RULES 64-65
January 13, 2015. G.R. No. Clark Development Corporation GOCC
185544.* - lumapit sa law firm ni Laguesma
Magsalin Consulta and Gastardo  labor
THE LAW FIRM OF cases.
LAGUESMA MAGSALIN
CONSULTA AND GASTARDO, Clark Development Corporation, sought
petitioner,  from the Office of the Government
vs.  Corporate Counsel [„OGCC‟]  approval of
Laguesma Magsalin Consulta and
THE COMMISSION ON AUDIT Gastardo] as external counsel  DENIED
and/or REYNALDO A. VILLAR MR  GRANTED by Valdez
and JUANITO G. ESPINO, JR.
in their capacities as Clark Development Corporation was
Chairman and Commissioner, furnished a copy of a PRO FORMA
respectively, respondents. RETAINERSHIP contract na merong
suggested terms and conditions of the
(hinire ni respondent si retainership. In the meantime, Laguesma
petitioner, HINDI Magsalin Consulta and Gastardo
PINANINDIGAN!!) commenced rendering legal services to
RESPONDENT: SAAN AKO Clark Development Corporation.
NAGKULANG BES? :’(
Clark Development Corporation yet to
DIFF BET 64 + 65 secure the authorization and clearance from
the Office of the Government Corporate
Out of time to na file Counsel or the concurrence of the
Commission on Audit of the retainership
contract.
Clark Development Corporation
approved Laguesma Magsalin Consulta and
Gastardo‟s engagement as private counsel.
+ assignment of additional labor cases to
the law firm.
Clark Development Corporation requested
the Commission on Audit for concurrence of
the retainership contract it executed with
Laguesma Magsalin Consulta and
Gastardo.
Clark Development Corporation informed
them that the Commission on Audit required
the clearance and approval of the Office of
the Government Corporate Counsel before
it could approve the release of Clark
Development Corporation‟s funds to settle
the legal fees due to the law firm.
State Auditor IV Elvira G. Punzalan : Your
request for for clearance could not be acted
upon until the Office of the Government
Corporate Counsel approves the
retainership contract with finality!
Clark Development Corporation  letter-
request tOffice of the Government
Corporate Counsel
denied : pro forma retainership contract
given to you was not “based on the premise
that the monthly retainer‟s fee and
concomitant charges are reasonable and
could pass in audit by COA.
HOWEVER, law firm is entitled to payment
under the principle of quantum meruit and
subject to Clark Development Corporation
Board‟s approval and the usual government
auditing rules and regulations.
Commission on Audit‟s Office of the
General Counsel, Legal and Adjudication
Sector “Third
Indorsement” DENIED CLEARANCE: you
1|Page
The petition was filed out of time
Under this rule, A PARTY MAY FILE A PETITION FOR REVIEW
ON CERTIORARI WITHIN 30 DAYS FROM NOTICE OF THE
JUDGMENT BEING ASSAILED.
The reglementary period includes the time taken to file the motion
for reconsideration and is only interrupted once the motion is filed.
IF THE MOTION IS DENIED, the party may file the petition only
within the period remaining from the notice of judgment.
The difference between Rule 64 and Rule 65 has already been
exhaustively discussed by this court in Pates v. Commission
on Elections
Procedurally, the most patent difference between the two — i.e.,
the exception that Section 2, Rule 64 refers to — is Section 3
which provides for a special period for the filing of petitions for
certiorari from decisions or rulings of the COMELEC En Banc. The
period is 30 days from notice of the decision or ruling (instead of
the 60 days that Rule 65 provides), with the intervening period
used for the filing of any motion for reconsideration deductible from
the originally-granted 30 days (instead of the fresh period of 60
days that Rule 65 provides).(Emphasis supplied)
In this case, petitioner received the decision of the Commission on
Audit on October 16, 2007. It filed a motion for reconsideration on
November 6, 2007,or after 21 days. It received notice of the denial
of its motion on November 20, 2008. The receipt of this notice
gave petitioner nine (9) days, or until November 29, 2008, to file a
petition for certiorari. Since November 29, 2008 fell on a Saturday,
petitioner could still have filed on the next working day, or on
December 1, 2008. IT, HOWEVER, FILED THE PETITION ON
DECEMBER 19, 2008, WHICH WAS WELL BEYOND THE
REGLEMENTARY PERIOD.
THIS PETITION COULD HAVE BEEN DISMISSED OUTRIGHT
FOR BEING FILED OUT OF TIME. THIS COURT, HOWEVER,
RECOGNIZES THAT THERE ARE CERTAIN EXCEPTIONS
THAT ALLOW A RELAXATION OF THE PROCEDURAL RULES.
In Barranco v. Commission on the Settlement of Land Problems:
The Court is fully aware that procedural rules are not to be belittled
or simply disregarded for these prescribed procedures insure an
orderly and speedy administration of justice. HOWEVER, in
Sanchez v. Court of Appeals, the Court restated the reasons which
may provide justification for a court to suspend a strict
adherence to procedural rules, such as:
(a) matters of life, liberty, honor or property[,]
(b) the existence of special or compelling circumstances, (c) the
merits of the case,
(d) a cause not entirely attributable to the fault or negligence of the
party favored by the suspension of the rules,
(e) a lack of any showing that the review sought is merely frivolous
and dilatory, and
(f) the other party will not be unjustly prejudiced thereby.(Emphasis
supplied)
Considering that the issues in this case involve the right of
petitioner to receive due compensation on the one hand and
respondents‟ duty to prevent the unauthorized disbursement of
public funds on the other, a relaxation of the technical rules is in
order.
RULES 64-65

failed to secure a prior written concurrence

of the Commission on Audit and the
approval with finality of the Office of the
Government Corporate Counselt also stated
that its request for concurrence was made
three (3) years after engaging the legal
services of the law firm.

Laguesma Magsalin Consulta and

Gastardo APPEALED

Clark Development Corporation  MR

COA DENIED BOTH: Clark Development

Corporation violated Commission on Audit
Circular No. 98-002 dated June 9, 1998 and
Office of the President Memorandum
Circular No. 9 when it engaged the legal
services of Laguesma Magsalin Consulta
and Gastardo without the final approval and
written concurrence of the Commission on
Audit.

Clark Development Corporation and

Laguesma Magsalin Consulta and Gastardo
separately filed  MR DENIED
disallowing the payment of legal fees to the
law firm on the basis of quantum meruit

G.R. No. 133486. January 28,
2000.*
ABS-CBN BROADCASTING
CORPORATION,
petitioner, vs. COMMISSION
ON ELECTIONS, respondent.
( EXIT SURVEY..JUSTIFIED
LANG YUNG CERTIORARI
CONSTI ISSUES FREEDOM
OF EXPRESSION)
Hence Certiorari.
COMELEC GUMAWA NG
RESOLUTION inapprove PAG ISSUE NG
RESTRAINING ORDER SA ABSCBN or
any other network groups form conducting
EXIT SURVEY: upon information of reliable
sourceABS-CBN (Lopez Group) has
prepared a project, with PR groups, to
conduct radio-TV coverage of the elections
and to make [an] exit survey of the vote
during the elections for national officials
particularly for President and Vice
President, results of which shall be
[broadcast] immediately.”
COMELEC: pwede to kasi maging conflict
with the official Comelec count, as well as
the unofficial quick count of the National
Movement for Free Elections (Namfrel). We
did not authorized or deputized ABS-CBN to
undertake the exit survey.
SC issued TRO prayed for petitioner.
SC: COMELEC, cease and desist ka muna,
until further orders, from implementing the
assailed Resolution or the restraining order
issued pursuant thereto, if any. In fact, the
exit polls were actually conducted and
reported by media without any difficulty or
problem.
The solicitor general further contends that the Petition
should be dismissed for petitioner’s failure to exhaust available
remedies before the issuing forum, specifically the filing of a
motion for reconsideration. This COURT, HOWEVER, HAS
RULED IN THE PAST THAT THIS PROCEDURAL
REQUIREMENT MAY BE GLOSSED OVER TO PREVENT A
MISCARRIAGE OF JUSTICE, when the issue involves the
principle of social justice or the protection of labor, when the
decision or resolution sought to be set aside is a nullity, or when
the need for relief is extremely urgent and certiorari is the only
adequate and speedy remedy available.
The instant Petition assails a Resolution issued by the
Comelec en bancon April 21, 1998, only twenty (20) days before
the election itself. Besides, the petitioner got hold of a copy thereof
only on May 4, 1998. Under the circumstances, there was hardly
enough opportunity to move for a reconsideration and to obtain a
swift resolution in time for the May 11, 1998 elections. Moreover,
not only is time of the essence; the Petition involves
transcendental constitutional issues. Direct resort to this Court
through a special civil action for certiorari is therefore justified.
.

