G.R. No. 151942               November 27, 2003

Spouses GREGORIO GO and JUANA TAN GO, petitioners,
JOHNSON Y. TONG; COURT OF APPEALS; and Honorable Judge JUAN NABONG of the Regional Trial Court, Branch 32, Manila, respondents.



As a rule, docket fees should be paid upon the filing of the initiatory pleadings. However, for cogent reasons to be determined by the trial judge, staggered payment thereof within a reasonable period may be allowed. Unless grave abuse of discretion is demonstrated, the discretion of the trial judge in granting staggered payment shall not be disturbed.

The Case

Petitioner assails the September 18, 2001 Decision1 and the January 21, 2002 Resolution2 of the Court of Appeals (CA) in CA-GR SP No. 58942. The decretal portion of the Decision reads as follows:

"WHEREFORE, the petition is hereby DENIED."3

The assailed Resolution denied petitioners’ Motion for Reconsideration.

The Facts

The facts of the case are summarized by the CA in this wise:

"Petitioner Juana Tan Go (petitioner Juana) purchased a cashier’s check dated September 13, 1996 from the Far East Bank and Trust Company (FEBTC) Lavezares, Binondo Branch in the amount of ₱500,000.00, payable to Johnson Y. Tong (private respondent).

"On petitioner Juana’s instruction, the cashier’s check bore the words ‘Final Payment/Quitclaim’ after the name of payee private respondent allegedly to insure that private respondent would honor his commitment that he would no longer ask for further payments for his interest in the ‘informal business partnership’ which he and she had earlier dissolved.

"After the check was delivered to private respondent, he deposited it with the words ‘Final Payment/Quitclaim’ already erased, hence, it was not honored.

"Private respondent’s counsel subsequently wrote the manager of FEBTC Lavezares Branch informing that the words ‘Final Payment/Quitclaim’ on the check had been ‘inadvertently erased without being initialed by your bank or the purchaser thereof’ and thus requesting that the check be replaced with another payable to ‘Johnson Tong-Final Settlement/Quitclaim’ with the same amount, the bank charges therefor to be paid by his client-private respondent.

"FEBTC did not grant the request of private respondent’s counsel, hence, private respondent filed a complaint against FEBTC and petitioner Juana and her husband Gregorio Go at the Manila RTC, for sum of money, damages, and attorney’s fees, subject of the case at bar.

"Answering the Complaint, therein defendants-herein petitioners Juana and her husband and FEBTC alleged that the erasure of the words ‘Final Payment/Quitclaim’ was intentional on private respondent’s part, reflective of his intention to collect more from petitioner Juana, hence, the non-issuance of a replacement check was justified, unless private respondent was sincere in abiding with the ‘terms agreed upon.’

"During the pendency of the case, petitioner’s son, George Tan Go, filed a criminal complaint against private respondent for falsification of the check. The criminal complaint was dismissed, however, by the Manila Prosecutor’s Office.

"On July 17, 1998, private respondent requested public respondent for leave to file Supplemental Complaint. Acting on the request, public respondent suggested to him ‘to file a Motion to admit’ within fifteen (15) days, copy furnished petitioners who were given the same number of days from receipt to file their Comment.

"On August 25, 1998, private respondent filed a ‘Motion for Leave to File a Supplemental Complaint and to Admit the Attached Supplemental Complaint’ which Supplemental Complaint alleged that petitioners ‘used’ their son to file the criminal complaint for falsification against him which caused damages, hence, the prayer for an increase in the amount of moral and exemplary damages sought to be recovered from ₱2.5 million to ₱55 million and praying for the award of actual damages of ₱58,075.00. The motion was set for hearing on September 4, 1998. Copy of the motion to petitioners was sent by registered mail.

"Public respondent, by Order of September 4, 1998, noting that petitioners had been furnished copy of the ‘Motion for Leave’ x x x but that there had been no comment thereon, granted the motion and admitted the Supplemental Complaint.

"Petitioners and FEBTC’s Comment-Opposition were subsequently filed.

"Petitioners and FEBTC filed their respective Motions for Reconsideration of the September 4, 1998 Order.

