RULE 65 : MANDAMUS

Nature and Purpose of Mandamus

What is Mandamus?

Mandamus is an extraordinary writ commanding a tribunal, corporation,

board or person, to do an act required to be done: (It is a writ issued in the
name of the State, to an inferior tribunal, corporation, board or person,
commanding the performance of an act which the law enjoins as a duty
resulting from an office, trust or station.)

a. When he unlawfully neglects the performance of an act which the law

specifically enjoins as a duty, and there is no other plain, speedy and
adequate remedy in the ordinary course of law; or

b. When one unlawfully excludes another from the use and enjoyment of a
right or office to which the other is entitled (Sec. 3, Rule 65)

DEFINITIONS AND DISTINCTIONS :

Certiorar Prohibition Mandamus

i

Definitio Certiorari is Prohibition Mandamus is

n an is an an
extraordina extraordina extraordinary
ry writ ry writ writ
annulling commandin commanding
or g a a tribunal,
modifying tribunal, corporation,
the corporation board or
proceeding , board or person, to do
s of a person, an act
tribunal, whether required to
board or exercising be done:
officer judicial,
exercising quasi- a. When he
judicial or judicial or unlawfully
quasi- ministerial neglects
judicial functions, the
functions to desist performanc
when such from e of an act
tribunal, further which the
board or proceeding law
officer has s when said specifically
enjoins as
 acted proceeding a duty, and
without or s are there is no
in excess of without or other plain,
its or his in excess of speedy and
jurisdiction its adequate
, or with jurisdiction remedy in
grave , or with the
abuse of abuse of its ordinary
discretion discretion, course of
amounting there being law; or
to lack or no appeal
excess of or any b. When one
jurisdiction other plain, unlawfully
, there speedy and excludes
being no adequate another
appeal or remedy in from the
any other the use and
plain, ordinary enjoyment
speedy and course of of a right
adequate law (Sec. 2, or office to
remedy in Rule 65). which the
the other is
ordinary entitled
course of (Sec. 3,
law (Sec. 1, Rule 65).
Rule 65).

-to -to command

prevent/
disconitue
or undoing
of an act

-to correct
an act

Against Directed Directed Directed

whom against an against an against an
entity or entity or entity or
person person person
exercising exercising exercising
judicial or judicial, ministerial
 quasi- quasi- function.
judicial judicial or
function. ministerial
function.

Ground Entity or Entity or Entity or

person is person is person is
alleged to alleged to alleged to
have acted have acted: have
without without unlawfully
jurisdiction jurisdiction neglected a
; in excess ; in excess ministerial
of of duty; or
jurisdiction jurisdiction excluded
; or with ; or with another from
grave grave a right or
abuse of abuse of office.
discretion discretion

Purpose Purpose is Purpose is Purpose is for

to annul or to have respondent
nullify a respondent to:
proceeding. desist from
further 1. Do the
proceeding. act
required;
and

2. To pay
damage.

Nature This This This remedy

remedy is remedy is is affirmative
corrective – preventive or positive (if
to correct and the
usurpation negative – performance
of to restrain of a duty is
jurisdiction or prevent ordered) or it
(Sec. 1, usurpation is negative (if
Rule 65). of a person is
jurisdiction ordered to
(Sec. 2, desist from
Rule 65) excluding
another from
a right or
office) (Sec.
 3, Rule 65).

Scope Extends to Extends to Only for

discretiona discretiona ministerial
ry acts ry and acts
ministerial
acts

PROHIBITION AND MANDAMUS DISTINGUISHED FROM INJUNCTION :

Prohibition Mandamus Injunction

Definition Prohibition is Mandamus is Main action

an an for
extraordinary extraordinary injunction
writ writ seeks to
commanding commanding enjoin the
a tribunal, a tribunal, defendant
corporation, corporation, from the
board or board or commissio
person, person, to do n or
whether an act continuanc
exercising required to be e of a
judicial, done: specific
quasi-judicial act, or to
or ministerial 1. When he compel a
functions, to unlawfully particular
desist from neglects the act in
further performance violation of
proceedings of an act the rights
when said which the of the
proceedings law applicant.
are without specifically
or in excess enjoins as a
of its duty, and
there is no Preliminary
jurisdiction, injunction
or with abuse other plain,
speedy and is a
of its provisional
discretion, adequate
remedy in remedy to
there being preserve
no appeal or the ordinary
course of the status
any other quo and
plain, speedy law; or
prevent
 and adequate 2. When one future
remedy in the unlawfully wrongs in
ordinary excludes order to
course of law another from preserve
(Sec. 2, Rule the use and and protect
65). enjoyment certain
of a right or interests or
office to rights
which the during the
other is pendency
entitled of an
(Sec. 3, Rule action.
65).

