Provisional Remedies Finals Richard Allan A.
Lim
Receivership (Rule 59)
- Unlike in attachment which creates a lien,
receivership does not create a lien to any of the
parties nor does it resolve any of the main issues of
the case
- A counterbond can dissolve the receivership under
Sec. 3
Replevin (Rule 60)
- It is a possessory action
- It usually resolves issues of possession only, but can
resolve the issue of ownership if such was raised in
the action (Chiong Liong Tan) in order to avoid
multiplicity of suits
- If all the requisites for the application for replevin
are present, then there is an action for replevin
(Tillson vs. CA)
- Prior and contemporaneous service of summons
applies when replevin is the main cause of action,
and such is filed at the commencement of the action
- Prior and contemporaneous service of summons does
not apply when replevin is availed of as a
provisional remedy
- Replevin is usually resorted to by financing
companies, where the replevin action leads to or
ended up in foreclosure or cancellation of the
contract based on Recto Law or Art. 1484 where the
seller chooses to apply for replevin and recover the
property. Recto Law was enacted to protect
purchasers on installment for the practices of seller
which could lead to unjust enrichment
- Failure to pay 4 or 5 times on installment is not
necessarily wrongful detention, there must be first
demand. If after demand and no action was done,
then there is wrongful detention
Filipinas Investment vs. Ca, Nonato vs. CA
- The Recto law applies in this case
- Usually in cases where personal property is
purchased through loan via chattel mortgage, but it
depends on the nature of the case
Bagalihog vs. Fernandez
- Object illegally seized cannot be considered as under
custodia legis and thus cannot be used as a defense
against replevin
- Wrongful taking is the most important aspect
- The opposite happened in the case of PAAT vs. CA,
as the truck was validly seized due to it being used to
illegally haul forest material
Rule 70 (Forcible Entry and Unlawful Detainer)
Ejectment is a real action (possession and ownership of
property) but follows special rules, hence considered as a
special civil action
Jurisdiction for Publiciana, Reivindicatoria:
If value of property is less than or equal to P 20,000 (P 50,000
in Metro Manila), the jurisdiction is with the MTC. Otherwise,
RTC. For ejectment it is the MTC whatever the value.
For personal use only. Unauthorized distribution prohibited
1. Accion Interdictal
a. Forcible entry (detentacion) - takes place when a
person is deprived of the possession of land or
building by means of Force, Intimidation,
Strategy, Threat or Strategy
i. Possession was unlawful from the
beginning
ii. Must be made within one year from the
time of forcible entry or one year from
discovery in case of stealth and strategy
iii. There can be no belated tolerance after
unlawful occupation
iv. Such FISTS is exclusive grounds for
forcible entry, if it is not under these
grounds, file for accion publiciana
v. There must be an intentional and
deliberate act, honest mistake is not
forcible entry
b. Unlawful detainer (desahucio) - which is the
withholding by a person from another of the
possession of land or building to which the latter
is entitled to after the expiration or termination of
the formers right to hold possession under a
contract, express or implied (includes tolerance
which must be present in the beginning)
i. Possession was lawful in the beginning
ii. Must be made within one year from the
time detention becomes unlawful (from
the time of last written demand) under
Sec 2.
iii. There is no unlawful detainer if there is
no contract between the parties
2. Accion publiciana - for recovery of possession of property
when it does not fall under (1), or when exceeded the one
year period allowed.
3. Accion reivindicatoria or de Reivindicacion - for recovery
of both the possession and the ownership
Notes:
Sarona vs. Villegas
1. Forcible entry is summary in nature, while unlawful
detainer is not.
2. A forcible entry case cannot be converted into an unlawful
detainer case, otherwise prescription will not take place
3. Force is the mere fact that some unlawfully took
possession of your real property, there is no need for war
or violence
Pajuyo vs. CA
- What is resolved is the issue of physical
possession/possession de facto and not possession as an
incident of ownership/possession de jure
- Ejectment covers public lands as well as in the case where
one takes possession of land with the intention to obtain
title provided it is in good faith
Francel vs. CA
- Not a simple case of unlawful detainer if the issue
involved is the rights and obligations between the
subdivision owner and the buyer, such should be referred
to the HLURB. Failure to execute absolute Deed of Sale
1
 Provisional Remedies Finals
by subdivision owner can be basis of complaint before
HLURB. Buyers failure to comply is cognizable by
regular courts
1. Demand must be in writing
2. There is valid notice if by registered mail even there is
failure to by the other party to receive the written notice to
pay rentals and vacate the premises
3. In case of conditional sale as stated in Leano vs. CA, there
must be:
a. Notice of cancellation through notarial recession,
b. Return of cash surrender value, which is 50% at
5% for every year after 5 years but no more than
90%
4. As ruled in Villena vs. Chavez 415 SCRA 33, force
against person in extrajudicial ejectment is against the
law, and extrajudicial ejectment does not confer
possession, in relation to Art. 546 NCC
5. Proceedings in ejectment are different such that there are
mandatory periods which shorten the periods, as well as
prevent the filing of prohibited pleadings with the
intention to delay.
