WEEK 10 CERTIORARI, PROHIBITION, MANDAMUS
XI.T.1 • SAN PEDRO V. HON. ASPALA, G.R. NO. 164560, JULY
22, 2009 FAITH RAVENS
PRINCIPLE:
The settled rule is that appeals from judgments or final orders or
resolutions of the CA should be by a verified petition for review
on certiorari, as provided for under Rule 45 of the Revised Rules
of Civil Procedure.
LONG DIGEST
Facts:
Sometime in July 2001, private respondents, heirs of spouses
Apolonio and Valeriana Dionisio, filed with the Metropolitan Trial
Court (MeTC) of Quezon City, Branch 42, a Complaint against
herein petitioners and Wood Crest Residents Association, Inc., for
Accion Reivindicatoria, Quieting of Title and Damages, with
Prayer for Preliminary Mandatory Injunction. Private
respondents alleged that subject property located in Batasan
Hills, Quezon City, with an assessed value of P32,100.00, was
titled in the name of spouses Apolonio and Valeriana Dionisio;
but petitioners, with malice and evident bad faith, claimed that
they were the owners of a parcel of land that encompasses and
covers subject property. Private respondents had allegedly been
prevented from entering, possessing and using subject property.
It was further alleged in the Complaint that petitioners' Transfer
Certificate of Title over their alleged property was spurious.
Private respondents then prayed that they be declared the sole
and absolute owners of the subject property; that petitioners be
ordered to surrender possession of subject property to them;
that petitioners and Wood Crest and/or its members be ordered
to pay actual and moral damages, and attorney's fees.
Petitioners, for their part, filed a Motion to Dismiss said
complaint on the ground that the MeTC had no jurisdiction over
the subject matter of the action, as the subject of litigation was
incapable of pecuniary estimation.
The MeTC then issued an Order dated July 4, 2002 denying the
motion to dismiss, ruling that, under Batas Pambansa (B.P.) Blg.
129, as amended, the MeTC had exclusive original jurisdiction
over actions involving title to or possession of real property of
small value.
Petitioners' Motion for Reconsideration of said Order dated July
4, 2002 was denied.
Petitioners assailed the aforementioned Order by filing a petition
for certiorari with the Regional Trial Court (RTC) of Quezon City,
Branch 87. However, in its Decision dated March 10, 2003, the
RTC dismissed the petition, finding no grave abuse of discretion
on the part of the MeTC Presiding Judge. The RTC sustained the
MeTC ruling, stating that, in accordance with Section 33(3) of
Republic Act (R.A.) No. 7691, amending B.P. Blg. 129, the MeTC
had jurisdiction over the complaint for Accion Reivindicatoria, as
it involves recovery of ownership and possession of real property
located in Quezon City, with an assessed value not exceeding
P50,000.00. A Motion for Reconsideration of the Decision was
filed by petitioners, but was denied in an Order dated July 3,
2003.
Petitioners then filed with the Court of Appeals another petition
for certiorari, insisting that both the MeTC and RTC acted with
grave abuse of discretion amounting to lack or excess of
jurisdiction by not ordering the dismissal of the complaint for
Accion Reivindicatoria, for lack of jurisdiction over the same. In
the assailed CA Resolution dated September 15, 2003, the CA
dismissed the petition outright, holding that certiorari was not
available to petitioners as they should have availed themselves of
the remedy of appeal. Petitioners' motion for reconsideration of
the resolution of dismissal was denied per Resolution dated June
1, 2004.
Issue:
Whether the petition for certiorari should be entertained?
Ruling: NO
The present Petition for Certiorari is doomed and should not
have been entertained from the very beginning.
The settled rule is that appeals from judgments or final orders or
resolutions of the CA should be by a verified petition for review
on certiorari, as provided for under Rule 45 of the Revised Rules
of Civil Procedure. Thus, in Pasiona, Jr. v. Court of Appeals, the
Court expounded as follows:
The aggrieved party is proscribed
from assailing a decision or final order of the
CA via Rule 65, because such recourse is
proper only if the party has no plain, speedy
and adequate remedy in the course of law. In
this case, petitioner had an adequate remedy,
namely, a petition for review on certiorari
under Rule 45 of the Rules of Court. A petition
for review on certiorari, not a special civil
action for certiorari was, therefore, the correct
remedy.
xxxx
Settled is the rule that where appeal
is available to the aggrieved party, the special
civil action for certiorari will not be
entertained remedies of appeal and certiorari
are mutually exclusive, not alternative or
successive. Hence, certiorari is not and cannot
be a substitute for a lost appeal, especially if
one's own negligence or error in one's choice
of remedy occasioned such loss or lapse. One
of the requisites of certiorari is that there be
no available appeal or any plain, speedy and
adequate remedy. Where an appeal was
available, as in this case, certiorari will not
prosper, even if the ground therefor is grave
It’s not a PROVREM 2015  1

abuse of discretion. Petitioner's resort to this
Court by Petition for Certiorari was a fatal
procedural error, and the instant petition
must, therefore, fail.
For the very same reason given above, the CA, therefore, acted
properly when it dismissed the petition for certiorari outright, on
the ground that petitioners should have resorted to the remedy
of appeal instead of certiorari. Verily, the present Petition for
Certiorari should not have been given due course at all.
Moreover, since the period for petitioners to file a petition for
review on certiorari had lapsed by the time the instant petition
was filed, the assailed CA Resolutions have attained finality.
SHORT DIGEST
FACTS:
Sometime in July 2001, private respondents, heirs of spouses
Apolonio and Valeriana Dionisio, filed with the Metropolitan Trial
Court (MeTC) of Quezon City, Branch 42, a Complaint against
herein petitioners and Wood Crest Residents Association, Inc., for
Accion Reivindicatoria, Quieting of Title and Damages, with
Prayer for Preliminary Mandatory Injunction.
Petitioners, for their part, filed a Motion to Dismiss said
complaint on the ground that the MeTC had no jurisdiction over
the subject matter of the action, as the subject of litigation was
incapable of pecuniary estimation.
The MeTC then issued an Order dated July 4, 2002 denying the
motion to dismiss, ruling that, under Batas Pambansa (B.P.) Blg.
129, as amended, the MeTC had exclusive original jurisdiction
over actions involving title to or possession of real property of
small value.
Petitioners assailed the aforementioned Order by filing a petition
for certiorari with the Regional Trial Court (RTC) of Quezon City,
Branch 87. However, in its Decision dated March 10, 2003, the
RTC dismissed the petition, finding no grave abuse of discretion
on the part of the MeTC Presiding Judge.
Petitioners then filed with the Court of Appeals another petition
for certiorari, insisting that both the MeTC and RTC acted with
grave abuse of discretion amounting to lack or excess of
jurisdiction by not ordering the dismissal of the complaint for
Accion Reivindicatoria, for lack of jurisdiction over the same. In
the assailed CA Resolution dated September 15, 2003, the CA
dismissed the petition outright, holding that certiorari was not
available to petitioners as they should have availed themselves of
the remedy of appeal.
Issue:
WEEK 10 CERTIORARI, PROHIBITION, MANDAMUS
Whether the petition for certiorari should be entertained?
Ruling: NO
The present Petition for Certiorari is doomed and should not
have been entertained from the very beginning.
The settled rule is that appeals from judgments or final orders or
resolutions of the CA should be by a verified petition for review
on certiorari, as provided for under Rule 45 of the Revised Rules
of Civil Procedure. Thus, in Pasiona, Jr. v. Court of Appeals, the
Court expounded as follows:
The aggrieved party is proscribed
from assailing a decision or final order of the
CA via Rule 65, because such recourse is
proper only if the party has no plain, speedy
and adequate remedy in the course of law. In
this case, petitioner had an adequate remedy,
namely, a petition for review on certiorari
under Rule 45 of the Rules of Court. A petition
for review on certiorari, not a special civil
action for certiorari was, therefore, the correct
remedy. xxx
For the very same reason given above, the CA, therefore, acted
properly when it dismissed the petition for certiorari outright, on
the ground that petitioners should have resorted to the remedy
of appeal instead of certiorari. Verily, the present Petition for
Certiorari should not have been given due course at all.
Moreover, since the period for petitioners to file a petition for
review on certiorari had lapsed by the time the instant petition
was filed, the assailed CA Resolutions have attained finality.
CAMUTIN V. SPOUSES POTENTE, G.R. NO. 181642, JANUARY
29, 2009 HIYAS
FACTS:
Camutin et al owned a parcels of land. Respondents
house and warehouse were erected on the subject lots. Hence, the
parties entered into agreement to pay petitioners a P1,000.00
monthly rental starting 1 January 1998 for the use of the lots.
They also agreed that should the properties be sold, respondents
would have the right of first refusal and should respondents be
unable to purchase the properties, they would peacefully vacate
the premises.
However, respondents failed and refused to pay the
agreed rentals. Neither were they able to purchase the lots.
Consequently, petitioners sold a portion of the lots to a third
party who had it fenced.
After the fence was erected, respondents in October
2006 filed a complaint for partition against petitioners and the
buyer of the properties before the RTC of Trece Martires City.
Respondents claimed they had a right over one-half of the
It’s not a PROVREM 2015  2

property by virtue of the acknowledgment of rights allegedly
executed by petitioners deceased mother in 9 June 1970.
Petitioners filed on 12 October 2006 a complaint with
the barangay, the parties agreed to wait for the outcome of the
17 October 2006 hearing on the case for partition before the RTC.
Petitioners filed a complaint for unlawful detainer
against respondents before the Municipal Trial Court (MTC) of
Gen. Trias, Cavite. The MTC subpoenaed the members of the
Lupong Tagapamayapa. The Barangay Chairperson clarified that
the agreement was only to wait for the result of the RTCs 17
October 2006 hearing in the case for partition and not to wait for
the termination of the case altogether. The MTC thus ordered that
the proceedings in the ejectment case be indefinitely suspended
and archived subject to its revival upon the final resolution of
Civil Case before the RTC.
Petitioners filed a petition for certiorari under Rule 65
with the RTC of Trece Martires City. Respondents filed a motion
to dismiss thereto, alleging that the petition for certiorari is a
prohibited pleading. The RTC granted the motion to dismiss.
Hence, petitioners have come before the SC arguing that
the RTC erred in dismissing the petition for certiorari and that
the MTC likewise erred in suspending the proceedings in the case
for unlawful detainer until the final resolution of Civil Case No.
TMSCA-0023-06 before the RTC.
RESPONDENT’S ARGUMENT: 1] First, petitioners have availed
of the wrong remedy. Since the assailed Order dated 23 January
2008 was rendered by the RTC in the exercise of its original
jurisdiction, respondents argue that the correct mode of review is
an appeal to the Court of Appeals under Sec. 2(a), Rule 41 of the
Rules of Court. Second, the petition raises questions of fact, not of
law, as petitioners seek a review and reexamination of the
testimony of the Barangay Chairperson. Third, petitioners
ignored the rule on the hierarchy of courts for no apparent
reason. And lastly, the petition is patently bereft of merit.
Petitioners assert that the MTC has already made a finding of fact
that there was an agreement between the parties to await the
resolution of the case for partition before the RTC. In ordering
the stay of the proceedings in the unlawful detainer case, the MTC
merely ordered the implementation of the agreement between
the parties.
The MTC, in its Joint Order dated 24 November 2008, gave
due course to the notice of appeal and also ordered the
elevation of the records of the case to the RTC.
ISSUE:
Whether the petitioner’s petition for certiorari will prosper?
WEEK 10 CERTIORARI, PROHIBITION, MANDAMUS
RULING:
NO. The petition should be dismissed for being moot and
academic.
Certiorari is an extraordinary remedy available only
when there is no appeal, nor any plain, speedy, and adequate
remedy in the ordinary course of law.2 While a petition for
certiorari is not allowed against any interlocutory order issued
by the court in the unlawful detainer or ejectment case,3 in the
case at bar, the filing of a petition for certiorari challenging the
MTCs Orders dated 5 June 2007 and 16 August 2007 cannot be
deemed a dilatory remedy resorted to by petitioners. On the
contrary, sustaining the MTCs orders would unnecessarily and
unfairly delay the unlawful detainer case, a result contrary to the
rules objective of speedy disposition of cases. Petitioners could
also not appeal from the orders of the MTC because these only
ordered the indefinite suspension and archiving of the case. The
case was not resolved on the merits so there is actually no
decision from which petitioners can appeal. Thus, the RTC could
have validly ruled on the petition for certiorari instead of
dismissing it on the ground that it is a prohibited pleading.
However, the MTCs revival of the unlawful detainer case and its
subsequent dismissal thereof on the grounds aforestated have
rendered the resolution of the present petition for review
superfluous and unnecessary. In their petition for review,
petitioners seek the nullification of the RTCs orders and the
subsequent recall of the MTCs orders suspending the
proceedings in the unlawful detainer case and archiving it. The
suspension of the unlawful detainer case has apparently been
lifted and the case has been decided. There is thus no more need
for the Court to decide the present petition on the merits.
WHEREFORE, the petition for review is DENIED for
being moot and academic.
Quick digest.
Petitioners X et al. owned a parcel of land which Sps. Y erected
their house and warehouse on the said lots. They both entered
into an agreement that 1.) respondent will payy monthly rentals,
2.) respondents will be preferred when lots will be sold and 3.)
should respondent failed to buy the lots, they must leave the
premises peacefully. HOWEVER, Sps. Y failed to fulfill their
agreement. The lots were then sold to a third person.
Because of this, Sps. Y filed a complaint for partition against
petitioners and the buyer of the properties before the RTC of
Trece Martires City. Subsequently, petitioners filed a complaint
before the barangay. They both agreed to wait for the resolution
of RTC.
It’s not a PROVREM 2015  3

Petitioners then filed before the MTC an unlawful detainer case
against respondents before MTC Cavite. The MTC thus ordered
that the proceedings in the ejectment case be indefinitely
suspended and archived subject to its revival upon the final
resolution of Civil Case before the RTC.
Hence, Petitioners filed a petition for certiorari before RTC. The
latter dismissed it. Thus, the petition was elevated to the SC.
During the filing of the petition, the MTC gave due course to the
notice of appeal and also ordered the elevation of the
records of the case to the RTC.
ISSUE: same.
RULING: same.
SIM V. NLRC, G.R. NO. 157376, OCTOBER 2, 2007 CABUENAS
CLARISSE
Principle/s:
The remedy of filing a special civil action for certiorari is
available only when there is no appeal; or any plain, speedy, and
adequate remedy in the ordinary course of law. A "plain" and
"adequate remedy" is a motion for reconsideration of the assailed
order or resolution, the filing of which is an indispensable
condition to the filing of a special civil action for certiorari. This is
to give the lower court the opportunity to correct itself.
To dispense with the requirement of filing a motion for
reconsideration, petitioner must show a concrete, compelling,
and valid reason for doing so.
LONG DIGEST
Facts:
Corazon Sim (petitioner) filed a case for illegal dismissal with the
Labor Arbiter, alleging that she was initially employed by
Equitable PCI-Bank (respondent) in 1990 as Italian Remittance
Marketing Consultant to the Frankfurt Representative Office.
Eventually, she was promoted to Manager position, until
September 1999, when she received a letter informing her that
she was being dismissed due to loss of trust and confidence
based on alleged mismanagement and misappropriation of funds.
Petitioner does not deny having withdrawn the amount of
P3,000,000.00 lire from the bank's account. She submits that she
used said amount for the Radio Pilipinassa Roma radio program
of the company. However, respondent countered that at the time
she withdrew said amount, the radio program was already off the
air.
Labor Arbiter rendered its Decision dismissing the case for want
of jurisdiction and/or lack of merit.According to the Labor
Arbiter, since complainant was hired and assigned in a foreign
land, although by a Philippine Corporation, it follows that the law
that govern their relationship is the law of the place where the
employment was executed and her place of work or assignment.
On appeal, the National Labor Relations Commission (NLRC)
affirmed the Labor Arbiter's Decision and dismissed petitioner's
WEEK 10 CERTIORARI, PROHIBITION, MANDAMUS
appeal for lack of merit.Without filing a motion for
reconsideration with the NLRC, petitioner went to the Court of
Appeals (CA) via a petition for certiorari under Rule 65 of the
Rules of Court. The CA dismissed the petition due to petitioner's
non-filing of a motion for reconsideration with the NLRC.
Petitioner filed a motion for reconsideration but it was
nonetheless denied by the CA. Hence, the present recourse under
Rule 45 of the Rules of Court.
Issue:
Whether or not a prior motion for reconsideration is
indispensable for the filing of a petition for certiorari under Rule
65 of the Rules of Court with the CA.
Held:
In this case, YES.
Under Rule 65, the remedy of filing a special civil action
for certiorari is available only when there is no appeal; or any
plain, speedy, and adequate remedy in the ordinary course of
law.A "plain" and "adequate remedy" is a motion for
reconsideration of the assailed order or resolution, the filing of
which is an indispensable condition to the filing of a special civil
action for certiorari.This is to give the lower court the
opportunity to correct itself.
There are, of course, exceptions to the foregoing rule, to wit:
(a) where the order is a patent nullity, as where the
court a quo has no jurisdiction;
(b) where the questions raised in
the certiorari proceedings have been duly raised and
passed upon by the lower court, or are the same as
those raised and passed upon in the lower court;
(c) where there is an urgent necessity for the resolution
of the question and any further delay would prejudice
the interests of the Government or of the petitioner or
the subject matter of the action is perishable;
(d) where, under the circumstances, a motion for
reconsideration would be useless;
(e) where petitioner was deprived of due process and
there is extreme urgency for relief;
(f) 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;
(g) where the proceedings in the lower court are a
nullity for lack of due process;
(h) where the proceeding was ex parte or in which the
petitioner had no opportunity to object; and
It’s not a PROVREM 2015  4

