#4 Lacurom vs.

Tienzo
535 SCRA 253, Oct 9 2007

FACTS:
Atty Lacurom filed an administrative complaint charging Judge Tienzo of RTC, with Gross
Ignorance of the Law or Procedure in connection with two (2) separate cases: (1) Replevin or
Sum of Money, and (2) appealed case of Unlawful Detainer from MTC.
(1) Civil Case No. 4971: Atty. Lacurom assails the issuance by respondent judge of a writ of
replevin for violation of Sections 2 (a), 6, and 7, Rule 60 of the Rules of Court. He
claims that instead of ordering the return of the vehicle to the third-party claimant, issued
an order not only granting plaintiffs' motion for delivery of the vehicle (even though
plaintiff have failed to prove that he is the owner of the subject vehicle), but also setting
aside an earlier order which required plaintiffs to post an indemnity bond.
(2) Civil Case No. 4884: Atty Lacurom alleged (1) that respondent judge rendered a
Decision in violation of the constitutional mandate to state clearly and distinctly the facts
and the law on which it is based, and Section 1, Rule 36 of the Rules of Court. And (2)
that respondent judge issued an order written in the English language, and in a fashion
that does not befit an RTC Judge which thereby demonstrates her incompetence and
lack of diligence.

In response, respondent judge prayed for the outright dismissal of the complaint because:
(1) She contends that the issuance of the writ of replevin was done in the discharge of her
judicial functions which are presumed to have been regularly performed. Accordingly,
she claims that the assailed order cannot be used as ground for an administrative case
against her in the absence of malice, dishonesty and corrupt motive on her part. Under
the circumstances, even if the Order was erroneously issued, complainant's proper
remedy is to file a petition for certiorari or an appeal, as may be applicable, and not the
instant administrative case.
(2) As regards the diminutive decision in Civil Case No. 4884, respondent judge questions
complainant's locus standi to institute the complaint. She emphasizes that Atty.
Buenaventura did not, in fact, appeal the decision to the appellate court. At any rate,
respondent judge submits that her decision is in accord with the ruling in Francisco v.
Permskul wherein this Court sustained the validity of memorandum decisions.

In his reply, complainant refuted respondent judge's arguments, contending that the rule on
real party-in-interest is not applicable to administrative cases. Section 1, Rule 140 of the Rules
of Court permits a party who has personal knowledge of the facts alleged in the complaint to
lodge administrative charges against an erring judge.

Office of the Court Administrator (OCA) considered the complaint PARTLY meritorious.

(1) Anent the first charge, the OCA found that the error imputed to the respondent judge in
her challenged order is of a judicial character. Essentially, complainant assails
respondent judge's interpretation of the law and rules of procedure on Replevin. The
OCA asserted that complainant's remedy lies with the courts for the appropriate
corrective judicial action, and not in this administrative complaint.
(2) On the second issue OCA believed that complainant lacks standing to question the
said decision. (absence appeal, the decision had attained its finality), Nevertheless,
the OCA found respondent judge guilty of gross ignorance of the law or procedure in
her blatant disregard of the constitutional mandate that no decision shall be rendered
 by any court without expressing therein clearly and distinctly the facts and the law on
which it is based.

ISSUE:
W/N respondent judge is administratively liable – YES only with respect to the decision in Civil
Case No. 4884

HELD:
SC sustained the OCA's finding that the charge respecting the erroneous issuance of the writ
of replevin in Civil Case No. 4971 is clearly judicial in nature. The instant administrative
complaint is not the proper remedy to assail the legality of respondent judge's order. In this
regard, we have previously held that where sufficient judicial remedies exist, the filing of an
administrative complaint is not the proper recourse to correct a judge's allegedly erroneous
act.

However, with respect to the decision in Civil Case No. 4884, we find respondent judge
administratively liable therefor.

In that case, respondent judge ruled in this wise, to wit:

DECISION
After a cursory study of this appealed case of Unlawful Detainer, this
Court finds that the procedural due process [has] been complied with under the
Summary Procedure. The Decision of the Lower Court cannot be disturbed by
this Court.
WHEREFORE, the Decision of the said Lower Court, MTCC, Branch III,
Cabanatuan City, is hereby AFFIRMED en toto.
SO ORDERED.
Cabanatuan City, July 21, 2005.