Hence, Rule 65
No. L-38278. June 28, 1983.* Gregorio Lobete USAFFE Veteran of In the present petition, petitioner has dwelt at length into the
GREGORIO LOBETE, World War II  CFI MANILA  collection merits of the case which is not in issue as this is a petition for
petitioner,  of money vs. Philippine Veterans certiorari and not an appeal, for which reason the same cannot be
vs.  Administration, of salary differential entertained. Settled is the rule that the writ of certiorari may not be
HON. CARLOS SUNDIAM, pursuant to Republic Act No. 65. On June availed of to make up for the loss, through omission or oversight,
Court of First Instance of 30, 1972 of the right to appeal. Petitioner was not denied or deprived of the
Manila, Branch XXVIII, THE right to appeal as he was ordered by the court a quo to file an
CHAIRMAN AND BOARD OF amended record on appeal. However, he complied with said order
ADMINISTRATORS, CFI favored Lobete after a lapse of five and one half (5 1/2) months, hence he lost his
PHILIPPINE VETERANS right to appeal due to his own fault for which he alone is to blame.
2|Page
RULES 64-65
ADMINISTRATION,
respondents.
G.R. No. 88396. July 4, 1990._
MANILA ELECTRIC COMPANY,
petitioner, vs.HON. COURT OF
APPEALS,HON. TERESITA
DIZON-CAPULONG, as
Presiding Judge, Regional
Trial Court, Valenzuela, Metro
Manila, Branch 172, and
POLYSTYRENE
MANUFACTURING CO., INC.,
respondents.
(Andaming counsel si
MERALCO.. Di excused yung
negligence of counsel)
3|Page
Phil. Vet MR  GRANTED: cause of
action over the claim of the petitioner had
legally and factually accrued as of the
approval of the last amendment of RA 65;
and that it appearing that this instant action
was filed before this Court on December 24,
1971, the ten (10) year period within which
to file an action upon an obligation claimed
under the law, pursuant to Article 144 of the
New Civil Code has long prescribed.
Lobete APPEAL
Phil Vet:we not afforded at least five (5)
days from receipt within which to oppose
the same in accordance with Section 7,
Rule 41 of the Rules of Court, and that said
record on appeal failed to include material
parts of a pleading and orders of the court.
CFIApproved the record on appeal
Phil Vet MR granted After hearing, the
lower court issued an order dated May 26,
1973 requiring petitioner to amend the
record on appeal and to incorporate therein
certain pleadings and orders. Petitioner
received the order on May 30, 1973.
Petitioner Appeal DENIED
Petitioner's MR DENIED
Hence, 65
Preliminary injuction filed before public
respondent to enjoin MERALCO from
disconnecting electrical service to the
private respondent Polystyrene
Manufacturing.  GRANTED + TRO was
issued: Meralco failed to appeal
Polystyrene verbal motion to declare
MERALCO in default  GRANTED
RTC GRANTED
Receipt of decision  by MERALCO‟s
counsel  May 18, 1988.
On June 1, 1988, or on the 14th day, after
receipt of the Decision, MERALCO MR to
Lift Order of Default and to
Vacate Judgment by Default alleging that
the counsel failed to appear in pretrial due
to influenza.  DENIED: counsel’s
negligence unexcusable.
MERALCO  Relief from Judgment 
DISMISSED  final and executory na kasi
ung former decision
RTCissued a writ of execution.
MERALCO  Notice of Appeal  CA
Polystyrene filed Opposition
Earler… Polystyrene  filed a Special
Appearance with Manifestation, calling our
attention to the fact that before petitioner
Meralco filed the instant Petition for
Certiorari on August 27, 1988, it had
already filed a Notice of Appeal before the
Time and again We have dismissed petitions for certiorari to annul
decisions or orders which could have, but have not, been
appealed.
WHILE THE SPECIAL CIVIL ACTION OF CERTIORARI
MAY BE AVAILED OF IN THE ALTERNATIVE SITUATION
WHERE AN APPEAL WOULD NOT CONSTITUTE A PLAIN,
SPEEDY AND ADEQUATE REMEDY, THIS IS ON THE
THEORETICAL ASSUMPTION THAT THE RIGHT TO APPEAL IS
STILL AVAILABLE IN THE CASE. If, HOWEVER, the remedy by
appeal had already been lost and the loss was occasioned by
petitioner’s own neglect or error in the choice of remedies,
certiorari cannot lie as a substitute or a tool to shield the petitioner
from the adverse consequences of such neglect or error. The two
remedies are mutually exclusive and not alternative or successive.
Applying this fundamental principle to the case at bar, it is
readily evident that petitioner had ample opportunities to appeal
the default judgment rendered against it by the court a quo, to wit,
after the default judgment itself was rendered and, later, after its
motion to lift the order of default and to vacate the default
judgment was denied by the trial court. It nevertheless deliberately
allowed the period for appeal to pass without interposing one.
Worse, despite the then availability of the remaining period for
appeal from the denial of its motion to lift the order of default and
to vacate the default judgment, it opted to wait and subsequently
file a petition for relief from the judgment which by then was final
and executory, with the added misfortune that said petition could
not claim any procedural validity both technically and on the
merits.
On reglementary technical grounds, it is a firmly established
doctrine that the relief provided for by Rule 38 of the Rules of
Court is of equitable character and is allowed only in exceptional
cases, that is, where there is no other available or adequate
remedy. A petition for relief is not regarded with favor and
judgment will not be disturbed where the party complaining has, or
by exercising proper diligence would have had, an adequate
remedy at law, as in the present case where petitioner could have
proceeded by appeal to vacate or modify the default judgment.
It is no creditable argument that petitioner supposedly
preferred respondent judge to correct her own alleged errors.
RULES 64-65
G.R. No. 76028. April 6, 1990.>
SPOUSES JOSE R. LANSANG,
JR. and ELSIE D. LANSANG
and ROBERTO CO,
petitioners, vs. THE HON.
COURT OF APPEALS, HON.
MANUEL L. GUMBAN, in his
capacity as Presiding Judge
of the Regional Trial Court,
11th Judicial Region, Branch
XXIII, RENATO SALANGSANG
and INTERWORLD
ASSURANCE CORP.,
represented by EVANGELINE
B. BACONGCO, respondents.
(liberal assessment of non
appearance of counsel)
4|Page
court a quo on August 26, 1988
CA DISMISSED CERTIORARI FOR
LACK OF MERIT
Hence, the instant certiorari to review the
decision of the CA
Renato Salangsang  action for
damages arising from a vehicular accident
vs petitioners RTC of South Cotabato.
petitioner  third party complaint
against private respondent insurance
corporation.
The pre-trial was held but no settlement
was reached. Trial commenced and private
respondent Salangsang presented his
evidence.
Court nagreset ng case neither
petitioners nor their counsel appeared.
The case was deemed submitted for
resolution on same day.
Petitioners explained to the trial court the
reasons for their absence at the November
8 hearing to be
(a) their counsel, Atty. Rufino Bañas who
was then a member of parliament failed to
appear at the hearing due to pressing and
urgent work at the Batasang Pambansa;
and
(b) petitioner Jose Lansang, Jr. was in
Manila and since his mother died in
September, 1984, he was still in Manila
when the order of September 12 was issued
setting the case for hearing on November 8.
Petitioner Roberto Co was out of town since
1983.
RTC FAVORED PLAINTIFF
PETITIONERS MR  DENIED
PETITIONERS NOTICE
APPEAL/CERTIORARI
RTC approved appeal and ordered record
of the case forwarded to IAC
PETITIONERS IAC  RULE 65
DENIED
Without awaiting the finality of the decision,
Salangsang  RTC a motion for execution
Being a special remedy, a petition for relief is available only under
exceptional circumstances, in which equity and justice will prompt
the court to give the petitioner a last chance to defend his right or
to protect his interest. Even so, the relief will not be granted to a
party, like the petitioner, when the loss of remedy at law was due
to his own negligence or a mistaken mode of procedure,
otherwise, the petition for relief will be tantamount to reviving the
right of appeal which had already been lost.
On the merits of the petition for relief, we likewise do not
find excusable the failure of petitioner’s counsel to attend the pre-
trial hearing as to justify the grant of relief. It is of record that
petitioner was represented in the case below by a number of
readily available lawyers belonging to its own legal department
who could have easily been sent to attend the pre-trial conference
or, at the very least, to move for its postponement if they were not
prepared for such hearing. Petitioner, however, utterly failed to
comply with the rules to protect its interests. Certainly, the patent
lack of coordination among or the cavalier response of the
members of its own legal staff, despite due notice of the pre-trial
conference, cannot exculpate petitioner from the adverse
consequences of the default judgment.
The petition is impressed with merit.
In the appealed decision, it was held that by the filing of the
petition for certiorari petitioners in effect abandoned their appeal
and that the perfected appeal is inconsistent with the remedy of
certiorari. It was further ruled that petitioners cannot be permitted
to first resort to appeal and then shift the remedy to certiorari.
The purpose of an appeal is to bring up for review a final
judgment or order of the lower court. The remedy of certiorari is to
correct certain acts of any tribunal, board or officer exercising
judicial functions performed without or in excess of its or his
jurisdiction, or with grave abuse of discretion and there is no
appeal nor any plain, speedy and adequate remedy in the ordinary
course of law. A certiorari proceeding may be instituted during the
pendency of a case or even after judgment.
If after judgment, the petition for certiorari is availed of when
appeal is a plain, speedy and adequate remedy, then the petition
must fail as certiorari may not be resorted to as a substitute for
appeal much less for a lost one. In such a case, the right to appeal
is deemed abandoned.
HOWEVER, AFTER A JUDGMENT HAD BEEN
RENDERED AND AN APPEAL THEREFROM HAD BEEN
PERFECTED, A PETITION FOR CERTIORARI RELATING TO
CERTAIN INCIDENTS THEREIN MAY PROSPER WHERE THE
APPEAL DOES NOT APPEAR TO BE A PLAIN, SPEEDY AND
ADEQUATE REMEDY. Hence, appeal and certiorari are not
remedies that exclude each other.
In this case, after judgment was rendered, petitioners filed a
motion for reconsideration which is in effect a motion for new trial.
The failure of counsel and petitioners to appear on November 8,
1985 in order to present its evidence was duly explained and
which may be considered excusable. The courts are called upon to
be liberal in the assessment of the non-appearance of counsel or
the party if only to promote the greater interest of justice.
OF
RULES 64-65
February 11, 2010. G.R. No.
184740.
DENNIS A. B. FUNA,
petitioner, vs. EXECUTIVE
SECRETARY EDUARDO R.
ERMITA, Office of the
President, SEC. LEANDRO R.
MENDOZA, in his official
capacity as Secretary of the
Department of Transportation
and Communications, USEC.
MARIA ELENA H. BAUTISTA,
in her official capacities as
Undersecretary of the
Department of Transportation
and Communications and as
Officer-in-Charge of the
Maritime Industry Authority
(MARINA), respondents.
(ELENA: SANA DALAWA ANG
POST KO… MOOTNESS OF
PETITION DOES NOT BAR ITS
RESOLUTION… Pag may
position ka na na iba.. wag
tumanggap pa ng isa.. DON’T
BE GREEDY GIRL)
No. L-73155. July 11, 1986.*
PATRICIO TAN, FELIX
FERRER, JUAN M. HAGAD,
SERGIO HILADO, VIRGILIO
5|Page
of its judgment  granted on July 6, 1985.
PETITIONERS MR Denied
PETITIONERS petition for certiorari 
DENIED
Hence, the herein petition for review on
certiorari
Maria Elena Bautista appointed usec of
DOTC and head of MARINA, thus holding 2
appointive positions at the same time.
DENNIS FUNA, in his capacity as taxpayer :
Bautista’s concurrent positions as DOTC
Usec and MARINA head is in violation of
Section 13, Article VII of the 1987
Constitution! Prohibition does not apply to
those positions held in ex officio capacities,
but the position of MARINA Administrator is
not ex officio to the post of DOTC
Undersecretary, as can be gleaned from the
provisions of its charter.
RESPONDENTS : hindi present ditto ang
requisites of a judicial inquiry. WALANG nag
eexist na actual controversy that needs to
be resolved in view of the appointment of
respondent Bautista as MARINA
Administrator and the relinquishment of her
post as DOTC Undersecretary for Maritime
Transport,
MOOT AND ACADEMIC NA SIYA!!!
Petitioner’s prayer for a temporary
restraining order or writ of preliminary
injunction is likewise moot and academic
since, with this supervening event, there is
nothing left to enjoin.
Petitioners residents of the Province of
Negros OccidentalSC Prohibition for
the purpose of stopping respondents
COMELEC from conducting the plebiscite
A moot and academic case is one that ceases to present a
justiciable controversy by virtue of supervening events, so that a
declaration thereon would be of no practical use or value.
Generally, courts decline jurisdiction over such case or dismiss it
on ground of mootness. HOWEVER, as we held in supervening
events, whether intended or accidental, cannot prevent the Court
from rendering a decision if there is a grave violation of the
Constitution.
Even in cases where supervening events had made the cases
moot, this Court did not hesitate to resolve the legal or
constitutional issues raised to formulate controlling principles to
guide the bench, bar, and public. As a rule, the writ of prohibition
will not lie to enjoin acts already done. HOWEVER, as an
exception to the rule on mootness, courts will decide a question
otherwise moot if it is capable of repetition yet evading review.
In the present case, THE MOOTNESS OF THE PETITION DOES
NOT BAR ITS RESOLUTION. The question of the
constitutionality of the President’s appointment or designation of a
Department Usec as officer-in-charge of an attached agency will
arise in every such appointment
The present case, in which the constitutional question posed is no
longer an unchartered sea, should once again remind all civil
servants of the rationale behind the general rule against the
holding of multiple positions. One manifest purpose of a restriction
on multiple holdings is to prevent offices of public trust from
accumulating in a single person.Indeed, no one can claim a
monopoly of skills.
“Being head of an executive department is no mean job. It is more
than a full-time job, requiring full attention, specialized knowledge,
skills and expertise. If maximum benefits are to be derived from a
department head‟s ability and expertise, he should be allowed to
attend to his duties and responsibilities without the distraction of
other governmental offices or employment. He should be
precluded from dissipating his efforts, attention and energy among
too many positions of responsibility, which may result in
haphazardness and inefficiency. Surely the advantages to be
derived from this oncentration of attention, knowledge and
expertise, particularly at this stage of our national and economic
development, far outweigh the benefits, if any, that may be gained
from a department head spreading himself too thin and taking in
more than what he can handle.”
The same norm holds true to that of a DOTC Undersecretary for
Maritime Transport. Now as always, the country cannot afford to
have a public
official who cannot devote full time on the crucial problems,
contemporary or longstanding, not to mention the perennial sea
tragedies, that have beleaguered the maritime industry, an industry
that is “indubitably imbued with national interest.
Petition granted, designation of Ma. Elena H. Bautista as OIC,
Office of Administrator, MARINA, concurrently as DOTC
Undersecretary for MarineTransportation declared
unconstitutional.
Considering that the legality of the plebiscite itself is
challenged for non-compliance with constitutional requisites, the
fact that such plebiscite had been held and a new province
proclaimed and its officials appointed, THE CASE BEFORE US
RULES 64-65
GASTON, CONCHITA MINAYA,
TERESITA ESTACIO,
DESIDERIO DEFERIA, ROMEO
GAMBOA, ALBERTO LACSON,
FE HOFILENA, EMILY JISON,
NIEVES LOPEZ AND CECILIA
MAGSAYSAY,
petitioners, vs. THE
COMMISSION ON ELECTIONS
and THE PROVINCIAL
TREASURER OF NEGROS
OCCIDENTAL, respondents.
January 15, 2010. G.R. No.
176831.>
UY KIAO ENG, petitioner, vs.  petitioner Uy Kiao Eng, his mother, r
NIXON LEE, respondent
(Di pwede I-mandamus ni Nixon
ang nanay nya; ELEMENTS OF
ISSUANCE OF MANDAMUS)
6|Page
which, pursuant to and in implementation of
the aforesaid law, was scheduled for
January 3, 1986.
The election pushed through without the
Court acting on the petition because of
Christmas holiday.
Acknowledging in their supplemental
petition that SUPERVENING EVENTS
RENDERED MOOT THE PRAYER in their
initial petition that the plebiscite scheduled
for January 3, 1986, be enjoined
petitioners : please issue the writ of
Prohibition directed to COMELEC to desist
from issuing official proclamation of the
results of the plebiscite held on January 3,
1986.
Petitioners  a petition for mandamus seek
another plebiscite, this time to the inclusion
of residents outside the newly created
province which were excluded in the
previous plebiscite.
Respondents  instant petition has been
rendered moot and academic considering
that a plebiscite has been already
conducted on January 3, 1986 and out of
195,134 total votes cast in said plebiscite,
164,734 were in favor of the creation of
Negros del Norte.
Because of the affirmative votes cast
represented a majority of the total votes
cast in said plebiscite, the Chairman of the
Board of Canvassers proclaimed the new
province which shall be known as “Negros
del Norte”.
Thus, respondents stress the fact that
following the proclamation of Negros del
Norte province the appointments of the
officials of said province created were
announced. On these considerations,
respondents urge that this case should be
dismissed for having been rendered MOOT
AND ACADEMIC as the creation of the new
province is now a “fait accompli.”
Father passed away
 left a holographic will in the custody of
Nixon Lee  petition for mandamus with
damages RTC Manila to compel
petitioner to produce the will so that probate
proceedings for the allowance thereof could
be instituted.
Respondent  already requested his
mother to settle and liquidate the patriarch’s
estate and to deliver to the legal heirs their
respective inheritance, but petitioner
refused to do so without any justifiable
reason.
UY KIAO ENG  traversed the allegations
in the complaint and posited that the same
be dismissed for failure to state a cause of
action, for lack of cause of action, and for
non-compliance with a condition precedent
CANNOT TRULY BE VIEWED AS ALREADY MOOT AND
ACADEMIC
Continuation of the existence of this newly proclaimed
