RULE 65 CERTIORARI, PROHIBITION
AND MANDAMUS
1, Rule 65).
usurpation of
jurisdiction
(Sec. 2, Rule
65)
Extends
to
discretionary acts
Extends
to
discretionary
and ministerial
acts
Certiorari is an extraordinary and independent remedy
-high prerogative writ because cannot avail anytime
-Certiorari’s nature: limited in scope and narrow in character
Scope
-Prohibition a preventive remedy; appealable
DEFINITIONS AND DISTINCTIONS
Certiorari
Prohibition
Mandamus
Definition
Certiorari is an
extraordinary writ
annulling
or
modifying
the
proceedings of a
tribunal, board or
officer exercising
judicial or quasijudicial functions
when
such
tribunal, board or
officer has acted
without or in
excess of its or his
jurisdiction,
or
with grave abuse
of
discretion
amounting to lack
or
excess
of
jurisdiction, there
being no appeal
or
any
other
plain, speedy and
adequate remedy
in the ordinary
course of law
(Sec. 1, Rule 65).
-to correct an act
Against
whom
Directed against
an
entity
or
person exercising
judicial or quasijudicial function.
Ground
Entity or person is
alleged to have
acted
without
jurisdiction;
in
excess
of
jurisdiction;
or
with grave abuse
of discretion
Purpose
Nature
Purpose is to
annul or nullify a
proceeding.
This remedy is
corrective – to
correct
usurpation
of
jurisdiction (Sec.
DOI PSALM 18:2
Prohibition is an
extraordinary
writ
commanding a
tribunal,
corporation,
board
or
person,
whether
exercising
judicial, quasijudicial
or
ministerial
functions,
to
desist
from
further
proceedings
when
said
proceedings are
without or in
excess of its
jurisdiction, or
with abuse of
its discretion,
there being no
appeal or any
other
plain,
speedy
and
adequate
remedy in the
ordinary course
of law (Sec. 2,
Rule 65).
-to
prevent/
disconitue
or
undoing of an
act
Directed
against
an
entity or person
exercising
judicial, quasijudicial
or
ministerial
function.
Entity or person
is alleged to
have
acted:
without
jurisdiction; in
excess
of
jurisdiction; or
with
grave
abuse
of
discretion
Purpose is to
have
respondent
desist
from
further
proceeding.
This remedy is
preventive and
negative – to
restrain
or
prevent
Mandamus is an
extraordinary writ
commanding
a
tribunal,
corporation, board
or person, to do an
act required to be
done:
a.
When
he
unlawfully
neglects
the
performance
of an act which
the
law
specifically
enjoins as a
duty,
and
there is no
other
plain,
speedy
and
adequate
remedy in the
ordinary
course of law;
or
b.
When
one
unlawfully
excludes
another from
the use and
enjoyment of a
right or office
to which the
other
is
entitled (Sec.
3, Rule 65).
-to command
Directed against an
entity or person
exercising
ministerial
function.
Entity or person is
alleged to have
unlawfully
neglected
a
ministerial duty; or
excluded another
from a right or
office.
Purpose
is
for
respondent to:
1. Do the act
required; and
2.
To
pay
damage.
This remedy is
affirmative
or
positive (if the
performance of a
duty is ordered) or
it is negative (if a
person is ordered
to
desist
from
excluding another
from a right or
office) (Sec. 3,
Rule 65).
Only for ministerial
acts
PETITION FOR CERTIORARI (SEC. 1)
Against whom filed (Respondents)
An action for certiorari is addressed to any:
a. Tribunal
b. Board or
c. Officer, exercising judicial or quasi-judicial functions
Aside from the party in interest, it includes a tribunal, the court,
board or officer, exercising judicial or quasi-judicial functions.
Rule 43 have an enumeration of the quasi-judicial bodies whose
decisions are questionable by way of an appeal under Rule 43 or by
way of Petition By Certiorari under Rule 65.
Among these agencies are the:
1. Civil Service Commission,
2. Central Board of Assessment Appeals,
3. Securities and Exchange Commission,
4. Office of the President,
5. Land Registration Authority,
6. Social Security Commission,
7. Civil Aeronautics Board,
8. Bureau of Patents,
9. Trademarks and Technology Transfer,
10. National Electrification Administration, Energy Regulatory
Board,
11. National Telecommunications Commission,
12. Department of Agrarian Reform under Republic Act No. 6657,
13. Government Service Insurance System,
14. Employees Compensation Commission,
15. Agricultural Invention Board,
16. Insurance Commission,
17. Philippine Atomic Energy Commission,
18. Board of Investments,
19. Construction Industry Arbitration Commission, and
20. voluntary arbitrators authorized by law
Basis of petition (Grounds for petition)
You have to claim that the tribunal or officer exercising judicial/
quasi- judicial functions acted either:
1. without or in excess of jurisdiction, or
2.with grave abuse of discretion amounting to lack or in excess of
jurisdiction.
Conditions
There is no appeal, or any plain, speedy, and adequate remedy in
the ordinary course of law.
TN: This must be alleged in your petition
Verified Petition
The Aggrieved party shall file a verified petition seeking the
annulment of subject order of the court;
TN: The Petition must be accompanied by the following:
1. certified true copy of the judgment or order
2. Certification of non-forum shopping
What is to be Corrected in Certiorari
It is proper to correct error of jurisdiction, and NOT error of judgment
Error of Jurisdiction
Court does not have
jurisdiction or exceeded
its jurisdiction
Remedy is certiorari
under Rule 65
Error of Judgment
The court has jurisdiction, but
committed an error in rendering the
decision (error in appreciation of
facts of conclusions of law)
Remedy is appeal
Motion For Reconsideration (MR) as a pre- requisite
GR: An MR MUST be filed before filing the certiorari.
No certiorari will be entertained if there is no prior MR filed.
Why? In order to give the court or tribunal a chance to rectify its
mistake
EXCEPTIONS: (In these instances, no need to file MR)
1. Where the order is a patent nullity;
2. Where the issue raised in certiorari have been duly passed upon
by the court;
3. Where there is urgent necessity for resolution of the question
raised;
4. Where motion for reconsideration would be useless;
5. Where petitioner is deprived of due process;
6. Where, in a criminal case, relief from an order of arrest is urgent
and the granting of such relief by the trial court is highly
improbable;
Dean Monteclar: When there has already been an arrest, an MR
may not be an adequate remedy since it already involves your
freedom.
7. Where the proceeding in the lower court are a nullity for lack of
due process;
8. Where the proceeding was done ex-parte;
9. Where the issue raised is one purely of law or where public interest
is involved.
Author’s note: the following are REQUISITES FOR RULE 65
1. Presence of any of the grounds
2. No appeal, or any plain, speedy, adequate remedy
3. Verified petition
4. As a general rule, MR must be filed prior filing of Certiorari
Instances when the petitions for certiorari, mandamus and
prohibition are NOT available
1. Rule on Summary Procedure as to interlocutory order issued by
the lower court [Sec. 19(g), Rules on Summary Procedure];
2. Writ of Amparo against any interlocutory order [Sec. 11(l),
Rule on Writ of Amparo];
3. Petition for writ of Habeas data against any interlocutory order
[Sec. 13(l), A.M. No. 08-1-16];
4. Small claims cases against interlocutory order issued by the
lower court [Sec. 14(g) of A.M. No. 08- 8-7-SC].
CERTIORARI DISTINGUISHED FROM APPEAL BY
CERTIORARI
Rule 65 (Certiorari)
Rule 45 (Appeal by
Certiorari)
A special civil action that is an
Mode of Appeal
original and independent
action and not a mode of
appeal.
