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Provisional Remedies Finals Richard Allan A.

Lim
Receivership (Rule 59) 1. Accion Interdictal
- Unlike in attachment which creates a lien, a. Forcible entry (detentacion) - takes place when a
receivership does not create a lien to any of the person is deprived of the possession of land or
parties nor does it resolve any of the main issues of building by means of Force, Intimidation,
the case Strategy, Threat or Strategy
- A counterbond can dissolve the receivership under i. Possession was unlawful from the
Sec. 3 beginning
ii. Must be made within one year from the
Replevin (Rule 60) time of forcible entry or one year from
- It is a possessory action discovery in case of stealth and strategy
- It usually resolves issues of possession only, but can iii. There can be no belated tolerance after
resolve the issue of ownership if such was raised in unlawful occupation
the action (Chiong Liong Tan) in order to avoid iv. Such FISTS is exclusive grounds for
multiplicity of suits forcible entry, if it is not under these
- If all the requisites for the application for replevin grounds, file for accion publiciana
are present, then there is an action for replevin v. There must be an intentional and
(Tillson vs. CA) deliberate act, honest mistake is not
- Prior and contemporaneous service of summons forcible entry
applies when replevin is the main cause of action, b. Unlawful detainer (desahucio) - which is the
and such is filed at the commencement of the action withholding by a person from another of the
- Prior and contemporaneous service of summons does possession of land or building to which the latter
not apply when replevin is availed of as a is entitled to after the expiration or termination of
provisional remedy the formers right to hold possession under a
- Replevin is usually resorted to by financing contract, express or implied (includes tolerance
companies, where the replevin action leads to or which must be present in the beginning)
ended up in foreclosure or cancellation of the i. Possession was lawful in the beginning
contract based on Recto Law or Art. 1484 where the ii. Must be made within one year from the
seller chooses to apply for replevin and recover the time detention becomes unlawful (from
property. Recto Law was enacted to protect the time of last written demand) under
purchasers on installment for the practices of seller Sec 2.
which could lead to unjust enrichment iii. There is no unlawful detainer if there is
- Failure to pay 4 or 5 times on installment is not no contract between the parties
necessarily wrongful detention, there must be first 2. Accion publiciana - for recovery of possession of property
demand. If after demand and no action was done, when it does not fall under (1), or when exceeded the one
then there is wrongful detention year period allowed.
3. Accion reivindicatoria or de Reivindicacion - for recovery
Filipinas Investment vs. Ca, Nonato vs. CA of both the possession and the ownership
- The Recto law applies in this case
- Usually in cases where personal property is Notes:
purchased through loan via chattel mortgage, but it Sarona vs. Villegas
depends on the nature of the case 1. Forcible entry is summary in nature, while unlawful
detainer is not.
Bagalihog vs. Fernandez 2. A forcible entry case cannot be converted into an unlawful
- Object illegally seized cannot be considered as under detainer case, otherwise prescription will not take place
custodia legis and thus cannot be used as a defense 3. Force is the mere fact that some unlawfully took
against replevin possession of your real property, there is no need for war
- Wrongful taking is the most important aspect or violence
- The opposite happened in the case of PAAT vs. CA, Pajuyo vs. CA
as the truck was validly seized due to it being used to - What is resolved is the issue of physical
illegally haul forest material possession/possession de facto and not possession as an
incident of ownership/possession de jure
Rule 70 (Forcible Entry and Unlawful Detainer) - Ejectment covers public lands as well as in the case where
Ejectment is a real action (possession and ownership of one takes possession of land with the intention to obtain
property) but follows special rules, hence considered as a title provided it is in good faith
special civil action Francel vs. CA
Jurisdiction for Publiciana, Reivindicatoria: - Not a simple case of unlawful detainer if the issue
If value of property is less than or equal to P 20,000 (P 50,000 involved is the rights and obligations between the
in Metro Manila), the jurisdiction is with the MTC. Otherwise, subdivision owner and the buyer, such should be referred
RTC. For ejectment it is the MTC whatever the value. to the HLURB. Failure to execute absolute Deed of Sale
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Provisional Remedies Finals Richard Allan A. Lim
by subdivision owner can be basis of complaint before 12. RTC ruling against defendant is immediately executory,
HLURB. Buyers failure to comply is cognizable by without prejudice to further appeal.
regular courts 13. Demand to vacate applies only to lease contracts and
where there was lawful possession, is not necessary in
1. Demand must be in writing cases of forcible entry and expiration of the lease contract
2. There is valid notice if by registered mail even there is 14. There is implied renewal of lease or Tacita reconduccion
failure to by the other party to receive the written notice to when as provided for in Art. 1670 NCC when the lessor
pay rentals and vacate the premises upon the expiration of the lease contract does not give
3. In case of conditional sale as stated in Leano vs. CA, there notice that he is renewing the lease contract within 15
must be: days from the expiration. Such renewal is not for the
a. Notice of cancellation through notarial recession, original period but for the period of payment.
