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Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 153653               October 2, 2009

SAN MIGUEL BUKID HOMEOWNERS ASSOCIATION, INC., herein represented by its PRESIDENT, MR. EVELIO BARATA, Petitioner,
vs.
THE CITY OF MANDALUYONG, represented by the HON. MAYOR BENJAMIN ABALOS, JR.; A.F. CALMA GENERAL CONSTRUCTION, represented by its President, ARMENGO F. CALMA, Respondents.

D E C I S I O N

PERALTA, J.:

This resolves the petition for certiorari under Rule 65 of the Rules of Court, seeking nullification of the Resolutions of the Court of Appeals (CA) dated April 16, 2002¹ and May 14, 2002,² in CA-G.R. SP No. 69827, dismissing the petition for certiorari filed by herein petitioner.

The undisputed facts are as follows.

Petitioner San Miguel Bukid Homeowners Association, Inc. (formerly known as Bukid Neighborhood Landless Association), an association of urban poor dwellers of San Miguel Bukid Compound, Plainview, Mandaluyong City, filed with the Regional Trial Court (RTC) of Mandaluyong City a Complaint³ for specific performance and damages against respondents City of Mandaluyong (City) and A.F. Calma General Construction (Calma). It is alleged therein that pursuant to the City’s Land for the Landless Program, petitioner and the City entered into a Memorandum of Agreement (MOA), whereby the City purchased lots and then transferred the same to petitioner with a first real estate mortgage in favor of the City. Subsequently, the City and Calma entered into a Contract Agreement for the latter to construct row houses and medium-rise buildings on the aforementioned lots within 540 calendar days for the benefit of petitioner’s members. In June 1995, Calma began construction, but in June 1996, work on the project was stopped. The period of 540 days elapsed sometime in November 1996, but the houses and buildings were not yet completed. Petitioner’s letters sent to the Mayor of the City requesting an update on the project remained unanswered. Hence, petitioner filed the complaint praying that the City and Calma be ordered to perform their respective undertakings and obligations under the Contract Agreement and to pay petitioner attorney’s fees, exemplary damages and litigation expenses.

The City filed an Answer⁴ within the extended period granted by the trial court. The City’s main defense was that the MOA had already been abrogated due to petitioner’s failure to secure a loan from the Home Mortgage and Finance Corporation, and that petitioner had no standing or personality to institute the action, as it was not a party to the Contract Agreement.

Calma did not file an Answer.

On September 12, 2000, petitioner filed a Motion to Declare Defendant in Default. It pointed out that the lawyer who signed the City’s Answer was a private counsel, not the Office of the City Legal Officer which, according to petitioner, was the only office authorized under Section 248 of the Local Government Code to represent the local government unit in all civil actions. Thus, petitioner prayed that the City be declared in default on the ground that the City’s Answer was a mere scrap of paper and should not be admitted in court for being an unsigned pleading, the same not having been signed and filed by a duly authorized representative of the City.

In its Order⁵ dated June 4, 2001, the RTC denied petitioner’s motion, ruling that a party should only be declared in default in cases showing clear obstinate refusal or inordinate neglect in complying with the Orders of the court. Petitioner’s motion for reconsideration of said order was also denied per Order⁶ dated January 7, 2002.1avvphi1

The matter was elevated by petitioner to the CA via a petition for certiorari. However, in the assailed Resolution⁷ dated April 16, 2002, the CA dismissed the petition outright because the person who signed the Verification/Certification of Non-Forum Shopping thereof did not appear to be authorized by petitioner. Petitioner filed a motion for reconsideration but the same was denied in the second assailed Resolution⁸ dated May 14, 2002.

Hence, petitioner came to this Court seeking the issuance of a writ of certiorari against the CA, on the following grounds:

I. THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT HELD THAT THE REPRESENTATIVE OF THE PETITIONER WHO SIGNED THE VERIFICATION/CERTIFICATION OF NON-FORUM SHOPPING "DID NOT APPEAR TO BE DULY AUTHORIZED TO DO SO," WHEN IN FACT THE SAID REPRESENTATIVE WAS DULY AUTHORIZED BY THE PETITIONER CORPORATION’S BOARD OF DIRECTORS.

II. THE HONORABLE COURT OF APPEALS ERRED IN APPLYING THE RULING IN BA SAVINGS BANK VS. SIA (336 SCRA 484) AGAINST THE PETITIONER AND DISMISSED THE PETITION FOR CERTIORARI.

III. THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION IN DENYING THE MOTION FOR RECONSIDERATION WHEN IT HELD THAT THE LACK OF CERTIFICATION AGAINST FORUM SHOPPING IS GENERALLY NOT CURABLE BY THE SUBMISSION THEREOF AFTER THE FILING OF THE PETITION, WHEN IN TRUTH, WHAT WAS SUBMITTED BY PETITIONER WITH THE MOTION FOR RECONSIDERATION WAS NOT A CERTIFICATION AGAINST FORUM SHOPPING BUT A SECRETARY’S CERTIFICATE OF A BOARD RESOLUTION CONFIRMING AND RATIFYING THE AUTHORITY OF THE REPRESENTATIVE TO ACT AS SUCH.⁹

The petition is doomed to fail.

Section 1, Rule 65 of the Rules of Court states that certiorari may be resorted to when there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law. Thus, in Abedes v. Court of Appeals,¹⁰ the Court held that:

x x x for a petition for certiorari or prohibition to be granted, it must set out and demonstrate, plainly and distinctly, all the facts essential to establish a right to a writ. The petitioner must allege in his petition and has the burden of establishing facts to show that any other existing remedy is not speedy or adequate and that (a) the writ is directed against a tribunal, board or officer exercising judicial or quasi-judicial functions; (b) such tribunal, board or officer has acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to excess or lack of jurisdiction; and, (c) there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law. These matters must be threshed out and shown by petitioner.¹¹

The Resolutions of the CA which petitioner seeks to nullify are orders of dismissal. In Magestrado v. People,¹² the Court explained that an order of dismissal is a final order which is a proper subject of an appeal, not certiorari. This was reiterated in Pasiona v. Court of Appeals,¹³ where it was emphasized that if what is being assailed is a decision, final order or resolution of the CA, then appeal to this Court is via a verified petition for review on certiorari under Rule 45 of the Rules of Court. In cases where an appeal was available, certiorari will not prosper, even if the ground therefor is grave abuse of discretion.¹⁴ The existence and availability of the right of appeal are antithetical to the availability of the special civil action for certiorari, although 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, the extraordinary writ of certiorari may be granted.¹⁵

Clearly, since the present case involves a final order of dismissal issued by the CA, the proper course of action would have been to file a petition for review on certiorari under Rule 45. Although there are exceptions to the general rule, petitioner utterly failed to allege and prove that the extraordinary remedy of the writ of certiorari should be granted, because an appeal, although available, would be inadequate, insufficient and not speedy enough to address the urgency of the matter. There is nothing in the petition to show that this case qualifies as an exception to the general rule. The circumstances prevailing in this case reveal that whatever grievance petitioner may be suffering from the dismissal of its petition with the CA could be properly addressed through a petition for review on certiorari.

On the ground alone that petitioner resorted to an improper remedy, the present petition is already dismissible and undeserving of the Court’s attention. However, even on the merits, the petition must be struck down.

In Fuentebella v. Castro,¹⁶ the Court categorically stated that "if the real party-in-interest is a corporate body, an officer of the corporation can sign the certification against forum shopping so long as he has been duly authorized by a resolution of its board of directors."¹⁷ In this case, the Certificate of Board Resolution attached to the petition for certiorari filed with the CA reads as follows:

x x x in a meeting of the Board of Directors of the SAN MIGUEL BUKID HOMEOWNERS ASSOCIATION, held on 7 November 1999, the following resolution was unanimously adopted by the General Assembly of the Association:

RESOLVED, that the ASSOCIATION re-file its Complaint for Specific Performance with Damages against the CITY GOVERNMENT OF MANDALUYONG and A.F. CALMA GENERAL CONSTRUCTION CORPORATION in order to enforce their obligations under the CONTRACT AGREEMENT for a housing project in favor of the ASSOCIATION;

RESOLVED, further, that MR. EVELIO D. BARATA, President of the ASSOCIATION, be authorized to initiate, sign, file and prosecute the COMPLAINT.¹⁸

Evidently, petitioner only authorized its President, Evelio Barata, to initiate, sign, file and prosecute the Complaint for specific performance.