May be directed against an
Seeks to review final
interlocutory order or matters
judgments or final orders
where no appeal may be
taken from
GR: Involves questions of
GR: Involves question of law
jurisdiction
XPNs: In Writ of Amparo,
XPN: When it is necessary to
Habeas Data and Writ of
delve into factual issues in
Kalikasan, it may involve both
DOI PSALM 18:2
order to resolve allegations of
grave abuse of discretion as a
ground (Balba v. Peak
Development, Inc., et al, G.R.
No. 148288, August 12,
2005).
Directed against an
interlocutory order of a court
or where there is no appeal or
any other plain, speedy or
adequate remedy
Filed not later than 60 days
from notice of judgment,
order or resolution sought to
be assailed.
Unless a writ of preliminary
injunction or temporary
restraining order is issued, it
does not stay the challenged
proceeding.
The judge, court, quasijudicial agency, tribunal,
corporation, board, officer or
person shall be public
respondents who are
impleaded in the action
As a general rule, motion for
reconsideration or for new
trial is required. If a motion
for reconsideration or new
trial is filed, another 60 days
shall be given to the petitioner
(A.M. No. 02-03-SC).
Motion for reconsideration is
not required
Court exercises original
jurisdiction
Filed with the RTC, CA,
Sandiganbayan or COMELEC
questions of law and facts.
Involves the review of the
judgment, final orders or
resolutions of the CA,
Sandiganbayan, CTA, RTC or
other courts
Filed within 15 days from
notice of judgment, final order
or resolution appealed from
Stays the judgment or order
appealed from
The appellant and the appellee
are the original parties to the
action, and the lower court or
quasi-judicial agency is not
impleaded.
Motion for reconsideration is
not required
The court is in the exercise of
its appellate jurisdiction and
power of review.
Filed with the SC
PROHIBITION AND MANDAMUS DISTINGUISHED FROM
INJUNCTION
Definition
Prohibition
Prohibition is an
extraordinary
writ
commanding a
tribunal,
corporation,
board
or
person,
whether
exercising
judicial, quasijudicial
or
ministerial
functions,
to
desist
from
further
proceedings
when
said
proceedings are
without or in
excess of its
jurisdiction, or
with abuse of its
discretion,
there being no
appeal or any
Mandamus
Mandamus is an
extraordinary
writ
commanding a
tribunal,
corporation,
board
or
person, to do an
act required to
be done:
1. When he
unlawfully
neglects the
performance
of
an
act
which the law
specifically
enjoins as a
duty,
and
there is no
other
plain,
speedy
and
adequate
remedy in the
ordinary
Injunction
Main action
for
injunction
seeks
to
enjoin
the
defendant
from
the
commission
or
continuance
of a specific
act, or to
compel
a
particular
act
in
violation of
the rights of
the
applicant.
Preliminary
injunction is
a provisional
remedy to
preserve the
status quo
other
plain,
speedy
and
adequate
remedy in the
ordinary course
of law (Sec. 2,
Rule 65).
Nature
Purpose
Against
whom
Special
civil
action
To prevent an
encroachment,
excess,
usurpation or
assumption of
jurisdiction
course of law;
or
2. When one
unlawfully
excludes
another from
the use and
enjoyment of
a right or
office to which
the other is
entitled (Sec.
3, Rule 65).
Special
civil
action
To compel the
performance of
a
ministerial
and legal duty
May be directed
against entities
exercising
judicial
or
quasi-judicial,
or
ministerial
functions
Extends
to
discretionary
and ministerial
functions
May be directed
against judicial
and non-judicial
entities
How filed
Always
the
main action
Always
the
main action
Court
which has
jurisdiction
May be brought
in the Supreme
Court, Court of
Appeals,
Sandiganbayan,
or
in
the
Regional Trial
Court which has
jurisdiction over
the
territorial
area
where
respondent
resides.
May be brought
in the Supreme
Court, Court of
Appeals,
Sandiganbayan,
or
in
the
Regional Trial
Court which has
jurisdiction over
the
territorial
area
where
respondent
resides.
Scope
Extends only to
ministerial
functions
and prevent
future
wrongs
in
order
to
preserve and
protect
certain
interests or
rights during
the
pendency of
an action.
Ordinary civil
action
For
the
defendant
either
to
refrain from
an act or to
perform not
necessarily a
legal
and
ministerial
duty
Directed
against
a
party
Does
not
necessarily
extend
to
ministerial,
discretionary
or
legal
functions
May be the
main action
or just a
provisional
remedy
May
be
brought in
the Regional
Trial Court
which
has
jurisdiction
over
the
territorial
area where
respondent
resides.
Requisites of a valid certiorari
1. The petition is directed against a tribunal, board or officer
exercising judicial or quasi-judicial functions;
2. Such tribunal, board or officer has acted without or in excess of
jurisdiction or with grave abuse of discretion; and
3. There is neither appeal nor any plain, speedy and adequate
remedy in the ordinary course of law for the purpose of annulling
or modifying the proceeding. There must be capricious, arbitrary
and whimsical exercise of power for it to prosper (Sec. 1 Rule 65;
Aggabao v. Comelec, G.R. No. 163756, January 26, 2005; Riano,
2009).
DOI PSALM 18:2
Requisites of a valid prohibition
1. The impugned act must be that of a tribunal, corporation, board
or person;
2. The respondent must be exercising judicial, quasi- judicial
functions or ministerial functions;
3. Respondents acted without or in excess of its jurisdiction or with
grave abuse of discretion amounting to lack of jurisdiction; and
4. There must be no appeal or other plain, speedy and adequate
remedy (Sec. 2, Rule 65).
Requisites of a valid mandamus
1. There must be a clear legal right to the act demanded;
2. It must be the duty of the defendant to perform the act because
it is mandated by law;
3. The defendant unlawfully neglects the performance of the duty
enjoined by law;
4. The act to be performed is ministerial, not discretionary;
5. There is no appeal or other plain, speedy and adequate remedy in
the ordinary course of law (Sec. 3, Rule 65; Riano, 2012).
WHEN PETITION FOR CERTIORARI, PROHIBITION OR
MANDAMUS IS PROPER
Certiorari
It is a writ issued by a superior court to an inferior court, board or
officer exercising judicial or quasi-judicial functions whereby the
record of a particular case is ordered to be elevated for review and
correction in matters of law.
NOTE: It is commenced by a verified petition accompanied by a
certified true copy of the judgment, order or resolution subject
thereof, copies of all pleadings and documents relevant and pertinent
thereto, and a sworn certification of non-forum shopping (Sec. 1,
Rule 65).
In a petition for certiorari, the court will only resolve errors of
jurisdiction and not errors of judgment.
NOTE: An error of judgment is one which the court may commit in
the exercise of its jurisdiction. Such an error does not deprive the
court of jurisdiction and is correctible only by appeal; whereas an
error of jurisdiction is one which the court acts without or in excess
of its jurisdiction. Such an error renders an order or judgment void
or voidable and is correctible by the special civil action of certiorari
(Artistica Ceramica, Inc. v Ciudad Del Carmen Homeowner’s
Association, Inc., G.R. Nos. 167583-84, June 16, 2010) (1989, 2012
Bar).
Q: Acting on a petition for declaration of nullity of marriage filed by
Zenaida, the RTC then ruled that the Marriage between Estrellita and
Tamano were void ab initio. Aggrieved, Estrellita argued that RTC
should have waited for the decision of the SC regarding about the
petition for certiorari she filed, questioning the impropriety of the
lower court denying her motion to dismiss in another case which is
intertwined with the current action. Is RTC wrong when it did not
suspend its proceeding?
