G.R. No. 151942. November 27, 2003.

Spouses GREGORIO GO and JUANA TAN GO, petitioners, vs. JOHNSON Y.

TONG; COURT OF APPEALS; and Honorable Judge JUAN NABONG of the
Regional Trial Court, Branch 32, Manila, respondents.
Actions; Pleadings and Practice; Petition for Review; Distinction between Rule
45 and Rule 65.—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. 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.
Same; Same; Certiorari; 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.—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. This requirement
enables the lower court to pass upon and correct its mistakes in the first instance,
without the intervention of the higher tribunal.
Same; Same; Docket Fees; Nonpayment of docket fee at the time of filing does not
automatically cause the dismissal of the case.—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; more so when
the party involved demonstrates a willingness to abide by the rules prescribing such
payment.

PETITION for review on certiorari of the decision ands resolution of the

Court of Appeals.

The facts are stated in the opinion of the Court.

Marbibi and Associates Law Office for petitioners.
Efren Dela Cruz for private respondents.
_______________

* FIRST DIVISION.
558
558 SUPREME COURT
REPORTS ANNOTATED
Go vs. Tong

PANGANIBAN, J.:

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 Decision and the January 21, 20021

Resolution of the Court of Appeals (CA) in CA-G.R. SP No. 58942. The

2

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
P500.000.00, 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.

_______________

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.

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2003
Go vs. Tong
“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 P2.5 million to P55 million and praying for the award of actual damages of
P58,075.00. 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.
560
560 SUPREME COURT
REPORTS ANNOTATED
Go vs. Tong
“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 P500,000.00 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:

1. ‘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.
2. ‘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 P55,057,075.00 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’ P500,000.00 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 P25,000.00 on or before December 15, 1999 and
P20,000.00 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 P500,000.00 deposit to private respondent), November 17, 1999 (allowing the payment, on
staggered basis, of the docket fees for the Supplemental
561
VOL. 416, NOVEMBER 27, 561
2003
Go vs. Tong
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, November 17, 1999 and April 11, 2000.
5 6 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.” In that case, the court a quo opined that the docket fee payment
8

scheme imposed by the respondent judge “cannot be said to have been issued
with grave abuse of discretion.” 9

Hence, this Petition. 10

_______________

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.
562
562 SUPREME COURT
REPORTS ANNOTATED
Go vs. Tong
The Issues
In their Memorandum, petitioners submit the following issues for our
11

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 quasijudicial 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:

_______________

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.

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VOL. 416, NOVEMBER 27, 563
2003
Go vs. Tong
“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. On the other hand, a special civil action under Rule 65 is an
15

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, this Court had the occasion to discuss this matter. In that case, the
17

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. When 19

an error of judgment of the CA is brought up to this Court for review, the

action is properly designated as a peti-
_______________

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

15 Heirs of Pagobo v. Court of Appeals, 345 Phil. 1119, 280 SCRA 870, October 16, 1997.
16 Ibid.

17 G.R. No. 110701, March 12, 2002, 379 SCRA 7.

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

19 The Director of Lands v. Court of Appeals, 342 Phil. 239, 276 SCRA 276, July 28, 1997.

564
564 SUPREME COURT
 REPORTS ANNOTATED
Go vs. Tong
tion for review and not a special civil action. Thus, while the instant Petition
20

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. However, in the interest of substantial
21

justice, we deem it wise to overlook procedural technicalities in order to rule

speedily on this case and demonstrate that even without the procedural
22

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
P500,000 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 P500,000,
which private respondent could withdraw if he so desired. Because 24

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, they even referred to 25

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.
_______________

20 Cruz v. Court of Appeals, 369 Phil. 161, 309 SCRA 714, July 2, 1999.
21 Fortune Guarantee and Insurance Corporation v. Court of Appeals, supra; Sea Power Shipping Enterprises,
Inc. v. Court of Appeals,360 SCRA 173, June 28, 2001.
22 Ibid.; Caraan v. Court of Appeals, 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.

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VOL. 416, NOVEMBER 27, 565
2003
Go vs. Tong
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. The Manifestation of Deposit was received and approved by the RTC
26

on November 18, 1998. On February 5, 1999, private respondent, through his

counsel, made his oral manifestation to withdraw the amount deposited. It 27

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. This requirement enables 28

the lower court to pass upon and correct its mistakes in the first instance,
without the intervention of the higher tribunal. While there are exceptions
29

to this rule, petitioners have not convinced this Court that they are entitled
30

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.
_______________

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. Commission on Higher

Education, 356 SCRA 367, April 4, 2001; Seagull Shipmanagement and Transport, Inc. v. National Labor Relations
Commission, 388 Phil. 906; 333 SCRA 236, June 8, 2000.
29 Abraham v. National Labor Relations Commission, 353 SCRA 739, March 6, 2001; Seagull Shipmanagement

and Transport Inc. v. National Labor Relations Commission, supra.

30 Indiana Aerospace University v. Commission on Higher Education, supra; Marawi Marantao General Hospital,

Inc. v. Court of Appeals, 349 SCRA 321, January 16, 2001.

566
566 SUPREME COURT
REPORTS ANNOTATED
Go vs. Tong
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 P500,000 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 P500,000 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.” They describe the allegedly anomalous situation
32

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, then make a 34

complete volte faceby arguing that the former is inapplicable, because there is
no under-assessment of the docket fee in the instant case.
_______________

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.

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2003
Go vs. Tong
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.” (Italics supplied)
35

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; more so when the party 36

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, he was allowed to pay; and he in fact paid the docket fee in
38

a year’s time. We do not see how this period can be deemed unreasonable.
39

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. 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 P252.503.50 given by public

_______________

35
Id., p. 285, per Gancayco, J.
36 Suson v. Court of Appeals, 278 SCRA 284, August 21, 1997.
 37
Teofilo Gensoli & Co. v. National Labor Relations Commission, 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. (1)Upon an injury to the rights of the plaintiff;

2. (2)Upon a quasi-delict.”

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

568
568 SUPREME COURT
REPORTS ANNOTATED
Go vs. Tong
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.” (Citations omitted)
40

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. These 41

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.
SO ORDERED.
Davide, Jr. (C.J., Chairman), Ynares-Santiago, Carpio and Azcuna,
JJ., concur.
Petition denied, assailed decision affirmed.
_______________

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

41Benito v. Comelec, 349 SCRA 705, January 19, 2001; Miranda v. Abaya, 370 Phil. 642; 311 SCRA 617, July 28,
1999; Cuison v. Court of Appeals, 289 SCRA 159, April 15, 1998.
42 Rupa, Sr. v. Court of Appeals,380 Phil. 112; 323 SCRA 153, January 25, 2000.

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VOL. 416, NOVEMBER 27, 569
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Rimano vs. People
Note.—Where the complaint filed with the trial court was in the nature of
a real action although ostensibly denominated as one for specific
performance, the basis for determining the correct docket fees shall be the
assessed value of the property, or the estimated value thereof as alleged by
the claimant. (Gochan vs. Gochan, 372 SCRA 256[2001])

——o0o——