Rule 65 Case Notes

RULE 65 – Certiorari, Prohibition and Mandamus A.1. Definition and Purpose of Certiorari Araullo v. Aquino, G.R No. 209287, 1 July 2014 FACTS: This is a consolidated petition for the Constitutionality of the DAP. All the petitions are filed under Rule 65 of the Rules of Court, and include applications for the issuance of writs of preliminary prohibitory injunction or temporary restraining orders. The respondents aver that the special civil actions of certiorari and prohibition are not proper actions for directly assailing the constitutionality and validity of the DAP, NBC No. 541, and the other executive issuances implementing the DAP RULING:The sole office of the writ of certiorari isthe correction of errors of jurisdiction, which includes the commission of grave abuse of discretion amounting to lack of jurisdiction. In this regard, mere abuse of discretion is not enough to warrant the issuance of the writ. The abuse of discretion must be grave, which means either that the judicial or quasi-judicial power was exercised in an arbitrary manner by reason of passion or lersonal hostility, or that therespondent judge, tribunal or board evaded positive duty, or virtually refused to perform the duty enjoined or to act in contemplation of law, such as when the judge ortribunal or board exercising judicial or quasijudicial powers acted in a capricious or whimsical manner as to be equivalent to lack of jurisdiction. Petitions for certiorari and prohibition are qpropriate remedies to raise Constitutional issues and to review and or prohibit or nullify the acts of legislative and executive offiials. Triplex Enterprises, Inc v. PNB-Republic Bank, G.R. No. 151007, July 17, 2006 FACTS: Petitioner sought to annul the sale of two parcels of land situated in Tagaytay City by PNB-Republic Bank to Solid Builders, Inc. and to compel PNB-Republic Bank to award instead the sale to it as the highest bidder. Petitioner's claim was rejected by PNBRepublic Bank due to the sale of the properties to Solid Builders, Inc.

Petitioner moved for the reconsideration of the court a quo's refusal to admit its evidence but it was denied in an order dated February 26, 1999. The order disallowed the presentation and admission in evidence of any testimony referring to the December 7, 1994 opinion of the OGCC. The prohibition was based on the ground that the testimony was in violation of the rule on privileged communication between attorney and client, i.e., the OGCC and PNB-Republic Bank.

Aggrieved, petitioner filed a petition for certiorari with the Court of Appeals. However, the appellate court dismissed the petition. Petitioner moved for reconsideration but the same was denied. Hence, this petition. Issue: Petitioner claims that the Court of Appeals erred when it ruled that the trial court did not commit grave abuse of discretion in disallowing the presentation and admission in evidence of Roque's testimony. RULING: The petition has no merit.

Certiorari as a special civil action is proper when any tribunal, board or officer exercising judicial or quasijudicial functions has acted without or in excess of its jurisdiction, or with grave abuse of discretion, and there is no appeal nor any plain, speedy and adequate remedy at law. The writ may be issued only where it is convincingly proved that the lower court committed grave abuse of discretion, or an act too patent and gross as to amount to an evasion of a duty, or to a virtual refusal to perform the duty enjoined or act in contemplation of law, or that the trial court exercised its power in an arbitrary and despotic manner by reason of passion or personal hostility.

While certiorari may be maintained as an appropriate remedy to assail an interlocutory order in cases where the tribunal has issued an order without or in excess of jurisdiction or with grave abuse of discretion, it does not lie Page 1 of 26

to correct every controversial interlocutory ruling.

respondent refused repeated demands.

Here, petitioner assails the order of the trial court disallowing the admission in evidence of the testimony of Roque on the opinion of the OGCC. By that fact alone, no grave abuse of discretion could be imputed to the trial court. Furthermore, the said order was not an error of jurisdiction. Even assuming that it was erroneous, the mistake was an error in judgment not correctable by the writ of certiorari. WHEREFORE, the petition is hereby DENIED.

On September 28, 1995, the MCTC rendered its Decision ordering the respondent to vacate the subject land. The court found that there was a dearth of evidence supportive of the respondent‘s claim that the land is agricultural or that it is devoted to agricultural production. Further, it ruled that the petitioners as the registered owners have a better right to possession of the subject land.

A.2. Definition Prohibition

and

Purpose

of

David v. Rivera, G.R. Nos. 139913 & 140159, January 16, 2004 FACTS: Claiming to be the owner of an eighteen thousand (18,000)- square meter portion (hereafter, "subject land") of Lot No. 38-B,1 a five (5)-hectare lot situated at MacArthur Highway, Dau, Mabalacat, Pampanga, herein respondent Agustin Rivera filed on May 10, 1994 a Complaint 2 for "Maintenance of Peaceful Possession with Prayer for Restraining Order and Preliminary Injunction" before the Provincial Adjudication Board (PARAB) of San Fernando, Pampanga against petitioners heirs of Spouses Cristino and Consolacion David. The respondent averred that the petitioners had been harassing him for the purpose of making him vacate the subject land although it had already been given to him sometime in 1957 by the parents of the petitioners as "disturbance compensation", in consideration of his renunciation of his tenurial rights over the original eighteen (18)-hectare farmholding.

For their part, the petitioners filed a Complaint for ejectment before the Municipal Circuit Trial Court (MCTC) of Mabalacat and Magalang, Pampanga. They alleged that the respondent was occupying the subject land without paying rentals therefor. The petitioners also averred that they need the subject land for their personal use but the

to

vacate

it

despite

Without appealing the MCTC Decision but within the period to appeal, the respondent filed before the Regional Trial Court (RTC) of Angeles City a Petition for prohibition with preliminary injunction and/or temporary restraining order, seeking the nullification of the MCTC Decision. The thrust of the petition was that the MCTC had no jurisdiction as the issue before it was agrarian in nature.

On February 25, 1998, the RTC issued an Order14 denying the motion to dismiss. The court ruled that the motion, which was filed after the presentation of the plaintiff‘s evidence, partakes of a demurrer to evidence which under Section 1, Rule 33 of the Rules of Court, 15 may be granted only upon a showing that the plaintiff has shown no right to the relief prayed for. Noting that "the evidence presented by the petitioner establishes an issue which is addressed to [the] court for resolution. . . whether or not the respondent court had jurisdiction over the subject matter of the case filed before it", the RTC ruled that the denial of the motion to dismiss is proper. The petitioners moved for reconsideration16 but was denied in an Order17 dated June 23, 1998. ISSUE: whether the denial of the motion to dismiss by way of demurrer to evidence was afflicted with grave abuse of discretion. RULING: The SC upheld the CA’s Decision. With the facts doubtlessly presenting a question of jurisdiction, it follows that the respondent has availed of the proper, speedy Page 2 of 26

and adequate remedy which is the special civil action of prohibition. It is a settled rule that prohibition is the proper remedy to afford relief against usurpation of jurisdiction or power by an inferior court, or when, in the exercise of jurisdiction in handling matters clearly within its cognizance the inferior court transgresses the bounds prescribed to it by the law, or where there is no adequate remedy available in the ordinary course of law by which such relief can be obtained. The purpose of a writ of prohibition is to keep a lower court within the limits of its jurisdiction in order to maintain the administration of justice in orderly channels. Also noteworthy is the fact that the petition for prohibition was filed within the reglementary period to appeal; hence, it cannot be claimed that the same was used as substitute for a lost appeal.

