2002 of the Court of Appeals in CA-G.R. SP No.

52810 are
AFFIRMED.
SO ORDERED.

Ynares-Santiago (Chairperson), chico-nazario, Velasco,

Jr. and Nachura, JJ., concur.

Petition denied, judgment and resolution affirmed.

Note.—To provide full protection to labor, the

employer’s prerogative to bring down labor costs through
retrenchment must be exercised carefully and essentially
as a measure of last resort, and so should management’s
prerogative to declare the employees’ services redundant
not be used as a weapon to frustrate labor. (Andrada vs.
National Labor Relations Commission, 541 SCRA 538
[2007])
——o0o——

G.R. No. 157952.  September 8, 2009.*

JOWETT K. GOLANGCO, petitioner, vs. JONE B. FUNG,

respondent.

Certiorari; At the very least, he should have furnished a copy

of the petition for certiorari to the Office of the Solicitor General
(OSG) prior to the filing thereof, but even that he did not do.—The
petitioner did not also obtain the consent of the Office of the
Solicitor General (OSG) to his petition for certiorari. At the very
least, he should have furnished a copy of the petition for certiorari
to the OSG prior to the filing thereof, but even that he did not do.
Thereby, he violated Section 35(1), Chapter 12, Title III of Book
IV of Executive Order No. 292 (The Administrative Code of 1987),
which mandates the OSG to represent “the Government in the
Supreme Court and the Court of

_______________

* FIRST DIVISION.
 638

Appeals in all criminal proceedings; represent the Government

and its officers in the Supreme Court, the Court of Appeals, and
all other courts or tribunals in all civil actions and special
proceedings in which the Government or any officer thereof in his
official capacity is a party.” Although the petition for certiorari
bore the conformity of the public prosecutor (i.e., Assistant City
Prosecutor Danilo Formoso of Manila), that conformity alone did
not suffice. The authority of the City Prosecutor or his assistant to
appear for and represent the People of the Philippines was
confined only to the proceedings in the trial court.
Same; Certiorari will be refused where there has been no final
judgment or order and the proceeding for which the writ is sought
is still pending and undetermined in the lower court.—It does not
escape our notice that the trial court’s assailed order terminating
the Prosecution’s presentation of evidence was merely
interlocutory. This fact surely adds justification to the Court of
Appeals’ rejection of the petition for certiorari, because it is the
settled rule that certiorari does not lie to review an interlocutory
order, but only a final judgment or order that terminates the
proceedings. Certiorari will be refused where there has been no
final judgment or order and the proceeding for which the writ is
sought is still pending and undetermined in the lower court.
Indeed, a writ of certiorari is not intended to correct every
controversial interlocutory ruling unless the ruling is attended by
grave abuse of discretion or tainted by whimsical exercise of
judgment equivalent to lack of jurisdiction, for the function of
certiorari is limited to keeping an inferior court within its
jurisdiction and to relieving persons from its arbitrary acts—acts
that courts or judges have no power or authority in law to
perform.
Judgments; As long as the trial court acted within its
jurisdiction, its alleged error committed in the exercise of its
jurisdiction amounted to nothing more than an error of judgment
that was reviewable by a timely appeal, not by a special civil
action of certiorari.—The proper remedy for the petitioner was to
proceed in the action until judgment, which, once rendered, might
then be reviewed on appeal, along with the assailed interlocutory
order. As long as the trial court acted within its jurisdiction, its
alleged error committed in the exercise of its jurisdiction
amounted to nothing more than an error of judgment that was
reviewable by a timely appeal, not by a special civil action of
certiorari.

639
PETITION for review on certiorari of the decision and
resolution of the Court of Appeals.
   The facts are stated in the opinion of the Court.
  Fernandez, Panganiban, Beloso, Zaldivar & Associates
Law Office for petitioner.
  Urbano, Palamos & Perdigon for respondent.

BERSAMIN,  J.:
We have before us a petition for review on certiorari
seeking the review of the decision dated September 12,
2002 (dismissing the petitioner’s petition for certiorari)1
and the resolution dated April 2, 2003 (denying the
petitioner’s motion for reconsideration),2 both promulgated
by the Court of Appeals in C.A.-G.R. SP No. 66616 entitled
Jowett K. Golangco v. The Presiding Judge of Branch 53,
Regional Trial Court of Manila and Jone B. Fung.

Antecedents

C.A.-G.R. SP No. 66616 was a special civil action for

certiorari commenced by the petitioner to assail the order
issued by the Regional Trial Court (RTC), Branch 53, in
Manila in Criminal Case No. 95-145703 entitled People v.
Jone B. Fung, whereby the RTC declared the Prosecution
to have terminated the presentation of further evidence
and required the Prosecution to file a written offer of
evidence within 20 days, furnishing a copy of the offer to
the accused who in turn had to comment on the offer within
15 days from receipt.
Criminal Case No. 95-145703, a prosecution for libel
initiated by the petitioner as the complainant against the
respondent, was commenced in 1995.3 Allegedly, the
respondent had

