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G.R. No. 132197 August 16, 2005
ROSS RICA SALES CENTER, INC. and JUANITO KING &
SONS, INC., Petitioners,
vs.
SPOUSES GERRY ONG and ELIZABETH ONG, Respondent.
Tinga, J.:
FACTS:
In a Decision1 dated 6 January 1998, the Former First Division of the
Court of Appeals overturned the decisions of the Municipal Trial
Court (MTC) and the Regional Trial Court (RTC) of Mandaue City,
ruling instead that the MTC had no jurisdiction over the subject
complaint for unlawful detainer. This petition for review prays for the
reversal of the aforesaid Court of Appeals’ Decision.
The case originated from a complaint for ejectment filed by petitioners
against respondents, docketed as Civil Case No. 2376, before the MTC
of Mandaue City, Branch I.
Petitioners:
In the complaint, petitioners alleged the fact of their ownership of
three (3) parcels of land covered by Transfer Certificates of Title
(TCT) Nos. 36466, 36467 and 36468. Petitioners likewise
acknowledged respondent Elizabeth Ong’s ownership of the lots
previous to theirs. On 26 January 1995, Atty. Joseph M. Baduel,
representing Mandaue Prime Estate Realty, wrote respondents
informing them of its intent to use the lots and asking them to vacate
within thirty (30) days from receipt of the letter. But respondents
refused to vacate, thereby unlawfully withholding possession of said
lots, so petitioners alleged.
Ross Rica Sales Center, Inc. and Juanito King and Sons, Inc.
(petitioners) had acquired the lands from Mandaue Prime Estate
Realty through a sale made on 23 March 1995. In turn, it appears that
Mandaue Prime Estate Realty had acquired the properties from the
respondents through a Deed of Absolute Sale dated 14 July 1994.
However, this latter deed of sale and the transfers of title consequential
thereto were subsequently sought to be annulled by respondents in a
complaint filed on 13 February 1995 before the Mandaue RTC against
Mandaue Prime Estate Realty.2 Per record, this case is still pending
resolution.
MTC: Meanwhile, the MTC resolved the ejectment case on 24 April
1996, with the decision ordering respondents to vacate the premises in
question and to peacefully turn over possession thereof to petitioners.
RTC: rendered on 1 March 1997 a judgment affirming the MTC’s
decision in its entirety.
Respondents contend:
That the complaint did not allege that petitioners’ possession was
originally lawful but had ceased to be so due to the expiration of the
right to possess by virtue of any express or implied contract.
On 8 May 1997, respondents filed a notice of appeal. However, on
the following day, they filed a motion for reconsideration.
On 23 June 1997, the RTC issued an Order which concurrently gave
due course to respondents’ notice of appeal filed on 8 May 1997;
denied their motion for reconsideration dated 9 May 1997,3 and
granted petitioners’ motion for immediate execution pending appeal.
CA: In a Petition for Certiorari with Injunction filed with the Court
of Appeals and treated as a Petition for Review, the appellate court
ruled that the MTC had no jurisdiction over said case as there was
no contract between the parties, express or implied, as would
qualify the same as one for unlawful detainer. Thus, the assailed
Orders of the MTC and RTC were set aside.
The MTC considered itself as having jurisdiction over the ejectment
complaint and disposed of the same in favor of petitioners. Said ruling
was affirmed by the RTC. The Court of Appeals reversed the lower
courts and found the complaint to be one not for unlawful detainer
based on two (2) grounds, namely: that the allegations fail to show that
petitioners were deprived of possession by force, intimidation, threat,
strategy or stealth; and that there is no contract, express or implied,
between the parties as would qualify the case as one of unlawful
detainer.
ISSUE: w/n the complaint satisfies the jurisdictional requirements for
a case of unlawful detainer properly cognizable by the MTC?
-YES. MTC has jurisdiction.
RULING:
We disagree with the Court of Appeals.
Well-settled is the rule that what determines the nature of an action as
well as which court has jurisdiction over it are the allegations of the
complaint and the character of the relief sought.9
In Javelosa v. Court of the Appeals,10 it was held that the allegation
in the complaint that there was unlawful withholding of possession
is sufficient to make out a case for unlawful detainer. It is equally
settled that in an action for unlawful detainer, an allegation that
the defendant is unlawfully withholding possession from the
plaintiff is deemed sufficient, without necessarily employing the
terminology of the law.11
Hence, the phrase "unlawful withholding" has been held to imply
possession on the part of defendant, which was legal in the
beginning, having no other source than a contract, express or
implied, and which later expired as a right and is being withheld
by defendant.12 In Rosanna B. Barba v. Court of Appeals,13 we held
that a simple allegation that the defendant is unlawfully withholding
possession from plaintiff is sufficient.
Based on this premise, the allegation in the Complaint that:
. . . . despite demand to vacate, the defendants have refused and still
refuse to vacate said lots, thus, unlawfully withholding possession of
said lots from plaintiffs and depriving plaintiffs of the use of their
lots;14 is already sufficient to constitute an unlawful detainer case.
In the subject complaint, petitioners alleged that they are the registered
owners of the lots covered by TCT Nos. 36466, 36467 and 36468. By
their implied tolerance, they have allowed respondents, the former
owners of the properties, to remain therein. Nonetheless, they
eventually sent a letter to respondents asking that the latter vacate the
said lots. Respondents refused, thereby depriving petitioners of
possession of the lots. Clearly, the complaint establishes the basic
elements of an unlawful detainer case, certainly sufficient for the
purpose of vesting jurisdiction over it in the MTC.
Respondents insist that the RTC, and not the MTC, had jurisdiction
over the action, it being an accion reivindicatoria according to them,
on the ground that petitioners were constantly claiming ownership
over the lands in the guise of filing an action for ejectment. In their
Comment,19 respondents maintain that they occupy the subject lots as
the legal owners. Petitioners, on the other hand, are seeking recovery
of possession under a claim of ownership which is tantamount to
recovery of possession based on alleged title to the lands, and therefore
is within the original jurisdiction of the RTC, so respondents conclude.
This contention is not tenable.
The issue involved in accion reivindicatoria is the recovery of
ownership of real property. This differs from accion publiciana
where the issue is the better right of possession or possession de jure,
and accion interdictal where the issue is material possession or
possession de facto. In an action for unlawful detainer, the question of
possession is primordial while the issue of ownership is generally
unessential.20
Neither the allegation in petitioners’ complaint for ejectment nor
the defenses thereto raised by respondents sufficiently convert this
case into an accion reivindicatoria which is beyond the province of
the MTC to decide. Petitioners did not institute the complaint for
ejectment as a means of claiming or obtaining ownership of the
properties. The acknowledgment in their pleadings of the fact of prior
ownership by respondents does not constitute a recognition of
respondents’ present ownership. This is meant only to establish one of
the necessary elements for a case of unlawful detainer, specifically the
unlawful withholding of possession. Petitioners, in all their pleadings,
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only sought to recover physical possession of the subject property.
The mere fact that they claim ownership over the parcels of land
as well did not deprive the MTC of jurisdiction to try the
ejectment case.
Even if respondents claim ownership as a defense to the complaint
for ejectment, the conclusion would be the same for mere assertion
of ownership by the defendant in an ejectment case will not
therefore oust the municipal court of its summary jurisdiction.21
This Court in Ganadin
v. Ramos22 stated that if what is prayed for is ejectment or recovery of
possession, it does not matter if ownership is claimed by either party.
Therefore, the pending actions for declaration of nullity of deed of sale
and Transfer Certificates of Title and quieting of title in Civil Case
No. MAN-2356 will not abate the ejectment case.
In Drilon v. Gaurana,23 this Court ruled that the filing of an action for
reconveyance of title over the same property or for annulment of the
deed of sale over the land does not divest the MTC of its jurisdiction
to try the forcible entry or unlawful detainer case before it, the
rationale being that, while there may be identity of parties and subject
matter in the forcible entry case and the suit for annulment of title
and/or reconveyance, the rights asserted and the relief prayed for are
not the same.24
In Oronce v. Court of Appeals,25 this Court held that the fact that
respondents had previously filed a separate action for the reformation
of a deed of absolute sale into one of pacto de retro sale or equitable
mortgage in the same
Court of First Instance is not a valid reason to frustrate the summary
remedy of ejectment afforded by law to the plaintiff. Consequently,
an adjudication made in an ejectment proceeding regarding the
issue of ownership should be regarded as merely provisional and,
therefore, would not bar or prejudice an action between the same
parties involving title to the land. The foregoing doctrine is a
necessary consequence of the nature of forcible entry and
unlawful detainer cases where the only issue to be settled is the
physical or material possession over the real property, that is,
possession de facto and not possession de jure.
The Court reiterated this in the case of Tecson v. Gutierrez26 when it
ruled:
We must stress, however, that before us is only the initial
determination of ownership over the lot in dispute, for the purpose of
settling the issue of possession, although the issue of ownership is
inseparably linked thereto. As such, the lower court's adjudication of
ownership in the ejectment case is merely provisional, and our
affirmance of the trial courts' decisions as well, would not bar or
prejudice an action between the same parties involving title to the
property, if and when such action is brought seasonably before the
proper forum.
The long settled rule is that the issue of ownership cannot be subject
of a collateral attack.
WHEREFORE, the Petition is GRANTED. The Decision of the Court
of Appeals dated 6 January 1998 is REVERSED and SET ASIDE and
the Decision dated 24
April 1996 of the Municipal Trial Court of Mandaue City
REINSTATED and AFFIRMED. Costs against respondents. SO
ORDERED.

MACAWIWILI GOLD MINING AND DEVELOPMENT CO.,
INC. and OMICO MINING AND INDUSTRIAL
CORPORATION, petitioners,
vs.
COURT OF APPEALS and PHILEX MINING
CORPORATION, respondents.
FACTS:
- On October 16, 1992, respondent Philex Mining Corporation filed a
complaint for expropriation against petitioners Macawiwili Gold
Mining and Development Co., Inc. and Omico Mining & Industrial
Corporation. The complaint, entitled "Philex Mining Corporation v.
Macawiwili Gold Mining and Development Co., Inc., et al.," was filed
before the RTC of La Trinidad, Benguet, where it was docketed as
Civil Case No. 92-CV-0727.
- Based on §53 of P.D. No. 463, Philex Mining sought to expropriate
21.9 hectares of petitioners' mining areas where the latter's
"Macawiwili claims" are located. Philex Mining likewise moved for
the issuance of a writ of preliminary injunction to enjoin petitioners
from ejecting it (Philex Mining) from the mining areas sought to be
expropriated.
- Although a temporary restraining order was initially issued by the
Regional Trial Court of La Trinidad, Branch X, on November 11,
1992, it denied respondent's application for a preliminary injunction.
RTC- On February 18, 1993, acting on the motion of petitioners,
dismissed the complaint of Philex Mining. In its resolution, the trial
court stated: 2
To better appreciate the incident submitted for resolution, a review
of the antecedent facts which gave rise to this case is in order.
The decision of the Supreme Court dated October 2, 1991 in Poe
Mining Association vs. Garcia, 202 SCRA 222 upheld the decision
of the then Minister of Natural Resources which was affirmed by
the Office of the President. This decision recognized the
possessory rights of defendants Macawiwili and Omico over
their mining claims located at Tuba and Itogon, Benguet as
against Poe Mining Association and plaintiff herein Philex
Mining Corporation as operator. However, on the surface of
21.9 hectares of these mining claims awarded to defendants
Macawiwili and Omico, we find improvements of the plaintiff
consisting of a network of roads, a motorpool facility, a tailings
dam and three bunkhouses. The DENR-Cordillera
Administrative Region (DENR-CAR), in pursuance of the
Supreme Court decision is poised to order the removal or
demolition of plaintiffs improvements and to hand possession
of the area to defendants Macawiwili and Omico. Plaintiff,
while admitting the possessory rights of defendant mining
companies, stresses that the improvements already existing
thereon are vital to the conduct of its mining operations
particularly, its Nevada claims. Thus, it came to court seeking
the expropriation of this area pursuant to Section 59 of
Presidential Decree No. 463.
The conflict between the plaintiff and defendant mining companies
spans a period of almost 23 years until finally, it reached the
Supreme Court, the final arbiter of all disputes. The Supreme
Court has spoken and it has awarded to defendants Macawiwili
and Omico the portion sought to be expropriated by the
plaintiff.
Can this Court now grant to plaintiff the right to expropriate the
very land which has been denied it by the decision of the highest
court of the land?
This Court believes not. To do so would not only be presumptious
of this Court but a patent defiance of the decision of the highest
tribunal.
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The plaintiff states that the expropriation is necessary in order for
it to continue with the operation of its Nevada claims. The
improvements now existing on the land sought to be expropriated
consists of a network of roads constructed sometime in 1958, a
motorpool facility built in 1963, a tailings dam and three (3) two-
storey concrete bunkhouses. It is thus clear that these
improvements have been existing for quite sometime now. Aware
that these improvements are essential to their mining operations,
plaintiff should have initiated expropriation proceedings long
before it even started putting up said improvements. Why exercise
the right of eminent domain only now that the land has been
adjudged in favor of defendant mining companies by no less than
the Supreme Court? It seems the plaintiff, mindful of the Supreme
Court decision, would now look for avenues of escape to evade the
repercussions of such a decision. What it has not achieved through
the decision, it tries to gain through the power of eminent domain.
Clearly, this is forum-shopping, plain and simple. Stripped of all
its legal niceties, this expropriation proceeding is patently a last
ditch effort on the part of the plaintiff to overcome the adverse
effects of the Supreme Court decision.
Can this Court countenance such a procedure under the guise of the
legal process of expropriation?
No. To agree to it would be to encourage forum-shopping which is
abhorred as there will no longer be any end to any litigation.
Nevertheless, plaintiff asserts that its right to expropriate is distinct
and separate from the rights of Macawiwili and Omico under the
Supreme Court decision, anchoring said right on Section 59 of
Presidential Decree No. 463 which states:
Sec. 59. Eminent Domain. — When the claim owner or an occupant
or owner of private lands refuses to grant to another claim owner
or lessee the right to build, construct or install any of the facilities
mentioned in the next preceding section, the claim owner or lessee
may prosecute an action for eminent domain under the Rules of
Court in the Court of First Instance of the province where the
mining claims involved are situated. In the determination of the just
compensation due the claim owner or owner or occupant of the
land, the court shall appoint at least one duly qualified mining
engineer or geologist to be recommended by the Director as one of
the commissioners.
Going to the first stage of the expropriation proceeding in the case
at bar, the question is: Is the right to expropriate granted to mining
companies under Section 59 of P.D. No. 463 an absolute right?
An examination of Presidential Decree No. 463 would readily
show that Section 59 upon which plaintiff asserts its right to
expropriate is found under Chapter XI with the heading "Auxiliary
Mining Rights". From the title alone, it would seem that the
right to expropriate is not an absolute one but a mere auxiliary
right. The right of eminent domain granted to mining
companies is given in aid of its mining operations and not as a
matter of right. Thus, it should be construed strictly against the
mining company seeking the right. Thus, taking into context the
antecedent facts arising from this case, is it proper for plaintiff to
exercise the power of eminent domain?
Absolutely not. But, granting arguendo that the right of
expropriation can be awarded to plaintiff, a bigger question arises
on whether a mining company can expropriate land belonging to
another mining company. It would be absurd if not ridiculous. In
the first place, the land would no longer be subject to
expropriation. Expropriation demands that the land be private
land. When the Supreme Court awarded the possessory rights over
the land subject of this case to defendants Macawiwili and Omico,
it has stripped said land of its private character and gave it its public
character, that is, to be utilized for mining operations. Although

