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only be allowed only after a hearing is heard, and the applicant and

respondent are given the chance to explain. The reason why this is required

in the Rules is that a court cannot conceivably issue an order grantingsupport pendente lite unless the court is able to determine first that the

petitioner needs support, and even if the petitioner does need support, todetermine that the respondent is capable of grant such support. This is

because if the court simply grants an application for support pendente litewithout examining the financial ability of the respondent, that provisionalremedy will be useless. If the respondent cannot comply, as he had no

means to give support, he could be jailed. This is one action where the court

can imprison a respondent who does not comply with its order to givesupport, although the respondent really may not have the ability to really

do so.

Remedies in case of violation against giving of support under

substantive law:  (Dean Jara: This probably violates the equal protectionclause as they are relatively unfavorable to us men.)

1. Imprisonment for commission of a crime2. Citation for contempt and imprisonment

3. Issuance of an order of execution against violator under Rule 39

In the Rules of Court on Support Pendente Lite, you will notice that the

principle in Section 20 Rule 57 is not followed at all. A remedy to recoverdamages in wrongful issuance of provisional remedies should be in the

same case. There must be no separate action to recover damages. But if you

read the provisions for Support Pendente Lite, it is expressly provided thatthere could be an independent action for recovery of money given as

support in compliance with an order of the court. There is no need for

respondent to file a claim for damages in the same action.

If you are asked why a Family Court can order spousal support without ahearing, just state that there is no need for a Family Court to determine the

needs of the spouse or of the minor children, there is no need for the court

to determine the financial ability of the defendant. This is because in family-related cases, there is a need for an inventory of properties submitted to the

Family Court by the petitioner. Based on the inventory, the court can

conclude how much the spouse is entitled and how much the minors areentitled to support.

Also, with respect to the Provisional Orders granted by a Family Court inmarriage-related cases, although the provisional orders are called by someother name, these partake in the nature of an injunction.

TPO in a marriage-related case is actually a prohibitory injunction and amandatory injunction at the same time. This is because in the protection

order, the Family Court prohibits respondent from certain acts,, which is a

prohibitory injunction. Also, the Family Court can tell the respondent not toenter the former conjugal dwelling and to remove his personal properties

from the house. Thus, it partakes of a mandatory injunction.

RECEIVERSHIP IN MARRIAGE-RELATED CASES

We also have receivership in marriage-related cases where the court mayappoint an administrator of the properties. He is effectively a receiver ofproperties owned in common.

With respect to interim reliefs in Amparo, there is nothing mentioned in thecircular about filing of a bond.

With respect to Kalikasan circular, the applicant is not required to post abond. It is the adverse party who will have to post a bond in order to lift or

dissolve the writ of Kalikasan as security to protect the interest of the

applicant.

Read the Circulars on the Writs.

Center your attention on the procedures required in civil and criminal casesgiven in the Writs:

Kalikasan cases

-  Commenced in RTC, MTC, CA, SC

-  Continuing mandamus is only cognizable only in SC and CA

-  Party complaining/answering must have attached documentary

and/or object evidence available

-  If the defendant does not file an answer, there is no need for a

motion do declare defendant in default, it being a prohibited

pleading.

-  If the defendant does not answer, it is the duty of the court to

declare the defendant in default , no motion need be had, and

the plaintiff’s evidence can be received ex parte.-  Compromise of the civil action is encouraged. The judgment is

not called a judgment based upon a compromise but is called aConsent Decree.

-  Rules on Evidence are not necessarily followed. Quantum ofevidence in civil cases is mere preponderance of evidence.

However, there are several instances in Kalikasan cases that

mere substantial evidence is enough, which is also now followedin Amparo cases. In Amparo cases, only substantial evidence is

required, which is the same quantum of evidence in quasi-

judicial proceedings. In Amparo cases, the rule on quantum of

evidence is exclusively determined by the SC. If substantialevidence is required in Amparo cases, then that is the quantum

required. An administrative body cannot change the quantum ofevidence required.

Special Civil Actions1. Interpleader (Rule 62)

2. Declaratory relief and similar remedies (Rule 63)

3. Review of judgments and final orders of the COMELEC and theCommission on Audit (Rule 64)

4. Certiorari, prohibition and mandamus (Rule 65)5. Quo warranto(Rule 66)6. Expropriation (Rule 67)

7. Foreclosure of real estate mortgage(Rule 68)8. Partition (Rule 69)

9. Forcible entry and unlawful detainer (Rule 70)10. Contempt (Rule 71)

11. Petition for Writ of Kalikasan 12. Petition for Continuing Mandamus 

Q: What special civil actions are initiated by complaints and initiatedby petitions?

 A:1. by complaint

a. interpleader

b. expropriation

c. foreclosure of real estate mortgage

d. partitione. forcible entry and unlawful detainer

2. by petition

a. declaratory relief

b. review of judgments and final orders or resolutions of theCOMELEC / COA

c. Certiorari

d. Prohibitione. Mandamusf. Quo Warranto

g. Contempth. Petition for Writ of Kalikasani. Petition for Continuing Mandamus

To properly appreciate why a civil action is further classified into a specialcivil action, all that we have to do is to check Rule 1. In Rule 1, a special civil

action is inherently a civil action. What makes it special is that the Rules

require additional procedure for each and every special civil action that isnot followed in ordinary civil proceedings. Unless there is a special rule

specifically devoted to a certain special civil action, we will still applyordinary rules of civil procedure.

RULE 62 INTERPLEADERWhat is so special about interpleader?In ordinary civil cases, an action is commenced by the filing of a complaint,

petition or something equivalent to a complaint.In an interpleader, it can be commenced by the filing of an answer with acounterclaim for interpleader.

Since we are following the rules in ordinary civil action, there is need of aplaintiff and a defendant. In an interpleader, there is a plaintiff and there

can two or more defendants.

One of the features of interpleader which is not possessed by ordinary civil

actions is the absence of a cause of action. In ordinary civil actions, if thereis no cause of action, the complaint will be dismissed. In a complaint for

interpleader or a counterclaim for interpleader, the plaintiff does not aver acause of action. The plaintiff in interpleader cannot say that he has a cause

of action because it is an essential requirements in an action for

interpleader that the plaintiff does not allege a right at all; or if he alleges a

right, nobody has violated the right, the defendants agree he has a right ordoes not contest the right.

Since we are going to follow the rules of ordinary civil actions unlessotherwise provided in the Rules, does it mean to say that we should

submit a controversy of interpleader involving at least two or moredefendants, should there be prior barangay conciliation before we go

to court?Yes. Generally, that is a rule that is applicable to all civil actions, and thus

will include special civil actions, so long as the parties are natural persons

residing in the same city or municipality.

Since we are going to follow the rules of ordinary civil actions unlessotherwise provided in the Rules, does it mean to say that we should

wait for the court to issue summons?

Yes. That is the means by which the court will acquire jurisdiction over thedefendant.

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In interpleader, a summoned defendant who failed to file an answer shall be

declared in default.

In Rule 9, when there is a complaint against several defendants, and one or

two of these defendants failed to file an answer while the others filed ananswer, Rule 9 says that the non-answering defendant will be declared in

default, but the non-answering defendant will be tried based on the answerfiled by the other answering defendants. Hence, if the answering defendantwins, the defaulting defendant automatically wins. This is because both

answering and non-answering defendants are sued under a common cause

of action.

We do not apply Rule 9 to an interpleader. In interpleader, when onedefendant files an answer and the other did not file an answer and wasdeclared in default, the defaulting defendant automatically loses the case.

This is because the Rules provide, that in addition to being declared indefault, the non-answering defendant will lose his claim. Although in reality

the defaulting defendant has a claim, his being declared in default will makehim lose his right to the claim. Thus, if there are only two defendants and

one of them was declared in default, since the defaulting defendant hasalready lost the case, the remaining defendant will have a great chance of

being declared as the one with the right to the subject of the interpleader.

This is because the plaintiff in the interpleader does not have any right orinterest to the claim of either defendants. The remaining defendant will be

declared as the one with the right to the claim that is the subject of the

interpleader.

Q: What are the three special civil actions which are within the

jurisdiction of MTCs?

 A:1. Interpleader, provided that the amount is within the jurisdiction of suchMTC

2. Ejectment suits

3. Contempt

Q: What is an interpleader?

 A: It is a special civil action filed by a person against whom two conflictingclaims are made upon the same subject matter and over which he claims nointerest, to compel the claimants to interplead and to litigate their

conflicting claims among themselves. (Sec. 1, Rule 62).

Q: What are the requisites in order that the remedy of interpleader

may be availed of?

