G.R. No. 166356. February 2, 2010.

BENEDICTA M. SAMSON and MARCIAL M. SAMSON,

petitioners, vs. HON. JUDGE GERALDINE C. FIEL-
MACARAIG, BANK OF THE PHILIPPINE ISLANDS,
FAR EAST BANK AND TRUST CO., ATTY. JULIA
CECILY COCHING-SOSITO, and THE REGISTER OF
DEEDS OF MARIKINA CITY, respondents.

Remedial Law; Certiorari; A writ of certiorari lies only for an

error of jurisdiction.—The appellate court correctly ruled that the
petition for certiorari was not the proper remedy. A writ of
certiorari lies only for an error of jurisdiction. It can be availed of
only if the lower tribunal has acted without or in excess of
jurisdiction, or with grave abuse of discretion amounting to lack
or excess of jurisdiction, and if there is no appeal or any other
plain, speedy, and adequate remedy in the ordinary course of law.
Where the error is not one of jurisdiction but an error of law or
fact which is a mistake of judgment, certiorari is not available. In
such case, the remedy is appeal.
Same; Same; The remedy to obtain reversal or modification of
the judgment on the merits is appeal.—The remedy to obtain
reversal or modification of the judgment on the merits is appeal.
This is true even if the error, or one of the errors, ascribed to the
court rendering the judgment is its lack of jurisdiction over the
subject matter, or the exercise of power in excess thereof, or grave
abuse of discretion in the findings of fact or of law set out in the
decision. The availability of the right to appeal precludes recourse
to the special civil action for certiorari. The RTC Order subject of
the petition was a final judgment which disposed of the case on
the merits; hence, it was a subject for an ordinary appeal, not a
petition for certiorari.

PETITION for review on certiorari of the decision and

resolution of the Court of Appeals.
   The facts are stated in the resolution of the Court.
  Tomas Z. Roxas, Jr. & Associates for petitioners.

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 * SECOND DIVISION.

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  Benedicto, Verzosa, Gealogo & Burkley for Bank of

Philippine Islands and Far East Bank and Trust Co.

RESOLUTION

CARPIO, J.:
This is a petition for review1 of the Court of Appeals’
Decision2 dated 28 September 2004 and Resolution dated
15 December 2004 in CA-G.R. SP No. 82114. The Court of
Appeals dismissed the petition for certiorari3 filed by
Benedicta M. Samson and Marcial M. Samson against Hon.
Judge Geraldine C. Fiel-Macaraig, the Bank of the
Philippine Islands (BPI), the Far East Bank and Trust Co.
(FEBTC), Atty. Julia Cecily Coching-Sosito, and the
Register of Deeds of Marikina City.
The factual and procedural antecedents of this case are
as follows:
Sometime in 1998, petitioners Benedicta M. Samson and
Marcial M. Samson obtained a loan amounting to
P10,000,000 from FEBTC. The loan was secured by a real
estate mortgage over four parcels of land located in
Marikina City and covered by Transfer Certificate of Title
(TCT) Nos. N-1521, N-1522, N-1226, and N-1227. When
petitioners failed to comply with the terms of the loan
agreement, FEBTC filed an application for extrajudicial
foreclosure of the real estate mortgage with the Office of
the Clerk of Court and Ex Officio Sheriff of the Regional
Trial Court (RTC) of Marikina City. FEBTC’s application
was given due course, and a Notice of Sheriff’s Sale was
issued, setting the public auction sale of the mortgaged
properties on 8 June 2000, at 10:00 in the morning. Prior to
the

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1 Under Rule 45 of the 1997 Revised Rules of Civil Procedure.

2 Penned by Associate Justice Jose L. Sabio, Jr. with Associate Justices
Eubulo G. Verzola and Monina Arevalo-Zenarosa, concurring.
3 Under Rule 65 of the 1997 Revised Rules of Civil Procedure.

347

sale, the Notice of Sheriff’s Sale was duly published in

Rizal-Metro Gazette,4 and was certified by Sheriff IV Edgar
Pulan of the RTC of Marikina City to have been duly
posted in three public places where the mortgaged real
properties were located.5
On 8 June 2000, only one bidder, FEBTC, submitted its
bid, thereby causing the sheriff to postpone the public
auction sale to 29 June 2000, in accordance with SC AM
No. 99-10-05-06 and the Notice of Sheriff’s Sale which
states, inter alia:

“In the event that there are less than two (2) participating
bidders in the original date of auction sale as afore-stated, the
same shall be postponed to June 29, 2000 at the same time and
place without need of republication and reposting [of] this
notice.”7

On 29 June 2000, the mortgaged real properties were

sold at public auction to FEBTC as the highest bidder,8 and
a Certificate of Sale was issued in favor of the bank.
Almost two years later, or on 4 June 2002, petitioners,
together with Pepito, Zenaida, Julieta, Edgardo, Rolando,
Rempson, and Rocky, all surnamed Samson, filed a case for
“Annulment of Extrajudicial Foreclosure and/or
Nullification of Sale and the Certificates of Title, plus
Damages and with Prayer for a Temporary Restraining
Order [TRO] and/or Writ of Preliminary Injunction.” They
questioned the validity of the 29 June 2000 auction sale for
alleged lack of posting and publication requirements.
Impleaded as defendants in the

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4 CA Rollo, p. 108.