property already devoted to public use is still subject to
expropriation, this must be done directly by the national
legislature or under a specific grant of authority to the delegate.
Section 59 of Presidential Decree No. 463 is not a specific grant
of authority given to plaintiff but a mere general authority
which will not suffice to allow plaintiff to exercise the power of
eminent domain.
All told it is clear that plaintiff has not shown that it has the right
to expropriate the land subject of this case. Moreover, that land has
been placed out of its reach by the Supreme Court decision when it
awarded it to defendants Macawiwili and Omico. Both plaintiff and
defendants are engaged in mining, and the Supreme Court has
adjudged defendant mining companies to be the owner of the land.
This Court now, on the ground of the exercise of the power of
eminent domain, cannot and will not overwhelm said decision by
awarding it to plaintiff.
Philex Mining moved for a reconsideration, but its motion was denied.
It then appealed to the Court of Appeals.
On February 16, 1994, petitioners filed a Motion to Dismiss Appeal
on the ground that only questions of law were involved and,
therefore, the appeal should be to the Supreme Court. However,
the appellate court denied petitioners' motion in a resolution,
dated April 12, 1994. Without filing a motion for reconsideration,
petitioners filed the instant petition for certiorari.
Respondent Philex Mining seeks the dismissal of the petition on
the ground that petitioner should have filed a motion for
reconsideration giving the appellate court an opportunity to
correct itself.
ISSUE: Whether the issues raised in the appeal of respondent Philex
Mining are questions of law or of fact.
COURT: Questions of law
Rule 65, §1 of the 1997 Rules of Civil Procedure provides:
Sec. 1. Petition for certiorari. — When any tribunal, board or officer
exercising judicial or quasi-judicial functions has acted without or in
excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal, nor
any plain, speedy, and adequate remedy in the ordinary course of law,
a person aggrieved thereby may file a verified petition in the proper
court, alleging the facts with certainty and praying that judgment be
rendered annulling or modifying the proceedings, of such tribunal
board or officer, and granting such incidental reliefs as law and
justice may require. 3
It is settled that the writ of certiorari lies only when petitioner has
no other plain, speedy, and adequate remedy in the ordinary
course of law. Thus, a motion for reconsideration, as a general
rule, must be filed before the tribunal, board, or officer against
whom the writ of certiorari is sought.
Ordinarily, certiorari as a special civil action will not lie unless,
motion for reconsideration is first filed before the respondent tribunal,
to allow it an opportunity to correct its assigned errors. 4
This rule, however, is not without exceptions. In Pajo v. Ago and Ortiz
5 we held:
Respondent contends that petitioners should have filed a motion for
reconsideration of the order in question, or asked for the dissolution
of the preliminary injunction issued by the trial court, before
coming to us.
This is not always so. It is only when the questions are raised for
the first time before this Court in certiorari proceeding that the writ
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shall not issue unless the lower court had first been given the
opportunity to pass upon the same. In fine, when the questions
raised before this Court are the same as those which have been
squarely raised in and passed upon by, the court below, the
filing of a motion for reconsideration in said court before
certiorari can be instituted in this Court, is no longer
prerequisite.
And in Central Bank v. Cloribel, 7 it was explained:
It is true that Petitioner herein did not seek a reconsideration of the
order complained of, and that, as a general rule, a petition for
certiorari will not be entertained unless the respondent has had,
through a motion for reconsideration, a chance to correct the error
imputed to him. This rule is subject, however, to exceptions,
among which are the following, namely: 1) where the issue
raised is one purely of law; 2) where public interest is involved;
and 3) in case of urgency.
The issues raised by petitioners in this petition are substantially
the same as those asserted by them in their Motion to Dismiss
Appeal, dated February 14, 1994, before the Court of Appeals.
The argument that respondent has no right to expropriate
petitioners' mineral areas under Presidential Decree No. 463 has
already been raised, argued, and submitted by petitioners for
resolution by the appellate court in their Motion to Dismiss
Appeal. To further file a motion for reconsideration before the Court
of Appeals would simply be to repeat their arguments. For this
reason, we hold that petitioners' failure to file a motion for
reconsideration is not fatal to the allowance of their action.
We therefore come to the main question: Did the Court of Appeals
commit grave abuse of discretion in denying petitioners' Motion to
Dismiss Appeal? We find that it did.
To begin with, the writ of certiorari lies when a court, in denying a
motion to dismiss, acts without or in excess of jurisdiction or with
grave abuse of discretion.8 By "grave abuse of discretion" is meant,
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 or to a virtual refusal to perform
the duty enjoined by or to act all in contemplation of law. 9
Petitioners contend that: the Court of Appeals gravely abused its
discretion in denying their motion to dismiss the appeal. According
to petitioners, respondent's appeal raises only questions of law
and, therefore it should be brought to the Supreme Court by
means of a petition for review on certiorari and not, as Philex
Mining did, by bringing an ordinary appeal to the Court of
Appeals. Petitioners argue that the question whether respondent
has a right to expropriate petitioners' mining areas under §59 of
Presidential Decree No. 463 is a question of law.
On the other hand, Philex Mining maintains that: the issues raised
in its appeal are factual and, therefore, the appellate court is the proper
forum for the ventilation of such issues.
Supreme Court Circular No. 2-90, which is based on the Resolution of
the Court En Banc in UDK-9748 (Anacleto Murillo v. Rodolfo
Consul), March 1, 1990, provides in §4(c) thereof:
c) Raising issues purely of law in the Court of Appeals, or appeals
by wrong mode. — If an appeal under Rule 41 is taken from the
regional trial court to the Court of Appeals and therein the appellant
raises only questions of law, the appeal shall be dismissed, issues
purely of law not being reviewable by said Court. So, too, if an
appeal is attempted from the judgment rendered by a Regional Trial
Court in the exercise of its appellate jurisdiction by notice of

appeal, instead of by petition for review, the appeal is inefficacious
and should be dismissed.
Thus, judgments of the regional trial courts in the exercise of their
original jurisdiction are to be elevated to the Court of Appeals in
cases where the appellant raises questions of fact or mixed
questions of fact and law. On the other hand, appeals from
judgments of the regional trial courts in the exercise of their
original jurisdiction must be brought directly to the Supreme
Court in cases where the appellant raises only questions of law.
This procedure is now embodied in Rule 41, §2 of the 1997 Rules of
Civil Procedure which distinguishes the different modes of appeal
from judgments of regional trial courts as follows:
Modes of appeal. —
(a) Ordinary appeal. — The appeal to the Court to Appeals in cases
decided by the Regional Trial Court in the exercise of its original
jurisdiction shall be taken by filing a notice of appeal with the court
which rendered the judgment or final order appealed from and
serving a copy thereof upon the adverse party. No record on appeal
shall be required except in special proceedings and other cases of
multiple or separate appeals where the law or these Rules so
require. In such cases, the record on appeal shall be filed and served
in like manner.
(b) Petition for review. — The appeal to the Court of Appeals in
cases decided by the Regional Trial Court in the exercise of its
appellate jurisdiction shall be by petition for review in accordance
with Rule 42.
(c) Appeal by certiorari. — In all cases where only questions of
law are raised or involved, the appeal shall be to the Supreme Court
by petition for review on certiorari in accordance with Rule 45.
On the other hand, Rule 42 provides that appeals from judgments of
the regional trial courts in the exercise of their appellate jurisdiction
must be brought to the Court of Appeals, whether the appellant raises
questions of fact, of law, or mixed questions of fact and law.
The rules on appeals from the judgments of the regional trial courts in
civil cases may thus be summarized as follows:
(1) Original Jurisdiction — In all cases decided by the regional trial
court in the exercise of their original jurisdiction, appeal may be made
to:
(a) Court of Appeals — where the appellant raises questions of fact or
mixed questions of fact and law, by filing a mere notice of appeal.
(b) Supreme Court — where the appellant solely raises questions of
law, by filing a petition for review on certiorari under Rule 45.
(2) Appellate Jurisdiction
All appeals from judgments rendered by the regional trial courts in the
exercise of their appellate jurisdiction, whether the appellant raises
questions of fact, of law, or mixed questions of fact and law, shall be
by filing a petition for review under Rule 42.
The question is whether the issues raised in the appeal of
respondent Philex Mining are questions of law or of fact.
[F]or a question to be one of law, the same must not involve an
examination of the probative value of the evidence presented by
the litigants or any of them. And the distinction is well-known:
There is a question of law in a given case when the doubt or
difference arises as to what the law is on a certain state of facts;
there is a question of fact when the doubt or difference arises as to
the truth or the falsehood of alleged facts. 10
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Respondent's assignment of errors 11 before the appellate court should
therefore be considered in order to determine the nature of the
questions therein raised. Respondent Philex Mining argued before the
Court of Appeals:
A. The trial court erred in finding that Philex has no right to
expropriate; P.D. 463 expressly grants to Philex, as operator of the
Nevada claims, the right of eminent domain.
B. The trial court erred in finding that Philex cannot expropriate land
belonging to a mining company; Section. 59 in relation to Section 58
of P.D. 463 allows an operator of a mining claim to expropriate mining
claims or lands owned, occupied, or leased by other persons or claim
owners.
C. The trial court erred in finding that Philex is attempting to subvert
the Supreme Court decision and is engaged in forum-shopping. Philex
is merely exercising its rights under the law.
D. The trial court erred in finding that the expropriation of the land
will divide the surface from the subsurface.
E. The trial court erred in dismissing the complaint. Philex's
alternative cause of action was disregarded.
The respondent's arguments may thus be summarized as follows:
(1) Section 59, in relation to Section 53 of Presidential Decree No.
463, expressly grants respondent the right to expropriate mining
claims or lands owned, occupied, or leased by other persons once the
conditions justifying expropriation are present. The power of eminent
domain expressly granted under Sections 58 and 59 of P.D. No. 463 is
not inferior to the possessory right of other claimowners. 12
(2) There is nothing absurd in allowing a mining company to
expropriate land belonging to another mining company. Pursuant to
the ruling laid down in Benguet Consolidated, Inc. v. Republic, 13 land
covered by mining claims may be the subject of expropriation.
Moreover, a general grant of the power of eminent domain only means
that the court may inquire into the necessity of the expropriation. 14
(3) Respondent could not be held guilty of forum-shopping or
subverting the Supreme Court's decision in Poe Mining v. Garcia. 15
Forum-shopping, which refers to filing the same or repetitious suits,
is not resorted to in the present case since respondent seeks to
expropriate petitioners' mining areas, not as operator of the Poe mining
claims, but as operator of the Nevada mining claims. 16
(4) Respondent's expropriation of the land will not divide the surface
from the subsurface for the reason that respondent seeks to expropriate
all rights that petitioners, as well as the Pigoro heirs, have over the
21.9 hectare area. 17
(5) The trial court erred in disregarding respondent's alternative cause
of action, even on the assumption that respondent does not have the
right to expropriate, for the reason that an alternative statement in a
pleading, if sufficient, is not vitiated by the insufficiency of the other
alternative statements. 18
The first four arguments advanced by respondent Philex Mining
raise the sole issue of whether it has, under Presidential Decree
No. 463, the right to expropriate the 21.9 hectare mining areas
where petitioners' mining claims are located. On the other hand,
its final argument raises the issue of whether the rules on the
allegation of alternative causes of action in one pleading under
Rule 8, §1 of the Rules of Court are applicable to special civil
actions. These are legal questions whose resolution does not
require an examination of the probative weight of the evidence
presented by the parties but a determination of what the law is on
the given state of facts. These issues raise questions of law which

should be the subject of a petition for review on certiorari under Rule
45 filed directly with this Court. The Court of Appeals committed a
grave error in ruling otherwise.
Topic: When period given due course; prima facie finding that lower
court has committed errors of fact or law warranting reversal or
modification petition dismissed for late filing after finding the same
prima facie meritorious
G.R. No. 109834 October 18, 1996
CECILE SAN JUAN DITCHING and MA. CORAZON I. SAN
JUAN, petitioner,
vs.
COURT OF APPEALS and ADRIANO MOTAS, respondents.
PANGANIBAN, J.:p
If a motion for extension of time — to file a petition for review with
respondent Court of Appeals — was filed more than fifteen days from
receipt of the order assailed, should the petition itself, when
subsequently filed, be rejected outright for being filed late? On the
other hand, should the merits of the case be looked into first to
ascertain whether to allow relaxation of the strict application of the
rules?
Assailed in this petition 1 for review on certiorari under Rule 45 of the
Rules of Court are the Decision of respondent Court of Appeals 3
promulgated August 25, 1992, and its Resolution of April 16, 1993
denying the motion for reconsideration of petitioners. In the assailed
Decision, respondent Court dismissed their petition for review for
being filed late, considering that their motion for extension was filed
twenty (20) days from their receipt of the order of the trial court.
FACTS:
The antecedent of the present petition was an ejectment case filed in
July 1989 with the Municipal Trial Court in Calamba, Laguna by
herein petitioner Ditching and Zonette San Juan Bacani, seeking to
eject herein private respondent Motas and another occupant
named Vidal Batalla from the lot owned by the petitioner and her
co-owners. Said case was tried under the old Rules on Summary
Procedure.
The Municipal Trial Court found that the plaintiffs in said ejectment
case were co-owners of parcels of land situated at Barangay Pansol,
Calamba, Laguna covered by various transfer certificates of title.
However, in 1975, a contract of tenancy entitled "Kasunduan
Buwisan sa Sakahan" was entered into by private respondent
Motas and Dr. Eduardo San Juan, the predecessor-in-interest of
petitioners. Then, in 1978, respondent Motas constructed his house
on the lot covered by TCT No. 57823 without the consent of
petitioners, who, upon learning of such fact, demanded that he
vacate the property. The last demand to vacate having been made
in September 1988, and respondent Motas having refused to
vacate, petitioners lodged a complaint at the barangay level, but
no amicable settlement was arrived at , hence the suit for
ejectment.
RESPONDENTS CONTENTION: alleged that he could not be
ejected from his tenanted landholdings (including the lot where his
house was located) because of the existing tenancy agreement, and
that he had been giving rentals/share to petitioners' overseer who
without justifiable reason stopped receiving said rentals or share of the
harvests, forcing respondent Motas to deposit the same with a bank.
Municipal Trial Court found that there existed a tenancy
relationship between petitioners and respondent Motas. Then,
based on Section 24 of Republic Act No. 3844, the Agricultural
6 of 22
Reform Code, as amended, which provides that "(t)he agricultural
lessee shall have the right to continue in the exclusive possession and
enjoyment of any home lot he may have occupied upon the effectivity
of (RA 3844), which shall be considered as included in the leasehold",
the MTC held that the portion of the land where respondent
Motas' house was erected was considered included in the
leasehold, hence the "ejectment" case was actually a tenancy case
over which it had no jurisdiction. DISMISSED
Petitioners appealed to the Regional Trial Court of Calamba, Laguna,
which rendered a decision affirming in toto the decision of the
Municipal Trial Court. The Regional Trial Court made the following
findings supporting the existence of a tenancy relationship:
In the case at bar, the fact appears to be uncontroverted that plaintiffs
(petitioners herein) became the registered owners of the property
mentioned in the complaint only on May 8, 1978. This is quite evident
from a reading of a copy of Transfer Certificate of Title No. 57823
(Annex "D" of complaint). Moreover, the land sought to be recovered
by them clearly appears to be a part of a larger tract of land identified
as Lot 1416 of the subdivision plan (LCR) Psd-266142, the latter being
also a portion of Lot 1416-X-2, Psd 58615, LRC Rec No. 8418.
Furthermore, this Court's analysis of the other Transfer Certificates of
Titled attached to the complaint as Annexes "A" to "C" and "E" to "I",
inclusive, will clearly show that the parcels of land mentioned and
described in the same certificates of title issued in the names of
plaintiffs and their co-owners are the results of a previous subdivision
of Lot 1416-X. Since Annexes "A" to "C" and "E" to "I" appear to
have been issued to the plaintiffs and their co-owners also on May 8,
1978, there is no doubt at all that the parcels of land covered by such
titles, including the land in question, came from one (1) tract of land.
The foregoing circumstances appear to be very significant because
plaintiffs never denied, much less controverted the fact that
defendants, more particularly Adriano Motas (private respondent
herein), have occupied a much bigger parcel of land belonging to
Dr. Eduardo San Juan as tenants of the latter. Neither did plaintiffs
dispute the defendants' claim that the land in question was a part and
parcel of Dr. Eduardo San Juan's land being tenanted by defendants.
On the other hand, there is sufficient and uncontroverted proof offered
by defendants that they have been tenants of Dr. San Juan's land since
1972; and that on October 7, 1975, defendant Motas even executed
Annex "1" with Dr. San Juan, plaintiffs' predecessor-in-interest.
Plaintiffs' contention that defendants are not tenants of the property in
question has no leg to stand on. Having secceeded Dr. Eduardo San
Juan on the same property, they are bound to observe and respect the
rights of defendants as tenant. Their claim that they never intended
defendants to be their tenants cannot be given merit.
As expected, petitioners filed a motion for reconsideration of the
aforequoted decision. In order to resolve the same, Judge Eleuterio
Guerrero set the case for clarificatory hearing on August 30, 1991, on
which date a representative from the Register of Deeds of Laguna
(Calamba Branch) appeared and testified on the records and/or other
paper and documents relative to the ownership and/or disposition of
the land subject of the controversy. 11
Afterwards, Judge Eleuterio Guerrero issued an order dated January
8, 1992 granting reconsideration and setting aside his earlier order,
thus: 12
WHEREFORE, this Court finds merit to plaintiffs-appellants'
Motion for Reconsideration and accordingly the decision of this
Court dated June 28, 1991, is hereby reversed as set aside and
another judgment is rendered as follows:
1. Ordering defendants-appellees and/or any persons claiming rights
under them to vacate immediately the premises of the land owned

