PROVISIONAL REMEDIES

who seeks to avail of the same must strictly observe the rules laid down by
the law

Notes by Kvyn

-The omission, however of the phrase grave abuse of discretion or

without or in excess of jurisdiction is not fatal. Such allegations are mere
conclusions of law which may be deduced from the facts averred even when
not specifically pleaded

Rule 65-Certiorari, Prohibition and Mandamus

-While Sec 1 of Rule 65 requires that the petition for certiorari be VERIFIED,
this is not absolute necessity where the material facts alleged are a matter of
record, and the questions raised are mainly of law

Certiorari
-is a writ issued from a superior court to any inferior court, board or
officer, exercising judicial or quasi-judicial functions whereby the
record of a particular case is ordered to be elevated up for review
and correction in matters of law

-many authorities consider the absence of verification a mere formal, not

jurisdictional, defect the absence of which does not of itself justify a court in
refusing to allow and act in the case
Grave Abuse of Discretion

-extraordinary prerogative writ, never a demandable as a matter if

right

-capricious or whimsical exercise of judgment as is equivalent to lack

of jurisdiction

-never issued EXCEPT in the exercise of judicial discretion

-the abuse of discretion must be patent and gross as to amount to an evasion

of positive duty or a virtual refusal to perform a duty enjoined by law, or to
act at all in contemplation of law

Requisites of a Petition for the issuance of a Writ of Certiorari

1.) That it is directed against a tribunal, board or officer exercising
judicial or quasi-judicial functions
2.) That such tribunal, board or officer has acted without or in
excess of jurisdiction or with grave abuse of discretion
3.) That there is no appeal nor plain, speedy, and adequate remedy
in the ordinary course of law
4.) That the petition is verified and must allege facts with certainty
5.) The petition must be accompanied with certified true copies of
the judgment or order sought to be annulled and copies of all
pleadings and documents relevant and pertinent thereto

Exercising Judicial Functions

-when clothed with authority and undertakes to determine what the
law is and what the legal rights of the parties are with respect to the
matter in controversy

-The purpose of judicial review is to keep the administrative agency within

its jurisdiction and protect substantial rights of parties affected by its
decisions. The review is a part of the system of checks and balances which is
a limitation on the separation of powers in which forestalls arbitrary and
unjust adjudications

-A petition is FATALLY DEFECTIVE if it fails to comply with Section 1 of Rule 65

or to allege facts with certainty, or to attach certified true copies of the order
sought to be annulled. Certiorari being an extraordinary remedy, the party
1

-A Presidential Decree may be properly struck down by a writ of certiorari,

where it was done and issued in the performance of what in essence is a
judicial function

more than an error of judgment

-the petition is based on questions of

law which the appellant desires the
appellate court to resolve

Grounds for Issuance

The court acted with absolute want
Without Jurisdiction
of jurisdiction
Court has jurisdiction but has
Excess of Jurisdiction
transcended the same or acted
without any statutory authority
Capricious and whimsical exercise of
judgment as is equivalent to lack of
jurisdiction or in other words, where
the power is exercised in an arbitrary
or despotic manner by reason of
Grave abuse of discretion
passion or personal hostility, and it
must be so patent and gross as to
amount to an evasion of positive
duty or to virtual refusal to perform
the duty enjoined or to act at all in
contemplation of law

-review of the JUDGMENT,AWARD or

FINAL ORDER on the merits

-must
be
filed
within
reglamentary period for appeal

-stays the judgment, award or order

appealed from

-petitioner and respondents are the

original parties to the action, and the
lower court or quasi-judicial agency
is NOT to be impleaded

Adequate Remedy
-a remedy which is equally beneficial, speedy and sufficient, not
merely a remedy which at sometime in the future will bring about a
revival of the judgment of the lower court complained of in the
Certiorari proceeding, but a remedy which will promptly relieve the
petitioner from the injurious effects of that judgment and the acts of
the inferior court or tribunal

Appeal by Certiorari
-appeal brings up for review ERRORS
OF JUDGMENT committed by the
court in the exercise of its
jurisdiction amounting to nothing

the

-motion for reconsideration is NOT

required
-appellate court is in the exercise of
its APPELLATE JURISDICTION and
power of review

SCA for Certiorari

-writ of certiorari issues for the
correction of errors of jurisdiction
only or grave abuse of discretion
amounting to lack or excess of

jurisdiction
-serves to keep an inferior court
within the bounds of its jurisdiction
-certiorari as an original action, the
petition raises the issue as to
whether the lower court acted
without or in excess of jurisdiction or
with grave abuse of discretion
-may be directed against an
INTERLOCUTORY ORDER of the court
prior to appeal from the judgment or
where there is no appeal or any
other plain, speedy or adequate
remedy
-may be filed not later than sixty (60)
days from notice of the judgment,
order or resolution sought to be
assailed
-unless a writ of preliminary
injunction or a TRO shall have been
issued, does not stay the challenged
proceeding
-the parties are the aggrieved party
against the lower court or quasijudicial agency and the prevailing
parties, who thereby respectively
become
the
petitioner
and
respondents
-motion for reconsideration is a
CONDITION PRECEDENT, subject to
certain exceptions
-the higher court exercises ORIGINAL
JURISDICTION under its power of
control and supervision over the
proceedings of lower courts

-THE SPECIAL CIVIL ACTION FOR CERTIORARI WILL NOT LIE AS A SUBSTITUTE
FOR THE LOST REMEDY OF APPEAL EXCEPT WHEN THERE ARE SPECIAL &
COMPELLING REASONS
2

-Mere errors of judgment cannot be the proper subject of a special civil

action for certiorari. Where the issue or question involved affects the
wisdom or legal soundness of the decisionnot the jurisdiction of the court
to render a decisionthe same is beyond the province of a special civil
action for certiorari

-It has been held even assuming that the trial court committed an error in
denying the motion to discharge the writ of attachment, the error (if it is an
error at all) is an error in judgment which cannot be corrected through the
extraordinary remedy of certiorari but by an ordinary appeal at the proper
time

