Admin and

Election Law

ANIE P. MARTINEZ
D. PETITION FOR CERTIORARI,
PROHIBITION, AND
MANDAMUS
Petition for Certiorari
- another mode of seeking judicial
review of orders, rulings and decisions
of quasi-judicial agencies is by way of
certiorari, prohibition and mandamus
under Rule 65 of the Rules of Court.
Section 1:

provides “ When any tribunal,

board or officer exercising judicial
and or quasi-judicial functions has
acted without or in excess of its
jurisdiction, or with grave abuse of
discretion amounting to lack or
excess of jurisdiction, and there is
is no appeal, or any plain, speedy,
and adequate remedy in the
ordinary course of law, a person
aggrieved thereby may file a
verified petition in the proper court,
alleging the facts with certainty
and praying that judgement be
rendered annulling or modifying
the proceedings of such tribunal,
board or officer, and granting such
incidental reliefs as law and justice
may require.
- petition shall be accompanied by
a certified true copy of the
judgement, order or resolution
subject thereof, copies of all
pleadings and documents
relevant and pertinent thereto,
and a sworn certification of non-
forum shopping as provided in the
paragraph of Sec. 3, Rule 46.
Certiorari

- is a special civil action directed

against any tribunal, board or
officer exercising judicial or quasi-
judicial functions which is alleged in
a verified petition in the proper
court to have acted without
jurisdiction or in excess of
jurisdiction or with grave abuse of
discretion, there being no appeal,
nor any plain, speedy and
adequate remedy in the ordinary
course of law for the purpose of
annulling or modifying the
proceeding.
- It has been held that the “sole
office of the writ of certiorari is the
correction of errors of jurisdiction
including the commission of grave
abuse of dissection amounting to
lack or excess of jurisdiction.
- it does not include correction of
errors in the evaluation or
appreciation of the evidence and
findings based thereon.
Special civil action

- is a remedy designed to correct

errors of jurisdiction and not errors
of judgement.
Writ of certiorari

- is granted to keep an inferior

court within the bounds of its
jurisdiction.
- available where it appears that
the court is proceeding in excess
or outside of its jurisdiction, even if
appeal is available as a remedy.
Purpose of certiorari
- purpose of the remedy of
certiorari is to annul or modify the
questioned act or ruling.
- Intended to annul void
proceedings; to prevent unlawful
and oppressive exercise of legal
authority; and to provide for a fair
and orderly administration of
justice.
Requisites for certiorari
The indispensable elements of
certiorari are the ff.:

1. It is directed against a
tribunal, board or officer
exercising judicial or quasi-
judicial functions.
2. The tribunal, board or officer
has acted without or in excess
of jurisdiction or with grave
abuse of discretion.
Petition for review vs. Petition
for Certiorari

Petition for certiorari seeks to

correct errors of jurisdiction,
while a petition for review seeks
to correct errors of judgement,
which include errors of
procedure or mistakes in the
court’s findings.
3. There is no appeal nor any
plain, speedy and adequate
remedy in the ordinary course
of law.
When certiorari may issue
As a remedy under Rule 65 of the
Rules of Court, the special civil
action of certiorari may be availed
of against an interlocutory order
where it was issued with grave
abuse of discretion amounting to
lack or excess of jurisdiction and
delay in the review of the order
until the appeal from the decision
in the main case would not afford
the party adversely affected by
said order a speedy, plain and
adequate remedy.
- the fact that the decisions, final
orders or rulings of the COMELEC in
contests involving elective
municipal and barangay officials
are considered by law as final,
executory and not appealable
does not preclude recourse to the
Supreme Court by way of special
civil action of certiorari.