It should be pointed out that the petitioners elevated to the appellate court the Order of the RTC denying their motion to dismiss by way of demurrer to evidence. A demurrer to evidence is an objection by one party to the adequacy of the evidence of his adversary to make out a case. Otherwise stated, the party demurring challenges the sufficiency of the whole evidence to sustain a verdict. In this case, the trial court ruled that respondent‘s evidence in support of his application for a writ of prohibition was sufficient to require the presentation of petitioners‘ contravening proof. The RTC did not commit grave abuse of discretion in so ruling. The Court of Appeals is therefore correct in upholding the lower court‘s denial of the petitioners‘ motion to dismiss.

Esquivel v. Ombudsman, 137237, September 17, 2002

G.R.

No.

FACTS: In their respective complaint affidavits, filed before the Philippine National Police – Criminal Investigation and Detection Group (PNP-CIDG), Third Regional Office, Camp Olivas, San Fernando, Pampanga, Eduardo and Catacutan charged herein petitioners Antonio Prospero Esquivel, municipal mayor of Jaen and his brother, Mark Anthony "Eboy" Esquivel, barangay captain of

barangay Apo, Jaen, with alleged illegal arrest, arbitrary detention, maltreatment, attempted murder, and grave threats. Also included in the charges were SPO1 Reynaldo Espiritu, SPO2 Nestor Villa Almayda, and LTO Officer Aurelio Diaz. PO2 Eduardo and SPO1 Catacutan likewise accused P/S Insp. Bienvenido C. Padua and SPO3 Inocencio P. Bautista of the Jaen Municipal Police Force of dereliction of duty.

The initial investigation conducted by the PNP-CIDG showed that at about 12:30 p.m. of March 14, 1998, PO2 Eduardo was about to eat lunch at his parents‘ house at Sta. Monica Village, Dampulan, Jaen, Nueva Ecija, when petitioners arrived. SPO1 Espiritu, SPO2 Almayda, LTO Officer Diaz, and several unidentified persons accompanied them. Without further ado, petitioners disarmed PO2 Eduardo of his Cal. 45 service pistol, which was covered by a Memorandum Receipt and COMELEC Gun Ban Exemption. They then forced him to board petitioners’ vehicle and brought him to the Municipal Hall.

Petitioners argue that the Ombudsman committed grave abuse of discretion when he failed to consider the exculpatory evidence in their favor, namely, the admission of PO2 Eduardo that he was in good physical condition when he left the police station in Jaen, Nueva Ecija. With such admission, PO2 Duardo is now estopped from claiming that he was injured since it is conclusive evidence against him and need not be proven in any other proceeding. Public respondents, represented by the Office of the Ombudsman through the OSP, counter that petitioners raise a factual issue which is not a proper subject of a certiorari action. They further postulate that this is the very same defense advanced by petitioners in the charges against them and being evidentiary in nature, its resolution can only be threshed out in a full-blown trial. ISSUE: WON Sandiganbayan has jurisdiction over the offenses and committed grave abuse of discretion. RULING: Page 3 of 26



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Being an extraordinary remedy, prohibition cannot be resorted to when the ordinary and usual remedies provided by law are adequate and available. Prohibition is granted only where no other remedy is available or sufficient to afford redress. That the petitioners have another and complete remedy at law, through an appeal or otherwise, is generally held sufficient reason for denying the issuance of the writ. In this case, petitioners were not devoid of a remedy in the ordinary course of law. They could have filed a motion to quash the information at the first instance but they did not. They have only themselves to blame for this procedural lapse as they have not shown any adequate excuse for their failure to do so. Petitioners did make a belated oral motion for time to file a motion to quash the information, during their much delayed arraignment, but its denial is not a proper subject for certiorari or prohibition as said denial is merely an interlocutory order. A writ of prohibition will not be issued against an inferior court unless the attention of the court whose proceedings are sought to be stayed has been called to the alleged lack or excess of jurisdiction. The foundation of this rule is the respect and consideration due to the lower court and the expediency of preventing unnecessary litigation; it cannot be presumed that the lower court would not properly rule on a jurisdictional objection if it were properly presented to it. The records show that petitioners only raised the issue of the alleged lack of jurisdiction by the Sandiganbayan before this Court.

Nos. 53066-A, 53067 and 53068, all derived from TCT No. 71357 issued by the Register of Deeds of Caloocan City. Twenty-four (24) squatter families live in these lots. In 1975, President Marcos issued Presidential Decree (P.D.) No. 13152 expropriating forty (40) hectares of land in Bagong Barrio, Caloocan City.

The NHA called the squatters for a dialogue "to look into the possibility of amicably settling the eviction problem and/or to find out why a clearance should be issued or not for the removal/demolition of all the illegal structures in the said property." The squatters did not attend the meeting. In view of their failure to attend, Joaquin Castano, Acting Division Manager, Resettlement Division, NHA, wrote a memorandum to the Department Manager, Resettlement Department, NHA, recommending the issuance of a demolition clearance. Respondent Annabelle Carangdang, NHA Project Manager in Bagong Barrio, refused to implement the clearance to eject the squatters on petitioner's land. At the conference of February 13, 1991, Carangdang claimed that petitioner‘s land had already been declared expropriated by P.D. 1315. Petitioner then filed with the respondent Court of Appeals a "Petition for Prohibition and Mandamus with Declaration as Inexistent and Unconstitutional Presidential Decree No. 1315" against the NHA and Carangdang.

ISSUE: WON Carangdang can be compelled to effect the directive/ memorandum of relocation/ resettlement subjecting the said 24 squatter families from unlawfully occupying petitioner‘s subject property without declaring PD 1315 as void and unconstitutional.

A.3. Mandamus Militante v. CA, G.R. No. 107040, April 12, 2000 FACTS: Petitioner Pilo Militante is the registered owner of three (3) contiguous parcels of land with an aggregate area of 1,590 square meters in Balintawak, Caloocan City. The three parcels are covered by TCT

RULING: In the case at bar, petitioner does not pray that respondent Carangdang should be ordered to desist from relocating the squatters. What petitioner challenges is respondent Carangdang's refusal to implement the demolition clearance issued by Page 4 of 26

her administrative superiors. The remedy for a refusal to discharge a legal duty is mandamus, not prohibition. As to purpose Second. The petitioner is not also entitled to a writ of mandamus. 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.

It is incumbent upon petitioner to show that he has a well-defined, clear and certain right to warrant the grant of the writ of mandamus. He failed to discharge this burden. The records show that there is no direct order from the NHA General Manager addressed to respondent Carangdang to evict the squatters and demolish their shanties on the subject property. The NHA demolition clearance issued by General Tobias on January 21, 1982 was addressed to Mayor Asistio, the mayor of Caloocan City. The clearance's revalidation by NHA General Manager Monico Jacob was likewise addressed to Mayor Asistio.

B. Distinguished From Each Other Pamana vs Court of Appeals (Certiorari vs Prohibition) Against whom directed?

judicial but are purely ministerial functions. aimed at "annulling or modifying" a proceeding

Enriques vs Macadaeg (Prohibtion vs Mandamus) Case Type

PROHIBITION a case where a judge is proceeding in defiance of the Rules of Court by refusing to dismiss an action which would not be maintained in his court. The remedy in such case is prohibition.