province which petitioners strongly profess to have been illegally
born, deserves to be inquired into by this Tribunal so that, if
indeed, illegality attaches to its creation, the commission of that
error should not provide the very excuse for perpetuation of such
wrong.
For this Court to yield to the respondents‟ urging that, as
there has been fait accompli, then this Court should passively
accept and accede to the prevailing situation is an unacceptable
suggestion.
DISMISSAL OF THE INSTANT PETITION, AS
RESPONDENTS SO PROPOSE IS A PROPOSITION FRAUGHT
WITH MISCHIEF. RESPONDENTS‟ SUBMISSION WILL CREATE
A DANGEROUS PRECEDENT. Should this Court decline now to
perform its duty of interpreting and indicating what the law is and
should be, this might tempt again those who strut about in the
corridors of power to recklessly and with ulterior motives, create,
merge, divide and/or alter the boundaries of political subdivisions,
either brazenly or stealthily, confident that this Court will abstain
from entertaining future challenges to their acts if they manage to
bring about a fait accompli. In the light of the facts and
circumstances alluded to by petitioners as attending to the
unusually rapid creation of the instant province of Negros del Norte
after a swiftly scheduled plebiscite, this Tribunal has the duty to
repudiate and discourage the commission of acts which run
counter to the mandate of our fundamental law, done by whatever
branch of our government.
This Court gives notice that it will not look with favor upon
those who may be hereafter inclined to ram through all sorts of
legislative measures and then implement the same with indecent
haste, even if such acts would violate the Constitution and the
prevailing statutes of our land. It is illogical to ask that this Tribunal
be blind and deaf to protests on the ground that what is already
done is done. To such untenable argument the reply would be that,
be this so, the Court, nevertheless, still has the duty and right to
correct and rectify the wrong brought to its attention
The first paragraph of Section 3 of Rule 65 of the Rules of Court
pertinently provides that: When any tribunal, corporation, board,
officer or person unlawfully neglects the performance of an act
which the law specifically enjoins as a duty resulting from an office,
trust, or station, or unlawfully excludes another from the use and
enjoyment of a right or office to which such other is entitled, and
there is no other plain, speedy and adequate remedy in the
ordinary course of law, the person aggrieved thereby may file a
verified petition in the proper court, alleging the facts with certainty
and praying that judgment be rendered commanding the
respondent, immediately or at some other time to be specified by
the court, to do the act required to be done to protect the rights of
the petitioner, and to pay the damages sustained by the petitioner
by reason of the wrongful acts of the respondent.
Mandamus is a command issuing from a court of law of competent
jurisdiction, in the name of the state or the sovereign, directed to
some inferior court, tribunal, or board, or to some corporation or
person requiring the performance of a particular duty therein
specified, which duty results from the official station of the party to
whom the writ is directed or from operation of law. This definition
RULES 64-65
for the filing thereof.
UY KiAO wala sa akin yung original
holographic will and di ko din alam kung
asan yun! May photox kayong
magkakapatid nung will
The RTC heard the case. After the
presentation and formal offer of
respondent’s evidence,
UY KIAO demurred: Nixon failed to prove
na nasa akin yung holographic will.
RTC DENIED
HOWEVER, it granted in a later Order the
same on petitioner’s MR.
Nixon MR DENIED PETITION FOR
REVIEW  CA
CA DENIED APPEAL LACK OF
MERIT: writ of mandamus would issue only
in instances when no other remedy would
be available and sufficient to afford redress.
NIXON MR  GRANTED:
respondent was able to show by testimonial
evidence that his mother had in her
possession the holographic will.
UY KIAO MR DENIED
Hence, this petition
7|Page
recognizes the public character of the remedy, and clearly
excludes the idea that it may be resorted to for the purpose of
enforcing the performance of duties in which the public has no
interest. The writ is a proper recourse for citizens who seek to
enforce a public right and to compel the performance of a public
duty, most especially when the public right involved is mandated
by the Constitution. As the quoted provision instructs, mandamus
will lie if the tribunal, corporation, board, officer, or person
unlawfully neglects the performance of an act which the law
enjoins as a duty resulting from an office, trust or station.
THE WRIT OF MANDAMUS, HOWEVER, WILL NOT ISSUE TO
COMPEL AN OFFICIAL TO DO ANYTHING WHICH IS NOT HIS
DUTY TO DO OR WHICH IT IS HIS DUTY NOT TO DO, OR TO
GIVE TO THE APPLICANT ANYTHING TO WHICH HE IS NOT
ENTITLED BY LAW. NOR WILL MANDAMUS ISSUE TO
ENFORCE A RIGHT WHICH IS IN SUBSTANTIAL DISPUTE OR
AS TO WHICH A SUBSTANTIAL DOUBT EXISTS, ALTHOUGH
OBJECTION RAISING A MERE TECHNICAL QUESTION WILL
BE DISREGARDED IF THE RIGHT IS CLEAR AND THE CASE IS
MERITORIOUS.
As a rule, mandamus will not lie in the absence of any of the
following grounds:
[a] that the court, officer, board, or person against whom the action
is taken unlawfully neglected the performance of an act which the
law specifically enjoins as a duty resulting from office, trust, or
station; or
[b] that such court, officer, board, or person has unlawfully
excluded petitioner/relator from the use and enjoyment of a right or
office to which he is entitled.
On the part of the relator, it is essential to the issuance of a writ of
mandamus that he should have a clear legal right to the thing
demanded and it must be the imperative duty of respondent to
perform the act required.
Recognized further in this jurisdiction is the principle that
mandamus cannot be used to enforce contractual obligations.
Generally, MANDAMUS WILL NOT LIE TO ENFORCE PURELY
PRIVATE CONTRACT RIGHTS, AND WILL NOT LIE AGAINST
AN INDIVIDUAL UNLESS SOME OBLIGATION IN THE NATURE
OF A PUBLIC OR QUASI-PUBLIC DUTY IS IMPOSED. The writ is
not appropriate to enforce a private right against an individual. The
writ of mandamus lies to enforce the execution of an act, when,
otherwise, justice would be obstructed; and, regularly, issues only
in cases relating to the public and to the government; hence, it is
called a prerogative writ. To preserve its prerogative character,
mandamus is not used for the redress of private wrongs, but only
in matters relating to the public.
Moreover, an important principle followed in the issuance of the
writ is that there should be no plain, speedy and adequate remedy
in the ordinary course of law other than the remedy of mandamus
being invoked. In other words, mandamus can be issued only in
cases where the usual modes of procedure and forms of remedy
are powerless to afford relief. Although classified as a legal
remedy, mandamus is equitable in its nature and its issuance is
generally controlled by equitable principles. Indeed, the grant of
the writ of mandamus lies in the sound discretion of the court.
In the instant case, the Court, without unnecessarily ascertaining
whether the obligation involved here—the production of the original
holographic will—is in the nature of a public or a private duty, rules
that the remedy of mandamus cannot be availed of by respondent
Lee because there lies another plain, speedy and adeuate remedy
in the ordinary course of law. Let it be noted that respondent has a
photocopy of the will and that he seeks the production of the
original for purposes of probate. The Rules of Court, however,
does not prevent him from instituting probate proceedings for the
allowance of the will whether the same is in his possession or not.
Rule 76, Section 1 relevantly provides: Any executor, devisee, or
RULES 64-65
G.R. No. 158290. October 23,
2006.>
HILARION M. HENARES, JR.,
VICTOR C. AGUSTIN,
ALFREDO L. HENARES,
DANIEL L. HENARES,
ENRIQUE BELO HENARES,
and CRISTINA BELO
HENARES,
petitioners, vs. LAND
TRANSPORTATION
FRANCHISING AND
REGULATORY BOARD and
DEPARTMENT OF
TRANSPORTATION AND
COMMUNICATIONS,
respondents.
A WRIT OF MANDAMUS
COMMANDING THE
RESPONDENTS TO REQUIRE
PUVS TO USE CNG, IS
UNAVAILING. MANDAMUS IS
AVAILABLE ONLY TO COMPEL
THE DOING OF AN ACT
SPECIFICALLY ENJOINED BY
LAW AS A DUTY
8|Page
Petitioners challenge SC to issue a writ
of mandamus commanding respondents
Land Transportation Franchising and
Regulatory Board (LTFRB) and the
Department of Transportation and
Communications (DOTC) to require public
utility vehicles (PUVs) to use compressed
natural gas (CNG) as alternative fuel.
Petitioners allege that the particulate
matters (PM)  complex mixtures of dust,
dirt, smoke, and liquid droplets, varying in
sizes and compositions emitted into the air
from various engine combustions – have
caused detrimental effects on health,
productivity, infrastructure and the overall
quality of life.
Asserting their right to clean air
petitioners contend that the bases for their
petition for a writ of mandamus to order the
LTFRB to require PUVs to use CNG as an
alternative fuel, lie in Section 16,Article II of
the 1987 Constitution.
legatee named in a will, or any other person interested in the
estate, may, at any time, after the death of the testator, petition the
court having jurisdiction to have the will allowed, whether the same
be in his possession or not, or is lost or destroyed.
An adequate remedy is further provided by Rule 75, Sections 2 to
5, for the production of the original holographic will. Thus, there
being a plain, speedy and adequate remedy in the ordinary course
of law for the production of the subject will, the remedy of
mandamus cannot be availed of. Suffice it to state that respondent
Lee lacks a cause of action in his petition. Thus, the Court grants
the demurrer. WHEREFORE, premises considered, the petition for
review on certiorari is GRANTED. SO ORDERED.
In University of San Agustin, Inc. v. Court of Appeals, 230 SCRA
761 (1994), we said, … “It is settled that MANDAMUS IS
EMPLOYED TO COMPEL THE PERFORMANCE, WHEN
REFUSED, OF A MINISTERIAL DUTY, THIS BEING ITS MAIN
OBJECTIVE. IT DOES NOT LIE TO REQUIRE ANYONE TO
FULFILL CONTRACTUAL OBLIGATIONS OR TO COMPEL A
COURSE OF CONDUCT, NOR TO CONTROL OR REVIEW THE
EXERCISE OF DISCRETION. ON THE PART OF THE
PETITIONER, IT IS ESSENTIAL TO THE ISSUANCE OF A WRIT
OF MANDAMUS THAT HE SHOULD HAVE A CLEAR LEGAL
RIGHT TO THE THING DEMANDED AND IT MUST BE THE
IMPERATIVE DUTY OF THE RESPONDENT TO PERFORM THE
ACT REQUIRED. It never issues in doubtful cases. While it may
not be necessary that the duty be absolutely expressed, it must
however, be clear. The writ will not issue to compel an official to do
anything which is not his duty to do or which is his duty not to do,
or give to the applicant anything to which he is not entitled by
law. The writ neither confers powers nor imposes duties. It is
simply a command to exercise a power already possessed and to
perform a duty already imposed.” (Emphasis supplied.) In this
petition the legal right which is sought to be recognized and
enforced hinges on a constitutional and a statutory policy already
articulated in operational terms, e.g. in Rep. Act No. 8749, the
Philippine Clean Air Act of 1999. Paragraph (a), Section 21 of the
Act specifically provides that when PUVs are concerned, the
responsibility of implementing the policy falls on respondent
DOTC.
REGRETTABLY, HOWEVER, THE PLAIN, SPEEDY AND
ADEQUATE REMEDY HEREIN SOUGHT BY PETITIONERS, I.E.,
A WRIT OF MANDAMUS COMMANDING THE RESPONDENTS
TO REQUIRE PUVS TO USE CNG, IS UNAVAILING.
MANDAMUS IS AVAILABLE ONLY TO COMPEL THE DOING OF
AN ACT SPECIFICALLY ENJOINED BY LAW AS A DUTY. Here,
there is no law that mandates the respondents LTFRB and the
DOTC to order owners of motor vehicles to use CNG. At most the
LTFRB has been tasked by E.O. No. 290 in par. 4.5 (ii), Section 4
“to grant preferential and exclusive Certificates of Public
Convenience (CPC) or franchises to operators of NGVs based on
the results of the DOTC surveys.” Further, mandamus will not
generally lie from one branch of government to a coordinate
branch, for the obvious reason that neither is inferior to the other.
The need for future changes in both legislation and its
implementation cannot be preempted by orders from this Court,
especially when what is prayed for is procedurally infirm. Besides,
comity with and courtesy to a coequal branch dictate that we give
sufficient time and leeway for the coequal branches to address by
themselves the environmental problems raised in this petition.
It is the firm belief of this Court that in this case, it is timely
to reaffirm the premium we have placed on the protection of the
environment in the landmark case of Oposa. Yet, as serious as the
statistics are on air pollution, with the present fuels deemed toxic
as they are to the environment, as fatal as these pollutants are to
the health of the citizens, and urgently requiring resort to drastic
measures to reduce air pollutants emitted by motor vehicles, we
RULES 64-65
G.R. No. 163088. July 20,
2006.*
PHILIPPINE COCONUT
AUTHORITY,
petitioner, vs. PRIMEX COCO
PRODUCTS, INC., respondent.
(petition has been mooted. The
records disclose that, three days
after respondent had filed its
petition for mandamus, petitioner
had extended its provisional
certificate of registration until
December 1999. In effect,
respondent has been able to
operate as an exporter/trader/
manufacturer of DCN for the
whole year of 1999. As correctly
observed by the court a quo, no
damage was actually suffered by
respondent since it has
continued to operate for the
whole period of 1999 although
under provisional certificates of
registration.)
9|Page
On August 28, 1982, Executive Order (E.O.)
No. 826  Prohibiting government agency
or instrumentality to authorize, approve, or
grant any permit or license for the
establishment or operations of new
desiccated coconut processing plants,
including the importation of machinery or
equipment for the purpose.
Philippine Coconut Authority (PCA)
adopted Resolution No. 058-87 authorizing
the establishment and operation of
additional PCA plants in view of the
increasing demand for desiccated coconuts
(DCN) in the world market. The opening of
new plants was made subject to
implementing guidelines and approval of the
President.
Primex Coco Products, Inc. filed
application for registration with the PCA as
a new exporter/trader/manufacturer of DCN
and paid the sum of P600.00 as registration
fee. HOWEVER, PCA did not immediately
issue the corresponding certificate of
registration.
Primex  a petition for mandamus vs the
PCA and its then Administrator Charles
Avila RTC
HOWEVER seven (7) PCA processing
companies belonging to the Association of
Philippine Coconut Desiccators (APCD) 
RTC a petition for prohibition with a plea
for injunctive relief to enjoin the PCA from
processing and issuing a license to Primex.
PETITION for review on certiorari of the
decision and resolution of the Court of
Appeals.
must admit in particular that petitioners are unable to pinpoint the
law that imposes an indubitable legal duty on respondents that will
justify a grant of the writ of mandamus compelling the use of CNG
for public utility vehicles. It appears to us that more properly, the
legislature should provide first the specific statutory remedy to the
complex environmental problems bared by herein petitioners
before any judicial recourse by mandamus is taken.
MANDAMUS LIES TO COMPEL THE PERFORMANCE,
WHEN REFUSED, OF A MINISTERIAL DUTY, BUT NOT TO
COMPEL THE PERFORMANCE OF A DISCRETIONARY DUTY.
A PURELY MINISTERIAL ACT OR DUTY IS ONE WHICH AN
OFFICER OR TRIBUNAL PERFORMS IN A GIVEN STATE OF
FACTS, IN A PRESCRIBED MANNER, IN OBEDIENCE TO THE
MANDATE OF A LEGAL AUTHORITY, WITHOUT REGARD TO
OR THE EXERCISE OF HIS OWN JUDGMENT UPON THE
PROPRIETY OR IMPROPRIETY OF THE ACT DONE. THE
DUTY IS MINISTERIAL ONLY WHEN THE DISCHARGE OF THE
SAME REQUIRES NEITHER THE EXERCISE OF OFFICIAL
DISCRETION OR JUDGMENT. When an official is required and
authorized to do a prescribed act upon a prescribed contingency,
his functions are ministerial only, and mandamus may be issued to
control his action upon the happening of the contingency. FOR A
WRIT OF MANDAMUS TO BE ISSUED, IT IS ESSENTIAL THAT
PETITIONER SHOULD HAVE A CLEAR LEGAL RIGHT TO THE
THING DEMANDED AND IT MUST BE THE IMPERATIVE DUTY
OF THE RESPONDENT TO PERFORM THE ACT REQUIRED.
THE WRIT NEITHER CONFERS POWERS NOR IMPOSES
DUTIES. IT IS SIMPLY A COMMAND TO EXERCISE A POWER
ALREADY POSSESSED AND TO PERFORM A DUTY ALREADY
IMPOSED. Mandamus applies as a remedy only where petitioner’s
right is founded clearly in law and not when it is doubtful. The writ
will not be granted where its issuance would be unavailing,
nugatory, or useless. If the law imposes a duty upon a public
officer and gives him the right to decide how or when the duty shall
be performed, such duty is discretionary and not ministerial.
There is no doubt that under E.O. No. 826, Administrative
Order No. 003, Series of 1981, and Administrative Order No. 002,
Series of 1991, PETITIONER IS VESTED WITH DISCRETION ON
WHETHER OR NOT TO GRANT AN APPLICATION FOR THE
ESTABLISHMENT OF A NEW PLANT, THE EXPANSION OF
CAPACITY, THE RELOCATION OR UPGRADING OF
EFFICIENCIES OF SUCH DESICCATED COCONUT
PROCESSING PLANT. Relative to the renewal of a certificate of
registration, petitioner may refuse a registration unless the
applicant has complied with the procedural and substantive
requirements for renewal. HOWEVER, once the requirements are
complied with, the renewal of registration becomes a ministerial
function of petitioner.
Under Section 3.8 of Administrative Order No. 003, Series
of 1981, THE PCA MAY REFUSE THE REGISTRATION OR
RENEWAL THEREOF, IF AFTER INVESTIGATION, THE
APPLICANT IS FOUND TO HAVE BEEN CONVICTED OF ANY
CRIME INVOLVING MORAL TURPITUDE AND IN CONNECTION
WITH THE OPERATION OF ITS BUSINESS OR AN ACT
VIOLATIVE OF EXISTING LAWS, RULES AND REGULATIONS
ADMINISTERED BY THE PCA, OR OF UNFAIR TRADE
PRACTICES, AS DEFINED IN SAID RULES. Juridical persons
whose owners, presidents, managers or other executive officers
have been convicted may likewise be denied registration or
renewal thereof. Section 3.7 of the same administrative order also
provides that a certificate of registration may be renewed by filing
an applications for renewal not later than December 31 of each
calendar year, and paying the renewal fee of P200.00
.
Petitioner is not mandated to approve an original application
for a certificate of registration or a renewal thereof on an annual
basis merely based on the allegations contained in the application
and the payment of the registration fees therefor. The PCA is
tasked to first inquire into and ascertain, after an investigation,
RULES 64-65