A petition for certiorari under Rule

65 may be treated by the SC as an
appeal under Rule 45, when the
interests of justice so require, instead
of dismissing it on a technicality.
When writ may not issue
- it is not available to correct errors
of procedure or mistakes in the
court’s findings or conclusions, the
remedy in connection with the
latter being an appeal or a petition
for review.
- errors of fact or law do not involve
jurisdiction and may be corrected
only by ordinary appeal. Where
no error of jurisdiction is raised, the
petition will be dismissed.
- evaluation of evidentiary matters
is beyond the province of
certiorari.
- the rule that in a petition for
certiorari only errors of jurisdiction or
grave abuse of discretion may be
corrected admits of exceptions.
Motion for reconsideration
required: exceptions:
- the rule is that a motion for
reconsideration must be filed
before the remedy of certiorari
may be availed of.
Exceptions:
1. Where the order is a patent
nullity, as where the court as no
jurisdiction;
2. Where the questions raised have
been duly raised and passed
upon by the lower court, or are
the same as those raised before
Exceptions:
the lower court;
3. 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
Exceptions:

perishable.
4. where, under the circumstances,
a motion for reconsideration would
be useless;
5. where petitioner was deprived of
due process and there is extreme
Exceptions:

urgency for relief;

6. where in a criminal case, relief
from an order of arrest is urgent
and the granting of such relief by
the trial court is improbable;
7. where the proceedings in the
Exceptions:
lower court are a nullity for lack of
due process;
8. where the proceedings were ex
parte or in which the petitioner had
no opportunity to object;
9. where the issue raised is one
purely of law or where public
Exceptions:

interests is involved;
10. where judicial intervention is
urgent;
11. where its application may
cause great and irreparable
damage;
Exceptions:
12. failure of a high government
official from whom relief is sought
to act on the matter;
13. when the issue of non-
exhaustion of administrative
remedies has been rendered moot;
14. where special circumstances
Exceptions:
warrant immediate and more
direct action.
Petition for Prohibition

- is a preventive remedy. Its

function is to restrain the doing of
some act about to done.
- it is not intended to provide a
remedy for acts already
accomplished.
Petition for Prohibition

-it does not lie, as a rule, to restrain

an act that is already a fait
accompli.
- If the thing be already done, the
writ of prohibition cannot, as a rule,
undo it.
Petition for mandamus
- it is the proper remedy if it can be
shown that there is neglect on the
part of a tribunal or officer in the
performance of an act, which
specifically the law enjoins as a
duty or an unlawful exclusion of a
Petition for mandamus

party from the use and enjoyment

of a right which he is entitled.
Mandamus lies under any of the
following:

1. against any tribunal which

unlawfully neglects the
performance of an act which the
law specifically enjoins as a duty;
2. in case any corporation, board
or person unlawfully neglects the
performance of an act which the
law enjoins as a duty resulting from
an office, trust or station; and
3. in case any tribunal, corporation,
board or person unlawfully
excludes another from the use and
enjoyment of a right or office to
which such other is legally entitled;
and in any of these instances, there
is no other plain, speedy and
adequate remedy in the ordinary
course of law.
Requisites for mandamus to issue
- the applicant must have a clear
legal right to the thing
demanded.
- the right must be well defined,
clear and certain.
- a clear legal right is one founded
or granted by law.
Ministerial or discretionary power
- the availability of the special civil
action of mandamus depends, to
a large extent, on the nature of the
power conferred upon, and
required to be performed by,
public functionaries.
Ministerial or discretionary power
- generally, mandamus will lie to
compel the doing of a ministerial
act.
- it does not lie to control
discretion, although it may issue to
compel the exercise of discretion
but not the discretion itself.
- the duties and powers of public
officers may either be ministerial
or discretionary.
Ministerial duty
- is one which is so clear and
specific as to leave no room for the
exercise of discretion in its
performance.
Purely ministerial act or duty, in
contradistinction to a discretionary
act, is one which an officer or
tribunal performs in a given state of
facts, in a prescribed manner, in
obedience to the mandate of legal
authority, without regard to the
existence of his own judgement.
Discretion when applied to public
functionaries, means a power or
right conferred upon them by law
of acting officially, under certain
circumstances, uncontrolled by the
judgement or conscience of
others.
The usual remedy against the
refusal or neglect of an officer to
perform a ministerial act is by filling
a petition for mandamus.
- mandamus lies against an officer
who unlawfully neglects the
performance of an act which the
the law specifically enjoins as a
duty resulting from an office, trust or
station.

- it is essential that the plaintiff has a

legal right to the thing demanded
and that there is the imperative
duty of the defendant to perform
the act required.

- however, mandamus is not, as rule,

available to control discretion.
- It may issue to compel the
discharge of the discretionary
duty itself but not to control the
discretion to be exercised.