The quoted decision does not measure up to the clear constitutional command:

Art. VIII, SEC. 14 of the Constitution. No decision shall be rendered by any court without
expressing therein clearly and distinctly the facts and the law on which it is based.

Section 1, Rule 36 of the Rules of Court. Rendition of judgments and final orders. — A
judgment or final order determining the merits of the case shall be in writing personally
and directly prepared by the judge, stating clearly and distinctly the facts and the law
on which it is based, signed by him, and filed with the clerk of court.

Respondents’ insistence that her decision is in accord with the ruling in Francisco v. Permskul,
is WITHOUT MERIT. Although we have sustained the validity of memorandum decisions on
several occasions, we laid down specific requirements for the proper utility thereof:

The memorandum decision, to be valid, cannot incorporate the

findings of fact and the conclusions of law of the lower court only
by remote reference, which is to say that the challenged decision is not
easily and immediately available to the person reading the memorandum
decision.

For the incorporation by reference to be allowed, it must provide

for direct access to the facts and the law being adopted, which must be
 contained in a statement attached to the said decision. In other words,
the memorandum decision authorized under Section 40 of B.P. Blg.
129 should actually embody the findings of fact and conclusions of law of
the lower court in an annex attached to and made an indispensable part
of the decision

The Court finds it necessary to emphasize that the memorandum

decision should be sparingly used lest it become an addictive excuse for
judicial sloth. It is an additional condition for its validity that this kind of
decision may be resorted only in cases where the facts are in the main
accepted by both parties or easily determinable by the judge and there
are no doctrinal complications involved that will require an extended
discussion of the laws involved. The memorandum decision may be
employed in simple litigations only, such as ordinary collection cases, where
the appeal is obviously groundless and deserves no more than the time
needed to dismiss it.

It is obvious that the decision rendered by respondent judge failed to conform to this
requirement. The cryptic decision simply referenced the appealed decision of the MTCC and
forthwith found the same as compliant with procedural due process under the Rules of
Summary Procedure. Nowhere in the decision does respondent judge make a statement of
the facts which led to the filing of the appeal. More importantly, the decision does not
contain respondent judge's factual findings, albeit affirming those of the MTCC, from which
she based her conclusions of law. Ineluctably, respondent judge transgressed the
constitutional directive.

Although not every judicial error signifies ignorance of the law which warrants administrative
sanction, this holds true only in instances of tolerable misjudgment. Where, however, an
elementary constitutional mandate is violated, the blunder constitutes ignorance of the law.
Hence a P20k fine is imposed upon the judge.

#9 Yusuke Fukuzumi vs. Sanritsu Great International Corp et al

GR No. 140630, Aug 12, 2004

FACTS:
trial court rendered judgment in Civil Case No. 97-0237 in favor of the plaintiffs Sanritsu Great
International Corporation, et al, ordering defendant Yusuke Fukuzumi to pay to the plaintiffs
sums of money.

The defendant received a copy of the decision on February 9, 1999 and on February 23, 1999,
filed his motion for reconsideration of the decision. On April 27, 1999, the trial court issued an
Order denying the defendant’s motion. The latter received a copy of the order on May 5, 1999.
Instead of perfecting his appeal on May 6, 1999, he filed his notice of appeal only on May 7,
1999, or one day beyond the reglementary period therefor. The court issued an Order on June
2, 1999 denying the defendant’s notice of appeal. The defendant received the court’s order on
June 10, 1999. On June 22, 1999, the defendant filed a Verified Petition for Relief from the
order of the trial court denying his notice of appeal.
In his petition for relief, the petitioner averred that his counsel suffered a high blood pressure on
May 6, 1999 which impelled said counsel to rest for three days, upon the advice of his doctor,
thus, hindered him from filing the notice of appeal on May 6, 1999. The petitioner appended to
his petition a verified Medical Certificate issued by Dr. Lakambini