whether the applicant has complied with the a priori procedural

and substantive conditions to the approval of said application as
provided in E.O. No. 826; Administrative Order No. 003, Series of
1981; and Administrative Order No. 002, Series of 1991.

Prescinding from the foregoing, we find that the petition has

been mooted. The records disclose that, three days after
respondent had filed its petition for mandamus, petitioner had
extended its provisional certificate of registration until
December 1999. In effect, respondent has been able to
operate as an exporter/trader/ manufacturer of DCN for the
whole year of 1999. As correctly observed by the court a quo,
no damage was actually suffered by respondent since it has
continued to operate for the whole period of 1999 although
under provisional certificates of registration. Mandamus is an
extraordinary writ and discretionary remedy and should not be
granted when it will achieve no beneficial result such as when act
sought to be compelled has been performed.

When the RTC rendered judgment on January 18, 2000, the

period for which the renewal certificate was sought had already
expired. Case law is that mandamus will not be issued to compel
the renewal of a license for a period which has expired. If the right
sought to be enforced by writ of mandamus is or has become a
mere abstract right, enforcement of which will be of no substantial
or practical benefit to the plaintiff, the writ will not issue though the
applicant would otherwise be entitled to it. To warrant the issuance
of a writ of mandamus, it must appear that the writ will be effectual
as a remedy, it should be denied where it would be useless by
reason of events occurring subsequent to commencement
proceedings.

On its face, the petition of respondent for mandamus does

not state a cause of action for a writ of mandamus. The rule is that
a cause of action has the following elements:
(a) the legal right of the plaintiff;
(b) the correlative obligation of the defendant to respect that legal
right; and
(c) an act or omission of the defendant that violates such right.

The cause of action does not accrue until the party obligated
refuses, expressly or impliedly, to comply with its duty.

In this case, respondent had no cause of action to compel

petitioner to issue a renewal certificate of registration for every
year from 1999 at the time it filed the petition for mandamus. At
that time, respondent had no right to demand and the petitioner
had no correlative duty, to issue a renewal certificate for the years
following the filing of the petition, hence, there could not have been
any default on the part of petitioner. Where a person or entity has
not yet failed to perform a duty, action for mandamus is premature.
Mandamus is never granted to compel the performance of an act
until there has been an actual, as distinguished from an
anticipated, refusal to act. This is true even if there is a strong
presumption that the persons whom it is sought to coerce by the
writ will refuse to perform their duty when the proper time arrives.
Its function is to compel the performance of a present existing duty
as to which there is default. It is not granted to take effect
prospectively, and it contemplates the performance of an act which
is incumbent on respondent when the application for a writ is
made.

No. L-78529. September Petitioners BF Homes, Inc., is a residential

17,1987.> subdivision owner-operator and as such, etitioner filed a petition for mandamus with the respondent
BF HOMES, INCORPORATED constructed water distribution systems at its appellate court to compel respondent Council to act on the
and PHILIPPINE several subdivisions so that residents would application for transfer of the franchise at Las Piñas to PWCC and
WATERWORKS AND have an adequate supply of potable water. also to act upon the application for authority to increase water
CONSTRUCTION rates. Respondent appellate court, in two Resolutions dated
CORPORATION, Petitioner applied for and was granted a respectively 16 February 1987 and 28 May 1987 in C.A.-G.R. SP
petitioners, vs. NATIONAL Certificate of Public Convenience and No. 09135, dismissed the petition for mandamus upon the ground
WATER RESOURCES Necessity in respect of its water distribution that mandamus will not issue to compel the respondent Council to
COUNCIL and THE COURT OF system at its Las Piñas subdivision. act on the matters pending before it, since such acts are not

10 | P a g e
RULES 64-65
APPE ALS, respondents.
(hindi agad gumalaw si Nawasa
kaya minandamus)
No. L-79484, December 7,
1987,*
KANT KWONG and YIM KAM
SHING,
petitioners, vs. PRESIDENTIAL
COMMISSION ON GOOD
GOVERNMENT, SECRETARY
RAMON A. DIAZ and
COMMISSIONER MARY
CONCEPCION B AUTISTA,
respondents
PCGG ACTED WITH
GROSS ABUSE OF
DISCRETION IN MAINTAINING
THE HOLD-ORDERS AGAINST
PETITIONERS FOR AN
INDEFINITE LENGTH OF TIME.
BY SO DOING IT HAS
ARBITRARILY EXCLUDED
PETITIONERS FROM THE
11 | P a g e
Petitioner sought authority from National
Water Resources Council to transfer the
Certificate of Public Convenience and
Necessity to its co-petitioner, the Philippine
Waterworks and Construction Corporation
(PWCC). To date, the application for
transfer has yet to be acted upon by the
respondent Council.
PETITIONER  PETITION FOR
MANDAMUS WITH THE RESPONDENT
APPELLATE COURT TO COMPEL
RESPONDENT COUNCIL TO ACT ON
THE APPLICATION FOR TRANSFER OF
THE FRANCHISE AT LAS PIÑAS TO
PWCC AND ALSO TO ACT UPON THE
APPLICATION FOR AUTHORITY TO
INCREASE WATER RATES.
CA in two Resolutions DISMISSED THE
PETITION FOR MANDAMUS: mandamus
will not issue to compel the respondent
Council to act on the matters pending
before it, since such acts are not ministerial
in nature.
In this original action for Mandamus
petitioners pray that respondent Presidential
Commission on Good Government (PCGG,
for short) be commanded to lift without
delay the Hold-Orders issued against them
by the said entity for being in violation of
their right to travel and for having been
issued in grave abuse of authority since
they are in no way involved in ill-gotten
wealth nor in transactions connected
therewith.
Petitioners foreign nationals 
representatives of the Hongkong-Chinese
investors who own 33% of the shares of
stock in two domestic garment corporations,
namely, De Soleil Apparel Manufacturing
Corporation and American Inter-Fashion
Manufacturing Corporation, which firms
were ordered sequestered by the PCGG \
ministerial in nature. The respondent appellate court fell into
reversible error here. It is established doctrine that mandamus will
not issue to control the performance of discretionary,
nonministerial, duties, that is, to compel a body of discharging
duties involving the exercise of discretion to act in a particular way
or to approve or disapprove a specific application.
"The petition must fail because under the circumstances of record.
the issuance of the injunction sought is manifestly not a ministerial
duty, viz a duty which is so clear and specific as to leave no room
for the exercise of discretion in its performance and its discharge
requires neither the exercise of official discretion nor judgment.
The issuance of a writ of dicretion and mandamus will not lie to
compel the performance of such discretionary function. It is an
established principle that the writ of mandamus may not be issued
to control the discretion of a judge or to compel him to decide a
case or a motion pending before him in a particular way—the writ
being available only to compel him to exercise his discretion or his
jurisdiction."
PETITIONER, HOWEVER, DOES NOT HERE SEEK TO
COMPEL RESPONDENT COUNCIL SPECIFICALLY TO
APPROVE PETITIONER'S APPLICATIONS PENDING BEFORE
IT. WHAT PETITIONER SEEKS, AND THIS IT IS ENTITLED TO,
IS A WRIT THAT WOULD REQUIRE RESPONDENT COUNCIL
TO CONSIDER AND DELIBERATE UPON THE APPLICATIONS
BEFORE IT, EXAMINING IN THAT PROCESS WHATEVER
EVIDENCE LIES BEFORE IT AND TO ACT ACCORDINGLY,
EITHER APPROVING OR DISAPPROVING THE APPLICATION
BEFORE IT, IN ACCORDANCE WITH APPLICABLE LAW AND
JURISPRUDENCE AND IN THE BEST INTEREST OF THE
COMMUNITY INVOLVED. Per the records of this case,
respondent Council has failed, for unexplained reasons, to
exercise its discretion and to act, one way or the other, on the
applications of petitioners for a prolonged period of time imposing
in the process substantial prejudice or inconvenience upon the
many hundreds of families living in the two subdivisions involved. It
appears, further, that respondent Council failed to inform petitioner
of a supposed need for additional data concerning petitioner
PWCC.
CONSIDERING THE NEED FOR PROMPT ACTION, THE
COURT RESOLVED ITSELF TO ISSUE DIRECTLY A WRIT OF
MANDAMUS AGAINST THE RESPONDENT COUNCIL
COMMANDING IT FORTHWITH TO ACT UPON PETITIONER'S
APPLICATION FOR INCREASE IN WATER RATES IN BF
HOMES PARAÑAQUE (NWRC CASE NO. 78-037) AND ON
PETITIONER'S APPLICATION FOR TRANSFER OF
CERTIFICATE OF PUBLIC NECESSITY AND CONVENIENCE IN
B.F. HOMES LAS PIÑAS (NWRC CASE NO. 82-161).
We find merit in the Petition. Petitioners' right to travel has, in fact,
been impaired.
1. The validity of the Hold-Orders issued against petitioners on 13
February 1987 has already expired pursuant to the Rules and
Regulations of the PCGG, which specifically provide:
SECTION 1. ...
(D) ... A "hold-order" shall be valid only for a maximum period of
six months, unless for good reasons extended by the Commission
en banc. "
The PCGG has not extended the life-span of the Hold-Orders in
question nor has it advanced "good reasons" for doing so.
2. The grounds for the issuance of the Hold-Orders have become
stale.
The PCGG has not given petitioners any opportunity to contest the
Hold-Orders issued against them. After their issuance, no hearing
had been set; a request for the same had been disregarded.
RULES 64-65

ENJOYMENT OF A
FUNDAMENTAL — RIGHT THE
RIGHT TO FREEDOM OF
MOVEMENT — TO WHICH
THEY ARE ENTITLED.
MANDAMUS LIES.
Ramon A. Diaz, then Secretary of the
PCGGwrote the Minister of Public
Information advising the latter that
petitioners had been included in the Hold-
Order list of the PCGG.
Petitioners PCGG Urgent Motion to Lift
Hold-Order with the request that the Motion
be set for hearing on 16 March 1987.
The Motion, however, was not calendared
for hearing on said date.
Petitioners' Motion to Lift the Hold-Orders was summarily denied.
The "issues" spelled out against petitioners have remained
unresolved over a period of nine (9) months. The PCGG must thus
be faulted for a disregard of the requirements of "fairness and due
process" expressly mandated by Executive Order No. 14.
Petitioners are foreign nationals. Their 33% interest in the
sequestered firms is recognized by the PCGG itself. There is no
showing that those interests appear prima facie to be ill-gotten
wealth. No charges have been filed against them before the
Sandiganbayan. They face no criminal indictment nor have they
been provisionally released on bail that their right to travel might
be restricted.

PCGG ACTED WITH GROSS ABUSE OF DISCRETION IN

MAINTAINING THE HOLD-ORDERS AGAINST PETITIONERS
FOR AN INDEFINITE LENGTH OF TIME. BY SO DOING IT HAS
ARBITRARILY EXCLUDED PETITIONERS FROM THE
ENJOYMENT OF A FUNDAMENTAL — RIGHT THE RIGHT TO
FREEDOM OF MOVEMENT — TO WHICH THEY ARE
ENTITLED. MANDAMUS LIES.

WHEREFORE, in the interest of the early and full

restoration of petitioners' right to travel, the Court hereby LIFTS the
Hold-Orders issued by respondent Presidential Commission on
Good Government against petitioners, effective immediately, upon
the condition that they shall hold themselves available if and
whenever needed by said Commission in the performance of its
task.

‘No. L-6538. May 10, 1954]
PABLO BURGUETE,
petitioner, vs. JOVENCIO Q.
MAYOR, as Provincial
Governor of Romblon, and
ESTEBAN B. MONTESA, as
Acting Municipal Mayor of
Badajoz, Romblon,
respondents.
(admin case siya talaga!!! HINDI
GROUND FOR SUSPENSION
NG MUNICIPAL MAYOR ANG
PAGFILE NG LIBEL!)
REINSTATED SI MAYOR!
PABLO BURGUETE municipal mayor of The mere filing of an information for libel against a municipal
Badajoz, officer is not a sufficient ground for suspending him. The same
Province of Romblon, may be said with regard to serious slander, which is another form
of libel. Libel does not necessarily involve moral turpitude. It would
JOVENCIO Q. MAYORprovincial be an easy expedient to file a criminal complaint or information
governor of Romblon; against a municipal mayor for the purpose of suspending him, and
the suspension would last almost indefinitely, according to the time
ESTEBAN B. MONTESAmunicipal mayor that would elapse before the criminal case is finally terminated by
of Badajoz, Province of Romblon. conviction or acquittal.
Our conclusion is that the suspension of the petitioner is illegal
Criminal complaint  serious slander  vs and unjustified.
Burguete  justice of the peace court of
Badajoz. forwarded to the Court of First
Instance of Romblon.
JOVENCIO Q. MAYOR suspended the
petitioner as mayor : A CRIMINAL CASE
AGAINST HIM WAS PENDING, AND THAT
IT WAS THE "STANDING POLICY OF THE
ADMINISTRATION TO PLACE UNDER
SUSPENSION ANY ELECTIVE OFFICIAL
AGAINST WHOM A CRIMINAL ACTION
INVOLVING MORAL TURPITUDE IS
PENDING ADJUDICATION BEFORE THE
COMPETENT COURT."

The Governor: ESTEBAN B. MONTESA,

ikaw na ang mayor.

BURGUETESCPETITION
FOR MANDAMUS AND
 QUO WARRANTO AGAINST MAYOR
AND MONTESA.

CASE FOR SERIOUS SLANDER AGAINST

BURGUETE STILL PENDING CFI

Burguete  motion to quash denied

The case could not be tried on the

merits on account of the non-appearance of
the witnesses for the prosecution

12 | P a g e
RULES 64-65

.
NO ADMINISTRATIVE
INVESTIGATION BY THE PROVINCIAL
BOARD HAS BEEN CONDUCTED UNDER
SECTION 2188 OF THE ADMINISTRATIVE
CODE.