Nature Special civil Special civil Ordinary

action action civil action

Purpose To prevent an To compel the For the

encroachmen performance defendant
t, excess, of a either to
usurpation or ministerial refrain
assumption of and legal from an act
jurisdiction duty or to
perform
not
necessarily
a legal and
ministerial
duty

Against May be May be Directed

whom directed directed against a
against against party
entities judicial and
exercising non-judicial
judicial or entities
quasi-judicial,
or ministerial
functions

Scope Extends to Extends only Does not

discretionary to ministerial necessarily
and functions extend to
ministerial ministerial,
functions discretiona
 ry or legal
functions

How filed Always the Always the May be the

main action main action main action
or just a
provisional
remedy

Court May be May be May be

which brought in brought in brought in
has the Supreme the Supreme the
jurisdicti Court, Court Court, Court Regional
on of Appeals, of Appeals, Trial Court
Sandiganbaya Sandiganbaya which has
n, or in the n, or in the jurisdiction
Regional Trial Regional Trial over the
Court which Court which territorial
has has area where
jurisdiction jurisdiction respondent
over the over the resides.
territorial territorial
area where area where
respondent respondent
resides. resides.

Prayer in a petition for mandamus :

In a petition for mandamus, the petitioner prays,

(a) that judgement be rendered commanding the respondent to do the act required to be
done to protect the rights of the petitioner, and

(b) that the respondent pay the damages sustained by the petitioner by reason of the
wrongful acts of the respondent (Sec 3, Rule 65, Rules of Court).

Requisites of a valid mandamus

1. There must be a clear legal right to the act demanded;

2. It must be the duty of the defendant to perform the act because it is

mandated by law;
3. The defendant unlawfully neglects the performance of the duty enjoined
by law;

4. The act to be performed is ministerial, not discretionary;

5. There is no appeal or other plain, speedy and adequate remedy in the

ordinary course of law (Sec. 3, Rule 65; Riano, 2012).

Existence of a clear legal right :

a) For a writ of mandamus to be issued, it is essential that petitioner should have a clear legal
right to do the thing demanded and it must be the imperative duty of the respondent to
perform the act required.

b) The writ of mandamus can be awarded only when the petitioners’ legal right to the
performance of the particular act.

c) For mandamus to issue, it is essential that petitioner for it has a clear legal right to the
claim sought.

Ministerial Act vs. Discretionary Act

 The distinction between a ministerial and discretionary act is well delineated. A purely
ministerial act or duty is one which an officer of tribunal performs in a given state of
facts, on the other hand, if the law imposes a duty upon a public officer and gives him
the right to decide how or when the duty shall be performed, such duty is
discretionary and not ministeral.

WHEN PETITION FOR MANDAMUS IS PROPER?

PETITION FOR MANDAMUS (SEC.3)

Mandamus is the opposite of prohibition. Here, you ask the court to direct a
tribunal, corporation, board, officer or person to perform an act because it is
his duty to do so.

Against whom filed (Respondent)

a.) Tribunal

b.) Corporation

c.) Board

d.) Officer
 e.) Person

Grounds for mandamus

1. When any tribunal, corporation, board, officer or person unlawfully

neglects the performance of an act which the law specifically enjoins as a
duty resulting from an office, trust or station; or

2. When any tribunal, corporation, board, officer or person unlawfully

excludes another from the use and enjoyment of a right or office to which
the other is entitled (Sec. 3, Rule 65).

What are the conditions aside from the grounds or the basis of your petitions
from your mandamus?

The conditions are very much the same as the conditions in your certiorari.

Conditions

1. There is no other plain, speedy and adequate remedy in the

ordinary course of law.

2. The petition must be verified

3. The petition must contain a certificate of non-forum shopping.

4. Mandamus will lie to compel performance of a ministerial duty NOT a

discretionary duty.