On August 5, 1999, the trial court issued an Order denying the defendant’s petition on the
ground that Section 2, Rule 38 of the Rules of Court was not applicable. The defendant’s motion
for reconsideration of the order was denied by the court per its Order dated October 22, 1999.
The defendant, now the petitioner, filed his petition for review on certiorari under Rule 45 with
this Court alleging that: (a) the court a quo has decided a question of substance in a way not in
accord with law when it ruled that the petitioner’s petition for relief from denial of appeal filed
pursuant to Sec. 2, Rule 38 of the 1997 Rules of Civil Procedure is NOT applicable since the
denial of the appeal was based on Sec. 3, Rule 41 in relation to Sec 2, Rule 22 of the 1997
Rules of Civil Procedure; (b) the court a quo has so far departed from the accepted and usual
course of judicial proceedings when, in denying the petition for relief from denial of appeal, it did
not rule on the merit of the grounds raised therein but, instead, substituted its own speculation
by saying that the petition for relief from denial of appeal is allegedly more of an afterthought

In his comment on the petition, the respondents averred that (a) the petitioner cannot invoke
Rule 38, Section 2 of the Rules of Court which applies only to negligence of a party and not of
his counsel; (b) by his negligence, the petitioner failed to avail of other remedies other than filing
his petition for relief from the June 22, 1999 Order of the trial court; and (c) the alleged high
blood pressure of the petitioner’s counsel is merely an afterthought.

ISSUE:
W/n the delay in the filing of a notice of appeal was justified? – NO, the petitioner has not shown
any exceptional circumstances to justify the reversal of the assailed order of the trial court and
the reinstatement of his appeal.

HELD:
The remedy of a party whose notice of appeal is denied by the trial court, although such notice
is filed within the period therefor, is to file a motion for reconsideration of such order and, if the
court denies such motion, to file a petition for certiorari under Rule 65 of the Rules of Court.
As provided in Sec. 2, Rule 38. If the party is prevented by fraud, accident, mistake or
excusable negligence from filing his notice of appeal within the reglementary period
therefor, his remedy is to file a petition for relief, in the same case, from the order of the
trial court denying his notice of appeal,

Such party (like in the instant case) is not entitled to relief under Rule 38, Section 2 of the Rules
of Court if he was not prevented from filing his notice of appeal by fraud, accident, mistake or
excusable negligence. Such relief will not be granted to a party who seeks to be relieved from
the effects of the judgment when the loss of the remedy of law was due to his own negligence,
or a mistaken mode of procedure for that matter; otherwise, the petition for relief will be
tantamount to reviving the right of appeal which has already been lost either because of
inexcusable negligence or due to a mistake of procedure by counsel.

The petitioner’s failure to file his notice of appeal within the period therefor is far from excusable.
It, rather, shows negligence no less. Although the medical certificate shows that the counsel
was advised to rest for three days from May 6, 1999 or until May 8, 1999, however on May 7 the
counsel was able, well enough, to prepare and file the notice of appeal. The petitioner even
failed to allege in his notice of appeal that the same was filed one day late because his counsel
was suffering from high blood pressure on May 6, 1999. It was only after the petitioner received
the order of the trial court denying his notice of appeal and filed his petition for relief on June 22,
1999 did he allege that his counsel was suffering from high blood pressure on May 6, 1999. It
was only on June 18, 1999 that the petitioner secured a medical certificate from Dr. Crespo.

Thus, we are not convinced by the petitioner’s claim that his counsel was suffering from high
blood pressure on May 6, 1999, which prevented him from filing said notice of appeal on said
date. Said allegation is a mere afterthought to cover up his and his own counsel’s collective
negligence. It is settled that clients are bound by the mistakes, negligence and omission of their
counsel.

#14 Malonzo vs. Mariano

170 SCRA 667, May 31 1989

FACTS:
Universal Ventures constituted a mortgages over his property, consisting of parcels of land and
the apartment and commercial building thereon standing, located in Manila, as security for the
payment of a loan. Upon failure to fail the loan, Banco Filipino caused the extra-judicial
foreclosure of the property and won as the highest bidder. Certificate of Sale was registered
with the Register of Deeds.

On the same day that title was issued to it, Banco Filipino filed a petition for a writ of possession
with the CFI. The petition recited the foregoing facts and the additional circumstances that (1)
the mortgagor, Universal Ventures, Inc., had failed to redeem the property within the one-year
period allowed by law, and (2) the mortgagor was still in possession of the property, as well as
certain other persons claiming rights under said mortgagor although said rights had not been
recorded in the Register of Deeds

Among the persons named in the petition as "claiming (rights) under" Universal Ventures, Inc.,
were petitioners Avelina Malonzo, Barbara Brown, and Bonifacia Monzon. After hearings were
had on the petition, Judge Mariano issued the assailed writ of possession. Through the writ, the
Sheriff of Manila attempted to evict the persons in occupancy of the property.