6. Motion to dismiss is prohibited except for lack of
jurisdiction over subject matter, and when there is failure
to comply with conciliation (baranggay). Lack of
conciliation must be raised otherwise it is deemed waived.
7. Reglamentary periods
a. Answer - 10 days from summons (no extension)
b. Answer to counterclaims, cross-claims - 10 days
from service of answer where they are pleaded
c. Preliminary conference - 30 days from last
answer
d. Order for record of preliminary conference - 5
days after preliminary conference
e. Submission of affidavits and position papers - 10
days after Order
f. Judgment - 30 days after receipt of affidavits and
position papers, or after expiration of period
g. Submission of affidavits to clarify the certain
material facts - 10 days from order.
h. Judgment based on clarified material facts - 15
days from receipt of last affidavit or expiration of
period of filing
8. Prohibited pleadings under Sec. 13. Certiorari allowed
only in cases in summary procedure where there is
unnecessary delay or when there is gross negligence of
counsel as to deprive due process.
9. Preliminary conference governed by Rule 18
10. Preliminary injunction available to both Forcible entry
and unlawful detainer,
a. Must be filed within 15 days from filing
complaint.
b. Motion must be decided within 30 days
c. If in appeal taken, see Sec. 19
11. Execution stayed under Sec. 19
a. Appeal by defendant
b. Deposit of supersedeas bond by defendant, and
payment of monthly rentals as determined by the
MTC
For personal use only. Unauthorized distribution prohibited
Richard Allan A. Lim
12. RTC ruling against defendant is immediately executory,
without prejudice to further appeal.
13. Demand to vacate applies only to lease contracts and
where there was lawful possession, is not necessary in
cases of forcible entry and expiration of the lease contract
14. There is implied renewal of lease or Tacita reconduccion
when as provided for in Art. 1670 NCC when the lessor
upon the expiration of the lease contract does not give
notice that he is renewing the lease contract within 15
days from the expiration. Such renewal is not for the
original period but for the period of payment.
15. If notice is given upon the expiration of the contract, the
lessor could file unlawful detainer case even without
demand to vacate. However under Sec. 2, there is
necessity for notice when the reason is non-payment of
rentals or tolerance
16. Motion to dismiss is prohibited except in cases of lack of
jurisdiction or failure to comply with conciliation
proceedings under Sec. 12. As stated in Art. 467 NCC,
any of the co-owners can file for ejectment
17. It is not the non-payment of rentals that renders the
possession unlawful but the refusal to vacate the premises
despite the demand.
18. The fact that there is no demand to vacate is one of the
defenses that can be used against ejectment cases
19. If there is no mention of non-compliance to conciliation
proceedings in the defendants answer, then such is
deemed waived
20. Under Sec. 16, ownership as an issue will only be
resolved if necessary to resolve the issue of who is
entitled to possession, but otherwise ownership is not
resolved in ejectment cases
21. If there is claim that possession is based on agricultural
tenancy under Sec. 3, then the court should conduct a
hearing to determine if such is really based on agricultural
tenancy to refer the dispute to DARAB.
Rule 61.