C. Certiorari and appeal; distinguished Madrigal Transport v. Lapanday Holdings Corp., G.R. No. 156067, August 11, 2004 FACTS: Petitioner filed for VoluntaryInsolvency. Subsequently, it filed a Complaint for damages against respondents for breach of their joint venture agreement. The insolvency court then declared petitioner respondent. With that, respondents filed their Motion to Dismiss the Complaint for failure to state a cause of Action which was granted by the court. The court ruled that the petitioner lost the right to institute the Complaint for Damages because the exclusive right to prosecute the actions belonged to the courtappointed assignee.

CERTIORARI filed for an MR but was denied and directed only against Petitioner a subsequently filed a Petition for Certiorari with tribunal, board or officer the CA. exercising judicial or quasijudicial functions. The CA took the case as an exception to the general rule that certiorari will not apply when It is not available asappeal a is available but later on dismissed upon remedy for the correctionrespondent’s of MR. acts performed by a sheriff during the execution RULING: process, which acts are neither judicial nor quasiPage 5 of 26

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The special civil action for certiorari and appeal are two different remedies that are mutually exclusive; they are not alternative or successive. Where appeal is available, certiorari will not prosper, even if the ground therefor is grave abuse of discretion. Basic is the rule that certiorari is not a substitute for the lapsed remedy of appeal. Appeal and Certiorari Distinguished As to the Purpose As to the Manner of Filing

As to the Subject Matter

As to the Period of Filing

D. Certiorari under Rule 45 and 65; distinguished Aquino vs Court of Appeals (Certiorari under Rule 65 and 45 distinguished)

Rule 65 - Certiorari In a petition for certiorari under Rule 65, only jurisdictional issues may be raised, as when a court or tribunal has acted "without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction." The extraordinary writ of certiorari cannot Correction of Errors of Jurisdiction legally Higher courts exercises its any other purpose. be used for appellate jurisdiction and power of review In a special civil action for certiorari, the Court cannot correct errors of fact which the lower court or tribunal may have committed. Only judgments or final orders and those that E. theProhibition Rules of distinguished from Court so declare are injunction appealable

Rule 45 - C A party des a judgment Court of A Regional Tr authorized Court a v certiorari. questions o forth.

Prohibition Prohibition is a special civil action seeking a judgment commanding a tribunal, corporation, board, or officer to desist from further proceeding in the action because it has no jurisdiction, is acting in excess of jurisdiction or has gravely abused its Ordinary appeals = within 15 discretion days from the notice of amounting to lack of jurisdiction (Sec.2, judgment or final orderRule 65, Rules of Court). appealed from Petition for Review = within 15 days from the notice of denial of the decision, or of the petitioners timely filed motion vis-à-vis quo warranto F. Prohibition for new trial or motion for reconsiderationTopacio v. Ong, G.R. No. 179895, December 18, 2008 Appeal by Certiorari = 15 days from the notice Ferdinand of FACTS: Topacio (petitioner) via the judgment or final order, or of for certiorari and prohibition present petition the denial of the petitioners seeks, in the main, to prevent Justice Gregory motion for newOng trial(Ong) or motion from further exercising the powers, for reconsideration. duties and responsibilities of a Sandiganbayan Associate Justice.

As to the Need for a Motion for Reconsideration

MR is necessary Petitioner points out that natural-born citizenship is also a qualification for appointment as member of the Sandiganbayan and that Ong has failed to meet the citizenship requirement from the time of his appointment as such in October 1998. Page 6 of 26

Preliminar any stage to the jud executory agency o particular the perfor in which preliminar Rule 58).

reinstatement. The court issued a writ of preliminary mandatory injunction.

Ong, on the other hand, states that Kilosbayan Foundation v. Ermitadid not annul or declare null his appointment as Justice of the Supreme Court, but merely enjoined him from accepting his appointment, and that there is no definitive pronouncement therein that he is not a natural-born Filipino. He informs that he, nonetheless, voluntarily relinquished the appointment to the Supreme Court out of judicial statesmanship. RULING: Prohibition The writ of prohibition, even when directed against persons acting as judges or other judicial officers, cannot be treated as a substitute for quo warranto or be rightfully called upon to perform any of the functions of the writ. If there is a court, judge or officer de facto, the title to the office and the right to act cannot be questioned by prohibition. If an intruder takes possession of a judicial office, the person dispossessed cannot obtain relief through a writ of prohibition commanding the alleged intruder to cease from performing judicial acts, since in its very nature prohibition is an improper remedy by which to determine the title to an office.

The Court of First Instance rendered judgment finding that the dismissal from the service of Afuang is unlawful and violates section 13 of the Minimum Wage Law, because the fact that he testified at the investigation is not a valid ground for his dismissal from the service. The court, however, refused to grant an order for the reinstatement of said Afuang on the ground that this remedy, which it considers as an injunction, is available only against acts about to be committed or actually being committed, and not against past acts; that injunctionproceeding is preventive nature only; and A quo warranto is in the proper that astothe law has the already violated, the legal remedy determine rightbeen or title remedy now available for the prosecution of to the contested public officeisand to oust the employer for the violation of the Minimum the holder from its enjoyment. It is brought Wage Law, and not for the reinstatement of against the person who is alleged to have Afuang. usurped, intruded into, or unlawfully held or exercised the public office, and may be RULING: commenced by the Solicitor General or a  The action ofthe petitioner is not an action of public prosecutor, as the case may be, or injunction but one of mandamus, because it by any seeks person claiming to beofentitled to theperformance a legal duty, the the public office or position usurped reinstatement of Pablo S. Afuang.or unlawfully held or exercised by another.

G. Mandamus distinguished from injunction Morabe v. Brown, G.R. No. L-6018, May 31, 1954 FACTS: Morabe, the chief of the Wage Administration Service, filed a petition for the reinstatement of Pablo S. Afuang by the respondent William Brown. The petition alleged that respondent had dismissed Afuang because in an investigation conducted by the petitioner of charges against the respondent that the latter paid his employees beyond the time fixed in Republic Act No. 602, the said Afuang was one of the complainants; that the respondent discharged the said employee in violation of section 13 of said Act. The petitioner likewise prayed that a writ of preliminary mandatory injunction issue for his



The writ known as preliminary mandatory injunction is also a mandamus, though merely provisional in character.



In the case at bar, Pablo S. Afuang was entitled to continue in the service of respondent, because his act is expressly provided to be no ground or reason for an employee's dismissal. Section 13 of Republic Act No. 602 states that "it shall be unlawfulfor any person to discharge or in any other manner to discriminate against any employeebecause such employee has filed any complaint or instituted or caused to be instituted anyproceeding under or related to this Act, ...." Pablo S. Afuang was, therefore, unlawfullydeprived of his right or privilege to continue in the service of the respondent, because hisdismissal was unlawful or illegal. Having been deprived of such right or privilege, it iswithin the competence of courts to compel the respondent to admit him back to hisservice. H. Mandamus distinguished from quo warranto Mandamus The action of the petitioner is not an action of injunction but one of mandamus, because it seeks the performance of a legal duty, the Page 7 of 26

An injun about to committ

reinstatement of Pablo S. Afuang. The writ known as preliminary mandatory injunction is also amandamus, though merely provisional in character.

loaded software programs owned by Microsoft that injunction is only into computer units sold by them to their customers in violation of its intellectual property rights.