-what certiorari should present is an error in jurisdiction and not an error in

the exercise thereof

-In case of default, appeal from judgment of default and not certiorari is the
proper remedy where defendant was properly declared in default

-errors which the court may commit in the exercise of its jurisdiction are
mere errors of judgment which are reviewable by appeal

-Petition for certiorari is allowed when the default order is improperly

declared, or even when it is properly declared, where grave abuse of
discretion attended such declaration. In these exceptional instances, the
special civil action of certiorari to declare the nullity of a judgment by default
is available

Error of Jurisdiction
Errors of Judgement

Certiorari
Appeal

Function of Certiorari

-Jurisdiction is the authority to hear and determine a cause

-the function of a writ of certiorari is to keep an inferior court within

the bounds of its jurisdiction or to prevent it from committing such a
grave abuse of discretion amounting to excess of jurisdiction. It is
available only for these purposes and not to correct errors of
procedure or mistakes in the judges findings or conclusions

-the exercise of that jurisdiction is the decision on all other questions arising
in the case
-QUASI-JUDICIAL FUNCTIONS include incidental reliefs as law and justice
may require, i.e. disputing an order of dismissal of complaint may lead the
court to order for its dismissal
-Non-party NOT allowed to file petition for certiorari

No plain, speedy and adequate remedy

-Where there is jurisdiction over the person and the subject matter, the
decision of all other questions arising in the case is but an exercise of that
jurisdiction

-Party aggrieved by a decision of the CA is proscribed from assailing

the decision via Rule 65 because the recourse is proper only if the
party has no plain, speedy and adequate remedy. (California Bus
Lines, Inc. vs CA, 562 SCRA 403)

-And when the court exercises its jurisdiction, an error committed while
engaged in that exercise does not deprive it of the jurisdiction being
exercised when the error is committed.

-The question of whether or not an action for unlawful detainer was the
proper remedy should be addressed in the APPEAL and NOT in certiorari (San
Pedro vs CA, 235 SCRA 145)

-Where a rigid application of the rule that certiorari cannot be a substitute

for appeal will result in a MANIFEST FAILURE or MISCARRIAGE of JUSTICE, the
provisions of the Rules of Court which are technical may be relaxed.

Jurisdictional Questions

-Thus, certiorari may be availed of to contest an interlocutory order

to correct a patent abuse of discretion by the lower court in issuing
the same.

-questions having to do with an indifferent disregard of the law,

arbitrariness and caprice or omission to weigh pertinent
considerations, a decision arrived at without rational deliberation, as
distinguished from questions that require digging into the merits and
unearthing errors of judgment which is the office on the other hand
of review under Rule 45 of the Rules (Dario vs Mison, 176 SCRA 89)

Finality of Decision NO bar to certiorari on Incidents connected therewith

-The fact that a decision has become final does NOT negate the
original jurisdiction of the CA to issue certiorari, prohibition and
mandamus in connection with order or processes issued by the trial
court incidental to the execution of the final order or decision.

Error in appreciation of evidence NOT reviewable by certiorari

-Neither can we determine whether the construction given by the
appellate court to a document is right or wrong as errors in the
appreciation of evidence may not be reviewed by certiorari because
they do not involve any jurisdictional question. (Mujer vs CFI of
Laguna, 35 OG 1384)

-While there is no appeal from execution of judgment, appeal lies in case of

irregular implementation of the writ. Irregular execution means failure of the
writ to conform to the decree of the decision.

-The remedies of appeal and certiorari are mutually exclusive and not
alternative or successive
Rulings of the trial court in procedural questions and on the admissibility of
evidence during the course of the trial are interlocutory in nature and may
not be the subject of separate appeal or review on certiorari, but are to be
assigned as errors and reviewed on appeal FROM THE JUDGMENT on the
merits

-The availability to respondent of a petition for review under Rule 43 of the

Rules of Court to appeal the decision and Resolution of the Office of the
President effectively foreclose the right to resort to a special civil action for
certiorari

EXCEPTION

-If the remedy of appeal is available or when appeal had already been filed
with the Court of Appeals the petition for certiorari with the SC will be
dismissed

-Certiorari may however be availed of to annul a reception of

evidence in violation of the constitutional right of the accused in a
criminal case. (Toledo vs People, 85 SCRA 355)

-Generally, the denial of a motion to dismiss is interlocutory and is not

subject to appeal. Certiorari and prohibition are neither the remedies to
question the propriety of an interlocutory order of the trial court.

-An order striking out evidence relating to disbarment which could

have been used for impeachment purposes is correctible by
certiorari because it was issued in patent abuse of discretion
(Villalon, Jr. vs IAC, 144 SCRA 433)

-An order denying a motion to dismiss is interlocutory, and so the proper

remedy in such a case is to APPEAL AFTER A DECISION HAS BEEN RENDERED

-where there are special circumstances clearly demonstrating the

inadequacy of an appeal that the special civil action of certiorari or prohibition
may exceptionally be allowed. (Quinon vs Sandiganbayan, 271 SCRA 575)

GR: Certiorari is NOT a substitute for appeal

Exceptions:

1.) Questioned order is an oppressive exercise of authority

2.) Appeal may also be considered as a petition for certiorari
3.) Appeal made from an interlocutory order of default maybe treated
as certiorari to prevent injustice
4.) The fact that the error is a mere error of judgment and not of
jurisdiction correctible by appeal and not by certiorari has been
considered as a mere technicality which would have accomplished
nothing substantial except to deny to the petitioner the right to
litigate the matter he raised
5.) Capricious dismissal of criminal actions
6.) Certiorari as a remedy is available where the Municipal Trial Court
issued a writ of immediate execution for failure to post a
supersedeas bond although the same was unnecessary. While appeal
is available, it would not be adequate, slow, insufficient and will not
promptly relieve a party from the injurious effects of the order
complained
7.) Where, however, the application of this rule will result in a manifest
failure or miscarriage of justice, the rule may be relaxed

