REMEDIAL LAW Provisional Remedies and Special Civil Actions Dean Jess Zachael B. Espejo, LL.M. RULE 65 CERTIORARI, PROHIBITION AND MANDAMUS CERTIORARI Section 1. Petition for certiorari. - When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require. The petition shall be accompanied by a certified true copy of the judgment, 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 third paragraph of Section 3, Rule 46. DEFINITION Certiorari is a Latin word which means “to be informed” or “to be made more certain, In common law, certiorari is defined as a writ issued by a superior court to an inferior court of record, or other tribunal or officer, exercising a judicial function, requiring the certification and return to the former of some proceeding then pending, or the record and proceedings in some cause already terminated, in cases where the procedure is not according to the course of the common law.! In its simplest signification, certiorari is a writ from a superior court to an inferior court or tribunal commanding the later to send up the record of a particular case (GARCIA versus DE JESUS, G.R. No. 97108-09, March 4, 1992). Certiorari is a manifestation of the expanded constitutional definition of the judicial power, which includes not only the duty to settle actual controversies involving rights which are legally demandable and enforceable but also to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.? In the context of such expanded definition of judicial power and the procedural utility of the writ under Philippine remedial law, certiorari may thus be defined as a writ emanating from a superior court directed against an inferior court, tribunal, or officer exercising judicial or quasi-judicial functions, in order to correct errors of jurisdiction such as when the inferior court, tribunal, or officer acted without or in * Bouvier's Law Dietionary, Volume I, Third Revision, page 442, ® Artiele VIII, Section 1 of the 1987 Constitution. Provisional Remedies and Special Civil Actions (JZE) Rule 65 Certiorari - Page 1 of 19excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction. ‘The remedy is brought against a lower court, board, or officer rendering a judgment or order and seeks the annulment or modification of the proceedings of such tribunal, board or offi and the granting of such incidental reliefs as law and justice may require (PAHILA-GARRIDO versus TORTOGO, G.R. No. 156358, August 17, 2011). CHARACTERISTICS OF CERTIORARI UNDER RULE 65 1. It is not a mode of appeal, and cannot be a substitute for appeal. It will not lie where remedies like appeal are available under the law (PERINA versus COURT OF APPEALS, G.R. No. 156409, April 20, 2015). It is a special civil action that may be resorted to only for the limited purpose of. correcting errors of jurisdiction, and not errors of judgment (PUBLIC ATTORNEY'S OFFICE versus OFFICE OF THE OMBUDSMAN, G.R. No. As a special civil action, it is governed by the rules for ordinary civil actions, subject to the specific rules prescribed in Rule 65 (Rule 1, Section 3 of the Rules of Court). Itis an original and independent action: der Rule 65 of the Rules of Court is and not a part or a continuation of the trial which resulted in the rendition of the judgment complained of (GO-YU versus YU, G.R. No. 230443, April 03, 2019). It is ari extraordinary Writ to be employed in the absence of other remedy to correct instances in which the judge against whom the remedy is sought has acted without jurisdiction, in excess of jurisdiction or clearly in grave abuse of discretion (SPOUSES GONZALES versus INTERMEDIATE APPELLATE COURT, G.R. No. L-63614 August 28, 1984). Furthermore, the use of a petition for certiorari is restricted only to trul herein the act of the lower court or quasi-judicial body is HUA versus PEOPLE, G.R. No. 195248, November 22, 2017). It is an exercise of the supervisory jurisdiction of a superior court over an inferior court, its function being limited to keeping the inferior court within the bounds of its jurisdiction (see BUGAOISAN versus OWI GROUP MANILA, G.R. No. 226208, February 07, 2018). It is a convenient mode of exercising a wholesome control over inferior tribunals (AKUT versus COURT OF APPEALS, G.R. No. L-45472, August 30, 1982). It is a limited form of review and is a remedy of last recourse (MEDINA versus LOZADA, G.R. No. 185303, August 01, 2018). It is a prerogative writ, never demandable as a matter of right and never issued except in the exeroise of judidial aisoretion, Hence, he who sccks a writ of certiorart must apply for it only in the manner and strietly in accordance with the provisions of the law and the Rules (NUQUE versus AQUINO, G.R. No. 193058, July 8, 2015). Provisional Remedies and Special Civil Actions (JZE) Rule 65 ~ Certiorari - Page 2 of 19FUNCTION OF A WRIT OF CERTIORARI Certiorari under Rule 65 is a remedy narrow in scope and inflexible in character. It is (ANGARA versus FEDMAN DEVELOPMENT CORPORATION, G.R. ., October 18, 2004). Stated differently, the function of a writ of certiorari is to keep an inferior court within the bounds of its jurisdiction or to prevent it from committing such a grave abuse of discretion amounting to excess of jurisdiction (DARAB versus LUBRICA, G.R. No. 159145. April 29, 2005). It is available only for these purposes and not to correct errors of procedure or mistakes in the judge's findings or conclusions (CENTRAL BANK OF THE PHILIPPINES versus COURT OF APPEALS, G.R. No. 41859, March 8, 1989). REQUISITES OF CERTIORARI Relief in a special civil action for certiorari is available only when the following essential requisites concur: (©) The petition must be directed against GHbSHaSEERATOTOTRGED exercising ED ov auaatfadidal faeiine or officer must have nd ‘ABRIEL versus PETRON CORPORATION, - 194575, April 11, 2018). ‘TRIBUNAL, BOARD OR OFFICER EXERCISING JUDICIAL OR QUASI-JUDICIAL FUNCTIONS, Under Section 1, the peremptory writ of certiorari is directed against a tribunal, board) (Gace exercising judicial oF quas-jadieial Tunelions, Based on jurisprudence, «judicial function is the determination of what the law is and what the legal rights of the parties are with respect to the matter in controversy. It requires the ascertainment of what laws are applicable to a dispute, the interpretation and application of those laws, and the rendering of a judgment based thereon (ZOLETA versus LAND BANK OF THE PHILIPPINES, G.R. No. 205128, August 09, 2017). ‘The function of receiving evidence and ascertaining therefrom the facts of a controversy is not ipso facto considered a judicial function. To be considered as such, of receiving evidence and arriving at factual con in a controversy PHILIPPINE. 