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Rule 45 vs Rule 65 in the SC

LORENZO JR.,respondents.

1. On February 9, 1998, Petitioner Madrigal Transport, Inc. (Madrigal) filed a Petition for Voluntary Insolvency before the Regional
Trial Court (RTC) of Manila, Branch 49.[5] Subsequently, on February 21, 1998, petitioner filed a Complaint for damages against
Respondents Lapanday Holdings Corporation (Lapanday), Macondray and Company, Inc. (Macondray), and Luis P. Lorenzo Jr.
before the RTC of Manila, Branch 36

2. Madrigal alleged

 that it had entered into a joint venture agreement with Lapanday for the primary purpose of operating vessels to service the
shipping requirements of Del Monte Philippines, Inc.
 that it had done so on the strength of the representations of Lorenzo, in his capacity either as chairman of the board or as
president of Del Monte, Lapanday and Macondray;
 that Macondray had thereafter been appointed -- allegedly upon the insistence of Lapanday -- as broker, for the purpose of
securing charter hire contracts from Del Monte; (
 that pursuant to the joint venture agreement, Madrigal had purchased a vessel by obtaining a P10,000,000 bank loan;
 that contrary to their representations and guarantees and despite demands, Lapanday and Lorenzo had allegedly been unable to
deliver those Del Monte charter hire contracts.

3. the insolvency court (RTC Branch 49) declared petitioner insolvent.[9] On March 30, 1998 and April 6, 1998, Respondents Lapanday,
Lorenzo and Macondray filed their respective Motions to Dismiss the case pending before the RTC Branch 36.[10]

4. On December 16, 1998, Branch 36 granted the Motion, for failure of the Complaint to state a cause of action. Applying Sections
32 and 33 of the Insolvency Law,the trial court opined that upon the filing by Madrigal of a Petition for Voluntary Insolvency, the
latter lost the right to institute the Complaint for Damages. The RTC ruled that the exclusive right to prosecute the actions belonged
to the court-appointed assignee

5. On January 26, 1999, petitioner filed a Motion for Reconsideration,[13] which was later denied on July 26, 1999.[14] Subsequently,
petitioner filed a Petition for Certiorari with the Court of Appeals, seeking to set aside the December 16, 1998 and the July 26,
1999 Orders of the trial court.
6. On January 10, 2000, the appellate court ruled that since the main issue in the instant case was purely legal, the Petition could
be treated as one for review as an exception to the general rule that certiorari was not proper when appeal was
available.[17] Respondents Lapanday and Lorenzo challenged this ruling through a Motion for Reconsideration dated February 10,
7. On February 28, 2002, the appellate court issued the assailed Decision granting Respondents Lapanday and Lorenzos Motion for
Reconsideration and dismissing Madrigals Petition for Certiorari. The CA opined that an order granting a motion to dismiss was
final and thus the proper subject of an appeal, not certiorari.

Whether or not Petition for Certiorari under Rule 65 is the proper remedy


The supervisory jurisdiction of a court over the issuance of a writ of certiorari cannot be exercised for the purpose of reviewing the
intrinsic correctness of a judgment of the lower court -- on the basis either of the law or the facts of the case, or of the wisdom or legal
soundness of the decision. Even if the findings of the court are incorrect, as long as it has jurisdiction over the case, such correction is
normally beyond the province of certiorari.Where the error is not one of jurisdiction, but of an error of law or fact -- a mistake of judgment
-- appeal is the remedy.

Certiorari Not the Proper Remedy

if Appeal Is Available

Where appeal is available to the aggrieved party, the action for certiorari will not be entertained. Remedies of appeal (including
petitions for review) and certiorari are mutually exclusive, not alternative or successive.[52] Hence, certiorari is not and cannot be a
substitute for an appeal, especially if ones own negligence or error in ones choice of remedy occasioned such loss or lapse. [53] One of the
requisites of certiorari is that there be no available appeal or any plain, speedy and adequate remedy. [54] Where an appeal is
available, certiorari will not prosper, even if the ground therefor is grave abuse of discretion.
G.R. No. 181613 September 11, 2009



1. Penera and private respondent Edgar T. Andanar (Andanar) were mayoralty candidates in Sta. Monica during the 14 May
2007 elections.
2. Petitioner filed her certificate of candidacy on the day before the prescribed campaign period. When she went to the
COMELEC Office for filing she was accompanied by her partymates. Thereafter, they had a motorcade which was consist of
two trucks and ten motorcycles running around the municipality convincing the residents to vote for her and the other
candidates of their political party.

3. On 2 April 2007, Andanar filed before the Office of the Regional Election Director (ORED), Caraga Region (Region XIII), a
Petition for Disqualification4 against Penera, as well as the candidates for Vice-Mayor and Sangguniang Bayan who belonged
to her political party,5 for unlawfully engaging in election campaigning and partisan political activity prior to the
commencement of the campaign period.

4. on, the 14 May 2007 elections took place and, as a result thereof, Penera was proclaimed the duly elected Mayor of Sta.
Monica. Penera soon assumed office on 2 July 2002.

5. The COMELEC Second Division decided in favor of the complainant and found her guilty of premature campaigning. Likewise,
when sheappealed in the COMELEC En Banc, the previous decision was affirmed

6. Subsequently, she filed with the Supreme Court which decided against her. It heldthat the conduct of the motorcade is a
form of election campaign or partisan politicalactivity, falling under Section 79(b)(2) of the Omnibus Election Code which
says:“ holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of
soliciting votes and/or undertaking any campaign or propaganda for or against a candidate[.]” Furthermore, it was held that
she should vacate the position. Now, she comes for a motion for reconsideration using the same arguments.


WON Penera is of guilty of premature campaigning?

WON premature campaigning be committed by a person who is not a candidate?


No to both. Under the assailed September 11, 2009 Decision, a candidate may already be liable for premature campaigning after
the filing of the certificate of candidacy but even before the start of the campaign period. Thus, such person can be disqualified
for premature campaigning for acts done before the start of the campaign period. In short, the Decision considers a person who
files a certificate of candidacy already “candidate” even before the start of the campaign period.

Now the Court holds that the assailed Decision is contrary to the clear intent and letter of the law. In Lanot v. COMELEC,it held
that a person who files a certificate of candidacy is not a candidate until the start of the campaign period. Lanot was decided on
the ground that one who files a certificate of candidacy is not a candidate until the start of the campaign period.

Congress elevated the Lanot doctrine into a statute by specifically inserting it as the second sentence of the third paragraph of
the amended Section 15 of RA 8436. In RA 9369, Congress inserted the word “only” so that the first proviso now reads:

Provided, that, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign

Thus, Congress not only reiterated but also strengthened its mandatory directive that election offenses can be committed by a
candidate “only” upon the start of the campaign period. This clearly means that before the start of the campaign period, such
election offenses cannot be so committed.

In layman’s language, this means that a candidate is liable for an election offense only for acts done during the campaign period,
not before. The law is clear as daylight — any election offense that may be committed by a candidate under any election law
cannot be committed before the start of the campaign period. In ruling that Penera is liable for premature campaigning for
partisan political acts before the start of the campaigning, the assailed Decision ignores the clear and express provision of the