Constitutional Law, Remedial Law

TAN vs. DUMARPA G.R. No. 138777  September 22, 2004 Petition for Certiorari under Rule 65, TAN vs. DUMARPA G.R. No. 138777  September 22, 2004 Petition for Certiorari under Rule 65, Judgment by Default, Substantial Justice

Suits should as much as possible be decided on the merits and not on technicalities. In this regard, we have often admonished courts to be liberal as default judgments are frowned upon and not looked upon with favor for they may amount to a positive and considerable injustice to petitioner and the possibility of such serious consequences necessitates a careful examination of the grounds upon which petitioner asks that it be set aside.



Several prosecutors of Region XII filed with the Office of the Ombudsman in Mindanao a criminal complaint for malversation of public funds and violation of Section 3 (e) of R.A. No. 3019 against respondent, then Regional State Prosecutor Salic B. Dumarpa.

The complaint alleges that respondent, to cover his cash advance of ₱30,000.00 from the Department of Justice, obtained surreptitiously from petitioner Joy Tan, another receipt showing his payment for the latter’s catering services for two seminars conducted purportedly in Cotabato City and Marawi City.

Meantime, petitioner’s affidavit denouncing respondent for malversation of government funds was published in the Manila Standard, Manila Times, Bandera, and other newspapers of general circulation. Respondent claimed that such malicious publication discredited his honor and reputation. Thus, he filed a criminal complaint for libel against petitioner.

Respondent also filed for damages with prayer for issuance of a writ of attachment.

Petitioner filed her answer with motion to dismiss the complaint on the ground of failure to state a cause of action. She alleged that her affidavit against respondent was executed in good faith and without malice.

The trial court denied petitioner’s motion to dismiss the complaint. During the pre-trial, petitioner and counsel did not appear despite notice. Thus, petitioner was declared as in default and respondent was allowed to present his evidence ex-parte. After he rested his case, the trial court rendered the assailed Judgment by Default in favor of Dumarpa.

Petitioner filed a motion for reconsideration of the Judgment by Default on the ground that her counsel did not receive a copy of the Order denying her motion to dismiss and setting the pre-trial conference. Respondent filed a motion for execution and opposition to the motion for reconsideration.

The trial court denied petitioner’s motion for reconsideration, ruling that the motion is pro forma and does not toll the running of the period to appeal. Thus, the Judgment by Default has become final and executory. The trial court then granted respondent’s motion for execution.

Hence, the instant petition for review on certiorari.



Whether or not  the instant petition is the proper remedy.



In Indiana Aerospace University vs. Commission on Higher Education, we held:

“The remedies available to a defendant declared in default are as follows:

(1) a motion to set aside the order of default under Section 3(b), Rule 9 of the Rules of Court, if the default was discovered before judgment could be rendered;

(2) a motion for new trial under Section 1(a) of Rule 37, if the default was discovered after judgment but while appeal is still available;

(3) a petition for relief under Rule 38, if judgment has become final and executory; and

(4) an appeal from the judgment under Section 1, Rule 41, even if no petition to set aside the order of default has been resorted to.”

Here, petitioner came to know of the Judgment by Default after it was promulgated by the trial court while appeal was still available. In fact, she filed a motion for reconsideration which was denied. Thereafter, what she should have done pursuant to the Rules, was to file with the trial court a motion for new trial or an ordinary appeal with the Court of Appeals.

Instead, she came directly to this Court via the instant petition for review on certiorari.

However, in the interest of justice, we consider the instant petition, pro hac vice, a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended. It appears prima facie from petitioner’s allegations that the trial court committed grave abuse of discretion in rendering the Judgment by Default. If such allegations are true and the trial court’s fatal error remains uncorrected, then petitioner will suffer great injustice.

Indeed, where as here, there is a strong showing that grave miscarriage of justice would result from the strict application of the Rules, we will not hesitate to relax the same in the interest of substantial justice.

In Cusi-Hernandez vs. Diaz, this Court held that “cases should be determined on the merits, after full opportunity to all parties for ventilation of their causes and defenses, rather than on technicality or some procedural imperfections. In that way, the ends of justice would be served better.”

In fact, “procedural rules are created not to hinder or delay but to facilitate and promote the administration of justice. It is far better to dispose of the case on the merits which is a primordial end rather than on a technicality, if it be the case that may result in injustice.”

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