'H COMMISSION OF 2010, G.R. Provisional Remedies and Special Civil Actions (JZE) Rule 65 ~ Certiorari - Page 3 of 19 1935, December 7, 2010).On the other hand, a "quasi-judicial function" is a term which applies to the action, discretion, and other acts of public administrative officers or bodies who are required to investigate facts, or ascertain the existence of facts, hold hearings, and draw conclusions from them, as a basis for their official action and to exercise discretion of a judicial nature. Corollary to this, a quasi-judicial agency or body is an organ of government other than a court, and other than a legislature, which affects the rights of private parties through either adjudication or rule-making. The very definition of an administrative agency includes its being vested with quasi-judicial powers (MONETARY BOARD versus PHILIPPINE VETERANS BANK, G.R. No. 189571, January 21, 2015). With specific reference to Rule 65 and based on how Section 1 is worded, Based on Section 1, the scope of the remedy of certiorari seems limited to annulling or modifying the proceedings of a tribunal, board or officer only when they exercis¢ ind GRID oscovcr i: nas boon veld that, with reepect t the remedy of cortiorar is ecessaily broader in scope and reach the may be issued to correct errors of jurisdiction committed not only by a tribunal, corporation, board or officer exercising (ARAULLO versus AQUINO III, 737 Phil. 457, July 1, 2014). SPARK versus QUEZON CITY G.R. No, 225442, August 8, 2017 FACTS: — Following the campaign of President Rodrigo Roa Duterte to implement a nationwide curfew for minors, several local governments in Metro Manila started to strictly implement their curfew ordinances on minors through police operations which were publiely known as part of "Oplan Rody. ‘The Samahan ng mga Progresibong Kabataan (SPARK) — an association of young adults and minors that aims to forward a free and just society, in particular the protection of the rights and welfare of the youth and minors — filed a petition for certiorari and prohibition, arguing that the Curfew Ordinances are unconstitutional because they: (a) result in arbitrary and discriminatory enforcement, and thus, fall under the void for vagueness doctrine; (b) suffer from overbreadth by proscribing or impairing legitimate activities of minors during curfew hours; (©) deprive minors of the right to liberty and the right to travel without substantive due process; and (d) deprive parents of their natural and primary right in rearing the youth without substantive due process. Respondents seek the dismissal of the petition, questioning the propriety of certiorari and prohibition under Rule 65 of the Rules of Court to assail the constitutionality of the Curfew Ordinances (ordinances being legislative acts Provisional Remedies and Special Civil Actions (JZE) Rule 65 ~ Certiorari - Page 4 of 19and therefore not judicial or quasi-judicial functions) and petitioners’ direct resort to the Court, contrary to the hierarchy of courts doctrine. ISSUE 1: Whether certiorari and prohibition under Rule the constitutionality of the Curfew Ordinances. RULING: YES. Under the 1987 Constitution, judicial power includes the duty of the courts of justice not only "to settle actual controversies involving rights which are legally demandable and enforceable," but also "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.” InAraullo versus Aquino IIT, it was held that petitions for certiorari and prohibition filed before the Supreme Court "are the remedies by which the grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government may be determined under the Constitution.” It was In Association of Medical Clinics for Overseas Workers, Inc. versus GCC Approved Medical Centers Association, Inc., it was expounded that meanwhile that no specific procedural rule has been promulgated to enforce the expanded constitutional definition of judicial power and because of the commonality of ‘grave abuse of discretion' as a ground for review under Rule 65 and the courts’ expanded jurisdiction, the Supreme Court - based on its power to relax its rules - allowed Rule 65 to be used as the medium for petitions invokin, rave abuse of discretion when an act i light of the foregoing, petitioners the_remedies although these governmental action: ISSUE 2: Whether the petitioners’ direct resort to the Supreme Court was proper. sOFiginall juMISALCLIOM over petitions for COPtiORar) /hile this jurisdiction is shared with the CA and the RTC, a direct invocation of this Court's jurisdiction is allowed when there RULING: YES. Th Provisional Remedies and Special Civil Actions (JZE) Rule 65 ~ Certiorari - Page 5 of 19ely ‘SC is tasked to resolve the issue of constitutionality of a law or regulation at th itis ERRORS OF JURISDICTION Errors of jurisdiction can take several forms. First, a court can act without jurisdiction which means that it did not have the legal power to determine the case, in the first place. ‘Thus, if a court renders judgment in a case jurisdiction over which is granted by law, Batas Pambansa Blg. 129 (BP 129), for example, to