SECOND DIVISION
[G.R. No. 113576.
CARLOS A. GOTHONG LINES, INC., petitioner, vs. COURT OF APPEALS, HON. PACIENCIO M. BALBON, & COKALIONG SHIPPING LINES, INC., respondents.
[G.R. No. 118235.
CARLOS GOTHONG LINES, INC., petitioner, vs. COURT OF APPEALS and COKALIONG SHIPPING LINES, INC., respondents.
D E C I S I O N
CALLEJO, SR., J.:
Before the Court are two petitions for review on certiorari. The first petition, docketed as G.R. No. 118235, assails the Decision[1] of the Court of Appeals in CA-G.R. SP No. 32307. The second petition, docketed as G.R. No. 113576, assails the Resolution[2] of the Court of Appeals in CA-G.R. SP No. 33174.
The Antecedents
Carlos A. Gothong Lines, Inc. (Gothong, for brevity), filed an
application, docketed as Case No. 93-036, with the Maritime Industry Authority
(MARINA) for provisional authority to re-route its vessel M/V Our Lady of
Guadalupe.[3]
In due course, Gothong was granted a special permit by the
WHEREFORE, in view of the foregoing, it is respectfully prayed of this Honorable Authority:
1. That a Provisional Authority be immediately granted the applicant for the vessel M/V OUR LADY OF GUADALUPE in the route herein applied for, to wit: Cebu–Surigao–Cebu–Surigao–Cebu–Surigao–Cebu-Maasin–Cebu;
2. That upon due notice and hearing, this Authority grant the herein applicant Certificate of Public Convenience for the vessel M/V OUR LADY OF GUADALUPE in the route applied for; and
3. That Applicant be granted such other relief and remedies just, fair, and equitable under the circumstances.[4]
Cokaliong Shipping Lines, Inc. (Cokaliong, for brevity), the owner-operator of two vessels, the M/V Filipinas-Tandag and M/V Filipinas- Surigao, opposed the application, alleging that the MARINA had previously issued in its favor a permit to operate its vessels serving the Cebu–Surigao-Tandang link and the Cebu–Maasin link. It also alleged that to allow Gothong to operate its vessel along the said routes could be a cause of over-tonnage and a big possibility of a cut-throat competition.[5]
After Gothong’s documentary evidence was admitted, the
On
In view thereof, the applicant’s request for Provisional Authority to operate the vessel M/V “OUR LADY OF GUADALUPE” in the Cebu-Surigao-Cebu-Surigao-Cebu-Surigao-Cebu-Maasin-Cebu route is hereby DENIED, until such time that this Authority has conducted the necessary actual market study/survey in the applied route to verify if additional shipping services/frequency of trips are warranted therein.
SO ORDERED.[6]
Gothong filed a motion for the reconsideration of the order, to
which Cokaliong filed an opposition.
Gothong complained that the denial of its application for a provisional
authority effectively dismissed its application without any countervailing evidence
being submitted by the oppositor. It
asserted that the order was based solely on Cokaliong’s opposition, and that
its evidence was sufficient for the
On
20. That this PROVISIONAL AUTHORITY shall be valid for a period of THREE (3) MONTHS from date hereof.
It may be cancelled, revoked or modified at any time as public interest may require and is without prejudice to whatever decision this Authority may finally render on the basic application for a Certificate of Public Convenience.[9]
On
1. Market condition does not warrant additional capacities:
2. There has been an increase in vessels plying the subject route, therefore, the route is over-tonnaged;
3. The route is being adequately served by oppositor, as well as by Trans-Asia Shipping lines, Inc. and Escano Lines and therefore there is no urgent public need; and
4. M/V “OUR LADY OF GUADALUPE” is unseaworthy.[10]
However, Cokaliong failed to serve copies of its motion on Gothong and to set the same for hearing on a specific date and time.
On October 8, 1993, the MARINA issued an Order setting the motion
of Cokaliong for hearing on October 21, 1993 at 9:30 a.m.[11]
However, the MARINA also suspended the provisional authority it issued in
Gothong’s favor pending the said hearing, on account of the therein alleged
unseaworthiness of the vessel. It ordered Gothong to cease and desist from
operating the vessel until the motion shall have been resolved. The
Instead of doing so, Gothong filed a petition for certiorari and
prohibition on October 12, 1993 with the Court of Appeals with a prayer for a
temporary restraining order and for writ of preliminary injunction assailing
the October 8, 1993 Order of the MARINA.
Gothong claimed that the
On
In the meantime, the respondent MARINA filed in CA-G.R. SP No. 32307 its comment and supplement thereto.[15] Respondent Cokaliong, likewise, filed its comment.[16]
On February 1, 1994, Cokaliong filed a petition for certiorari and prohibition in the Court of Appeals with a prayer for a temporary restraining order and/or writ of preliminary injunction for the nullification of the December 29, 1993 Order of the MARINA granting an extension of Gothong’s provisional authority to operate its vessel. The case was docketed as CA-G.R. SP No. 33174 and raffled to the 13th Division of the Court of Appeals.
