This is a petition for certiorari and prohibition seeking the reversal of respondent Court of Appeals' October 30, 1996 Decision^[1] which affirmed the trial court's denial of petitioner's Motion to Dismiss Civil Case No. Q95-25803 for alleged lack of jurisdiction due to improper venue and lack of cause of action.^[2] Also challenged is respondent Court of Appeals' May 9, 1997 Resolution denying petitioners' Motion for Reconsideration.^[3]

It appears that on August 12, 1994, private respondents entered into a Contract to Buy and Sell with the AFP Retirement and Separation Benefits System (hereinafter referred to as AFP-RSBS) whereby they purchased parcels of land located in Bo. Camorong, Abra de Ilog, Occidental Mindoro, covered by eleven (11) individual certificates of title and with an aggregate area of four million two hundred thousand (4,200,000) square meters. The sale was for a total purchase price of Six Million Pesos (P6,000,000.00).

Meanwhile, petitioner Oscar Mapalo, who alleges to have brokered the sale of the properties to private respondents, obtained from the latter an authority to sell the subject properties. Petitioner Mapalo offered the properties to petitioner Alfredo P. Rosete for the amount of Twenty Five Millions Pesos (P25,000,000.00). On October 11, 1995, private respondent Juliano Lim, through their lawyer, Victoria Piñera, executed a Deed of Assignment transferring to petitioner Alfredo P. Rosete their rights under the Contract to Buy and Sell with AFP-RSBS. A supplemental Memorandum of Agreement was entered into by the parties whereby the consideration for the assignment was fixed at Twenty Five Million Pesos (P25,000,000.00), payable as follows: (1) the amount of P2,944,929.11 was to be paid directly to AFP-RSBS to settle the outstanding balance of private respondents; and (2) the remaining P22,055,070.89 was to be paid to private respondents thru a check postdated October 31, 1995. Accordingly, petitioner Alfredo Rosete delivered to private respondents Bank of the Philippine Islands Check No. 369888, in the stipulated date and amount, together with a bank certification issued by the Bank of the Philippine Islands to the effect that petitioner Chito P. Rosete, petitioner Alfredo P. Rosete's brother, had executed an undertaking and instruction to release from his current account the amount covered by the check upon presentation of title of the subject parcels of land in his name.

While these transactions were taking place, petitioner Mapalo bought out petitioner Rosete's rights and interests to the transaction and on October 16, 1995, sold the same property to Espreme Realty Development Corporation (hereinafter referred to as Espreme Realty), through its representative, Magdalena Lontok-Barnaby, for the price of One Hundred Fifty Million Pesos (P150,000,000.00). Espreme Realty, however, was unable to fully pay the purchase price, leaving an unpaid balance of One Hundred Eighteen Million Five Hundred Thousand Pesos (P118,500,000.00). Petitioners thus filed a complaint against Lontok-Barnaby and others with the Criminal Investigation Service.

Petitioners claim that private respondents were aware of this side agreement and that they knew that the funding of the issued check was dependent on the payment due from Espreme Realty. Yet, on November 10, 1995, private respondents proceeded to deposit the check issued to them by petitioner Chito P. Rosete for the account of petitioner Alfredo P. Rosete. Expectedly, the check was dishonored for being drawn against insufficient funds.

Private respondent then sent a letter to petitioner Alfredo P. Rosete formally notifying him that their Deed of Assignment was automatically revoked and demanding the payment of Five Million Pesos (P5,000,000.00) by way of liquidated damages.

It appears that petitioner Mapalo also brokered the sale by AFP-RSBS of the same properties to Espreme Realty sometime in November, 1995 for which reason title to the properties had been transferred to the latter's name.

These circumstances led private respondents to file with the Regional Trial Court of Quezon City, on December 5, 1995, a complaint against petitioners, AFP-RSBS, Espreme Realty, Bank of the Philippine Islands and the Register of Deeds of Mindoro Occidental, for Annulment and Specific Performance with Damages.^[4] In their Complaint, private respondents sought (a) the annulment of the Deed of Sale by AFP-RSBS in favor of Espreme Realty; (b) the annulment of titles over the subject properties in the name of Espreme Realty; (c) to compel AFP-RSBS and Espreme Realty to execute the necessary documents to restore private respondents' ownership and title to the subject properties; (d) to have the Register of Deeds of Occidental Mindoro cancel the titles in Espreme Realty's name and to transfer the same in their name; (e) the payment by petitioner Alfredo P. Rosete of P5,000,000.00 in liquidated damages; and (f) the payment by all defendants of stated actual, moral and exemplary damages, attorney's fees, litigation expenses and costs of suit.

Instead of filing an answer, petitioners filed a Motion to Dismiss^[5] on January 18, 1996, on the ground of lack of jurisdiction over the subject action or suit and/or improper venue. According to petitioners, actions affecting title to, or for recovery of possession of real property shall be commenced and tried in the province where the property or any part thereof lies; and since the properties subject of the suit are located in Occidental Mindoro, the complaint was dismissible for lack of jurisdiction and/or improper venue.

Petitioners' Motion to Dismiss was denied by the trial court in its Order dated March 12, 1996.^[6] According to the trial court, the provision in the Contract to Buy and Sell between private respondents and AFP-RSBS, setting venue of any disputes thereunder to the courts of Quezon City, is binding upon petitioners who derived their rights, as assignees, therefrom. It also rejected the argument of lack of cause of action by holding that this does not appear indubitable from the face of the Complaint. Petitioners' Motion for Reconsideration was likewise denied by the trial court in its Order of May 24, 1996.