some other court or tribunal, the court acts without jurisdiction. Second, a court can act in excess of jurisdiction which means that, while it might have had jurisdiction over the case as provided by law, it eventually overstepped its authority. Thus, while a Metropolitan Trial Court has jurisdiction over a claim for sum of money which does not exceed P400,000.00, it cannot take cognizance of a counterclaim which exceeds such amount or award a monetary judgment which exceeds its jurisdictional ceiling under BP 129. Otherwise, it can be deemed to have acted in in excess of its jurisdiction. Third, an act of a court or tribunal can only be considered as with grave abuse of discretion when such act is done in a "capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction." The abuse of discretion must be so patent and gross as to amount to an "evasion of a positive duty or to a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotie manner by reason of passion and hostility." (MIRANDA versus SANDIGANBAYAN and THE OMBUDSMAN, G.R. No. 144760-61, August 2, 2017). ERRORS OF JURISDICTION DISTINGUISHED PHILIPPINE NATIONAL BANK versus SPOUSES PEREZ G.R. No. 187640, June 15, 2011 Excess of jurisdiction as distinguished from absence of jurisdiction means that an act, though within the general power of a tribunal, board or officer, is not authorized and invalid with respect to the particular proceeding, because the conditions which alone authorize the exercise of the general power in respect of it are wanting. Without jurisdiction means lack or want of legal power, right or authority to hear and determine a cause or causes, considered either in general or with reference to a particular matter. It means lack of power to exercise authority. Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction or, in other words GRAVE ABUSE OF DISCRETION Provisional Remedies and Special Civil Actions (JZE) Rule 65 ~ Certiorari - Page 6 of 19Jurisprudence defines grave abuse of discretion as the “capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction.” Mere abuse of discretion is not enough; it must be grave. Grave abuse of discretion has likewise been defined as an aet done contrary to the Constitution, the law or jurisprudence. (ARNADO versus COMELEC, G.R. No. 210164, August 18, 2015). For abuse of discretion to be grave, the judicial or qua judicial power was exercised in an arbitrary or despotic manner by reason of passion or personal hostility or the respondent judge, tribunal or board evaded a positive duty, or virtually refused to perform the duty enjoined or to act in contemplation of law, such as when such judge, tribunal or board exercising judicial or quasi-judicial powers acted in a capricious or whimsical manner as to be equivalent to lack of jurisdiction (ASAYAS versus SEA POWER SHIPPING ENTERPRISES, INC., G.R. No. 201792, January 24, 2018). ‘There is grave abuse of discretion when there is an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law or to act in contemplation of law as when the judgment rendered is not based on law and evidence but on caprice, whim and despotism (RAMISCAL, JR. versus COMMISSION ON AUDIT, G.R. No. 213716, October 10, 2017). ERRORS OF JURISDICTION VERSUS ERRORS OF JUDGMENT. Any error committed in the evaluation of evidence is merely an error of judgment that cannot be remedied by certiorari. An error of judgment is one in which the court may commit, in the exercise of its jurisdiction, An error of jurisdiction is one where the act complained of was issued by the court without or in excess of jurisdiction, or with grave abuse of discretion which is tantamount to lack or in excess of jurisdiction and which error is correctible only by the extraordinary writ of certiorari. Certiorari will not be issued to cure errors by the trial court in its appreciation of the evidence of the parties, and its conclusions anchored on the said findings and its conclusions of law (PEOPLE versus SANDIGANBAYAN, G.R. Nos. 228494-96, March 21, 2018). As long as the court aets within its jurisdiction, any alleged errors committed in the exercise of its discretion will amount to nothing more than mere errors of judgment, correctible by an appeal or a petition for review under Rule 43 of the Rules of Court (STEEL CORPORATION OF THE PHILIPPINES versus MAPFRE INSULAR INSURANCE CORPORATION, G.R. No. 201199, October 16, 2013). Consequently, an error of judgment that the court may commit in the exercise of its jurisdiction is not correctible through the original civil action of certiorari, Even if the findings of the court are incorrect, as long as it has jurisdiction over the case, such correction is normally beyond the province of certiorari (DAVAO ACF BUS LINES, INC. versus ANG, G.R. No. 218516, March 27, 2019). REPUBLIC vs. YANG G.R. NO. 165332, October 2, 2009 Only errors of jurisdiction, not errors of judgment, may be entertained in a petition for certiorari. Certiorari will not lie where an appeal may be taken or is lost through petitioner's own doing and questions of fact are not decided by the Supreme Court. Provisional Remedies and Special Civil Actions (JZE) Rule 65 ~ Certiorari - Page 7 of 19In this case, an appeal was not only available, but also mandated by Sections 11 and 12 of Commonwealth Act No. 473 (1939), or the Revised Naturalization Law, as amended. Notably, in Keswani v. Republic, we declared that the remedy from a decision by the trial court admitting an individual as a Filipino citizen is through an appeal to the Court of Appeals, CERTIORARI AND APPEAL DISTINGUISHED ‘The following table presents the distinctions between certiorari and appeal, based on the discussion made by the Supreme Court in the case of LEYNES versus FORMER TENTH DIVISION OF THE COURT OF APPEALS, G.R. No. 154462, January 19, 2011: | CERTIORART APPEAL As to the purpose Certiorari is a remedy ‘Appeal is the remedy where designed for the