(i) where the issue raised is one purely of law or public
interest is involved.10
Petitioner, however, failed to qualify her case as among the few
exceptions. In fact, the Court noted that the petition filed before
the CA failed to allege any reason why a motion for
reconsideration was dispensed with by petitioner. It was only in
her motion for reconsideration of the CA's resolution of dismissal
and in the petition filed in this case that petitioner justified her
non-filing of a motion for reconsideration. . The legality of
petitioner's dismissal hinges on the question of whether there
was an employer-employee relationship, which was denied by
respondent; and, if in the affirmative, whether petitioner, indeed,
committed a breach of trust and confidence justifying her
dismissal. These are mixed questions of fact and law and, as such,
do not fall within the exception from the filing of a motion for
reconsideration.
It must be emphasized that a writ of certiorari is a prerogative
writ, never demandable as a matter of right, never issued except
in the exercise of judicial discretion. Hence, he who seeks a writ
of certiorari must apply for it only in the manner and strictly in
accordance with the provisions of the law and the Rules.
To dispense with the requirement of filing a motion for
reconsideration, petitioner must show a concrete,
compelling, and valid reason for doing so, which petitioner
failed to do.
In any event, since the CA did not commit any error in dismissing
the petition before it for failure to file a prior motion for
reconsideration with the NLRC, and considering that the Labor
Arbiter and the NLRC's factual findings as regards the validity of
petitioner's dismissal are accorded great weight and respect and
even finality when the same are supported by substantial
evidence, the Court finds no compelling reason to relax the rule
on the filing of a motion for reconsideration prior to the filing of a
petition for certiorari.
SHORT DIGEST
Facts:
X (petitioner) filed a case for illegal dismissal with the Labor
Arbiter, alleging that she was illegalydismissed due to loss of
trust and confidence based on alleged mismanagement and
misappropriation of funds.
X does not deny having withdrawn the amount of P3,000,000.00
lire from the bank's account. She submits that she used said
amount for the Radio Pilipinassa Roma radio program of the
company. However, Y (respondent) countered that at the time
she withdrew said amount, the radio program was already off the
air.
Labor Arbiter dismissed the case for want of jurisdiction and/or
lack of merit. On appeal, the National Labor Relations
Commission (NLRC) affirmed the Labor Arbiter's Decision and
dismissed petitioner's appeal for lack of merit. Without filing a
motion for reconsideration with the NLRC, X went to the Court of
Appeals (CA) via a petition for certiorari under Rule 65 of the
WEEK 10 CERTIORARI, PROHIBITION, MANDAMUS
Rules of Court. The CA dismissed the petition due to petitioner's
non-filing of a motion for reconsideration with the NLRC.
Petitioner filed a motion for reconsideration but it was
nonetheless denied by the CA. Hence, the present recourse under
Rule 45 of the Rules of Court.
Issue:
Whether or not a prior motion for reconsideration is
indispensable for the filing of a petition for certiorari under Rule
65 of the Rules of Court with the CA.
Held:
In this case, YES.
Under Rule 65, the remedy of filing a special civil action
for certiorari is available only when there is no appeal; or any
plain, speedy, and adequate remedy in the ordinary course of law.
A "plain" and "adequate remedy" is a motion for reconsideration
of the assailed order or resolution, the filing of which is an
indispensable condition to the filing of a special civil action
for certiorari. This is to give the lower court the opportunity to
correct itself.
There are, of course, some exceptions to the foregoing rule.
However, X, failed to qualify her case as among the few
exceptions. In fact, the Court noted that the petition filed before
the CA failed to allege any reason why a motion for
reconsideration was dispensed with by petitioner.
To dispense with the requirement of filing a motion for
reconsideration, petitioner must show a concrete,
compelling, and valid reason for doing so, which petitioner
failed to do.
XI.U ALCANTARA ET AL. V. ERMITA, G.R. NO. 169813,
SEPTEMBER 5, 2006 DAPANAS
Principle/s:
* The writ of prohibition is one which commands the person to
whom it is directed not to do something which he is about to do.
If the thing is already done, it is obvious that the writ of
prohibition cannot undo it, for that would require an affirmative
act, and the only effect of a writ of prohibition is to suspend all
action, and to prevent any further proceeding in the prohibited
direction. In other words, prohibition is a preventive remedy to
restrain future action. Prohibition, as a rule, does not lie to
restrain an act that is already a fait accompli.
* A case is moot and academic when there is no more actual
controversy between the parties or no useful purpose can be
served in passing upon the merits.
LONG DIGEST
Facts:
It’s not a PROVREM 2015  5

A Petition for Prohibition seeking to prevent respondents form
implementing President Gloria M. Arroyo's EO # 453, dated
August 19, 2005 “CREATING A CONSULTATIVE COMMISSION TO
PROPOSE THE REVISION OF THE 1987 CONSTITUTION ON
CONSULTATION WITH VARIOUS SECTORS OF SOCIETY.”
Section 1: Creation and Mandate. xxx For this purpose, the
Consultative Commission shall review existing and new
Constitutional reform proposals and hold nationwide
consultations with various sectors of society, such as farmers,
fishermen, workers, students, lawyers, professionals, business,
military, academic, ethnic, and other similar groups, including the
different leagues of Local Government Units and members of
Congress and the Judiciary
Aftetwards, GMA designated 50 persons which she amended to
55 from various sectors of society to sit as members of the
Consultative Commission. The Consultative Commission held its
first formal meeting and elected its officers. Jose V. Abueva,
former President of UP was elected Chairman. Immediately
thereafter, the Consultative Commission conducted its first
plenary session. Beginning Oct. 10, 2005, the different
committees of the Commission conducted several public hearings
and consultative meetings in the cities of Cagayan de Oro, Cebu,
Davao, Iloilo, Puerto Princesa, Tacloban, and Zamboanga.
On October 13, 2005, lawyers Petitioners filed with the SC the
instant petition for prohibition in their capacity as Filipino
citizens and taxpayers. They alleged that under Article XVII of the
Constitution, President Macapagal-Arroyo has no authority to
participate in the process to amend or revise the Constitution.
Likewise, she has no power to create a Consultative Commission
to study and propose amendments and allocate public funds for
its operation.
On December 16, 2005, the Consultative Commission submitted
to the President its report recommending changes in the charter.
Then the Consultative Commission ceased to exist.
Issue:
Whether or not the Supreme Court would still grant the
petitioners Motion For Writ of Prohibition the fact that the
Consultative Commission no longer exist.
Held:
No. There is no longer any issue to be resolved. The case has
become moot and academic.
Under Section 2, Rule 65 of the 1997 Rules of Civil Procedure, as
amended, provides:
SEC. 2. Petition for prohibition. – When the proceedings of any
tribunal, corporation, board, officer, or person, whether
exercising judicial, quasi-judicial, or ministerial functions, are
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 other plain, speedy, and adequate
remedy in the ordinary course of law, a person aggrieved thereby
may file a verified petition in the proper court, alleging the facts
WEEK 10 CERTIORARI, PROHIBITION, MANDAMUS
with certainty and praying that judgment be rendered
commanding the respondent to desist from further proceedings
in the action or matter specified therein, or otherwise granting
such incidental reliefs as law and justice may require.
It is evident that the writ of prohibition is one which commands
the person to whom it is directed not to do something which he is
about to do. If the thing is already done, it is obvious that the writ
of prohibition cannot undo it, for that would require an
affirmative act, and the only effect of a writ of prohibition is to
suspend all action, and to prevent any further proceeding in the
prohibited direction. In other words, prohibition is a preventive
remedy to restrain future action. Prohibition, as a rule, does not
lie to restrain an act that is already a fait accompli.
A case is moot and academic when there is no more actual
controversy between the parties or no useful purpose can be
served in passing upon the merits. As a general rule, courts of
justice are constituted to pass upon substantial rights.
In this case, the Consultative Commission has been dissolved. The
instant petition has been overtaken by subsequent events. The
Consultative Commission is now defunct. Hence, there is no
longer any issue to be resolved by this Court. This case has
become moot and academic. Hence, they will not consider
questions which are moot, as the resolution of the same will have
no practical use or value.
SHORT DIGEST:
Petitioners X filed an instant petition for Writ of Prohibition
against Pres. GMA's EO # 453: Creating a Consultative body for
the Revision of the 1987 Constitution. Thereafter, the
Consultative Commission submitted to the President its report
recommending changes in the charter. Then the Consultative
Commission ceased to exist.
Rule on whether the Supreme Court would still grant the
petitioners Motion For Writ of Prohibition the fact that the
Consultative Commission no longer exist.
Held.
No. There is no longer any issue to be resolved, because the case
has become moot and academic. Under Section 2, Rule 65 of the
1997 Rules of Civil Procedure, it is evident that the writ of
prohibition is one which commands the person to whom it is
directed not to do something which he is about to do. If the thing
is already done, it is obvious that the writ of prohibition cannot
undo it, for that would require an affirmative act, and the only
effect of a writ of prohibition is to suspend all action, and to
prevent any further proceeding in the prohibited direction. In
other words, prohibition is a preventive remedy to restrain
future action. Prohibition, as a rule, does not lie to restrain an act
that is already a fait accompli.
A case is moot and academic when there is no more actual
controversy between the parties or no useful purpose can be
served in passing upon the merits. As a general rule, courts of
justice are constituted to pass upon substantial rights.
It’s not a PROVREM 2015  6

In this case, the Consultative Commission has been dissolved. The
instant petition has been overtaken by subsequent events. The
Consultative Commission is now defunct. Hence, there is no
longer any issue to be resolved by this Court. This case has
become moot and academic. Hence, they will not consider
questions which are moot, as the resolution of the same will have
no practical use or value.
XI.W • THE SPECIAL AUDIT TEAM, COMMISSION ON AUDIT
V. COURT OF APPEALS, G.R. NO. 174788, 11 APRIL 2013
CANETE LUVERNIE
Principle:
A Rule 65 petition for prohibition can only be aimed at judicial,
quasi-judicial, and ministerial functions. COA was not exercising
judicial, quasi-judicial, or ministerial functions when it issued
LAO Order No. 2004-093. Ministerial acts do not require
discretion or the exercise of judgment, but only the performance
of a duty pursuant to a given state of facts in the manner
prescribed. The Order obviously involved discretion, in both the
choice of the personnel and the powers/functions to be given
them. Since the issuance of the LAO Order assailed was not
characterized by any of the three functions, then it follows that
the GSIS chose the wrong remedy. Moreover, "where it is the
Government which is being enjoined from implementing an
issuance which enjoys the presumption of validity, such
discretion [to enjoin] must be exercised with utmost caution.
Facts:
COA created the SAT under Legal and Adjudication Office
(LAO) Order No. 2004-093, which was issued by COA Assistant
Commissioner and General Counsel Raquel R. Ramirez-Habitan.
Tasked to conduct a special audit of specific GSIS transactions,
the SAT had the avowed purpose of conducting a special audit of
those transactions for the years 2000 to 2004. Accordingly, the
SAT immediately initiated a conference with GSIS management
and requested copies of pertinent auditable documents, which
the latter initially agreed to furnish. However, due to the
objection of GSIS to the actions of SAT during the conference, the
request went unheeded. This prompted the latter to issue a
subpoena duces tecum. A
In response to the subpoena, the GSIS, through its President and
General Manager Winston F. Garcia, replied that while it did
recognize the authority of COA to constitute a team to conduct a
special audit, that team should not be the SAT, whose members
were biased, partial, and hostile. The then-COA Chairperson
Guillermo N. Carague denied the request of GSIS on account of
the restructuring of the commission under COA Resolution 2002-
005, which formed the basis for the SAT's creation. However,
through a subsequent letter of Atty. Claro B. Flores and Atty. Nelo
B. Gellaco, the GSIS alleged that the SAT's creation was not
supported by COA Resolution 2002-005, which was without force
and effect.
GSIS alleged that 1987 Constitution did not give COA the power
to reorganize itself.
Due to continued refusal of GSIS to cooperate, the team was
constrained to employ "alternative audit procedures" by
gathering documents from the Office of the Auditor of GSIS, the
House of Representatives, and others. Some of the audit
WEEK 10 CERTIORARI, PROHIBITION, MANDAMUS
observations made by the SAT appeared in the newspaper Manila
Times, resulting in the refusal of GSIS management to attend the
SAT's exit conference. GSIS filed with COA a "Petition/Request to
nullify Special Audit Report dated 29 March 2005 on selected
transactions of the GSIS for CY 2000 to 2004." Also, GSIS filed
with CA Petition for Prohibition to which CA grants a 60-day TRO.
A Petition for Certiorari and Prohibition was filed assailing CA’s
decision granting the preliminary injunction .
SAT’s Contention:
-That CA acted with grave abuse of discretion when it granted the
preliminary injunction.
-CA had no jurisdiction to rule on the validity or correctness of
the findings and recommendations of the SAT because of the
doctrines of primary jurisdiction and exhaustion of
administrative remedies. Additionally, judicial review over the
COA is vested exclusively in the Supreme Court.
- SAT's special audit has basis in law.
GSIS’ Contention:
- the need for an injunction was urgent, since the SAT's
supervisor had said that notices for disallowance were
available at the COA's Records Division.
- Petition for Prohibition satisfies the legal and
procedural requirements
- CA has the power to prohibit the conduct of special
audit and the issuance of notices of disallowance
- special audit does not have statutory basis
- that it is only the regular auditor who can conduct such
audits and issue disallowances; that it is only the
commissioner of COA who can delegate this power; and
that GSIS would suffer grave and irreparable injury,
should the SAT implement the latter's report.
ISSUES:
1. Whether or not a petition for prohibition may be aimed on a
nonministerial function.
HELD:
No.
COA itself has a mechanism for parties who are aggrieved by its
actions and are seeking redress directly from the commission
itself.
Section 48 of Presidential Decree No. 1445
Appeal from decision of auditors. Any person aggrieved
by the decision of an auditor of any government agency
in the settlement of an account or claim may within six
months from receipt of a copy of the decision appeal in
writing to the Commission.
Additionally, Rule V, Section 1 of the 1997 COA Rules
provides:chanroblesvirtualawlibrary
An aggrieved party may appeal from an order or
decision or ruling rendered by the Auditor embodied in
a report, memorandum, letter, notice of disallowances
It’s not a PROVREM 2015  7

