Republic of the Philippines

COURT OF APPEALS
Manila
TWELFTH DIVISION
NELIA L. ABID,
Petitioner-Appellee,
-versus-

CA-G.R. SP No. 112361

Members:

THE MUNICIPAL MAYOR,

THE
ACTING
MUN.
TREASURER,
THE
MUNICIPAL ACCOUNTANT,
MUNICIPAL
BUDGET
OFFICER, EMMA ESPINO
AND MARILOU BAGSIT, All
of Municipality of Ferrol,
Romblon,
Respondents-Appellants.

LAMPAS PERALTA, F.
Chairperson
LOPEZ, M. V., and
INTING. S. B., JJ.
Promulgated:
January 31, 2012

x----------------------------------------------x

DECISION
LAMPAS PERALTA, J.:
Before the Court is respondents-appellants' appeal from the
the following Orders in Civil Case No. OD-800 (For Mandamus and
Damages) of Branch 82, Regional Trial Court, Odiongan, Romblon:
(1) Order dated September 13, 20071 which denied
respondents-appellants' motion to dismiss the
petition for mandamus and damages and also
ordered the reinstatement of petitioner-appellee as
Municipal Treasurer of Ferrol, Romblon, with
payment of full back salaries during the period of
her preventive suspension from November 5, 1993
1

pp. 7-10, 55-58 and 126-129, Rollo; pp. 73-76, Record

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to February 5, 1994, and

(2) Order dated December 17, 20072 which denied
respondents-appellants' motion for reconsideration
of the Order dated September 13, 2007.

THE ANTECEDENTS
On April 26, 2007, petitioner-appellee Nelia Abid filed with the
trial court a Petition3 for Mandamus and Damages against
respondents-appellants elective and appointed officers of the
Municipality of Ferrol, Romblon, namely: Mayor Jason Fabila,
Acting Treasurer Estrella Mao, Accountant Jesalie Mijares,
Budget Officer Ramsie Lunasco and Accounting Clerks Emma
Espino and Marilou Bagsit, praying for (i) the issuance of a writ of
mandamus commanding respondents-appellants to reinstate
petitioner-appellee as Municipal Treasurer of Ferrol, Romblon; (ii)
the payment of petitioner-appellee's back salaries, RATA and other
emoluments,
allowances
and
benefits
amounting
to
Php318,970.96; and, (iii) the award of moral and exemplary
damages.
Respondents-appellants filed their Answer with Motion to
Dismiss,4 praying for the outright dismissal of the petition for want
of merit, among others. On August 9, 2007, the trial court heard
the oral arguments of the parties with respect to the propriety of
petitioner-appellee's reinstatement during the pendency of a
criminal action against her.5
In its Order dated September 13, 2007, the trial court
summarized its factual findings and the respective positions of the
parties as follows:
2
3
4
5

p. 69 and 139, Rollo; p. 99, Record

pp. 37-44 and 95-102, Rollo; pp. 2-9, Record
pp. 46-52 and 115-121, Rollo; pp. 54-60, Record
TSN dated August 9. 2007

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That the petitioner was appointed as the Municipal

Treasurer of the Municipality of Ferrol, Romblon on November
18, 1984; she was administratively charged of Dishonesty
through Malversation of Public Funds on September 3, 1993
and as a consequence thereof, she was preventively
suspended for ninety (90) days from November 5, 1993 to
February 1994.
After the service of the ninety-(90) day preventive
suspension, Thelma Donde the then Municipal Mayor of Ferrol,
Romblon refused to reinstate or allow the petitioner to return to
her former position as Municipal Treasurer of said municipality.
On July 14, 1999, said petitioner was exonerated on a
Decision rendered by the Secretary of Finance, Edgardo
Espiritu.
Consequently, a resolution dated June 14, 2001 was
issued and the dispositive portion of which reads as follows:
It is hereby ordered that she be reinstated to
her former position as Municipal Treasurer of Ferrol,
Romblon with full back salaries for the period that
she was under preventive suspension."