correction | the error is not one of of errors of jurisdiction, not _ | jurisdiction, but of an error of errors of judgment. law or fact - a mistake of judgment. As to jurisdiction Over a certiorari, the higher | Over an appeal, the CA exercised court uses its original exercises its appellate jurisdiction in accordance _| jurisdiction and power of with its power of control and | rei supervision over the proceedings of lower courts As fo nature of the ‘A petition for certiorari is an | An appeal is a continuation remedy original and independent _| of the original suit. action that was not part of the trial that had resulted in the rendition of the judgment or order complained of. As to parties ‘The parties to a petition The parties to an appeal are for certiorari are the the original parties to the aggrieved party (who action. thereby becomes the petitioner) against the lower court or quasi-judicial agency, and the prevailing parties (the publie and the private respondents, respectively), ‘As to the subject matter | Since the issue is Only judgments or final jurisdiction, an original orders and those that the action for certiorari may be | Rules of Court so declare are directed against an appealable. interlocutory order of the lower court prior to an Provisional Remedies and Special Civil Actions (JZE) Rule 65 Certiorari - Page 8 of 19‘appeal from the judgment; or where there is no appeal or any plain, speedy or adequate remed ‘As to the period for filing ‘A petition for certiorari should be filed not later than sixty days from the notice of judgment, order, or resolution. Ifa motion for new trial or motion for reconsideration was timely filed, the period shall be counted from the denial of the motion. The period depends on the mode of appeal. Ordinary appeals should be filed within fifteen days from the notice of judgment or final order appealed from. Where a record on appeal is required, the appellant must file a notice of appeal and a record on appeal within thirty days from the said notice of judgment or final order. A petition for review should be filed and served within fifteen days from the notice of denial of the decision, or of the petitioner's timely filed motion for new trial or motion for reconsideration. In an appeal by certiorari, the petition should be filed also within fifteen days from the notice of judgment or final order, or of the denial of the petitioner's motion for new trial or motion for reconsideration. ‘As to the need for a prior motion for reconsideration ‘A motion for reconsideration is generally required prior to the filing of a petition for certiorari, in order to afford the tribunal an opportunity to correct the alleged errors. ‘This motion isa plain and adequate remedy expressly available under the law. ‘Such motion for reconsideration is not required before appealing a judgment or final order. SIGNIFICANCE OF THE DISTINCTIONS Appeal and certiorari under Rule 65 are two different remedies, which are generally not interchangeable. A party cannot substitute the special civil action of certiorari under Rule 65 of the Rules of Court for the remedy of appeal. This is so because the existence and Provisional Remedies and Special Civil Actions (JZE) Rule 65 ~ Certiorari - Page 9 of 19availability of the right of appeal are antithetical to the availability of the special civil action of certiorari. The remedies of appeal (including petitions for review) and certiorari are mutually exclusive, not alternative or successive (PUNONGBAYAN-VISITACION versus PEOPLE OF THE PHILIPPINES, G.R. No. 194214, Jan. 10, 2018). A petition for certiorari cannot be used as a substitute for a lost or lapsed appeal especially if one’s own negligence or error in one’s choice of remedy occasioned such loss or lapse.” The petition in such situation may be dismissed outright (TAAR versus LAWAN, G.R. No. 190922, Oct. 11, 2017). A special civil action under Rule 65 of the Rules of Court will not be a cure for failure to timely file an appeal. Rule 65 is an independent. action that cannot be availed of as a substitute for the lost remedy of an ordinary appeal, especially if such loss or lapse was occasioned by one’s own neglect or error in the choice of remedies. It must be noted, however, that the general rule, that an appeal and a certiorari are not interchangeable, admits of exceptions: (1) If the petition for certiorari was filed within the reglementary period within which to file a petition for review on certiorari; (2) When errors of judgment are averred; and (8) When there is sufficient reason to justify the relaxation of rules (GSIS BOARD OF TRUSTEES versus COURT OF APPEALS, G.R. No. 230953, June 20, 2018). In one case, the Supreme Court declared that a petition for certiorari under Rule 65 may be allowed, despite effectively being filed as a substitute for an appeal, if the petition for certiorari was filed within the reglementary period within which to file an appeal and the broader interests of justice justifies the relaxation of the rules (PRIVATIZATION AND MANAGEMENT OFFICE versus QUESADA, G.R. No. 224507, Sept. 20, 2017). Also, where the trial court judge capriciously and whimsically exercised his judgment, the rule that certiorari will not lie as a substitute for appeal is not applicable (MARTINEZ versus BUEN, G.R. No. 187342, April 05, 2017) CERTIORARI UNDER RULE 65 AND CERTIORARI UNDER RULE 45 DISTINGUISHED ‘The following table presents the distinctions between certiorari under Rule 45 and certiorari under Rule 65: ‘Astothename ofthe |A Rule 45 petition is remedy denominated as a petition for review on certiorari or appeal by certiorari. A Rule 65 petition is denominated as a special civil action for certiorari or simply as a petition for certiorari ‘As to nature Certiorari under Rule 45 is a | Certiorari under Rule 63 is a mode of appeal [Sec. 2(), | special civil action that is an Rule 41, Rules of Court]. original