Three of the persons sought to be evicted, Enrico Malonzo, husband of Avelina Malonzo,
Barbara Brown, and Bonifacia Monzon, filed suit against Banco Filipino and the City Sheriff
seeking to perpetually restrain the enforcement of the writ of possession against them, and to
recover damages resulting from the defendants' attempts to enforce it. In their complaint, they
alleged that they were occupying their respective premises in the foreclosed property "by virtue
of a verbal lease contract with Universal Ventures, Inc.," that "there being no ejectment case
filed against them neither were they made a party to the Petition for Writ of Possession of
defendant BANCO FILIPINO . . . ," they were entitled to remain in possession and could not be
ousted under the writ of possession; moreover, "under Presidential Decree No. 20 and Batas
Pambansa Blg. 25, transfer of ownership whether by virtue of sale or mortgage will not be a
ground for ejectment."

14 days later, these same persons Malonzo et al, instituted a second action, a special civil
action for prohibition. Named respondents were the same defendants in Civil Case No. 132075
— Banco Filipino and the City Sheriff of Manila — as well as Judge Mariano, who had issued
the writ of possession. The petition recited substantially the same facts as those set out in the
complaint in Civil Case No. 132075

ISSUE:
whether or not that writ of possession — which is the final process to carry out or
consummate the extra-judicial foreclosure of the mortgage — may be enforced by the
sheriff against persons other than the mortgagor who are in occupancy of the foreclosed
property – YES

HELD:
Section 7 of Act 3135, as amended by Act 4118, grants to the purchaser at an extra-judicial
foreclosure sale, an absolute right to possession of the property sold during the one-year period
of redemption and a fortiori after the lapse of said period without any redemption being
made. Possession may be obtained under a writ which may be applied for ex parte.

Although, Under section 6 of Act No. 3135 and Sections 29 to 31 and section 35 Rule 39 of the
Revised Rules of Court, in case of an extra-judicial foreclosure of a real estate mortgage, the
possession of the property sold may be given to the purchaser by the sheriff after the period of
redemption had expired, unless a third person is actually holding the property adversely to the
mortgagor, HOWEVER, The lessees of the mortgagor (such as the instant case) cannot be
deemed third parties "actually holding the property adversely" to the mortgagor. They
derive their rights to the possession of the property exclusively from the mortgagor, in virtue of
verbal agreements of lease. They were lessees at the time that the property occupied by them
was mortgaged by their lessor to respondent Banco Filipino. As such, they were not holding the
property adversely to the mortgagor, but were exercising rights under, derived from, said
mortgagor, who was their lessor. Upon the cessation of their lessor's rights over the
property, their own also ceased. The writ of possession was therefore properly enforceable
against them.

Since There being no dispute about the fact that no redemption had been made within one (1)
year from registration of the extra-judicial foreclosure sale, there can be no question about the
absolute right of Banco Filipino, as purchaser, to a writ of possession

It is the ministerial duty of the Court upon mere motion to issue a writ of possession to
the purchaser of property sold in an extra-judicial foreclosure of real estate mortgage
after the one year period for redemption has expired without any redemption being made.

# 19 Trans International vs. CA

285 SCRA 49 (1998)

FACTS:
Petitioner filed a complaint for damages against private respondent and two of its principal
officers arising from the rescission of a contract for the supply and delivery of woodpoles before
the RTC of Quezon City.

On May 22, 1996, the trial court rendered a decision sustaining the claim of the petitioner. On
June 19, 1996, private respondents filed their motion for reconsideration , alleging in the main
that certain facts were overlooked, ignored or wrongly appreciated by the trial court, which,
however, was denied by the trial court on August 2, 1996. A copy of the aforesaid order was
personally delivered to private respondent's office on August 23, 1996 at 4:54 P.M., Friday and
was received by a clerk assigned at the office of the VP-General Counsel. For failure of the
clerk to report for work last August 26 and 27, 1996 due to an illness respondent was able to file
their notice of appeal only in the afternoon of August 27, after the said order was retrieved from
the clerk's drawer.

