have violated the provisions of the Election Law which prohibit every action, influence, and promise of any kind, for the purpose of obtaining votes. These should indicate the free will of the voters, and for such infractions his election for the office of municipal president of the town of Badoc must be considered illegal. Therefore, it is declared by the court that the election of Silvestre Arzadon for the office of president, held on the 15th day of November last in

the municipality of Badoc, Ilocos Norte, was not legal, and another special election for the said office must be held at the expense of the said Arzadon who shall not then be eligible, and any vote entered in his favor shall not count; the costs and expenses of these proceedings shall also be charged to him. In respect to that order the Supreme Court said: "It is our opinion that he has so exceeded his jurisdiction. The jurisdiction of Courts of First Instance hear election protests is conferred upon them by the aforesaid section 27 of the Election Law, and neither the said section, nor any other legal provision, authorizes the court, in deciding such protests, to declare ineligible in future elections the person against whom the protests was presented, nor to sentence him to pay the expenses of the new election to be held. Hence, the court below had no power to enter such rulings in the case as gave rise to these proceedings, and in consequence there of said rulings must be entirely annulled." See also Topacio vs. Paredes(23 Phil. Rep., 238). The case of Yangco vs. Rohde (1 Phil. Rep., 404) was one relating to the allowance of alimony pending the trial of an action for a divorce. The court below allowed alimony although the answer denied the marriage. Prohibition was brought in this court, and after hearing, the lower court was enjoyed from levying and collecting alimony. The court said at page 414: "The court below had jurisdiction to try the divorce suit, but he was without jurisdiction to grant alimony when the right to claim alimony had not accrued in accordance with the provisions of the Civil Code. This code only grants the right to alimony to a wife. This status not appearing by a final judgment, the court is without jurisdiction to make any order in the matter." See also U. S. vs.Crossfield (24 Phil. Rep., 321); Young Wampo vs. Collector of Customs (id., 431). The reasons given in these cases last cited for the allowance of the writ of prohibition are applicable only to the class of cases with which the decisions deal and do not in any way militate against the general proposition herein asserted. Those which relate to election contests are based upon the principle that those proceedings are special in their nature and must be strictly followed, a material departure from the statute resulting in a loss, or in an excess, of jurisdiction. The cases relating to receivers are based, in a measure, upon the same principle, the appointment of a receiver being governed by the statute; and in part upon the theory that the appointment of a receiver in an improper case is in substance a bankruptcy proceeding, the taking of which is expressly prohibited by law. The case relative to the allowance of alimonypendente lite when the answer denies the marriage is more difficult to distinguish. The reasons in support of the doctrine laid down in that case are given in the opinion in full and they seem to place the particular case to which they refer in a class by itself. It is not light thing that the lawmakers have abolished writs of error and with them certiorari and prohibition, in so far as they were methods by which the mere errors of an inferior court could be corrected. As instrument to that end they no longer exist. Their place is now taken by the appeal. So long as the inferior court retains jurisdiction its errors can be corrected only by that method. The office of the writ of certiorari has been reduced to the correction of defects of jurisdiction solely and cannot legally be used for any other purpose. It is truly an extraordinary remedy and, in this jurisdiction, its use is restricted to truly extraordinary cases cases in which the action of the inferior court is wholly void; where any further steps in the case would result in a waste of time and money and would produce no result whatever; where the parties, or their privies, would be utterly deceived; where a final judgment or decree would be nought but a snare and a delusion, deciding nothing, protecting nobody, a judicial pretension, a recorded falsehood, a standing menace. It is only to avoid such results as these that a writ of certiorari is issuable; and even here an appeal will lie if the aggrieved party prefers to prosecute it. A full and thorough examination of all the decided cases in this court touching the question of certiorari and prohibition fully support the proposition already stated that, where a Court of First Instance has jurisdiction of the subject matter and of the person, its decision of any question pertaining to the cause, however erroneous, cannot be reviewed by certiorari, but must be corrected by appeal. It must be remembered that the people of the Philippine Islands may go to the Court of First Instance to require a public officer to perform his duties; and they have the right to have that court pass upon the whole case and upon every phase thereof and upon every question arising therein. This right is conferred by statute. It would be respected by the courts as well as by others. It would be manifestly illegal, as

it would be flagrantly unjust, so long as the court acts within its jurisdiction, to withdraw from the Court of First Instance the consideration of that case under color of any proceeding whatever. As long as the court is considering that case, its right and the rights of the litigants to continue to final determination are inviolate. The fact that another action may have been pending involving the same subject matter and even between the same parties, which was not the fact in this case, does not touch the jurisdiction of the court to act. We cannot leave the case without suggesting that the applicant herein, before coming to this court, should, as the better practice, have made the proper application to the Court of First Instance for a dissolution or modification of the mandatory injunction, and thereby given that court an opportunity, after full argument of counsel and citation of authorities, to pass upon the question of his power and jurisdiction and, even, the correctness and propriety of his action, should power and jurisdiction be found by the court to exist. Questions which Courts of First Instance are required by law to decide should not be summarily taken from them and presented to this court without first giving them an opportunity of deliberately passing on such questions themselves. The most natural and proper thing to do, when such court, in the judgment of one of the parties, has issued an injunction erroneously, is immediately to call the attention of that court to its supposed error and ask for its correction. The strongest reasons of policy and courtesy if not actual legal rights itself, require such procedure; and we discourage all attempts to come to this court upon questions which a court below is entitled to decide without first invoking its judgment thereon. There are special reasons for following this course in cases where the court has acted ex parte. The writ is denied and the proceeding is dismissed. So ordered. MICROSOFT CORPORATION, petitioner,vs. BEST DEAL COMPUTER CENTER CORPORATION, PERFECT DEAL CORPORATION, MARCOS C. YUEN doing business as PERFECT BYTE COMPUTER CENTER and HON. FLORENTINO M. ALUMBRES, in his capacity as Presiding Judge, RTC-Br. 255, Las Pias City, respondents. DECISION BELLOSILLO , J.: MICROSOFT CORPORATION assails the Order of Judge Florentino M. Alumbres, RTC-Br. 255, Las Pias City, dated 26 December 2001 in its Civil Case No. 00-0237 denying its application for an exparte order for the seizure and impounding of relevant and infringing evidence and the Order dated 1 March 2001 denying reconsideration thereof. Petitioner is a US-based corporation. It is not doing business in the Philippines but has sued in the court below solely to protect its intellectual property rights. On 4 December 2000 petitioner filed a complaint for Injunction and Damages with Ex Parte Application for Temporary Restraining Order and the Provisional Measure of Preservation of Evidence against Best Deal Computer Center Corporation, Perfect Deal Corporation and Marcos C. Yuen doing business as Perfect Byte Computer Center. It alleged that defendants without authority or license copied, reproduced, distributed, installed and/or loaded software programs owned by Microsoft into computer units sold by them to their customers in violation of its intellectual property rights. It prayed for the issuance of a writ of preliminary injunction to restrain and enjoin defendants from illegally reproducing, selling and distributing unlicensed software programs. It also applied for the issuance of an ex parte order for the seizure and impounding of relevant evidence that can be or may be found at defendants' business premises. On 26 December 2000 the Las Pias trial court set petitioner's prayer for a temporary restraining order for hearing but at the same time denied its application for an exparte order ratiocinating that the Intellectual Property Code does not expressly allow its issuance and that, in any case, the TRIPS (Trade-Related Aspects of Intellectual Property Rights) AGREEMENTi[1] cannot prevail over it. The court a quo also opined that petitioner's application partook of a search and seizure order available only in criminal cases. Petitioner moved for reconsideration but the same was denied on 9 January 2001. In the instant petition for certiorari under Rule 65 of the Revised Rules of Court petitioner submits that the court a quo gravely abused its discretion amounting to lack or excess of jurisdiction when it ruled that the law does not allow an ex parte provisional remedy of seizure and impounding of infringing evidence. It maintains that Sec. 216.2, Part IV, of RA 8293ii[2] authorizes such order. It concedes though that

while RA 8293 does not expressly mention the provisional and ex parte nature of the remedy, nonetheless, Art. 50 of the TRIPS Agreement amply supplies the deficiency. Petitioner allegedly resorted to the instant recourse because it had no appeal or any plain, speedy and adequate remedy in the ordinary course of law. It automatically invoked the jurisdiction of this Court supposedly because of the importance of the issue involved. It bypassed the Court of Appeals on the premise that it would be useless to first seek recourse thereat as the party aggrieved by the appellate court's ruling would nonetheless elevate the matter to this Court. By then, petitioner surmised, the level of intellectual piracy would have worsened. Likewise, petitioner presumes that direct resort to this Court is justified as the petition involves a pure question of law. Will the extraordinary writ of certiorari lie? For certiorari to lie, it must be shown that the tribunal, board or officer exercising judicial functions acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction, and that there is no appeal nor any plain, speedy and adequate remedy in the ordinary course of law for the purpose of amending or nullifying the proceeding.iii[3] The sole office of the writ of certiorari is the correction of errors of jurisdiction including the commission of grave abuse of discretion amounting to lack of jurisdiction, and does not include correction of public respondent's evaluation of the evidence and factual findings thereon.iv[4] The petition for certiorari must be based on jurisdictional grounds because as long as the respondent acted with jurisdiction, any error committed by him or it in the exercise thereof will amount to nothing more than an error of judgment which may be reviewed or corrected only by appeal. Even an abuse of discretion is not sufficient by itself to justify the issuance of a writ of certiorari.v[5] We find that the court below acted within its jurisdiction when it took cognizance of the complaint for injunction and damages filed by petitioner. Section 19, par. (8), BP Blg. 129, as amended,vi[6] provides that Regional Trial Courts in Metro Manila shall have exclusive original jurisdiction in all cases in which the demand, exclusive of interest, damages of whatever kind, attorneys fees, costs or the value of the property in controversy exceeds P200,000.00. In the complaint filed before the court a quo, petitioner averred that it incurred no less than P750,000.00 in attorney's fees, investigation and litigation expenses and another P2,000,000.00 by way of moral damages. Clearly, the above amounts fall within the jurisdiction of the Regional Trial Court. Also, the complaint was properly lodged in the Regional Trial Court of Las Pias considering that one of the principal defendants was residing thereat. Having determined that the court below had jurisdiction to entertain the complaint filed by petitioner, we now resolve whether respondent tribunal gravely abused its discretion amounting to lack or excess of jurisdiction in denying petitioner's application for an ex parte order. A special civil action for certiorari will prosper only if grave abuse of discretion is manifested.vii[7] For an abuse to be grave the power must be exercised in an arbitrary or despotic manner by reason of passion or personal hostility.viii[8] The abuse of discretion must be so patent and gross as to amount to an evasion of a positive duty, or a virtual refusal to perform the duty enjoined or act in contemplation of law.ix[9] There is grave abuse of discretion when respondent acts in a capricious or whimsical manner in the exercise of its judgment as to be equivalent to lack of jurisdiction.x[10] Petitioner asserts that respondent trial court gravely abused its discretion in denying its application for the issuance of an ex parte order. However, other than this bare allegation, petitioner failed to point out specific instances where grave abuse of discretion was allegedly committed. It was never shown how respondent tribunal supposedly exercised its power in a despotic, capricious or whimsical manner. There being no hint of grave abuse of discretion that can be attributed to the lower court, hence, it could be safely held that the assailed orders were rendered in the proper exercise of its jurisdiction. Significantly, even assuming that the orders were erroneous, such error would merely be deemed as an error of judgment that cannot be remedied by certiorari. As long as the respondent acted with jurisdiction, any error committed by him or it in the exercise thereof will amount to nothing more than an error of judgment which may be reviewed or corrected only by appeal.xi[11] The distinction is clear: A petition for certiorari seeks to correct errors of jurisdiction while a petition for review seeks to correct errors of judgment committed by the court. Errors of judgment include errors of procedure or mistakes in the court's findings. Where a court has jurisdiction over the person and subject matter, the

decision on all other questions arising in the case is an exercise of that jurisdiction. Consequently, all errors committed in the exercise of such jurisdiction are merely errors of judgment.xii[12] Certiorari under Rule 65 is a remedy designed for the correction of errors of jurisdiction and not errors of judgment.xiii[13] Petitioner's rights can be more appropriately addressed in the appeal. True, petitioner invokes the jurisdiction of this Court in the interest of speedy justice. It conjectures that any further delay in the resolution of the instant petition will be prejudicial not only to petitioner but to all those similarly situated. Thus petitioner brought the instant petition directly to this Court on the premise that if it were to first seek a ruling from the Court of Appeals, a party aggrieved by such ruling would take the matter to this Court for final resolution. By then, the level of intellectual piracy would have worsened. This Court is not persuaded. The quest for speedy justice should not be used as a devise to trample upon other equally laudable policies of this Court. Petitioner's direct resort to this Court in the guise of speedy justice was in utter disregard of the hierarchy of courts. We find no exceptional or compelling reason not to observe the hierarchy of courts. Our pronouncement in People v. Cuaresmaxiv[14] is most instructive This Court's original jurisdiction to issue writs of certiorari is not exclusive. It is shared by this Court with Regional Trial Courts and with the Court of Appeals. This concurrence of jurisdiction is not, however, to be taken as according to parties seeking any of the writs an absolute, unrestrained freedom of choice of the court to which application therefor will be directed. There is after all a hierarchy of courts. A direct invocation of the Supreme Courts original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition. This is established policy. It is a policy that is necessary to prevent inordinate demands upon the Court's time and attention which are better devoted to those matters within its exclusive jurisdiction, and to prevent further over-crowding of the Court's docket. Indeed, the removal of the restriction on the jurisdiction of the Court of Appeals in this regard, supra - resulting from the deletion of the qualifying phrase, "in aid of its appellate jurisdiction" was evidently intended precisely to relieve this Court pro tanto of the burden of dealing with applications for the extraordinary writs which, but for the expansion of the Appellate Court's corresponding jurisdiction, would have had to be filed with it. The Court feels the need to reaffirm that policy at this time, and to enjoin strict adherence thereto in the light of what it perceives to be a growing tendency on the part of litigants and lawyers to have their applications for the so-called extraordinary writs, and sometimes even their appeals, passed upon and adjudicated directly and immediately by the highest tribunal of the land. The Court therefore closes this decision with the declaration for the information and guidance of all concerned, that it will not only continue to enforce the policy, but will require a more strict observance thereof. WHEREFORE, the instant petition is DISMISSED. The assailed order dated 26 December 2001 of the RTC-Br. 255, Las Pias City, which denied petitioner's application for an ex parte order for the seizure and impounding of relevant and infringing evidence as well as its order dated 1 March 2001 denying reconsideration thereof is SUSTAINED. Costs against petitioner. SO ORDERED.

G.R. No. 12083 November 27, 1916 NEMESIO CAMPOS, petitioner, vs. ADOLPH WISLIZENUS, judge of first instance of Cebu, and TEODORO ALDANESE, respondents. F. V. Arias and D. G. McVean for petitioner. Filemon Sotto for respondents. MORELAND, J.: This is a petition for a writ of certiorari to be directed to the Court of First Instance of the Province of Cebu requiring it to forward to this court the proceedings had in a certain election contest between the petitioner Nemesio Campos and the respondent TeodoroAldanse, to the end that such proceeding may be revised by this court and certain steps taken therein annulled on the ground that, in taking them, the court acted without or in excess of its jurisdiction. The petition alleges that, upon the proclamation by the municipal board of inspectors of the municipality of Sibonga,

Province of Cebu, declaring the respondent TeodoroAldanese elected to the position of municipal president of said municipality, the petitioner filed a protest against the election. After the filing of the protest copies were duly made for service on the various persons receiving votes for the office of the municipal president. The service of the notice of protest upon the respondent TeodoroAldanese was made by delivering a copy thereof to one IsidoroAldanese, a brother of the respondent TeodoroAldanese, and who, it is claimed by the petitioner, was living in the house of the respondent TeodoroAldanese at the time. IsidoroAldanese acknowledged in writing on the back of the original notice of protest the fact that he had received it. A copy of the certificate of service was attached to the petition and made a part of it as Exhibit C. Thereafter, a motion was made to the court in which the election contest was pending for the dismissal of the proceedings on the ground that not all of the persons receiving votes for the office of municipal president were notified as required by law and therefore the court acquired no jurisdiction of the proceedings. The court, after hearing the parties with regard to the service of the notice of protest on the respondent TeodoroAldanese, held that, under the facts submitted, no service of the protest had been made on the respondent TeodoroAldanese in the manner requires by law and that, therefore, the court acquired no jurisdiction of the proceedings and accordingly dismissed the protest. The petition also sets out the history of the proceeding before the court had on the hearing of the motion to dismiss and alleges that, after the court had decided the motion and had begun to dictate his order to that effect, the attorney for the petitioner, observing that the court in its order found the existence of facts which he believed had not been proved, attempted to make an argument with respect thereto and the court refused to hear him. It is also alleged that, after the order had been dictated, counsel for the petitioner offered to present evidence that the notice was served in accordance with law but the court refused to hear the evidence. It is also alleged that the petitioner made a motion for a rehearing of said motion which the court denied. Upon this showing the petitioner contends that the court exceeded its jurisdiction in dismissing the proceedings and that its action should be annulled and set aside and that the court should be ordered to proceed with the contest. The respondent filed a demurrer to the petition on the ground, among others, that it did not state facts sufficient to justify the issuance of the writ, and the question before us arises on that demurrer. There are attached to the petition various exhibits which are made a part thereof. Among them are the orders of the court made on the motion to dismiss and also on other motions made by the petitioner. The order made on the motion to dismiss is in part as follows: From an examination of the records in this case it appears that, on the 20th day of June 1916, the attorney for the petitioner Nemesio Campos filed an election protest against TeodoroAldanese, respondent. The required bond was filed on the 21st day of June 1916, which was approved by the court on that day. The notice of the protest appears in the record, signed by the attorney for the petitioner, and reads as follows: "United States of America. Philippine Islands. In the Court of First Instance, Province of Cebu. Nemesio Campos, petitioner, versus TeodoroAldanese, respondent. Case No. ........... To Mr. TeodoroAldanese, greeting: You are notified that on the 20th day of June 1916, I have filed with the Court of First Instance of the Province of Cebu, in behalf of Mr. Nemesio Campos, a protest against your election to the office of municipal president of Sibonga, a copy of which is herewith inclosed; and you are hereby warned that you should appear before said court within the period fixed by law, or that which the court may fix, to answer the election protest, with the understanding that should you not do so, I will ask the court to grant the remedy prayed for in said protest. Cebu, Cebu, P. I., June 20, 1916. F. V. Arias, attorney for the petitioner. Received copy of the foregoing notice and the protest to which it refers: June .............., 1916. ................., Respondent. I, ...................., under oath declare: That on the ............... day of June, 1916, at ................., I left a copy of the above notice and the protest above entitled in the house of Mr. TeodoroAldanese, in Sibonga, Cebu ............" On the back of said notice the following words written with lead pencil appear: "Received copy of the protest to be delivered to TeodoroAldanese as soon as he arrives from the hacienda. 23d of June 1916. I. Aldanese." Immediately following said writing come the following words: "Filed today, 26 of June, 1916. Carlos A. Salvador, clerk of court." No other

notice of the protest to the respondent TeodorAldanese appears in the record. The court said: No proof whatever as to who is "I. Aldanese" has been presented. It does not appear who was the person who signed and under what authority he signed, not even whether he resides in the house of the respondent. The court, in the absence of proof, finds that the notice was insufficient. Furthermore, said notice was not made within the period fixed by law. The order made on the motion for reconsideration of the order dismissing the proceeding is, so far as material, as follows: The order of this court of the 19th of July, 1916, was dictated on a motion to dismiss by the attorney for the respondent as appears in the record of this case. The attorneys for both parties argued the motion which was submitted to the court afterwards, without the attorney for the petitioner having asked permission or filed any motion, either oral or written, to amend the return of the notice which is attached to the record, or to offer evidence in support of that amendment. The sworn statement subscribed by Felix Flores which appears in the record was filed only on the 20th day of July, 1916. The court, therefore, in considering the motion to dismiss the case filed by the attorney for the respondent, had to base its resolution only on the record as it was on the above mentioned date, July 19, 1916. It is argued that, inasmuch as the election Law in its article 27 has not specified the manner and form in which the notice to the candidates voted should be given, rules Nos. 12 and 14 of the Courts of First Instance promulgated by the Supreme Court are applicable; while it is maintained on the part of the respondent that, in the absence of a specific determination, the procedure provided for in the Code of Civil Procedure should govern. In any event, the notice to the respondent in this case, as it appears in the record of the same, is not in accordance with the provisions of the Code of Civil Procedure or of articles 12 and 14 of the Rules of Courts of First Instance. It is not in accordance with the provisions of the Code of Civil Procedure, for the person who made the service does not appear to be a person who by reason of his office is authorized by the Code of Civil Procedure to do so; and it does not appear that, being a private person, he has been, on the request of the interested party, duly authorized to make the service. Neither does it appear that the person who signed and acknowledged receipt of the notice is a member of the family of the respondent and reside in his house. As regards the rules of the Courts of First Instance, it does not appear that the service has been made in accordance therewith; for it does not appear that the person who signed and acknowledged receipt of the notice was residing in the house of the respondent and was in charge thereof. With regard to the question as to who should make the service of said notice, it is not necessary for the court in this case to express its definite criterion, in view of the fact that the service is not made in accordance with the Code of Civil Procedure or the rules of the Courts of First Instance. However, the court is willing to agree with the opinion expressed in articles 931 and 932 of Villamor's work on elections, in which the criterion that said notice may be served in accordance with the provisions of the Code of Civil Procedure is maintained; and it is not going far to assume that the author desired not only to declare that said notice may be served in that manner, but that it must be served in accordance with the provisions of the Code of Civil Procedure. Nor does the court believe that it is obliged to express its opinion whether, at the time of the discussion of the motion to dismiss, the petition to amend the return of the service of notice so as to make it conform to the evidence offered in support of that petition can be made; for the reason that that petition was made after the motion to dismiss had been submitted to the court, without any petition having been made. It is true that, immediately after the rendition of the order of the court dismissing the proceeding, a verbal request to offer evidence and to prove the service of the notice was made in

accordance with law, thus correcting the mistakes in the return. The court, however, is to unwilling to believe that, the motion to dismiss having been definitely submitted to the court, without any petition for the amendment of the return having been made, the filing of said motion after the rendition of the resolution of the court in this case is timely and proper. For the reasons above stated, the court denies the motion to set aside the order of dismissal.lawphil.net It is stated, however, after the arguments of counsel for both parties on the motion were over and while the court was dictating its final order on said motion, Mr. Arias stood up with the intention (according to what he states now before the court) to ask the court to admit some evidence; but the court, in view of the fact that the case had already been submitted and of the further fact that the court was dictating the order, did not allow such interruption and continued dictating the order, the reversal of which is now asked. While the petition has annexed to it as an exhibit an affidavit of service of the notice of protest on the respondent TeodoroAldanese which shows that the notice was served in the manner required by law, that affidavit of service was not made or presented to the court until after the order had been made dismissing the proceedings. It was first presented to the court as a part of the moving papers on the motion for a reconsideration of the order dismissing the proceedings. The order of dismissal was made on the 19th of July, 1916, at which time the only evidence before the court as to the service of the notice was that stated in the order of the court above-quoted. The affidavit of service was made on the 20th of July on which date the motion for reconsideration was presented. We have frequently held that the court acquires no jurisdiction of an election protest unless the protestant shows to the court that a notice of protest has been served in the manner required by law upon all the candidates receiving votes for the office concerning which the protest was filled and who were candidates for that office. (Hontiverosvs.Altavas, 24 Phil. Rep., 632; Navarro vs.Veloso, 23 Phil. Rep., 625; Navarro vs. Jimenez, 23 Phil. Rep., 557; Gala vs. Cui and Rodriguez, 25 Phil. Rep., 522.) The absence of such proof is fatal to the petitioner when the motion is dismissed on that ground. There is no doubt that the court would receive an affidavit of service or other evidence showing that the service referred to was made in accordance with law if such evidence were offered at any time before the motion was made and, probably, even after the motion was made but before the order of dismissal was entered. In this case, however, no evidence was offered establishing the fact of proper service until after the order dismissing the proceedings was entered, except the evidence referred to in the order of dismissal and the order denying the motion for a rehearing. The evidence referred to in such orders was insufficient to establish the service. In the absence of provisions in the Election Law stating how such service should be made the provisions of the Code of Civil Procedure relative to that matter control. Section 396, paragraph 6, provides in part that, "in all other cases, to the defendant personally, or by leaving a copy at his usual place of residence, in the hands of some person resident therein of sufficient discretion to receive the same." As found by the trial court the evidence which it had before it at the time the motion was made and the order entered in connection therewith did not establish service within the provisions of the section just quoted; and, accordingly, it was the duty of the court to dismiss the proceedings (See cases cited.) We said in the case of Navarro vs. Jimenez (23 Phil. Rep., 557): After the entry of the judgment in favor of the defendant, a motion was made by the plaintiff to vacate and set aside said judgment and to dismiss the whole proceeding upon the ground that not all of said candidates had been notified of the protest as required by law. The motion was heard. The question was litigated. The evidence was discussed and considered. The arguments of counsel were presented. The court found form the evidence that all of the candidates had been notified of the protest and that the notice was in the form and served in the manner and within the time required by the statute. That question having been raised before the court below and passed upon there, we are unable to see at this moment how an action of quo warranto can

be maintained, based upon the theory that such notice was lacking. That question having been determined in the court below, and the decision never having been questioned in the only manner in which such a decision can be, we must hold it conclusive in this action, quo warranto not being a method by which that decision can be reviewed. We are, therefore, of the opinion that the action must be dismissed. In that case we also said: We have to say, in amplification of our former opinion on this question, that the general rule is that, where the jurisdiction of the court depends upon the existence of facts, and the court judicially considers and adjudicates the question of its jurisdiction, and decides that the fact exist which are necessary to give it jurisdiction of the case, the finding is conclusive and cannot be controverted in a collateral proceeding. The rule enunciated in the case just cited would apply to a case where the proper service of notice on the candidates voted for was challenged and the court determined upon the facts presented, after hearing the allegations of the parties and their arguments based thereon, that service had not been made as required by law. Such a determination involves a mixed question of law and fact; and it is a rule, as stated in the case cited, that, where the jurisdiction of the court depends upon the determination of a question of fact and that question has been determined by the court after a hearing, that determination is conclusive and can not be attacked collaterally. In the case before us evidence as to the fact of service was introduced by the petitioner and the sufficiency of that evidence was challenged by the respondent. The petitioner did not take advantage of the opportunity given him by the challenge to present other and further evidence in relation to the service but stood squarely upon the facts already presented and accepted a decision of the court thereon. Under such circumstances there was nothing left for the court to do except to decide the question upon the facts as they were. The court did so; and although to say so is unnecessary to a decision of this case, we are of the opinion that its finding on the facts as they existed of record at the time was well founded. Certain it is that the evidence before the court did not establish the facts required by paragraph 6 of section 396 of the code of Civil Procedure to show a legal service. Thereafter the court denied the motion for a rehearing and that denial cannot be held to have been made in excess of the jurisdiction of the court or outside of its powers and authority. Even though it be conceded that the court should have given the petitioner an opportunity to present further evidence on the question of service the fact that the court held that the petitioner had had his day in court with regard to that matter and that he was not entitled to another opportunity at the expense of the respondent and the delay which would necessarily follow does not go to the jurisdiction of the court and does not subject him to a revision of his orders on certiorari. It may be added that the determination of a question of fact on which its jurisdiction depends does not of itself affect the court's jurisdiction. It has power to resolve the question of fact; and its decision is within its powers whichever was it may go. Such a finding cannot be attacked by certiorari (Navarro vs. Jimenez, above; Gala vs. Cui and Rodriguez, 25 Phil. Rep., 522). This case is altogether different from those in which we have issued mandamus to compel the court of first instance to go forward with an election protest after having dismissed the same on a motion based on the ground that the protest had been signed by the attorney instead of the party. The demurrer is sustained and the complaint will be dismissed on the merits, unless the petitioner within ten days files an amended complaint stating facts sufficient to warrant the issuance of the remedy. So ordered. G.R. No. L-46330 April 22, 1939 IRENEO ABAD SANTOS and JOSE V. ABAD SANTOS, petitioners, vs. THE PROVINCE OF TARLAC, THE GOVERNMENT OF THE COMMONWEALTH OF THE PHILIPPINES, and DIEGO LOCSIN, Judge of First Instance of Tarlac, respondents. M. H. de Joya for petitioners. Office of the Solicitor-General Ozaeta for respondents. MORAN, J.: A petition for certiorari.

In an action instituted by the Province of Tarlac for the condemnation of certain parcels of land for the construction of the Capas-Murcia diversion road, a compromise was entered into between said province and the petitioners herein for the payment to the latter of the agreed value of their lands. The respondent judge approved the compromise in a partial decision rendered by him on September 27, 1937, and ordered the parties to comply with the conditions therein set forth. On October 2, 1937, the provincial fiscal, in behalf of the Province of Tarlac, moved for the reconsideration of the decision on the ground that in giving his assent to the compromise, he acted under the mistaken belief that the prices fixed therein had been approved by the appraisal committee of the provincial government, composed of the provincial treasurer, district engineer and provincial auditor, and that the Province of Tarlac, at the time of the compromise, had no longer any authority to expropriate the lands, because in virtue of Executive Order No. 71, the Capas-Murcia Diversion road was declared a national highway under the authority of the Commonwealth of the Philippines. The respondent judge acceded to his motion and, setting aside it decision, ordered the reopening of the case and authorized the substitution of the Commonwealth of the Philippines for the Province of Tarlac as party plaintiff, in accordance with the petition of the Solicitor-General to that effect. Hence, this petition. Petitioners contend that the respondent judge was without power to set aside his partial decision which was founded upon a compromise duly approved by him. It is not claimed that the judgment in question has become final. In fact, it cannot be so claimed because the fiscal's motion for reconsideration thereof was presented five days after its rendition. Not having become final, the lower court has plenary control over it and can modify or set it aside as law and justice require. (Arnedovs.Llorente and Liongson, 18 Phil., 257; De Fiesta vs.Llorente and Manila Railroad Co., 25 Phil., 554, 561.) And the fact that the decision was rendered upon a compromise, gives it no greater validity than if it had been rendered after a trial. It stands on the same footing as that of an ordinary judgment which may be opened or vacated on adequate grounds, such as fraud , mistake or absence of real consent. (15 R. C. L., 645, 646; sec. 113, Act No. 190; Yboleonvs.Sison, 59 Phil., 281.) Whether or not the grounds alleged by the provincial fiscal in his motion for reconsideration seeking relief from the effect of the compromise and the from the judgment rendered thereon are or are not sufficient, is not a question of jurisdiction but one of judgment which we do not decide here. No abuse of discretion is shown by the petitioners, and by abuse of discretion we mean such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. Petition is denied, with costs against the petitioners. G.R. No. L-13602 April 6, 1918 LEUNG BEN, plaintiff, vs. P. J. O'BRIEN, JAMES A OSTRAND and GEO. R. HARVEY, judges of First Instance of city of Manila, defendants. Thos. D. Aitken and W. A. Armstrong for plaintiff. Kincaid & Perkins for defendants. STREET, J.: This is an application for a writ of certiorari, the purpose of which is to quash an attachment issued from the Court of First Instance of the City of Manila under circumstances hereinbelow stated. Upon December 12, 1917, an action was instituted in the Court of First Instance of the city of Manila by P. J. O'Brien to recover of Leung Ben the sum of P15,000 alleged to have been lost by the plaintiff to the defendant in a series of gambling, banking and percentage games conducted ruing the two or three months prior to the institution of the suit. In his verified complaint the plaintiff asked for an attachment, under section 424, and 412 (1) of the Code of Civil Procedure, against the property of the defendant, on the ground that the latter was about to depart from the Philippine islands with intent to defraud his creditors. This attachment was issued; and acting under the authority thereof, the sheriff attached the sum of P15,000 which had been deposited by the defendant with the International Banking Corporation. The defendant thereupon appeared by his attorney and moved the court to quash the attachment. Said motion having dismissed in the Court of First Instance, the petitioner, Leung Ben, the defendant in that action, presented to this court, upon January 8, 1918 his petition for the writ of certiorari directed against P. J. O'Brien and the judges of the Court of First Instance of the city of Manila whose names are mentioned in the caption hereof. The prayer is that the

Honorable James A. Ostrand, as the judge having cognizance of the action in said court be required to certify the record to this court for review and that the order of attachment which had been issued should be revoked and discharged. with costs. Upon the filing of said petition in this court the usual order was entered requiring the defendants to show cause why the writ should not issue. The response of the defendants, in the nature of a demurrer, was filed upon January 21, 1918; and the matter is now heard upon the pleadings thus presented. The provision of law under which this attachment was issued requires that there should be accuse of action arising upon contract, express or implied. The contention of the petitioner is that the statutory action to recover money lost at gaming is that the statutory action to recover money lost at gaming is no such an action as is contemplated in this provision, and he therefore insists that the original complaint shows on its face that the remedy of attachment is not available in aid thereof; that the Court of First Instance acted in excess of its jurisdiction in granting the writ of attachment; that the petitioner has no plain, speedy, and adequate remedy by appeal or otherwise; and that consequently the writ of certiorari supplies the appropriate remedy for his relief. The case presents the two following questions of law, either of which, if decided unfavorably to the petitioner, will be fatal to his application: (1) Supposing that the Court of First Instance has granted an attachment for which there is no statutory authority, can this court entertain the present petition and grant the desired relief? (2) Is the statutory obligation to restore money won at gaming an obligation arising from "contract, express or implied?" We are of the opinion that the answer to the first question should be in the affirmative. Under section 514 of the Code of Civil Procedure the Supreme Court has original jurisdiction by the writ of certiorari over the proceedings of Courts of First Instance, wherever said courts have exceeded their jurisdiction and there is no plaint, speedy, and adequate remedy. In the same section, it is further declared that the proceedings in the Supreme Court in such cases hall be as prescribed for Courts of First Instance in section 217-221, inclusive, of said Code. This Supreme Court, so far as applicable, the provisions contained in those section to the same extent as if they had been reproduced verbatim immediately after section 514. Turning to section 217, we find that, in defining the conditions under which certiorari can be maintained in a Court of First Instance substantially the same language is used as is the same remedy can be maintained in the Supreme Court of First Instance, substantially the same language is used as is found in section 514 relative to the conditions under which the same remedy can be maintained in the Supreme Court, namely, when the inferior tribunal has exceeded its jurisdiction and there is no appeal, nor any plain, speedy and adequate remedy. In using these expressions the author of the Code of Civil Procedure merely adopted the language which, in American jurisdictions at least, had long ago reached the stage of stereotyped formula. In section 220 of the same Code, we have a provision relative to the final proceedings in certiorari, and herein it is stated that the court shall determine whether the inferior tribunal has regularly pursued its authority it shall give judgment either affirming annulling, or modifying the proceedings below, as the law requires. The expression, has not regularly pursued its authority as here used, is suggestive, and we think it should be construed in connection with the other expressions have exceeded their jurisdiction, as used in section 514, and has exceeded their jurisdiction as used in section 217. Taking the three together, it results in our opinion that any irregular exercise of juridical power by a Court of First Instance, in excess of its lawful jurisdiction, is remediable by the writ of certiorari, provided there is no other plain, speedy, and adequate remedy; and in order to make out a case for the granting of the writ it is not necessary that the court should have acted in the matter without any jurisdiction whatever. Indeed the repeated use of expression excess of jurisdiction shows that the lawmaker contemplated the situation where a court, having jurisdiction should irregularly transcend its authority as well as the situation where the court is totally devoid of lawful power. It may be observed in this connection that the word jurisdiction as used in attachment cases, has reference not only to the authority of the court to entertain the principal action but also to its authority to issue the attachment, as dependent upon the existence of the statutory ground. (6 C. J., 89.) This distinction between jurisdiction to issue the attachment as an ancillary remedy incident to the principal

litigation is of importance; as a court's jurisdiction over the main action may be complete, and yet it may lack authority to grant an attachment as ancillary to such action. This distinction between jurisdiction over the ancillary has been recognized by this court in connection with actions involving the appointment of a receiver. Thus in Rocha & Co. vs.Crossfield and Figueras (6 Phil. Rep., 355), a receiver had been appointed without legal justification. It was held that the order making the appointment was beyond the jurisdiction of the court; and though the court admittedly had jurisdiction of the main cause, the order was vacated by this court upon application a writ of certiorari. (See Blanco vs. Ambler, 3 Phil. Rep., 358, Blanco vs. Ambler and McMicking 3 Phil. Rep., 735, Yangco vs. Rohde, 1 Phil. Rep., 404.) By parity of reasoning it must follow that when a court issues a writ of attachment for which there is no statutory authority, it is acting irregularly and in excess of its jurisdiction, in the sense necessary to justify the Supreme Court in granting relief by the writ of certiorari. In applying this proposition it is of course necessary to take account of the difference between a ground of attachment based on the nature of the action and a ground of attachment based on the acts or the conditions of the defendant. Every complaint must show a cause of action some sort; and when the statue declares that the attachment may issue in an action arising upon contract, the express or implied, it announces a criterion which may be determined from an inspection of the language of the complaint. The determination of this question is purely a matter of law. On the other hand, when the stature declares that an attachment may be issued when the defendant is about to depart from the Islands, a criterion is announced which is wholly foreign to the cause of action; and the determination of it may involve a disputed question of fact which must be decided by the court. In making this determination, the court obviously acts within its powers; and it would be idle to suppose that the writ of certiorari would be available to reverse the action of a Court of First Instance in determining the sufficiency of the proof on such a disputed point, and in granting or refusing the attachment accordingly. We should not be understood, in anything that has been said, as intending to infringe the doctrine enunciated by this court in Herrera vs.Barretto and Joaquin (25 Phil. Rep., 245), when properly applied. It was there held that we would not, upon application for a writ of certiorari, dissolve an interlocutory mandatory injunction that had been issued in a Court of First Instance as an incident in an action of mandamus. The issuance of an interlocutory injunction depends upon conditions essentially different from those involved in the issuance of an attachment. The injunction is designed primarily for the prevention of irreparable injury and the use of the remedy is in a great measure dependent upon the exercise of discretion. Generally, it may be said that the exercise of the injunctive powers is inherent in judicial authority; and ordinarily it would be impossible to distinguish between the jurisdiction of the court in the main litigation and its jurisdiction to grant an interlocutory injunction, for the latter is involved in the former. That the writ of certiorarican not be used to reverse an order denying a motion for a preliminary injunction is of course not to cavil. (Somes vs. Crossfield and Molina, 8 Phil. Rep., 284.) But it will be said that the writ of certiorari is not available in this cae, because the petitioner is protected by the attachment bond, and that he has a plain, speedy, and adequate remedy appeal. This suggestion seems to be sufficiently answered in the case of Rocha & Co vs.Crossfield and Figueras (6 Phil. Rep., 355), already referred to, and the earlier case there cited. The remedy by appeal is not sufficiently speedy to meet the exigencies of the case. An attachment is extremely violent, and its abuse may often result in infliction of damage which could never be repaired by any pecuniary award at the final hearing. To postpone the granting of the writ in such a case until the final hearing and to compel the petitioner to bring the case here upon appeal merely in order to correct the action of the trial court in the matter of allowing the attachment would seem both unjust and unnecessary. Passing to the problem propounded in the second question it may be observed that, upon general principles,. recognize both the civil and common law, money lost in gaming and voluntarily paid by the loser to the winner can not in the absence of statue, be recovered in a civil action. But Act No. 1757 of the Philippine Commission, which defines and penalizes several forms of gambling, contains numerous provisions recognizing the right to recover money lost in gambling or in the playing of certain games (secs. 6, 7, 8, 9, 11). The original complaint in the action in the Court of First Instance is not clear as to the particular section of Act No.