On P500,000.00.[17]
On February 11, 1994, Gothong filed a petition for review on
certiorari in this Court, docketed as G.R. No. 113576, for the nullification of
the February 3, 1994 Resolution of the Court of Appeals in G.R. SP No. 33174
and for the Court to order the CA to consolidate CA-G.R. No. 33174 with CA-G.R.
No. 32307 pending in the 16th Division of the CA. On
On
The Issues
From our review of the records, the issues for resolution in the two petitions are (a) whether the private respondent Cokaliong is guilty of forum shopping in filing its petition in the Court of Appeals, docketed as CA-G.R. SP No. 33174, despite the pendency of the petition filed by Gothong, docketed as CA-G.R. SP No. 32307; (b) whether the Court of Appeals erred in not consolidating CA-G.R. SP No. 33174, raffled to its 13th Division, with CA-G.R. SP No. 32307 pending before the 16th Division; (c) whether the Court of Appeals erred in issuing a temporary restraining order in CA-G.R. SP No. 33174; and, (d) whether the 16th Division of the appellate court erred in dismissing the petition for certiorari in CA-G.R. SP No. 32307 filed by Gothong, for its failure to file a motion for reconsideration of the assailed order.
The Ruling of the Court
On the first issue, petitioner Gothong asserts that the
respondent was present during the hearing in CA-G.R. SP No. 32307 on
On the issue of forum shopping, the Court of Appeals ruled as follows:
There is forum shopping when a party seek (sic) to obtain remedies in an action in one court which had already been solicited and, what is worse, already refused in other actions and proceedings in other tribunal (MB Finance Corp. v. Abesamis, G.R. No. 93875, March 22, 1991) 195 SCRA 592.
In GSIS v. Rebecca Panlilio, et al., G.R. No. 83385, Nov. 26, 1990, 191 SCRA 655, it was held that: “forum shopping” exists “whenever, as a result of an adverse opinion in one forum, a party seeks a favorable opinion (other than by appeal or certiorari) in another.” However, as held in another case,” both actions, (must) involve the same transactions, same essential facts and circumstances.” (citing Palm Avenue Realty Dev’t. Corp. v. PCGG, 153 SCRA 579, 591).
In the present case, COKALIANG (sic) does not seek to obtain a
remedy against the original three months provisional authority granted by
We agree with the Court of Appeals. The subject of the petition in CA-G.R. SP No. 32307 was the Order issued by the MARINA dated October 8, 1998, suspending, ex parte,
the provisional authority it issued on October 1, 1993 in favor of the
petitioner. The petitioner alleged
therein that the
On the second issue, the petitioner avers that the Court of Appeals erred in denying the consolidation of CA-G.R. SP No. 32307 and CA-G.R. SP No. 33174, on its claim that the petitions in the said cases involved the same parties and the same basic issues. The petitioner posits that the MARINA extended its provisional authority for another three months from the expiry of the original period therefor precisely because of the pendency in the Court of Appeals of CA-G.R. SP No. 32307, and the existence of the parties’ status quo agreement allowing the operation of the vessel pending the CA’s resolution of its petition for a writ of preliminary injunction.
In resolving the issue, the CA ratiocinated that a consolidation of the two cases was inappropriate on the following grounds:
The Sixteenth Division had in effect already rejected this case
when Justice
In any event, there was no need of consolidation or referral to the Sixteenth Division, because the issues in the two (2) cases are different.
In CA-G.R. SP No. 32307, the petitioner is GO THONG. It seeks to
restrains (sic)
The present case is totally different. The petitioner here is
COKALIONG. The petitioner do not seek to interfere with the status quo referred to in SP No. 32307
which is the Provisional Authority granted to GO THONG to operate subject route
from October 3, 1993 to December 29, 1993. The Order sought to be herein
annulled and restrained is totally different and was not yet in existence when
the status quo order was issued in SP
No. 32307. The Order sought to be
annulled and restrained in this case as having been allegedly issued without
due process is the Order of
The issue of due process raised by GO THONG in SP No. 32307 is not the same issue of due process raised by COKALIONG in this case. COKALIONG could not raise the issue of lack of due process in SP No. 32307 first because, it is not a petitioner in said case, and second, when the petition therein was filed, its right to due process have not yet been violated.[21]
We are in full accord with the Court of Appeals. Contrary to the
petitioner’s contention, it applied for an extension of its provisional
authority on
3. That there is a continuing and insistent public demand for the operation of the vessel M/V OUR LADY OF GUADALUPE in the route: Cebu-Surigao-Cebu-Surigao-Cebu-Surigao-Cebu-Maasin-Cebu for the transportation of passengers and cargoes.