-Being interlocutory, an order denying a demurrer to evidence is NOT

appealable. Neither can it be the subject of a petition for certiorari. After
such denial, the petitioners should present their evidence and if the decision
of the trial judge would be adverse to them, they could raise on appeal the
same issues raised in the demurrer.
HOWEVER, it is also settled that the rule admits of an exception, i.e. when
the denial of a demurrer is tainted with grave abuse of discretion amounting
to lack or excess of jurisdiction

-Writ of certiorari may not be used to correct a lower tribunals evaluation of

the evidence and factual findings. In other words, it is not a remedy for mere
errors of judgment, which are correctible by an appeal or a petition for
review under Rule 45 of the Rules of Court
-in Torralba vs Sandiganbyana, certiorari, prohibition and mandamus was
granted directing Ombudsman to complete the preliminary investigation
-Certiorari was allowed as a remedy to annul dismissal of the petition for
review by the Secretary of Justice

-Indeed, there are instances when the SC relaxed the application of Rule 65
on certiorari and allowed the writ to issue EVEN while appeal was available in
the interest of justice or due to the dictates of public welfare and for the
advancement of public policy or where the broader interests of justice and
equities warrant such extraordinary recourse. ( Marahay vs Melicor, 181
SCRA 811)

-Certiorari was allowed in Allado vs Dioknoto annul the order of the RTC
Judge for the issuance of warrant of arrest on the ground that there was no
probable cause
-Certiorari was allowed against an order denying a motion to dismiss a
complaint for malicious prosecution it clearly appearing from the face of the
complaint that none of the requisites thereof namely: x x x was alleged
-Availment of Certiorari when appeal is available may result in the judgment
of the trial court becoming final and executor. (Chiquillo vs Asuncion, 83
SCRA 248)

Thus, while holding that doctrinally entrenched is the general rule that
certiorari is NOT a substitute for a lost appeal, the Court pointed to several
exception to this rule, listed by JUSTICE REGALADO, viz:
5

-Thus, the filing of a petition for certiorari may not be an

abandonment of an appeal where the remedies are not
incompatible, such as an appeal from the final judgment and
certiorari against the order denying the motion for new trial based
on newly discovered evidence where appeal therefrom would not be
adequate. (St. Peter Memorial vs Campos, 63 SCRA 180)

1.) Where the appeal does not constitute a speedy and adequate
remedy, as where 33 appeals were involved from orders issued in a
single proceeding which will inevitably result in a proliferation of more
appeals;
2.) Where the orders were also issued either in excess of or without
jurisdiction;
3.) For certain special consideration, as public welfare or public policy and
the cases cited therein;
4.) Where in criminal actions, the court rejects rebuttal evidence for the
prosecution as, in case of acquittal, there could be no remedy;
5.) Where the order is a patent nullity; and
6.) Where the decision in the certiorari case will avoid future litigations

Right to appeal must still be available

-While the special civil action of certiorari may be availed of in the
alternative situation where an appeal would not constitute a plain,
speedy and adequate remedy, this is on the theoretical assumption
that the right to appeal is still available in the case.

-Since the probate court is w/o jurisdiction to pass upon the issue of title.
The case was considered as a clear exception to the general rule that
certiorari is not a substitute for a lost appeal because the trial courts
decision and resolutions were issued w/o or in excess of jurisdiction, which
may thus be challenged or attacked at any time.

Need to Exhaust remedies; motion for reconsideration

-In certiorari proceedings, the cardinal rule is that the Court must be
given the opportunity to correct itself
-Before a petition for certiorari in a higher court, the attention of the
lower court should first be called to its supposed error and its
correction should be sought. If this is not done, the petition should
be denied. The reason for this rule is that the issue which courts of
justice are bound to decide should not summarily be taken from
them and submitted to an appellate court without first giving such
lower courts the opportunity to dispose of the same with due
deliberation. (Butuan Bay Wood Export Corp. vs CA, 97 SCRA 297)

-Certiorari may be allowed where the appeal does not provide a speedy and
is inadequate

Appeal AND Certiorari availed at the same time

-After a judgment had been rendered and an appeal therefrom had
been perfected, a petition for certiorari relating to certain incidents
therein may prosper where the appeal does not appear to be a plain,
speedy and adequate remedy. Hence, appeal and certiorari are NOT
remedies that exclude each other. (Lansang vs CA, 84 SCRA 230)

General Rule: Motion for reconsideration MUST first be filed before

resorting to certiorari
The filing of such motion is intended to afford public respondent an
opportunity to correct any actual or fancied error attributed to it by
way of re-examination of the legal and factual aspects of the case.

- she is not barred from applying for the extraordinary reedy of

certiorari since appeal is not an adequate remedy to correct lack or
excess of jurisdiction because appeal cannot promptly relieve the
petitioner from the injurious effects of an invalid order.
6

EXCEPTIONS:

10.) Where the proceedings was ex parte or in which the petitioner

had no opportunity to object;

1.) Where public welfare and the advancement of public policy so

dictate, and the broader interests of justice so require;
2.) Where the orders complained of were issued in excess of or
without jurisdiction;
3.) Where appeal was not considered the appropriate remedy, such
as appeal from orders of preliminary attachment or appointment
of a receiver;
4.) When it would raise the same points.

A motion for reconsideration may be dispensed with, when it would have

been useless.
-When the questions raised before the SC are the same as those which were
squarely raised in and passed by the lower court, the filing of the MR in said
court before certiorari can be instituted in the SC is no longer a prerequisite.

-Plainly, the issue raised before the appellate court was

the same question presented before and passed upon by the
lower court, there is no necessity for filing a motion for
reconsideration prior to taking recourse to a writ of
certiorari. The trial court already had the opportunity to
consider and rule squarely on the question of jurisdiction, so
that it would already be pointless to file a motion for
reconsideration. The rule requiring exhaustion of remedies
does not call for an exercise in futility.