"On November 18, 1998, petitioners filed a Manifestation of Deposit and deposited to the RTC Clerk of Court the amount of ₱500,000.00 representing the amount of the check, ‘subject to the condition that it shall remain deposited until the disposition of the case.’

"Petitioners’ and FEBTC’s separate Motions for Reconsideration of the September 4, 1998 Order were later denied by Order of December 4, 1998, hence, petitioners filed their Answer dated December 18, 1998 to the Supplemental Complaint with Counterclaim, alleging as Special Affirmative defenses the following:

‘5. As already intimated, the defendants are not a party to the aforementioned criminal complaint, but only their son George who took it upon himself to file it in his own right, without their involvement in any way, hence, said incident cannot be pleaded as supplement to the original complaint, much less as a new cause of action without impleading George Go as party defendant.

‘6. Plaintiff cannot prosecute his Supplemental Complaint, and the same should be dismissed, unless the corresponding docket fee and legal fees for the monetary claims in the amount of ₱55,057,075.00 are paid for. x x x.

"On February 5, 1999, public respondent, acting on the verbal manifestation/motion of private respondent’s counsel, allowed the release of petitioners’ ₱500,000.00 deposit to private respondent.

"By order of November 17, 1999, public respondent, ‘in the interest of justice and because of the huge amount of outlay involved (the Court considers the business climate and the peso crunch prevailing),’ allowed private respondent to first deposit ₱25,000.00 on or before December 15, 1999 and ₱20,000.00 every month thereafter until the full amount of docket fees is paid, and ‘only then shall the deposits be considered as payment of docket fees.’

"Petitioners filed a Motion for Reconsideration of the November 17, 1999 Order which was, by Order of April 11, 2000, denied.

"Thus arose the present petition filed on May 30, 2000 which ascribes to public respondent the commission of grave abuse of discretion in issuing the Orders of February 5, 1999 (allowing the release of the ₱500,000.00 deposit to private respondent), November 17, 1999 (allowing the payment, on staggered basis, of the docket fees for the Supplemental Complaint) and April 11, 2000 (denying the Motion for Reconsideration of the November 17, 1999 Order)."4

Ruling of the Court of Appeals

In their Petition for Certiorari before the CA, petitioners alleged that respondent judge committed grave abuse of discretion when he issued the Orders dated February 5, 1999,5 November 17, 19996 and April 11, 2000.7

According to the CA, petitioners failed to assail, within the prescribed period, respondent judge’s February 5, 1999 Order allowing the release of the money deposited by them. It was only in their May 30, 2000 Petition before the CA that they questioned the Order. Moreover, the appellate court held that, anyway, private respondent was entitled to the deposit, which represented the amount indicated on the check that belonged to him.

As to the November 17, 1999 Order allowing private respondent to pay the docket fee on a staggered basis and the April 11, 2000 Order denying the Motion for Reconsideration thereof, the CA held that "Sun Insurance Office Ltd. x x x permits the payment of the prescribed docket fee within a reasonable period but in no case beyond the applicable prescriptive or regular period."8 In that case, the court a quo opined that the docket fee payment scheme imposed by the respondent judge "cannot be said to have been issued with grave abuse of discretion."9

Hence, this Petition.10

The Issues

In their Memorandum,11 petitioners submit the following issues for our consideration:

"Whether or not the Honorable Court of Appeals committed grave and serious errors which [are] tantamount to grave abuse of discretion when it upheld the validity of the Orders dated Feb[ruary] 5, 1999, November 17, [1999] and April 11, 2000 issued by public respondent Hon. Judge Juan Nabong of RTC Branch 32 of Manila, in Civil Case No. 97-81935.

"Whether or not public respondent Judge Juan Nabong committed grave abuse of discretion in not suspending the proceedings pending appeal with the Honorable Court of Appeals, and in x x x refusing to inhibit himself."12

The Court’s Ruling

The Petition has no merit.

Preliminary Issue:

Mode of Appeal

Private respondent argues that the instant Petition should have been brought under Rule 45 of the Revised Rules of Court and not under Rule 65. On the other hand, petitioners maintain that their suit questions interlocutory orders issued by the RTC and thus falls within the ambit of Rule 65, under which questions of law and facts may be raised.