Certiorari, as a special civil action, is an original action invoking the original jurisdiction of a court to annul or modify the proceedings of a tribunal, board or officer exercising judicial or quasi-judicial functions.¹⁹ It is an original and independent action that is not part of the trial or the proceedings on the complaint filed before the trial court.²⁰ The petition for certiorari before the CA is, therefore, a separate and distinct action from the action for specific performance instituted before the RTC, as the writ of certiorari being prayed for is directed against the judicial or quasi-judicial body, not against the private parties in the original action for specific performance. Such being the case, the November 7 1999 Resolution of the Board of Directors of petitioner association is not and cannot be considered as an authorization for its President, Evelio Barata, to initiate, sign, file and prosecute another case for the special civil action of certiorari. The CA was, thus, correct in dismissing the petition for lack of authority of Evelio Barata to sign the Certification of Non-Forum Shopping in representation of petitioner.

The submission of a Secretary’s Certificate with the Motion for Reconsideration is also insufficient to cure the initial defect. Said Certificate stated that petitioner’s Board of Trustees approved a Resolution at a meeting held on April 7, 2002, confirming and ratifying the authority of Mr. Barata to sign all necessary papers for the petition for certiorari. Note that the petition was filed on March 26, 2002, or before the date of said Resolution. There is no certification as to when petitioner’s Board of Trustees originally granted Mr. Barata authority to show that as of the date of the filing of the petition for certiorari, Mr. Barata had been authorized to perform such acts. Moreover, as ruled in Tible and Tible Company, Inc. v. Royal Savings and Loan Association,²¹ to wit:

In Athena Computers, Inc. v. Reyes, the Court stressed that "certiorari, being an extraordinary remedy, the party who seeks to avail of the same must strictly observe the rules laid down by the law." x x x.

x x x x

x x x subsequent compliance does not ipso facto entitle a party to a reconsideration of the dismissal order. As the Court aptly observed in Batoy v. Regional Trial Court, Br. 50, Loay, Bohol:

x x x the requirement under Administrative Circular No. 04-94 for a certificate of non-forum shopping is mandatory. The subsequent compliance with said requirement does not excuse a party’s failure to comply therewith in the first instance. In those cases where this Court excused the non-compliance with the requirement of the submission of a certificate of non-forum shopping, it found special circumstances or compelling reasons which made the strict application of said Circular clearly unjustified or inequitable. x x x ²² (Emphasis supplied)

As in the present case, such special circumstances or compelling reasons are absent.

IN VIEW OF THE FOREGOING, the petition is DISMISSED for lack of merit. The Resolutions of the Court of Appeals in CA-G.R. SP No. 69827, dated April 16, 2002 and May 14, 2002, are AFFIRMED.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

MINITA V. CHICO-NAZARIO Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

ANTONIO EDUARDO B. NACHURA
Associate Justice

A T T E S T A T I O N

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

CONSUELO YNARES-SANTIAGO
Associate Justice
Third Division, Chairperson

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, I certify that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

REYNATO S. PUNO
Chief Justice

Footnotes

¹ Penned by Associate Justice Romeo A. Brawner, with Associate Justices Jose L. Sabio, Jr. and Sergio L. Pestaño, concurring; rollo, p. 70.

² Penned by Associate Justice Romeo A. Brawner, with Associate Justices Sergio L. Pestaño and Danilo B. Pine, concurring; id. at 79-80.

³ CA rollo, pp. 27-31.

⁴ Id. at 40-44.

⁵ Id. at 45-46.

⁶ Id. at 54.

⁷ Supra note 1.

⁸ Supra note 2.

⁹ Rollo, pp. 31-32.

¹⁰ G.R. No. 174373, October 15, 2007, 536 SCRA 268.

¹¹ Id. at 284. (Emphasis supplied.)

¹² G.R. No. 148072, July 10, 2007, 527 SCRA 125, 133-134.

¹³ G.R. No. 165471, July 21, 2008, 559 SCRA 137.

¹⁴ Id. at 151.

¹⁵ Magestrado v. People, supra note 12, at 136.

¹⁶ G.R. No. 150865, June 30, 2006, 494 SCRA 183.

¹⁷ Id. at 191. (Emphasis ours.)

¹⁸ CA rollo, p. 26. (Emphasis and underscoring ours.)

¹⁹ Rules of Court, Rule 65, Sec. 1, and Rule 56-A.

²⁰ Tible and Tible Company, Inc. v. Royal Savings and Loan Association, G.R. No. 155806, April 8, 2008, 550 SCRA 562, 574, citing Madrigal Transport, Inc. v. Lapanday Holding Corporation, 436 SCRA 123 (2004).

²¹ Id.

²² Id. at 577-579.

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