by plaintiffs-appellants located at Barangay Pansol, Calamba,
Laguna, and to surrender possession thereof to the latter; and
2. Defendants-appellees are further ordered to pay the costs.
On March 5, 1992, Judge Francisco Ma. Guerrero who took over
as presiding judge of Branch 34 issued another order (this time
upon motion for reconsideration of respondent Motas) reversing
the earlier order of Judge Eleuterio Guerrero, as follows: 13
The rule on the exercise of the Appellate Jurisdiction by Regional
Trial Courts mandates that cases appealed from the Metropolitan
Trial Court "be decided on the basis of the entire record of the
proceeding had in the Court of origin and such memoranda and/or
briefs as may be submitted by the parties or required by the
Regional Trail Court" (vide. Sec. 22, Batas Pambansa Bilang 129).
The fact that the Court then presided by the Hon. Eleuterio Guerrero
conducted hearings and admitted testimonial evidence to clarify points
on the decision of the Court a quo, is beyond the purview of the rule.
This being the case, the motion for reconsideration must perforce be
GRANTED.
xxx xxx xxx
WHEREFORE, the Order of this Court dated January 8, 1992 is
hereby ordered RECONSIDERED and SET ASIDE and the Order of
the Municipal Trial Court dated June 14, 1990 is AFFIRMED en toto.
On April 13, 1992, petitioners filed with the respondent Court of
Appeals a motion for extension of fifteen (15) days from April 18,
1992, or up to May 3, 1992, within which to file a petition for
review, alleging the following material dates:
2. On March 5, 1992, the said court issued an Order adverse to herein
petitioners, a copy of which was received by petitioners thru counsel
on March 17, 1992, please see Annex "A".
3. From the adverse order, petitioners filed a Motion for
Reconsideration on March 27, 1992 which was denied by the court per
Order of even date.
4. The Order denying petitioner's Motion for Reconsideration
was received by petitioners thru counsel on April 3, 1992, please see
Annex "B", thus, petitioners have until April 18, 1992 within which to
file a Petition for Review on Certiorari.
5. That petitioners will file a petition for review on certiorari
of the said adverse order.
6. Due however, to volume and pressure of work from equally
important cases, undersigned cannot file the petition within the time
allowed by law, thus, needs a period of fifteen (15) days from April
18, 1992 within which to file said petition.
In response thereto, the Court of Appeals issued a resolution
granting extension and stating:
Petitioners' motion for an extension of fifteen (15) days from April
18, 1992 or up to May 3, 1992 within which to file a petition for
review is GRANTED, conditioned upon the timeliness of said
motion. (Emphasis ours)
The petition was filed on April 29, 1992.
Finding the petition to have been filed late as can be readily
ascertained from the recitation of material dates, the respondent Court
of Appeals dismissed the petition with the following discussion:
It is crystal clear from the foregoing undisputed facts that from March
17, 1992 the date petitioners received the order of March 22 (should
be "05"), 1992 (Annex A, petition), to March 27, 1992 when they filed
7 of 22
their motion for reconsideration of said order, ten (10) days were
consumed. From April 3, 1992 the date petitioners received the order
denying their motion for reconsideration up to April 13, 1992 when
they filed their motion for extension of time to file a petition for
review, another ten (10) days had elapsed. A total of twenty (20) days
had already run from the time petitioners received a copy of the
questioned order up to the time they actually filed on April 13, 1982
their motion for extension of time to file the petition. Clearly, the order
of March 22 (should be "05"), 1992 had already become final and
executory when petitioners filed on April 13, 1992 their motion for
extension of time to file a petition for review. For this reason, this
Court had no jurisdiction to entertain the petition for review except to
dismiss it. (Sumbilo vs. IAC, 165 SCRA 232).
Their motion for reconsideration of the aforequoted Decision having
been denied by Court of Appeals, petitioners hastened to this Court.
ISSUE: WON THE appeal can still be entertained? NO
We shall first determine whether the respondent Court of Appeals
correctly dismissed the petition before it, seemingly on "sheer
technicality". If the answer is in the affirmative, then regardless
of the merits of the petitioner's cause, assuming it to be
meritorious, the judgment of the RTC having become final and
executory, then this appeal may no longer be entertained.
PETITIONERS CONTENTION: allege that the late filing of the
motion for extension and the petition was due to their counsel's
"honest mistake in computing the period to appeal." Citing cases
decided by this Court, petitioners allege that respondent Court
committed serious error and "grave abuse of discretion" in dismissing
the petition on a mere technical ground.
RESPONDENTS CONTENTION: alleges that petitioner's failure to
file their petition on time due to mistake of counsel was "not
excusable." Likewise citing numerous cases, private respondent
alleges that this Court has consistently held that "perfection of an
appeal within the statutory period is a jurisdictional requirement and
failure to do so renders the questioned decision or decree final and
executory and no longer subject to review."
RATIO:
In Lacsamana vs. Second Special Cases Division of the Intermediate
Appellate Court, 21 this Court had set the allowable extension to file
petition for review with the Court of Appeals at fifteen (15) days, to
wit:
3. APPEALS BY PETITION FOR REVIEW TO THE COURT OF
APPEALS.
The final judgment or order of a regional trial court in an appeal from
the final judgment or order of a metropolitan trial court, municipal trial
court and municipal circuit trial court, may be appealed to the Court
of Appeals through a petition for review in accordance with Section
22 of BP No. 129 and Section 22(b) of the Interim Rules, or to this
Court through a petition for review on certiorari in accordance with
Rule 45 of the Rules of Court and Section 25 of the Interim Rules. The
reason for extending the period for the filing of a record on appeal is
also applicable to the filing of a petition for review with the Court of
Appeals. The period for filing a petition for review is fifteen days. If a
motion for reconsideration is filed with and denied by a regional trial
court, the movant has only (the) remaining period within which to file
a petition for review. Hence, it may be necessary to file a motion with
the Court of Appeals for extension of time to file such petition for
review. (Emphasis supplied)
And in the same case, the Court explicitly ruled that a motion for
extension must be filed within the reglementary period of appeal:
 8 of 22
6) PERIOD OF EXTENSION OF TIME TO FILE PETITION FOR (a) Failure of the record on appeal to show on its face that the appeal
REVIEW. was perfected within the period fixed by these rules.

Beginning one month after the promulgation of this Decision (August
26, 1986), an extension of only fifteen days for filing a petition for
review may be granted by the Court of Appeals, save in exceptionally
meritorious cases.
-The motion for extension of time must be filed and the corresponding
docket fee paid within the reglementary period of appeal.
-Copies of the motion for extension of time and of the subsequent
petition for review must be served on the regional trial court and on
Having disposed of the foregoing issue, we shall not pass upon and
consider the other issue raised by petitioners, challenging the factual
findings of the trial court as to the existence of the tenancy
relationship. Otherwise, we would be violating that time-honored and
oft-reiterated rule that the findings of fact of the trial court are entitled
to great weight and are not disturbed except
for cogent reasons, such as when the findings of fact are not supported
by evidence. 30 Indeed, we recently held in Sintos vs. Court of Appeals
31 that:

the adverse party. (Emphasis supplied)

The determination that a person is a tenant is a factual finding made
-It should be observed that in this case, it was not only the petition by the trial court on the basis of evidence directly available to it and
which was filed late, but also the motion for extension of time. This such finding will not be reversed on appeal except for the most
distinguishes the instant case from those cited by petitioners. It is compelling reasons (Macaraeg v. Court of Appeals 169 SCRA 259
obvious and unarguable (and it was not only in Lacsamana that this [1989]).
Court held) that a motion for extension of time to file a petition should
be filed prior to the expiration or lapse of the period fixed by law, and Petitioners have utterly failed to show any such compelling reason.
beyond dispute, if the motion for extension is filed after the expiration And equally as significant, they are asking us to review a judgment
of the period sought to be extended (i.e., the reglementary period to which had long since become final and executory — something we
appeal), then there is no longer any period to extend, and the judgment cannot and ought not do.
or order to be appealed from will have become final and executory.
The error of herein petitioners and their counsel goes into the very WHEREFORE, in view of the foregoing, the petition is hereby
validity of the appeal, and cannot simply be brushed off as an DENIED, petitioners having failed to show that respondent Court
honest mistake in computing the period to appeal. It should be committed any reversible error in its assailed Decision. Costs against
stressed that a lawyer has the responsibility of monitoring and keeping petitioners.
track of the period of time left to file an appeal. He cannot escape from
the rigid observance of this rule which is jurisdictional and cannot be SO ORDERED.
trifled with as "mere technicality" to suit the interest of a party. The
rule as to periods for filing appeal are to be observed religiously, for
it is well-settled in our jurisdiction that the right to appeal is a statutory
right and a party who seeks to avail of the right must comply with the
rules. "These rules, particularly the statutory requirement for
perfecting an appeal within the reglementary period laid down by law,
must be strictly followed as they are considered indispensable
interdictions against needless delays and for orderly discharge of
judicial business." Perfection of an appeal within the statutory
period is a jurisdictionalrequirement. If an appeal be not taken
within the reglementary period, the judgment becomes final and the
court loses all jurisdiction over

Although this Court had in a number of instances relaxed this rule

in order to serve substantial justice, there is no reason to do so in
this case. Quite beyond cavil, the delay incurred by petitioner's
counsel was simply inexcusable. As correctly cited by private
respondent, this Court has already held that "(a)n erroneous
application of the law or rules is not an excusable error."

At this juncture, we deem it useful to reiterate this Court's ruling in

Galima, for the guidance of members of the bar and bench alike, that
"the miscomputation by counsel of the appeal period will not arrest
the course of the same nor prevent the finality of the judgment. The
respondent Court cannot also be faulted for stating in its resolution 7
dated June 23, 1992 that the petition filed with it was prima facie
meritorious, only to dismiss it thereafter for being filed out of time.
Where no timely appeal was taken, the judgment becomes final, and
the legality of the allowance of the appeal may be raised at any stage
of the proceedings in the appellate court. Further, the respondent
Court was not precluded from dismissing the petition on the ground
that it was filed late, inasmuch as the recognition of the merit of the
petition did not carry with it any assumption or conclusion that it was
timely filed.

Under Section 1 (a) of Rule 50 of the Revised Rules of Court, the

Court of Appeals motu proprio or on motion of the appellee may
dismiss the appeal for, inter alia:
 9 of 22
Disclaimer: Read full text to further understand. Madami discussions ISSUE: WON administrative disciplinary cases, orders, directives or
kasi dun and medyo sabog. Haha. decisions of the Office of the Ombudsman may be appealed to the
Supreme Court? - NO.
FABIAN v. DESIERTO RULING:
FACTS: Section 27 of Republic Act No. 6770 cannot validly authorize an
Petitioner Teresita G. Fabian was the major stockholder and appeal to this Court from decisions of the Office of the
president of PROMAT Construction Development Corporation Ombudsman in administrative disciplinary cases. It consequently
(PROMAT) which was engaged in the construction business. Private violates the proscription in Section 30, Article VI of the Constitution
respondent Nestor V. Agustin was the incumbent District Engineer against a law which increases the appellate jurisdiction of this Court.
of the First Metro Manila Engineering District (FMED) when he No countervailing argument has been cogently presented to justify
allegedly committed the offenses for which he was administratively such disregard of the constitutional prohibition which, as correctly
charged in the Office of the Ombudsman. explained in First Lepanto Ceramics, Inc. vs. The Court of Appeals, et
PROMAT participated in the bidding for government construction al. was intended to give this Court a measure of control over cases
projects including those under the FMED, and private respondent, placed under its appellate jurisdiction. Otherwise, the indiscriminate
reportedly taking advantage of his official position, inveigled enactment of legislation enlarging its appellate jurisdiction would
petitioner into an amorous relationship. Their affair lasted for some unnecessarily burden the Court.
time, in the course of which private respondent gifted PROMAT with Appeals from judgments and final orders of quasi-judicial
public works contracts and interceded for it in problems concerning agencies are now required to be brought to the Court of Appeals
the same in his office. on a verified petition for review, under the requirements and
Later, misunderstandings and unpleasant incidents developed between conditions in Rule 43 which was precisely formulated and adopted
the parties and when petitioner tried to terminate their relationship, to provide for a uniform rule of appellate procedure for quasi-
private respondent refused and resisted her attempts to do so to the judicial agencies.
extent of employing acts of harassment, intimidation and threats. She WHEREFORE, Section 27 of Republic Act No. 6770 (Ombudsman
eventually filed the aforementioned administrative case against Act of 1989), together with Section 7, Rule III of Administrative Order
him in a letter-complaint dated July 24, 1995. No. 07 (Rules of Procedure of the Office of the Ombudsman), and any
The said complaint sought the dismissal of private respondent for other provision of law or issuance implementing the aforesaid Act and
violation of Section 19, Republic Act No. 6770 (Ombudsman Act of insofar as they provide for appeals in administrative disciplinary cases
1989) and Section 36 of Presidential Decree No. 807 (Civil Service from the Office of the Ombudsman to the Supreme Court, are hereby
Decree), with an ancillary prayer for his preventive suspension. declared INVALID and of no further force and effect.
For purposes of this case, the charges referred to may be subsumed The instant petition is hereby referred and transferred to the Court of
under the category of oppression, misconduct, and disgraceful or Appeals for final disposition, with said petition to be considered by
immoral conduct. the Court of Appeals pro hoc vice as a petition for review under Rule
Graft Investigator Eduardo R. Benitez [January 31, 1996]: Issued 43, without prejudice to its requiring the parties to submit such
a resolution finding private respondent guilty of grave misconduct and amended or supplemental pleadings and additional documents or
ordering his dismissal from the service with forfeiture of all benefits records as it may deem necessary and proper.
under the law. His resolution bore the approval of Director SO ORDERED.
Napoleon Baldrias and Assistant Ombudsman Abelardo
Aportadera of their office.
Respondent Ombudsman Desierto [February 26, 1996]: Approved
the aforesaid resolution with modifications, by finding private
respondent guilty of misconduct and meting out the penalty of
suspension without pay for one year.
After private respondent moved for reconsideration, respondent
Ombudsman discovered that the former's new counsel had been his
"classmate and close associate" hence he inhibited himself.
The case was transferred to respondent Deputy Ombudsman Jesus
F. Guerrero.
Respondent Deputy Ombudsman Guerrero [Joint Order of June
18, 1997]: Set aside the February 26, 1997 Order of respondent
Ombudsman and exonerated private respondent from the
administrative charges.
PETITIONER:
In the present appeal, petitioner argues that Section 27 of Republic
Act No. 6770 (Ombudsman Act of 1989) pertinently provides that —
In all administrative disciplinary cases, orders, directives or decisions
of the Office of the Ombudsman may be appealed to the Supreme
Court by filing a petition for certiorari within ten (10) days from
receipt of the written notice of the order, directive or decision or denial
of the motion for reconsideration in accordance with Rule 45 of the
Rules of Court.
RESPONDENTS:
That the Office of the Ombudsman is empowered by the Constitution
and the law to promulgate its own rules of procedure.