Despite the lapse of the ninety (90) days preventive

suspension and the receipt of the Decision of the Department
of Finance exonerating her for the administrative charge, said
petitioner was prevented, prohibited to perform her duties and
functions and refused to conduct the turn-over of the Office of
the Municipal Treasurer of Ferrol, Romblon by the previous and
incumbent Municipal Mayor and the acting Treasurer.
Likewise, as a consequence of her exoneration, Civil
Service Commission Regional Director Edmundo Dasig, Jr.
issued an order for payment of her back salaries and wages
including RATA but the respondents who are all responsible for
the reinstatement and release of payment of salaries refused.
On February 23, 2007, a formal demand was made upon
respondents but they still refused and continuously refused to
reinstate and pay her salaries and other allowances up to the
filing of said petition.
In its answer with motion to dismiss dated May 18, 2007,

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the respondents averred that the petitioner has no cause of

action and further claimed that as early as 1995 she has been
reinstated in the payroll but not to her former position as
Municipal Treasurer by reason of the criminal action that was
instituted against her by the Commission on Audit. which is still
pending before the Regional Trial Court of Odiongan.
Furthermore, the petitioner has been duly paid by her
claims for the years 1993, 1994, and 1995 but the amount of
Sixty Thousand pesos Two Hundred Eighty Three and Forty
Eight Centavos (P60, 283, 48) was withheld due to the criminal
action for Malversation of Public Funds. That the withholding of
the subject amount was in consonant with Sec. 37 of P.D.
1445. Said petitioner cannot avail of and is not entitled to be
paid and to receive RATA per letter dated February 9, 2001 of
Julieta Dela Torre, Regional Director of The Department of
Budget and Management Regional Office, Region IV.6

While the trial court denied for lack of merit respondentsappellants' motion to dismiss in its Order dated September 13,
2007, it also ordered respondents-appellants to reinstate petitionerappellee with payment of full back salaries during her preventive
suspension. Thus:
VIEWED FROM THE FOREGOING PREMISES, the
respondents are hereby commanded or directed to enforce as
part of their ministerial duty to reinstate the petitioner to her
former position as Municipal Treasurer of Ferrol, Romblon with
full back salaries from November 5, 1993 to February 5, 1994,
the period she was under preventive suspension pursuant to
the Decision of the Department of Finance on July 14, 1999
which had long became final and executory.
Accordingly, the Motion to Dismiss is DENIED for lack of
merit.
SO ORDERED7

On October 8, 2007, respondents-appellants filed a motion

6
7

pp. 7-8, 55-56 and 126-127, Rollo; pp. 73-74, Record.

pp. 10, 58 and 129, Rollo; p. 76, Record.

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for reconsideration8 of the Order dated September 13, 2007. In an

Order dated December 17, 2007,9 the trial court denied for lack of
merit the motion for reconsideration.
On January 16, 2008, respondents-appellants filed a notice
of appeal.10 Petitioner-appellee opposed11 the notice of appeal on
the ground that the appropriate mode of questioning the trial
court's Order dated September 13, 2007 was by way of certiorari
under Rule 65 of the Rules.
In an Order dated January 29, 2008,12 the trial court approved
the notice of appeal, holding that the trial court's Order dated
December 17, 2007 was not an interlocutory order but a final order
as it finally resolved the issues raised in respondents-appellants'
motion to dismiss and motion for reconsideration. Thus:
Before this Court is a Notice of Appeal dated January
16, 2008 flied by respondents and its opposition thereto.
The basis of filing the Notice of Appeal was the Court's
Order dated December 17, 2007, denying the motion for
reconsideration of the Order dated September 13, 2007, which
petitioner's counsel considers it as interlocutory in nature, and
therefore, is not appealable, the remedy being is by way of
petition for certiorari under Rule 65 of the Revised Rules of
Court.
In the instant case, the denial of the motion for
reconsideration of the Court's order dated September 13, 2007,
is not an interlocutory order, but a final Order as the Court had
finally resolved the issues raised in the Motion to Dismiss and
its motion for reconsideration. The respondents' reference in
their Notice of Appeal to the Court's Order dated December 17,
2007, denying the motion for reconsideration should also be
viewed to refer to the Order of the Court dated September 13,
2007 which was the subject of the motion for reconsideration.
In other words, the respondents not only appealed from the final
8
9
10
11
12

pp. 59-62 and 130-133, Rollo; pp. 67-70, Record

p. 69 and 139, Rollo; p. 99, Record
pp. 11-12, 70-71 and 140-141, Rollo; pp. 100-101, Record
Opposition to the Notice of Appeal, pp. 72-73 and 143-144, Rollo; pp. 102-103, Record
pp. 13-14, 74 and 145-146, Rollo; pp. 104-105, Record

