Remedial Law

INDOYON, JR. v. CA Petition for Review under Rule 45 v. Special Civil Action under Rule 65


Petitioner Ebrencio F. Indoyon, Jr., was the municipal treasurer of Lingig, Surigao del Sur, with Salary Grade 24.

In 2005, it was discovered that petitioner had incurred a cash shortage in the amount of ₱1,222,648.42.

In a letter, State Auditor Bautista of COA demanded the immediate production of the missing funds and the submission of a written explanation of the shortage.

Petitioner admitted that he had personally used the amount of ₱652,000 to put up a project to supplement his income, and that he had allowed other municipal officials and employees to use as cash advances his collections as municipal treasurer.

Petitioner was formally charged before the Bureau of Local Government Finance, Department of Finance (BLGF-DOF), and a letter-complaint was sent by the Regional Legal and Adjudication-Commission on Audit to the Ombudsman, recommending the filing of a criminal case for malversation and an administrative case for dishonesty and grave misconduct against petitioner.

The BLGF-DOF found petitioner guilty of “simple neglect of duty”, and imposed the penalty of six (6) months suspension from the service without pay.

Meanwhile, the Ombudsman rendered a Decision finding petitioner guilty of serious dishonesty and grave misconduct and imposing upon him the penalty of dismissal from the service.

Petitioner filed an MR of the Decision, alleging that the jurisdiction over the same administrative Complaint filed before the Ombudsman had first been acquired by the BLGF-DOF. The OMB denied petitioner’s MR.

To enjoin the implementation of the Ombudsman’s Decision, petitioner filed a Petition for Review on Certiorari under Rule 43 with Prayer for the Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction before the CA.

The Petition was dismissed and the MR was denied.

Hence this Petition.



Whether the CA committed grave abuse of discretion in dismissing petitioner’s Rule 43 Petition for Review on Certiorari.



The Petition is dismissed for being devoid of merit.

This Petition invokes the liberality of the Court and considerations of substantial justice in seeking to overturn the Resolutions of the CA. For noncompliance with the Rules of Court and SC circulars, the Petition filed by petitioner with the CA was properly dismissed. And yet, in the instant Petition, he once again ignores the Rules of Court and a circular issued by this Court.

Under Section 1, Rule 45 of the Rules of Court, the proper remedy to question the CA’s judgment, final order or resolution, as in the present case, is a petition for review on certiorari. The petition must be filed within 15 days from notice of the judgment, final order or resolution appealed from; or of the denial of petitioner’s motion for reconsideration filed in due time after notice of the judgment.

By filing a special civil action for certiorari under Rule 65, petitioner therefore clearly availed himself of the wrong remedy. Under Supreme Court Circular 2-90,19 an appeal taken to this Court or to the CA by a wrong or an inappropriate mode merits outright dismissal.

On this score alone, the instant Petition may be dismissed.

Paragraph 4(e) of Supreme Court Circular 2-90 specifically warns litigants’ counsels to follow to the letter the requisites prescribed by law on appeals.

We reiterate that under Supreme Court Circular 2-90, the filing of an improper remedy of special civil action for certiorari under Rule 65, when the proper remedy should have been to file a petition for review on certiorari under Rule 45, merits the outright dismissal of a Petition such as this one.

We remind petitioner, as we have consistently reminded countless other litigants, that the invocation of substantial justice is not a magic potion that will automatically compel this Court to set aside technical rules.

We emphasize that an appeal is not a matter of right, but of sound judicial discretion.

Thus, an appeal may be availed of only in the manner provided by law and the rules.

Failure to follow procedural rules merits the dismissal of the case, especially when the rules themselves expressly say so, as in the instant case.


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