[G.R. No. 118141. September 5, 1997]
LEONILA GARCIA-RUEDA, Petitioner, v. WILFREDO L.
PASCASIO, RAUL R. ARNAU, ABELARDO L. APORTADERA
JR., Honorable CONDRADO M. VASQUEZ, all of the Office of
the Ombudsman; JESUS F. GUERRERO, PORFIRIO
MACARAEG, and GREGORIO A. ARIZALA, all of the Office
of the City Prosecutor, Manila, Respondents.
FACTS: Florencio V. Rueda, husband of petitioner Leonila
Garcia-Rueda, underwent surgical operation at the UST hospital
for the removal of a stone blocking his ureter. He was attended by Dr.
Domingo Antonio, Jr. who was the surgeon, while Dr. Erlinda
Balatbat-Reyes was the anaesthesiologist. Six hours after the
surgery, however, Florencio died of complications of unknown
cause, according to officials of the UST Hospital.2
Not satisfied with the findings of the hospital, petitioner requested
the National Bureau of Investigation (NBI) to conduct an autopsy
on her husbands body.
Consequently, the NBI ruled that Florencios death was due to lack
of care by the attending physician in administering anaesthesia.
Pursuant to its findings, the NBI recommended that Dr. Domingo
Antonio and Dr. Erlinda Balatbat-Reyes be charged for Homicide
through Reckless Imprudence before the Office of the City
Prosecutor.
The case was initially assigned to Prosecutor Antonio M. Israel, who
had to inhibit himself because he was related to the counsel of one of
the doctors. As a result, the case was re-raffled to Prosecutor Norberto
G. Leono who was, however, disqualified on motion of the petitioner
since he disregarded prevailing laws and jurisprudence regarding
preliminary investigation.
The case was then referred to Prosecutor Ramon O. Carisma, who
issued a resolution recommending that only Dr. Reyes be held
criminally liable and that the complaint against Dr. Antonio be
dismissed.
The case took another perplexing turn when Assistant City Prosecutor
Josefina Santos Sioson, in the interest of justice and peace of mind of
the parties, recommended that the case be re-raffled on the ground that
Prosecutor Carisma was partial to the petitioner. Thus, the case was
transferred to Prosecutor Leoncia R. Dimagiba, where a volte face
occurred again with the endorsement that the complaint against Dr.
Reyes be dismissed and instead, a corresponding information be
filed against Dr. Antonio.
Petitioner filed a motion for reconsideration, questioning the
findings of Prosecutor Dimagiba.
Pending the resolution of petitioners motion for reconsideration
regarding Prosecutor Dimagibas resolution, the investigative
pingpong continued when the case was again assigned to another
prosecutor, Eudoxia T. Gualberto, who recommended that Dr.
Reyes be included in the criminal information of Homicide
through Reckless Imprudence.
While the recommendation of Prosecutor Gualberto was pending, the
case was transferred to Senior State Prosecutor Gregorio A.
Arizala, who resolved to exonerate Dr. Reyes from any
wrongdoing, a resolution which was approved by both City
Prosecutor Porfirio G. Macaraeg and City Prosecutor Jesus F.
Guerrero.
Aggrieved, petitioner filed graft charges specifically for violation
of Section 3(e) of Republic Act No. 3019 3 against Prosecutors
Guerrero, Macaraeg, and Arizala for manifest partiality in favor of
Dr. Reyes before the Office of the Ombudsman.
Ombudsman[July 11, 1994]: issued the assailed resolution
dismissing the complaint for lack of evidence.
In fine, petitioner assails the exercise of the discretionary power of
the Ombudsman to review the recommendations of the
government prosecutors and to approve and disapprove the same.
10 of 22
Petitioner faults the Ombudsman for, allegedly in grave abuse of
discretion, refusing to find that there exists probable cause to hold
public respondent City Prosecutors liable for violation of Section
3(e) of R.A. No. 3019.
ISSUE: WON Ombudsman acted with grave abuse of discretion
in dismissing the complaint against the Prosecutors
RULING: NO!
Preliminarily, the powers and functions of the Ombudsman have
generally been categorized into the following: investigatory powers,
prosecutory power, public assistance function, authority to inquire and
obtain information, and function to adopt, institute and implement
preventive measures.
As protector of the people, the Office of the Ombudsman has the
power, function and duty to act promptly on complaints filed in any
form or manner against public officials and to investigate any act or
omission of any public official when such act or omission appears to
be illegal, unjust, improper or inefficient. 5
While the Ombudsman has the full discretion to determine whether or
not a criminal case should be filed, this Court is not precluded from
reviewing the Ombudsmans action when there is an abuse of
discretion, in which case Rule 65 of the Rules of Court may
exceptionally be invoked pursuant to Section I, Article VIII of the
1987 Constitution. 6
In this regard, grave abuse of discretion has been defined as where a
power is exercised in an arbitrary or despotic manner by reason of
passion or personal hostility so patent and gross as to amount to
evasion of positive duty or virtual refusal to perform a duty enjoined
by, or in contemplation of law.
From a procedural standpoint, it is certainly odd why the successive
transfers from one prosecutor to another were not sufficiently
explained in the Resolution of the Ombudsman. Being the proper
investigating authority with respect to misfeasance, non-feasance and
malfeasance of public officials, the Ombudsman should have been
more vigilant and assiduous in determining the reasons behind the
buckpassing to ensure that no irregularity took place.
Whether such transfers were due to any outside pressure or ulterior
motive is a matter of evidence. One would have expected the
Ombudsman, however, to inquire into what could hardly qualify as
standard operating procedure, given the surrounding circumstances of
the case.
While it is true that a preliminary investigation is essentially
inquisitorial, and is often the only means to discover who may be
charged with a crime, its function is merely to determine the existence
of probable cause. 8 Probable cause has been defined as the existence
of such fact and circumstances as would excite the belief, in a
reasonable mind, acting on the facts within the knowledge of the
prosecution, that the person charged was guilty of the crime for which
he was prosecuted.9chanroblesvirtuallawlibrary
Probable cause is a reasonable ground of presumption that a matter
is, or may be, well founded, such a state of facts in the mind of the
prosecutor as would lead a person of ordinary caution and prudence to
believe, or entertain an honest or strong suspicion, that a thing is so.
The term does not mean actual and positive cause nor does it import
absolute certainty. It is merely based on opinion and reasonable belief.
Thus, a finding of probable cause does not require an inquiry into
whether there is sufficient evidence to procure a conviction. It is
enough that it is believed that the act or omission complained of
constitutes the offense charged. Precisely, there is a trial for the
reception of evidence of the prosecution in support of the charge
In the instant case, no less than the NBI pronounced after conducting
an autopsy that there was indeed negligence on the part of the
attending physicians in administering the anaesthesia. 11 The fact of
want of competence or diligence is evidentiary in nature, the veracity
of which can best be passed upon after a full-blown trial for it is
virtually impossible to ascertain the merits of a medical negligence
case without extensive investigation, research, evaluation and
 11 of 22
consultations with medical experts. Clearly, the City Prosecutors are 3. The public officer acted with manifest partiality, evident bad faith
not in a competent position to pass judgment on such a technical or gross, inexcusable negligence; and
matter, especially when there are conflicting evidence and findings. 4. His action caused undue injury to the Government or any private
The bases of a partys accusation and defenses are better ventilated at party, or gave any party any unwarranted benefit, advantage or
the trial proper than at the preliminary investigation. preference to such parties. 20chanroblesvirtuallawlibrary
A word on medical malpractice or negligence cases. Why did the complainant, petitioner in instant case, elect to charge
In its simplest terms, the type of lawsuit which has been called medical respondents under the above law?
malpractice or, more appropriately, medical negligence, is that type of While a party who feels himself aggrieved is at liberty to choose the
claim which a victim has available to him or her to redress a wrong appropriate weapon from the armory, it is with no little surprise that
committed by a medical professional which has caused bodily harm. this Court views the choice made by the complainant widow.
In order to successfully pursue such a claim, a patient must prove that To our mind, the better and more logical remedy under the
a health care provider, in most cases a physician, either failed to do circumstances would have been to appeal the resolution of the City
something which a reasonably prudent health care provider would Prosecutors dismissing the criminal complaint to the Secretary of
have done, or that he or she did something that a reasonably prudent Justice under the Department of Justices Order No. 223, 21 otherwise
provider would not have done; and that that failure or action caused known as the 1993 Revised Rules on Appeals From Resolutions In
injury to the patient.12chanroblesvirtuallawlibrary Preliminary Investigations/Reinvestigations, as amended by
Hence, there are four elements involved in medical negligence Department Order No. 359, Section 1 of which provides:
cases: duty, breach, injury and proximate causation. Section 1. What May Be Appealed. - Only resolutions of the Chief
Evidently, when the victim employed the services of Dr. Antonio and State Prosecutor/Regional State Prosecutor/Provincial or City
Dr. Reyes, a physician-patient relationship was created. In accepting Prosecutor dismissing a criminal complaint may be the subject of an
the case, Dr. Antonio and Dr. Reyes in effect represented that, having appeal to the Secretary of Justice except as otherwise provided in
the needed training and skill possessed by physicians and surgeons Section 4 hereof.
practicing in the same field, they will employ such training, care and What action may the Secretary of Justice take on the appeal? Section
skill in the treatment of their patients.13 They have a duty to use at 9 of Order No. 223 states: The Secretary of Justice may reverse,
least the same level of care that any other reasonably competent affirm or modify the appealed resolution. On the other hand, He
doctor would use to treat a condition under the same may motu proprio or on motion of the appellee, dismiss outright
circumstances. The breach of these professional duties of skill and the appeal on specified grounds.
care, or their improper performance, by a physician surgeon
whereby the patient is injured in body or in health, constitutes In exercising his discretion under the circumstances, the
actionable malpractice.14 Consequently, in the event that any injury Ombudsman acted within his power and authority in dismissing
results to the patient from want of due care or skill during the the complaint against the Prosecutors and this Court will not
operation, the surgeons may be held answerable in damages for interfere with the same.
negligence. PETITION DISMISSED.
Moreover, in malpractice or negligence cases involving the
administration of anaesthesia, the necessity of expert testimony and
the availability of the charge of res ipsa loquitur to the plaintiff, have
been applied in actions against anaesthesiologists to hold the
defendant liable for the death or injury of a patient under excessive or
improper anaesthesia.16 Essentially, it requires two-pronged evidence:
evidence as to the recognized standards of the medical community in
the particular kind of case, and a showing that the physician in
question negligently departed from this standard in his treatment.17
Another element in medical negligence cases is causation which is
divided into two inquiries: whether the doctors actions in fact caused
the harm to the patient and whether these were the proximate cause of
the patients injury.18 Indeed here, a causal connection is discernible
from the occurrence of the victims death after the negligent act of
the anaesthesiologist in administering the anesthesia, a fact which,
if confirmed, should warrant the filing of the appropriate criminal
case.
To be sure, the allegation of negligence is not entirely baseless.
Moreover, the NBI deduced that the attending surgeons did not
conduct the necessary interview of the patient prior to the operation.
It appears that the cause of the death of the victim could have been
averted had the proper drug been applied to cope with the symptoms
of malignant hyperthermia. Also, we cannot ignore the fact that an
antidote was readily available to counteract whatever deleterious
effect the anaesthesia might produce. 19 Why these precautionary
measures were disregarded must be sufficiently explained.
The City Prosecutors were charged with violating Section 3(e) of the
Anti-Graft and Corrupt Practices Act which requires the following
facts:
1. The accused is a public officer discharging administrative or official
functions or private persons charged in conspiracy with them;
2. The public officer committed the prohibited act during the
performance of his official duty or in relation to his public position;

CASES NOT COVERED
G.R. No. 130866 September 16, 1998
ST. MARTIN FUNERAL HOME, petitioner,
vs.
NATIONAL LABOR RELATIONS COMMISSION and
BIENVENIDO ARICAYOS, respondents
REGALADO, J.:
FACTS:
Respondent was dismissed by St. Martin Funeral Homes for
misappropriating funds worth Php 38,000 which was supposed to be
taxes paid to the Bureau of Internal Revenue. Alleging that the
dismissal was illegal, respondent filed a case against St. Martin
Funeral Homes in the National Labor Relations Commission.
Petitioner claims that private respondent was not its employee but only
the uncle of Amelita Malabed, the owner of petitioner St. Martin's
Funeral Home.
Labor Arbiter declared that no employer-employee relationship
existed between the parties and, therefore, his office had no
jurisdiction over the case.
NLRC rendered a resolution setting aside the questioned decision and
remanding the case to the labor arbiter for immediate appropriate
proceedings.
Petitioners appealed to the Supreme Court alleging that the NLRC
committed grave abuse of discretion.
Issue: Whether or not the petitioner’s appeal/petition for certiorari
was properly filed in the Supreme Court.
Held: Yes, this case was an exception
On May 1, 1974, P.D. No. 442 enacted the Labor Code of the
Philippines, Created and regulated therein is the present NLRC which
was attached to the Department of Labor and Employment for
program and policy coordination only. thereof also granted an
aggrieved party the remedy of appeal from the decision of the NLRC
to the Secretary of Labor, but P.D. No. 1391 subsequently amended
said provision and abolished such appeals. No appellate review has
since then been provided for.
When the issue was raised in an early case on the argument that this
Court has no jurisdiction to review the decisions of the NLRC, and
formerly of the Secretary of Labor, since there is no legal provision
for appellate review thereof,
Contrarily, however, specifically added to and included among the
quasi-judicial agencies over which the Court of Appeals shall have
exclusive appellate jurisdiction are the Securities and Exchange
Commission, the Social Security Commission, the Employees
Compensation Commission and the Civil Service Commission.
This, then, brings us to a somewhat perplexing impassè, both in point
of purpose and terminology. As earlier explained, our mode of judicial
review over decisions of the NLRC has for some time now been
understood to be by a petition for certiorari under Rule 65 of the Rules
of Court. This is, of course, a special original action limited to the
resolution of jurisdictional issues, that is, lack or excess of jurisdiction
and, in almost all cases that have been brought to us, grave abuse of
discretion amounting to lack of jurisdiction.
It will, however, be noted that paragraph (3), Section 9 of B.P. No.
129 now grants exclusive appellate jurisdiction to the Court of
Appeals over all final adjudications of the Regional Trial Courts and
the quasi-judicial agencies generally or specifically referred to therein
except, among others, "those falling within the appellate jurisdiction
of the Supreme Court in accordance with . . . the Labor Code of the
Philippines under Presidential Decree No. 442, as amended, . . . ." This
would necessarily contradict what has been ruled and said all along
that appeal does not lie from decisions of the NLRC. 17 Yet, under
such excepting clause literally construed, the appeal from the NLRC
cannot be brought to the Court of Appeals, but to this Court by
necessary implication.
12 of 22
The same exceptive clause further confuses the situation by declaring
that the Court of Appeals has no appellate jurisdiction over decisions
falling within the appellate jurisdiction of the Supreme Court in
accordance with the Constitution, the provisions of B.P. No. 129, and
those specified cases in Section 17 of the Judiciary Act of 1948. These
cases can, of course, be properly excluded from the exclusive appellate
jurisdiction of the Court of Appeals. However, because of the
aforementioned amendment by transposition, also supposedly
excluded are cases falling within the appellate jurisdiction of the
Supreme Court in accordance with the Labor Code. This is illogical
and impracticable, and Congress could not have intended that
procedural gaffe, since there are no cases in the Labor Code the
decisions, resolutions, orders or awards wherein are within the
appellate jurisdiction of the Supreme Court or of any other court for
that matter.
The Court is, therefore, of the considered opinion that ever since
appeals from the NLRC to the Supreme Court were eliminated, the
legislative intendment was that the special civil action of certiorari was
and still is the proper vehicle for judicial review of decisions of the
NLRC. The use of the word "appeal" in relation thereto and in the
instances we have noted could have been a lapsus plumae because
appeals by certiorari and the original action for certiorari are both
modes of judicial review addressed to the appellate courts. The
important distinction between them, however, and with which the
Court is particularly concerned here is that the special civil action of
certiorari is within the concurrent original jurisdiction of this Court
and the Court of Appeals; whereas to indulge in the assumption that
appeals by certiorari to the Supreme Court are allowed would not
subserve, but would subvert, the intention of Congress
Therefore, all references in the amended Section 9 of B.P. No. 129 to
supposed appeals from the NLRC to the Supreme Court are
interpreted and hereby declared to mean and refer to petitions for
certiorari under Rule 65. Consequently, all such petitions should hence
forth be initially filed in the Court of Appeals in strict observance of
the doctrine on the hierarchy of courts as the appropriate forum for the
relief desired.
The Supreme Court took it upon themselves to review such decisions
from the NLRC by virtue of their role under the check and balance
system and the perceived intention of the legislative body who enacted
the new rule.
The petitioners rightfully filed a motion for reconsideration, but the
appeal or certiorari should have been filed initially to the Court of
Appeals as consistent with the principle of hierarchy of courts. As
such, the Supreme Court remanded the case to the Court of Appeals.