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order of the Court dated December 17, 2007, but it also

includes the Court's Order dated September 13, 2007, which
appeal was filed on time.
IN THE LIGHT OF THE FOREGOING, the Notice of
Appeal is hereby GRANTED. The Clerk of Court is hereby
directed to transmit the entire records of the case to the Court
of Appeals, Manila.
SO ORDERED.13

On January 31, 2008, petitioner-appellee filed a motion for

reconsideration14 of the Order dated January 29, 2008. After a
hearing on said motion for reconsideration,15 the trial court issued
an Order dated October 26, 200916 denying the same for the
following reasons:
Contrary to the stance of the petitioner, the court finds
the order dated September 13, 2007 not an interlocutory but a
final order. Petitioner is oblivious of the fact that, by careful
reading of the September 13, 2007 order, it finally resolves on
the merits of the case.
The Motion for Reconsideration of the order dated
September 13, 2007 which was filed on time was denied by
this court thru order dated December 17, 2007. Hence, the
notice of appeal is proper under circumstances to appeal the
final order dated September 13, 2007 which was also filed on
time.
SO ORDERED.17

The present appeal of respondents-appellants from the

Orders dated September 13, 2007 and December 17, 2007 of the
trial court raises this issue:
WHETHER OR NOT, A DECISION RENDERED BY THE
13
14
15
16
17

pp. 13, 74 and 145, Rollo; p. 104, Record

pp. 75-77 and 147-149, Rollo; pp. 107-109, Record
TSN dated October 10, 2009
pp. 150-151, Rollo; pp. 173-174, Record
p. 150, Rollo; p. 173, Record

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LOWER COURT, WITHOUT REQUIRING THE PARTIES TO

PRESENT EVIDENCE TO SUPPORT THEIR RESPECTIVE
CLAIMS, IS A VALID DECISION?18

THE ISSUE
Whether the trial court erred in resolving the
merits of the petition for mandamus with damages in
the same Order dated September 13, 2007 which
denied the motion to dismiss the petition.
THE COURT'S RULING
Respondents-appellants argues that the trial court's Order
dated September 13, 2007 was null and void for violating the
rights of the plaintiffs and defendants to be heard, and for want of
evidence to support its decision.19 Allegedly, (i) the court, instead
of limiting itself to the issues raised earlier in respondentsappellants' motion to dismiss, discussed and argued further, not
only to the merits of the case but the whole case itself, without
requiring the plaintiff nor the defendant to adduce evidence to
support their respective claims and defenses;20 (ii) the trial court
did not follow the procedure or steps laid down in the 1997 Rules
on Civil Procedure, nor give the respondents-appellants their day
in court, thereby denying their constitutional, procedural and
substantial rights to due process;21 and, (iii) there is nothing to
support the court's decision as there was no evidence introduced
by the plaintiff to support her allegations.22
On the other hand, petitioner-appellee asserts that the
present appeal should be denied because (i) respondents18
19
20
21
22

Appeal Memorandum (for the Appellants), p. 29, Rollo

p. 32, Id.
p. 31, Id.
Id.
Id.