5 Id., at p. 107.
6 SC AM No. 99-10-05-0 (Re: Procedure in Extrajudicial Foreclosure of
Mortgages), which was promulgated on 14 December 1999, provides in
Paragraph 5 that, “(n)o auction sale shall be held unless there are at least
two (2) participating bidders, otherwise the sale shall be postponed to
another date.”
7 CA Rollo, p. 109.
8 Rollo, p. 72.

348

case were BPI,9 FEBTC, Julia Cecily Coching-Sosito, in her

capacity as Clerk of Court and Ex Officio Sheriff of the RTC
of Marikina City, and the Register of Deeds of Marikina
City. The case was docketed as Civil Case No. 2002-803-
MK and raffled to Branch 192 of the RTC of Marikina City.
On 19 July 2002, the Registrar of Deeds10 of Marikina
City filed a Manifestation11 stating that the certificates of
title subject of the case had already been cancelled and the
titles to the mortgaged properties were consolidated in the
name of BPI on 7 March 2002. The Registrar of Deeds also
claimed that the complaint stated no cause of action
against him for it mentioned no wrongful act on his part,
whether in his official or personal capacity; neither was
there any allegation of negligence or omission of his official
functions.12 The Registrar of Deeds likewise mentioned
that, at most, the Registrar and the Register of Deeds of
Marikina City were impleaded only as nominal parties in
the case.13
A hearing on the application for a TRO and/or Writ of
Preliminary Injunction was held on 2 August 2002.14 On 9
August 2002, private respondent BPI filed its Answer with
Counterclaim and Opposition. Public respondent Julia
Cecily Coching-Sosito, the Clerk of Court and Ex Officio
Sheriff of the RTC of Marikina City did not file an answer.
On 20 December 2002, the RTC of Marikina City,
Branch 192, issued an Order denying plaintiffs’ application
for TRO and/or Writ of Preliminary Injunction.15 Six
months later, or on 20 June 2003, the RTC issued an Order
dismissing the

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9 BPI and FEBTC merged in 2000, with BPI as the surviving entity;
Rollo, p. 97.
10 Registrar of Deeds Edgar D. Santos.
11 CA Rollo, pp. 139-140.
12 Id., at p. 139.
13 Id., at p. 140.
14 Rollo, p. 482.
15 Id., at p. 73.

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complaint for failure to prosecute for an unreasonable

length of time.16
Plaintiffs filed a Motion for Reconsideration, but this
was denied by the RTC in its Order dated 22 December
2003. Plaintiffs, except Benedicta and Marcial Samson,
filed a Notice of Appeal dated 27 January 2004. On 10
February 2004, Benedicta and Marcial Samson filed with
the Court of Appeals a Petition for Certiorari under Rule 65
of the 1997 Revised Rules of Civil Procedure.
On 28 September 2004, the Court of Appeals rendered
judgment dismissing the petition.17 The appellate court
ruled that a writ of certiorari lies only where there is no
appeal or plain, speedy, and adequate remedy in the
ordinary course of law. The availability of the right to
appeal precludes recourse to the special civil action for
certiorari. The RTC Order subject of the petition was a
final judgment which disposed of the case on the merits;
hence, it was a subject for an ordinary appeal, not a
petition for certiorari. The Court of Appeals added that
even assuming that the petitioners availed of the proper
remedy, they failed to show that public respondent gravely
abused her discretion by acting in a despotic or arbitrary
manner, or that she was motivated by passion or personal
hostility when she issued the assailed Orders.
Petitioners filed a Motion for Reconsideration, but this
was denied by the Court of Appeals in its Resolution dated
15 December 2004.18
On 4 February 2005, petitioners filed the instant
petition for review before this Court. Petitioners claim that
the appellate court erred in dismissing the petition for
certiorari since public respondent RTC Judge Geraldine
Fiel-Macaraig gravely abused her discretion amounting to
lack of jurisdiction when she dismissed the case (Complaint
for Annulment

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16 Id., at p. 157.
17 Id., at pp. 71-76.
18 Id., at pp. 77-78.