-if the duty is purely

discretionary, the courts by
mandamus will require action
only.
Mandamus may not interfere with
exercise of discretion.
- the rule that mandamus will not
issue to compel a discretionary act
is subject to exceptions, among
which is that it issues where there is
grave abuse of discretion, manifest
injustice or palpable excess of
authority equivalent to denial of a
settled right to which petitioner is
entitled and there is no other plain,
speedy and adequate remedy.
First Phil. Holdings Corp v.
Sandiganbayan
The SC laid down the exceptions:

“Ordinarily, mandamus will not

prosper to compel a discretionary
act. But where there is ‘gross abuse
of discretion, manifest injustice or
or palpable excess of authority’
equivalent to denial of a settled
right to which petitioner is entitled,
and there is no other plain, speed
and adequate remedy, the writ
shall issue.
‘These exceptions were recognized
by this Court in Kant Kuong v.
PCGG et al., as follows:

“Although, as averred by
respondents, the recognized rule is
that, in the performance of an
official duty or act involving
discretion, the corresponding
official can only be directed by
mandamus to act but not to act
one way or the other, yet it is not
accurate to say that the writ will
never issue to control his discretion.
There is an exception to the rule if
the case is otherwise, proper, as in
cases of gross abuse of discretion,
manifest injustice or palpable excess
of authority.’
Instances when mandamus
may or not lie
1. Mandamus will not lie to compel
a course of conduct. Neither will it
lie to compel an official to do
anything which is not his duty to do
or to give the applicant anything
to which he is not entitled by law.
- the writ neither confers powers
nor imposes duties. Nor will
mandamus lie to compel
performance of an act prohibited
by law.
2. Mandamus does not lie to require
anyone to fulfill contractual
obligations. A contractual obligation
is not a duty specifically enjoined by
law resulting from office, trust, or
station and the rule is that
mandamus never lies to enforce
the performance of contractual
obligations.

3. Where a decision of the Civil

Service Commission ordering an
employee who had been dismissed
to be reinstated and the decision
had become final, mandamus lies
to compel its execution.
4. Mandamus does not lie to
compel the appointing authority to
appoint a particular person to a
specific position, though how
qualified he may be to the position.
5. Where an employee of the local
government unit is, by law, entitled
to retirement benefits, the fact that
the local unit has not appropriated
money for the purpose does not
deprive him of the remedy of
mandamus to compel payment.
Mandamus is available to compel
not only the enactment and
approval of the necessary
appropriation ordinance, but also
the corresponding payment of
municipal funds therefor.
6. Where the law is silent as to the
standards for the control and
regulation of sugar importation,
mandamus will not lie to compel
the Sugar Regulatory Administration
to issue rules and regulations
governing the importation of sugar.
Unlawfully excluded from office or
position
- a person who has been excluded
from the use and enjoyment of a
right or office to which he is entitled
may file a petition for mandamus,
where there is no appeal or plain,
speedy and adequate remedy
in the ordinary course,
commanding the board or person
that unlawfully excluded him to
reinstate the person to such office
or enjoyment of such right.

- where the position is disputed by

two or more persons who both
claim thereto, mandamus does not
lie to oust the person who occupies
it and exercises its functions.
Where to file
Section 4 provides: “The petition
may be filed not later than sixty
(60) days from notice of the
judgement, order or resolution.
In case a motion for
reconsideration or new trial is timely
filed, whether such motion is
is required or not, the sixty (60) day
period shall be counted from
notice of the denial of said motion.

- the petition shall be filed in the

Supreme Court or, if relates to the
acts or omissions of a lower court
or of a corporation, board, officer
or person, in the RTC exercising
jurisdiction over the territorial area
as defined by the SC.

- it may also be filed with the CA

whether or not the same is in aid of
its appellate jurisdiction, or in the
Sandiganbayan if it is in aid of its
appellate jurisdiction.

- if it involves the acts or omissions

of a quasi-judicial agency, unless
otherwise provided by law of these
rules, the petition shall be filed in
and cognizable only y the Court of
Appeals.