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appellants should have filed a petition for Certiorari under Rule

6523 since the Order dated September 13, 2007 was merely an
interlocutory order; (ii) even granting that the Order is not purely
intelocutory, the same should have been questioned by way of
certiorari under Rule 65 for grave abuse of discretion amounting to
lack or excess of jurisdiction;24 and, (iii) in any event, the ruling of
the trial court was based on documents submitted by the parties
and the oral arguments conducted and they have been accorded
ample opportunity to be heard.25
The general rule is that an order denying a motion to dismiss
cannot be appealed or questioned via a special civil action for
certiorari. The remedy of a party aggrieved by the court's denial of
a motion to dismiss is (i) to proceed to trial, and (ii) after trial and a
decision is rendered, to appeal the decision and assigned as one
of the errors the order denying the motion to dismiss. The remedy
of the aggrieved party is to file an answer to the complaint and to
interpose as defenses the objections raised in his motion to
dismiss, proceed to trial, and in case of an adverse decision, to
elevate the entire case by appeal in due course.26
Resort to appeal or special civil action for certiorari, unless
the denial of the motion to dismiss is tainted with grave abuse of
discretion amounting to lack or excess of jurisdiction,27 is
proscribed because an order denying a motion to dismiss is an
interlocutory order.28 In law, the word "interlocutory" refers to
23
24
25
26

27
28

Memorandum for the Appellee, p. 86, Id.

p. 88, Id.
p. 90, Id.
Emergency Loan Pawnshop Incorporated vs. Court of Appeals, 353 SCRA 89, February
28, 2001
Heirs of Adolfo Florencio vs. Cabral, 530 SCRA 111, August 14, 2007
Section 1, Rule 41 of the Revised Rules of Court
Section 1. Subject of appeal. - 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 these Rules to be appealable.
No appeal may be taken from:
xxxx
(c) An interlocutory order;

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intervening developments between the commencement of a suit

and its complete termination; hence, it is a development that does
not end the whole controversy. An "interlocutory order" merely
rules on an incidental issue and does not terminate or finally
dispose of the case; it leaves something to be done before the
case is finally decided on the merits.29
In its Order dated September 13, 2007 denying respondentsappellants' motion to dismiss, the trial court also granted
petitioner-appellee's main reliefs prayed for in the petition for
mandamus, such as her reinstatement as Municipal Treasurer of
Ferrol, Romblon and the payment of her full back salaries from
November 5, 1993 to February 5, 1994. In fine, the trial court
resolved the merits of the case. This is evident from the following
ruling of the trial court:
This petition arose from the refusal of former Municipal
Mayor of Ferrol, Romblon, Thelma Donde, to implement the
Decision of the Secretary of Finance exonerating the herein
petitioner from the administrative case and consequently
ordering her reinstatement to the former position as Municipal
Treasurer of Ferrol, Romblon, with full back salaries for the
period that she was under preventive suspension.
The acts and inactions of these respondents from
Municipal Mayors, Thelma Donde, Pacifico L. Mayor and the
incumbent Mayor Jason FabiIa to implement said decision
dated July 14, 1999 and a resolution dated June 14, 2001 the
dispositive portion of which reads as follows:
"It is hereby ordered that she be reinstated to her
former position as Municipal Treasurer of Ferrol,
Romblon with full back salaries for the period that she
was under preventive suspension.
For failure to allow or continuous refusal on the part of
these respondents to reinstate the petitioner to her former
x x x x.

29

In all the above instances where the judgment or final order is not appealable, the
aggrieved party may file an appropriate special civil action under Rule 65.
Marmo vs. Anacay, 606 SCRA 232, November 27, 2009

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position as Municipal Treasurer of Ferrol, Romblon after the

