500 SUPREME COURT REPORTS ANNOTATED

Certiorari Under Rule 45 and Special Civil Action of

Certiorari Under Rule 65

ANNOTATION

CERTIORARI UNDER RULE 45 AND SPECIAL CIVIL

ACTION OF CERTIORARI UNDER RULE 65
By *
ALICIA GONZALEZ-DECANO

___________________

The Court of Appeals rendered a decision on July 31, 2001

setting aside the assailed orders of the Regional Trial Court
of Lipa City, Br. 12, reinstating the case in its docket. The
appellate court ruled that there was no evidence on record
that the respondent deliberately failed to prosecute their
complaint for an unreasonable period of time. It also held
that the rules of court should be liberally applied.
Upon the denial of the petitionerÊs motion for
reconsideration, said petitioners filed the instant petition
for review on certiorari. They mentioned that the remedy of
the respondents from the assailed order of the trial court
was to file a petition for review on certiorari under Rule 45
of the Rules of Court, considering that the issues raised by
them in the Court of Appeals also assert that even if appeal
was the proper remedy of the respondents, the trial court
nevertheless did not err in dismissing the amended
complaint with prejudice, considering the respondentsÊ
failure to comply with Section 1, Rule 18 of the Rules of
Court, as amended.
The Supreme Court granted the petition. The assailed
order of the Court of Appeals is reversed and set aside.
Order of the RTC, Lipa City, Br. 12 is reinstated and the
amended complaint was dismissed however without
prejudice.
_______________

* Law Professor, University of Pangasinan and Consultant and

Professorial Lecturer, UST Graduate School of Law.

501

VOL. 444, NOVEMBER 26, 2004 501

Certiorari Under Rule 45 and Special Civil Action of
Certiorari Under Rule 65

In this regard, it is worth discussing Petition for Review on

Certiorari under Rule 45 and Special Civil Action of
Certiorari under Rule 65

Appeal by Certiorari

Rule 45, Section 1 of the Rules of Court provides:

„A party desiring to appeal by certiorari from a judgment or final

order or resolution of the Court of Appeals, the Sandiganbayan, 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 shall raise only questions of law which must
be distinctly set forth.‰

This Rule is known as an appeal by certiorari. In appeal by

certiorari, the appellate or superior court can only review
questions or errors of law decided or committed by the
lower court as provided by Rule 45. Question on findings of
facts of the inferior tribunal cannot be reviewed on
certiorari. Moreover, the parties are the appellant, as
petitioner and the appellee as respondents (Elks Club vs.
Rivera, 80 Phil. 272, cited by Feria Noche, Civil Procedure
Annotated, Vol. 2, Phoenix Press, Inc., Q.C., 2001, p. 456).
An appeal by certiorari brings up for review errors of
judgment committed by a court with jurisdiction over the
subject of the suit and the persons of the parties or any
such error committed by the court in the exercise of its
jurisdiction amounting to nothing more then an error of
judgment. (Feria Noche, supra).
Incidentally, there is need to know the distinction
between questions of law and questions of facts.

Question of Law
A question of law exists when there is doubt or controversy
as to what the law is on a certain state of facts. A question
of law does not involve any examination of the probative
value