4. Therefore, there is need to renew the subject Provisional Authority.
5. The vessel M/V OUR LADY OF GUADALUPE has complete and valid certificate to attest to her seaworthiness.[22]
The
On the third issue, the Court of Appeals resolved to issue a
temporary restraining order in favor of the respondent, later converting it
into a writ of preliminary injunction on a bond of P500,000.00, ratiocinating as follows:
Whether or not it is the ministerial duty of
When
This is far from the truth. The initial denial was based on.
Considering that the continuance of the acts complained of unless restrained, would render the judgment in this case ineffectual and probably work an injustice on petitioner, we resolve to issue the writ prayed for.[23]
The petitioner avers that the Court of Appeals should have
dismissed outright the petition in CA-G.R. SP No. 33174 because of the pendency
of CA-G.R. SP No. 32307 in the said court. Instead, the CA issued a temporary
restraining order enjoining the enforcement of the
We do not agree with the petitioner. With our ruling that the
proceedings in CA-G.R. SP No. 32307 did not bar the filing of the petition in
CA-G.R. SP No.33174, it follows that the appellate court had to take cognizance
of the petition in CA-G.R. SP No. 33174, and consider the plea for a temporary
restraining order and a writ of preliminary injunction. It bears stressing that
the matter of the issuance of a writ of preliminary injunction and a temporary
restraining order is addressed to the sound judicial discretion of the court,
and this Court will not interfere with the appellate court’s exercise of its discretion unless of manifest abuse.[24]
In this case, we find no abuse of discretion on the part of the CA in issuing a
temporary restraining order and a writ of preliminary injunction. The Court notes that although the
On the last issue, the petitioner contends that the CA erred when
it dismissed its petition in CA-G.R. SP No. 32307 merely because it did not
file a motion for reconsideration of the assailed Order of the
In the instant case,
The CA, on the other hand, dismissed the petition for
prematurity, viz:
What is evident is that Petitioner opted to file the instant Petition and completely disregarded the principle of “exhaustion of administrative remedies.” If any party like the petitioner feels aggrieved by any order, decision, ruling, regulation or policy promulgated by the Public Respondent MARINA, then such aggrieved party must first exhaust administrative remedies before invoking judicial intervention. Hence, what can be reasonably inferred from the action of Petitioner in filing the instant Petition is that it waived its opportunity to be heard and submit its evidence to refute Private respondent’s allegations by not complying with the directive contained in the disputed order being assailed by herein Petitioner.
“Failure to exhaust administrative remedies when the same is available before filing an action for certiorari is fatal” (Ganub vs. Ramos, 27 SCRA 1174).
Besides, petitioner’s allegation that the sole reason or consideration which served as the basis of the issuance of the 08 October 1993 Order was herein private respondent’s motion for revocation is not well founded, it appearing clearly that public respondent was guided by considerations of “public interest” and “public safety” in suspending the provisional authority contained in the 01 October 1993 Order, in view of the call to consider the issue of “seaworthiness” raised by herein private respondent.[26]
We agree with the Court of Appeals. We note that the provisional authority granted to the petitioner
may be cancelled, revoked or modified at any time by the
Certiorari is an extraordinary remedy and will not issue in the
absence of a grave abuse of discretion on the part of the public respondent, in
this case, the
IN LIGHT OF ALL THE
FOREGOING, the petitions in G.R. No. 113576 and G.R. No. 118235 are DENIED for lack of merit.
Costs against the petitioner.
SO ORDERED.
Puno, (Chairman), Quisumbing, and Tinga, JJ., concur.
Austria-Martinez, J., on leave.
[1] Penned by Associate Justice Jeorge S. Imperial, with Associate Justices Pacita Cañizares-Nye and Eduardo G. Montenegro concurring.
[2] Penned by Associate Justice Oscar M. Herrera, with Associate Justices Consuelo Ynares-Santiago and Corona Ibay-Somera concurring.
[3] Annex “C,” Petition, G.R. No. 118235.
[4] Rollo, p. 57 (G.R. No. 113576).
[5]
[6]
[7]
[8]
[9] Rollo, p. 532 (G.R. No. 118235).
[10] Rollo, p. 83 (G.R. No. 113576).
[11]
[12]
[13]
[14]
[15]
[16]
[17]
[18]
Rollo, pp. 40-48 (G.R. No. 118235).
[19]
[20] See Gochan v. Gochan, 372 SCRA 256 (2001).
[21] Rollo, pp. 498-499 (G.R. No. 113576).
[22]
[23]
[24] Reyes v. Court of Appeals, 321 SCRA 368 (1999).
[25] Rollo, p. 31 (G.R. No. 111832).
[26]