-The regulation or administration of educational institution, especially on

the tertiary level is invested with public interest. Hence, the haste with which
the solicitor general raised these issues before the appellate court is
understandable. Respondents petition for certiorari did not require prior
resort to a motion for reconsideration. (Indiana Aerospace University vs
CHED, 356 SCRA 367)

Certiorari may be resorted to even if there is a pending motion for

reconsideration

-a motion for reconsideration would have been needless

since the trial courts resolution already left petitioners with
no other plain, speedy and adequate remedy in the ordinary
course of law

-It was held that certiorari and prohibition are not premature
despite the pendency of petitioners motion for reconsideration
where the permanent preliminary injunction complained of is part, in
fact, the main part, of the partial judgment complained of. This
judgment partakes of the nature of a writ of preliminary injunction
and is effective immediately. Being forthwith injurious to the public
interest represented here by the Director of Forestry, and to the
interest that Valeriano Bueno claims to have a right over the area in
which respondent Patanao was engaged in logging, and considering
the courts delay in acting on the motion for reconsideration,
petitioners were justified in filing the petition for certiorari and
prohibition without waiting for the resolution of the motion for
reconsideration of the Philippine Constabulary. (Bueno vs Ortiz, 23
SCRA 1151)

5.) Where the error is patent or the order is void;

6.) Where relief is extremely urgent as when the court has already
ordered execution of partial summary judgment. Where
petitioners property is scheduled to be sold on execution there
is no need to wait for the resolution on a motion for
reconsideration
7.) When the issue raised is one purely of law
8.) Where petitioner was deprived of due process and there is
extreme urgency for relief
9.) Where, in a criminal case, relief from an order of arrest is urgent
and the granting of such relief by the trial court is improbable
7

-A petition for certiorari against an order prohibiting execution was,

HOWEVER, held to be PREMATURE where the petitioners did not wait for the
resolution of the respondent SEC on their prayer that the appeal should be
disallowed

-Certiorari by non-party to annul the order of the probate court

allowing the construction of a fence of the lots belonging to the
estate was not allowed for lack of legal standing, viz., material
interest as distinguished from a mere incidental interest. The term
person aggrieved is not to be construed to mean any person who
feels injured by the lower courts order, but pertains to one who was
a party in the proceedings before the lower court.

-Similarly, a filing of a motion for reconsideration en banc of the decision of

the COMELEC division should first be filed before a petition for certiorari may
be filed in the SC. Only and final orders of the COMELEC en banc may be
brought to the Supreme Court on certiorari

-Where there is no grave abuse of discretion, an order denying a motion to

dismiss the criminal case is NOT annullable.

-But the invoked corrective and supervisory jurisdiction of the appellate

court could not be broadened so as to include a review of the questioned
order as to its intrinsic correctness or as to the merits of the controversy as
adjudged in the trial courts decision which is the proper subject of the
pending appeal.

-Certiorari maybe dismissed without hearing even if an order to answer has

been issued
-QUESTIONS OF FACT ARE IMPROPER IN CERTIORARI
GR:-review of facts and evidence is not the province of the
extraordinary remedy of certiorari

Certiorari allowed where annulment of judgment is inadequate

EXC:

-In Matanguihan vs Tengco, where, by declaring that an action for

annulment of judgment is not a plain, speedy and adequate remedy,
this court in effect affirmed that certiorari is an appropriate remedy
against judgments or proceedings alleged to have been rendered or
held without valid service of summons.

-Factual findings by NLRC may be reviewed under Rule 65

> under Sec 9 of BP 129 the appellate courts, pursuant to
the exercise of its original jurisdiction over petitions for
certiorari, has the power to review NLRC cases, which
extends to the factual findings of the labor arbiter when
these are at variance with those of the NLRC.

-Certiorari maybe commenced at once in case of URGENT relief from an

implementary order

> In St. Martin Funeral Homes vs NLRC, it was held that the
special civil action of certiorari is the mode of judicial review
of the decisions of the NLRC either by this Court and the
Court of Appeals, although the latter court is the appropriate
forum for seeking the relief desired in strict observance of
the doctrine on the hierarchy of courts and that, in the
exercise of its power, the Court of Appeals can review the
factual findings or the legal conclusions of the NLRC.

Non-Party NOT allowed to file petition for certiorari

-a non-party could NOT file a petition for certiorari to assail the order
of the trial court. He does not possess the requisite standing to file
such suit. The remedy is to intervene in the trial court at any time
before the rendition of judgment.
8

> The Court of Appeals is authorized to receive evidence in

original special civil actions for certiorari, prohibition and
mandamus under Rules 46 and 65 of the Rules of Court.

A writ of certiorari is an equitable relief and the court may withhold the
same when the ends of justice and equity would not be served thereby.

>However, where, as in the instant case, the findings of the

NLRC contradict those of the Labor Arbiter, a departure from
the general rule is warranted. Thus, the Court may look into
the records of the case and re-examine the questioned
findings. Where the NLRC and the Labor Arbiter disagree of
their finding of facts, the Court can review the records to
determine which findings should be preferred as more
comformable to the evidentiary facts.

Section 2 Petition for Prohibition

Prohibition
-a writ by which a superior court prevents inferior courts, a
corporation, board or persons from usurping or exercising, a
jurisdiction or power with which they have not been vested
-is that process by which a superior court prevents an inferior court
or tribunal possessing judicial or quasi-judicial powers from
exceeding its jurisdiction in matters over which it has cognizance or
usurping matters not within its jurisdiction to hear or determine

Where the petition for certiorari was obviously intended to frustrate the
judgment by delaying execution, it cannot be granted. (Cortez vs Villaluz, 24
SCRA 146)

-commanding them to CEASE from the prosecution of the same,

upon a suggestion that the cause originally, or some collateral
matter arising therein, does not belong to that jurisdiction, but to
the cognizance of some other court

A Superior Court is justified to interpose its supervisory authority through

the extraordinary remedies of Certiorari, Prohibition or Mandamus when the
petitioners claim is clearly tenable or when the broader interest of justice or
public interest requires it.( Gamboa vs Ruiz, 108 SCRA 1)

Function of Prohibition
-to prevent the doing of some act which is about to be done

Certiorari is available in case of disregard of the requirements of a search

warrant or where the order is a patent nullity despite the availability of
appeal or where it cannot afford an adequate and expedite relief.