and charges, Certificate of Settlement and Balances, to
the Director who has jurisdiction over the agency under
audit. hanroblesvirtualawlibrary
Rule VI, Section 1, continues the linear procedure, to wit: The
party aggrieved by a final order or decision of the Director may
appeal to the Commission Proper. hanroblesvirtualawlibrary
This discussion of the different procedures in place clearly shows
that an administrative remedy was indeed available. To allow a
premature invocation of Rule 65 would subvert these
administrative provisions, unless they fall under the established
exceptions to the general rule, some of which are as
follows:chanroblesvirtualawlibrary
1) when the question raised is purely legal;cralawlibrary
2) when the administrative body is in estoppel;cralawlibrary
3) when the act complained of is patently illegal;cralawlibrary
4) when there is urgent need for judicial
intervention;cralawlibrary
5) when the claim involved is small;cralawlibrary
6) when irreparable damage will be suffered;cralawlibrary
7) when there is no other plain, speedy and adequate
remedy;cralawlibrary
8) when strong public interest is involved;cralawlibrary
9) when the subject of the controversy is private
land;cralawlibrary
10) in quo warranto proceedings. nroblesvirtualawlibrary
GSIS claims that its case falls within the exceptions, because (a)
the SAT supervisor has threatened to issue notices of
disallowance; (b) GSIS did nothing to stop the threatened
issuances or the public appearances of the SAT supervisor; (c)
the petition/request filed with the COA has not been acted upon
as of date; (d) GSIS was denied due process because SAT had
acted with partiality and bias; and (e) the special audit was
illegal, arbitrary, or oppressive, having been done without or in
excess or in grave abuse of discretion.
chanroblesvirtualawlibrary
All of these claims are baseless. First, a threat to issue a notice of
disallowance is speculative, absent actual proof. Moreover, even
if the threat were real, it would not fall under any of the
exceptions, because the COA rules provide an adequate remedy
to dispute a notice of disallowance.
A question of fact exists when the doubt or difference arises as to
the truth or falsehood of facts or when the query invites
calibration of the whole evidence considering mainly the
WEEK 10 CERTIORARI, PROHIBITION, MANDAMUS
credibility of witnesses, the existence and relevancy of specific
surrounding circumstances as well as their relation to each other
and to the whole, and the probability of the situation.
anroblesvirtualawlibrary
True enough, questions of fact require evidentiary processes, the
"calibration of the evidence, the credibility of the witnesses, the
existence and the relevance of surrounding circumstances, and
the probability of specific situations," especially "if the query
requires x x x the existence or relevance of surrounding
circumstances and their relation to each other, the issue in that
query is factual." Generally, these questions of fact cannot be
decided by a petition for prohibition under Rule 65, because the
rule applies to jurisdictional flaws brought about by lack, excess,
or grave abuse of discretion.
The failure to fulfill the requirements of Rule 65 disallows the CA
from taking due course of the Petition; otherwise appeals and
motions for reconsideration would be rendered meaningless.
COA was not exercising judicial, quasi-judicial, or ministerial
functions when it issued LAO Order No. 2004-093.
By virtue of Section 40 of Presidential Decree No. 1445 in relation
to Item III.A.6 of COA Memorandum 2002-053, the team shall
have the authority to administer oaths, take testimony, summon
witnesses and compel the production of documents by
compulsory processes in all matters relevant to this
audit/investigation. x x x. An
This was obviously not an exercise of judicial power, which is
constitutionally vested in the Supreme Court and such other
courts as may be established by law. Neither was it an exercise of
quasi-judicial power, as administrative agencies exercise it "to
hear and determine questions of fact to which the legislative
policy is to apply and to decide in accordance with the standards
laid down by the law itself in enforcing and administering the
same law." The Court has made this point clear:cry
In carrying out their quasi-judicial functions, the
administrative officers or bodies are required to
investigate facts or ascertain the existence of facts, hold
hearings, weigh evidence, and draw conclusions from
them as basis for their official action and exercise of
discretion in a judicial nature. ha
Issuing the order was not ministerial, because it required the
exercise of discretion. Ministerial acts do not require discretion
or the exercise of judgment, but only the performance of a duty
pursuant to a given state of facts in the manner prescribed. The
Order obviously involved discretion, in both the choice of the
personnel and the powers/functions to be given them.
A Rule 65 petition for prohibition can only be aimed at judicial,
quasi-judicial, and ministerial functions. Since the issuance of the
LAO Order assailed was not characterized by any of the three
functions, as shown supra, then it follows that the GSIS chose the
wrong remedy. Moreover, "where it is the Government which is
being enjoined from implementing an issuance which enjoys the
presumption of validity, such discretion [to enjoin] must be
exercised with utmost caution.
It’s not a PROVREM 2015  8

The Constitution grants the COA the exclusive authority to define
the scope of its audit and examination, and establish the
techniques and methods therefor. Pursuant to this authority, COA
Memorandum No. 2002-053 was promulgated, giving the General
Counsel the authority to deputize a special audit team
Once again, the Court must remind the parties to judicial disputes
to adhere to the standards for litigation as set by procedural
rules. These rules exist primarily for the benefit of litigants, in
order to afford them both speedy and appropriate relief from a
body duly authorized by law to dispense the remedy. If a litigant
prematurely invokes the jurisdiction of a court, then the potential
result might be a deafening silence. Although we recognize that
justice delayed is justice denied, we must also bear in mind that
justice in haste is justice defiled.
Petition for Certiorari and Prohibition is GRANTED. CA resolution
is annulled.
SHORT DIGEST:
Facts:
Special Audit Team(SAT ) was created by COA Legal and
Adjudication Office (LAO) Order No. 2004-093 and Tasked to
conduct a special audit of specific GSIS transactions for the years
2000 to 2004. GSIS agreed to provide documents as requested by
SAT but GSIS failed to furnished . SAT issued a subpoena duces
tecum. In reply, GSIS President, Winston Garcia did not recognize
the authority of COA to constitute a team to conduct a special
audit and argued that the 1987 Constitution did not give COA the
power to reorganize itself.
With the continued refusal of GSIS to cooperate, SAT was
constrained to employ "alternative audit procedures" by
gathering documents from the Office of the Auditor of GSIS, the
House of Representatives, and others. Meanwhile, some of the
audit observations made by the SAT appeared in the newspaper
Manila Times, resulting in the refusal of GSIS management to
attend the SAT's exit conference.
GSIS filed with COA a "Petition/Request to nullify Special Audit
Report. Also, GSIS filed with the Court of Appeals a Petition for
Prohibition against SAT of COA with a prayer for the issuance of a
temporary restraining order (TRO), a writ of preliminary
prohibitory injunction, and a writ of prohibition. CA granted a 60-
day TRO on 23 September 2005. A motion for reconsideration
was filed but denied on 9 August 2006.
A Petition was filed to seek to nullify both the 23 September 2005
and the 9 August 2006 CA Resolutions and to prohibit the CA
from proceeding to decide the case.
ISSUE:
WON a a petition for prohibition may be aimed on a
nonministerial function
HELD:
WEEK 10 CERTIORARI, PROHIBITION, MANDAMUS
No.
COA was not exercising judicial, quasi-judicial, or ministerial
functions when it issued LAO Order No. 2004-093.
By virtue of Section 40 of Presidential Decree No. 1445 in relation
to Item III.A.6 of COA Memorandum 2002-053, the team shall
have the authority to administer oaths, take testimony, summon
witnesses and compel the production of documents by
compulsory processes in all matters relevant to this
audit/investigation. x x x. An
This was obviously not an exercise of judicial power, which is
constitutionally vested in the Supreme Court and such other
courts as may be established by law. Neither was it an exercise of
quasi-judicial power, as administrative agencies exercise it "to
hear and determine questions of fact to which the legislative
policy is to apply and to decide in accordance with the standards
laid down by the law itself in enforcing and administering the
same law." The Court has made this point clear:cry
In carrying out their quasi-judicial functions, the
administrative officers or bodies are required to
investigate facts or ascertain the existence of facts, hold
hearings, weigh evidence, and draw conclusions from
them as basis for their official action and exercise of
discretion in a judicial nature. ha
Issuing the order was not ministerial, because it required the
exercise of discretion. Ministerial acts do not require discretion
or the exercise of judgment, but only the performance of a duty
pursuant to a given state of facts in the manner prescribed. The
Order obviously involved discretion, in both the choice of the
personnel and the powers/functions to be given them.
A Rule 65 petition for prohibition can only be aimed at judicial,
quasi-judicial, and ministerial functions. Since the issuance of the
LAO Order assailed was not characterized by any of the three
functions, as shown supra, then it follows that the GSIS chose the
wrong remedy. Moreover, "where it is the Government which is
being enjoined from implementing an issuance which enjoys the
presumption of validity, such discretion [to enjoin] must be
exercised with utmost caution.
The Constitution grants the COA the exclusive authority to define
the scope of its audit and examination, and establish the
techniques and methods therefor. Pursuant to this authority, COA
Memorandum No. 2002-053 was promulgated, giving the General
Counsel the authority to deputize a special audit team
PEFIANCO V. MORAL, G.R. NO. 132248, JANUARY 19, 2000
DUYONGCO
PRINCIPLE: It is settled that mandamus is employed to compel
the performance, when refused, of a ministerial duty, this being
its main objective.
[G.R. No. 132248. January 19, 2000]
HON. ERLINDA C. PEFIANCO, vs. MARIA LUISA C. MORAL,
It’s not a PROVREM 2015  9

DECS Secretary Ricardo T. Gloria filed a complaint against
respondent Maria Luisa C. Moral, then Chief Librarian, Catalog
Division, of the National Library for dishonesty, grave misconduct
and conduct prejudicial to the best interest of the service. The
DECS Investigating Committee conducted several hearings on the
complaint. Secretary Gloria issued a resolution finding
respondent "guilty of the administrative offenses of dishonesty,
grave misconduct and conduct prejudicial to the best interest of
the service, for the commission of pilferage of historical
documents of the national library. She was ordered dismissed
from the government service with prejudice to reinstatement and
forfeiture of all her retirement benefits and other remunerations.
Respondent did not appeal the judgment.
Respondent filed a Petition for the Production of the DECS
Investigation Committee Report purportedly to "guide [her] on
whatever action would be most appropriate to take under the
circumstances." Her petition was, however, denied.
Unfazed, she filed a Reiteration for DECS Committee Report and
DECS Resolution, which Secretary Gloria similarly denied.
Respondent moved for reconsideration but the motion was
merely "noted"..As earlier stated, respondent did not appeal the
Resolution dated 30 September 1996 dismissing her from the
service. Instead, she instituted an action for mandamus and
injunction before the regular courts against Secretary Gloria
praying that she be furnished a copy of the DECS Investigation
Committee Report and that the DECS Secretary be enjoined from
enforcing the order of dismissal until she received a copy of the
said report.
Secretary Gloria moved to dismiss the mandamus case
principally for lack of cause of action, but the trial court denied
his motion. Thus, he elevated the case to the Court of Appeals on
certiorari imputing grave abuse of discretion to the trial court.
The appellate court sustained the trial court and dismissed
Secretary Glorias petition for lack of merit.
His motion for reconsideration having been denied by the Court
of Appeals. Meanwhile, Secretary Gloria was replaced by
Secretary Erlinda C. Pefianco who was thereafter substituted in
the case for Secretary Gloria.
Issues:
Whether the Court of Appeals erred in dismissing the petition for
certiorari for failure of petitioner to file a motion for
reconsideration of the order denying the motion to dismiss, and
in holding that the trial court did not commit grave abuse of
discretion in denying the motion to dismiss.
We grant the petition. Section 3, Rule 16, of the 1997 Rules of
Civil Procedure mandatorily requires that the resolution on a
motion to dismiss should clearly and distinctly state the reasons
therefor
Clearly, the above rule proscribes the common practice of
perfunctorily denying motions to dismiss "for lack of merit." Such
WEEK 10 CERTIORARI, PROHIBITION, MANDAMUS
cavalier disposition often creates difficulty and misunderstanding
on the part of the aggrieved party in taking recourse therefrom
and likewise on the higher court called upon to resolve the issue,
usually on certiorari.
The challenged Order of the trial court dated 23 April 1997 falls
short of the requirements prescribed in Rule 16. The Order
merely discussed the general concept of mandamus and the trial
courts jurisdiction over the rulings and actions of administrative
agencies without stating the basis why petitioners motion to
dismiss was being denied.
On the second issue, the nature of the remedy of mandamus has
been the subject of discussions in several cases. It is settled that
mandamus is employed to compel the performance, when
refused, of a ministerial duty, this being its main objective. It does
not lie to require anyone to fulfill a discretionary duty. It is
essential to the issuance of a writ of mandamus that petitioner
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. It never issues in doubtful cases. While it may not be
necessary that the duty be absolutely expressed, it must
nevertheless be clear. 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, or give to 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.
In her petition for mandamus, respondent miserably failed to
demonstrate that she has a clear legal right to the DECS
Investigation Committee Report and that it is the ministerial duty
of petitioner DECS Secretary to furnish her with a copy thereof.
Consequently, she is not entitled to the writ prayed for.
Primarily, respondent did not appeal to the Civil Service
Commission the DECS resolution dismissing her from the service.
By her failure to do so, nothing prevented the DECS resolution
from becoming final and executory. Obviously, it will serve no
useful purpose now to compel petitioner to furnish her with a
copy of the investigation report.
Moreover, there is no law or rule which imposes a legal duty on
petitioner to furnish respondent with a copy of the investigation
report
WHEREFORE, the petition is GRANTED.
PIMENTEL, ET AL. V. EXECUTIVE SECRETARY, ET AL., G.R. NO.
158088, JULY 6, 2005 BELLEZA
PRINCIPLE:
The Court cannot issue a writ of mandamus as it is beyond its
jurisdiction to compel the executive branch of the government to
transmit the signed text of Rome Statute to the Senate.
FACTS:
It’s not a PROVREM 2015  10