Support pendente lite
- Such is made at the commencement of the action or
before final judgment or order, in a proper action
- It is available in criminal cases
- Who shall file? (in preferential order)
o Offended party
o Parents
o Grandparents
o Guardians
o In default of all preceding, the State
Cases
Lerma vs. CA
- Adultery is a defense against support pendente lite as it is
a ground for legal separation
Reyes vs. CA
- Adultery while a good defense should be proven and not
just based on mere allegations
- The amount awarded should be based on the merits of the
case based on evidence presented
Ramos vs. CA
2
 Provisional Remedies Finals Richard Allan A. Lim
- The provisional character of support pendente lite should
not be made to rely on final outcome of the case, hence it Cases:
is executory even if the adverse party appeals the case. Lozada vs. COMELEC
- Petition dismissable if the petitioner does not have the
Rule 62 legal standing specific to the case at hand
Interpleader - Mandamus not issuable in doubtful cases
- When the are conflicting claims on the same subject o Petitioner asking must have clear right
matter against a party who has no interest in the subject o Quasi-judicial body must have clear duty
matter, such party may file the action to resolve who shall corresponding to said right
be entitled between the claimants
Kho vs. COMELEC
Cases - In cases of grave abuse of discretion on the part of
Ocampo vs. Tirona COMELEC, the remedy is not en banc but Certiorari
- Interpleader is proper in lease contracts where the leasee under Rule 65
does not know who among the people claiming payment
should be given payment for lease Garces vs. COMELEC
- There should be conflicting claims for a party to be - No legal right to a position which is not vacated, hence
entitled to file interpleader suit Mandamus cannot lie
- Mandamus which seeks to enforce legal duties is not
Beltran vs. PHHC, Eternal Gardens vs. First Division IAC proper remedy but Quo Warranto which seeks to test the
- There should be conflicting claims for a party to be doubtful claim to office sought to be oustered
entitled to file interpleader suit - Certiorari upon SC under Rule 64 is for election
decisions, disputes and controversies and does not cover
Wack-wack Golf and Country Club vs. Won administrative decisions
- If the claims have been settled and there is no longer
conflict, interpleader no longer available for party. Rule 65. Certiorari
- Petitioners must allege that the tribunal acted with grave
Rule 63. abuse of discretion amounting to lack or in excess of
Declaratory Relief jurisdiction
- Any person interested under a deed, will, contract or other - Certiorari is not the remedy for appeal lost due to
written instrument, or whose rights are affected by a negligence, nor is available when adequate remedies are
statute, executive order or regulation, ordinance, or any present which is Motion for Reconsideration.
other governmental regulation may, before breach or - Only in case administrative body exercises quasi-
violation thereof bring an action in the appropriate judicial power, not if exercising quasi legislative power
Regional Trial Court to determine any question of or purely administrative function
construction or validity arising, and for a declaration of Jurisdiction Exercise of Jurisdiction
his rights or duties, thereunder. Error in jurisdiction is what The decision or all questions
should be shown in certiorari arising from the case
Cases case
Lim vs. Republic, Commissioner vs. Domingo Refers to the authority to hear Errors or judgment are
- There is no proceeding established by which the court can and decide the case reviewable only by appeal
declare the citizenship or status of a person -
Rule 43 (Petition for Rule 65 (Petition for
Reparations Committee vs. Northern Lines, Olleda vs. CA Review) Certiorari)
- The filing of action for declaratory relief must be made 1. Ordinary Appeal 1. Special Civil Action
before the breach or violation 2. There must be exhaustion 2. No other plain, speedy or
of administrative remedies adequate remedy
DyPoco vs. Commsioner, Kawasaki Port Service vs. Amores 3. Covers both questions of 3. Questions of law or errors
- The facts must be settled and there are no issues to be fact and law of jurisdiction only, except
tried before the court where it falls under the
exceptions where there can be
Rule 64 reviews of facts
Review of Judgments, Decisions and Final Orders of the
COMELEC and COA
Continental Marble vs. NLRC
- Pursuant to Sec. 7, Art. VIII of the 1987 Constitution
- Petition for certiorari is a catch all remedy where it can
- Quasi-judicial bodies other than the COMELEC and COA
cover many kinds of claims for justice
are subject to petition for review under Rule 43
- Petition for review under Rule 64 is not a matter of right
Villanueva vs. Ople
- Period for certiorari under Rule 65 is 60 days
For personal use only. Unauthorized distribution prohibited 3
 Provisional Remedies Finals
- Certiorariisaspecialcivilactionwhenofficeractedin
graveabuseofdiscretioninexcessorwithoutjurisdiction
- Grave abuse of discretion implies a capricious and
whimsical exercise of judgment tantamount to lack or
excessofjurisdiction.36Theexerciseofpowermusthave
beendoneinanarbitraryoradespoticmannerbyreason
of passion or personal hostility. It must have been so
patentandgrossastoamounttoanevasionofpositive
dutyoravirtualrefusaltoperformthedutyenjoinedorto
actatallincontemplationoflaw.
