depositor(sic) of respondents company.
Thereafter, the recorded transactions are forwarded to the main
Remedy to correct errors of jurisdiction
Jamer v NLRC
DECISION
HERMOSISIMA, JR., J.:
The decision[1] of public respondent National Labor Relations Commission (NLRC)[2] in NLRC NCR CA
002074-91,[3] promulgated on November 12 1993, is herein sought to be annulled for having been
rendered with grave abuse of discretion, it having reversed and set aside the decision[4] of Labor Arbiter
Pablo C. Espiritu, Jr. by dismissing the petitioners complaint for illegal dismissal against private respondent
Isetann Department Store (Isetann, for brevity). The decretal part of the NLRC decision reads:
WHEREFORE, premises considered, the appealed decision is hereby set aside and new one promulgated
declaring that the dismissal from the service of complainants Corazon Jamer and Cristina Amortizado was
valid and for cause. Consequently, the order of reinstatement with backwages and attorneys fees are
likewise vacated and set aside.[5]
Although the Labor Arbiter[6] and the NLRC reached contrary conclusions, both agree on the
following facts:
Complainant, Corazon Jamer was employed on February 10, 1976 as a Cashier at Joy Mart, a sister
company of Isetann. After two (2) years, she was later on promoted to the position of counter supervisor.
She was transferred to Isetann, Carriedo Branch, as a money changer. In 1982 she was transferred to the
Cubao Branch of Isetann, as a money changer, till her dismissal on August 31, 1990.
Complainant Cristina Amortizado, on the other hand, was employed also at Joy Mart in May, 1977 as a
sales clerk. In 1980 she was promoted to the position as counter cashier. Thereafter, she was transferred
to Young Un Department Store as an assistant to the money changer. Later on, or in 1985, she transferred
to Isetann, Cubao Branch where she worked as a Store Cashier till her dismissal on August 31, 1990.
Both complainants were receiving a salary of P4,182.00 for eight (8) hours work at the time of their
dismissal.
Respondent Isetann Department Store on the other hand, is a corporation duly organized and existing
under laws of the Philippines and is engaged in retail trade and the department store business. Individual
respondent, John Go is the President/General (Manager) of respondent Department Store.
This complaint arose from the dismissal of the complainants by the respondents. They were both
dismissed on August 31, 1990 on the alleged ground of dishonesty in their work as Store Cashiers.
Complainants (sic) function as Store Cashiers is to accumulate, at the end of daily operations, the cash
sales receipts of the selling floor cash register clerks. At the close of business hours, all the cash sales of
the floor cash register clerks are turned over by them to the Store Cashiers, complainants herein, together
with the tally sheets prepared by the cash register clerks. Thereafter, complainants will reconcile the cash
sales with the tally sheets to determine shortages or coverages(sic) and deposit the same with the bank
branch of respondents company at Carriedo for counter-checking.
On July 16, 1990, complainants discovered a shortage of P15,353.78. It was complainant Corazon Jamer
who first discovered the shortage. In fact at first, she thought that it was merely a P1,000.00 shortage but
when she reconciled the cash receipts, from the cash register counters, with the tally sheets and the
actual money on hand, the shortage amounted to P15,353.78. She informed her co-store cashier,
complainant Cristina Amortizado, about the shortage. Cristina Amortizado also reconciled and re-counted
the sale previous to July 16, 1990 and she also confirmed that there was a discrepancy or a shortage
of P15,353.78.. They did not, (sic) immediately report the shortage to management hoping to find the
cause of the shortage but to no avail they failed to reconcile the same. Hence, they had no other
alternative but to report the same to the management on July 17, 1990.
Complainants, together with another Store Cashier, Lutgarda Inducta, were asked to explain and they
submitted their respective written explanations for the shortage of P15,353.78. and the P450.00 under
deposit last July 14, 1990.
Respondents placed both complainants and their co-store cashier Lutgarda Inducta under
preventive suspension for the alleged shortages. Thereafter, respondents conducted an administrative
investigation. Finding the explanation of the complainants to be unsatisfactory, respondent dismissed the
complainants from the service on August 31, 1990. Aggrieved and not satisfied with the decision of
management terminating their services, complainant instituted this present action on September 26,
1990 for illegal dismissal praying for reinstatement with payment of backwages and other benefits. [7]
In justifying complainants dismissal from their employment, respondents alleged:
When the transactions for July 15, 1990 were being reconciled, a shortage of P15,353.78 was discovered.
Also uncovered was an under-deposit of P450.00 of cash receipts for July 14, 1990.
Considering that the foregoing deficits were attributable to herein appellees and to another store cashier,
Mrs. Lutgarda Inducta, who were the ones on duty those days respondent Isetanns Human Resources
Division Manager, Teresita A. Villanueva, issued letters (Exh. 1 and 5) individually addressed to herein
appellees and Mrs. Inducta requiring them to submit written explanations in regard to their above
malfeasance within 48 hours from receipt thereof. Pursuant to said letters, they were likewise placed
under preventive suspension.
Thereafter, the Committee o Discipline of appellant Isetann conducted a series of investigations probing
appellees and Mrs. Inductas aforestated shortages. In addition to the shortage of P15,353.78(sic) and
underdeposit of P450.00, said investigation also included the following sums which appellees failed to
turnover or account for:
a) P1,000.00- amount borrowed by Lutgarda Inducta from Corazon Jamer;
b) P 70.00- over replenishment of petty cash expenses incurred by Cristina Amortizado.
After the administrative investigation, the Committee on Discipline rendered its decision (Exhs. 3, 3-A, to
3-D) dated August 23, 1990 duly approved by the General Manager of respondent Isetann, finding the
appellees and Mrs. Inducta responsible for said shortages and consequently requiring them to restitute
the same to respondent Isetann. This Decision and the notices of termination were sent by respondent
Isetann to the appellees, and which the latter admittedly received.
On the other hand, the complainants account of the factual antecedents that let (sic) to their dismissal is
as follows:
Aside from the foregoing persons, Alex Mejia had and was allowed by management to have uncontrolled
access to the said room including the vault. Ostensibly, the purpose was to assist in the bringing in or
taking out of coin bags, monies, etc.
There were therefore, at a minimum at least six (6) persons who could have had access to the company
funds. To ascribe liability to the store cashiers alone, in the absence of a clear proof of any wrongdoing is
not only unfair and discriminatory but is likewise illegal.
Parenthetically, and within the parameters of their assigned tasks, herein complainants could not be
faulted in any way for the said shortage as there is no showing that the loss occurred at the time they
were in control of the funds concerned.
Complainants do not dispute the fact that there appeared to be a shortage of P15.373.78(sic) for the July
15, 1990 (a Sunday) sales and which were tallied and the loss discovered on the following day, July 16,
1990. They however vehemently deny any culpability or participation in any kind, directly or indirectly, in
regard to the said loss or shortage. Given the kind of trust reposed upon them by respondents for fourteen
and thirteen years respectively they were not about, although they could have done so before given the
negligence and laxity of management in regard to the control and handling of funds of the store, to break
said trust.
At the time the persons who had access either to the vault the money and/or the keys aside from herein
complainants, were: 1) Lutgarda Inducta, also a store cashier on duty at the time; 2) the SOM Mrs.
Samonte, the supervisor in charge; 3) Alex Mejia, an employee assigned as utility man; and 4) Boy
Cabatuando.
There were (sic) three (3) keys to the money changers room, and these keys were assigned and distributed
to: a) master key is or was with the SOMs (Mrs. Samonte) room at the 3rd floor of the building; b) another
key is or was in the possession of the keeper of the keys, i.e. Boy Cabatuando; and c) the third and last
key is any of the store cashiers depending on who is on duty at the time.
Likewise, there were four (4) persons who were aware and knew of the vault combination. These were
the three store cashiers, i.e. herein complainants, Lutgarda Inducta and their SOM, Mrs. Samonte.[8]
On July 23, 1991, Labor Arbiter Nieves V. de Castro, to whom the instant contoversy was originally
assigned, rendered a decision[9] in favor of herein petitioners, finding that petitioners had been illegally
dismissed, the dispositive portion of which reads:
WHEREFORE, respondents are hereby directed to reinstate complainants to service effective August 1,
1991 with full backwages and without loss of seniority rights.
SO ORDERED.[10]
Expectedly, respondents Isetann and John Go appealed the aforesaid decision to the NLRC. On
January 31, 1992, the NLRC issued a resolution[11] remanding this case to the NLRC National Capital Region
Arbitrattion Branch for further proceedings in the following manner:
WHEREFORE, premises considered, the challenged decision is hereby SET ASIDE and VACATED.
The entire records of this case is hereby remanded to the NLRC National Capital Region Arbitration Branch
for further proceedings.
Considering that the Labor Arbiter a quo rendered a decision in this case and in order to dispel any
suspicion of pre-judgment of this case, the Executive Labor Arbiter is hereby directed to have this case
re-raffled to another Labor Arbiter.
SO ORDERED.[12]
Consequently, the present case was then re-raffled to Labor Arbiter Pablo C. Espiritu, Jr. After a full-
blown trial, the said Labor Arbiter found for the petitioners and declared that there was no justification,
whether in fact or in law, for their dismissal. The decretal part of the decision[13] dated March 31, 1993,
states:
WHEREFORE, above premises considered, judgement(sic) is hereby rendered finding the dismissal of
complainants, Cristina Amortizado and Corazon Jamer to be illegal and concomitantly, (r)espondents are
hereby ordered to pay complainants, Corazon Jamer the amount of P125,460.00 and Cristina Amortizado
the amount of P125,460.00, representing full backwages from the time of their dismissal (August 31,
1990) till actual or payroll reinstatement at the option of the respondent (computed until promulgation
only). Respondents are also hereby further ordered to reinstate the complainants to their former position
as Store Cashiers without loss of seniority rights, privileges and benefits, failure to do so backwages shall
continue to run but in no case to exceed three (3) years.