1757 under which the action is brought, but it is alleged that the money was lost at gambling, banking, and percentage game in which the defendant was banker. It must therefore be assumed that the action is based upon the right of recovery given in Section 7 of said Act, which declares that an action may be brought against the banker by any person losing money at a banking or percentage game. Is this a cause arising upon contract, express or implied, as this term is used in section 412 of the Code of Civil Procedure? To begin the discussion, the English version of the Code of Civil Procedure is controlling (sec. 15, Admin. Code, ed. of 1917). Furthermore it is universally admitted to be proper in the interpretation of any statute, to consider its historical antecedents and its juris prudential sources. The Code of Civil Procedure, as is well known, is an American contribution to Philippine legislation. It therefore speaks the language of the common-law and for the most part reflects its ideas. When the draftsman of this Code used the expression contract, express or implied, he used a phrase that has been long current among writers on American and English law; and it is therefore appropriate to resort to that system of law to discover the appropriate to resort to that system of law to discover the meaning which the legislator intended to convey by those meaning which the legislator intended to convey by those terms. We remark in passing that the expression contratotracito, used in the official translation of the Code of Civil Procedure as the Spanish equivalent of implied contract, does not appear to render the full sense of the English expression. The English contract law, so far as relates to simple contracts is planted upon two foundations, which are supplied by two very different conceptions of legal liability. These two conceptions are revealed in the ideas respectively underlying (1) the common- law debt and (2) the assumptual promise. In the early and formative stages of the common-law the only simple contract of which the courts took account was the real contract or contract re, in which the contractual duty imposed by law arises upon the delivery of a chattle, as in the mutuum, commodatum, depositum, and the like; and the purely consensual agreements of the Roman Law found no congenial place in the early common law system. In course of time the idea underlying the contract re was extended so as to include from one person to another under such circumstances as to constitute ajustacuasdebendi. The obligation thereby created was a debt. The constitutive element in this litigation is found in the fact that the debtor has received something from the creditor, which he is bound by the obligation of law to return or pay for. From an early day this element was denominated the quid pro quo, an ungainly phrase coined by Mediaeval Latinity. The quid pro quo was primarily a materials or physical object, and its constituted the recompense or equivalent acquired by the debtor. Upon the passage of the quid pro quo from one party to the other, the law imposed that real contractual duty peculiar to the debt. No one conversant with the early history of English law would ever conceive of the debt as an obligation created by promise. It is the legal duty to pay or deliver a sum certain of money or an ascertainable quantity of ponderable or measurable chattles. The ordinary debt, as already stated, originates in a contract in which a quid pro quo passes to the debtor at the time of the creation of the debt, but the term is equally applicable to duties imposed by custom or statute, or by judgment of a court. The existence of a debt supposes one person to have possession of thing (res) which he owes and hence ought to turn over the owner. This obligation is the oldest conception of contract with which the common law is familiar; and notwithstanding the centuries that have rolled over Westminster Hall that conception remains as one of the fundamental bases of the common-law contract. Near the end of the fifteenth century there was evolved in England a new conception of contractual liability, which embodied the idea of obligation resulting from promise and which found expression in the common law assumpsit, or parol promise supported by a consideration. The application of this novel conception had the effect of greatly extending the filed of contractual liability and by this means rights of action came to be recognized which had been unknown before. The action of assumpsit which was the instrument for giving effect to this obligation was found to be a useful remedy; and presently this action came to be used for the enforcement of common-law debts. The result was to give to our contract law the superficial appearance of being based more or less exclusively upon the notion of the obligation of promise.

An idea is widely entertained to the effect that all simple contracts recognized in the common-law system are referable to a singly category. They all have their roots, so many of us imagine, in one general notion of obligation; and of course the obligation of promise is supposed to supply this general notion, being considered a sort of menstruum in which all other forms of contractual obligation have been dissolved. This a mistake. The idea of contractual duty embodied in the debt which was the first conception of contract liability revealed in the common law, has remained, although it was detained to be in a measure obscured by the more modern conception of obligation resulting from promise. What has been said is intended to exhibit the fact that the duty to pay or deliver a sum certain of money or an ascertainable quantity of ponderable or measurable chattles which is indicated by them debt has ever been recognized, in the common-law system, as a true contract, regardless, of the source of the duty or the manner in which it is create whether derived from custom, statue or some consensual transaction depending upon the voluntary acts of the parties. the form of contract known as the debt is of the most ancient lineage; and when reference is had to historical antecedents, the right of the debt to be classed as a contract cannot be questioned. Indeed when the new form of engagement consisting of the parol promise supported by a consideration first appeared, it was looked upon as an upstart and its right to be considered a true contract was questioned. It was long customary to refer to it exclusively as an assumpsit, agreement, undertaking, or parol promise, in fact anything but a contract. Only in time did the new form of engagement attain the dignity of being classed among true contract. The term implied takers us into shadowy domain of those obligations the theoretical classification of which has engaged the attention of scholars from the time of Gaius until our own day and has been a source of as much difficulty to the civilian as to the common-law jurist. There we are concerned with those acts which make one person debtor to another without there having intervened between them any true agreement tending to produce a legal bond (vinculum juris). Of late years some American and English writers have adopted the term quasi-contract as descriptive of these obligations or some of them; but the expression more commonly used is implied contract. Upon examination of these obligations, from the view point of the common-law jurisprudence, it will be found that they fall readily into two divisions according as they bear an analogy to the common-law debt or to the common law assumpsit. To exhibit the scope of these different classes of obligations is here impracticable. It is only necessary in this connection to observe that the most conspicuous division is that which comprises duties in the nature of debt. The characteristic feature of these obligations is that upon certain states of fact the law imposes an obligation to pay a sum certain of money; and it is characteristic of this obligation that the money in respect to which the duty is raised is conceived as being equivalent of something taken or detained under circumstances giving rise to the duty to return or compensate therefore. The proposition that no one shall be allowed to enrich himself unduly at the expense of another embodies the general principle here lying at the basis of obligation. The right to recover money improperly paid (repeticion de lo indebido) is also recognized as belong to this class of duties. It will observed that according to the Civil Code obligations are supposed to be derived either from (1) the law, (2) contracts and quasi-contracts, (3) illicit acts and omission, or (4) acts in which some sort ob lame or negligence is present. This enumeration of sources of obligations and the obligation imposed by law are different types. The learned Italian jurist, Jorge Giorgi, criticises this assumption and says that the classification embodied in the code is theoretically erroneous. His conclusion is that one or the other of these categories should have been suppressed and merged in the other. (Giorgi, Teoria de lasObligaciones, Spanish ed., vol. 5 arts. 5, 7, 9.) The validity of this criticism is, we thin, self-evident; and it is of interest to note that the common law makes no distinction between the two sources of liability. The obligations which in the Code are indicated as quasicontracts, as well as those arising ex lege, are in the common la system, merged into the category of obligations imposed by law, and all are denominated implied contracts. Many refinements, more or less illusory, have been attempted by various writers in distinguishing different sorts of implied contracts, as for example, the contract implied as of fact and the contract implied as of law. No explanation of these distinctions will be here attempted. Suffice it to say that the term contract, express or implied, is used to by common-law

jurists to include all purely personal obligations other than those which have their source in delict, or tort. As to these it may be said that, generally speaking, the law does not impose a contractual duty upon a wrongdoer to compensate for injury done. It is true that in certain situations where a wrongdoer unjustly acquired something at the expense of another, the law imposes on him a duty to surrender his unjust acquisitions, and the injured party may here elect to sue upon this contractual duty instead of suing upon the tort; but even here the distinction between the two liabilities, in contract and in tort, is never lost to sight; and it is always recognized that the liability arising out of the tort is delictual and not of a contractual or quasi-contractual nature. In the case now under consideration the duty of the defendant to refund the money which he won from the plaintiff at gaming is a duty imposed by statute. It therefore arises ex lege. Furthermore, it is a duty to return a certain sum which had passed from the plaintiff to the defendant. By all the criteria which the common law supplies, this a duty in the nature of debt and is properly classified as an implied contract. It is well- settled by the English authorities that money lost in gambling or by lottery, if recoverable at all, can be recovered by the loser in an action of indebitatusassumpsitfor money had and received. (Clarke vs. Johnson. Lofft, 759; Mason vs. Waite, 17 Mass., 560; Burnham vs. Fisher, 25 Vt., 514.) This means that in the common law the duty to return money won in this way is an implied contract, or quasi-contract. It is no argument to say in reply to this that the obligation here recognized is called an implied contract merely because the remedy commonly used in suing upon ordinary contract can be here used, or that the law adopted the fiction of promise in order to bring the obligation within the scope of the action of assumpsit. Such statements fail to express the true import of the phenomenon. Before the remedy was the idea; and the use of the remedy could not have been approved if it had not been for historical antecedents which made the recognition of this remedy at one logical and proper. Furthermore, it should not be forgotten that the question is not how this duty but what sort of obligation did the author of the Code of Civil Procedure intend to describe when he sued the term implied contract in section 412. In what has been said we have assumed that the obligation which is at the foundation of the original action in the court below is not a quasi-contract, when judge by the principles of the civil law. A few observations will show that this assumption is not by any means free from doubt. The obligation in question certainly does not fall under the definition of either of the two-quasi- contracts which are made the subject of special treatment in the Civil Code, for its does not arise from a licit act as contemplated in article 1895. The obligation is clearly a creation of the positive law a circumstance which brings it within the purview of article 1090, in relation with article, 1089; and it is also derived from an illicit act, namely, the playing of a prohibited game. It is thus seen that the provisions of the Civil Code which might be consulted with a view to the correct theoretical classification of this obligation are unsatisfactory and confusing. The two obligations treated in the chapter devoted to quasicontracts in the Civil Code are (1) the obligation incident to the officious management of the affairs of other person (gestion de negociosajenos) and (2) the recovery of what has been improperly paid (cabro de lo indebido). That the authors of the Civil Code selected these two obligations for special treatment does not signify an intention to deny the possibility of the existence of other quasi-contractual obligations. As is well said by the commentator Manresa. The number of the quasi-contracts may be indefinite as may be the number of lawful facts, the generations of the said obligations; but the Code, just as we shall see further on, in the impracticableness of enumerating or including them all in a methodical and orderly classification, has concerned itself with two only namely, the management of the affairs of other person and the recovery of things improperly paid without attempting by this to exclude the others. (Manresa, 2d ed., vol. 12, p. 549.) It would indeed have been surprising if the authors of the Code, in the light of the jurisprudence of more than a thousand years, should have arbitrarily assumed to limit the quasi-contract to two obligations. The author from whom we have just quoted further observes that the two obligations in question were selected for special treatment in the Code not only because they were the most conspicuous of the quasicontracts, but because they had not been the subject of consideration in other parts of the Code. (Opus citat., 550.)

It is well recognized among civilian jurists that the quasicontractual obligations cover a wide range. The Italian jurist, Jorge Giorgi, to whom we have already referred, considers under this head, among other obligations, the following: payments made upon a future consideration which is not realized or upon an existing consideration which fails; payments wrongfully made upon a consideration which is contrary to law, or opposed to public policy; and payments made upon a vicious consideration or obtained by illicit means (Giorgi, Teoria de lasObligaciones, vol. 5, art. 130.) Im permitting the recovery of money lost at play, Act No. 1757 has introduced modifications in the application of articles 1798, 180`, and 1305 of the Civil Code. The first two of these articles relate to gambling contracts, while article 1305 treats of the nullity of contracts proceeding from a vicious or illicit consideration. Taking all these provisions together, it must be apparent that the obligation to return money lost at play has a decided affinity to contractual obligations; and we believe that it could, without violence to the doctrines of the civil law, be held that such obligations is an innominate quasi-contract. It is, however, unnecessary to place the decision on this ground. From what has been said it follows that in our opinion the cause of action stated in the complaints in the court below is based on a contract, express or implied and is therefore of such nature that the court had authority to issue writ of attachment. The application for the writ of certiorari must therefore be denied and the proceedings dismissed. So ordered. G.R. No. L-9698 January 6, 1915 AGAPITO NAPA, petitioner, vs. JOHN P. WEISSENHAGEN, acting judge of the Court of First Instance of Surigao, ET AL., respondents. EusebioTionko and JosueSoncuya for petitioners. Lope Consing for respondents. In February, 1913, there was begun in the justice's court of Gigaquit, Surigao, an action for the summary recovery of the possession of land under section 80 and following sections of the Code of Civil Procedure, the plaintiff in the case at bar being the defendant there and the defendants Julian Larong and HermenegildoBayla being the plaintiffs. The justice's court tried the cause, found in favor of the plaintiff and ordered delivery of possession. The decision was rendered on the 14th of April, 1913, and appeal was taken therefrom on the 29th of the same month. The cause having arrived in the Court of First Instance for determination on the appeal, a motion was made by the appellee to dismiss the appeal on the ground that it had not been perfected within the time required by law. The court entertained this motion, granted it, and dismissed the appeal. The purpose of this proceeding is to obtain a writ of certiorari for the revision of the record of the court below, the revocation of the judgment entered upon the order granting the motion to dismiss the appeal, and to set aside the whole proceeding to the ground that the court lacked jurisdiction to dismiss the appeal. The question presented arises upon the answer made to the order to show cause why the writ of certiorari should not be issued upon the petition in the case. The answer denies that the facts stated in the petition are sufficient to warrant the issuance of a writ of certiorari, even though all of them be admitted. This is the issue. As is seen, a mere statement of the case is sufficient to deny the relief prayed for. It is clear at a glance that the Court of First Instance had jurisdiction to consider a motion to dismiss the appeal and the exercise of that jurisdiction did not result in its loss, it having been exercised in accordance with the established forms and methods of procedure prescribed by the practice of the country. We have held in numerous case that a writ of certiorari will not be issued unless it clearly appears that the court to which it is to be directed acted without or in excess of jurisdiction in performing the acts complained of. We have also held that if a court had jurisdiction of the subject matter and of the person, decision upon all question pertinent to the cause are decisions which its jurisdiction and however irregular or erroneous they may be, they cannot be corrected by certiorari. A Court of First Instance has jurisdiction to dismiss an appeal taken to it from a judgment of a justice's court and, therefore, had jurisdiction to decide every question pertaining thereto. This being the case, the consideration of the motion and the dismissal of the appeal as a consequence thereof are not acts in excess of jurisdiction. It may be stated as a general rule that the decision by a court of one of the fundamental question before it does not, except perhaps in cases involving a constitutional

question, deprive it of jurisdiction whichever way it may decide. Jurisdiction is the authority to hear and determine a cause, the right to act in a case. Since it is the power to hear and determine, it does not depend either upon the regularity of the exercise of that power or upon the rightfulness of the decision made. Jurisdiction should be distinguished from the exercise of jurisdiction. The authority to decide a case at all and not the decision rendered therein is what makes up jurisdiction. Where there is jurisdiction of the person and the subject matter, the decision of all other question arising in the case is but an exercise of that jurisdiction. (Herrera vs. Barretto, 25 Phil. Rep., 245; Gala vs. Cui, 25 Phil. Rep., 522; De Fiesta vs. Llorente, 25 Phil. Rep., 554.) The writ of certiorari in so far as it was a method by which mere errors of an inferior court could be corrected no longer exists. Its place is now taken by the appeal. So long as the inferior court maintains jurisdiction, its errors can be corrected only by that method. The writ in this country has been confined to the correction of defects of jurisdiction solely and cannot be legally used for any other purpose. (Id.) The facts that the complaint in the justice's court appeared in its phraseology somewhat like a complaint in ejectment, and that the judgment of the justice's court took on also something of the color of a judgment in such an action; and the fact that such judgment contains some provisions which a justice's court is perhaps without authority to insert in its judgments is of no particular consequence in the proceeding before us. If the judgment of the justice's court was void, it was nevertheless appealable, although the losing party might have been able to rid himself of it by other means. Having been appealed, it stands upon substantially the same footing in the appellate court, so far as the appeal itself is concerned, as any other judgment of a justice's court and the jurisdiction of the appellate court in that appeal is as full and complete as it is in any other. It having been found that the contention of the respondents is correct, the petition is dismissed. So ordered. G.R. No. 164560 July 22, 2009 ANA DE GUIA SAN PEDRO and ALEJO DOPEO, Petitioners, vs. HON. FATIMA G. ASDALA, in her capacity as the Presiding Judge of the Regional Trial Court of Quezon City, Branch 87; HON. MANUEL TARO, in his capacity as the Presiding Judge of the Metropolitan Trial Court of Quezon City, Branch 42; and the HEIRS OF SPOUSES APOLONIO V. DIONISIO and VALERIANA DIONISIO (namely, ALLAN GEORGE R. DIONISIO and ELEANOR R. DIONISIO, herein represented by ALLAN GEORGE R. DIONISIO), Respondents. DECISION DEL CASTILLO, J.: This resolves the petition for certiorari under Rule 65 of the Rules of Court, praying that the Resolutions1 of the Court of Appeals (CA) dated September 15, 2003 and June 1, 2004, respectively, in CA-G.R. SP No. 78978, be reversed and set aside. The antecedent facts are as follows. Sometime in July 2001, private respondents, heirs of spouses Apolonio and ValerianaDionisio, filed with the Metropolitan Trial Court (MeTC) of Quezon City, Branch 42, a Complaint2 against herein petitioners and Wood Crest Residents Association, Inc., for AccionReivindicatoria, Quieting of Title and Damages, with Prayer for Preliminary Mandatory Injunction. Private respondents alleged that subject property located in Batasan Hills, Quezon City, with an assessed value of P32,100.00, was titled in the name of spouses Apolonio and ValerianaDionisio; but petitioners, with malice and evident bad faith, claimed that they were the owners of a parcel of land that encompasses and covers subject property. Private respondents had allegedly been prevented from entering, possessing and using subject property. It was further alleged in the Complaint that petitioners' Transfer Certificate of Title over their alleged property was spurious. Private respondents then prayed that they be declared the sole and absolute owners of the subject property; that petitioners be ordered to surrender possession of subject property to them; that petitioners and Wood Crest and/or its members be ordered to pay actual and moral damages, and attorney's fees. Petitioners, for their part, filed a Motion to Dismiss3 said complaint on the ground that the MeTC had no jurisdiction over the subject matter of the action, as the subject of litigation was incapable of pecuniary estimation. The MeTC then issued an Order4 dated July 4, 2002 denying the motion to dismiss, ruling that, under Batas Pambansa

(B.P.) Blg. 129, as amended, the MeTC had exclusive original jurisdiction over actions involving title to or possession of real property of small value. Petitioners' Motion for Reconsideration of said Order dated July 4, 2002 was denied. Petitioners assailed the aforementioned Order by filing a petition for certiorari with the Regional Trial Court (RTC) of Quezon City, Branch 87. However, in its Decision5 dated March 10, 2003, the RTC dismissed the petition, finding no grave abuse of discretion on the part of the MeTC Presiding Judge. The RTC sustained the MeTC ruling, stating that, in accordance with Section 33(3) of Republic Act (R.A.) No. 7691, amending B.P. Blg. 129, the MeTC had jurisdiction over the complaint for AccionReivindicatoria, as it involves recovery of ownership and possession of real property located in Quezon City, with an assessed value not exceeding P50,000.00. A Motion for Reconsideration6 of the Decision was filed by petitioners, but was denied in an Order7 dated July 3, 2003. Petitioners then filed with the Court of Appeals another petition for certiorari, insisting that both the MeTC and RTC acted with grave abuse of discretion amounting to lack or excess of jurisdiction by not ordering the dismissal of the complaint for AccionReivindicatoria, for lack of jurisdiction over the same. In the assailed CA Resolution dated September 15, 2003, the CA dismissed the petition outright, holding that certiorari was not available to petitioners as they should have availed themselves of the remedy of appeal. Petitioners' motion for reconsideration of the resolution of dismissal was denied per Resolution8 dated June 1, 2004. Thus, petitioners filed the instant petition and, in support thereof, they allege that: THE HONORABLE COURT OF APPEALS ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR IN (SIC) EXCESS OF JURISDICTION IN DENYING THE PETITION FOR CERTIORARI AND FOR FAILURE TO RESOLVE THE ISSUE RAISED IN THE CERTIORARI REGARDING THE JURISDICTION OF THE METROPOLITAN TRIAL COURT TO TAKE COGNIZANCE OF A CASE OF ACCION REINVINDICATORIA. THE HONORABLE PUBLIC RESPONDENT FATIMA GONZALESASDALA, AS PRESIDING JUDGE OF RTC BRANCH 87, QUEZON CITY, ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR IN EXCESS OF (SIC) JURISDICTION IN DISMISSING THE PETITION FOR CERTIORARI AND IN RESOLVING THAT A CASE OF ACCION REINVINDICATORIA IS WITHIN THE JURISDICTION OF THE METROPOLITAN TRIAL COURT. THE HONORABLE PUBLIC RESPONDENT MANUEL TARO AS PRESIDING JUDGE MeTC, BRANCH 42, QUEZON CITY, ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR IN (SIC) EXCESS OF JURISDICTION IN SO TAKING COGNIZANCE OF THE COMPLAINT FOR ACCION REINVINDICATORIA IN CIVIL CASE NO. 27434 ENTITLED, "HEIRS OF SPS. APOLONIO V. DIONISIO AND VALERIANA DIONISIO, ETC. VS. ANA DE GUIA SAN PEDRO, ET. AL."9 The present Petition for Certiorari is doomed and should not have been entertained from the very beginning. The settled rule is that appeals from judgments or final orders or resolutions of the CA should be by a verified petition for review on certiorari, as provided for under Rule 45 of the Revised Rules of Civil Procedure. Thus, in Pasiona, Jr. v. Court of Appeals,10 the Court expounded as follows: The aggrieved party is proscribed from assailing a decision or final order of the CA via Rule 65, because such recourse is proper only if the party has no plain, speedy and adequate remedy in the course of law. In this case, petitioner had an adequate remedy, namely, a petition for review on certiorari under Rule 45 of the Rules of Court. A petition for review on certiorari, not a special civil action for certiorari was, therefore, the correct remedy. x xxx Settled is the rule that where appeal is available to the aggrieved party, the special civil action for certiorari will not be entertained remedies of appeal and certiorari are mutually exclusive, not alternative or successive. Hence, certiorari is not and cannot be a substitute for a lost appeal, especially if one's own negligence or error in one's choice of remedy occasioned such loss or lapse. One of the requisites of certiorari is that there be no available appeal or any plain, speedy and adequate remedy. Where an appeal was available, as in this case, certiorari will not prosper, even if the ground therefor is grave abuse of discretion. Petitioner's resort to this Court by Petition for Certiorari was a fatal procedural error, and the instant petition must, therefore, fail.11 For the very same reason given above, the CA, therefore, acted properly when it dismissed the petition for certiorari

outright, on the ground that petitioners should have resorted to the remedy of appeal instead of certiorari. Verily, the present Petition for Certiorari should not have been given due course at all. Moreover, since the period for petitioners to file a petition for review on certiorari had lapsed by the time the instant petition was filed, the assailed CA Resolutions have attained finality.1avvphi1 Nevertheless, just to put the matter to rest, the Court reiterates the ruling in Heirs of Valeriano S. Concha, Sr. v. Spouses Lumocso,12 to wit: In a number of cases, we have held that actions for reconveyance of or for cancellation of title to or to quiet title over real property are actions that fall under the classification of cases that involve "title to, or possession of, real property, or any interest therein." x xxx x xx Thus, under the old law, there was no substantial effect on jurisdiction whether a case is one, the subject matter of which was incapable of pecuniary estimation, under Section 19(1) of B.P. 129, or one involving title to property under Section 19(2). The distinction between the two classes became crucial with the amendment introduced by R.A. No. 7691 in 1994, which expanded the exclusive original jurisdiction of the first level courts to include "all civil actions which involve title to, or possession of, real property, or any interest therein where the assessed value of the property or interest therein does not exceed Twenty thousand pesos (P20,000.00) or, in civil actions in Metro Manila, where such assessed value does not exceed Fifty thousand pesos (P50,000.00) exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses and costs." Thus, under the present law, original jurisdiction over cases the subject matter of which involves "title to, possession of, real property or any interest therein" under Section 19(2) of B.P. 129 is divided between the first and second level courts, with the assessed value of the real property involved as the benchmark. This amendment was introduced to "unclog the overloaded dockets of the RTCs which would result in the speedier administration of justice."13 Clearly, the RTC and the CA ruled correctly that the MeTC had jurisdiction over private respondents' complaint for AccionReivindicatoria. IN VIEW OF THE FOREGOING, the petition is DISMISSED for utter lack of merit. The Resolutions of the Court of Appeals in CA-G.R. SP No. 78978, dated September 15, 2003 and June 1, 2004, are AFFIRMED. SO ORDERED. G.R. No. 181642 January 29, 2009 RUFINO S. CAMUTIN, EDDIE P. CAMUTIN, GINA P. CAMUTIN, represented by NOMINARIO SARIA, as Attorney-in-fact, Petitioners, vs. SPS. NORBERTO POTENTE, and PASCUALA POTENTE, Respondents R E S O L U T I ON TINGA, J.: In a petition for review dated 18 February 2008,1 petitioners Rufino S. Camutin, Eddie P. Camutin and Gina P. Camutin, represented by their attorney-in-fact, NominarioSaria, assail the Order dated 23 January 2008 of the Regional Trial Court (RTC), Br. 23, TreceMartires City, Cavite in SP. Civil Action Case No. TMSCA-0010-07 dismissing the case.2 Petitioners were the registered owners of parcels of land covered by TCT Nos. 1117266, 1117267 and 1117268 in their names issued by the Register of Deeds of Cavite. Petitioners, who reside abroad, discovered upon coming back to the Philippines in 1998 that the house and warehouse of respondents Spouses Norberto and PascualaPotente were erected on the subject lots. Thereupon, respondents agreed to pay petitioners a P1,000.00 monthly rental starting 1 January 1998 for the use of the lots. They also agreed that should the properties be sold, respondents would have the right of first refusal and should respondents be unable to purchase the properties, they would peacefully vacate the premises. However, respondents failed and refused to pay the agreed rentals. Neither were they able to purchase the lots. Consequently, petitioners sold a portion of the lots to a third party who had it fenced. After the fence was erected, respondents in October 2006 filed a complaint for partition against petitioners and the buyer of the properties before the RTC of TreceMartires City, docketed as Civil Case No. TMSCA-0023-06.3 Respondents claimed they had a right over one-half of the property by

virtue of the acknowledgment of rights allegedly executed by petitioners deceased mother in 9 June 1970. In view of respondents continued refusal to vacate the property and petitioners consequent inability to deliver the property to the buyer free from any lien and existing improvement, petitioners filed on 12 October 2006 a complaint with the barangay to have respondents warehouse removed from the properties. During the conference on 13 October 2006, the parties agreed to wait for the outcome of the 17 October 2006 hearing on the case for partition before the RTC. After the 13 October 2006 conference, the parties no longer appeared before the Barangay.4 On 20 November 2006, petitioners filed a complaint for unlawful detainer against respondents before the Municipal Trial Court (MTC) of Gen. Trias, Cavite docketed as Civil Case No. 805.5 Respondents filed an Answer with Motion to Enforce the Agreement entered into before the LupongTagapamayapa of the Barangay.6 The MTC subpoenaed the members of the LupongTagapamayapa. The Barangay Chairperson clarified that the agreement was only to wait for the result of the RTCs 17 October 2006 hearing in the case for partition and not to wait for the termination of the case altogether.7 On 5 June 2007, the MTC issued an Order/Writ of Execution8 where it noted the pendency of Civil Case No. TMSCA-002306 before the RTC and the existence of an "amicable settlement to await first the resolution of the Court on the said pending civil case."9 Apparently, the MTC treated the 13 October 2006 agreement as an amicable settlement when the agreement was only to defer the barangay case pending the hearing before the RTC on 17 October 2006. The MTC thus ordered that the proceedings in the ejectment case be indefinitely suspended and archived subject to its revival upon the final resolution of Civil Case No. TMSCA-0023-06. The MTC also denied petitioners motion for reconsideration of the order on 16 August 2007.10 Petitioners filed a petition for certiorari under Rule 65 with the RTC of TreceMartires City, raffled to Br. 23. Respondents filed a motion to dismiss thereto, alleging that the petition for certiorari is a prohibited pleading. The RTC granted the motion to dismiss in the assailed Order dated 23 January 2008.111avvphi1.net Petitioners thus come before this Court, arguing that the RTC erred in dismissing the petition for certiorari and that the MTC likewise erred in suspending the proceedings in the case for unlawful detainer until the final resolution of Civil Case No. TMSCA-0023-06 before the RTC. They allege that the MTC erroneously interpreted the barangay agreement differently from the clear testimony of the Barangay Chairperson and acted capriciously and whimsically in ordering the case archived without basis. Consequently, it was only proper for them to file the petition for certiorari before the RTC, which should have exercised its authority over the MTC and corrected the error that the inferior court had committed instead of dismissing their petition. Petitioners thus prayed that the RTCs order be annulled and declared null and void. In their Comment dated 2 June 2008, respondents point out several technical errors supposedly committed by petitioners.12 First, petitioners have availed of the wrong remedy. Since the assailed Order dated 23 January 2008 was rendered by the RTC in the exercise of its original jurisdiction, respondents argue that the correct mode of review is an appeal to the Court of Appeals under Sec. 2(a), Rule 41 of the Rules of Court. Second, the petition raises questions of fact, not of law, as petitioners seek a review and reexamination of the testimony of the Barangay Chairperson. Third, petitioners ignored the rule on the hierarchy of courts for no apparent reason. And lastly, the petition is patently bereft of merit. Petitioners assert that the MTC has already made a finding of fact that there was an agreement between the parties to await the resolution of the case for partition before the RTC. In ordering the stay of the proceedings in the unlawful detainer case, the MTC merely ordered the implementation of the agreement between the parties. The dismissal by the RTC of petitioners petition for certiorari is also in full accord with the summary rules governing cases for ejectment and unlawful detainer, respondents conclude. In a Manifestation/Motion dated 24 November 2008, respondents state that the case at bar has become moot and academic in view of the dismissal of the unlawful detainer case filed before the MTC and on that basis seek the dismissal of the petition for review.13 Attached to the motion is a copy of the Order/Resolution dated 9 October 2008 issued by the MTC in Civil Case No. 805,14 where it dismissed the unlawful detainer case in view of its findings that: (1) the legal requirement of a barangay conciliation proceeding and/or barangay certificate to file action, a condition precedent for

filing the ejectment case was not complied with, the 13 October 2006 agreement not being the legal requirement contemplated by Sec. 12, Rule 70 of the Rules of Court; and (2) the fact of unilateral demolition of respondents warehouse and petitioners possession of the lots which have rendered the pending unlawful detainer case ineffectual and futile. Petitioners filed their Opposition to the Manifestation/Motion,15 claiming that respondents are misleading the Court into thinking that the dismissal of the case is already final when the truth is respondents are aware that petitioners had filed a Notice of Appeal of the RTCs Order of 9 October 2008 on 5 November 2008.16 The MTC, in its Joint Order dated 24 November 2008, gave due course to the notice of appeal and also ordered the elevation of the records of the case to the RTC.17 The petition should be dismissed for being moot and academic. Certiorari is an extraordinary remedy available only when there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law.18 While a petition for certiorari is not allowed against any interlocutory order issued by the court in the unlawful detainer or ejectment case,19 in the case at bar, the filing of a petition for certiorari challenging the MTCs Orders dated 5 June 2007 and 16 August 2007 cannot be deemed a dilatory remedy resorted to by petitioners. On the contrary, sustaining the MTCs orders would unnecessarily and unfairly delay the unlawful detainer case, a result contrary to the rules objective of speedy disposition of cases. Petitioners could also not appeal from the orders of the MTC because these only ordered the indefinite suspension and archiving of the case. The case was not resolved on the merits so there is actually no decision from which petitioners can appeal. Thus, the RTC could have validly ruled on the petition for certiorari instead of dismissing it on the ground that it is a prohibited pleading. However, the MTCs revival of the unlawful detainer case and its subsequent dismissal thereof on the grounds aforestated have rendered the resolution of the present petition for review superfluous and unnecessary. In their petition for review, petitioners seek the nullification of the RTCs orders and the subsequent recall of the MTCs orders suspending the proceedings in the unlawful detainer case and archiving it. The suspension of the unlawful detainer case has apparently been lifted and the case has been decided. There is thus no more need for the Court to decide the present petition on the merits. WHEREFORE, the petition for review is DENIED for being moot and academic. SO ORDERED. G.R. No. 157376 October 2, 2007 CORAZON C. SIM, petitioners, vs. NATIONAL LABOR RELATIONS COMMISSION and EQUITABLE PCI-BANK, respondents*. DECISION AUSTRIA-MARTINEZ, J.: Corazon Sim (petitioner) filed a case for illegal dismissal with the Labor Arbiter, alleging that she was initially employed by Equitable PCI-Bank (respondent) in 1990 as Italian Remittance Marketing Consultant to the Frankfurt Representative Office. Eventually, she was promoted to Manager position, until September 1999, when she received a letter from Remegio David -- the Senior Officer, European Head of PCIBank, and Managing Director of PCIB- Europe -informing her that she was being dismissed due to loss of trust and confidence based on alleged mismanagement and misappropriation of funds. Respondent denied any employer-employee relationship between them, and sought the dismissal of the complaint. On September 3, 2001, the Labor Arbiter rendered its Decision dismissing the case for want of jurisdiction and/or lack of merit.1 According to the Labor Arbiter: It should be stressed at this juncture that the labor relations system in the Philippines has no extraterritorial jurisdiction. It is limited to the relationship between labor and capital within the Philippines. Since complainant was hired and assigned in a foreign land, although by a Philippine Corporation, it follows that the law that govern their relationship is the law of the place where the employment was executed and her place of work or assignment. On this premise, the Italian law allegedly provides severance pay which was applied and extended to herein complainant (Annex "P", respondent's position paper).

As can be gleaned from the foregoing, a further elucidation on the matter would be an exercise in futility. Hence, this case should be dismissed for want of jurisdiction. Assuming for the sake of argument that this Office has jurisdiction over this case, still, this Office is inclined to rule in favor of the respondent. Complainant, as General Manager is an employee whom the respondent company reposed its trust and confidence. In other words, she held a position of trust. It is well-settled doctrine that the basic premise for dismissal on the ground of loss of confidence is that the employee concerned holds a position of trust and confidence. (National Sugar Refineries Corporation vs. NLRC, 286 SCRA 478.) x xx In this case, the respondent company had strong reason to believe that the complainant was guilty of the offense charged against her.2 On appeal, the National Labor Relations Commission (NLRC) affirmed the Labor Arbiter's Decision and dismissed petitioner's appeal for lack of merit.3 Without filing a motion for reconsideration with the NLRC, petitioner went to the Court of Appeals (CA) via a petition for certiorari under Rule 65 of the Rules of Court. In a Resolution dated October 29, 2002, the CA4 dismissed the petition due to petitioner's non-filing of a motion for reconsideration with the NLRC.5 Petitioner filed a motion for reconsideration but it was nonetheless denied by the CA per Resolution dated February 26, 2003. Hence, the present recourse under Rule 45 of the Rules of Court. Petitioner alleges that: I. The Court of Appeals departed from the accepted and usual concepts of remedial law when it ruled that the petitioner should have first filed a Motion for Reconsideration with the National Labor Relations Commission. II. The National Labor Relations Commission decided a question of jurisdiction heretofore not yet determined by the Court and decided the same in a manner not in accord with law when it ruled that it had no jurisdiction over a labor dispute between a Philippine corporation and its employee which it assigned to work for a foreign land.6 The pivotal question that needs to be resolved is whether or not a prior motion for reconsideration is indispensable for the filing of a petition for certiorari under Rule 65 of the Rules of Court with the CA. Under Rule 65, the remedy of filing a special civil action for certiorari is available only when there is no appeal; or any plain, speedy, and adequate remedy in the ordinary course of law.7 A "plain" and "adequate remedy" is a motion for reconsideration of the assailed order or resolution, the filing of which is an indispensable condition to the filing of a special civil action for certiorari.8 This is to give the lower court the opportunity to correct itself.9 There are, of course, exceptions to the foregoing rule, to wit: (a) where the order is a patent nullity, as where the court a quo has no jurisdiction; (b) where the questions raised in the certiorari proceedings have been duly raised and passed upon by the lower court, or are the same as those raised and passed upon in the lower court; (c) where there is an urgent necessity for the resolution of the question and any further delay would prejudice the interests of the Government or of the petitioner or the subject matter of the action is perishable; (d) where, under the circumstances, a motion for reconsideration would be useless; (e) where petitioner was deprived of due process and there is extreme urgency for relief; (f) where, in a criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial court is improbable; (g) where the proceedings in the lower court are a nullity for lack of due process; (h) where the proceeding was ex parte or in which the petitioner had no opportunity to object; and (i) where the issue raised is one purely of law or public interest is involved.10 Petitioner, however, failed to qualify her case as among the few exceptions. In fact, the Court notes that the petition filed before the CA failed to allege any reason why a motion for reconsideration was dispensed with by petitioner. It was only

in her motion for reconsideration of the CA's resolution of dismissal and in the petition filed in this case that petitioner justified her non-filing of a motion for reconsideration. Petitioner argues that filing a motion for reconsideration with the NLRC would be merely an exercise in futility and useless. But it is not for petitioner to determine whether it is so. As stressed in Cervantes v. Court of Appeals: It must be emphasized that a writ of certiorari is a prerogative writ, never demandable as a matter of right, never issued except in the exercise of judicial discretion. Hence, he who seeks a writ of certiorari must apply for it only in the manner and strictly in accordance with the provisions of the law and the Rules. Petitioner may not arrogate to himself the determination of whether a motion for reconsideration is necessary or not. To dispense with the requirement of filing a motion for reconsideration, petitioner must show a concrete, compelling, and valid reason for doing so, which petitioner failed to do. Thus, the Court of Appeals correctly dismissed the petition.11 (Emphasis supplied) Petitioner also contends that the issue at bench is purely a question of law, hence, an exception to the rule. A reading of the petition filed with the CA shows otherwise. The issues raised in this case are mixed questions of fact and law. There is a question of fact when doubt or difference arises as to the truth or falsehood of the alleged facts, and there is a question of law where the doubt or difference arises as to what the law is on a certain state of facts.12 Petitioner, aside from questioning the ruling of the NLRC sustaining the Labor Arbiter's view that it does not have any jurisdiction over the case, also questions the NLRC's ruling affirming the Labor Arbiter's conclusion that she was validly dismissed by respondent. The legality of petitioner's dismissal hinges on the question of whether there was an employeremployee relationship, which was denied by respondent; and, if in the affirmative, whether petitioner, indeed, committed a breach of trust and confidence justifying her dismissal. These are mixed questions of fact and law and, as such, do not fall within the exception from the filing of a motion for reconsideration. Consequently, the CA was not in error when it dismissed the petition. More so since petitioner failed to show any error on the part of the Labor Arbiter and the NLRC in ruling that she was dismissed for cause. The rule is that the Court is bound by the findings of facts of the Labor Arbiter or the NLRC, unless it is shown that grave abuse of discretion or lack or excess of jurisdiction has been committed by said quasi-judicial bodies.13 The Court will not deviate from said doctrine without any clear showing that the findings of the Labor Arbiter, as affirmed by the NLRC, are bereft of sufficient substantiation. Petitioner does not deny having withdrawn the amount of P3,000,000.00 lire from the bank's account. What petitioner submits is that she used said amount for the Radio Pilipinassa Roma radio program of the company. Respondent, however, countered that at the time she withdrew said amount, the radio program was already off the air. Respondent is a managerial employee. Thus, loss of trust and confidence is a valid ground for her dismissal.14 The mere existence of a basis for believing that a managerial employee has breached the trust of the employer would suffice for his/her dismissal.15 [w]hen an employee accepts a promotion to a managerial position or to an office requiring full trust and confidence, she gives up some of the rigid guaranties available to ordinary workers. Infractions which if committed by others would be overlooked or condoned or penalties mitigated may be visited with more severe disciplinary action. A company's resort to acts of self-defense would be more easily justified.16 The Court notes, however, a palpable error in the Labor Arbiter's disposition of the case, which was affirmed by the NLRC, with regard to the issue on jurisdiction. It was wrong for the Labor Arbiter to rule that "labor relations system in the Philippines has no extra-territorial jurisdiction."17 Article 217 of the Labor Code provides for the jurisdiction of the Labor Arbiter and the National Labor Relations Commission, viz.: ART. 217. Jurisdiction of Labor Arbiters and the Commission. (a) Except as otherwise provided under this Code the Labor Arbiters shall have original and exclusive jurisdiction to hear and decide, within thirty (30) calendar days after the submission of the case by the parties for decision without extension, even in the absence of stenographic notes, the

following cases involving all workers, whether agricultural or non-agricultural: 1. Unfair labor practice cases; 2. Termination disputes; 3. If accompanied with a claim for reinstatement, those cases that workers may file involving wage, rates of pay, hours of work and other terms and conditions of employment; 4. Claims for actual, moral, exemplary and other forms of damages arising from the employer-employee relations; 5. Cases arising from any violation of Article 264 of this Code, including questions involving the legality of strikes and lockouts; and 6. Except claims for Employees Compensation, Social Security, Medicare and maternity benefits, all other claims, arising from employer-employee relations, including those of persons in domestic or household service, involving an amount of exceeding five thousand pesos (P5,000.00) regardless of whether accompanied with a claim for reinstatement. (b) The commission shall have exclusive appellate jurisdiction over all cases decided by Labor Arbiters. Moreover, Section 10 of Republic Act (R.A.) No. 8042, or the Migrant Workers and Overseas Filipinos Act of 1995,18 provides: SECTION 10. Money Claims. Notwithstanding any provision of law to the contrary, the Labor Arbiters of the National Labor Relations Commission (NLRC) shall have the original and exclusive jurisdiction to hear and decide, within ninety (90) calendar days after the filing of the complaint, the claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary and other forms of damages. Also, Section 62 of the Omnibus Rules and Regulations Implementing R.A. No. 804219 provides that the Labor Arbiters of the NLRC shall have the original and exclusive jurisdiction to hear and decide all claims arising out of employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary and other forms of damages, subject to the rules and procedures of the NLRC. Under these provisions, it is clear that labor arbiters have original and exclusive jurisdiction over claims arising from employer-employee relations, including termination disputes involving all workers, among whom are overseas Filipino workers.20 In Philippine National Bank v. Cabansag, the Court pronounced: x xxWhether employed locally or overseas, all Filipino workers enjoy the protective mantle of Philippine labor and social legislation, contract stipulations to the contrary notwithstanding. This pronouncement is in keeping with the basic public policy of the State to afford protection to labor, promote full employment, ensure equal work opportunities regardless of sex, race or creed, and regulate the relations between workers and employers. For the State assures the basic rights of all workers to self-organization, collective bargaining, security of tenure, and just and humane conditions of work [Article 3 of the Labor Code of the Philippines; See also Section 18, Article II and Section 3, Article XIII, 1987 Constitution]. This ruling is likewise rendered imperative by Article 17 of the Civil Code which states that laws "which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determination or conventions agreed upon in a foreign country."21 (Emphasis supplied) In any event, since the CA did not commit any error in dismissing the petition before it for failure to file a prior motion for reconsideration with the NLRC, and considering that the Labor Arbiter and the NLRC's factual findings as regards the validity of petitioner's dismissal are accorded great weight and respect and even finality when the same are supported by substantial evidence, the Court finds no compelling reason to relax the rule on the filing of a motion for reconsideration prior to the filing of a petition for certiorari.