502

502 SUPREME COURT REPORTS ANNOTATED

Certiorari Under Rule 45 and Special Civil Action of
Certiorari Under Rule 65

of the evidence submitted by the parties. (Skippers Pacific,

Inc., et al. vs. Mira, et al., and the Court of Appeals, G.R.
No. 144314, November 21, 2002, 392 SCRA 371)
The Supreme Court is not a trier of facts. A question of
law exists when doubt or difference arises as what is the
pertaining law given a certain state of facts. (Western
Shipyard Services, Inc. vs. Court of Appeals, et al., G.R. No.
110340, May 28, 2001, 358 SCRA 257).
For a question to be one of law, the same must not
involve an examination of the probative value of the
evidence presented by the litigants or any of them. There is
a question of law in a given case when the doubt or
differences arises as to what the law is on certain state of
facts. (Ramos vs. Pepsi-Cola Bottling Co. of the Philippines,
et al., 19 SCRA 289 [1967]; Medina vs. Asistio, Jr., 191
SCRA 218 [1990]).
There is a question of fact when the doubt or difference
arises as to the truth or the falsehood of alleged facts.
(Ramos et al., Pepsi Cola, supra; Western Shipyard vs. CA,
supra).
When what is being questioned is the suffering of
evidence, it is a question of fact. (Paterno vs. Paterno, 183
SCRA 630).
When the query necessarily invites a calibration of the
whole evidence considering mainly the credibility of
witnesses, existence and relevancy of specific surrounding
circumstance, their relations to each other and to the whole
and the probations of the situation there is a question of
fact (Cheesman vs. Intermediate Appellate Court, 193 SCRA
93 [1991])
Questions on whether or not there was preponderance of
evidence to justify the award of damages or whether or not
there was a causal connection between the given set of
facts and the damage suffered by the private complainant
or whether or not the act from which the civil liability
might arise exists are questions of facts (Caiña vs. People,
213 SCRA 309 [1992])

503

VOL. 444, NOVEMBER 26, 2004 503

Certiorari Under Rule 45 and Special Civil Action of
Certiorari Under Rule 65

Factual findings of the Court of Appeals when supported by

substantial evidence are conclusive and binding on the
parties. Substantial evidence is that amount of relevant
evidence which a reasonable mind might accept as
adequate to justify the conclusion. (Western Shipyard vs.
Court of Appeals, supra)

Factual Findings of the Court of Appeals are Binding

on the Supreme Court:
Exceptions (Feria Noche, Vol. 2, supra)

In an appeal for the Court of Appeals to the Supreme

Court, an issue of fact and credibility cannot be raised,
because with a few exceptions, the Supreme Court has
insistently respected the findings of the Court of Appeals.
Such exceptions are:

(1) When the conclusion is a finding grounded entirely

on speculation, surmises or conjectures. (Joaquin
vs. Navarro, 93 Phil. 257 [1953]);
(2) When the inference made is manifestly mistaken,
absurd or impossible. (Luna vs. Linatoc, 74 Phil. 15
[1942]);
(3) When there is a grave abuse of discretion. (Buyco
vs. People, 95 Phil. 453 [1954]);
(4) When the judgment is based on a misapprehension
of facts. (Cruz vs. Sosing and CA, 94 Phil. 26
[1953]);
(5) When the findings of fact are conflicting (Casica vs.
Villaseca, 101 Phil. 1205 [1957]);
(6) When the Court of Appeals, in making its findings
went beyond the issues of the case and the same is
contrary to the admissions of both appellant and
 appellee. (Evangelista vs. Alto Surety, 103 Phil. 401
[1958]);
(7) When the findings of fact of the Court of Appeals
are contrary to those of the trial court. (Sacay vs.
Sandiganbayan supra);
(8) When the findings of fact are conclusions without
citations of specific evidence on which they are
based. (Ibid.)

504

504 SUPREME COURT REPORTS ANNOTATED

Certiorari Under Rule 45 and Special Civil Action of
Certiorari Under Rule 65

(9) When the facts set forth in the petition as well as in

the petitionerÊs main and reply briefs are not
disputed by the respondents. (Alsua-Betts vs. CA,
92 SCRA 332 [1979])
(10) When the finding of facts of the Court of Appeals is
premised on the supposed absence of evidence and
is contradicted by the evidence on record. (Salazar
vs. Gutierrez, 33 SCRA 242 [1970], all cases were
cited by Feria-Noche, supra).