K. Jurisdiction and exercise of jurisdiction distinguished

The trial court denied petitioner’s application for an ex parte order for a temporary restraining order. Petitioner’s MR was likewise denied.

Herrera v. Barretto, GR No. 8692, September 10, 1913

Hence, this petition for certiorari. Petitioner allegedly resorted to the instant recourse because it had no appeal or any plain, speedy and adequate remedy in the ordinary course of law. It automatically invoked the jurisdiction of this Court supposedly because of the importance of the issue involved.

FACTS: Joaquin filed for a Petition for Mandamus compelling Herrera (the municipal president of Caloocan) to issue cockpit license in his favor. Pending the proceedings, Joaquin asked that the court issue a mandatory injunction directed to Herrera requiring him to issue a provisional license under which he might conduct his cockpit during the pendency of the action. The court issued an order ex parte granting Joaquin’s relief without notice of the defendant.

RULING: The sole office of the writ of certiorari is the correction of errors of jurisdiction including the commission of grave abuse of discretion amounting to lack of jurisdiction, and does notinclude correction of public respondent's evaluation of the evidence and factual findings thereon.

Herrera instituted a Petition for Certiorari against the judge of the CFI Hon. Barretto) who issued the mandatory injunction. RULING: Jurisdiction Jurisdiction is the authority to hear and determine a cause —the right to act in a case. The power to hear and determine. The authority to decide a cause at all It does not depend either upon the regularity of the exercise of that power or upon the rightfulness of the decisions made. L. Error of jurisdiction and error of judgment distinguished Microsoft Corp. v. Best Deal Computer Center Corp., G.R. No. 148029, September 24, 2002 FACTS:Petitioner filed a complaint for Injunction and Damages with Ex Parte Application for Temporary Restraining Order and the Provisional Measure ofPreservation of Evidence against Best Deal Computer Center Corporation, Perfect Deal Corporation and Marcos C. Yuen doing business as Perfect Byte Computer Center. It alleged that defendants without authority or license copied, reproduced, distributed, installed and/or

Error of Jurisdiction For certiorari to lie, it must be shown that the tribunal, board or officer exercising judicial functions acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction, The decision of all other questions arising in the caseand where thatthere thereisisjurisdiction no appeal of northe any plain, person and subject speedy and matter. adequate remedy in the ordinary course of law for the purpose of amending or Dependsnullifying either upon the regularity of the the proceeding. exercise of that power or upon the rightfulness of the decisions The sole office of themade. writ of certiorari is the correction of errors of jurisdictionincluding the commission of grave abuse of discretion amounting to lack of jurisdiction, and does not include correction of public respondent's evaluation of the evidence and factual findings thereon.

M. Conclusiveness of court’s finding as to its jurisdiction Campos v. Wislizenus, GR No. 12083, November 27, 1916 FACTS: Respondent Teodoro Aldanese was declared elected to the position of municipal president of Sibonga, Province of Cebu. petitioner filed a protest against such election. Page 8 of 26

-error c ofjurisd

The petit on jurisdicti the respo any error com exerciset more tha may be r appeal. E sufficien of a writ

The court dismissed the protest on the ground that the court acquired no jurisdiction of the proceedings because no service of the protest had been made on the respondent Teodoro Aldanese in the manner requires by law RULING: The general rule is that, where the jurisdiction of the court depends upon the existence of facts, and the court judicially considers and adjudicates the question of its jurisdiction, and decides that the fact exist which are necessary to give it jurisdiction of the case, the finding is conclusive and cannot be controverted in a collateral proceeding.

The rule applies to a case where the proper service of notice on the candidates voted for was challenged and the court determined upon the facts presented, after hearing the allegations of the parties and their arguments based thereon, that service had not been made as required by law. Such a determination involves a mixed question of law and fact; and it is a rule, as stated in the case cited, that, where the jurisdiction of the court depends upon the determination of a question of fact and that question has been determined by the court after a hearing, that determination is conclusive and cannot be attacked collaterally. In the case before us evidence as to the fact of service was introduced by the petitioner and the sufficiency of that evidence was challenged by the respondent. The petitioner did not take advantage of the opportunity given him by the challenge to present other and further evidence in relation to the service but stood squarely upon the facts already presented and accepted a decision of the court thereon. Under such circumstances there was nothing left for the court to do except to decide the question upon the facts as they were. The court did so; and although to say so is unnecessary to a decision of this case, we are of the opinion that its finding on the facts as they existed of record at the time was well founded. O. Without jurisdiction; lack of jurisdiction; excess of jurisdiction; grave

parcels of land for the construction of the Capas-Murcia diversion road, a compromise was entered into between said province and the petitioners herein for the payment to the latter of the agreed value of their lands. The respondent judge approved the compromise in a partial decision rendered by him on September 27, 1937, and ordered the parties to comply with the conditions therein set forth. On October 2, 1937, the provincial fiscal, in behalf of the Province of Tarlac, moved for the reconsideration of the decision on the ground that in giving his assent to the compromise, he acted under the mistaken belief that the prices fixed therein had been approved by the appraisal committee of the provincial government, composed of the provincial treasurer, district engineer and provincial auditor, and that the Province of Tarlac, at the time of the compromise, had no longer any authority to expropriate the lands, because in virtue of Executive Order No. 71, the CapasMurcia Diversion road was declared a national highway under the authority of the Commonwealth of the Philippines. The respondent judge acceded to his motion and, setting aside it decision, ordered the reopening of the case and authorized the substitution of the Commonwealth of the Philippines for the Province of Tarlac as party plaintiff, in accordance with the petition of the SolicitorGeneral to that effect. Hence, this petition. Petitioners contend that the respondent judge was without power to set aside his partial decision which was founded upon a compromise duly approved by him. RULING: 

WITHOUT JURISDICTION- means that the court acted with absolute lack of authority



LACK OF JURISDICTION- An act of a court or tribunal may only be considered as in grave abuse of discretion when it is performed in a capricious or whimsical exercise of judgment which is equivalent to lack of jurisdiction.

Abad Santos v. Province of Tarlac, GR No. L-46330, April 22, 1939

 EXCESS OF JURISDICTION - when the court transcends its power or acts without any statutory authority.

FACTS: In an action instituted by the Province of Tarlac for the condemnation of certain

 GRAVE ABUSE OF DISCRETIONimplies such capricious and whimsical Page 9 of 26

exercise of judgment as to be equivalent to lack or excess of jurisdiction; in other words, power is exercised in an arbitrary or despotic manner by reason of passion, prejudice, or personal hostility; and such exercise is so patent or so gross as to amount to an evasion of a positive duty or to a virtual refusal either to perform the duty enjoined or to act at all in contemplation of law.

show a cause of action some sort; and when the statue declares that the attachment may issue in an action arising upon contract, the express or implied, it announces a criterion which may be determined from an inspection of the language of the complaint. The determination of this question is purely a matter of law. On the other hand, when the stature declares that an attachment may be issued when the defendant is about to depart from the Islands, a criterion is announced which is wholly foreign to the cause of action; and the determination of it may involve a disputed question of fact which must be decided by the court. In making this determination, the court obviously acts within its powers; and it would be idle to suppose that the writ of certiorari would be available to reverse the action of a Court of First Instance in determining the sufficiency of the proof on such a disputed point, and in granting or refusing the attachment accordingly.