WHEREFORE, the petition is DENIED. Costs against petitioner. SO ORDERED. [G.R. No. 169813. September 5, 2006] SAMSON S. ALCANTARA, ED VINCENT S. ALBANO AND RENE B. GOROSPE, PETITIONERS, versus EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE SECRETARY, ROMULO NERI, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF BUDGET AND MANAGEMENT, CONSULTATIVE COMMISSION, AND JOSE ABUEVA, AS CHAIRMAN OF THE CONSULTATIVE COMMISSION, RESPONDENTS En Banc Sirs/Mesdames: Quoted hereunder, for your information, is a resolution of this Court dated SEPT. 5, 2006. G.R. No. 169813 (Samson S. Alcantara, Ed Vincent S. Albano and Rene B. Gorospe, Petitioners, versus Eduardo Ermita, In his Capacity as Executive Secretary, Romulo Neri, In his Capacity as Secretary of the Department of Budget and Management, Consultative Commission, and Jose Abueva, as Chairman of the Consultative Commission, Respondents.) At bar is a Petition for Prohibition[1]cralaw seeking to prevent respondents form implementing Executive Order No. 453, dated August 19, 2005 creating a consultative commission to propose the revision of the 1987 Constitution in consultation with various sectors of society. The facts are: On August 19, 2005, President Gloria Macapagal-Arroyo issued Executive Order (E.O.) No. 453 entitled "CREATING A CONSULTATIVE COMMISSION TO PROPOSE THE REVISION OF THE 1987 CONSTITUTION ON CONSULTATION WITH VARIOUS SECTORS OF SOCIETY." The pertinent provisions of E.O. 453 read: WHEREAS, our present political and economic systems need structural reforms to respond to inward and global changes to make them relevant and competitive; WHEREAS, applying the appropriate solutions to our chronic political, economic and cultural problems depends, to a large extent, on effective and accountable political institutions, a decentralized government that is more responsive and accountable to the people and allows them to participate effectively in its decisions and the making of social and economic policies; WHEREAS, Constitutional reform is a public commitment the President made in 2003-2004, subsequently incorporated in the Medium Term Public Investment Program, 2005-2010, which she deems to be of the highest priority, as stated in her State of the Nation Address on July 25, 2005; WHEREAS, there is a need to bring the great charter debate to the people and involve them in the study and formulation of amendments or revisions to the 1987 Constitution, NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the Philippines, by virtue of the powers vested in me, do hereby order: SECTION 1. Creation and Mandate. - There is hereby created a Consultative Commission which conduct consultations and studies and propose amendments and revisions in the 1987 Constitution, principally the proposals to shift from the presidential-unitary system to a parliamentaryfederal system of government, to refocus economic policies in the Constitution to match the country's vision for global competitiveness, and to review economic policies which tend to hinder the country's global competitiveness and adversely affect the people's welfare. For this purpose, the Consultative Commission shall review existing and new Constitutional reform proposals and hold nationwide consultations with various sectors of society, such as farmers, fishermen, workers, students, lawyers, professionals, business, military, academic, ethnic, and other similar groups, including the different leagues of Local Government Units and members of Congress and the Judiciary. SECTION 2. Composition. - The Consultative Commission shall be composed of not more than fifty (50) members representing the national, regional, and sectoral constituencies, who shall be appointed by the President. The national representatives shall, in addition to the qualifications hereinafter provided, be men or women of national standing, experienced in government or with recognized competence in their respective fields. The regional representatives are to be apportioned among the different regions. Sectoral representatives shall be chosen from, among other sectors, farmers, fishermen, workers, students, lawyers,

professionals, business, military, academic, ethnic, and other similar groups. SECTION 3. Nominations. - Nominations of members of the Consultative Commission may be made by concerned groups of individuals. All nominations shall be submitted to the Office of the President not later than August 31, 2005. x xx SECTION 4. Qualifications. - No person shall be appointed member of the Consultative Commission unless he is a citizen of the Philippines, a qualified voter, of recognized probity, competence, honesty and patriotism. SECTION 5. Organization and Proceedings. - The Executive Secretary shall preside at the initial meeting until the Consultative Commission elects a Chairman to head and preside over its meetings, conferences and other proceedings. The election of a Chairman, Vice-Chairman, Secretary, and other officers from among its members shall be the first order of business at the opening session. The plenary sessions of the Consultative Commission shall be public and duly recorded. x xx SECTION 6. Technical and Staff Support. - The Presidential Management Staff ("PMS") shall assist in establishing a Secretariat for the technical and staff support of the Consultative Commission. x xx. x xx SECTION 7. Appropriation. - The initial amount of Ten Million Pesos (P10,000,000.00) is hereby appropriated for the operational expenses of the Consultative Commission to be sourced from available funds, subject to usual accounting and auditing rules and regulations. SECTION 8. Time Frame. - The Consultative Commission shall commence its work before September 10, 2005 and shall endeavor to complete the same before December 15, 2005. The Consultative Commission shall present to the President its report and proposed revision of the 1987 Constitution for proper transmittal to Congress. SECTION 9. Effectivity. - This Executive Order shall take effect immediately. DONE in the City of Manila, this 19th day of August, in the year of our Lord, two thousand and five. x xx Shortly thereafter, President Macapagal-Arroyo designated forty nine (49) persons from various sectors of society to sit as members of the Consultative Commission. On September 28, 2005, the Consultative Commission held its first formal meeting and elected its officers. Jose V. Abueva, former President of the University of the Philippines, was elected Chairman. Immediately thereafter, the Consultative Commission conducted its first plenary session. Beginning October 10, 2005, the different committees of the Commission conducted several public hearings and consultative meetings in the cities of Cagayan de Oro, Cebu, Davao, Iloilo, Puerto Princesa, Tacloban, and Zamboanga. On October 13, 2005, lawyers Samson S. Alcantara, Ed Vincent S. Albano, and Rene B. Gorospe, herein petitioners, filed with this Court the instant petition for prohibition in their capacity as Filipino citizens and taxpayers. They alleged that under Article XVII of the Constitution, President MacapagalArroyo has no authority to participate in the process to amend or revise the Constitution. Likewise, she has no power to create a Consultative Commission to study and propose amendments and allocate public funds for its operations. On October 24, 2005, President Macapagal-Arroyo issued Executive Order No. 453-A which amended Section 2 of E.O. 453 by increasing the membership of the Consultative Commission from 50 to 55. On December 16, 2005, the Consultative Commission submitted to the President its report recommending changes in the charter. Then the Consultative Commission ceased to exist. The instant petition has been overtaken by subsequent events. The Consultative Commission is now defunct. Hence, there is no longer any issue to be resolved by this Court. This case has become moot and academic. A case is moot and academic when there is no more actual controversy between the parties or no useful purpose can be served in passing upon the merits.[2]cralaw As a general rule, courts of justice are constituted to pass upon substantial rights. Hence, they will not consider questions which are moot, as the resolution of the same will have no practical use or value.[3]cralaw The mootness of the case is evident in the relief prayed for by the petitioners, namely, a writ of prohibition. Section 2, Rule 65 of the 1997 Rules of Civil Procedure, as amended, provides:

SEC. 2. Petition for prohibition. - When the proceedings of any tribunal, corporation, board, officer, or person, whether exercising judicial, quasi-judicial, or ministerial functions, are without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent to desist from further proceedings in the action or matter specified therein, or otherwise granting such incidental reliefs as law and justice may require. From the foregoing, it is evident that the writ of prohibition is one which commands the person to whom it is directed not to do something which he is about to do. If the thing is already done, it is obvious that the writ of prohibition cannot undo it, for that would require an affirmative act, and the only effect of a writ of prohibition is to suspend all action, and to prevent any further proceeding in the prohibited direction.[4]cralaw In other words, prohibition is a preventive remedy to restrain future action. Prohibition, as a rule, does not lie to restrain an act that is already a fait accompli.[5]cralaw The Consultative Commission has been dissolved. Consequently, we find no more reason to resolve the constitutional issues raised by petitioners. WHEREFORE, we DISMISS the instant petition. No pronouncement as to costs. Very truly yours, (Sgd.) MA. LUISA D. VILLARAMA Clerk of Court G.R. No. 132248 January 19, 2000 HON. ERLINDA C. PEFIANCO, in her capacity as Secretary of the Department of Education, Culture and Sports, petitioner, vs. MARIA LUISA C. MORAL, respondent. BELLOSILLO, J.: SECRETARY ERLINDA C. PEFIANCO of the Department of Education, Culture and Sports (DECS) seeks to nullify through this petition for review the Decision of the Court of Appeals1 dismissing the certiorari filed by then DECS Secretary Ricardo T. Gloria for lack of merit, as well as its Resolution dated 13 January 1998 denying reconsideration thereof.1wphi1.nt On 26 July 1994 former DECS Secretary Ricardo T. Gloria filed a complaint against respondent Maria Luisa C. Moral, then Chief Librarian, Catalog Division, of the National Library for dishonesty, grave misconduct and conduct prejudicial to the best interest of the service. The complaint charged respondent Moral with the pilferage of some historical documents from the vaults of the Filipiniana and Asian Division (FAD) of the National Library which were under her control and supervision as Division Chief and keeping in her possession, without legal authority and justification, some forty-one (41) items of historical documents which were missing from the FAD vaults of the National Library. The DECS Investigating Committee conducted several hearings on the complaint. Atty. Jose M. Diaz, Special Prosecutor from the Department of Justice, represented the DECS Secretary in the administrative case while respondent was represented by her own private counsel. On 25 September 1996 Secretary Gloria issued a resolution finding respondent "guilty of the administrative offenses of dishonesty, grave misconduct and conduct prejudicial to the best interest of the service, for the commission of pilferage of historical documents of the national library, to the prejudice of the national library in particular, and the country in general." She was ordered dismissed from the government service with prejudice to reinstatement and forfeiture of all her retirement benefits and other remunerations. On 30 September 1996 respondent received a copy of the resolution. Thereafter, or on 1 October 1996, she received another resolution correcting the typographical errors found on the first resolution. Respondent did not appeal the judgment. On 2 October 1996 respondent filed a Petition for the Production of the DECS Investigation Committee Report purportedly to "guide [her] on whatever action would be most appropriate to take under the circumstances."2 Her petition was, however, denied. Unfazed, she filed a Reiteration for DECS Committee Report and DECS Resolution dated September 25, 1996, which Secretary Gloria similarly denied in his Order of 23 October 1996. Respondent moved for reconsideration but the motion was merely "noted" in view of the warning in the 23 October 1996 Order that the denial of the request for the production

of the Investigation Committee Report was final.3 As earlier stated, respondent did not appeal the Resolution dated 30 September 1996 dismissing her from the service. Instead, she instituted an action for mandamus and injunction before the regular courts against Secretary Gloria praying that she be furnished a copy of the DECS Investigation Committee Report and that the DECS Secretary be enjoined from enforcing the order of dismissal until she received a copy of the said report.4 Secretary Gloria moved to dismiss the mandamus case principally for lack of cause of action, but the trial court denied his motion. Thus, he elevated the case to the Court of Appeals on certiorari imputing grave abuse of discretion to the trial court. In its assailed Decision of 24 November 1997 the appellate court sustained the trial court and dismissed Secretary Gloria's petition for lack of merit holding that FIRST. Petitioner Gloria acted prematurely, not having filed any motion for reconsideration of the assailed order with the respondent judge before filing the instant petition to this Court. This constitutes a procedural infirmity . . . . SECOND. Even if the aforesaid procedural defect were to be disregarded, the petition at hand, nevertheless, must fail. The denial of the motion to dismiss is an option available to the respondent judge. Such order is interlocutory and thus not appealable. The proper recourse of the aggrieved party is to file an answer and interpose, as defenses, the objection(s) raised by him in said motion to dismiss, then proceed with the trial and, in case of adverse decision, to elevate the entire case on appeal in due course. His motion for reconsideration having been denied by the Court of Appeals on 13 January 1998, Secretary Gloria filed the instant petition for review. Meanwhile, Secretary Gloria was replaced by Secretary Erlinda C. Pefianco who was thereafter substituted in the case for Secretary Gloria. The issues before us are: whether the Court of Appeals erred in dismissing the petition for certiorari for failure of petitioner to file a motion for reconsideration of the order denying the motion to dismiss, and in holding that the trial court did not commit grave abuse of discretion in denying the motion to dismiss. Petitioner contends that there is no need to file a motion for reconsideration as the trial court's order denying the motion to dismiss is a patent nullity, and a motion for reconsideration would practically be a useless ceremony as the trial court virtually decided the case, and that there is no law requiring the DECS to furnish respondent with a copy of the Report of the DECS Investigation Committee so that the petition for mandamus has no leg to stand on hence should have been dismissed for lack of cause of action. Excepting thereto respondent argues that the denial of the motion to dismiss is interlocutory in nature as it did not dispose of the case on the merits, and petitioner still has a residual remedy, i.e., to file an answer, thus her substantive rights have not been violated as she contends; that respondent is clearly entitled to the remedy of mandamus to protect her rights; and, that petitioner has not shown any law, DECS order or regulation prohibiting the release of the petitioned documents for reasons of confidentiality or national security. We grant the petition. Section 3, Rule 16, of the 1997 Rules of Civil Procedure mandatorily requires that the resolution on a motion to dismiss should clearly and distinctly state the reasons therefor After hearing, the court may dismiss the action or claim, deny the motion or order the amendment of the pleading. The court shall not defer the resolution of the motion for the reason that the ground relied upon is not indubitable. In every case, the resolution shall state clearly and distinctly the reasons therefor (Emphasis supplied). Clearly, the above rule proscribes the common practice of perfunctorily denying motions to dismiss "for lack of merit." Such cavalier disposition often creates difficulty and misunderstanding on the part of the aggrieved party in taking recourse therefrom and likewise on the higher court called upon to resolve the issue, usually on certiorari. The challenged Order of the trial court dated 23 April 1997 falls short of the requirements prescribed in Rule 16. The Order merely discussed the general concept of mandamus and the trial court's jurisdiction over the rulings and actions of administrative agencies without stating the basis why petitioner's motion to dismiss was being denied. We are reproducing hereunder for reference the assailed Order

This treats of the Motion to Dismiss filed by respondent Gloria on 14 March 1997 to which petitioner filed their (sic) opposition on April 8, 1997. Respondent premised his motion on the following grounds: (a) Mandamus does not lie to compel respondent DECS Secretary to release the Report of the DECS Investigating Committee because the Petition does not state a cause of action; (b) The DECS Resolution dismissing petitioner is legal and valid, and therefore, the writ of preliminary injunction cannot be granted to enjoin its execution; while petitioner alleged among others that she has no plain, speedy and adequate remedy in the ordinary course of law. Mandamus is employed to compel the performance, when refused, of a ministerial duty, this being its main objective. "Purely ministerial" are acts to be performed in a given state of facts, in a prescribed manner in obedience to the mandate of legal authority without regard to the exercise of his own judgment upon the propriety or impropriety of the act done. While the discretion of a Constitutional Commission cannot be controlled by mandamus . . . . the court can decide whether the duty is discretionary or ministerial . . . . Generally, courts have no supervising power over the proceedings and actions of the administrative departments of the government. This is generally true with respect to acts involving the exercise of judgment or discretion, and finding of fact. Findings of fact by an administrative board or official, following a hearing, are binding upon the courts and will not be disturbed except where the board or official has gone beyond his statutory authority, exercised unconstitutional powers or clearly acted arbitrarily and without regard to his duty or with grave abuse of discretion or as when there is capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction as where the power is exercised in an arbitrary or despotic manner by reason of passion, prejudice or personal hostility amounting to an evasion of positive duty, or to a virtual refusal to perform the duty enjoined, or to act at all in contemplation of law . . . . WHEREFORE, in regard to the foregoing, the motion to dismiss by herein respondent is hereby denied for lack of merit and is hereby ordered to file its (sic) responsive pleadings within ten (10) days from receipt of this Order. Copy furnished petitioner who is likewise given ten (10) days to submit his (sic) comment or opposition. Indeed, we cannot even discern the bearing or relevance of the discussion therein on mandamus, vis-a-vis the ground relied upon by petitioner in her motion to dismiss, i.e., lack of cause of action, and the dispositive portion of the order. The order only confused petitioner and left her unable to determine the errors which would be the proper subject of her motion for reconsideration. Judges should take pains in crafting their orders, stating therein clearly and comprehensively the reasons for their issuance, which are necessary for the full understanding of the action taken. Where the court itself has not stated any basis for its order, to be very strict in requiring a prior motion for reconsideration before resort to higher courts on certiorari may be had, would be to expect too much. Since the judge himself was not precise and specific in his order, a certain degree of liberality in exacting from petitioner strict compliance with the rules was justified. Ordinarily, certiorari will not lie unless the lower court, through a motion for reconsideration, has been given an opportunity to correct the imputed errors on its act or order. However, this rule is not absolute and is subject to wellrecognized exceptions. Thus, when the act or order of the lower court is a patent nullity for failure to comply with a mandatory provision of the Rules; as in this case, a motion for reconsideration may be dispensed with and the aggrieved party may assail the act or order of the lower court directly on certiorari.5 On the second issue, the nature of the remedy of mandamus has been the subject of discussions in several cases. It is settled that mandamus is employed to compel the performance, when refused, of a ministerial duty, this being its main objective. It does not lie to require anyone to fulfill a discretionary duty. It is essential to the issuance of a writ of mandamus that petitioner should have a clear legal right to the thing demanded and it must be the imperative duty of the respondent to perform the act required. It never issues in

doubtful cases. While it may not be necessary that the duty be absolutely expressed, it must nevertheless be clear. The writ will not issue to compel an official to do anything which is not his duty to do or which is his duty not to do, or give to the applicant anything to which he is not entitled by law. The writ neither confers powers nor imposes duties. It is simply a command to exercise a power already possessed and to perform a duty already imposed.6 In her petition for mandamus, respondent miserably failed to demonstrate that she has a clear legal right to the DECS Investigation Committee Report and that it is the ministerial duty of petitioner DECS Secretary to furnish her with a copy thereof. Consequently, she is not entitled to the writ prayed for. Primarily, respondent did not appeal to the Civil Service Commission the DECS resolution dismissing her from the service.7 By her failure to do so, nothing prevented the DECS resolution from becoming final and executory. Obviously, it will serve no useful purpose now to compel petitioner to furnish her with a copy of the investigation report. Moreover, there is no law or rule which imposes a legal duty on petitioner to furnish respondent with a copy of the investigation report. On the contrary, we unequivocally held in Ruiz v. Drilon8 that a respondent in an administrative case is not entitled to be informed of the findings and recommendations of any investigating committee created to inquire into charges filed against him. He is entitled only to the administrative decision based on substantial evidence made of record, and a reasonable opportunity to meet the charges and the evidence presented against her during the hearings of the investigation committee. Respondent no doubt had been accorded these rights. Respondent's assertion that the investigation report would be used "to guide [her] on what action would be appropriate to take under the circumstances,"9 hardly merits consideration. It must be stressed that the disputed investigation report is an internal communication between the DECS Secretary and the Investigation Committee, and it is not generally intended for the perusal of respondent or any other person for that matter, except the DECS Secretary. As correctly ruled by Secretary Gloria in his Order of 2 October 1996 Respondent's (Moral) counsel is reminded that the Report of the DECS Investigating Committee is not an integral part of the Decision itself . . . . [t]he report is an internal communication between the Investigating Committee and the DECS Secretary, and, therefore, confidential until the latter had already read and used the same in making his own determination of the facts and applicable law of the case, to be expressed in the Decision he may make. The Report remains an internal and confidential matter to be used as part although not controlling of the basis for the decision. Only when the party adversely affected by the decision has filed and perfected an appeal to the Civil Service Commission may all the records of the case, including the aforesaid Report be forwarded to the CSC. In the latter appellate tribunal, the respondent's counsel may be allowed to read and/or be given a copy of the Report to enable the appellant to file an intelligent and exhaustive appellant's Brief Memorandum. More importantly, the DECS resolution is complete in itself for purposes of appeal to the Civil Service Commission, that is, it contains sufficient findings of fact and conclusion of law upon which respondent's removal from office was grounded. This resolution, and not the investigation report, should be the basis of any further remedies respondent might wish to pursue, and we cannot see how she would be prejudiced by denying her access to the investigation report. In fine, the trial court's Order of 23 April 1997 denying petitioner's motion to dismiss is not a mere error of judgment as the Court of Appeals held, but a grave abuse of discretion amounting to lack or excess of jurisdiction because, to capsulize, the Order is a patent nullity for failure to comply with the provisions of the rules requiring that a resolution on a motion to dismiss should clearly and distinctly state the reasons therefor; and, respondent is clearly not entitled to the writ of mandamus as she did not appeal the DECS resolution dismissing her from service, and there is no law or rule which imposes a ministerial duty on petitioner to furnish respondent with a copy of the investigation report, hence her petition clearly lacked a cause of action. In such instance, while the trial court's order is merely interlocutory and nonappealable, certiorari is the proper remedy to annul the same since it is rendered with grave abuse of discretion.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals of 24 November 1997 sustaining the trial court's denial of petitioner's motion to dismiss, as well as its Resolution dated 13 January 1998 denying reconsideration, is REVERSED and SET ASIDE. The petition for mandamus filed by respondent before the court a quo to compel petitioner to furnish her a copy of the DECS Investigation Committee Report is DISMISSED for want of cause of action.1wphi1.nt SO ORDERED. G.R. No. 158088 July 6, 2005 SENATOR AQUILINO PIMENTEL, JR., REP. ETTA ROSALES, PHILIPPINE COALITION FOR THE ESTABLISHMENT OF THE INTERNATIONAL CRIMINAL COURT, TASK FORCE DETAINEES OF THE PHILIPPINES, FAMILIES OF VICTIMS OF INVOLUNTARY DISAPPEARANCES, BIANCA HACINTHA R. ROQUE, HARRISON JACOB R. ROQUE, AHMED PAGLINAWAN, RON P. SALO,* LEAVIDES G. DOMINGO, EDGARDO CARLO VISTAN, NOEL VILLAROMAN, CELESTE CEMBRANO, LIZA ABIERA, JAIME ARROYO, MARWIL LLASOS, CRISTINA ATENDIDO, ISRAFEL FAGELA, and ROMEL BAGARES, Petitioners, vs. OFFICE OF THE EXECUTIVE SECRETARY, HON. ALBERTO ROMULO, and the DEPARTMENT OF FOREIGN AFFAIRS, represented by HON. BLAS OPLE, Respondents. DECISION PUNO J.: This is a petition for mandamus filed by petitioners to compel the Office of the Executive Secretary and the Department of Foreign Affairs to transmit the signed copy of the Rome Statute of the International Criminal Court to the Senate of the Philippines for its concurrence in accordance with Section 21, Article VII of the 1987 Constitution. The Rome Statute established the International Criminal Court which "shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern xxx and shall be complementary to the national criminal jurisdictions."1 Its jurisdiction covers the crime of genocide, crimes against humanity, war crimes and the crime of aggression as defined in the Statute.2 The Statute was opened for signature by all states in Rome on July 17, 1998 and had remained open for signature until December 31, 2000 at the United Nations Headquarters in New York. The Philippines signed the Statute on December 28, 2000 through Charge d Affairs Enrique A. Manalo of the Philippine Mission to the United Nations.3 Its provisions, however, require that it be subject to ratification, acceptance or approval of the signatory states.4 Petitioners filed the instant petition to compel the respondents the Office of the Executive Secretary and the Department of Foreign Affairs to transmit the signed text of the treaty to the Senate of the Philippines for ratification. It is the theory of the petitioners that ratification of a treaty, under both domestic law and international law, is a function of the Senate. Hence, it is the duty of the executive department to transmit the signed copy of the Rome Statute to the Senate to allow it to exercise its discretion with respect to ratification of treaties. Moreover, petitioners submit that the Philippines has a ministerial duty to ratify the Rome Statute under treaty law and customary international law. Petitioners invoke the Vienna Convention on the Law of Treaties enjoining the states to refrain from acts which would defeat the object and purpose of a treaty when they have signed the treaty prior to ratification unless they have made their intention clear not to become parties to the treaty.5 The Office of the Solicitor General, commenting for the respondents, questioned the standing of the petitioners to file the instant suit. It also contended that the petition at bar violates the rule on hierarchy of courts. On the substantive issue raised by petitioners, respondents argue that the executive department has no duty to transmit the Rome Statute to the Senate for concurrence. A petition for mandamus may be filed when any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station.6We have held that to be given due course, a petition for mandamus must have been instituted by a party aggrieved by the alleged inaction of any tribunal, corporation, board or person which unlawfully excludes said party from the enjoyment of a legal right. The petitioner in every case must therefore be an aggrieved party in the sense that he possesses a clear legal right to be enforced and a direct interest in the duty or act to be performed.7The Court will exercise its power of judicial

review only if the case is brought before it by a party who has the legal standing to raise the constitutional or legal question. "Legal standing" means a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the government act that is being challenged. The term "interest" is material interest, an interest in issue and to be affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental interest.8 The petition at bar was filed by Senator Aquilino Pimentel, Jr. who asserts his legal standing to file the suit as member of the Senate; Congresswoman Loretta Ann Rosales, a member of the House of Representatives and Chairperson of its Committee on Human Rights; the Philippine Coalition for the Establishment of the International Criminal Court which is composed of individuals and corporate entities dedicated to the Philippine ratification of the Rome Statute; the Task Force Detainees of the Philippines, a juridical entity with the avowed purpose of promoting the cause of human rights and human rights victims in the country; the Families of Victims of Involuntary Disappearances, a juridical entity duly organized and existing pursuant to Philippine Laws with the avowed purpose of promoting the cause of families and victims of human rights violations in the country; Bianca HacinthaRoque and Harrison Jacob Roque, aged two (2) and one (1), respectively, at the time of filing of the instant petition, and suing under the doctrine of inter-generational rights enunciated in the case of Oposa vs. Factoran, Jr.;9 and a group of fifth year working law students from the University of the Philippines College of Law who are suing as taxpayers. The question in standing is whether a party has alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.10 We find that among the petitioners, only Senator Pimentel has the legal standing to file the instant suit. The other petitioners maintain their standing as advocates and defenders of human rights, and as citizens of the country. They have not shown, however, that they have sustained or will sustain a direct injury from the non-transmittal of the signed text of the Rome Statute to the Senate. Their contention that they will be deprived of their remedies for the protection and enforcement of their rights does not persuade. The Rome Statute is intended to complement national criminal laws and courts. Sufficient remedies are available under our national laws to protect our citizens against human rights violations and petitioners can always seek redress for any abuse in our domestic courts. As regards Senator Pimentel, it has been held that "to the extent the powers of Congress are impaired, so is the power of each member thereof, since his office confers a right to participate in the exercise of the powers of that institution."11 Thus, legislators have the standing to maintain inviolate the prerogatives, powers and privileges vested by the Constitution in their office and are allowed to sue to question the validity of any official action which they claim infringes their prerogatives as legislators. The petition at bar invokes the power of the Senate to grant or withhold its concurrence to a treaty entered into by the executive branch, in this case, the Rome Statute. The petition seeks to order the executive branch to transmit the copy of the treaty to the Senate to allow it to exercise such authority. Senator Pimentel, as member of the institution, certainly has the legal standing to assert such authority of the Senate. We now go to the substantive issue. The core issue in this petition for mandamus is whether the Executive Secretary and the Department of Foreign Affairs have a ministerial duty to transmit to the Senate the copy of the Rome Statute signed by a member of the Philippine Mission to the United Nations even without the signature of the President. We rule in the negative. In our system of government, the President, being the head of state, is regarded as the sole organ and authority in external relations and is the countrys sole representative with foreign nations.12 As the chief architect of foreign policy, the President acts as the countrys mouthpiece with respect to international affairs. Hence, the President is vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations.13 In the realm of treaty-making, the President has the sole authority to negotiate with other states. Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the Constitution provides a limitation to his power by requiring the concurrence of 2/3 of

all the members of the Senate for the validity of the treaty entered into by him. Section 21, Article VII of the 1987 Constitution provides that "no treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate." The 1935 and the 1973 Constitution also required the concurrence by the legislature to the treaties entered into by the executive. Section 10 (7), Article VII of the 1935 Constitution provided: Sec. 10. (7) The President shall have the power, with the concurrence of two-thirds of all the Members of the Senate, to make treaties xxx. Section 14 (1) Article VIII of the 1973 Constitution stated: Sec. 14. (1) Except as otherwise provided in this Constitution, no treaty shall be valid and effective unless concurred in by a majority of all the Members of the BatasangPambansa. The participation of the legislative branch in the treatymaking process was deemed essential to provide a check on the executive in the field of foreign relations.14By requiring the concurrence of the legislature in the treaties entered into by the President, the Constitution ensures a healthy system of checks and balance necessary in the nations pursuit of political maturity and growth.15 In filing this petition, the petitioners interpret Section 21, Article VII of the 1987 Constitution to mean that the power to ratify treaties belongs to the Senate. We disagree. Justice Isagani Cruz, in his book on International Law, describes the treaty-making process in this wise: The usual steps in the treaty-making process are: negotiation, signature, ratification, and exchange of the instruments of ratification. The treaty may then be submitted for registration and publication under the U.N. Charter, although this step is not essential to the validity of the agreement as between the parties. Negotiation may be undertaken directly by the head of state but he now usually assigns this task to his authorized representatives. These representatives are provided with credentials known as full powers, which they exhibit to the other negotiators at the start of the formal discussions. It is standard practice for one of the parties to submit a draft of the proposed treaty which, together with the counterproposals, becomes the basis of the subsequent negotiations. The negotiations may be brief or protracted, depending on the issues involved, and may even "collapse" in case the parties are unable to come to an agreement on the points under consideration. If and when the negotiators finally decide on the terms of the treaty, the same is opened for signature. This step is primarily intended as a means of authenticating the instrument and for the purpose of symbolizing the good faith of the parties; but, significantly, it does not indicate the final consent of the state in cases where ratification of the treaty is required. The document is ordinarily signed in accordance with the alternat, that is, each of the several negotiators is allowed to sign first on the copy which he will bring home to his own state. Ratification, which is the next step, is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representatives. The purpose of ratification is to enable the contracting states to examine the treaty more closely and to give them an opportunity to refuse to be bound by it should they find it inimical to their interests. It is for this reason that most treaties are made subject to the scrutiny and consent of a department of the government other than that which negotiated them. x xx The last step in the treaty-making process is the exchange of the instruments of ratification, which usually also signifies the effectivity of the treaty unless a different date has been agreed upon by the parties. Where ratification is dispensed with and no effectivity clause is embodied in the treaty, the instrument is deemed effective upon its signature.16 [emphasis supplied] Petitioners arguments equate the signing of the treaty by the Philippine representative with ratification. It should be underscored that the signing of the treaty and the ratification are two separate and distinct steps in the treaty-making process. As earlier discussed, the signature is primarily intended as a means of authenticating the instrument and as a symbol of the good faith of the parties. It is usually performed by the states authorized representative in the diplomatic mission. Ratification, on the other hand, is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representative. It is generally held to be an executive act, undertaken by the head

of the state or of the government.17 Thus, Executive Order No. 459 issued by President Fidel V. Ramos on November 25, 1997 provides the guidelines in the negotiation of international agreements and its ratification. It mandates that after the treaty has been signed by the Philippine representative, the same shall be transmitted to the Department of Foreign Affairs. The Department of Foreign Affairs shall then prepare the ratification papers and forward the signed copy of the treaty to the President for ratification. After the President has ratified the treaty, the Department of Foreign Affairs shall submit the same to the Senate for concurrence. Upon receipt of the concurrence of the Senate, the Department of Foreign Affairs shall comply with the provisions of the treaty to render it effective. Section 7 of Executive Order No. 459 reads: Sec. 7. Domestic Requirements for the Entry into Force of a Treaty or an Executive Agreement. The domestic requirements for the entry into force of a treaty or an executive agreement, or any amendment thereto, shall be as follows: A. Executive Agreements. i. All executive agreements shall be transmitted to the Department of Foreign Affairs after their signing for the preparation of the ratification papers. The transmittal shall include the highlights of the agreements and the benefits which will accrue to the Philippines arising from them. ii. The Department of Foreign Affairs, pursuant to the endorsement by the concerned agency, shall transmit the agreements to the President of the Philippines for his ratification. The original signed instrument of ratification shall then be returned to the Department of Foreign Affairs for appropriate action. B. Treaties. i. All treaties, regardless of their designation, shall comply with the requirements provided in sub-paragraph[s] 1 and 2, item A (Executive Agreements) of this Section. In addition, the Department of Foreign Affairs shall submit the treaties to the Senate of the Philippines for concurrence in the ratification by the President. A certified true copy of the treaties, in such numbers as may be required by the Senate, together with a certified true copy of the ratification instrument, shall accompany the submission of the treaties to the Senate. ii. Upon receipt of the concurrence by the Senate, the Department of Foreign Affairs shall comply with the provision of the treaties in effecting their entry into force. Petitioners submission that the Philippines is bound under treaty law and international law to ratify the treaty which it has signed is without basis. The signature does not signify the final consent of the state to the treaty. It is the ratification that binds the state to the provisions thereof. In fact, the Rome Statute itself requires that the signature of the representatives of the states be subject to ratification, acceptance or approval of the signatory states. Ratification is the act by which the provisions of a treaty are formally confirmed and approved by a State. By ratifying a treaty signed in its behalf, a state expresses its willingness to be bound by the provisions of such treaty. After the treaty is signed by the states representative, the President, being accountable to the people, is burdened with the responsibility and the duty to carefully study the contents of the treaty and ensure that they are not inimical to the interest of the state and its people. Thus, the President has the discretion even after the signing of the treaty by the Philippine representative whether or not to ratify the same. The Vienna Convention on the Law of Treaties does not contemplate to defeat or even restrain this power of the head of states. If that were so, the requirement of ratification of treaties would be pointless and futile. It has been held that a state has no legal or even moral duty to ratify a treaty which has been signed by its plenipotentiaries.18There is no legal obligation to ratify a treaty, but it goes without saying that the refusal must be based on substantial grounds and not on superficial or whimsical reasons. Otherwise, the other state would be justified in taking offense.19 It should be emphasized that under our Constitution, the power to ratify is vested in the President, subject to the concurrence of the Senate. The role of the Senate, however, is limited only to giving or withholding its consent, or concurrence, to the ratification.20 Hence, it is within the authority of the President to refuse to submit a treaty to the Senate or, having secured its consent for its ratification, refuse to ratify it.21 Although the refusal of a state to ratify a treaty which has been signed in its behalf is a serious step that should not be taken lightly,22 such decision is within the competence of the President alone, which cannot be encroached by this Court via a writ of mandamus. This Court

has no jurisdiction over actions seeking to enjoin the President in the performance of his official duties.23 The Court, therefore, cannot issue the writ of mandamus prayed for by the petitioners as it is beyond its jurisdiction to compel the executive branch of the government to transmit the signed text of Rome Statute to the Senate. IN VIEW WHEREOF, the petition is DISMISSED. SO ORDERED. G.R. Nos. 174813-15 March 17, 2009 NILO HIPOS, SR. REPRESENTING DARRYL HIPOS, BENJAMIN CORSIO REPRESENTING JAYCEE CORSIO, and ERLINDA VILLARUEL REPRESENTING ARTHUR VILLARUEL, Petitioners, vs. HONORABLE RTC JUDGE TEODORO A. BAY, Presiding Judge, RTC, Hall of Justice, Quezon City, Branch 86, Respondent. DECISION CHICO-NAZARIO, J.: This is a Petition for Mandamus under Rule 65 of the Rules of Court seeking a reversal of the Order dated 2 October 2006 of respondent Judge Teodoro A. Bay of Branch 86 of the Regional Trial Court (RTC) of Quezon City, which denied the Motion to Withdraw Informations of the Office of the City Prosecutor of Quezon City. The facts of the case are as follows. On 15 December 2003, two Informations for the crime of rape and one Information for the crime of acts of lasciviousness were filed against petitioners Darryl Hipos, Jaycee Corsio, Arthur Villaruel and two others before Branch 86 of the Regional Trial Court of Quezon City, acting as a Family Court, presided by respondent Judge Bay. The cases were docketed as Criminal Cases No. Q-03-123284, No. Q-03-123285 and No. Q-03-123286. The Informations were signed by Assistant City Prosecutor Ronald C. Torralba. On 23 February 2004, private complainants AAA1 and BBB filed a Motion for Reinvestigation asking Judge Bay to order the City Prosecutor of Quezon City to study if the proper Informations had been filed against petitioners and their coaccused. Judge Bay granted the Motion and ordered a reinvestigation of the cases. On 19 May 2004, petitioners filed their Joint Memorandum to Dismiss the Case[s] before the City Prosecutor. They claimed that there was no probable cause to hold them liable for the crimes charged. On 10 August 2004, the Office of the City Prosecutor issued a Resolution on the reinvestigation affirming the Informations filed against petitioners and their co-accused in Criminal Cases No. Q-03-123284-86. The Resolution was signed by Assistant City Prosecutor Raniel S. Cruz and approved by City Prosecutor Claro A. Arellano. On 3 March 2006, 2nd Assistant City Prosecutor Lamberto C. de Vera, treating the Joint Memorandum to Dismiss the Case as an appeal of the 10 August 2004 Resolution, reversed the Resolution dated 10 August 2004, holding that there was lack of probable cause. On the same date, the City Prosecutor filed a Motion to Withdraw Informations before Judge Bay. On 2 October 2006, Judge Bay denied the Motion to Withdraw Informations in an Order of even date. Without moving for a reconsideration of the above assailed Order, petitioners filed the present Petition for Mandamus, bringing forth this lone issue for our consideration: CAN THE HON. SUPREME COURT COMPEL RESPONDENT JUDGE BAY TO DISMISS THE CASE THROUGH A WRIT OF MANDAMUS BY VIRTUE OF THE RESOLUTION OF THE OFFICE OF THE CITY PROSECUTOR OF QUEZON CITY FINDING NO PROBABLE CAUSE AGAINST THE ACCUSED AND SUBSEQUENTLY FILING A MOTION TO WITHDRAW INFORMATION?2 Mandamus is an extraordinary writ commanding a tribunal, corporation, board, officer or person, immediately or at some other specified time, to do the act required to be done, when the respondent unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station; or when the respondent excludes another from the use and enjoyment of a right or office to which the latter is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law.3 As an extraordinary writ, the remedy of mandamus lies only to compel an officer to perform a ministerial duty, not a discretionary one; mandamus will not issue to control the exercise of discretion by a public officer where the law imposes upon him the duty to exercise his judgment in reference to any manner in which he is required to act, because it is his judgment that is to be exercised and not that of the court.4