Respondents are also ordered to pay complainants the amount of P25,092.00 representing 10% attorneys
fees based in the total judgement(sic) award of P250,920.00.
SO ORDERED.[14]
Dissatisfied over the decision of the Labor Arbiter which struck private respondents as grossly
contrary to the evidence presented, the herein private respondents once again appealed to the NLRC.
And, as earlier stated, the NLRC rendered the challenged decision[15] on November 12, 1993, vacating the
decision of the Labor Arbiter and entering a new one dismissing the petitioners complaint.
Hence, this petition wherein the main issue to be resolved is whether NLRC committed grave abuse
of discretion in finding that petitioners were validly dismissed on the ground of loss of trust and
confidence.
At the outset, the Court notes petitioners inexcusable failure to move for the reconsideration of
respondent NLRCs decision. Thus, the present petition suffers from a procedural defect that warrants its
outright dismissal. While in some exceptional cases we allowed the immediate recourse to this Court, we
find nothing herein that could warrant an exceptional treatment to this petition which will justify the
omission. This premature action of petitioners constitutes a fatal infirmity as ruled in a long line of
decisions,[16] most recently in the case of Building Care Corporation vs. National Labor Relations
Commission, et al.:[17]
the filing of such a motion is intended to afford public respondent an opportunity to correct any actual or
fancied error attributed to it by way of a re-examination of the legal and factual aspects of the case.
Petitioners inaction or negligence under the circumstances is tantamount to a deprivation of the right
and opportunity of the respondent Commission to cleanse itself of an error unwittingly committed or to
vindicate itself of an act unfairly imputed. xxx
xxx And for failure to avail of the correct remedy expressly provided by law, petitioner has permitted the
subject Resolution to become final and executory after the lapse of the ten day period within which to
file such motion for reconsideration.
Likewise, a motion for reconsideration is an adequate remedy; hence certiorari proceedings,as in
this case, will not prosper.[18] Rule 65, Section 1 of the Rules of Civil Procedure, as amended, clearly
provides that:
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, xxx
The unquestioned rule in this jurisdiction is that certiorari will lie only if there is no appeal or any
other plain, speedy and adequate remedy in the ordinary course of law against the acts of
respondent.[19] In the case at bench, the plain and adequate remedy referred to in Rule 65, Section 1, is a
motion for reconsideration of the challenged decision and the resolution thereof, which was expected to
provide an adequate and a more speedy remedy than the present petition for certiorari.
Petitioners asseverate that respondent NLRC committed a grave abuse of discretion when it
reversed the findings of facts of the Labor Arbiter.
We find said submissions untenable.
In asserting that there was a grave abuse of discretion, petitioners advert to alleged variances in
the factual findings of the Labor Arbiter and the respondent NLRC. This is inept and erroneous. Firstly,
errors of judgment, as distinguished from errors of jurisdiction, are not within the province of a special
civil action for certiorari.[20] Secondly, a careful reading of the records of this case would readily show that
there is any error by public respondent in its analysis of the facts and its evaluation of the evidence, it is
not of such a degree as may be stigmatized as a grave abuse of discretion does not necessarily follow just
because there is a reversal by the NLRC of the decision of the Labor Arbiter. Neither does the mere
variance in the evidentiary assessment of the NLRC and that of the Labor Arbiter would, as a matter of
course, so warrant another full review of the facts. The NLRCs decision, so long as it is not bereft of
support from the records, deserves respect from the Court.[21]
We must once more reiterate our much repeated but not well-heeded rule that the special civil
action for certiorari is a remedy designed for the correction of errors of jurisdiction and not errors of
judgment. The rationale for this rule is simple. When a court exercises its 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 countenance such a rule. Consequently, an error of judgment that the court may
commit in the exercise of its jurisdiction is not correctible through the original special civil action
of certiorari.[22]
On the merits, we find and so hold that substantial evidence exists to warrant the finding that
petitioners were validly dismissed for just cause and after observance of due process.
Under the Labor Code, as amended, the requirements for the lawful dismissal of an employee by
his employer are two-fold: the substantive and the procedural. Not only must the dismissal be for a valid
or authorized cause as provided by law (Articles 282, 283 and 284, of the Labor Code, as amended), but
the rudimentary requirements of due process, basic of which are the opportunity to be heard and to
defend himself, must be observed before an employee may be dismissed.[23]
With respect to the first requisite, Article 282 of the Labor Code, as amended, provides:
ART. 282. Termination by Employer.- An employer may terminate an employment for any of the following
causes:
(a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or
representative in connection with his work;
(b) Gross and habitual neglect by the employee of his duties;
(c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized
representative;
(d) Commission of a crime or offense by the employee against the person of his employer or any
immediate member of his family or his duly authorized representative; and
(e) Other causes analogous to the foregoing. (Italics supplied)
In the instant case, we find no difficulty in agreeing with the findings of the public respondent that
the herein petitioners were guilty of acts of dishonesty by incurring several occurrences of shortages in
the amounts of P15,353.78, P1,000.00, P450.00 and P70.00 which they failed to turnover and account
for/and in behalf of respondent Isetann. Fittingly, the findings of the NLRC are worth stressing at this
point, to wit:
With regard to the several occurrences of shortages of the amounts of P15,353.78, P1,000.00, P450.00
and P70.00 , the Labor Arbiter has failed to consider the fact that complainants-appellees were accorded
the chance to explain their side as to the shortages and that they have utterly failed to do so providing
basis for their valid dismissal. This fact has been established by the respondents-appellants in the findings
of the Committee on Discipline on Exhibits 3, 3-A to 3-D, as follows:
a) On the Shortage of P15,353.78:
The 3 respondents, Lutgarda Inducta, Cristy Amortizado and Corazon Jamer denied any involvement in
the loss of P15,353.78. Although the money, is under their responsibility, not one of them gave any
explanation about the shortage or loss.
b) On the amount of P1,000.00 borrowed by Inducta from Jamer:
On July 18, 1990, Lutgarda Inducta borrowed money from respondents (sic) Jamer amounting
to P1,000.00 to cover her shortage.
Ms. Jamer said that Ms. Inducta paid the amount on that day. But Ms. Jamer did not report the shortage.
c) On the Underdeposit of Cash = P450.00.
The computation of Ms. Amortizado s sales collections last July 14, 1990 resulted to an overage
of P350.00. Amortizado turned over the amount of P350.00, to cover up a shortage incurred by her and
Mrs. Inducta.
Jamer used the money given to her by Amortizado (P350.00), and borrowed (P150.00) from the change
fund to cover the total shortage amounting to P500.00 which she had then.
Jamer cannot trace how the shortage came about. Inducta and Jamer shouldered the total shortage
amounting to P500.00, P330.00 for Jamer and P200.00 for Inducta. Jamer claimed that she returned
the P350.00 in the box. However, the claim of respondent was further verified from the payroll section
which revealed that a value slip was issued last July 1990. Jamer and Inducta were charged for P200.00
each. A value slip was issued last August 10, 1990 charging P100.00 to Amortizado.
Jamer admitted that she failed to inform the Audit Staff regarding the P350.00 overage which she
received from Amortizado. A(s) per report of Ms. Agnes Gonzales dated 26 July 1990, there was a total
under deposit of cash amounting to P450.00.
Total cash admitted P65,428.05
(cash in drawer)
Total cash remitted P64,978.05
(per tally sheet) _________
Overage P 450.00
d) On the P70.00 Replenishment of Petty Cash Expenses:
During the 3rd Administrative hearing, the Committee informed Ms. Amortizado regarding the over
replenishment of petty cash expenses as revealed by the Finance Manager last August 10, 1990.
Mrs. Amortizado readily admitted and explained that she forgot to inform Mrs. Inducta regarding
the P70.00. She admitted her failure to correct the amount from P100.00 to P30.00 (total expenses spent
for the taxi fair).
She added that she previously incurred a shortage amounting to P100.00. Then she used the P70.00 to
cover for the shortage. The remaining balance of P30.00 was paid by Amortizado.
Amortizado informed the Committee that she is willing to refund the P70.00 shortage. (Underscoring
supplied).[24]
From the foregoing premises, it is crystal clear that the failure of petitioners to report the
aforequoted shortages and overages to management as soon as they arose resulted in the breach of the
fiduciary trust reposed in them by respondent company, thereby causing the latter to lose confidence in
them. This warrants their dismissal. Moreover, it must be pointed out that herein petitioners have in fact
admitted the underpayment of P450.00 not only in their Sinumpaang Salaysay but also during the hearing
conducted before Labor Arbiter Pablo C. Espiritu. [25] And, the record shows that the petitioners in fact
made a last ditch effort to conceal the same. Were it not for its timely discovery by private respondents
trusted employees, the incident could not have been discovered at all. Furthermore, it is worth stressing
at this juncture that the petitioners have also expressly admitted the shortage of P15,353.78a substantial
amountin their respective sworn statements, and they were not able to satisfactorily explain such
shortage.[26] The Court is convinced that these particular acts or omissions provided Isetann with enough
basis to forfeit its trust and confidence over herein petitioners.
The NLRC, therefore, did not act with grave abuse of discretion in declaring that petitioners were
legally dismissed from employment. The failure of petitioners to report to management the
aforementioned irregularities constitute fraud or willful breach of the trust reposed in them by their
employer or duly authorized representative one of the just causes in terminating employment as provided
for by paragraph (c), Article 282 of the Labor Code, as amended.
In other words, petitioners admissions in their sworn statements, together with the other
documentary evidences on record, constituted breach of trust on their part which justifies their dismissal.