 Note : You cannot force an official to perform its discretionary duty in a certain
manner. You can force an official to perform a discretionary duty but not to
perform it in one way or the other. But if he refuse to perform his discretionary
duty and it prejudice your right, you can always compel him to perform a
discretionary duty but not on how to exercise the discretion,
 The order shall command the respondent to do the act required to be done to
protect the right of petitioner, and to pay the damages sustained by the
petitioner by reason of the wrongful acts of respondent.
 In a money judgment against the municipality where its officials unjustifiably
refuse to pay the judgment, the remedy of the claimant is to sue the officials for
MANDAMUS.
 Why? Because the sheriff cannot implement the writ of execution against the
government. This is because the sheriff cannot levy or attach public funds. But it
is a ministerial duty of a public official to obey a final judgment thus mandamus
will lie. Otherwise the complainant will be stuck with an empty judgment. So
what is the remedy? Mandamus.
 Municipality of Makati vs CA, et.al. GR Nos. 89889-99, October 1, 1990
  This is because the Sheriff cannot attach or levy on execution the public funds. It
is ministerial duty of the public officials to obey a final judgment, thus,
mandamus will lie, otherwise, the claimant will be stuck with an empty judgment
 Mandamus does not lie to compel the performance of a contractual duty.
 If you enter into a contract and the other party refuses to obey his part of the
contract, the remedy is not mandamus. You can file an ordinary civil action
for specific performance. Mandamus will only lie against tribunal or an officer
or a corporation or a body or a person.
 A petition for mandamus is premature if there are administrative remedies
available to the petitioner except when the case involves only legal question.
 Court has the power to award damages in a Mandamus suit.

Discretionary acts not compellable by mandamus

 It is settled that mandamus is employed to compel the performance,

when refused, of a ministerial duty, but not to compel the performance
of a discretionary duty.
 However, even when the act sought to be performed involves the
exercise of discretion, the respondent may be directed to act by
mandamus, but this is not to direct the exercise of judgment in a
particular manner.

NOTE: Generally, mandamus will not lie to enforce purely private contract rights, and
will not lie against an individual unless some obligation in the nature of a public or
quasi-public duty is imposed. To preserve its prerogative character, mandamus is not
used for the redress of private wrongs, but only in matters relating to the public (Uy
Kiao Eng v. Nixon Lee, G.R. No. 176831, January 15, 2010).

Q: Albert was appointed Election Registrar of the Municipality of Sevilla supposedly to

replace the respondent Election Registrar Richard who was transferred to another
municipality without his consent and who refused to accept his aforesaid transfer, as in
fact he continued to occupy his aforesaid position and exercise his functions thereto.
Albert then filed a petition for mandamus against Richard but the trial court dismissed
Albert's petition contending that quo warranto is the proper remedy. Is the court correct
in its ruling? Why? (2001 Bar)

A: YES. Mandamus will not lie. This remedy applies only where petitioner’s right is
founded clearly in law, not when it is doubtful. Richard was transferred without his
consent. It is tantamount to removal without cause and is contrary to fundamental
guarantee on non-removal except for cause. Considering that Richard continued to
occupy the position and exercise his functions therein, the proper remedy is quo
warranto and not mandamus.

Exhaustion of administrative remedies

GR: Mandamus will not issue when administrative remedies are still
available.

XPNs:

1. If the party is in estoppel (Vda. de Tan v. Veterans Backpay Commission,

G.R. No. L-12944, March 30, 1959); or

2. Only questions of law are raised (Madrigal v. Lecaroz, G.R. No. L-46218,
October 23, 1990).

Discretionary duty

GR: Mandamus is only applicable to a ministerial duty. However, mandamus

can be used to the extent of requiring the performance of a discretionary
duty to act but not to require performance of such duty in a particular
manner.

XPNs:

1. There has been gross abuse of discretion;

2. Manifest injustice; or

3. Palpable excess of authority (Kant Wong v. PCGG, G.R. No. 79484,

December 7, 1987)

Sample Hypothetical Question/s :

Q: Roldan was charged with illegal possession of shabu before the RTC.
Although bail was allowable under his indictment, he could not afford to post
bail, and so he remained in detention at the City Jail. For various reasons, the
arraignment of Roldan was postponed 19 times over a period of 2 years.
Twice during that period, Roldan’s counsel filed motions to dismiss, invoking
the right of the accused to a speedy trial. Both motions were denied by the
RTC. Can Roldan file a petition for mandamus? Reason briefly. (2007 Bar)

A: YES. Roldan can file a petition for mandamus, invoking the right to a
speedy trial. Mandamus is a proper recourse for citizens who seek to enforce
a public right and to compel the performance of a public duty, most
especially when the public right involved is mandated by the Constitution.
Besides, it has long been established in this jurisdiction that the writ of
mandamus is available to the accused to compel a dismissal of the case.
Here, the arraignment of Roldan was postponed 19 times over a period of 2
years. Hence, the petition for mandamus is proper in this case (Symaco v.
Aquino, G.R. No. L-14535, January 30, 1960).

