[G.R. No. 154494.November 13, 2002]




Quoted hereunder, for your information, is a resolution of this Court dated 13 NOV 2002.

G.R. No. 154494 (Davao Fruits Corporation vs. Herminio Beltran Ligon.)


Petitioner Davao Fruits Corporation assails the twin resolutions issued by the Court of Appeals: first, the December 20, 2001 resolution dismissing its petition, and second, the resolution dated July 10, 2002 which denied petitioner's motion for reconsideration.

The present controversy stems from an action for recovery of possession filed by petitioner against private respondent Herminio Beltran Ligon.

The facts are as follows:

The property involved in the case at bar is an 89,847 square-meter lot previously registered in the name of a certain Emelia Beltran. On June 7, 1977, Beltran and a certain Sabina Lim Lanuza entered into a contract of lease for a period of 15 years from July 15, 1977 which was annotated at the back of the title. The lease period was extended up to December 31, 2002.

The land was thereafter planted with Cavendish bananas by Lanuza, financed by petitioner, and the two jointly operated the farm and produced Cavendish bananas for export.

On January 8, 1998, Lanuza subleased the subject land to petitioner.

On August 17, 1998, the property was transferred to and titled in the name of private respondent Hilario Beltran Ligon under TCT No. 312114 which continued to carry the annotation of the 1977 lease contract.

Sometime in 1998, private respondent, through an attorney-in-fact, entered into a PRODUCTION and PURCHASE AGREEMENT with petitioner wherein private respondent was to provide the bananas to be purchased by petitioner. The initial term was for one year from July 1, 1998 to July 1, 1999, with an automatic renewal on a year to year basis unless either party serves a notice of cancellation not later than 6 months prior to the expiration of the original period or any of the extension thereof.

The AGREEMENT was renewed for another year or until July 2000. However, six months prior to its expiration, petitioner notified private respondent of its intention to cancel the agreement upon its expiration on July 1, 2000. Consequently petitioner demanded the return of possession of the property asserting its right as a sub-lessee by virtue of the lease contract that petitioner claimed to be valid until December 2002.

Private respondent refused. Thus petitioner filed an action for recovery of possession and/or recovery of income and unearned profit.

In lieu of an answer, private respondent filed a motion to dismiss on the ground of lack of cause of action. Private respondent contended, among other matters, that petitioner, as sub-lessee cannot directly sue private respondent, the main lessor/owner of the property in question, citing the case of Marimperio Compania Naviera, SA vs. CA where the Court declared:

In a contract of sublease, the personality of the lessor does not disappear. He does not transmit absolutely his rights and obligations to the sublessee. The sublessee generally does not have any direct action against the owner of the premises as lessor, to require compliance of the obligations contracted with the plaintiff as lessee or vice-versa. [1] cralaw

On March 26, 2001, the trial court issued an order granting private respondent's motion to dismiss.

A subsequent motion for reconsideration failed. Thus, on November 13, 2001, petitioner filed a petition for certiorari effectively elevating the case to the Court of Appeals.

On December 20, 2001, the appellate court issued the first assailed order denying petitioner's petition on the ground that the verification and certification of non-forum shopping was executed and signed by an alleged Vice-President for Finance of petitioner corporation without any proof of the former's authority from the board of directors of petitioner corporation to file the petition and execute the required certification for and in its behalf.

On January 23, 2002, petitioner filed a motion for reconsideration, reasoning that its failure to attach the authority from the board of directors was due to the fact that Section 1 of Rule 65, in relation to Section 3 of Rule 46, does not expressly require that such an authority be attached to the petition.

On July 10, 2002, the Court of Appeals rendered its second assailed resolution denying petitioner's motion for reconsideration, this time on the ground that the subject of the petition (which is the propriety of the March 26, 2001 order of the Regional Trial Court dismissing the complaint) was not a proper subject of a special civil action for certiorari.

The instant petition is without merit.

As correctly ruled, the remedy against an order of dismissal is the timely filing of an appeal, not a special civil action for certiorari. [2] cralaw

Notably, in the case at bar, petitioner received the assailed orders dated March 26, 2001 and August 15, 2001 on April 4, 2001 and September 26, 2001, respectively. Therefore, petitioner had only until October 11, 2001 to appeal the assailed orders pursuant to Section 3 of Rule 41 of the 1997 Rules of Civil Procedure. However, petitioner failed to do so within the prescribed period and clearly lost its right to appeal. Thus, when petitioner filed its petition at the Court of Appeals on November 13, 2001, the challenged orders had by then become final and executory.

Certiorari cannot be allowed when a party to a case fails to appeal a judgment despite the availability of that remedy, certiorari not being a substitute for lost or lapsed appeal. [3] cralaw

WHEREFORE , the petition is hereby denied due course.



Very truly yours,

Clerk of Court


[1] cralaw Rollo, p. 93.

[2] cralaw Meneses vs. Court of Appeals, 237 SCRA 484 [1994].


[3] cralaw Republic vs. Court of Appeals, 322 SCRA 81 [2000].

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