Private respondents Isetann Department Store and Mr. John Go cannot be compelled to retain employees
who are clearly guilty of malfeasance as their continued employment will be prejudicial to the formers
best interest.[27] The law, I protecting the rights of the employees, authorizes neither oppression nor self-
destruction of the employer.[28]
The cause of social justice is not served by upholding the interest of petitioners in disregard of the
right of private respondents. Social justice ceases to be an effective instrument for the equalization of the
social and economic forces by the State when it is used to shield wrongdoing. [29] While it is true that
compassion and human consideration should guide the disposition of cases involving termination of
employment since it affects ones source or means of livelihood, it should not be overlooked that the
benefits accorded to labor do not include compelling an employer to retain the services of an employee
who has been shown to be a gross liability to the employer. It should be made clear that when the law
tilts the scale of justice in favor of labor, it is but a recognition of the inherent economic inequality
between labor and management. The intent is to balance the scale of justice; to put up the two parties
on relatively equal positions. There may be cases where the circumstances warrant favoring labor over
the interests of management but never should the scale be so tilted if the result is an injustice to the
employer, Justicia remini regarda est (Justice is to be denied to none).[30]
Thus, this Court has held time and again, in a number of decisions,[31] that:
Loss of confidence is a valid ground for dismissing an employee and proof beyond reasonable doubt of
the employees misconduct is not required to dismiss him on this charge. It is sufficient if there is some
basis for such loss of confidence or if the employer has reasonable ground to believe or to entertain the
moral conviction that the employee concerned is responsible for the misconduct and that the nature of
his participation therein rendered him absolutely unworthy of the trust and confidence demanded by his
position.[32]
Parenthetically, the fact that petitioners Jamer and Amortizado had worked for respondent
company for fourteen (14) and thirteen (13) years, respectively, should be taken against them. The
infractions that they committed, notwithstanding their long years of service with the company, reflects a
regrettable lack of loyaltyloyalty that they should have shouldered instead of betrayed. If the petitioners
length of service is to be regarded as a justifying circumstance in moderating the dismissal, it will actually
become a prize for disloyalty, perverting the meaning of social justice and undermining the efforts of
labor to cleanse its ranks of all undesirables.[33]
Petitioners also maintain that the NLRC acted with grave abuse of discretion when it failed to
consider the fact that, other than petitioners themselves, there were four (4) other persons who had
access to the company vaults, and hence, could have been responsible for the aforesaid cash shortages
imputed to them. They aver therefore, that there was a serious flaw and laxity in the supervision and
handling of company funds by respondent Isetann.[34]
We also find this contention devoid of merit.
First, it must pointed out that the petitioners remark that there was laxity in the accounting
procedures of the company is a matter addressed to the respondent employer. However, this does not
excuse dishonesty of employees and should not in any case hamper the right of the employer to terminate
the employment of petitioners on the ground of loss of confidence or breach of trust. Precisely, the
accounting procedure which called for improvements was based primarily on trust and confidence.[35]
Secondly, it must be noted that the herein petitioners were store cashiers and as such, a special and
unique employment relationship exists between them and the respondent company. More than most key
positions, that of cashier calls for the utmost trust and confidence because their primary function involves
basically the handling of a highly essential property of the respondent employer --- the sales and revenues
of the store. Employers are consequently given wider latitude of discretion in terminating the
employment of managerial employees or other personnel occupying positions of responsibility, such as
in the instant case, than in the case of ordinary rank-and-file employees, whose termination on the basis
of these same grounds requires proof of involvement in the malfeasance in question. Mere
uncorroborated assertions and accusations by the employer will not suffice.[36] In that respect , we quote
with approval the observations of the NLRC:
To expound further, for the position of a cashier, the honesty and integrity of the persons assuming said
position are the primary considerations for the nature of her work requires that her actuations should be
beyond suspicion as they are accorded the responsibility of handling money and whatever they would do
to such property of the employer largely depend on their trustworthiness. Hence, the right of the
employer to dismiss a cashier guilty of breach and trust and confidence should be recognized. In a case
decided by the Supreme Court it has been ruled that:
Honesty and integrity are the primary considerations in petitioners position. The nature of his work
requires that the actuations should be beyond suspicion, our empathy with the cause of labor should not
blind us to the rights of management. As we have held, this Court should help stamp out, rather than
tolerate, the commission of irregular acts whenever these are noted. Malpractices should not be allowed
to continue but should be rebuked. (Del Carmen vs. NLRC, 203 SCRA 245)[37]
Finally, we are convinced that the NLRC did not commit grave abuse of discretion in evaluating the
evidence. Petitioners merely denied the charges against them. Denials are weak forms of defenses,
particularly when they are not substantiated by clear and convincing evidence. [38] The petitioners failure
to satisfactorily explain the cash shortages, for which sums they are responsible, given their respective
positions in respondent company, is enough reason to warrant their dismissal on the ground of loss of
confidence. They cannot place the burden on somebody else given the factual circumstances of this case.
As succinctly put by the NLRC:
That there were other persons who had access to the vaults of the appellant company implying that these
other persons could have been responsible for the loss of the P15,353.78 is of no moment inasmuch as
the appellees were the ones who took first custody of the possession of said collections. As store cashiers,
it is expected of them to exercise ordinary prudence to count the collection and record the same in the
tally sheet before depositing to said vault to avoid a slightest suspicion of having pocketed part of it should
a shortage arise. They did not exert efforts to exercise such prudence demanded of their positions hence,
appellants should not be blamed when they were called for an investigation when said shortage was
discovered.
xxx xxx xxx
That the occurrence of shortages is merely an isolated one and therefore should not be taken against the
complainant-appellees as a ground for loss of trust and confidence that would cause their termination
cannot be given any credence. The shortages having been established and admitted has provided the
employer sufficient basis for loss of confidence and whether such occurrence is merely an isolated one or
has been repeatedly committed is no longer material. The bone of contention here is whether there is
some basis for such loss of trust and confidence and if the employer has reasonable ground to believe or
to entertain the moral conviction that the employee concerned is responsible for the misconduct which
in the instant case has been established.[39]
We reiterate the rule that in cases of dismissal for breach of trust and confidence, proof beyond
reasonable doubt of the employees misconduct is not required. It is sufficient that the employer had
reasonable ground to believe that the employees are responsible for the misconduct which renders him
unworthy of the trust and confidence demanded by their position.[40] In the case at hand, it cannot be
doubted that respondents succeeded in discharging its burden of proof.
As regards to the second requisite, the law requires that the employer must furnish the worker
sought to be dismissed with two (2) written notices before termination may be validly effected: first, a
notice apprising the employee of the particular acts or omission for which his dismissal is sought and,
second, a subsequent notice informing the employee of the decision to dismiss him.[41]
In accordance with this requirement, petitioners were given the required notices, on August 2, 1990
and then on August 23, 1990. The Court finds that petitioners were accorded due process before they
were dismissed on August 31, 1990. It is a well-established rule that the essence of due process is simply
an opportunity to be heard, or as applied to administrative proceedings, an opportunity to explain ones
side or an opportunity to seek a reconsideration of the action or ruling complained of.[42] It is evident from
the records , that herein petitioners were given all the opportunities to defend themselves and air their
side before the Committee on Discipline, having been notified by respondent Isetanns Human Resources
Division Manager, Teresita A. Villanueva, on August 2, 1990 through letters individually sent to them.
However, offered no explanation or theory which could account for money lost in their possession. Hence,
the company had no other alternative but to terminate their employment. As we elucidated in the case
of Philippine Savings Bank vs. National Labor Relations Commission,[43] to wit:

xxx the requirement of due process is satisfied when a fair and reasonable opportunity to explain his side
of the controversy is afforded the party. A formal or trial-type hearing is not at all times and in all
circumstances essential, especially when the employee chooses not to speak,

WHEREFORE, the assailed decision of the National Labor Relations Commission in NLRC NCR CA
002074-91 is hereby AFFIRMED. The petition is DISMISSED for lack of merit.

SO ORDERED.
Questions of fact cannot be raised
Day v RTC Zamboanga
DECISION
PARAS, J.:
This is a petition to review the decision of the Regional Trial Court of Zamboanga City, Branch XIII dated
July 8, 1986 setting aside the decision of the Municipal Trial Court of Zamboanga City, Branch II in Civil
Case No. 3717 (169-11).
The following, in brief, are the facts of the case:chanrob1es virtual 1aw library
Herein petitioner Victorino Day is the registered owner of a parcel of land covered by Original
Certificate of Title No. P-2667 and situated at Tomas Claudio St., Zamboanga City. Private respondent
Go Chu is the owner of a building constructed on the said lot occupying an area of 101 square
meters.chanrobles lawlibrary : rednad
Private respondent was asked by petitioner to peacefully vacate and remove that portion of the
former’s building standing on the latter’s lot. Due to private respondent’s refusal to vacate the
premises, on April 17, 1982, petitioner instituted a formal complaint against respondent with the Office
of the Barangay Chairman, Zone I, Zamboanga City. As no amicable settlement could be reached in the
case, the Barangay Chairman, on April 20, 1982, issued a certification that conciliation of the dispute at
the barangay level had failed. (MTC Decision, Annex "A", Petition, pp. 1-2; Rollo, p. 25.)
The dispute was continuously discussed by the parties through 1982, 1983, and 1984. On October 16,
1984, petitioner agreed to accept P1,000.00 from private respondent as rental for the use of his lot
from 1979 to December 1984. As petitioner had received the P1,000.00 as compensation for
respondent’s use of his land, respondent claimed the existence of a lease contract between them.
Respondent Go Chu, however, failed to prove the existence of a formal or even verbal contract of lease.