- Errors in judgment are not necessarily grave abuse of
discretion
Purefoodsvs.NLRC
- Theunquestionedruleinthisjurisdictionisthatcertiorari
will lie only if there is no appeal or any other plain,
speedyandadequateremedyintheordinarycourseoflaw
against the acts of respondent. In the present case, the
plainandadequateremedyexpresslyprovidedbylawwas
amotionforreconsiderationoftheassaileddecisionand
theresolutionthereof,whichwasnotonlyexpectedtobe
but would actually have provided adequate and more
speedyremedythanthepresentpetitionforcertiorari.
- Ifmotionforreconsiderationnotresortedto,certiorarican
bedismissed
Fortichvs.Corona
- Petitionforreview for decisions,orders, judgmentsnot
yetfinal.Petitionforcertiorarifororders,judgmentsand
decisionsthatarefinal
- Anerrorofjudgmentisonewhichthecourtmaycommit
in the exercise of its jurisdiction, and which error is
reviewableonlybyanappeal. 35 Ontheotherhand,an
errorofjurisdiction isonewheretheactcomplainedof
wasissuedbythecourt,officeroraquasijudicialbody
withoutorinexcessofjurisdiction,orwithgraveabuseof
discretion which is tantamount to lack or in excess of
jurisdiction. 36 This error is correctable only by the
extraordinarywritofcertiorari.
Retartevs.Mores
- As held in Flores v. Sangguniang Panlalawigan of
Pampanga,21 the "plain" and "adequate remedy"
referred to in the foregoing Rule is a motion for
reconsideration of the assailed Order or Resolution, the
filing of which is an indispensable condition to the filing
of a special civil action for certiorari, 22 subject to certain
exceptions, to wit:
o (a) where the order is a patent nullity, as where
the court a quo has no jurisdiction;
o (b) where the questions raised in the certiorari
proceedings have been duly raised and passed
upon by the lower court, or are the same as those
raised and passed upon in the lower court;
o (c) where there is an urgent necessity for the
resolution of the question and any further delay
For personal use only. Unauthorized distribution prohibited
Richard Allan A. Lim
would prejudice the interests of the Government
or of the petitioner or the subject matter of the
action is perishable;
o (d) where, under the circumstances, a motion for
reconsideration would be useless;
o (e) where petitioner was deprived of due process
and there is extreme urgency for relief;
o (f) where, in a criminal case, relief from an order
of arrest is urgent and the granting of such relief
by the trial court is improbable;
o (g) where the proceedings in the lower court are
a nullity for lack of due process;
o (h) where the proceedings was ex parte or in
which the petitioner had no opportunity to
object; and
o (i) where the issue raised is one purely of law or
public interest is involved.
Heirs of Reterta vs. Mores
- Afinaljudgmentororderisonethatfinallydisposes
of a case, leaving nothing more to be done by the
Courtinrespectthereto, e.g.,anadjudicationonthe
meritswhich,onthebasisoftheevidencepresentedat
the trial declares categorically what the rights and
obligationsofthepartiesareandwhichpartyisinthe
right;orajudgmentororderthatdismissesanaction
on the ground, for instance, of res judicata or
prescription.
- the instances in which certiorari will issue cannot be
defined, because to do so is to destroy the
comprehensiveness and usefulness of the extraordinary
writ.Thewidebreadthandrangeofthediscretionofthe
courtaresuchthatauthorityisnotwantingtoshowthat
certiorariismorediscretionarythaneitherprohibitionor
mandamus, and that in the exercise of superintending
control over inferior courts, a superior court is to be
guidedbyallthecircumstancesofeachparticularcaseas
theendsofjusticemayrequire.Thus,thewritwillbe
granted whenever necessary to prevent a substantial
wrongortodosubstantialjustice
Prohibition and Mandamus
- Remedy to prevent tribunal, body or officer to prevent
exercise of jurisdiction which the law does not vest in
them and only if based on undisputed facts (Garces case)
- To prevent the unlawful and oppressive exercise of
authority
- Prohibition, certiorari and mandamus are independent
original actions before the RTC, CA or SC
Certiorari Prohibition
Annul proceedings Stop exercise of power used
without jurisdiction
Corrective Preventive
- PCM are prohibited pleadings in certain cases but may be
allowed when order is patently illegal or in excess or lack
of jurisdiction
4
 Provisional Remedies Finals
- Mandamus is to compel performance of ministerial act,
hence will not lie for discretionary acts
- If there is no dispute to entitlement to office, mandamus is
the remedy
Cases:
Ongsucovs.Malones
- For a writ of prohibition, the requisites are: (1) the
impugned act must be that of a "tribunal, corporation,
board, officer, or person, whether exercising judicial,
quasijudicialorministerialfunctions";and(2)thereisno
plain,speedy,andadequateremedyintheordinarycourse
oflaw."
