Saturday, March 19, 2016

The remedy of a party desiring to elevate to the appellate court an adverse resolution of the Secretary of Justice is a petition for certiorari under Rule 65. A Rule 43 petition for review is a wrong mode of appeal - G.R. No. 162311

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In essence, petitioner asks this Court to determine if probable cause exists to charge respondent with the crime of unfair competition under Article 189(1) of the Revised Penal Code, prior to its repeal by Section 239 of RA No. 8293.

However, that is a factual issue[40] the resolution of which is improper in a Rule 45 petition.[41]The only legal issue left for the Court to determine is whether the issue of confusion should bedetermined only at the point of sale.

Nonetheless, there is sufficient reason for this Court to dismiss this petition merely by looking at the procedural avenue petitioner used to have the DOJ resolutions reviewed by the CA.

Petitioner filed with the CA a petition for review under Rule 43 of the 1997 Rules of Civil Procedure.[42] Rule 43 governs all appeals from [the Court of Tax Appeals and] quasi-judicial bodies to the CA. Its Section 1 provides:

Section 1. Scope. This Rule shall apply to appeals from [judgments or final orders of the Court of Tax Appeals and from] awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the exercise of its quasi-judicial functions. Among these agencies are the Civil Service Commission, Central Board of Assessment Appeals, Securities and Exchange Commission, Office of thePresident, Land Registration Authority, Social Security Commission, Civil Aeronautics Board, Bureau of Patents, Trademarks and Technology Transfer, National Electrification Administration, Energy Regulatory Board, National Telecommunications Commission, Department of Agrarian Reform under Republic Act No. 6657, Government Service Insurance System, Employees Compensation Commission, Agricultural Inventions Board, Insurance Commission, Philippine Atomic Energy Commission, Board of Investments, Construction Industry Arbitration Commission, and voluntary arbitrators authorized by law.[43]

Clearly, the DOJ is not one of the agencies enumerated in Section 1 of Rule 43 whose awards, judgments, final orders, or resolutions may be appealed to the CA.

The Court has consistently ruled that the filing with the CA of a petition for review under Rule 43 to question the Justice Secretarys resolution regarding the determination of probable cause is an improper remedy.[44]

Under the 1993 Revised Rules on Appeals from Resolutions in Preliminary Investigations or Reinvestigations,[45] the resolution of the investigating prosecutor is subject to appeal to the Justice Secretary[46] who, under the Revised Administrative Code, exercises the power of control and supervision over said Investigating Prosecutor; and who may affirm, nullify, reverse, or modify the ruling of such prosecutor.[47] If the appeal is dismissed, and after the subsequent motion for reconsideration is resolved, a party has no more appeal or other remedy available in the ordinary course of law.[48] Thus, the Resolution of the Justice Secretary affirming, modifying or reversing the resolution of the Investigating Prosecutor is final.[49]

There being no more appeal or other remedy available in the ordinary course of law, the remedy of the aggrieved party is to file a petition for certiorari under Rule 65. Thus, while the CA may review the resolution of the Justice Secretary, it may do so only in a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, solely on the ground that the Secretary of Justice committed grave abuse of discretion amounting to excess or lack of jurisdiction.[50]

Verily, when respondent filed a petition for review under Rule 43 instead of a petition forcertiorari under Rule 65, the CA should have dismissed it outright. However, the appellate court chose to determine if DOJ Secretaries Guingona and Cuevas correctly determined the absence of probable cause.

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