A: NO. An application for certiorari is an independent action which is
not part or a continuation of the trial which resulted in the rendition
of the judgment complained of. Rule 65 of the Rules of Court is
explicit in stating that "the petition shall not interrupt the course of
the principal case unless a temporary restraining order or a writ of
preliminary injunction has been issued against the public respondent
from further proceeding in the case" (Juliano-Llave v. Republic, G.R.
No. 169776, November, 30, 2011, Del Castillo, J.).
NOTE: The orders and rulings of a court on all controversies
pertaining to the case cannot be corrected by certiorari if the court
has jurisdiction over the subject matter and over the person (Sea
Lion Fishing Corp. v. People, G.R. No. 172678, March 23, 2011, Del
Castillo, J.).
Grounds for cetiorari
That a tribunal, board or officer exercising judicial or quasi-judicial
functions acted:
1. Without or in excess of jurisdiction; or
2. In grave abuse of discretion amounting to lack or excess of
jurisdiction.
NOTE:
1. Judicial function – Is where the tribunal or person has the power
to determine what the law is, what the rights of the parties are,
and undertakes to determine these questions and adjudicate
upon the rights of the parties.
2. Without jurisdiction – Is where the respondent does not have the
legal power to determine the case.
3. Excess of jurisdiction – Is where the respondent, being clothed
with the power to determine the case, oversteps his authority as
determined by law.
4. Grave abuse of discretion – The abuse must be grave as where
the power is exercised in an arbitrary or despotic manner by
reason of passion or personal hostility; or, it must be so patent
and gross as to amount 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 (Planters Products, Inc. v. Court of Appeals,
G.R. No. 10150, September 15, 1993).
5. Plain, speedy and adequate remedy – Is one which promptly
relieves the petitioner from the injurious effects of the judgment
and the acts of the lower court or agency (Regalado, 2010).
Question of fact raised in an action for certiorari
GR: Only established or admitted facts can be considered
(Rubio v. Reyes, G.R. No. 24581, May 27, 1968).
XPN: When it is necessary to delve into factual issues in order to
resolve allegations of grave abuse of discretion as a ground for
the special civil action of certiorari and prohibition (Balba v. Peak
Development, Inc., et al., G.R. No. 148288, August 12, 2005;
Regalado, 2010).
NOTE: In original actions for certiorari under Rule 65, the finding of
facts of the CA is not conclusive or binding upon the SC unlike the
general rule in appeals by certiorari under Rule 45 (Medran v. CA,
G.R. No. L-1350, March 26, 1949).
Remedies of appeal and certiorari NOT exclusive
GR: Where the proper remedy is appeal, the action for certiorari will
not be entertained. Certiorari is not a remedy for errors of
judgment. Errors of judgment are correctible by appeal; errors
of jurisdiction are reviewable by certiorari.
XPNs: A petition for certiorari may be allowed despite the availability
of the remedy of appeal when:
1. Appeal does not constitute a speedy and adequate remedy;
2. Orders were issued either in excess of or without jurisdiction;
3. For certain special considerations as for public policy or public
welfare;
4. Order is a patent nullity;
5. Decision in the certiorari case will avoid future litigation; or
6. In criminal actions, the court rejects rebuttal evidence for the
prosecution as, in case of acquittal, there could be no remedy
(Regalado, 2010).
Q: Modes of certiorari:
1. As a mode of appeal from the RTC or the CA to the SC;
2. As a special civil action from the RTC or the CA to the SC;
3. As a mode of review of the decisions of the National Labor
Relations Commission and the Constitutional Commissions. (2006
Bar)
A:
1. A petition for review on certiorari under Rule 45 of the Rules of
Court is a mode of appeal on pure questions of law as a general
rule from a judgment or final order or resolution of the CA or the
RTC to the SC.
DOI PSALM 18:2
2. A special civil action for certiorari under Rule 65 of the Rules of
Court is an original action from the RTC or the CA to the SC
against any tribunal, board or officer exercising judicial or quasijudicial functions raising the issue of lack or excess of jurisdiction
or grave abuse of discretion amounting to lack or excess of
jurisdiction, there being no appeal or any plain, speedy and
adequate remedy in the ordinary course of law.
3. The mode of review of the decision of the NLRC is via a special
civil action for certiorari under Rule 65, but pursuant to the
hierarchy of the courts enunciated in the case of St. Martin’s
Funeral Homes v. NLRC (G.R. No. 130866, September 16, 1998),
the same should be filed in the CA. The mode of review of the
decision of the COMELEC and the Commission on Audit, as
provided under Rule 64 of the Rules of Court, is a special civil
action for certiorari under Rule 65. Decisions of the Civil Service
Commission, however, are reviewable by petition for review filed
with the CA under Rule 43 of the Rules of Court.
Q: Jericho was declared in default in the RTC for his failure to file an
answer to a complaint for a sum of money. Judgment by default was
rendered against Jericho. Jericho filed a verified motion to lift the
order of default and to set aside the judgment. In his motion, Jericho
alleged that, immediately upon receipt of the summons, he saw the
plaintiff and confronted him with his receipt evidencing his payment
and that the plaintiff assured him that he would instruct his lawyer
to withdraw the complaint. Jericho's motion was denied because it
was not accompanied by an affidavit of merit. Jericho filed a special
civil action for certiorari under Rule 65 challenging the denial order.
1. Is certiorari under Rule 65 the proper remedy? Why?
2. Did the trial court abuse its discretion or act without or in
excess of its jurisdiction in denying Jericho's motion to lift the
order of default and to set aside the default judgment? Why?
(2002 Bar)
A:
1. NO. Under ordinary circumstances, the proper remedy of a party
wrongly declared in default is either to appeal from the judgment
by default or to file a petition for relief from judgment (Jao Inc.
v. CA, G.R. No. 93233, Dec. 19, 1995). A special civil action for
certiorari is available only when no appeal or any plain, speedy,
and adequate remedy in the ordinary course of law is available.
2. YES. The trial court gravely abused its discretion or acted without
or in excess of jurisdiction in denying the defendant’s motion
because it was not accompanied by a separate affidavit of merit.
In his verified motion to lift the order of default and to set aside
the judgment, the defendant alleged that immediately upon
receipt of the summons, he saw the plaintiff and confronted him
with his receipt showing payment and that the plaintiff assured
him that he would instruct his lawyer to withdraw the complaint.
Since the good defense of the defendant was already
incorporated in the verified motion, there was no need for a
separate affidavit of merit (Mago v. CA, G.R. No. 115624,
February 25, 1999).
Petition for review on certiorari (appeal by certiorari) and
petition for certiorari are mutually exclusive
A petition for review on certiorari under Rule 45 and a petition for
certiorari under Rule 65 are mutually exclusive remedies. Certiorari
cannot co-exist with an appeal or any other adequate remedy
(Portillo v. Rudolf Lietz, Inc., G.R. No. 196539, October 10, 2012).
Q: Jovina filed a Complaint for Nullity of Deed of Absolute Sale on
the ground that her signature therein is forged. The complaint was
favorably decided by the lower court, however the same was
reversed on appeal. Aggrieved, Jovina filed a petition for certiorari
under Rule 65 before the Supreme Court to assail the CA’s decision.
Is Jovina’s action proper?
A: NO. The proper remedy of a party aggrieved by a judgment, final
order, or resolution of the CA is to file with the Supreme Court a
verified petition for review on certiorari under Rule 45 within 15 days
from notice of the judgment, final order, or resolution appealed from.
Obviously, Jovina, in filing a petition for certiorari under Rule 65 of
the Rules of Court, availed of the wrong remedy. Unlike a petition for
review on certiorari under Rule 45, which is a continuation of the
appellate process over the original case, a special civil action for
certiorari under Rule 65 is an original or independent action based
on grave abuse of discretion amounting to lack or excess of
jurisdiction.It will lie only if there is no appeal or any other plain,
speedy, and adequate remedy in the ordinary course of law. As such,
it cannot be a substitute for a lost appeal, especially if such loss or
lapse was due to one’s own negligence or error in the choice of
remedies (Dabon v. CA, G.R. No. 174937, June 13, 2012, Del Castillo,
J.).