On January 15, 1985, petitioner again made another demand on private respondent to remove the
building. Because of private respondent’s adamant and continued refusal to vacate the disputed lot,
petitioner filed on March 25, 1985 an action for unlawful detainer with application for a writ of
preliminary mandatory injunction. Apparently, petitioner Day did not use the former Barangay
Certification in commencing the said suit against private Respondent. On April 15, 1986, the trial court
rendered a decision in favor of petitioner Day, the dispositive portion reading as
follows:jgc:chanrobles.com.ph
"WHEREFORE, in view of the foregoing findings of facts judgment is hereby rendered in favor of the
plaintiff and against the defendant to remove that portion of his building which stands on the 101
square meters over plaintiffs property; to pay plaintiff the amount of P950.00 monthly compensation
from January 1986 until defendant vacates the premises; to pay attorney’s fees in the sum of P5,000.00
and to pay the costs of the action. Defendant’s compulsory counterclaims are hereby ordered
dismissed." (Rollo, p. 27)
On April 23, 1986, without having first filed a motion for reconsideration, private respondent Go Chu
filed an original action for certiorari with respondent court, against Judge Cabato and petitioner
Victorino Day. Pending hearing of the application for preliminary injunction, respondent court issued a
temporary restraining order in the case.
On May 12, 1986, petitioner filed his Answer and Opposition to the Petition, to which private
respondent filed a reply.
At the hearing of the application for preliminary injunction, the parties waived further oral arguments
and submitted the case based on their pleadings and documents.chanrobles virtualawlibrary
chanrobles.com:chanrobles.com.ph
On May 27, 1986, respondent court issued an order resolving all the matters and issues in the petition
in favor of herein petitioner Day, that the petition on its main is "lacking in merit except that there are
still certain matters which the respondent court would like to resolve after hearing thereon." (Rollo, p.
3). The application for preliminary injunction was likewise denied and the hearing of the main petition
was set on June 24, 1986. At the said hearing, respondent court gave the parties opportunity to adduce
additional arguments on the merits of the case. They, however, submitted the case for decision without
further arguments, relying therefore on the pleadings and documents on record.
On July 8, 1986, however, respondent court issued another order granting the petition for certiorari and
setting aside the decision of Judge Cabato of the Municipal Trial Court. In connection therewith, the
parties were directed to submit their dispute before the Lupong Tagapayapa pursuant to the
requirements of PD 1508. Petitioner’s motion for reconsideration was denied on June 25, 1987.
Hence, this petition.
The following issues are presented for the court’s determination:chanrob1es virtual 1aw library
1) Whether or not the respondent court may modify or reverse its own order (of May 27, 1986) after
the lapse of 15 days from its issuance;
2) Whether or not B.P. 129 allows the plaintiff in an unlawful detainer case to apply for a writ of
preliminary injunction;
3) Whether or not prior conciliation proceedings pursuant to P.D. 1508 is applicable to petitioner’s suit
in the Municipal Trial Court;
4) Whether or not respondent court may entertain the petition for review on certiorari when the proper
remedy is ordinary appeal;
5) Whether or not respondent court, in a petition for certiorari, may entertain procedural questions or
questions of facts or substance already decided by the lower court; and
6) Whether or not respondent court may grant a Writ of Certiorari on grounds other than those
specified under Section 1, Rule 65 of the Rules of Court.
On the first issue, petitioner maintains that the respondent court has no jurisdiction to reverse its own
order after the lapse of 15 days from its issuance because the May 27, 1986 order was a final order, all
issues in the main petition having been resolved therein. Said controversial order reads as
follows:chanrobles law library
"Although the primary objective of this order is the determination of whether or not to issue a writ of
preliminary injunction in the instant case, yet in the consideration thereof, the Court finds the main
petition for certiorari as it appears on the pleadings to be LACKING IN MERIT . Hence, it follows that
where the petitioner is not entitled to the primary relief demanded, he cannot likewise be entitled to
the ancillary remedy of injunction, because injunction is not to protect contingent or future right or
enforce an abstract right (EMILLA VS. RADO, 23 SCRA 1983) or to protect a right not in esse. (DIZON VS.
YATCO, 13 SCRA 167). However, there are STILL CERTAIN MATTERS in the main petition that can only be
completely resolved after a hearing thereon." (Emphasis ours) And the Petition was set for hearing on
June 24, 1986." (Rollo, p. 4-A)
According to petitioner, since the respondent court resolved no new or other matter in its July 8, 1986
order, the May 27, 1986 order should be considered as already a final one insofar as the issues resolved
therein are concerned. To quote the petitioner, "this phrase ‘certain matters’ referred to by the
respondent court did not touch or dwell on ‘certain matters’ not yet passed upon by it, but reversed
itself on the same matters already resolved by it earlier after the lapse of the 15-day period without any
motion for reconsideration ever asked by herein private respondent Go Chu." (Petition, p. 4)
Private respondent, on the other hand argues that the order of May 27, 1986 was merely an
interlocutory order that did not finally dispose of the action and that the dispositive portion thereof
dealt only with the preliminary injunction incident; that the denial of the issuance of the writ of
preliminary injunction and the setting of further hearing on the main petition was the highlight of the
said order and that since the order was interlocutory in nature, nothing precluded respondent judge
from further hearing the case after the issuance of the May 27, 1986 order and deciding it on its merits
on July 8, 1986.
We find the contention of the petitioner meritorious. In the case of de Ocampo v. Republic, L-19533,
Oct. 31, 1963, 9 SCRA 440, this Court said. "The test to ascertain whether an order is interlocutory or
final is: does it leave something to be done in the court with respect to the merits of the case? If it does,
it is interlocutory; if it does not, it is final." In the instant case, it is evident that the respondent court
resolved no new or other matter in the order of July 8, 1986. Such being the case, it necessarily follows
that the order of May 27, 1986 should be deemed as a final order in so far as the issues resolved therein
are concerned. An order which decides an issue or issues in a complaint is final and appealable,
although the other issue or issues have not been resolved, if the latter issues are distinct and separate
from the others. Thus, the respondent court was without jurisdiction to modify or reverse the earlier
order after the expiration of fifteen (15) days from and after receipt thereof by the parties, considering
that there was no motion for reconsideration filed by then private respondent Go Chu.
As regards the second issue, We agree with petitioner that Section 33 of B.P. 129 allows the plaintiff in
an unlawful detainer action to apply for a writ of preliminary injunction. With the advent of B.P. 129,
Art. 539 of the New Civil Code, Sec. 88 of the Judiciary Act of 1948, and Sec. 3, Rule 70 of the Rules of
Court have been substantially modified. B.P. 129 provides: "provided the main action is within its
jurisdiction, an inferior court can appoint a receiver and it has jurisdiction to issue a writ of preliminary
injunction in either forcible entry or unlawful detainer cases." (Regalado, Remedial Law Compendium,
Second Revised Edition, p. 33). "Under the present law, an inferior court has jurisdiction to grant
provisional remedies in proper cases. These proper cases would be:chanrob1es virtual 1aw library
1) Preliminary attachment under Rule 57, provided the principal action is within its jurisdiction such as
an action for recovery of personal property valued at not more than P20,000.00; an action for recovery
of a sum of money not exceeding P20,000.00; an action of forcible entry and unlawful detainer.
2) Preliminary injunction under Rule 58 in both forcible entry and unlawful detainer also in cases
mentioned in the preceding paragraph." (Dean Jose Y. Feria, Phil. Legal Studies, Series No. 1, the
Judiciary Reorganization Act of 1980, 1981 edition, pp. 43-44.)
The third issue centers on the applicability of prior conciliation proceedings pursuant to P.D. 1508,
section 6 of which reads as follows:jgc:chanrobles.com.ph
"Sec. 6. Conciliation, pre-condition to filing of complaint. — No complaint, petition, action or proceeding
involving any matter within the authority of the Lupon as provided in Sec. 2 hereof shall be filed or
instituted in court or any other government office for adjudication unless there has been a
confrontation of the parties before the Lupon Chairman or the Pangkat and no conciliation or
settlement has been reached as certified by the Lupon Secretary or the Pangkat Secretary, attested by
the Lupon or Pangkat Chairman, or unless the settlement has been repudiated. However, the parties
may go directly to court in the following cases:chanrob1es virtual 1aw library
(1) where the accused is under detention;
(2) where a person has otherwise been deprived of personal liberty calling for habeas
corpusproceedings;
(3) actions coupled with provisional remedies such as preliminary injunction, attachment, delivery of
personal property and support pendente lite; and
(4) where the action may otherwise be barred by the Statute of Limitations.
It is clear from the foregoing that prior conciliation proceedings as mandated by P.D. 1508 were
inapplicable to the petitioner’s suit before the Municipal Trial Court of Zamboanga City, the action being
for ejectment with application for a writ of preliminary mandatory injunction. P.D. 1508 provides that
an action "coupled with provisional remedies such as preliminary injunction," etc. does not require
conciliation proceedings as a pre-condition for filing an action in court. The case of petitioner being an
exception to the requirement of prior conciliation by P.D. 1508, it was not necessary for petitioner to
first secure the necessary certification to file action from the proper barangay court. Even assuming that
petitioner’s complaint for ejectment in the Municipal Trial Court did not fall within the exceptions
enumerated in Sec. 6 of P.D. 1508, the lower court in its decision ruled that the April 1982 certification
to file action issued by the proper Barangay Court was sufficient compliance with P.D. 1508.
As to the fourth issue, private respondent is of the firm belief that the action he filed before the
respondent Regional Trial Court was both an original action for certiorari and a petition for certiorari as
a mode of appeal. We disagree. Applying Sec. 22 of B.P. 129 (governing law in the matter of appeals
from the inferior courts to the Regional Trial Courts), decisions of inferior courts may be elevated to the
Regional Trial Court only by ordinary appeal, that is, by filing a Notice of Appeal with the inferior court.