-not intended to provide a remedy for acts already accomplished

-Prohibition, HOWEVER, will give complete relief not only by
preventing what remains to be done but by undoing what has been
done

Certiorari may issue against an administrative body.

Prohibition
-directed against any tribunal,
corporation, board, or person
whether exercising judicial, or
ministerial function who has acted
without or in excess of jurisdiction or
with grave abuse of discretion, the
petitioner prays that judgment be
rendered commanding the

A court of justice will not interfere with purely administrative matters

addressed to the sound discretion of government agencies.
A judge commits a grave abuse of discretion, amounting to a lack of
jurisdiction in giving due course to an appeal where the appeal period had
expired.

Certiorari
-petitioner seeks to annul or modify
the proceedings of any tribunal,
board, or officer exercising judicial
functions that has acted without or
in excess of jurisdiction, or with
grave abuse of discretion

respondent to desist from further

proceeding in the action or matter
specified in the petition.
-is intended to prevent a power
about to be exercised without
jurisdiction
-preventive remedy to restrain the
doing of some act which is about to
be done
-does not require the inclusion of a
private party as respondent in
petitions for prohibition
Prohibition
-negative remedy which forbids the
doing of certain things which ought
not be done
-object is to prevent one from
executing or continuing to execute
an act

orderly administration of justice, or to prevent the use of the strong

arm of the law in an oppressive or vindicative manner or a
multiplicity of actions.
-intended to annul proceedings

Grave Abuse of Discretion

-prohibition must be issued only after the reviewing tribunal shall
have convinced itself that the lower court has exercised its power in
an arbitrary or despotic manner, by reason of passion or personal
hostility, and it must be so patent and gross as would amount to an
evasion, or to a virtual refusal, to perform the duty enjoined by law
(Solidum vs Hernandez, 7 SCRA 320)

-corrective remedy and refers to acts

already consummated
-requires the inclusion of a private
party

Mandamus
-affirmative remedy commanding
certain things to be done

-The writ will not issue where it does not appear that want of jurisdiction was
pleaded in the Court whose action is sought to be prohibited. (Herrera.
Remedial Law III.2006 Ed page 323)

-has for its object to compel

compliance with a function which
the law prescribes as a duty resulting
from an office, trust or station

-A special civil action of prohibition is proper only upon a showing that the
aggrieved party has no remedy on appeal or any other plain, speedy and
adequate remedy in the ordinary course of law. (Capistrano vs Pea, 78 Phil
749)
-The doctrine that there is no time frame for filing petition for certiorari or
prohibition but may be filed within a reasonable period is NO longer true.
Under Sec. 4 hereof the period is sixty (60) days.

Prohibition
Injunction
-strikes at once to the jurisdiction of -usually recognizes the jurisdiction of
the Court
the Court before which the
proceeding is pending

-Prohibition is the remedy to correct an erroneous assumption of jurisdiction

where: two tribunals exercised jurisdiction over two cases involving the same
subject matter, issue, and parties, and ultimately rendered conflicting
decisions. P.324

Remedy Against Denial of Partition

-the losing partys remedy is an ORDINARY APPEAL to the Court of
Appeals by filing a notice of appeal with the court that rendered the
judgment or order appealed from

-Since the right to prohibition is defeated not by the existence, but by the
adequacy, of a remedy by appeal, it may accordingly be granted where the
remedy by appeal is not plain, speedy or adequate.

Object of Prohibition
-Its principal purpose is to prevent an encroachment, excess,
usurpation or assumption of jurisdiction on the part of an inferior
court or tribunal. The writ is granted where it is necessary for the
10

Section 3 Mandamus

b.) To compel the Registrat of Deeds to register an instrument which

seeks the reformation of an extrajudicial settlement of estate
consisting of registered lands. (Dulay vs Herrera, 5 SCRA 922)
c.) To compel issuance of writ of execution after the judgment had
become final and executory. (Phil. Trust Company vs Santamaria, 53
Phil 463)
d.) To compel dismissal of complaint without a cause of action.
e.) Mandamus to disclose information on the civil service eligibilities of
certain persons based on the fundamental right to information on
matters of public concern xxx requirement is satisfied by the mere
fact that petitioner is a citizen. (Chavez vs PCGG, 299 SCRA 744)
f.) If govt. prosecutors make arbitrary choices of those they would
procesute under a particular law, excluding from the indictment
certain individuals against whom there is the same evidence as those
impleaded, the fault of is not the law but in the prosecutors whose
duty it is to file the corresponding information/complaint against all
persons who appear to be liable for the offense involved; a duty that
should be performed responsibly, without discrimination,
arbitrariness or oppression. If that duty is not performed, the
persons aggrieved xxx may avail of the remedy of mandamus to
compel compliance.

Mandamus
-latin we command
-a writ issued in the name if the State, to an inferior tribunal, a
corporation, board or person, commanding the performance of an
act which the law enjoins as a duty resulting from an office, trust or
station
Purpose of Mandamus
-employed to compel the performance, when refused, of a
ministerial duty, this being its main objective. It does not lie to
require anyone to fulfil a contractual obligation or to compel a
course of conduct, nor to control or review the exercise of
discretion.
Grounds to Issue
Mandamus lies under any of the ff cases:
(1) Against any tribunal which unlawfully neglects the performance
of an act which the law specifically enjoins as a duty;
(2) In case any corporation, board or person unlawfully neglects the
performance of an act which the law enjoins as a duty resulting
from an office, trust or station; and
(3) In case any tribunal, corporation, board or person unlawfully
excludes another from the use and enjoyment of a right or office
to which such other is legally entitled; and there is no other
plain, speedy and adequate remedy in the ordinary course of law

-Mandamus will lie to compel a judge or other public officer to perform a

duty specifically enjoined by law once it is shown that the judge or public
officer has unlawfully neglected the performance thereof. A court neglects
the performance of its duties only after demand has been made upon it,
refuses to perform the same. (Mayuga vs CA, 261 SCRA 309)
Clear Legal Right and Imperative Duty

Cases where mandamus was allowed (J. Yap slides)

-on the part of the petitioner, it is essential to the issuance of a writ
of mandamus that he should have a clear legal right to the thing
demanded and it must be the imperative duty of the respondent to
perform the act required.

a.) To compel the President and Board of Regents of UP to restore the

Dean of the College of Education who was transferred as Special
Asst. to the Office of the Pres to his position as Dean of the College
of Education. (Sta. Marina vs Lopez, 31 SCRA 637)
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-the writ will not issue to compel an official to do anything which is

not his duty to do or which is his duty not to do, orto the applicant
anything to which he is not entitled by law. The writ neither confers
powers nor imposes duties. It is simply a command to exercise a
power already possessed and to perform a duty already imposed.