Certiorari is not a substitute for a lost appeal
The filing of a petition for certiorari as a substitute for a lost appeal
is erroneous. 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.
GR: Certiorari is not available when the period for appeal has lapsed.
XPNs:
1. When public welfare and the advancement of public policy
dictates;
2. When the broader interest of justice so requires;
3. When the writs issued are null and void; and
4. When the questioned order amounts to an oppressive exercise
of judicial authority.
Necessity for a motion for reconsideration
Except in some recognized situations, the filing of a motion for
reconsideration is a condition sine qua non to the filing of a petition
for certiorari. The reason for this is to allow the court an opportunity
to correct its imputed errors.
Q: AY Company retrenched 21 of its employees on the ground that
it was suffering business losses. The AY Company Union filed a Notice
of Strike with DOLE. The case was referred to the Secretary of Labor
after the parties were not able to settle their differences at the NCMB.
The Secretary of Labor ruled in favor of the AY Company Union. AY
Company moved for reconsideration. The MR was denied by
Secretary of Labor and ruled that voluntary arbitrators’ decisions,
orders, resolutions or awards shall not be the subject of motion for
reconsideration. AY Company then filed an Original Petition for
Certiorari and Prohibition with CA. CA dismissed the petition and held
that AY Company erred in filing a petition for certiorari under Rule 65
instead of Rule 43 which properly covers decisions of voluntary labor
arbitrators. Is CA correct?
A: NO. Certiorari under Rule 65 is the proper remedy and not under
Rule 43. It has long been settled that the remedy of an aggrieved
party in a decision or resolution of the Secretary of Labor is to timely
file a motion for reconsideration as a precondition for any further or
subsequent remedy, and then seasonably file a special civil action for
certiorari under Rule 65 of the 1997 Rules on Civil Procedure.
While a government office may prohibit altogether the filing of a
motion for reconsideration with respect to its decisions or orders, the
fact remains that certiorari inherently requires the filing of a motion
for reconsideration, which is the tangible representation of the
opportunity given to the office to correct itself. Regardless of
proscription against the filing of a motion for reconsideration, the
same may be filed on the assumption that rectification of the decision
or order must be obtained, and before a petition for certiorari may
be instituted (Philtranco Service Enterprises Inc. v. PWU-AGLO, G.R.
No. 180962, February 26, 2014, Del Castillo, J.).
Material dates in the petition
Under the material date rule, the following material dates must be
stated in the petition:
a. When notice of the judgment, final order or resolution subject
of the petition was received;
b. When a motion for new trial or reconsideration was filed, if
any; and
c. When notice of the denial of the moton for new trial or
reconsideration was received (Sec. 3, Rule 46).
The requirement is for the purpose of determining the timeliness of
the petition (Riano, 2016; Great Southern Maritime Services
Corporation v. Acuna, 452 SCRA 422).
The 60-day period starts to run from the date petitioner receives the
assailed judgment, final order or resolution, or the denial of the
motion for reconsideration or new trial timely filed, whether such
motion is required or not. To establish the timeliness of the petition
for certiorari, the date of receipt of the assailed judgment, final order
or resolution or the denial of the motion for reconsideration or new
trial must be stated in the petition; otherwise, the petition for
certiorari must be dismissed (Isabelita Vinuya, et al. v. Honorable
Executive Secretary Alberto Romulo, G.R. No. 162230, April 28, 2010,
Del Castillo, J.).
Offended Party in a Criminal Case
An offended party in a criminal case has sufficient personality to file
a special civil action for certiorari, in proper cases, even without the
imprimatur of the State. In so doing, the complaint should not bring
the action in the name of the People of the Philippines. The action
may be prosecuted in the name of the complainant (Perez v.
Hagonoy Rural Bank, Inc., G.R. No. 126210, March 9, 2000).
Prohibition
It is a remedy to prevent inferior courts, corporations, boards or
persons from usurping or exercising a jurisdiction or power which
they have not been vested by law.
NOTE: It is commenced by a verified petition accompanied by a
certified true copy of the judgment, order or resolution subject
thereof, copies of all pleadings and documents relevant and pertinent
thereto, and a sworn certification of non-forum shopping (Sec. 2,
Rule 65).
PETITION FOR PROHIBITION (SEC.2)
Prohibition is a provisional remedy to stop a tribunal, coporation,
board, officer, or person from doing a particular act.
Against whom filed (Respondents)
a.) Tribunal
b.) Corporation
c.) Board
d.) Officer
e.) Person
TN: whether exercising judicial or quasi-judicial, or ministerial
functions
Difference with certiorari
In certiorari, you cannot file it against a corporation or persons. Also,
the board, tribunal or officers must be exercising judicial/ quasijudicial functions, and does not include the performance of a
ministerial function.
Basis of petition (Grounds)
A.That the tribunal, corporation, board, officer, or person, acted
either:
a. Without or in excess of jurisdiction, or
b. With Grave abuse of discretion amounting to lack or in
excess of jurisdiction;
B. There is no appeal or any other plain, speedy and adequate
remedy in the ordinary course of law
TN: The basis of your petition is the same as that in certiorari.
DOI PSALM 18:2
Where to file
In the proper court, to wit: RTC, CA and SC
TN: This action falls within the concurrent jurisdiction of the 3 courts,
but the SC has repeatedly said that you do not go directly to them
because you must respect the hierarchy of courts.
Prayer for TRO or Preliminary Injuction
A prayer for TRO or Preliminary Injunction must be prayed along with
the petition to prevent the act during the pendency of the case.
Without this, the respondent will continue to perform the act you
seek to stop through the Petition for Prohibition.
Other Matters regarding Prohibition
1. Prohibition lies against judicial or ministerial functions,
but not to legislative and executive functions.
2. Exhaustion of administrative remedies must be availed of if
the petition is against an executive official.
3. Certiorari, Prohibition & Mandamus do not generally lie,
subject to some exceptions, against executive and
legislative branches or the members thereof acting in the
exercise of their official functions because of the principle of
political question.
TN: However, read Sec. 1, Art. VIII of the 1987 Constitution.
Under this provision, there seems to be no more political questions
because the SC can always inquire into the actions of any official,
whether they belong to the executive or legislative, for the purpose
of determining whether they committed grave abuse of discretion.
When issued
GR: Prohibition does not ordinarily lie to restrain an act
which is already fait accompli.
XPN: It will lie to prevent the creation of a new province by those in
the corridors of power who could avoid judicial intervention and
review by merely speedily and stealthily completing the commission
of such illegality (Tan v. COMELEC, G.R. No. 73155, July 11, 1986).
NOTE: Prohibition, and not mandamus, is the remedy where a
motion to dismiss is wrongfully denied (Enriquez v. Macadaeg, G.R.
No. L-2422, September 30, 1949).
Exhaustion of administrative remedy necessary in order for
an action for prohibition
In order for prohibition to lie against an executive officer, the
petitioner must first exhaust all administrative remedies, as
prohibition is available only when there are no other plain, speedy
and adequate remedies in the ordinary course of law (Cabedo, et al.
v. Dir. of Lands, et al., G.R. No. L-12777, May 23, 1961).
Prohibition vs. Injunction
Prohibition
Injunction
Directed
to
court
itself, Directed only to the party
commanding it to cease from litigants, without in any
the exercise of a jurisdiction to manner interfering with the
which it has no legal claim court (De Los Angeles v. CA,
(Esquivel v. Ombudsman, GR G.R. Nos. L-34317 & L- 34335,
No. 137237, September 17, September 30, 1974).
