G. R. No. 132467 - October 18, 2004
SOCORRO CHUA, JUAN TUMALA, ESTELITA DIONISIO, SOLEDAD CUDERA, SEVERINO TAMAYO, AURELIO NAVA, EVELYN VILLANUEVA, CHRISTOPHER YANZA, ADELAIDA GONZALES, TEOFILO FERRERIA, and AGAPITO DIMALANTA, Petitioners, vs. ROMUALDO SANTOS, IN HIS CAPACITY AS ASSISTANT BUILDING OFFICIAL OF THE CITY ENGINEERS OFFICE OF QUEZON CITY, RAYMUNDO AGUARAS, IN HIS CAPACITY AS CHIEF OF ENFORCEMENT DIVISION, CITY ENGINEERS OFFICE OF QUEZON CITY, HERCULANO BERONILLA, BENIGNO SANIEL, TOMAS SANIEL and NORMA SANIEL, Respondents.
D E C I S I O N
CALLEJO, SR., J.:
Before the Court is an "alternative petition for review on certiorari under Rule 45 of the Rules of Court, or a petition for certiorari under Rule 65 of the Rules of Court" for the reversal of the Resolution1 of the Court of Appeals in CA-G.R. SP No. 46034, dismissing the petition for certiorari of the petitioners and the resolution of the appellate court denying their motion for reconsideration.
Isabel C. Balles, who was married to Mariano Balles, was the owner of a residential land located in Scout Chuatoco Street, Barangay Paligsahan, Diliman, Quezon City, covered by Transfer Certificate of Title (TCT) No. 339356 issued by the Register of Deeds.2 After the death of the spouses, TCT No. 339356 was cancelled by TCT No. ET-80465 issued under the names of their heirs, Benigno, Tomas, Norma, Manuel and Lawrence Balles.
In the meantime, on November 28, 1996, the registered owners, through counsel, filed a letter-complaint against the petitioners3 for the demolition of houses and/or huts which stood on the property, alleged to have been constructed without the requisite building and occupancy permits from the City Building Office, and without the knowledge of the registered owners. The case was docketed as Case No. 97-12.
On March 31, 1997, Romualdo C. Santos, the Officer-in-Charge of the Office of the City Building Office, issued a Resolution ordering the petitioners to self-demolish their respective houses/huts within fifteen (15) days from notice thereof, with a warning that if they failed to comply with the resolution, the complainant will with force, effect the demolition at the expense of the respondents. The dispositive portion of the resolution reads:
On April 21, 1997, the petitioners filed a complaint for injunction and damages against Building Officer Romualdo C. Santos, and the registered owners of the property and their counsel in the Regional Trial Court of Quezon City, with a prayer for a temporary restraining order or a writ for preliminary injunction to enjoin the demolition of their houses.
The petitioners alleged, inter alia, in the complaint that they had been occupying the property as lessees of Isabel Balles for more than ten years; after the demise of the Spouses Balles, they continued occupying the property as lessees, paying their rentals to Lawrence Balles, the only heir of the spouses who had constructed his house on the property; during the period that they had been in possession of the property, the registered owners never disturbed them of said possession; the respondent Romualdo C. Santos usurped the power of the judiciary by ordering the demolition of their houses/huts thereby impliedly ordering their eviction from the property; and by his action, respondent Santos deprived the petitioners of their constitutional rights to due process. The petitioners prayed that, after due hearing, they be granted the following reliefs:
However, on September 25, 1997, the trial court issued an Order6 denying the petitioners plea for a writ of preliminary injunction, relying on Section 301 of the National Building Code and Section 3.8 of Rule VII of the Implementing Rules of P.D. No. 1096. On November 4, 1997, the Building Official issued a Notice of Demolition.7
The petitioners filed a Petition for Certiorari in the Court of Appeals for the nullification of the September 25, 1997 Order of the trial court, and prayed for the issuance of a temporary restraining order/or writ of preliminary injunction. On November 28, 1997, the Court of Appeals issued a Resolution dismissing the petition on the following grounds:
The petitioners filed a motion for the reconsideration thereof on December 22, 1997 with a plea that the Rules of Court could be applied liberally in their favor. On January 15, 1998, the appellate court issued a Resolution9 denying the said motion of the petitioners.
On January 19, 1998, the Asst. City Building Official issued an Order10 reiterating his order for the demolition of the houses/huts of the petitioners.
On February 4, 1998, the petitioners received a copy of the Resolution of the appellate court denying their motion for reconsideration.11
On March 23, 1998, the petitioners filed the "alternative petition" at bar contending that:
The petition has no merit.
The instant "alternative" petition is destined to fail. The petitioners cannot delegate upon the Court the task of determining under which rule the petition should fall. The remedies of appeal and certiorari are mutually exclusive and not alternative or successive.18 Under Rule 56, Sec. 5(f) of the Revised Rules of Court, a wrong or inappropriate mode of appeal, as in this case, merits an outright dismissal.