- No extension of time to file the

petition shall be granted except
for compelling reason and in no
case exceeding fifteen (15) days.
Respondents and costs in certain
cases
Section 5 “ When the petition filed
relates to the acts or omissions of a
judge, quasi-judicial agency,
tribunal, corporation, board, officer
or person, the petitioner shall join, as
private respondent or respondents,
the person or persons interested in
sustaining the proceeding in the
court; and it shall be the duty of
such private respondents to
appear and defend, both in his or
their own behalf and in behalf
of the public respondent or
respondents affected by the
proceedings, and the cost
awarded in such proceedings in
favor of the petitioner shall be
against the private respondents
only, and not against the judge,
court, quasi-judicial agency,
tribunal, corporation, board, officer
or person impleaded as public
respondent or respondents.
Order to comment

- In petition for certiorari before the

Supreme Court and the Court of
Appeals, the provisions of Section
2, Rule 56, shall be observed.
Before giving due course thereto,
the court may require the
respondents to file their comment
to, and not a motion to dismiss, the
petition. Thereafter, the court may
require the filing of a reply and
such other responsive or other
pleadings as it may deem
necessary and proper.
Expediting proceedings;
injunctive relief.
Section 7 states: “The court in
which the petition is filed may issue
orders expediting the proceedings,
and it may also grant a temporary
restraining order or a writ of
preliminary injunction for the
preservation of the rights of the
parties pending such proceedings.
The petition shall not interrupt the
course of the principal case unless
a temporary restraining order or a
writ of preliminary injunction has
been issued against the public
respondent from further
proceeding in the case.
Proceeding after comment of
filed
Section 8 provides: “After the
comment or other pleadings
required by the court are filed, or
the time for the filing thereof has
expired, the court may hear the
case or require the parties to
submit memoranda.

- If after such hearing or submission

of memoranda or the expiration of
the period for the filing thereof the
court finds that the allegations
of the petition are true, it shall
render judgement for the relief
prayed for or to which the
petitioner is entitled.
Proceedings after comment is
filed.
Section 8 provides: “After the
comment or other pleadings
required by the court are filed, or
the time for the filing thereof has
expired, the court may hear the
case or require the parties to
submit memoranda.
- If after such hearing or submission
of memoranda or the expiration of
the period for the filing thereof the
court finds that the allegations of
the petition are true, it shall render
judgement for the relief prayed for
or to which the petitioner is entitled.

“The court, however, may dismiss

the petition if it finds the same to be
patently without merit, prosecuted
manifestly for delay, or that the
questions raised therein are too
unsubstantial to require
consideration.
Service and enforcement of
order or judgement
Section 9 provides: “A certified
copy of the judgement rendered in
accordance with the last preceding
section shall be served upon the
court, quasi-judicial agency,
tribunal, corporation, board, officer
or person concerned in such
manner as the court may direct,
and disobedience thereto shall be
punished as contempt. An
execution may issue for any
damages or costs awarded in
accordance with Sec 1 of Rule 39.”
Common requisites
1. The petition must be verified. A
pleading is verified by an affidavit
that the affiant has read the
pleading and that the allegations
therein are true and correct of his
knowledge or based on authentic
records.
2. When and where to file petition. –
Section 4 of Rule 65, which indicates
where and when to file the petition,
provides that the petition may be
filed not later than sixty (60) days
from notice of judgment, order or
resolution sought to be assailed in
the SC or, if it relates to the acts
or omissions of a lower court or of a
corporation, board, officer or
person, in the RTC exercising
jurisdiction over the territorial area
as defined by the SC.
Sandiganbayan if it is in aid of its
jurisdiction. If it involves the acts or
omissions of a quasi-judicial
agency, and unless otherwise
provided by law or the Rules, the
petition shall be filed in and
cognizable only by the CA.
60 days period

Section 4 of Rule 65 of the new

Rules of Civil Procedure now
requires that the petition be filed
not later than sixty (60) days from
notice of the judgement or order
sought to be assailed.
Where the petition was filed beyond
the 60-day period, without the
adverse party questioning the
timeliness of the filing of the petition,
until such party filed a motion for
reconsideration of an adverse
decision of the CA, he is deemed to
have waived his objection to the
timeliness of the filing of the petition
in the CA.
3. Jurisdiction to issue writ