The said proviso does not admit of any other mode of elevating decisions of inferior courts to the
Regional Trial Court presumably to carry out the purpose of B.P. 129 which is to simplify judicial
procedure to effect a speedy administration of justice.chanrobles.com.ph : virtual law library
Anent the fifth issue, We hold that respondent court has no jurisdiction in a certiorari case to entertain
procedural questions or questions of facts or substance already passed upon by the lower court. The
barangay certificate of 1982 was admitted and found to be sufficient by the Municipal Trial Court,
Branch II, Zamboanga City, after considering the circumstances surrounding its issuance. This is a
procedural question or a question of fact which cannot be raised or corrected in a certiorari case, but
should be assigned as error and reviewed in the appeal properly taken from the decision rendered by
the trial court on the merits of the case. (Lamagan v. de la Cruz, 40 SCRA 101). It should be remembered
that except for the lower court’s admission in evidence of the Barangay Certification of 1982 and the
said court’s appreciations of the said Certification as sufficient compliance with P.D. 1508, the
respondent court’s order (RTC), which is herein sought to be nullified, resolved all the matters raised by
private respondent in his petition, against the latter. Admissibility of evidence is a matter that is
addressed to the sound discretion of the trial court (the lower court in this case). Such being the case,
no potent reason existed to justify respondent court’s substitution of the lower court’s judgment with
its own judgment.
"Errors in the appreciation of evidence may not be reviewed by certiorari because they do not involve
any jurisdictional question." (Mujer v. CFI of Laguna, 35 O.G. 1384; Abig v. Constantino, L-12460, May
31, 1961)
Further, in an original action for certiorari, questions of fact cannot be raised much less passed upon by
the respondent court. Thus, it has been ruled that:jgc:chanrobles.com.ph
"Questions of fact cannot be raised in an original action for certiorari. Only established or admitted facts
can be considered." (Rubio v. Reyes, Et Al., L-24581, May 27, 1968)
It is therefore clear that respondent court erred in reversing the lower court’s findings regarding the
sufficiency of the Barangay Certificate of 1982. It was an error for the respondent court to rule upon a
question of fact or procedural question already decided by the lower court.
Finally, the question on whether or not the respondent court can grant a writ of certiorari on grounds
other than those specified under Sec. 1, Rule 65 of the Rules of Court, Our answer is in the negative.
In an original action for certiorari under Sec. 1, Rule 65 of the Rules of Court, the grounds for the
issuance of the Writ of Certiorari are as follows, to wit:chanrobles virtualawlibrary
chanrobles.com:chanrobles.com.ph
(a) Lack of jurisdiction;
(b) Grave abuse of discretion; and
(c) When the court acts without or in excess of jurisdiction.
We have consistently adhered to the principle that only errors of jurisdiction are correctible
by certiorari. As early as in the case of Herrera v. Barreto, 25 Phil. 245, 271, the Supreme Court ruled:
"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."cralaw virtua1aw library
Clearly, the only grounds which may serve as the basis for the respondent court to raise the writ
of certiorari are lack of jurisdiction or grave abuse of discretion by the inferior court or that the said
inferior court acted without or in excess of jurisdiction in its appreciation of the barangay certification
as constituting sufficient compliance with P.D. 1508.
In the ejectment suit filed by petitioner against private respondent, the lower court undoubtedly
acquired jurisdiction over the subject matter and over the person of then defendant (now private
respondent) by the filing of the complaint and service of summons upon then defendant (now private
respondent) and the filing by the latter of his answer. Thus, it cannot be said that the lower court had
no jurisdiction to render the decision set aside by respondent court. Assuming that the lower court
committed a mistake on the merits of the case, it was in the exercise of such jurisdiction. The error, if at
all, is at most one of judgment and not of jurisdiction, which cannot be the object of a petition
for certiorari. The proper remedy in such case was appeal. Errors in the application of the law and the
appreciation of evidence committed by a court after it has acquired jurisdiction over a case, are
correctible only by appeal (So Chu v. Nepomuceno, 29 Phil. 208; Valencia v. Victoriano, 50 O.G. 5815,
Dec. 1954 (CA) citing Herrera v. Barreto, Et Al., 26 Phil. 245).chanrobles virtualawlibrary
chanrobles.com:chanrobles.com.ph
Neither can it be said that the lower court committed a grave abuse of discretion or exceeded its
jurisdiction when it appreciated the barangay certification as sufficient compliance with P.D. 1508. In
the petition for certiorari filed by private respondent before the respondent court, he did not allege that
the lower court’s decision was outside or in excess of its jurisdiction, or was issued in grave abuse of
discretion. Private respondent merely alleged that the lower court "erroneously" appreciated facts and
evidence, issued interlocutory orders, and appreciated the issues. He also challenged the soundness of
the decision. These do not constitute excess of jurisdiction or grave abuse of discretion. It must be
remembered that there is "excess of jurisdiction" where the court has jurisdiction but has transcended
the same or acted without any statutory authority. (Soriano v. del Rosario, 55 Phil. 924). There is "grave
abuse of discretion" where there is a capricious and whimsical exercise of judgment amounting to lack
of jurisdiction or where the power is exercised in an arbitrary and despotic manner by reasons of
passion or personal hostility, and it is so patent and gross as to amount to an invasion of positive duty or
to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. (Tavera-Luna,
Inc. v. Nable, 67 Phil. 341) We find no such grave abuse of discretion committed by the lower court in
appreciating the barangay certification to be sufficient compliance with P.D. 1508. In fact, the
respondent court categorically ruled that there was no grave abuse of discretion or excess of
jurisdiction on the part of the lower court when it held that:jgc:chanrobles.com.ph
"The foregoing recital and discussions of each particular questioned act of the respondent judge would
plainly show that no grave abuse of discretion has been committed by him. If any, they could have been
assigned as errors in an ordinary appeal, which to the mind of the Court should have been the remedy
resorted to by the herein petitioner." (Paragraph 2, Page 5 of the Order of the Respondent Court dated
May 27, 1986.) (Rollo, p. 142)
WHEREFORE, finding merit in the appeal of petitioner, the assailed order of the respondent court is
hereby SET ASIDE and the order of the Municipal Trial Court of Zamboanga City, Branch II in Civil Case
No. 3717 (169-11) is hereby REINSTATED.
SO ORDERED.
Only issue involved is jurisdiction, either want of or excess thereof
Gerardo v De la Pena
DECISION
PARAS, J.:
This is a petition for Certiorari, prohibition and mandamus seeking to reverse and set aside the order 1
dated August 13, 1982 of the then Court of First Instance of Ilocos Norte and Laoag City which denied
petitioners' motion for reconsideration of the resolution dated July 26, 1982 of the said court which
dismissed with prejudice Civil Case No. 7590 on the ground of res judicata.
The properties involved in the instant case are Lots 26022, 26158 and 9525 of Laoag Cadastre (Rollo, p.
13) containing an area of 34,478 square meters of agricultural lands and 722 square meters of residential
land (Ibid., p. 5).chanrobles virtual law library
The original owner of said properties was Angel Gerardo, married to Andrea Tungpalan who predeceased
him; that he declared said properties for taxation purposes as early as 1921; that out of the marriage, the
following children were born, namely Filomina, Berta, Santiago and Delfina, all surnamed Gerardo; that
Filomina was survived by her children, Policarpo and Basilio, both surnamed Batacan (private respondents
herein); that Berta was survived by her children, Isabel, Irineo, Eduardo, Dionicio, Dominga and Herminio,
all surnamed Bangloy (private respondents herein); that Santiago was survived by his children Vicente,
Valentina, Cornelio, Faustino, Benjamin, Angel and Constante, all surnamed Gerardo (petitioners herein).
(Ibid., p. 13)
The record further reveals that before the cadastral hearing involving the properties in question could
commence, Angel Gerardo, father of Santiago Gerardo who in turn was the father of herein petitioners,
died. Subsequently, Santiago Gerardo filed the corresponding answers for the three (3) lots in question.
It was alleged in said answers that he (Santiago) was the heir of Angel Gerardo and that said three (3) lots
were being claimed by him as his inheritance from his late father, Angel Gerardo (Ibid., p. 14).
After hearing, Lots 26022 and 26158 were registered in the name of Santiago Gerardo and OCT No. 15059
was correspondingly issued in the latter's name, and so with OCT No. 9801 covering Lot 9525 (Ibid.)
About sixteen (16) years later, or on April 28, 1960; private respondents instituted an action for
ownership, partition and accounting against herein petitioners in the then Court of First Instance of Ilocos
Norte, which was docketed as Civil Case No. 3191-11, praying, among others, for the cancellation of OCT
Nos. 15059 and 9801 (Ibid., pp. 14, 26)
On February 18, 1964, the lower court rendered judgment in favor of private respondents and against
herein petitioners, declaring all the former and the latter as legal heirs of the late Angel Gerardo and co-
owners of Lots 26022, 26158 and 9525 (Ibid., pp. 14, 27).
Petitioners elevated the case to the Court of Appeals, which dismissed the same in a resolution dated
September 21, 1965 (Ibid., p. 28). Consequently, the judgment in Civil Case No. 3191-11 became final and
executory on October 11, 1965 (Ibid., p. 15).
Upon motion of herein private respondents, on January 31, 1966, a writ of execution was issued and the
same was duly served as per sheriff's return dated February 12, 1966, placing private respondents in
possession of their respective portions or shares in the properties in question (Ibid., p. 28).
Again, upon motion of herein private respondents, an alias writ of execution dated April 6, 1970 was
issued by the lower court for the collection of damages and the costs of suit from herein petitioners.