 A:1. Plaintiff claims no interest in the subject matter or his claim is not

disputed

2. Two or more claimants asserting conflicting claims3. The subject matter must be one and the same

4. Person in possession or obliged files a complaint.5. The parties to be interpleaded must make effective claims.

6. Payment of docket and other lawful fees.

Note: Upon filing of complaint, the court shall issue an order requiringconflicting claimants to interplead. (Sec. 2, Rule 62)

Rule 63 Enumerates 4 special civil actions~Declaratory Relief

“and other similar remedies”: ~Reformation of instrument~Quieting of title

~Consolidation of title

Although in the same Rule, they are governed by different procedures.

DECLARATORY RELIEF RULE 63

The obvious nature of declaratory relief, which makes it a special civilaction, is that the petition must be filed before a breach or violation of a

right. (If we would follow ordinary rules of procedure, the complaint would

have been dismissed outright because of lack of a cause of action.) There is

no allegation that there is a right violated by another. If there is such anallegation, then the action ceases to be a special civil action for declaratoryrelief, it becomes an ordinary action.

Declarative relief is a preventive mechanism to prevent parties from gettinginvolved in an ordinary civil case. In Declarative relief , the petitioner doesnot allege he has a right, or i f he has, it has not been violated, and therefore,

there is really no cause of action. The petitioner seeks from the court a

determination of what his rights are. Petitioner is not absolutely certain ifhe has rights under a certain instrument, so he asks the court to declare

what his rights are. The actual remedy is that the court declares what his

rights are.

If the remedy is the declaration of the rights of the petitioner, then aprayer for damages in declaratory relief negates the nature of such

special civil action. Damages connote the fact that a breach or violation of

a right has occurred.

There is an enumeration under Rule 63 (Section 1) as to the instruments

which could be subjects of a petition for declaratory relief; “deed, will,contract or other written instrument, whose rights are affected by a statute,executive order or regulation, ordinance, or any other governmental

regulation.” 

With respect to statute or ordinance, the same principle applies, we cannotapply for a petition for declaratory relief if there is already a violation. Ifthere is a violation already, the petition will not be proper. Declaratory

relief must be had before such ordinance or statute has become effective.

This is one of the reasons of the 30 day period (date of effectivity; afterpublication) before a law that has been enacted by Congress has effect. The

said time before such statute or ordinance takes effect is the time for it to besubject to petition for declaratory relief, determining whether that statuteor ordinance is constitutional or unconstitutional.

You will meet decisions of the SC concerning declaratory relief to the effect

that you cannot file a motion for execution in order to carry out thedeclaratory judgment (the judgment in a case for declaratory relief), in

order to differentiate it from what the court usually renders after ajudgment has been entered in order to clarify the judgment. The latter is

what we a clarificatory judgment. In a clarificatory judgment, that is where

a judgment that has become final and executory but has certain ambiguitieswith that judgment. The remedy of the interested party is to file a motion

for the rendition of a clarificatory judgment. This clarificatory judgment is

different from a declaratory judgment. In declaratory judgment the courtwill only tell the petitioner what his rights and duties are under a certain

will or contract. But in the case of a statute or ordinance, the court will tell

the petitioner whether or not the statute or ordinance is unconstitutional or

not. So after the court has done its duty, there is no more need for theprevailing party to return to the court in order to move for the execution.We do not apply Rule 39 to a petition for declaratory relief.

So, that is the nature of a declaratory relief that makes it a special civilaction. There is really no cause of action as contemplated in ordinary civil

actions where there is a right violated by the defendant.

Distinguish declaratory judgment from ordinary judgment. A: 

DECLARATORY JUDGMENT  ORDINARY JUDGMENT 

Declaratory judgment stands by

itself and no executory processfollows

Ordinary judgment involves

executor or coercive relief

Intended to determine any question

of construction or validity prior to

breach or violation

Intended to remedy or compensate

injuries already suffered

What are the requisites of an action for declaratory relief?

 A:1. Filing of Petition before there is a breach or violation2. Subject matter is a deed, will, contract, written instrument, statute,

executive order, regulation or ordinance

Note: The enumeration of the subject matter is exclusive, hence,

an action not based on any of the enumerated subject matters

cannot be the proper subject of declaratory relief. (Riano, CivilProcedure: A Restatement for the Bar, p. 613, 2009 ed .)

3. There is justiciable controversy4. Issue is ripe for judicial determination (Republic v. Orbecido III, G.R. No.

154380, October 5, 2005 ), i.e. litigation is imminent and inevitable

(Tolentino v. Board of Accountancy, G.R. No. L-3062, September 28, 1951)

5. Adequate relief is not available through other means or other forms of

action or proceedings (Ollada v. Central Bank, G.R. No. L-11357, May 31,1962)

6. The controversy is between persons whose interests are adverse.

Q: When may an action for declaratory relief be converted into anordinary action?

 A: After filing of petition for declaratory relief but before the final

termination of the case or rendition of judgment, a breach or violation of aninstrument, statute, executive order, regulation or ordinance takes place.

(Sec. 6, Rule 63)

Q: Distinguish Ordinary Civil Action from Special Civil Action for

Declaratory Relief.

 A:1. Ordinary civil action – plaintiff alleges that his right has been violated bythe defendant; judgment rendered is coercive in character; a writ of

execution may be executed against the defeated party.

2. Special civil action of declaratory relief –  an impending violation issufficient to file a declaratory relief; no execution may be issued; the court

merely makes a declaration.

The second procedural rule that we apply to declaratory relief which is not

followed in other special civil actions or in other ordinary civil actions is the

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authority of the court not to entertain a petition for declaratory relief. The

court can refuse to make a declaration of the rights of petitioner and

respondents on a deed or a contract on the ground that the judgment willnot bind the parties not impleaded in the petition for declaratory relief. This

shows that declaratory relief is not in rem. It is purely a petition inpersonam. It cannot bind other parties who had not been impleaded,

although these parties not so impleaded may be parties to the contract ormatter under litigation.

When may a court refuse to make a judicial declaration?

 A: Court may motu propio or upon motion refuse based on the followinggrounds:

1. A decision will not terminate the uncertainty or controversy which gaverise to the action2. Declaration or construction is not necessary and proper under the

circumstances

Note: Discretion to refuse does not extend to actions for reformation of aninstrument quiet title or remove clouds or to consolidated ownership in a

 pacto de retro sale. (Regalado, Remedial Law Compendium, Vol. I, p. 769, 2005 ed.)

Q: Can the court exercise discretion in application for declaratoryrelief?

 A:1. In declaratory relief, the court is given the discretion to act or not to acton the petition. It may therefore choose not to construe the instrument

sought to be construed or could refrain from declaring the rights of the

petitioner under the deed or the law. A refusal of the court to declare rights

or construe an instrument is actually the functional equivalent of thedismissal of the petition.2. On the other hand, the court does not have the discretion to refuse to act

with respect to actions described as similar remedies. Thus, in an action for

reformation of an instrument, to quiet or to consolidate ownership, thecourt cannot refuse to render a judgment (Sec. 5, Rule 63).

Q: Is a third-party complaint proper in an action for declaratory relief? A: No. Because in a third-party complaint, such person seeks to obtain

contribution, indemnity, subrogation or other reliefs and a declaratoryrelief is confined merely to the interpretation of the terms of a contract.(Commission of Customs v. Cloribel, G.R. No. 21036, June 30, 1977 ).

Q: What are the instances wherein a declaratory relief is unavailable? A:

1. To obtain judicial declaration of citizenship;

2. To establish illegitimate filiation and determine hereditary rights;3. The subject of the action is a court decision;

4. Actions to resolve political questions;5. Those determinative of the issues rather than a construction of definite

status, rights and relations;

6. Terms of assailed ordinances are not ambiguous or of doubtful meaning;7. In a petition to seek relief from a moot and academic question;8. Where the contract or statute on which action is based has been

breached;9. When the petition is based on the happening of a contingent event;10. When the petitioner is not the real party in interest; and

11. Where the administrative remedies have not yet been exhausted.

What is the competent court in a petition for declaratory relief?

Petition for declaratory relief is an action incapable of pecuniary

estimation; hence RTC is the proper venue. However, as to who is thecompetent court in “other similar remedies”, take into account the

provisions under BP 129:

~Reformation of instrument is cognizable solely by RTC as it is incapable ofpecuniary estimation.

~Quieting of Title is not necessarily under the RTC. Actions involving title

to property will depend on the value of the property. Under BP 129, actions

involving title to or possession of the property may be cognizable by an RTCor MTC depending upon the assessed value of the property involved.~Consolidation of title involves real property, hence, assessed value must

be alleged to vest jurisdiction.