We clarify. A petition for certiorari under Rule 65 of the Revised Rules of Court may be filed under the following condition:

"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 x x x."13

On the other hand, Rule 45 prevails under this circumstance:

"A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. x x x."14

Rule 45 of the Rules of Court specifically states that in all cases, the CA’s decisions, final orders or resolutions -- regardless of the nature of the action or proceedings involved -- may be appealed to this Court through a petition for review, which is just a continuation of the appellate process involving the original case.15 On the other hand, a special civil action under Rule 65 is an independent suit based on the specific grounds provided therein. As a general rule, certiorari cannot be availed of as a substitute for the lost remedy of an ordinary appeal, including that under Rule 45.16

Very recently, in Fortune Guarantee and Insurance Corporation v. CA,17 this Court had the occasion to discuss this matter. In that case, the petitioner alleged grave abuse of discretion on the part of the respondent trial court judge when the latter issued the assailed Order granting a Motion for Execution Pending Appeal. Said the Court in that case:

"[I]t must be pointed out that petitioner adopted the wrong mode of appeal in bringing this case before us. The proper remedy of a party aggrieved by a decision of the Court of Appeals is a petition for review under Rule 45 which is not similar to a petition for certiorari under Rule 65 of the Rules of Court. x x x."18

In the present case, petitioners are appealing a final decision of the CA by resorting to Rule 65, when their remedy should be based on Rule 45.19 When an error of judgment of the CA is brought up to this Court for review, the action is properly designated as a petition for review and not a special civil action.20 Thus, while the instant Petition is one for certiorari under Rule 65 of the Rules of Court, the assigned errors are more properly addressed in a petition for review under Rule 45.

Accordingly, when parties adopt an improper remedy, as in this case, their petitions may be dismissed outright.21 However, in the interest of substantial justice, we deem it wise to overlook procedural technicalities in order to rule speedily on this case22 and demonstrate that even without the procedural infirmity, the Petition should be rejected due to its lack of merits.

First Issue:

Release of the Money Deposited

Petitioners argue that respondent judge committed grave abuse of discretion when he issued the February 5, 1999 Order allowing the release of their ₱500,000 bank deposit. According to them, he "demonstrated his capacity for abuse of judicial authority as the release of the money was made in direct contravention of [their] condition thereto which was that the money shall remain deposited until the disposition of this case."23

We disagree. As correctly found by the CA, there was a prior understanding between the parties that petitioners would deposit ₱500,000, which private respondent could withdraw if he so desired.24 Because petitioners claim that they deposited the money as a sign of good faith, we see no reason why they should not abide by their earlier agreement with private respondent. In fact, in their Manifestation of Deposit,25 they even referred to the earlier hearing during which the deposit had been agreed upon. This Manifestation shows that the deposit was indeed made pursuant to their earlier agreement.

The CA was likewise correct in finding that petitioners had failed to assail, within the prescribed period, the Order allowing the release of the money.26 The Manifestation of Deposit was received and approved by the RTC on November 18, 1998. On February 5, 1999, private respondent, through his counsel, made his oral manifestation to withdraw the amount deposited.27 It was only on May 30, 2000, upon the filing of their Petition for Certiorari with the CA, when petitioners questioned the Order allowing the withdrawal of the deposit.

If petitioners honestly believed that respondent judge had acted with grave abuse of discretion when he issued the Order, why did they allow more than one year to lapse before assailing it? In fact, they had not even filed a motion for reconsideration. Elementary is the rule that before certiorari may be availed of, a petitioner must have filed with the lower court a motion for reconsideration of the act or order complained of.28 This requirement enables the lower court to pass upon and correct its mistakes in the first instance, without the intervention of the higher tribunal.29 While there are exceptions to this rule,30 petitioners have not convinced this Court that they are entitled thereto.

Petitioners claim that they learned of the existence of the Order only after more than one year had passed, and of the withdrawal of the deposit only after their new counsel had appeared.

We are not persuaded. It is undeniable that petitioners actively prosecuted their case during the period when they were allegedly still ignorant of the existence of the Order dated February 5, 1999. Whether such ignorance was due to negligence or mere oversight will not release them from its effects.