In the case at bar, the act which petitioners pray that we compel the trial court to do is to grant the Office of the City Prosecutors Motion for Withdrawal of Informations against petitioners. In effect, petitioners seek to curb Judge Bays exercise of judicial discretion. There is indeed an exception to the rule that matters involving judgment and discretion are beyond the reach of a writ of mandamus, for such writ may be issued to compel action in those matters, when refused.5 However, mandamus is never available to direct the exercise of judgment or discretion in a particular way or the retraction or reversal of an action already taken in the exercise of either.6 In other words, while a judge refusing to act on a Motion to Withdraw Informationscan be compelled by mandamus to act on the same, he cannot be compelled to act in a certain way, i.e., to grant or deny such Motion. In the case at bar, Judge Bay did not refuse to act on the Motion to Withdraw Informations; he had already acted on it by denying the same. Accordingly, mandamus is not available anymore. If petitioners believed that Judge Bay committed grave abuse of discretion in the issuance of such Order denying the Motion to Withdraw Informations, the proper remedy of petitioners should have been to file a Petition for Certiorari against the assailed Order of Judge Bay. Petitioners counter that the above conclusion, which has been argued by the Solicitor General, is contrary to a ruling of this Court, which allegedly states that the proper remedy in such cases is a Petition for Mandamus and not Certiorari. Petitioners cite the following excerpt from our ruling in Sanchez v. Demetriou7: The appreciation of the evidence involves the use of discretion on the part of the prosecutor, and we do not find in the case at bar a clear showing by the petitioner of a grave abuse of such discretion. The decision of the prosecutor may be reversed or modified by the Secretary of Justice or in special cases by the President of the Philippines. But even this Court cannot order the prosecution of a person against whom the prosecutor does not find sufficient evidence to support at least a prima facie case. The courts try and absolve or convict the accused but as a rule have no part in the initial decision to prosecute him. The possible exception is where there is an unmistakable showing of grave abuse of discretion that will justify a judicial intrusion into the precincts of the executive. But in such a case the proper remedy to call for such exception is a petition for mandamus, not certiorari or prohibition.8 (Emphases supplied.) Petitioners have taken the above passage way out of its context. In the case of Sanchez, Calauan Mayor Antonio Sanchez brought a Petition for Certiorari before this Court, challenging the order of the respondent Judge therein denying his motion to quash the Information filed against him and six other persons for alleged rape and homicide. One of the arguments of Mayor Sanchez was that there was discrimination against him because of the non-inclusion of two other persons in the Information. We held that even this Court cannot order the prosecution of a person against whom the prosecutor does not find sufficient evidence to support at least a prima facie case. However, if there was an unmistakable showing of grave abuse of discretion on the part of the prosecutors in that case, Mayor Sanchez should have filed a Petition for Mandamus to compel the filing of charges against said two other persons. In the case at bar, the Petition for Mandamus is directed not against the prosecution, but against the trial court, seeking to compel the trial court to grant the Motion to Withdraw Informations by the City Prosecutors Office. The prosecution has already filed a case against petitioners. Recently, in Santos v. Orda, Jr.,9 we reiterated the doctrine we established in the leading case of Crespo v. Mogul,10 that once a criminal complaint or an information is filed in court, any disposition or dismissal of the case or acquittal or conviction of the accused rests within the jurisdiction, competence, and discretion of the trial court. Thus, we held: In Crespo v. Mogul, the Court held that once a criminal complaint or information is filed in court, any disposition of the case or dismissal or acquittal or conviction of the accused rests within the exclusive jurisdiction, competence, and discretion of the trial court. The trial court is the best and sole judge on what to do with the case before it. A motion to dismiss the case filed by the public prosecutor should be addressed to the court who has the option to grant or deny the same. Contrary to the contention of the petitioner, the rule applies to a motion to withdraw the Information or to dismiss the case even before or after arraignment of the accused. The only qualification is that the action of the court

must not impair the substantial rights of the accused or the right of the People or the private complainant to due process of law. When the trial court grants a motion of the public prosecutor to dismiss the case, or to quash the Information, or to withdraw the Information in compliance with the directive of the Secretary of Justice, or to deny the said motion, it does so not out of subservience to or defiance of the directive of the Secretary of Justice but in sound exercise of its judicial prerogative. Petitioners also claim that since Judge Bay granted a Motion for Reinvestigation, he should have "deferred to the Resolution of Asst. City Prosecutor De Vera withdrawing the case."11 Petitioners cite the following portion of our Decision in People v. Montesa, Jr.12: In the instant case, the respondent Judge granted the motion for reinvestigation and directed the Office of the Provincial Prosecutor of Bulacan to conduct the reinvestigation. The former was, therefore, deemed to have deferred to the authority of the prosecution arm of the Government to consider the so-called new relevant and material evidence and determine whether the information it had filed should stand.13 Like what was done to our ruling in Sanchez, petitioners took specific statements from our Decision, carefully cutting off the portions which would expose the real import of our pronouncements. The Petition for Certiorari in Montesa, Jr. was directed against a judge who, after granting the Petition for Reinvestigation filed by the accused, proceeded nonetheless to arraign the accused; and, shortly thereafter, the judge decided to dismiss the case on the basis of a Resolution of the Assistant Provincial Prosecutor recommending the dismissal of the case. The dismissal of the case in Montesa, Jr. was done despite the disapproval of the Assistant Provincial Prosecutors Resolution by the Provincial Prosecutor (annotated in the same Resolution), and despite the fact that the reinvestigation the latter ordered was still ongoing, since the Resolution of the Assistant Provincial Prosecutor had not yet attained finality. We held that the judge should have waited for the conclusion of the Petition for Reinvestigation he ordered, before acting on whether or not the case should be dismissed for lack of probable cause, and before proceeding with the arraignment. Thus, the continuation of the above paragraph of our Decision in Montesa, Jr. reads: Having done so, it behooved the respondent Judge to wait for a final resolution of the incident. In Marcelo vs. Court of Appeals, this Court ruled: Accordingly, we rule that the trial court in a criminal case which takes cognizance of an accused's motion for review of the resolution of the investigating prosecutor or for reinvestigation and defers the arraignment until resolution of the said motion must act on the resolution reversing the investigating prosecutor's finding or on a motion to dismiss based thereon only upon proof that such resolution is already final in that no appeal was taken thereon to the Department of Justice. The resolution of Assistant Provincial Prosecutor Rutor recommending the dismissal of the case never became final, for it was not approved by the Provincial Prosecutor. On the contrary, the latter disapproved it. As a consequence, the final resolution with respect to the reinvestigation is that of the Provincial Prosecutor, for under Section 4, Rule 112 of the Rules of Court, no complaint or information may be filed or dismissed by an investigating fiscal without the prior written authority or approval of the provincial or city fiscal or chief state prosecutor. Also, under Section l(d) of R.A. No. 5180, as amended by P.D. No. 77 and P.D. No. 911.14 As can be clearly seen, the statement quoted by petitioners from Montesa, Jr. is not meant to establish a doctrine that the judge should just follow the determination by the prosecutor of whether or not there is probable cause. On the contrary, Montesa, Jr. states: The rule is settled that once a criminal complaint or information is filed in court, any disposition thereof, such as its dismissal or the conviction or acquittal of the accused, rests in the sound discretion of the court. While the prosecutor retains the discretion and control of the prosecution of the case, he cannot impose his opinion on the court. The court is the best and sole judge on what to do with the case. Accordingly, a motion to dismiss the case filed by the prosecutor before or after the arraignment, or after a reinvestigation, or upon instructions of the Secretary of Justice who reviewed the records upon reinvestigation, should be addressed to the discretion of the court. The action of the court must not, however, impair the substantial rights of the accused or the right of the People to due process of law.15

In a seemingly desperate attempt on the part of petitioners counsel, he tries to convince us that a judge is allowed to deny a Motion to Withdraw Informations from the prosecution only when there is grave abuse of discretion on the part of the prosecutors moving for such withdrawal; and that, where there is no grave abuse of discretion on the part of the prosecutors, the denial of the Motion to Withdraw Informations is void. Petitioners counsel states in the Memorandum: 6.10. Furthermore, the ORDER dated October 2, 2006 of the Respondent Judge BAY consisting of 9 pages which was attached to the URGENT PETITION did not point out any iota of grave abuse of discretion committed by Asst. City Prosecutor De Vera in issuing his Resolution in favor of the sons of the Petitioners. Hence, the ORDER issued by RJBAY is NULL and VOID in view of the recent ruling of the Hon. Supreme Court in Ledesma vs. Court of Appeals, G.R. No. 113216, September 5, 1997, 86 SCAD 695, 278 SCRA 657 which states that: "In the absence of a finding of grave abuse of discretion, the courts bare denial of a motion to withdraw information pursuant to the Secretarys resolution is void."(Underscoring ours). 6.11. It is therefore respectfully submitted that the Hon. Supreme Court disregard the argument of the OSG because of its falsity.16 This statement of petitioners counsel is utterly misleading. There is no such statement in our Decision in Ledesma.17 The excerpt from Ledesma, which appears to have a resemblance to the statement allegedly quoted from said case, provides: No Grave Abuse of Discretion in the Resolution of the Secretary of Justice In the light of recent holdings in Marcelo and Martinez; and considering that the issue of the correctness of the justice secretary's resolution has been amply threshed out in petitioner's letter, the information, the resolution of the secretary of justice, the motion to dismiss, and even the exhaustive discussion in the motion for reconsideration - all of which were submitted to the court - the trial judge committed grave abuse of discretion when it denied the motion to withdraw the information, based solely on his bare and ambiguous reliance on Crespo. The trial court's order is inconsistent with our repetitive calls for an independent and competent assessment of the issue(s) presented in the motion to dismiss. The trial judge was tasked to evaluate the secretary's recommendation finding the absence of probable cause to hold petitioner criminally liable for libel. He failed to do so. He merely ruled to proceed with the trial without stating his reasons for disregarding the secretary's recommendation.18 (Emphasis supplied.) It very much appears that the counsel of petitioners is purposely misleading this Court, in violation of Rule 10.02 of the Code of Professional Responsibility, which provides: Rule 10.02 A lawyer shall not knowingly misquote or misrepresent the contents of a paper, the language or the argument of opposing counsel, or the text of a decision or authority, or knowingly cite as law a provision already rendered inoperative by repel or amendment, or assert as a fact that which has not been proved. Counsels use of block quotation and quotation marks signifies that he intends to make it appear that the passages are the exact words of the Court. Furthermore, putting the words "Underscoring ours" after the text implies that, except for the underscoring, the text is a faithful reproduction of the original. Accordingly, we are ordering Atty. Procopio S. Beltran, Jr. to show cause why he should not be disciplined as a member of the Bar. To clarify, we never stated in Ledesma that a judge is allowed to deny a Motion to Withdraw Information from the prosecution only when there is grave abuse of discretion on the part of the prosecutors moving for such withdrawal. Neither did we rule therein that where there is no grave abuse of discretion on the part of the prosecutors, the denial of the Motion to Withdraw Information is void. What we held therein is that a trial judge commits grave abuse of discretion if he denies a Motion to Withdraw Information without an independent and complete assessment of the issues presented in such Motion. Thus, the opening paragraph of Ledesma states: When confronted with a motion to withdraw an information on the ground of lack of probable cause based on a resolution of the secretary of justice, the bounden duty of the trial court is to make an independent assessment of the merits of such motion. Having acquired jurisdiction over the case, the trial court is not bound by such resolution but is required to evaluate it before proceeding further with the trial. While the secretary's ruling is persuasive, it is not binding on courts. A

trial court, however, commits reversible error or even grave abuse of discretion if it refuses/neglects to evaluate such recommendation and simply insists on proceeding with the trial on the mere pretext of having already acquired jurisdiction over the criminal action.19 (Emphases supplied.)1avvphi1.zw+ Petitioners also try to capitalize on the fact that the dispositive portion of the assailed Order apparently states that there was no probable cause against petitioners: WHEREFORE, finding no probable cause against the herein accused for the crimes of rapes and acts of lasciviousness, the motion to withdraw informations is DENIED. Let the case be set for arraignment and pre-trial on October 24, 2006 at 8:30 oclock in the morning.20 (Underscoring ours.) Thus, petitioners claim that since even the respondent judge himself found no probable cause against them, the Motion to Withdraw Informations by the Office of the City Prosecutor should be granted.21 Even a cursory reading of the assailed Order, however, clearly shows that the insertion of the word "no" in the above dispositive portion was a mere clerical error. The assailed Order states in full: After a careful study of the sworn statements of the complainants and the resolution dated March 3, 2006 of 2nd Assistant City Prosecutor Lamberto C. de Vera, the Court finds that there was probable cause against the herein accused. The actuations of the complainants after the alleged rapes and acts of lasciviousness cannot be the basis of dismissal or withdrawal of the herein cases. Failure to shout or offer tenatious resistance did not make voluntary the complainants submission to the criminal acts of the accused (People v. Velasquez, 377 SCRA 214, 2002). The complainants affidavits indicate that the accused helped one another in committing the acts complained of. Considering that the attackers were not strangers but their trusted classmates who enticed them to go to the house where they were molested, the complainants cannot be expected to react forcefully or violently in protecting themselves from the unexpected turn of events. Considering also that both complainants were fifteen (15) years of age and considered children under our laws, the ruling of the Supreme Court in People v. Malones, G.R. Nos. 124388-90, March 11, 2004 becomes very relevant. The Supreme Court ruled as follows: Rape victims, especially child victims, should not be expected to act the way mature individuals would when placed in such a situation. It is not proper to judge the actions of children who have undergone traumatic experience by the norms of behavior expected from adults under similar circumstances. The range of emotions shown by rape victim is yet to be captured even by calculus. It is, thus, unrealistic to expect uniform reactions from rape victims (People v. Malones, G.R. Nos. 124388-90, March 11, 2004). The Court finds no need to discuss in detail the alleged actuations of the complainants after the alleged rapes and acts of lasciviousness. The alleged actuations are evidentiary in nature and should be evaluated after full blown trial on the merits. This is necessary to avoid a suspicion of prejudgment against the accused.22 As can be seen, the body of the assailed Order not only plainly stated that the court found probable cause against the petitioners, but likewise provided an adequate discussion of the reasons for such finding. Indeed, the general rule is that where there is a conflict between the dispositive portion or the fallo and the body of the decision, the fallo controls. However, where the inevitable conclusion from the body of the decision is so clear as to show that there was a mistake in the dispositive portion, the body of the decision will prevail.23 In sum, petitioners resort to a Petition for Mandamus to compel the trial judge to grant their Motion to Withdraw Informations is improper. While mandamus is available to compel action on matters involving judgment and discretion when refused, it is never available to direct the exercise of judgment or discretion in a particular way or the retraction or reversal of an action already taken in the exercise of either.24 The trial court, when confronted with a Motion to Withdraw an Information on the ground of lack of probable cause, is not bound by the resolution of the prosecuting arm of the government, but is required to make an independent assessment of the merits of such motion, a requirement satisfied by the respondent judge in the case at bar.25 Finally, if only to appease petitioners who came to this Court seeking a review of the finding of probable cause by the trial court, we nevertheless carefully reviewed the records of the case. After going through the same, we find that we are in agreement with the trial court that there is indeed probable cause against the petitioners sufficient to hold them for trial.

We decided to omit a detailed discussion of the merits of the case, as we are not unmindful of the undue influence that might result should this Court do so, even if such discussion is only intended to focus on the finding of probable cause. WHEREFORE, the instant Petition for Mandamus is DISMISSED. Let the records of this case be remanded to the Regional Trial Court of Quezon City for the resumption of the proceedings therein. The Regional Trial Court is directed to act on the case with dispatch. Atty. Procopio S. Beltran, Jr. is ORDERED to SHOW CAUSE why he should not be disciplined as a member of the Bar for his disquieting conduct as herein discussed. SO ORDERED. [G. R. No. 151992. September 18, 2002] COMMISSION ON ELECTIONS, COMELEC CHAIRMAN ALFREDO L. BENIPAYO, COMELEC COMMISSIONERS RESURRECCION Z. BORRA and FLORENTINO A. TUASON, JR., petitioners, vs. JUDGE MA. LUISA QUIJANO-PADILLA, REGIONAL TRIAL COURT OF QUEZON CITY, BRANCH 215 and PHOTOKINA MARKETING CORP., respondents. DECISION SANDOVAL-GUTIERREZ, J.: The contracting prerogative of public officers is circumscribed with a heavy burden of responsibility. They must exercise utmost caution and observe the law in order to protect the public from unjust and inequitable government contracts. The case at bar provides us with another occasion to stress that with respect to government contracts, statutes take precedence over the public officers freedom to contract. Here, the primordial question to be resolved is -- may a successful bidder compel a government agency to formalize a contract with it notwithstanding that its bid exceeds the amount appropriated by Congress for the project? Before us is a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, alleging that respondent Judge Ma. Luisa Quijano-Padilla of the Regional Trial Court, Branch 215, Quezon City, committed grave abuse of discretion in issuing the (a) Resolutioniii[1] dated December 19, 2001 granting private respondents application for a writ of preliminary prohibitory injunction in Special Civil Action No. Q-01-45405iii[2]; and (b) Resolutioniii[3] dated February 7, 2002 denying petitioners Omnibus Motion to dismiss the petition and their motion for reconsideration of the same Resolution and granting private respondent's application for a writ of preliminary mandatory injunction. The facts are undisputed. In 1996, the Philippine Congress passed Republic Act No. 8189, otherwise known as the "Voter's Registration Act of 1996," providing for the modernization and computerization of the voters' registration list and the appropriate of funds therefor "in order to establish a clean, complete, permanent and updated list of voters."iii[4] Pursuant thereto, the Commission on Elections (COMELEC) promulgated Resolution No. 00-0315iii[5]approving in principle the Voter's Registration and Identification System Project (VRIS) Project for brevity). The VRIS Project envisions a computerized database system for the May 2004 Elections. The idea is to have a national registration of voters whereby each registrant's fingerprints will be digitally entered into the system and upon completion of registration, compared and matched with other entries to eliminate double entries. A tamper-proof and counterfeit-resistant voter's identification card will then be issues to each registrant as a visual record of the registration. On September 9, 1999, the COMELEC issued invitations to pre-qualify and bid for the supply and installations of information technology equipment and ancillary services for its VRIS Project.iii[6]Private respondent Photokina Marketing Corporation (PHOTOKINA) pre-qualified and was allowed to participate as one of the bidders. After the public bidding was conducted, PHOTOKINA's bid in the amount of P6.588 Billion Pesos garnered the highest total weighted score and was declared the winning bidder. Thus, on September 28, 2000, the COMELEC issued Resolution No. 3252iii[7]approving the Notice of Award to PHOTOKINA, which, in turn, immediately accepted the same. The parties then proceeded to formalize the contract, with Commissioner Mehol K. Sadain and Atty. Rodrigo D. Sta. Ana, acting as negotiators for the COMELEC and PHOTOKINA, respectively. However, under Republic Act No. 8760iii[8] the budget appropriated by Congress for the COMELECs modernization project was only One (1) Billion Pesos and that the actual available funds under the Certificate of Availability of Funds

(CAF) issued by the Chief Accountant of the COMELEC was only P1.2 Billion Pesos. In December 2000, then COMELEC Chairman Harriet O. Demetriou issued a memorandum to the COMELEC en banc expressing her objections to the contract. Commissioner Sadain, for his part, submitted a draft of the contractiii[9] providing a price that would not exceed the certified available appropriation but covering only Phase I of the VRIS Project, i.e., issuance of registration cards for 1,000,000 voters in certain areas only.iii[10] Under the draft, the subsequent completion of the whole project shall be agreed upon in accordance with the Bid Documents and the annual funds available for it. iii[11] On February 2, 2001, the term of former Chairman Demetriou and those of Commissioners Julio F. Desamito and TeresitaDy-Liacco Flores expired. Appointed as their successors were Alfredo L. Benipayo as Chairman and Resurreccion Z. Borra and Florentino A. Tuason, Jr. as Commissioners. Meanwhile, PHOTOKINA, as the winning bidder, wrote several letters to the COMELEC requesting the formal execution of the contract, but to no avail.iii[12] Then Chairman Benipayo, through various press releases and public statements, announced that the VRIS Project has been scrapped, dropped, junked, or set aside. He further announced his plan to re-engineer the entire modernization program of the COMELEC, emphasizing his intention to replace the VRIS Project with his own version, the Triple E Vision.iii[13] On October 2, 2001, Senator Edgardo J. Angara directed the creation of a technical working group to assist the COMELEC in evaluating all programs for the modernization of the COMELEC which will also consider the PHOTOKINA contract as an alternativeprogram and various competing programs for the purpose. Unsatisfied with the adverse turn of events, PHOTOKINA filed with the Regional Trial Court, Branch 215, Quezon City a petition for mandamus, prohibition and damages (with prayer for temporary restraining order, preliminary prohibitory injunction and preliminary mandatory injunction) against the COMELEC and all its Commissioners,iii[14] docketed as Special Civil Action No. Q- 01- 45405. PHOTOKINA alleged three causes of action: first, the deliberate refusal of the COMELEC and its Commissioners to formalize the contract rendered nugatory the perfected contract between them; second, in announcing that the VRIS Project has been junked and that he has plans to re-engineer the COMELECs entire modernization program, Chairman Benipayo committed grave abuse of discretion; and third, the COMELECs failure to perform its duty under the contract has caused PHOTOKINA to incur damages since it has spent substantial time and resources in the preparation of the bid and the draft contract. In support of its application for writs of preliminary prohibitory and mandatory injunction, PHOTOKINA adopted the evidence it adduced during the hearing of its application for the issuance of a temporary restraining order. On December 19, 2001, respondent Judge Ma. Luisa Quijano-Padilla issued the first assailed Resolution granting PHOTOKINAs application for a writ of preliminary prohibitory injunction, thus: "WHEREFORE, premises considered, the Court resolves to: (1) grant the application for the issuance of a writ of preliminary prohibitory injunction; and (2) deny the application for the issuance of a writ of preliminary mandatory injunction. Accordingly, let a writ of preliminary prohibitory injunction issue enjoining respondents, their agents, successors and assigns from replacing the VRIS Project upon petitioners posting of a bond in the amount of P20,000,000.00, which bond shall answer for whatever damages which may be sustained by reason of the issuance of the said writ, if it turns out that the plaintiffs are not entitled thereto. SO ORDERED"iii[15] Both parties filed their respective motions for reconsideration. PHOTOKINA reiterated its plea for a writ of preliminary mandatory injunction.iii[16] For their part, the COMELEC and its Commissioners, through the Solicitor General, prayed that the writ of preliminary prohibitory injunction be set aside and that the petition for mandamus, prohibition and damages be dismissed.iii[17] On February 8, 2002, respondent judge issued the second assailed Resolution denying the COMELECs Omnibus Motion and, this time, granting PHOTOKINAs application for a writ of preliminary mandatory injunction, thus: "WHEREFORE, premises considered, this Court resolves to: (1) deny Respondents Omnibus Motion for the

dismissal of this case and for the reconsideration of this Courts Resolution granting the writ of preliminary prohibitory injunction; (2) grant Petitioners Motion dated January 2, 2002 insofar as it prays for the issuance of a writ of preliminary mandatory injunction; (3) Grant the prayer for the reduction of the preliminary prohibitory injunction bond from P20,000,000.00 to P10,000,000.00; (4) Clarify its Resolution dated December 19, 2001 to the extent that the writ of preliminary prohibitory injunction will also enjoin Respondents, their agents, successors and assigns from disregarding the contract for the VRIS Project between Petitioner and Respondent COMELEC; (5) deny Petitioners motion to declare Respondents in default. "Accordingly, let a writ of preliminary mandatory injunction issue directing all respondent Commissioners to immediately resume negotiations to formalize the execution of the contract with Petitioner for the VRIS Project upon petitioners posting of a bond, separate from the above bond for the writ of preliminary prohibitory injunction, in the amount of P20,000,000.00, which bond shall answer for whatever damages that may be sustained by reason of the issuance of the said writ, if it turns out that Petitioner is not entitled thereto. "SO ORDERED."iii[18] Hence, the instant petition for certiorari filed by the Office of the Solicitor General (OSG) in behalf of then COMELEC Chairman Alfredo L. Benipayo and Commissioners Resurreccion Z. Borra and Florentino A. Tuason, Jr.. Petitioners contend that: (1) a petition for mandamus and prohibition does not lie to enforce contractual obligations, hence, PHOTOKINAs proper recourse before the Regional Trial Court should have been an action for specific performance; (2) respondent judge, by issuing the injunctive writs, already assumed that the VRIS Project was lawfully awarded by the COMELEC to PHOTOKINA, and that there is a valid perfected contract between them, thus, manifesting her prejudgment; and (3) injunctive writs should not be issued when an action for damages can adequately compensate for the injuries. Petitioners pray that the two assailed Resolutions be nullified and Special Civil Action No. Q-01-45405 be dismissed outright.iii[19] On February 21, 2002, the majority of the COMELEC Commissioners -- Luzviminda G. Tancangco, Rufino S.B. Javier, Ralph C. Lantion and Mehol K. Sadain filed with this Court a Manifestationiii[20] that the Chairman and the two Commissioners who filed the instant Petition acted without authority from the COMELEC en banc to take such action. PHOTOKINA filed a Comment with Motion to Dismiss,iii[21] the present petition, on two procedural grounds. First, the petition violates the doctrine of hierarchy of courts. And second, the OSG has no authority and/or standing to file the petition considering that the petitioners have not been authorized by the COMELEC en banc to take such action. Without the concurrence of at least a majority of the members of the COMELEC, neither petitioners nor the OSG could file the petition in behalf of the COMELEC. In refutation of petitioners arguments, PHOTOKINA contends that mandamus is an appropriate remedy since what is involved in Special Civil Action No. Q-01-45405 is the performance of a ministerial duty. Citing Isada vs. Bocar,iii[22] PHOTOKINA maintains that mandamus may be availed of by private parties to compel public officers to act on a contract entered into pursuant to law. In its Supplemental Comment,iii[23] PHOTOKINA invites the Courts attention to Metropolitan Manila Development Authority vs. Jancom Environmental Corporationiii[24]whereby the winning bidder was afforded every right to seek enforcement of its perfected contract with the government. The petition is impressed with merit. Initially, we must resolve the procedural roadblocks. PHOTOKINA alleges that the OSG has no standing to file the present petition since its legal position is contrary to that espoused by the majority of the COMELEC Commissioners. This is a leap to a non-sequitur conclusion. The OSG is an independent office. Its hands are not shackled to the cause of its client agency. In the discharge of its task, the primordial concern of the OSG is to see to it that the best interest of the government is upheld.iii[25] This is regardless of the fact that what it perceived as the best interest of the government runs counter to its client agencys position.iii[26] Endowed with a broad perspective that spans the legal interest of virtually the entire government officialdom, the OSG may transcend the parochial concerns of a particular client agency and instead,

promote and protect the public weal.iii[27] Our ruling in Orbos vs. Civil Service Commission,iii[28] is relevant, thus: "x xx It is incumbent upon him (Solicitor General) to present to the court what he considers would legally uphold the best interest of the government although it may run counter to a clients position. x xx. "In the present case, it appears that after the Solicitor General studied the issues he found merit in the cause of the petitioner based on the applicable law and jurisprudence. Thus, it is his duty to represent the petitioner as he did by filing this petition. He cannot be disqualified from appearing for the petitioner even if in so doing his representation runs against the interests of the CSC. "This is not the first time that the Office of the Solicitor General has taken a position adverse to his clients like the CSC, the National Labor Relations Commission, among others, and even the People of the Philippines. x xx (Emphasis supplied) Hence, while petitioners stand is contrary to that of the majority of the Commissioners, still, the OSG may represent the COMELEC as long as in its assessment, such would be for the best interest of the government. For, indeed, in the final analysis, the client of the OSG is not the agency but no less than the Republic of the Philippines in whom the plenum of sovereignty resides.iii[29] Moreover, it must be emphasized that petitioners are also public officials entitled to be represented by the OSG. Under Executive Order No. 292iii[30] and Presidential Decree No. 478,iii[31] the OSG is the lawyer of the government, its agencies and instrumentalities, and its officials or agents. Surely, this mandate includes the three petitionersiii[32]who have been impleaded as public respondents in Special Civil Action No. Q-01-45405. Anent the alleged breach of the doctrine of hierarchy of courts, suffice it to say that it is not an iron-clad dictum. On several instances where this Court was confronted with cases of national interest and of serious implications, it never hesitated to set aside the rule and proceed with the judicial determination of the case.iii[33] The case at bar is of similar import. It is in the interest of the State that questions relating to government contracts be settled without delay. This is more so when the contract, as in this case, involves the disbursement of public funds and the modernization of our countrys election process, a project that has long been overdue. We now resolve the following substantive issues: 1) Is a petition for mandamus the appropriate remedy to enforce contractual obligations? and 2) May a successful bidder compel a government agency to formalize a contract with it notwithstanding that its bid exceeds the amount appropriated by Congress for the project? I No rule of law is better settled than that mandamus does not lie to enforce the performance of contractual obligations.iii[34] As early as 1924, Justice Street, in Quiogue vs. Romualdez,iii[35] already set forth the justification of this rule, thus: Upon the facts above stated we are of the opinion that the writ of mandamus is not the appropriate, or even an admissible remedy. It is manifest that whatever rights the petitioner may have, upon the facts stated, are derived from her contract with the city; and no rule of law is better settled than that mandamus never lies to enforce the performance of private contracts. x xx The petitioners remedy, if any she has, is by an original action in the Court of First Instance to compel the city to pay the agreed price or to pay damages for the breach of contract. "x xx. As said in Lowe vs. Phelps (14 Bush, 642): It must, therefore, appear upon every application for a mandamus that it is the legal duty of the respondent to do that which it is sought to compel him to do, and that he has upon proper application refused to perform that duty.' (Citing numerous authorities). "It was not intended to aid a plaintiff in the enforcement of a mere contract right, or to take the place of the other remedies provided by law for the adjudication of disputed claims. Looking at the case from the standpoint of appellant, it involves nothing more than an ordinary breach of contract. If, as contended, the appellant had a valid contract with the school board, it also had an adequate remedy at law to recover damages for its breach; and to permit the writ of mandamus to be used for the purpose of enforcing a mere contract right would be a wide departure from the settled practice in

respect to the character of cases in which relief by mandamus may be obtained. "In Parrott vs. City of Bridgeport (44 Conn., 180), the writ was refused where the petitioner sought to compel a city to construct a public street in a certain manner agreeably to the terms of a special agreement between the petitioner and the city. In the course of the opinion the court said: "* * * The duty, therefore, if any, which rests upon the city in this regard, is one which it owes to the petitioner as an individual, not to the public, and the special contract is the foundation upon which it rests. But the writ of mandamus has never been considered as an appropriate remedy for the enforcement of contract rights of a private and personal nature and obligations which rest wholly upon contract and which involve no questions of public trusts or official duty. Indeed, strictly speaking, it never lies where the party aggrieved has adequate remedy at law, and its aid is only to be invoked to prevent an absolute failure of justice in cases where ordinary legal processes furnish no relief. (Emphasis supplied) The passage of time has not eroded the wisdom of the foregoing rule. Its invocation by this Court in Province of Pangasinan vs. Reparation Commission,iii[36]Aprueba vs. Ganzon,iii[37]City of Manila vs. Posadas,iii[38]Jacinto vs. Director of Lands,iii[39]National Marketing Corporation vs. Cloribel,iii[40]Astudillo vs. The Board of Directors of Peoples Homesite and Housing Corporation,iii[41] and Sharp International Marketing vs. Court of Appeals,iii[42] virtually reinforces the rule. The present case is our latest addition to the above catena of jurisprudence. We carefully read the pleadings filed in Special Civil Action No. Q-01-45405 and we are convinced that what PHOTOKINA sought to enforce therein are its rights under the accepted bid proposal. Its petition alleged that notwithstanding the COMELECs issuance of a Notice of Award and its (PHOTOKINAs) subsequent acceptance thereof, the COMELEC still refused to formalize the contract. As a relief, PHOTOKINA prayed that after trial, petitioners be directed to review and finalize the formal contract and to implement the VRIS Project.iii[43] Petitioners, on their part, specifically denied the existence of a perfected contract and asserted that even if there was one, the same is null and void for lack of proper appropriation. Petitioners labeled the contract as illegal and against public policy. Akin to our rulings cited above, we hold that mandamus is not the proper recourse to enforce the COMELEC's alleged contractual obligations with PHOTOKINA. It has other adequate remedy in law. Moreover, worth stressing is the judicial caution that mandamus applies as a remedy only where petitioner's right is founded clearly in law and notwhenitisdoubtful.iii[44] In varying language, the principle echoed and reechoed is that legal rights may be enforced by mandamus only if those rights are well-defined, clear and certain.iii[45] Here, the alleged contract, relied upon by PHOTOKINA as source of its rights which it seeks to be protected, is being disputed, not only on the ground that it was not perfected but also because it is illegal and against public policy. Of course, there are cases in which the writ of mandamus has been used to compel public officers to perform certain acts, but it will be generally observed that in such cases, the contracts have been completely performed by the petitioner, and nothing remained to be done except for the government to make compensation. These exceptional cases are cited in Isada vs. Bocariii[46] where the act of the respondent public officer has the effect of setting aside contracts already in the process of consummation. In contrast with Isada, the alleged contract here has not yet been fully performed by PHOTOKINA; and though it avers readiness to perform, petitioners raised serious questions as to its validity. Their posture is tenable. II To spare PHOTOKINA the drudgery of a fruitless pursuit, we deem it appropriate to lay down the principles governing government contracts and to apply them to the instant case. Meanwhile, as PHOTOKINA will later on deduce from the discussion, the contract subject of this controversy is one that can be slain in sight for being patently void and unenforceable. Enshrined in the 1987 Philippine Constitution is the mandate that "no money shall be paid out of the Treasury except in pursuance of an appropriation made by law."iii[47] Thus, in the execution of government contracts, the precise import of this constitutional restriction is to require the various agencies

to limit their expenditures within the appropriations made by law for each fiscal year. Complementary to the foregoing constitutional injunction are pertinent provisions of law and administrative issuances that are designed to effectuate the above mandate in a detailed manner.iii[48] Sections 46 and 47, Chapter 8, Subtitle B, Title I, Book V of Executive Order No. 292, otherwise known as "Administrative Code of 1987," provide: "SEC. 46. Appropriation Before Entering into Contract. - (1) No contract involving the expenditure of public funds shall be entered into unless there is an appropriation therefor, the unexpended balance of which, free of other obligations, is sufficient to cover the proposed expenditure; and x xx "SEC. 47. Certificate Showing Appropriation to Meet Contract. - Except in the case of a contract for personal service, for supplies for current consumption or to be carried in stock not exceeding the estimated consumption for three (3) months, or banking transactions of government-owned or controlled banks, no contract involving the expenditure of public funds by any government agency shall be entered into or authorized unless the proper accounting official of the agency concerned shall have certified to the officer entering into the obligation that funds have been duly appropriated for the purpose and that the amount necessary to cover the proposed contract for the current calendar year is available for expenditure on account thereof, subject to verification by the auditor concerned. The certificate signed by the proper accounting official and the auditor who verified it, shall be attached to and become an integral part of the proposed contract, and the sum so certified shall not thereafter be available for expenditure for any other purpose until the obligation of the government agency concerned under the contract is fully extinguished. It is quite evident from the tenor of the language of the law that the existence of appropriations and the availability of funds are indispensable pre-requisites to or conditions sine qua non for the execution of government contracts. The obvious intent is to impose such conditions as a priori requisites to the validity of the proposed contract.iii[49] Using this as our premise, we cannot accede to PHOTOKINA's contention that there is already a perfected contract. While we held in Metropolitan Manila Development Authority vs. Jancom Environmental Corporationiii[50] that "the effect of an unqualified acceptance of the offer or proposal of the bidder is to perfect a contract, upon notice of the award to the bidder," however, such statement would be inconsequential in a government where the acceptance referred to is yet to meet certain conditions. To hold otherwise is to allow a public officer to execute a binding contract that would obligate the government in an amount in excess of the appropriations for the purpose for which the contract was attempted to be made.iii[51] This is a dangerous precedent. In the case at bar, there seems to be an oversight of the legal requirements as early as the bidding stage. The first step of a Bids and Awards Committee (BAC) is to determine whether the bids comply with the requirements. The BAC shall rate a bid "passed" only if it complies with all the requirements and the submitted price does not exceed the approved budget for the contract."iii[52] Extant on the record is the fact that the VRIS Project was awarded to PHOTOKINA on account of its bid in the amount of P6.588 Billion Pesos. However, under Republic Act No. 8760,iii[53] the only fund appropriated for the project was P1 Billion Pesos and under the Certification of Available Fundsiii[54] (CAF) only P1.2 Billion Pesos was available. Clearly, the amount appropriated is insufficient to cover the cost of the entire VRIS Project. There is no way that the COMELEC could enter into a contract with PHOTOKINA whose accepted bid was way beyond the amount appropriated by law for the project. This being the case, the BAC should have rejected the bid for being excessiveiii[55] or should have withdrawn the Notice of Award on the ground that in the eyes of the law, the same is null and void.iii[56] The objections of then Chairman Demetriou to the implementation of the VRIS Project, ardently carried on by her successor Chairman Benipayo, are therefore in order. Even the draft contract submitted by Commissioner Sadain, that provides for a contract price in the amount of P1.2 Billion Pesos is unacceptable. Indeed, we share the observation of former Chairman Demetriou that it circumvents the statutory requirements on government contracts. While the contract price under the draft contractiii[57] is only P1.2 Billion and, thus, within the certified available funds, the same covers only Phase I of the VRIS Project, i.e., the issuance of identification cards for only

1,000,000 voters in specified areas.iii[58] In effect, the implementation of the VRIS Project will be "segmented" or "chopped" into several phases. Not only is such arrangement disallowed by our budgetary laws and practices, it is also disadvantageous to the COMELEC because of the uncertainty that will loom over its modernization project for an indefinite period of time. Should Congress fail to appropriate the amount necessary for the completion of the entire project, what good will the accomplished Phase I serve? As expected, the project failed "to sell" with the Department of Budget and Management. Thus, Secretary Benjamin Diokno, per his letter of December 1, 2000, declined the COMELEC's request for the issuance of the Notice of Cash Availability (NCA) and a multi-year obligational authority to assume payment of the total VRIS Project for lack of legal basis.iii[59]Corollarily, under Section 33 of R.A. No. 8760, no agency shall enter into a multi-year contract without a multi-year obligational authority, thus: "SECTION 33. Contracting Multi-Year Projects. - In the implementation of multi-year projects, no agency shall enter into a multi-year contract without a multi-year Obligational Authority issued by the Department of Budget and Management for the purpose. Notwithstanding the issuance of the multi-year Obligational Authority, the obligation to be incurred in any given calendar year, shall in no case exceed the amount programmed for implementation during said calendar year." Petitioners are justified in refusing to formalize the contract with PHOTOKINA. Prudence dictated them not to enter into a contract not backed up by sufficient appropriation and available funds. Definitely, to act otherwise would be a futile exercise for the contract would inevitably suffer the vice of nullity. In Osmea vs. Commission on Audit,iii[60] this Court held: "The Auditing Code of the Philippines (P.D. 1445) further provides that no contract involving the expenditure of public funds shall be entered into unless there is an appropriation therefor and the proper accounting official of the agency concerned shall have certified to the officer entering into the obligation that funds have been duly appropriated for the purpose and the amount necessary to cover the proposed contract for the current fiscal year is available for expenditure on account thereof. Any contract entered into contrary to the foregoing requirements shall be VOID. "Clearly then, the contract entered into by the former Mayor Duterte was void from the very beginning since the agreed cost for the project (P8,368,920.00) was way beyond the appropriated amount (P5,419,180.00) as certified by the City Treasurer. Hence, the contract was properly declared void and unenforceable in COA's 2nd Indorsement, dated September 4, 1986. The COA declared and we agree, that: 'The prohibition contained in Sec. 85 of PD 1445 (Government Auditing Code) is explicit and mandatory. Fund availability is, as it has always been, an indispensable prerequisite to the execution of any government contract involving the expenditure of public funds by all government agencies at all levels. Such contracts are not to be considered as final or binding unless such a certification as to funds availability is issued (Letter of Instruction No. 767, s. 1978). Antecedent of advance appropriation is thus essential to government liability on contracts (Zobel vs. City of Manila, 47 Phil. 169). This contract being violative of the legal requirements aforequoted, the same contravenes Sec. 85 of PD 1445 and is null and void by virtue of Sec.87.'" Verily, the contract, as expressly declared by law, is inexistent and void ab initio.iii[61] his is to say that the proposed contract is without force and effect from the very beginning or from its incipiency, as if it had never been entered into, and hence, cannot be validated either by lapse of time or ratification.iii[62] Of course, we are not saying that the party who contracts with the government has no other recourse in law. The law itself affords him the remedy. Section 48 of E.O. No. 292 explicitly provides that any contract entered into contrary to the above-mentioned requirements shall be void, and the officers entering into the contract shall be liable to the Government or other contracting party for any consequent damage to the same as if the transaction had been wholly between private parties." So when the contracting officer transcends his lawful and legitimate powers by acting in excess of or beyond the limits of his contracting authority, the Government is not bound under the contract. It would be as if the contract in such case were a private one, whereupon, he binds only himself, and thus, assumes personal liability thereunder.iii[63] Otherwise stated, the proposed contract is unenforceable as to the Government.