2002).
Mandamus
It is a writ issued in the name of the State, to an inferior tribunal,
corporation, board or person, commanding the performance of an
act which the law enjoins as a duty resulting from an office, trust or
station.
NOTE: It is commenced by a verified petition accompanied by a
sworn certification of non-forum shopping (Sec. 3, Rule 65).
DOI PSALM 18:2
PETITION FOR MANDAMUS (SEC.3)
Mandamus is the opposite of prohibition. Here, you ask the court to
direct a tribunal, corporation, board, officer or person to perform an
act because it is his duty to do so.
Against whom filed (Respondent)
a.) Tribunal
b.) Corporation
c.) Board
d.) Officer
e.) Person
Grounds for mandamus
1. When any tribunal, corporation, board, officer or person unlawfully
neglects the performance of an act which the law specifically
enjoins as a duty resulting from an office, trust or station; or
2. When any tribunal, corporation, board, officer or person unlawfully
excludes another from the use and enjoyment of a right or office
to which the other is entitled (Sec. 3, Rule 65).
What are the conditions aside from the grounds or the basis
of your petitions from your mandamus?
The conditions are very much the same as the conditions in your
certiorari.
Conditions
1. There is no other plain, speedy and adequate remedy in the
ordinary course of law.
2. The petition must be verified
3. The petition must contain a certificate of non-forum shopping.
4. Mandamus will lie to compel performance of a ministerial
duty NOT a discretionary duty.
Dean Monteclar: You cannot force an official to perform its
discretionary duty in a certain manner. You can force an official to
perform a discretionary duty but not to perform it in one way or the
other. But if he refuse to perform his discretionary duty and it
prejudice your right, you can always compel him to perform a
discretionary duty but not on how to exercise the discretion,
 The order shall command the respondent to do the act required to
be done to protect the right of petitioner, and to pay the damages
sustained by the petitioner by reason of the wrongful acts of
respondent.
 In a money judgment against the municipality where its officials
unjustifiably refuse to pay the judgment, the remedy of the
claimant is to sue the officials for MANDAMUS.
Why? Because the sheriff cannot implement the writ of execution
against the government. This is because the sheriff cannot levy or
attach public funds. But it is a ministerial duty of a public official to
obey a final judgment thus mandamus will lie. Otherwise the
complainant will be stuck with an empty judgment. So what is the
remedy? Mandamus.
Municipality of Makati vs CA, et.al. GR Nos. 89889-99,
October 1, 1990
This is because the Sheriff cannot attach or levy on execution the
public funds. It is ministerial duty of the public officials to obey a final
judgment, thus, mandamus will lie, otherwise, the claimant will be
stuck with an empty judgment

Mandamus does not lie to compel the performance of a
contractual duty.
If you enter into a contract and the other party refuses to obey his
part of the contract, the remedy is not mandamus. You can file an
ordinary civil action for specific performance. Mandamus will
only lie against tribunal or an officer or a corporation or a body or a
person.
 A petition for mandamus is premature if there are administrative

remedies available to the petitioner except when the case
involves only legal question.
Court has the power to award damages in a Mandamus suit.
Discretionary acts not compellable by mandamus
It is settled that mandamus is employed to compel the performance,
when refused, of a ministerial duty, but not to compel the
performance of a discretionary duty.
However, even when the act sought to be performed involves the
exercise of discretion, the respondent may be directed to act by
mandamus, but this is not to direct the exercise of judgment in a
particular manner.
NOTE: Generally, mandamus will not lie to enforce purely private
contract rights, and will not lie against an individual unless some
obligation in the nature of a public or quasi-public duty is imposed.
To preserve its prerogative character, mandamus is not used for the
redress of private wrongs, but only in matters relating to the public
(Uy Kiao Eng v. Nixon Lee, G.R. No. 176831, January 15, 2010).
Q: Albert was appointed Election Registrar of the Municipality of
Sevilla supposedly to replace the respondent Election Registrar
Richard who was transferred to another municipality without his
consent and who refused to accept his aforesaid transfer, as in fact
he continued to occupy his aforesaid position and exercise his
functions thereto. Albert then filed a petition for mandamus against
Richard but the trial court dismissed Albert's petition contending that
quo warranto is the proper remedy. Is the court correct in its ruling?
Why? (2001 Bar)
A: YES. Mandamus will not lie. This remedy applies only where
petitioner’s right is founded clearly in law, not when it is doubtful.
Richard was transferred without his consent. It is tantamount to
removal without cause and is contrary to fundamental guarantee on
non-removal except for cause. Considering that Richard continued to
occupy the position and exercise his functions therein, the proper
remedy is quo warranto and not mandamus.
Exhaustion of administrative remedies
GR: Mandamus will not issue when administrative remedies are still
available.
XPNs:
1. If the party is in estoppel (Vda. de Tan v. Veterans Backpay
Commission, G.R. No. L-12944, March 30, 1959); or
2. Only questions of law are raised (Madrigal v. Lecaroz, G.R. No.
L-46218, October 23, 1990).
Discretionary duty
GR: Mandamus is only applicable to a ministerial duty. However,
mandamus can be used to the extent of requiring the performance
of a discretionary duty to act but not to require performance of such
duty in a particular manner.
XPNs:
1. There has been gross abuse of discretion;
2. Manifest injustice; or
3. Palpable excess of authority (Kant Wong v. PCGG, G.R. No.
79484, December 7, 1987)
Prayer in a petition for mandamus
a. That judgment be rendered commanding the respondent to
do the act required to be done to protect the rights of the
petitioner; and
b. That the respondent pay the damages sustained by the
petitioner by reason of the wrongful acts of the respondent
(Sec. 3, Rule 65; Riano, 2016).
Q: Roldan was charged with illegal possession of shabu before the
RTC. Although bail was allowable under his indictment, he could not
afford to post bail, and so he remained in detention at the City Jail.
For various reasons, the arraignment of Roldan was postponed 19
DOI PSALM 18:2
times over a period of 2 years. Twice during that period, Roldan’s
counsel filed motions to dismiss, invoking the right of the accused to
a speedy trial. Both motions were denied by the RTC. Can Roldan file
a petition for mandamus? Reason briefly. (2007 Bar)
A: YES. Roldan can file a petition for mandamus, invoking the right
to a speedy trial. Mandamus is a proper recourse for citizens who
seek to enforce a public right and to compel the performance of a
public duty, most especially when the public right involved is
mandated by the Constitution. Besides, it has long been established
in this jurisdiction that the writ of mandamus is available to the
accused to compel a dismissal of the case. Here, the arraignment of
Roldan was postponed 19 times over a period of 2 years. Hence, the
petition for mandamus is proper in this case (Symaco v. Aquino, G.R.
No. L-14535, January 30, 1960).
Awards of damages in Mandamus Proceedings
The CA, in resolving a petition for mandamus, is authorized to award
civil damages in the same petition (Vital-Gozon v. CA, G.R. No.
101428, August 3, 1992).
Q: Can a mayor be compelled by mandamus to issue a business
permit?
A: NO. A mayor cannot be compelled by mandamus to issue a
business permit since the exercise of the same is delegated police
power hence, discretionary in nature. Section 444(b)(3)(iv) of the
Local Government Code of 1991, is a manifestation of the delegated
police power of a municipal corporation. Necessarily, the exercise
thereof cannot be deemed ministerial. As to the question of whether
the power is validly exercised, the matter is within the province of a
writ of certiorari, but certainly, not of mandamus (Rimando v.
Naguilian Emission Testing Center, Inc., G.R. No. 198860, July 23,
2012).