MANDAMUS WILL LIE TO COMPEL ACTION, OR TO REMEDY OFFICIAL

INACTION. (Gonzales vs Board of Pharmacy, 20 Phil 367)
Does not apply to enforce contractual obligations
-Mandamus never lies to enforce to enforce the performance of a
contractual obligation, the petitioners remedy being an original
action in the CFI for specific performance. (Namarco vs Cloribel, 23
SCRA 398)

-if there is DISCRETION as to the taking or non-taking of the action

sought there is no clear legal duty, mandamus will NOT lie.
-a clear legal right within the meaning of this rule means a right
which is clearly founded in, or granted by law; a right which is
inferable as matter of law

-a contractual obligation is NOT a duty specifically enjoined by law

resulting from office, trust or station

-Mandamus refers only to acts enjoined by law to be done. The duty

must be clear

Who may file petition

-the relator in order to obtain a mandamus must allege and show
that the respondents are excluding him from the office or right to
which he is entitled , and that the respondent are unlawfully
neglecting the performance of an act or acts which the law especially
enjoins as a duty from their office, trust or station

-there must be a specific legally duty resulting from office, trust or

station
-while it may not be necessary that the duty be absolutely expressed,
it must however, be clear.

Private Right
-the relator must show some
personal or special interest in the
subject matter, since he is regarded
as the real party in interest, and his
right must clearly appear

Ministerial Duty
Discretionary Duty
-is that which is so CLEAR and -is that which by its nature requires
SPECIFIC as to leave no room for the the exercise of judgment
exercise of discretion in its
performance
-if the law imposes a duty upon a
public officer, and gives him the right
-purely ministerial are acts to be to decide how or when the duty shall
performed in a given state of facts, in be performed, such duty is
a prescribed manner, in obedience to discretionary and not ministerial
the mandate of legal authority
without regard to the exercise of his -where it is discretionary, the officer,
own judgment upon the propriety or board or tribunal, maybe compelled
impropriety of the act done
to act, but not to act in a particular
manner. (Montalbo vs Santamaria,
54 Phil 955)

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Public Right
-when the question is one of public
right and the object of the
mandamus is to procure the
enforcement of a public duty, the
people are regarded as the real
parties-in-interest, and the relator at
whose instigation the proceedings
are instituted need not show that he
has any legal or special interest in
the result, it being sufficient to show
that he is a citizen and as such is
interested in the execution of the
laws

Cases where Mandamus was NOT allowed

Discretion of Constitutional Commissions

1.) To compel a municipal treasurer to pay the back salaries of several

dismissed policemen if there is no ordinance appropriating the
amount to cover their back salaries; (Discanso vs Gatmaytan, 109
Phil 916)
2.) The determination of whether an applicant for a visa has a nonimmigrant status or whether his entry into the Philippines would be
contrary to public policy; (Sy Ha vs Galang, 7 SCRA 797)
3.) The grant or refusal of a motion to intervene; (Morada vs Caluag, 5
SCRA 1128)
4.) The remedy of mandamus is available only to compel the
performance of a ministerial duty but not where the reinstatement
involves the exercise of sound judgment and discretion by the
appointing party; absent a showing of a clear and certain right of
petitioner. (Marcelo vs Tantuico, Jr., 142 SCRA 439)
5.) Mandamus does not lie to compel the Solicitor General to represent
respondent judge whose decision increasing bail has been nullified
by the Court of Appeals. The Solicitor General has discretion to
prosecute or defend a case. (Calderon vs Solicitor General, 215 SCRA
876)

-the discretion of a Constitutional Commission like the Civil Service

Commission CANNOT be controlled by mandamus. At most, the Civil
Service Commission can only be required to act in accordance with
the facts before it and applicable law and regulations and not to
decide for the petitioner or the private respondent or otherwise. The
Commission is precisely trying to carry out its duty and must be given
an opportunity to do so. (Pintor vs Tan, Jr., GR No. 84022)
Mandamus to compel corporation to grant holiday pay
-True it is that mandamus does not lie to compel the performance of
an act which the law does not clearly enjoin as a duty and that
mandamus is not proper to enforce a contractual obligation, the
remedy being an action for specific performance. In the case at bar,
however, in view of the aforecited subsequent decisions of the court
clearly defining the legal duty to grant holiday pay to monthly
salaried employees is an appropriate equitable remedy.
To compel approval of record on appeal
-Thus, a judge cannot be compelled by such special civil action to
approve an appeal which was perfected after the reglementary
period to do so had expired

When certiorari petition was considered a mandamus petition (J. Yap Slides)
-Only question is whether or not the judge has unlawfully neglected to
perform an act which the law specifically enjoins as a duty xxx correlative
duty of the respondent judge to accept the amended complaint filed before
the responsive pleading is served xxx respondent in refusing to permit the
amendment of the complaint unlawfully neglected to perform an act which
the law specifically enjoins as a duty. (Breslin vs Luzon Stevedoring, 84 Phil
618)
Rule: Writ will NOT issue to control discretion
Exceptions:
a. Grave abuse of discretion
b. Manifest injustice
c. Palpable excess of authority (Angchanco, Jr. vs Ombudsman, 268
SCRA 301)