G.R. No. 156081 October 19, 2005
FERDINAND T. SANTOS, ROBERT JOHN SOBREPEÑA, and
RAFAEL PEREZ DE TAGLE, JR., Petitioners,
vs.
WILSON GO, Respondent.
DECISION
QUISUMBING, J.:
For our review on certiorari is the Decision1 dated September 2, 2002
of the Court of Appeals in CA-G.R. SP No. 67388, as well as its
Resolution2 dated November 12, 2002, denying petitioners’ motion
for reconsideration. The appellate court dismissed the petition for
review under Rule 433 of the 1997 Rules of Civil Procedure for being
an erroneous mode of appeal from the Resolution4 of the Secretary of
Justice. The Secretary had modified the Resolution5 of the Office of
the City Prosecutor of Pasig City in I.S. No. PSG 00-04-10205 and
directed the latter to file an information for estafa against petitioners.
FACTS:
The petitioners are corporate directors and officers of Fil-Estate
Properties, Inc. (FEPI).
On October 17, 1995, FEPI allegedly entered into a Project Agreement
with Manila Southcoast Development Corporation (MSDC), whereby
FEPI undertook to develop several parcels of land in Nasugbu,
Batangas allegedly owned by MSDC. Under the terms of the
Agreement, FEPI was to convert an approximate area of 1,269
hectares into a first-class residential, commercial, resort, leisure, and
recreational complex. The said Project Agreement clothed FEPI with
authority to market and sell the subdivision lots to the public.
Respondent Wilson Go offered to buy Lot 17, Block 38 from FEPI.
Lot 17 measured approximately 1,079 square meters and the purchase
price agreed upon was ₱4,304,000. The Contract to Sell signed by the
parties was the standard, printed form prepared by FEPI. Under the
terms of said contract of adhesion, Go agreed to pay a downpayment
of ₱1,291,200 and a last installment of ₱840,000 on the balance due
on April 7, 1997. In turn, FEPI would execute a final Deed of Sale in
favor of Go and deliver to Go the owner’s duplicate copy of Transfer
Certificate of Title (TCT) upon complete payment of the purchase
price.
Go fully complied with the terms of the Contract. FEPI, however,
failed to develop the property. Neither did it release the TCT to Go.
The latter demanded fulfillment of the terms and conditions of their
agreement. FEPI balked. In several letters to its clients, including
respondent Go, FEPI explained that the project was temporarily halted
due to some claimants who opposed FEPI’s application for exclusion
of the subject properties from the coverage of the Comprehensive
Agrarian Reform Law (CARL). Further, FEPI’s hands were tied by a
cease and desist order issued by the Department of Agrarian Reform
(DAR). Said order was the subject of several appeals now pending
before this Court. FEPI assured its clients that it had no intention to
abandon the project and would resume developing the properties once
the disputes had been settled in its favor.
Go was neither satisfied nor assured by FEPI’s statements and he
made several demands upon FEPI to return his payment of the
purchase price in full. FEPI failed to heed his demands. Go then filed
a complaint before the Housing and Land Use Regulatory Board
(HLURB).
He likewise filed a separate Complaint-Affidavit for estafa before the
Office of the City Prosecutor of Pasig City against petitioners as
officers of FEPI.
The complaint for estafa averred that the Contract to Sell categorically
stated that FEPI was the owner of the property. However, before the
HLURB, FEPI denied ownership of the realty. Go alleged that the
petitioners committed estafa when they offered the subject property
for sale since they knew fully well that the development of the
property and issuance of its corresponding title were impossible to
accomplish, as the ownership and title thereto had not yet been
13 of 22
acquired and registered under the name of FEPI at the time of sale.
Thus, FEPI had grossly misrepresented itself as owner at the time of
the sale of the subject property to him and when it received from him
the full payment, despite being aware that it was not yet the owner.
PETITIONER’S ARGUMENT:
Petitioners challenged the jurisdiction of the City Prosecutor of
Pasig City to conduct the preliminary investigation on the ground
that the complainant was not from Pasig City, the contract was
not executed nor were the payments made in Pasig City.
petitioners, none of the elements of estafa under Articles 316 and 318
were present. They averred that FEPI was not the owner of the project
but the developer with authority to sell under a joint venture with
MSDC, who is the real owner. They further denied that FEPI ever
made any written nor oral representation to Go that it is the owner,
pointing out that Go failed to positively identify who made such
misrepresentation to him nor did Go say where the misrepresentation
was made. According to petitioner, there being neither deceit nor
misrepresentation, there could be no damage nor prejudice to
respondent, and no probable cause exists to indict the petitioners.
Petitioners likewise insisted that they could not be held criminally
liable for abiding with a cease-and-desist order of the DAR.
RESPONDENT ARGUE:
In his reply, Go stressed that the City Prosecutor of Pasig City had
jurisdiction over the case. He argued that the Contract to Sell
specifically provided that payment be made at FEPI’s office at
Pasig City and the demand letters bore the Pasig City address. He
averred that FEPI could not disclaim ownership of the project since
the contract described FEPI as owner without mentioning MSDC.
Additionally, the acts executed by FEPI appearing in the contract were
the acts of an owner and not a mere developer.
City Prosecutor: dismissed the complaint for estafa.
The City Prosecutor found no misrepresentation stating that, (1) the
Contract to Sell did not mention FEPI as the owner of the property;
(2) since no Deed of Sale had been executed by the parties, then
petitioners are not yet bound to deliver the certificate of title since
under both the Contract to Sell and Section 259 of Presidential Decree
No. 957,10 FEPI was bound to deliver the certificate of title only upon
the execution of a contract of sale; and (3) the City Prosecutor
disavowed any jurisdiction since it is the HLURB, which has
exclusive jurisdiction over disputes and controversies involving the
sale of lots in commercial subdivision including claims involving
refunds under P.D. No. 1344.11
Go appealed the City Prosecutor’s Resolution to the Department of
Justice (DOJ)
DOJ: reversed the City Prosecutor’s findings.
The DOJ found that there was a prima facie basis to hold petitioners
liable for estafa under Article 316 (1) of the Revised Penal Code,
pointing out that the elements of the offense were present as evidenced
by the terms of the Contract to Sell. It ruled that under the Contract,
the petitioners sold the property to Go despite full knowledge that
FEPI was not its owner. The DOJ noted that petitioners did not deny
the due execution of the contract and had accepted payments of the
purchase price as evidenced by the receipts. Thus, FEPI was
exercising acts of ownership when it conveyed the property to
respondent Go. Acts to convey, sell, encumber or mortgage real
property are acts of strict ownership. Furthermore, nowhere did FEPI
mention that it had a joint venture with MSDC, the alleged true owner
of the property. Clearly, petitioners committed acts of
misrepresentation when FEPI denied ownership after the perfection of
the contract and the payment of the purchase price. Since a corporation
can only act through its agents or officers, then all the participants in
a fraudulent transaction are deemed liable.
Accordingly, an Information for estafa was filed against petitioners
and Federico Campos and Polo Pantaleon before the MTC of Pasig
City. However, the arraignment was deferred since Campos and

Pantaleon filed a Motion for Judicial Determination of Probable
Cause.
RTC: Granted.
Meanwhile petitioners herein filed with the Court of Appeals, a
petition for review docketed as CA-G.R. SP No. 67388. Accordingly,
the trial court deferred the arraignment of petitioners until the petition
for review was resolved.
CA: the Petition, HAVING NO MERIT, is hereby DENIED DUE
COURSE AND ORDERED DISMISSED, with cost to Petitioners.
The appellate court opined that a petition for review pursuant to
Rule 43 cannot be availed of as a mode of appeal from the ruling
of the Secretary of Justice because the Rule applies only to
agencies or officers exercising quasi-judicial functions. The
decision to file an information or not is an executive and not a
quasi-judicial function.
ISSUE:
I. w/n a petition for review under Rule 43 is a proper mode of
appeal from a resolution of the Secretary of Justice directing
the prosecutor to file an information in a criminal case. –
NO.
II.
Whether the conduct of preliminary investigation by the
prosecutor is a quasi-judicial function. – NO.
Petitioners submit that there is jurisprudence to the effect that
Rule 43 covers rulings of the Secretary of Justice since during
preliminary investigations, the DOJ’s decisions are deemed as
"awards, judgments, final orders or resolutions of or authorized
by any quasi-judicial agency in the exercise of its quasi-judicial
functions", and its prosecutorial offices are considered quasi-
judicial bodies/officers performing quasi-judicial functions.
Respondent counters that the herein petition is a dilatory tactic
and emphasizes that "injunction will not lie to restrain criminal
prosecution."
I. Rule 43 of the 1997 Rules of Civil Procedure clearly
shows that it governs appeals to the Court of Appeals
from decisions and final orders or resolutions of the
Court of Tax Appeals or quasi-judicial agencies in the
exercise of their quasi-judicial functions. The
Department of Justice is NOT among the agencies16
enumerated in Section 1 of Rule 43. Inclusio unius est
exclusio alterius.
II. We cannot agree with petitioners’ submission that a
preliminary investigation is a quasi-judicial proceeding,
and that the DOJ is a quasi-judicial agency exercising a
quasi-judicial function when it reviews the findings of a
public prosecutor regarding the presence of probable
cause.
In Bautista v. Court of Appeals,17 we held that a preliminary
investigation is not a quasi-judicial proceeding, thus:
[t]he prosecutor in a preliminary investigation does not determine the
guilt or innocence of the accused. He does not exercise adjudication
nor rule-making functions. Preliminary investigation is merely
inquisitorial, and is often the only means of discovering the persons
who may be reasonably charged with a crime and to enable the fiscal
to prepare his complaint or information. It is not a trial of the case on
the merits and has no purpose except that of determining whether a
crime has been committed and whether there is probable cause to
believe that the accused is guilty thereof. While the fiscal makes that
determination, he cannot be said to be acting as a quasi-court, for it is
the courts, ultimately, that pass judgment on the accused, not the
fiscal.18
14 of 22
Though some cases19 describe the public prosecutor’s power to
conduct a preliminary investigation as quasi-judicial in nature, this is
true only to the extent that, like quasi-judicial bodies, the prosecutor
is an officer of the executive department exercising powers akin to
those of a court, and the similarity ends at this point.20 A quasi-judicial
body is as an organ of government other than a court and other than a
legislature which affects the rights of private parties through either
adjudication or rule-making.21 A quasi-judicial agency performs
adjudicatory functions such that its awards, determine the rights of
parties, and their decisions have the same effect as judgments of a
court. Such is not the case when a public prosecutor conducts a
preliminary investigation to determine probable cause to file an
information against a person charged with a criminal offense, or when
the Secretary of Justice is reviewing the former’s order or resolutions.
Since the DOJ is not a quasi-judicial body and it is not one of those
agencies whose decisions, orders or resolutions are appealable to
the Court of Appeals under Rule 43, the resolution of the
Secretary of Justice finding probable cause to indict petitioners
for estafa is, therefore, not appealable to the Court of Appeals via
a petition for review under Rule 43. Accordingly, the Court of
Appeals correctly dismissed petitioners’ petition for review.
Notwithstanding that theirs is a petition for review properly under
Rule 45, petitioners want us to reverse the findings of probable cause
by the DOJ after their petition for review under Rule 43 from the court
a quo failed. This much we are not inclined to do, for we have no basis
to review the DOJ’s factual findings and its determination of probable
cause.
First, Rule 45 is explicit. This mode of appeal to the Supreme Court
covers the judgments, orders or resolutions of the Court of Appeals,
the Sandiganbayan, the Regional Trial Court or any authorized court
and should raise only pure question of law. The Department of Justice
is not a court.
Also, in this petition are raised factual matters for our resolution, e.g.
the ownership of the subject property, the existence of deceit
committed by petitioners on respondent, and petitioners’ knowledge
or direct participation in the Contract to Sell. These are factual issues
and are outside the scope of a petition for review on certiorari. The
cited questions require evaluation and examination of evidence, which
is the province of a full-blown trial on the merits.
Second, courts cannot interfere with the discretion of the public
prosecutor in evaluating the offense charged. He may dismiss the
complaint forthwith, if he finds the charge insufficient in form or
substance, or without any ground. Or, he may proceed with the
investigation if the complaint in his view is sufficient and in proper
form.22 The decision whether to dismiss a complaint or not, is
dependent upon the sound discretion of the prosecuting fiscal and,
ultimately, that of the Secretary of Justice.23 Findings of the Secretary
of Justice are not subject to review unless made with grave abuse of
discretion.24 In this case, petitioners have not shown sufficient nor
convincing reason for us to deviate from prevailing jurisprudence.
WHEREFORE, the instant petition is DENIED for lack of merit.
The Decision and the Resolution of the Court of Appeals in CA-G.R.
SP No. 67388, dated September 2, 2002 and November 12, 2002,
respectively, are AFFIRMED.
Costs against petitioners.
SO ORDERED.