Every lawyer19 should be familiar with the obvious distinctions between a special civil action for certiorari under Rule 65 and an appeal by petition for review on certiorari under Rule 45. For one, that under Rule 45 is a continuation of the judgment complained of, while that under Rule 65 is an original or independent. It is, likewise, settled that generally, the special civil action of certiorari under Rule 65 will not be allowed as a substitute for failure to timely file a petition for review under Rule 45 or for the lost remedy of appeal.20
Rule 45 is clear that decisions, final orders or resolutions of the Court of Appeals in any case, i.e., regardless of the nature of the action or proceedings involved, may be appealed to this Court by filing a petition for review, which would be but a continuation of the appellate process over the original case.21 Under Rule 45, the reglementary period to appeal is fifteen (15) days from notice of judgment or denial of the motion for reconsideration.22
Here, the Resolution of the Court of Appeals dated January 15, 1998 denying the motion for reconsideration of its Resolution dated November 28, 1997 was received by petitioners on February 4, 1998.23 Thus, they had until February 19, 1997 within which to perfect their appeal. The petitioners failed to do so. What they did was to file the instant petition, designating it in both the caption and the body as one for "Petition for Review on Certiorari under Rule 45 or Certiorari under Rule 65 and Injunction with Prayer for a Restraining Order," reiterating the issues and arguments they raised before the Court of Appeals.
For the writ of certiorari under Rule 65 of the Rules of Court to issue, the petitioners must show that they have no plain, speedy and adequate remedy in the ordinary course of law against their perceived grievance. A remedy is considered "plain, speedy and adequate" if it will promptly relieve the petitioners from the injurious effects of the judgment and the acts of the lower court or agency. In this case, appeal was not only available but also a speedy and adequate remedy.24
Clearly, the petitioners interposed the present special civil action of certiorari as an alternative to their petition for review on certiorari not because it is the speedy and adequate remedy but to make up for the loss of the right of ordinary appeal. It is elementary that the special civil action of certiorari is not and cannot be a substitute for an appeal, where the latter remedy is available, as it was in this case. A special civil action under Rule 65 of the Rules of Court will not be a cure for failure to timely file a petition for review on certiorari under Rule 45 of the Rules of Court. Rule 65 is an independent action that cannot be availed of as a substitute for the lost remedy of an ordinary appeal, including that under Rule 45, especially if such loss or lapse was occasioned by ones own neglect or error in the choice of remedies.25 Although there are exceptions to these rules, among them are: (a) when public welfare and the advancement of public policy dictates; (b) when the broader interest of justice so requires; (c) when the writs issued are null and void; (d) or when the questioned order amounts to an oppressive exercise of judicial authority,26 none is present in the case at bar. The petitioners failed to show circumstances that would justify a deviation from the general rule as to make available a petition for certiorari in lieu of taking an appeal.
Based on the foregoing, the instant petition should be dismissed.
In any case, even if the issue of the petitioners lapses are brushed aside and recourse under Rule 65 is allowed, the same result would be obtained for the reason that the appellate courts resolutions are in accord with the Rules of Court.
The Court of Appeals dismissed the petition for certiorari and injunction, among other grounds, that the certification of non-forum shopping was signed by only one of the petitioners.
Anent this ground, the petitioners submit that a relaxation of the rigid rules of technical procedure is called for since the objectives of the rule on certification of non-forum shopping had been substantially complied with. Citing jurisprudence, the petitioners aver that the rules on forum shopping were designed to promote and facilitate the orderly administration of justice and, thus, should not be interpreted with such absolute literalness as to subvert its own ultimate and legitimate objective.
We are not convinced.
Section 5, Rule 7, of the 1997 Rules of Civil Procedure expressly provides that it is the plaintiff or principal party who shall certify under oath the certification against forum shopping.27
In the petition for certiorari and prohibition in the Court of Appeals, the verification/certification28 was signed only by petitioner Socorro Chua. There was no showing that petitioner Chua was authorized by her co-petitioners to represent the latter and sign the certification. It cannot likewise be presumed that petitioner Chua knew, to the best of her knowledge, whether her co-petitioners had the same or similar actions or claims filed or pending. We find that substantial compliance will not suffice in a matter involving strict observance by the rules. The attestation contained in the certification on non-forum shopping requires personal knowledge by the party who executed the same. The petitioners must show reasonable cause for failure to personally sign the certification. Utter disregard of the rules cannot justly be rationalized by harking on the policy of liberal construction.29
In view of the conclusions arrived at above, we deem it unnecessary to discuss the other issues raised in this case.
WHEREFORE, the petition is DENIED. The assailed resolutions of the Court of Appeals are AFFIRMED. Costs against petitioners.
Puno, Austria-Martinez, Tinga, and Chico-Nazario*, JJ., concur.
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