Q: What is an action for quieting title to real property? A: This action is brought to remove a cloud on title to real property or any

interest therein. The action contemplates a situation where the instrumentor a record is apparently valid or effective but is in truth and in fact invalid,

ineffective, voidable or unenforceable, and may be prejudicial to said title to

real property. This action is then brought to remove a cloud on title to real

property or any interest therein. It may also be brought as a preventiveremedy to prevent a cloud from being cast upon title to real property or anyinterest therein (Art. 476, Civil Code).

Q: Is it required that the plaintiff be in the possession of the propertybefore an action is brought?

 A: The plaintiff need not be in possession of the real property before he may

bring the action as long as he can show that he has a legal or an equitable

title to the property which is the subject matter of the action (Art. 477, CivilCode).

Why do we need to file a special civil action for consolidation of title?

In execution of judgment under Rule 39, if a real property is sold at publicauction by virtue of a levy on execution, the highest bidder will notautomatically get a title in his own name, merely a certificate of sale from

the sheriff, which bidder must register such encumbrance in the RoD for

annotation to the title of the property. He must wait one year. If there is noredemption after one year from registration in the RoD, the sheriff will

issue a final deed of sale to the highest bidder and the highest bidder willhave the final deed of sale recorded in the RoD. The RoD will determinewhether the 1-year period has been met, and if there is no redemption, the

highest bidder will naturally be interested in securing the title to theproperty in his name. The old title (still in the name of the judgment debtor)

will be cancelled, and a new title will be issued in the name of the highestbidder. The highest bidder does not have to file an action for consolidation

of title. The highest bidder will only secure from the sheriff the final deed ofsale. The RoD will simply cancel the old title and issue a new title in the

name of the highest bidder. So, in Rule 39, there is no such thing as

consolidation of title as a special civil action.

This is also the procedure that is followed when a mortgage is foreclosed.

Once the mortgage is foreclosed, the property is sold under auction to thehighest bidder. The sheriff will issue a certificate of sale to be registered in

the RoD, and then wait for the 1-year redemption period to expire. If there

is no redemption, the sheriff will again issue a final deed of sale. And on the

basis of that final deed of sale, the RoD will cancel the title of the judgmentmortgagor and issue a new title in the name of the highest bidder.

So you will notice that under Rule 39 and even in the Mortgage Law, in

order to consolidate title, we do not require a special civil action toconsolidate title to be filed in court. The only public officer who is going to

deal with the interested party is the RoD, who has the ministerial duty to

issue a title if the papers are in order, in this case a final deed of sale.

Why do we require an action to consolidate under Article 1607 of the

NCC?NCC Art. 1607. In case of real property, the consolidation ofownership in the vendee by virtue of the failure of the vendor to

comply with the provisions of article 1616 shall not be recorded

in the Registry of Property without a judicial order, after thevendor has been duly heard.

NCC Art. 1616. The vendor cannot avail himself of the right ofrepurchase without returning to the vendee the price of the sale,

and in addition:(1) The expenses of the contract, and any other legitimate

payments made by reason of the sale;

(2) The necessary and useful expenses made on the thing sold.

This is to obtain an order from the court for the RoD to consolidate the title

of a property subject to sale with right to redeem, although the factualantecedents are the same. In the NCC Art. 1607, if there is a right toredemption, it is called conventional redemption, not a legal redemption as

that in Rule 39 and in foreclosure of mortgage. It is that classification ofredemption to conventional that makes the difference.

A conventional redemption has also a period for 1 year. When the 1-year

period expires, the buyer of the property cannot deal directly with the RoD.The reason why there is a need to go to court in conventional redemption is

that there is a provision in the NCC requiring it. It is explicitly stated inthe NCC that sale with the right to redeem is not a sale but an equitable

mortgage. So, insofar as the courts are concerned, if the contract enteredby the parties is a sale with right to redeem by way of conventional

redemption, the NCC assumes (a disputable presumption) that the real

agreement between the parties is not really a sale but an equitable

mortgage. Insofar as the NCC is concerned, the seller is not a genuine seller,only a mortgagor, and the buyer is the mortgagee of the property,notwithstanding the clear tone of the deed of sale with right of redemption.

Even the RoD will have to observe the disputable presumption given by theNCC that the deed of sale with right of redemption is one of an equitablemortgage. So if we go to the RoD for consolidation of title, the RoD will

simply tell the buyer of the property that the contract is one of equitable

mortgage, not of sale, so there is a need to get a decision from the courtdeclaring that contract is really a genuine contract of sale with right of

redemption. That is the only purpose of this special civil action of

consolidating of title under Art. 1607 NCC, to give to the buyer in sale with

right of redemption a chance to present evidence to defeat that disputablepresumption contained in the NCC. If he is able to convince the court thatthe sale is a genuine sale, the court will issue an order directing the RoD to

cancel the title of the seller and issue a new title in the name of the buyer.

But if the petitioner/buyer fails to defeat the disputable presumption thatthe contract is one of equitable mortgage, he can still obtain a title, but he

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must file another special civil action. This time, the buyer must file an action

for judicial foreclosure of mortgage. Even if he is not able to obtain a

decision under Rule 63 in order to consolidate title under Article 1607 NCC,that is not the end insofar as the buyer is concerned since he is an equitable

mortgagee, so he still has the right to foreclose the property. The onlymeans where he can foreclose the property is by availing of another special

civil action, which is called foreclosure of real estate mortgage under Rule68. But the procedure for judicial foreclosure of mortgage is quite lengthy,requiring 3 final orders of the foreclosure court, a sale via public auction for

the property, and even if we assume that the mortgagee will become the

highest bidder, he will get the title in his own name only after theconfirmation by the foreclosure court of the sale in his favor is duly entered.

As we will see later, judicial foreclosure of mortgage, as a complement to aspecial civil action for consolidation of title, is a 3-stage special civil action.Meaning to say, that the foreclosure court is expected to make three

decisions/orders before the mortgagee can obtain a title in his name.

Q: What is the purpose of an action brought to consolidate ownership?

 A:  The action brought to consolidate ownership is not for the purpose of

consolidating the ownership of the property in the person of the vendee orbuyer but for the registration of the property . The lapse of the

redemption period without the seller a retro exercising his right of

redemption consolidates ownership or title upon the person of the vendeeby operation of law. Art. 1607 requires the filing of the petition to

consolidate ownership because the law precludes the registration of the

consolidated title without judicial order (Cruz vs. Leis, 327 SCRA 570).

Note:  The concept of consolidation of ownership under Art. 1607, Civil

Code, has its origin in the substantive provisions of the law on sales. Under

the law, a contract of sale may be extinguished either by legal redemption(Art. 1619) or conventional redemption (Art. 1601). Legal redemption(retracto legal) is a statutory mandated redemption of a property

previously sold. For instance, a co-owner of a property may exercise the

right of redemption in case the shares of all the other co-owners or any ofthem are sold to a third person (Art. 1620). The owners of adjoining lands

shall have the right of redemption when a piece of rural land with a size of

one hectare or less is alienated (Art. 1621). Conventional redemption(pacto de retro) sale is one that is not mandated by the statute but onewhich takes place because of the stipulation of the parties to the sale. The

period of redemption may be fixed by the parties in which case the periodcannot exceed ten (10) years from the date of the contract. In the absence ofany agreement, the redemption period shall be four (4) years from the date

of the contract (Art. 1606). When the redemption is not made within the

period agreed upon, in case the subject matter of the sale is a real property,Art. 1607 provides that the consolidation of ownership in the vendee shall

not be recorded in the Registry of Property without a judicial order, after

the vendor has been duly heard.

If we compare this procedure governing the’ other similar remedies’ in Rule63, you will notice right away that while the court can outrightly refuse to

entertain a petition for declaratory relief, the court cannot outrightly refuse

a petition for consolidation of t itle, reformation of instrument or quieting oftitle. This is expressly provided in Rule 63. So, if the complaint is for theconsolidation of title, the court will have to follow the procedure outlined in

ordinary civil cases, which is not followed in declaratory relief. Indeclaratory relief, if the court notices that not all contracting parties areimpleaded in the case, it can refuse to entertain the petition as the judgment

will not resolve the lawsuits which may be filed as a result of this mistake.

If the court decides to entertain a petition for declaratory relief, and during

the pendency of the petition, the law took effect or there is a violation

committed as to the terms of the contract, the court shall order theconversion of declaratory relief into an ordinary civil action. Petitioner will

have to amend his complaint, as he will now allege that he has a right andthat right has been violated. The declaratory relief will cease to be a special

civil action. An ordinary civil action takes its place, which is not possible in

the actions covered by ‘other similar remedies.’ The court does not enjoydiscretion to outrightly dismiss a petition for consolidation of title,

reformation of instrument or quieting of title.

