APPELLATE REMEDIES
Justice Magdangal M. de Leon
I. Basic Laws on Appeal
a.
b.
c.
d.
e.
f.
Constitution – Art. VIII, Sec. 5; Art. IX, Sec. 7
Rules of Court
Rules 40-56 -- civil actions
Rule 122-125 -- criminal actions
Batas Pambansa Blg. 129 (Judiciary
Reorganization Act of 1980, effective Aug. 14,
1981)
PD 1606 (law creating Sandiganbayan),
amended by RA 7975 and RA 8249
Supreme Court circulars and decisions which
effect appellate procedure by refining,
amending, and redefining existing rules, or
delineating additional ones.
Court of Appeals internal rules relevant to
appeals
II. Purpose of Appeal
To review errors of judgment committed by a
court with jurisdiction over the subject matter
and the persons of the parties.
• Appeal – a resort to superior court for the
review of the decision of an inferior court or
administrative agency.
• Review – to re-examine judicially or
administratively, especially, examination of a
cause by an appellate court or administrative
body.
III. What Appeal Can Achieve
Appellate court may -◦ modify or reverse the judgment or final
order, or
◦ remand the case to the court of origin if it
finds that further proceedings are
necessary.
IV. Is Appeal a Matter of Right?
• Appeal not a natural right or part of due process.
• Mere statutory privilege to be exercised only in
the manner and in accordance with the
provisions of the law granting that right.
• Appeal as a matter of right – right to seek a
review by a superior court of judgment on the
merits rendered by a trial court.
• Judgments or final orders of trial courts which
can be appealed as a matter of right:
Judgments or final orders of the MTC, RTC
and Family Court in civil cases and special
proceedings (Sec. 1, Rule 41; Sec. 1, Rule
109).
Judgments of conviction rendered by a trial
court, provided accused not placed in double
jeopardy (Sec. 1, Rule 122).
• As a general rule, appeal from a decision
rendered by a court in the exercise of its
appellate jurisdiction is not a matter of right.
• Discretionary appeal – one which a
reviewing court may or may not allow.
Example: Sec. 6, Rule 45 – review not a
matter of right but of sound judicial
discretion; will be granted only when there
are special and important reasons
therefor.
Also, see Sec. 4, Rule 42 and Sec. 8. Rule
43.
V. Importance of Electing the
Proper or Correct Remedy
 Party litigant must adopt proper and correct
remedy against a judgment or final order.
 Policy now strictly enforced that wrong remedy
will be quickly rejected and dismissed (SC
Circular No. 2-00 dated March 19, 1990 based
on Murillo vs. Consul, Undk. No. 9748, Feb. 27,
1990).
 Election of proper remedy depends on whether
or not judgment or final order has become final
and unappealable.
A. Not Yet Final and Unappealable
1. Ordinary Appeal
♦
♦
♦
notice of appeal within period specified
upon errors or questions of fact and law
applies to judgments or final orders




of MTC to RTC (Rule 40)
of RTC to CA (Rule 41)
of RTC to SB (PD 1606, am. by RA 8249)
of RTC to CA (Rule 122 , as am. by
A.M. No. 00-5-03-SC, Oct. 15, 2004)
 of SB to SC (P.D. 1606, as am. by RA 8249)
 of CA to SC (Rule 124, as am. by
A.M. No. 00-5-03-SC, Oct. 15, 2004)
2. Petition for Review
♦ to CA
♦ from RTC - if judgment to be appealed
from is rendered in the exercise of its
appellate jurisdiction (Rule 42)
♦ from quasi-judicial agency (Rule 43)
3. Petition for Review on Certiorari
♦ to SC under Rule 45
♦ upon pure questions of law
♦ from RTC, CA, SB or CTA
B. Final and Unappealable
1. Petition for Certiorari or special civil action
under Rule 65
◦ ground: judgment rendered without or
in excess of jurisdiction or grave
abuse of discretion amounting to lack
of jurisdiction
2. Petition for Relief from Judgment under
Rule 38
◦ grounds: fraud, accident, mistake,
excusable negligence
3. Petition for Annulment of Judgment
under Rule 47
◦ grounds: extrinsic fraud or lack of
jurisdiction
VI. Dismissal of Improper Appeal
An appeal may be dismissed on the ground
that it is improper. –
 Appeal under Rule 41 taken from RTC
to CA raising only pure questions of law
(Sec. 2, Rule 50).
 Trial court without authority to dismiss
an appeal by notice of appeal on the
ground that issues involved only
questions of law (Kho vs. Camacho,
204 SCRA 150; PNB vs. Judge
Romillo, Jr., 139 SCRA 320).
 Appeal by certiorari from RTC to SC
raising questions of fact may be
referred by SC to CA for decision or
appropriate action (Sec. 6, Rule 56).
 Appeal from appellate judgment of RTC
taken by notice of appeal to CA – proper
mode is petition for review under Rule
42.
An erroneous appeal does not always result
in its dismissal.
◦ Interest of substantial justice (People vs.
Barrera, 262 SCRA 63).
◦ Lapse of “slight nature” and causes no
prejudice to any party (People vs. Omotoy,
267 SCRA 143).
VII. Orders Not Subject To Appeal
1. Order denying motion for new trial or
reconsideration.
(Deleted by A.M. No. 07-7-12-SC dated
December 4, 2007, which took effect on
December
27,
2007,
governing
amendments to Rules 41, 45, 58 and 65)
Effect: neither appeal nor certiorari is a
remedy. The remedy is appeal from the
judgment or final order (Sec. 9, Rule 37)
However, certiorari can be availed of if the
order
subject
of
the
motion
for
reconsideration is an interlocutory order.
