SEVENTH DIVISION

[CA G.R. SP No. 64557.  September 28, 2001.]

CONRADO GOMEZ, NESTOR ZAFRA, AMPARO MUSNI, ALBERTO ZAFRA, DANNY ROQUE, FRANCISCO ZAFRA, SO ZAFRA, GLORIA CRUZ and DANNY YUMANG, petitioners, vs. HON. MA. BELEN RINGPIS-LIBAN, Presiding Judge, RTC, Branch 85, Malolos, Bulacan and ANDRES FRANCISCO, respondents.

D E C I S I O N

DE LOS SANTOS, J p:

This is a Petition for Certiorari under Rule 65 of the Rules of Court seeking relief from the Order dated March 7, 2001, denying the Opposition to the Motion for the Issuance of Order of Demolition, and from the Decision dated October 27, 1999, both issued by the Public Respondent, Presiding Judge of RTC Branch 85, Malolos, Bulacan, allegedly with grave abuse of discretion amounting to lack or excess of jurisdiction.

The factual backdrop of the case is as follows:

The instant case involves a piece of land, covered by TCT No. 033-EP, registered in the name of the private respondent pursuant to Presidential Decree No. 27, Emancipating the Tenants from the bondage of the soil. Constructed therein are the residential houses of herein petitioners. Private respondent claims that being a holder of an Emancipation Patent, he is the owner thereof and therefore, has the possessory right over the subject property.

On August 12, 1995, the private respondent filed a Complaint for recovery of possession against the petitioners. In their answer, petitioners aver, among others, that they had been occupying the property for a number of years now where their respective houses are erected; that private respondent never occupied the subject property and obtained his title therein through fraud; that private respondent never made any demand to vacate the same; that the property is an agricultural land, therefore, it is within the jurisdiction of the Department of Agrarian Reform; and that the case is barred by res judicata, a similar action having been decided by the lower court.

On October 27, 1999, a decision was rendered by the Public Respondent ordering the removal of the houses of herein petitioners and to vacate and deliver the subject lot to private respondent. On April 12, 2000, an Entry of Judgment was thus issued.

On April 15, 2000, private respondent filed a Motion for Issuance of a Writ of Execution. On November 29, 2000, he filed a Motion for Issuance of an Order of Demolition.

On December 21, 2000, petitioners filed an Opposition on the ground that they had filed a complaint (dated December 12, 2000) for the cancellation of the private respondent's Emancipation Patent before the Department of Agrarian Reform Adjudication Board (DARAB).

On January 11, 2001, Public respondent issued an Order granting the Motion for Issuance of an Order of Demolition. On January 30, 2001, petitioners filed a Motion to Stay Order of Demolition.

On March 7, 2001, Public respondent issued an Order denying the motion.

Hence, this recourse.

The sole issue posed to be resolved in this petition is whether the Public Respondent committed a grave abuse of discretion amounting to lack or excess of jurisdiction in denying the Motion to Stay the Order of Demolition and in deciding the case in favor of the private respondent.

We rule in the negative.

The declaration of the Court a quo, in its Order dated January 11, 2001, granting the Motion for Issuance of an Order of Demolition is worth quoting:

"Well settled is the rule that when a judgment is already final and executory, it is the ministerial duty of the court to issue the corresponding writ of execution. In fact the Supreme Court in the case of Mayuga vs. Court of Appeals, 261 SCRA 378, [1996] held that 'Where the judgment is already final and executory, the only way by which execution could be suspended is by the issuance of a writ of preliminary injunction which the petitioner may secure.' Hence, the pendency of any action before the DARAB will in no way bar nor preclude this Court from granting an Order of Demolition. Furthermore, the High Court in the case of Atal Moslem, et al., vs. Soriano, et al., L-36837, August 17, 1983, ruled that 'when a party refuses to yield possession of a property as ordered by a writ of execution, contempt is not the remedy. The Sheriff must oust said party from the property but if demolition is involved, there must be a hearing on motion and due notice for the issuance of a special order under Section 14, Rule 39 (now Section 10 (d) of Rule 39 of the 1997 Rule on Civil Procedure).'" (Rollo, pp. 41-42)

By following the above disquisition, Public Respondent did not commit any grave abuse of discretion in issuing the assailed Order. Neither did she commit abuse thereof in rendering the assailed Decision. Said the Court a quo "(U)nless and until plaintiff's title is declared null and void in an action brought for such purpose, plaintiff's title to the property remains valid" (Decision dated October 27, 1999, p. 4; Rollo, p. 20).

Certiorari as a special civil action can be availed of when: a) the tribunal, board or officer exercising judicial functions has acted without or in excess of jurisdiction, and b) there is no appeal, nor any plain, speedy and adequate remedy in the ordinary course of law for the purpose of annulling or modifying the proceeding" (Suntay vs. Cojuangco-Suntay, 300 SCRA 760).

Petitioners failed to prove that public respondent acted in arbitrary or despotic manner in issuing the March 7, 2001 Order and the October 27, 1999 Decision. "There is grave abuse of discretion where the power is exercised in an arbitrary or despotic manner by reason of passion, prejudice, or personal hostility amounting to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law" (Simon vs. CSC, 215 SCRA 410; Bustamante vs. COA, 216 SCRA 134).

Further, petitioners lost their right to appeal the October 27, 1999 Decision through their own fault. Settled is the doctrinal philosophy that "certiorari cannot be resorted to as a substitute for the lost remedy of appeal" (People vs. Court of Appeals, 296 SCRA 418; BF Corporation vs. Court of Appeals, 288 SCRA 267). "Certiorari, as a special civil action, will not lie unless a motion for reconsideration is first filed before the respondent tribunal to allow it an opportunity to correct its errors" (Zapanta vs. NLRC, 292 SCRA 580). Moreover, petitioners could have filed a motion for reconsideration to allow the public respondent an opportunity to rectify whatever error she may have committed, if there be any. "Other adequate remedy includes filing of a motion for reconsideration" (Cochingyan, Jr. vs. Cloribel, 76 SCRA 361; Solis vs. NLRC, 263 SCRA 629).

Furthermore, the Supreme Court has ruled that "factual matters are not proper subjects of certiorari" (Suarez vs. NLRC, 293 SCRA 496).

Thus, We have come to the conclusion that the Court a quo did not abuse its discretion in deciding the case in favor of the private respondent and in denying the Motion to Stay Order of Demolition. The burden of proof lies on the party who substantially asserts the affirmative of the issue. This is upon the principle that it is but reasonable and just that the suitor who relies upon the existence of a fact should be called upon to prove his own case.

WHEREFORE, in view of the foregoing, the petition is hereby DENIED for lack of merit.

SO ORDERED.

Jacinto and Abesamis, JJ., concur.