P. Excess of jurisdiction distinguished from lack of jurisdiction Leung Ben v. O’Brien, 38 Phil 182 FACTS: O’Brien instituted an action for the recovery of the sum of 15,000.00 which have been lost by the latter to the defendant in a series of gambling, banking and percentage games. In his verified complaint, O’Brien asked for an attachment against the property of Leung Ben on the ground that the latter was about to depart the Phils. with intent to defraud his creditors.  Leung Ben moved to quash the attachment which was dismissed by the CFI. With such dismissal, he filed a Petition for Certiorari against O’Brien and the judges of the CFI (City of Manila) Leung Ben’s contention: The statutory action to recover money lost at gaming is not a ground that would warrant the issuance of an attachment. Hence, the Court of First Instance actedin excess of its jurisdiction in granting the writ of attachment. RULING: 

When a court issues a writ of attachment for whichthere is no statutory authority, it is acting irregularly and in excess of its jurisdiction, in the sense necessary to justify the Supreme Court in granting relief by the writ of certiorari.

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In applying this proposition it is of course necessary to take account of the difference between a ground of attachment based on the nature of the action and aground of attachment based on the acts or the conditions of the defendant. Every complaint must

Conclusion: the cause of action stated in the complaints in the court below is based on a contract, express or implied and is therefore of such nature that the court had authority to issue writ of attachment. The application for the writ of certiorari must therefore be denied and the proceedings dismissed.

Herrera v. Barretto, GR No. 8692, September 10, 1913 FACTS: Joaquin filed for a Petition for Mandamus compelling Herrera (the municipal president of Caloocan) to issue cockpit license in his favor. Pending the proceedings, Joaquin asked that the court issue a mandatory injunction directed to Herrera requiring him to issue a provisional license under which he might conduct his cockpit during the pendency of the action. The court issued an order ex parte granting Joaquin’s relief without notice of the defendant. Herrera instituted a Petition for Certiorari against the judge of the CFI Hon. Barretto) who issued the mandatory injunction.

Page 10 of 26

RULING:

R. Erroneous exercise of jurisdiction Napa v. Weissenhagen, GR No. L-9698, January 6, 1915 FACTS:The petition stems from an action for the summary recovery of the possession of land under section 80 and following sections of the Code of Civil Procedure, the plaintiff in the case at bar being the defendant there and the defendants Julian Larong and HermenegildoBayla being the plaintiffs. The court ruled in favor of plaintiff and ordered delivery of possession. An appeal was taken. A Motion to Dismiss the appeal was filed on the ground that it had not been perfected within the time required by law. The court granted the Motion and dismissed the appeal. Hence, this petition for certiorari. RULING: 



The writ of certiorari in so far as it was a method by which mere errors of an inferior court could be corrected no longer exists. Its place is now taken by the appeal. So long as the inferior court maintains jurisdiction, its errors can be corrected only by that method (APPEAL). The writ in this country has been confined to the correction of defects of jurisdiction solely and cannot be legally used for any other purpose. If the judgment of the justice's court was void, it was nevertheless appealable, although the losing party might have been able to rid himself of it by other means. Having been appealed, it stands upon substantially the same footing in the appellate court, so far as the appeal itself is concerned, as any other judgment of a justice's court and the jurisdiction of the appellate court in that appeal is as full and complete as it is any other.

T. Plain, speedy, adequate remedy – Definition

San Pedro v. Hon. Aspala, G.R. No. 164560, July 22, 2009 FACTS: Private respondents, heirs of spouses Apolonio and Valeriana Dionisio filed 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. 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 denied 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. RULING: 

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. Page 11 of 26



If petitioner had an adequate remedy, namely, a petition for review on certiorari under Rule 45 of the Rules of Court, a special civil action for certiorari was, therefore, not the correct remedy. (CAMUTIN VS SPOUSES POTENTE)

There are, of course, exceptions to the foregoing rule, to wit (SIM VS NLRC): (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 (i) where the issue raised is one purely of law or public interest is involved.

Camutin v. Spouses Potente, G.R. No. 181642, January 29, 2009 FACTS: Petitioners were the registered owners of parcels of land covered by TCT Nos. 1117266, 1117267 and 1117268 in their names issued by the Register of Deeds of Cavite. Petitioners, who reside abroad, discovered upon coming back to the Philippines in 1998 that the house and

warehouse of respondents Spouses Norberto and Pascuala Potente were erected on the subject lots. Thereupon, respondents agreed 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. Petitioners thus come before this Court, 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. They allege that the MTC erroneously interpreted the barangay agreement differently from the clear testimony of the Barangay Chairperson and acted capriciously and whimsically in ordering the case archived without basis. Consequently, it was only proper for them to file the petition for certiorari before the RTC, which should have exercised its authority over the MTC and corrected the error that the inferior court had committed instead of dismissing their petition. Petitioners thus prayed that the RTCs order be annulled and declared null and void. RULING: 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. While a petition for certiorari is not allowed against any interlocutory order issued by the court in the unlawful detainer or ejectment case, 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 Page 12 of 26

instead of dismissing it on the ground that it is a prohibited pleading. Sim v. NLRC, G.R. No. 157376, October 2, 2007 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 from Remegio David -- the Senior Officer, European Head of PCIBank, and Managing Director of PCIB- Europe -- informing her that she was being dismissed due to loss of trust and confidence based on alleged mismanagement and misappropriation of funds. Respondent denied any employer-employee relationship between them, and sought the dismissal of the complaint. The Labor Arbiter dismissed the case for want of jurisdiction and/or lack of merit because labor relations system in the Philippines has no extra-territorial jurisdiction.

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. 

Exceptions: (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;

On appeal, the National Labor Relations Commission (NLRC) affirmed the Labor Arbiter's Decision and dismissed petitioner's appeal for lack of merit.

(e) where petitioner was deprived of due process and there is extreme urgency for relief;

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.

(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;

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.

(g) where the proceedings in the lower court are a nullity for lack of due process;

Hence, the present recourse under Rule 45 of the Rules of Court.

(h) where the proceeding was ex parte or in which the petitioner had no opportunity to object; and (i) where the issue raised is one purely of law or public interest is involved.

RULING: 

General Rule: Under Rule 65, the remedy of filing a special civil action for

U. Prohibition against accomplished acts Page 13 of 26

Alcantara et al. v. Ermita, G.R. No. 169813, September 5, 2006 FACTS: On October 13, 2005, lawyers Samson S. Alcantara, Ed Vincent S. Albano, and Rene B. Gorospe, herein petitioners, filed with this Court 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 operations. RULING: From the foregoing, 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.[4] 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 afait accompli. The Consultative Commission has been dissolved. Consequently, we find no more reason to resolve the constitutional issues raised by petitioners.