2. Order denying petition for relief or similar
motion seeking relief from judgment.
3. Interlocutory order.
4. Order disallowing or denying an appeal.
5. Order denying motion to set aside
judgment by consent, confession or
compromise on the ground of fraud,
mistake or duress or any other ground
vitiating consent.
6. Order of execution.
7. Judgment or final order for or against
one or more of several parties or in
separate claims, counterclaims, cross
claims, and third party complaints, while
the main case is pending, unless the
court allows an appeal therefrom.
8. Order dismissing an action without
prejudice.
ORDINARY APPEAL –
Rules 40 and 41
Rule 40 – MTC to RTC
Rule 41 – RTC to CA
Similarities:
1. Same period to appeal – 15 days/30 days
2. How appeal taken - notice of appeal/notice of
appeal plus record on appeal; appellant has
only remaining period to file notice of appeal
after denial of motion for reconsideration or
new trial. When motion for reconsideration filed
on last day of 15-day period (BPA Data
Systems Corp. vs. CA, 254 SCRA 56).
N.B. “Not less than 5 days in any event” rule
applies only to filing of answer after denial of
motion to dismiss (Rule 16, Sec. 4); denial
of motion for bill of particulars or service of
BOP (Rule 12, Sec. 5); denial of motion to
dismiss in interpleader (Rule 62, Sec. 4);
and filing of petition for certiorari against
COA and COMELEC decisions (Rule 64,
Sec. 3).
•
Fresh period of 15 days from denial of
motion for reconsideration or new trial
(Neypes vs. CA, 469 SCRA 633 [2005]).
•
Being procedural in nature, Neypes is
deemed to be applicable to actions pending
and undetermined at the time of its effectivity
and is thus retroactive in that sense and to
that extent (First Aqua Sugar Traders vs.
BPI, G.R. No. 154034, February 5, 2007).
•
After denial of motion for reconsideration,
appellant, during the remaining period, may
file motion for new trial. Period of filing nonextendible (Fernandez vs. CA, 458 SCRA
454).
3. Same manner of perfection (Sec. 9, Rule 41).
4. Residual powers (Sec. 9, Rule 41) IAPOA
5. Power to dismiss appeal (Sec. 13, Rule 41).
a. late filing
b. non-payment of docket fees
• Payment of prescribed docket fees within the
prescribed period, both mandatory and
jurisdictional, noncompliance with which is fatal
to an appeal. Without such payment, the
appeal is not perfected (Cu-Unjieng vs. CA,
471 SCRA 594).
•
Non-payment of docket fees within prescribed
period -- ground for dismissal of an appeal;
rules relaxed only for the most persuasive and
weighty reasons (Far Corporation vs.
Magdaluyo, 443 SCRA 218 [2004]).
Difference in pleadings to be filed
Rule 40 – memoranda
Rule 41 – briefs
What to file in special cases (under
Rule 41) -- In appeals from decisions in
certiorari, prohibition, mandamus, quo
warranto
and
habeas
corpus

memorandum in lieu of brief (Sec. 10,
Rule 44).
Effect of Non-Appeal
General rule:
appellate court cannot
reverse or modify the trial court’s judgment
involving a party who did not appeal.
Exceptions:
1. solidarity in obligations (Citytrust Banking
Corp. vs. CA, 196 SCRA 553; Universal
Motors Corp. vs. CA, 205 SCRA 448).
2. interest of justice (Batingal vs. CA, 351
SCRA 60).
PETITION FOR REVIEW –
RULES 42 and 43
Rule 42 - petitions for review of decisions of
RTC in exercise of appellate jurisdiction
over cases decided by MTC.
Rule 42 covers:
▪ Special Agrarian Court decisions
(LBP vs. De Leon, 388 SCRA 537; LBP
vs. De Leon, 399 SCRA 376).
[ N.B. Decisions of RTC in exercise of its
appellate jurisdiction in tax collection
cases and criminal cases arising from
violations of NIRC, TCC and other laws
administered by BIR and BOC appealable
to CTA within 30 days from receipt of
decision under procedure analogous to
that provided under Rule 42 (RA 9282).]
Rule 43 - petition for review of decisions, final
orders, resolutions of quasi-judicial agencies
such as CSC, SEC, OP, LRA, etc.
Rule 43 covers:
• DARAB decisions (Valencia vs. CA, 401
SCRA 666).
• Voluntary arbitrators (Sevilla Trading Co.
vs. A.V.A. Tomas E. Semana, et al., 428
SCRA 239).
• Ombudsman resolutions or orders in
administrative disciplinary cases (Cortes vs.
Office of the Ombudsman (Visayas), G.R.
No. 187896, June 10, 2013; Fabian vs.
Desierto, 295 SCRA 470).
Ombudsman resolutions or orders in
criminal cases – petition for certiorari to SC
under Rule 65 (Sec. 14, 2nd par., RA
6770; De Chavez vs. Office of
the
Ombudsman, G.R. No. 168830, February
6, 2007; Lanting vs. Ombudsman, 458
SCRA 93; Kuizon vs. Desierto, 354 SCRA
158; Garcia Rueda vs. Pascasio, 278
SCRA 769 ).
The Supreme Court may exercise its
certiorari power when the government
prosecutor unreasonably refuses to file an
information even if clearly warranted by the
evidence (Villanueva vs. Ople, 475 SCRA
539).
• Decisions of the Board of Commissioners of
the Bureau of Immigration (Agus Dwikarna vs.
Domingo, 433 SCRA 748).
• Decisions and final orders of commercial
courts under RA 8799 (A.M. No. 04-9-07-SC,
Oct. 15, 2004).
