REMEDIAL LAW- APPEAL

G.R. No. 188364

February 11, 2015

K & G MINING CORPORATION (KGMC)

vs.
ACOJE MINING COMPANY, INCORPORATED (AMCI) and ZAMBALES CHROMITE
MINING COMPANY, INCORPORATED (ZCMCI)

Facts
Acoje Mining Company Incorporated (AMCI) and Zambales Chromite Mining Company
Incorporated (ZCMCI) executed a Mineral Production Shared Agreement (MPSA) covering
mining claims in Zambales. Petitioner K & G Mining Corporation (KGMC) filed a letter-protest
claiming that the MPRSA was irregularly executed and that it covered claims that were already
held by KGMC. The letter-protest was resolved by the DENR Panel of Arbitrators in favor of
the KGMC. However, on appeal, the Mines Adjudication Board (MAB) reversed the ruling.
Two months after the 15-day reglementary period to file an appeal under Rule 43, KGMC
filed before the Court of Appeals a Petition for Extension of Time to File a Petition for Certiorari
under Rule 65. The petition was denied by the court for the reason that decisions of the MAB are
appealable via a petition for review under Rule 43 and not by a way of a petition for certiorari
under Rule 65, and that the reglementary period for its filing has already prescribed.
Filing a Petition for Review on Certiorari with the Supreme Court under rule 45, KGMC
faults its previous counsel in failing to timely file the correct mode of appeal from the MAB
resolutions and submits that it should be excused from the repercussions of his ensuing
omissions as they amounted to gross negligence.
Issues
1. Whether the error of counsel in failing to timely file the correct mode of appeal binds
the client; and
2. Whether the filing a Petition for Extension of Time to File Petition for Certiorari was
effective
Ruling
1. Yes. The error of counsel in failing to timely file the correct mode of appeal binds the
client because it is a settled rule that the mistake of counsel binds the client. While
there is a recognized exception to the rule that is - where the lawyers negligence was

REMEDIAL LAW- APPEAL

so gross that it results in the grave injustice of depriving his client of the due process
of law it is inapplicable to the present case.
First, a counsels failure to perfect an appeal within the reglementary period is simple
negligence. It is not one as gross, palpable, and reckless as to deprive a party of its day in court.
Second, in cases where the counsels negligence consisted of his failure to timely file an
appeal, any alleged deprivation of due process is negated by the fact that the client had the
opportunity to be heard or was actually heard in the lower tribunal. In the case, KGMC had the
opportunity to be heard, was so heard and actively participated, in the proceedings before the
Panel of Arbitrators and the MAB.
Moreover, it is an established doctrine that the perfection of an appeal within the period
and in the manner prescribed by law is jurisdictional and non-compliance with such legal
requirements is fatal and has the effect of rendering the judgment final and executory.
2. No, the attempt to resuscitate the lost appeal by filing a Petition for Extension of Time
to File Petition for Certiorari was likewise ineffective.
The special civil action for certiorari is a limited form of review and is a remedy of last
recourse. It lies only where there is no appeal nor plain, speedy and adequate remedy in the
ordinary course of law. It cannot be allowed when a party to a case fails to appeal a judgment
despite the availability of that remedy. Certiorari is not and cannot be made a substitute for an
appeal where the latter remedy is available but was lost through fault or negligence.