This is a petition for mandamus filed by petitioners (Senator
Aquilino Pimentel, Jr. who asserts his legal standing to file the
suit as member of the Senate; Congresswoman Loretta Ann
Rosales, a member of the House of Representatives and
Chairperson of its Committee on Human Rights; the Philippine
Coalition for the Establishment of the International Criminal
Court which is composed of individuals and corporate entities
dedicated to the Philippine ratification of the Rome Statute; the
Task Force Detainees of the Philippines, a juridical entity with the
avowed purpose of promoting the cause of human rights and
human rights victims in the country; the Families of Victims of
Involuntary Disappearances, a juridical entity duly organized and
existing pursuant to Philippine Laws with the avowed purpose of
promoting the cause of families and victims of human rights
violations in the country; Bianca Hacintha Roque and Harrison
Jacob Roque, aged two (2) and one (1), respectively, at the time of
filing of the instant petition, and suing under the doctrine of
inter-generational rights enunciated in the case of Oposa vs.
Factoran, Jr.; and a group of fifth year working law students
from the University of the Philippines College of Law who are
suing as taxpayers) to compel the Office of the Executive
Secretary and the Department of Foreign Affairs to transmit the
signed copy of the Rome Statute of the International Criminal
Court to the Senate of the Philippines for its concurrence in
accordance with Section 21, Article VII of the 1987 Constitution.
ISSUE:
Whether or not the Executive Secretary and the Department of
Foreign Affairs have a ministerial duty to transmit to the Senate
the copy of the Rome Statute signed by a member of the
Philippine Mission to the United Nations even without the
signature of the President.
RULING:
No. In our system of government, the President, being the head of
state, is regarded as the sole organ and authority in external
relations and is the country’s sole representative with foreign
nations. As the chief architect of foreign policy, the President acts
as the country’s mouthpiece with respect to international affairs.
Hence, the President is vested with the authority to deal with
foreign states and governments, extend or withhold recognition,
maintain diplomatic relations, enter into treaties, and otherwise
transact the business of foreign relations. In the realm of treaty-
making, the President has the sole authority to negotiate with
other states.
Nonetheless, while the President has the sole authority
to negotiate and enter into treaties, the Constitution provides a
limitation to his power by requiring the concurrence of 2/3 of all
the members of the Senate for the validity of the treaty entered
into by him. Section 21, Article VII of the 1987 Constitution
provides that no treaty or international agreement shall be valid
and effective unless concurred in by at least two-thirds of all the
Members of the Senate. The 1935 and the 1973 Constitution also
required the concurrence by the legislature to the treaties
entered into by the executive.
The participation of the legislative branch in the treaty-making
process was deemed essential to provide a check on the
executive in the field of foreign relations. By requiring the
concurrence of the legislature in the treaties entered into by the
WEEK 10 CERTIORARI, PROHIBITION, MANDAMUS
President, the Constitution ensures a healthy system of checks
and balance necessary in the nation’s pursuit of political maturity
and growth.
In filing this petition, the petitioners interpret Section 21, Article
VII of the 1987 Constitution to mean that the power to ratify
treaties belongs to the Senate.
We disagree.
Petitioners’ arguments equate the signing of the treaty by the
Philippine representative with ratification. It should be
underscored that the signing of the treaty and the ratification are
two separate and distinct steps in the treaty-making process. As
earlier discussed, the signature is primarily intended as a means
of authenticating the instrument and as a symbol of the good
faith of the parties. It is usually performed by the states
authorized representative in the diplomatic mission. Ratification,
on the other hand, is the formal act by which a state confirms and
accepts the provisions of a treaty concluded by its representative.
It is generally held to be an executive act, undertaken by the head
of the state or of the government.]
Thus, Executive Order No. 459 issued by President Fidel V.
Ramos on November 25, 1997 provides the guidelines in the
negotiation of international agreements and its ratification. It
mandates that after the treaty has been signed by the Philippine
representative, the same shall be transmitted to the Department
of Foreign Affairs. The Department of Foreign Affairs shall then
prepare the ratification papers and forward the signed copy of
the treaty to the President for ratification. After the President has
ratified the treaty, the Department of Foreign Affairs shall submit
the same to the Senate for concurrence. Upon receipt of the
concurrence of the Senate, the Department of Foreign Affairs
shall comply with the provisions of the treaty to render it
effective.
Petitioners submission that the Philippines is bound under treaty
law and international law to ratify the treaty which it has signed
is without basis. The signature does not signify the final consent
of the state to the treaty. It is the ratification that binds the state
to the provisions thereof. In fact, the Rome Statute itself requires
that the signature of the representatives of the states be subject
to ratification, acceptance or approval of the signatory states.
Ratification is the act by which the provisions of a treaty are
formally confirmed and approved by a State. By ratifying a treaty
signed in its behalf, a state expresses its willingness to be bound
by the provisions of such treaty. After the treaty is signed by the
states representative, the President, being accountable to the
people, is burdened with the responsibility and the duty to
carefully study the contents of the treaty and ensure that they are
not inimical to the interest of the state and its people.
Thus, the President has the discretion even after the signing of
the treaty by the Philippine representative whether or not to
ratify the same. The Vienna Convention on the Law of Treaties
does not contemplate to defeat or even restrain this power of the
head of states. If that were so, the requirement of ratification of
treaties would be pointless and futile. It has been held that a state
has no legal or even moral duty to ratify a treaty which has been
signed by its plenipotentiaries. There is no legal obligation to
ratify a treaty, but it goes without saying that the refusal must be
based on substantial grounds and not on superficial or whimsical
It’s not a PROVREM 2015  11

reasons. Otherwise, the other state would be justified in taking
offense.
It should be emphasized that under our Constitution, the power
to ratify is vested in the President, subject to the concurrence of
the Senate. The role of the Senate, however, is limited only to
giving or withholding its consent, or concurrence, to the
ratification. Hence, it is within the authority of the President to
refuse to submit a treaty to the Senate or, having secured its
consent for its ratification, refuse to ratify it. Although the refusal
of a state to ratify a treaty which has been signed in its behalf is a
serious step that should not be taken lightly, such decision is
within the competence of the President alone, which cannot be
encroached by this Court via a writ of mandamus. This Court has
no jurisdiction over actions seeking to enjoin the President in the
performance of his official duties. The Court, therefore, cannot
issue the writ of mandamus prayed for by the petitioners as it is
beyond its jurisdiction to compel the executive branch of the
government to transmit the signed text of Rome Statute to the
Senate.
Quick Digest:
Facts: This is a petition for mandamus filed by petitioners to
compel the Office of the Executive Secretary and the Department
of Foreign Affairs to transmit the signed copy of the Rome Statute
of the International Criminal Court to the Senate of the
Philippines for its concurrence in accordance with Section 21,
Article VII of the 1987 Constitution.
Issue: Whether or not the Executive Secretary and the
Department of Foreign Affairs have a ministerial duty to
transmit to the Senate the copy of the Rome Statute signed by a
member of the Philippine Mission to the United Nations even
without the signature of the President.
Ruling: It should be emphasized that under our Constitution, the
power to ratify is vested in the President, subject to the
concurrence of the Senate. The role of the Senate, however, is
limited only to giving or withholding its consent, or concurrence,
to the ratification. Hence, it is within the authority of the
President to refuse to submit a treaty to the Senate or, having
secured its consent for its ratification, refuse to ratify it. Although
the refusal of a state to ratify a treaty which has been signed in its
behalf is a serious step that should not be taken lightly, such
decision is within the competence of the President alone, which
cannot be encroached by this Court via a writ of mandamus. This
Court has no jurisdiction over actions seeking to enjoin the
President in the performance of his official duties. The Court,
therefore, cannot issue the writ of mandamus prayed for by the
petitioners as it is beyond its jurisdiction to compel the executive
branch of the government to transmit the signed text of Rome
Statute to the Senate.
XI.X HIPOS, SR. V. JUDGE BAY, G.R. NOS. 174813-15, MARCH
17, 2009 LIM
Principle:
While mandamus is available to compel action on matters
involving judgment and discretion when refused, it is never
available to direct the exercise of judgment or discretion in a
WEEK 10 CERTIORARI, PROHIBITION, MANDAMUS
particular way or the retraction or reversal of an action already
taken in the exercise of either.
Facts:
Two informations for the crime of rape and one Information for
the crime of acts of lasciviousness were filed against petitioners
Darryl Hipos, et.al before Branch 86 of the Regional Trial Court of
Quezon City, acting as a Family Court, presided by respondent
Judge Bay.
Private complainants AAA and BBB filed a Motion for
Reinvestigation asking Judge Bay to order the City Prosecutor of
Quezon City to study if the proper Informations had been filed
against petitioners and their co-accused. Judge Bay granted the
Motion and ordered a reinvestigation of the cases.
The Office of the City Prosecutor issued a Resolution on the
reinvestigation affirming the Informations filed against
petitioners and their co-accused.This was signed by Assistant
City Prosecutor Raniel Cruz.
Subsequently, Second (2nd) Assistant Prosecutor Lamberto De
Vera reversed the resolution, holding that there was lack of
probable cause. On the same day, the City Prosecutor filed a
Motion to Withdraw Informations before Judge Bay.
Judge Bay denied the motion to withdraw the informations.
Issue:
Is the petition for mandamus proper?
Rulings:
No. Mandamus is an extraordinary writ commanding a tribunal,
corporation, board, officer or person, immediately or at some
other specified time, to do the act required to be done, when the
respondent unlawfully neglects the performance of an act which
the law specifically enjoins as a duty resulting from an office,
trust, or station; or when the respondent excludes another from
the use and enjoyment of a right or office to which the latter is
entitled, and there is no other plain, speedy and adequate remedy
in the ordinary course of law.
As an extraordinary writ, the remedy of mandamus lies only to
compel an officer to perform a ministerial duty, not a
discretionary one; mandamus will not issue to control the
exercise of discretion by a public officer where the law imposes
upon him the duty to exercise his judgment in reference to any
manner in which he is required to act,
because it is his judgment that is to be exercised and not that of
the court.4
In the case at bar, the act which petitioners pray that we compel
the trial court to do is to grant the Office of the City Prosecutor’s
Motion for Withdrawal of Informations against petitioners. In
effect, petitioners seek to curb Judge Bay’s exercise of judicial
discretion.
There is indeed an exception to the rule that matters involving
judgment and discretion are beyond the reach of a writ of
It’s not a PROVREM 2015  12

mandamus, for such writ may be issued to compel action in those
matters, when refused.However, mandamus is never available to
direct the exercise of judgment or discretion in a particular way
or the retraction or reversal of an action already taken in the
exercise of either.6 In other words, while a judge refusing to act
on a Motion to Withdraw Informations can be compelled by
mandamus to act on the same, he cannot be compelled to act in a
certain way, i.e., to grant or deny such Motion. In the case at bar,
Judge Bay did not refuse to act on the Motion to Withdraw
Informations; he had already acted on it by denying the same.
Accordingly, mandamus is not available anymore. If petitioners
believed that Judge Bay committed grave abuse of discretion in
the issuance of such Order denying the Motion to Withdraw
Informations, the proper remedy of petitioners should have been
to file a Petition for Certiorari against the assailed Order of Judge
Bay.
Petitioners’ resort to a Petition for Mandamus to compel the trial
judge to grant their Motion to Withdraw Informations is
improper. While mandamus is available to compel action on
matters involving judgment and discretion when refused, it is
never available to direct the exercise of judgment or discretion in
a particular way or the retraction or reversal of an action already
taken in the exercise of either. The trial court, when confronted
with a Motion to Withdraw an Information on the ground of lack
of probable cause, is not bound by the resolution of the
prosecuting arm of the government, but is required to make an
independent assessment of the merits of such motion, a
requirement satisfied by the respondent judge in the case at bar.
Short Digest:
Two informations for the crime of rape and one Information for
the crime of acts of lasciviousness were filed against X, etc. A
motion for reinvestigation were filed by the victims AAA and BBB
which was granted by the trial court. The Assistant City
prosecutor (C) issued resolution affirming the information filed
against X,etc. Subsequently, this was reversed by a resolution
issued by the Second Assistant prosecutor (L) and on the same
day it filed a motion to withdraw information before Judge B.
Judge B denied the motion to withdraw information.
XI.Y COMELEC V. JUDGE QUIJANO-PADILLA, G. R. NO. 151992,
SEPTEMBER 18, 2002 DESCALLAR
Principle/s:
In the discharge of its task, the primordial concern of
the OSG is to see to it that the best interest of the
government is upheld. This is regardless of the fact that
what it perceived as the “best interest of the
government” runs counter to its client agency’s
position. In the final analysis, the client of the OSG is not
the agency but no less than the Republic of the
Philippines in whom the plenum of sovereignty resides.
Mandamus does not lie to enforce the performance of
contractual obligations. Mandamus applies as a remedy
only where petitioner’s rights may be enforced by
mandamus only if those rights are well defined, clar and
certain.
WEEK 10 CERTIORARI, PROHIBITION, MANDAMUS
PHOTOKINA, thought the winning bidder cannot
compel the COMELEC to formalize the contract. The
proposed contract is not binding upon the COMELEC
and is considered void. In issuing the questioned writs
of mandatory and prohibitory injunction and not
dismissing Special Civil Action No.Q-01-45405,
respondent judge acted with grave abuse of discretion.
LONG DIGEST
Facts:
In 1996, the Philippine Congress passed Republic Act No.
8189("Voter's Registration Act of 1996") , providing for the
modernization and computerization of the voters' registration
list and the appropriation of funds therefor "in order to establish
a clean, complete, permanent and updated list of voters."
Pursuant thereto, the COMELEC promulgated Resolution
No. 00-0315 approving in principle the Voter's Registration and
Identification System Project (VRIS) Project for brevity). The
VRIS Project envisions a computerized database system for the
May 2004 Elections.
On September 9, 1999, the COMELEC issued invitations to
pre-qualify and bid for the supply and installations of
information technology equipment and ancillary services for its
VRIS Project. Private respondent Photokina Marketing
Corporation (PHOTOKINA) pre-qualified and was allowed to
participate as one of the bidders. After the public bidding was
conducted, PHOTOKINA's bid in the amount of P6.588 Billion
Pesos and was declared the winning bidder. Thus, on
September 28, 2000, the COMELEC issued Resolution No. 3252
approving the Notice of Award to PHOTOKINA. The parties then
proceeded to formalize the contract, with Commissioner Mehol
K. Sadain and Atty. Rodrigo D. Sta. Ana, acting as negotiators for
the COMELEC and PHOTOKINA, respectively.
However, under Republic Act No. 8760 the budget
appropriated by Congress for the COMELECs modernization
project was only One (1) Billion Pesos and that the actual
available funds under the Certificate of Availability of
Funds (CAF) issued by the Chief Accountant of the COMELEC
was only P1.2 Billion Pesos.
In December 2000, then COMELEC Chairman Harriet O.
Demetriou issued a memorandum to the COMELEC en
banc expressing her objections to the contract. Commissioner
Sadain provided in a draft that he submitted that the
subsequent completion of the whole project shall be agreed
upon in accordance with the Bid Documents and the annual
funds available for it.
On February 2, 2001, the term of former Chairman
Demetriou and those of Commissioners Julio F. Desamito and
Teresita Dy-Liacco Flores expired. Their successors were
Alfredo L. Benipayo as Chairman and Resurreccion Z. Borra and
Florentino A. Tuason, Jr. as Commissioners.
Meanwhile, PHOTOKINA, as the winning bidder, wrote
several letters to the COMELEC requesting the formal execution
of the contract, but to no avail.
Then Chairman Benipayo, through various press releases
and public statements, announced that the VRIS Project
It’s not a PROVREM 2015  13