It is settled when a person doubts his citizenship, he cannot file a petitionfor declaratory relief. He can decide for himself right away. He needs not go

to court. He can register as a voter, which then shall be tantamount to hisrecognition as a Filipino. Or, he may opt to go through naturalization. If hefiles a petition for declaratory relief as to his citizenship, the court will

dismiss outrightly the petition. This is because declaratory relief is

interested only in declaration of rights and duties under a deed, will,contract or any other instrument. There is no deed, contract or other

instrument which will be involved in determining whether a person is a

Filipino or not. If he is not a Filipino citizen, then he may need to go through

naturalization or administrative way of acquiring citizenship, not through apetition for declaratory relief to be filed before the RTC.

RULE 64 VS. 65 AND SPECIAL CIVIL ACTIONS IN WRIT OF KALIKASAN

Rule 64 is always related to Rule 65. Although Rule 64 is a mode of review,

and the period to file for Rule 64 is different from that in Rule 65, Rule 64

itself provides that in availing of the mode of review provided in Rule 64,the petitioner should adopt the pleading in Rule 65, a special civil action for

certiorari, prohibition and mandamus. We have a review process from theCOMELEC and COA, it is not strictly a special civil action that will be filed, it

is still a mode of review, but using the pleadings outlined in Rule 65. 

Rule 64 speaks of a mode of appeal from a judgment or final order of

COMELEC and CoA. Although a mode of review, Rule 64 provides that

petitioner should adopt the pleading in Rule 65. Rule 65 is about aspecial civil action for certiorari, prohibition and mandamus.

Q: What is the mode of review for judgments and final orders of theCOMELEC and COA?

 A: The petition may be brought by the aggrieved party to the SupremeCourt on Certiorari under Rule 65, except otherwise provided.

Note: Rule 65 applies to the mode of review under Rule 64.Said mode of

review is based on Article IX-A of the 1987 Constitution providing that theproper mode of review is certiorari under Rule 65 to be filed before the

Supreme Court. Under R.A. 7902 the Court of Appeals has jurisdiction over

all adjudications of the Civil Service Commission.

Note: The order to comment under Sec. 6, Rule 64 in case the Supreme

Court finds the petition sufficient in form and substance is equivalent tosummons in ordinary civil action.

Q: What is the period for filing certiorari as referred to in Rule 64?

 A: The petition for certiorari referred to in Rule 64 shall be filed within 30days from notice of the judgment, final order or resolution   of theCOMELEC and the COA sought to be reviewed (Sec. 3, Rule 64).

Note: While Rule 64 makes reference to the certiorari under Rule 65, theperiod for the filing of the petition for certiorari assailing the

judgment of the COMELEC and COA is shorter than that provided

under Rule 65

Petitioner should not move for an extension for a petition under Rule

65. It is inextensible.

Cite some distinctions between certiorari in Rule 45, 64 and 65.

Rule 45 is appeal by certiorari

Rule 64 is appeal to SC with reference to Rule 65 pertaining to final orders,resolutions or decisions rendered by CoA or COMELEC acting as quasi-

judicial bodies.

Rule 65 is a special civil action of certiorari, prohibition and mandamus.

Rule 65 – competent court is RTC, CA or SCUnder COMELEC CODE, COMELEC has certiorari jurisdiction under Rule 65.

Sandiganbayan has certiorari jurisdiction under Rule 65.

Q: Distinguish Rule 64 from Rule 65. A: 

Rule 64  Rule 65 

Directed only to the judgments,

final orders or resolutions of the

COMELEC and COA;

Directed to any tribunal, board or

officers exercising judicial or quasi-

judicial functions;

Must be filed within 30 days from

notice of judgment or resolution

Must be filed within 60 days from

notice of judgment or resolution

If MR is denied, the aggrieved partymay file the petition within the

remaining period, but which shall

not be less than 5 days.

If MR is denied, the aggrieved partywill have another 60 days within

which to file the petition counted

from the notice of denial.

Distinguish certiorari under Rule 65 and certiorari under Rule 45.

 A: 

Rule 65  Rule 45 

Findings of fact of Court of Appealsare not conclusive or binding uponSC

GR: Findings of fact of CA areconclusive

Involves question of jurisdiction Involves question of law

Mode of appeal Mode of review

Directed against an interlocutoryorder of a court or where there isno appeal or any other plain, speedy

or adequate remedy

Involves the review of the judgmentfinal orders or resolutions of the CA,Sandiganbayan, CTA, RTC or other

courts

Filed not later than 60 days fromnotice of judgment, order or

resolution appealed from

Filed within 15 days from notice ofjudgment, final order or resolution

appealed fromUnless a writ of preliminary

injunction or temporary restrainingorder is issued, it does not stay the

challenged proceeding

Stays the judgment or order

appealed from

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The judge, court, quasi-judicialagency, tribunal, corporation,

board, officer or person shall bepublic respondents who areimpleaded in the action

The appellant and the appellee arethe original parties to the action,

and the lower court or quasi-judicial agency is not impleaded

Motion for reconsideration or for

new trial is required.If a motion for reconsideration or

new trial is filed, another 60 days

shall be given to the petitioner ( A.M.No. 02-03-SC )

Motion for reconsideration is notrequired

Court exercises original jurisdiction The court is in the exercise of its

appellate jurisdiction and power ofreview.

Filed with the RTC, CA,

Sandiganbayan or COMELEC

Filed with the SC

Note: The remedies of appeal and certiorari are mutually exclusive and not

alternative or successive. The antithetic character of appeal and certiorarihas been generally recognized and observed save only on those rareinstances when appeal is satisfactorily shown to be an inadequate remedy.

Thus, a petitioner must show valid reasons why the issues raised in hispetition for certiorari could not have been raised on appeal (Banco FilipinoSavings and Mortgage Bank vs. CA, 334 SCRA 305).

Certiorari as a Mode of Appeal(Rule 45) 

Certiorari as a Special Civil Action(Rule 65) 

Called petition for review oncertiorari, is a mode of appeal,

which is but a continuation of theappellate process over the original

case;

A special civil action that is anoriginal action and not a mode of

appeal, and not a part of theappellate process but an

independent action.

Seeks to review final judgments or

final orders;

May be directed against an

interlocutory order of the court or

where not appeal or plain or speedyremedy available in the ordinary

course of law

DISTINCTIONS BETWEEN CERTIORARI UNDER RULES 45, 64, AND 65

Rule 65

Certiorari,Prohibition andMandamus

Rule 64 for COMELEC

and COA Review of judgment,

final orders orresolutions of othertribunals, persons

and officer (Rule 45) 

Special civil action for

certiorari, prohibition

and mandamus;

A special civil actionthat is an original

action and not a mode

of appeal, and not apart of the appellate

process but an

independent action.

Appeal to the SC using

Rule 65 from the

COMELEC En Banc

Petition for Review or

Appeal by Certiorari;

Called petition for

review on certiorari, isa mode of appeal,

which is but a

continuation of theappellate process over

the original case;

May be directed

against aninterlocutory order of

the court or where notappeal or plain or

speedy remedy

available in theordinary course of law

Directed only to the

judgments, finalorders or resolutions

of the COMELEC andCOA;

Rules of the COMELECstates that onlydecisions of the En

Banc shall beappealable in the SC)

and CoA acting as

quasi-judicial bodies(final orders orjudgments

Review of judgment,

final orders orresolutions of the CA,

Sandiganbayan, CTA,RTC or other courts

Under BP 129: RTC, CA

or SC has concurrentand originaljurisdiction;

under special laws:COMELEC andSandiganbayan has

special certiorari

jurisdiction

SC CA, SC

BP 129: Original andConcurrent

Jurisdiction (RTC, CAand SC)

Appellate Appellate

The petitioner has a

choice to file in the

Failure of petitioner to

comply with the

SC may deny the

decision motu propio

RTC, and if an adversedecision is given, he

can elevate it to theCA, and then the SC. Ifdirectly filed in the SC,

SC has the discretionwhether to

outrightly dismissthe petition or

remand it to the CA

because ofinsufficiency in form

and/or substance  inaccordance with the

principle of hierarchyof courts.

formal requirementsunder Sec. 5 Rule 64

will cause the petitionto be dismissed.

on the ground that theappeal is without

merit, or is prosecutedmanifestly for delay,or that the questions

raised therein are toounsubstantial to

require consideration.

Raises questions ofjurisdiction because a

tribunal, board or

officer exercisingjudicial or quasi-

judicial functions hasacted without

jurisdiction or in

excess of jurisdictionor with grave abuse of

discretion amounting

to lack of jurisdiction;

Petition is based onquestions of law

Petition is based onquestions of law

Filed not later than 60

days from notice ofjudgment, order or

resolution appealedfrom

Filed within 30 days

from notice ofjudgment, final order

or resolution sought tobe reviewed

Filed within 15 days

from notice ofjudgment, final order

or resolution appealedfrom

Extension no longerallowed; (Motion for

extension of period tofile is not allowed)

No extension of periodmentioned in Rule 64

Extension of 30 daysmay be granted for

justifiable reasons

Motion forreconsideration or for

new trial is required.