Awards of damages in Mandamus Proceedings

The CA, in resolving a petition for mandamus, is authorized to award civil
damages in the same petition (Vital-Gozon v. CA, G.R. No. 101428, August 3,
1992).

Q: Can a mayor be compelled by mandamus to issue a business permit?

A: NO. A mayor cannot be compelled by mandamus to issue a business permit

since the exercise of the same is delegated police power hence, discretionary
in nature. Section 444(b)(3)(iv) of the Local Government Code of 1991, is a
manifestation of the delegated police power of a municipal corporation.
Necessarily, the exercise thereof cannot be deemed ministerial. As to the
question of whether the power is validly exercised, the matter is within the
province of a writ of certiorari, but certainly, not of mandamus (Rimando v.
Naguilian Emission Testing Center, Inc., G.R. No. 198860, July 23, 2012).

Q: Fotokina filed with the RTC a petition for mandamus to compel the COMELEC to
implement a contract it had with the former regarding the automation of the elections.
The Office of the Solicitor General (OSG), representing COMELEC Chairman Go,
opposed the petition on the ground that mandamus does not lie to enforce contractual
obligations. During the proceedings, the majority Commissioners filed a manifestation
that Chairman Go was not authorized by the COMELEC En Banc to oppose the petition.

1. May the OSG represent Chairman Go before the RTC notwithstanding that his
position is contrary to that of the majority?

2. Is a petition for mandamus an appropriate remedy to enforce contractual

obligations? (2006 Bar)

Answers:

1. YES. The OSG can represent Chairman Go before the RTC. The OSG is an
independent office. Its hands are not shackled to the cause of its client agency. In
the discharge of its tasks, the primordial concern of the OSG is to see to it that the
best interest of the government is upheld.

2. NO. The COMELEC 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 (COMELEC v. Quijano-Padilla, G.R. No. 151992,
September 18, 2002).

Writ of Kalikasan vs. Writ of Continuing Mandamus

As to the subject matter:

 The WRIT OF KALIKASAN is available against an unlawful act or omission of a public

official or employee, or private individual or entity, involving environmental damage
of such magnitude as to prejudice the life, health or property of inhabitants in two or
more cities or provinces.
  The WRIT OF CONTINUING MANDAMUS is directed against [a] the unlawful neglect in
the performance of an act specifically enjoined by law in connection with the
enforcement/ violation of an envt’l rule or [b] the unlawfully exclusion of another
from the use or enjoyment of such right and in both instances, there is no other plain,
speedy and adequate remedy in the ordinary course of law.

As to who may file:

 The following can file a petition for WRIT OF KALIKASAN: [1] natural and juridical
persons; [2] entities authorized by law; and public organizations, non-government
organizations and public interest groups on behalf of persons whose right to a
balanced and healthful ecology is violated or threatened to be violated.
 Only persons personally aggrieved by the unlawful act or omission may ask from a
WRIT OF CONTINUING MANDAMUS.

As to who the respondent is:

 The respondent in a petition for WRIT OF KALIKASAN may be public or private

individual or entity.
 In a petition for WRIT OF CONTINUING MANDAMUS, the respondent may be the
Government or its officers.

As to payment of docket fees:

 Both are exempt from payment of docket fees.

As to venue:

 A petition for WRIT OF KALIKASAN may be filed with the Supreme Court or the Court
of Appeals.
 A petition for WRIT OF CONTINUING MANDAMUS may be filed with the Regional Trial
Court exercising territorial jurisdiction, or the Court of Appeals, or the Supreme Court.
As to use of discovery measures:

 The rule on WRIT OF KALIKASAN mentions ocular inspection and production or

inspection order.
 The rule on CONTINUING MANDAMUS mentions no discovery measures.

As to award of damages:

 Award of damages is allowed under the rule on CONTINUING MANDAMUS.