More important, the CA was correct in holding that, ultimately, private respondent was entitled to the deposit, because it represented the amount indicated on the check that undeniably belonged to him. In all the pleadings they filed, petitioners never denied that the amount of ₱500,000 properly belonged to him. He correctly argued as follows:

"There is no question, and it is admitted by petitioners in their Manifestation of Deposit, dated November 16, 1998 x x x that the amount of ₱500,000 deposited by them with the Regional Trial Court of Manila, represented the amount covered by Far East Bank & Trust Company Cashier’s Check No. 041A-0000032561.

"It is likewise admitted by the parties that the said FEBTC Cashier’s Check No. 041A-0000032561 was paid (payable) to and belong to private respondent."31

Second Issue:

Payment of Docket Fee

Petitioners argue that respondent judge and the CA erred in allowing private respondent to pay the docket fee on a staggered basis. According to them, the Order dated November 17, 1999 was "unprecedented in the annals of the Philippine judicial system."32 They describe the allegedly anomalous situation in this wise:

"Thus, we have perhaps x x x in the case at bar x x x the only known case in Philippine judicial history where a supplemental complaint was admitted without the payment of the FULL docket fees. And not only that, said fees were made payable over a mind-boggling, over-expanded period of nearly two (2) years!"33

Petitioners make contradictory assertions when they aver that the circumstances in the present case do not meet the parameters set by the Court in Sun Insurance Office Ltd. (SIOL) v. Asuncion,34 then make a complete volte face by arguing that the former is inapplicable, because there is no under-assessment of the docket fee in the instant case.

The Court clarified the rule in Sun Insurance thus:

"x x x. It is not simply the filing of the complaint or appropriate initiatory pleading, but the payment of the prescribed docket fee, that vests a trial court with jurisdiction over the subject-matter or nature of the action. Where the filing of the initiatory pleading is not accompanied by payment of the docket fee, the court may allow payment of the fee within a reasonable time but in no case beyond the applicable prescriptive or reglementary period."35 (Italics supplied)

Plainly, while the payment of the prescribed docket fee is a jurisdictional requirement, even its nonpayment at the time of filing does not automatically cause the dismissal of the case, as long as the fee is paid within the applicable prescriptive or reglementary period;36 more so when the party involved demonstrates a willingness to abide by the rules prescribing such payment.37

While the cause of action of private respondent was supposed to prescribe in four (4) years,38 he was allowed to pay; and he in fact paid the docket fee in a year’s time.39 We do not see how this period can be deemed unreasonable. Moreover, on his part there is no showing of any pattern or intent to defraud the government of the required docket fee. We sustain the CA’s findings absolving respondent judge of any capricious or whimsical exercise of judgment equivalent to lack of jurisdiction.1âwphi1 Ruled the appellate court:

"The Sun Insurance Office Ltd. case permits the payment of the prescribed docket fee ‘within a reasonable period but in no case beyond the applicable prescriptive or regular period.’ Since the prescriptive period to file the complaint subject of the present petition which is an action upon an injury to the right of private respondent, is four years and the scheme of payment of the docket fees in the amount of ₱252,503.50 given by public respondent called for an implementation thereof within one year, as in fact private respondent manifested in his Rejoinder that he had fully paid the said amount on December 12, 2000, then the assailed Orders of November 17, 1999 and April 11, 2000 cannot be said to have been issued with grave abuse of discretion."40 (Citations omitted)

To be sure, for certiorari to lie against respondent judge, the abuse of discretion committed must be grave, as when power is exercised arbitrarily or despotically by reason of passion or personal hostility; and such exercise must be so patent and gross as to amount to an evasion of positive duty, or to a virtual refusal to perform it or to act in contemplation of law.41 These conditions are absolutely wanting in the present case.

Final Issue:

Inhibition and Suspension of Proceedings

Finally, petitioners ascribe grave abuse of discretion to respondent judge for not inhibiting himself from this case and for not suspending the proceedings in the RTC pending the resolution of the Petition for Certiorari before the appellate court.

We need not belabor these questions, because they were never raised before the CA. It is well-settled that parties are not permitted to raise before this Court issues that were not taken up below.42

WHEREFORE, the Petition is hereby DENIED, and the assailed Decision and Resolution AFFIRMED. Costs against petitioners.


Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio, and Azcuna, JJ., concur.


1 Annex "A" of the Petition; rollo, pp. 59-67; penned by Justice Conchita Carpio Morales (Division chair and now a member of this Court), with the concurrence of Justices Candido V. Rivera and Juan Q. Enriquez Jr. (members).

2 Annex "B" of the Petition; id., pp. 68-70.

3 CA Decision, p. 7; id., p. 66.

4 CA Decision, pp. 2-5; id., pp. 61-64.

5 Annex "C" of the Petition; id., p. 71.

6 Annex "D" of the Petition; id., p. 72.

7 Annex "E" of the Petition; id., p. 73.

8 CA Decision, p. 7; id., p. 66.

9 Ibid.

10 This case was deemed submitted for decision on December 2, 2002, upon this Court’s receipt of petitioners’ Reply to Memorandum, which was signed by Atty. Teresita C. Marbibi. Earlier or on October 24, 2002, this Court received petitioners’ Memorandum signed by the same counsel. On the other hand, private respondent’s Memorandum, signed by Atty. Efren N. de la Cruz was filed with this Court on November 5, 2002.

11 Rollo, pp. 311-341.

12 Petitioners’ Memorandum, p. 12; rollo, p. 322.

13 §1 of Rule 65 of the 1997 Revised Rules of Court.

14 §1 of Rule 45 of the 1997 Revised Rules of Court.

15 Heirs of Pagobo v. CA, 345 Phil. 1119, October 16, 1997.

16 Ibid.

17 GR No. 110701, March 12, 2002.

18 Id., p. 5, per De Leon Jr., J.

19 The Director of Lands v. CA, 342 Phil. 239, July 28, 1997.

20 Cruz v. CA, 369 Phil. 161, July 2, 1999.

21 Fortune Guarantee and Insurance Corporation v. CA, supra; Sea Power Shipping Enterprises Inc. v. CA, 360 SCRA 173, June 28, 2001.

22 Ibid.; Caraan v. CA, 289 SCRA 579, April 24, 1998.

23 Petitioners’ Memorandum, pp. 13-14; rollo, pp. 323-324.

24 See Order dated November 11, 1998; records, p. 211.

25 Records, pp. 213-214.

26 CA Decision, p. 6; rollo, p. 65.

27 See Order dated February 5, 1999; records, p. 237.

28 Sevillana v. I.T. Corp., 356 SCRA 451, April 16, 2001; Indiana Aerospace University v. CHED, 356 SCRA 367, April 4, 2001; Seagull Shipmanagement and Transport Inc. v. NLRC, 388 Phil. 906, June 8, 2000.

29 Abraham v. NLRC, 353 SCRA 739, March 6, 2001; Seagull Shipmanagement and Transport Inc. v. NLRC, supra.

30 Indiana Aerospace University v. CHED, supra; Marawi Marantao General Hospital Inc. v. CA, 349 SCRA 321, January 16, 2001.

31 Private respondent’s Memorandum, p. 10; rollo, p. 351. Emphasis in the original.

32 Petitioners’ Memorandum, p. 18; rollo, p. 328.

33 Id., pp. 19 & 329.

34 170 SCRA 274, February 13, 1989.

35 Id., p. 285, per Gancayco, J.

36 Suson v. CA, 278 SCRA 284, August 21, 1997.

37 Teofilo Gensoli & Co. v. NLRC, 289 SCRA 407, April 22, 1998.

38 Article 1146 of the Civil Code states:

"Art. 1146. The following actions must be instituted within four years:

(1) Upon an injury to the rights of the plaintiff;

Upon a quasi-delict."

39 See Manifestation dated January 15, 2001; records, pp. 394-409.

40 CA Decision, p. 7; rollo, p. 66.

41 Benito v. Comelec, 349 SCRA 705, January 19, 2001; Miranda v. Abaya, 370 Phil. 642, July 28, 1999; Cuison v. CA, 289 SCRA 159, April 15, 1998.

42 Rupa Sr. v. CA, 380 Phil. 112, January 25, 2000.

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