_______________

1 Rollo, pp. 20-25.

2 Id., at p. 30.
3 Id., at p. 21.

640

issued an office memorandum dated May 10, 1995

maliciously imputing against the petitioner the commission
of bribery and had sent copies of the memorandum to the
petitioner’s superiors in the Philippine Overseas
Employment Administration (POEA) and to other public
officers and personalities not connected with the POEA,
causing damage and prejudice to the petitioner.4
 After almost 6 years, the Prosecution had presented only
two witnesses in Criminal Case No. 95-145703. On
February 16, 2001, the Prosecution requested that a
subpoena ad testificandum be issued to and served on Atty.
Oscar Ramos, Resident Ombudsman of the POEA, to
compel him to testify in the criminal case on February 20,
2001. The hearing of February 20, 2001 was, however,
reset to May 23, 2001 due to the unavailability of Atty.
Ramos.
On May 23, 2001, the Prosecution still failed to present
Atty. Ramos as its witness because no subpoena had been
issued to and served on him for the purpose. Consequently,
the RTC judge issued an order terminating the
Prosecution’s presentation of evidence,5 as follows:

ORDER
“When the case was called for hearing, the accused is in court
with his lawyer Atty. Benigno Palamos. Private prosecutor Atty.
Agripino Baybay is in court but he has no witnesses today. He
manifested that he has to present Atty. Oscar Ramos, but since
the last hearing on February 20, to this date he has not asked for
any subpoena. Defense counsel moves to terminate the
presentation of prosecution evidence in view of the failure of the
prosecution to present witnesses despite numerous
postponements. The private prosecutor asks for another
continuance. The records show that on January 23, 2001 this
Court gave a stern warning to the prosecutor that it is giving one
final postponement for the production of witnesses. Yet the
prosecution caused the service of the subpoena too

_______________

4 Id., at p. 10.
5 Id., at pp. 17 & 21.

641

late for the hearing on February 20. For the next three months,
the prosecution simply did not apply for a subpoena. The Court
finds that the intention to delay the proceedings is evident. As
prayed for, the prosecution is declared to have terminated further
evidence.
The prosecution is given 20 days from today to make its formal
offer with copy furnished the defense counsel who is given 15 days
from receipt to make his comment and thereafter the offer will be
deemed submitted for resolution.
SO ORDERED.”

 
 The petitioner, by his lonesome, assailed on certiorari in
the Court of Appeals the order dated May 23, 2001,
claiming that the RTC judge thereby committed grave
abuse of discretion for not issuing the subpoena to require
Atty. Ramos to appear and testify in the May 23, 2001
hearing. He contended that his prior request for the
subpoena for the February 20, 2001 hearing should have
been treated as a continuing request for the subpoena
considering that the Rules of Court did not require a party
to apply for a subpoena again should it not be served in the
first time.6
In its decision dated September 12, 2002, the Court of
Appeals rebuffed the petitioner and dismissed the petition
for certiorari, holding:

“Axiomatically, any request for a subpoena to a witness must

indicate the date and time when the witness must appear in court
to give his or her testimony. It is on the basis of that request that
the court personnel prepares the subpoena indicating the title of
the case, the date and time for the appearance of the intended
witness. This is where petitioner fell into error. His urgent
request for subpoena (Annex “A”) failed to contain the date and
time when the intended witness, Atty. Oscar Ramos, must appear
in court to testify.
Even then, granting that the subpoena issued for February 20,
2001 hearing was properly served but which hearing was later on
postponed, there is still a need to ask for a new subpoena to the

_______________

6 Id., at p. 22.

642

same witness for the next scheduled hearing. The court cannot be
tasked to guess whether or not petitioner still intends to present
the witness at the next hearing. An intention to still present the
witness necessarily requires another request for a subpoena.
Moreover, the case was last heard on January 23, 2001 prior to
the February 20, 2001 hearing. Apropos, to ask for a subpoena to
his next witness on February 16, 2001, for the hearing on
February 20, 2001 was rather late. As the complainant in the
case, petitioner should have exercised due diligence or proper zeal
in the prosecution of his case which has long been pending for five
(5) years, let alone that it was the last chance given by the court
to the prosecution to produce its witness on February 20, 2001 on
account of its previous failure to do so.
Then, again, as correctly observed by the court a quo, from
February 20, 2001 to May 23, 2001, a good three (3) months
period passed without the prosecution requesting for a subpoena
for its intended witness. When the respondent court, as a
consequence, deemed the prosecution evidence terminated and
required it to formally offer its evidence, it was not committing
any error nor abuse of discretion. Here, petitioner created its own
predicament and should suffer from its adverse effect.”7

Hence, this appeal.

Issue

The issue is whether the Court of Appeals correctly

ruled on the petition for certiorari of the petitioner.
Ruling of the Court
We find no reversible error on the part of the Court of
Appeals.
I
Before dealing with the petition for review, we point out
the gross procedural misstep committed by the petitioner
in the Court of Appeals.