350

of Extrajudicial Foreclosure and/or Nullification of Sale and

the Certificates of Title, plus Damages and with Prayer for
TRO and/or Writ of Preliminary Injunction) for failure to
prosecute despite the fact that one of the defendants, Ex
Officio Sheriff Julia Cecily Coching-Sosito, had not yet
submitted her responsive pleading; hence, the issues were
not yet joined and it was still premature for petitioners to
move for a pre-trial of the case. Petitioners also questioned
the validity of the second public auction for lack of posting
and publication.
The petition has no merit.
The appellate court correctly ruled that the petition for
certiorari was not the proper remedy. A writ of certiorari
lies only for an error of jurisdiction. It can be availed of
only if the lower tribunal has acted without or in excess of
jurisdiction, or with grave abuse of discretion amounting to
lack or excess of jurisdiction, and if there is no appeal or
any other plain, speedy, and adequate remedy in the
ordinary course of law.19 Where the error is not one of
jurisdiction but an error of law or fact which is a mistake of
judgment, certiorari is not available.20 In such case, the
remedy is appeal.
The assailed RTC Order dated 20 June 2003 was issued
when petitioners failed to move for a pre-trial of the case
for annulment of the extrajudicial foreclosure in accordance
with Section 1, Rule 18 of the Revised Rules of Civil
Procedure which provides:

“Section 1. When conducted.—After the last pleading has

been served and filed, it shall be the duty of the plaintiff to
promptly move ex parte that the case be set for pre-trial.”
(Emphasis supplied)

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19  Sec. 1, Rule 65 of the Revised Rules of Civil Procedure. See also
Angara v. Fedman Development Corporation, 483 Phil. 495, 505; 440
SCRA 467, 477 (2004).
20 Camlian v. Commission on Elections, 338 Phil. 474, 479; 271 SCRA
757, 762 (1997).

351

In said Order, the RTC dismissed the case with prejudice

for failure to prosecute for an unreasonable length of time,
pursuant to Section 3, Rule 17 of the Rules of Court which
states, thus:

“Section 3. Dismissal due to fault of plaintiff.—If, for no

justifiable cause, the plaintiff fails to appear on the date of
the presentation of his evidence in chief on the complaint, or to
prosecute his action for an unreasonable length of time, or
to comply with these Rules or any order of the court, the
complaint may be dismissed upon motion of the defendant or
upon the court’s own motion, without prejudice to the right of
the defendant to prosecute his counterclaim in the same or in a
separate action. This dismissal shall have the effect of an
adjudication upon the merits, unless otherwise declared by the
court.” (Emphasis supplied)

The RTC Order dated 20 June 2003 was a final

judgment which disposed of the case on the merits. This
was even clarified in the subsequent RTC Order of 22
December 2003 (which denied petitioners’ motion for
reconsideration) wherein the lower court stated that:
“Therefore, the dismissal was ‘with prejudice’ or a
dismissal that had the effect of adjudication upon the
merits in accordance with Section 3, Rule 17 of the Rules of
Court.”
The remedy to obtain reversal or modification of the
judgment on the merits is appeal. This is true even if the
error, or one of the errors, ascribed to the court rendering
the judgment is its lack of jurisdiction over the subject
matter, or the exercise of power in excess thereof, or grave
abuse of discretion in the findings of fact or of law set out
in the decision.21 The availability of the right to appeal
precludes recourse to the special civil action for certiorari.
The RTC Order subject of the petition was a final judgment
which disposed of the case

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21 Sawadjaan v. Court of Appeals, 498 Phil. 552, 564; 459 SCRA 516,
527 (2005), citing Heirs of Padilla v. Court of Appeals, 469 Phil. 196; 425
SCRA 236 (2004).

352

on the merits; hence, it was a subject for an ordinary

appeal, not a petition for certiorari.
Even assuming that certiorari may lie, the Court still
cannot grant the instant petition because the petitioners
failed to show that public respondent, in issuing the
assailed Orders, acted without or in excess of jurisdiction,
or gravely abused her discretion amounting to lack or
excess of jurisdiction. As mentioned earlier, the RTC issued
the assailed Order in accordance with Section 3, Rule 17, in
relation to Section 1, Rule 18 of the Revised Rules of Civil
Procedure. There is no showing that the RTC judge issued
the Order in a despotic or arbitrary manner, or that she
was motivated by passion or personal hostility against
petitioners. Grave abuse of discretion implies such
capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction or, in other words, where
the power is exercised in an arbitrary manner by reason of
passion, prejudice, or personal hostility,22 and it must be so
patent or gross as to amount to an evasion of a positive
duty or to a virtual refusal to perform the duty enjoined or
to act at all in contemplation of law.23 Such is wanting in
this case.
We agree with private respondent BPI that the failure of
the Ex Officio Sheriff to file her Answer should not have
prevented petitioners from performing their duty under
Section 1 of Rule 18. Petitioners could have availed of other
 remedies, such as the filing of a motion to declare Ex
Officio Sheriff in default,24 to avoid unnecessary delay in
court proceedings.
The other issues raised by petitioners involve questions
of fact which are not proper subjects of this case.

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22 Angara v. Fedman Development Corporation, supra note 19, citing

Okabe v. Gutierrez, 473 Phil. 758; 429 SCRA 685 (2004) and Ala-Martin v.
Sultan, 418 Phil. 597, 603; 366 SCRA 316, 321 (2001).
23  Id., citing De Baron v. Court of Appeals, 420 Phil. 474, 482; 368
SCRA 407, 415 (2001).
24 Sec. 3, Rule 9 of the 1997 Revised Rules of Civil Procedure.

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