On August 29, 1996, petitioner filed a motion for execution before the trial court contending that
its decision dated May 22, 1996 had become final and executory since respondents failed to
make a timely appeal and praying for the issuance of an order granting the writ of
execution. On the other hand, respondents filed an opposition thereto alleging therein that the
cause of their failure to make a timely appeal was due to unforeseeable oversight and accident
on the part of their employee who was unable to report for work because of illness
The trial court denied private respondent's notice of appeal for having been filed out of time and
granted the petitioner’s motion for execution.

On a petition for certiorari, questioning the order of the trial court on the ground that the denial
was on the basis of a mere technicality, the CA annulled and set aside the decision of the trial
court.

Hence, this petition for review by way of a petition for certiorari. Petitioner avers that the
respondent court committed grave abuse of discretion amounting to lack or excess in
jurisdiction when it gave due course to the petition of respondents considering their admission
that the notice of appeal was belatedly filed before the trial court. Since the ground submitted by
respondents for their late filing does not constitute excusable neglect then the respondent court
allegedly grievously erred in admitting the same. Furthermore, petitioner argues that appeal is
not a natural right and is merely a statutory privilege which must be exercised within and in the
manner provided by law. Failure to do so is fatal and the right of appeal would be lost.
Respondents, while admitting that the appeal was filed out of time, maintain that the rules on
appeal should not be construed in such a manner as to give way to its rigid application without
even considering the circumstances which led to the belated filing of the notice of appeal. In
fact, it is argued, this Court has on several occasions, recognized the need to relax the stringent
rules on appeal on reasons of equity and substantial justice

ISSUE:
W/n the right to appeal has been lost – NO

HELD:
We find for the respondent. The general rule holds that the appellate jurisdiction of the courts is
conferred by law, and must be exercised in the manner and in accordance with the provisions
thereof and such jurisdiction is acquired by the appellate court over the subject matter and
parties by the perfection of the appeal. The party who seeks to avail of the same must comply
with the requirements of the rules. Failing to do so, the right to appeal is lost. In fact, it has been
long recognized that strict compliance with the Rules of Court is indispensable for the
prevention of needless delays and for the orderly and expeditious dispatch of judicial business.
Nonetheless, this court has on several occasions relaxed this strict requirement. In the case of
Toledo, et al. vs. Intermediate Appellate Court, et al., we allowed the filing of an appeal where a
stringent application of the rules would have denied it, but only when to do so would serve the
demands of substantial justice and in the exercise of our equity jurisdiction. Thus, for a party to
seek exception for its failure to comply strictly with the statutory requirements for
perfecting its appeal, strong compelling reasons such as serving the ends of justice and
preventing a grave miscarriage thereof must be shown, in order to warrant the Court's
suspension of the rules.

The case at bench squarely meets the requisites postulated by the aforequoted rule. If
respondents' right to appeal would be curtailed by the mere expediency of holding that they had
belatedly filed their notice of appeal, then this Court as the final arbiter of justice would be
deserting its avowed objective, that is to dispense justice based on the merits of the case and
not on a mere technicality. Needless to say, the peculiar circumstances attendant in this case
strongly demands a review of the decision of the trial court. As aptly observed by the
respondent court, to wit:

"In this case, the one-day delay in filing the notice of appeal was due to an unforeseen
illness of the receiving clerk Ronald Lapuz in the office of the General Counsel of
petitioner NAPOCOR.

"The delay was properly explained and sufficiently justified; considerations of substantial
justice and equity strongly argue against a rigid enforcement of the technical rules of
procedure, considering not only that the delay was only for one day, and the petitioners
have pleaded an unforeseeable oversight and illness on the part of the receiving clerk,
as an excuse. More important, the decision sought to be appealed from awarded an
enormous sum in the amount of P37,554,414.99, by way of damages arising from the
rescission of the contract with private respondents, and legal and factual bases for the
awards, and the 12% interest thereon, are being questioned, on the ground among
others, that the amount awarded for unrealized profits ($1,325,703.68) was bigger than
the amount prayed for in the complaint ($788,700.00) , to insist that the one-day delay in
filing the appeal despite the plausible reason adduced therefor is a "fatal mistake" due
alone to the negligence of counsel is to insist on a rigid application of the rules, which as
repeatedly enunciated by the Supreme court, should help secure, not override
substantial justice.

