588 SUPREME COURT REPORTS ANNOTATED

Certiorari as a Special Civil Action and as a Mode of

Appeal

ANNOTATION

CERTIORARI AS A SPECIAL CIVIL ACTION AND AS A

MODE OF APPEAL
By *
JULIANA C. AZARRAGA

________________

§ I. Introduction, p. 589
§ II. Legal bases, p. 589
§ III. Distinctions between Rule 45 and Rule 65,
Revised Rules of Court, p. 590
§ IV. What may be raised on petitions for review by
certiorari Under Rule 45, p. 590
§ V. Reasons why findings of fact of trial courts
are accorded great if not conclusive effect by
appellate courts, p. 593
§ VI. The special civil action of certiorari under
Rule 65, p. 594
§ VII. Where the questions raised are factual and
legal, or mixed, p. 595
§ VIII. What constitutes grave abuse of discretion, p.
596
§ IX. Lack or excess of jurisdiction; meaning, p. 597
§ X. No appeal, or any plain, speedy and adequate
remedy in the ordinary course of law;
meaning, p. 597

________________

_______________
 * RTC Judge, Branch 15, Roxas City.

589

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§ I. Introduction

Certiorari has two (2) concepts, viz.: (1) Under Rule 45 of

the Rules of Court, as an appeal to the Supreme Court from
a judgment or final order or resolution of the Court of
Appeals, the Sandiganbayan, the Regional Trial Court or
other courts whenever authorized by law; and (2) Under
Rule 65 of the Rules of Court, as a petition in the proper
court against the proceedings conducted by any tribunal,
board or officer exercising judicial or quasi-judicial
functions.

§ II. Legal bases

Section 1, Rule 45 of the Rules of Court provides:

„SECTION 1. Filing of petition with Supreme Court.·A party

desiring to appeal by certiorari from a judgment or final order or
resolution of the Court of Appeals, the Sandiganbayan, the Regional
Trial Court or other courts whenever authorized by law, may file
with the Supreme Court a verified petition for review on certiorari.
The petition shall raise only questions of law which must be
distinctly set forth.‰

Section 1, Rule 65 of the Rules of Court provides:

„SECTION 1. Petition for certiorari.·When any tribunal, board or

officer exercising judicial or quasi-judicial functions has acted
without or in excess of jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal,
or any plain, speedy, and adequate remedy in the ordinary course of
law, a person aggrieved thereby may file a verified petition in the
proper court, alleging the facts with certainty and praying that
judgment be rendered annulling or modifying the proceedings of
such tribunal, board or officer, and granting such incidental reliefs
as law and justice may require.
 „x x x xxx x x x.‰

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§ III. Distinctions between Rule 45 and Rule 65,

Revised Rules of Court

The distinctions between Rule 45 and 65 are far and wide,

the most notable of which is that errors of jurisdiction are
best resolved in a special civil action for certiorari under
Rule 65, while errors of judgment are correctible only 1
by
appeal in a petition for review under Rule 45. The
rationale for the distinction is simple. When a court
exercises its jurisdiction an error committed while so
engaged does not deprive it of the jurisdiction being
exercised when the error is committed. If it did, every error
committed by a court would deprive it of its jurisdiction
and every erroneous judgment would be a void judgment.
This cannot be allowed. The administration of justice would
not countenance such a rule. Thus, an error of judgment
that the court may commit in the exercise of its jurisdiction
is not correctible
2
through the original special civil action of
certiorari (Riviera Filipino, Inc. vs. Court of Appeals, 380
SCRA 245).
The remedies of appeal and certiorari are mutually
exclusive and not alternative or successive (Phil.
Commercial International Bank vs. Courts of Appeals, 404
SCRA 442).

§ IV. What may be raised on petitions for review by

certiorari Under Rule 45

In petitions for review on certiorari as a mode of appeal

under Rule 45, a petitioner can only raise questions of law.
The Supreme Court is not a proper venue to consider a
factual issue as it is not a trier of facts (Montecillo vs.
Abucay, 385 SCRA 244). Only issues of law may be raised
on appeal in a
_______________

1 Toyota Autoparts, Philippines, Inc. v. Director of the Bureau of Labor

Relations of the Dept. of Labor and Employment, 304 SCRA 95, citing
Fernando vs. Vasquez, 31 SCRA 288.
2 Asian Trading Corp. vs. Court of Appeals, 303 SCRA 152.