final orders and decisions of administrative agencies had long
become final and executory pursuant to their quasi-judicial
authority, these respondents or officers have acted without or in
excess of their jurisdiction or with grave abuse of discretion.
It is a well established rule that decisions and orders of
administrative agencies rendered pursuant to their quasi-judicial
authority, have upon their finality, the force and binding effect of
a final judgment within the purview of the doctrine of res
judicata.
Decisions of administrative officers shall not be
disturbed by the Courts, except when such officers acted
without or in excess of jurisdiction or with grave abuse of
discretion.
In the case at bar, the petitioner had been exonerated
since July 14, 1999 and the respondents alleged on their
answer that the petitioner as early as in the year 1995 has been
reinstated in the payroll but not to her former position as
Municipal Treasurer by reason of the criminal action that was
instituted against her and those claims were paid of but she is
not entitled to be paid of and to receive RATA because said
RATA is attached to the performance of duties and
responsibilities of the incumbent, which the petitioner is not
performing as Municipal Treasurer of Ferrol, Romblon, hence,
she shall not be entitled thereto.
The issue regarding the withholding of the amount of
Sixty Thousand Two Hundred Eighty Three Forty Eight
(P60,283.48) by the respondents was due to the petitioner's
criminal case which is still pending before RTC is for the
satisfaction of indebtedness to the government pursuant to Sec.
37 of P.D. 1445.
The reinstatement of said petitioner as ordered is final
and executory and it became a clear ministerial duty on the part
of these respondents to comply with the decision dated July 14,
1999.
The established rule is that a writ of mandamus lies to
enforce a ministerial duty or the performance of an act which
the law specifically enjoins as a duty resulting from office, trust

10

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11

or station.30

Clearly, the trial court's Order dated September 13, 2007 is

not just an interlocutory order but a final order, as nothing more is
to be done in the case below. It is basic that an order or 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 trial court.31
Moreover, the trial court itself, in its Orders dated January 29,
2008 and October 26, 200933 confirmed that its Order dated
September 13, 2007 which denied respondents-appellants' motion
to dismiss the petition for mandamus and damages was a final
order. Hence, respondents-appellants remedy was to file an
appeal under Section 2 (a), Rule 41, 1997 Rules of Civil
Procedure, not a special civil action of certiorari.
32

The question then is whether it was proper for the trial court
in resolving the merits of the petition for mandamus not to follow
the procedure or steps laid down in the 1997 Rules on Civil
Procedure,34 specifically Sections 5 to 9, Rule 30.35 The Court
answers in the negative.
The petition in the case is primarily for mandamus, seeking
to reinstate or allow the reinstatement of the petitioner to her
position as Municipal Treasurer36 because notwithstanding the
clear lapse of the ninety day preventive suspension and the receipt
of the decision of the Department of Finance exonerating her from
the administrative charge and the favorable ruling of the Civil
Service Commission when PETITIONER asked for assistance for
the implementation of the Department of Finance ruling, both of
which have become final and executory, petitioner was prevented,
30
31
32
33
34
35
36

pp. 8-10, 56-58 and 127-129, Rollo; pp. 74-76, Record

Sarsaba vs. Vda. De Te, 594 SCRA 410, July 30, 2009
pp. 13-14, 74 and 145-146, Rollo; pp. 104-105, Record
pp. 150-151, Rollo; pp. 173-174, Record
p. 31, Rollo
pp. 29-31, Id.; Rule on Trial
pp. 44 and 102, Rollo; p. 9, Record

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12

prohibited and refused to conduct the turn-over of the Office of

Municipal Treasurer of Ferrol, Romblon for the petitioner to perform
her respective duties and functions by the previous and incumbent
Municipal Mayor and the Acting Treasurer.37
Although an action for mandamus is a special civil action, the
provisions pertaining to trial under Rule 30, 1997 Rules of Civil
Procedure applies suppletorily38 when the issues raised by the
parties necessitate the holding of a trial. In petitions for certiorari,
prohibition and mandamus, a trial court may conduct further
proceedings by setting the case for trial after the comment thereon
is filed. Section 8, Rule 65 provides:
Sec. 8. Proceedings after comment is filed. After the
comment or other pleadings required by the court are filed, or
the time for the filing thereof has expired, the court may hear
the case or require the parties to submit memoranda. If after
such hearing or submission of memoranda or the expiration of
the period for the filing thereof the court finds that the
allegations of the petition are true, it shall render judgment for
the relief prayed for or to which the petitioner is entitled.
The court, however, may dismiss the petition if it finds the
same to be patently without merit, prosecuted manifestly for
delay, or that the questions raised therein are too unsubstantial
to require consideration.