has been scrapped, dropped, junked, or set aside. He further
announced his plan to re-engineer the entire modernization
program of the COMELEC, emphasizing his intention to replace
the VRIS Project with his own version, the Triple E Vision.
Unsatisfied with the adverse turn of events, PHOTOKINA
filed with the Regional Trial Court, Branch 215, Quezon City a
petition for mandamus, prohibition and damages (with prayer
for temporary restraining order, preliminary prohibitory
injunction and preliminary mandatory injunction) against the
COMELEC and all its Commissioners, docketed as Special Civil
Action No. Q- 01- 45405. PHOTOKINA alleged three causes of
action:
1. FIRST, the deliberate refusal of the COMELEC
and its Commissioners to formalize the contract
rendered nugatory the perfected contract
between them;
2. SECOND, in announcing that
the VRIS Project has been junked and that he has
plans to re-engineer the COMELECs entire
modernization
program, Chairman Benipayo committed grave a
buse of discretion; and
3. THIRD, the COMELECs failure to perform its duty
under the contract has caused PHOTOKINA to
incur damages since it has spent substantial time
and resources in the preparation of the bid and
the draft contract.
On December 19, 2001, respondent Judge Ma. Luisa
Quijano-Padilla issued the first assailed Resolution granting
PHOTOKINAs application for a writ of preliminary
prohibitory injunction.
Both parties filed their respective motions for
reconsideration. PHOTOKINA reiterated its plea for a writ of
preliminary mandatory injunction. The COMELEC and its
Commissioners, through the Solicitor General, prayed that the
writ of preliminary prohibitory injunction be set aside and that
the petition for mandamus, prohibition and damages be
dismissed.
On February 8, 2002, respondent judge issued the
second assailed Resolution denying the COMELECs
Omnibus Motion and, this time, granting PHOTOKINAs
application for a writ of preliminary mandatory injunction.
Hence, the instant petition for certiorari filed by the Office
of the Solicitor General (OSG) in behalf of then COMELEC
Chairman Alfredo L. Benipayo and Commissioners Resurreccion
Z. Borra and Florentino A. Tuason, Jr..
Petitioners contend that:
1. A petition for mandamus and prohibition does
not lie to enforce contractual obligations, hence,
PHOTOKINAs proper recourse before the
Regional Trial Court should have been an action
for specific performance;
2. Respondent judge, by issuing the injunctive
writs, already assumed that the VRIS Project was
lawfully awarded by the COMELEC to
WEEK 10 CERTIORARI, PROHIBITION, MANDAMUS
PHOTOKINA, and that there is a valid perfected
contract between them, thus, manifesting her
prejudgment; and
3. Injunctive writs should not be issued when an
action for damages can adequately compensate
for the injuries. Petitioners pray that the two
assailed Resolutions be nullified and Special Civil
Action No. Q-01-45405 be dismissed outright.
On February 21, 2002, the majority of the COMELEC
Commissioners -- Luzviminda G. Tancangco, Rufino S.B. Javier,
Ralph C. Lantion and Mehol K. Sadain filed with this Court a
Manifestation that the Chairman and the two Commissioners
who filed the instant Petition acted without authority from the
COMELEC en banc to take such action.
PHOTOKINA filed a Comment with Motion to Dismiss
based on two procedural grounds. First, the petition violates
the doctrine of hierarchy of courts. And second, the OSG has no
authority and/or standing to file the petition considering that
the petitioners have not been authorized by the COMELEC en
banc to take such action. Without the concurrence of at least a
majority of the members of the COMELEC, neither petitioners
nor the OSG could file the petition in behalf of the COMELEC.
In refutation of petitioners arguments, PHOTOKINA
contends that mandamus is an appropriate remedy since what
is involved in Special Civil Action No. Q-01-45405 is the
performance of a ministerial duty.
Issues:
1) Is a petition for mandamus the appropriate remedy to
enforce contractual obligations?
2) May a successful bidder compel a government agency
to formalize a
contract with it notwithstanding that its bid exceeds
the amount appropriated by Congress for the project?
Ruling:
1. NO.
No rule of law is better settled than that mandamus does
not lie to enforce the performance of contractual
obligations. The passage of time has not eroded the wisdom of
the foregoing rule. The Supreme Court carefully read the
pleadings filed in Special Civil Action No. Q-01-45405 and are
convinced that what PHOTOKINA sought to enforce therein are
its rights under the accepted bid proposal. Its petition alleged
that notwithstanding the COMELECs issuance of a Notice of
Award and its (PHOTOKINAs) subsequent acceptance thereof,
the COMELEC still refused to formalize the contract. As a relief,
PHOTOKINA prayed that after trial, petitioners be directed to
review and finalize the formal contract and to implement the
VRIS Project. Petitioners, on their part, specifically denied the
existence of a perfected contract and asserted that even if there
was one, the same is null and void for lack of proper
appropriation. Petitioners labeled the contract as illegal and
against public policy.
Mandamus is not the proper recourse to enforce the
COMELEC's alleged contractual obligations with
PHOTOKINA. It has other adequate remedy in law. Moreover,
It’s not a PROVREM 2015  14

worth stressing is the judicial caution
that mandamus applies as a remedy only
where petitioner's right is founded clearly in law
and not when it is doubtful. In varying language, the principle
echoed and reechoed is that legal rights may be enforced by
mandamus only if those rights are well-defined, clear and
certain. Here, the alleged contract, relied upon by PHOTOKINA
as source of its rights which it seeks to be protected, is being
disputed, not only on the ground that it was not perfected but
also because it is illegal and against public policy.
There are cases in which the writ of mandamus has been
used to compel public officers to perform certain acts, but it will
be generally observed that in such cases, the contracts have
been completely performed by the petitioner, and nothing
remained to be done except for the government to make
compensation.
2. NO.
Enshrined in the 1987 Philippine Constitution is the
mandate that "no money shall be paid out of the Treasury except
in pursuance of an appropriation made by law." Thus, in the
execution of government contracts, the precise import of this
constitutional restriction is to require the various agencies to
limit their expenditures within the appropriations made by law
for each fiscal year.
Complementary to the foregoing constitutional injunction
are pertinent provisions of law and administrative issuances that
are designed to effectuate the above mandate in a detailed
manner. Sections 46 and 47, Chapter 8, Subtitle B, Title I, Book V
of Executive Order No. 292, otherwise known as "Administrative
Code of 1987," provide:
"SEC. 46. Appropriation Before Entering into Contract. -
(1) No contract involving the expenditure of public funds
shall be entered into unless there is an appropriation
therefor, the unexpended balance of which, free of other
obligations, is sufficient to cover the proposed expenditure;
and x x x
"SEC. 47. Certificate Showing Appropriation to Meet
Contract. - Except in the case of a contract for personal
service, for supplies for current consumption or to be
carried in stock not exceeding the estimated consumption
for three (3) months, or banking transactions of
government-owned or controlled banks, no contract
involving the expenditure of public funds by any
government agency shall be entered into or authorized
unless the proper accounting official of the agency
concerned shall have certified to the officer entering
into the obligation that funds have been duly
appropriated for the purpose and that the amount
necessary to cover the proposed contract for the
current calendar year is available for expenditure on
account thereof, subject to verification by the auditor
concerned. The certificate signed by the proper accounting
official and the auditor who verified it, shall be attached to
and become an integral part of the proposed contract, and
the sum so certified shall not thereafter be available for
expenditure for any other purpose until the obligation of
WEEK 10 CERTIORARI, PROHIBITION, MANDAMUS
the government agency concerned under the contract is
fully extinguished.
It is quite evident from the tenor of the language of the law
that the existence of appropriations and the availability of funds
are indispensable pre-requisites to or conditions sine qua non for
the execution of government contracts. The obvious intent is to
impose such conditions as a priori requisites to the validity of the
proposed contract. Using this as the premise, the Supreme
Court cannot accede to PHOTOKINA's contention that there
is already a perfected contract.
In the case at bar, there seems to be an oversight of the
legal requirements as early as the bidding stage. The first step of
a Bids and Awards Committee (BAC) is to determine
whether the bids comply with the requirements. The BAC shall
rate a bid "passed" only if it complies with all the requirements
and the submitted price does not exceed the approved budget for
the contract."
Extant on the record is the fact that the VRIS Project was
awarded to PHOTOKINA on account of its bid in the amount of
P6.588 Billion Pesos. However, under Republic Act No. 8760, the
only fund appropriated for the project was P1 Billion Pesos and
under the Certification of Available Funds[ (CAF) only P1.2 Billion
Pesos was available. Clearly, the amount appropriated is
insufficient to cover the cost of the entire VRIS Project. There is
no way that the COMELEC could enter into a contract with
PHOTOKINA whose accepted bid was way beyond the amount
appropriated by law for the project. This being the case, the BAC
should have rejected the bid for being excessive[ or should
have withdrawn the Notice of Award on the ground that in the
eyes of the law, the same is null and void.
Petitioners are justified in refusing to formalize the contract
with PHOTOKINA. Prudence dictated them not to enter into a
contract not backed up by sufficient appropriation and available
funds. Definitely, to act otherwise would be a futile exercise for
the contract would inevitably suffer the vice of nullity.
The prohibition contained in Sec. 85 of PD 1445 (Government
Auditing Code) is explicit and mandatory. Fund availability is,
as it has always been, an indispensable prerequisite to the
execution of any government contract involving the expenditure
of public funds by all government agencies at all levels. Such
contracts are not to be considered as final or binding unless such
a certification as to funds availability is issued.
Verily, the contract, as expressly declared by law,
is inexistent and void ab initio. This is to say that the proposed
contract is without force and effect from the very beginning or
from its incipiency, as if it had never been entered into, and
hence, cannot be validated either by lapse of time or ratification.
In fine, PHOTOKINA, though the winning bidder, cannot
compel the COMELEC to formalize the contract. Since
PHOTOKINAs bid is beyond the amount appropriated by
Congress for the VRIS Project, the proposed contract is not
binding upon the COMELEC and is considered void; and that in
issuing the questioned preliminary writs of mandatory and
prohibitory injunction and in not dismissing Special Civil Action
No. Q-01-45405, respondent judge acted with grave abuse of
discretion. Petitioners cannot be compelled by a writ
It’s not a PROVREM 2015  15

of mandamus to discharge a duty that involves the exercise of
judgment and discretion, especially where disbursement of
public funds is concerned.
SHORT DIGEST
Facts:
Congress enacted RA 8189 or the “Voter’s Registration
Act of 1996”, this provided for the modernization and
computerization of the voter’s registration list, and
appropriation of funds therefor. Pursuant to the said RA,
COMELEC promulgated a Resolution approving the Voter’s
Registration and Identification Project (VRIS) which envisions a
computerized database system for the May 2004 elections.
COMELEC issued invitations for bid and it was awarded to
PHOTOKINA Marketing Corporation, which received the highest
total weighted score and declared winning bidder. (BID was
6.58 B Pesos). HOWEVER, RA 8760 provided that the budget
appropriated by Congress for the COMELEC’s modernization
project was only 1B and actual available funds under Certificate
of Availability of Funds (CAF) was 1.2B. PHOTOKINA requested
the execution of the contract, but to no avail. PHOTOKINA filed a
petition with the RTC and was granted, it directed the
Commissioners to resume negotiations to formalize the
execution of the contract for the VRIS project. COMELEC filed a
complaint against respondent judge.
ADDITIONAL INFORMATION FOR THE ISSUE CITED IN
NUMBER 1:
As early as 1924, Justice Street, in Quiogue vs. Romualdez,
already set forth the justification of this rule, thus:
Upon the facts above stated we are of the opinion that
the writ of mandamus is not the appropriate, or even an
admissible remedy. It is manifest that whatever rights
the petitioner may have, upon the facts stated, are
derived from her contract with the city; and no rule of
law is better settled than that mandamus never lies to
enforce the performance of private contracts. x x x The
petitioners remedy, if any she has, is by an original
action in the Court of First Instance to compel the city to
pay the agreed price or to pay damages for the breach of
contract.
"x x x. As said in Lowe vs. Phelps (14 Bush, 642):
It must, therefore, appear upon every application for
a mandamus that it is the legal duty of the respondent to
do that which it is sought to compel him to do, and that
he has upon proper application refused to perform that
duty.' (Citing numerous authorities).
"It was not intended to aid a plaintiff in the enforcement
of a mere contract right, or to take the place of the other
remedies provided by law for the adjudication of
disputed claims. Looking at the case from the
standpoint of appellant, it involves nothing more than
an ordinary breach of contract. If, as contended, the
appellant had a valid contract with the school board, it
WEEK 10 CERTIORARI, PROHIBITION, MANDAMUS
also had an adequate remedy at law to recover damages
for its breach; and to permit the writ of mandamus to be
used for the purpose of enforcing a mere contract right
would be a wide departure from the settled practice in
respect to the character of cases in which relief
by mandamus may be obtained.
"In Parrott vs. City of Bridgeport (44 Conn., 180), the
writ was refused where the petitioner sought to compel
a city to construct a public street in a certain manner
agreeably to the terms of a special agreement between
the petitioner and the city. In the course of the opinion
the court said:
"* * * The duty, therefore, if any, which rests upon the
city in this regard, is one which it owes to the petitioner
as an individual, not to the public, and the special
contract is the foundation upon which it rests. But the
writ of mandamus has never been considered as an
appropriate remedy for the enforcement of contract
rights of a private and personal nature and obligations
which rest wholly upon contract and which involve no
questions of public trusts or official duty. Indeed,
strictly speaking, it never lies where the party aggrieved
has adequate remedy at law, and its aid is only to be
invoked to prevent an absolute failure of justice in cases
where ordinary legal processes furnish no relief.
XI.Z METROPOLITAN MANILA DEVELOPMENT AUTHORITY,
ET AL. V. CONCERNED RESIDENTS OF MANILA BAY, G.R. NOS.
171947-48, DECEMBER 18, 2008 REALINO
PRINCIPLE:
Cleaning or Rehabilitation of Manila Bay Can be Compelled
by Mandamus. The Court may, under extraordinary
circumstances, issue directives with the end in view of ensuring
that its decision would not be set to naught by administrative
inaction or indifference.
FACTS:
Petitioners maintain that the MMDA’s duty to take measures
and maintain adequate solid waste and liquid disposal systems
necessarily involves policy evaluation and the exercise of
judgment on the part of the agency concerned. They argue that
the MMDA, in carrying out its mandate, has to make decisions,
including choosing where a landfill should be located by
undertaking feasibility studies and cost estimates, all of which
entail the exercise of discretion.
Respondents, on the other hand, counter that the statutory
command is clear and that petitioners’ duty to comply with and
act according to the clear mandate of the law does not require
the exercise of discretion. According to respondents, petitioners,
the MMDA in particular, are without discretion, for example, to
choose which bodies of water they are to clean up, or which
discharge or spill they are to contain. By the same token,
respondents maintain that petitioners are bereft of discretion
on whether or not to alleviate the problem of solid and liquid
waste disposal; in other words, it is the MMDA’s ministerial duty
to attend to such services.
It’s not a PROVREM 2015  16

ISSUE:
Whether or not the Court may compel by mandamus
administrative inaction or indifference.
RULING:
YES. The Supreme Court agreed with the respondents.
Under what other judicial discipline describes as “continuing
mandamus,”[36] the Court may, under extraordinary
circumstances, issue directives with the end in view of ensuring
that its decision would not be set to naught by administrative
inaction or indifference. In India, the doctrine of continuing
mandamus was used to enforce directives of the court to clean
up the length of the Ganges River from industrial and municipal
pollution.
First off, the petitioners’ obligation to perform their duties as
defined by law, on one hand, and how they are to carry out such
duties, on the other, are two different concepts.
The cleanup and/or restoration of the Manila Bay is only an
aspect and the initial stage of the long-term solution. The
preservation of the water quality of the bay after the
rehabilitation process is as important as the cleaning phase. It is
imperative then that the wastes and contaminants found in the
rivers, inland bays, and other bodies of water be stopped from
reaching the Manila Bay. Otherwise, any cleanup effort would
just be a futile, cosmetic exercise, for, in no time at all, the
Manila Bay water quality would again deteriorate below the
ideal minimum standards set by PD 1152, RA 9275, and other
relevant laws. It thus behooves the Court to put the heads of the
petitioner-department-agencies and the bureaus and offices
under them on continuing notice about, and to enjoin them to
perform, their mandates and duties towards cleaning up the
Manila Bay and preserving the quality of its water to the ideal
level.
The heads of petitioners-agencies MMDA, DENR, DepEd, DOH,
DA, DPWH, DBM, PCG, PNP Maritime Group, DILG, and also of
MWSS, LWUA, and PPA, in line with the principle of “continuing
mandamus,” shall, from finality of this Decision, each submit to
the Court a quarterly progressive report of the activities
undertaken in accordance with this Decision.
XI.AA • MANALO V. PAIC SAVINGS BANK, G.R. NO. 146531,
MARCH 18, 2005 GARBANZOS
FACTS:
- On July 19, 1983, S. Villanueva Enterprises, Inc., represented
by its president, Therese Villanueva Vargas, impleaded as a
respondent, obtained a P3,000,000.00 loan from PAIC
Savings and Mortgage Bank, also a respondent. As security
for the loan, respondents mortgaged two (2) lots situated in
Pasay City covered by Transfer Certificate of Title (TCT) No.
6076 of the Registry of Deeds, same city.
- Respondent Vargas failed to pay the loan so the mortgage
was foreclosed and the lots were sold at public auction to
respondent bank, being the highest bidder.
WEEK 10 CERTIORARI, PROHIBITION, MANDAMUS
- Seven years later, respondent Vargas filed with the Regional
Trial Court (RTC), Branch 116, Pasay City, a complaint for
annulment of mortgage and extrajudicial foreclosure against
respondent bank, docketed as Civil Case No. R-8477 which
the RTC dismissed for lack of merit.
- On appeal, the Court of Appeals, in a Decision dated October
28, 1996, affirmed the RTC Decision, sustaining the legality
of the mortgage and the foreclosure proceedings. The
Decision of the Appellate Court then became final and
executory.
- Meantime or on June 22, 1992, respondent bank filed with
the RTC, Branch 112, Pasay City, a petition for issuance of a
writ of possession, docketed as Civil Case No. 9011-P. The
Court granted the petition.
- Earlier or on December 23, 1992, respondent Vargas sold to
Armando Angsico the lots for P18,000,500.00. Then on
August 24, 1994, respondent Vargas leased to Domingo R.
Manalo, petitioner, a portion of the same lots consisting of
450 square meters for a period of ten (10) years with a
monthly rental of P22,500.00. Later, or on June 29, 1997,
Angsico assigned and transferred to petitioner all his rights
to the property as shown by a Deed of Assignment and
Transfer of Rights.
- On May 7, 1998, petitioner filed with the RTC, Branch 231,
Pasay City, a complaint for specific performance and
damages against respondent bank, its liquidator and/or
receiver PDIC, and respondent Vargas. Petitioner prayed
that the trial court issue a writ of mandamus compelling
respondent bank (1) to allow him to redeem and/or
repurchase the subject lots for P18,000,000.00; and (2) to
release to him TCT No. 6076.
- Instead of filing an answer, respondent bank filed a motion
to dismiss the complaint on the following grounds: (1) the
trial court has no jurisdiction over the subject property; and
(2) the complaint fails to state a sufficient cause of action.
Respondent bank averred that petitioner has no legal
interest in the subject lots since as early as December 4,
1985, the title thereto was consolidated in its name when
respondent Vargas, petitioners predecessor-in-interest,
failed to exercise her right of redemption.
- On September 29, 1998, the RTC issued an Order denying
respondent banks motion to dismiss the complaint.
- On September 4, 2000, the RTC rendered a Decision
dismissing the complaint for lack of an enforceable cause of
action.
- On appeal, the CA affirmed the decision of the RTC. Hence,
this petition.
ISSUE:
WHETHER OR NOT THE CA ERRED IN HOLDING THAT THE
PETITIONER FAILED TO ESTABLISH A CAUSE OF ACTION AND
THAT MANDAMUS IS NOT THE CORRECT REMEDY.
RULING:
The Court ruled in the NEGATIVE.
It’s not a PROVREM 2015  17