HON. CARLOS O. FORTICH, PROVINCIAL GOVERNOR OF
BUKIDNON, HON. REY B. BAULA, MUNICIPAL MAYOR OF
SUMILAO, BUKIDNON, NQSR MANAGEMENT AND
DEVELOPMENT CORPORATION, Petitioners, v. HON.
RENATO C. CORONA, DEPUTY EXECUTIVE SECRETARY,
HON. ERNESTO D. GARILAO, SECRETARY OF THE
DEPARTMENT OF AGRARIAN REFORM, Respondents.
OVERVIEW:
The strikers protested the March 29, 1996 Decision1 of the Office of
the President (OP), issued through then Executive Secretary Ruben D.
Torres in OP Case No. 96-C-6424, which approved the conversion of
a one hundred forty-four (144)-hectare land from agricultural to agro-
industrial/institutional area. This led the Office of the President,
through then Deputy Executive Secretary Renato C. Corona, to issue
the so-called Win-Win Resolution2 on November 7, 1997,
substantially modifying its earlier Decision after it had already
become final and executory. The said Resolution modified the
approval of the land conversion to agro-industrial area only to the
extent of forty-four (44) hectares, and ordered the remaining one
hundred (100) hectares to be distributed to qualified farmer-
beneficiaries.
The above-named petitioners cried foul. They have come to this Court
urging us to annul and set aside the Win-Win Resolution and to enjoin
respondent Secretary Ernesto D. Garilao of the Department of
Agrarian Reform from implementing the said Resolution.
FACTS:
1. This case involves a 144-hectare land located at San Vicente,
Sumilao, Bukidnon, owned by the Norberto Quisumbing, Sr.
Management and Development Corporation (NQSRMDC), one of the
petitioners.
2. In 1984, the land was leased as a pineapple plantation to the
Philippine Packing Corporation, now Del Monte Philippines, Inc.
(DMPI), a multinational corporation, for a period of ten (10) years
under the Crop Producer and Growers Agreement duly annotated in
the certificate of title. The lease expired in April, 1994.
3. In October, 1991, during the existence of the lease, the Department
of Agrarian Reform (DAR) placed the entire 144-hectare property
under compulsory acquisition and assessed the land value at P2.38
million.
4. NQSRMDC resisted the DARs action. In February, 1992, it sought
and was granted by the DARAB, through its Provincial Agrarian
Reform Adjudicator (PARAD) in DARAB Case No. X-576, a writ of
prohibition with preliminary injunction which ordered the DAR
Region X Director, the Provincial Agrarian Reform Officer (PARO)
of Bukidnon, the Municipal Agrarian Reform Office (MARO) of
Sumilao, Bukidnon, the Land Bank of the Philippines (Land Bank),
and their authorized representatives to desist from pursuing any
activity or activities concerning the subject land until further
orders.
5. Despite the DARAB order of March 31, 1992, the DAR Regional
Director issued a memorandum, dated May 21, 1992, directing the
Land Bank to open a trust account for P2.38 million in the name
of NQSRMDC and to conduct summary proceedings to determine
the just compensation of the subject property. NQSRMDC
objected to these moves and filed on June 9, 1992 an Omnibus Motion
to enforce the DARAB order of March 31, 1992 and to nullify the
summary proceedings undertaken by the DAR Regional Director and
Land Bank on the valuation of the subject property.
6. The DARAB, on October 22, 1992, acted favorably on the Omnibus
Motion by (a) ordering the DAR Regional Director and Land Bank to
seriously comply with the terms of the order dated March 31, 1992;
(b) nullifying the DAR Regional Directors memorandum, dated May
15 of 22
21, 1992, and the summary proceedings conducted pursuant thereto;
and (c) directing the Land Bank to return the claim folder of Petitioner
NQSRMDCs subject property to the DAR until further orders.6
7. The Land Bank complied with the DARAB order and cancelled the
trust account it opened in the name of petitioner NQSRMDC.
8. In the meantime, the Provincial Development Council (PDC) of
Bukidnon, headed by Governor Carlos O. Fortich, passed Resolution
No. 6,8 dated January 7, 1993, designating certain areas along
Bukidnon-Sayre Highway as part of the Bukidnon Agro-Industrial
Zones where the subject property is situated.
9. What happened thereafter is well-narrated in the OP (TORRES)
Decision of March 29, 1996, pertinent portions of which we quote:
Pursuant to Section 20 of R.A. No. 7160, otherwise known as the
Local Government Code, the Sangguniang Bayan of Sumilao,
Bukidnon, on March 4, 1993, enacted Ordinance No. 24 converting or
re-classifying 144 hectares of land in Bgy. San Vicente, said
Municipality, from agricultural to industrial/institutional with a view
of providing an opportunity to attract investors who can inject new
economic vitality, provide more jobs and raise the income of its
people.
Parenthetically, under said section, 4th to 5th class municipalities may
authorize the classification of five percent (5%) of their agricultural
land area and provide for the manner of their utilization or disposition.
On 12 October 1993, the Bukidnon Provincial Land Use Committee
approved the said Ordinance. Accordingly, on 11 December 1993, the
instant application for conversion was filed by Mr. Gaudencio Beduya
in behalf of NQSRMDC/BAIDA (Bukidnon Agro-Industrial
Development Association).
Expressing support for the proposed project, the Bukidnon Provincial
Board, on the basis of a Joint Committee Report submitted by its
Committee on Laws, Committee on Agrarian Reform and Socio-
Economic Committee approved, on 1 February 1994, the said
Ordinance now docketed as Resolution No. 94-95. The said industrial
area, as conceived by NQSRMDC (project proponent) is supposed to
have the following components:
1. The Development Academy of Mindanao
2. Bukidnon Agro-Industrial Park
3. Forest development
4. Support facilities
The said NQSRMDC Proposal was, per Certification dated January 4,
1995, adopted by the Department of Trade and Industry, Bukidnon
Provincial Office, as one of its flagship projects. The same was
likewise favorably recommended by the Provincial Development
Council of Bukidnon; the municipal, provincial and regional office of
the DAR; the Regional Office (Region X) of the DENR; the Executive
Director, signing By Authority of PAUL G. DOMINGUEZ, Office of
the President Mindanao; the Secretary of DILG; and Undersecretary
of DECS Wilfredo D. Clemente.
Notwithstanding the foregoing favorable recommendation,
however, on November 14, 1994, the DAR, thru Secretary
Garilao, invoking its powers to approve conversion of lands under
Section 65 of R.A. No. 6657, issued an Order denying the instant
application for the conversion of the subject land from
agricultural to agro-industrial and, instead, placed the same
under the compulsory coverage of CARP and directed the
distribution thereof to all qualified beneficiaries on the following
grounds:
1. The area is considered as a prime agricultural land with irrigation
facility;

2. The land has long been covered by a Notice of Compulsory
Acquisition (NCA);
3. The existing policy on withdrawal or lifting on areas covered by
NCA is not applicable;
4. There is no clear and tangible compensation package arrangements
for the beneficiaries;
5. The procedures on how the area was identified and reclassified for
agro-industrial project has no reference to Memo Circular No. 54,
Series of 1993, E.O. No. 72, Series of 1993, and E.O. No. 124, Series
of 1993.
A Motion for Reconsideration of the aforesaid Order was filed on
January 9, 1995 by applicant but the same was denied.
10. Thus, the DAR Secretary ordered the DAR Regional Director
to proceed with the compulsory acquisition and distribution of the
property.
11. Governor Carlos O. Fortich of Bukidnon appealed11 the order
of denial to the Office of the President and prayed for the
conversion/reclassification of the subject land as the same would
be more beneficial to the people of Bukidnon.
12. To prevent the enforcement of the DAR Secretarys order,
NQSRMDC, on June 29, 1995, filed with the Court of Appeals a
petition for certiorari, prohibition with preliminary injunction,12
docketed as CA-G.R. SP No. 37614.
13. Meanwhile, on July 25, 1995, the Honorable Paul G. Dominguez,
then Presidential Assistant for Mindanao, after conducting an
evaluation of the proposed project, sent a memorandum13 to the
President favorably endorsing the project with a recommendation that
the DAR Secretary reconsider his decision in denying the application
of the province for the conversion of the land.
14. Also, in a memorandum14 to the President dated August 23, 1995,
the Honorable Rafael Alunan III, then Secretary of the Department of
the Interior and Local Government (DILG), recommended the
conversion of the subject land to industrial/institutional use with a
request that the President hold the implementation of the DAR order
to distribute the land in question.
15. On October 23, 1995, the Court of Appeals, in CA-G.R. SP No.
37614, issued a Resolution15 ordering the parties to observe status quo
pending resolution of the petition. At the hearing held in said case on
October 5, 1995, the DAR, through the Solicitor General, manifested
before the said court that the DAR was merely in the processing stage
of the applications of farmers-claimants and has agreed to respect
status quo pending the resolution of the petition.
16. In resolving the appeal, the Office of the President, through
then Executive Secretary Ruben D. Torres, issued a Decision in
OP Case No. 96-C-6424, dated March 29, 1996, reversing the DAR
Secretarys decision, the pertinent portions of which read:
After a careful evaluation of the petition vis--vis the grounds upon
which the denial thereof by Secretary Garilao was based, we find that
the instant application for conversion by the Municipality of
Sumilao, Bukidnon is impressed with merit.
17.On May 20, 1996, DAR filed a motion for reconsideration of the
OP decision.
18 On September 11, 1996, in compliance with the OP decision of
March 29, 1996, NQSRMDC and the Department of Education,
Culture and Sports (DECS) executed a Memorandum of Agreement
whereby the former donated four (4) hectares from the subject land to
DECS for the establishment of the NQSR High School.
16 of 22
When NQSRMDC was about to transfer the title over the 4-hectare
donated to DECS, it discovered that the title over the subject property
was no longer in its name. It soon found out that during the
pendency of both the Petition for Certiorari, Prohibition, with
Preliminary Injunction it filed against DAR in the Court of
Appeals and the appeal to the President filed by Governor Carlos
O. Fortich, the DAR, without giving just compensation, caused the
cancellation of NQSRMDCs title on August 11, 1995 and had it
transferred in the name of the Republic of the Philippines under
TCT No. T-5026419 of the Registry of Deeds of Bukidnon.
Thereafter, on September 25, 1995, DAR caused the issuance of
Certificates of Land Ownership Award (CLOA) No. 00240227
and had it registered in the name of 137 farmer-beneficiaries
under TCT No. AT-353620 of the Registry of Deeds of Bukidnon.
19. Thus, on April 10, 1997, NQSRMDC filed a complaint21 with
the Regional Trial Court (RTC) of Malaybalay, Bukidnon
(Branch 9), docketed as Civil Case No. 2687-97, for annulment
and cancellation of title, damages and injunction against DAR and
141 others.
RTC- issued a Temporary Restraining Order on April 30, 199722 and
a Writ of Preliminary Injunction on May 19, 1997,23 restraining the
DAR and 141 others from entering, occupying and/or wresting from
NQSRMDC the possession of the subject land.
20. Meanwhile, on June 23, 1997, an Order24 was issued by then
Executive Secretary Ruben D. Torres denying DARs motion for
reconsideration for having been filed beyond the reglementary
period of fifteen (15) days. The said order further declared that the
March 29, 1996 OP decision had already become final and executory.
21. The DAR filed on July 11, 1997 a second motion for
reconsideration of the June 23, 1997 Order of the President.
22. On August 12, 1997, the said writ of preliminary injunction issued
by the RTC was challenged by some alleged farmers before the Court
of Appeals through a petition for certiorari and prohibition, docketed
as CA-G.R. SP No. 44905, praying for the lifting of the injunction and
for the issuance of a writ of prohibition from further trying the RTC
case.
25. On November 7, 1997, the Office of the President resolved the
strikers protest by issuing the so-called Win/Win Resolution
penned by then Deputy Executive Secretary Renato C. Corona,
the dispositive portion of which reads:
WHEREFORE, premises considered, the decision of the Office of the
President, through Executive Secretary Ruben Torres, dated March
29, 1996, is hereby MODIFIED as follows:
1. NQSRMDCs application for conversion is APPROVED
only with respect to the approximately forty-four (44) hectare
portion of the land adjacent to the highway, as recommended
by the Department of Agriculture.
2. The remaining approximately one hundred (100) hectares
traversed by an irrigation canal and found to be suitable for
agriculture shall be distributed to qualified farmer-
beneficiaries in accordance with RA 6657 or the
Comprehensive Agrarian Reform Law with a right of way to
said portion from the highway provided in the portion fronting
the highway. For this purpose, the DAR and other concerned
government agencies are directed to immediately conduct the
segregation survey of the area, valuation of the property and
generation of titles in the name of the identified farmer-
beneficiaries.
3. The Department of Agrarian Reform is hereby directed to
carefully and meticulously determine who among the
claimants are qualified farmer-beneficiaries.

4. The Department of Agrarian Reform is hereby further
directed to expedite payment of just compensation to
NQSRMDC for the portion of the land to be covered by the
CARP, including other lands previously surrendered by
NQSRMDC for CARP coverage.
5. The Philippine National Police is hereby directed to render
full assistance to the Department of Agrarian Reform in the
implementation of this Order.
We take note of the Memorandum in Intervention filed by 113 farmers
on October 10, 1997 without ruling on the propriety or merits thereof
since it is unnecessary to pass upon it at this time.
SO ORDERED.
A copy of the Win-Win Resolution was received by Governor
Carlos O. Fortich of Bukidnon, Mayor Rey B. Baula of Sumilao,
Bukidnon, and NQSRMDC on November 24, 199728 and, on
December 4, 1997, they filed the present petition for certiorari,
prohibition (under Rule 65 of the Revised Rules of Court) and
injunction with urgent prayer for a temporary restraining order
and/or writ of preliminary injunction (under Rule 58, ibid.),
against then Deputy Executive Secretary Renato C. Corona and
DAR Secretary Ernesto D. Garilao.
On December 12, 1997, a Motion For Leave To Intervene29 was filed
by alleged farmer-beneficiaries, through counsel, claiming that they
are real parties in interest as they were previously identified by
respondent DAR as agrarian reform beneficiaries on the 144-hectare
property subject of this case. The motion was vehemently opposed30
by the petitioners.
PETITIONER’S CONTENTION:
- In seeking the nullification of the Win-Win Resolution, the
petitioners claim that the Office of the President was prompted to issue
the said resolution after a very well-managed hunger strike led by fake
farmer-beneficiary Linda Ligmon succeeded in pressuring and/or
politically blackmailing the Office of the President to come up with
this purely political decision to appease the farmers, by reviving and
modifying the Decision of 29 March 1996 which has been declared
final and executory in an Order of 23 June 1997.
- Thus, petitioners further allege, respondent then Deputy Executive
Secretary Renato C. Corona committed grave abuse of discretion and
acted beyond his jurisdiction when he issued the questioned
Resolution of 7 November 1997.32
- They availed of this extraordinary writ of certiorari because
there is no other plain, speedy and adequate remedy in the
ordinary course of law.33 They never filed a motion for
reconsideration of the subject Resolution because (it) is patently
illegal or contrary to law and it would be a futile exercise to seek
a reconsideration.
RESPONDENT’S ARGUMENT:
(1) The proper remedy of petitioners should have been to file a petition
for review directly with the Court of Appeals in accordance with Rule
43 of the Revised Rules of Court;
(2) The petitioners failed to file a motion for reconsideration of the
assailed Win-Win Resolution before filing the present petition; and
(3) Petitioner NQSRMDC is guilty of forum-shopping.
ISSUE:
WON the proper remedy to annul and set aside the assailed resolution
is an original special civil action for certiorari under Rule 65. YES
COURT:
17 of 22
(1) Anent the first issue, in order to determine whether the recourse of
petitioners is proper or not, it is necessary to draw a line between an
error of judgment and an error of jurisdiction. An error of judgment
is one which the court may commit in the exercise of its jurisdiction,
and which error is reviewable only by an appeal. On the other hand,
an error of jurisdiction is one where the act complained of was
issued by the court, officer or a quasi-judicial body without or in
excess of jurisdiction, or with grave abuse of discretion which is
tantamount to lack or in excess of jurisdiction.36 This error is
correctable only by the extraordinary writ of certiorari.
It is true that under Rule 43, appeals from awards, judgments, final
orders or resolutions of any quasi-judicial agency exercising quasi-
judicial functions, including the Office of the President,39 may be
taken to the Court of Appeals by filing a verified petition for review40
within fifteen (15) days from notice of the said judgment, final order
or resolution,41 whether the appeal involves questions of fact, of law,
or mixed questions of fact and law.42
However, we hold that, in this particular case, the remedy prescribed
in Rule 43 is inapplicable considering that the present petition contains
an allegation that the challenged resolution is patently illegal43 and
was issued with grave abuse of discretion and beyond his (respondent
Secretary Renato C. Coronas) jurisdiction44 when said resolution
substantially modified the earlier OP Decision of March 29, 1996
which had long become final and executory. In other words, the
crucial issue raised here involves an error of jurisdiction, not an
error of judgment which is reviewable by an appeal under Rule
43. Thus, the appropriate remedy to annul and set aside the
assailed resolution is an original special civil action for certiorari
under Rule 65, as what the petitioners have correctly done. The
pertinent portion of Section 1 thereof provides:
SECTION 1. Petition for certiorari. When any tribunal, board or
officer exercising judicial or quasi-judicial functions has acted without
or in excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal, or
any plain, speedy, and adequate remedy in the ordinary course of law,
a person aggrieved thereby may file a verified petition in the proper
court, alleging the facts with certainty and praying that judgment be
rendered annulling or modifying the proceedings of such tribunal,
board or officer, and granting such incidental reliefs as law and justice
may require.
xxx.
The office of a writ of certiorari is restricted to truly extraordinary
cases cases in which the act of the lower court or quasi-judicial body
is wholly void.45
The aforequoted Section 1 of Rule 65 mandates that the person
aggrieved by the assailed illegal act may file a verified petition (for
certiorari) in the proper court. The proper court where the petition
must be filed is stated in Section 4 of the same Rule 65 which reads:
SEC. 4. Where petition filed.- The petition may be filed not later than
sixty (60) days from notice of the judgment, order or resolution sought
to be assailed in the Supreme Court or, if it relates to the acts or
omissions of a lower court or of a corporation, board, officer or person,
in the Regional Trial Court exercising jurisdiction over the territorial
area as defined by the Supreme Court. It may also be filed in the
Court of Appeals whether or not the same is in aid of its appellate
jurisdiction, or in the Sandiganbayan if it is in aid of its
jurisdiction. If it involves the acts or omissions of a quasi-judicial
agency, and unless otherwise provided by law or these Rules, the
petition shall be filed in and cognizable only by the Court of
Appeals. (4a)
Under the above-quoted Section 4, the Supreme Court, Court of
Appeals and Regional Trial Court have original concurrent
jurisdiction to issue a writ of certiorari,46 prohibition47 and