Under Sec. 4 of Rule 65, the SC, CA

and RTC have original concurrent
jurisdiction to issue a writ of
certiorari, prohibition and
mandamus.
4. Who should be respondents
- the petition relating to the acts or
omissions of a quasi- judicial agency
or officer shall join, as private
respondent or respondents with such
public respondent or respondents
affected by the proceedings, and
the costs awarded in such
proceedings in favor of the petition
shall be against the private
respondents only, and not against
the quasi-judicial agency or officer
impleaded as public respondent or
respondents.
5. Contents of petition

- the petition shall contain the full

names and actual address of all
the petitioners and respondents, a
concise statement of the matters
involved, the factual background
of the case, and the grounds relied
upon for the relief prayed for.
6. Non-forum shopping
certification
- the petition must be
accompanied by a verified non-
forum certification, usually
combined with its verification, that
the petitioner has not therefore
commenced any other action
involving the same issues in the SC,
CA or different divisions thereof.
Injunctive relief

- The court in which the petition of

certiorari, prohibition or mandamus
may issue a status quo order to
maintain the last, actual,
peaceable and uncontested
status of things which preceded
the controversy.

- It may also, upon motion of

petitioner, grant a temporary
restraining order or a writ of
preliminary injunction for the
preservation of the rights of the
parties pending such proceedings.

- In the absence of such temporary

restraining order or a writ of
preliminary injunction, the court or
tribunal before which the main or
principal case is pending may
proceed with the trial or hearing.
Appeal by Certiorari to the
Supreme Court

Appeal by certiorari is discretionary

- a petition for review on certiorari

or an appeal to the SC by certiorari
from judgment or final order of the
Court of Appeals, the
Sandiganbayan, and the RTC or
other courts whenever authorized
by law is not a matter of right but is
matter of sound discretion.
- even if the petition complies with
all its requirements, the Supreme
Court may however deny due
course when it finds that the
appeal is without merit, or is
prosecuted manifestly for delay, or
it raises questions which are too
unsubstantial to require
consideration.
-the remedies of appeal under Rule
45 and a special civil action of
certiorari under Rule 65 are
mutually exclusive and not
alternative or successive.
- the appeal is taken within fifteen
(15) days from the notice of
judgment or final order or resolution
appealed from, or of the denial of
the petitioner’s motion for new trial
or reconsideration.
1. By filing the verified petition
sufficient in form and substance as
prescribed, with proof of service
thereof on the lower court and on
the adverse party and containing
a sworn certification against forum
shopping, and
2. By paying the corresponding
docket and other lawful fees to the
clerk of court of the Supreme Court
and depositing the amount of Php
500.00 for costs.
Issues or questions of law raised

- The petition must raise only

questions of law which must be
distinctly set forth and discussed, as
distinguished from questions of fact
because findings of fact of the
lower courts are generally
binding upon the SC.

General Rule – petitions for review

on certitiorari the SC takes the
findings of fact of the lower courts
as entitled to great respect and
at times even finality.
Exceptional cases when the SC

1. When the conclusion is a finding

grounded entirely on
speculation, surmises and
conjectures;
2. When the inference made is
manifestly mistaken, absurd
and impossible;
3. Where there is grave abuse of
discretion;
4. When the judgement is based on
a misappropriation of facts;
5. When the findings are
conflicting;
6. When the lower court, in making
its findings, went beyond the issues
of the case and the same are
contrary to the admissions of
both the appellant and the
appellee;
7. When the findings are contrary
to those of the trial court;
8. When the findings of fact are
conclusions without citation of
specific evidence on which they
are based;
9. When the facts set forth in the
petition, as well as in the other
pleadings are not disputed by the
respondent;
10. When the findings of facts are
premised on the supposed
absence of evidence and are
contradicted by evidence on
record; and
11. Where the decision contains
merely a restatement of the
evidence but does not make any
findings of fact.
When petition may be given due
course
1. When court a quo has decided a
question of substance, not therefore
determined by the Supreme Court,
or has decided it in a way probably
not in accord with law or with the
applicable decisions of the SC;
2. When the court a quo has so far
departed from the accepted and
usual course of judicial
proceedings, or so far sanctioned
such departure by a lower court, as
to call for an exercise of the power
of supervision.
Memoranda of the parties shall
contain the following:
a. Statement of the Case
b. Statement of the Facts
c. Statement of the Issues
d. Argument
e. The Relief