G.R. No. 135885. April 28,
2000.*
SPOUSES JUAN J. DIAZ and
ELIZABETH L. DIAZ,
petitioners, vs. JOSE DIAZ
and COURT OF APPEALS,
respondents.
We are not unmindful of the fact
that during the pendency of the
instant petition, the trial court
has rendered judgment against
petitioners. HOWEVER, BEING
THE COURT OF LAST
RESORT, WE DEEM IT IN THE
BEST INTEREST THAT
LIBERALITY AND RELAXATION
OF THE RULES BE EXTENDED
TO PETITIONERS BY SETTING
ASIDE THE ORDER OF
DEFAULT ISSUED BY THE
TRIAL COURT AND THE
CONSEQUENT DEFAULT
JUDGMENT; OTHERWISE,
GREAT INJUSTICE WOULD
RESULT IF PETITIONERS ARE
NOT AFFORDED AN
OPPORTUNITY TO PROVE
THEIR CLAIMS.
Plaintiff and defendant Juan J. Diaz and
Jose Diaz,  magkapatid +, and recently
widowed sister, Marita D. Papa owned in
common, as co-heirs (sic), a parcel of land,
with improvements thereon, situated in t
Mandaluyong
Later on, the co-owners sold their
Mandaluyong property  PHILAMGEN for
P125, 000.00.
Immediately after the sale of the
Mandaluyong property, Juan purchased a
1,000 sq. meter lot in Greenhills
Subdivision, San Juan, for P140, 00000
using as part of the purchase price plaintiff's
P15, 000.00 share of the sale of the
Mandaluyong property, and thereafter
caused title thereto to be issued in his
name, all with the knowledge and without
objection of the plaintiff.
Defendant spouses have recently sold
the Greenhills lot, together with their
Greenhills home, for P54, 000,000.00.
Plaintiff wrote defendant spouses a letter
demanding from them an amount of at least
P2 million as his share of the actual value of
the Greenhills lot but defendant spouses
refused to honor plaintiff's demand.
JOSE  action for sum of money with the
RTC of Mandaluyong City.
SPOUSES DIAZ  Motion to Dismiss :
private respondent's Complaint failed to
state a cause of action, and assuming that
private respondent had a cause of action
against them, it was already barred by
prescription and laches.
RTC DENIED MR: as the "points invoked
and the arguments advanced were
contentious and evidentiary in nature which
could not be established by mere
allegations in the pleadings but must be
proved during the trial on the merits."
Spouses Diaz Petition for Certiorari and
Prohibition with the CA  DISMISSED :
failure to comply with Section 11, Rule 13 of
the 1997 Rules of Civil Procedure (the
"Rules"). 
Petitioners Petition for Certiorari and
Prohibition denied again MR DENIEND
HENCE, petitioners filed a Petition
for Certiorari and Prohibition with this Court
which treated said petition as a petition for
review on certiorari under Rule 45.
It need not be gainsaid that a special civil action for certiorari is a
remedy designed for the correction of errors of jurisdiction and not
errors of judgment.  To justify the grant of such extraordinary
remedy, the abuse of discretion must be grave and patent, and it
must be shown that discretion was exercised arbitrarily or
despotically.  In this case, no such circumstances attended the
denial of petitioners Motion to Dismiss.
Petitioners received a copy of the trial court's Order denying
reconsideration of its ruling on their Motion to Dismiss. Petitioners
had only five (5) days from receipt of said Order within which to file
an answer. When petitioners filed their first Petition
for Certiorari with the Court of Appeals they were already in
default. Hence, the filing of said Petition for Certiorari cannot be
considered as having interrupted the reglementary period for filing
an answer. More importantly, Section 7, Rule 65 of the Rule's
provides that: The court in which the petition is filed may issue
orders expediting the proceedings, and it may also grant a
temporary restraining order or a writ of preliminary injunction for
the preservation of the rights of the parties pending such
proceedings. The petition shall not interrupt the course of the
principal case unless a temporary restraining order or writ of
preliminary injunction has been issued against the public
respondent from further proceeding in the case.
In Santiago v. Vasquez: The original and special civil action filed
with this Court is, for all intents and purposes, an invocation for the
exercise of its supervisory powers over lower courts. It does not
have the effect of divesting the inferior courts of jurisdiction validly
acquired over the case pending before them. It is elementary that
the mere pendency of a special civil action for certiorari
commenced in relation to a case pending before a lower court,
does not even interrupt the course of the latter when there is no
writ of injunction restraining it. The inevitable conclusion is that for
so long as no writ of injunction or restraining order is issued in the
special civil action for certiorari, no impediment exist and there is
nothing to prevent the lower court from exercising its jurisdiction
and proceeding with the case pending before it. And even if such
injunctive writ or order is issued, the lower court nevertheless
continues to retain its jurisdiction. 
In Palomares v. Jimenez, we stated that an application
for certiorari is an independent action which is not part of a
continuation of the trial which resulted in the rendition of the
judgment complained of. Impliedly, a petition for certiorari pending
before a higher court does not necessarily become moot and
academic by a continuation of the proceedings in the court of
origin.
The grounds relied upon by petitioners in their Motion to Dismiss
may validly be raised in their Answer and invoked in moving for the
dismissal of the action should said grounds become evident during
the trial.
Suits should as much as possible be decided on the merits and not
on technicalities. In this regard, we have often admonished courts
to be liberal in setting aside orders of default as default judgments
are frowned upon and not looked upon with favor for they may
amount to a positive and considerable injustice to the defendant
and the possibility of such serious consequences necessitates a
careful examination of the grounds upon which the defendant asks
that it be set aside.  Since rules of procedure are mere tools
designed to facilitate the attainment of justice, it is well recognized
that this Court is empowered to suspend its operation, or except a

13 | P a g e
RULES 64-65

In the meantime, private respondent 
RTC motion to declare petitioners in
default for failure to file an answer on or
before the last day for filing the same
granted
Petitioners MR
Before the trial court could act upon said
motion, the CA granted petitioners'
motion for issuance of a temporary
restraining order thereby enjoining the trial
court from proceeding with the scheduled
hearing.
With the denial by the CA of petitioners'
second Petition for Certiorari, private
respondent filed with the RTC motion
praying that he be allowed to proceed with
the ex-parte presentation of evidence 
GRANTED
particular case from its operation, when the rigid application
thereof tends to frustrate rather than promote the ends of justice. 
We are not unmindful of the fact that during the pendency of the
instant petition, the trial court has rendered judgment against
petitioners. HOWEVER, BEING THE COURT OF LAST RESORT,
WE DEEM IT IN THE BEST INTEREST THAT LIBERALITY AND
RELAXATION OF THE RULES BE EXTENDED TO
PETITIONERS BY SETTING ASIDE THE ORDER OF DEFAULT
ISSUED BY THE TRIAL COURT AND THE CONSEQUENT
DEFAULT JUDGMENT; OTHERWISE, GREAT INJUSTICE
WOULD RESULT IF PETITIONERS ARE NOT AFFORDED AN
OPPORTUNITY TO PROVE THEIR CLAIMS. WHEREFORE, the
decision of the Court of Appeals affirming the denial of petitioners'
Motion to Dismiss is AFFIRMED. SO ORDERED.

Petitioners  Motion for Reconsideration

contending that their Motion for
Reconsideration had not yet been resolved.
 DENIED

Petitioners Motion to Set Aside the Order

of Default and to Admit Attached Answer 
RTC DENIED :failure to file any answer or
pleading within the remaining period
provided and opted instead to file a petition
for certiorari with the Court of Appeals.

Petitioners with leave from this Court,

assailed the trial court's Orders for having
been issued without or in excess of
jurisdiction, and/or with grave abuse of
discretion amounting to lack of jurisdiction.
Trial Court  rendered judgment in favor of
private respondent.

Petitioners Notice of Appeal to the Court

of Appeals GRANTED

CA ordered petitioners to comply with the

writ of execution of the trial court.

Petitioners  urgent motion with this Court

praying for issuance of a status quo or
temporary restraining order which we
granted

G.R. No. 101428. August 5,
1992.*
DR. ISABELITA VITAL-GOZON,
in her official capacity as
MEDICAL CENTER CHIEF OF
THE NATIONAL CHILDREN’S
HOSPITAL, petitioner, vs.THE
HONORABLE COURT OF
APPEALS and DR.
ALEJANDRO S. DE LA
FUENTE, respondents.
At the time of the reorganization of offices
under the administration of President
Corazon Aquino Dr. Alejandro S. de la
Fuente was the Chief of Clinics of the
National Children's Hospital, having been
appointed to that position on December 20,
1978.
Dr. de la Fuente received notice from the
Department of Health that he would be re-
appointed "Medical Specialist II."
Dr. de la Fuente : DEMOTION TO! 
PROTEST! DOH Reorganization Board.
 IGNORED  Civil Service Commission
CSC: Null and void yung pag demote nyo
kay Dr. de la Fuente! ILLEGAL YAN!
No MR NOR APPEAL FINAL
The Solicitor General’s Office correctly identifies Section 9, B.P.
129 as the legal provision specifying the original and appellate
jurisdiction of the CA. The section pertinently declares that the
“IAC (now the CA) shall exercise among others: Original
jurisdiction to issue writs of mandamus, prohibition, certiorari,
habeas corpus, and quo warranto, and auxiliary writs or
processes, whether or not in aid of its appellate jurisdiction.
However, SolGen was wrong when it said that the absence of the
words “actions for moral and exemplary damages” divests CA the
competence to assume cognizance of claims for such damages.
Section 19, governing the exclusive original jurisdiction of
Regional Trial Courts in civil cases, contains no reference
whatever to claims “for moral and exemplary damages,” and
indeed does not use the word “damages” at all; yet it is
indisputable that said courts have power to try and decide claims
for moral, exemplary and other classes of damages accompanying
any of the types or kinds of cases falling within their specified

14 | P a g e
RULES 64-65

De la Fuente  sent two (2) letters to Dr. jurisdiction.

Vital-Gozon, the Medical Center Chief of the
National Children's Hospital,demanding The Solicitor General‟s theory that the rule in question is a mere
implementation of the Commission's procedural one allowing joinder of an action of mandamus and
decision. another for damages, is untenable, for it implies that a claim for
damages arising from the omission or failure to do an act subject
Dr. Vital-Gozon de la Fuente's claims to of a mandamus suit may be litigated separately from the latter, the
the Department of Health Assistant matter of damages not being inextricably linked to the cause of
Secretary for Legal Affairs for appropriate action for mandamus, which is certainly not the case. *A party who
advice and/or action sought partial execution of judgment is estopped from seeking
BUTshe did not answer Dr. de la Fuente's modification thereof if judgment is indivisible in nature. *Judgment
letters, not even to inform him of the in mandamus is divisible and may be executed in part
referral... thereof to the Assistant Secretary.
 naghintay lang siya  Hindi nagreply si
DOH Legal Depratment
Dr de la Fuente: Vital-Gozon had "actually
threatened to stop paying my salary and
allowances on the pretext that he has as yet
no 'approved' appointment even as 'Medical
Specialist II'
Dr Dela Fuente Court of Appeals 
action of "mandamus and damages with
preliminary injunction" to compel Vital-
Gozon, and the Administrative Officer,
Budget Officer and Cashier of the NCH to
comply with the final and executory
resolution. of the Civil Service Commission.
CArequired the respondents to answer +
temporary restraining order (TPO) as
prayed for, and required the respondents to
show cause why it should not be converted
to a writ of preliminary injunction.
Respondent: sinagot through counsel pero
di nagindicate ng address si counsel and
neither was answer filed and was any to
show cause against preliminary injuction
de la Fuente  Court
"Supplemental/Amended Petition" one for
"quo warranto" aside from "mandamus,"
added three respondents including Dr. Jose
Merencilla, Jr.; and... alleged inter alia that
he (de la Fuente) had "clear title" to the
position in question in virtue of the final and
executory judgment of the Civil Service
Commission; that even after the
Commission's judgment had become final
and executory and been communicated to
Vital-Gozon, the latter allowed "Dr.
Merencilla, Jr. as 'OIC Professional Service'
to further usurp, intrude into and unlawfully
hold and exercise the public office/position
of petitioner
CA required answer--. NO ANSWER
Petitions "resolved on the basis of their
allegations and the annexes."
CA: petitioner was declared the lawful and
de jure Chief of Clinics (Chief of the Medical
Professional Staff) of the National Children's
Hospital, and by this token, respondent Dr.
Jose D. Merencilla, Jr. is not legally entitled
to the... office. Respondents, particularly Dr.
Isabelita Vital-Gozon, had no discretion or
choice on the matter; the resolution had to
be complied with. It was ill-advised of
principal respondent, and violative of the
rule of law, that the resolution has not been
obeyed or... implemented.",... and