Accordingly, levy on execution was made on the rights, shares, interest and participation of herein
petitioners in question. Thereafter, said shares, interest and participation of herein petitioners were sold
at public auction to a certain Luis Antonio. The certificate of sale covering said properties were then
registered in the Office of the Register of Deeds of Ilocos Norte on March 16, 1971 (Ibid., pp. 28-29).
Several years later, or on March 18, 1982, petitioners herein filed a complaint as pauper-litigants for
reconveyance of properties, annulment of judgment and damages against private respondents in the
lower court, which was docketed as Civil Case No. 7590 (Ibid., p. 4).
On May 4, 1982, private respondents filed a motion to dismiss said complaint on the grounds of res
judicata, prescription of action and lack of cause of action, which motion was granted by the lower court
in its resolution dated July 26, 1982 discoursing, viz:
"The essential requisites for the existence of res judicata are:
'(1) the former judgment must be final;
'(2) it must have been rendered by a court having jurisdiction of the subject matter and the parties;
'(3) it must be a judgment on the merits; and
'(4) there must be between the first and second actions identity of the parties, identity of the subject
matter and identity of cause of action.'
"There is no doubt that the judgment in Civil Case No. 3191-II became final on October 11, 1965, and
likewise, that the court in taking cognizance of the case had jurisdiction over the subject matter and the
parties because it involves question of co-ownership of real properties arising from rights of the parties
as heirs of Angel Gerardo, their predecessor-in-interest. Likewise, it had jurisdiction over the persons of
the parties, the defendants having been duly summoned and filed their corresponding answers to the
plaintiffs' complaint; that the judgment rendered was on the merits of the case because there was actual
trial where both parties presented their evidence; and lastly, in both cases, the same parties and
properties, and the same causes of action are involved. All the essential requisites of res judicata,
therefore, are present.' (Ibid., p. 15).: nad
The motion for reconsideration having been denied, petitioners elevated the case to this Court by way
of Certiorari, prohibition and mandamus.
The only issue for resolution in the instant case is whether or not the lower court committed a grave
abuse of discretion when it ordered the dismissal of the complaint in Civil Case No. 7590 on the ground
of res judicata.
The petition is devoid of merit.
The Supreme Court possesses no authority to rule upon non-jurisdictional issues in
aCertiorari proceeding. The only question involved in Certiorari is jurisdiction; either want of or in excess
thereof (C & C Commercial Corporation v. Philippine National Bank, et al., 175 SCRA 1 [1989]). In the case
at bar, respondent Judge correctly dismissed the complaint in Civil Case No. 7590 based on res judicata
considering the prior judgment in Civil Case No. 3191-11.
There is res judicata when the following requisites are present: (1) the judgment or order must be final; PREMISES CONSIDERED, the instant petition is hereby DISMISSED and the order appealed from is hereby
(2) the court rendering it must have jurisdiction over the subject matter and of the parties; (3) identity of AFFIRMED.
parties, identity of subject matter and identity of cause of action (Maglalang v. Court of Appeals, 175 SCRA
SO ORDERED.
808 [1989]).
There is no question that petitioners have no right at all to claim exclusive ownership of the properties in
question. Ownership thereof having been settled in favor of both herein petitioners and private
respondents as co-owners of the subject properties in Civil Case No. 3191-11 which constitutes res
judicata to Civil Case No. 7590. Such prior judgment in Civil Case No. 3191-11 is conclusive in the
subsequent suit, i.e., Civil Case No. 7590, between the same parties on the same subject matter, and the
same cause of action, not only as to matter which were decided in the first action but could have been
properly set up in the prior suit, which the petitioners apparently failed to do.
Grave abuse of discretion means such capricious and whimsical exercise of judgment as is equivalent to
lack of jurisdiction. The abuse of discretion must be grave as where the power is exercised in an arbitrary
or despotic manner by reason of passion or personal hostility and must be so patent and gross as to
amount to an evasion of positive duty enjoined by or to act at all in contemplation of law (Carson, et al.
v. Judge Pantanosas, Jr., G.R. No. 75934, December 15, 1989), which circumstances are not obtaining in
the present case.
Respondent judge who dismisses a complaint on the ground of res judicata does not commit grave abuse
of discretion.
Petitioners maintain that the judgment in Civil Case No. 3191-11, being inconsistent with the decisions in
Cadastral Cases Nos. 31, 44 and 47 dated August 31, 1937, November 28, 1934 and December 31, 1935,
respectively, awarding OCT No. 15059 solely in the name of the late Santiago Gerardo (petitioners'
father), OCT No. 9801 likewise solely in the latter's name, and OCT No. 11942, naming Santiago Gerardo
as one of the co-owners of the parcel of land embraced in the said title, respectively (Ibid., pp. 5-6), is
void ab initio (Ibid., p. 8).
It is well-settled that a judgment may be annulled on the ground of extrinsic or collateral fraud (Islamic
Da'Wah Council of the Philippines vs. Court of Appeals, G.R. No. 80892, September 29, 1989) and such
extrinsic or collateral fraud must be committed by the adverse party (Sanchez v. Tupas, 158 SCRA 465
[1988]). It is only extrinsic or collateral fraud that can serve as a basis for the annulment of judgment.
There is extrinsic or collateral fraud "where it is one the effect of which prevents a party from having a
trial, or real contest, or from presenting all of his case to the court, or where it operates upon matters
pertaining, not to the judgment itself, but of the manner in which it was procured so that there is not a
fair submission of the controversy." In other words, extrinsic fraud refers to any fraudulent act of the
prevailing party in the litigation which is committed outside of the trial of the case, whereby the defeated
party has been prevented from exhibiting fully his side of the case, by fraud or deception practiced on
him by his opponent (Canlas v. Court of Appeals, 164 SCRA 160 [1988]; Macabingkil v. People's Homesite
and Housing Corporation, 72 SCRA 326 [1976]).
In the instant case, there is no showing whatsoever that extrinsic or collateral fraud, as hereinabove
defined, indeed vitiated the proceedings in Civil Case No. 3191-11. Hence, there is no cause of action for
annulment of the judgment in the said case.
Moreover, the trial court has no jurisdiction to entertain an action to annul the judgment in the prior
case, Civil Case No. 3191-11 rendered by a court of coordinate branch. Exclusive original jurisdiction over
actions for annulment of judgments of a regional trial court is vested in the Court of Appeals (Section 9[2],
Batas Pambansa Blg. 129) (Islamic Da'Wah Council of the Philippines v. Court of Appeals, supra).- nad
Distinction between certiorari under 45 as a mode of appeal and certiorari under 65 as special civil
action
[G.R. No. 132703. June 23, 2000]
BANCO FILIPINO SAVINGS and MORTGAGE BANK, petitioner, vs. COURT OF APPEALS, HON. EDGAR D.
GUSTILO, Presiding Judge, Branch 28, Regional Trial Court, Iloilo City, TALA REALTY SERVICES
CORPORATION, NANCY L. TY, PEDRO B. AGUIRRE, REMEDIOS A. DUPASQUIER, PILAR D. ONGKING,
ELIZABETH H. PALMA, DOLLY W. LIM, RUBENCITO M. DEL MUNDO, ADD INTERNATIONAL SERVICES,
INC., respondents.
DECISION
DE LEON, JR., J.:
Before us is a special civil action for certiorari to set aside and annul the Decision [1] of the Court of Appeals
dated December 18, 1996, which sustained the dismissal [2] of the complaint of petitioner Banco Filipino
Savings and Mortgage Bank (hereafter, Banco Filipino) for recovery of real properties filed against Tala
Realty Services Corporation (hereafter, Tala Realty) on the grounds of litis pendentia and forum-shopping.
The antecedent facts are the following:
The General Banking Act [3] regulates the number of branches that a bank may operate. Under the said
law, a bank is allowed to own the land and the improvements thereon used as branch sites but only up
to a maximum of fifty percent (50%) of the banks net worth.
In 1979, Banco Filipino had reached the allowable limit in branch site holdings but contemplated further
expansion of its operations. Consequently, it unloaded some of its holdings to Tala Realty. Banco Filipino
thereafter leased the same branch sites from Tala Realty which was conceived and organized precisely as
a transferee corporation by the major stockholders [4] of Banco Filipino. On March 26, 1979, the Securities
and Exchange Commission (SEC) issued Tala Realtys certificate of registration.[5]
Shortly thereafter, the board of directors of Banco Filipino authorized negotiations for the sale
of some of its branch sites, through a Board Resolution [6]
dated April 17, 1979 (hereafter, Board Resolution).
On August 25, 1981, respondent Banco Filipino sold the above branch sites to Tala Realty under separate
deeds of sale for each branch site. On the same date, Tala Realty leased the same branch sites to Banco
Filipino under separate instruments for each branch site.[7]
The instant case originated from the sale by Banco Filipino to Tala Realty of four (4) lots in Iloilo City,
covered and described in the aforementioned TCT Nos. 62273 and 62274, for two million one hundred
ten thousand pesos (P2,110,000.00).[8] Tala Realty then leased them back to Banco Filipino for a monthly
rental of twenty one thousand pesos (P21,000.00) /for a period of twenty (20) years and renewable for
another twenty (20) years.[9] The lease contracts of the other branch sites sold to Tala Realty have
substantially similar terms and conditions, except for the amount of the rent.
