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[UDK 12972.February 12, 2001]

MARCES vs. CA�AS, et al.

THIRD DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated FEB 12 2001.

UDK 12972(Farley Marces vs. Flordeliza Ca�as and Carlota Peligrino.)

Before this Court is a petition denominated as one for "Annulment of Judgment with prayer for a Writ of Prohibitory Injunction" praying that petitioner "be allowed to file a petition for new trial in the proper court."

From the petition and its annexes, it appears that petitioner, together with deceased Ben Marces, were accused of the crime of Attempted Murder in Criminal Cases Nos. 22866-91 and 22867-91 before the Regional Trial Court of Davao City, Branch 8. A decision was rendered thereon finding both accused guilty of the crimes of serious physical injuries and slight physical injuries. They were likewise ordered to pay the private complainants, herein respondents, actual and moral damages and attorney's fees. On appeal, the Court of Appeals, finding no error in the appealed RTC-decision, affirmed the same. The Motion for Reconsideration thereto was denied. Thereafter, an Entry of Judgment was issued stating that the said CA-decision became final and executory on October 7, 1999.

Hence, the present petition filed on January 26, 2001. As grounds for the petition, petitioner alleges that the lower courts' decision failed to consider that petitioner and his co-accused were also injured as a result of the confrontation with respondents but respondents were not charged for the same offense. Invoking self-defense, petitioner argues that he and co-accused were merely protecting themselves from the aggressive act of the respondents. Petitioner posits the view that the decision of the Regional Trial Court and the Court of Appeals should be amended to give parties the opportunity to ventilate their respective sides. Petitioner further avers that the motion for execution of the judgment was signed by complainants themselves and not by the office of the city prosecutor.

At the outset, let it be stated that the petition itself is fatally infirm. Under Rule 47 of the 1997 Rules on Civil Procedure, a petition for "Annulment of Judgment" is filed with the Court of Appeals for the purpose of annulling judgments or final orders and resolutions of the Regional Trial Courts for which the ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies are no longer available through no fault of the petitioner (Section 1). The subject of the petition is the Court of Appeals decision and therefore, the instant petition is not the proper remedy. Moreover, the petition for annulment of judgment may be based only on the grounds of extrinsic fraud and lack of jurisdiction (Section 2). These grounds are not present in the case at bar and neither did petitioner explain why he did not resort to the ordinary remedies which eventually led to the CA-decision becoming final and executory.

Even if the instant petition is treated as a petition for certiorari under Rule 65, the same is fatally defective. First, there is no allegation that the lower courts "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" (Section 1). Moreover, petitioner raises factual and evidentiary matters which are outside the ambit of a writ of certiorari. Certiorari is not available to correct errors of procedure or mistakes in the judge's findings and conclusions arid that it will not be issued to cure errors in proceedings or to correct erroneous conclusions of law and fact (GSIS vs. Olisa, 304 SCRA 421; People vs. CA, 308 SCRA 687). Neither can certiorari be made as a substitute for a lost or lapsed appeal (Mathay, Jr. vs. CSC, 312 SCRA 91) especially if such loss or lapse was occasioned by one's own neglect or error in the choice of remedies (Republic vs. CA, 313 SCRA 376).

Second, petitioner failed to state in the petition the material dates showing when notice of judgment, final order or resolution subject of the petition was received, when a motion for reconsideration, if any, was filed, and when notice of the denial thereof was received, to show that the petition was filed on time in violation of Section 4, Rule 65 in relation to Section 3, Rule 46.

Third, from the petition and its annexes, it can be deduced that the petition was filed beyond the reglementary period. As shown in the motion for reconsideration (p. 1 thereof, p. 71, Rollo), petitioner received the CA-decision on April 30, 1999 and the motion for reconsideration was filed with the Court of Appeals by registered mail on May 14, 1999. Entry of Judgment was made on October 7, 1999 (p. 76, Rollo). The instant petition was filed only on January 26, 2001 way beyond the period provided for in Section 4, Rule 65.

Fourth, the petition lacked the appropriate service of petition upon the tribunal concerned and the adverse party as required in Section 2 (c), Rule 56 and Section 3, Rule 46.

Fifth, petitioner failed to submit proof of service (e.g., a written admission of the party served or affidavit of the party serving or registry receipts) of the petition on the tribunal and on the adverse party as required by Section 2, Rule 56; Section 3, Rule 46; and Section. 13, Rule 13.

Sixth, petitioner failed to pay the docket and other fees and deposit for cost in violation of Section 3, Rule 46 in relation to Section 2, Rule 56.

Finally, the assailed decisions of the lower courts involved criminal cases where the proper party, the People of the Philippines, should be impleaded. Not being impleaded in the instant petition, the petition is fatally defective.

WHEREFORE, IN VIEW OF ALL THE FOREGOING, the petition for "Annulment of Judgment" is hereby DISMISSED.

SO ORDERED.

Very truly yours,

(Sgd.) JULIETA Y. CARREON

Clerk of Court

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