• CIAC decisions (Metro Construction, Inc. vs.
Chatham Properties, Inc., 365 SCRA 697
[2001]; Megaworld Globus Asia, Inc. vs. DSM
Construction and Development Corp., 424
SCRA 179 [2004]).
[ N.B. Decisions or rulings of Central
Board of Assessment Appeals in
exercise of its appellate jurisdiction
appealable to CTA under procedure
analogous to that in Rule 43 (RA
9282).]
Excluded from Rule 43:
Judgments and final orders issued under the
Labor Code (Sec. 2). – petition for
certiorari to CA under Rule 65
NLRC decisions (Prince Transport, Inc. vs.
Garcia, G.R. No. 167291, January 12, 2011;
St. Martin Funeral Home vs. NLRC, 295
SCRA 494)
 Decisions of Secretary of Labor (Philtranco
Service Enterprises vs. Philtranco Workers
Union, G.R. No. 180962, February 26, 2014;
National Federation of Labor vs. Laguesma,
304 SCRA 407) and Director of BLR (Abbot
Laboratories Phils. vs. Abbot Laboratories
 CTA decisions – petition for review
under Rule 45 (RA 9282).
 Resolutions of the DOJ Secretary in
petitions for review of prosecutors’
resolutions - The proper remedy is
petition for certiorari to CA under Rule 65
(Elma vs. Jacobi, G.R. No. 155996, June
27, 2012; Angeles vs. Gaite, G.R. No.
176596, March 23, 2011; Barangay
Dasmariñas vs. Creative Play Corner
School, G.R. No. 169942, January 24,
2011; Verzano vs. Paro, G.R. No.
171643, August 8, 2010;
Chan vs. Secretary of Justice, G.R.
No. 147065, August 8, 2010;
Alcaraz vs. Gonzales, G.R. No.
164715, March 14, 2008; Public
Utilities Dept., Olongapo City vs.
Guingona, Jr., 365 SCRA 467;
Bautista vs. CA, 360 SCRA 618;
Santos vs.Go, 473 SCRA 350
[2005]
N.B. Under DOJ Memorandum Circular No.
58 dated June 30, 1993, the resolution
of the DOJ Secretary is appealable
administratively to the Office of the
President if the offense charged is
punishable by reclusion perpetua to
death. From the OP, the aggrieved
party may file an appeal with the Court
of Appeals under Rule 43 . An appeal
or petition not clearly falling within the
jurisdiction of the Office of the
President, as set forth above, shall be
dismissed outright.

Where petition for certiorari was
erroneously filed with the SC instead of
CA, the petition was allowed in the
interest
of
substantial
justice,
considering the gravity of the offense
charged [the penalty for Homicide
under RA 7610, the Child Abuse Act, is
reclusion perpetua when the victim is
under 12 years of age] and the need to
expedite the disposition of the case (De
Ocampo vs. Secretary of Justice, 480
SCRA 71).

The CA is empowered under its
certiorari jurisdiction to annul and
declare void the questioned resolutions
of the Secretary of Justice, but only on
two grounds – lack of jurisdiction and
grave abuse of discretion amounting to
lack of jurisdiction. The power to
reverse and set aside partakes of an
appellate jurisdiction which the CA does
not have over judgments of the
Secretary of Justice exercising quasijudicial functions (Buan vs. Matugas,
G.R. No. 161179, August 7, 2007).
Under Rules 42 and 43 –
•
How appeal taken and time for filing –
a. verified petition for review and payment
of docket and other lawful fees and
deposit for costs
b. within 15 days from notice of decision
or order denying motion for new trial or
reconsideration, extendible by 15 days,
and another 15 days for most
compelling reason
 Since the unlawful detainer case was
filed with the MTC and affirmed by the
RTC, petitioners should have filed a
petition for review with the CA and not a
notice of appeal with the RTC. The filing
of the motion for reconsideration on the
next day may be deemed as a
withdrawal of the defective notice of
appeal (Ross Rica Sales Center, Inc. vs.
Ong, 467 SCRA 35)
Only one motion for reconsideration allowed
(Sec. 4, Rule 43)
 The filing of a second motion for
reconsideration of the final order of the
Office of the President, being a prohibited
pleading, did not suspend the period to
appeal said order to the Court of Appeals
via a petition for review under Rule 43
(Suyat vs. Torres, 441 SCRA 265)
• Service of copy of petition on lower court
and adverse party serves as notice of
appeal
• Perfection of appeal
 Mere filing of extension of time to file
petition for review under Rule 42 is not
sufficient. Unless the appeal is
perfected by the filing of the petition
and payment of docket and other
lawful fees, the Court of Appeals does
not acquire jurisdiction over the case
(Fernandez vs. CA, 458 SCRA 454).
• Effect of failure to comply with requirements
(Sec. 3, Rule 42; Sec. 7, Rule 43).
Impleading a lower court judge as respondent
in a petition for review under Rule 42 does not
automatically mean the dismissal of the
appeal but merely authorizes the dismissal of
the petition (Gutierrez vs. Cabrera, 452 SCRA
521 [2005]).
Case dismissed due to failure to attach copies
of pleadings filed below or other material
portions of the record which would support the
allegations in the petition (Teh vs. People,
448 SCRA 25).
 Failure to append copies of
pleadings and other material
portions of the records as would
support the petition does not justify
outright dismissal of the petition
(LBP vs. Celada, 479 SCRA 495)
• Review discretionary
♦ may be dismissed outright (Sec. 4,
Rule 42; Sec. 8, Rule 43). PPQ
♦ may not be given due course (Sec.
6, Rule 42; Sec. 10,Rule 43).