Banco Filipino alleges that a trust was created by virtue of the above transactions. Tala Realty was
allegedly established to serve as a corporate medium to warehouse the legal title of the said properties
for the beneficial interest of Banco Filipino and to purchase properties to be held in trust for the latter. [10]
However, sometime in August 1992, Tala Realty demanded payment of increased rentals, deposits and
goodwill from Banco Filipino, with a threat of ejectment in case of failure to comply thereto. On April 20,
1994, some stockholders of Banco Filipino filed a derivative suit against Tala Realty before the SEC for the
reconveyance of the properties sold by the former to the latter. However, on March 6, 1995, the SEC
dismissed the case on the ground of lack of jurisdiction.[11]
Due to Banco Filipinos failure to comply with Tala Realtys terms, the latter carried out its threat by filing
numerous ejectment suits against Banco Filipino.[12] This prompted Banco Filipino to file, on August 16,
1995, an action for recovery of real properties[13] before the Regional Trial Court of Iloilo, Branch 28, on
the ground of breach of trust. Incidentally, during the period from August to September 1995, Banco
Filipino also filed sixteen (16) other complaints for recovery of real properties which it had previously sold
to Tala Realty.[14]
These complaints, including the one filed in the Regional Trial Court of Iloilo City, Branch 28, were
uniformly worded in their material allegations.[15]
As regards Banco Filipinos complaint in the Regional Trial Court of Iloilo City, Tala Realty filed on October
9, 1995 a motion to dismiss on the following grounds: (1) forum-shopping; (2) litis pendentia; (3) pari
delicto; (4) failure to implead indispensable parties; and (5) failure to state a cause of action. [16] On the
same date, private repondents Pilar D. Ongking, Elizabeth H. Palma, Dolly W. Lim and Rubencito del
Mundo filed a separate motion to dismiss in the same case on the following grounds: (1) lack of
jurisdiction over the subject matter; (2) litis pendentia; and (3) failure to state a cause of
action.[17] Likewise, on November 10, 1995, private respondent Nancy L. Ty filed a separate motion to
dismiss, alleging the same grounds as those invoked by private respondents Ongking, et. al.[18]
These motions to dismiss alleged, among others, that aside from the said suit before the Regional Trial
Court of Iloilo City, Branch 28, other suits involving certain Quezon City, Lucena City, Malolos and Manila
branches of Banco Filipino are also pending in other Regional Trial Courts.
Banco Filipino filed separate oppositions, dated October 14, 1995, October 31, 1995 and November 21,
1995 respectively, to the motions to dismiss.[19] After a protracted exchange of pleadings, the trial court
dismissed the complaint on April 22, 1996 in this wise:[20]
 A thorough and careful perusal was made by the undersigned Presiding Judge of the
arguments of opposing counsels, ventilated in their respective memoranda. Opposing
counsels cited the pertinent Supreme Court Circulars, provisions of the Rules of Court and
related Decisions of the Supreme Court in support of their arguments.
After weighing the foregoing, this Court is of the opinion and so holds that the contention
of the defendants in their motions to dismiss, etc., is meritorious.
Wherefore, in view of the foregoing, the defendants separate motions to dismiss are
hereby granted.
Therefore, let this case be, as it is hereby Dismissed.
SO ORDERED.
On June 27, 1996, the trial court denied Banco Filipinos motion for reconsideration. [21] Banco Filipino
received a copy of said order of denial on July 5, 1996 but instead of filing an appeal, it filed, on July 24,
1996, a petition for certiorari under Rule 65 before the Court of Appeals.[22] Banco Filipino alleged in its
petition that the trial courts decision was issued with grave abuse of discretion because it did not comply
with the constitutional mandate on the form of decisions.
However, the Court of Appeals dismissed Banco Filipinos petition on the ground, among others, that the
"[p]etitioners recourse to Rule 65 of the Revised Rules of Court is patently malapropos." [23] It reiterated
the rule that a special civil action for certiorari may be resorted to only when there is no appeal, nor any
plain, speedy and adequate remedy in the ordinary course of law. Banco Filipinos failure to appeal by writ
of error within the reglementary period and its belated recourse to a petition for certiorari under Rule 65
was interpreted by the Court of Appeals as a desperate attempt by Banco Filipino to resurrect what was
otherwise already a lost appeal.[24] Furthermore, the Court of Appeals debunked Banco Filipinos theory
that the assailed order of the RTC did not comply with the substantive requirements of the Constitution,
and was thus, rendered with grave abuse of discretion.
On December 28, 1996, Banco Filipino received a copy of the Court of Appeals decision dismissing its
petition thereby prompting the latter to file a motion for reconsideration on January 10, 1997. The Court
of Appeals denied the said motion for reconsideration on December 19, 1997 in a resolution, a copy of
which was received by Banco Filipino on January 7, 1998. [25] Banco Filipino then filed with this Court its
subject petition for certiorari under Rule 65 of the Revised Rules of Court on March 9, 1998.[26]
Petitioner advances the following arguments:
I......RESPONDENT COURT GRAVELY ABUSED ITS DISCRETION IN FAILING TO CORRECT BY
CERTIORARI THE DISMISSAL ORDER BY THE RTC WHICH PATENTLY DISREGARDED THE
CONSTITUTIONAL PRESCRIPTION AS TO FORM AND JUDGMENT, AND EFFECTIVELY DENIED
PETITIONER DUE PROCESS OF LAW;[27]
II......BANCO FILIPINO WAS DENIED THE OPPORTUNITY TO PROVE ITS CAUSE OF ACTION OF AN
IMPLIED TRUST;[28]
III......RESPONDENT COURT GRAVELY ERRED IN RULING THAT A WRIT OF ERROR SHOULD BE
THE PROPER REMEDY INSTEAD OF A PETITION FOR CERTIORARI UNDER RULE 65;[29]
IV......RESPONDENT CA GRAVELY ABUSED ITS DISCRETION IN FINDING THAT BANCO FILIPINO
IS GUILTY OF SPLITTING CAUSES OF ACTION MERELY ON THE BASIS OF THE PLEADINGS THUS
FILED.[30]
Without need of delving into the merits of the case, this Court hereby dismisses the instant petition. For
in filing a special civil action for certiorari instead of an ordinary appeal before this Court, Banco Filipino
violated basic tenets of remedial law that merited the dismissal of its petition.
First. Banco Filipinos proper remedy from the adverse resolutions of the Court of Appeals is an ordinary
appeal to this Court via a petition for review under Rule 45 and not a petition for certiorari under Rule 65.
A petition for certiorari under Rule 65 is proper if a tribunal, board or officer exercising judicial or quasi-
judicial functions has acted without or in excess of 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.[31]
We have said time and again that for the extraordinary remedy of certiorari to lie by reason of grave
abuse of discretion, 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, or where
the power is exercised in an arbitrary and despotic manner by reason of passion and personal hostility. [32]
Nothing in the record of this case supports Banco Filipinos bare assertion that the Court of Appeals
rendered its assailed resolutions with grave abuse of discretion. On the contrary, Banco Filipino even
admitted that the Court of Appeals painstakingly "labored to defend in thirty-three (33) [single spaced]
pages"[33]the rationale behind its decision, clearly setting forth therein the applicable provisions of law
and jurisprudence. In other words, there being no grave abuse of discretion on its part, the Court of
Appeals rendered the assailed resolutions in the proper exercise of its jurisdiction. Hence, even if
erroneous, the Court of Appeals resolutions can only be assailed by means of a petition for review. 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 courts findings.[34] Where a court has jurisdiction over the person and the
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. [35]
Second. The availability to Banco Filipino of the remedy of a petition for review from the decision of the
Court of Appeals effectively foreclosed its right to resort to a petition for certiorari. This Court has often
enough reminded members of the bench and bar that a special civil action for certiorari under Rule 65
lies only when there is no appeal nor plain, speedy and adequate remedy in the ordinary course of
law. Certiorari is not allowed when a party to a case fails to appeal a judgment despite the availability of
that remedy. The remedies of appeal and certiorari are mutually exclusive and not alternative or
successive.[36]
has Banco Filipino endeavored to prove the existence of any. This being so, another elementary rule of
procedure applies and that is the doctrine that perfection of an appeal within the reglementary period is
not only mandatory but also jurisdictional so that failure to do so renders the questioned decision final
and executory, and deprives the appellate court of jurisdiction to alter the final judgment, much less to
entertain the appeal.[39]

The antithetic character of the remedies of appeal and certiorari has been generally observed by this As a final word, we quote herein our relevant pronouncement in the case of Bank of America, NT and SA
Court save only in those rare instances where appeal is satisfactorily shown to be an inadequate remedy. v. Gerochi, Jr. that:
In the case at bar, Banco Filipino has failed to show any valid reason why the issues raised in its petition
The case at bench, given its own factual settings cannot come close to those extraordinary
for certiorari could not have been raised on appeal. To justify its resort to a special civil action
circumstances that have indeed justified a deviation from an otherwise stringent rule. Let
for certiorari under Rule 65, it erroneously claims that an appeal is not a speedy and adequate remedy
it not be overlooked that the timeliness of an appeal is a jurisdictional caveat that not even
because further delay in the disposition of this case would effectively deprive Banco Filipino of the full
this Court can trifle with.[40] (Underscoring provided.)
use and enjoyment of its properties.[37] However, the further delay that would inadvertently result from
the dismissal of the instant petition is one purely of Banco Filipinos own doing. We cannot countenance WHEREFORE, the instant petition for certiorari is hereby DISMISSED.
an intentional departure from established rules of procedure simply to accommodate a case that has long
been pending in the courts of law because of the partys own fault or negligence. SO ORDERED.

Third. Certiorari cannot be used as a substitute for the lapsed or lost remedy of appeal. Banco Filipinos
recourse to a special civil action for certiorari was borne not out of the conviction that grave abuse of
discretion attended the resolution of its petition before the Court of Appeals but simply because of its
failure to file a timely appeal to this Court. This observation is shared by the Court of Appeals which was
quick to point out that when Banco Filipino filed its petition for certiorariassailing the RTC order, the
reglementary period for filing a petition for review before the Court of Appeals had already lapsed.

It is true that this Court may treat a petition for certiorari as having been filed under Rule 45 to serve the
higher interest of justice, but not when the petition is filed well beyond the reglementary period for filing
a petition for review and without offering any reason therefor.