When will the court acquire jurisdiction over respondents?

-It is settled that jurisdiction over a defendant in a civil case is acquired either through service
of summons or through voluntary appearance in court and submission to its authority.

Mandamus vs. Injunction

Mandamus Injunction

Remedial; To Preventive; To
perform positive prevent an act to
legal duty. It is a maintain status
special civil quo between
action parties. It is an
ordinary civil
action

To set in motion To restrain motion

and to compel or to enforce
action (active); inaction
Directed against (conservative);
a tribunal, directed against a
corporation litigant
board, or officer

Motion to Additional ground

dismiss – Rules for MTD – Sec. 6,
16 and 17 Rule 58

Remedy of Public respondent if no temporary restraining order or writ of

preliminary injunction was issued by the court hearing the petition for
certiorari, prohibition or mandamus

The public respondent shall proceed with the principal case within 10 days
from the filing of a petition for certiorari with a higher court or tribunal,
absent a temporary restraining order or a preliminary injunction, or upon its
expiration. Failure of the public respondent to proceed with the principal
case may be a ground for an administrative charge (Sec. 7, Rule 65, as
amended by A.M. No. 07-7-12-SC).

INJUNCTIVE RELIEF

When proper

The court in which the petition is filed may issue orders expediting the proceedings, and
it may also grant a TRO or a writ of preliminary injunction for the preservation of the
rights of the parties pending such proceedings (Sec. 7, Rule 65). The public respondent
shall proceed with the principal case within 10 days from the filing of a petition for
certiorari with a higher court or tribunal, absent a TRO or a Writ of Preliminary
Injunction, or upon its expiration (AM 07-7-12-SC, December 12, 2007).

Q: In an action for specific performance in the MTC, defendant Sarah filed a motion to
dismiss the action based on lack of jurisdiction over the subject matter. Sarah’s motion
to dismiss was denied. Sarah filed a petition for certiorari with the RTC. Vince then filed
with the MTC a motion to declare Sarah in default. The motion was opposed by Sarah
on the ground that his petition for certiorari was still pending. Resolve the motion to
declare the defendant in default. (2003 Bar)

A: The court can declare Sarah in default because she did not obtain a writ of
preliminary injunction or a temporary restraining order from the RTC prohibiting the
judge from proceeding in the case during the pendency of the petition for certiorari
(Diaz v. Diaz, G.R. No. 135885, April 28, 2000).

EXCEPTIONS TO FILING OF MOTION FOR RECONSIDERATION BEFORE

FILING PETITION

Filing of Motion Reconsideration

GR: Petition for certiorari, mandamus and prohibition will not be entertained
unless the public respondent has been given first the opportunity through a
motion for reconsideration to correct the error being imputed to him.

NOTE: It is intended to afford the public respondent an opportunity to

correct any actual or fancied error attributed to it by way of re-examination
of the legal and factual aspects of the case (Chris Garment Corporation v.
Sto. Tomas, G.R. No. 167426, January 12, 2009).

XPNs: A prior motion for reconsideration is not necessary to entertain a

petition for certiorari where:

1. the order is a patent nullity, as where the court a quo has no

jurisdiction;

2. 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;

3. 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;

4. the subject matter of the action is perishable;

5. under the circumstances, a motion for reconsideration would be useless;

 6. the petitioner was deprived of due process and there is extreme urgency
for relief;

7. in a criminal case, relief from an order of arrest is urgent and the

granting of such relief by the trial court is improbable;

8. the proceedings in the lower court are a nullity for lack of due process;

9. the proceedings were ex parte or in which the petitioner had no

opportunity to object; and

10. the issue raised is one purely of law or where public interest is involved
(Regalado, 2010).

RELIEFS PETITIONER IS ENTITLED TO

1. Annulment;

2. Modification of the judgment, order, or resolution or proceeding subject

of the petition;

3. It may also include such other Incidental reliefs as law and justice may
require (Sec. 1, Rule 65);

4. The court may also award damages in its judgment and the execution of
the award for damages or costs shall follow the procedure in Sec. 1 of
Rule 39 (Sec. 9, Rule 65).

ACTIONS/OMISSIONS OF MTC/RTC IN ELECTION CASES

In election cases involving an act or an omission of a municipal or a regional

trial court, the petition shall be filed exclusively with the Commission on
Elections, in aid of its appellate jurisdiction (Sec.4, Rule 65, as amended by
AM No. 07-7-12-SC, December 12, 2007).