We hold that mandamus is not the proper recourse to
enforce petitioners alleged right of redemption. To begin
with, mandamus applies as a remedy only where petitioners right
is founded clearly in law and not when it is doubtful.[3] In varying
language, the principle echoed and reechoed is that legal rights
may be enforced by mandamus only if those rights are well-
defined, clear and certain.[4]
On December 4, 1985 or when respondent Vargas failed to
exercise her right of redemption within the one (1) year
redemption period, respondent bank ipso facto became the
absolute owner of the lots. Surprisingly, however, on December
23, 1992, she sold the property for P18,000,500.00 to Angsico,
who eventually transferred his rights to petitioner. Not only that,
on August 24, 1994, respondent Vargas still leased to petitioner a
portion of the subject lots.
Verily, when respondent bank became the owner of the lots
on December 4, 1985, respondent Vargas could no longer legally
transfer, cede and convey the property to petitioner.
Moreover, mandamus cannot be availed of as a remedy to
enforce the performance of contractual obligations.
QUICK DIGEST:
A Enterprises, Inc., represented by its president, THERESA,
obtained a P3,000,000.00 loan from PAIC Savings and Mortgage
Bank, also a respondent. As security for the loan, respondents
mortgaged two (2) lots situated in Pasay City covered by Transfer
Certificate of Title (TCT) No. 6076 of the Registry of Deeds, same
city.Respondent failed to pay the loan so the mortgage was
foreclosed and the lots were sold at public auction to respondent
bank, being the highest bidder.Seven years later, respondent
THERESA filed with the Regional Trial Court, a complaint for
annulment of mortgage and extrajudicial foreclosure against
respondent bank, which the RTC dismissed for lack of merit. On
appeal, the Court of Appeals, in a Decision dated October 28,
1996, affirmed the RTC DecisionThe Decision of the Appellate
Court then became final and executory.
Meantime or on June 22, 1992, respondent bank filed with
the RTC, a petition for issuance of a writ of possession. The Court
granted the petition.Earlier or on December 23, 1992,
respondent THERESA sold to ARMANDO the lots
for P18,000,500.00. Then on August 24, 1994, respondent
THERESA leased to DOMINGO, petitioner, a portion of the same
lots consisting of 450 square meters for a period of ten (10) years
with a monthly rental of P22,500.00. Later, or on June 29, 1997,
Angsico assigned and transferred to petitioner all his rights to the
property.
On May 7, 1998, petitioner filed with the RTC, Branch 231,
Pasay City, a complaint for specific performance and damages
against respondent bank, its liquidator and/or receiver PDIC, and
respondent THERESA. Petitioner prayed that the trial court issue
a writ of mandamus compelling respondent bank (1) to allow
him to redeem and/or repurchase the subject lots
for P18,000,000.00; and (2) to release to him TCT No. 6076.
Instead of filing an answer, respondent bank filed a motion
to dismiss the complaint which the RTC denied. The RTC
rendered a Decision dismissing the complaint for lack of an
WEEK 10 CERTIORARI, PROHIBITION, MANDAMUS
enforceable cause of action.On appeal, the CA affirmed the
decision of the RTC. Hence, this petition.
UP BOARD OF REGENTS V. CA, G.R. NO. 134625, AUGUST 31,
1999 SILVA
Principle: Mandamus is never issued in doubtful cases, a
showing of a clear and certain right on the part of the petitioner
being required. It is of no avail against an official or government
agency whose duty requires the exercise of discretion or
judgment.
FACTS:
Private respondent (PR) Arokiaswamy William Margaret
Celine is a citizen of India and enrolled in the doctoral program in
Anthropology of the UP Diliman - College of Social Sciences and
Philosophy (CSSP).
PR had an oral defense held for her dissertation. After going
over PR’s dissertation, it was found that there was a portion in
PR’s that was lifted, without proper acknowledgment from
different sources. Four out of five panelists gave private
respondent a passing mark for her oral defense by affixing their
signatures on the approval form, but recommended she passed a
revised dissertation. This dissertation was her key to graduate
and to obtain a degree in Anthropology.
Failing to comply with the revisions, 2 panels did not
approve of her dissertation. Dean Paz sent a letter to, Vice
Chancellor for Academic Affairs, requesting the exclusion of
private respondents name from the list of candidates for
graduation, pending clarification of the problems regarding her
dissertation. But it did not reach the Board of Regents on time. PR
graduated with the degree of Doctor of Philosophy in
Anthropology.
After more investigations by different Committees, Dean
Paz wrote a letter to PR informing her that she wasformally
charged with plagiarism and recommended that the doctorate
granted to her be withdrawn. It was found that at least ninety
(90) instances or portions in private respondents thesis which
were lifted from sources without proper or due acknowledgment.
The CSSP College Assembly unanimously approved the
recommendation to withdraw PR’s doctorate degree and
forwarded its recommendation to the University Council. The
University Council, in turn, approved and endorsed the same
recommendation to the Petitioner Board of Regents.
The University Council also recommended to the Board of
Regents that PR be barred in the future from admission to the
University either as a student or as an employee.
PR then filed a petition for mandamus with a prayer for a
writ of preliminary mandatory injunction and damages in the
Regional Trial Court of Quezon City - that petitioners had
unlawfully withdrawn her degree without justification and
without affording her procedural due process and that she be
restored her degree and payed damages.
RTC dismissed the petition for mandamus for lack of merit.
CA reversed the lower court’s ruling and ordered to restore her
degree of PhD in Anthropology.Hence, this petition.
It’s not a PROVREM 2015  18

Petitioners argument: that PR failed to show that she had been
unlawfully excluded from the use and enjoyment of a right or
office to which she is entitled so as to justify the issuance of the
writ of mandamus. They also contend that she failed to prove that
the restoration of her degree is a ministerial duty of U.P. or that
the withdrawal of the degree violated her right to the enjoyment
of intellectual property.
Private respondent’s argument: that petitioners acted
arbitrarily and with grave abuse of discretion in withdrawing her
degree even prior to verifying the truth of the plagiarism charge
against her; and that as her answer to the charges had not been
forwarded to the members of the investigating committees, she
was deprived of the opportunity to comment or refute their
findings/ deprived of due process
ISSUE:WON COURT OF APPEALS ERRED ON A QUESTION OF
LAW IN GRANTING THE WRIT OF MANDAMUS AND ORDERING
PETITIONERS TO RESTORE RESPONDENTS DOCTORAL DEGREE.
RULING:
YES.
Mandamus is a writ commanding a tribunal,
corporation, board or person to do the act required to be done
when it or he unlawfully neglects the performance of an act
which the law specifically enjoins as a duty resulting from an
office, trust, or station, or unlawfully excludes another from the
use and enjoyment of a right or office to which such other is
entitled, there being no other plain, speedy, and adequate remedy
in the ordinary course of law.Mandamus is never issued in
doubtful cases, a showing of a clear and certain right on the part
of the petitioner being required. It is of no avail against an official
or government agency whose duty requires the exercise of
discretion or judgment.
In this case, herein PR had no clear and certain right to
obtain or restore her degree on Anthropology. The Board of
Regents determined, after due investigation conducted by a
committee composed of faculty members from different U.P.
units, that private respondent committed no less than ninety (90)
instances of intellectual dishonesty in her dissertation. The Board
of Regents decision to withdraw PR’s doctorate was based on
documents on record including her admission that she
committed the offense. On the other hand, private respondent
was afforded the opportunity to be heard and explain her side
but failed to refute the charges of plagiarism against her. Her only
claim is that her responses to the charges against her were not
considered by the Board of Regents before it rendered its
decision. However, this claim was not proven. Accordingly, we
must presume regularity in the performance of official duties in
the absence of proof to the contrary.
Petition for Mandamus is dismissed.
Incase sir asks on academic freedom: Art. XIV, 5 (2) of the
Constitution provides that academic freedom shall be enjoyed in all
institutions of higher learning. If such institution of higher learning
can decide who can and who cannot study in it, it certainly can also
determine on whom it can confer the honor and distinction of being
WEEK 10 CERTIORARI, PROHIBITION, MANDAMUS
its graduates.Under the U.P. Charter, the Board of Regents is the
highest governing body of the University of the Philippines. If the
conferment of a degree is founded on error or fraud, the Board of
Regents is also empowered, subject to the observance of due
process, to withdraw what it has granted without violating a
students rights.
Quick digest:
Facts:
Private respondent (PR) is enrolled in the doctoral program in
Anthropology of the UP Diliman - College of Social Sciences and
Philosophy (CSSP). For her to graduate, she had to defend a
dissertation. After her oral defense, it was found that parts of her
paper were lifted from sources without proper acknowledgment.
With this, the panel of judges asked her to revise her dissertation.
She failed to do so, nonetheless was able to graduate and get her
degree in Anthropology. It was later found out that PR’s
dissertations contained 90 instances of intellectual dishonesty.
Thus, her degree was withdrawn from her by the Petitioner
Board of Regents.
PR then filed a petition for mandamus with a prayer for a writ of
preliminary mandatory injunction and damages in the Regional
Trial Court of Quezon City - that petitioners had unlawfully
withdrawn her degree without justification and without affording
her procedural due process and that she be restored her degree
and payed damages.
RTC dismissed the petition for mandamus for lack of merit.
CA reversed the lower court’s ruling and ordered to restore her
degree of PhD in Anthropology.
Issue: WON CA erred in approving the writ of mandamus and
ordering the restoration of PR’s degree.
Ruling: YES.
Mandamus is a writ commanding a tribunal, corporation, board
or person to do the act required to be done when it or he
unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or
station, or unlawfully excludes another from the use and
enjoyment of a right or office to which such other is entitled,
there being no other plain, speedy, and adequate remedy in the
ordinary course of law.Mandamus is never issued in doubtful
cases, a showing of a clear and certain right on the part of the
petitioner being required. It is of no avail against an official or
government agency whose duty requires the exercise of
discretion or judgment.
In this case, herein PR had no clear and certain right to
obtain or restore her degree on Anthropology. The Board of
Regents determined, after due investigation conducted by a
committee that private respondent committed no less than
ninety (90) instances of intellectual dishonesty in her
dissertation. The Board of Regents decision to withdraw PR’s
doctorate was based on documents on record including her
admission that she committed the offense.Presumption of
regularity in the performance of official duties is upheld in the
absence of proof to the contrary. Mandamus will not lie.
It’s not a PROVREM 2015  19

XI.AB LAGUNA METTS CORPORATION V. CAALAM, ET AL.,
G.R. NO. 185220, JULY 27, 2009 VALDEZ
PRINCIPLE:
As the Rule now stands, petitions for certiorari must be filed
strictly within 60 days from notice of judgment or from the order
denying a motion for reconsideration.
FACTS:
This petition arose from a labor case filed by private respondents
Aries C. Caalam and Geraldine Esguerra against petitioner Laguna
Metts Corporation (LMC). The labor arbiter decided in favor of
private respondents and found that they were illegally dismissed
by LMC. On appeal, however, the National Labor Relations
Commission (NLRC) reversed the decision of the labor arbiter in
a decision dated February 21, 2008. Private respondents motion
for reconsideration was denied in a resolution dated April 30,
2008.
Counsel for private respondents received the April 30, 2008
resolution of the NLRC on May 26, 2008. On July 25, 2008, he
filed a motion for extension of time to file petition for certiorari
under Rule 65 of the Rules of Court.The motion alleged that, for
reasons stated therein, the petition could not be filed in the Court
of Appeals within the prescribed 60-day period. Thus, a 15-day
extension period was prayed for.
In a resolution dated August 7, 2008, the Court of Appeals
granted the motion and gave private respondents a non-
extendible period of 15 days within which to file their petition for
certiorari. LMC moved for the reconsideration of the said
resolution claiming that extensions of time to file a petition for
certiorari are no longer allowed under Section 4, Rule 65 of the
Rules of Court, as amended by A.M. No. 07-7-12-SC dated
December 4, 2007.This was denied in a resolution dated October
22, 2008. According to the appellate court, while the amendment
of the third paragraph of Section 4, Rule 65 admittedly calls for
stricter application to discourage the filing of unwarranted
motions for extension of time, it did not strip the Court of Appeals
of the discretionary power to grant a motion for extension in
exceptional cases to serve the ends of justice.
Aggrieved, LMC now assails the resolutions dated August 7, 2008
and October 22, 2008 of the Court of Appeals in its petition for
certiorari under Rule 65 of the Rules of Court. It contends that the
Court of Appeals committed grave abuse of discretion when it
granted private respondents motion for extension of time to file
petition for certiorari as the Court of Appeals had no power to
grant something that had already been expressly deleted from
the rules.
ISSUE:
Whether or not a motion for extension to file a petition for
certiorari is allowed.
RULING:
NO.
WEEK 10 CERTIORARI, PROHIBITION, MANDAMUS
Rules of procedure must be faithfully complied with and should
not be discarded with the mere expediency of claiming
substantial merit. As a corollary, rules prescribing the time for
doing specific acts or for taking certain proceedings are
considered absolutely indispensable to prevent needless delays
and to orderly and promptly discharge judicial business. By their
very nature, these rules are regarded as mandatory.
In De Los Santos v. Court of Appeals, we ruled:
Section 4 of Rule 65 prescribes a period of 60 days within which
to file a petition for certiorari. The 60-day period is deemed
reasonable and sufficient time for a party to mull over and to
prepare a petition asserting grave abuse of discretion by a lower
court. The period was specifically set to avoid any unreasonable
delay that would violate the constitutional rights of the parties to
a speedy disposition of their case. (emphasis supplied)
While the proper courts previously had discretion to extend the
period for filing a petition for certiorari beyond the 60-day
period, the amendments to Rule 65 under A.M. No. 07-7-12-SC
disallowed extensions of time to file a petition for certiorari with
the deletion of the paragraph that previously permitted such
extensions.
Section 4, Rule 65 previously read:
SEC. 4. When and where petition filed. The petition shall be filed
not later than sixty (60) days from notice of the judgment or
resolution. In case a motion for reconsideration or new trial is
timely filed, whether such motion is required or not, the sixty (60)
day period shall be counted from notice of the denial of said
motion.
The petition shall be filed in the Supreme Court or, if it relates to
the acts or omissions of a lower court or of a corporation, board,
officer or person, in the Regional Trial Court exercising
jurisdiction over the territorial area as defined by the Supreme
Court. It may also be filed in the Court of Appeals whether or not
the same is in aid of its appellate jurisdiction, or in the
Sandiganbayan if it is in aid of its appellate jurisdiction. If it
involves the acts or omissions of a quasi-judicial agency, and
unless otherwise provided by law or these rules, the petition
shall be filed in and cognizable only by the Court of Appeals.
No extension of time to file the petition shall be granted except
for compelling reason and in no case exceeding 15 days.
(emphasis supplied)
With its amendment under A.M. No. 07-7-12-SC, it now reads:
SEC. 4. When and where to file petition. The petition shall be filed
not later than sixty (60) days from notice of the judgment or
resolution. In case a motion for reconsideration or new trial is
timely filed, whether such motion is required or not, the sixty (60)
day period shall be counted from the notice of the denial of the
motion.
It’s not a PROVREM 2015  20