If a motion for

reconsideration or

new trial is filed,another 60 days shall

be given to the

petitioner (FreshPeriod Rule/Neypes

Doctrine) ( A.M. No. 02-03-SC )

The filing of Motion forreconsideration or for

new trial, if allowed

under the proceduralrules of the

Commission, shall

interrupt period fixed

Motion forreconsideration is notrequired

Unless a writ ofpreliminary injunction

or temporaryrestraining order is

issued, it does not stay

the challengedproceeding

Does not stay theexecution unless SC

shall direct otherwiseupon such terms as it

may deem just

Stays the judgment ororder appealed from

The judge, court,quasi-judicial agency,

tribunal, corporation,

board, officer orperson shall be public

respondents who areimpleaded in the

action

The COMELEC andCOA shall be public

respondents who are

impleaded in theaction

The appellant and theappellee are the

original parties to the

action, and the lowercourt or quasi-judicial

agency is notimpleaded

Court exercises

original jurisdiction

The court is in the

exercise of its

appellate jurisdictionand power of review

The court is in the

exercise of its

appellate jurisdictionand power of review

SC, CA and RTC have original jurisdiction over petitions under Rule 65.Thus, there is concurrence of jurisdiction among these three courts.Theoretically, petitioner has a choice as to where to file. The law does not

compel him to file a petition first in the RTC, then the CA, and finally in the

SC. There is no such provision in BP 129 and the Constitution.

However, SC had sought to prevent being swamped by petitions under Rule65. To remedy the abuse by petitioners, SC devised the principle of

hierarchy of courts under Section 4 of Rule 65. This will limit the choice that

theoretically a petitioner has. Effectively, petitioners are prohibited fromgoing directly to the SC under Rule 65. Petitioner must file first in the RTC

or in the CA. If a petition was filed directly in SC, it will outrightly dismiss apetition if such petition is insufficient in form or substance. Even if the

petition is well-crafted, a single omission, such as the PTR number, shalldismiss it for being insufficient in form.

Q: What are the grounds for the outright dismissal of the petition?

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 A: (Sec. 6, Rule 64)

1. Petition is not sufficient in form and substance (Sec. 5, Rule 64)

2. Petition was filed for purpose of delay3. Issue is unsubstantial

Q: What are the grounds for the fi ling of a petition for certiorari ?

 A: That a tribunal, board or officer exercising judicial or quasi-judicialfunctions acted:1. Without or in excess of jurisdiction

2. In grave abuse of discretion amounting to lack or excess of jurisdiction

Note: It is commenced by the filing of a verified petition accompanied by

certified true copy of the judgment, order or resolution subject thereof,copies of all pleadings and documents relevant and pertinent thereto and asworn certification of non-forum shopping. (Sec. 1, Rule 65 ).

Q: When is certiorari under Rule 65 unavailable?

 A:1. Summary procedure

2. Writ of Amparo3. Writ of Habeas Data

4. Small claims cases (Riano, Civil Procedure: A Restatement for the Bar, p.629, 2009 ed .)

Q: When is prohibition issued? A:GR: Prohibition does not ordinarily lie to restrain an act which is already

 fait accompli.

XPN: It will lie to prevent the creation of a new province by those in thecorridors of power who could avoid judicial intervention and review bymerely speedily and stealthily completing the commission of such illegality.

(Tan v. COMELEC, G.R. No. 73155, July 11, 1986)

Note: Prohibition and not mandamus, is the remedy where a motion to

dismiss is wrongfully denied (Enriquez v. Macadaeg, G.R. No. L-2422, Sept.

30, 1949)

Is it fatal for a petitioner to file a petition for certiorari, although the

true remedy is a petition for prohibition?For instance, where a motion to dismiss is filed by the defendant on theground of absence of jurisdiction over the subject matter of the case. Said

motion was denied. The defendant could appeal to the higher court via a

petition under Rule 65.

We do not follow Rule 16 which tells the defendant that when his motion to

dismiss is denied, he has to file an answer within the remaining period. TheSC has recognized the propriety of filing a petition for certiorari, prohibition

or mandamus if a motion to dismiss founded on lack of jurisdiction over thesubject matter has been denied.

The petitioner files a petition for certiorari in the CA or SC. The trueremedy, according to the SC, is a petition for prohibition, not a certiorari.From the facts stated above, a prohibition is the correct remedy. As the

petitioner/defendant had filed a petition for certiorari, can CA/SCoutrightly deny the petition because it is the wrong remedy? SC said no. Thepetition for certiorari should instead be treated as a petition for prohibition.

So it seems under this attitude of liberal interpretation of statutes, it is notfatal for a petitioner to choose the remedy provided under Rule 65.

Remember that certiorari is different from prohibition and mandamus,

although they are all contained in one Rule. The SC will simply treat thepetition for certiorari as a petition for prohibition. If you will analyze the

requisites of a petition for certiorari and prohibition, they are practicallythe same. There is not much difference between the concept given in

Section 1 Rule 65 (Certiorari) and Section 2 Rule 65 (Prohibition). The onlydifferences is that in certiorari, the petitioner asks that the judgment or

interlocutory order be annulled or set aside; in prohibition, the petitioner

simply asks the prohibition court to prevent the respondent court from

going ahead with the proceedings, and in prohibiting the respondent court,the prohibition court will be effectively telling the respondent court that thedenial, the interlocutory order or the judgment rendered therein should be

set aside and annulled because it is a wrong final order or wronginterlocutory order.

CERTIORARI  PROHIBITION  MANDAMUS 

That the petition is

directed against atribunal, board or

officer exercisingjudicial or quasi-

judicial functions;

The petition is

directed against atribunal, corporation,

board or personexercising judicial,

quasi-judicial, orministerial functions;

The plaintiff has a

clear legal right to theact demanded;

The tribunal, board orofficer has acted

without, or in excess ofjurisdiction or withabuse of discretion

amounting to lack orexcess or jurisdiction

The tribunal,corporation, board or

person must haveacted without or inexcess of jurisdiction

or with grave abuse ofdiscretion amounting

to lack of jurisdiction;

It must be the duty ofthe defendant to

perform the act, whichis ministerial and notdiscretionary, because

the same is mandatedby law;

There is no appeal or

any plain, speedy andadequate remedy inthe ordinary course of

law.

There is no appeal or

any plain, speedy andadequate remedy inthe ordinary course of

law.

The defendant

unlawfully neglectsthe performance of theduty enjoined by law;

Accompanied by acertified true copy of

the judgment or order

subject of the petition,copies of all pleadingsand documents

relevant and pertinentthereto, and sworncertification of non-

forum shopping under

Rule 46.

Accompanied by acertified true copy of

the judgment or order

subject of the petition,copies of all pleadingsand documents

relevant and pertinentthereto, and sworncertification of non-

forum shopping under

Rule 46.

There is no appeal orany plain, speedy and

adequate remedy in

the ordinary course oflaw.

Prohibition is an

extraordinary writ

commanding atribunal, corporation,board or person,

whether exercisingjudicial, quasi-judicialor ministerial

functions, to desist

from furtherproceedings when said

proceedings arewithout or in excess of

its jurisdiction, or with

abuse of its discretion,there being no appeal

or any other plain,

speedy and adequateremedy in theordinary course of law

(Sec. 2, Rule 65).

Mandamus is an

extraordinary writ

commanding atribunal, corporation,board or person, to do

an act required to bedone:(a) When he

unlawfully neglects

the performance of anact which the law

specifically enjoins asa duty, and there is no

other plain, speedy

and adequate remedyin the ordinary course

of law; or

(b) When oneunlawfully excludesanother from the use

and enjoyment of aright or office to which

the other is entitled(Sec. 3, Rule 65).

Main action for

injunction seeks to

enjoin the defendantfrom the commissionor continuance of a

specific act, or tocompel a particular actin violation of the

rights of the applicant.

Preliminary injunctionis a provisional

remedy to preservethe status quo and

prevent future wrongs

in order to preserveand protect certain

interests or rights

during the pendencyof an action.

Special civil action Special civil action Ordinary civil action

To prevent an

encroachment, excess,usurpation or

assumption ofjurisdiction;

To compel the

performance of aministerial and legal

duty;

For the defendant

either to refrain froman act or to perform

not necessarily a legaland ministerial duty;

May be directedagainst entities

exercising judicial or

quasi-judicial, orministerial functions

May be directedagainst judicial and

non-judicial entities

Directed against aparty

Extends to

discretionary

functions

Extends only to

ministerial functions

Does not necessarily

extend to ministerial,

discretionary or legalfunctions;

Always the mainaction

Always the mainaction

May be the mainaction or just a

provisional remedy

May be brought in theSupreme Court, Court

of Appeals,Sandiganbayan, or in

the Regional Trial

Court which hasjurisdiction over the

territorial area where

respondent resides.