The oral arguments on August 9, 200739 cannot be

37
38

pp. 40-41 and 98-99, Rollo; pp. 5-6, Record

Rule 1
GENERAL PROVISIONS
xxx

xxx

SEC. 3. Cases governed. These Rules shall govern the procedure to be

observed in actions, civil or criminal, and special proceedings.
(a) x x x
A civil action may either be ordinary or special. Both are governed by the rules for
ordinary civil actions, subject to the specific rules prescribed for a special civil action.
39

xxx
TSN dated August 9. 2007

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13

considered as trial on the merits of the case because the

arguments pertained primarily to the issue of whether the
pendency of a criminal action barred petitioner-appellee's
reinstatement. Notably, no evidence was even presented to prove
the pendency of the criminal case.
Accordingly, remand of the case to the trial court for trial is
necessary for the following reasons:
Firstly, it must be determined whether petitioner-appellee is
entitled to reinstatement and if so entitled, whether she must be
reinstated under Department of Finance (DOF) Decision dated July
14, 199940 which ordered the payment of her back salaries during
the period that she was under preventive suspension,41 or under
CSC Resolution No. 06-0227 dated February 1, 200642 which ruled
that she was not entitled to back salaries and other monetary
benefits during the period of her preventive suspension.43 Notably,
petitioner-appellee was praying for the payment of back salaries
and other monetary benefits during the period of her preventive
40
41

pp. 11-16, Record

p. 16, Record
WHEREFORE, PREMISES CONSIDERED, Respondent is hereby
exonerated of the offense charged for lack of susbtantial evidence. Consequently, it
is hereby ordered that she be reinstated to her former position as Municipal Treasurer
of Ferrol, Romblon with full back salaries for the period that she was under preventive
suspension.
Let copies hereof be furnished all parties concerned.

42
43

SO ORDERED.
pp. 105-114, Rollo; pp. 22-32 and 87-96, Record
p. 114, Rollo; pp. 32 and 96, Record
WHEREFORE, premises considered, the appeal of Pacifico Ll. Mayor,
Municipal Mayor of the Municipality of Ferrol, Romblon, is hereby DISMISSED.
Accordingly, CSCRO No. IV Decision dated May 16, 2003, reinstating Abid to her
former position as Municipal Treasurer of Ferrol, Romblon with payment of back
salaries and other monetary benefits, excluding the period of her preventive
suspension; the Decision dated July 17, 2003, declaring her entitlement to
Representation and Transportation Allowance from the time she was deprived of
receiving the same; and the Decision dated September 9, 2003, denying the motion
for reconsideration of movant Pacifico Ll. Mayor, respectively, are hereby
AFFIRMED.

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suspension from November 5, 1993 to February 5, 1994.44

Secondly, trial is necessary to determine factual issues.
Petitioner-appellee's claims for back salaries, wages RATA and
other emoluments, allowances and benefits x x x with a total of Php
318,970.9645 were controverted by respondent-appellants in their
answer.46
Thirdly, petitioner-appellee's prayer for damages calls for
reception of evidence to lay the factual basis therefor.47 The trial
court cannot merely rely on petitioner-appellee's bare allegations.
In fine, while the trial court did not err in denying
respondents-appellants' motion to dismiss, it gravely erred when it
resolved the merits of the case despite the absence of evidence to
support the same.
WHEREFORE, the appealed Orders dated September 13,
2007 and December 17, 2007 of the trial court are AFFIRMED
insofar as the denial of the motion to dismiss is concerned, but the
same are REVERSED insofar as the merits of the case were ruled
upon. This case is REMANDED to the trial court for further
proceedings.
SO ORDERED.
FERNANDA LAMPAS PERALTA
Associate Justice
WE CONCUR:
MARIO V. LOPEZ
Associate Justice
44
45
46
47

SOCORRO B. INTING
Associate Justice

pp. 42 and 100, Rollo; p. 7, Record

pp. 44 and 102, Rollo; p. 9, Record
pp. 48-49 and 117-118, Rollo; pp. 56-57, Record
Coastal Pacific Trading, Inc. vs. Southern Rolling Mills, Co., Inc., G.R. No. 118692, July 28,
2006

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

FERNANDA LAMPAS PERALTA

Associate Justice
Chairperson, Twelfth Division