If the petition relates to an act or an omission of a municipal trial
court or of a corporation, a board, an officer or a person, it shall
be filed with the Regional Trial Court exercising jurisdiction over
the territorial area as defined by the Supreme Court. It may also
be filed in the Court of Appeals or with the Sandiganbayan,
whether or not the same is in aid of the courts appellate
jurisdiction. If the petition involves an act or an omission of a
quasi-judicial agency, unless otherwise provided by law or these
rules, the petition shall be filed with and be cognizable only by
the Court of Appeals.
In election cases involving an act or omission of a municipal or a
regional trial court, the petition shall be filed exclusively with the
Commission on Elections, in aid of its appellate jurisdiction.
As a rule, an amendment by the deletion of certain words or
phrases indicates an intention to change its meaning. It is
presumed that the deletion would not have been made if there
had been no intention to effect a change in the meaning of the law
or rule. The amended law or rule should accordingly be given a
construction different from that previous to its amendment.
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 60-day period within which to file
a petition for certiorari.
The rationale for the amendments under A.M. No. 07-7-12-SC is
essentially to prevent the use (or abuse) of the petition for
certiorari under Rule 65 to delay a case or even defeat the ends of
justice. Deleting the paragraph allowing extensions to file petition
on compelling grounds did away with the filing of such motions.
As the Rule now stands, petitions for certiorari must be filed
strictly within 60 days from notice of judgment or from the order
denying a motion for reconsideration.
In granting the private respondents motion for extension of time
to file petition for certiorari, the Court of Appeals disregarded
A.M. No. 07-7-12-SC. The action amounted to a modification, if
not outright reversal, by the Court of Appeals of A.M. No. 07-7-12-
SC. In so doing, the Court of Appeals arrogated to itself a power it
did not possess, a power that only this Court may exercise. For
this reason, the challenged resolutions dated August 7, 2008 and
October 22, 2008 were invalid as they were rendered by the
Court of Appeals in excess of its jurisdiction.
Even assuming that the Court of Appeals retained the discretion
to grant extensions of time to file a petition for certiorari for
compelling reasons, the reasons proffered by private
respondents counsel did not qualify as compelling. Heavy
workload is relative and often self-serving. Standing alone, it is
not a sufficient reason to deviate from the 60-day rule.
QUICK DIGEST
FACTS:
WEEK 10 CERTIORARI, PROHIBITION, MANDAMUS
Private respondents Aries Caalam and Geraldine Esguerra filed
an illegal dismissal case against Laguna Metts Corp (LMC). LA
decided in their favor but the NLRC reversed the decision of the
LA in its February 21, 2008 decision. Private respondents filed a
Motion for reconsideration but it was denied in a resolution
dated April 30, 2008.
Private respondent's counsel received the denial on May 26,
2008. On July 25, 2008, he filed a motion for extension to file
petition for certiorari under Rule 65 of the Rules of Court praying
for an extension of 15 days.
CA granted a non-extendible 15-day period. LMC moved for the
reconsideration of the resolution claiming that under the current
Sec 4 of Rule 65 as amended by AM No. 07-7-12-SC dated Dec. 4
2007, extension of time to file a petition for certiorari is no longer
allowed.
CA denied LMC’s motion and said that the new rule only
discouraged the filing of unwarranted motions for extension of
time but did not strip the CA of its discretionary power to grant
extensions in exceptional cases, in the interest of justice.
Aggrieved, LMC files a petition for certiorari in the SC claiming
grave abuse of discretion of the CA.
ISSUE:
Wether or not a motion for extension to file a petition for
certiorari is allowed.
RULING:
NO.
The amended rules explicitly deleted the last paragraph of
Section 4 of Rule 65 allowing for an extension of the period for
not longer than 15 days due to compelling reasons.
As a rule, an amendment by deletion of certain words or phrases
indicates an intention to change its meaning. If the Court
intended to retain the authority of the proper courts to grant
extensions under Sec 4 of Rule 65, the paragraph providing 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 60-day period within which to file a petition for
certiorari.
The rationale for the amendment is to essentially prevent the use
(or abuse) of the petition for certiorari under Rule 65 to delay a
case or even defeat the ends of justice. Deleting the paragraph
allowing extensions to file petition on compelling grounds did
away with the filing of such motions. As the Rule now stands,
petitions for certiorari must be filed strictly within 60 days from
notice of judgment or from the order denying a motion for
reconsideration.
XI.AC LAPID V. LAUREA, G.R. NO. 139607, OCTOBER 28, 2002
ALTERADO
PRINCIPLE:
It’s not a PROVREM 2015  21

In filing a special civil action for certiorari without
indicating the requisite material date thereon, petitioners
violated basic tenets of remedial law, particularly Rule 65 of the
Rules of Court.
There are three material dates that must be stated in a petition
for certiorari brought under Rule 65. First, the date when notice
of the judgment or final order or resolution was received; second,
the date when a motion for new trial or for reconsideration was
filed; and third, the date when notice of the denial thereof was
received.
LONG DIGEST
FACTS:
Petitioner Spouses Ramon Isidro P. Lapid and Gladys B.
Lapid are the parents of seven-year-old Christopher B. Lapid,
who was a Grade 1 pupil of the respondent school, St. Therese of
the Child Jesus, a private educational institution providing
preschool and elementary education at Malabon, Metro
Manila. Private respondents of this case are the directress,
teacher-in-charge, guidance counselor and principal of the
school, respectively.
Petitioners filed a complaint for damages against the
private respondents before the Regional Trial Court (RTC),
Malabon, Metro Manila, presided by herein respondent Judge
Laurea.
In their complaint, the Lapid spouses averred that on
November 5, 1997, Mrs. Lapid went to St. Therese and looked for
Ms. Norilyn A. Cruz, Christophers classroom teacher. The
directress, Mrs. Esperanza N. Prim, prohibited her from seeing
Ms. Cruz so as not to disrupt ongoing classes. Mrs. Prim advised
Mrs. Lapid to return later that day.
On her return, Mrs. Lapid was surprised to see that a letter
prepared by Mr. Binondo, the school principal, was already
waiting for her, apprising her of Christophers suspension for five
days effective the following day or on November 6, 1997.
Petitioners averred that their son was summarily dismissed from
school sans notice and hearing.
Petitioners denied any knowledge of the alleged letters of
complaint filed by the parents whose children were allegedly
offended by Christopher. As a result of the strained relations
between the Lapids and the school management, Christopher was
transferred to a different school immediately thereafter.
Petitioners then filed a letter-complaint with Hon. Antonio
Nachura, Undersecretary of the Department of Education, Culture
& Sports (DECS), assailing the respondent schools refusal to
admit their son in his class.
Petitioners also demanded an investigation of the
circumstances leading to their son’s suspension. At the hearing,
petitioners demanded a written retraction and a public apology
from the school officials, copy furnished the DECS. The school
officials, however, refused. This compelled petitioners to file the
present case for damages.
In their answer, respondent school officials stated that as
early as June 1997, Ms. Cruz had been sending them letters
regarding Christopher’s mischief in school. That private
respondent exerted all efforts to communicate with petitioner-
WEEK 10 CERTIORARI, PROHIBITION, MANDAMUS
spouses regarding their son’s behavior, however, that all their
efforts to reach the Lapid spouses personally turned out to be
futile.
Petitioners then filed a motion to declare respondent school
as in default, which motion was denied by the trial court.
Petitioners moved for reconsideration, but said motion was
likewise denied.
With the denial of their motion for reconsideration,
petitioners filed a petition for certiorari with the Court of
Appeals. However, the appellate court dismissed the petition for
failure to indicate the material date, particularly the date of filing
of motion for reconsideration with the RTC, as required by
Supreme Court Circular No. 39-98, amending Section 3 of Rule 46
of the 1997 Rules of Civil Procedure.
In the appellate courts view, this formal requirement is
needed to ascertain whether the petition was filed within the
reglementary period as provided in Section 4, Rule 65 of the
same rules, also as amended by SC Circular No. 39-98.
Unfazed, the petitioners filed a motion for reconsideration
of the CA resolution, but still without indicating the date as to
when their motion for reconsideration of the RTC order was
filed. Hence, in its second assailed resolution, the appellate court
denied said motion for reconsideration.
ISSUE:
WON the Court of Appeals erred in dismissing the petition for
certiorari filed by petitioners on the ground of formal and
procedural deficiency, i.e., the petitioners failure to state a
material date in their petition for certiorari.
HELD:
NO.
After a careful consideration of the submissions of the
parties, particularly their respective memoranda, we are
constrained to agree with the ruling of the respondent appellate
court which dismissed the instant petition for certiorari. We find
no reversible error in the assailed resolutions of the Court of
Appeals because in filing a special civil action for certiorari
without indicating the requisite material date thereon,
petitioners violated basic tenets of remedial law, particularly
Rule 65 of the Rules of Court.
There are three material dates that must be stated in a
petition for certiorari brought under Rule 65. First, the date when
notice of the judgment or final order or resolution was received;
second, the date when a motion for new trial or for
reconsideration was filed; and third, the date when notice of the
denial thereof was received. In the case before us, the petition
filed with the CA failed to indicate the second date, particularly
the date of filing of their motion for reconsideration. As explicitly
stated in the aforementioned Rule, failure to comply with any of
the requirements shall be sufficient ground for the dismissal of
the petition.
It’s not a PROVREM 2015  22

The rationale for this strict provision of the Rules of Court is
not difficult to appreciate. As stated in Santos vs. Court of Appeals,
the requirement is for purpose of determining the timeliness of
the petition, thus:
The requirement of setting forth the three (3) dates in a
petition for certiorari under Rule 65 is for the purpose of
determining its timeliness. Such a petition is required to be
filed not later than sixty (60) days from notice of the
judgment, order or Resolution sought to be
assailed. Therefore, that the petition for certiorari was filed
forty-one (41) days from receipt of the denial of the motion
for reconsideration is hardly relevant. The Court of
Appeals was not in any position to determine when this
period commenced to run and whether the motion for
reconsideration itself was filed on time since the
material dates were not stated. x x x (Stress supplied.)
Moreover, as reiterated in Mabuhay vs. NLRC, 288 SCRA 1,
6: As a rule, the perfection of an appeal in the manner and within
the period prescribed by law is jurisdictional and failure to
perfect an appeal as required by law renders the judgment final
and executory.
SHORT DIGEST
FACTS:
Petitioners filed a complaint for damages against private
respondents, employees of St. Therese School for summarily
dismissing their son Christopher for school without notice and
hearing. Petitioners filed a letter-complaint to the Secretary of
DECS (now Dep-Ed) demanding for an investigation leading to
the suspension of their son. Petitioners also demanded an
apology from the private respondents, however, the private
respondents refused. Petitioners then filed a motion to declare
respondents in defaulf which was denied by the trial court.
Petitioners moved for reconsideration, but said motion was also
denied. Upon denial of said motion for reconsideration,
petitioners elevated the case to the appellate court. However, the
appellate court dismissed the petition for failure to indicate the
material date, particularly the date of filing of motion for
reconsideration with the RTC, as required by Supreme Court
Circular No. 39-98, amending Section 3 of Rule 46 of the 1997
Rules of Civil Procedure.
Unfazed, the petitioners filed a motion for reconsideration
of the CA resolution, but still without indicating the date as to
when their motion for reconsideration of the RTC order was
filed. Hence, in its second assailed resolution, the appellate court
denied said motion for reconsideration.
ISSUE:
WON the Court of Appeals erred in dismissing the petition for
certiorari filed by petitioners on the ground of formal and
procedural deficiency, i.e., the petitioners failure to state a
material date in their petition for certiorari.
HELD:
NO.
WEEK 10 CERTIORARI, PROHIBITION, MANDAMUS
After a careful consideration of the submissions of the
parties, particularly their respective memoranda, we are
constrained to agree with the ruling of the respondent appellate
court which dismissed the instant petition for certiorari. We find
no reversible error in the assailed resolutions of the Court of
Appeals because in filing a special civil action for certiorari
without indicating the requisite material date thereon,
petitioners violated basic tenets of remedial law, particularly
Rule 65 of the Rules of Court.
There are three material dates that must be stated in a
petition for certiorari brought under Rule 65. First, the date when
notice of the judgment or final order or resolution was received;
second, the date when a motion for new trial or for
reconsideration was filed; and third, the date when notice of the
denial thereof was received. In the case before us, the petition
filed with the CA failed to indicate the second date, particularly
the date of filing of their motion for reconsideration. As explicitly
stated in the aforementioned Rule, failure to comply with any of
the requirements shall be sufficient ground for the dismissal of
the petition.
XI.AF.1 CONCEPCION, JR. V. COMELEC, G.R. NO. 178624, JUNE
30, 2009 CHUA
PRINCIPLES:
1. The requirement of personality or interest is sanctioned no
less by Section 7, Article IX of the Constitution which provides
that a decision, order, or ruling of a constitutional commission
may be brought to this Court on certiorari by the aggrieved party
within thirty (30) days from receipt of a copy thereof.
This requirement is repeated in Section 1, Rule 65 of the Rules of
Court, which applies to petitions for certiorari under Rule 64 of
decisions, orders or rulings of the constitutional commissions
pursuant to Section 2, Rule 64.
Section 1, Rule 65 essentially provides that a person aggrieved by
any act of a tribunal, board or officer exercising judicial or quasi-
judicial functions rendered without or in excess of jurisdiction or
with grave abuse of discretion amounting to lack or excess of
jurisdiction may file a petition for certiorari.
2. Under Section 1, Rule 65, an aggrieved party is one who was a
party to the original proceedings that gave rise to the original
action for certiorari under Rule 65.
3. The petition for certiorari under Rule 65 is not available to any
person who feels injured by the decision of a tribunal, board or
officer exercising judicial or quasi-judicial functions.
The “person aggrieved” under Section 1 of Rule 65 who can avail
of the special civil action of certiorari pertains only to one who
was a party in the proceedings before the COMELEC.
FACTS:
On January 5, 2007, the NAMFREL filed a Petition for
Accreditation to Conduct the Operation Quick Count with the
COMELEC. Petitioner, then the incumbent Punong Barangay of
Barangay Forbes Park, Makati City, was one of the signatories of
It’s not a PROVREM 2015  23