While this is not the proceeding to determine where the culpability lies, however, the constitutional mandate cited above constrains us to remind all public officers that public office is a public trust and all public officers must at all times be accountable to the people. The authority of public officers to enter into government contracts is circumscribed with a heavy burden of responsibility. In the exercise of their contracting prerogative, they should be the first judges of the legality, propriety and wisdom of the contract they entered into. They must exercise a high degree of caution so that the Government may not be the victim of ill-advised or improvident action.iii[64] In fine, we rule that PHOTOKINA, though the winning bidder, cannot compel the COMELEC to formalize the contract. Since PHOTOKINAs bid is beyond the amount appropriated by Congress for the VRIS Project, the proposed contract is not binding upon the COMELEC and is considered void; and that in issuing the questioned preliminary writs of mandatory and prohibitory injunction and in not dismissing Special Civil Action No. Q-01-45405, respondent judge acted with grave abuse of discretion. Petitioners cannot be compelled by a writ of mandamus to discharge a duty that involves the exercise of judgment and discretion, especially where disbursement of public funds is concerned. WHEREFORE, the petition is GRANTED. The Resolutions dated December 19, 2001 and February 7, 2002 issued by respondent Judge Padilla are SET ASIDE. Special Civil Action No. Q-01-45405 is hereby ordered DISMISSED. SO ORDERED. METROPOLITAN MANILA .R. Nos. 171947-48 DEVELOPMENT AUTHORITY, DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, esent: DEPARTMENT OF EDUCATION, CULTURE AND SPORTS,iii[1] UNO, C.J., DEPARTMENT OF HEALTH, UISUMBING, DEPARTMENT OF AGRICULTURE, NARES-SANTIAGO, DEPARTMENT OF PUBLIC ARPIO, WORKS AND HIGHWAYS, USTRIA-MARTINEZ, DEPARTMENT OF BUDGET AND ORONA, MANAGEMENT, PHILIPPINE ARPIO MORALES, COAST GUARD, PHILIPPINE ZCUNA, NATIONAL POLICE MARITIME NGA, GROUP, and DEPARTMENT OF HICO-NAZARIO, THE INTERIOR AND LOCAL VELASCO, JR., GOVERNMENT, NACHURA, Petitioners, REYES, - versus LEONARDO-DE CASTRO, and BRION, JJ. G

QUINTERO, MA. VICTORIA LLENOS, DONNA CALOZA, FATIMA QUITAIN, VENICE SEGARRA, FRITZIE TANGKIA, SARAH JOELLE LINTAG, HANNIBAL AUGUSTUS BOBIS, FELIMON SANTIAGUEL, and Promulgated: JAIME AGUSTIN R. OPOSA, Respondents. December 18, 2008 x----------------------------------------------------------------------------------------x DECISION VELASCO, JR., J.: The need to address environmental pollution, as a cause of climate change, has of late gained the attention of the international community. Media have finally trained their sights on the ill effects of pollution, the destruction of forests and other critical habitats, oil spills, and the unabated improper disposal of garbage. And rightly so, for the magnitude of environmental destruction is now on a scale few ever foresaw and the wound no longer simply heals by itself.iii[2] But amidst hard evidence and clear signs of a climate crisis that need bold action, the voice of cynicism, naysayers, and procrastinators can still be heard. This case turns on government agencies and their officers who, by the nature of their respective offices or by direct statutory command, are tasked to protect and preserve, at the first instance, our internal waters, rivers, shores, and seas polluted by human activities. To most of these agencies and their official complement, the pollution menace does not seem to carry the high national priority it deserves, if their track records are to be the norm. Their cavalier attitude towards solving, if not mitigating, the environmental pollution problem, is a sad commentary on bureaucratic efficiency and commitment. At the core of the case is the Manila Bay, a place with a proud historic past, once brimming with marine life and, for so many decades in the past, a spot for different contact recreation activities, but now a dirty and slowly dying expanse mainly because of the abject official indifference of people and institutions that could have otherwise made a difference. This case started when, on January 29, 1999, respondents Concerned Residents of Manila Bay filed a complaint before the Regional Trial Court (RTC) in Imus, Cavite against several government agencies, among them the petitioners, for the cleanup, rehabilitation, and protection of the Manila Bay. Raffled to Branch 20 and docketed as Civil Case No. 1851-99 of the RTC, the complaint alleged that the water quality of the Manila Bay had fallen way below the allowable standards set by law, specifically Presidential Decree No. (PD) 1152 or the Philippine Environment Code. This environmental aberration, the complaint stated, stemmed from: x xx [The] reckless, wholesale, accumulated and ongoing acts of omission or commission [of the defendants] resulting in the clear and present danger to public health and in the depletion and contamination of the marine life of Manila Bay, [for which reason] ALL defendants must be held jointly and/or solidarily liable and be collectively ordered to clean up Manila Bay and to restore its water quality to class B waters fit for swimming, skindiving, and other forms of contact recreation.iii[3] In their individual causes of action, respondents alleged that the continued neglect of petitioners in abating the pollution of the Manila Bay constitutes a violation of, among others: (1) (2) Respondents constitutional right to life, health, and a balanced ecology; The Environment Code (PD 1152);

Pr

P Q Y C A C C A TI C

CONCERNED RESIDENTS OF MANILA BAY, represented and joined by DIVINA V. ILAS, SABINIANO ALBARRACIN, MANUEL SANTOS, JR., DINAH DELA PEA, PAUL DENNIS

(3) (4) (5) (6) (7) (8) (9) (10) (11) (12)

The Pollution Control Law (PD 984); The Water Code (PD 1067); The Sanitation Code (PD 856); The Illegal Disposal of Wastes Decree (PD 825); The Marine Pollution Law (PD 979); Executive Order No. 192; The Toxic and Hazardous Wastes Law (Republic Act No. 6969); Civil Code provisions on nuisance and human relations; The Trust Doctrine and the Principle of Guardianship; and International Law

liquid wastes from docking vessels that contribute to the pollution of the bay. Defendant MMDA, to establish, operate and maintain an adequate and appropriate sanitary landfill and/or adequate solid waste and liquid disposal as well as other alternative garbage disposal system such as re-use or recycling of wastes. Defendant DA, through the Bureau of Fisheries and Aquatic Resources, to revitalize the marine life in Manila Bay and restock its waters with indigenous fish and other aquatic animals. Defendant DBM, to provide and set aside an adequate budget solely for the purpose of cleaning up and rehabilitation of Manila Bay. Defendant DPWH, to remove and demolish structures and other nuisances that obstruct the free flow of waters to the bay. These nuisances discharge solid and liquid wastes which eventually end up in Manila Bay. As the construction and engineering arm of the government, DPWH is ordered to actively participate in removing debris, such as carcass of sunken vessels, and other non-biodegradable garbage in the bay. Defendant DOH, to closely supervise and monitor the operations of septic and sludge companies and require them to have proper facilities for the treatment and disposal of fecal sludge and sewage coming from septic tanks. Defendant DECS, to inculcate in the minds and hearts of the people through education the importance of preserving and protecting the environment. Defendant Philippine Coast Guard and the PNP Maritime Group, to protect at all costs the Manila Bay from all forms of illegal fishing. No pronouncement as to damages and costs. SO ORDERED. The MWSS, Local Water Utilities Administration (LWUA), and PPA filed before the Court of Appeals (CA) individual Notices of Appeal which were eventually consolidated and docketed as CA-G.R. CV No. 76528. On the other hand, the DENR, Department of Public Works and Highways (DPWH), Metropolitan Manila Development Authority (MMDA), Philippine Coast Guard (PCG), Philippine National Police (PNP) Maritime Group, and five other executive departments and agencies filed directly with this Court a petition for review under Rule 45. The Court, in a Resolution of December 9, 2002, sent the said petition to the CA for consolidation with the consolidated appeals of MWSS, LWUA, and PPA, docketed as CA-G.R. SP No. 74944. Petitioners, before the CA, were one in arguing in the main that the pertinent provisions of the Environment Code (PD 1152) relate only to the cleaning of specific pollution incidents and do not cover cleaning in general. And apart from raising concerns about the lack of funds appropriated for cleaning purposes, petitioners also asserted that the cleaning of the Manila Bay is not a ministerial act which can be compelled by mandamus. The CA Sustained the RTC By a Decisioniii[6] of September 28, 2005, the CA denied petitioners appeal and affirmed the Decision of the RTC in toto, stressing that the trial courts decision did not require petitioners to do tasks outside of their usual basic functions under existing laws.iii[7]

Inter alia, respondents, as plaintiffs a quo, prayed that petitioners be ordered to clean the Manila Bay and submit to the RTC a concerted concrete plan of action for the purpose. The trial of the case started off with a hearing at the Manila Yacht Club followed by an ocular inspection of the Manila Bay. Renato T. Cruz, the Chief of the Water Quality Management Section, Environmental Management Bureau, Department of Environment and Natural Resources (DENR), testifying for petitioners, stated that water samples collected from different beaches around the Manila Bay showed that the amount of fecal coliform content ranged from 50,000 to 80,000 most probable number (MPN)/ml when what DENR Administrative Order No. 34-90 prescribed as a safe level for bathing and other forms of contact recreational activities, or the SB level, is one not exceeding 200 MPN/100 ml.iii[4] Rebecca de Vera, for Metropolitan Waterworks and Sewerage System (MWSS) and in behalf of other petitioners, testified about the MWSS efforts to reduce pollution along the Manila Bay through the Manila Second Sewerage Project. For its part, the Philippine Ports Authority (PPA) presented, as part of its evidence, its memorandum circulars on the study being conducted on ship-generated waste treatment and disposal, and its LinisDagat (Clean the Ocean) project for the cleaning of wastes accumulated or washed to shore. The RTC Ordered Petitioners to Clean Up and Rehabilitate Manila Bay On September 13, 2002, the RTC rendered a Decisioniii[5] in favor of respondents. The dispositive portion reads: WHEREFORE, finding merit in the complaint, judgment is hereby rendered ordering the abovenamed defendantgovernment agencies, jointly and solidarily, to clean up and rehabilitate Manila Bay and restore its waters to SB classification to make it fit for swimming, skin-diving and other forms of contact recreation. To attain this, defendant-agencies, with defendant DENR as the lead agency, are directed, within six (6) months from receipt hereof, to act and perform their respective duties by devising a consolidated, coordinated and concerted scheme of action for the rehabilitation and restoration of the bay. In particular: Defendant MWSS is directed to install, operate and maintain adequate [sewerage] treatment facilities in strategic places under its jurisdiction and increase their capacities. Defendant LWUA, to see to it that the water districts under its wings, provide, construct and operate sewage facilities for the proper disposal of waste. Defendant DENR, which is the lead agency in cleaning up Manila Bay, to install, operate and maintain waste facilities to rid the bay of toxic and hazardous substances. Defendant PPA, to prevent and also to treat the discharge not only of shipgenerated wastes but also of other solid and

Petitioners are now before this Court praying for the allowance of their Rule 45 petition on the following ground and supporting arguments: THE [CA] DECIDED A QUESTION OF SUBSTANCE NOT HERETOFORE PASSED UPON BY THE HONORABLE COURT, I.E., IT AFFIRMED THE TRIAL COURTS DECISION DECLARING THAT SECTION 20 OF [PD] 1152 REQUIRES CONCERNED GOVERNMENT AGENCIES TO REMOVE ALL POLLUTANTS SPILLED AND DISCHARGED IN THE WATER SUCH AS FECAL COLIFORMS. ARGUMENTS I [SECTIONS] 17 AND 20 OF [PD] 1152 RELATE ONLY TO THE CLEANING OF SPECIFIC POLLUTION INCIDENTS AND [DO] NOT COVER CLEANING IN GENERAL II THE CLEANING OR REHABILITATION OF THE MANILA BAY IS NOT A MINISTERIAL ACT OF PETITIONERS THAT CAN BE COMPELLED BY MANDAMUS. The issues before us are two-fold. First, do Sections 17 and 20 of PD 1152 under the headings, Upgrading of Water Quality and Clean-up Operations, envisage a cleanup in general or are they limited only to the cleanup of specific pollution incidents? And second, can petitioners be compelled by mandamus to clean up and rehabilitate the Manila Bay? On August 12, 2008, the Court conducted and heard the parties on oral arguments. Our Ruling We shall first dwell on the propriety of the issuance of mandamus under the premises. The Cleaning or Rehabilitation of Manila Bay Can be Compelled by Mandamus Generally, the writ of mandamus lies to require the execution of a ministerial duty.iii[8] A ministerial duty is one that requires neither the exercise of official discretion nor judgment.iii[9] It connotes an act in which nothing is left to the discretion of the person executing it. It is a simple, definite duty arising under conditions admitted or proved to exist and imposed by law.iii[10] Mandamus is available to compel action, when refused, on matters involving discretion, but not to direct the exercise of judgment or discretion one way or the other. Petitioners maintain that the MMDAs duty to take measures and maintain adequate solid waste and liquid disposal systems necessarily involves policy evaluation and the exercise of judgment on the part of the agency concerned. They argue that the MMDA, in carrying out its mandate, has to make decisions, including choosing where a landfill should be located by undertaking feasibility studies and cost estimates, all of which entail the exercise of discretion. Respondents, on the other hand, counter that the statutory command is clear and that petitioners duty to comply with and act according to the clear mandate of the law does not require the exercise of discretion. According to respondents, petitioners, the MMDA in particular, are without discretion, for example, to choose which bodies of water they are to clean up, or which discharge or spill they are to contain. By the same token, respondents maintain that petitioners are bereft of discretion on whether or not to alleviate the problem of solid and liquid waste disposal; in other words, it is the MMDAs ministerial duty to attend to such services. We agree with respondents. First off, we wish to state that petitioners obligation to perform their duties as defined by law, on one hand, and how they are to carry out such duties, on the other, are two

different concepts. While the implementation of the MMDAs mandated tasks may entail a decision-making process, the enforcement of the law or the very act of doing what the law exacts to be done is ministerial in nature and may be compelled by mandamus. We said so in Social Justice Society v. Atienzaiii[11]in which the Court directed the City of Manila to enforce, as a matter of ministerial duty, its Ordinance No. 8027 directing the three big local oil players to cease and desist from operating their business in the so-called Pandacan Terminals within six months from the effectivity of the ordinance. But to illustrate with respect to the instant case,the MMDAs duty to put up an adequate and appropriate sanitary landfill and solid waste and liquid disposal as well as other alternative garbage disposal systems is ministerial, its duty being a statutory imposition. The MMDAs duty in this regard is spelled out in Sec. 3(c) of Republic Act No. (RA) 7924 creating the MMDA. This section defines and delineates the scope of the MMDAs waste disposal services to include: Solid waste disposal and management which include formulation and implementation of policies, standards, programs and projects for proper and sanitary waste disposal. It shall likewise include the establishment and operation of sanitary land fill and related facilities and the implementation of other alternative programs intended to reduce, reuse and recycle solid waste. (Emphasis added.) The MMDA is duty-bound to comply with Sec. 41 of the Ecological Solid Waste Management Act (RA 9003) which prescribes the minimum criteria for the establishment of sanitary landfills and Sec. 42 which provides the minimum operating requirements that each site operator shall maintain in the operation of a sanitary landfill. Complementing Sec. 41 are Secs. 36 and 37 of RA 9003,iii[12] enjoining the MMDA and local government units, among others, after the effectivity of the law on February 15, 2001, from using and operating open dumps for solid waste and disallowing, five years after such effectivity, the use of controlled dumps. The MMDAs duty in the area of solid waste disposal, as may be noted, is set forth not only in the Environment Code (PD 1152) and RA 9003, but in its charter as well. This duty of putting up a proper waste disposal system cannot be characterized as discretionary, for, as earlier stated, discretion presupposes the power or right given by law to public functionaries to act officially according to their judgment or conscience.iii[13] A discretionary duty is one that allows a person to exercise judgment and choose to perform or not to perform.iii[14] Any suggestion that the MMDA has the option whether or not to perform its solid waste disposal-related duties ought to be dismissed for want of legal basis. A perusal of other petitioners respective charters or like enabling statutes and pertinent laws would yield this conclusion: these government agencies are enjoined, as a matter of statutory obligation, to perform certain functions relating directly or indirectly to the cleanup, rehabilitation, protection, and preservation of the Manila Bay. They are precluded from choosing not to perform these duties. Consider: (1) The DENR, under Executive Order No. (EO) 192,iii[15] is the primary agency responsible for the conservation, management, development, and proper use of the countrys environment and natural resources. Sec. 19 of the Philippine Clean Water Act of 2004 (RA 9275), on the other hand, designates the DENR as the primary government agency responsible for its enforcement and implementation, more particularly over all aspects of water quality management. On water pollution, the DENR, under the Acts Sec. 19(k), exercises jurisdiction over all aspects of water pollution, determine[s] its location, magnitude, extent, severity, causes and effects and other pertinent information on pollution, and [takes] measures, using available methods and technologies, to prevent and abate such pollution. The DENR, under RA 9275, is also tasked to prepare a National Water Quality Status Report, an Integrated Water Quality Management Framework, and a 10-year Water Quality Management Area Action Plan which is nationwide in scope covering the Manila Bay and adjoining areas. Sec. 19 of RA 9275 provides:

Sec. 19 Lead Agency.The [DENR] shall be the primary government agency responsible for the implementation and enforcement of this Act x xx unless otherwise provided herein. As such, it shall have the following functions, powers and responsibilities: a) Prepare a National Water Quality Status report within twenty-four (24) months from the effectivity of this Act: Provided, That the Department shall thereafter review or revise and publish annually, or as the need arises, said report; Prepare an Integrated Water Quality Management Framework within twelve (12) months following the completion of the status report; Prepare a ten (10) year Water Quality Management Area Action Plan within 12 months following the completion of the framework for each designated water management area. Such action plan shall be reviewed by the water quality management area governing board every five (5) years or as need arises.

the DA, under the Philippine Fisheries Code of 1998 (RA 8550), is, in coordination with local government units (LGUs) and other concerned sectors, in charge of establishing a monitoring, control, and surveillance system to ensure that fisheries and aquatic resources in Philippine waters are judiciously utilized and managed on a sustainable basis.iii[21] Likewise under RA 9275, the DA is charged with coordinating with the PCG and DENR for the enforcement of water quality standards in marine waters.iii[22] More specifically, its Bureau of Fisheries and Aquatic Resources (BFAR) under Sec. 22(c) of RA 9275 shall primarily be responsible for the prevention and control of water pollution for the development, management, and conservation of the fisheries and aquatic resources. (5) The DPWH, as the engineering and construction arm of the national government, is tasked under EO 292iii[23] to provide integrated planning, design, and construction services for, among others, flood control and water resource development systems in accordance with national development objectives and approved government plans and specifications. In Metro Manila, however, the MMDA is authorized by Sec. 3(d), RA 7924 to perform metro-wide services relating to flood control and sewerage management which include the formulation and implementation of policies, standards, programs and projects for an integrated flood control, drainage and sewerage system. On July 9, 2002, a Memorandum of Agreement was entered into between the DPWH and MMDA, whereby MMDA was made the agency primarily responsible for flood control in Metro Manila. For the rest of the country, DPWH shall remain as the implementing agency for flood control services. The mandate of the MMDA and DPWH on flood control and drainage services shall include the removal of structures, constructions, and encroachments built along rivers, waterways, and esteros (drainages) in violation of RA 7279, PD 1067, and other pertinent laws. (6) The PCG, in accordance with Sec. 5(p) of PD 601, or the Revised Coast Guard Law of 1974, and Sec. 6 of PD 979,iii[24] or the Marine Pollution Decree of 1976, shall have the primary responsibility of enforcing laws, rules, and regulations governing marine pollution within the territorial waters of the Philippines. It shall promulgate its own rules and regulations in accordance with the national rules and policies set by the National Pollution Control Commission upon consultation with the latter for the effective implementation and enforcement of PD 979. It shall, under Sec. 4 of the law, apprehend violators who: a. discharge, dump x xx harmful substances from or out of any ship, vessel, barge, or any other floating craft, or other man-made structures at sea, by any method, means or manner, into or upon the territorial and inland navigable waters of the Philippines; b. throw, discharge or deposit, dump, or cause, suffer or procure to be thrown, discharged, or deposited either from or out of any ship, barge, or other floating craft or vessel of any kind, or from the shore, wharf, manufacturing establishment, or mill of any kind, any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state into tributary of any navigable water from which the same shall float or be washed into such navigable water; and c. deposit x xx material of any kind in any place on the bank of any navigable water or on the bank of any tributary of any navigable water, where the same shall be liable to be washed into such navigable water, either by ordinary or high tides, or by storms or floods, or otherwise, whereby navigation shall or may be impeded or obstructed or increase the level of pollution of such water.

b)

c)

The DENR has prepared the status report for the period 2001 to 2005 and is in the process of completing the preparation of the Integrated Water Quality Management Framework.iii[16] Within twelve (12) months thereafter, it has to submit a final Water Quality Management Area Action Plan.iii[17] Again, like the MMDA, the DENR should be made to accomplish the tasks assigned to it under RA 9275. Parenthetically, during the oral arguments, the DENR Secretary manifested that the DENR, with the assistance of and in partnership with various government agencies and non-government organizations, has completed, as of December 2005, the final draft of a comprehensive action plan with estimated budget and time frame, denominated as Operation Plan for the Manila Bay Coastal Strategy, for the rehabilitation, restoration, and rehabilitation of the Manila Bay. The completion of the said action plan and even the implementation of some of its phases should more than ever prod the concerned agencies to fast track what are assigned them under existing laws. (2) The MWSS, under Sec. 3 of RA 6234,iii[18] is vested with jurisdiction, supervision, and control over all waterworks and sewerage systems in the territory comprising what is now the cities of Metro Manila and several towns of the provinces of Rizal and Cavite, and charged with the duty: (g) To construct, maintain, and operate such sanitary sewerages as may be necessary for the proper sanitation and other uses of the cities and towns comprising the System; x xx (3) The LWUA under PD 198 has the power of supervision and control over local water districts. It can prescribe the minimum standards and regulations for the operations of these districts and shall monitor and evaluate local water standards. The LWUA can direct these districts to construct, operate, and furnish facilities and services for the collection, treatment, and disposal of sewerage, waste, and storm water. Additionally, under RA 9275, the LWUA, as attached agency of the DPWH, is tasked with providing sewerage and sanitation facilities, inclusive of the setting up of efficient and safe collection, treatment, and sewage disposal system in the different parts of the country.iii[19] In relation to the instant petition, the LWUA is mandated to provide sewerage and sanitation facilities in Laguna, Cavite, Bulacan, Pampanga, and Bataan to prevent pollution in the Manila Bay. (4) The Department of Agriculture (DA), pursuant to the Administrative Code of 1987 (EO 292),iii[20] is designated as the agency tasked to promulgate and enforce all laws and issuances respecting the conservation and proper utilization of agricultural and fishery resources. Furthermore,

(7) When RA 6975 or the Department of the Interior and Local Government (DILG) Act of 1990 was signed into law on December 13, 1990, the PNP Maritime Group was tasked to perform all police functions over the Philippine territorial waters and rivers. Under Sec. 86, RA 6975, the police functions of the PCG shall be taken over by the PNP when the latter acquires the capability to perform such functions. Since the PNP Maritime Group has not yet attained the capability to assume and perform the police functions of PCG over marine pollution, the PCG and PNP Maritime Group shall coordinate with regard to the enforcement of laws, rules, and regulations governing marine pollution within the territorial waters of the Philippines. This was made clear in Sec. 124, RA 8550 or the Philippine Fisheries Code of 1998, in which both the PCG and PNP Maritime Group were authorized to enforce said law and other fishery laws, rules, and regulations.iii[25] (8) In accordance with Sec. 2 of EO 513, the PPA is mandated to establish, develop, regulate, manage and operate a rationalized national port system in support of trade and national development.iii[26] Moreover, Sec. 6-c of EO 513 states that the PPA has police authority within the ports administered by it as may be necessary to carry out its powers and functions and attain its purposes and objectives, without prejudice to the exercise of the functions of the Bureau of Customs and other law enforcement bodies within the area. Such police authority shall include the following: x xxx b) To regulate the entry to, exit from, and movement within the port, of persons and vehicles, as well as movement within the port of watercraft.iii[27] Lastly, as a member of the International Marine Organization and a signatory to the International Convention for the Prevention of Pollution from Ships, as amended by MARPOL 73/78,iii[28] the Philippines, through the PPA, must ensure the provision of adequate reception facilities at ports and terminals for the reception of sewage from the ships docking in Philippine ports. Thus, the PPA is tasked to adopt such measures as are necessary to prevent the discharge and dumping of solid and liquid wastes and other ship-generated wastes into the Manila Bay waters from vessels docked at ports and apprehend the violators. When the vessels are not docked at ports but within Philippine territorial waters, it is the PCG and PNP Maritime Group that have jurisdiction over said vessels. (9) The MMDA, as earlier indicated, is duty-bound to put up and maintain adequate sanitary landfill and solid waste and liquid disposal system as well as other alternative garbage disposal systems. It is primarily responsible for the implementation and enforcement of the provisions of RA 9003, which would necessary include its penal provisions, within its area of jurisdiction.iii[29] Among the prohibited acts under Sec. 48, Chapter VI of RA 9003 that are frequently violated are dumping of waste matters in public places, such as roads, canals or esteros, open burning of solid waste, squatting in open dumps and landfills, open dumping, burying of biodegradable or nonbiodegradable materials in flood-prone areas, establishment or operation of open dumps as enjoined in RA 9003, and operation of waste management facilities without an environmental compliance certificate. Under Sec. 28 of the Urban Development and Housing Act of 1992 (RA 7279), eviction or demolition may be allowed when persons or entities occupy danger areas such as esteros, railroad tracks, garbage dumps, riverbanks, shorelines, waterways, and other public places such as sidewalks, roads, parks and playgrounds. The MMDA, as lead agency, in coordination with the DPWH, LGUs, and concerned agencies, can dismantle and remove all structures, constructions, and other encroachments built in breach of RA 7279 and other pertinent laws along the rivers, waterways, and esteros in Metro Manila. With respect to rivers, waterways, and esteros in Bulacan, Bataan, Pampanga, Cavite, and Laguna that discharge wastewater directly or eventually into the Manila Bay, the DILG shall direct the concerned LGUs to implement the demolition and removal of

such structures, constructions, and other encroachments built in violation of RA 7279 and other applicable laws in coordination with the DPWH and concerned agencies. (10) The Department of Health (DOH), under Article 76 of PD 1067 (the Water Code), is tasked to promulgate rules and regulations for the establishment of waste disposal areas that affect the source of a water supply or a reservoir for domestic or municipal use. And under Sec. 8 of RA 9275, the DOH, in coordination with the DENR, DPWH, and other concerned agencies, shall formulate guidelines and standards for the collection, treatment, and disposal of sewage and the establishment and operation of a centralized sewage treatment system. In areas not considered as highly urbanized cities, septage or a mix sewerage-septage management system shall be employed. In accordance with Sec. 72iii[30] of PD 856, the Code of Sanitation of the Philippines, and Sec. 5.1.1iii[31] of Chapter XVII of its implementing rules, the DOH is also ordered to ensure the regulation and monitoring of the proper disposal of wastes by private sludge companies through the strict enforcement of the requirement to obtain an environmental sanitation clearance of sludge collection treatment and disposal before these companies are issued their environmental sanitation permit. (11) The Department of Education (DepEd), under the Philippine Environment Code (PD 1152), is mandated to integrate subjects on environmental education in its school curricula at all levels.iii[32] Under Sec. 118 of RA 8550, the DepEd, in collaboration with the DA, Commission on Higher Education, and Philippine Information Agency, shall launch and pursue a nationwide educational campaign to promote the development, management, conservation, and proper use of the environment. Under the Ecological Solid Waste Management Act (RA 9003), on the other hand, it is directed to strengthen the integration of environmental concerns in school curricula at all levels, with an emphasis on waste management principles.iii[33] (12) The Department of Budget and Management (DBM) is tasked under Sec. 2, Title XVII of the Administrative Code of 1987 to ensure the efficient and sound utilization of government funds and revenues so as to effectively achieve the countrys development objectives.iii[34] One of the countrys development objectives is enshrined in RA 9275 or the Philippine Clean Water Act of 2004. This law stresses that the State shall pursue a policy of economic growth in a manner consistent with the protection, preservation, and revival of the quality of our fresh, brackish, and marine waters. It also provides that it is the policy of the government, among others, to streamline processes and procedures in the prevention, control, and abatement of pollution mechanisms for the protection of water resources; to promote environmental strategies and use of appropriate economic instruments and of control mechanisms for the protection of water resources; to formulate a holistic national program of water quality management that recognizes that issues related to this management cannot be separated from concerns about water sources and ecological protection, water supply, public health, and quality of life; and to provide a comprehensive management program for water pollution focusing on pollution prevention. Thus, the DBM shall then endeavor to provide an adequate budget to attain the noble objectives of RA 9275 in line with the countrys development objectives. All told, the aforementioned enabling laws and issuances are in themselves clear, categorical, and complete as to what are the obligations and mandate of each agency/petitioner under the law. We need not belabor the issue that their tasks include the cleanup of the Manila Bay. Now, as to the crux of the petition. Do Secs. 17 and 20 of the Environment Code encompass the cleanup of water pollution in general, not just specific pollution incidents? Secs. 17 and 20 of the Environment Code Include Cleaning in General The disputed sections are quoted as follows: Section 17. Upgrading of Water Quality. Where the quality of water has deteriorated

to a degree where its state will adversely affect its best usage, the government agencies concerned shall take such measures as may be necessary to upgrade the quality of such water to meet the prescribed water quality standards. Section 20.Clean-up Operations.It shall be the responsibility of the polluter to contain, remove and clean-up water pollution incidents at his own expense. In case of his failure to do so, the government agencies concerned shall undertake containment, removal and clean-up operations and expenses incurred in said operations shall be charged against the persons and/or entities responsible for such pollution. When the Clean Water Act (RA 9275) took effect, its Sec. 16 on the subject, Cleanup Operations, amended the counterpart provision (Sec. 20) of the Environment Code (PD 1152). Sec. 17 of PD 1152 continues, however, to be operational. The amendatory Sec. 16 of RA 9275 reads: SEC. 16. Cleanup Operations. Notwithstanding the provisions of Sections 15 and 26 hereof, any person who causes pollution in or pollutes water bodies in excess of the applicable and prevailing standards shall be responsible to contain, remove and clean up any pollution incident at his own expense to the extent that the same water bodies have been rendered unfit for utilization and beneficial use: Provided, That in the event emergency cleanup operations are necessary and the polluter fails to immediately undertake the same, the [DENR] in coordination with other government agencies concerned, shall undertake containment, removal and cleanup operations. Expenses incurred in said operations shall be reimbursed by the persons found to have caused such pollution under proper administrative determination x xx. Reimbursements of the cost incurred shall be made to the Water Quality Management Fund or to such other funds where said disbursements were sourced. As may be noted, the amendment to Sec. 20 of the Environment Code is more apparent than real since the amendment, insofar as it is relevant to this case, merely consists in the designation of the DENR as lead agency in the cleanup operations. Petitioners contend at every turn that Secs. 17 and 20 of the Environment Code concern themselves only with the matter of cleaning up in specific pollution incidents, as opposed to cleanup in general. They aver that the twin provisions would have to be read alongside the succeeding Sec. 62(g) and (h), which defines the terms cleanup operations and accidental spills, as follows: g. Clean-up Operations [refer] to activities conducted in removing the pollutants discharged or spilled in water to restore it to pre-spill condition. h. Accidental Spills [refer] to spills of oil or other hazardous substances in water that result from accidents such as collisions and groundings.

of said Sec. 20 is limited only to water pollution incidents, which are situations that presuppose the occurrence of specific, isolated pollution events requiring the corresponding containment, removal, and cleaning operations. Pushing the point further, they argue that the aforequoted Sec. 62(g) requires cleanup operations to restore the body of water to pre-spill condition, which means that there must have been a specific incident of either intentional or accidental spillage of oil or other hazardous substances, as mentioned in Sec. 62(h). As a counterpoint,respondents argue that petitioners erroneously read Sec. 62(g) as delimiting the application of Sec. 20 to the containment, removal, and cleanup operations for accidental spills only. Contrary to petitioners posture, respondents assert that Sec. 62(g), in fact, even expanded the coverage of Sec. 20. Respondents explain that without its Sec. 62(g), PD 1152 may have indeed covered only pollution accumulating from the day-to-day operations of businesses around the Manila Bay and other sources of pollution that slowly accumulated in the bay. Respondents, however, emphasize that Sec. 62(g), far from being a delimiting provision, in fact even enlarged the operational scope of Sec. 20, by including accidental spills as among the water pollution incidents contemplated in Sec. 17 in relation to Sec. 20 of PD 1152. To respondents, petitioners parochial view on environmental issues, coupled with their narrow reading of their respective mandated roles, has contributed to the worsening water quality of the Manila Bay. Assuming, respondents assert, that petitioners are correct in saying that the cleanup coverage of Sec. 20 of PD 1152 is constricted by the definition of the phrase cleanup operations embodied in Sec. 62(g), Sec. 17 is not hobbled by such limiting definition. As pointed out, the phrases cleanup operations and accidental spills do not appear in said Sec. 17, not even in the chapter where said section is found. Respondents are correct. For one thing, said Sec. 17 does not in any way state that the government agencies concerned ought to confine themselves to the containment, removal, and cleaning operations when a specific pollution incident occurs. On the contrary, Sec. 17 requires them to act even in the absence of a specific pollution incident, as long as water quality has deteriorated to a degree where its state will adversely affect its best usage. This section, to stress, commands concerned government agencies, when appropriate, to take such measures as may be necessary to meet the prescribed water quality standards. In fine, the underlying duty to upgrade the quality of water is not conditional on the occurrence of any pollution incident. For another, a perusal of Sec. 20 of the Environment Code, as couched, indicates that it is properly applicable to a specific situation in which the pollution is caused by polluters who fail to clean up the mess they left behind. In such instance, the concerned government agencies shall undertake the cleanup work for the polluters account. Petitioners assertion, that they have to perform cleanup operations in the Manila Bay only when there is a water pollution incident and the erring polluters do not undertake the containment, removal, and cleanup operations, is quite off mark. As earlier discussed, the complementary Sec. 17 of the Environment Code comes into play and the specific duties of the agencies to clean up come in even if there are no pollution incidents staring at them. Petitioners, thus, cannot plausibly invoke and hide behind Sec. 20 of PD 1152 or Sec. 16 of RA 9275 on the pretext that their cleanup mandate depends on the happening of a specific pollution incident. In this regard, what the CA said with respect to the impasse over Secs. 17 and 20 of PD 1152 is at once valid as it is practical. The appellate court wrote: PD 1152 aims to introduce a comprehensive program of environmental protection and management. This is better served by making Secs. 17 & 20 of general application rather than limiting them to specific pollution incidents.iii[35] Granting arguendo that petitioners position thus described vis--vis the implementation of Sec. 20 is correct, they seem to have overlooked the fact that the pollution of the Manila Bay is of such magnitude and scope that it is wellnigh impossible to draw the line between a specific and a general pollution incident. And such impossibility extends to pinpointing with reasonable certainty who the polluters are. We note that Sec. 20 of PD 1152 mentions water pollution incidents which may be caused by polluters in the waters of