WHEN AND WHERE TO FILE PETITION?

Where to file?

1. Supreme Court- Subject to the doctrine of hierarchy of courts and only

when compelling reasons exist for not filing the same with the lower
courts.

2. Court of Appeals only- If the petition involves an act or an omission of a

quasi-judicial agency, unless otherwise provided by law or rules.

3. Court of Appeals and Sandiganbayan- Whether or not in aid of appellate

jurisdiction.
 4. Regional Trial Court- If the petition relates to an act or an omission of an
MTC, corporation, board, officer or person.

5. COMELEC- In election cases involving an act or an omission of an MTC or

RTC.

NOTE: If the petition relates to an act or an omission of a municipal trial court or of a

corporation, a board, an officer or a person, it shall be filed with the RTC exercising
jurisdiction over the territorial area as defined by the Supreme Court. It may also be
filed with the Court of Appeals or with the Sandiganbayan, whether or not the same is
in aid of the courts appellate jurisdiction. If the petition involves an act or an omission
of a quasi- judicial agency, unless otherwise provided by law or these rules, the petition
shall be filed with and be cognizable only by the Court of Appeals (Sec. 4, Rule 65 as
amended by A.M. No. 07-7-12-SC).

By virtue of the amendment introduced by A.M. No. 07-7- 12-SC to Sec. 4, Rule 65, a
petition for certiorari, prohibition or mandamus may not be filed directly with the SC
anymore.

When to file?

GR : The petition shall be filed not later than 60 days from notice of the
judgment, order or resolution. In case a motion for reconsideration or new
trial is timely filed, whether such motion is required or not, the petition shall
be filed not later than 60 days counted from the notice of the denial of the
motion (Sec. 4, Rule 65, as amended by A.M. No. 07-7-12-SC).

As a rule, a petition for certiorari must be filed strictly within 60 days from
notice of judgment or from order denying a motion for reconsideration. This
is in accordance with the amendment introduced by A.M. No. 07-7-12-C
where no provision for the filing of a motion for extension to file a petition
for certiorari exists, unlike in the original section 4 of Rule 65 which allowed
the filing of such motion but only for compelling reasons and in no case
exceeding 15 days (The Namaris Philippines, Inc. v. Court of Appeals, G.R.
No. 191215, February 3, 2014, Del Castillo, J.).

NOTE: Under Sec. 4, Rule 65 of the Rules of Court and as applied in Laguna Metts
Corporation, the general rule is that a petition for certiorari must be filed within 60 days
from notice of the judgment, order or resolution sought to be assailed. Under
exceptional circumstances, however, and subject to the sound discretion of the court,
said period may be extended pursuant to Domdom, Labao, abd Mid-Islands Power
cases. The exceptions are:

1. To serve substantial justice;

2. Safeguard strong public interest (Republic v. St. Vincent de Paul

Colleges, Inc., G.R. No. 192908, August 22, 2012)
Effects of filing a petition for certiorari, prohibition or mandamus to the
principal case

It does not:

1. Interrupt the course of the principal action;

2. Affect the running of the reglementary periods involved in the

proceedings (Fuentes v. Sandiganbayan, G.R. No. 164664, July 20, 2006);

3. Stay the execution of judgment, unless a TRO or writ of preliminary

injunction has been issued.

Acquisition of jurisdiction over the person of the respondent in original

actions for certiorari, prohibition and mandamus

1. If the action is filed with the RTC – Follow the rules on ordinary civil
actions. Jurisdiction is acquired by the service of summons to the
respondent or by his voluntary appearance in court.

2. If the action is filed with the CA or the SC – The court acquires

jurisdiction over the respondents with the service on them of its orders
indicating its initial action on the petition or by voluntary submission to
such jurisdiction.

EFFECTS OF FILING OF AN UNMERITORIOUS PETITION

Effect of a Petition for Mandamus which is patently without merit, prosecuted manifestly
for delay, or raises questions which are too unsubstantial to require consideration

The Court may dismiss the petition. In such event, the court may award in favor of
the respondent treble costs solidarily against the petitioner and counsel, in addition
to subjecting counsel to administrative sanctions under Rules 139 and 139-B.