15 | P a g e
RULES 64-65
February 2, 2011. G.R. No.
170463.*
THE BOARD OF TRUSTEES
OF THE GOVERNMENT
SERVICE INSURANCE
SYSTEM and WINSTON F.
GARCIA, in his capacity as
GSIS President and General
Manager, petitioners, vs
.ALBERT M. VELASCO and
MARIO I. MOLINA,
respondents.
G.R. No. 141637. June 8, 2006.*
ROMY’S FREIGHT SERVICE,
represented by Roman G.
Cruz, petitioner, vs. JESUS C.
CASTRO, DOMINADOR
VELORIA and the FIRST
DIVISION of the COURT OF
APPEALS, respondents.
(illegal dismissal ; exception to
the general rule na kailangan
daw muna ng MR before 65)
16 | P a g e
accordingly ordered
BUT DE LA FUENTE'S PRAYER FOR
DAMAGES -- FOUNDED ESSENTIALLY
ON THE REFUSAL OF GOZON, ET AL. TO
OBEY THE FINAL AND EXECUTORY
JUDGMENT OF THE CIVIL SERVICE
COMMISSION, WHICH THUS
COMPELLED HIM TO LITIGATE ANEW IN
A DIFFERENT FORUM -- WAS DENIED
BY THE COURT OF APPEALS : "petitions
(for mandamus) are not the vehicle nor is
the Court the forum for ** (said) claim of
damages."
DE LA FIUENTE MR allowed him to
claim damages
Thus Rule 65
.
Molina and Velasco, employees of GSIS, 
charged administratively for grave
misconduct and penalized for 90 days of
preventive suspension.
GSIS denied giving them benefits and
promotion pursuant to a resolution issued
by the former.
Molina and Velasco filed  RTC Manila
 petition for PROHIBITION with a prayer
for writ of prelim injunction filed against
GSIS.--> GRANTED
GSIS  appeal + motion to dismiss: RTC
had no jurisdiction over the case since the
issue involves benefits of government
employee, and thus should be filed with the
CSC. In addition, the venue was improperly
laid since the office of Molina is in PASAY
and the case was filed in MANILA.
Castro and Veloria were employees of the
petitioner(RFS). Due to justifiable reasons,
they had to take a leave of absence from
work. Castro suffered stroke while Veloria
encountered and accident while on duty.
Subsequently, RFS sent them letters
demanding them to report to work but they
failed. Hence, they were dismissed from
work.
Castro and Veloria  complaint  vs RFS
 ILLEGAL CONSTRUCTIVE DISMISSAL.
LA RULED IN FAVOR CASTRO AND
VELORIA.
RFS  appealed to NLRC
NLRC reversed
NLRC: Castro and Veloria abandoned their
work so their dismissal was valid.
WITHOUT FILING FOR MOTION FOR
RECONSIDERATION, Castro and Veloria
 Petition for Certiorari under Rule 65 with
the CA.
RFS : dismissed OUTRIGHT yan dapat kasi
Civil Case No. 03-108389 is a petition for prohibition with prayer
for the issuance of a writ of preliminary injunction. Respondents
prayed that the trial court declare all acts emanating from
Resolution Nos. 372, 197, and 306 void and to prohibit petitioners
from further enforcing the said resolutions. Therefore, the trial
court, not the CSC, has jurisdiction over respondents petition for
prohibition. (SEE SEC. 4 OF RULE 65)
The petition for prohibition filed by respondents is a special
civil action which may be filed in the Supreme Court, the Court of
Appeals, the Sandiganbayan or the regional trial court, as the case
may be. It is also a personal action because it does not affect the
title to, or possession of real property, or interest therein. Thus, it
may be commenced and tried where the plaintiff or any of the
principal plaintiffs resides, or where the defendant or any of the
principal defendants resides, at the election of the plaintiff. Since
respondent Velasco, plaintiff before the trial court, is a resident of
the City of Manila, the petition could properly be filed in the City of
Manila. The choice of venue is sanctioned by Section 2, Rule 4 of
the Rules of Court.
The Supreme Court is not a trier of facts, more so in the
consideration of the extraordinary writ of certiorari where neither
questions of fact nor of law are entertained, but only questions of
lack or excess of jurisdiction or grave abuse of discretion. The sole
object of the writ is to correct errors of jurisdiction or grave abuse
of discretion. The phrase ‘grave abuse of discretion’ has a precise
meaning in law, denoting abuse of discretion “too patent and gross
as to amount to an evasion of a positive duty, or a virtual refusal to
perform the duty enjoined or act in contemplation of law, or where
the power is exercised in an arbitrary and despotic manner by
reason of passion and personal hostility.” It does not encompass
an error of law. Nor does it include a mistake in the appreciation of
the contending parties’ respective evidence or the evaluation of
their relative weight.
As a general rule, a motion for reconsideration is needed before a
petition for certiorari under Rule 65 can be resorted to. However,
there are well recognized exceptions to this rule. Private
respondents petition for certiorari before the CA was covered by
the exceptions.
Moreover, the employer-employee relationship between petitioner
and private respondents was impressed with public interest. Thus,
it was proper for the appellate court to take cognizance of the case
even if no motion for reconsideration had been filed by private
respondents with the NLRC.
RULES 64-65
January 14, 2005. G.R. No.
159024.*
LTS PHILIPPINES
CORPORATION and JULIE L.
EVANGELISTA,
petitioners, vs. JOCELYN D.
MALIWAT, MA. THERESA
ROLLE, MYRA ESTANISLAO
and RHODELIA BAUTISTA,
respondents.
(filed after lapse of reglementary
period)
G.R. No. 138297. January 27,
2006.*
DESIDERIO DE LOS REYES
and MYRNA VILLANUEVA,
petitioners, vs. PEOPLE OF
THE PHILIPPINES and HON.
ANTONIO M. EUGENIO, JR.,
Presiding Judge, Regional
Trial Court, Calamba, Laguna,
Branch 34, respondents.
(dapat nag 45, HINDI 65)
17 | P a g e
petition for certiorari should be preceded by
a motion for reconsideration.
CA GRANTED THE PETITION AND
REVERSED THE RULING OF NLRC.
Hence, this petition.
Maliwat, along with 3 other respondents
employees of LTS Phil.
They received a letter informing them that
they're dismissed from work due to the
company's financial crisis.
Maliwat et al for illegal dismissal,
damages, and recovery of monetary
benefits vs LTS
LA favor of respondents. NLRC
AFFIRMED.
Petitioner received a copy of the judgment
on JANUARY 16, 2003 but filed A
PETITION FOR CERTIORARI WITH THE
CA ONLY ON MARCH 18, 2003. CA
DISMISSED THE PETITION FOR BEING
FILED BEYOND THE REGLEMENTARY
PERIOD.
Hence, this petition. Petitioner contends that
the late filing was due to heavy workload of
its counsel that resulted to miscalculation of
the counting of the 60-DAY period within
which to file the said petition.
 Delos Reyes and Villanueva, Petitioners,
charged with violation of R.A. 8048 or the
Coconut Preservation Act of 1995 for
cutting down coconut trees without permit.
MTC ordered them to file their counter-
affidavit from notice.
Petitioners, instead of submitting their
counter-affidavits,  a Motion for
Preliminary Investigation  MTC DENIED.
Petitioner MOTION TO QUASH:
allegations therein do not constitute an
offense. MTC again, denied.
Petitioners a petition for certiorari,
prohibition, and mandamus with the RTC
alleging that the MTC committed grave
abuse of discretion amounting to lack or
excess of jurisdiction when it denied their
Motion To Quash.
RTC DENIED.
Petitioners  appealed CAaffirmed
RTC RULING
CA: since petitioners are raising a question
of law, they should have filed a petition for
review on certiorari with the Supreme Court.
A year after receipt of decision/resolution,
As a rule, periods prescribed to do certain acts must be followed
with fealty as they are designed primarily to speed up the final
disposition of the case.
Such reglementary periods are indispensable interdictions against
needless delays and for an orderly discharge of judicial business.
Deviations from the rules cannot be tolerated. More importantly, its
observance cannot be left to the whims and caprices of the parties.
What is worrisome is that parties who fail to file their pleading
within the periods provided for by the Rules of Court, through their
counsel’s inexcusable neglect, resort to beseeching the Court to
bend the rules in the guise of a plea for a liberal interpretation
thereof, thus, sacrificing efficiency and order.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for
lack of merit.
SO ORDERED.
There was no procedural lapse when petitioners initially appealed
the RTC Orders to the Court of Appeals. BUT what they should
have done after the Appellate Court rendered its Decision affirming
the RTC Orders was to seasonably file with this Court an
appeal via a petition for review on certiorari pursuant to Rule 45 of
the 1997 Rules of Civil Procedure, as amended. Instead, as earlier
mentioned, what they filed with this Court is this petition for
certiorari under Rule 65 of the same Rules. Time and again, we
have ruled that CERTIORARI IS NOT A SUBSTITUTE FOR A
LOST APPEAL.
Even assuming that the instant petition for certiorari is in
order, still we have to dismiss the same. Petitioners failed to
observe the principle of hierarchy of courts. They should have filed
their petition for certiorari with the Court of Appeals. Pursuant to
Section 9 of Batas Pambansa Blg. 129, as amended, the Court of
Appeals has original jurisdiction to issue, among others, a writ of
certiorari.
Even on the merits of the case, this petition is vulnerable to
dismissal. It is a dictum that when a motion to quash in a criminal
case is denied, the remedy is not certiorari, but for petitioners to go
to trial without prejudice to reiterating the special defenses invoked
in their motion to quash. In the event that an adverse decision is
rendered after trial on the merits, an appeal therefrom is the next
legal step.
Moreover, Under Section 4, Rule 65 of the same Rules,
they had sixty (60) days from April 21, 1998 to file this petition for
certiorari. However, they filed it only on May 6, 1999, or after one
(1) year.
WHEREFORE, we DISMISS the instant petition. Costs
against petitioners.
SO ORDERED.
RULES 64-65
petitioner  SC a petition for
CERTIORARI.
G.R. No. 118861. April 27, Relampagos and private respondent
1995.* Cumba were candidates for Mayor of
EMMANUEL M. Magallanes, Agusan del Norte.
RELAMPAGOS,
petitioner, vs. ROSITA C. Cumbaroclaimed the winning candidate,
CUMBA and the COMMISSION with a margin of twenty-two votes over the
ON ELECTIONS, respondents. former.
Relampagos  election protest  RTC
which found the petitioner to have won with
a margin of six votes over the private
respondent and rendered judgment in favor
of the petitioner.
Cumba appealed COMELEC.
RelampagosRTC motion for execution
pending appeal GRANTED
Cumba  MR of the order of execution 
DENIED
Cumba COMELEC  petition for
certiorari to annul the aforesaid order of the
trial court granting the motion for execution
pending appeal and the writ of execution.
GRANTED
Aggrieved by the resolution petitioner
filed this special civil action.  the Court painstakingly examined the aforesaid last paragraph of
April 8, 2008. G.R. No. China Bank granted respondent Asian
158271.-. Construction and Development Corporation
18 | P a g e
This Court proceeded to state that in the Philippine setting,
the authority to issue the aforesaid writs involves the exercise of
original jurisdiction which has always been expressly conferred
either by the Constitution or by law. It is never derived by
implication. ALTHOUGH THE CONSTITUTION GRANTS THE
COMELEC APPELLATE JURISDICTION, IT DOES NOT GRANT
IT ANY POWER TO EXERCISE ORIGINAL JURISDICTION
OVER PETITIONS FOR CERTIORARI, PROHIBITION,
AND MANDAMUS, UNLIKE IN THE CASE OF THIS COURT
WHICH IS SPECIFICALLY CONFERRED WITH SUCH
AUTHORITY IN SECTION 5(1) OF ARTICLE VIII.
In Garcia and Uy, and later, in Veloria, the Court ruled that
the COMELEC has no jurisdiction over the extraordinary writs of
certiorari, prohibition, and mandamus because there is no specific
constitutional or statutory conferment to it of such jurisdiction.—As
earlier stated, in Garcia and Uy, and later, in Veloria, this Court
ruled that the COMELEC has no jurisdiction over the extraordinary
writs of certiorari, prohibition, and mandamus because there is no
specific constitutional or statutory conferment to it of such
jurisdiction.
By the tenor of its aforequoted Repealing Clause, it does
not evidently appear that the Batasang Pambansa had intended to
codify all prior election statutes and to replace them with the new
Code. It made, in fact, by the second sentence, a reservation that
all prior election statutes or parts thereof not inconsistent with any
provisions of the Code shall remain in force. This being the case,
Section 50 of the Omnibus Election Code to determine if the
former is inconsistent with any of the provisions of the latter. It
found none. In the face of the foregoing disquisitions, the Court
must, as it now does, abandon the ruling in
the Garcia and Uy and Veloriacases. We now hold that the last
paragraph of Section 50 of B.P. Blg. 697 providing as follows: The
Commission is hereby vested with exclusive authority to hear and
decide petitions for certiorari, prohibition and mandamus involving
election cases, remains in full force and effect but only in such
cases where, under paragraph (2), Section 1, Article IX-C of the
Constitution, it has exclusive appellate jurisdiction. Simply put, the
COMELEC has the authority to issue the extraordinary writs
of certiorari, prohibition, and mandamus only in aid of its appellate
jurisdiction.
Any motion for execution pending appeal must be filed
before the period for the perfection of the appeal. Pursuant to
Section 23 of the Interim Rules Implementing B.P. Blg. 129, which
is deemed to have supplementary effect to the COMELEC Rules
of Procedures pursuant to Rule 43 of the latter, an appeal would
be deemed perfected on the last day for any of the parties to
appeal, or on 6 July 1994. On 4 July 1994, the private respondent
filed her notice of appeal and paid the appeal fee. On 8 July 1994,
the trial court gave due course to the appeal and ordered the
elevation of the records of the case to the COMELEC. Upon the
perfection of the appeal, the trial court was divested of its
jurisdiction over the case. Since the motion for execution pending
appeal was filed only on 12 July 1994, or after the perfection of the
appeal, the trial court could no longer validly act thereon. It could
have been otherwise if the motion was filed before the perfection
of the appeal. Accordingly, since the respondent COMELEC HAS
THE JURISDICTION TO ISSUE THE EXTRAORDINARY WRITS
OF CERTIORARI, PROHIBITION, AND MANDAMUS, THEN IT
CORRECTLY SET ASIDE THE CHALLENGED ORDER
GRANTING THE MOTION FOR EXECUTION PENDING APPEAL
AND WRIT OF EXECUTION ISSUED BY THE TRIAL COURT.
Considering that the herein assailed CA Resolutions are
interlocutory in nature as they do not dispose of the case
RULES 64-65
CHINA BANKING
CORPORATION,
petitioner, vs. ASIAN
CONSTRUCTION and
DEVELOPMENT
CORPORATION, respondent.
The present petition does not
involve any issue on jurisdiction,
neither does it show that the CA
committed grave abuse of
discretion in denying the motion
to sell the attached property.
G.R. No. 144101. September
16, 2005.*
ANTONIO P. TAMBUNTING,
JR. and COMMERCIAL HOUSE
OF FINANCE, INC.,
petitioners, vs. SPOUSES
EMILIO SUMABAT and
ESPERANZA BAELLO,
respondents.
(UMUTANG. NAGDEFAULT.
NAGLAPSE YUNG TIME.
NILABAN. NATALO! )
19 | P a g e
(ACDC) an Omnibus Credit Line in the
amount of P90, 000,000.00.
China Bank  Complaint for recovery of
sum of money and damages with prayer for
the issuance of writ of preliminary
attachment RTC – Makati, vs respondent
ACDC after it allegedly failed to comply with
its obligations under the Omnibus Credit
Line.
RTC granted China Bank’s prayer for writ
of preliminary attachment.
Consequently, the writ of preliminary
attachment was implemented levying
personal properties of ACDC, i.e., vans,
dump trucks, cement mixers, cargo trucks,
utility vehicles, machinery, equipment and
office machines and fixtures.
China Bank  a Motion to Take Custody of
Attached Properties with Motion for Grant of
Authority to Sell to the Branch Sheriff with
the RTC, praying that it be allowed to take
custody of ACDC’s properties for the
purpose of selling them in an auction to
ACDC  Opposition Motion :THERE CAN
BE NO SALE OF THE LATTER’S
ATTACHED PROPERTIES IN THE
ABSENCE OF A FINAL AND EXECUTORY
JUDGMENT AGAINST ACDC.
China Bank  a Motion for Leave for Grant
of Authority to Sell Attached Properties 
CA DENIED : selling the attached
properties prior to final judgment of the
appealed case is premature and contrary to
the intent and purpose of preliminary
attachment, and that in the event that the
decision of the lower court is reversed and a
final judgment rendered in favor ACDC,
great prejudice will result if the attached
properties were already sold.
China Bank  MR  DENIED in the herein
assailed CA Resolution hence, the present
petition for review on certiorari.
This case involves a dispute over a parcel
of land in Caloocan City.
It was previously registered in the names of
respondents. But they mortgaged it to
Tambunting for security of the loan
amounting to P7,000
Respondents were then informed that their
debt increased to P15k for failure to pay the
monthly amortizations
RESPONDENTS defaulted
(CHFI) as assignee of the mortgage,
initiated foreclosure proceedings BUT IT
DID NOT PUSH THROUGH BECAUSE OF
THE COMPLAINT FOR INJUNCTION
FILED BY RESPONDENTS. But the case
was subsequently dismissed for failure of
parities to appear at the hearing.
completely but leave something to be done upon the merits, the
proper remedy should have been by way of petition
for certiorari under Rule 65, as provided for in Section 1 (b), Rule
41 of the Rules of Court, which provides: An appeal may be taken
from a judgment or final order that completely disposes of the
case, or of a particular matter therein when declared by these
Rules to be appealable. No appeal may be taken from: x x x x (b)
An interlocutory order; x x x x In any of the foregoing instances, the
aggrieved party may file an appropriate special civil action as
provided in Rule 65. 
The present petition for review on certiorari should have been
dismissed outright. However, in many instances, the Court has
treated a petition for review on certiorari under Rule 45 as a
petition for certiorari  under Rule 65 of the Rules of Court, such as
in cases where the subject of the recourse was one of jurisdiction,
or the act complained of was perpetrated by a court with grave
abuse of discretion amounting to lack or excess of jurisdiction. The
present petition does not involve any issue on jurisdiction,
neither does it show that the CA committed grave abuse of
discretion in denying the motion to sell the attached property.
As a rule, only jurisdictional questions may be raised in a
petition for certiorari, including matters of grave abuse of discretion
which are equivalent to lack of jurisdiction. The office of the writ of
certiorari has been reduced to the correction of defects of
jurisdiction solely and cannot legally be used for any other
purpose. Certiorari is truly an extraordinary remedy and, in this
jurisdiction, its use is restricted to truly extraordinary cases - cases
in which the action of the inferior court is wholly void; where any
further steps in the case would result in a waste of time and money
and would produce no result whatever; where the parties, or their
privies, would be utterly deceived; where a final judgment or
decree would be nought but a snare and delusion, deciding
nothing, protecting nobody, a judicial pretension, a recorded
falsehood, a standing menace. It is only to avoid such results as
these that a writ of certiorari is issuable; and even hear an appeal
will lie if the aggrieved party prefers to prosecute it.
WHEREFORE, the petition is DENIED.  SO ORDERED.
An action for declaratory relief should be filed by a person
interested under a deed, will, contract or other written instrument,
and whose rights are affected by a statute, executive order,
regulation or ordinance before breach or violation thereof. The
purpose of the action is to secure an authoritative statement of the
rights and obligations of the parties under a statute, deed,
contract, etc. for their guidance in its enforcement or compliance
and not to settle issues arising from its alleged breach. It may be
entertained only before the breach or violation of the statute, deed,
contract, etc. to which it refers. Where the law or contract has
already been contravened prior to the filing of an action for
declaratory relief, the court can no longer assume jurisdiction over
the action. In other words, a court has no more jurisdiction over an
action for declaratory relief if its subject, i.e., the statute, deed,
contract, etc., has already been infringed or transgressed before
the institution of the action. Under such circumstances, inasmuch
as a cause of action has already accrued in favor of one or the
other party, there is nothing more for the court to explain or clarify
short of a judgment or final order.
Article 1142 of the Civil Code is clear. A mortgage action
RULES 64-65