Petitioners proffer the argument that Secs. 17 and 20 of PD 1152 merely direct the government agencies concerned to undertake containment, removal, and cleaning operations of a specific polluted portion or portions of the body of water concerned. They maintain that the application

the Manila Bay itself or by polluters in adjoining lands and in water bodies or waterways that empty into the bay. Sec. 16 of RA 9275, on the other hand, specifically adverts to any person who causes pollution in or pollutes water bodies, which may refer to an individual or an establishment that pollutes the land mass near the Manila Bay or the waterways, such that the contaminants eventually end up in the bay. In this situation, the water pollution incidents are so numerous and involve nameless and faceless polluters that they can validly be categorized as beyond the specific pollution incident level. Not to be ignored of course is the reality that the government agencies concerned are so undermanned that it would be almost impossible to apprehend the numerous polluters of the Manila Bay. It may perhaps not be amiss to say that the apprehension, if any, of the Manila Bay polluters has been few and far between. Hence, practically nobody has been required to contain, remove, or clean up a given water pollution incident. In this kind of setting, it behooves the Government to step in and undertake cleanup operations. Thus, Sec. 16 of RA 9275, previously Sec. 20 of PD 1152, covers for all intents and purposes a general cleanup situation. The cleanup and/or restoration of the Manila Bay is only an aspect and the initial stage of the long-term solution. The preservation of the water quality of the bay after the rehabilitation process is as important as the cleaning phase. It is imperative then that the wastes and contaminants found in the rivers, inland bays, and other bodies of water be stopped from reaching the Manila Bay. Otherwise, any cleanup effort would just be a futile, cosmetic exercise, for, in no time at all, the Manila Bay water quality would again deteriorate below the ideal minimum standards set by PD 1152, RA 9275, and other relevant laws. It thus behooves the Court to put the heads of the petitioner-department-agencies and the bureaus and offices under them on continuing notice about, and to enjoin them to perform, their mandates and duties towards cleaning up the Manila Bay and preserving the quality of its water to the ideal level. Under what other judicial discipline describes as continuing mandamus,iii[36] the Court may, under extraordinary circumstances, issue directives with the end in view of ensuring that its decision would not be set to naught by administrative inaction or indifference. In India, the doctrine of continuing mandamus was used to enforce directives of the court to clean up the length of the Ganges River from industrial and municipal pollution.iii[37] The Court can take judicial notice of the presence of shanties and other unauthorized structures which do not have septic tanks along the Pasig-Marikina-San Juan Rivers, the National Capital Region (NCR) (Paraaque-Zapote, Las Pias) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, the Meycuayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the Laguna De Bay, and other minor rivers and connecting waterways, river banks, and esteros which discharge their waters, with all the accompanying filth, dirt, and garbage, into the major rivers and eventually the Manila Bay. If there is one factor responsible for the pollution of the major river systems and the Manila Bay, these unauthorized structures would be on top of the list. And if the issue of illegal or unauthorized structures is not seriously addressed with sustained resolve, then practically all efforts to cleanse these important bodies of water would be for naught. The DENR Secretary said as much.iii[38] Giving urgent dimension to the necessity of removing these illegal structures is Art. 51 of PD 1067 or the Water Code,iii[39] which prohibits the building of structures within a given length along banks of rivers and other waterways. Art. 51 reads: The banks of rivers and streams and the shores of the seas and lakes throughout their entire length and within a zone of three (3) meters in urban areas, twenty (20) meters in agricultural areas and forty (40) meters in forest areas, along their margins, are subject to the easement of public use in the interest of recreation, navigation, floatage, fishing and salvage.No person shall be allowed to stay in this zone longer than what is necessary for recreation, navigation, floatage, fishing or

salvage or to build structures of any kind. (Emphasis added.) Judicial notice may likewise be taken of factories and other industrial establishments standing along or near the banks of the Pasig River, other major rivers, and connecting waterways. But while they may not be treated as unauthorized constructions, some of these establishments undoubtedly contribute to the pollution of the Pasig River and waterways. The DILG and the concerned LGUs, have, accordingly, the duty to see to it that non-complying industrial establishments set up, within a reasonable period, the necessary waste water treatment facilities and infrastructure to prevent their industrial discharge, including their sewage waters, from flowing into the Pasig River, other major rivers, and connecting waterways. After such period, non-complying establishments shall be shut down or asked to transfer their operations. At this juncture, and if only to dramatize the urgency of the need for petitioners-agencies to comply with their statutory tasks, we cite the Asian Development Bankcommissioned study on the garbage problem in Metro Manila, the results of which are embodied in the The Garbage Book. As there reported, the garbage crisis in the metropolitan area is as alarming as it is shocking. Some highlights of the report: 1. As early as 2003, three landfilled dumpsites in Metro Manila - the Payatas, Catmon and Rodriquez dumpsites generate an alarming quantity of lead and leachate or liquid run-off. Leachate are toxic liquids that flow along the surface and seep into the earth and poison the surface and groundwater that are used for drinking, aquatic life, and the environment. 2. The high level of fecal coliform confirms the presence of a large amount of human waste in the dump sites and surrounding areas, which is presumably generated by households that lack alternatives to sanitation. To say that Manila Bay needs rehabilitation is an understatement. 3. Most of the deadly leachate, lead and other dangerous contaminants and possibly strains of pathogens seeps untreated into ground water and runs into the Marikina and Pasig River systems and Manila Bay.iii[40] Given the above perspective, sufficient sanitary landfills should now more than ever be established as prescribed by the Ecological Solid Waste Management Act (RA 9003). Particular note should be taken of the blatant violations by some LGUs and possibly the MMDA of Sec. 37, reproduced below: Sec. 37. Prohibition against the Use of Open Dumps for Solid Waste.No open dumps shall be established and operated, nor any practice or disposal of solid waste by any person, including LGUs which [constitute] the use of open dumps for solid waste, be allowed after the effectivity of this Act: Provided, further that no controlled dumps shall be allowed (5) years following the effectivity of this Act. (Emphasis added.) RA 9003 took effect on February 15, 2001 and the adverted grace period of five (5) years which ended on February 21, 2006 has come and gone, but no single sanitary landfill which strictly complies with the prescribed standards under RA 9003 has yet been set up. In addition, there are rampant and repeated violations of Sec. 48 of RA 9003, like littering, dumping of waste matters in roads, canals, esteros,and other public places, operation of open dumps, open burning of solid waste, and the like. Some sludge companies which do not have proper disposal facilities simply discharge sludge into the Metro Manila sewerage system that ends up in the Manila

Bay. Equally unabated are violations of Sec. 27 of RA 9275, which enjoins the pollution of water bodies, groundwater pollution, disposal of infectious wastes from vessels, and unauthorized transport or dumping into sea waters of sewage or solid waste and of Secs. 4 and 102 of RA 8550 which proscribes the introduction by human or machine of substances to the aquatic environment including dumping/disposal of waste and other marine litters, discharge of petroleum or residual products of petroleum of carbonaceous materials/substances [and other] radioactive, noxious or harmful liquid, gaseous or solid substances, from any water, land or air transport or other human-made structure. In the light of the ongoing environmental degradation, the Court wishes to emphasize the extreme necessity for all concerned executive departments and agencies to immediately act and discharge their respective official duties and obligations. Indeed, time is of the essence; hence, there is a need to set timetables for the performance and completion of the tasks, some of them as defined for them by law and the nature of their respective offices and mandates. The importance of the Manila Bay as a sea resource, playground, and as a historical landmark cannot be overemphasized. It is not yet too late in the day to restore the Manila Bay to its former splendor and bring back the plants and sea life that once thrived in its blue waters. But the tasks ahead, daunting as they may be, could only be accomplished if those mandated, with the help and cooperation of all civicminded individuals, would put their minds to these tasks and take responsibility. This means that the State, through petitioners, has to take the lead in the preservation and protection of the Manila Bay. The era of delays, procrastination, and ad hoc measures is over. Petitioners must transcend their limitations, real or imaginary, and buckle down to work before the problem at hand becomes unmanageable. Thus, we must reiterate that different government agencies and instrumentalities cannot shirk from their mandates; they must perform their basic functions in cleaning up and rehabilitating the Manila Bay. We are disturbed by petitioners hiding behind two untenable claims: (1) that there ought to be a specific pollution incident before they are required to act; and (2) that the cleanup of the bay is a discretionary duty. RA 9003 is a sweeping piece of legislation enacted to radically transform and improve waste management. It implements Sec. 16, Art. II of the 1987 Constitution, which explicitly provides that the State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. So it was that in Oposa v. Factoran, Jr. the Court stated that the right to a balanced and healthful ecology need not even be written in the Constitution for it is assumed, like other civil and political rights guaranteed in the Bill of Rights, to exist from the inception of mankind and it is an issue of transcendental importance with intergenerational implications.iii[41] Even assuming the absence of a categorical legal provision specifically prodding petitioners to clean up the bay, they and the men and women representing them cannot escape their obligation to future generations of Filipinos to keep the waters of the Manila Bay clean and clear as humanly as possible. Anything less would be a betrayal of the trust reposed in them. WHEREFORE, the petition is DENIED. The September 28, 2005 Decision of the CA in CA-G.R. CV No. 76528 and SP No. 74944 and the September 13, 2002 Decision of the RTC in Civil Case No. 1851-99 are AFFIRMED but with MODIFICATIONS in view of subsequent developments or supervening events in the case. The fallo of the RTC Decision shall now read: WHEREFORE, judgment is hereby rendered ordering the abovenamed defendant-government agencies to clean up, rehabilitate, and preserve Manila Bay, and restore and maintain its waters to SB level (Class B sea waters per Water Classification Tables under DENR Administrative Order No. 34 [1990])to make them fit for swimming, skin-diving, and other forms of contact recreation.

In particular: (1) Pursuant to Sec. 4 of EO 192, assigning the DENR as the primary agency responsible for the conservation, management, development, and proper use of the countrys environment and natural resources, and Sec. 19 of RA 9275, designating the DENR as the primary government agency responsible for its enforcement and implementation, the DENR is directed to fully implement its Operational Plan for the Manila Bay Coastal Strategy for the rehabilitation, restoration, and conservation of the Manila Bay at the earliest possible time. It is ordered to call regular coordination meetings with concerned government departments and agencies to ensure the successful implementation of the aforesaid plan of action in accordance with its indicated completion schedules. (2) Pursuant to Title XII (Local Government) of the Administrative Code of 1987 and Sec. 25 of the Local Government Code of 1991,iii[42] the DILG, in exercising the Presidents power of general supervision and its duty to promulgate guidelines in establishing waste management programs under Sec. 43 of the Philippine Environment Code (PD 1152), shall direct all LGUs in Metro Manila, Rizal, Laguna, Cavite, Bulacan, Pampanga, and Bataan to inspect all factories, commercial establishments, and private homes along the banks of the major river systems in their respective areas of jurisdiction, such as but not limited to the PasigMarikina-San Juan Rivers, the NCR (Paraaque-Zapote, Las Pias) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, the Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the Laguna De Bay, and other minor rivers and waterways that eventually discharge water into the Manila Bay; and the lands abutting the bay, to determine whether they have wastewater treatment facilities or hygienic septic tanks as prescribed by existing laws, ordinances, and rules and regulations. If none be found, these LGUs shall be ordered to require noncomplying establishments and homes to set up said facilities or septic tanks within a reasonable time to prevent industrial wastes, sewage water, and human wastes from flowing into these rivers, waterways, esteros, and the Manila Bay, under pain of closure or imposition of fines and other sanctions. (3) As mandated by Sec. 8 of RA 9275,iii[43] the MWSS is directed to provide, install, operate, and maintain the necessary adequate waste water treatment facilities in Metro Manila, Rizal, and Cavite where needed at the earliest possible time. (4) Pursuant to RA 9275,iii[44] the LWUA, through the local water districts and in coordination with the DENR, is ordered to provide, install, operate, and maintain sewerage and sanitation facilities and the efficient and safe collection, treatment, and disposal of sewage in the provinces of Laguna, Cavite, Bulacan, Pampanga, and Bataan where needed at the earliest possible time. (5) Pursuant to Sec. 65 of RA 8550,iii[45] the DA, through the BFAR, is ordered to improve and restore the marine life of the Manila Bay. It is also directed to assist the LGUs in Metro Manila, Rizal, Cavite, Laguna, Bulacan, Pampanga, and Bataan in developing, using recognized methods, the fisheries and aquatic resources in the Manila Bay. (6) The PCG, pursuant to Secs. 4 and 6 of PD 979, and the PNP Maritime Group, in accordance with Sec. 124 of RA 8550, in coordination with each other, shall apprehend violators of PD 979, RA 8550, and other existing laws and regulations designed to prevent marine pollution in the Manila Bay. (7) Pursuant to Secs. 2 and 6-c of EO 513iii[46] and the International Convention for the Prevention of Pollution from Ships, the PPA is ordered to immediately adopt such measures to prevent the discharge and dumping of solid and liquid wastes and other ship-generated wastes into the Manila Bay waters from vessels docked at ports and apprehend the violators. (8) The MMDA, as the lead agency and implementor of programs and projects for flood control projects and drainage services in Metro Manila, in coordination with the DPWH, DILG, affected LGUs, PNP Maritime Group, Housing and Urban Development Coordinating Council (HUDCC), and

other agencies, shall dismantle and remove all structures, constructions, and other encroachments established or built in violation of RA 7279, and other applicable laws along the Pasig-Marikina-San Juan Rivers, the NCR (Paraaque-Zapote, Las Pias) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, and connecting waterways and esteros in Metro Manila. The DPWH, as the principal implementor of programs and projects for flood control services in the rest of the country more particularly in Bulacan, Bataan, Pampanga, Cavite, and Laguna, in coordination with the DILG, affected LGUs, PNP Maritime Group, HUDCC, and other concerned government agencies, shall remove and demolish all structures, constructions, and other encroachments built in breach of RA 7279 and other applicable laws along the Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the Laguna De Bay, and other rivers, connecting waterways, and esteros that discharge wastewater into the Manila Bay. In addition, the MMDA is ordered to establish, operate, and maintain a sanitary landfill, as prescribed by RA 9003, within a period of one (1) year from finality of this Decision. On matters within its territorial jurisdiction and in connection with the discharge of its duties on the maintenance of sanitary landfills and like undertakings, it is also ordered to cause the apprehension and filing of the appropriate criminal cases against violators of the respective penal provisions of RA 9003,iii[47] Sec. 27 of RA 9275 (the Clean Water Act), and other existing laws on pollution. (9) The DOH shall, as directed by Art. 76 of PD 1067 and Sec. 8 of RA 9275, within one (1) year from finality of this Decision, determine if all licensed septic and sludge companies have the proper facilities for the treatment and disposal of fecal sludge and sewage coming from septic tanks. The DOH shall give the companies, if found to be noncomplying, a reasonable time within which to set up the necessary facilities under pain of cancellation of its environmental sanitation clearance. (10) Pursuant to Sec. 53 of PD 1152,iii[48] Sec. 118 of RA 8550, and Sec. 56 of RA 9003,iii[49] the DepEd shall integrate lessons on pollution prevention, waste management, environmental protection, and like subjects in the school curricula of all levels to inculcate in the minds and hearts of students and, through them, their parents and friends, the importance of their duty toward achieving and maintaining a balanced and healthful ecosystem in the Manila Bay and the entire Philippine archipelago. (11) The DBM shall consider incorporating an adequate budget in the General Appropriations Act of 2010 and succeeding years to cover the expenses relating to the cleanup, restoration, and preservation of the water quality of the Manila Bay, in line with the countrys development objective to attain economic growth in a manner consistent with the protection, preservation, and revival of our marine waters. (12) The heads of petitioners-agencies MMDA, DENR, DepEd, DOH, DA, DPWH, DBM, PCG, PNP Maritime Group, DILG, and also of MWSS, LWUA, and PPA,in line with the principle of continuing mandamus,shall, from finality of this Decision, each submit to the Court a quarterly progressive report of the activities undertaken in accordance with this Decision. No costs. SO ORDERED. G.R. No. 146531. March 18, 2005 DOMINGO R. MANALO, Petitioners, vs. PAIC SAVINGS BANK and THERESE V. VARGAS, Respondents. DECISION SANDOVAL-GUTIERREZ,J.: Before us is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, assailing the Decision1 dated December 21, 2000 of the Court of Appeals in CA-G.R. SP No. 60966, "Domingo R. Manalo vs. PAIC Savings Bank, represented by the Liquidator/Receiver, PDIC, and Therese Villanueva Vargas." The factual antecedents as borne by the records are: On July 19, 1983, S. Villanueva Enterprises, Inc., represented by its president, Therese Villanueva Vargas, impleaded as a respondent, obtained a P3,000,000.00 loan from PAIC

Savings and Mortgage Bank, also a respondent. As security for the loan, respondents mortgaged two (2) lots situated in Pasay City covered by Transfer Certificate of Title (TCT) No. 6076 of the Registry of Deeds, same city. However, respondent Vargas failed to pay the loan. Consequently, the mortgage was foreclosed and the lots were sold at public auction to respondent bank, being the highest bidder. On December 4, 1984, a Certificate of Sale2 was issued to respondent bank and eventually registered with the Registry of Deeds of Pasay City. On October 14, 1991 or seven years later, respondent Vargas filed with the Regional Trial Court (RTC), Branch 116, Pasay City, a complaint for annulment of mortgage and extrajudicial foreclosure against respondent bank, docketed as Civil Case No. R-8477. In due course, the RTC rendered a Decision dated July 22, 1993 dismissing the complaint for lack of merit. On appeal, the Court of Appeals, in a Decision dated October 28, 1996, affirmed the RTC Decision, sustaining the legality of the mortgage and the foreclosure proceedings. The Decision of the Appellate Court then became final and executory. Meantime or on June 22, 1992, respondent bank filed with the RTC, Branch 112, Pasay City, a petition for issuance of a writ of possession, docketed as Civil Case No. 9011-P. After hearing, or on April 2, 1998, the court granted the petition and issued a writ of possession. Earlier or on December 23, 1992, respondent Vargas sold to Armando Angsico the lots for P18,000,500.00. Then on August 24, 1994, respondent Vargas leased to Domingo R. Manalo, petitioner, a portion of the same lots consisting of 450 square meters for a period of ten (10) years with a monthly rental of P22,500.00. Later, or on June 29, 1997, Angsico assigned and transferred to petitioner all his rights to the property as shown by a Deed of Assignment and Transfer of Rights. On May 7, 1998, petitioner filed with the RTC, Branch 231, Pasay City, a complaint for specific performance and damages, docketed as Civil Case No. 98-0868. Impleaded as defendants are respondent bank, its liquidator and/or receiver PDIC, and respondent Vargas. In his complaint, petitioner alleged that he has legal interest in the subject lots, having initially leased a portion of the same from respondent Vargas and then purchased the whole area from Angsico. He prayed that the trial court issue a writ of mandamus compelling respondent bank (1) to allow him to redeem and/or repurchase the subject lots for P18,000,000.00; and (2) to release to him TCT No. 6076. Instead of filing an answer, respondent bank filed a motion to dismiss the complaint on the following grounds: (1) the trial court has no jurisdiction over the subject property; and (2) the complaint fails to state a sufficient cause of action. Respondent bank averred that petitioner has no legal interest in the subject lots since as early as December 4, 1985, the title thereto was consolidated in its name when respondent Vargas, petitioners predecessor-in-interest, failed to exercise her right of redemption. On September 29, 1998, the RTC issued an Order denying respondent banks motion to dismiss the complaint. Thus, respondent bank, on October 7, 1998, filed its answer alleging as affirmative defenses that the complaint failed to state a cause of action and that the trial court has no jurisdiction over the case. On September 4, 2000, the RTC rendered a Decision dismissing the complaint for "lack of an enforceable cause of action," thus: "WHEREFORE, in the light of the aforementioned reasons, for lack of an enforceable cause of action, the case is hereby DISMISSED with costs against the plaintiff. SO ORDERED." On appeal, the Court of Appeals rendered the assailed Decision dated December 21, 2000 affirming the RTC Decision and holding that petitioners complaint failed to state a cause of action, thus: "To begin with, the present petition for Mandamus on appeal should have been outrightly dismissed considering that such extraordinary remedy under Rule 65 is not available under the facts obtaining. Mandamus is a writ issued in order to compel the performance, when refused, of a ministerial duty, this being its main objective. It does not lie to require anyone to fulfill a contractual obligation or to compel a course of conduct, nor to control or review the exercise of discretion. Petitioner must show a clear legal right to the thing demanded with the corresponding imperative duty of the respondent to perform the act required. It never issues in doubtful cases. The writ will not issue to compel anything to which the petitioner is not entitled by law. Mandamus does

not confer power nor impose duties. It simply commands to exercise a power already possessed and to perform a duty already imposed (Tangonan vs. Pao,137 SCRA 245 [1985]; University of San Agustin vs. Court of Appeals, 230 SCRA 761 [1994]). "At bar, we cannot see any legal justification to compel PAIC Bank to accept the proposed P18,000,000.00 redemption money and to release the subject title. This is not the idea of a ministerial duty under the law. "Essentially, the case at hand could be one for specific performance, as what the court a quo said in the first paragraph of the challenged decision. x xx "In the case at bar, what succinctly appears on records is the indubitable fact that appellant has no cause of action against PAIC Bank. It may be true that earlier the motion to dismiss of PAIC Bank on this point was denied by the court a quo. Yet, such resolution did not preclude the trial court to later on declare, after trial, that indeed there was no cause of action, especially so when the defense of lack of cause of action is averred in the answer as one of the affirmative defenses. "Under the Rules of Court, a cause of action is defined as an act of omission of one party in violation of the legal right of the other which causes the latter injury (Rebodillo vs. Court of Appeals, 170 SCTA 800 [1989]). It is composed of: (1) the plaintiffs primary right and defendants corresponding primary duty, whatever may be the subject to which they relate to his person, character, property or contract; and (2) the delict or wrongful act or omission of the defendant, by which the primary right and duty have been violated. The cause of action is determined not by the prayer of the complaint but by the facts alleged (Nicanor de Guzman, Jr. vs. Court of Appeals, 192 SCRA 507 [1990]). "Here, the absence of cause of action of the appellant becomes more apparent when we consider the following: (a) Logic and common sense dictate that one can only sell what he owns and the buyer acquires only what the seller can offer. On June 29, 1997, when Angsico sold the lot to Manalo, Angsico was not the owner of the subject property simply because at the time he (Angsico) purchased the same property from Vargas and/or S. Villanueva on December 23, 1992, said sellers were no longer the lawful owners of the property. As correctly pointed out by the appellees, after the expiration of the one (1) year redemption period and no redemption was made on December 5, 1985, PAIC Bank ipso facto became the legal owner in fee simple of the subject lot and its improvements, being the highest bidder in the auction sale and the vendee in the Sheriffs Certificate of Sale duly registered a year before and which entitles it to the issuance of a new certificate of title in his name (Peoples Financing Corp. vs. Court of Appeals, 192 SCRA 34 [1990]; Sumerariz vs. Development Bank of the Philippines, 21 SCRA 1374 [1967]). x xx "One last word, after failing to avail of the right of redemption, the mortgaged property became an acquired asset of the mortgagee PAIC Bank. Like any ordinary property owner, PAIC Bank has the right to enjoy all the attributes of ownership, among others, to sell the property for whatever price it may deem reasonable and in favor of whomsoever it chooses to sell it. This prerogative to enter into lawful contract constitutes one of the liberties of the people of the State. If that right be struck down or arbitrarily interfered with, there is a substantial inferment of the liberty of the people under the Constitution. To enter into a contract freely and without restraint is one of the liberties guaranteed to the citizens of the country and should not be lightly interfered with. On that very same reason, courts cannot force party litigants to enter into a contract, without violating the fundamental law. "IN VIEW OF THE FOREGOING, this appeal is ordered DISMISSED. SO ORDERED." Thus, the instant petition for review on certiorari. Basically, petitioner ascribes to the Court of Appeals the following error: "IN HOLDING THAT THE PETITIONER FAILED TO ESTABLISH A CAUSE OF ACTION AND THAT MANDAMUS IS NOT THE CORRECT REMEDY." In its comment, respondent bank contends that both the courts below did not err in dismissing petitioners action because mandamus does not lie to enforce contractual obligations. We hold that mandamus is not the proper recourse to enforce petitioners alleged right of redemption. To begin with, mandamus applies as a remedy only where petitioners right

is founded clearly in law and not when it is doubtful.3 In varying language, the principle echoed and reechoed is that legal rights may be enforced by mandamus only if those rights are well-defined, clear and certain.4 On December 4, 1985 or when respondent Vargas failed to exercise her right of redemption within the one (1) year redemption period, respondent bank ipso facto became the absolute owner of the lots. Surprisingly, however, on December 23, 1992, she sold the property for P18,000,500.00 to Angsico, who eventually transferred his rights to petitioner. Not only that, on August 24, 1994, respondent Vargas still leased to petitioner a portion of the subject lots. Verily, when respondent bank became the owner of the lots on December 4, 1985, respondent Vargas could no longer legally transfer, cede and convey the property to petitioner. Moreover, mandamus cannot be availed of as a remedy to enforce the performance of contractual obligations. In Commission on Elections vs. Quijano-Padilla,5 we held: "No rule of law is better settled than that mandamus does not lie to enforce the performance of contractual obligations. As early as 1924, Justice Street, in Quiogue vs. Romualdez, already set forth the justification of this rule, thus: Upon the facts above stated we are of the opinion that the writ of mandamus is not the appropriate, or even an admissible remedy. It is manifest that whatever rights the petitioner may have, upon the facts stated, are derived from her contract with the city; and no rule of law is better settled than that mandamus never lies to enforce the performance of private contracts. . . . The petitioner's remedy, if any she has, is by an original action in the Court of First Instance to compel the city to pay the agreed price or to pay damages for the breach of contract. x xx It was not intended to aid a plaintiff in the enforcement of a mere contract right, or to take the place of the other remedies provided by law for the adjudication of disputed claims. Looking at the case from the standpoint of appellant, it involves nothing more than an ordinary breach of contract. If, as contended, the appellant had a valid contract with the school board, it also had an adequate remedy at law to recover damages for its breach; and to permit the writ of mandamus to be used for the purpose of enforcing a mere contract right would be a wide departure from the settled practice in respect to the character of cases in which relief by mandamus may be obtained. x xx." WHEREFORE, the petition is DENIED. The assailed Decision dated December 21, 2000 of the Court of Appeals in CA-G.R. SP No. 60966 is hereby AFFIRMED. Costs against petitioner. SO ORDERED. G.R. No. 134625 August 31, 1999 UNIVERSITY OF THE PHILIPPINES BOARD OF REGENTS, CHANCELLOR ROGER POSADAS, DR. EMERLINDA ROMAN, DEAN CONSUELO PAZ, DR. ISAGANI MEDINA, DR. MARIA SERENA DIOKNO, DR. OLIVIA CAOILI, DR. FRANCISCO NEMENZO II, DEAN PACIFICO AGABIN, CARMELITA GUNO, and MARICHU LAMBINO, petitioners, vs. HON. COURT OF APPEALS and AROKIASWAMY WILLIAM MARGARET CELINE, respondents. MENDOZA, J.: For review before the Court is the decision of the Court of Appeals1 in CA-G.R. SP No. 42788, dated December 16, 1997, which granted private respondent's application for a writ of mandatory injunction, and its resolution, dated July 13, 1998, denying petitioners' motion for reconsideration. The antecedent facts are as follows: Private respondent Arokiaswamy William Margaret Celine is a citizen of India and holder of a Philippine visitor's visa. Sometime in April 1988, she enrolled in the doctoral program in Anthropology of the University of the Philippines College of Social Sciences and Philosophy (CSSP) in Diliman, Quezon City. After completing the units of course work required in her doctoral program, private respondent went on a two-year leave of absence to work as Tamil Programme Producer of the Vatican Radio in the Vatican and as General Office Assistant at the International Right to Life Federation in Rome. She returned to the Philippines in July 1991 to work on her dissertation entitled, "Tamil Influences in Malaysia, Indonesia and the Philippines."

On December 22, 1992, Dr. Realidad S. Rolda, chairperson of the U.P. Department of Anthropology, wrote a letter to Dr. Maria Serena Diokno, CSSP Associate Dean and Graduate Program Director, certifying that private respondent had finished her dissertation and was ready for her oral defense. Dr. Rolda suggested that the oral defense be held on January 6, 1993 but, in a letter, dated February 2, 1993, Dr. Serena Diokno rescheduled it on February 5, 1993. Named as members of the dissertation panel were Drs. E. Arsenio Manuel, SerafinQuiason, Sri Skandarajah, Noel Teodoro, and Isagani Medina, the last included as the dean's representative.1wphi1.nt After going over private respondent's dissertation, Dr. Medina informed CSSP Dean Consuelo Joaquin-Paz that there was a portion in private respondent's dissertation that was lifted, without proper acknowledgment, from Balfour's Cyclopaedia of India and Eastern and Southern Asia (1967), volume I, pp. 392-401 (3 v., Edward Balfour 1885 reprint) and from John Edye's article entitled "Description of the Various Classes of Vessels Constructed and Employed by the Natives of the Coasts of Coromandel, Malabar, and the Island of Ceylon for their Coasting Navigation" in the Royal Asiatic Society of Great Britain and Ireland Journal, volume I, pp. 1-14 (1833).2 Nonetheless, private respondent was allowed to defend her dissertation on February 5, 1993. Four (4) out of the five (5) panelists gave private respondent a passing mark for her oral defense by affixing their signatures on the approval form. These were Drs. Manuel, Quiason, Skandarajah, and Teodoro. Dr. Quiason added the following qualification to his signature: Ms. Arokiaswamy must incorporate the suggestions I made during the successful defense of her P.D. thesis.3 Dr. Medina did not sign the approval form but added the following comment: Pipirmahankoangpagsang-ayon/di pagsangayonkapagnakitakonaangmga revisions ng dissertation.4 Dr. Teodoro added the following note to his signature: Kailangangisagawaangmgamahahalagangpagbabago at ipakitasa panel and bound copies.5 In a letter, dated March 5, 1993 and addressed to her thesis adviser, Dr. Manuel, private respondent requested a meeting with the panel members, especially Dr. Medina, to discuss the amendments suggested by the panel members during the oral defense. The meeting was held at the dean's office with Dean Paz, private respondent, and a majority of the defense panel present.6 During the meeting, Dean Paz remarked that a majority vote of the panel members was sufficient for a student to pass, notwithstanding the failure to obtain the consent of the Dean's representative. On March 24, 1993, the CSSP College Faculty Assembly approved private respondent's graduation pending submission of final copies of her dissertation. In April 1993, private respondent submitted copies of her supposedly revised dissertation to Drs. Manuel, Skandarajah, and Quiason, who expressed their assent to the dissertation. Petitioners maintain, however, that private respondent did not incorporate the revisions suggested by the panel members in the final copies of her dissertation. Private respondent left a copy of her dissertation in Dr. Teodoro's office April 15, 1993 and proceeded to submit her dissertation to the CSSP without the approvals of Dr. Medina and Dr. Teodoro, relying on Dean Paz's March 5, 1993 statement. Dr. Teodoro later indicated his disapproval, while Dr. Medina did not sign the approval form.7 Dean Paz then accepted private respondent's dissertation in partial fulfillment of the course requirements for the doctorate degree in Anthropology. In a letter to Dean Paz, dated April 17, 1993, private respondent expressed concern over matters related to her dissertation. She sought to explain why the signature of Dr. Medina was not affixed to the revision approval form. Private respondent said that since she already had the approval of a majority of the panel members, she no longer showed her dissertation to Dr. Medina nor tried to obtain the latter's signature on the revision approval form. She likewise expressed her disappointment over the CSSP administration and charged Drs. Diokno and Medina with maliciously working for the disapproval of her dissertation, and further warned Dean Paz against encouraging perfidious acts against her. On April 17, 1993, the University Council met to approve the list of candidates for graduation for the second semester of school year 1992-1993. The list, which was endorsed to the Board of Regents for final approval, included private respondent's name.

On April 21, 1993, Dean Paz sent a letter to Dr. Milagros Ibe, Vice Chancellor for Academic Affairs, requesting the exclusion of private respondent's name from the list of candidates for graduation, pending clarification of the problems regarding her dissertation. Her letter reads:8 Abril 21, 1993 Dr. Milagros Ibe Vice Chancellor for Academic Affairs UnibersidadngPilipinas Quezon Hall, Diliman, Q.C. Mahalna Dr. Ibe, Mahigpitko pong hinihilingnahuwagmunangisamaangpangalanni Ms. Arokiaswam[y] William Margaret Celine salistahanngmgabibigyanngdegrina Ph.D. (Anthropology) ngayon[g] semester, dahilsamgamalubhangbintangnyasailangmyembrong panel parasa oral defense ngdisertasyonnya at samgaakusasyonngilansamgaitosakanya. Naniniwalapo kami nadapatmailinawmunaangilangbagaybagomakonferangdegrika y Ms. Arokiaswam[y]. Kelanganpoitoparamapangalagaanangistandardngpinakamata asna degree ngUnibersidad. (Sgd.) CONSUELO JOAQUIN-PAZ, Ph.D. Dekano Apparently, however, Dean Paz's letter did not reach the Board of Regents on time, because the next day, April 22, 1993, the Board approved the University Council's recommendation for the graduation of qualified students, including private respondent. Two days later, April 24, 1993, private respondent graduated with the degree of Doctor of Philosophy in Anthropology. On the other hand, Dean Paz also wrote a letter to private respondent, dated April 21, 1993, that she would not be granted an academic clearance unless she substantiated the accusations contained in her letter dated April 17, 1993. In her letter, dated April 27, 1993, private respondent claimed that Dr. Medina's unfavorable attitude towards her dissertation was a reaction to her failure to include him and Dr. Francisco in the list of panel members; that she made the revisions proposed by Drs. Medina and Teodoro in the revised draft of her dissertation; and that Dr. Diokno was guilty of harassment. In a letter addressed to Dean Paz, dated May 1, 1993, Dr. Medina formally charged private respondent with plagiarism and recommended that the doctorate granted to her be withdrawn.9 On May 13, 1993, Dean Paz formed an ad hoc committee, composed of faculty members from various disciplines and chaired by Eva Duka-Ventura, to investigate the plagiarism charge against private respondent. Meanwhile, she recommended to U.P. Diliman Chancellor, Dr. Emerlinda Roman, that the Ph.D. degree conferred on private respondent be withdrawn.10 In a letter, dated June 7, 1993, Dean Paz informed private respondent of the charges against her.11 On June 15, 1993, the Ventura Committee submitted a report to Dean Paz, finding at least ninety (90) instances or portions in private respondent's thesis which were lifted from sources without proper or due acknowledgment. On July 28, 1993, the CSSP College Assembly unanimously approved the recommendation to withdraw private respondent's doctorate degree and forwarded its recommendation to the University Council. The University Council, in turn, approved and endorsed the same recommendation to the Board of Regents on August 16, 1993. On September 6, 1993, the Board of Regents deferred action on the recommendation to study the legal implications of its approval.12 Meanwhile, in a letter, dated September 23, 1993, U.P. Diliman Chancellor Emerlinda Roman summoned private respondent to a meeting on the same day and asked her to submit her written explanation to the charges against her. During the meeting, Chancellor Roman informed private respondent of the charges and provided her a copy of the findings of the investigating committee.13 Private respondent, on the other hand, submitted her written explanation in a letter dated September 25, 1993. Another meeting was held on October 8, 1993 between Chancellor Roman and private respondent to discuss her answer to the charges. A third meeting was scheduled on October 27, 1993 but private respondent did not attend it, alleging that the Board of Regents had already decided her case before she could be fully heard.

On October 11, 1993, private respondent wrote to Dr. Emil Q. Javier, U.P. President, alleging that some members of the U.P. administration were playing politics in her case.14 She sent another letter, dated December 14, 1993, to Dr. Armand Fabella, Chairman of the Board of Regents, complaining that she had not been afforded due process and claiming that U.P. could no longer withdraw her degree since her dissertation had already been accepted by the CSSP.15 Meanwhile, the U.P. Office of Legal Services justified the position of the University Council in its report to the Board of Regents. The Board of Regents, in its February 1, 1994 and March 24, 1994 meetings, further deferred action thereon. On July 11, 1994, private respondent sent a letter to the Board of Regents requesting a re-investigation of her case. She stressed that under the Rules and Regulations on Student Conduct and Discipline, it was the student disciplinary tribunal which had jurisdiction to decide cases of dishonesty and that the withdrawal of a degree already conferred was not one of the authorized penalties which the student disciplinary tribunal could impose. On July 28, 1994, the Board of Regents decided to release private respondent's transcript of grades without annotation although it showed that private respondent passed her dissertation with 12 units of credit. On August 17, 1994, Chancellor Roger Posadas issued Administrative Order No. 94-94 constituting a special committee composed of senior faculty members from the U.P. units outside Diliman to review the University Council's recommendation to withdraw private respondent's degree. With the approval of the Board of Regents and the U.P. Diliman Executive Committee, Posadas created a five-man committee, chaired by Dr. Paulino B. Zafaralla, with members selected from a list of nominees screened by Dr. EmerencianaArcellana, then a member of the Board of Regents. On August 13, 1994, the members of the Zafaralla committee and private respondent met at U.P. Los Baos. Meanwhile, on August 23, 1994, the U.P. Diliman Registrar released to private respondent a copy of her transcript of grades and certificate of graduation. In a letter to Chancellor Posadas, dated September 1, 1994, private respondent requested that the Zafaralla committee be provided with copies of the U.P. Charter (Act No. 1870), the U.P. Rules and Regulations on Student Conduct and Discipline, her letter-response to Chancellor Roman, dated September 25, 1993, as well as all her other communications. On September 19, 1994, Chancellor Posadas obtained the Zafaralla Committee's report, signed by its chairman, recommending the withdrawal of private respondent's doctorate degree. The report stated:16 After going through all the pertinent documents of the case and interviewing Ms. Arokiaswamy William, the following facts were established: 1. There is overwhelming evidence of massive lifting from a published source word for word and, at times, paragraph by paragraph without any acknowledgment of the source, even by a mere quotation mark. At least 22 counts of such documented liftings were identified by the Committee. These form part of the approximately ninety (90) instances found by the Committee created by the Dean of the College and subsequently verified as correct by the Special Committee. These instances involved the following forms of intellectual dishonesty: direct lifting/copying without acknowledgment, full/partial lifting with improper documentation and substitution of terms or words (e.g., Tamil in place of Sanskrit, Tamilization in place of Indianization) from an acknowledged source in support of her thesis (attached herewith is a copy of the documents for reference); and 2. Ms. Arokiaswamy William herself admits of being guilty of the allegation of plagiarism. Fact is, she informed the Special Committee that she had been admitting having lifted several portions in her dissertation from various sources since the beginning. In view of the overwhelming proof of massive lifting and also on the admission of Ms. Arokiaswamy William that she indeed plagiarized, the Committee strongly supports the recommendation of the U.P. Diliman Council to withdraw the doctoral degree of Ms. Margaret Celine Arokiaswamy William. On the basis of the report, the University Council, on September 24, 1994, recommended to the Board of Regents that private respondent be barred in the future from admission to the University either as a student or as an employee.