- Theexerciseofjudicialfunctionconsistsofthepowerto
determinewhatthelawisandwhatthelegalrightsofthe
partiesare,andthentoadjudicateupontherightsofthe
parties. The term quasijudicial function applies to the
actionanddiscretionofpublicadministrativeofficersor
bodiesthatarerequiredtoinvestigatefactsorascertain
the existence of facts, hold hearings, and draw
conclusionsfromthemasabasisfortheirofficialaction
andtoexercisediscretionofajudicialnature.
- Aministerial functionisonethat anofficer ortribunal
performs in the context of a given set of facts, in a
prescribedmannerandwithoutregardfortheexerciseof
hisoritsownjudgment,upontheproprietyorimpropriety
oftheactdone.
LeagueofCitiesvs.COMELEC
- Prohibition is the proper action for testing the
constitutionality of laws administered by the
COMELEC,14 liketheCityhoodLaws,whichdirect the
COMELECtoholdplebiscitesinimplementationofthe
CityhoodLaws.
- Thereisafterallahierarchyofcourts.Thathierarchyis
determinative of the venue of appeals, and should also
serveasageneraldeterminantoftheappropriateforum
for petitions for the extraordinary writs. A becoming
regardforthatjudicialhierarchymostcertainlyindicates
that petitions for the issuance of extraordinary writs
againstfirstlevel("inferior")courtsshouldbefiledwith
theRegionalTrialCourt,andthoseagainstthelatter,with
theCourtofAppeals.AdirectinvocationoftheSupreme
Courtsoriginaljurisdictiontoissuethesewritsshouldbe
allowed only when there are special and important
reasons therefor, clearly and specifically set out in the
petition.Thisisestablishedpolicy.Itisapolicythatis
necessarytopreventinordinatedemandsupontheCourts
time and attention which are better devoted to those
matters withinits exclusive jurisdiction,andtoprevent
furtherovercrowdingoftheCourtsdocket.
Chavezvs.NHA
- animportantprinciplefollowedintheissuanceofthewrit
is that there should be no plain, speedy and adequate
remedy in the ordinary course of law other than the
For personal use only. Unauthorized distribution prohibited
Richard Allan A. Lim
remedy of mandamus being invoked.27 In other words,
mandamuscanbeissuedonlyincaseswheretheusual
modesofprocedureandformsofremedyarepowerlessto
afford relief.28 Although classified as a legal remedy,
mandamus isequitable initsnature and its issuance is
generallycontrolledbyequitableprinciples. 29Indeed,the
grantofthewritofmandamusliesinthesounddiscretion
ofthecourt.
Antolin vs. Domondon
- Forawritofmandamustoissue,theapplicantmusthave
awelldefined,clear,andcertainlegalrighttothething
demanded.Thecorrespondingdutyoftherespondentto
performtherequiredactmustbeequallyclear. 33
Metrobank vs. Reynado
- Mandamusisaremedialmeasureforpartiesaggrieved.It
shallissuewhen"anytribunal,corporation,board,officer
orpersonunlawfullyneglectstheperformanceofanact
whichthelawspecificallyenjoinsasadutyresultingfrom
anoffice,trustorstation."54Thewritofmandamusisnot
availabletocontroldiscretionneithermayitbeissuedto
compeltheexerciseofdiscretion.Truly,itisamatterof
discretion on the part of the prosecutor to determine
whichpersonsappearresponsibleforthecommissionofa
crime.However,themomenthefindsonetobesoliable
itbecomeshisinescapabledutytochargehimtherewith
andtoprosecutehimforthesame.Insuchasituation,the
rule loses its discretionary character and becomes
mandatory.