_______________

7 Id., at pp. 23-24.

643

The petitioner did not join the People of the Philippines

as a party in his action for certiorari in the Court of
Appeals. He thereby ignored that the People of the
Philippines were indispensable parties due to his objective
being to set aside the trial court’s order dated May 23, 2001
that concerned the public aspect of Criminal Case No. 95-
145703. The omission was fatal and already enough cause
for the summary rejection of his petition for certiorari.
The petitioner did not also obtain the consent of the
Office of the Solicitor General (OSG) to his petition for
certiorari. At the very least, he should have furnished a
copy of the petition for certiorari to the OSG prior to the
filing thereof,8 but even that he did not do. Thereby, he
violated Section 35(l), Chapter 12, Title III of Book IV of
Executive Order No. 292 (The Administrative Code of
1987), which mandates the OSG to represent “the
Government in the Supreme Court and the Court of
Appeals in all criminal proceedings; represent the
Government and its officers in the Supreme Court, the
Court of Appeals, and all other courts or tribunals in all
civil actions and special proceedings in which the
Government or any officer thereof in his official capacity is
a party.”
Although the petition for certiorari bore the conformity
of the public prosecutor (i.e., Assistant City Prosecutor
Danilo Formoso of Manila), that conformity alone did not
suffice. The authority of the City Prosecutor or his
assistant to appear for and represent the People of the
Philippines was confined only to the proceedings in the
trial court.
II
Even on the merits, the petition for review fails.
The criminal case had been pending since 1995 and the
petitioner as the complainant had presented only two
witnesses

_______________

8 Mangahas v. Court of Appeals, G.R. No. 173375, September 25, 2008,

566 SCRA 373; Salazar v. Romaquin, G.R. No. 151068, May 21, 2004, 429
SCRA 41, 47-48.

644

as of the issuance of the assailed order. The trial court had

not been wanting in giving warnings to the Prosecution on
the dire consequences should the Prosecution continue to
fail to complete its evidence. The Prosecution had retained
the duty to ensure that its witnesses would be present
during the trial, for its obligation to the administration of
justice had been to prove its case sans vexatious and
oppressive delays. Yet, the warnings of the trial court had
gone unheeded. Instead, the Prosecution would deflect the
responsibility for the delays to the failure of the trial court
to issue the subpoena to its proposed witness and to cause
the subpoena to be served. Such attitude of the
Prosecution, which included the petitioner as the
complainant, manifested a lack of the requisite diligence
required of all litigants coming to the courts to seek
redress.
We find that the trial judge did not act capriciously,
arbitrarily or whimsically in issuing the assailed order.
Thus, the Court of Appeals properly dismissed the petition
for certiorari. The petitioner now needs to be reminded that
certiorari is an extraordinary remedy to correct a grave
abuse of discretion amounting to lack or excess of
jurisdiction when an appeal, or any plain, speedy and
adequate remedy in the ordinary course of law is not
available. In this regard, grave abuse of discretion implies
a capricious and whimsical exercise of judgment that is
equivalent to lack of jurisdiction whenever the power is
exercised in an arbitrary or despotic manner by reason of
passion, prejudice or personal aversion amounting to an
evasion of a positive duty or to a virtual refusal to perform
the duty enjoined, or to act at all in contemplation of law.9
Also, it does not escape our notice that the trial court’s
assailed order terminating the Prosecution’s presentation
of evidence was merely interlocutory. This fact surely adds
justification to the Court of Appeals’ rejection of the
petition for

_______________

9 Urbanes, Jr. v. Court of Appeals, G.R. No. 117964, March 28, 2001,
355 SCRA 537, 538-539.

645

certiorari, because it is the settled rule that certiorari does

not lie to review an interlocutory order, but only a final
judgment or order that terminates the proceedings.
Certiorari will be refused where there has been no final
judgment or order and the proceeding for which the writ is
sought is still pending and undetermined in the lower
court. Indeed, a writ of certiorari is not intended to correct
every controversial interlocutory ruling unless the ruling is
attended by grave abuse of discretion or tainted by
whimsical exercise of judgment equivalent to lack of
jurisdiction, for the function of certiorari is limited to
keeping an inferior court within its jurisdiction and to
relieving persons from its arbitrary acts—acts that courts
or judges have no power or authority in law to perform.
Instead, the proper remedy for the petitioner was to
proceed in the action until judgment, which, once rendered,
might then be reviewed on appeal, along with the assailed
interlocutory order.10 As long as the trial court acted within
its jurisdiction, its alleged error committed in the exercise
of its jurisdiction amounted to nothing more than an error
of judgment that was reviewable by a timely appeal, not by
a special civil action of certiorari.11
WHEREFORE, we affirm the decision dated September
12, 2002 rendered in CA-G.R. SP No. 66616.
Costs of suit to be paid by the petitioner.
SO ORDERED.

Puno (C.J., Chairperson), Carpio, Leonardo-De Castro

and Del Castillo,** JJ., concur.
 _______________

10  Denso (Phils.), Inc. v. Intermediate Appellate Court, L-75000,

February 27, 1987, 148 SCRA 280; Investments, Inc. v. Court of Appeals,
G.R. No. 60036, Jan. 27, 1987, 147 SCRA 334.
11 Refugia v. Alejo, G.R. No. 138674, June 22, 2000, 334 SCRA 230.
** Additional member per raffle list of 24 August 2009.

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