On January 4, 1995, the secretary of the Board of Regents sent private respondent the following letter:17 4 January 1995 Ms. Margaret Celine Arokiaswamy William Department of Anthropology College of Social Sciences and Philosophy U.P. Diliman, Quezon City Dear Ms. Arokiaswamy William: This is to officially inform you about the action taken by the Board of Regents at its 1081st and 1082nd meetings held last 17 November and 16 December 1994 regarding your case, the excerpts from the minutes of which are attached herewith. Please be informed that the members present at the 1081st BOR meeting on 17 November 1994 resolved, by a majority decision, to withdraw your Ph.D. degree as recommended by the U.P. Diliman University Council and as concurred with by the External Review Panel composed of senior faculty from U.P. Los Baos and U.P. Manila. These faculty members were chosen by lot from names submitted by the University Councils of U.P. Los Baos and U.P. Manila. In reply to your 14 December 1994 letter requesting that you be given a good lawyer by the Board, the Board, at its 1082nd meeting on 16 December 1994, suggested that you direct your request to the Office of Legal Aid, College of Law, U.P. Diliman. Sincerely yours, (Sgd.) VIVENCIO R. JOSE Secretary of the University and of the Board of Regents On January 18, 1995, private respondent wrote a letter to Commissioner SedfreyOrdoez, Chairman of the Commission on Human Rights, asking the commission's intervention.18 In a letter, dated February 14, 1995, to Secretary Ricardo Gloria, Chairman of the Board of Regents, she asked for a reinvestigation of her case. She also sought an audience with the Board of Regents and/or the U.P. President, which request was denied by President Javier, in a letter dated June 2, 1995. On August 10, 1995, private respondent then filed a petition for mandamus with a prayer for a writ of preliminary mandatory injunction and damages, which was docketed as Civil Case No. Q-95-24690 and assigned to Branch 81 of the Regional Trial Court of Quezon City.19 She alleged that petitioners had unlawfully withdrawn her degree without justification and without affording her procedural due process. She prayed that petitioners be ordered to restore her degree and to pay her P500,000.00 as moral and exemplary damages and P1,500,000.00 as compensation for lost of earnings. On August 6, 1996, the trial court, Branch 227, rendered a decision dismissing the petition for mandamus for lack of merit.20 Private respondent appealed to the Court of Appeals, which on December 16, 1997, reversed the lower court. The dispositive portion of the appellate court's decision reads:21 WHEREFORE, the decision of the court a quo is hereby reversed and set aside. Respondents are ordered to restore to petitioner her degree of Ph.D. in Anthropology. No pronouncement as to costs. SO ORDERED. Hence, this petition. Petitioners contend: I THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN GRANTING THE WRIT OF MANDAMUS AND ORDERING PETITIONERS TO RESTORE RESPONDENT'S DOCTORAL DEGREE. II THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN HOLDING THAT THE DOCTORAL DEGREE GIVEN RESPONDENT BY U.P. CANNOT BE RECALLED WITHOUT VIOLATING HER RIGHT TO ENJOYMENT OF INTELLECTUAL PROPERTY AND TO JUSTICE AND EQUITY. III THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN DEPRIVING PETITIONERS OF THEIR RIGHT TO SUBSTANTIVE DUE PROCESS.22 Petitioners argue that private respondent failed to show that she had been unlawfully excluded from the use and enjoyment of a right or office to which she is entitled so as to justify the issuance of the writ of mandamus. They also contend that she failed to prove that the restoration of her degree is a ministerial duty of U.P. or that the withdrawal of the degree violated her right to the enjoyment of intellectual property.

On the other hand, private respondent, unassisted by counsel, argue that petitioners acted arbitrarily and with grave abuse of discretion in withdrawing her degree even prior to verifying the truth of the plagiarism charge against her; and that as her answer to the charges had not been forwarded to the members of the investigating committees, she was deprived of the opportunity to comment or refute their findings. In addition, private respondent maintains that petitioners are estopped from, withdrawing her doctorate degree; that petitioners acted contrary to 9 of the U.P. Charter and the U.P. Rules and Regulations of Student Conduct and Discipline of the University, which according to her, does not authorize the withdrawal of a degree as a penalty for erring students; and that only the college committee or the student disciplinary tribunal may decide disciplinary cases, whose report must be signed by a majority of its members. We find petitioners' contention to be meritorious. Mandamus is a writ commanding a tribunal, corporation, board or person to do the act required to be done when it or he unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, there being no other plain, speedy, and adequate remedy in the ordinary course of law.23 In University of the Philippines Board of Regents v. Ligot-Telan,24 this Court ruled that the writ was not available to restrain U.P. from the exercise of its academic freedom. In that case, a student who was found guilty of dishonesty and ordered suspended for one year by the Board of Regents, filed a petition for mandamus and obtained from the lower court a temporary restraining order stopping U.P. from carrying out the order of suspension. In setting aside the TRO and ordering the lower court to dismiss the student's petition, this Court said: [T]he lower court gravely abused its discretion in issuing the writ of preliminary injunction of May 29, 1993. The issuance of the said writ was based on the lower court's finding that the implementation of the disciplinary sanction of suspension on Nadal "would work injustice to the petitioner as it would delay him in finishing his course, and consequently, in getting a decent and good paying job." Sadly, such a ruling considers only the situation of Nadal without taking into account the circumstances, clearly of his own making, which led him into such a predicament. More importantly, it has completely disregarded the overriding issue of academic freedom which provides more than ample justification for the imposition of a disciplinary sanction upon an erring student of an institution of higher learning. From the foregoing arguments, it is clear that the lower court should have restrained itself from assuming jurisdiction over the petition filed by Nadal. Mandamus is never issued in doubtful cases, a showing of a clear and certain right on the part of the petitioner being required. It is of no avail against an official or government agency whose duty requires the exercise of discretion or judgment.25 In this case, the trial court dismissed private respondent's petition precisely on grounds of academic freedom but the Court of Appeals reversed holding that private respondent was denied due process. It said: It is worthy to note that during the proceedings taken by the College Assembly culminating in its recommendation to the University Council for the withdrawal of petitioner's Ph.D. degree, petitioner was not given the chance to be heard until after the withdrawal of the degree was consummated. Petitioner's subsequent letters to the U.P. President proved unavailing.26 As the foregoing narration of facts in this case shows, however, various committees had been formed to investigate the charge that private respondent had committed plagiarism and, in all the investigations held, she was heard in her defense. Indeed, if any criticism may be made of the university proceedings before private respondent was finally stripped of her degree, it is that there were too many committee and individual investigations conducted, although all resulted in a finding that private respondent committed dishonesty in submitting her doctoral dissertation on the basis of which she was conferred the Ph.D. degree. Indeed, in administrative proceedings, the essence of due process is simply the opportunity to explain one's side of a controversy or a chance seek reconsideration of the action or ruling complained of.27 A party who has availed of the

opportunity to present his position cannot tenably claim to have been denied due process.28 In this case, private respondent was informed in writing of the charges against her29 and afforded opportunities to refute them. She was asked to submit her written explanation, which she forwarded on September 25, 1993.30 Private respondent then met with the U.P. chancellor and the members of the Zafaralla committee to discuss her case. In addition, she sent several letters to the U.P. authorities explaining her position.31 It is not tenable for private respondent to argue that she was entitled to have an audience before the Board of Regents. Due process in an administrative context does not require trial-type proceedings similar to those in the courts of justice.32 It is noteworthy that the U.P. Rules do not require the attendance of persons whose cases are included as items on the agenda of the Board of Regents.33 Nor indeed was private respondent entitled to be furnished a copy of the report of the Zafaralla committee as part of her right to due process. In Ateneo de Manila University v. Capulong,34 we held: Respondent students may not use the argument that since they were not accorded the opportunity to see and examine the written statements which became the basis of petitioners' February 14, 1991 order, they were denied procedural due process. Granting that they were denied such opportunity, the same may not be said to detract from the observance of due process, for disciplinary cases involving students need not necessarily include the right to cross examination. An administrative proceeding conducted to investigate students' participation in a hazing activity need not be clothed with the attributes of a judicial proceeding. . . In this case, in granting the writ of mandamus, the Court of Appeals held: First. Petitioner graduated from the U.P. with a doctorate degree in Anthropology. After graduation, the contact between U.P. and petitioner ceased. Petitioner is no longer within the ambit of the disciplinary powers of the U.P. As a graduate, she is entitled to the right and enjoyment of the degree she has earned. To recall the degree, after conferment, is not only arbitrary, unreasonable, and an act of abuse, but a flagrant violation of petitioner's right of enjoyment to intellectual property. Second. Respondents aver that petitioner's graduation was a mistake. Unfortunately this "mistake" was arrived at after almost a year after graduation. Considering that the members of the thesis panel, the College Faculty Assembly, and the U.P. Council are all men and women of the highest intellectual acumen and integrity, as respondents themselves aver, suspicion is aroused that the alleged "mistake" might not be the cause of withdrawal but some other hidden agenda which respondents do not wish to reveal. At any rate, We cannot countenance the plight the petitioner finds herself enmeshed in as a consequence of the acts complained of. Justice and equity demand that this be rectified by restoring the degree conferred to her after her compliance with the academic and other related requirements. Art. XIV, 5 (2) of the Constitution provides that "[a]cademic freedom shall be enjoyed in all institutions of higher learning." This is nothing new. The 1935 Constitution35 and the 1973 Constitution36 likewise provided for the academic freedom or, more precisely, for the institutional autonomy of universities and institutions of higher learning. As pointed out by this Court in Garcia vs. Faculty Admission Committee, Loyola School of Theology,37 it is a freedom granted to "institutions of higher learning" which is thus given "a wide sphere of authority certainly extending to the choice of the students." If such institution of higher learning can decide who can and who cannot study in it, it certainly can also determine on whom it can confer the honor and distinction of being its graduates. Where it is shown that the conferment of an honor or distinction was obtained through fraud, a university has the right to revoke or withdraw the honor or distinction it has thus conferred. This freedom of a university does not terminate upon the "graduation" of a student, as the Court of Appeals held. For it is precisely the "graduation" of such a student that is in question. It is noteworthy that the investigation of private respondent's case began before her graduation. If she was able to join the graduation ceremonies on April 24, 1993, it was because of too many investigations

conducted before the Board of Regents finally decided she should not have been allowed to graduate. Wide indeed is the sphere of autonomy granted to institutions of higher learning, for the constitutional grant of academic freedom, to quote again from Garcia v. Faculty Admission Committee, Loyola School of Theology, "is not to be construed in a niggardly manner or in a grudging fashion." Under the U.P. Charter, the Board of Regents is the highest governing body of the University of the Philippines.38 It has the power confer degrees upon the recommendation of the University Council.39 If follows that if the conferment of a degree is founded on error or fraud, the Board of Regents is also empowered, subject to the observance of due process, to withdraw what it has granted without violating a student's rights. An institution of higher learning cannot be powerless if it discovers that an academic degree it has conferred is not rightfully deserved. Nothing can be more objectionable than bestowing a university's highest academic degree upon an individual who has obtained the same through fraud or deceit. The pursuit of academic excellence is the university's concern. It should be empowered, as an act of self-defense, to take measures to protect itself from serious threats to its integrity. While it is true that the students are entitled to the right to pursue their educaiton, the USC as an educational institution is also entitled to pursue its academic freedom and in the process has the concomitant right to see to it that this freedom is not jeopardized.40 In the case at bar, the Board of Regents determined, after due investigation conducted by a committee composed of faculty members from different U.P. units, that private respondent committed no less than ninety (90) instances of intellectual dishonesty in her dissertation. The Board of Regents' decision to withdraw private respondent's doctorate was based on documents on record including her admission that she committed the offense.41 On the other hand, private respondent was afforded the opportunity to be heard and explain her side but failed to refute the charges of plagiarism against her. Her only claim is that her responses to the charges against her were not considered by the Board of Regents before it rendered its decision. However, this claim was not proven. Accordingly, we must presume regularity in the performance of official duties in the absence of proof to the contrary.42 Very much the opposite of the position of the Court of Appeals that, since private respondent was no longer a student of the U.P., the latter was no longer within the "ambit of disciplinary powers of the U.P.," is private respondent's contention that it is the Student Disciplinary Tribunal which had jurisdiction over her case because the charge is dishonesty. Private respondent invoke 5 of the U.P. Rules and Regulations on Student Conduct and Discipline which provides: Jurisdiction. All cases involving discipline of students under these rules shall be subject to the jurisdiction of the student disciplinary tribunal, except the following cases which shall fall under the jurisdiction of the appropriate college or unit; (a) Violation of college or unit rules and regulations by students of the college, or (b) Misconduct committed by students of the college or unit within its classrooms or premises or in the course of an official activity; Provided, that regional units of the University shall have original jurisdiction over all cases involving students of such units. Private respondent argues that under 25 (a) of the said Rules and Regulations, dishonesty in relation to one's studies (i.e., plagiarism) may be punished only with suspension for at least one (1) year. As the above-quoted provision of 5 of the Rules and Regulations indicates, the jurisdiction of the student disciplinary tribunal extend only to disciplinary actions. In this case, U.P. does not seek to discipline private respondent. Indeed, as the appellate court observed, private respondent is no longer within "the ambit of disciplinary powers of the U.P." Private respondent cannot even be punished since, as she claims, the penalty for acts of dishonesty in administrative disciplinary proceedings is suspension from the University for at least one year. What U.P., through the Board of Regents, seeks to do is to protect its academic integrity by withdrawing from private respondent an academic degree she obtained through fraud. WHEREFORE, the decision of the Court of Appeals is hereby REVERSED and the petition for mandamus is hereby DISMISSED.1wphi1.nt

SO ORDERED. G.R. No. 185220 July 27, 2009 LAGUNA METTS CORPORATION, Petitioner, vs. COURT OF APPEALS, ARIES C. CAALAM and GERALDINE ESGUERRA, Respondents. RESOLUTION CORONA, J.: This petition arose from a labor case filed by private respondents Aries C. Caalam and Geraldine Esguerra against petitioner Laguna Metts Corporation (LMC).1 The labor arbiter decided in favor of private respondents and found that they were illegally dismissed by LMC. On appeal, however, the National Labor Relations Commission (NLRC) reversed the decision of the labor arbiter in a decision dated February 21, 2008. Private respondents motion for reconsideration was denied in a resolution dated April 30, 2008. Counsel for private respondents received the April 30, 2008 resolution of the NLRC on May 26, 2008. On July 25, 2008, he filed a motion for extension of time to file petition for certiorari under Rule 65 of the Rules of Court.2 The motion alleged that, for reasons3 stated therein, the petition could not be filed in the Court of Appeals within the prescribed 60day period.4 Thus, a 15-day extension period was prayed for.5 In a resolution dated August 7, 2008,6 the Court of Appeals granted the motion and gave private respondents a nonextendible period of 15 days within which to file their petition for certiorari. LMC moved for the reconsideration of the said resolution claiming that extensions of time to file a petition for certiorari are no longer allowed under Section 4, Rule 65 of the Rules of Court, as amended by A.M. No. 07-7-12-SC dated December 4, 2007.7 This was denied in a resolution dated October 22, 2008. According to the appellate court, while the amendment of the third paragraph of Section 4, Rule 65 admittedly calls for stricter application to discourage the filing of unwarranted motions for extension of time, it did not strip the Court of Appeals of the discretionary power to grant a motion for extension in exceptional cases to serve the ends of justice. Aggrieved, LMC now assails the resolutions dated August 7, 2008 and October 22, 2008 of the Court of Appeals in this petition for certiorari under Rule 65 of the Rules of Court. It contends that the Court of Appeals committed grave abuse of discretion when it granted private respondents motion for extension of time to file petition for certiorari as the Court of Appeals had no power to grant something that had already been expressly deleted from the rules. We agree. Rules of procedure must be faithfully complied with and should not be discarded with the mere expediency of claiming substantial merit.8 As a corollary, rules prescribing the time for doing specific acts or for taking certain proceedings are considered absolutely indispensable to prevent needless delays and to orderly and promptly discharge judicial business. By their very nature, these rules are regarded as mandatory.9 In De Los Santos v. Court of Appeals,10 we ruled: Section 4 of Rule 65 prescribes a period of 60 days within which to file a petition for certiorari. The 60-day period is deemed reasonable and sufficient time for a party to mull over and to prepare a petition asserting grave abuse of discretion by a lower court. The period was specifically set to avoid any unreasonable delay that would violate the constitutional rights of the parties to a speedy disposition of their case. (emphasis supplied) While the proper courts previously had discretion to extend the period for filing a petition for certiorari beyond the 60-day period,11 the amendments to Rule 65 under A.M. No. 07-712-SC disallowed extensions of time to file a petition for certiorari with the deletion of the paragraph that previously permitted such extensions. Section 4, Rule 65 previously read: SEC. 4. When and where petition filed. The petition shall be filed not later than sixty (60) days from notice of the judgment or resolution. In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the sixty (60) day period shall be counted from notice of the denial of said motion. The petition shall be filed in the Supreme Court or, if it relates to the acts or omissions of a lower court or of a corporation, board, officer or person, in the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed in the Court of Appeals whether or not the same is in aid of its appellate jurisdiction, or in the Sandiganbayan if it is in aid of its appellate jurisdiction. If it involves the acts or omissions of a quasi-

judicial agency, and unless otherwise provided by law or these rules, the petition shall be filed in and cognizable only by the Court of Appeals. No extension of time to file the petition shall be granted except for compelling reason and in no case exceeding 15 days.12 (emphasis supplied) With its amendment under A.M. No. 07-7-12-SC, it now reads: SEC. 4. When and where to file petition. The petition shall be filed not later than sixty (60) days from notice of the judgment or resolution. In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the sixty (60) day period shall be counted from the notice of the denial of the motion. If the petition relates to an act or an omission of a municipal trial court or of a corporation, a board, an officer or a person, it shall be filed with the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed in the Court of Appeals or with the Sandiganbayan, whether or not the same is in aid of the courts appellate jurisdiction.lavvphil If the petition involves an act or an omission of a quasi-judicial agency, unless otherwise provided by law or these rules, the petition shall be filed with and be cognizable only by the Court of Appeals. In election cases involving an act or omission of a municipal or a regional trial court, the petition shall be filed exclusively with the Commission on Elections, in aid of its appellate jurisdiction. As a rule, an amendment by the deletion of certain words or phrases indicates an intention to change its meaning. It is presumed that the deletion would not have been made if there had been no intention to effect a change in the meaning of the law or rule. The amended law or rule should accordingly be given a construction different from that previous to its amendment.13lavvph!l If the Court intended to retain the authority of the proper courts to grant extensions under Section 4 of Rule 65, the paragraph providing for such authority would have been preserved. The removal of the said paragraph under the amendment by A.M. No. 07-7-12-SC of Section 4, Rule 65 simply meant that there can no longer be any extension of the 60-day period within which to file a petition for certiorari. The rationale for the amendments under A.M. No. 07-7-12-SC is essentially to prevent the use (or abuse) of the petition for certiorari under Rule 65 to delay a case or even defeat the ends of justice. Deleting the paragraph allowing extensions to file petition on compelling grounds did away with the filing of such motions. As the Rule now stands,petitions for certiorari must be filed strictlywithin 60 days from notice of judgment or from the order denying a motion for reconsideration. In granting the private respondents motion for extension of time to file petition for certiorari, the Court of Appeals disregarded A.M. No. 07-7-12-SC. The action amounted to a modification, if not outright reversal, by the Court of Appeals of A.M. No. 07-7-12-SC. In so doing, the Court of Appeals arrogated to itself a power it did not possess, a power that only this Court may exercise.14 For this reason, the challenged resolutions dated August 7, 2008 and October 22, 2008 were invalid as they were rendered by the Court of Appeals in excess of its jurisdiction. Even assuming that the Court of Appeals retained the discretion to grant extensions of time to file a petition for certiorari for compelling reasons, the reasons proffered by private respondents counsel did not qualify as compelling. Heavy workload is relative and often self-serving.15 Standing alone, it is not a sufficient reason to deviate from the 60-day rule.16 As to the other ground cited by private respondents counsel, suffice it to say that it was a bare allegation unsubstantiated by any proof or affidavit of merit. Besides, they could have filed the petition on time with a motion to be allowed to litigate in forma pauperis. While social justice requires that the law look tenderly on the disadvantaged sectors of society, neither the rich nor the poor has a license to disregard rules of procedure. The fundamental rule of human relations enjoins everyone, regardless of standing in life, to duly observe procedural rules as an aspect of acting with justice, giving everyone his due and observing honesty and good faith.17 For indeed, while technicalities should not unduly hamper our quest for justice, orderly procedure is essential to the success of that quest to which all courts are devoted.18 WHEREFORE, the petition is hereby GRANTED. The resolutions dated August 7, 2008 and October 22, 2008 of the Court of Appeals in CA-G.R. SP No. 104510 are REVERSED

and SET ASIDE and the petition in the said case is ordered DISMISSED for having been filed out of time. SO ORDERED. G.R. No. 139607 October 28, 2002 RAMON ISIDRO P. LAPID and GLADYS B. LAPID, in behalf of their minor child CHRISTOPHER B. LAPID, petitioners, vs HON. EMMANUEL D. LAUREA, Presiding Judge of RTC, BR. 169, Malabon, ST. THERESE OF THE CHILD JESUS, INC., and COURT OF APPEALS, ET. AL., respondents. RESOLUTION QUISUMBING, J.: In this petition for review, petitioners assail the resolution1 dated June 1, 1999, of the Court of Appeals in CA-G.R. SP No. 52970 dismissing their special civil action for certiorari, and also its resolution dated August 4, 1999, denying their motion for reconsideration. The factual antecedents of this petition are as follows: Spouses Ramon Isidro P. Lapid and Gladys B. Lapid are the parents of seven-year-old Christopher B. Lapid, who was a Grade 1 pupil of the respondent school, St. Therese of the Child Jesus, a private educational institution providing preschool and elementary education at Malabon, Metro Manila. Private respondents Esperanza N. Prim, Norilyn A. Cruz, Flordeliza C. Santos and Macario B. Binondo are its directress, teacher-in-charge, guidance counselor and principal, respectively. On May 8, 1998, petitioners filed a complaint for damages against the private respondents before the Regional Trial Court (RTC), Malabon, Metro Manila, Branch 169, docketed as Civil Case No. 2839 MN.2 In their complaint, the Lapid spouses averred that on November 5, 1997, Mrs. Lapid went to St. Therese and looked for Ms. Norilyn A. Cruz, Christophers classroom teacher. The directress, Mrs. Esperanza N. Prim, prohibited her from seeing Ms. Cruz so as not to disrupt ongoing classes. Mrs. Prim advised Mrs. Lapid to return later that day. On her return, Mrs. Lapid was surprised to see that a letter prepared by Mr. Binondo, the school principal, was already waiting for her, apprising her of Christophers suspension for five days effective the following day or on November 6, 1997. Petitioners averred that their son was summarily dismissed from school sans notice and hearing. Petitioners denied any knowledge of the alleged letters of complaint filed by the parents whose children were allegedly offended by Christopher. As a result of the strained relations between the Lapids and the school management, Christopher was transferred to a different school immediately thereafter. Petitioners then filed a letter-complaint with Hon. Antonio Nachura, Undersecretary of the Department of Education, Culture & Sports (DECS), assailing the respondent schools refusal to admit their son in his class. Petitioners also demanded an investigation of the circumstances leading to their sons suspension. This letter-complaint was later indorsed to the DECS Hearing Officer of Valenzuela, Metro Manila. At the hearing, petitioners demanded a written retraction and a public apology from the school officials, copy furnished the DECS. The school officials, however, refused. This compelled petitioners to file the present case for damages. According to petitioners, the schools malicious imputation against their son tarnished their good name and reputation. Petitioners said Mr. Lapid is a Bachelor of Laws graduate, a college professor, and Branch Clerk of Court of the Metropolitan Trial Court, Branch 41, Quezon City; while Mrs. Lapid is an account analyst at the Philippine Airlines Administrative Office in Makati, and both of them belonging to good and reputable families. They prayed for moral damages in the amount of One Million Pesos (P1,000,000), exemplary damages in the amount of P100,000, and another P100,000 for actual and consequential damages.3 In their answer, respondent school officials stated that as early as June 1997, Ms. Cruz had been sending them letters regarding Christophers mischief in school, as evidenced by the letters dated June 20, 1997 and June 25, 1997. According to said respondents, Christopher had committed serious infractions when he hurt not only his classmates but also his classroom teacher, Ms. Cruz, and one school employee. They added that at one time, Christopher stabbed a classmate with a pencil, and at another time, he hit a teacher with a backpack. These incidents were all recorded by Ms. Cruz and reported to the Guidance Counselor, Mrs. Flordeliza C. Santos.

Private respondents added in their answer that on several occasions, the parents of students offended by Christopher lodged complaints with the school against Christopher, urging the administration to impose appropriate disciplinary action on him. After most of these incidents, averred private respondents, Ms. Cruz had called up petitioners house to acquaint them with these complaints. Said phone calls were received, often by Mrs. Gloria Manapat Bautista, grandmother and guardian de facto of Christopher. Private respondents lamented, however, that all their efforts to reach the Lapid spouses personally turned out to be futile. On November 18, 1998,4 petitioners filed a motion to declare respondent school as in default, which motion was denied by the trial court in an order dated February 9, 1999.5 Petitioners moved for a reconsideration, but said motion was likewise denied on March 11, 1999.6 With the denial of their motion for reconsideration, petitioners filed a petition for certiorari with the Court of Appeals, docketed as CA-G.R. SP No. 52970. In a resolution June 1, 1999, the appellate court dismissed the petition for failure to indicate the material date, particularly the date of filing of motion for reconsideration with the RTC, as required by Supreme Court Circular No. 3998, amending Section 3 of Rule 46 of the 1997 Rules of Civil Procedure.7 In the appellate courts view, this formal requirement is needed to ascertain whether the petition was filed within the reglementary period as provided in Section 4, Rule 65 of the same rules, also as amended by SC Circular No. 39-98.8 Unfazed, on June 15, 1999, the petitioners filed a motion for reconsideration of the CA resolution, but still without indicating the date as to when their motion for reconsideration of the RTC order was filed. Hence, in its second assailed resolution9 dated August 4, 1999, the appellate court denied said motion for reconsideration. Before us, petitioners now impute error to the Court of Appeals in issuing the June 1, 1999 and August 4, 1999 resolutions, in this wise: THE HONORABLE COURT OF APPEALS ERRED IN DISMISSING THE PETITION ON GROUNDS OF PURE TECHNICALITY, FAILING TO APPRECIATE THE IMPORT OR MERIT OF THE CASE WHICH POSES THE QUESTION OF WHETHER OR NOT A CORPORATION CAN ACT WITHOUT THE EXPRESS CONCURRENCE OF ITS BOARD OF DIRECTORS.10 The basic issue posed before this Court is whether or not the Court of Appeals erred in dismissing the petition for certiorari filed by petitioners on the ground of formal and procedural deficiency, i.e., the petitioners failure to state a material date in their petition for certiorari. Petitioners contend that it was error for the appellate court to dismiss the petition on grounds of pure technicality. This, they say, undermines the oft-repeated doctrine by this Court that the rules of procedure are used only to help secure, not override, substantial justice11 considering that the principal appellant is their seven-year-old son.12 They boldly assert that technicalities should be set aside in this case on meritorious grounds, which they have raised in the petition particularly the issue as to whether or not a corporation can act without the express concurrence of its Board of Directors.13 Private respondents, for their part, staunchly maintain that petitioners wanton disregard of the Rules of Court warrant the outright dismissal of their petition.14 In their memorandum, private respondents stressed that petitioners had made false statements of material dates.[15] They add that the present petition raises factual issues that the Court cannot pass upon at the first instance. After a careful consideration of the submissions of the parties, particularly their respective memoranda, we are constrained to agree with the ruling of the respondent appellate court which dismissed the instant petition for certiorari. We find no reversible error in the assailed resolutions of the Court of Appeals because in filing a special civil action for certiorari without indicating the requisite material date thereon, petitioners violated basic tenets of remedial law, particularly Rule 65 of the Rules of Court. There are three material dates that must be stated in a petition for certiorari brought under Rule 65. First, the date when notice of the judgment or final order or resolution was received; second, the date when a motion for new trial or for reconsideration was filed; and third, the date when notice of the denial thereof was received. 16 In the case before us, the petition filed with the CA failed to indicate the second date, particularly the date of filing of their motion for reconsideration.17 As explicitly stated in the aforementioned Rule, failure to comply with any of the requirements shall be sufficient ground for the dismissal of the petition.

The rationale for this strict provision of the Rules of Court is not difficult to appreciate. As stated in Santos vs. Court of Appeals,18 the requirement is for purpose of determining the timeliness of the petition, thus: The requirement of setting forth the three (3) dates in a petition for certiorari under Rule 65 is for the purpose of determining its timeliness. Such a petition is required to be filed not later than sixty (60) days from notice of the judgment, order or Resolution sought to be assailed. Therefore, that the petition for certiorari was filed forty-one (41) days from receipt of the denial of the motion for reconsideration is hardly relevant. The Court of Appeals was not in any position to determine when this period commenced to run and whether the motion for reconsideration itself was filed on time since the material dates were not stated. x xx (Stress supplied.) Moreover, as reiterated in Mabuhay vs. NLRC, 288 SCRA 1, 6: "As a rule, the perfection of an appeal in the manner and within the period prescribed by law is jurisdictional and failure to perfect an appeal as required by law renders the judgment final and executory." We are not unmindful of exceptional cases where this Court has set aside procedural defects to correct a patent injustice. However, concomitant to a liberal application of the rules of procedure should be an effort on the part of the party invoking liberality to at least explain its failure to comply with the rules.19 In the instant case, the petition was bereft of any persuasive explanation as to why petitioners Ramon and Gladys Lapid failed to observe procedural rules properly. The record shows that through their counsel they failed not only once but twice to indicate the material date required by law. Counsel for petitioners had all the opportunity to comply with the rules, but counsel remained obstinate in her nonobservance thereof even when she sought reconsideration of the ruling of the respondent court dismissing her clients petition.20 Such obstinacy is inconsistent with her late plea for liberality in construing the rules on certiorari. Thus, any further delay that would inadvertently result from the dismissal of the instant petition is one purely of petitioners own making, considering that it is an elementary principle in law that negligence of counsel binds the client.21 We find unsatisfactory the explanation of petitioners, through counsel, that they have not come across said Circular No. 3998 at the time of the filing of the petition in the CA.22 On one hand, law practitioners and all lawyers, for that matter, should be fully conversant with the requirements for the institution of certiorari proceedings under Rule 65 of the Revised Rules of Court. On the other hand, ignorantialegis non excusat.23 Ignorance in this regard encompasses not only substantive but also procedural laws. A final note. Members of the bar are reminded that their first duty is to comply with the rules of procedure, rather than seek exceptions as loopholes. Technical rules of procedure are not designed to frustrate the ends of justice. These are provided to effect the prompt, proper and orderly disposition of cases and thus effectively prevent the clogging of court dockets. Utter disregard of these rules cannot justly be rationalized by harking on the policy of liberal construction.24 All told, no reversible error can be ascribed to the Court of Appeals for dismissing the petition for certiorari and later denying the petitioners motion for reconsideration. WHEREFORE, the instant petition is DENIED. The assailed resolutions of the Court of Appeals dated June 1,1999 and August 4, 1999 in CA-G.R. SP No. 52970 are AFFIRMED. Cost against petitioners. SO ORDERED. G.R. No. 178624 June 30, 2009 JOSE CONCEPCION, JR., Petitioner, vs. COMMISSION ON ELECTIONS, Respondent. DECISION BRION, J.: Before us is the petition for certiorari1 filed by Jose Concepcion, Jr. (petitioner) "seeking to set aside the En Banc Resolution dated 02 April 2007 and Order dated 8 May 2007" of respondent Commission on Elections (COMELEC).2 The petition cites and quotes the assailed rulings, then recites that on January 5, 2007, the National Citizens Movement for Free Elections (NAMFREL) filed a Petition for Accreditation to Conduct the Operation Quick Count with the COMELEC, docketed as SSP No. 07-001.3 The present petitioner then the incumbent Punong Barangay of Barangay Forbes Park, Makati City was one of the signatories of the NAMFREL petition in his capacity as the National Chairman of NAMFREL. On the same date, COMELEC promulgated Resolution No. 77984 (Resolution 7798) that reads in full

WHEREAS, Section 3 of Executive Order [EO] No. 94 dated March 2, 1987, provides as follows: Sec. 3. Prohibition on barangay officials. No barangay official shall be appointed as member of the Board of Election Inspectors or as official watcher of each duly registered major political party or any socio-civic, religious, professional or any similar organization of which they may be members. WHEREAS, the barangay is the smallest political unit of government and it is a widely accepted fact that barangay officials wield tremendous influence on their constituents or the residents in the barangay; WHEREAS, the Boards of Election Inspectors [BEIs] are charged with the duty of maintaining the regularity and orderliness of the election proceedings in each precinct to the end that elections will be honest, orderly, peaceful and credible: WHEREAS, records of past political exercises show that on election day, the Commission on Elections usually receive numerous complaints against barangay officials entering polling places and interfering in proceedings of the BEIs thereby causing not only delay in the proceedings, but also political tension among the BEIs, the voters and the watchers in the polling place; NOW THEREFORE, to insure that elections are peaceful, orderly, regular and credible, the Commission on Elections, by virtue of the powers vested in it by the Constitution, the Omnibus Election Code [OEC], EO No. 94, and other election laws RESOLVED to prohibit, as it hereby RESOLVES to prohibit: 1. The appointment of barangay officials which includes the Punong Barangay, Barangay Kagawad, Barangay Secretary, Barangay Treasurer, and BarangayTanod, as Chairman/person and/or Member of the BEIs or as official watcher of any candidate, duly registered major political party, or any similar organization, or any socio-civic, religious, professional [sic], in the May 14, 2007 National and Local Elections. The prohibition extends to barangay officials, employees and tanods, who are members of accredited citizens arms. 2. The barangay officials, employees andtanods from staying inside any polling place, except to cast their vote. Accordingly, they should leave the polling place immediately after casting their vote. This Resolution shall take effect on the seventh day after the publication in two (2) newspapers of general circulation in the Philippines. The Education and Information Department shall cause the publication of this Resolution in two (2) daily newspapers of general circulation and shall furnish copies thereof to all field officers of the Commission and the Department of Interior and Local Government, other deputies and heads of accredited political parties. SO ORDERED. [Emphasis supplied.] The COMELEC ruled on NAMFRELs petition for accreditation on April 2, 2007 in the assailed Resolution (April 2, 2007 Resolution), conditionally granting NAMFRELs petition in the following tenor: 5 Having already discussed above the reasons, both factual and legal, for the dismissal of the Verified Opposition, we find the instant petition for accreditation as the citizens arm of the petitioner NAMFREL meritorious. Pursuant to Section 2(5), Article IX (C) of the 1987 Philippine Constitution and Section 52(k) of the Omnibus Election Code, as amended, this Commission en banc hereby resolves to accredit petitioner NAMFREL as its citizens arm in the 14 May 2007 national and local elections, subject to its direct and immediate control and supervision. There is, however, one important condition that must be fulfilled by the petitioner before its accreditation as citizens arm could legally take effect. Accordingly, Mr. Jose S. Concepcion, Jr., the National Chairman of NAMFREL, must first be removed both as a member and overall Chairman of said organization. As correctly pointed out by the oppositor, Mr. Concepcion, being the Barangay Chairman of Barangay Forbes Park, Makati City, cannot be a member much more the overall chairman of the citizens arm such as NAMFREL. This is explicitly provided for in COMELEC Resolution No. 7798 promulgated on 5 January 2007, pertinent of which we quote: WHEREAS, Section 3 of Executive Order No. 94 dated March 2, 1987 provides as follows: Sec. 3. Prohibition on Barangay officials No barangay official shall be appointed as member of the Board of Election Inspectors or as watcher of each duly registered major political party or any socio-civic, religious, professional or any similar organization of which they may be members.

xxx xxxxxx NOW THEREFORE, to insure that the elections are peaceful, orderly, regular and credible, the Commission on Elections, by virtue of the powers vested in it by the Constitution, the OEC, EO No. 94, and other election laws, RESOLVED to prohibit, as it is hereby RESOLVES to prohibit: 1. The appointment of barangay officials which include the Punong Barangay, Kagawad, Barangay Secretary, Barangay Treasurer, and Barangay Tanod, as Chairman / person and/or Members of the BEIs or as official watcher of any candidate, duly registered major political party, or any similar organization, or any socio-civic, religious, professional, in the May 14, 2007 National and Local Elections. The prohibition extends to the barangay officials, employees and tanods, who are members of the accredited citizens arms. x xxx WHEREFORE, premises considered, this Commission en banc RESOLVED as it hereby RESOLVES, to grant the instant petition for accreditation finding it imbued with merit. x xxx The ACCREDITATION herein GRANTED is further SUBJECT TO THE FOLLOWING CONDITIONS: 1. The petitioner is hereby enjoined and encouraged by the Commission to re-organize in accordance with its own internal rules and procedures as an independent organization, and to submit before election day a list of its responsible officers and members, deleting therefrom the names of any previous officer or member similarly situated with Mr. Jose S. Concepcion, Jr. who are disqualified to be part of the citizens arm in view of the passage of COMELEC Resolution No. 7798 on 5 January 2007; x xxx 9. This accreditation shall be deemed automatically revoked in case petitioner violates any of the provisions and conditions set forth herein. [Italics supplied.] Soon thereafter, NAMFREL filed a "Manifestation and Request for Re-Examination" that: (1) contains information regarding NAMFRELs reorganization and its new set of officers showing that the petitioner had stepped down as National Chair and had been replaced by a new Chair; (2) manifests NAMFRELs acceptance of the conditional grant of its petition for accreditation; and (3) includes NAMFRELs request for a reexamination without further arguments of the April 2, 2007 Resolution as it specifically affected the petitioners membership with NAMFREL. In this Manifestation and Request for Re-examination, NAMFREL outlined its various objections and concerns on the legality or validity of Resolution 7798. The COMELEC, in its Order of May 8, 2007, noted the information relating to NAMFRELs current officers, and denied the request to examine its (COMELECs) interpretation of the April 2, 2007 Resolution prohibiting petitioners direct participation as member and National Chairman of NAMFREL. The COMELEC reasoned out that the April 2, 2007 Resolution is clear, and NAMFREL had not presented any convincing argument to warrant the requested examination. NAMFREL did not question the COMELECs ruling. THE PETITION Instead of a direct reaction from NAMFREL, the petitioner filed the present petition, ostensibly questioning the COMELECs April 2, 2007 Resolution, but actually raising issues with respect to Resolution 7798. To illustrate this point, the headings of the petitioners cited grounds were as follows: COMELEC HAS ACTED WITHOUT JURISDICTION OR IN EXCESS OF ITS JURISDICTION WHEN IT ISSUED COMELEC RESOLUTION NO. 7798 WHICH HAS NO STATUTORY BASIS.6 COMELEC SERIOUSLY ERRED AND GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OF JURISDICTION OR IN EXCESS OF ITS JURISDICTION WHEN IT RETROACTIVELY APPLIED COMELEC RESOLUTION NO. 7798 TO NAMFRELS PETITION.7 NAMFREL CHAIRMAN JOSE CONCEPCION WAS NOT ACCORDED DUE PROCESS WHEN HE WAS NEITHER GIVEN THE OPPORTUNITY TO QUESTION COMELEC RESOLUTION NO. 7798 NOR THE OPPORTUNITY TO PRESENT HIS SIDE REGARDING THE PROHIBITION.8 The petitioner expounded on the invalidity of Resolution 7798 with the following arguments which, for brevity and ease of presentation, we summarize below: 1. EO No. 94 issued by then President Corazon Aquino on December 17, 1986 prohibits the appointment of barangay officials as members of the BEI or as official watchers of each duly registered major political party or any sociocivic, religious, professional or any similar organization of which they may be members.