Special Civil Action of Certiorari under Rule 65

Rule 65, Section 1 provides: „x x x when any tribunal,

board or officer exercising judicial or quasi-judicial
functions has acted without or in excess of its or his
jurisdiction, or with grave abuse of discretion amounting to
lack or excess of jurisdiction, and there is no appeal, or any
plain, speedy, and adequate remedy in the ordinary cause
of law, a person aggrieved thereby may file a verified
petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered annulling
or modifying the proceedings of such tribunal, board or
officer, and granting such incidental reliefs as law and
justice may require. x x x‰
Certiorari under Rule 65 is a remedy designed for the
correction of errors of jurisdiction and not errors of
judgment. (Moran, vol. 3, Rex Printing Co., Inc., 1980, p.
162.) Certiorari is a writ issued by a superior court to an
inferior court, board or officer exercising judicial or quasi-
judicial functions whereby the record of a particular case is
ordered elevated for review and correction in matters of
law. (Manila Securities Industrial Corporation vs. Central
Bond of Assessment, April 8, 114 SCRA 260 (1982) cited by
Feria-Noche, supra.)
A writ of certiorari is a prerogative writ, never
demandable as a matter of right, never issued except in the
exercise of judicial discretion. (Nunal vs. Commission on
Audit, 169 SCRA 356 (1989).

505

VOL. 444, NOVEMBER 26, 2004 505

Certiorari Under Rule 45 and Special Civil Action of
Certiorari Under Rule 65

In a special civil action of certiorari the only question that

may be raised is whether or not the respondent has acted
without or in excess of jurisdiction or with grave abuse of
discretion and the Court cannot correct errors of fact or law
which the lower court may have committed. (ELKS Club
vs. Rivera, 80 Phil. 272, 1948 cited by Feria-Noche, supra).
The writ of certiorari issues for the correction of errors of
jurisdiction only or grave abuse of discretion amounting to
lack or excess of jurisdiction. The writ of certiorari cannot
be used for any other purpose. It serves 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, or to relieve parties
from arbitrary acts of courts·acts where courts have no
power or authority in the law to perform.
Certiorari under Rule 65 is a remedy designed for the
correction of errors of jurisdiction and not errors of
judgment. (Nawasa vs. Municipality of Libmanan, L-27197,
May 31, 1987, 20 SCRA 337, cited by Moran, Vol. 3, supra).

Requisites for the Issuance of the Writ

The three requisites to be complied with before the writ of

certiorari is issued are the following:

(1) Tribunal, board or officer exercising judicial or

quasi-judicial functions;
 (2) Tribunal, board or officer has acted without or in
excess of jurisdiction or with grave abuse of
discretion; and
(3) There is no appeal, or any plain, speedy, and
adequate remedy in the ordinary cause of law.
(Feria-Noche, supra).

The remedy of certiorari under Rule 65 may be successfully

invoked both in cases wherein:

(1) an appeal does not lie, and

(2) the right to appeal having been lost with or without
the appellantÊs negligence, the court has no
jurisdiction to

506

506 SUPREME COURT REPORTS ANNOTATED

Certiorari Under Rule 45 and Special Civil Action of
Certiorari Under Rule 65

issue the order or decision which is the subject matter of

the remedy (Araneta, Inc. vs. Rodas, 81 Phil. 506 [1948]).
When is the special civil action for certiorari under Rule
65 available? Feria and Noche, supra, cited the following
situations when certiorari is available:

1. Certiorari is available when a motion for new trial

is wrongly denied (Feria-Noche, supra).
2. Certiorari is available in case of denial of petition
for probation despite evidence that applicant is
entitled thereto.
3. Certiorari lies against an order granting execution
pending appeal where the same is not founded upon
good reasons.
4. Certiorari lies when the trial court commits grave
abuse of discretion in ordering immediate execution
of judgment in ejectment case.
5. Remedy of certiorari is proper where order
complained of is a patent nullity despite existence
of appeal.

According to Feria-Noche, supra, the general rule is that a

petition for certiorari will not be entertained unless a
motion for reconsideration is filed in order to give the
respondent a chance to correct the error imputed to him.
The exceptions when previous motion for reconsideration is
unnecessary are:

1. where the issue raised is one purely of law;

2. where public interest is involved;
3. in cases of urgency;
4. where question of jurisdiction was squarely raised,
submitted to and met and decided by lower court;
and
5. where the order is a patent nullity.