action and not a mode of appeal. Provisional Remedies and Special Civil Actions (JZE) Rule 65 — Certiorari - Page 10 of 19As to continuity of the | Certiorari under Rule 45 is | Certiorari under Rule 65 is appellate process but a continuation of the | not a part of the appellate- appellate process over the | process but an independent original case. action, ‘As to subject matter Because it is a mode of | Certiorari under Rule 65 may appeal, certiorari under Rule | be directed against an 45 seeks to review final | interlocutory order or matters judgments or final orders | from where no appeal may be taken. ‘As to issues or questions | Cortiorari_ under Rule 45| Certiorari under Rule 65 raised raises questions of law. raises questions of jurisdiction because a tribunal, board or officer exercising judicial or quasi- judicial functions has acted without jurisdiction or in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction. ‘sto period for filing | An appeal by certiorari | A petition for certiorari under under Rule 45 shall be filed | Rule 65 shall be filed not later within fifteen (15) days from | than sixty (60) days from notice of judgment or final | notice of judgment, order or order appealed from. resolution sought to be assailed and in case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the sixty (60) day period shall be counted from notice of denial of said motion. As to the need for a Certiorari under Rule 45| Certiorari under Rule 65 prior motion for does not require a prior | requires as a general rule, a reconsideration motion for reconsideration. | prior motion for reconsideration. ‘As to whether filing has | Cortiorari_ under Rule 45 | Certiorari under Rule 65 does a staying effect stays the judgment appealed | not stay the judgment or from. order subject of the petition unless enjoined or restrained ‘As to the parties In certiorari under Rule 45, [In certiorari under Rule 65, the parties are the original | the tribunal, board, officer parties with the appealing | exercising judicial or quasi- party as the petitioner and | judicial functions. —_is the adverse party as | impleaded as respondent. The respondent without | parties are the aggrieved impleading the lower court | party against the lower court or its judge. In an appeal by | or quasi-judicial agency and Provisional Remedies and Special Civil Actions (JZE) Rule 65 —Certiorari - Page 11 of 19certiorari under Rule 45, the | the prevailing parties, who petitioner and respondent | thereby respectively become are also the original parties |the petitioner and to the action in the lower | respondents. court, As to which court has | Certiorari as a mode of | Certiorari as a special civil jurisdiction appeal is filed with the| action is filed with the Supreme Court (Sec. 1, Rule | Regional Trial Court (Sec. 21, 45, Rules of Court). BP 129 as amended), the Court of Appeals (Sec. 9, BP 129 as amended) or with the Supreme Court [See. 5(1), Art. VIII, Constitution of the Philippines] SIGNIFICANCE OF THE DISTINCTIONS InARTISTICA CERAMICA, INC. versus CIUDAD DEL CARMEN HOMEOWNER'S ASSOCIATION, INC.,G.R. Nos. 167583-84, June 16, 2010, the Supreme Court explained that one of the requisites of certiorari is that there be no available appeal or any plain, speedy and adequate remedy. Where an appeal is available, certiorari will not prosper, even if the ground therefor is grave abuse of discretion. It is also well settled that a party cannot file a petition both under Rules 45 and 65 of the Rules of Court because said procedural rules pertain to different remedies and have distinet applications. The remedy of appeal under Rule 45 and the original action for certiorari under Rule 65 are mutually exclusive and not alternative or cumulative. ‘Thus, when petitioner adopts an improper remedy, petition may be dismissed outright. However, the Court may set aside technicality for justifiable reasons as when the petition before it is clearly meritorious and filed on time both under Rules 45 and 65 (THE INTERNATIONAL CORPORATE BANK, INC versus COURT OF APPEALS, G.R. No. 129910, September 5, 2006). In accordance with the liberal spirit which pervades the Rules of Court and in the interest of justice, the Court may treat the petition as having been filed under Rule 45 (ASISTIO versus PEOPLE, G.R. No. 200465, April 20, 2015). SONIC STEEL INDUSTRIES versus CA. G.R. No. 165976, July 29, 2010 Certiorari under Rule 65 is proper only if there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law. For a writ of certiorari to issue, a petitioner must not only prove that the tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of jurisdiction but must also show that he has no plain, speedy and adequate remedy in the ordinary course of law. On September 29, 2004, petitioner received the assailed September 17, 2004 Resolution denying reconsideration of the dismissal of its petition with the CA. It could have filed an appeal by certiorari under Rule 45 of the Rules of Court, but it did not. Instead it allowed almost two months to pass and then filed a petition for certiorari under Rule 65. Certiorari is Provisional Remedies and Special Civil Actions (JZE) Rule 65 —Certiorari - Page 12 of 19not a substitute for a lost appeal. The Rules preclude recourse to the special civil action of certiorari if appeal, by way of a petition for review, is available as the remedies of appeal and certiorari are mutually exclusive and not alternative or successive. THERE IS NO APPEAL, OR ANY PLAIN, SPEEDY, AND ADEQUATE REMEDY IN THE ORDINARY COURSE OF LAW ‘The writ of certiorari is not issued to correct every error that may have been committed by lower courts and tribunals. It is a remedy specifically to keep lower courts and tribunals within the bounds of their jurisdiction. In our judicial system, the writ is issued to prevent lower courts and tribunals from committing grave abuse of discretion in excess