prescribes after ten years. An action to enforce a right arising from

Respondents  filed an action for a mortgage should be enforced within ten years from the time the
declaratory relief seeking a declaration of right of action accrues. Otherwise, it will be barred by prescription
the extent of their actual indebtedness. and the mortgage creditor will lose his rights under the mortgage.

Petitioners  declared in default for failure

to file an answer with the reglementary
period. moved for dismissal on the ground
that the mortgage deed, had ALREADY
been BREACHED PRIOR to the filing of the
declaratory relief. DENIED : filed out of
time and petitioners had already been
declared in default.

CFI Fixed respondent’s liability at P15k &

authorized them to consign the amount to
the court. And respondents consigned the
amount in 1981

Respondents received a notice of sheriff’s

sale  mortgaged property was foreclosed
by CFHI on Feb 8, 1995 and an extrajudicial
sale of the property would be held on March
27, 1995

Respondents a petition for preliminary

injunction, damages and cancellation of
annotation of encumbrance BUT the public
action scheduled on the same day
proceeded and the property was sold to
CHFI.

Respondents failed to redeem the property.

Hence consolidation of ownership to CHFI

Because of this, respondents  amended

their complaint to an action for nullification
of foreclosure, sheriff’s sale and
consolidation of titie reconveyance and
damages.

RTC the 1981 CFI decision already

attained finality and the mortgage was
extinguished when respondents paid by
consigning the mount in court.

The 10 yr period within which petitioners

should have foreclosed the property was
already barred by prescription. Trial court
nullified the foreclosure and extrajudicial
sale of the property, as well as the
consolidation of title in CHFI’s name in
1995. It then ordered the register of deeds
of Caloocan City to cancel TCT No. 310191
and to reconvey the property to
respondents.

Petitioners claim:
CFI was barred from taking cognizance of
the action for declaratory relief since,
petitioners being already in default in their
loan amortizations, There existed a violation
of the mortgage deed even before the
institution of the action. Hence, the CFI
could not have rendered a valid judgment

G.R. No. 161400. September 2,
2005.*
ZENAIDA ORTEGA,
represented by Her Attorney-
in-Fact OCTAVIO ALVAREZ
and/or ZEMVE ORTEGA
Zenaida Ortega comes directly to the
Supreme Court assailing the validity of a
Quezon City Ordinance which reclassified
―as residential or converted from its
original classification to residential for
distribution or for sale to its informal settlers
This Court can thus only review, revise, reverse, modify on appeal
or certiorari final judgments and orders of lower courts in all cases
in which the constitutionality or validity of, among other things, an
ordinance is in question.
Foremost, therefore, is that there must be first a final judgment