The Court may impose motu proprio, based on res ipsa loquitur, other disciplinary
sanctions or measures on erring lawyers for patently dilatory and unmeritorious
petitions for certiorari (Sec. 8, Rule 65, as amended by A.M. No. 07-7-12-SC).

Q: James mortgaged his property to Peter. James failed to pay his obligation and Peter
filed an action for foreclosure of mortgage. After trial, the court issued an order
granting Peter's prayer for foreclosure of mortgage and ordering James to pay Peter the
full amount of the mortgage debt not later than 120 days from date of receipt of the
order. James received the order on August 10, 1999. No other proceeding took place
thereafter. On December 20, 1999, James tendered the full amount adjudged by the
court to Peter but the latter refused to accept it on the ground that the amount was
tendered beyond the 120-day period granted by the court. James filed a motion in the
same court praying that Peter be directed to receive the amount tendered by him on
the ground that the order does not comply with the provisions of Sec. 2, Rule 68 of the
Rules of Court which gives James 120 days from entry of judgment, and not from date
of receipt of the order. The court denied his motion on the ground that the order had
already become final and can no longer be amended to conform with Sec. 2, Rule 68.
Aggrieved, James files a petition for certiorari against the court and Peter. Will the
petition for certiorari prosper? Explain. (2000 Bar)

A: YES. The court erred in issuing the order. The court should have rendered a
judgment which is appealable. Since no appeal was taken, the judgment became final
on August 25, 1999 which is the date of the entry of judgment. Hence, James had up to
December 24, 1999 within which to pay the amount due. The court gravely abused its
discretion amounting to lack or excess of jurisdiction in denying James’ motion praying
that Peter be directed to receive the amount tendered.

PROVISIONS COMMON TO CERTIORARI, PROHIBITION AND MANDAMUS

The common provisions are: when to file an action and where to file the
action.

When to file?

60 days from notice of Judgment or Order denying the motion for

reconsideration.
Where to file?

-RTC or with the Court of Appeals or Sandiganbayan, whether or not the

same is in aid of its appellate jurisdiction.

-In the old rules, CA can only entertain in aid of its appellate jurisdiction. You
will notice SC is not included. SC is included only to question the decision of
the CA

In election cases involving an act or omission of the MTC or RTC, the petition
shall be filed exclusively with COMELEC, in aid its appellate jurisdiction.

These petitions should not be filed directly with the Supreme Court even
though they fall under the concurrent jurisdiction of the SC, CA and RTC. We
have to observe the hierarchy of courts.

Respondents

Who can be respondents?

If the act or omissions refers to that of a Judge, court, quasi-judicial agency

etc., the petitioner shall join as private respondent the person interested in
the proceeding and it is his duty to appear and defend the decision.
The judge will be the public respondent but he need not answer or appear
in the case as he is only a nominal party.
NOTE: There are two kinds of respondents in petitions certiorari, prohibition and
mandamus. We have the private respondent, public respondent. If you question the
decision of let’s say the RTC judge by way of certiorari before the CA. Who will be the
respondent? The respondent here will be the other party who benefited the decision of
the judge. You are the petitioner because you are the one who is prejudiced. The other
party is the PRIVATE respondent. And the judge is the PUBLIC respondent. But the one
who will argue is only the private respondent.

Judge as Nominal Party

The judge as public respondent is only a nominal party and he does not have to answer
the petition of certiorari not unless he is required to answer by the CA.

NOTE : So it’s really wrong for an RTC judge to also answer. Although it is the decision
of the RTC judge that is attacked by the petitioner the judge should not take it
personally. Under the rules, the judge no longer needs to answer. It is only the private
respondent that will answer. He will be the one to argue that the RTC judge did not
commit grave abuse of discretion in his order.

What will the court do?

Order to comment

If sufficient in form and substance, the trial court may require respondent to comment
within 10 days from receipt of the copy of order. Such order shall be served on the
respondents in such manner as the court may direct together with a copy of the
petition and any annexes thereto.

In petitions for certiorari before the SC and CA reply may be required.

Petition for certiorari, prohibition or mandamus questioning a decision of an inferior

court, you bring it up to RTC.

The RTC will have to examine if the petition is sufficient in form and substance. It it is
then it will require the respondent to comment within 10 days from receipt of the copy
of order. Unless a TRO or a preliminary judgment is issued, the court may continue the
proceeding within ten days from filing of the petition.