 Pure question of law
may be brought to CA
(Sec. 2, Rule 42; Sec. 3,
Rule 43).
Effect of appeal
♦ shall stay judgment
or final order (Sec. 8,
Rule 42).
Exceptions:
a. civil cases decided under the
Rule on Summary Procedure
b. when CA, law or Rules of Court
provide otherwise
♦ shall not stay judgment or
final order (Sec. 12, Rule 43).
Exception:
a. when CA directs otherwise
(thru issuance of injunctive
order)
Exception: CA injunctive order not
binding in Ombudsman
administrative disciplinary cases
(Buencamino vs. CA, G. R. No.
175895, April 12, 2007, Office of the
Ombudsman vs. Samaniego, G.R.
No. 175573, October 5, 2010
(Resolution) and Facura vs. CA, G. R.
No. 166495, February 16, 2011)
PETITION FOR REVIEW ON
CERTIORARI – RULE 45
•
How appeal taken and time for filing (Secs. 1 &
2).
a. verified petition for review and payment of
docket and other lawful fees and deposit for
costs
b. within 15 days from notice of judgment or
final order or resolution appealed from, or
denial of motion for new trial or
reconsideration, extendible by 30 days for
justifiable reasons
Section 1 as amended by A.M. No. 07-7-12-SC:
Section 1. Filing of petition with
Supreme Court. – A party desiring to
appeal by certiorari from a judgment,
final order or resolution of the Court of
Appeals, the Sandiganbayan, the Court
of Tax Appeals, the Regional Trial Court
or other courts whenever authorized by
law, may file with the Supreme Court a
verified petition for review on certiorari.
The petition may include
an
application for a writ of preliminary
injunction or other provisional remedies
and shall raise only questions of law
which must be distinctly set forth. The
petitioner may also seek the same
provisional remedies by verified motion
filed in the same action or proceeding at
any time during its pendency.
By expressly providing that petitioners have the
right to seek provisional remedies under Rule 45,
there will be less resort to Rule 65.
• Only questions of law may be raised (Sec. 1).
• Proof of service on lower court and adverse party
(Sec. 3).
• Dismissal or denial of petition (Sec. 5).
• When petition given due course (Sec. 6).
• Distinguished from certiorari as a special civil
action.
 Special civil action under Rule 65 may not be
allowed as a substitute for failure to file petition
under Rule 45 (Linzag vs. CA, 291 SCRA 304
[1998]).
 However, in the interest of justice, SC may
consider petition for certiorari under Rule 65 as
a petition for review under Rule 45, provided
latter is filed within the required period (Banco
Filipino Savings and Mortgage Bank vs. CA, 334
SCRA 305 [2000]).
 Petition for review under Rule 45 may be treated
as a petition for certiorari under Rule 65, in the
interest of substantial justice (Ramiscal vs.
Sandiganbayan, 446 SCRA 166 [2004]; Tan vs.
Dumarpa, 438 SCRA 659 [2004]).
 Petitioner cannot file an “alternative” petition,
i.e., delegating to the Supreme Court the task of
determining under which rule the petition should
fall - petition for review under Rule 45 or
certiorari under Rule 65 (Chua vs. Santos, 440
SCRA 365 [2004]).
 Petition for review on certiorari is the proper
remedy to assail the Court of Appeals decision
denying a petition for certiorari. Since petitioner
filed instead a petition for relief from judgment,
the CA decision became final (Azucena vs.
Foreign Manpower Services, Inc. 441 SCRA
346 [2004]).
Motion for reconsideration not a sine qua non
for filing of a petition for review under Rule 45
(Commissioner of Internal Revenue vs. Hantex
Trading Co., Inc., 454 SCRA 301 [2005]).
• Factual findings of CA binding on SC.
Ten (10) exceptions (Salcedo vs. People, 347
SCRA 499).
• Exception to Rule 45 as a mode of appeal to SC -notice of appeal where CA imposes reclusion
perpetua, life imprisonment or a lesser penalty,
etc. (Sec. 13 (c), Rule 124, as amended by A.M.
No. 00-5-03-SC).
PETITION FOR CERTIORARI RULE 65
♦ How taken and time for filing (Secs. 1 & 4)
- verified petition within 60 days from
notice of judgment, order or resolution,
or order denying motion for new trial or
reconsideration. DELETED by A.M. No.
07-7-12-SC – last paragraph of Section
4: No extension of time to file the petition
shall be granted except for compelling
reasons and in no case exceeding fifteen
(15) days.
Hence, petitions for certiorari
must be filed strictly within 60
days from notice of judgment or
from the order denying a motion
for reconsideration.
As held in Laguna Metts Corporation vs.
Court of Appeals (G.R. No. 185220. July
27, 2009), if the Court intended to retain
the authority of the proper courts to grant
extensions under Section 4 of Rule 65, the
paragraph providing for such authority
would have been preserved. “The removal
of the said paragraph under the
amendment by A.M. No. 07-7-12-SC of
Section 4, Rule 65 simply meant that there
can no longer be any extension of the 60day period within which to file a petition for
certiorari.”
Hence, the general rule, as held in
Laguna Metts Corporation, is that the filing
of a petition for certiorari is non-extendible.
However, subsequent rulings provided for
exceptions, as stated in Domdom vs.
Sandiganbayan, Labao vs. Flores and MidIslands Power Generation vs. Court of
Appeals, which. as explained in Republic
vs. St. Vincent de Paul Colleges, Inc. (G.R.
No. 192908. August 22, 2012), can be
summarized under two main grounds: to
serve substantial justice or to safeguard
strong public interest.
To enforce the principle of hierarchy of courts, A.M.