Academic freedom of schools

-A school may refuse to enrol a student for academic deficiency and
may not be compelled by mandamus to enrol her, for to grant such
relief would be doing violence to the academic freedom enjoyed by
the respondent school enshrined under Article XIV, Section 5, Par. 2
of our Constitution which mandates that all institutions of higher
learning shall enjoy academic freedom. (Tangonan vs Pano, 137
SCRA 245)
-Schools of learning are given ample discretion to formulate rules
and guidelines in the granting of honors for purposes of graduation.
This is part of academic freedom. Within the parameters of these
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rules, it is within the competence of universities and colleges to

determine who are entitled to the grant of honors among the
graduating students. Its discretion on this academic matter may not
be distributed much less controlled by the courts unless there is
grave abuse of discretion in its exercise. (University of San Carlos vs
CA, 166 SCRA 570)

-While it is true that in the performance of an official duty or act involving

discretion, the corresponding official can only be directed by mandamus to
act BUT NOT to act one way or the other.
*Exceptions:
a.) When there is grave abuse of discretion

-Academic freedom encompasses the freedom to determine for

itself on academic grounds: who may teach, what may be taught,
how it shall be taught, ad who may be admitted to study. The right of
the school to confirm and validate the teaching method of Dr.
Daleon is at once apparent in the third freedome i.e., how it shall be
taught.

b.) When it will result to manifest injustice

c.) When there is palpable excess of authority

-It is proper to compel a quasi-judicial agency by mandamus to exercise its

discretion in a case already ripe for adjudication and long awaiting the proper
disposition. As to how this discretion is to be exercised, however, is a realm
outside of the office of the special civil action of mandamus. It is elementary
that mandamus does not lie to control discretion. (GMCR, Inc. vs Bell
Telecommunications, 271 SCRA 790)

Mandamus Against Public Officials

Generally, Mandamus will NOT lie from one branch of the
government to a coordinate branch for the obvious reason that one
is not inferior to the other.

To disclose matters of public concern

-exercise of administrative discretion when not abused is not subject

to contrary judgment or control of court

-Mandamus lies against the civil service commission to disclose

information on the civil service eligibilities of certain persons based
on the fundamental right to information on matters of public
concern. The requirement of personal interest is satisfied by the
mere fact that the petitioner is a citizen.

Failure to exhaust administrative remedies

-Before a writ of mandamus may be issued, it is obligatory upon the
petitioner to exhaust all remedies in the ordinary course of law. He
must show that the duty sought to be performed must be one which
the law specifically enjoins as a duty resulting from an office.

Availability of Mandamus to compel filing of criminal cases

-the decision of the prosecutor may be reversed or modified by the
Secretary of Justice or in special cases by the President of the
Philippines. But even the Supreme Court cannot order the
prosecution of a person against whom the prosecutor does not find
sufficient evidence to support at least a prima facie case. The courts
try and absolve or convict the accused but as a rule have no part in
the initial decision to prosecute him.

Exception
a.) Where issue is purely of law
-There is no need of prior demand before mandamus may be
instituted against a government agency where the issue is purely
one of law

-the possible exception is where there is an unmistakable showing of

a grave abuse of discretion that will justify judicial intrusion into the
precints of the executive.
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Section 4 When and Where petition filed

-The Sandiganbayan shall exercise exclusive original jurisdiction over

petitions for the issuance of the writs of mandamus, prohibition,
certiorari, habeas corpus, injunction, and other ancillary writs and
processes in AID OF ITS APPELLATE jurisdiction.

-60 days from notice of the judgment, order or resolution

-in case of MR- 60 days shall be counted from the notice of the
denial

Policy of Resort to SC only when Extraordinary Writ not available in other

courts

-can be filed in the SC, RTC, CA and Sandiganbayan

-Where the issuance of the extraordinary writ is also within the

competence of the Court of Appeals or to the Regional Trial Court, it
is to either of these courts that the specific action for the writs
procurement must be presented. (Vergara vs Suelto, 156 SCRA 753)

-No extension of time to file the petition shall be granted except for
compelling reason and in no case exceeding 15 days

Three Material Dates

-We, therefore, reiterate the judicial policy that this Court will NOT
entertain direct resort to it unless the redress desired cannot be
obtained in the appropriate courts or where exceptional and
compelling circumstances justify availment of a remedy within and
calling for the exercise of our primary jurisdiction. (Vide Manalo vs
Gloria, 236 SCRA 130)

1.) Receipt of notice of decision or resolution denying the motion

for reconsideration or new trial;
2.) The filing of the motion for reconsideration; and
3.) Receipt of the denial of the motion for reconsideration must be
alleged otherwise the petition shall be denied.

-Even granting arguendo that petitioners have a cause of action ripe

for the extraordinary writ of certiorari, there is here a clear disregard
of the hierarchy of courts, and no special and important reason or
exceptional and compelling circumstance has been adduced why
direct recourse to us should be allowed. While we have concurrent
jurisdiction with Regional Trial Courts and with the Court of Appeals
to issue writs of certiorari, prohibition, mandamus, quo warranto,
habeas corpus and injunction, such concurrence give petitioners no
unrestricted freedom of choice of court of forum. (Justice Davide)

-the petition for certiorari under Rule 65 filed beyond the 60 days
period was allowed in view of the primordial interests of substantial
justice.

Necessity of proof of service

-among the requirements thereof is that the filing of the petition
shall be accompanied with proof of service thereof on the
respondent, etc.