Continuance of main case

Unless a TRO or preliminary injunction is issued, the court may continue with the
proceeding within 10 days from filing of the petition.

NOTE : As you know already, in petition for certiorari and the same is true with
mandamus and prohibition, the filing of the petition does not stop the court of origin,
the respondent judge, from continuing with the proceedings before it.
The judge will give you ten days to secure the TRO or preliminary judgment from the
time you file your petition for certiorari.

Example: you question the ruling of the RTC court, let us say an interlocutory order,
you feel that it is very unfair, constitute a grave abuse of discretion so you file a petition
for certiorari in the CA. From the time you file petition for certiorari in the CA, the RTC
will suspend the proceedings for only ten days. If you are not able to obtain a TRO from
the CA within the ten days of filing, the RTC may continue hearing the case. Without it,
the case will go on.

Proceedings after comment

The court may hear the case or require the parties to file memoranda.

Action of the court

It may grant the petition or deny it if it finds it to be patently without merit, prosecuted
manifestly for delay, issues raised therein are too unsubstantial to warrant
consideration. If un-meritorious, the court may award in favor of the respondent treble
costs against petitioner and counsel.

This is one of the innovations introduced in the new rules. There is now a penalty for
bringing in unmeritorious petitions for certiorari before the higher court. It is a
punishment.

Court may impose motu proprio other disciplinary sanction on erring lawyers for
patently dilatory and unmeritorious petitions for certiorari.

Service and enforcement of order or judgment

Judgment of the court shall be served upon the court, quasi-judicial agency, tribunal,
corporation, board or officer in such manner as the court may direct. Disobedience
thereto is punishable as contempt. Execution may issue for any damages or costs
awarded.

NOTE : In the RTC, if you file a petition for certiorari, prohibition, mandamus,
questioning the decision of the municipal court. You do not have to furnish a petition to
the respondent because the RTC will have to first examine whether your petition should
be given due course or not.

But if the petition is filed in the CA or the SC, you must furnish copy to the respondent
or the other party because they will be required to answer if the court finds the petition
is sufficient in form and substance.

What is the nature of dismissal during pendency of appeal?

For MANDAMUS
-to command

-to compel performance of duties that are purely ministerial in nature

-exhaustion of administrative remedies is important before maka avail mandamus

CPM: when do you consider that jurisdiction over person of respondent acquired?

- moment the court orders to file comment

-Is Motion for Reconsideration an adequate remedy?

-Yes

Hon. Philip Aguinaldo v. Pres. Benigno Aquino (2016)

XPNs: 60-day period relaxed

“uncontrolled” – discretionary (ex. Public prosecutor)

GR: cannot be controlled by mandamus ang prosecutor

XPN: if klaro na kayo

Case: Sharp Intl. Mktg. v. CA

-discretionary and ministerial acts.

-while mandamus will not lie to control discretion the writ of mandamus may be issued
to exercise of discretion but not discretion itself. However, writ of mandamus may be
issued.

Nature of Judgment in Mandamus- special judgment

-mandamus must be unhampered.

Sample Case :

KNIGHTS OF RIZAL vs. DMCI HOMES, INC., et.al.

G.R. No. 213948 EN BANC, April 18, 2017

FACTS:

A Resolution was issued to temporarily suspend the building permit of DMCI-PDI, citing that
the Torre de Manila Condo will rise up high above the back of the national monument, to
clearly dwarf the statue of our hero, Jose Rizal, and would certainly ruin the line of sight of
the Rizal Shrine from the frontal Roxas Boulevard vantage point.

ISSUE:
Whether the Court can issue a writ of mandamus to stop the construction of DMCI-PDI’s
Torre de Manila project.

(A writ of mandamus is an order from a court to an inferior government official ordering the
government official to properly fulfill their official duties or correct an abuse of discretion.)

RULING:

No. There is no law prohibiting the construction of the Torre de Manila. The Court has
allowed or upheld actions that were not expressly prohibited by statutes when it determined
that these acts were not contrary to morals, customs, and public order, or that upholding the
same would lead to a more equitable solution to the controversy.

Since, there is no allegation or proof that the Torre de Manila project is “contrary to morals,
customs, and public order” or that it brings harm, danger, or hazard to the community. There
is no law prohibiting the construction of the Torre de Manila due to its effect on the
background “view, vista, sightline, or setting” of the Rizal Monument.