# 24 Lapid vs. CA
334 SCRA 738, June 29 2000

FACTS:
a complaint was filed charging petitioner Gov. Lapid, and 5 other provincial officers 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, gravel, 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 and 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."
The Ombudsman rendered a decision finding petitioner liable for misconduct and meted on
petitioner the penalty of suspension for one year without pay. Petitioner moved for
reconsideration, but the same was denied.

The decision was brought to the Court of Appeals by way of a petition for review with petitioner
praying for the issuance of a writ of preliminary injunction. The temporary restraining order was
issued by the appellate court

After the lapse of the period (60 day lifetime of TRO) without the Court of Appeals resolving the
issuance of said writ, petitioner filed with the Supreme Court a petition for certiorari, prohibition
and mandamus seeking the issuance of a temporary restraining order and the reversal of the
assailed decision.

Court of Appeals issued a resolution denying the petitioner's prayer for injunctive relief. The
following day, the DILG implemented the assailed decision of the Ombudsman and the highest
ranking Provincial Board Member of Pampanga, Edna David, took her oath of office as O.I.C. —
Governor of the Province of Pampanga.

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 further alleged the apparent prejudgment of
the merits of the case by the Appellate Court in denying his prayer for preliminary injunction and
that the DILG acted prematurely in implementing the decision.

The Solicitor-General and the Office of the Ombudsman filed their respective comments 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 maintains 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 petitioner 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 andAdministrative
Code that decisions in administrative disciplinary cases are immediately executory. The
Solicitor-General filed an additional comment alleging that the petitioner did not question the
executory character of the decision of the Ombudsman and that he is presenting this argument
for the first time before the Supreme Court.

The Third Division of the Court found that the immediate implementation of the decision was
premature. It held that 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 Court thus issued an order for the immediate
reinstatement of petitioner. Thus, these motions for reconsideration filed by the Offices of the
Solicitor General and the Ombudsman of the April 5, 2000 Resolution.|||

ISSUE:
W/n the decision of the Office of the Ombudsman finding herein petitioner administratively liable
for misconduct and imposing upon him a penalty of one (1) year suspension without pay is
immediately executory pending appeal. – NO, the 1 year suspension without pay is NOT
immediately executory
HELD:
(1) It is clear from the provisions of Section 27 of R.A. 6770 (Ombudsman Act of 1989) and
Section 7, Rule III of the Rules of Procedure of the Office of the Ombudsman that the
punishment imposed upon petitioner, i.e., suspension without pay for one year, is
not 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 "inclusio unius est
exclusio alterius" 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
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 Rule 43) shall have been filed by him as prescribed in Section 27 of R.A.
6770."|||
(2) The contention of the Solicitor General, that the case of Fabian vs Desierto has voided
Sec. 27 of RA 6770 and Sec. 7, Rule III of AO No. 07, is not well-taken. 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.
(3) Neither can respondents find support in Section 12, Rule 43 of the 1997 Rules of Civil
Procedure, as they 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.
a. 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.
b. The contention of respondents is misplaced. There is no general legal principle
that mandates that all decisions of quasi-judicial agencies are immediately
executory.
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.
c. 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.
Section 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.
(4) 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.|||

# 29 Fajardo vs. Bautista

232 SCRA 292, May 10 1994

FACTS:
Private respondents Jareño are the owners and developers of a subdivision known as the
Calamba Central Compound. On various dates, entered into separate Contract to sell with the
petitioners as buyers.

On the other hand, private respondent Fernando Realty and Development Corporation have
entered into a contract to sell with Petitioner Fajardo as buyer, with the subject Lot No. 10,
Block No. 3, also located at the Calamba Central Compound Subdivision
It appears, however, that on 18 October 1986, the JAREÑOS sold the aforesaid lots subject of
the different contracts to sell to private respondent Ruben Habacon under separate documents
denominated as "Kasulatan ng Bilihan." On 18 February 1991, HABACON caused the
cancellation of the certificates of title covering the said lots and the issuance of new ones in his
name.