This law, according to the petitioner, could not however be the statutory basis of Resolution 7798 because: a. the prohibition under EO No. 94 applies only to the February 2, 1987 plebiscite. The restrictive application is evident from a reading of the EOs title9 and of one of its whereas clauses.10 b. nothing in EO No. 94 prohibits the petitioners membership with NAMFREL or the petitioners appointment as Chair or member of a duly accredited COMELECs citizen arm. The petitioner, who then chaired NAMFREL, was never appointed as BEI member or as poll watcher. c. the underlying purpose of Resolution 7798 is to prevent barangay officials from wielding their influence during the voting and canvassing stages by entering polling places under the pretext of acting as poll watchers. The petitioner was not a poll watcher; the COMELEC could have therefore simply prohibited the appointment of barangay chairmen as BEI members or poll watchers, and would have already achieved its purpose. d. the COMELEC cannot, in the guise of regulation, go beyond or expand the mandate of a law because the COMELEC has no law-making powers. e. Resolution 7798 cannot be applied retroactively. Its effectivity clause provides that it shall be effective on the 7th day after its publication in a newspaper of general circulation, that is, only on January 14, 2007. Since NAMRELs petition was filed on January 5, 2007 (or before Resolution 7798s effectivity), it could not have applied to NAMFRELs petition. 2. Resolution 7798 is an invalid implementing regulation, as it failed to comply with the following requisites for the validity of implementing rules and regulations: a. the rules and regulations must have been issued on the authority of law; b. the rules and regulations must be within the scope and purview of the law; c. the rules and regulations must be reasonable; d. the rules and regulations must not be contrary to laws or to the Constitution. 3. On constitutional grounds, the petitioner objected to Resolution 7798 because: a. the Resolution is unreasonable, as it bears no relation to the very purpose of the law; its prohibition is harsh, oppressive, and serves no purpose at all. b. Resolution 7798 violates the petitioners right to association through its enforced removal of the petitioner as member and Chair of NAMFEL. c. the COMELEC denied him of his right to procedural due process; he was not afforded the cardinal administrative due process right to a hearing,11 as he was not given the opportunity to be heard or at least to comment on Resolution 7798 upon which his removal as National Chair and member of NAMFREL was based. He should have been heard since he was not a party to the petition for accreditation in his personal capacity. Thus, the April 2, 2007 Resolution conditionally granting NAMFRELs petition for accreditation should be nullified insofar as it required the petitioners resignation from NAMFREL as a pre-condition for the effectivity of its accreditation. THE OSG RESPONSE The Office of the Solicitor General (OSG) defends the validity of Resolution 7798 with the following arguments: 1. Resolution 7798 was issued by the COMELEC as a valid exercise of its quasi-legislative power to implement elections laws. Hence, notice and hearing are not required for its validity. The OSG cites Section 52 (c) of the OEC empowering the COMELEC to "promulgate rules and regulations implementing the provisions of this Code (the OEC) or other laws

which the Commission is required to enforce and administer" in relation with thesettled principle [citing Central Bank v. Cloribel (44 SCRA 307 [1972])] that notice and hearing are not required when an administrative agency exercises its quasilegislative power,12 as opposed to quasi-judicial power which requires notice and hearing;13 and 2. EO No. 94 applies to the May 14, 2007 national and local elections. While EO No. 94 may have been issued primarily for the February 2, 1987 plebsicite, its spirit and intent find applicability and relevance to future elections. Thus, the COMELECs reliance on EO No. 94 when it issued Resolution 7798 is certainly valid and proper; 3. While the petitioner is not appointed as member of the BEI or as watcher, he nonetheless labors under a conflict of interest, given that a COMELECaccredited citizens arm is also entitled, under Section 180 of the OEC to appoint a watcher in every polling place. Additionally, the fact that the petitioner is a barangay chairman and at the same time the NAMFREL Chair clearly raises questions on his neutrality and non-partisanship; COMELEC nonpartisanship may at the same time be compromised, as it is the COMELEC which accredits its citizens arm. The OSG in arguing that Resolution 7798 was issued pursuant to the COMELECs mandate and is not, therefore, tainted with grave abuse of discretion also harks back at the extent of the power of the COMELEC under Section 2(1) of Article IX(C) of the Constitution that gives COMELEC the broad power to administer the conduct of an election, plebiscite, initiative, referendum and recall14 ; there can hardly be any doubt that the text and intent of the constitutional provision is to give COMELEC all the necessary and incidental powers for it to achieve the objective of holding free, orderly, honest, peaceful, and credible elections. THE COURTS RULING We resolve to DISMISS the petition for blatant misuse of Rule 65 of the Rules of Court. A primary consideration for us in looking at the petition is its thrust or focus. The petition mentions three legal instruments related with the case, namely: (1) EO No. 94 issued by then President Aquino; (2) COMELECs April 2, 2007 Resolution conditionally granting NAMFRELs accreditation, subject to the conditions that the petitioner and similarly situated barangay officials shall not be included as members or officials of NAMFREL; and (3) COMELEC Resolution 7798, issued pursuant to EO No. 94 and which in turn is the basis for the April 2, 2007 Resolution. We reiterate that the present petition, by its express terms, seeks to "set aside the En Banc Resolution dated 02 April 2007 and the Order dated 8 May 2007 of Respondent Comelec who, in grave abuse of discretion and in gross violation of Petitioners right to due process of law, denied Petitioners right to associate when the Respondent Comelec, as a condition of NAMFRELs accreditation as citizen arm, directed the removal of Petitioner as overall Chairman and member." In arguing for this objective, the petitioner directs his attention at Resolution 7798, not at the April 2, 2007 Resolution, as can be seen from the grounds summarized above. In the process, he likewise raises issues that call for the interpretation of Resolution 7798s underlying basis EO No. 94. Expressed in procedural terms, the petitioner now seeks to assail, in his individual capacity, a COMELEC adjudicatoryresolution (i.e., the April 2, 2007 Resolution) for its adverse effects on him when he was not a party to that case. NAMFREL (the direct party to the case and who had accepted the COMELEC accreditation ruling), on the other hand, is not a party to the present petition. Its nonparticipation is apparently explained by the position it took with respect to the April 2, 2007 Resolution; in its Manifestation and Request for Examination, it asked for a reexamination of the April 2, 2007 Resolution, but interestingly stated that 21. NAMFREL accepts the terms of the accreditation and further manifests that it has commenced full efforts into preparing for the performance of its duties and obligations as the Commissions citizen arm. [Emphasis supplied.] Thus, the present petition is clearly the petitioners own initiative, and NAMFREL, the direct party in the COMELECs April 2, 2007 Resolution, has absolutely no participation. Another unusual feature of this case is the focus of the petition. While its expressed intent is to assail the COMELECs April 2, 2007 Resolution (an exercise of the COMELECs quasi-

judicial functions), its focus is on the alleged defects of Resolution 7798, a regulation issued by the COMELEC in the exercise of its rulemaking power. The above features of the petition render it fatally defective. The first defect lies in the petitioners personality to file a petition for certiorari to address an adjudicatory resolution of the COMELEC in which he was not a party to, and where the direct party, NAMFREL, does not even question the assailed resolution. It would have been another matter if NAMFREL had filed the present petition with the petitioner as intervenor because of his personal interest in the COMELEC ruling. He could have intervened, too, before the COMELEC as an affected party in NAMFRELs Manifestation and Request for Examination. As a last recourse, the petitioner could have expressly stated before this Court the procedural problems he faced and asked that we suspend the rules based on the unusual circumstances he could have pointed out. None of these actions, however, took place. Instead, the petitioner simply questioned the COMELECs April 2, 2007 Resolution without explaining to this Court his reason for using Rule 65 as his medium, and from there, proceeded to attack the validity of COMELEC Resolution 7798. Under these questionable circumstances, we cannot now recognize the petitioner as a party-in-interest who can directly assail the COMELECs April 2, 2007 Resolution in an original Rule 65 petition before this Court. The requirement of personality or interest is sanctioned no less by Section 7, Article IX of the Constitution which provides that a decision, order, or ruling of a constitutional commission may be brought to this Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof.15 This requirement is repeated in Section 1, Rule 65 of the Rules of Court, which applies to petitions for certiorari under Rule 64 of decisions, orders or rulings of the constitutional commissions pursuant to Section 2, Rule 64.16 Section 1, Rule 65 essentially provides that a person aggrieved by any act of a tribunal, board or officer exercising judicial or quasijudicial functions rendered without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction may file a petition for certiorari. An aggrieved party under Section 1, Rule 65 is one who was a party to the original proceedings that gave rise to the original action for certiorari under Rule 65. We had occasion to clarify and explain the "aggrieved party" requirement in Tang v. Court of Appeals17 where we said: Although Section 1 of Rule 65 provides that the special civil action of certiorari may be availed of by a "person aggrieved" by the orders or decisions of a tribunal, the term "person aggrieved" is not to be construed to mean that any person who feels injured by the lower courts order or decision can question the said courts disposition via certiorari. To sanction a contrary interpretation would open the floodgates to numerous and endless litigations which would undeniably lead to the clogging of court dockets and, more importantly, the harassment of the party who prevailed in the lower court. In a situation wherein the order or decision being questionedunderwent adversarial proceedings before a trial court, the "person aggrieved" referred to under Section 1 of Rule 65 who can avail of the special civil action of certiorari pertains to one who was a party in the proceedings before the lower court. The correctness of this interpretation can be gleaned from the fact that a special civil action for certiorari may be dismissed motuproprioif the party elevating the case failed to file a motion for reconsideration of the questioned order or decision before the lower court. Obviously, only one who was a party in the case before the lower court can file a motion for reconsideration since a stranger to the litigation would not have the legal standing to interfere in the orders or decisions of the said court. In relation to this, if a non-party in the proceedings before the lower court has no standing to file a motion for reconsideration, logic would lead us to the conclusion that he would likewise have no standing to question the said order or decision before the appellate court via certiorari. (emphasis supplied) More importantly, we had this to say in Development Bank of the Philippines v. Commission on Audit18 - a case that involves a certiorari petition, under Rule 64 in relation with Rule 65, of a ruling of the Commission on Audit (a constitutional commission like COMELEC): The novel theory advanced by the OSG would necessarily require persons not parties to the present case the DBP employees who are members of the Plan or the trustees of the Fund to avail of certiorari under Rule 65. The petition for certiorari under Rule 65, however, is not available to any person who feels injured by the decision of a tribunal, board or officer exercising judicial or quasi-judicial functions. The

"person aggrieved" under Section 1 of Rule 65 who can avail of the special civil action of certiorari pertains only to one who was a party in the proceedings before the court a quo, or in this case, before the COA. To hold otherwise would open the courts to numerous and endless litigations. Since DBP was the sole party in the proceedings before the COA, DBP is the proper party to avail of the remedy of certiorari. The real party in interest who stands to benefit or suffer from the judgment in the suit must prosecute or defend an action. We have held that "interest" means material interest, an interest in issue that the decision will affect, as distinguished from mere interest in the question involved, or a mere incidental interest. The second fatal defect lies in the petitions thrust; it opened with and professed to be an express challenge to the COMELECs adjudicatory April 2, 2007 Resolution, but in its arguments solely attacks and prays for the partial nullity of COMELEC Resolution 7798 issued in the exercise of the COMELECs rule making power. This approach is fatally defective because the petition thereby converts an express challenge of an adjudicatory resolution made without the requisite standing into a challenge for the nullity of a regulation through an original Rule 65 petition for certiorari. To be sure, a COMELEC adjudicatory action can be challenged on the basis of the invalidity of the law or regulation that underlies the action. But to do this, a valid challenge to the adjudicatory action must exist; at the very least, the petitioner must have the requisite personality to mount the legal challenge to the COMELEC adjudicatory action.19 Where this basic condition is absent, the challenge is unmasked for what it really is a direct challenge to the underlying law or regulation masquerading as a challenge to a COMELEC adjudicatory action.1avvphi1 What is significant in appreciating this defect in the petition is the legal reality that the petitioner was not without any viable remedy to directly challenge Resolution 7798. A stand-alone challenge to the regulation could have been made through appropriate mediums, particularly through a petition for declaratory relief with the appropriate Regional Trial Court under the terms of Rule 63 of the Rules of Court, or through a petition for prohibition under Rule 65 to prevent the implementation of the regulation, as the petitioner might have found appropriate to his situation. As already mentioned, a challenge can likewise be made in the course of validly contesting an adjudicatory order of the COMELEC. Such challenge, however, cannot be made in an original petition for certiorari under Rule 65 dissociated from any COMELEC action made in the exercise of its quasi-judicial functions. The petitioners unusual approaches and use of Rule 65 of the Rules of Court do not appear to us to be the result of any error in reading Rule 65, given the way the petition was crafted. Rather, it was a backdoor approach to achieve what the petitioner could not directly do in his individual capacity under Rule 65. It was, at the very least, an attempted bypass of other available, albeit lengthier, modes of review that the Rules of Court provide. While we stop short of concluding that the petitioners approaches constitute an abuse of process through a manipulative reading and application of the Rules of Court, we nevertheless resolve that the petition should be dismissed for its blatant violation of the Rules. The transgressions alleged in a petition, however weighty they may sound, cannot be justifications for blatantly disregarding the rules of procedure, particularly when remedial measures were available under these same rules to achieve the petitioners objectives. For our part, we cannot and should not in the name of liberality and the "transcendental importance" doctrine entertain these types of petitions. As we held in the very recent case of Lozano, et al. vs. Nograles,20 albeit from a different perspective, our liberal approach has its limits and should not be abused. WHEREFORE, premises considered, the petition is DISMISSED. Cost against the petitioner. SO ORDERED. G.R. No. 157952 September 8, 2009 JOWETT K. GOLANGCO, Petitioner, vs. JONE B. FUNG, Respondent. DECISION BERSAMIN, J.: We have before us a petition for review on certiorari seeking the review of the decision dated September 12, 2002 (dismissing the petitioners petition for certiorari)1 and the resolution dated April 2, 2003 (denying the petitioners motion for reconsideration),2 both promulgated by the Court

of Appeals in C.A.-G.R. SP No. 66616 entitled Jowett K. Golangco v. The Presiding Judge of Branch 53, Regional Trial Court of Manila and Jone B. Fung. Antecedents C.A.-G.R. SP No. 66616 was a special civil action for certiorari commenced by the petitioner to assail the order issued by the Regional Trial Court (RTC), Branch 53, in Manila in Criminal Case No. 95-145703 entitled People v. Jone B. Fung, whereby the RTC declared the Prosecution to have terminated the presentation of further evidence and required the Prosecution to file a written offer of evidence within 20 days, furnishing a copy of the offer to the accused who in turn had to comment on the offer within 15 days from receipt. Criminal Case No. 95-145703, a prosecution for libel initiated by the petitioner as the complainant against the respondent, was commenced in 1995.3 Allegedly, the respondent had issued an office memorandum dated May 10, 1995 maliciously imputing against the petitioner the commission of bribery and had sent copies of the memorandum to the petitioners superiors in the Philippine Overseas Employment Administration (POEA) and to other public officers and personalities not connected with the POEA, causing damage and prejudice to the petitioner.4 After almost 6 years, the Prosecution had presented only two witnesses in Criminal Case No. 95-145703. On February 16, 2001, the Prosecution requested that a subpoena ad testificandum be issued to and served on Atty. Oscar Ramos, Resident Ombudsman of the POEA, to compel him to testify in the criminal case on February 20, 2001. The hearing of February 20, 2001 was, however, reset to May 23, 2001 due to the unavailability of Atty. Ramos. On May 23, 2001, the Prosecution still failed to present Atty. Ramos as its witness because no subpoena had been issued to and served on him for the purpose. Consequently, the RTC judge issued an order terminating the Prosecutions presentation of evidence,5 as follows: ORDER When the case was called for hearing, the accused is in court with his lawyer Atty. BenignoPalamos. Private prosecutor Atty. AgripinoBaybay is in court but he has no witnesses today. He manifested that he has to present Atty. Oscar Ramos, but since the last hearing on February 20, to this date he has not asked for any subpoena. Defense counsel moves to terminate the presentation of prosecution evidence in view of the failure of the prosecution to present witnesses despite numerous postponements. The private prosecutor asks for another continuance. The records show that on January 23, 2001 this Court gave a stern warning to the prosecutor that it is giving one final postponement for the production of witnesses. Yet the prosecution caused the service of the subpoena too late for the hearing on February 20. For the next three months, the prosecution simply did not apply for a subpoena. The Court finds that the intention to delay the proceedings is evident. As prayed for, the prosecution is declared to have terminated further evidence. The prosecution is given 20 days from today to make its formal offer with copy furnished the defense counsel who is given 15 days from receipt to make his comment and thereafter the offer will be deemed submitted for resolution. SO ORDERED. The petitioner, by his lonesome, assailed on certiorari in the Court of Appeals the order dated May 23, 2001, claiming that the RTC judge thereby committed grave abuse of discretion for not issuing the subpoena to require Atty. Ramos to appear and testify in the May 23, 2001 hearing. He contended that his prior request for the subpoena for the February 20, 2001 hearing should have been treated as a continuing request for the subpoena considering that the Rules of Court did not require a party to apply for a subpoena again should it not be served in the first time.6 In its decision dated September 12, 2002, the Court of Appeals rebuffed the petitioner and dismissed the petition for certiorari, holding: Axiomatically, any request for a subpoena to a witness must indicate the date and time when the witness must appear in court to give his or her testimony. It is on the basis of that request that the court personnel prepares the subpoena indicating the title of the case, the date and time for the appearance of the intended witness. This is where petitioner fell into error. His urgent request for subpoena (Annex "A") failed to contain the date and time when the intended witness, Atty. Oscar Ramos, must appear in court to testify. Even then, granting that the subpoena issued for February 20, 2001 hearing was properly served but which hearing was later on postponed, there is still a need to ask for a new subpoena to the same witness for the next scheduled hearing. The court cannot be tasked to guess whether or not petitioner

still intends to present the witness at the next hearing. An intention to still present the witness necessarily requires another request for a subpoena. Moreover, the case was last heard on January 23, 2001 prior to the February 20, 2001 hearing. Apropos, to ask for a subpoena to his next witness on February 16, 2001, for the hearing on February 20, 2001 was rather late. As the complainant in the case, petitioner should have exercised due diligence or proper zeal in the prosecution of his case which has long been pending for five (5) years, let alone that it was the last chance given by the court to the prosecution to the prosecution to produce its witness on February 20, 2001 on account of its previous failure to do so. Then, again, as correctly observed by the court a quo, from February 20, 2001 to May 23, 2001, a good three (3) months period passed without the prosecution requesting for a subpoena for its intended witness. When the respondent court, as a consequence, deemed the prosecution evidence terminated and required it to formally offer its evidence, it was not committing any error nor abuse of discretion. Here, petitioner created its own predicament and should suffer from its adverse effect.7 Hence, this appeal. Issue The issue is whether the Court of Appeals correctly ruled on the petition for certiorari of the petitioner. Ruling of the Court We find no reversible error on the part of the Court of Appeals. I Before dealing with the petition for review, we point out the gross procedural misstep committed by the petitioner in the Court of Appeals. The petitioner did not join the People of the Philippines as a party in his action for certiorari in the Court of Appeals. He thereby ignored that the People of the Philippines were indispensable parties due to his objective being to set aside the trial courts order dated May 23, 2001 that concerned the public aspect of Criminal Case No. 95-145703. The omission was fatal and already enough cause for the summary rejection of his petition for certiorari. The petitioner did not also obtain the consent of the Office of the Solicitor General (OSG) to his petition for certiorari. At the very least, he should have furnished a copy of the petition for certiorari to the OSG prior to the filing thereof,8 but even that he did not do. Thereby, he violated Section 35(l), Chapter 12, Title III of Book IV of Executive Order No. 292 (The Administrative Code of 1987), which mandates the OSG to represent "the Government in the Supreme Court and the Court of Appeals in all criminal proceedings; represent the Government and its officers in the Supreme Court, the Court of Appeals, and all other courts or tribunals in all civil actions and special proceedings in which the Government or any officer thereof in his official capacity is a party."1avvphi1 Although the petition for certiorari bore the conformity of the public prosecutor (i.e., Assistant City Prosecutor DaniloFormoso of Manila), that conformity alone did not suffice. The authority of the City Prosecutor or his assistant to appear for and represent the People of the Philippines was confined only to the proceedings in the trial court. II Even on the merits, the petition for review fails. The criminal case had been pending since 1995 and the petitioner as the complainant had presented only two witnesses as of the issuance of the assailed order. The trial court had not been wanting in giving warnings to the Prosecution on the dire consequences should the Prosecution continue to fail to complete its evidence. The Prosecution had retained the duty to ensure that its witnesses would be present during the trial, for its obligation to the administration of justice had been to prove its case sans vexatious and oppressive delays. Yet, the warnings of the trial court had gone unheeded. Instead, the Prosecution would deflect the responsibility for the delays to the failure of the trial court to issue the subpoena to its proposed witness and to cause the subpoena to be served. Such attitude of the Prosecution, which included the petitioner as the complainant, manifested a lack of the requisite diligence required of all litigants coming to the courts to seek redress. We find that the trial judge did not act capriciously, arbitrarily or whimsically in issuing the assailed order. Thus, the Court of Appeals properly dismissed the petition for certiorari. The petitioner now needs to be reminded that certiorari is an extraordinary remedy to correct a grave abuse of discretion amounting to lack or excess of jurisdiction when an appeal, or any plain, speedy and adequate remedy in the ordinary course of law is not available. In this regard, grave abuse of

discretion implies a capricious and whimsical exercise of judgment that is equivalent to lack of jurisdiction whenever the power is exercised in an arbitrary or despotic manner by reason of passion, prejudice or personal aversion amounting to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined, or to act at all in contemplation of law.91avvphi1 Also, it does not escape our notice that the trial courts assailed order terminating the Prosecutions presentation of evidence was merely interlocutory. This fact surely adds justification to the Court of Appeals rejection of the petition for certiorari, because it is the settled rule that certiorari does not lie to review an interlocutory order, but only a final judgment or order that terminates the proceedings. Certiorari will be refused where there has been no final judgment or order and the proceeding for which the writ is sought is still pending and undetermined in the lower court. Indeed, a writ of certiorari is not intended to correct every controversial interlocutory ruling unless the ruling is attended by grave abuse of discretion or tainted by whimsical exercise of judgment equivalent to lack of jurisdiction, for the function of certiorari is limited to keeping an inferior court within its jurisdiction and to relieving persons from its arbitrary acts acts that courts or judges have no power or authority in law to perform. Instead, the proper remedy for the petitioner was to proceed in the action until judgment, which, once rendered, might then be reviewed on appeal, along with the assailed interlocutory order.10 As long as the trial court acted within its jurisdiction, its alleged error committed in the exercise of its jurisdiction amounted to nothing more than an error of judgment that was reviewable by a timely appeal, not by a special civil action of certiorari.11 WHEREFORE, we affirm the decision dated September 12, 2002 rendered in CA-G.R. SP No. 66616. Costs of suit to be paid by the petitioner. SO ORDERED. G.R. No. 164715 September 20, 2006 ARNEL C. ALCARAZ, petitioner, vs. RAMON C. GONZALEZ, respondent. DECISION CALLEJO, SR., J.: Before us is a petition for review of the Decision1 of the Court of Appeals (CA) in CA-G.R. SP No. 75589, granting the petition for review of the Resolution of the Secretary of Justice in I.S. No. H-03484 for attempted homicide, as well as the Resolution denying the motion for reconsideration thereof. The Antecedents At around 10:05 a.m. of August 11, 2000, 61-year-old Ramon C. Gonzalez was driving his Nissan Cefiro car with plate no. UPW-298 along the right outermost lane of the South-Luzon Expressway. He was on his way to Makati City and had just passed the Sucat toll gate.2 Atty. Arnel C. Alcaraz, a Customs Collector of the Bureau of Customs, Batangas Port, was driving his Nissan Infiniti car with plate no. CNH-338. He was in the middle lane of the South-Luzon Expressway, between the Sucat and Bicutan Interchange, on his way to Manila from Batangas City. He was armed with a .38 caliber pistol and had with him Mission Order No. 699-2000, to expire on August 21, 2000. Since Alcaraz intended to use the Skyway, he signaled, and proceeded to the right-most lane which was reserved for vehicles taking the Skyway. Gonzalez, who was on the right-most lane, was forced to swerve his car to the right to avoid colliding with Alcaraz's vehicle and nearly hit the concrete island. Nonplussed, Gonzalez chased after Alcaraz, opened his windows and shouted at Alcaraz, demanding to know why the latter suddenly cut into his lane. Alcaraz retorted that he had signaled that he was swerving to the right. Gonzalez reproved Alcaraz and drove on. Alcaraz drove his car to Gonzalez's right. Upon nearing an island, Alcaraz raised his pistol towards Gonzalez and fired twice: the first bullet hit the right front window of the vehicle and exited at the left rear door; the second bullet hit the left rear window of Gonzalez's car.3Alcaraz hurriedly drove away from the scene, but was intercepted by the PNCC guards at the Skyway toll gate. The guards confiscated from Alcaraz the .38 pistol with 7 live bullets and 3 empty shells.4 Gonzalez reported the matter to the Paraaque City Police Station where he gave a statement to the police investigator, and filed a criminal complaint for attempted homicide against Alcaraz.5 The PNP Crime Laboratory examined Gonzalez's car to determine the trajectory of the bullets. Report No. PI-46-

2000 was prepared in connection with the investigation, with the following findings: Macro-physical examination conducted on the abovestated car "A" revealed the following results: 1. Entrance bullet hole ENT-1 found on the right front door, fired from right front with approximate diameter of 1.25 cms.; 2. Entrance bullet hole ENT-2 found at the rear left door, fired from right front measuring 0.5 cm by 1.0 cm.; 3. Exit bullet hole Ext-1 with an approximate diameter of 1.1 cm, found on the rear left door fired from right front. xxx CONCLUSION: The entrance bullet holes and the exit bullet hole were caused by bullets fired from right, front side of the vehicle. xxx6 On August 11, 2000, Alfredo Tan Buraga, Officer-in-Charge of the Paraaque Police Station, filed a criminal complaint for attempted homicide against Alcaraz in the Office of the City Prosecutor of Paraaque City.7 After the Office of the City Prosecutor conducted an inquest, an Information for attempted homicide against Alcaraz was filed with the Metropolitan Trial Court (MeTC) of Paraaque City. The inculpatory portion reads: That on or about the 11th day of August 2000 in the City of Paraaque, Philippines, and within the jurisdiction of this Honorable Court the above-named accused, with intent to kill and without justifiable cause, did then and there, willfully, unlawfully and feloniously attack, assault and shot one Ramon Gonzalez, thus commencing the commission of the crime of Homicide directly by overt acts but nevertheless did not perform all the acts of execution which should have produced the crime of Homicide by reason of cause or causes other than his own spontaneous desistance, that is due to the timely evasion made by the complainant. CONTRARY TO LAW.8 On motion of Alcaraz, the MeTC ordered the City Prosecutor to conduct a preliminary investigation.9 In his counter-affidavit, Alcaraz admitted having fired his gun towards the car of Gonzalez. However, he alleged that Gonzalez opened his car window, uttered invectives and waived a dirty finger at him. Gonzalez then proceeded to throw coins at him, hitting him on the chest, and again uttered invectives. He saw Gonzalez reach for a short firearm and aim it at him. This prompted him to take his firearm which was on the passenger seat, and fire it downwards twice onto the right passenger door of Gonzalez's vehicle. Alcaraz claimed that he did not aim his gun at Gonzalez; he had no intention of hitting Gonzalez, and only wanted to scare him.10 At the police station, Gonzalez identified himself as the brother of Congressman Jose Mari Gonzalez.11 In his reply-affidavit,12 Gonzalez insisted that Alcaraz attempted to kill him. He denied having thrown coins at Alcaraz and that he had a gun at the time. Gonzalez pointed out that Alcaraz's allegation that he was defending himself when he fired his gun was in effect an admission of intent to kill. The Investigating Prosecutor resolved to maintain his finding of probable cause of attempted homicide against Alcaraz and to retain the Information. Alcaraz filed a motion for reconsideration, and when it was denied, filed a petition for review with the City Prosecutor's Office, Department of Justice. He alleged the following: (a) The Honorable Investigating Prosecutor erred in giving serious considerations on complainant's theory on the trajectory of the bullet, as illustrated in his Reply-Affidavit dated 17 January 2001; (b) The Honorable Investigating Prosecutor erred in holding that respondent-appellant had the intent to kill the complainant; and (c) The Honorable Investigating Prosecutor erred in giving weight and credence on the allegations of complainant relative to the material points of the incident subject of the preliminary investigation.13 On November 26, 2001, then Secretary of Justice Hernando Perez issued a Resolution14 granting the petition and ordering the City Prosecutor to withdraw the Information. The dispositive portion reads: WHEREFORE, the appeal is hereby GRANTED. The City Prosecutor of Paraaque City is hereby directed to move for the withdrawal of the information for attempted homicide filed against respondent and to report to this Office the action taken within ten (10) days from receipt thereof.

SO ORDERED. According to the Justice Secretary, Gonzalez failed to prove beyond reasonable that Alcaraz had intended to kill him, thus: Evidence shows that respondent was provoked by complainant's acts of repeatedly hurling, not only invectives like "putanginamo" with a dirty finger sign, but also the throwing of coins that hit respondent's face and his lady passenger. The natural consequence was for respondent to retaliate as what had transpired in the instant case. There is no dispute that respondent fired his gun. But as to whether or not he had the intention to kill complainant is a different issue. Respondent's argument that he had no intention of hitting complainant and that his objective was only to scare him finds merit. As borne by the records, complainant himself was not hit. The gunfire was rather aimed at the passenger side of his car. Neither is there an indication that respondent continued firing his gun. These circumstances tend to negate the presumption that respondent had the intention to kill complainant. It has been held that intent to kill, being an essential element of the offense of frustrated or attempted homicide, must be proved by clear and convincing evidence and with the same degree of certainty as is required of the other elements of the crime. The element of intent to kill should not be drawn in the absence of circumstances sufficient to prove such intent beyond reasonable doubt (Mondragon v. People, 17 SCRA 476). Further, acts susceptible of double interpretation, that is, in favor as well as against the culprit, and which show an innocent as well as a punishable act, must not and cannot furnish grounds by themselves for attempted or frustrated crimes (Aquino, Revised Penal Code, 1997 ed., p. 103). Viewed from the foregoing pronouncements, the circumstance of trajectory of the bullet, from whence inference was made in the assailed resolution, is not well taken. The element of intent to kill not having been satisfactorily established, and considering that complainant was unscathed, a finding of probable cause against respondent for attempted homicide is difficult to sustain.15 Gonzalez filed a motion for reconsideration, which the Undersecretary of Justice denied on January 29, 2003. Gonzalez then filed a petition for review under Rule 43 of the 1997 Rules of Civil Procedure before the CA, seeking the reversal of the Justice Secretary's Resolution. He claimed that the Secretary acted beyond his authority in finding no probable cause to charge Alcaraz with attempted homicide and for ordering the City Prosecutor to withdraw the Information. He insisted that by invoking self-defense, Alcaraz thereby admitted his intention to kill him (Gonzalez). He claimed that Alcaraz's claim of self-defense should be ventilated during trial on the merits. In his comment on the petition, Alcaraz averred that the CA had no appellate jurisdiction over the petition, and that Gonzalez had no legal standing to file the petition. He insisted that the remedy from an adverse resolution of the Justice Secretary is to file a petition for certiorari under Rule 65 of the Rules of Court, as amended, grounded on grave abuse of discretion amounting to excess of jurisdiction, not one under Rule 43 of said Rule. He averred that the Justice Secretary is not a quasi-judicial officer under Rule 43 whose resolutions may thus be reviewed by the CA. Alcaraz likewise pointed out that the CA was without power to substitute its own judgment for that of the Justice Secretary regarding the existence or non-existence of probable cause to charge him with attempted homicide. On March 22, 2004, the CA rendered judgment granting the petition and reversing the assailed resolutions of the Secretary of Justice. The fallo of the decision reads: WHEREFORE, premises considered, the Resolutions promulgated on November 26, 2001 and January 29, 2003 by the Department of Justice, in I.S. No. H03484, Criminal Case No. 105593, are hereby REVERSED and SET ASIDE. No pronouncement as to costs. SO ORDERED.16 The CA ruled that the petition for review under Rule 43 of the Rules of Court, as amended, was meritorious. The appellate court declared that, based on the evidence on record, there was probable cause to file an Information for attempted homicide against Alcaraz. However, the CA failed to resolve

the issue of whether it had appellate jurisdiction over the petition under Rule 43 of the Rules of Court, as amended. Alcaraz filed a motion for the reconsideration on the following grounds: 1.1 The petitioner has no legal standing to file the present petition for review. 1.2 The present petition for review filed under Rule 43 of the Revised Rules of Court is an erroneous appeal. 1.3 The Metropolitan Trial Court of Paraaque, Branch 77 where the Information for Attempted Homicide against respondent was filed has exclusive and original jurisdiction over the subject matter of the present petition for review.17 On July 19, 2004, the CA resolved to deny Alcaraz's motion,18 holding that his grounds and objections had already been considered and passed upon by it in its decision.19 Alcaraz, now petitioner, filed the instant petition for review on certiorari, alleging that I THE HONORABLE COURT OF APPEALS HAS NO JURISDICTION TO REVIEW THE RESOLUTIONS OF THE SECRETARY OF JUSTICE IN AN APPEAL BY WAY OF A PETITION FOR REVIEW UNDER RULE 43 OF THE 1997 REVISED RULES OF COURT. II THE HONORABLE COURT OF APPEALS HAS NO JURISDICTION TO DETERMINE THE EXISTENCE OF PROBABLE CAUSE AND/OR TO SUBSTITUTE ITS OWN FINDINGS OF PROBABLE CAUSE TO THAT OF THE SECRETARY OF JUSTICE IN AN APPEAL BY WAY OF A PETITION FOR REVIEW UNDER RULE 43 OF THE 1997 REVISED RULES OF COURT. III. THE RESPONDENT HAS NO LEGAL STANDING TO APPEAL BY WAY OF A PETITION FOR REVIEW UNDER RULE 43 OF THE 1997 REVISED RULES OF COURT THE RESOLUTION OF THE DEPARTMENT OF JUSTICE TO THE HONORABLE COURT OF APPEALS.20 Petitioner avers that respondent, as petitioner in the CA, had no legal standing to appeal the resolutions of the Justice Secretary by way of a petition for review. Moreover, as the private complainant, private respondent was merely a witness in the criminal case in the MeTC. It is only the State through the Office of the Solicitor General (OSG) that has legal standing to appeal or assail the resolutions of the Secretary of Justice. Petitioner further avers that the Justice Secretary is not a quasi-judicial officer within the context of Rule 43 of the Rules of Court. He reiterates his claim that the CA has no appellate jurisdiction to review the assailed resolutions of the Secretary of Justice by way of a petition for review under Rule 43 of the Rules of Court, the proper remedy being a petition for certiorari under Rule 65. Petitioner cites the rulings of this Court in FiladamsPharma, Inc. v. Court of Appeals21 and Public Utilities Department of Olongapo City v. Guingona, Jr.22 to support his contention. He further insists that the determination of probable cause for the filing of an Information in court is not a judicial function, but an executive function; hence, the findings and resolutions of the Justice Secretary should prevail over the CA ruling. In its Comment on the petition, the OSG avers that the CA erred in granting the petition of respondent, since the proper remedy from an adverse resolution issued by the Secretary of Justice is to file a petition for certiorari under Ruler 65 of the Rules of Court, not a petition under Rule 43. By way of Comment, respondent maintains that he had the legal standing to file the petition with the CA and that the State is merely a nominal party. He avers that the Secretary of Justice acted as a quasi-judicial officer when he reviewed the resolutions of the City Prosecutor; hence, the same may be reviewed by the CA via petition for review under Rule 43 of the Rules of Court. In any event, respondent asserts, technicalities should be ignored, and the CA should not be faulted for taking cognizance of and resolving his petition on its merits. In reply, petitioner avers that conformably with the resolution of the Secretary of Justice, the City Prosecutor had filed a motion to withdraw the information in the MeTC, and the court had granted the motion per its Order dated March 7, 2003. He points out that respondent had not appealed the said order of the trial court.23 The Ruling of the Court The petition is meritorious. The threshold issue is whether the petition for review under Rule 43 of the Rules of Court was the proper remedy of respondent.

We agree with petitioner's contention that respondent resorted to an improper remedy when he filed a petition for review under Rule 43 of the Rules of Court, instead of filing a petition for certiorari under Rule 65. It bears stressing that in the determination of probable cause during the preliminary investigation, the executive branch of government has full discretionary authority. Thus, the decision whether or not to dismiss the criminal complaint against the private respondent is necessarily dependent on the sound discretion of the Investigating Prosecutor and ultimately, that of the Secretary of Justice. Courts are not empowered to substitute their own judgment for that of the executive branch.24 The resolution of the Investigating Prosecutor is subject to appeal to the Justice Secretary who, under the Revised Administrative Code, exercises the power of control and supervision over said Investigating Prosecutor; and who may affirm, nullify, reverse, or modify the ruling of such prosecutor.25 Thus, while the CA may review the resolution of the Justice Secretary, it may do so only in a petition for certiorari under Rule 65 of the Rules of Court, solely on the ground that the Secretary of Justice committed grave abuse of his discretion amounting to excess or lack of jurisdiction.26 It bears stressing that the Resolution of the Justice Secretary affirming, modifying or reversing the resolution of the Investigating Prosecutor is final. Under the 1993 Revised Rules on Appeals (now the 2000 National Prosecution Service Rules on Appeals), resolutions in preliminary investigations or reinvestigations from the Justice Secretary's resolution, except the aggrieved party, has no more remedy of appeal to file a motion for reconsideration of the said resolution of such motion if it is denied by the said Secretary. The remedy of the aggrieved party is to file a petition for certiorari under Rule 65 of the Rules of Court since there is no more appeal or other remedy available in the ordinary course of law.27 In the present case, respondent filed a petition for review under Rule 43 of the Rules of Court, assailing the resolutions of the Justice Secretary. Instead of dismissing the petition, however, the CA gave due course to it and thereafter granted the petition, on its finding that the Justice Secretary erred in reversing the resolution of the Investigating Prosecutor which found probable cause against petitioner for attempted homicide. Patently, the ruling of the CA is incorrect. IN VIEW OF ALL THE FOREGOING, the petition is GRANTED. The assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 75589 are NULLIFIED. SO ORDERED.