of their jurisdiction. Further, the writ requires that there is no appeal or other plain, speedy, and adequate remedy available to correct the error. Thus, certiorari may not be issued if the error can be the subject of an ordinary appeal (CRUZ versus PEOPLE OF THE PHILIPPINES, G.R. No. 224974, July 3, 2017). In other words, where the appropriate appellate remedies are available, a writ of certiorari is not issued. Of particular note is Section 1 of Rule 41 of the Rules of Court, as amended by A.M. No. 07-7-12-SC, December 4, 2007, which provides the instances when no appeal shall be allowed. The provision states that: SECTION 1. Subject of appeal. ~ An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable. No appeal may be taken from: a. An order denying a petition for relief or any similar motion seeking relief from Judgment; ‘An interlocutory order; An order disallowing or dismissing an appeal; d. An order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud, mistake or duress, or any other ground vitiating consent; e. An order of execution; f. A judgment or final order for or against one or more of several parties or in separate claims, counterclaims, cross-claims and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom; and g. An order dismissing an action without prejudice. In any of the foregoing circumstances, the aggrieved party may file an appropriate special civil action as provided in Rule 65. ‘Thus, in any of the foregoing instances from which no appeal may be taken, the aggrieved party may file the appropriate special civil action under Rule 65. These instances presuppose that the tribunal, board, or officer must have acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or in excess of jurisdiction, if the appropriate remedy availed of is certiorari or prohibition, for that matter. Provisional Remedies and Special Civil Actions (JZE) Rule 65 —Certiorari - Page 13 of 19Of note is the fact that A.M. No. 07-7-12-SC, December 4, 2007 excluded “(a)n order denying a motion for new trial or reconsideration” from the enumeration of orders from which no appeal may be taken. Thus, when such motions are denied, the party may still appeal from the judgment, not the order of denial, within a fresh period to appeal. As the aggrieved party may still file an appeal, he cannot ordinarily resort to certiorari under Rule 65. INTERLOCUTORY ORDERS, An interlocutory order is one which does not terminate or finally dismiss or finally dispose of the case, but leaves something to be done by the court before the case is finally decided on the merits. It refers to something between the commencement and end of the suit which decides some point or matter but it is not the final decision on the whole controversy (METROPOLITAN BANK & TRUST COMPANY versus COURT OF APPEALS, G.R. No. 110147, April 17, 2001). An interlocutory order is not appealable until after the rendition of the judgment on the merits for a contrary rule would delay the administration of justice and unduly burden the courts (SIME DARBY EMPLOYEES ASSOCIATION versus NLRC, G.R. No. 148021, December 6, 2006), and encourage the unwholesome possibility of multiple appeals in one case. Since the issue is jurisdiction, an original action for certiorari may be directed against an interlocutory order of the lower court prior to an appeal from the judgment (NEW FRONTIER SUGAR CORPORATION versus REGIONAL TRIAL COURT, G.R. No. 165001, January 31, 2007). ESPIRITU versus TANKIANSEE G.R. No. 164153, June 13, 2011 FACTS: — Petitioner filed a certiorari petition under Rule 65 to assail interlocutory orders of the RTC. While the certiorari was pending before the SC, the case went on and the RTC rendered judgment against the petitioner. Petitioner appealed from the adverse judgment. ISSUE: Whether appeal from the adverse judgment was proper. RULING: Petitioners appeal before the Court of Appeals is the appropriate and adequate remedy, and the certiorari petition, subject matter of this case, constitutes forum shopping. Section 1, Rule 65 of the Rules of Court, clearly provides that a petition for certiorari is available only when there is no appeal, or any plain, speedy and adequate remedy in the ordinary course of law. A petition for certiorari cannot co-exist with an appeal or any other adequate remedy. ‘The existence and the availability of the right to appeal are antithetical to the availment of the special civil action for certiorari. As the Court has held, these two remedies are mutually exclusive. In this case, the subsequent appeal Provisional Remedies and Special Civil Actions (JZE) Rule 65 —Certiorari - Page 14 of 19constitutes an adequate remedy. In fact it is the appropriate remedy because it assails not only the judgment but also the interlocutory orders. The certiorari petition must perforce be dismissed on the ground of forum shopping. ORDER DISALLOWING OR DISMISSING AN APPEAL FACTS: ISSUE: RULING: UNITED INTERIOR versus DE LUNA G.R. No. 216788, November 20, 2017 Plaintiff, thru its President filed in the RTC a Complaint for Specific Performance. It was dismissed on the merits. Plaintiff filed a motion for reconsideration which was promptly denied by the RTC. Within the period to appeal, Plaintiff filed a Notice of Appeal. Defendant filed a motion to expunge the Notice of Appeal on the ground that it didn’t contain a board resolution allowing the President to file an appeal. ‘The RTC granted the motion to expunge the notice of appeal. Plaintiff filed a certiorari petition under Rule 65 to assail the order granting the motion to expunge. Defendant contends that the resort to a certiorari action is improper arguing that, being final, the Order of the RTC is not the proper subject of a petition for certiorari. Whether certiorari is the proper remedy. Certiorari is proper. An order to expunge a notice of appeal is effectively an order disallowing or dismissing an appeal that