Secretary of Justice vs. Koruga
- ItisbeyondcavilthattheBIhastheexclusiveauthority
andjurisdictiontotryandhearcasesagainstanalleged
alien,andthattheBOChasjurisdictionoverdeportation
proceedings.24 Nonetheless, Article VIII, Section 1 25 of
theConstitutionhasvestedpowerofjudicialreviewinthe
SupremeCourtandthelowercourtssuchastheCA,as
establishedbylaw.Althoughthecourtsarewithoutpower
to directly decide matters over which full discretionary
authority has been delegated to the legislative or
executive branch of the government and are not
empowered to execute absolutely their own judgment
fromthatofCongressorofthePresident, 26theCourtmay
lookintoandresolve questionsofwhether ornotsuch
judgmenthasbeenmadewithgraveabuseofdiscretion,
whentheactofthelegislativeorexecutivedepartmentis
contrarytotheConstitution,thelaworjurisprudence,or
whenexecutedwhimsically,capriciouslyorarbitrarilyout
ofmalice,illwillorpersonalbias.
- When acts or omissions of a quasijudicial agency are
involved,apetitionfor certiorari orprohibitionmaybe
filedintheCAasprovidedbylaworbytheRulesof
Court,asamended.30Clearly,thefilingbyrespondentofa
petitionfor certiorari andprohibitionbefore theCAto
5
 Provisional Remedies Finals
assail the order of deportation on the ground of grave
abuseofdiscretionispermitted.
City Engineer of Baguio vs. DUmogan
- Prohibition or a "writ of prohibition" is that process by
which a superior court prevents inferior courts, tribunals,
officers, or persons from usurping or exercising a
jurisdiction with which they have not been vested by
law.30 As its name indicates, the writ is one that
commands the person or tribunal to whom it is directed
not to do something which he or she is about to do. The
writ is also commonly defined as one to prevent a tribunal
possessing judicial or quasi-judicial powers from
exercising jurisdiction over matters not within its
cognizance or exceeding its jurisdiction in matters of
which it has cognizance.31 At common law, prohibition
was a remedy used when subordinate courts and inferior
tribunals assumed jurisdiction which was not properly
theirs.
- It is very clear that before resorting to the remedy of
prohibition,thereshouldbe"noappealoranyotherplain,
speedy, andadequate remedy intheordinarycourse of
law." Thus, jurisprudence teaches that resort to
administrativeremediesshouldbehadfirstbeforejudicial
interventioncanbeavailedof
- Thedoctrineof exhaustionofadministrativeremedies
isnotanironcladrule.37Itadmitsofseveralexceptions.
Jurisprudence is wellsettled that the doctrine does not
applyincases(1)whenthequestionraisedispurelylegal;
(2)whentheadministrativebodyisinestoppel;(3)when
theactcomplainedofispatentlyillegal;(4)whenthereis
urgent need for judicial intervention; (5) when the
claiminvolvedissmall; (6)whenirreparabledamage
willbesuffered;(7)whenthereisnootherplain,speedy,
andadequateremedy;(8)whenstrongpublicinterestis
involved;(9)whenthesubjectoftheproceedingisprivate
land;(10)in quowarranto proceedings;and(11)where
thefactsshowthattherewasviolationofdueprocess.
- Under existing laws, the office of the mayor is given
powersnotonlyrelativetoitsfunctionastheexecutive
official of the town. It has also been endowed with
authority to hear issues involving property rights of
individuals and to come out with an effective order or
resolution thereon. In this manner, it exercises quasi
judicialfunctions.Thispowerisobviouslyatruisminthe
matterofissuingdemolitionnoticesand/orordersagainst
squatters and illegal occupants through some of its
agencies or authorized committees within its respective
municipalitiesorcities.
Tan vs. CA
- Basic is the rule that the writ of prohibition is an
extraordinary remedy to prevent the unlawful and
oppressiveexerciseoflegalauthorityandtoprovidefora
fairandorderlyadministrationofjustice. 9 Itisavailable
onlywhenthereisnoappeal oranyplain,speedyand
adequateremedyintheordinarycourseoflaw,andwhen
For personal use only. Unauthorized distribution prohibited
Richard Allan A. Lim
the proceedings are done without or in excess of
jurisdiction or with grave abuse of discretion. The
petitionermustallegeinhispetitionandestablishfactsto
show that any other existing remedy is not speedy or
adequate.10 Aremedyisplain,speedyandadequateifit
will promptly relieve the petitioner from the injurious
effectsofthat judgment andtheactsofthetribunal or
inferior court.11 Further, the writ will not lie to correct
errorsofjudgmentbutonlyerrorsofjurisdiction.Aslong
as the tribunal acts within its jurisdiction, any alleged
errors committed in the exercise of its discretion will
amount to nothing more than mere errors of judgment
whicharecorrectiblebyatimelyappeal. 12Indetermining
whether a tribunal acted in grave abuse of discretion,
mere abuseofdiscretionisnot enough.There mustbe
graveabuseofdiscretionaswherethetribunalexercised
itspowerinanarbitraryordespoticmanner,byreasonof
passionorpersonalhostility,anditmustbesopatentor
grossaswouldamounttoanevasion,orvirtualrefusalto
performthedutyenjoined,ortoactincontemplationof
law.