mandamus.48 But the jurisdiction of these three (3) courts are also
delineated in that, if the challenged act relates to acts or omissions of
a lower court or of a corporation, board, officer or person, the petition
must be filed with the Regional Trial Court which exercises
jurisdiction over the territorial area as defined by the Supreme Court.
And if it involves the act or omission of a quasi-judicial agency,
the petition shall be filed only with the Court of Appeals, unless
otherwise provided by law or the Rules of Court. We have clearly
discussed this matter of concurrence of jurisdiction in People vs.
Cuaresma, et. al.,49 through now Chief Justice Andres R. Narvasa,
thus:
x x x. This Courts original jurisdiction to issue writs of certiorari (as
well as prohibition, mandamus, quo warranto, habeas corpus and
injunction) is not exclusive. It is shared by this Court with Regional
Trial Courts (formerly Courts of First Instance), which may issue the
writ, enforceable in any part of their respective regions. It is also
shared by this Court, and by the Regional Trial Court, with the Court
of Appeals (formerly, Intermediate Appellate Court), although prior
to the effectivity of Batas Pambansa Bilang 129 on August 14, 1981,
the latters competence to issue the extraordinary writs was restricted
to those in aid of its appellate jurisdiction. This concurrence of
jurisdiction is not, however, to be taken as according to parties seeking
any of the writs an absolute, unrestrained freedom of choice of the
court to which application therefor will be directed. There is after all
a hierarchy of courts. That hierarchy is determinative of the venue of
appeals, and should also serve as a general determinant of the
appropriate forum for petitions for the extraordinary writs. A
becoming regard for that judicial hierarchy most certainly indicates
that petitions for the issuance of extraordinary writs against first level
(inferior) courts should be filed with the Regional Trial Court, and
those against the latter, with the Court of Appeals. (Citations omitted)
But the Supreme Court has the full discretionary power to take
cognizance of the petition filed directly to it if compelling reasons,
or the nature and importance of the issues raised, warrant. This
has been the judicial policy to be observed and which has been
reiterated in subsequent cases, namely:50 Uy vs. Contreras, et. al.,51
Torres vs. Arranz,52 Bercero vs. De Guzman,53 and Advincula vs.
Legaspi, et. al.54 As we have further stated in Cuaresma:
x x x. A direct invocation of the Supreme Courts original jurisdiction
to issue these writs should be allowed only when there are special and
important reasons therefor, clearly and specifically set out in the
petition. This is established policy. It is a policy that is necessary to
prevent inordinate demands upon the Courts time and attention which
are better devoted to those matters within its exclusive jurisdiction,
and to prevent further over-crowding of the Courts docket.
Pursuant to said judicial policy, we resolve to take primary
jurisdiction over the present petition in the interest of speedy
justice55 and to avoid future litigations so as to promptly put an
end to the present controversy which, as correctly observed by
petitioners, has sparked national interest because of the
magnitude of the problem created by the issuance of the assailed
resolution. Moreover, as will be discussed later, we find the assailed
resolution wholly void and requiring the petitioners to file their
petition first with the Court of Appeals would only result in a waste of
time and money.
As to the second issue of whether the petitioners committed a fatal
procedural lapse when they failed to file a motion for reconsideration
of the assailed resolution before seeking judicial recourse, suffice it to
state that the said motion is not necessary when the questioned
resolution is a patent nullity,57 as will be taken up later.
RE: FORUM SHOPPING
With respect to the third issue, the respondents claim that the filing by
the petitioners of: (a) a petition for certiorari, prohibition with
preliminary injunction (CA-G.R. SP No. 37614) with the Court of
18 of 22
Appeals; (b) a complaint for annulment and cancellation of title,
damages and injunction against DAR and 141 others (Civil Case No.
2687-97) with the Regional Trial Court of Malaybalay, Bukidnon; and
(c) the present petition, constitute forum shopping.
We disagree.
The rule is that:
There is forum-shopping whenever, as a result of an adverse opinion
in one forum, a party seeks a favorable opinion (other than by appeal
or certiorari) in another. The principle applies not only with respect to
suits filed in the courts but also in connection with litigation
commenced in the courts while an administrative proceeding is
pending, as in this case, in order to defeat administrative processes and
in anticipation of an unfavorable administrative ruling and a favorable
court ruling. This specially so, as in this case, where the court in which
the second suit was brought, has no jurisdiction (citations omitted).
The test for determining whether a party violated the rule against
forum shopping has been laid down in the 1986 case of Buan vs. Lopez
(145 SCRA 34), x x x and that is, forum shopping exists where the
elements of litis pendentia are present or where a final judgment
in one case will amount to res judicata in the other, as follows:
There thus exists between the action before this Court and RTC Case
No. 86-36563 identity of parties, or at least such parties as represent
the same interests in both actions, as well as identity of rights
asserted and relief prayed for, the relief being founded on the same
facts, and the identity on the two preceding particulars is such that any
judgment rendered in the other action, will, regardless of which
party is successful, amount to res adjudicata in the action under
consideration: all the requisites, in fine, of auter action pendant.'58
It is clear from the above-quoted rule that the petitioners are not
guilty of forum shopping. The test for determining whether a
party has violated the rule against forum shopping is where a final
judgment in one case will amount to res adjudicata in the action
under consideration. A cursory examination of the cases filed by
the petitioners does not show that the said cases are similar with
each other. The petition for certiorari in the Court of Appeals sought
the nullification of the DAR Secretarys order to proceed with the
compulsory acquisition and distribution of the subject property. On
the other hand, the civil case in RTC of Malaybalay, Bukidnon for the
annulment and cancellation of title issued in the name of the Republic
of the Philippines, with damages, was based on the following grounds:
(1) the DAR, in applying for cancellation of petitioner NQSRMDCs
title, used documents which were earlier declared null and void by the
DARAB; (2) the cancellation of NQSRMDCs title was made without
payment of just compensation; and (3) without notice to NQSRMDC
for the surrender of its title. The present petition is entirely different
from the said two cases as it seeks the nullification of the assailed Win-
Win Resolution of the Office of the President dated November 7,
1997, which resolution was issued long after the previous two cases
were instituted.
RE: MOTION FOR INTERVENTION
The fourth and final preliminary issue to be resolved is the motion for
intervention filed by alleged farmer-beneficiaries, which we have to
deny for lack of merit. In their motion, movants contend that they are
the farmer-beneficiaries of the land in question, hence, are real parties
in interest. To prove this, they attached as Annex I in their motion a
Master List of Farmer-Beneficiaries. Apparently, the alleged master
list was made pursuant to the directive in the dispositive portion of the
assailed Win-Win Resolution which directs the DAR to carefully and
meticulously determine who among the claimants are qualified
farmer-beneficiaries. However, a perusal of the said document reveals
that movants are those purportedly Found Qualified and
Recommended for Approval. In other words, movants are merely
recommendee farmer-beneficiaries.

The rule in this jurisdiction is that a real party in interest is a party
who would be benefited or injured by the judgment or is the party
entitled to the avails of the suit. Real interest means a present
substantial interest, as distinguished from a mere expectancy or a
future, contingent, subordinate or consequential interest.59
Undoubtedly, movants interest over the land in question is a mere
expectancy. Ergo, they are not real parties in interest.
Furthermore, the challenged resolution upon which movants based
their motion is, as intimated earlier, null and void. Hence, their motion
for intervention has no leg to stand on.
RE: Whether the final and executory Decision dated March
29,1996 can still be substantially modified by the Win-Win
Resolution.
NO.
The rules and regulations governing appeals to the Office of the
President of the Philippines are embodied in Administrative Order No.
18. Section 7 thereof provides:
19 of 22
of courts having general judicial powers [Brillantes v. Castro, supra
at 503].
The orderly administration of justice requires that the
judgments/resolutions of a court or quasi-judicial body must reach a
point of finality set by the law, rules and regulations. The noble
purpose is to write finis to disputes once and for all.61 This is a
fundamental principle in our justice system, without which there
would be no end to litigations. Utmost respect and adherence to this
principle must always be maintained by those who wield the power of
adjudication. Any act which violates such principle must immediately
be struck down.
Therefore, the assailed Win-Win Resolution which substantially
modified the Decision of March 29, 1996 after it has attained finality,
is utterly void. Such void resolution, as aptly stressed by Justice
Thomas A. Street62 in a 1918 case,63 is a lawless thing, which can be
treated as an outlaw and slain at sight, or ignored wherever and
whenever it exhibits its head.64

SEC. 7. Decisions/resolutions/orders of the Office of the President

shall, except as otherwise provided for by special laws, become final
after the lapse of fifteen (15) days from receipt of a copy thereof
by the parties, unless a motion for reconsideration thereof is filed
within such period.

Only one motion for reconsideration by any one party shall be

allowed and entertained, save in exceptionally meritorious cases.
(Emphasis ours)

It is further provided for in Section 9 that The Rules of Court shall

apply in a suppletory character whenever practicable.

When the Office of the President issued the Order dated June 23,1997
declaring the Decision of March 29, 1996 final and executory, as no
one has seasonably filed a motion for reconsideration thereto, the said
Office had lost its jurisdiction to re-open the case, more so modify its
Decision. Having lost its jurisdiction, the Office of the President has
no more authority to entertain the second motion for reconsideration
filed by respondent DAR Secretary, which second motion became the
basis of the assailed Win-Win Resolution. Section 7 of Administrative
Order No. 18 and Section 4, Rule 43 of the Revised Rules of Court
mandate that only one (1) motion for reconsideration is allowed to be
taken from the Decision of March 29, 1996. And even if a second
motion for reconsideration was permitted to be filed in exceptionally
meritorious cases, as provided in the second paragraph of Section 7 of
AO 18, still the said motion should not have been entertained
considering that the first motion for reconsideration was not
seasonably filed, thereby allowing the Decision of March 29, 1996 to
lapse into finality. Thus, the act of the Office of the President in re-
opening the case and substantially modifying its March 29,1996
Decision which had already become final and executory, was in gross
disregard of the rules and basic legal precept that accord finality to
administrative determinations.

In San Luis, et al. vs. Court of Appeals, et al.60 we held:

Since the decisions of both the Civil Service Commission and the
Office of the President had long become final and executory, the same
can no longer be reviewed by the courts. It is well-established in our
jurisprudence that the decisions and orders of administrative agencies,
rendered pursuant to their quasi-judicial authority, have upon their
finality, the force and binding effect of a final judgment within the
purview of the doctrine of res judicata [Brillantes v. Castro, 99 Phil.
497 (1956), Ipekdijna Merchandizing Co., Inc. v. Court of Tax
Appeals, G.R. No. L-15430, September 30, 1963, 9 SCRA 72.] The
rule of res judicata which forbids the reopening of a matter once
judicially determined by competent authority applies as well to the
judicial and quasi-judicial acts of public, executive or administrative
officers and boards acting within their jurisdiction as to the judgments