No. 07-7-12 has also amended the second
paragraph of Section 4, thus:
If the petition relates to an act or omission of a
municipal trial court or of a corporation, board,
officer or person, it shall be filed with the
Regional Trial Court exercising jurisdiction
over the territorial area as defined by the
Supreme Court. It may also be filed with the
Court of Appeals whether or not the same is
in aid of its appellate jurisdiction, or with the
Sandiganbayan if it is in aid of its appellate
jurisdiction. If the petition involves an act or
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.
In election cases involving an
act or omission of a municipal
or regional trial court, the
petition
shall
be
filed
exclusively
with
the
Commission on Elections, in
aid of its appellate jurisdiction
Following the hierarchy of courts, no
certiorari against the RTC shall be filed with
the Supreme Court. This will help prevent the
clogging of the Supreme Court’s dockets as
litigants will be discouraged from filing
petitions directly with the Supreme Court.
For election cases involving acts or
omissions of a municipal or regional trial
court, the petition shall be filed exclusively
with the Comelec as ruled by the Supreme
Court in Relampagos vs. Comelec (243
SCRA 690, April 27, 1995).
Effect of amendment of Sec. 7, Rule 65 by
A.M. No. 07-7-12 on the principle of judicial
courtesy:
Section 7. Expediting
proceedings;
injunctive relief. - The court in which the petition
is filed may issue orders expediting the
proceedings, and it may also grant a temporary
restraining order or a writ of preliminary injunction
for the preservation of the rights of the parties
pending such proceedings. 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.
The public respondent shall proceed
with the principal case within ten (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
Unless there is a temporary restraining
order or preliminary injunction issued by a
higher court, the main or principal case
should proceed despite the filing of a
petition for certiorari questioning an act or
omission of a court or tribunal
Judicial courtesy, therefore, can no
longer be used as an excuse by courts or
tribunals not to proceed with the principal
case.
The said circular also amended Sec. 8,
as follows:
Section 8. Proceedings after comment is
filed. - After the comment or other pleadings
required by the court are filed, or the time for the
filing thereof has expired, the court may hear the
case or require the parties to submit memoranda.
If, after such hearing or filing of memoranda or the
expiration of the period for filing, the court finds that
the allegations of the petition are true, it shall
render judgment for such relief to which the
petitioner is entitled.
However, the court may dismiss the petition
if it finds the same patently without merit or
prosecuted manifestly for delay, or if the
questions raised therein are too unsubstantial
to require consideration. 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 of the Rules of Court.
The Court may impose motu proprio, based
on rep ipsa loquitur, other disciplinary
sanctions or measures on erring lawyers for
patently dilatory and unmeritorious petitions
for certiorari.
This amendment seeks to discourage
litigants and their counsel from filing baseless
petitions for certiorari.
Three (3) essential dates that must be stated in a
petition for certiorari – (a) the date when notice
of the judgment, final order or resolution was
received, (b) when a motion for new trial or
reconsideration was filed, and (c) when notice of
the denial thereof was received (Seastar Marine
Services, Inc. vs. Bul-an, 444 SCRA 140 [2004]).
Late filing of petition for certiorari – for being filed
one day late, the Court of Appeals dismissed
petition for certiorari of NLRC decision. The
Supreme Court upheld the dismissal. Deviations
from the rules cannot be tolerated. Its
observance cannot be left to the whims and
caprices of the parties (LTS Philippines Corp. vs.
Maliwat, 448 SCRA 254 [2005]).
♦ SC, CA,SB and RTC have concurrent jurisdiction
Petition for certiorari to annul RTC orders filed
with the SC should be dismissed. It should
have been filed with the CA, following the
principle of hierarchy of courts (De los Reyes
vs. People, 480 SCRA 294).
If aggrieved, even a non-party may institute a
petition for certiorari (Chua vs. CA, 443 SCRA
259 [2004]).
♦ If involving acts or omissions of a quasi-judicial
agency, petition filed in CA (Sec. 4).
♦ Directed against a tribunal, board or officer
exercising judicial or quasi-judicial functions.
 Not available as a remedy for the
correction of the acts performed by a
sheriff during the execution process, which
acts are neither judicial nor quasi-judicial
but are purely ministerial functions.
Prohibition is the proper remedy (Pamana,
Inc. vs. CA, 460 SCRA 133).
♦ Ground: grave abuse of discretion, etc.
Denial of motion to dismiss or to quash, being
interlocutory, cannot be questioned by certiorari; it
cannot be subject of appeal, until final order or
judgment is rendered. Exceptions (when recourse
to certiorari or mandamus appropriate): (a) when
trial court issued the order without or excess of
jurisdiction; (b) when there is patent grave abuse
of discretion by the trial court; or (c) when appeal
would not prove to be a speedy and adequate
remedy as when an appeal would not promptly
relieve defendants from the injurious effects of the
patently mistaken order (DBP vs. La Campana
Development Corp., 448 SCRA 384 [2005]).
♦ No appeal or any plain, speedy and adequate
remedy.
♦ Generally, if appeal is available, certiorari cannot
be resorted to. Appeal and certiorari mutually
exclusive and not alternative or successive.
Certiorari filed instead of appeal during period
of appeal did not toll period or prevent
judgment from becoming final (Del Rosario
vs. Galagot, 166 SCRA 429).
Existence and availability of the right to
appeal prohibits the resort to certiorari even if
the error ascribed to the court is lack or
excess of jurisdiction or grave abuse of
discretion in the findings of fact or law set out
in the decision (Bugarin vs. Palisoc, 476
SCRA 587).