20 | P a g e
RULES 64-65
ALVAREZ, petitioners, vs. THE
QUEZON CITY GOVERNMENT,
THE NATIONAL HOUSING
AUTHORITY & THE NATIONAL
HOME MORTGAGE CORP.,
respondents.
This Court will not entertain
direct resort to it, except when
the redress sought cannot be
obtained in the proper courts or
when exceptional and
compelling circumstances
warrant availment of a remedy
within and calling for the
exercise of this Court’s primary
jurisdiction.
Baguio Citizens Action, Inc.
vs. The City Council
No. L-27247. April 20, 1983.*
IN THE MATTER OF THE
PETITION FOR
DECLARATORY JUDGMENT
REGARDING THE VALIDITY
OF ORDINANCE NO. 386 OF
THE CITY OF BAGUIO,
BAGUIO CITIZENS ACTION
INC., and JUNIOR CHAMBER
OF BAGUIO CITY, INC.,
petitioners-appellants, vs. THE
CITY COUNCIL AND CITY
MAYOR OF THE CITY OF
BAGUIO, respondents-
appellees.
(ORDINANCE declaring
squatters as bonafide occupants
of their respective lots)
21 | P a g e
a ―parcel of land which may be considered
as accretion/excess lot and to those lots
previously referred to when the ordinance
has just been proposed.
Ortega rightful owner of the land subject
of the ordinance various letter-protests
which contains all her claims, were not
heeded in the City Council
ORTEGA: My constitutional rights to due
process and equal protection of the law.
The Quezon City government alleges that
the present petition raises a question of fact
which entails reception of evidence.
The petition for declaratory relief filed with
the Court of First Instance of Baguio,
Branch II, prays for a judgment declaring
the Ordinance ,
‘AN ORDINANCE CONSIDERING ALL
SQUATTERS OF PUBLIC LAND, OTHER
THAN THOSE EARMARKED FOR PUBLIC
USE IN THE CITY OF BAGUIO WHO ARE
DULY REGISTERED AS SUCH AT THE
TIME OF THE PROMULGATION OF THIS
ORDINANCE AS BONAFIDE OCCUPANTS
OF THEIR RESPECTIVE LOTS AND
WHICH SHALL HEREAFTER BE
EMBRACED AS A CITY GOVERNMENT
HOUSING PROJECT AND PROVIDING
FOR OTHER PURPOSES’ passed by the
City Council.-->AS INVALID AND ILLEGAL
AB INITIO.
City Council and the City Mayormotion to
dismiss
DENIED
NONETHELESS, IN THE DECISION
THEREAFTER RENDERED, THE
PETITION WAS DISMISSED grounds
1) another court, the Court of First Instance
of Baguio, Branch I, had declared the
Ordinance valid in a criminal case filed
against the squatters for illegal construction,
and the Branch II of the same court cannot,
in a declaratory proceeding, review and
determine the validity of said judgment
pursuant to the policy of judicial respect and
stability;
rendered by an inferior court before this Court can assume
jurisdiction over a case of this nature. Verily, this Court does not
conduct original and full trial of a main factual issue like what
petitioner is raising in the present petition. It does not analyze or
weigh evidence brought before it at the first instance, otherwise, it
would preempt the primary function of the lower court to try the
case on the merits, receive evidence, and decide the case
definitively. Its jurisdiction in cases which assail the validity of an
ordinance is limited to reviewing or revising final judgments or
orders of lower courts and applying the law based on their findings
of facts brought before it.
Respecting petitioner’s contention that since the ordinance
violates national laws, the present petition delves on questions of
law over which this Court has original jurisdiction, the same fails.
As reflected above, PETITIONER’S ASSERTION THAT THE
INVALIDITY OF THE ORDINANCE IS PREMISED ON HER
CLAIM THAT SHE HAS A BETTER RIGHT TO THE PARCEL OF
LAND REFERRED TO IN THE ORDINANCE IS A FACTUAL
ISSUE. AT ALL EVENTS, EVEN IF THIS PETITION DELVES ON
QUESTIONS OF LAW, THERE IS NO STATUTORY OR
JURISPRUDENTIAL BASIS FOR ACCORDING TO THIS COURT
ORIGINAL AND EXCLUSIVE JURISDICTION OVER
DECLARATORY RELIEF WHICH ADVANCES ONLY
QUESTIONS OF LAW.
While a petition for declaratory relief may be treated as one
for prohibition if it has far reaching implications and raises
questions that need to be resolved, there is no allegation of facts
by petitioner tending to show that she is entitled to such a writ. The
judicial policy must thus remain that this Court will not entertain
direct resort to it, except when the redress sought cannot be
obtained in the proper courts or when exceptional and compelling
circumstances warrant availment of a remedy within and calling for
the exercise of this Court’s primary jurisdiction.
.
The case before the Court of First Instance of Baguio, Branch I,
dealt with the criminal liability of the accused for constructing their
houses without obtaining building permits, contrary to Section 47 in
relation to Section 52 of the Revised Ordinances of Baguio, which
act the said court considered as pardoned by Section 2 of
Ordinance 386. The court in said case upheld the power of the
Municipal Council to legalize the acts punished by the aforesaid
provisions of the Revised Ordinances of Baguio, stating that the
Municipal Council is the policy determining body of Baguio City
and therefore it can amend, repeal, alter or modify its own laws as
it did when it enacted Ordinance 386. In deciding the case, the first
branch of the court a quo did not declare the whole Ordinance
valid. This is clear when it stated that “had the issue been the
legalization of illegal occupation of public land, covered by
Republic Act No. 947, x x x the ORDINANCE IN QUESTION
SHOULD HAVE BEEN ULTRA VIRES AND
UNCONSTITUTIONAL.” SAID COURT MERELY CONFINED
ITSELF TO SECTIONS 2 AND 3 OF ORDINANCE 386. IT DID
NOT MAKE ANY DEFINITE PRONOUNCEMENT WHETHER OR
NOT THE CITY COUNCIL HAS THE POWER TO LEGALIZE THE
ILLEGAL OCCUPATION OF PUBLIC LAND WHICH IS THE
ISSUE IN THE INSTANT CASE. It is noteworthy that the court, IN
PASSING UPON THE VALIDITY OF THE AFORESAID
SECTIONS, WAS APPARENTLY GUIDED BY THE RULE THAT
WHERE PART OF A STATUTE IS VOID AS REPUGNANT TO
THE ORGANIC LAW, WHILE ANOTHER PART IS VALID, THE
VALID PORTION, IF SEPARABLE FROM THE INVALID MAY
STAND AND BE ENFORCED. Contrary to what was said in the
decision under review, the second branch of the court a quo was
not called upon to determine the validity of the judgment of the first
branch
The non-inclusion of the squatters mentioned in the
Ordinance in question as party defendants in this case cannot
defeat the jurisdiction of the Court of First Instance of Baguio.
RULES 64-65
2) those who come within the protection of
the ordinance have not been made parties
to the suit in accordance with Section 2 of
Rule 64 and it has been held that the non-
joinder of such parties is a jurisdictional
defect;
3) the court is clothed with discretion to
refuse to make any declaration where the
declaration is not necessary and proper at
the time under all circumstances, e.g. where
the declaration would be of no practical help
in ending the controversy or would not
stabilize the disputed legal relation
Hence, the instant appeal which was
perfected in accordance with the provisions
of Rule 42
22 | P a g e
There is nothing in Section 2 of Rule 64 of the Rules of Court
which says that the non-joinder of persons who have or claim any
interest which would be affected by the declaration is a
jurisdictional defeat. Said section merely states that “ALL
PERSONS SHALL BE MADE PARTIES WHO HAVE OR CLAIM
ANY INTEREST WHICH WOULD BE AFFECTED BY THE
DECLARATION; AND NO DECLARATION SHALL, EXCEPT OR
OTHERWISE PROVIDED IN THESE RULES, PREJUDICE THE
RIGHTS OF PERSONS NOT PARTIES TO THE ACTION.” This
section contemplates a situation where there are other persons
who would be affected by the declaration, but were not impleaded
as necessary parties, in which case the declaration shall not
prejudice them.
IF AT ALL, THE CASE MAY BE DISMISSED NOT ON THE
GROUND OF LACK OF JURISDICTION BUT FOR THE
REASON STATED IN SECTION 5 OF THE SAME RULE
STATING THAT “THE COURT MAY REFUSE TO EXERCISE
THE POWER TO DECLARE RIGHTS AND TO CONSTRUE
INSTRUMENTS IN ANY CASE WHERE A DECISION WOULD
NOT TERMINATE THE UNCERTAINTY OR CONTROVERSY
WHICH GAVE RISE TO THE ACTION, OR ANY CASE WHERE
THE DECLARATION OR CONSTRUCTION IS NOT
NECESSARY AND PROPER AT THE TIME UNDER ALL
CIRCUMSTANCES.”
It must be noted that the REASON FOR THE LAW REQUIRING
THE JOINDER OF ALL NECESSARY PARTIES IS THAT
FAILURE TO DO SO WOULD DEPRIVE THE DECLARATION OF
THE FINAL AND PACIFYING FUNCTION THE ACTION FOR
DECLARATORY RELIEF IS CALCULATED TO SUBSERVE, AS
THEY WOULD NOT BE BOUND BY THE DECLARATION AND
MAY RAISE THE IDENTICAL ISSUE. In the case at bar, although
it is true that any declaration by the court would affect the
squatters, the latter are not necessary parties because the
question involved is the power of the Municipal Council to enact
the Ordinances in question. WHETHER OR NOT THEY ARE
IMPLEADED, ANY DETERMINATION OF THE CONTROVERSY
WOULD BE BINDING UPON THE SQUATTERS.
This is not true in the instant case. A declaration on the nullity of
the ordinance, would give the squatters no right which they are
entitled to protect. The party most interested to sustain and defend
the legality of the Ordinance is the body that passed it, the City
Council, and together with the City Mayor, is already a party in
these proceedings.
Being unquestionably a public land, no disposition thereof could be
made by the City of Baguio without prior legislative authority. It is
the fundamental principle that the state possesses plenary power
in law to determine who shall be favored recipients of public
domain, as well as under what terms such privilege may be
granted not excluding the placing of obstacles in the way of
exercising what otherwise would be ordinary acts of ownership.
And the law has laid in the Director of Lands the power of
exclusive control, administrations, disposition and alienation of
public land that includes the survey, classification, lease, sale or
any other form of concessions or disposition and management of
the lands of public domains. Nor could the enactment of
Ordinance 386 be justified by stating that “this Ordinance is
primarily designed to extend a helping hand to the numerous
landless city residents and the so called squatters within the
Baguio townsite in their desire to acquire residential lots which
they may rightly call their own and that the reported people who
have violated the City’s building ordinances were not so guided by
any criminal perversity, but were given to it more by circumstances
of necessity and that they are, therefore, entitled to a more human
treatment, more understanding and more of pity rather than be
herded before the courts, likened to hardened criminals and
deliberate violators of our laws and ordinances.”
Indeed, the government has enunciated a militant policy against
RULES 64-65
G.R. No. 126911. April 30,
2003.*
PHILIPPINE DEPOSIT
INSURANCE CORPORATION,
petitioner vs. THE
HONORABLE COURT OF
APPEALS and JOSE ABAD,
LEONOR ABAD, SABINA
ABAD, JOSEPHINE “JOSIE”
BEATA ABAD-ORLINA,
CECILIA ABAD, PIO ABAD,
DOMINIC ABAD, TEODORA
ABAD, respondents.
A SPECIAL CIVIL ACTION IS
AFTER ALL NOT
ESSENTIALLY DIFFERENT
FROM AN ORDINARY CIVIL
ACTION, WHICH IS
GENERALLY GOVERNED BY
RULES 1 TO 56 OF THE
RULES OF COURT, EXCEPT
THAT THE FORMER DEALS
WITH A SPECIAL SUBJECT
MATTER WHICH MAKES
NECESSARY SOME SPECIAL
REGULATION. BUT THE
IDENTITY BETWEEN THEIR
FUNDAMENTAL NATURE IS
SUCH THAT THE SAME
RULES GOVERNING
ORDINARY CIVIL SUITS MAY
AND DO APPLY TO SPECIAL
CIVIL ACTIONS IF NOT
INCONSISTENT WITH OR IF
THEY MAY SERVE TO
SUPPLEMENT THE
PROVISIONS OF THE
PECULIAR RULES
GOVERNING SPECIAL CIVIL
ACTIONS.
G.R. No. 73022. February 9,
1989.>
GEORGIA ADLAWAN, Owner,
RAMON VILLORDON and
MANUEL VILLORDON,
Shareholders and
Operators/Managers of the
GALLERA BAGONG LIPUNAN,
and the SANGGUNIANG
BAYAN OF MINGLANILLA,
CEBU, petitioners, vs. THE
HON. INTERMEDIATE
APPELLATE COURT, THE
HON. REGIONAL TRIAL
COURT, Branch XIII, Cebu
City, the PHILIPPINE
GAMEFOWL COMMISSION,
NICOLAS ENAD, ABELARDO
23 | P a g e
Respondents had 71 Golden Time
Deposits(GTDs) in Manila Banking
Corporation(MBC).
HOWEVER, Bangko Sentral of the
Philippines issued a memorandum
prohibiting MBC to do business in the
Philippines and placed its assets under
receivership.
On the next banking day, Jose Abad pre-
terminated his 71 GTDs and redposited the
fund into 28 GTDs in larger denominations.
Respondent  claims for the payment of
the insured GTDs.
PDIC :the insured GTDs should not be
recognized since they were mere
derivatives of respondents previous account
balances pre-terminated at the time the
MBC was aslready in serious financial
distress. Under our charter, we are only
liable for deposits received in the usual
course of business!
Petitioner petition for declaratory relief
against respondents for a judicial
determination of the insurability of
respondents.
In turn, Jose Abad SET UP A COUNTER-
CLAIM against PDIC whereby they asked
for payment of the insured deposits.
The SC later on ruled in favor of the
respondents due to petitioner having failed
to overcome the presumption that it was
issued in the ordinary course of business.
The trial court then ordered petitioner to pay
the balance of the deposit insurance to
respondents.
Prior to the advent of martial law, there
were two cockpits operating under license in
the municipality of Minglanilla, Cebu,
namely
(1)The Coliseum which is owned and
operated by private respondents, and
(2)Gallera which is owned and operated by
herein petitioners.
PROMLUGATION PD 449 of Presidential
Decree No. 449, otherwise known as the
Cockfighting Law of 1974, which provided
for the “one cockpit for every municipality”
rule, the question arose as to which cockpit
shall remain to operate and which shall be
closed.
squatters. Thus, Letter of Instruction No. 19 dated October 2, 1972
orders city and district engineers ‘to remove all illegal constructions
including buildings x x x and those built without permits on public
or private property’ and providing for the relocation of squatters (68
O.G. 7962. See Letter of Instruction No. 19-A). As noted by Justice
Sanchez, since the last global war, squatting on another’s property
in this country has become a widespread vice. (City of Manila vs.
Garcia, L-26053, Feb. 21, 1967, 19 SCRA 413, 418).”
Without doubt, a petition for declaratory relief does not essentially
entail an executory process. There is nothing in its nature,
HOWEVER, that prohibits a counterclaim from being set-up in the
same action.
Now, there is nothing in the nature of a special civil action for
declaratory relief that proscribes the filing of a counterclaim based
on the same transaction, deed or contract subject of the complaint.
A SPECIAL CIVIL ACTION IS AFTER ALL NOT ESSENTIALLY
DIFFERENT FROM AN ORDINARY CIVIL ACTION, WHICH IS
GENERALLY GOVERNED BY RULES 1 TO 56 OF THE RULES
OF COURT, EXCEPT THAT THE FORMER DEALS WITH A
SPECIAL SUBJECT MATTER WHICH MAKES NECESSARY
SOME SPECIAL REGULATION. BUT THE IDENTITY BETWEEN
THEIR FUNDAMENTAL NATURE IS SUCH THAT THE SAME
RULES GOVERNING ORDINARY CIVIL SUITS MAY AND DO
APPLY TO SPECIAL CIVIL ACTIONS IF NOT INCONSISTENT
WITH OR IF THEY MAY SERVE TO SUPPLEMENT THE
PROVISIONS OF THE PECULIAR RULES GOVERNING
SPECIAL CIVIL ACTIONS.
Petitioner additionally submits that the issue of determining
the amount of deposit insurance due respondents was never
tried on the merits since the trial dwelt only on the
"determination of the viability or validity of the deposits" and
no evidence on record sustains the holding that the amount
of deposit due respondents had been finally determined.  This
issue was not raised in the court a quo, however, hence, it
cannot be raised for the first time in the petition at bar.
WHEREFORE, the assailed decision of the Court of Appeals is
hereby AFFIRMED. SO ORDERED.
Prior to the imposition of martial law, the governing law on
Philippine cockfighting was Republic Act No. 1224, effective on
May 17, 1955, which specifically vested regulatory and supervisory
powers over cockpits in the local legislative bodies. IT IS CLEAR
FROM THIS STATUTORY PROVISION THAT IT IS
DISCRETIONARY UPON THE MUNICIPAL COUNCIL TO FIX
THE LOCATION OF COCKPITS IN THEIR JURISDICTION AND
DETERMINE THE ALLOWABLE DISTANCE THEREOF FROM
PUBLIC BUILDINGS, THRU THE PASSAGE OF A MUNICIPAL
ORDINANCE. REPUBLIC ACT. NO. 1224, HOWEVER,
SPECIFICALLY PROHIBITS THE RETROACTIVE APPLICATION
OF ANY SUCH MUNICIPAL ORDINANCE TO COCKPITS
ALREADY EXISTING AT THE TIME OF ITS ENACTMENT,
SPECIFICALLY WITH RESPECT TO THE FIXING OF
DISTANCES AT WHICH SAID COCKPITS MAY BE
ESTABLISHED.
Section 6 of Presidential Decree No. 449 empowered the
RULES 64-65
LARUMBE and MARTINIANO
DE LA CALSADA, all
Shareholders of the
MINGLANILLA JUNIOR
COLISEUM, respondents.
(DECISION OF IAC IS LEGAL)
No. L-29673. November 12,
1987.*
THE VISAYAN PACKING
CORPORATION, petitioner, vs.
THE REPARATIONS
COMMISSION and THE
COURT OF APPEALS,
respondents.
(cannery)
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The Municipal Councilfavored of the
cockpit arena owned by herein petitioners.
Private respondents action for
declaratory relief with injunction  CFI
GRANTED
Petitioners appeal  IAC
During the pendency of the appeal Diores
sold Gallera Cockpit to Adlwan
Diores filed motion to withdraw and/or
dismiss her appeal IAC GRANTED 
FINAL
Adlawan MR: Diores acted with malice
and bad faith in moving for the withdrawal
and/or dismissal of the appeal since the
latter was no longer the owner of the
Gallera cockpit the same having been sold
to said petitioner who thus became the real
party in interest in the appeal.
Upon motion of the private
respondentsCFI writ of execution for
the enforcement of its decision by reason of
the dismissal of the appeal therefrom.
IAC denied petitioner’s MR : final na yung
judgment.
PETITION to review the resolution IAC
A “Contract of Conditional Purchase and
Sale of Reparation Goods”  VISPAC and
REPACOM  cannery plant, a tin
manufacturing plant, and three (3) fishing
boats were sold to the former amounting to
P1.1M payable in 10 equal yearly
installments with interest.
Prior to the due date of the first installment
REPACOM sent VISPAC a written
reminder thereof.
VISPAC’S FILE A SPECIAL CIVIL
ACTION FOR DECLARATORY RELIEF,
alleging ambiguity in the contract as to the
precise time when the obligation to pay the
first installment of the price would arise.
REPACOM  collection suit for Petitioner’s
failure to pay the 1st installment despite
several demands.
VISPAC moved to dismiss collection suit
(pendency of the declaratory relief actions,
arguing that until and unless the latter were
resolved, no cause of action could be
deemed to exist in favor of REPACOM for
collection of said first installment)
The CFI denied petitioner’s motion to
municipal mayors to issue licenses for the operation of cockpits,
initially subject to the approval of the Chief of Constabulary or his
authorized representative and, as later amended, subject to the
review and supervision of the Philippine Gamefowl Commission.
For all intents and purposes, this provision of law specifically
entrusts the sole authority to issue permits to the mayors. The
municipal council’s duty is merely to ratify the mayor’s decision
before the same can be actually implemented. But the council
cannot, on its own instance or initiative, pass upon the licensability
of a particular cockpit and thereafter recommend it to the mayor for
approval. This reverse procedure is what petitioners would wish to
be adopted, albeit erroneously, in pleading the aforementioned
Resolution No. 40 which recognized petitioners’ Gallera as the
legal municipal cockpit. Furthermore, Resolution No. 40 was
passed by the Municipal Council of Minglanilla with the
concurrence only of the vice-mayor. The then mayor of Minglanilla,
the late Felicisimo Cana, had no participation therein, as correctly
found by the trial court. ON THESE CONSIDERATIONS,
SAID ULTRA VIRES RESOLUTION HAS NO BINDING EFFECT
AND CANNOT BE PLAUSIBLY INVOKED BY PETITIONERS.
A note on a procedural aspect in this case is, however, in
order. This action was initiated on a petition for declaratory relief,
ostensibly for declaration of the rights and obligations of the parties
under the laws and ordinances involved therein or invoked by
them. Consequently, in such special civil action the judgment does
not essentially entail an executory process since generally, other
than a declaration of such rights and duties, other affirmative
reliefs, as these are understood in ordinary civil actions, are not
sought by the proponent. HOWEVER, THE COURT HAS HELD
THAT ALTHOUGH THE ACTION IS FOR A DECLARATORY
JUDGMENT BUT THE ALLEGATIONS IN THE COMPLAINTS
ARE SUFFICIENT TO MAKE OUT A CASE FOR SPECIFIC
PERFORMANCE OR RECOVERY OF PROPERTY WITH
CLAIMS FOR DAMAGES, AND THE DEFENDANTS DID NOT
RAISE AN ISSUE IN THE TRIAL COURT TO CHALLENGE THE
REMEDY OR FORM OF THE ACTION AVAILED OF, THE
COURT CAN GRANT SUCH AFFIRMATIVE RELIEF AS MAY BE
WARRANTED BY THE EVIDENCE. This decisional rule applies to
the case at bar.
It is indeed the rule, embodied in Section 4, Rule 9 of the
Rules of Court, that a counterclaim not set up shall be barred if it
arises out of or is necessarily connected with the transaction or
occurrence that is the subject matter of the opposing party’s claim
and does not require for its adjudication the presence of third
parties of whom the court cannot acquire jurisdiction. In other
words, a compulsory counterclaim cannot be made the subject of a
separate action but should be asserted in the same suit involving
the same transaction or occurrence giving rise to it. The omission
is not however irremediable or irreversibly fatal. The Rules provide
that when a pleader fails to set up a counterclaim through
oversight, inadvertence, or excusable negligence, or when justice
requires, he may, by leave of court, set up the counterclaim or
cross-claim by amendment before judgment. Where the
counterclaim is made the subject of a separate suit, it may be
abated upon a plea of auter action pendant or lids
pendentia, and/or dismissed on the ground of res adjudicata. Res
adjudicata may be pleaded as a ground for dismissal if the
opposing party’s claim, involving the same transaction or
occurence as the counterclaim, has already been adjudicated on
the merits by a court of competent jurisdiction, and the judgment
has become final; this, on the theory that what is barred by prior
judgment are not only the matters squarely raised and litigated, but
all such other matters as could have been raised but were not.
Now, there is nothing in the nature of a special civil action for
declaratory relief that proscribes the filing of a counterclaim based
on the same transaction, deed or contract subject of the complaint.
A special civil action is after all not essentially different from an
ordinary civil action, which is generally governed by Rules 1 to 56
RULES 64-65

dismiss and ordered the payment of the full
amount plus interest.
VISPAC appeal  CA DENIED
Hence, this decision
of the Rules of Court, except that the former deals with a special
subject matter which makes necessary some special regulation.
But the identity between their fundamental nature is such that the
same rules governing ordinary civil suits may and do apply to
special civil actions if not inconsistent with or if they may serve to
supplement the provisions of the peculiar rules governing special
civil actions.

Ideally, in the case at bar, the separate action for

collection should have been dismissed and set up as
a compulsory counterclaim in the declaratory relief suits,by way of
an amended answer. This was not done.The actions proceeded
separately and were decided on the merits. The final verdict was
that the declaratory relief suits instituted by VISPAC were
unmeritorious, quite without foundation and, in the light of all the
relevant facts, appear to have been initiated by VISPAC merely to
obstruct and delay the payment of the installments clearly due
from it, payment of which was decreed in the collection suit. Under
the circumstances, and taking account of the not inconsiderable
length of time that the case at bar has been pending, it would be to
do violence to substantial justice to pronounce the proceedings
fatally defective for breach of the rule on compulsory
counterclaims. Rules of procedure are after all laid down in order
to attain justice. They cannot be applied to prevent the
achievement of that goal.Form cannot prevail over substance. 13

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