When is certiorari not proper? According to Moran, Vol. 3,

supra, citing several cases therein, certiorari is not proper
in the following cases:

1. When ordinary appeal is available. One exception is

when appeal would be inadequate, slow, insufficient
and will not relieve petitioner from the injurious
effects of the order

507

VOL. 444, NOVEMBER 26, 2004 507

Certiorari Under Rule 45 and Special Civil Action of
Certiorari Under Rule 65

complained of. Another exception is when the decision of

the certiorari would avoid future litigations.

2. The existence of an appeal is a bar to writ of

certiorari, where such appeal is in itself a sufficient
and adequate remedy, in that it will promptly
relieve the petitioner from the injurious effects of
the order or judgment complained of.
3. Where right to appeal is lost. Where to appeal is an
adequate remedy but has been lost through
petitionerÊs negligence which is not otherwise
excusable, certiorari is not proper. Certiorari will
not lie as a substitute for an appeal, but where the
right to appeal or to pursue some other remedy has
been lost through fraud, accident, mistake, or
 excusable negligence, or through the courtÊs own
fault, certiorari may be granted upon a showing of
probable merits.
4. A party who fails to exercise the recourse of appeal
can not avail of the special civil action for certiorari
as a substitute therefor.
5. Failure to call the attention of the lower court as to
its supposed error and its correction asked for, is a
ground for denial of the writ of certiorari. This rule
does not apply when the issue of jurisdiction has
squarely been raised and argued before submitted
to, and met and decided by the lower court or where
the order or judgment, is a patent nullity, or where
there is a deprivation of the petitionerÊs
fundamental right to due process or in instances
where execution has already been ordered and the
need for relief is extremely urgent.

Conclusion

It should be remembered that rules of procedure are but

tools designed to facilitate the attainment of justice, such
that when rigid application of the rules tend to frustrate
rather than promote substantial justice, this court is
empowered to suspend their operation. (Ramos vs. Court of
Appeals, G.R No. 99425, March 3, 1997, 269 SCRA 34).
However, procedural rules are not to be disdained as
mere technicalities that may be ignored at will to suit the
conven-

508

508 SUPREME COURT REPORTS ANNOTATED

Certiorari Under Rule 45 and Special Civil Action of
Certiorari Under Rule 65

ience of a party. Adjective Law/Procedural law is important

in insuring the effective enforcement of substantial rights
through the orderly and speedy administration of justice.
These rules are not intended to hamper litigants or
complicate litigation but, indeed, to provide for a system
under which suitors may be heard in the correct form and
manner and at the prescribed time in a peaceful
 confrontation before a judge whose authority they
acknowledge. x x x (Santos vs. Court of Appeals, et al., G.R.
No. 92862, July 4, 1991, 198 SCRA 806).
Procedural rules are not to be belittled or dismissed
simply because their non-observance may have resulted in
prejudice to a partyÊs substantive rights. Like all rules,
they are required to be followed except only when for
persuasive of reasons they may be relaxed to relieve a
litigant of an injustice not commensurate with the degree
of his thoughtlessness in not complying with the procedure
described. While it is true that a litigation is not a game of
technicalities, this does not mean that the Rules of Court
may be ignored at will and at random to the prejudice of
the orderly presentation and assessment of the issues and
their just resolution. Justice eschews anarchy (Limpot vs.
Court of Appeals, G.R. No. 44642, February 20, 1989, 170
SCRA 367)
Rules of Civil Procedure are intended to ensure the
orderly administration of justice and the protection of
substantive rights in judicial and extrajudicial proceedings.
It is a mistake to purpose that substantive law and
procedural law/adjective law are contradicting to each
other or, as has been suggested, that enforcement of
procedural rules should never be permitted if it will result
in prejudice to the substantive rights of the litigants. This
is not exactly true; the concept is much misunderstood. As
a matter of fact, the policy of the courts is to give effect to
both kinds of law, as complementing each other, in the just
and speedy resolution of the dispute between the parties.
(Limpot vs. CA., supra, p. 369).

··o0o··

509

© Copyright 2016 Central Book Supply, Inc. All rights reserved.