If remedy of appeal lost due to petitioner’s
neglect or error in choice of remedies, certiorari
not substitute or tool to shield petitioner from
adverse effects (Professional Regulations
Commission vs. CA, 292 SCRA 155).
Exceptions:
When public welfare and advancement of public
policy dictate.
When broader interest of justice so requires.
When writs issued are null and void.
When questioned order amounts to an oppressive
exercise of judicial authority.
Where appeal is not adequate, speedy and
effective.
In any such instances, special civil action of
certiorari may be availed of
- even during the pendency of the case or even
after judgment, or
- even when appeal has been availed of
Availability of appeal does not foreclose
recourse to certiorari where appeal not
adequate, or equally beneficial, speedy and
sufficient (PNB vs. Sayoc, 292 SCRA 365).
Rule may be relaxed when rigid application will
result in manifest failure or miscarriage of
justice (Mejares vs. Reyes, 254 SCRA 425).
 Where remedies not incompatible, filing
of certiorari not abandonment of appeal.
Appeal is from decision in main case
while certiorari is against order denying
motion for new trial (Lansang, Jr. vs. CA,
184 SCRA 230; St. Peter Memorial Park
vs. Campos, 63 SCRA 180).
An appeal from a judgment does not bar
a certiorari petition against the order
granting execution pending appeal and
the issuance of the writ of execution
(Mañacop vs. Equitable PCIBank, 468
SCRA 256).
However, a party is not allowed to question a
decision on the merits and also invoke certiorari.
Filing of a petition for certiorari under Rule 65
and ordinary appeal under Rule 41 cannot be
allowed because one remedy would necessarily
cancel each other (Id.).
It is the danger of failure of justice without the
writ, not the mere absence of all legal remedies,
that must determine the propriety of certiorari
(Seven Brothers Shipping Corp. vs. CA, 246
SCRA 33 [1995]).
♦ Motion for reconsideration required before
certiorari can be filed. Exceptions (Tan, Jr.
vs. Sandiganbayan, 292 SCRA 452; Marawi
Marantao General Hospital vs. CA, 349
SCRA 321).
RELIEF FROM JUDGMENT –
RULE 38
• Available only after (a) decision or final
order from which relief is sought has
become final and executory, and (b) loss
of the right to appeal.
• Not available where (a) a party has
another adequate remedy available him
(motion for new trial or appeal) and (b) he
is not prevented from filing such motion or
taking the appeal.
• Relief will not be granted when a party’s
loss of legal remedy is due to his own
negligence or mistaken mode of
procedure.
• Requisites:
1) fraud, accident, mistake or excusable
negligence
- fraud must be extrinsic or collateral
2) presence of good and substantial
cause of action or defense, as the case
may be.
• Time for filing petition – within 60 days
after learning, and not more than 6
months after judgment or order entered,
or proceeding taken.
• Per Sec.3, Rule 38, "The 60-day period is
reckoned from the time the party
acquired knowledge of the order,
judgment or proceedings” and not from
the date he actually read the same
(Escueta vs. Lim, G.R. No. 137162,
January 24, 2007).
Exceptions:
♦ A few days in excess of 60-day requirement
not fatal if petition filed within 6 months from
entry of order (Papa vs. CA, 303 SCRA 600).
♦ Petition filed beyond required period
considered seasonably filed to avoid a
miscarriage of justice (Funtilla vs. CA, 93
SCRA 251).
♦ Where counsel’s negligence deprived his
client of his day in court, it entitled petitioner
to file petition for relief despite lapse of
reglementary period (PHHC vs. Tongco, 12
SCRA 471).
ANNULMENT OF JUDGMENT –
RULE 47
Cannot be availed of –
• where party had availed of remedy of new
trial, appeal, petition for relief or other
appropriate remedy and lost therefrom; or
• where he failed to avail of any such
remedy thru his own fault or negligence.
Rule 47 applies only to annulment by the
Court of Appeals of judgments or final
orders and resolutions in civil cases of
Regional Trial Courts – it does not apply to
criminal actions (People vs. Bitanga, G.R.
No. 159222, June 26 2007); final judgments
or orders of quasi-judicial tribunals or
administrative bodies such as the National
Labor
Relations
Commission,
the
Ombudsman, the Civil Service Commission,
the Office of the President, and the PARAD
(Fraginal vs. Paranal, G.R. No. 150207,
February 223, 2007).; or to nullification of
decisions of the Court of Appeals (Grande
vs. University of the Philippines, G.R. No.
148456, September 15, 2006).
Grounds and period for filing:
(1) Extrinsic fraud
 Fraud must be committed by adverse party.
- prevents a party from having a trial, or
real contest, or from presenting his case
to the court
- operates upon matters not pertaining to
the judgment itself but to the manner in
which it was procured so that there is no
fair submission of the controversy
 In an ejectment case, the judge
demanded and received money from
plaintiff in order that the latter may
secure the favorable outcome of
the case. As a result of the acts of
both plaintiff and the judge,
defendant was prevented from
receiving a fair and just trial.
Judgment annulled (Joven vs.
Calilung, 477 SCRA 470).
Petition must be filed within four (4) years
from discovery.
(2) Lack of jurisdiction - judgment rendered without
jurisdiction is null and void.
 Nullity may be shown not only by what
appears on the face of the decision but also
by the documentary and testimonial
evidence found in the record.
Lack of jurisdiction distinguished from
exercise of jurisdiction (Tolentino vs.
Leviste, 443 SCRA 274 [2004]).
CA has no jurisdiction to entertain a
petition to annul a final decision of the
SEC (Galang vs. CA, 472 SCRA 259
[2005])
 Petition filed before it is barred by laches or
estoppel.