Undaunted, petitioners went to the Court of Appeals on a petition for certiorari under Rule 65, questioning the refusal of the trial court to dismiss private respondent's Complaint. On October 30, 1996, respondent Court of Appeals issued the assailed Decision, denying due course to the petition and dismissing the same. In rejecting the petitioners' charge of lack of jurisdiction, the Court of Appeals reasoned out that since venue was stipulated to be in the courts of Quezon City in the Contract to Buy and Sell, venue of the action was properly laid. Respondent Court of Appeals also held that petitioners were bound by the stipulation on venue as they were privies to the Contract to Buy and Sell. Sustaining the trial court in its refusal to uphold petitioners' allegation of failure to state a cause of action, the Court of Appeals found the allegations in the Complaint sufficient to establish a cause of action, specifically against petitioner Alfredo Rosete.

With the denial of their Motion for Reconsideration on May 9, 1997, petitioners brought the instant Petition for Certiorari and Prohibition, anchored upon the following grounds

"I

THE RESPONDENT COURT ACTED IN GRAVE ABUSE OF DISCRETION AND GRAVE ERROR IN NOT FINDING THAT THE TRIAL JUDGE WHO RENDERED THE ORDER DATED MARCH 12, 1996 DENYING THE MOTION TO DISMISS AND ORDER DATED MAY 24, 1996 DENYING THE MOTION FOR RECONSIDERATION THERETO WAS WITHOUT OR EXCEEDED HIS JURISDICTION OR GRAVELY ABUSED HIS DISCRETION IN ASSUMING JURISDICTION OVER THE COMPLAINT NOTWITHSTANDING THE FACT THAT THE LOWER COURT HAS NO JURISDICTION OVER THE SUBJECT OF THE ACTION OR SUIT, AND VENUE WAS IMPROPERLY LAID.

II

THE RESPONDENT COURT ACTED IN GRAVE ABUSE OF DISCRETION AND GRAVE ERROR IN NOT FINDING THAT SAID TRIAL JUDGE ACTED IN GRAVE ABUSE OF DISCRETION OR WITHOUT OR EXCEEDED HIS JURISDICTION IN NOT DISMISSING THE CASE FOR LACK OF CAUSE OF ACTION.

III

THE RESPONDENT COURT ACTED IN GRAVE ABUSE OF DISCRETION AND GRAVE ERROR IN NOT FINDING THAT THE TRIAL JUDGE ACTED IN GRAVE ABUSE OF DISCRETION IN RULING THAT THE MOTION FOR RECONSIDERATION OF PETITIONERS IS PRO-FORMA."^[7]

The Petition must be dismissed.

To begin with, petitioners' remedy was to appeal to this Court by filing a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure. Instead, they filed this petition for certiorari and prohibition under Rule 65 only on July 21, 1997. Apparently, petitioner resorted to the special civil action because it failed to take an appeal within the 15-day reglementary period which expired on June 4, 1997, having received a copy of respondent Court of Appeals' Resolution denying their Motion for Reconsideration on May 20, 1997. This, of course, cannot be done. The special civil action for certiorari cannot be used as a substitute for an appeal which petitioners have lost. Nor can it be contended that the only question raised in this case is a jurisdictional question. Certiorari lies only where there is no appeal nor any plain, speedy, and adequate remedy in the ordinary course of law. There is no reason why the question being raised by petitioners, improper venue and lack of cause of action, could not have been raised by them on appeal.

To stress, the proper remedy of petitioners then, should have been an appeal under Rule 45 of the Rules of Court. We have time and again reminded members of the bench and bar that a special civil action for certiorari under Rule 65 lies only when "there is no appeal, nor plain, speedy or adequate remedy in ordinary course of law." 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 appeal. The remedies of appeal and certiorari are mutually exclusive and not alternative or successive.^[8]

Proceeding to the merits of the case, petitioners admit that the Contract to Buy and Sell between private respondents and AFP-RSBS stipulates that the venue of actions based thereon shall be in the courts of Quezon City. They also concede that venue is waivable and may be changed by written agreement. Section 10, 2nd paragraph of the Contract provides: "Venue of action based on this Contract shall be any of the proper court of competent jurisdiction in Quezon City."^[9] However, they insist that since they are neither signatories nor parties to the said Contract, they could not be bound thereby.

We disagree.

Petitioners cannot deny that although they were not direct parties to the Contract to Buy and Sell, petitioner Alfredo Rosete was an assignee thereof, and as such stepped into the shoes of private respondents, his assignors. Clearly, then, as such assignee, petitioner Alfredo Rosete can and must be bound by its provisions.^[10] With respect to petitioners Mapalo and Chito Rosete, being involved in the transaction through petitioner Alfredo Rosete, they too must yield to the jurisdiction and venue of the action against their principal. Parties should be allowed to stipulate on where to file actions because venue relates to the trial and touches more upon the convenience of the parties rather than upon the substance or merits of the case.^[11]

WHEREFORE, in view of the foregoing, the petition is DISMISSED.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo, JJ., concur.

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^[1] Petition, Annex "A"; Rollo, pp. 51-61.

^[2] See Petition, Annex "D", Order dated March 12, 1996, issued by the Regional Trial Court of Quezon City, Branch 77, in Civil Case No. Q-95-25803.

^[3] Petition, Annex "B"; Rollo, pp. 62-64.

^[4] Id., Annex "F"; Rollo, pp. 72-114.

^[5] Id., Annex "G"; Rollo, pp. 115-118.

^[6] See Note 2.

^[7] Petition, p. 7; Rollo, p. 33.

^[8] Republic v. Court of Appeals, G.R. No. 129846, 18 January 2000.

^[9] Rollo, p. 89.

^[10] See Civil Code, Article 1311.

^[11] See Philippine Banking Corporation v. Tensuan, G.R. No. 106920, 228 SCRA 385, 396 [1993].