Q: Fotokina filed with the RTC a petition for mandamus to compel
the COMELEC to implement a contract it had with the former
regarding the automation of the elections. The Office of the Solicitor
General (OSG), representing COMELEC Chairman Go, opposed the
petition on the ground that mandamus does not lie to enforce
contractual obligations. During the proceedings, the majority
Commissioners filed a manifestation that Chairman Go was not
authorized by the COMELEC En Banc to oppose the petition.
1. May the OSG represent Chairman Go before the RTC
notwithstanding that his position is contrary to that of the
majority?
2. Is a petition for mandamus an appropriate remedy to enforce
contractual obligations? (2006 Bar)
A:
1. YES. The OSG can represent Chairman Go before the RTC. The
OSG is an independent office. Its hands are not shackled to the
cause of its client agency. In the discharge of its tasks, the
primordial concern of the OSG is to see to it that the best interest
of the government is upheld.
2. NO. The COMELEC cannot be compelled by a writ of mandamus
to discharge a duty that involves the exercise of judgment and
discretion, especially where disbursement of public funds is
concerned (COMELEC v. Quijano-Padilla, G.R. No. 151992,
September 18, 2002).
Mandamus vs. Injunction
Mandamus
Remedial; To perform positive
legal duty. It is a special civil
action
To set in motion and to
compel
action
(active);
Directed against a tribunal,
corporation board, or officer
Injunction
Preventive; To prevent an act to
maintain status quo between
parties. It is an ordinary civil
action
To restrain motion or to enforce
inaction (conservative); directed
against a litigant
Motion to dismiss – Rules 16
and 17
Additional ground for MTD –
Sec. 6, Rule 58
Remedy of Public respondent if no temporary restraining
order or writ of preliminary injunction was issued by the
court hearing the petition for certiorari, prohibition or
mandamus
The public respondent shall proceed with the principal case within 10
days from the filing of a petition for certiorari with a higher court or
tribunal, absent a temporary restraining order or a preliminary
injunction, or upon its expiration. Failure of the public respondent to
proceed with the principal case may be a ground for an administrative
charge (Sec. 7, Rule 65, as amended by A.M. No. 07-7-12-SC).
INJUNCTIVE RELIEF
When proper
The court in which the petition is filed may issue orders expediting
the proceedings, and it may also grant a TRO or a writ of preliminary
injunction for the preservation of the rights of the parties pending
such proceedings (Sec. 7, Rule 65). The public respondent shall
proceed with the principal case within 10 days from the filing of a
petition for certiorari with a higher court or tribunal, absent a TRO or
a Writ of Preliminary Injunction, or upon its expiration (AM 07-7-12SC, December 12, 2007).
Q: In an action for specific performance in the MTC, defendant Sarah
filed a motion to dismiss the action based on lack of jurisdiction over
the subject matter. Sarah’s motion to dismiss was denied. Sarah filed
a petition for certiorari with the RTC. Vince then filed with the MTC a
motion to declare Sarah in default. The motion was opposed by Sarah
on the ground that his petition for certiorari was still pending. Resolve
the motion to declare the defendant in default. (2003 Bar)
A: The court can declare Sarah in default because she did not obtain
a writ of preliminary injunction or a temporary restraining order from
the RTC prohibiting the judge from proceeding in the case during the
pendency of the petition for certiorari (Diaz v. Diaz, G.R. No. 135885,
April 28, 2000).
EXCEPTIONS
TO
FILING
OF
MOTION
FOR
RECONSIDERATION BEFORE FILING PETITION
Filing of Motion Reconsideration
GR: Petition for certiorari, mandamus and prohibition will not be
entertained unless the public respondent has been given first the
opportunity through a motion for reconsideration to correct the error
being imputed to him.
NOTE: It is intended to afford the public respondent an opportunity
to correct any actual or fancied error attributed to it by way of reexamination of the legal and factual aspects of the case (Chris
Garment Corporation v. Sto. Tomas, G.R. No. 167426, January 12,
2009).
XPNs: A prior motion for reconsideration is not necessary to
entertain a petition for certiorari where:
1. the order is a patent nullity, as where the court a quo has no
jurisdiction;
2. the questions raised in the certiorari proceedings have been
duly raised and passed upon by the lower court, or are the
same as those raised and passed upon in the lower court;
3. there is an urgent necessity for the resolution of the question,
and any further delay would prejudice the interests of the
Government or of the petitioner;
4. the subject matter of the action is perishable;
5. under the circumstances, a motion for reconsideration would
be useless;
6. the petitioner was deprived of due process and there is
extreme urgency for relief;
7. in a criminal case, relief from an order of arrest is urgent and
the granting of such relief by the trial court is improbable;
8. the proceedings in the lower court are a nullity for lack of due
process;
DOI PSALM 18:2
9. the proceedings were ex parte or in which the petitioner had
no opportunity to object; and
10. the issue raised is one purely of law or where public interest
is involved (Regalado, 2010).
RELIEFS PETITIONER IS ENTITLED TO
1. Annulment;
2. Modification of the judgment, order, or resolution or
proceeding subject of the petition;
3. It may also include such other Incidental reliefs as law and
justice may require (Sec. 1, Rule 65);
4. The court may also award damages in its judgment and the
execution of the award for damages or costs shall follow the
procedure in Sec. 1 of Rule 39 (Sec. 9, Rule 65).
ACTIONS/OMISSIONS OF MTC/RTC IN ELECTION CASES
In election cases involving an act or an omission of a municipal or a
regional trial court, the petition shall be filed exclusively with the
Commission on Elections, in aid of its appellate jurisdiction (Sec.4,
Rule 65, as amended by AM No. 07-7-12-SC, December 12, 2007).
WHEN AND WHERE TO FILE PETITION
Where to file?
1. Supreme Court- Subject to the doctrine of hierarchy of courts
and only when compelling reasons exist for not filing the same
with the lower courts.
2. Court of Appeals only- If the petition involves an act or an
omission of a quasi-judicial agency, unless otherwise provided by
law or rules.
3. Court of Appeals and Sandiganbayan- Whether or not in aid of
appellate jurisdiction.
4. Regional Trial Court- If the petition relates to an act or an
omission of an MTC, corporation, board, officer or person.
5. COMELEC- In election cases involving an act or an omission of
an MTC or RTC.
NOTE: If the petition relates to an act or an omission of a municipal
trial court or of a corporation, a board, an officer or a person, it shall
be filed with the RTC exercising jurisdiction over the territorial area
as defined by the Supreme Court. It may also be filed with the Court
of Appeals or with the Sandiganbayan, whether or not the same is in
aid of the courts appellate jurisdiction. If the petition involves an act
or an omission of a quasi- judicial agency, unless otherwise provided
by law or these rules, the petition shall be filed with and be
cognizable only by the Court of Appeals (Sec. 4, Rule 65 as amended
by A.M. No. 07-7-12-SC).
By virtue of the amendment introduced by A.M. No. 07-7- 12-SC to
Sec. 4, Rule 65, a petition for certiorari, prohibition or mandamus
may not be filed directly with the SC anymore.
When to file?
The petition shall be filed not later than 60 days from notice of the
judgment, order or resolution. In case a motion for reconsideration
or new trial is timely filed, whether such motion is required or not,
the petition shall be filed not later than 60 days counted from the
notice of the denial of the motion (Sec. 4, Rule 65, as amended by
A.M. No. 07-7-12-SC).
As a rule, a petition for certiorari must be filed strictly within 60 days
from notice of judgment or from order denying a motion for
reconsideration. This is in accordance with the amendment
introduced by A.M. No. 07-7-12-C where no provision for the filing of
a motion for extension to file a petition for certiorari exists, unlike in
the original section 4 of Rule 65 which allowed the filing of such
motion but only for compelling reasons and in no case exceeding 15
days (The Namaris Philippines, Inc. v. Court of Appeals, G.R. No.