the NAMFREL petition in his capacity as the National Chairman of
NAMFREL.
The COMELEC's April 2, 2007 Resolution ruled on NAMFREL’s
petition for accreditation conditionally granting NAMFREL’s
petition subject to the conditions that the petitioner and similarly
situated barangay officials shall not be included as members or
officials of NAMFREL.
NAMFREL filed a “Manifestation and Request for Re-
Examination”.
The petitioner now seeks to assail, in his individual capacity, a
COMELEC adjudicatory resolution (i.e., the April 2, 2007
Resolution) for its adverse effects on him when he was not a
party to that case. NAMFREL (the direct party to the case and
who had accepted the COMELEC accreditation ruling), on the
other hand, is not a party to the present petition.
ISSUE:
Whether or not the petitioner is a proper party to file a petition
for certiorari.
HELD:
No.
Petitioner has no personality to file a petition for certiorari to
address an adjudicatory resolution of the COMELEC in which he
was not a party to, and where the direct party, NAMFREL, does
not even question the assailed resolution.
It would have been another matter if NAMFREL had filed the
present petition with the petitioner as intervenor because of his
personal interest in the COMELEC ruling. He could have
intervened, too, before the COMELEC as an affected party in
NAMFREL’s Manifestation and Request for Examination.
XI.AF.4 GOLANGCO V. FUNG, G.R. NO. 157952, SEPTEMBER 8,
2009 TORREJOS
PRINCIPLE: In an action for certiorari pertaining a criminal case,
the People of the Philippines is an indispensable party. Consent of
the Office of the Solicitor General (OSG) should be obtained in his
petition for certiorari. A copy of the petition for certiorari should
be filed to the OSG prior to the filing thereof.
Action : Special Civil Action for Certiorari assailing the order
issued by the RTC terminating the presentation of further
evidence and requiring prosecution to file a written offer of
evidence within 20 days, furnishing a copy of the offer to the
accused who in turn had to comment on the offer within 15 days
from receipt.
FACTS:
Jone B. Fung was charged for libel initiated by the petitioner in
1995. He was alleged to have issued a memo dated May 10, 1995.
Allegedly, the respondent had issued an office memorandum
dated May 10, 1995 maliciously imputing against the petitioner
WEEK 10 CERTIORARI, PROHIBITION, MANDAMUS
the commission of bribery and had sent copies of the
memorandum to the petitioners superiors in the Philippine
Overseas Employment Administration (POEA) and to other
public officers and personalities not connected with the POEA,
causing damage and prejudice to the petitioner.
After almost 6 years, the Prosecution had presented only two
witnesses. On February 16, 2001, the Prosecution requested that
a subpoena ad testificandum be issued to and served on Atty.
Oscar Ramos, Resident Ombudsman of the POEA, to compel him
to testify in the criminal case on February 20, 2001. The hearing
of February 20, 2001 was, however, reset to May 23, 2001 due to
the unavailability of Atty. Ramos. However, prosecution still
failed to present Atty. Ramos because no subpoena had been
issued to and served on him for the purpose. Consequently, the
RTC judge issued an order terminating the Prosecutions
presentation of evidence.
When the case was called for hearing, the accused is in court with
his lawyer Atty. Benigno Palamos. Private prosecutor Atty.
Agripino Baybay is in court but he has no witnesses today. He
manifested that he has to present Atty. Oscar Ramos, but since
the last hearing on February 20, to this date he has not asked for
any subpoena. Defense counsel moves to terminate the
presentation of prosecution evidence in view of the failure of the
prosecution to present witnesses despite numerous
postponements. The private prosecutor asks for another
continuance. The records show that on January 23, 2001 this
Court gave a stern warning to the prosecutor that it is giving one
final postponement for the production of witnesses. Yet the
prosecution caused the service of the subpoena too late for the
hearing on February 20. For the next three months, the
prosecution simply did not apply for a subpoena. The Court finds
that the intention to delay the proceedings is evident. As prayed
for, the prosecution is declared to have terminated further
evidence.
The petitioner, by his lonesome, assailed on certiorari in the
Court of Appeals the order dated May 23, 2001, claiming that the
RTC judge thereby committed grave abuse of discretion for not
issuing the subpoena. He contended that his prior request for the
subpoena for the February 20, 2001 hearing should have been
treated as a continuing request for the subpoena considering that
the Rules of Court did not require a party to apply for a subpoena
again should it not be served in the first time. CA rebuffed
petitioner and dismissed petition for certiorari. CA reasoned that
an intention to still present the witness necessarily requires
another request for a subpoena.
ISSUE:
Whether the Court of Appeals correctly ruled on the petition for
certiorari of the petitioner.
HELD:
YES
Procedural Misstep Committed by Petitioner in the CA
The petitioner did not join the People of the Philippines as a party
in his action for certiorari in the Court of Appeals. He thereby
ignored that the People of the Philippines were indispensable
parties due to his objective being to set aside the trial courts
order dated May 23, 2001 that concerned the public aspect of
Criminal Case No. 95-145703. The omission was fatal and already
enough cause for the summary rejection of his petition for
It’s not a PROVREM 2015  24

certiorari.
The petitioner did not also obtain the consent of the Office of the
Solicitor General (OSG) to his petition for certiorari. At the very
least, he should have furnished a copy of the petition for
certiorari to the OSG prior to the filing thereof,[8] but even that
he did not do. Thereby, he violated Section 35(l), Chapter 12,
Title III of Book IV of Executive Order No. 292 (The
Administrative Code of 1987), which mandates the OSG to
represent the Government in the Supreme Court and the Court of
Appeals in all criminal proceedings; represent the Government
and its officers in the Supreme Court, the Court of Appeals, and all
other courts or tribunals in all civil actions and special
proceedings in which the Government or any officer thereof in
his official capacity is a party.
Although the petition for certiorari bore the conformity of the
public prosecutor (i.e., Assistant City Prosecutor Danilo Formoso
of Manila), that conformity alone did not suffice. The authority of
the City Prosecutor or his assistant to appear for and represent
the People of the Philippines was confined only to the
proceedings in the trial court.
Certiorari is an extraordinary remedy to correct a grave abuse of
discretion amounting to lack or excess of jurisdiction when an
appeal, or any plain, speedy and adequate remedy in the ordinary
course of law is not available. In this regard, grave abuse of
discretion implies a capricious and whimsical exercise of
judgment that is equivalent to lack of jurisdiction whenever the
power is exercised in an arbitrary or despotic manner by reason
of passion, prejudice or personal aversion amounting to an
evasion of a positive duty or to a virtual refusal to perform the
duty enjoined, or to act at all in contemplation of law. We find
that the trial judge did not act capriciously, arbitrarily or
whimsically in issuing the assailed order. Thus, the Court of
Appeals properly dismissed the petition for certiorari.
The trial courts assailed order terminating the Prosecutions
presentation of evidence was merely interlocutory. This fact
surely adds justification to the Court of Appeals rejection of the
petition for certiorari, because it is the settled rule that certiorari
does not lie to review an interlocutory order, but only a final
judgment or order that terminates the proceedings. Certiorari
will be refused where there has been no final judgment or order
and the proceeding for which the writ is sought is still pending
and undetermined in the lower court. Indeed, a writ of certiorari
is not intended to correct every controversial interlocutory ruling
unless the ruling is attended by grave abuse of discretion or
tainted by whimsical exercise of judgment equivalent to lack of
jurisdiction, for the function of certiorari is limited to keeping an
inferior court within its jurisdiction and to relieving persons from
its arbitrary acts acts that courts or judges have no power or
authority in law to perform. The proper remedy for the petitioner
was to proceed in the action until judgment, which, once
rendered, might then be reviewed on appeal, along with the
assailed interlocutory order. As long as the trial court acted
within its jurisdiction, its alleged error committed in the exercise
of its jurisdiction amounted to nothing more than an error of
judgment that was reviewable by a timely appeal, not by a special
civil action of certiorari.
KWIK-KWIK DIGEST:
WEEK 10 CERTIORARI, PROHIBITION, MANDAMUS
Fung was charged of libel for imputing bribery in the POEA
against Golangco. After 6 years from filing, the prosecution
presented only two witness and failed to present its third witness,
Atty. Ramos, despite postponements due to his inavailability. The
RTC gave a stern warning to the prosecutor that it is giving one
final postponement for the production of witnesses. For failure to
present its witness, RTC issued an order terminating the
presentation of further evidence and requiring prosecution to file
a written offer of evidence within 20 days, furnishing a copy of
the offer to the accused who in turn had to comment on the offer
within 15 days from receipt. The petitioner BY HIS LONESOME,
without impleading the People of the Phils., filed an action for
certiorari with the CA imputing grave abuse of discretion on the
part of RTC for not issuing the subpoena.
XI.AK ALCARAZ V. GONZALEZ, G.R. NO. 164715, SEPTEMBER
20, 2006 AMORES
PRINCIPLES:
CA has no appellate jurisdiction to review the assailed
resolutions of the Secretary of Justice by way of a petition for
review under Rule 43 of the Rules of Court, the proper remedy
being a petition for certiorari under Rule 65.
The proper remedy from an adverse resolution issued by the
Secretary of Justice is to file a petition for certiorari under Ruler
65 of the Rules of Court, not a petition under Rule 43.
LONG DIGEST
FACTS:
At around 10:05 a.m. of August 11, 2000, 61-year-old Ramon C.
Gonzalez was driving his Nissan Cefiro car with plate no. UPW-
298 along the right outermost lane of the South-Luzon
Expressway. He was on his way to Makati Cityand had just passed
the Sucat toll gate.
Atty. Arnel C. Alcaraz, a Customs Collector of the Bureau of
Customs, Batangas Port, was driving his Nissan Infiniti car with
plate no. CNH-338. He was in the middle lane of the South-Luzon
Expressway, between the Sucat and Bicutan Interchange, on his
way to Manila from Batangas City. He was armed with a .38
caliber pistol and had with him Mission Order No. 699-2000, to
expire on August 21, 2000. Since Alcaraz intended to use the
Skyway, he signaled, and proceeded to the right-most lane which
was reserved for vehicles taking the Skyway.
Gonzalez, who was on the right-most lane, was forced to swerve
his car to the right to avoid colliding with Alcarazs vehicle and
nearly hit the concrete island. Nonplussed, Gonzalez chased after
Alcaraz, opened his windows and shouted at Alcaraz, demanding
to know why the latter suddenly cut into his lane. Alcaraz
retorted that he had signaled that he was swerving to the
right. Gonzalez reproved Alcaraz and drove on.
Alcaraz drove his car to Gonzalezs right. Upon nearing an island,
Alcaraz raised his pistol towards Gonzalez and fired twice: the
first bullet hit the right front window of the vehicle and exited at
the left rear door; the second bullet hit the left rear window of
Gonzalezs car. Alcaraz hurriedly drove away from the scene, but
was intercepted by the PNCC guards at the Skyway toll gate. The
It’s not a PROVREM 2015  25

guards confiscated from Alcaraz the .38 pistol with 7 live bullets
and 3 empty shells.
Gonzalez reported the matter to the Paraaque City Police Station
where he gave a statement to the police investigator,and filed a
criminal complaint for attempted homicide against Alcaraz.
After the Office of the City Prosecutor conducted an inquest, an
Information for attempted homicide against Alcaraz was filed
with the Metropolitan Trial Court (MeTC) of Paranaque City.
On motion of Alcaraz, the MeTC ordered the City Prosecutor to
conduct a preliminary investigation.
The Investigating Prosecutor resolved to maintain his finding of
probable cause of attempted homicide against Alcaraz and to
retain the Information. Alcaraz filed a motion for reconsideration,
and when it was denied, filed a petition for review with the City
Prosecutors Office, Department of Justice.
On November 26, 2001, then Secretary of Justice Hernando Perez
issued a Resolution granting the petition and ordering the City
Prosecutor to withdraw the Information because Gonzalez failed
to prove beyond reasonable that Alcaraz had intended to kill him.
Gonzalez filed a motion for reconsideration, which the
Undersecretary of Justice denied on January 29, 2003.
Gonzalez then filed a petition for review under Rule 43 of the
1997 Rules of Civil Procedure before the CA, seeking the
reversal of the Justice Secretary’s Resolution. He claimed that
the Secretary acted beyond his authority in finding no probable
cause to charge Alcaraz with attempted homicide and for
ordering the City Prosecutor to withdraw the Information. He
insisted that by invoking self-defense, Alcaraz thereby admitted
his intention to kill him (Gonzalez). He claimed that Alcarazs
claim of self-defense should be ventilated during trial on the
merits.
In his comment on the petition, Alcaraz averred that the CA had
no appellate jurisdiction over the petition, and that Gonzalez had
no legal standing to file the petition. He insisted that the remedy
from an adverse resolution of the Justice Secretary is to file a
petition for certiorari under Rule 65 of the Rules of Court, as
amended, grounded on grave abuse of discretion amounting to
excess of jurisdiction, not one under Rule 43 of said Rule. He
averred that the Justice Secretary is not a quasi-judicial officer
under Rule 43 whose resolutions may thus be reviewed by the
CA.Alcaraz likewise pointed out that the CA was without power to
substitute its own judgment for that of the Justice Secretary
regarding the existence or non-existence of probable cause to
charge him with attempted homicide.
CA Ruling - rendered judgment granting the petition and
reversing the assailed resolutions of the Secretary of Justice.
ISSUE:
WON CA has appellate jurisdiction to review the assailed
resolutions of the Secretary of Justice by way of a petition for
review under Rule 43 of the Rules of Court.
HELD:
WEEK 10 CERTIORARI, PROHIBITION, MANDAMUS
No.
Respondent (Gonzalez) resorted to an improper remedy when he
filed a petition for review under Rule 43 of the Rules of
Court, instead of filing a petition for certiorari under Rule 65.
The resolution of the Investigating Prosecutor is subject to appeal
to the Justice Secretary who, under the Revised Administrative
Code, exercises the power of control and supervision over said
Investigating Prosecutor; and who may affirm, nullify, reverse, or
modify the ruling of such prosecutor. Thus, while the CA may
review the resolution of the Justice Secretary, it may do so
only in a petition for certiorari under Rule 65 of the Rules of
Court, solely on the ground that the Secretary of Justice
committed grave abuse of his discretion amounting to excess or
lack of jurisdiction.
It bears stressing that the Resolution of the Justice Secretary
affirming, modifying or reversing the resolution of the
Investigating Prosecutor is final. Under the 1993 Revised Rules
on Appeals (now the 2000 National Prosecution Service Rules on
Appeals), resolutions in preliminary investigations or
reinvestigations from the Justice Secretary’sresolution, except the
aggrieved party, has no more remedy of appeal to file a motion
for reconsideration of the said resolution of such motion if it is
denied by the said Secretary. The remedy of the aggrieved party
is to file a petition for certiorari under Rule 65 of the Rules of
Court since there is no more appeal or other remedy available in
the ordinary course of law.
In the present case, respondent filed a petition for review under
Rule 43 of the Rules of Court, assailing the resolutions of the
Justice Secretary. Instead of dismissing the petition, however, the
CA gave due course to it and thereafter granted the petition, on
its finding that the Justice Secretary erred in reversing the
resolution of the Investigating Prosecutor which found probable
cause against petitioner for attempted homicide. Patently, the
ruling of the CA is incorrect.
QUICK DIGEST:
FACTS:
A complaint for attempted homicide was filed against Alcaraz in
the prosecutor office. After the prosecution conducted an inquest
an information was filed with the METC. On motion of Alcaraz,
MeTC order the city prosecutor to conduct a preliminary
investigation. The city prosecutor finds probable cause and retain
the information. Alcaraz filed a motion for reconsideration and
was denied from the order of the denial he filed a petition for
review with the DOJ. The Secretary of Justice issued a resolution
granting the petition and ordered the withdrawal of the
information.
Aggrieved to the decision of the DOJ, Gonzalez filed a petition for
review under RULE 43 before the CA seeking reversal of the DOJ’s
Resolution. The CA granted the petition.
ISSUE:
WON CA has appellate jurisdiction to review the assailed
resolutions of the Secretary of Justice by way of a petition for
review under Rule 43 of the Rules of Court.
It’s not a PROVREM 2015  26
 WEEK 10 CERTIORARI, PROHIBITION, MANDAMUS

HELD:

No.

The CA was not correct to grant the petition. The petition for
review under Rule 43 was not the proper remedy for the
respondent. He should have instead filed a petition for certiorari
under Rule 65 in appealing his case before the CA. The
decision/resolution of the Secretary of Justice in affirming,
modifying, or reversing the resolution of the investigating
prosecutor is final and executory. The legislature has not
provided an adequate remedy by appeal in such case. Thus, the
petition for certiorari is available.

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