precludes resort to an appeal. Hence, pursuant to Section 1 of Rule 41, its only recourse is via the present certiorari action. There was grave abuse of discretion amounting to lack or excess of jurisdiction when the RTC expunged the notice of appeal on the ground of lack of a board resolution. Under the Rules, an appeal from cases decided by the RTC in the exercise of its original jurisdiction shall be made to the Court of Appeals by filing @ notice of appeal with the court which rendered the judgment or final order appealed from and serving a copy thereof upon the adverse party. A board resolution authorizing the representative to initiate the appeal is not required for the purpose of filing a notice of appeal. This is because a notice of appeal is not a pleading, initiatory or otherwise, that, when required by the law or the rules, must contain, among others, a verification and certification against forum shopping to be signed by the party or his/her representative, and, in the case of a representative, proof of his/her authority to file the action, ie., power of attorney or secretary's certificate with copy of the board resolution. Provisional Remedies and Special Civil Actions (JZE) Rule 65 —Certiorari - Page 15 of 19MOTION FOR RECONSIDERATION, PLAIN, SPEEDY AND ADEQUATE REMEDY Furthermore, certiorari under Rule 65 inherently requires the filing of a motion for reconsideration, which is the tangible representation of the opportunity given to the tribunals, boards or officers to correct themselves. This is so because the plain and adequate remedy referred to in Section 1 of Rule 65 is a motion for reconsideration of the assailed decision (BUREAU OF CUSTOMS versus GALLEGOS, G.R. No. 220832, February 28, 2018). Jurisprudence teaches, in a litany of cases, that a motion for reconsideration is generally considered as the plain, speedy, and adequate remedy that is a condition sine qua non to the filing of a petition for certiorari, within the contemplation of Rule 65, Sec. 1 of the Rules of Court (PHILIPPINE DEPOSIT INSURANCE CORPORATION versus GIDWANI, G.R. No. 234616, June 20, 2018). EXCEPTIONS TO THE REQUIREMENT OF PRIOR MOTION FOR RECONSIDERATION BANCO FILIPINO versus BANGKO SENTRAL NG PILIPINAS G.R. No. 200678, June 04, 2018 The general rule, in all cases, is that a motion for reconsideration is a sine qua non condition for the filing of a petition for certiorari. There are, however, recognized exceptions to this rule, namely: (a) Where the order is a patent nullity, as where the Court a quo had no jurisdiction; (b) Where the questions raised in the certiorari proceeding 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; (©) 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; (a) Where, under the circumstances, a motion for reconsideration would be useless; (@) Where petitioner was deprived of due process and there is extreme urgency for relief: () 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 proceedings were ex parte or in which the petitioner had no opportunity to object; and. () Where the issue raised is one purely of law or where public interest is involved. PLAIN, SPEEDY, AND ADEQUATE REMEDY CONSTRUED. Although Section 1, Rule 65 of the Rules of Court provides that the special civil action of certiorari may only be invoked when "there is no appeal, nor any plain, speedy and adequate remedy in the course of law," this rule is not without exception. The availability of the ordinary course of appeal does not constitute sufficient ground to prevent a party from making use of the extraordinary remedy of certiorari where appeal is not an adequate remedy or equally beneficial, speedy and sufficient. It is the inadequacy — not the mere absence — of Provisional Remedies and Special Civil Actions (JZE) Rule 65 —Certiorari - Page 16 of 19all other legal remedies and the danger of failure of justice without the writ that usually determines the propriety of certiorari. A "plain, speedy and adequate remedy” in the ordinary course of law is one which has been so defined as a remedy which would equally be beneficial, speedy and sufficient, not merely a remedy which at some time in the future will bring about a revival of the judgment complained of in the certiorari proceeding, but a remedy which will promptly relieve the petitioner from the injurious effects of that judgment and the acts of the inferior court or tribunal concerned (A.L. ANG NETWORK, INC. versus EMMA MONDEJAR, G.R. No. 200804, January 22, 2014). FACTS: ISSUE: RULING: VICTORIAS MILLING vs. CA. G.R. No, 168062, June 29, 2010 Victorias Milling filed a complaint for unlawful detainer and damages against IPI before the MCTC. The sheriff served the summons upon Danilo Maglasang, IP's Human Relations Department Manager. PI filed its Answer with express reservation that said Answer should not be construed as a waiver of the lack of jurisdiction of the MCTC over the person of IPI, for non-service of summons on the proper person. IPI then filed an Omnibus Motion for Hearing of Affirmative Defenses raised in the Answer and moved for the suspension of proceedings. The MCTC denied the Motion and set the case for preliminary conference. [PI's motion for reconsideration was denied. Thus IPI filed a petition for certiorari and prohibition with the CA to question the jurisdiction of the MCTC over its person. Victorias Milling contends that the Petition for Certiorari and Prohibition was improper considering that Rule 70 of the Rules of Court, on forcible entry and unlawful detainer cases, provides that petitions for certiorari, mandamus, or prohibition against any interlocutory order issued by the court are prohibited. Propriety of petition for certiorari and prohibition with the Court of Appeals ‘The petition for certiorari and prohibition questioning the MCTCs interlocutory order is not needed here. The rules provide IPI with adequate relief. At the proper time, IPI has