W. Ministerial Acts The Special Audit Team, Commission on Audit v. Court of Appeals, G.R. No. 174788, 11 April 2013 FACTS: RULING:

FACTS: Former 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 complaint charged respondent Moral with the pilferage of some historical documents from the vaults of the Filipiniana and Asian Division (FAD) of the National Library which were under her control and supervision as Division Chief and keeping in her possession, without legal authority and justification, some forty-one (41) items of historical documents which were missing from the FAD vaults of the National Library. 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, to the prejudice of the national library in particular, and the country in general." She was ordered dismissed from the government service with prejudice to reinstatement and forfeiture of all her retirement benefits and other remunerations. 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. Respondent moved for reconsideration but the motion was merely "noted". 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. RULING:

Pefianco v. Moral, January 19, 2000

G.R.

No.

132248,



Mandamus is employed to compel the performance, when refused, of a ministerial duty, this being its main objective. Page 14 of 26









"Purely ministerial" are acts to be performed in a given state of facts, in a prescribed manner in obedience to the mandate of legal authority without regard to the exercise of his own judgment upon the propriety or impropriety of the act done. While the discretion of a Constitutional Commission cannot be controlled by mandamus . . . . the court can decide whether the duty is discretionary or ministerial 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. 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.

In fine, the trial court's Order of 23 April 1997 denying petitioner's motion to dismiss is not a mere error of judgment as the Court of Appeals held, but a grave abuse of discretion amounting to lack or excess of jurisdiction because, to capsulize, the Order is a patent nullity for failure to comply with the provisions of the rules requiring that a resolution on a motion to dismiss should clearly and distinctly state the reasons therefor; and, respondent is clearly not entitled to the writ of mandamus as she did not appeal the DECS resolution dismissing her from service, and there is no law or rule which imposes a ministerial duty on petitioner to furnish respondent with a copy of the

investigation report, hence her petition clearly lacked a cause of action. In such instance, while the trial court's order is merely interlocutory and nonappealable, certiorari is the proper remedy to annul the same since it is rendered with grave abuse of discretion. Pimentel, et al. v. Executive Secretary, et al., G.R. No. 158088, July 6, 2005 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. The Statute was opened for signature by all states in Rome on July 17, 1998 and had remained open for signature until December 31, 2000 at the United Nations Headquarters in New York. The Philippines signed the Statute on December 28, 2000 through Charge d Affairs Enrique A. Manalo of the Philippine Mission to the United Nations. Its provisions, however, require that it be subject to ratification, acceptance or approval of the signatory states. Petitioners filed the instant petition to compel the respondents the Office of the Executive Secretary and the Department of Foreign Affairs to transmit the signed text of the treaty to the Senate of the Philippines for ratification. It is the theory of the petitioners that ratification of a treaty, under both domestic law and international law, is a function of the Senate. Hence, it is the duty of the executive department to transmit the signed copy of the Rome Statute to the Senate to allow it to exercise its discretion with respect to ratification of treaties. Moreover, petitioners submit that the Philippines has a ministerial duty to ratify the Rome Statute under treaty law and customary international law. 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 Page 15 of 26

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.

X. Mandamus to direct exercise judgment in a particular way Hipos, Sr. v. Judge Bay, 174813-15, March 17, 2009

G.R.

of

Nos.

FACTS: Two Informations for the crime of rape and one Information for the crime of acts of lasciviousness were filed against petitioners and two others. 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.

Prosecutor filed a Motion to Withdraw Informations before Judge Bay. Judge Bay denied the Motion to Withdraw Informations in an Order of even date. Without moving for a reconsideration of the above assailed Order, petitioners filed the present Petition for Mandamus. RULING:There is indeed an exception to the rule that matters involving judgment and discretion are beyond the reach of a writ of 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. 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 filed their Joint Memorandum to Dismiss the Case[s] before the City Prosecutor. They claimed that there was no probable cause to hold them liable for the crimes charged.

Y. Mandamus obligations

On 10 August 2004, the Office of the City Prosecutor issued a Resolution on the reinvestigation affirming the Informations filed against petitioners and their co-accused.

FACTS: 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: first, the deliberate refusal of the COMELEC and its Commissioners to formalize the contract rendered nugatory the perfected

Assistant City Prosecutor Lamberto C. de Vera, treating the Joint Memorandum to Dismiss the Case as an appeal of the 10 August 2004 Resolution, reversed the Resolution dated 10 August 2004, holding that there was lack of probable cause. On the same date, the City

to

enforce

contractual

COMELEC v. Judge Quijano-Padilla, G. R. No. 151992, September 18, 2002

Page 16 of 26

contract between them; second, in announcing that the VRIS Project has been junked and that he has plans to re-engineer the COMELEC’s entire modernization program, Chairman Benipayo committed grave abuse of discretion; and third, the COMELEC’s 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.

agreed price or to pay damages for the breach of contract.” Z. Continuing Mandamus Metropolitan Manila Development Authority, et al. v. Concerned Residents of Manila Bay, G.R. Nos. 171947-48, December 18, 2008 

Cleaning or Rehabilitation of Manila Bay Can be Compelled by Mandamus.



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.

RULING: 



PHOTOKINA, though the winning bidder, cannot compel the COMELEC to formalize the contract. Since PHOTOKINA’s 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. Q01-45405, respondent judge acted with grave abuse of discretion. Petitioners cannot be compelled by a writ of mandamus to discharge a duty that involves the exercise of judgment and discretion, especially where disbursement of public funds is concerned. No rule of law is better settled than that mandamus does not lie to enforce the performance of contractual obligations. 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 xx The petitioner’s remedy, if any she has, is by an original action in the Court of First Instance to compel the city to pay the

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. The Supreme Court agreed with the respondents. 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 Page 17 of 26

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. 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. 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.

AA. Clear and Defined Right

Manalo v. PAIC Savings Bank, G.R. No. 146531, March 18, 2005 This is a case involving 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. On June 29, 1997, when Angsico sold the lot to Manalo, Angsico was not the owner of the subject property simply because at the time he (Angsico) purchased the same property from Vargas and/or S. Villanueva on December 23, 1992, said sellers were no longer the lawful owners of the property.

As correctly pointed out by the appellees, after the expiration of the one (1) year redemption period and no redemption was made on December 5, 1985, PAIC Bank ipso facto became the legal owner in fee simple of the subject lot and its improvements, being the highest bidder in the auction sale and the vendee in the Sheriff’s Certificate of Sale duly registered a year before and which entitles it to the issuance of a new certificate of title in his name.

Mandamus is not the proper recourse to enforce petitioner’s alleged right of redemption. To begin with, mandamus applies as a remedy only where petitioner’s 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.

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. Page 18 of 26

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. UP Board of Regents v. CA, G.R. No. 134625, August 31, 1999 FACTS: Private respondent herein is a citizen of India and a holder of a Philippine visitor’s visa. She enrolled in a doctoral program in anthropology of the University of the Philippines. After completing her units of course work required in her doctoral program, she left the country to work in Rome. After two years, she returned to the Philippines to work on her dissertation. Upon her presentation of her dissertation for approval to the panel, Dr. Medina, a dean’s representative to the panel, noticed that some portions of her work were lifted from other works without the proper acknowledgement. Nonetheless, she was allowed to defend her dissertation. She passed her oral defense, which was approved by four of the five panelists with the condition that she shall incorporate certain amendments to the final copy of her dissertation. However, in her final submission of the copy of her dissertation, she failed to incorporate the necessary revisions. With this development, Dr. Medina formally charged her with plagiarism and recommended that the doctorate granted upon her be withdrawn. After an investigation, the College of Social Sciences and Philosophy (CSSP) College Assembly recommended the withdrawal of her doctorate degree, which was approved by the U.P. Board of Regents. Private respondent filed a petition for mandamus with prayer for a writ of preliminary injunction and damages against petitioners herein, alleging that they had unlawfully withdrawn her degree without justification. The trial court dismissed her petition. However, on appeal, the Court of Appeals reversed the lower court’s decision. Hence, this petition.