When the petitioners learned of these, they filed on 21 June 1991 separate complaints with the
court a quo for annulment of the sales in favor of HABACON and of the new certificates of title
issued to him, for reinstatement of the certificates of title cancelled by those issued to
HABACON, and for accounting and damages.

On 9 August 1991, HABACON filed a motion to dismiss the complaints on the ground that the
plaintiffs (petitioners herein) have no legal capacity to sue because they were not parties to
the "BILIHAN."

In its Order of 12 August 1991, the trial court, directed the plaintiffs to show cause why their
complaints should not be dismissed for lack of jurisdiction pursuant to P.D. No. 957 (Subdivision
and Condominium Buyers' Protective Decree), as amended by P.D. No. 1344, and the doctrine
laid down by this Court in Solid Homes, Inc. vs. Payawal.

In their compliance with the show cause order, the petitioners maintained that it is the trial
court, and not the HLRB, which has jurisdiction over the complaint. They contend that Solid
Homes, Inc. vs. Payawal is inapplicable because in their cases: (1) the title of the developers,
the JAREÑOS, had already passed to a third person, HABACON; (2) their action is for the
annulment of the title of a third person; (3) HABACON is not a developer; and (4) Section 19 (1)
of B.P. Blg. 129 vests upon the Regional Trial Court the jurisdiction to hear and decide all civil
actions which involve title to or possession of any real property or any interest therein, except
actions for unlawful detainer and forcible entry.
In its Order of 4 September 1991, the trial court dismissed the aforesaid civil cases for lack of
jurisdiction. It held that PD No. 957 as amended by P.D. No. 1344 gives the National Housing
Authority now the Human Settlement Regulatory Commission (HSRC) inclusive [sic] jurisdiction
to hear and, decide cases of 'unsound real estate business practices' (Sec. 1 (a), P.D. 1344).
This authority is broad enough to include all kinds of real estate transactions involving
subdivision lot or condominium, wherein either the subdivision lot or condominium buyer, project
owner, developer, dealer, broker or salesman is involved."

Petitioner’s MR was denied, It ruled that while HABACON may not be the developer, the
JAREÑOS are, and by selling the same lots to HABACON after they were previously sold to
different parties, the JAREÑOS may have committed an "unsound business practice."
Moreover, it ruled that Section 19 (2) of B.P. Blg. 129, being a general law, should yield to P.D.
No. 957, as amended by P.D. No. 1344, which is a special law.

On 24 October 1991, the petitioners filed the instant special civil action for certiorari to annul the
Orders of the trial court on the ground that the judge acted with grave abuse of discretion
amounting to lack of jurisdiction in dismissing their complaints and that they have no other plain,
speedy, and adequate remedy in the ordinary course of law. The petitioners maintain that the
trial court has jurisdiction over their complaints

ISSUE:
W/n the trial court gravely abused its discretion in dismissing, for lack of jurisdiction, the
complaints filed by the petitioners – NO, trial Court correctly dismissed the complaint

HELD:
(1) Generally, an order of dismissal, whether right or wrong, is a final order, and
hence a proper subject of appeal, not certiorari. The remedies of appeal
and certiorari are mutually exclusive and not alternative or successive. Accordingly,
although the special civil action of certiorari is not proper when an ordinary
appeal is available, it may be granted where it is shown that the appeal would be
inadequate, slow, insufficient, and will not promptly relieve a party from the
injurious effects of the order complained of, or where appeal is inadequate and
ineffectual. Nevertheless, certiorari cannot be a substitute for the lost or lapsed
remedy of appeal, where such loss is occasioned by the petitioner's own neglect
or error in the choice of remedies.
The petitioners admit that they received a copy of the trial court's order dismissing their
complaints on 4 October 1991. The instant petition was filed on 24 October 1991 or
beyond the 15-day period to appeal from the order. The petitioners have not even
attempted to explain why they were unable to appeal from the challenged order within
the reglementary period. This civil action then was resorted to as a substitute for the lost
or lapsed remedy of appeal, and since none of the exceptions to the rigid rule barring
substitution of remedies was alleged to exist in this petition, or even indicated by the
pleadings, this petition must be dismissed.
(2) Trial Court has no jurisdiction on the case, since the complaints involve unsound
real estate business practices between the owners and developers of the
subdivision and petitioner, jurisdiction is vested to HLURB