GOVERNMENT SERVICE INSURANCE SYSTEM, petitioner,
vs. ANTONIO P. OLISA, respondent. [G.R.
No. 126874. March 10, 1999]
“x x
x.
We
find the petition impressed with merit.
The
trial court's order dismissing the complaint as against the GSIS is a final
order, not an interlocutory one.[i] it "finally
disposes of, adjudicates or determines the rights, or some rights of the
parties, either on the controversy of some definite and separate branch
thereof, and which concludes them until it is reversed or set aside."[ii] hence, it is a
"proper subject of appeal, not certiorari."[iii]
However,
respondent Olisa did not take an appeal from the order of dismissal. Instead,
he filed a petition for certiorari with the Court of Appeals. Certiorari is not
available where the proper remedy is an appeal in due course.[iv] And such remedy has
lapsed because of respondent's failure to take an appeal. "The special
civil action of certiorari is not and can not be made a substitute for appeal
or a lapsed appeal."[v]
Obviously,
respondent Olisa interposed the extraordinary action of certiorari in lieu of
the remedy of appeal which he has lost.[vi] He alleged in the
petition that there is "NO plain, speedy and adequate remedy in the
ordinary course of law except the instant petition."[vii] Notice that he omitted
the term "appeal". Indeed, he could not truly say that there is
"NO appeal".
Consequently,
an action for certiorari will not prosper, for the rule is that certiorari will
lie only if there is no appeal or any other plain, speedy and adequate remedy
in the ordinary course of law[viii] Of course, there are
exceptions to the rule.[ix] One of which is that
appeal would not be an adequate and effectual remedy.[x] None of the recognized
exceptions applies to this case.
X x
x.”
[i] Santos vs. Pecson, 79 Phil. 261.
[ii] Gold City Integrated Port Services, Inc.
Intermediate Appellate Court, 171 SCRA, 579, 583, citingPuertollano vs.
Intermediate Appellate Court, 156 SCRA 188.
[iii] Fajardo vs. Bautista 232 SCRA 291
citing Marahay vs. Melicor, 181 SCRA 811.
[iv] Bernardo vs. Court of Appeals, 275 SCRA
413, See also Jamer vs. National Labor Relation Commission, 278 SCRA
632, [1997].
[v] Dulos vs. Court of Appeals, 188 SCRA
413, 419; Rolloque vs. Court of Appeals, 193 SCRA 47; Felizardo vs.
Court of Appeals, 233 SCRA 220; de la Paz vs. Panis, 245 SCRA 242.
[vi] Landicho vs. Tensuan, 151 SCRA 410; Dy
vs. Court of Appeals, 195 SCRA 585.
[vii] Petition, CA-G.R. SP No. 38371, par. 13, Rollo,
p.4.
[viii] Jamer vs. NLRC, 278 SCRA 632.
[ix] Escudero vs. Dulay, 158 SCRA 69;
Mascarina vs. Eastern Quezon College, 168 SCRA 100; Akut vs.
Court of Appeals, 116 SCRA 214; People vs. Castañeda, 165 SCRA 327.
[x] Hualan Construction & Development Corp. vs.
Court of Appeals, 214 SCRA 612; Fajardo vs. Bautista, supra.