The narration of facts showed that various committees were formed to investigate the charges that private respondent committed plagiarism. In all investigations held, she was heard in her defense. Where it was shown that the conferment of an honor or distinction was obtained through fraud, a university has the right to withdraw the honor or distinction it has conferred. Under the U.P. Charter, the Board of Regents is the highest governing body of the U.P. In the case at bar, the Board of Regents’ decision to withdraw private respondent’s doctorate degree was based on records, including her admission that she committed the offense. The Supreme Court reversed the decision of the Court of Appeals and the petition for mandamus was dismissed. RULING: REMEDIAL LAW; SPECIAL CIVIL ACTIONS; MANDAMUS, DEFINED; NOT AVAILABLE TO RESTRAIN THE EXERCISE OF ACADEMIC FREEDOM; CASE AT BAR. 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. In University of the Philippines Board of Regents vs. Ligot-Telan, 227 SCRA 342 (1993), this Court ruled that the writ was not available to restrain U.P. from the exercise of its academic freedom. In that case, a student who was found guilty of dishonesty and ordered suspended for one year by the Board of Regents, filed a petition for mandamus and obtained from the lower court a temporary restraining order stopping U.P. from carrying out the order of suspension. In setting aside the TRO and ordering the lower court to dismiss the student’s petition, this Court said: [T]he lower court gravely abused its discretion in issuing the writ of preliminary injunction of May 29, 1993. The issuance of the said writ was based on the lower court’s finding that the implementation of the disciplinary sanction of suspension on Nadal “would work injustice to the petitioner as it Page 19 of 26

would delay him in finishing his course, and consequently, in getting a decent and good paying job.” Sadly, such a ruling considers only the situation of Nadal without taking into account the circumstances, clearly of his own making, which led him into such a predicament. More importantly, it has completely disregarded the overriding issue of academic freedom which provides more than ample justification for the imposition of a disciplinary sanction upon an erring student of an institution of higher learning. From the foregoing arguments, it is clear that the lower court should have restrained itself from assuming jurisdiction over the petition filed by the Nadal. 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.

AB. When and Where filed (§4, A.M. No. 07-7-12-SC) Laguna Metts Corporation v. Caalam, et al., G.R. No. 185220, July 27, 2009 FACTS:Private respondents Aries C. Caalam and Geraldine Esguerra filed a labor case against petitioner Laguna Metts Corporation (LMC).The labor arbiter decided in favor of private respondents. On appeal, the NLRC reversed the decision of the labor arbiter. Private respondents’ motion for reconsideration was denied. Counsel for respondents filed a motion for extension of time to file petition for certiorari under Rule 65 of the Rules of Court; a 15-day extension period was prayed for. In a resolution dated August 7, 2008, the CA 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. 07-712-SC. This was denied by the CA.

Aggrieved, LMC now assails the resolutions dated August 7, 2008 and October 22, 2008 of the Court of Appeals in this petition for certiorari under Rule 65 of the Rules of Court. ISSUE: Whether or not CA committed grave abuse of discretion when it granted private respondents’ motion for extension of time to file petition for certiorari. RULING: 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. 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. 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.

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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.

AC. Material Dates Rule Lapid v. Laurea, October 28, 2002

G.R.

No.

139607,

FACTS: Spouses Ramon Isidro P. Lapid and Gladys B. Lapid are the parents of seven-yearold Christopher B. Lapid, who was a Grade 1 pupil of the respondent school, St. Therese of the Child Jesus. Private respondents Esperanza N. Prim, Norilyn A. Cruz, Flordeliza C. Santos and Macario B. Binondo are its directress, teacher-in-charge, guidance counselor and principal, respectively. Petitioners filed a complaint for damages against the private respondents before the RTC. 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. According to petitioners, the school’s malicious imputation against their son tarnished their good name and reputation. Eventually, petitioners filed a motion to declare respondent school as in default, which motion was denied by the trial court. With the denial of their motion for reconsideration, petitioners filed a petition for certiorari with the Court of Appeals, which was dismissed for failure to indicate the particular date of filing the motion for reconsideration with the RTC. On motion for reconsideration, petitioners still failed to indicate said date thus, it was likewise denied. Hence this petition.

ISSUE: WON the CA 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 RULING: 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. 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 Page 21 of 26

reconsideration itself was filed on time since the material dates were not stated. All told, no reversible error can be ascribed to the Court of Appeals for dismissing the petition for certiorari and later denying the petitioners’ motion for reconsideration. Petition denied.

AF.1. Parties – Persons Aggrieved Concepcion, Jr. v. COMELEC, G.R. No. 178624, June 30, 2009 FACTS: The National Citizen’s Movement for Free Elections (NAMFREL) filed a petition for Accreditation to Conduct the Operation Quick Count with the COMELEC. The petitioner was the incumbent Punong Barangay of Barangay Forbes Park, Makati City, was one of the signatories of the NAMFREL petition in his capacity as the National Chairman of NAMFREL.

On the same date when the petition was filed, COMELEC promulgated Resolution No. 7798 wherein it prohibited among others “the appointment of barangay officials which includes the Punong Barangay, Barangay Kagawad, Barangay Secretary, Barangay Treasurer, and Barangay Tanod, as Chairman/person and/or Member of the BEIs or as official watcher of any candidate, duly registered major political party, or any similar organization, or any socio-civic, religious, professional [sic], in the May 14, 2007 National and Local Elections. The prohibition extends to barangay officials, employees and tanods, who are members of accredited citizen’s arms.”

The COMELEC ruled on NAMFREL’s petition, conditionally granting in the following tenor: “… There is, however, one important condition that must be fulfilled by the petitioner before its accreditation as citizen’s arm could legally take effect. Accordingly, Mr. Jose S. Concepcion, Jr., the National Chairman of NAMFREL, must first be removed both as a member and overall Chairman of said organization…. This is explicitly provided for in COMELEC Resolution No. 7798.” Also, it

further subjected NAMFREL from enjoining and encouraged by the Commission to reorganize.

Thereafter, NAMFREL filed a manifestation and request for re-examination which contain therein among others its re-organization and new set of officers. COMELEC denied the request for re-examination. NAMFREL did not question the ruling.

Instead of direct reaction to NAMFREL, petitioner Concepcion filed this petition for certiorari raising issues with respect to Resolution No. 7798. ISSUE: RULING: The first defect lies in the petitioner’s personality to file a petition for certiorari to address the 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.

Section 1, Rule 65 essentially provides that a person aggrieved by any act of a tribunal, board or officer exercising judicial or quasijudicial 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. An aggrieved party under Section 1, Rule 65 is one who was a party to the original proceedings that gave rise to the original action for certiorari under Rule 65.