Appeal in Criminal Cases
• Who may appeal? “Any party”, etc. (Sec.
1, Rule 122).

accused

prosecution

offended party
State cannot appeal from judgment
of acquittal based on merits of case
due to double jeopardy.
 In the absence of a finding of
mistrial, i.e., the criminal trial
was a sham, a judgment of
acquittal
is
final
and
unappealable,
whether
it
happens at the trial court or the
Court of Appeals (People vs.
CA, 423 SCRA 605; People vs.
Velasco, 340 SCRA 207).
 A review of the sufficiency of evidence
and of the propriety of acquittal lies
outside the function of certiorari
(People vs. Bans, 239 SCRA 48).
Whether
or
not
the
evidence
established beyond reasonable doubt
the guilt of the accused cannot be
resolved in a special civil action of
certiorari (People vs. CA, 431 SCRA
610). Certiorari will only lie to correct
errors of jurisdiction, not errors of
judgment.
 Judgment or order of acquittal may be
challenged in a petition for certiorari for
grave abuse of discretion amounting to lack
or excess of jurisdiction due to a violation of
due process, i.e., the prosecution was
denied the opportunity to present its case or
that the trial was a sham. In such cases,
double jeopardy will not attach. The
petitioner must clearly demonstrate that the
trial court blatantly abused its authority to a
point so grave as to deprive it of its very
power to dispense justice (People vs.
Sandiganbayan, 376 SCRA 74 [2002];
Philippine Savings Bank vs. Bermoy, 471
SCRA 94 [2005]).
 Prosecution may appeal an order of
dismissal of a criminal complaint or
information where dismissal order was
issued by the trial judge before accused
was arraigned (Comelec vs. Silva, 285
SCRA 177 [1998]).
 Once the court grants demurrer to
evidence, such order amounts to
acquittal, and any further prosecution of
the accused would violate the rule on
double jeopardy. Even an appeal based
on alleged misappreciation of evidence
by the trial court will not lie (Hun Hyung
Park vs. Eung Won Choi, G.R. No.
165496, June 29, 2007; Philippine
Savings Bank vs. Bermoy, 471 SCRA
94 [2005])
However, the grant of the demurrer
to evidence may be questioned
through a petition for certiorari
if the prosecution is denied due
process, which renders the decision
void (People vs. Uy, G.R. No.
158157, September 30, 2005)
 The private complainant may
appeal on the civil aspect of the
case where the acquittal is
based on reasonable doubt on
the guilt of the accused, which
means that he is not exempt
from civil liability which may be
proved by preponderance of
evidence only (Manantan vs.
CA, 350 SCRA 387 [2001]).
Neypes ruling
applicable to criminal
cases (Yu vs. SamsonTatad, G.R. No. 171979,
February 9, 2011).
Appeal by prosecution from order of
dismissal of a criminal case shall not
constitute double jeopardy if:
1. dismissal made upon motion, or with express
consent of accused
2. dismissal not an acquittal or based upon
consideration of evidence or merits of case
3. question to be passed upon by appellate court
purely legal so that should dismissal be found
incorrect, case would have to be REMANDED
to court of origin for further proceedings, to
determine guilt or innocence of accused
•
No double jeopardy –
1. where state is deprived of fair opportunity to
prosecute and prove its case
2. where dismissal of information or complaint is
purely capricious or devoid of reason
3. where there is lack of proper notice and
opportunity to be heard
• Order granting motion to quash is final.
Prosecution may appeal an order granting motion
to quash, except:
1. where ground for dismissal is that criminal
action or liability has been extinguished.
2. where ground is that accused has been
previously convicted or in jeopardy of being
convicted, or acquitted of the offense charged.
 Certiorari is appropriate remedy to assail
an order granting bail (Pobre vs. CA, 463
SCRA 50).
♦ Appeal from MTC to RTC
Where MTC has jurisdiction over offense
(imprisonment not more than 6 yrs.)
- How appeal taken and time for filing (Secs.
3 & 6, Rule 122)
♦ Appeal from RTC to CA
 Original jurisdiction of RTC
- Ordinary appeal (Sec. 3 (a), Rule 122).
o If motion for new trial granted, accused has
15 days from notice of new decision to
appeal.
o If motion for reconsideration is partly
granted, and judgment of conviction
modified, accused has 15 days to appeal.
Where RTC imposes reclusion perpetua, life
imprisonment or where lesser penalty
imposed for offenses committed on same
occasion, etc. – notice of appeal to CA (Sec.
3 (c), Rule 122, as am. by A.M. No. 00-5-03SC dated October 15, 2004 pursuant to
People vs. Mateo).
Where RTC imposes death penalty –
automatic review by CA (Sec. 3 (d), Ibid.).
o Intermediate review by CA of cases where
penalty imposed is death, reclusion perpetua
or life imprisonment would minimize the
possibility of an error of judgment (People vs.
Mateo, 433 SCRA 640).
Mandatory review by SC is only required for
cases where the penalty imposed is death.
Where the penalty imposed is reclusion
perpetua or life imprisonment, a review of the
trial court decision is conducted only when the
accused files a notice of appeal. Neither the
Decision in Mateo nor the abolition of the
death penalty has changed this (People vs.
Rocha, G.R. No. 173797, August 31, 2007)
Where death penalty was imposed, CA cannot
dismiss appeal for failure of accused to file
appellant’s brief. The power to automatically
review a decision imposing the death penalty
cannot be waived either by the accused or by
the courts (People vs. Flores, 481 SCRA 451).
 Appellate jurisdiction of RTC
- Petition for review under Rule 42 (Sec. 3 (b),
Rule 122).