191215, February 3, 2014, Del Castillo, J.).
NOTE: Under Sec. 4, Rule 65 of the Rules of Court and as applied in
Laguna Metts Corporation, the general rule is that a petition for
certiorari must be filed within 60 days from notice of the judgment,
order or resolution sought to be assailed. Under exceptional
circumstances, however, and subject to the sound discretion of the
court, said period may be extended pursuant to Domdom, Labao,
abd Mid-Islands Power cases. The exceptions are:
1. To serve substantial justice;
2. Safeguard strong public interest (Republic v. St. Vincent de
Paul Colleges, Inc., G.R. No. 192908, August 22, 2012)
PROVISIONS COMMON TO CERTIORARI, PROHIBITION AND
MANDAMUS
The common provisions are: when to file an action and where to file
the action.
Effects of filing a petition for certiorari, prohibition or
mandamus to the principal case
It does not:
1. Interrupt the course of the principal action;
2. Affect the running of the reglementary periods involved in the
proceedings (Fuentes v. Sandiganbayan, G.R. No. 164664, July
20, 2006);
3. Stay the execution of judgment, unless a TRO or writ of
preliminary injunction has been issued.
Where to file:
 RTC or with the Court of Appeals or Sandiganbayan, whether or
not the same is in aid of its appellate jurisdiction.
Acquisition of jurisdiction over the person of the respondent
in original actions for certiorari, prohibition and mandamus
1. If the action is filed with the RTC – Follow the rules on ordinary
civil actions. Jurisdiction is acquired by the service of summons
to the respondent or by his voluntary appearance in court.
2. If the action is filed with the CA or the SC – The court acquires
jurisdiction over the respondents with the service on them of
its orders indicating its initial action on the petition or by
voluntary submission to such jurisdiction.
EFFECTS OF FILING OF AN UNMERITORIOUS PETITION
Effect of a Petition for Mandamus which is patently without
merit, prosecuted manifestly for delay, or raises questions
which are too unsubstantial to require consideration
The Court may dismiss the petition. In such event, the court may
award in favor of the respondent treble costs solidarily against
the petitioner and counsel, in addition to subjecting counsel to
administrative sanctions under Rules 139 and 139-B.
The Court may impose motu proprio, based on res ipsa loquitur,
other disciplinary sanctions or measures on erring lawyers for
patently dilatory and unmeritorious petitions for certiorari (Sec. 8,
Rule 65, as amended by A.M. No. 07-7-12-SC).
Q: James mortgaged his property to Peter. James failed to pay his
obligation and Peter filed an action for foreclosure of mortgage. After
trial, the court issued an order granting Peter's prayer for foreclosure
of mortgage and ordering James to pay Peter the full amount of the
mortgage debt not later than 120 days from date of receipt of the
order. James received the order on August 10, 1999. No other
proceeding took place thereafter. On December 20, 1999, James
tendered the full amount adjudged by the court to Peter but the latter
refused to accept it on the ground that the amount was tendered
beyond the 120-day period granted by the court. James filed a
motion in the same court praying that Peter be directed to receive
the amount tendered by him on the ground that the order does not
comply with the provisions of Sec. 2, Rule 68 of the Rules of Court
which gives James 120 days from entry of judgment, and not from
date of receipt of the order. The court denied his motion on the
ground that the order had already become final and can no longer
be amended to conform with Sec. 2, Rule 68. Aggrieved, James files
a petition for certiorari against the court and Peter. Will the petition
for certiorari prosper? Explain. (2000 Bar)
A: YES. The court erred in issuing the order. The court should have
rendered a judgment which is appealable. Since no appeal was taken,
the judgment became final on August 25, 1999 which is the date of
the entry of judgment. Hence, James had up to December 24, 1999
within which to pay the amount due. The court gravely abused its
discretion amounting to lack or excess of jurisdiction in denying
James’ motion praying that Peter be directed to receive the amount
tendered.
DOI PSALM 18:2
When to file:
 60 days from notice of Judgment or Order denying the motion
for reconsideration.
In the old rules, CA can only entertain in aid of its appellate
jurisdiction. You will notice SC is not included. SC is included only to
question the decision of the CA
 In election cases involving an act or omission of the MTC or
RTC, the petition shall be filed exclusively with COMELEC,
in aid its appellate jurisdiction.
 These petitions should not be filed directly with the
Supreme Court even though they fall under the concurrent
jurisdiction of the SC, CA and RTC. We have to observe the
hierarchy of courts.
Respondents
Who can be respondents?
 If the act or omissions refers to that of a Judge, court, quasijudicial agency etc., the petitioner shall join as private
respondent the person interested in the proceeding and it is his
duty to appear and defend the decision.
 The judge will be the public respondent but he need not answer
or appear in the case as he is only a nominal party.
Dean Monteclar: There are two kinds of respondents in petitions
certiorari, prohibition and mandamus. We have the private
respondent, public respondent. If you question the decision of let’s
say the RTC judge by way of certiorari before the CA. Who will be
the respondent? The respondent here will be the other party who
benefited the decision of the judge. You are the petitioner because
you are the one who is prejudiced. The other party is the PRIVATE
respondent. And the judge is the PUBLIC respondent. But the one
who will argue is only the private respondent.
Judge as Nominal Party
The judge as public respondent is only a nominal party and he does
not have to answer the petition of certiorari not unless he is required
to answer by the CA.
Dean Monteclar: So it’s really wrong for an RTC judge to also answer.
Although it is the decision of the RTC judge that is attacked by the
petitioner the judge should not take it personally. Under the rules,
the judge no longer needs to answer. It is only the private
respondent that will answer. He will be the one to argue that the RTC
judge did not commit grave abuse of discretion in his order.
What will the court do?
Order to comment
If sufficient in form and substance, the trial court may require
respondent to comment within 10 days from receipt of the
copy of order. Such order shall be served on the respondents in such
manner as the court may direct together with a copy of the petition
and any annexes thereto.
In petitions for certiorari before the SC and CA reply may be required.
Petition for certiorari, prohibition or mandamus questioning a
decision of an inferior court, you bring it up to RTC.
The RTC will have to examine if the petition is sufficient in form and
substance. It it is then it will require the respondent to comment
within 10 days from receipt of the copy of order. Unless a TRO or a
preliminary judgment is issued, the court may continue the
proceeding within ten days from filing of the petition.
Continuance of main case
Unless a TRO or preliminary injunction is issued, the court may
continue with the proceeding within 10 days from filing of the
petition.
Dean Monteclar: As you know already, in petition for certiorari and
the same is true with mandamus and prohibition, the filing of the
petition does not stop the court of origin, the respondent
judge, from continuing with the proceedings before it.
The judge will give you ten days to secure the TRO or preliminary
judgment from the time you file your petition for certiorari.
Example: you question the ruling of the RTC court, let us say an
interlocutory order, you feel that it is very unfair, constitute a grave
abuse of discretion so you file a petition for certiorari in the CA. From
the time you file petition for certiorari in the CA, the RTC will suspend
the proceedings for only ten days. If you are not able to obtain a
TRO from the CA within the ten days of filing, the RTC may continue
hearing the case. Without it, the case will go on.
Proceedings after comment
The court may hear the case or require the parties to file memoranda.
Action of the court
It may grant the petition or deny it if it finds it to be patently without
merit, prosecuted manifestly for delay, issues raised therein are too
unsubstantial to warrant consideration. If un-meritorious, the court
may award in favor of the respondent treble costs against petitioner
and counsel.