In Tang v. Court of Appeals where we said: Although Section 1 of Rule 65 provides that the special civil action of certiorari may be availed of by a "person aggrieved" by the orders or decisions of a tribunal, the term "person aggrieved" is not to be construed to mean that any person who feels injured by the lower court’s order or decision can question the said court’s Page 22 of 26

disposition via certiorari. To sanction a contrary interpretation would open the floodgates to numerous and endless litigations which would undeniably lead to the clogging of court dockets and, more importantly, the harassment of the party who prevailed in the lower court. In a situation wherein the order or decision being questioned underwent adversarial proceedings before a trial court, the "person aggrieved" referred to under Section 1 of Rule 65 who can avail of the special civil action of certiorari pertains to one who was a party in the proceedings before the lower court. The correctness of this interpretation can be gleaned from the fact that a special civil action for certiorari may be dismissed motuproprio if the party elevating the case failed to file a motion for reconsideration of the questioned order or decision before the lower court. Obviously, only one who was a party in the case before the lower court can file a motion for reconsideration since a stranger to the litigation would not have the legal standing to interfere in the orders or decisions of the said court. In relation to this, if a non-party in the proceedings before the lower court has no standing to file a motion for reconsideration, logic would lead us to the conclusion that he would likewise have no standing to question the said order or decision before the appellate court via certiorari. (emphasis supplied)

In Development Bank of the Philippines v. Commission on Audit - a case that involves a certiorari petition, under Rule 64 in relation with Rule 65, of a ruling of the Commission on Audit (a constitutional commission like COMELEC):

The novel theory advanced by the OSG would necessarily require persons not parties to the present case – the DBP employees who are members of the

Plan or the trustees of the Fund – to avail of certiorari under Rule 65. The petition for certiorari under Rule 65, however, 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 court a quo, or in this case, before the COA. To hold otherwise would open the courts to numerous and endless litigations. Since DBP was the sole party in the proceedings before the COA, DBP is the proper party to avail of the remedy of certiorari.

The real party in interest who stands to benefit or suffer from the judgment in the suit must prosecute or defend an action. We have held that "interest" means material interest, an interest in issue that the decision will affect, as distinguished from mere interest in the question involved, or a mere incidental interest.

AF.4. Parties – Indispensable Parties Golangco v. Fung, G.R. No. 157952, September 8, 2009 FACTS:In a Criminal Case a prosecution for libel initiated by the petitioner as the complainant against the respondent, was commenced in 1995. Allegedly, the respondent had issued an office memorandum dated May 10, 1995 maliciously imputing against the petitioner the commission of bribery and had sent copies of the memorandum to the petitioner’s 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 in Criminal Case No. 95-145703. On February 16, 2001, the Prosecution requested that a subpoena ad Page 23 of 26

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 RTC did not granted the request. The same was affirmed by the Court of Appeals. ISSUE: RULING: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 court’s 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 certiorari. 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 petitioner now needs to be reminded that 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. 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.

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.

AK. DOJ rulings Alcaraz v. Gonzalez, G.R. No. 164715, September 20, 2006 FACTS: 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 City and 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, armed with a .38 caliber pistol and had with him Mission Order No. 699-2000, to expire on August 21, 2000.

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 rightmost lane, was forced to swerve his car to the right to avoid colliding with Alcaraz's vehicle and nearly hit the concrete island. 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. 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 Gonzalez's car. Alcaraz hurriedly drove away from the scene, but was intercepted by the PNCC guards at the Skyway toll gate. The guards confiscated from Alcaraz the .38 pistol with 7 live bullets and 3 empty shells.

As long as the trial court acted within its jurisdiction, its alleged error committed in the Page 24 of 26

Gonzalez reported the matter to the Parañaque City Police Station where he gave a statement to the police investigator, and filed a criminal complaint for attempted homicide against Alcaraz.The PNP Crime Laboratory examined Gonzalez's car to determine the trajectory of the bullets. Report No. PI-46-2000 was prepared in connection with the investigation:

"putanginamo" with a dirty finger sign, but also the throwing of coins that hit respondent's face and his lady passenger. The natural consequence was for respondent to retaliate as what had transpired in the instant case. There is no dispute that respondent fired his gun. But as to whether or not he had the intention to kill complainant is a different issue. Respondent's argument that he had no intention of hitting complainant and that his objective was only to scare him finds merit.

CONCLUSION:

The entrance bullet holes and the exit bullet hole were caused by bullets fired from right, front side of the vehicle. Alfredo Tan Buraga, Officer-in-Charge of the Parañaque Police Station, filed a criminal complaint for attempted homicide against Alcaraz in the Office of the City Prosecutor of ParañaqueCity.On motion of Alcaraz, the MeTC ordered the City Prosecutor to conduct a preliminary investigation.

Alcaraz claimed that he did not aim his gun at Gonzalez; he had no intention of hitting Gonzalez, and only wanted to scare him. At the police station, Gonzalez identified himself as the brother of Congressman Jose Mari Gonzalez. Gonzalez insisted that Alcaraz attempted to kill him. He denied having thrown coins at Alcaraz and that he had a gun at the time. Gonzalez pointed out that Alcaraz's allegation that he was defending himself when he fired his gun was in effect an admission of intent to kill. Alcaraz filed a motion for reconsideration, and when it was denied, filed a petition for review with the City Prosecutor's Office, Department of Justice.

Secretary of Justice Hernando Perez issued a Resolution granting the petition and ordering the City Prosecutor to withdraw the Information.

Gonzalez failed to prove beyond reasonable that Alcaraz had intended to kill him, thus: Evidence shows that respondent was provoked by complainant's acts of repeatedly hurling, not only invectives like

The element of intent to kill not having been satisfactorily established, and considering that complainant was unscathed, a finding of probable cause against respondent for attempted homicide is difficult to sustain. 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 Alcaraz's claim of self-defense should be ventilated during trial on the merits.

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 Page 25 of 26

non-existence of probable cause to charge him with attempted homicide.

empowered to substitute their own judgment for that of the executive branch.

The CA ruled that the petition for review under Rule 43 of the Rules of Court, as amended, was meritorious. The appellate court declared that, based on the evidence on record, there was probable cause to file an Information for attempted homicide against Alcaraz. However, the CA failed to resolve the issue of whether it had appellate jurisdiction over the petition under Rule 43 of the Rules of Court, as amended.

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. 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.

On July 19, 2004, the CA resolved to deny Alcaraz's motion, holding that his grounds and objections had already been considered and passed upon by it in its decision.

OSG avers that the CA erred in granting the petition of respondent, since 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.

Petitioner avers that conformably with the resolution of the Secretary of Justice, the City Prosecutor had filed a motion to withdraw the information in the MeTC, and the court had granted the motion per its Order dated March 7, 2003. He points out that respondent had not appealed the said order of the trial court. ISSUE: Whether the petition for review under Rule 43 of the Rules of Court was the proper remedy of respondent? RULING: We agree with petitioner's contention that respondent 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 determination of probable cause during the preliminary investigation, the executive branch of government has full discretionary authority. The decision whether or not to dismiss the criminal complaint against the private respondent is necessarily dependent on the sound discretion of the Investigating Prosecutor and ultimately, that of the Secretary of Justice. Courts are not

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's resolution, 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.

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. The petition is GRANTED. The assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 75589 are NULLIFIED.

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