591

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petition for review under Rule 45 of the Rules of Court

(Herbosa vs. Court of Appeals, 374 SCRA 578).
When supported by sufficient evidence, findings of facts
of the Court of Appeals affirming those of the trial court,
are not to be disturbed on appeal. The rationale behind this
doctrine is that review of the findings of fact of the Court of
Appeals is not a function that the Supreme Court normally
undertakes (Cebu Shipyard and Engineering Works, Inc.
vs. William Lines, Inc., 306 SCRA 762).
a) Instances when findings of fact may be reviewed by the
Supreme Court·
Instances when the findings of fact of the trial court
and/or Court of Appeals may be reviewed by the Supreme
Court are: (1) when the conclusion is a finding grounded
entirely on speculation, surmises and conjectures; (2) when
the inference made is manifestly mistaken, absurd or
impossible; (3) where there is a grave abuse of discretion;
(4) when the judgment is based on a misapprehension of
facts; (5) when the findings of fact are conflicting; (6) when
the Court of Appeals, in making its findings went beyond
the issues of the case and the same is contrary to the
admissions of both appellant and appellee; (7) the findings
are contrary to those of the trial court; (8) when the
findings of fact are conclusions without citation of specific
evidence on which they are based; (9) when the facts set
forth in the petition as well as in the petitionerÊs main and
reply briefs are not disputed by the respondents; and (10)
the finding of fact of the Court of Appeals is premised on
the supposed absence of evidence and is contradicted by the
evidence on record (Misa vs. Court of Appeals, 212 SCRA
217; cited in Cebu Shipyard and Engineering Works, Inc.
vs. William Lines, Inc., supra).
 While it may be true that findings of a trial court, given
its peculiar vantage point to assess the credibility of
witnesses, are entitled to full faith and credit and may not
be disturbed on appeal, this rule is not infallible, for it
admits of certain

592

592 SUPREME COURT REPORTS ANNOTATED

Certiorari as a Special Civil Action and as a Mode of
Appeal

exceptions. One of these exceptions is when there is a

showing that the trial court had overlooked, misunderstood
or misapplied some fact or circumstance of weight and
substance, which, if considered, could materially affect the
result of the case. Also, when the factual findings of the
trial court contradict those of the appellate court, this
Court is constrained to make a factual review of the records
and make its own assessment of the case (Katipunan vs.
Katipunan, Jr., 375 SCRA 199).
In the case of San Miguel Corporation vs. Court of
Appeals, et al., 375 SCRA 311, the Supreme Court, on the
matter of whether the action taken should be one under
Rule 45 or one under Rule 65 of the Revised Rules of Court,
held: „At the outset, Petitioner came to this Court via a
petition for certiorari under Rule 65 instead of an appeal
under Rule 45 of the 1997 Rules of Civil Procedure. In
National Irrigation Administration vs. Court of Appeals,
the Court declared: x x x (S)ince the Court of Appeals had
jurisdiction over the petition under Rule 65, any alleged
errors committed by it in the exercise of jurisdiction would
be errors of judgment which are reviewable by timely
appeal and not by special civil action of certiorari. If the
aggrieved party fails to do so within the reglementary
period, and the decision accordingly becomes final and
executory, he cannot avail himself of the writ of certiorari,
his predicament being the effect of his deliberate inaction.
The appeal from a final disposition of the Court of Appeals
is a petition for review under Rule 45 and not a special civil
action under Rule 65 of the Rules of Court, now Rules 45
and 65, respectively, of the 1997 Rules of Civil Procedure.
Rule 45 is clear that decisions, final orders or resolutions of
the Court of Appeals in any case, i.e., regardless of the
nature of the action or proceeding involved, may be
appealed to this Court by filing a petition for review, which
would be but a continuation of the appellate process over
the original case. Under Rule 45, the reglementary period
to appeal is fifteen (15) days from notice of judgment or
denial of motion for reconsideration.‰

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b) Certiorari cannot be substitute for appeal·

Well-settled is the rule that certiorari cannot be availed
of as a substitute for a lost appeal. For failure of petitioner
to file a timely appeal, the questioned decision of the Court
of Appeals had already become final and executory (San
Miguel Corp. vs. Court of Appeals, supra).
As a rule, the jurisdiction of the Supreme Court in cases
brought before it from the Court of Appeals under Rule 45
is limited to reviewing errors of law, except where the trial
court and the appellate court arrived at diverse factual
findings (Almira vs. Court of Appeals, 399 SCRA 351).