This is one of the innovations introduced in the new rules. There is
now a penalty for bringing in unmeritorious petitions for certiorari
before the higher court. It is a punishment.
Court may impose motu proprio other disciplinary sanction on erring
lawyers for patently dilatory and unmeritorious petitions for
certiorari.
Service and enforcement of order or judgment
Judgment of the court shall be served upon the court, quasi-judicial
agency, tribunal, corporation, board or officer in such manner as the
court may direct. Disobedience thereto is punishable as contempt.
Execution may issue for any damages or costs awarded.
Dean Monteclar: In the RTC, if you file a petition for certiorari,
prohibition, mandamus, questioning the decision of the municipal
court. You do not have to furnish a petition to the respondent
because the RTC will have to first examine whether your
petition should be given due course or not.
But if the petition is filed in the CA or the SC, you must furnish
copy to the respondent or the other party because they will be
required to answer if the court finds the petition is sufficient in form
and substance.
-an original action; not a mode of appeal. Since original action,
decision rendered on such action is appealable. Generally, requires
MR prior to filing of petition. Non-filing of MR is fatal.
-even a stranger can file
Cuizon v. Desierto – annulment under Rule 47; ground extrinsic fraud
Ombudsman -------------- SC; mode of review Rule 65
(finding of
probable cause)
OCP ----------------------- Sec of Justice CA (R65)
If grounds not death, new and material issues, prescription; don’t go
to Office of President
If ADMINISTRATIVE aspect:
Ombudsman ------------ CA appeal by Rule 43
Petition for Review on Certiorari Rule 45 to ang mode of appeal;
appeal by certiorari
From NLRC, mode of review to Court of Appeals under Rule 65 and
then Supreme Court under Rule 45
What is important is there is allegation of proof that there is grave
abuse of discretion; how to prove? That there is despotic, capricious
and whimsical manner in exercise of authority; the phrase is not a
fatal defect because it is mere conclusion of law
What is the governing procedure of the CPMQ? Rule 46
Certiorari + Habeas Corpus – pwede. How? Function?
-Certiorari reaches the record to determine if there is grave abuse of
discretion; Habeas Corpus to reach the body
-Habeas
Corpus
is the
fastest
relief
against
illegal
detention/confinement
Nature of Certiorari: limited in scope and narrow in character. Why?
Not function of the court to examine evidence again; only to find out
if there is error of jurisdiction; it is a high prerogative writ
Appeals in civil cases- there must be assignment of errors
Appeals in criminal cases- effect of an appeal is to throw away the
entire case for review
Expanded concept of Judicial Power
-Villanueva v. JBS
-Araullo v. Aquino III
lack of jurisdiction- absolute lack of authority of the court to proceed
with the case
excess of jurisdiction- transcends its power even if no statutory
authority
Interlocutory Order (ex. Motion to Dismiss) – can be questioned in a
petition for Certiorari under Rule 65
From discussions:
Certiorari- to correct an act; discretionary
Prohibition- to prevent/ discontinue an act or undoing of an act;
discretionary + ministerial
Mandamus- to compel an act; ministerial acts; include writ of
continuing mandamus
Ocampo v. Enriquez- can combine 3 actions
Certiorari
-common law origin
-corrects error of jurisdiction
Certiorari Jurisdiction
RTC – LC; MTC
CA – in aid of appellate jurisdiction
Sandiganbayan – original & appellate court
in Certiorari, in aid of appellate jurisdiction
GR: do not proceed directly with Supreme Court because of doctrine
of hierarchy of courts
XPN: (direct resort to SC)
1. transcendental importance
2. public good matters
GR: Certiorari not a substitute for a lost appeal
-because they are mutually exclusive
DOI PSALM 18:2
-Rule 41 Sec. 1 will be asked in Finals
XPN: When available despite the loss of appeal
1. appeal is lost w/o appellant’s negligence
2. public welfare and advancement of public policy dictate
3. broader interests of justice so require
4. writs issued are null and void
5. questioned order amounts to an oppressive exercise of
judicial authority
6. when there is grave abuse of discretion
7. meritorious cases
8. lack of due process
9. in cases of extreme urgency
What is the nature of dismissal during pendency of appeal?
-no vested right affected
-there was only a mere preventive suspension
Administrative -- Ombudsman -- Criminal; direct recourse under
Rule 65 to SC (Cuizon v. Desierto) ex. dismissal
Rule 43 to CA
-only conducting preliminary investigation for probable cause
Prohibition:
1. TCBOP
2. Grounds: acted with or without grave abuse of discretion
3. Always a main action
Aquino v. Municipality of Malay
-dli declaratory relief because there is already breach; EO 10 was
fully implemented; naa na gani demolition
Injunction:
1. Against a party
2. Does not involve jurisdiction of court
3. May be a main action/ provisional remedy
EXPANDED CONCEPT OF JUDICIAL POWER
-broader in scope
-SC: “undo an act”
-if it pertains to the 2nd aspect of Judicial Power in Sec. 1, Art. VIII of
Constitution; even if not pertaining to Judicial, Quasi-Judicial or
Ministerial as long as anchored on Art. VIII Sec. 1 it is in the latter
and not Sec. 1 Rule 65
Bruca et al. v. Enrile et al
Can you prohibit criminal prosecution?
GR: No
XPN: Jurispuridential
Araullo v. Aquino III
-purely executive in nature unta
-expanded concept of judicial power
QUESTION: Distinguish the expanded concept of Judicial Power in
Rule 65 and Sec. 1 of Art. VIII of Constitution?
-Villanueva v. Judicial & Bar Council- “set right, undo & restrain any
act”
Relaxation of Rules
-XPNs to wrong choice of remedy is fatal and should be dismissed:
1. PFC under Rule 65 – 60 days; was filed within reglementary period
for filing PFRC under Rule 45 15 days
2. Petition should allege error of judgment
3. There must be sufficient reason to justify relaxation of rules
Former Ombudsman Merceditas Gutierez v. House of Rep. Judiciary
Committee
Aurillo v. Rabi – can undo acts ang prohibition
PROHIBITION
-to desist or restrain for orderly administration of justice and prevent
strong arm of law from oppressive and vindictive manner
-preventive remedy
-appealable
-should include prayer for TRO or writ of preliminary injunction
because it will not arrest the course of the proceeding if not
prayed; mo-proceed ang case if not prayed for
PNP CIDG v. Villafuerte – decision of CA reversing the order of
dismissal by Ombudsman is immediately executory; Ombudsman
notwithstanding pendency of appeal
What is Judicial Courtesy?
-even without TRO, due courtesy should apply
-lower court should suspend proceeding when certiorari file in a
higher court
Police Senior Inspector Belmonte v. Deputy Ombudsman Military
(2016)
-immediately executory ang decision sa Ombudsman so ni file sila
prohibition; no vested right affected; TCBOP
DOI PSALM 18:2
MANDAMUS
-to command
-to compel performance of duties that are purely ministerial in nature
-exhaustion of administrative remedies is important before maka
avail mandamus
CPM: when do you consider that jurisdiction over person of
respondent acquired?
- moment the court orders to file comment
-Is Motion for Reconsideration an adequate remedy?
-Yes
Hon. Philip Aguinaldo v. Pres. Benigno Aquino (2016)
XPNs: 60-day period relaxed
“uncontrolled” – discretionary (ex. Public prosecutor)
GR: cannot be controlled by mandamus ang prosecutor
XPN: if klaro na kayo
Case: Sharp Intl. Mktg. v. CA
-discretionary and ministerial acts
-while mandamus will not lie to control discretion the writ of
mandamus may be issued to exercise of discretion but not discretion
itself. However, writ of mandamus may be issued
Nature of Judgment in Mandamus- special judgment
-mandamus must be unhampered