May be brought in theSupreme Court, Court

of Appeals,Sandiganbayan, or in

the Regional Trial

Court which hasjurisdiction over the

territorial area where

respondent resides.

May be brought in theRegional Trial Court

which has jurisdictionover the territorial

area where

respondent resides.

But in our example, when a motion to dismiss founded on lack ofjurisdiction is denied, it is also correct for the petitioner to make use rightaway of Rule 65. If he immediately files a petition for certiorari either in the

CA or SC, that petition for certiorari will not be denied because it is notcompliant with the requirements of Sections 1 and 2 Rule 65, that there is

“no appeal, or any plain, speedy, and adequate remedy in the ordinarycourse of law.” This phrase serves as an essential requisite before we canproperly file a petition under Rule 65. In fact, it is this phrase which is the

source of the principle that we learned that in Rule 65, a motion for

reconsideration is a MUST. This is not expressly mentioned in Rule 65.

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Motion for reconsideration is not even mentioned in Rule 65.  A motion forreconsideration is always a plain, speedy and adequate remedy in the

ordinary course of law.

Note: General Rule: Motion for reconsideration is a conditionprecedent in the filing of a petition for certiorari under Rule 65.

Motion for reconsideration is a plain and speedy remedy availableprior to petition under Rule 65.

In Rule 65, if we examine the caption of a petition under Rule 65, we will

discover that there are at least 2 respondents, one is the privaterespondent, the other is the public respondent. The public respondent is the

agency, court or officer/person who exercises judicial or quasi-judicialfunctions (in case of prohibition, public respondent is the agency, court orofficer/person who exercises judicial , quasi-judicial or ministerial

functions). In other words, we always involve a public officer or agency orcourt on or officer/person who exercises judicial , quasi-judicial or

ministerial functions under Rule 65. We cannot get a petition for certiorariunder Rule 65 with only the private respondent. We must implead the

public respondent.

Although the rules describe the public respondent as a nominal party, it is

in fact an indispensible party under Rule 65, because it is the final order orjudgment that it had issued that is being assailed or challenged. The reason

why Rule 65 calls the public respondent only as a nominal party is because

in Rule 65 itself, it is provided that the public respondent is not authorizedto enter his appearance and to defend himself before the certiorari court.

The fate of the public respondent lies in the hands of the private

respondent. It is the private respondent who will argue before the higher

court and explain the correctness of the interlocutory order or judgmentthat is being assailed under Rule 65. It is only in rare instances where thehigher court will allow the public respondent to argue on his own behalf or

submit his own papers in the certiorari court. He should always rely on the

papers and pleadings that are submitted by the private respondent.

Because of the inherent nature of the petition under Rule 65, that there is

always a public respondent, the petition under Rule 65 does not have tocomply with that condition precedent of prior barangay conciliation. This isone of the exceptions given in the LGC, where the action involves a

government officer or employee in the performance of his duty.

And the grounds of course are very strictly interpreted. In Rule 65 Sections

1 and 2, the ground is that the public respondent has acted without

jurisdiction, in excess of jurisdiction or with grave abuse of discretionamounting to lack of jurisdiction.

The definition of Grave abuse of discretion amounting to lack or excess ofjurisdiction is a very simple definition given by the SC, when the public

respondent acts whimsically, despotic and/or arbitrarily. The SC did notelaborate on whimsical, despotic or arbitrary, so it would have to be

resolved on a case-to-case basis.

For instance, a case is pending in the RTC for the collection of anindebtedness. The plaintiff applies for the issuance of a writ of

preliminary attachment. The court grants and issues the writ. Doesthe RTC act arbitrarily, acting gravely in abuse of its discretion if itgrants and issues the writ of preliminary attachment?

Yes, if that complaint does not fall any one of the cases mentioned in Rule57:

(a) In an action for the recovery of a specified

amount of money or damages, other than moral and

exemplary, on a cause of action arising from law,contract, quasi-contract, delict or quasi-delict against

a party who is about to depart from the Philippineswith intent to defraud his creditors;

(b) In an action for money or property embezzled orfraudulently misapplied or converted to his own use

by a public officer, or an officer of a corporation, or

an attorney, factor, broker, agent, or clerk, in the

course of his employment as such, or by any otherperson in a fiduciary capacity, or for a willfulviolation of duty;

(c) In an action to recover the possession of propertyunjustly or fraudulently taken, detained orconverted, when the property, or any part thereof,

has been concealed, removed, or disposed of to

prevent its being found or taken by the applicant oran authorized person;

(d) In an action against a party who has been guilty

of a fraud in contracting the debt or incurring the

obligation upon which the action is brought, or in theperformance thereof;(e) In an action against a party who has removed or

disposed of his property, or is about to do so, with

intent to defraud his creditors; or

(f) In an action against a party who does not reside

and is not found in the Philippines, or on whom

summons may be served by publication. 

No, if the case does not fall under the above-mentioned cases under Rule 57Section 1. Thus, the court would have acted in grave abuse of its discretion

amounting to lack or excess of jurisdiction.

Hence, in the issuance of provisionary remedies or orders, it could happen

that a court will gravely abuse its discretion amounting to lack or excess of

jurisdiction, a very despotic and arbitrary act of a court.

For instance, the defendant files an answer containing a negative defenseproperly crafted. Then the court grants a summary judgment or rendered ajudgment on the pleadings. That is an arbitrary act of the court. But if the

decision rendered is a summary judgment or judgment on the pleadings,Rule 65 may not be a correct remedy. This is because under our Rules,

because from a judgment, the remedy is to appeal from the judgment.Whenever there is an appeal available, you better forget Rule 65, because it

is available only when there is no appeal or other plain, speedy andadequate remedy available in the ordinary course of law. This is the rule

that we must always follow. Although, there are rare instances that the SC

allowed a petition for Rule 65 although appeal is still available. If you willremember, there are certain exceptions to the general rule that a motion for

reconsideration is a must before making use of Rule 65. There are also rare

instances where the court allowed a petition under Rule 65 even if appealwas still available, the reason being that in certain instances, appeal is not a

plain, speedy and adequate remedy available in the ordinary course of law.

Q: Is it an absolute rule that before recourse to certiorari is taken amotion for reconsideration must be filed?

 A:

GR: Petition for certiorari will not be entertained unless the public

respondent has been given first the opportunity through a motion forreconsideration to correct the error being imputed to him.

XPNs: A prior motion for reconsideration is not necessary to entertaina petition for certiorari where:

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

jurisdiction;2. Questions raised in the certiorari proceedings have beenduly raised and

passed upon by the lower court, or are the same as those

raised and passed upon in the lower court;3. 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 ofthe action is perishable;

4. Under the circumstances, a motion for reconsiderationwould be useless;

5. Petitioner was deprived of due process and there is

extreme urgency for relief;6. In a criminal case, relief from an order of arrest is urgentand the granting of such relief by the trial court is

improbable;7. Proceedings in the lower court are a nullity for lack ofdue process;

8. Proceedings were ex parte or in which the petitioner hadno opportunity to object; and9. Issue raised is one purely of law or where public interest

is involved.

Can a petition under Rule 65 that is filed to challenge an interlocutoryorder or judgment be enough to suspend all proceedings in the lower

court and await the decision of the certiorari court on the petition for

certiorari?If the litigant is aggrieved by an order or judgment that is

inappealable, it is not allowed under Rule 65 for the trial court to

suspend proceedings in the case pending before it. Proceedings willonly be suspended if the higher court issues TRO or writ of PI. Thus, it

is practical to ask along with the petition for an issuance of TRO or

writ of PI.

Take note of the modifications in Rule 65 concerning the abuse of parties

and lawyers in using petition for certiorari, prohibition or mandamus. It is

under the principle of res ipsa loquitur. In the past, lawyers usually filesuch petitions whenever motions are denied, citing abuse of discretion

whereas under Rule 65, the required ground is GRAVE ABUSE of

discretion. In order to prevent this practice, SC incorporated in Rule

65 the application of the civil law principle of res ipsa loquitur. If alawyer and his client will go up to CA or SC under Rule 65, and thecourt resolves that the petition was manifestly without merit or for

purposes of delay, the lawyer and client will be held in contempt of

court for filing such manifestly unmeritorious petition or to pay asolidary debtor treble costs, and there may be administrativesanctions against the lawyer.