§ V. Reasons why findings of fact of trial courts are

accorded great if not conclusive effect by appellate
courts

It is basic that findings of fact of trial courts are accorded

by appellate courts with great, if not conclusive, effect. This
is because of the unique advantage enjoyed by trial courts
of observing at close range the demeanor, deportment 3
and
conduct of witnesses as they give their testimonies. Trial
courts have the unique advantage of being able to observe
that elusive and incommunicable evidence of the witnessÊ
deportment on the stand while testifying·the brazen face
of the liar, the glibness of the schooled witness in reciting a
lesson, the itching over-eagerness of the swift witness,
4
as
well as the honest face of the truthful one. Indeed,
assignment of values to declarations on the witness stand
is best done by the trial judge who, unlike appellate
magistrates,
5
can weigh firsthand the testimony of a
witness.
A petition for review on certiorari under Rule 45 of the
1997 Rules of Civil Procedure serves to correct a reversible

_______________

3 People vs. Marlon Delim, 396 SCRA 386.

4 People vs. Alcodia, 398 SCRA 673.
5 People vs. Patoc, 398 SCRA 62.

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594 SUPREME COURT REPORTS ANNOTATED

Certiorari as a Special Civil Action and as a Mode of
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error and not grave abuse of discretion (Kalayan Arts and

Crafts, Inc. vs. ANGLO, 407 SCRA 497).

§ VI. The special civil action of certiorari under Rule

65

A writ of certiorari has been called a „supervisory or

superintending‰ writ. It was a common law writ of ancient
origin. Its earliest use was in the crown or criminal side of
the Court of KingÊs bench. Its use on the civil side later
came into general use. Certiorari is a remedy narrow in
scope and inflexible in character. It is not a general utility
tool in the legal workshop (Land Bank of the Philippines vs.
Court of Appeals, 409 SCRA 455).
a) When to avail of this remedy·
The extraordinary remedy of certiorari will lie only if
there is „no appeal or any other plain, speedy and adequate
remedy in the ordinary course of law.‰ The plain, speedy
and adequate remedy expressly provided by law is a motion
for reconsideration to be filed within fifteen (15) days from
promulgation or notice of final order or judgment. The
purpose of the motion is „x x x to afford public respondent
an opportunity to correct any actual or fancied error
attributed to it by way of reexamination of the legal and
factual aspects of the case.‰ Explaining further, the Court
said: „x x x. PetitionerÊs inaction or negligence under the
circumstances is tantamount to a deprivation of the right
and opportunity of the respondent commission to cleanse
itself of error unwittingly committed or vindicate itself of
an act unfairly umputed. An improvident resort to
certiorari cannot be used as a tool to circumvent the right
of public respondent to review and purge its decision of an
oversight, if any. x x x‰ (Purefoods Corporation vs. NLRC,
171 SCRA 415, cited in People vs. Espinosa, 409 SCRA
256).

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Certiorari as a Special Civil Action and as a Mode of
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§ VII. Where the questions raised are factual and

legal, or mixed

a) Neither the Constitution nor the Rules of Criminal

Procedure exclusively vests in the Supreme Court the
power to hear cases on appeal in which only an error of law
is involved. Indeed, the Court of Appeals, under Rules 42
and 44 of the Rules of Civil Procedure, 6is authorized to
determine „errors of fact, or law, or both.‰
7
These rules are
expressly adopted to criminal cases, and they do not
thereby divest the Supreme Court of its ultimate
jurisdiction over such question (Tan vs. People, 381 SCRA
74).
b) Joining both petitions for review and certiorari not
irregular.·
In the case of G & S Transport Corporation vs. Court of
Appeals, 382 SCRA 262, the Supreme Court made the
following pronouncement:
„To begin with, petitioner could have joined all his
allegations of error in one petition for review under Rule 45
of the 1997 Rules of Civil Procedure since only questions of
law are raised in the instant case. At any rate, there is
nothing irregular in joining both petitions for review (Rule
45) and certiorari (Rule 65) in one pleading for purposes of
resolving the issues raised by petitioner G & S. This
procedural step may even avoid inconsistency of rulings
which might result in case the writ of preliminary
injunction is validated but the civil case from which the
writ emanated is ordered dismissed. Although a petition for
review under Rule 45 is an appeal process while a petition
for certiorari under Rule 65 is an original action and the
rule that joinder of causes of action shall not include
special civil action governed by special rules

_______________

6 Section 2, Rule 42; Section 15, Rule 44, Rules of Civil Procedure.
7 Section 18, Rule 124, Rules of Criminal Procedure.

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596 SUPREME COURT REPORTS ANNOTATED

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Appeal

(Section 5[b], Rule 2, 1997 Rules of Civil Procedure), the

conceptual and procedural differences between them are
overshadowed by the more significant probability of
divergent rulings in case the two (2) petitions are not joined
which in the end would only cause difficulties in
determining which of the conflicting decisions should be
enforced.
„For the same reason, resort to certiorari under Rule 65
before this Court in lieu of an ordinary appeal to the Court
of Appeals to assail the final Order of dismissal is fully
justified by the necessity to bring all the issues before one
(1) forum to ensure harmony of rulings. It must however be
emphasized that in disposing of the issue regarding the
propriety and legality of the Order, the applicable standard
will of course be whether the trial court committed grave
abuse of discretion
8
amounting to lack or excess of
jurisdiction, and the only reversible errors
9
will be errors of
jurisdiction and not errors of judgment.