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. In the case at bar, Banco Filipinos
petition is bereft of any valid reason or explanation as to why it failed to properly observe the rules of
procedure. The record shows that Banco Filipino failed, not once but twice, and for an unreasonable
length of time, to file an appeal within the period required by law. From the order of the RTC, it filed its
petition for certiorari some fourteen (14) days after the lapse of the reglementary period to appeal to the
Court of Appeals. Likewise, when Banco Filipino filed its petition for certiorari before this Court, forty five
(45) days have already passed since the end of the fifteen (15) day reglementary period for filing an appeal
to the Supreme Court.

Allowing appeals, although filed late in some rare cases, may not be applied to Banco Filipino in the case
at bar for this rule is qualified by the requirement that there must be exceptional circumstances to justify
the relaxation of the rules.[38] We cannot find any such exceptional circumstances in this case and neither
May be availed of even when appeal is available or period to appeal has expired
G.R. No. 76028 April 6, 1990
SPOUSES JOSE R. LANSANG, JR. and ELSIE D. LANSANG and ROBERTO CO, petitioners,
vs.
THE HON. COURT OF APPEALS, HON. MANUEL L. GUMBAN, in his capacity as Presiding Judge of the
Regional Trial Court, 11th Judicial Region, Branch XXIII, RENATO SALANGSANG and INTERWORLD
ASSURANCE CORP., represented by EVANGELINE B. BACONGCO respondents.
Niceto C. Joaquin for petitioners.
Rosalio Carino for private respondent.
GANCAYCO, J.:
What at the beginning was a simple action for damages in the amount of P30,000.00 ended up in the
fantastic amount of P600,000.00 simply because the trial court denied defendant another day in court
and the appellate court did not believe that a petition for certiorari can be filed after a case had been
appealed.
The antecedents are undisputed. Private respondent Renato Salangsang filed an action for damages
arising from a vehicular accident against petitioners in the Regional Trial Court of South Cotabato. In his
answer, petitioner filed a third party complaint against private respondent insurance corporation. The
pre-trial was held but no settlement was reached. Trial commenced and private respondent Salansang
presented his evidence.
On September 12, 1984, the court issued an order resetting the hearing of the case to November 8, 1984.
At said date of hearing neither petitioners nor their counsel appeared. The case was deemed submitted
for resolution on same day.
Petitioners explained to the trial court the reasons for their absence at the November 8 hearing to be (a)
their counsel, Atty. Rufino Bañas who was then a member of parliament failed to appear at the hearing
due to pressing and urgent work at the Batasang Pambansa; and (b) petitioner Jose Lansang, Jr. was in
Manila and since his mother died in September, 1984, he was still in Manila when the order of September
12 was issued setting the case for hearing on November 8. Petitioner Roberto Co was out of town since
1983.
Nevertheless, on December 8, 1984, the trial court rendered a judgment, the dispositive part of which
reads as follows:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendants, ordering
them to pay jointly and severally to plaintiff, the following:
1) NINETEEN THOUSAND PESOS(P19,000.00) as costs of repairs and TWENTY PESOS (P20.00) per day as
storage the from October 11, 1982;
2) TWO HUNDRED FIFTY PESOS (P250.00) per day from December 19, 1981 until the car is returned, as
unrealized income;
3) TEN THOUSAND PESOS (P10,000.00) as attorney's fees and
4) Expenses of litigation and costs of this suit. 1
On January 25, 1985, petitioners filed a motion for reconsideration and/or to set aside order or decision
dated December 8, 1984 and to allow them to present evidence reiterating the foregoing reasons, and a
supplement dated February 6, 1985 alleging that the damages awarded are excessive and unwarranted,
so that if they are given the chance to present evidence, they can show that private respondent did not
suffer such damage in his business of buying and selling of cattle as he has a motorcycle and a van which
he uses for his business in lieu of his car that was damaged.
The motion was denied in an order dated March 11, 1985. On March 14, 1985 petitioners filed their notice
of appeal/certiorari as follows:
COME NOW the defendants/third party plaintiffs, through counsel and hereby respectfully serve notice
that they are appealing the decision dated December 8, 1985, copy received on January 14, 1985, and the
order dated March 11, 1985 denying the Motion for Reconsideration and/or set aside order and the
decision dated December 8, 1984 and to allow defendants to present evidence, copy of which was
received on March 13, 1985, and/or to file a petition for certiorari contesting the LATTER order, to the
Intermediate Appellate Court, Manila. 2
On March 19, 1985, the trial court approved the appeal and ordered the records of the case forwarded
to the then Intermediate Appellate Court.
On April 3, 1985, petitioners filed in the appellate court a petition for certiorari directed against the order
of the trial court dated March 11, 1985 which denied the aforesaid motion for reconsideration and which
in effect is one for a new trial. The petition was docketed as AC-G.R. SP No. 05856. In the petition, it is
alleged that petitioners have perfected their appeal and that they are not abandoning it, but the same is
not an adequate, speedy and plain remedy because of the P250.00 daily penalty mentioned in the award.
In a decision dated April 29, 1985, the appellate court denied due course to and dismissed the petition.
Without awaiting the Finality of the decision, private respondent Salangsang filed in the trial court a
motion for execution of its judgment and this was granted on July 6, 1985. On July 18, 1985, it denied the
motion for reconsideration of said order filed by petitioners.
Thereafter, petitioners filed in the Court of Appeals a petition for certiorari, prohibition
and mandamus with preliminary injunction docketed as CA-G.R. No. 06746-SP. On June 30, 1986, the
3
Court of Appeal rendered a decision denying due course to and dismissing the petition. A motion for
reconsideration thereof filed by petitioners was denied in a resolution dated September 17, 1986.
Hence, the herein petition for review on certiorari, wherein the issues raised are —
1. Is appeal inconsistent with the remedy of certiorari?
2. Under the circumstances obtaining in the case at bar, was the appeal taken by the petitioners from the
decision of the trial court deemed abandoned when they filed a petition for certiorari contesting the
order denying their motion for reconsideration and to allow them to present evidence which in effect is
for new trial?4
The petition is impressed with merit.
In the appealed decision, it was held that by the filing of the petition for certiorari petitioners in effect
abandoned their appeal and that the perfected appeal is inconsistent with the remedy of certiorari. It was
further ruled that petitioners cannot be permitted to first resort to appeal and then shift the remedy
to certiorari.
The purpose of an appeal is to bring up for review a final judgment or order of the lower court. The
remedy of certiorari is to correct certain acts of any tribunal, board or officer exercising judicial functions
performed without or in excess of its or his jurisdiction, or with grave abuse of discretion and there is no
5
appeal nor any plain, speedy and adequate remedy in the ordinary course of law. A certiorari proceeding
may be instituted during the pendency of a case or even after judgment.
If after judgment, the petition for certiorari is availed of when appeal is a plain, speedy and adequate
remedy, then the petition must fail as certiorari may not be resorted to as a substitute for appeal much
less for a lost one. In such a case, the right to appeal is deemed abandoned.
However, after a judgment had been rendered and an appeal therefrom had been perfected, a petition
for certiorarirelating to certain incidents therein may prosper where the appeal does not appear to be a
plain, speedy and adequate remedy. Hence, appeal and certiorari are not remedies that exclude each
other.
In De Vera vs. Santos, 6 this Court held —
Although the petitioner Mercy Amonidovar had already perfected an appeal from the judgment of the
respondent court, she is not barred from applying for the extraordinary remedy of certiorari since appeal
is not an adequate remedy to correct lack or excess of jurisdiction because appeal cannot promptly relieve
the petitioner from the injurious effects of an invalid order.
In Jaca vs. Davao Lumber Company, 7 We ruled:
The availability of the ordinary course of appeal does not constitute sufficient ground to prevent a party
from making use of the extraordinary remedy of certiorari where the appeal is not an adequate remedy
or equally beneficial, speedy and sufficient. It is the inadequacy — not the mere absence of all other legal
remedies and the danger of failure of justice without the writ, that must usually determine the propriety
of certiorari.
Indeed, there are instances when this Court relaxed the application of Rule 65 on certiorari and allowed
the writ to issue even while appeal was available in the interest of justice, 8 or due to the dictates of public
welfare and for the advancement of public policy. 9
In this case, after judgment was rendered, petitioners filed a motion for reconsideration which is in effect
a motion for the trial. The failure of counsel and petitioners to appear on November 8, 1985 in order to
present its evidence was duly explained and which may be considered excusable. The courts are called
upon to be liberal in the assessment of the non-appearance of counsel or the party if only to promote the
greater interest of justice.
While it appears that the vehicle of petitioners hit the car of private respondent while parked it is
contended by petitioners that it was parked in a prohibited zone. Assuming the petitioners to be at fault,
they contend the additional damage of P250.00 per day is unconscionable in addition to the actual
damage to the car of P19,500.00 and P10,000.00 attorney's fees and expenses of litigation. They estimate
the damage awarded can run up to the amount of P600,000.00.
These circumstances justify the grant to petitioners of another day in court. It is a pity that this case has
been pending in court for so long. But this is what happens when an overly strict and narrow
interpretation of the rules is undertaken. The liberal application of the rules must always be in the mind
of the courts.
WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals dated June 30, 1986 and its
resolution dated September 17, 1986, as well as the decision of the trial court dated December 8, 1984,
the order of execution dated July 6, 1985 and the order dated July 18, 1985 which denied the motion for
reconsideration, are hereby set aside, and another judgment is hereby rendered granting the motion for
new trial. The records of the case are returned to the lower court for further proceedings with deliberate
dispatch by giving petitioners their day in court and thereafter rendering the judgment based on the
evidence and applicable law.
No costs.
SO ORDERED.