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If the writ of mandamus is issued as requested, there is propriety of

awarding damages in favor of the petitioner, so it is automatically

awarded under Section 3 of Rule 65.In petitions for certiorari,petitioner may include petition for award of damages. If proven, SCmay award such damages.

SEC. 3. Petition for mandamus.—When anytribunal, corporation, board, officer or person

unlawfully neglects the performance of an act which

the law specifically enjoins as a duty resulting froman office, trust, or station, or unlawfully excludes

another from the use and enjoyment of a right oroffice to which such other is entitled, and there is noother plain, speedy and adequate remedy in the

ordinary course of law, the person aggrieved therebymay file a verified petition in the proper court,

alleging the facts with certainty and praying thatjudgment be rendered commanding the respondent,

immediately or at some other time to be specified bythe court, to do the act required to be done to protect

the rights of the petitioner, and to pay the damagessustained by the petitioner by reason of thewrongful acts of the respondent.

The petition shall also contain a sworn certificationof non-forum shopping as provided in the third

paragraph of section 3, Rule 46.

Rule 65 does not specifically provide for award of damages under Sections1 and 2 (Certiorari and Prohibition respectively). But the SC resolved that inproper instances, if there is a prayer for damages incorporated in a petition

for certiorari or prohibition, there is nothing wrong if the court grants the

writ of certiorari or mandamus and award damages in favor of thepetitioner, although none is provided for it in Sections 1 and 2.The

justification given by the SC is that in a petition for certiorari or

prohibition, there is always that prayer for any additional relief whichthe court will deem just and equitable.  SC said that is enoughjustification for the award of damages, so long as the petitioner is able to

present proof of damages.

Why do we consider Rule 65 as a special civil action?

1. Procedurally, the court can dismiss the petition for insufficiency in

form and substance, which has a very broad in interpretation. So even ifthe SC has jurisdiction, it can outrightly dismiss the petition.

2.If the court did not dismiss the petition outrightly, the court may notissue summons. It may instead issue an order to comment . Once a

comment is submitted, the court acquires jurisdiction over that party.(Similarly, no summons is issued in cases of interpleader and declaratory

relief and other similar remedies.)

3. Since the court does not issue summons, issuing instead a plain order tocomment within a fixed period, if no comment is submitted, the court

cannot declare respondent in default .

4. Under Rule 65, the court will not conduct a pre-trial or a trial . The

issue is a very limited issue. It is not only a mere question of law raised inRule 65. That question of law is one of law that it is limited to the issueof jurisdiction (without or in excess with grave abuse of discretion). There

could be several questions of law that could be raised. But, that question of

law may not involve jurisdiction at all. But in Rule 65, the issue is one of lawand it is limited to the issue of jurisdiction, whether or not the respondent

committed grave abuse of discretion amounting to lack or excess ofjurisdiction.

Also , the submission of the petition or Order to comment requires parties

to submit the pleadings already submitted in the lower courts. So, the court

will just analyze the documents presented before it via the documents

attached to the petition or the comment, and thus there is no need for atrial.

What is the remedy of the aggrieved party in a petition for certiorari?The remedy is appeal, either by petition for review or petition on certiorari(Rule 45).

TABLE OF COMPARISON FOR THE WRITS OF HABEAS CORPUS, AMPARO, HABEAS DATA AND KALIKASAN

HABEAS

CORPUS  

 AMPARO  HABEAS DATA  KALIKASAN  

Literal interpretation You have the

body

To protect You have the

data

It is a Filipino

word which

means “nature”in English

Governing Rule

Rule 102 A.M. No. 07-9-12-SC

A.M. No. 08-1-16-SC

A.M. No. 09-6-8-SC

Description 

Writ directed to

the persondetaininganother,

commanding

him to producethe body of the

prisoner at adesignated time

and place, withthe day andcause of his

capture and

detention, to do,submit to, andreceive

whatsoever thecourt or judgeawarding the

writ shall

consider in thatbehalf.

Remedy

available to anyperson whoseright to life,

liberty, and

security isviolated or

threatened withviolation by an

unlawful act oromission of apublic official or

employee, or of

a privateindividual orentity.

Remedy

available to anyperson whoseright to privacy

in life, liberty or

security isviolated or

threatened byan unlawful act

or omission of apublic official oremployee, or of

a private

individual orentity engagedin the gathering,

collecting, orstoring of dataor information

regarding the

person, family,home and

correspondence

of the aggrievedparty.

Special remedy

availableto a natural orjuridical person,

entity

authorized by

law, people’sorganization,non-

governmentalorganization, orany public

interest group

accredited by orregistered withany government

agency, onbehalf ofpersons whose

constitutional

right to abalanced and

healthful

ecology isviolated, or

threatened with

violation by anunlawful act or

omission of apublic official or

employee, or

privateindividual orentity, involving

environmentaldamage of suchmagnitude as to

prejudice the

life, health orproperty of

inhabitants intwo or more

cities or

provinces.Coverage 

Involves theright to libertyof and rightful

custody by theaggrieved party.

Involves theright to life,liberty, and

security of theaggrieved partyand covers

extralegalkillings andenforced

disappearances.

Involves theright to privacyin life, liberty,

and security ofthe aggrievedparty and

coversextralegalkillings and

enforced

disappearances.

Constitutionalright to abalanced and

healthfulecology.

Rights violated  

There is anactual violation

of the aggrieved

party’s right.

There is anactual or

threatenedviolation of the

aggrieved

party’s right.

There is anactual or

threatenedviolation of the

aggrieved

party’s right.

There is anactual or

threatenedviolation of

one’s right to ahealthful and

balancedecology

involvingenvironmentaldamage.

Where to file 

RTC or any

judge thereof,

CA or anymember thereof

in instancesauthorized by

law; or SC or

any memberthereof.

RTC of the place

where the

threat, act oromission was

committed orany of its

elements

occurred; SB orany justice

thereof; CA orany justice

thereof; SC orany justice

thereof.

RTC where the

petitioner or

respondentresides, or that

which hasjurisdiction

over the place

where the dataor information

is gathered,collected or

stored, at theoption of the

petitioner; or

In SC or any

stations of the

CA.

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with SC, CA orSB when the

action concernspublic data filesor government

offices.

Who may file a petition 

1. Party forwhose relief it is

intended; or

2. Any personon his behalf

In the following

order:1. Any member

of theimmediate

family2. Anyascendant,

descendant, or

collateralrelative of theaggrieved party

within the 4thcivil degree ofconsanguinity

or affinity

3. Anyconcerned

citizen,

organization,association or

institution

In the following

order:1. Any

aggrieved party;2. However, in

cases ofextralegalkillings and

enforced

disappearances:a. Any memberof the

immediatefamilyb. Any

ascendant,

descendant, orcollateral

relative of the

aggrieved partywithin the 4th

civil degree of

consanguinityor affinity

A natural or

juridical person,entity

authorized by

law, people’s

organization,non-governmental

organization, or

any publicinterestgroup

accredited by orregistered withany government

agency.

Respondent  

May or may not

be an officer.

Public official or

employee or aprivateindividual or

entity.

Public official or

employee or aprivateindividual or

entity engagedin the gathering,collecting or

storing of data

or informationregarding the

person, family,

home andcorrespondence

of the aggrieved

party.

Public official or

employee,privateindividual or

entity.

HABEAS

CORPUS   AMPARO  HABEAS DATA  KALIKASAN  

Enforceability of the writ  

If granted by SC

or CA:

enforceableanywhere In the

Philippines;If granted by

RTC:

enforceableonly within thejudicial district

Enforceable anywhere in the

Philippines regardless of who

issued the same

Enforceable

anywhere in the

Philippines

Docket fees 

Payment is

requiredNote: Rule onindigentpetitioner

applies.

Petitioner is

exempted frompayment

Payment is

required.Note: Rule onindigentpetitioner

applies.

Petitioner is

exempted frompayment

 Service of writ  

Served upon theperson to whomit is directed,

and if not found

or has not theprisoner in his

custody, to theother person

having or

exercising suchcustody

Served upon therespondentpersonally; or

substituted

service

Served upon therespondentpersonally; or

substituted

service

Served upon therespondentpersonally; or

substituted

service.

Person who makes the return Officer bywhom the

prisoner isimprisoned orthe person in

whose custody

Respondent Respondent Respondent

the prisoner isfound

When to file a return 

On the day

specified in thewrit

Within 5

working daysafter service ofthe writ, the

respondent

shall file averified written

return togetherwith supporting

affidavits.

The respondent

shall file averified writtenreturn together

with supporting

affidavits within5 working days

from service ofthe writ, which

period may bereasonablyextended by the

Court for

justifiablereasons.

Within non-

extendibleperiod of 10days after the

service of writ.