Uy Kiao Eng vs. Lee
- Mandamus is a command issuing from a court of law of
competent jurisdiction, in the name of the state or the
sovereign, directed to some inferior court, tribunal, or
board, or to some corporation or person requiring the
performance of a particular duty therein specified, which
duty results from the official station of the party to whom
the writ is directed or from operation of law. The writ 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
- The writ of mandamus, however, will not issue to compel
an official to do anything which is not his duty to do or
which it is his duty not to do, or to give to the applicant
anything to which he is not entitled by law. Nor will
mandamus issue to enforce a right which is in substantial
dispute or as to which a substantial doubt exists, although
objection raising a mere technical question will be
disregarded if the right is clear and the case is meritorious.
- As a rule, mandamus will not lie in the absence of any of
the following grounds: [a] that the court, officer, board, or
person against whom the action is taken unlawfully
neglected the performance of an act which the law
specifically enjoins as a duty resulting from office, trust,
or station; or [b] that such court, officer, board, or person
has unlawfully excluded petitioner/relator from the use
and enjoyment of a right or office to which he is
entitled.20 On the part of the relator, it is essential to the
issuance of a writ of mandamus that he should have a
clear legal right to the thing demanded and it must be the
imperative duty of respondent to perform the act required.
- Recognized further in this jurisdiction is the principle that
mandamus cannot be used to enforce contractual
obligations. Generally, mandamus will not lie to enforce
purely private contract rights, and will not lie against an
6
 Provisional Remedies Finals Richard Allan A. Lim
individual unless some obligation in the nature of a public
or quasi-public duty is imposed.
- Inotherwords,mandamuscanbeissuedonlyincases
wheretheusualmodesofprocedureandformsofremedy
arepowerlesstoaffordrelief.28 Althoughclassifiedasa
legalremedy,mandamusisequitableinitsnatureandits
issuanceisgenerallycontrolledbyequitableprinciples. 29
Indeed, the grant of the writ of mandamus lies in the
sounddiscretionofthecourt.
Quo Warranto
Municipality of San Narciso vs. Mendez
- Thespecialcivilactionofquowarrantoisa"prerogative
writbywhichtheGovernmentcancalluponanyperson
to show by what warrant he holds a public office or
exercises a public franchise." 13 When the inquiry is
focusedonthelegalexistenceofabodypolitic,theaction
isreservedtotheStateinaproceedingforquowarranto
oranyothercreditproceeding. 14 Itmustbebrought"in
the name of the Republic of the Philippines" 15 and
commencedbytheSolicitorGeneralorthefiscal"when
directedbythePresidentofthePhilippines...." 16Such
officersmay,undercertaincircumstances,bringsuchan
action "at the request and upon the relation of another
person"withthepermissionofthecourt.17TheRulesof
Courtalsoallowsanindividualtocommenceanactionfor
quowarranto inhisownnamebutthisinitiativecanbe
donewhenheclaimstobe"entitledtoapublicofficeor
position usurped or unlawfully held or exercised by
another."
Garces vs. CA
-
Ascorrectlyruledbyrespondentcourt,mandamus,which
petitionerfiledbelow,willnotlieasthisremedyapplies
onlywherepetitioner'srightisfoundedclearlyinlawand
notwhenitisdoubtful. 24 Itwillnotissuetogivehim
something to which he is not clearly and conclusively
entitled. 25 Considering that Concepcion continuously
occupies the disputed position and exercises the
corresponding functions therefor, the proper remedy
should have been quo warranto and not mandamus. 26
Quo warranto tests the title to one's office claimed by
anotherandhasasitsobjecttheousteroftheholderfrom
its enjoyment, while mandamus avails to enforce clear
legaldutiesandnottotrydisputedtitles.2

For personal use only. Unauthorized distribution prohibited 7