Topic: XPN to GR; shall NOT STAY award, judgment, final order or
resolution; when the law directs otherwise
G.R. No. 142261 June 29, 2000
GOVERNOR MANUEL M. LAPID, petitioner,
vs.
HONORABLE COURT OF APPEALS, OFFICE OF THE
OMBUDSMAN, NATIONAL BUREAU OF INVESTIGATION,
FACT-FINDING INTELLIGENCE BUREAU (FFIB) of the
Office of the Ombudsman, DEPARTMENT OF INTERIOR AND
LOCAL GOVERNMENT, respondents.
Before us are the Motion for Reconsideration filed by the National
Bureau of Investigation and the Department of the Interior and Local
Government, represented by the Office of the Solicitor-General, and
the Office of the Ombudsman of our 5 April 2000 Resolution.1 In this
resolution, we ordered the immediate reinstatement of petitioner
Manuel Lapid to the position of Governor of Pampanga as the
respondents failed to establish the existence of a law mandating the
immediate execution of a decision of the Office of the Ombudsman in
an administrative case where the penalty imposed is suspension for
one year.
FACTS:
On the basis of an unsigned letter dated July 20, 1998, allegedly
originating from the "Mga Mamamayan ng Lalawigan ng Pampanga,"
addressed to the National Bureau of Investigation, the latter initiated
an "open probe" on the alleged illegal quarrying in Pampanga &
exaction of exorbitant fees purportedly perpetrated by unscrupulous
individuals with the connivance of high-ranking government officials.
The NBI Report was endorsed to the respondent Ombudsman and was
docketed as OMB-1-98-2067.
On Oct. 26, 1998, a complaint was filed charging petitioner Gov.
Manuel M. Lapid, Vice-Governor Clayton Olalia, Provincial
Administrator Enrico Quiambao, Provincial Treasurer Jovito
Sabado, Mabalacat Municipal Mayor Marino Morales and Senior
Police Officer 4 Nestor Tadeo with alleged "Dishonesty, Grave
Misconduct and Conduct Prejudicial to the Best Interest of the
Service" for allegedly "having conspired between and among
themselves in demanding and collecting from various quarrying
operators in Pampanga a control fee, control slip, or monitoring
fee of P120.00 per truckload of sand, travel, or other quarry
material, without a duly enacted provincial ordinance authorizing
the collection thereof and without issuing receipts for its
collection. They were also accused of giving unwarranted benefits to
Nestor Tadeo, Rodrigo "Rudy" Fernandez & Conrado Pangilinan who
are neither officials/employees of the Provincial Government of
Pampanga nor quarry operators by allowing them to collect the said
amount which was over and above the P40.00 prescribed under the
present provincial ordinance and in allowing Tadeo, Fernandez and
Pangilinan to sell and deliver to various quarry operators booklets of
official receipts which were pre-stamped with "SAND FEE P40.00."
2 HELD:
The Ombudsman issued an Order dated January 13, 1999 preventively
suspending petitioner Lapid, Olalia, Quiambao, Sabado, Morales and
Tadeo for a period of six (6) months without pay pursuant to Sec. 24
of RA 6770. On Jan. 19, 1999, the Department of the Interior and
Local Government (hereinafter the "DILG") implemented the
suspension of petitioner Lapid.
On November 22, 1999 the Ombudsman rendered a decision in the
administrative case finding the petitioner administratively liable
for misconduct thus:
Wherefore, premises considered, respondent Manuel M. Lapid,
Clayton A. Olalia, Jovito S. Sabado and Nestor C. Tadeo are hereby
found guilty of misconduct for which they are meted out the penalty
of one (1) year suspension without pay pursuant to section 25 (2)
20 of 22
of R.A. 6770 (Ombudsman Act of 1989). Respondent Marino P.
Morales is hereby exonerated from the same administrative charge for
insufficiency of evidence. The complaint against respondent Enrico P.
Quiambao, who resigned effective June 30, 1998 was dismissed on
March 12, 1999, without prejudice to the outcome of the criminal case.
The copy of the said decision was received by counsel for the
petitioner on November 25, 1999 and a motion for reconsideration was
filed on November 29, 1999. The Office of the Ombudsman, in an
Order dated 12 January 2000, denied the motion for reconsideration.
Petitioner then filed a petition for review with the Court of
Appeals on January 18, 2000 praying for the issuance of a
temporary restraining order to enjoin the Ombudsman from
enforcing the questioned decision. The temporary restraining order
was issued by the appellate court on January 19, 2000.
When the 60-day lifetime of the temporary restraining order
lapsed on March 19, 2000 without the Court of Appeals resolving
the prayer for the issuance of a writ of preliminary injunction, a
petitio for certiorari, prohibition and mandamus was filed with
this Court on March 20, 2000. The petition asked for the issuance
of a temporary restraining order to enjoin the respondents from
enforcing the assailed decision of the Ombudsman and prayed
that "after due proceedings, judgment be rendered reversing and
setting aside the questioned decision (of the Ombudsman) dated
November 22, 1999 and the order January 12, 2000.
On March 24, 2000 a Motion for Leave to File Supplement to the
Petition for Certiorari, Prohibition and Mandamus and the
Supplement to the Petition itself were filed in view of the resolution
of the Court of Appeals denying the petitioner's prayer for preliminary
injunction. In addition to the arguments raised in the main petition, the
petitioner likewise raised in issue the apparent pre-judgment of the
case on the merits by the Court of Appeals in its resolution denying
the prayer for preliminary injunction. In so doing, petitioner argued
that the respondent court exceeded the bounds of its jurisdiction.
Proceeding from the premise that the decision of the Ombudsman had
not yet become final, the petitioner argued that the writs of prohibition
and mandamus may be issued against the respondent DILG for
prematurely implementing the assailed decision. Finally, the
petitioner prayed for the setting aside of the resolution issued by
the Court of Appeals dated March 22, 2000, moreover to
withdraw any action already taken until the issue of whether or
not the said decision of the Ombudsman is immediately executory
has been settled.
ISSUE:
Whether or not the decision of the Office of the
Ombudsman finding petitioner administratively liable for
misconduct and imposing upon him a penalty of 1 year suspension
without pay is immediately executory pending appeal.
NO.
Respondents contention: The Solicitor-General and the Office of the
Ombudsman filed their respective comments 1 to the petition praying
for the dismissal thereof. Regarding the issue of the immediate
enforcement of the decision of the Ombudsman, the Solicitor-General
maintains that the said decision is governed by Section 12, Rule 43 of
the Rules of Court and is therefore, immediately executory. For its
part, the Office of the Ombudsman maintain that the Ombudsman Law
and its implementing rules are silent as to the execution of decisions
rendered by the Ombudsman considering that the portion of the said
law cited by petition pertains to the finality of the decision but not to
its enforcement pending appeal. The Office of the Ombudsman also
stated that it has uniformly adopted the provisions in the Local
Government Code and Administrative Code that decisions in
administrative disciplinary cases are immediately executory.

After oral arguments before the Third Division of this Court on 5 April
2000, the Resolution subject of the instant Motions for
Reconsideration was issued.
COURT: Court finds that the respondents failed to establish the
existence of a law mandating the immediate execution of a decision of
the Ombudsman in an administrative case where the penalty imposed
is suspension for one year. The immediate implementation of the
decision of the Ombudsman against petitioner is thus premature.
WHEREFORE, the respondents are ordered to reinstate effective
immediately the petitioner to the position of Governor of the
Province of Pampanga. This case is hereby remanded to the Court of
Appeals for resolution of the appeal in CA-GR. SP No. 564744 on the
merits. Said court is hereby directed to resolve the same with utmost
deliberate dispatch.
Petitioner was administratively charged for misconduct under the
provisions of R.A. 6770, the Ombudsman Act of 1989. Section 27 of
the said Act provides as follows:
Sec. 27. Effectively and Finality of Decisions. — All provisionary
orders of the Office of the Ombudsman are immediately effective and
executory.
A motion for reconsideration of any order, directive or decision of the
Office of the Ombudsman must be filed within five (5) days after
receipt of written notice and shall be entertained only on the following
grounds:
xxx xxx xxx
Findings of fact of the Office of the Ombudsman when supported by
substantial evidence are conclusive. Any order, directive or decision
imposing the penalty of public censure or reprimand, suspension of
not more than one month's salary shall be final and unappealable.
In all administrative disciplinary cases, orders, directives or decisions
of the Office of the Ombudsman may be appealed to the Supreme
Court by filing a petition for certiorari within ten (10) days from
receipt of the written notice of the order, directive or decision or denial
of the motion for reconsideration in accordance with Rule 45 of the
Rules of Court.
The Rules of Produce of the Office of the Ombudsman likewise
contain a similar provision. Section 7, Rule III of the said Rules
provides as follows:
Sec. 7. Finality of Decision. — where the respondent is absolved of
the charge and in case of conviction where the penalty imposed is
public censure or reprimand, suspension of not more than one month,
or a fine not equivalent to one month salary, the decision shall be final
and unapllealable. In all other cases, the decision shall become final
after the expiration of ten (10) days from receipt thereof by the
respondent, unless a motion for reconsideration or petition for
certiorari, shall have been filed by him as prescribed in Section 27
of R.A. 6770.
It is clear from the above provisions that the punishment imposed
upon petitioner, i.e. suspension without pay for one year, is no
among those listed as final and unappealable, hence, immediately
executory. Section 27 states that all provisionary orders of the Office
of the Ombudsman are immediately effective and executory; and that
any order, directive or decision of the said Office imposing the penalty
of censure or reprimand or suspension of not more than one month's
salary is final and unappealable. As such the legal maxim "inclusion
unius est exclusio alterus" finds application. The express mention of
the things included excludes those that are not included. The clear
import of these statements taken together is that all other decisions of
the Office of the Ombudsman which impose penalties that are not
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enumerated in the said section 27 are not final, unappealable and
immediately executory. An appeal timely filed, such as the one filed
in the instant case, will stay the immediate implementation of the
decision. This finds support in the Rules of Procedure issued by the
Ombudsman itself which states that "(I)n all other cases, the decision
shall become final after the expiration of ten (10) days from receipt
thereof by the respondent, unless a motion for reconsideration or
petition for certiorari (should now be petition for review under Rules
43) shall have been filed by him as prescribed in Section 27 of R.A.
6770."
RESPONDENTS CONTENTION: The Office of the Solicitor
General insists however that the case of Fabian vs. Desierto has
voided Section 27 of R.A. 6770 and Section 7, Rule III of
Administrative Order No. 07. As such, the review of decision of the
Ombudsman in administrative cases is now governed by Rule 43 of
the 1997 Rules of Civil Procedure which mandates, under Section 12
thereof, the immediately executory character of the decision or order
appealed from.
The contention of the Solicitor General is not well-taken. Our
ruling in the case of Fabian vs. Desierto invalidated Section 27 of
Republic Act No. 6770 and Section 7, Rule III of Administrative
Order No. 07 and any other provision of law implementing the
aforesaid Act only insofar as they provide for appeals in administrative
disciplinary cases from the Office of the Ombudsman to the Supreme
Court. The only provision affected by the Fabian ruling is the
designation of the Court of Appeals as the proper forum and of Rule
43 of the Rules of Court as the proper mode of appeal. All other
matters included in said section 27, including the finality or non-
finality of decisions, are not affected and still stand.
Neither can respondents find support in Section 12, Rule 43 of the
1997 Rules of Civil Procedure which provides as follows:
Sec. 12. Effect of Appeal. The appeal shall not stay the award,
judgment, final order or resolution sought to be reviewed unless the
Court of Appeals shall direct otherwise upon such terms as it may
deem just.
RESPONDENTS CONTENTION: On this point, respondents
contend that considering the silence of the Ombudsman Act on the
matter of execution pending appeal, the above-quoted provision of the
Rules of Court, which allegedly mandates the immediate execution of
all decisions rendered by administrative and quasi-judicial agencies,
should apply suppletorily to the provisions of the Ombudsman Act.
COURT: We do not agree.
A judgment becomes "final and executory" by operation of law.
Section 27 of the Ombudsman Act provides that any order, directive
or decision of the Office of the Ombudsman imposing a penalty of
public censure or reprimand, or suspension of not more than one
month's salary shall be final and unappealable. In all other cases, the
respondent therein has the right to appeal to the Court of Appeals
within ten (10) days from receipt of the written notice of the order,
directive or decision. In all these other cases therefore, the judgment
imposed therein will become final after the lapse of the reglementary
period of appeal in of appeal is perfected or, an appeal therefrom
having been taken, the judgment in the appellate tribunal become final.
It is this final judgment which is then correctly categorized as a "final
and executory judgment" in respect to which execution shall issue as
a matter of right. In other words, the fact that the Ombudsman Act
gives parties the right to appeal from its decisions should generally
carry with it the stay of these decisions pending appeal. Otherwise, the
essential nature of these judgments as being appealable would be
rendered nugatory.
The general rule is that judgments by lower courts or tribunals become
executory only after it has become final and executory, execution

pending appeal being an exception to this general rule. It is the
contention of respondents however that with respect to decisions of
quasi-judicial agencies and administrative bodies, the opposite is true.
It is argued that the general rule with respect to quasi-judicial and
administrative agencies is that the decisions of such bodies are
immediately executory even pending appeal.
The contention of respondents is misplaced. There is no general
legal principle that mandates that all decisions of quasi-judicial
agencies are immediately executory. Decisions rendered by the
Securities and Exchange Commission and the Civil Aeronautics
Board, for example, are not immediately executory and are stayed
when an appeal is filed before the Court of Appeals. On the other hand,
the decisions of the Civil Service Commission, under the
Administrative Code , and the Office of the President under the Local
Government Code , which respondents cite, are immediately
executory even pending appeal because the pertinent laws under
which the decisions were rendered mandate them to be so. The
provisions of the last two cited laws expressly provide for the
execution pending appeal of their final orders or decisions. The Local
Government Code, under Section 68 thereof provides as follows:
Sec. 68. Execution Pending Appeal. — An appeal shall not prevent a
decision from becoming final and executory. The respondent shall be
considered as having been placed under preventive suspension during
the pendency of an appeal in the event he wins such appeal. In the
event the appeal results in an exoneration, he shall be paid his salary
and such other emoluments during the pendency of the appeal.
Similarly, Book V, Title I, Subtitle A, Chapter 6, Section 47, par. (4)
of the Administrative Code of 1987 provides:
(4) An appeal shall not stop the decision from being from being
executory, and in case the penalty is suspension or removal, the
respondent shall be considered as having been under preventive
suspension during the pendency of the appeal in the event he wins an
appeal.
Where the legislature has seen fit to declare that the decision of the
quasi-judicial agency is immediately final and executory pending
appeal, the law expressly so provides.
Sec. 12 of Rule 43 should therefore be interpreted as mandating that
the appeal will not stay the award, judgment, final order or resolution
unless the law directs otherwise.
Petitioner was charged administratively before the Ombudsman and
accordingly the provisions of the Ombudsman Act should apply in his
case. Section 68 of the Local Government Code only applies to
administrative decisions rendered by the Office of the President or the
appropriate Sanggunian against elective local government officials.
Similarly, the provision in the Administrative Code of 1987
mandating execution pending review applies specifically to
administrative decisions of the Civil Service Commission involving
members of the Civil Service.
There is no basis in law for the proposition that the provisions of the
Administrative Code of 1987 and the Local Government Code on
execution pending review should be applied suppletorily to the
provisions of the Ombudsman Act as there is nothing in the
Ombudsman Act which provides for such suppletory application.
Courts may not, in the guise of interpretation, enlarge the scope of a
statute and include therein situations not provided or intended by the
lawmakers. An omission at the time of enactment, whether careless or
calculated, cannot be judicially supplied however later wisdom may
recommend the inclusion. 2
And while in one respect, the Ombudsman Law, the Administrative
Code of 1987 and the Local Government Code are in pari materia
insofar as the three laws relate or deal with public officers, the
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similarity ends there. It is a principle in statutory construction that
where there are two statutes that apply to a particular case, that which
was specially designed for the said case must prevail over the other.
In the instant case, the acts attributed to petitioner could have been the
subject of administrative disciplinary proceedings before the Office of
the President under the Local Government Code or before the Office
of the Ombudsman under the Ombudsman Act. Considering however,
that petitioner was charged under the Ombudsman Act, it is this law
alone which should govern his case.
Respondents, through the Office of the Solicitor General, argue that
the ruling against execution pending review of the Ombudsman's
decision grants a one-sided protection to the offender found guilty of
misconduct in office and nothing at all to the government as the
aggrieved party. The offender, according to respondents, can just let
the case drag on until the expiration of his office or his reelection as
by then, the case against him shall become academic and his offense,
obliterated. As such, respondents conclude, the government is left
without further remedy and is left helpless in its own fight against graft
and corruption.
We find this argument much too speculative to warrant serious
consideration. If it perceived that the fight against graft and corruption
is hampered by the inadequacy of the provisions of the Ombudsman
Act, the remedy lies not with this Court but by legislative amendment.
As regards the contention of the Office of the Ombudsman that under
Sec. 13(8), Article XI of the 1987 Constitution, the Office of the
Ombudsman is empowered to "(p)romulgate its rules of procedure and
exercise such other powers or perform such functions or duties as may
be provided by law," suffice it to note that the Ombudsman rules of
procedure, Administrative Order No. 07, mandate that decisions of the
Office of the Ombudsman where the penalty imposed is other than
public censure or reprimand, suspension of not more than one month
salary or fine equivalent to one month salary are still appealable and
hence, not final and executory. Under these rules, which were
admittedly promulgated by virtue of the rule-making power of the
Office of the Ombudsman, the decision imposing a penalty of one
year suspension without pay on petitioner Lapid is not
immediately executory.
WHEREFORE, the Motions for Reconsideration filed by the Office
of the Solicitor General and the Office of the Ombudsman are hereby
DENIED for lack of merit.
SO ORDERED.