♦ Appeal from CA and SB to SC
- Petition for review under Rule 45 (Sec. 3 (e),
Rule 122; Sec. 7, PD 1616, as am. by RA
8249).
Exceptions:
 CA – where CA imposes reclusion perpetua,
life imprisonment or a lesser penalty, etc. 
notice of appeal to SC (Sec. 13 (c), Rule 124,
as am. by A.M. No. 00-5-03-SC).
N.B. (1) Where CA finds that death penalty
should be imposed, will render judgment
but refrain from making entry of judgment
and certify case and elevate entire record
to SC for review (Sec. 13 (a), Ibid.).
(2) Where judgment also imposes lesser
penalty for offenses committed on same
occasion or arose out of same occurrence
that gave rise to more serious offense for
which death penalty is imposed, and
accused appeals, appeal shall be included
in case certified for review to SC (Sec. 13
(b), Ibid.).
 SB – where SB imposes death, reclusion
perpetua or life imprisonment
 Original jurisdiction
• death  automatic review by SC
• reclusion perpetua or life imprisonment or
lesser penalty imposed, etc.  notice of
appeal to SC
 Appellate jurisdiction
Where SB finds that death penalty,
reclusion perpetua or life imprisonment
should be imposed, will render judgment
but refrain from making entry of judgment
and certify case and elevate entire record
to SC for review (Section 7, PD 1606, as
amended by RA 8249 and Rule X, Revised
Internal Rules of Sandiganbayan, as
reiterated in SC Resolution dated October
12, 2004).

Fugitive from justice waives his right to
appeal -
• Accused escaped from detention and
was tried in absentia (Moslares vs. CA,
291 SCRA 340).
• Accused escaped during pendency of
appeal
(People vs. Codilla, 224 SCRA 104).
Appeal in election cases – action of public
prosecutor authorized to investigate election cases
appealable to Comelec within 10 days from notice
(Sec. 34, Comelec Rules of Procedure). Comelec
decision or order reviewable by SC via petition for
certiorari within 30 days from promulgation (Rule
64, Rules of Court).
An appeal in a criminal case throws the whole
case wide open for review. Issues raised or not by
the parties may be resolved by the appellate court.
It may examine the records, revise the judgment
appealed from, increase the penalty and cite the
proper provisions of the penal law (EusebioCalderon vs. People, 441 SCRA 137 [2004]).
 Sandiganbayan resolution allowing appearance of
private prosecutor in criminal case for violation of
RA 3019 and falsification of public document is
interlocutory, hence not appealable (Ramiscal vs.
Sandiganbayan, 446 SCRA 166 [2004]).
 Motion to quash information – Remedies when
a. granted – since Sandiganbayan resolution
which quashed the information was a final
order that finally disposed of the case, petition
for review under Rule 45, not petition for
certiorari under Rule 65 (People vs.
Sandiganbayan, 449 SCRA 205 [2005]).
b. denied - since RTC decision is interlocutory
in nature, accused must enter plea, go to trial
without prejudice to presenting the special
defenses he had invoked in his motion to
quash and, after trial on the merits, an
adverse decision is rendered, to appeal
therefrom in the manner authorized by law
(Basa vs. People, 451 SCRA 510 [2005]).
Subsidiary liability of employer; not a party, so
cannot appeal. Where civil liability of employee
has become final and enforceable by reason of
his flight, then employer’s subsidiary civil liability
has also become immediately enforceable
(Philippine Rabbit Bus Lines Inc. vs. People, 427
SCRA 456 [2004]).
Miscellaneous
Issue raised for the first time on appeal; jurisdiction
cannot be raised if there is estoppel (Springson
Management Systems Corporation vs. Camerino,
449 SCRA 65 [2005]).
No appeal in summary judicial proceedings
An appellate court acquires no jurisdiction to review
a judgment, which, by express provision of law, is
immediately executory.
Difference between CA’s (a) dismissal of appeal for
lack of jurisdiction and (b) denial of appeal for lack
of merit (Republic vs. Bermudez-Lorino, 449 SCRA
57 [2005]).
 Remedies available to a party declared in default. –
(1) motion to set aside order of default on the ground
of fraud, accident, mistake or excusable negligence
under Section 3 (b), Rule 9 if the order of default was
discovered before judgment could be rendered; (2)
motion for new trial under Section 1 (a) of Rule 37 if
the default was discovered after judgment but while
appeal is still available; (3) appeal from the judgment
under Section 1, Rule 41, even, if no motion to set
aside order of default has been resorted to; (4)
petition for relief under Rule 38, if judgment has
become final and executory; (5) petition for certiorari
if the trial court improperly or with grave abuse of
discretion declared a party in default (Crisologo vs.
Globe Telecom, 478 SCRA 433 [2005]; Indiana
Aerospace University vs. Commission on Higher
Education, 356 SCRA 367 [2001]).
 Solicitor General has primary responsibility to appear
for the government in appellate proceedings
(Commissioner of Internal Revenue vs. La Suerte
Cigar and Cigarette Factory Resolution of Motion for
Clarification of SC Decision - 384 SCRA 117 [2002]).
 Writ of habeas corpus is not to be used as a
substitute for another remedy in law. Review of a
judgment of conviction is allowed in a petition for
habeas corpus only in very specific instances, such
as when, as a consequence of a judicial
proceedings, (a) there has been a deprivation of a
constitutional right resulting in the restraint of a
person; (b) the court had no jurisdiction to impose
the sentence; or (c) an excessive sentence has been
imposed, as such sentence is void as to such excess
(In Re: The Writ of Habeas Corpus for Reynaldo de
Villa, 442 SCRA 706 [2004]).
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