Return 

If granted bythe SC or CA:

returnablebefore the courtor any member

or before RTC

or any judgethereof;

If granted byRTC: returnable

before suchcourt

If issued byRTC: returnable

before suchcourt;If issued by SB

or CA or any of

their justices:returnable

before suchcourt or to any

RTC of the placewhere thethreat, act or

omission was

committed orany of itselements

occurred;If issued by SCor any of its

justices:

returnablebefore such

court, or before

SB,CA, or to any

RTC of the place

where thethreat, act or

omission wascommitted orany of its

elementsoccurred

If issued byRTC: returnable

before suchcourt;If issued by SB

or CA or any of

their justices:returnable

before suchcourt or to any

RTC of the placewhere thepetitioner or

respondent

resides or thatwhich hasjurisdiction

over the placewhere the dataor information

is gathered,

collected orstored;

If issued by SC

or any of itsjustices:

returnable

before suchcourt, or before

SB, CA, or to anyRTC of the placewhere the

petitioner orrespondentresides or that

which hasjurisdictionover the place

where the data

or informationis gathered,

collected orstored

If issued by SC,returnable

before suchcourt or CA.

General denial  

Not prohibited. Not allowed. Not allowed. Not allowed.

HABEASCORPUS  

 AMPARO  HABEAS DATA  KALIKASAN  

Liability of the person to whom the writ is directed if he refuses to make

a return 

Forfeit to theaggrieved party

the sum of

P1000, and mayalso be

punished for

contempt.

Imprisonmentor fine for

committing

contempt.

Imprisonmentor fine for

committing

contempt.

Indirectcontempt.

Hearing 

Date and time of

hearing isspecified in the

writ.

Summary

hearing shall beconducted not

later than 7days from thedate of issuanceof the writ.

Summary

hearing shall beconducted not

later than 10working daysfrom the date ofissuance of the

writ.

The hearing

including thepreliminary

conference shallnot extendbeyond sixty(60) days and

shall be giventhe samepriority as

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petitions for thewrits of habeas

corpus, amparoand habeas

data.

Period of appeal  

Within 48 hours

from notice of

the judgment orfinal order

appealed from.

5 working days

from the date of

notice of theadverse

judgment.

5 working days

from the date of

notice of thejudgment or

final order.

Within fifteen

(15) days from

the date ofnotice of the

adversejudgment or

denial of motionforreconsideration.

Prohibited pleadings 

None 1. Motion to dismiss;2. Motion for extension of time to

file opposition, affidavit, positionpaper and other pleadings;3. Dilatory motion for

postponement;4. Motion for a bill of particulars;5. Counterclaim or cross - claim;

6. Third - party complaint;

7. Reply;8. Motion to declare respondent in

default;9. Intervention;

10. Memorandum;11. Motion for reconsideration ofinterlocutory orders or interim

relief orders; and

12. Petition for certiorari,mandamus or prohibition againstany interlocutory order.

1. Motion todismiss;

2. Motion forextension oftime to file

return;3. Motion forpostponement;

4. Motion for a

bill ofparticulars;

5. Counterclaimor cross-claim;

6. Third-partycomplaint;7. Reply; and

8. Motion to

declarerespondent indefault.

SPECIAL CIVIL ACTIONS IN THE KALIKASAN CIRCULAR

The Writ of Kalikasan is a mini RoC for environmental cases. By itself, thecircular appears to contain all rules pertaining to civil cases arising out ofKalikasan laws as well as criminal procedures.

2 special civil actions:~Writ of Kalikasan

~Petition for Continuing Mandamus

Why does the Kalikasan circular consider a petition for a writ ofkalikasan and continuing mandamus as a special civil action?

It is because of the fact that although these are governed by ordinary rulesof procedure, there are instances where there is a special procedure which

has to be followed in hearing said special proceeding.

A Petition of a Writ of Kalikasan as a special civil action is entirely different

from ordinary civil cases. The sheer number of parties, as well as themagnitude of the prejudice that could be suffered by the petitioners (the

threat to their life, liberty and property),is such that they are the

inhabitants of at least 2 or more provinces or cities. If we talk aboutnumbers, the actual number of inhabitants in a typical province couldnumber in the hundreds of thousands. This is a perfect example of a class

suit. They stand to be prejudiced in their right to their life, liberty andproperty by a violation or a threat to violate environmental laws by anatural person or juridical entity. Even if there is just a petitioner, a

juridical entity, an NGO or an accredited public interest group, they can file

a petition on behalf of two or more provinces or cities. The parties are sonumerous that it will be impractical for all of them to be brought before the

court.

To make matters simple procedurally, take note that the procedures in

Habeas Corpus and Amparo as special proceedings are practically the sameprocedures followed in Kalikasan cases.

Upon the filing of the petition, and the court analyzes the petition, and thecourt is convinced of the need for the writ to be issued, the writ will beimmediately issued without need of hearing the side of the respondents.

The writ can be issued right away by the court as long as the allegations inthe petition are complete, that petition is meritorious by itself. The courtmay issue also an order requiring respondents to file a VERIFIED RETURN

(not an answer). In writ of HC and Amparo, return is also required to befiled by respondents. The Return must contain the respondent’sexplanation as to his side. The writ is a special civil action in this contest

because the writ is issued right away, even before the respondent is given

the chance to give his side, even before the respondent can file his return.

The Kalikasan circular has lots of sections as to the use of discovery

measures. But, they are treated not as discovery measures, but as

provisional orders in the Kalikasan circular.

After the issuance of the writ of Kalikasan, even without hearing therespondent, the Kalikasan court can issue a provisional remedy called cease

and desist order, which is similar to a TRO in civil cases. But, it does nothave an expiration date, unlike a TRO in ordinary procedure, the durationdepends upon the discretion of the Kalikasan court.

Also, there are only 2 courts that can take cognizance of a petition for a writof Kalikasan, the SC and the CA.

Since there is no answer that is required to be filed by the respondent,failure by the respondent to file a verified return does not result in default.In ordinary civil actions involving environmental laws, we follow a different

procedure.

If the defendant in an ordinary civil procedure does not file an answer, thedefendant will be declared in default even if there is no motion initiated by

a plaintiff. That is in an ordinary civil action involving environmental lawswhich is not a special civil action of Kalikasan filed only in the CA or SC. So if

the respondents do not submit a verified return, the court will go ahead

with analyzing the merit of the petition for a writ of Kalikasan.

A decision of the Kalikasan court in a special civil action of Kalikasan is

immediately executory, although there could be an appeal. If the Circularsays that the decision is immediately executory, it does not mean that

appeal is no longer available. A decision could be executed as a matter of

right even if the aggrieved party still has the right to appeal. This is an

example of a judgment that is immediately executory, but the aggrievedparty enjoys the right of appeal.

In a special civil action for a writ of kalikasan, an appeal under Rule 45

is filed in the SC. Questions of fact could be raised therein, as anexception to the general rule in Rule 45 that only questions of law

could be raised before the SC.

Judgment in favor of petitioner, aside from being immediately executory,partakes of a permanent prohibitory mandatory injunction and at the same

time a permanent mandatory injunction. That is the tenor of a judgment inKalikasan cases. The judgment will always contain a provision in whichrespondent is permanently prohibited from violating or from doing an act

that will violate environmental laws, and the permanently mandatory part

is that the LGU is given a mandate to enforce environmental laws.

Writ of Continuing Mandamus in Kalikasan CasesIt is patterned after the mandamus contained in Rule 65. If you will

compare the definition of mandamus in Rule 65 to the definition ofcontinuing mandamus in the Kalikasan Circular, there is only the inclusion

in continuing mandamus of the clause pertaining to the enforcement of

environmental laws (“in connection with the enforcement or violation ofanenvironmental law rule or regulation or a right therein,” Section 1 Rule 8Rules of Procedure on Environmental Cases).

MCQ

The idea or concept of continuing mandamus. What is the source ofthis writ of continuing mandamus?

1. an invention of the SC

2. it was taken from India

3. It was taken from USA4. it is adopted from Latin American Countries just like Amparo.

Answer –2. it came from the SC of India, which seems to have a goodexperience in enforcing environmental laws.

Why do we have a writ of continuing mandamus when we already

have mandamus under Rule 65? Cannot the writ of Mandamus under

Rule 65 satisfy the requirements of a continuing mandamus?Mandamus under Rule 65 under Sec. 3 cannot satisfy the requirement

of a continuing mandamus. It will negate the state policy of enforcing

strictly environmental laws. A final and executory judgment underRule 39 can only be enforced through a motion in the first five years.

 After that, the next five years, a case for revival of judgment must behad. In continuing mandamus, it is designed to avoid the process of

motion and then filing a case for revival of judgment. The continuingmandamus requires continuous e