§ VIII. What constitutes grave abuse of discretion

There is grave abuse of discretion when the respondent

acts in a capricious, whimsical, arbitrary or despotic
manner in the exercise of his judgment, as when the
assailed order is bereft of any factual and legal justification
(The Senate Blue Ribbon Committee vs. Majaducon, 407
SCRA 356).
Grave abuse of discretion implies such capricious and
whimsical exercise of judgments as is equivalent to lack of
jurisdiction or, in other words, where the power is exercised
in an arbitrary manner by reason of passion, prejudice or
personal hostility, and it must be so patent or gross as to
amount to an evasion of positive duty or to a virtual refusal
to perform the duty enjoined or to act at all in
contemplation of law (Land Bank of the Philippines vs.
Court of Appeals, 409 SCRA 455).

_______________

8 Sec. 1, Rule 65, 1997 Rules of Civil Procedure.

9 Sec. 1, Rule 65, 1997 Rules of Civil Procedure.

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§ IX. Lack or excess of jurisdiction; meaning

The special civil action for certiorari is a remedy designed

for the correction of errors of jurisdiction and not errors of
judgment. The raison dÊêtre for the rule is when a court
exercises its jurisdiction, an error committed while so
engaged does not deprive it of its jurisdiction being
exercised when the error is committed. If it did, every error
committed by a court would deprive it of its jurisdiction
and every erroneous judgment would be a valid judgment.
In such 10a scenario, the administration of justice would not
survive.
a) Excess of jurisdiction and lack of jurisdiction
distinguished.·
Excess of jurisdiction as distinguished from absence of
jurisdiction means that an act, though within the general
power of a tribunal, board or officer is not authorized, and
invalid with respect to the particular proceeding, because
the condition which alone authorize the exercise 11
of the
general power in respect of it are wanting. Without
jurisdiction means lack or want of legal power, right or
authority to hear and determine a cause or causes,
considered either in general or with reference to a
particular12 matter. It means lack of power to exercise
authority.
§ X. No appeal, or any plain, speedy and adequate
remedy in the ordinary course of law; meaning

The general rule is that a cert writ will not issue where the
remedy of appeal is available to the aggrieved party. The
remedies of appeal in the ordinary course of law and that of

_______________

10 De Baron vs. Court of Appeals, 368 SCRA 407

11 Couriers vs. City of Knoxville, 189 SW 870.
12 Martin, Rules of Court of the Philippines, 2nd ed., Vol. 3, p. 152.

598

598 SUPREME COURT REPORTS ANNOTATED

Certiorari as a Special Civil Action and as a Mode of
Appeal

certiorari under Rule 65 of the Revised Rules of Court 13

are
mutually exclusive and not alternative or cumulative.
Hence, the special civil action for certiorari under Rule
65 is not and cannot be a substitute for an appeal, where
the latter remedy is available. Such a remedy will not be a
cure for failure to timely file a petition for review on
certiorari under Rule 45. Nor can it be availed of as a
substitute for the lost remedy of an ordinary appeal,
especially if such loss or lapse was occasioned by oneÊs own
negligence or error in the choice of remedies. However
there are cases where the cert writ may still issue even if
the aggrieved party has a remedy of appeal in the ordinary
course of law. Thus, where the exigencies of the case are
such that the ordinary methods of appeal may not prove
adequate either in point or promptness or completeness so
that a partial 14
or total failure of justice may result a cert
writ may issue (Land Bank of the Philippines vs. Court of
Appeals, supra).
In SMI 15 Development Corporation vs. Republic of the
Philippines, we held that certiorari is available when the
remedy of appeal is not adequate, or equally beneficial,
speedy and sufficient. The determination as what exactly
constitutes a plain, speedy and adequate remedy rests on
judicial discretion and depends on the particular
circumstances of each case. There are many authorities
 that subscribe to the view that it is the inadequacy, and not
the mere absence, of all other remedies, and the danger of
failure of justice without16 it, that must usually determine
the propriety of the writ. An adequate remedy is a remedy
which is equally beneficial, speedy and sufficient, not
merely a remedy which at some time in the future will
bring about a revival of the judgment of the lower court
complained of in the certiorari proceeding, but a remedy
which would promptly relieve the petitioner from the
injuri-

_______________

13 Republic vs. Court of Appeals, 322 SCRA 81.

14 623 SCRA 862 (2000).
15 State vs. Guinotte, 57 S.W. 281 (1900).
16 Ibid.

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Certiorari as a Special Civil Action and as a Mode of
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ous effects of that judgment and 17the acts of the inferior

court, tribunal, board or officer (Land Bank of the
Philippines vs. Court of Appeals, supra).

··o0o··

_______________

17 State vs. Guinotte, supra.

600

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