-A direct invocation of the SCs original jurisdiction to issue these

writs should be allowed only when there are special and important
reasons therefor, clearly and specifically set out in the petition. This
is established policy. It is a policy necessary to prevent inordinate
demands upon the Courts time and attention which are better
devoted to those matters within its exclusive jurisdiction, and to
prevent further over-crowding of the Courts docket. (People vs
Cuaresma, 172 SCRA 415)

Jurisdiction to Issue Writs of Certiorari, Prohibition and Mandamus

-the authority to issue Writs of CPM involves the exercise of
ORIGINAL JURISDICTION. Thus, such authority is always conferred,
either by the Constitution or by law.
-The COMELEC is vested with exclusive authority to hear and decide
petitions for certiorari, prohibition and mandamus involving election
cases
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-In Santiago vs Vasquez, this Court forcefully expressed that the

propensity of litigants and lawyers to disregard the hierarchy of
courts must be put to a halt, not only because of the imposition
upon the precious time of this Court, but also because of the
inevitable and resultant delay, intended or otherwise, in the
adjudication of the case which often has to be remanded or referred
to the lower court, the proper forum under the rules of procedure,
or as better equipped to resolve the issues since this Court is not a
trier of facts.

petition suffers from a failure to denominate the proper party. (Tirol,

Jr. vs COA, 337 SCRA 198)
-HOWEVER, in Yao vs Perello, 414 SCRA 474, the court held that
nothing in Section 2, Rule 65 requires that in a petition for
prohibition the inclusion of a private party as a respondent

Duty of Private Respondent to Represent Public Respondent

-Duty of the private respondent to appear and defend both in
his/her behalf and in behalf of the Court or Judge whose order or
decision is at issue. The judge should maintain a detached attitude
from the case and should not waste his time by taking an active part
in a proceeding which relates to his official actuation in a case but
should apply himself to his principal task of hearing and adjudicating
the cases in his court. He is merely a nominal party to the case and
has no personal interest nor personality therein. (Turqueza vs
Hernando, 97 SCRA 483)

-Cases which depend on disputed facts for decision cannot be

brought immediately before appellate courts as they are not trier of
facts. When cases brought before the appellate court do not involve
factual but legal questions, a strict application of the rule of hierarchy
of courts is not necessary.

Petition Filed in CA Against MTC

-Where a petition for certiorari against the MTC is filed before the
CA, the latter should not dismiss the petition on the ground that the
proper court is the RTC since jurisdiction to issue such writs is
concurrent. The CA may, however, remand the case to the RTC
where there is no cogent reason advanced why the appellate court
should hear the case. This is because it is the Court which exercises
administrative supervision over the MTC as the next higher tribunal
in the judicial hierarchy. (De Jesus vs Roxas, 212 SCRA 823)

Judge as respondent should not answer

-The Court has reminded judges of the lower courts that a judge
whose order is challenged in an appellate court need not file any
answer, or take an active part in the proceedings UNLESS expressly
directed by order of the Court.
-in signing and filing a comment with the court on behalf of one of
the parties, respondent judge engaged in the private practice of law.
The practice of law is NOT LIMITED to the conduct of cases in court
or participation in court proceedings but includes the preparation of
pleadings or papers in anticipation of litigation. (Tuzon vs Judge
Loreto Cloribel-Purugganan, 370 SCRA 511)

-With respect to quasi-judicial agencies, the petition may be filed

only in the Court of Appeals

Section 5 Respondents and costs in certain cases

Exception where personal motives attributed to judge

Remedy under Rule 65 MUST be against proper party

-Where, however, the actuations of a judge are assailed on grounds,

other than legal ones, and imputing to the judge personal motives,
the judge cannot be blamed if he takes personal interest in trying to
disprove the imputations. (Montalban vs Canonoy, 38 SCRA 1)

-Where the tribunal whose action is sought to be reviewed is the

Office of the Ombudsman yet, petitioner impleaded the Commission
on Audit as respondent, and not the Office of the Ombudsman. The
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Section 6 Order to Comment

Section 8 Proceedings after comment is filed

-If the petition is sufficient in form and substance to justify such

process, the court before giving due course shall issue an order
requiring the respondent to comment on the petition within 10 days
from receipt of a copy thereof

-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 submission of memoranda or the expiration of the
period for the filing thereof the court finds that the allegations of the
petition are true, it shall render judgment for the relief prayed for or
to which the petitioner is entitled.

-requiring a party to comment is NOT a grant to give due course to

the petition but a mere recognition that the petition is sufficient in
form and substance. It is after the comment is filed that the court
determines whether or not to give due course to the petition under
Section 8 of the rule.

Effect of Failure to Comment/ Answer

Section 7 Expediting proceedings; injunctive relief

-The non-filing of the comment/answer by the private respondent

CANNOT be interpreted as an admission of the allegations in the
petition.

-It is elementary that the mere pendency of a special civil action for
certiorari, commenced in relation to a case pending before a lower
court, does not interrupt the course of the latter when there is no
writ of injunction restraining it. (PEZA vs Alikpala, 160 SCRA 31)

-Upon the expiration of the period to file his comment, the court
may hear the case, or require the parties to submit memoranda and
if after such hearing or submission of memoranda the court finds
that the allegations of the petition are true, it shall render judgment
for such of the relief prayed for as the petitioner is entitled to.

-The inevitable conclusion is that for as long as no writ of injunction

or restraining order is issued in the special civil action for certiorari,
no impediment exists and there is nothing to prevent the lower court
from exercising its jurisdiction and proceeding with the case pending
before it. And even if such injunctive writ or order is issued, the
lower court nevertheless continues to retain its jurisdiction over the
principal action.

Award of Damages
-No damages can be assessed in Certiorari the merits not being
before the court.
Damages maybe awarded in Mandamus where bad faith is shown.

-Thus the filing of a petition for certiorari from denial of motion to

dismiss does NOT interrupt the period to answer; hence, defendant
was properly declared in default.

Section 9 Service and enforcement of order or judgment

Procedural Outline

-The rule of judicial courtesy would apply only if there is a strong

probability that the issues before the higher court would be
rendered moot and moribund as a result of the continuation of the
proceedings in the lower court.

1.) Filing of Petition

2.) Outright dismissal
3.) Order to comment if the petition is sufficient in form and
substance

17

>The court, however, may dismiss the petition if it finds the

same to be patently without merit, prosecuted manifestly
for delay, or that the questions raised therein are too
unsubstantial to require consideration.

4.) The court may require the filing of a reply and such other
pleadings as it may deem necessary and proper
5.) Determination of Due Course
6.) The court may hear the case or require the parties to submit
memoranda
7.) Judgment
8.) Execution
END

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