the right to appeal to the RTC, and in the meantime no injustice will be caused to it by waiting for the MCTC to completely finish resolving the ejectment suit. The proceedings before the MCTC being summary in nature, the time and expense involved therein are minimal. IPI has already raised the matter of improper service of summons in its Answer. The MCTC's error/s, if any, on any of the matters raised by respondent IPI can be threshed out during appeal after the MCTC has finally resolved the ejectment case under summary procedure. RELIEFS SOUGHT IN A SPECIAL CIVIL ACTION FOR CERTIORARI Ultimately, the relief sought in a petition for certiorari under Rule 65 is that judgment be rendered annulling or modifying the proceedings of the tribunal, board or officer Provisional Remedies and Special Civil Actions (JZE) Rule 65 —Certiorari - Page 17 of 19concerned, and granting such incidental reliefs as law and justice may require. This is precisely because, in a petition for certiorari under Rule 65, errors of jurisdiction attended the proceedings, making them proper subjects of annulment (where there is lack of jurisdiction) or modification (where there is excess of jurisdiction). Under Section 9, an execution may issue for any damages or costs awarded in accordance with section 1 of Rule 89. This presupposes that the court may also award damages. ‘The reliefs sought should not include the consideration and evaluation of evidentiary matters. Otherwise, the petition for certiorari shall be dismissed (TRILLANES IV versus CASTILLO-MARIGOMEN, G.R. No. 223451, March 14, 2018). If the supposed petition for certiorari imputed errors in the appreciation of facts and evidence presented, the proper remedy would he an appeal (GALINDO versus COMMISSION ON AUDIT, G.R. No. 210788, Jan. 10, 2017). OTHER DOCTRINES ON CERTIORARI CANDELARIA vs. RTC G.R. No.173861, July 14, 2014 It is incumbent upon an applicant for a writ of certiorari to allege with certainty in his verified petition facts showing that "there is no appeal, nor any plain, speedy and adequate remedy in the ordinary course of law,” because this is an indispensable ingredient of a valid petition for certiorari. Where the existence of a remedy by appeal or some other plain, speedy and adequate remedy precludes the granting of the writ, the petitioner must allege facts showing that any existing remedy is impossible or unavailing, or that excuse petitioner for not having availed himself of such remedy. A petition for certiorari which does not comply with the requirements of the rules may be dismissed. When the court has jurisdiction over the case and person of the defendant, any mistake in the application of the law and the appreciation of evidence committed by a court may be corrected only by appeal. The determination made by the trial court regarding the admissibility of evidence is but an exercise of its jurisdiction and whatever fault it may have perpetrated in making such a determination is an error in judgment, not of jurisdiction. Hence, settled is the rule that rulings of the trial court on procedural questions and on admissibility of evidence during the course of a trial are interlocutory in nature and may not be the subject of a separate appeal or review on certiorari. They must be assigned as errors and reviewed in the appeal properly taken from the decision rendered by the trial court on the merits of the case REPUBLIC vs. SARENOGON, G.R. No, 199194, February 10, 2016 A petition for certiorari pursuant to Rule 65 of the Rules of Court is the proper remedy to challenge a trial court's declaration of presumptive death under Article 41 of the Family Code (as well as for all other summary proceedings under Article 41 of the Family Code). By express provision of law, the judgment of the court in a summary proceeding shall be immediately final and executory. As a matter of course, it follows that no appeal can be had Provisional Remedies and Special Civil Actions (JZE) Rule 65 —Certiorari - Page 18 of 19of the trial court's judgment in a summary proceeding for the declaration of presumptive death of an absent spouse under Article 41 of the Family Code. It goes without saying, however, that an aggrieved party may file a petition for certiorari to question abuse of discretion amounting to lack of jurisdiction. Such petition should be filed in the Court of Appeals in accordance with the Doctrine of Hierarchy of Courts. LEVI STRAUSS (PHILS.), INC. versus LIM G.R. No, 162311, December 4, 2008 The DOL is not one of the agencies enumerated in Section 1 of Rule 43 whose awards, Judgments, final orders, or resolutions may be appealed to the Court of Appeals. The Court has consistently ruled that the filing with the Court of Appeals of a petition for review under Rule 43 to question the Justice Secretary's resolution regarding the determination of probable cause is an improper remedy. Under the 1993 Revised Rules on Appeals from Resolutions in Preliminary Investigations or Reinvestigations, 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. If the appeal is dismissed, and after the subsequent motion for reconsideration is resolved, a party has no more appeal or other remedy available in the ordinary course of law. Thus, the Resolution of the Justice Secretary affirming, modifying or reversing the resolution of the Investigating Prosecutor is final. ‘There being no more appeal or other remedy available in the ordinary course of law, the remedy of the aggrieved party is to file a petition for certiorari under Rule 65. Thus, while the Court of Appeals may review the resolution of the Justice Secretary, it may do so only in a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, solely on the ground that the Secretary of Justice committed grave abuse of diseretion amounting to excess or lack of jurisdiction. Provisional Remedies and Special Civil Actions (JZE) Rule 65 —Certiorari - Page 19 of 19