b. Return of cash surrender value, which is 50% at 15. If notice is given upon the expiration of the contract, the
5% for every year after 5 years but no more than lessor could file unlawful detainer case even without
90% demand to vacate. However under Sec. 2, there is
4. As ruled in Villena vs. Chavez 415 SCRA 33, force necessity for notice when the reason is non-payment of
against person in extrajudicial ejectment is against the rentals or tolerance
law, and extrajudicial ejectment does not confer 16. Motion to dismiss is prohibited except in cases of lack of
possession, in relation to Art. 546 NCC jurisdiction or failure to comply with conciliation
5. Proceedings in ejectment are different such that there are proceedings under Sec. 12. As stated in Art. 467 NCC,
mandatory periods which shorten the periods, as well as any of the co-owners can file for ejectment
prevent the filing of prohibited pleadings with the 17. It is not the non-payment of rentals that renders the
intention to delay. possession unlawful but the refusal to vacate the premises
6. Motion to dismiss is prohibited except for lack of despite the demand.
jurisdiction over subject matter, and when there is failure 18. The fact that there is no demand to vacate is one of the
to comply with conciliation (baranggay). Lack of defenses that can be used against ejectment cases
conciliation must be raised otherwise it is deemed waived. 19. If there is no mention of non-compliance to conciliation
7. Reglamentary periods proceedings in the defendants answer, then such is
a. Answer - 10 days from summons (no extension) deemed waived
b. Answer to counterclaims, cross-claims - 10 days 20. Under Sec. 16, ownership as an issue will only be
from service of answer where they are pleaded resolved if necessary to resolve the issue of who is
c. Preliminary conference - 30 days from last entitled to possession, but otherwise ownership is not
answer resolved in ejectment cases
d. Order for record of preliminary conference - 5 21. If there is claim that possession is based on agricultural
days after preliminary conference tenancy under Sec. 3, then the court should conduct a
e. Submission of affidavits and position papers - 10 hearing to determine if such is really based on agricultural
days after Order tenancy to refer the dispute to DARAB.
f. Judgment - 30 days after receipt of affidavits and
position papers, or after expiration of period Rule 61.
g. Submission of affidavits to clarify the certain Support pendente lite
material facts - 10 days from order. - Such is made at the commencement of the action or
h. Judgment based on clarified material facts - 15 before final judgment or order, in a proper action
days from receipt of last affidavit or expiration of - It is available in criminal cases
period of filing - Who shall file? (in preferential order)
8. Prohibited pleadings under Sec. 13. Certiorari allowed o Offended party
only in cases in summary procedure where there is o Parents
unnecessary delay or when there is gross negligence of o Grandparents
counsel as to deprive due process. o Guardians
9. Preliminary conference governed by Rule 18 o In default of all preceding, the State
10. Preliminary injunction available to both Forcible entry Cases
and unlawful detainer, Lerma vs. CA
a. Must be filed within 15 days from filing - Adultery is a defense against support pendente lite as it is
complaint. a ground for legal separation
b. Motion must be decided within 30 days Reyes vs. CA
c. If in appeal taken, see Sec. 19 - Adultery while a good defense should be proven and not
11. Execution stayed under Sec. 19 just based on mere allegations
a. Appeal by defendant - The amount awarded should be based on the merits of the
b. Deposit of supersedeas bond by defendant, and case based on evidence presented
payment of monthly rentals as determined by the Ramos vs. CA
MTC
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Provisional Remedies Finals Richard Allan A. Lim
- The provisional character of support pendente lite should
not be made to rely on final outcome of the case, hence it Cases:
is executory even if the adverse party appeals the case. Lozada vs. COMELEC
- Petition dismissable if the petitioner does not have the
Rule 62 legal standing specific to the case at hand
Interpleader - Mandamus not issuable in doubtful cases
- When the are conflicting claims on the same subject o Petitioner asking must have clear right
matter against a party who has no interest in the subject o Quasi-judicial body must have clear duty
matter, such party may file the action to resolve who shall corresponding to said right
be entitled between the claimants
Kho vs. COMELEC
Cases - In cases of grave abuse of discretion on the part of
Ocampo vs. Tirona COMELEC, the remedy is not en banc but Certiorari
- Interpleader is proper in lease contracts where the leasee under Rule 65
does not know who among the people claiming payment
should be given payment for lease Garces vs. COMELEC
- There should be conflicting claims for a party to be - No legal right to a position which is not vacated, hence
entitled to file interpleader suit Mandamus cannot lie
- Mandamus which seeks to enforce legal duties is not
Beltran vs. PHHC, Eternal Gardens vs. First Division IAC proper remedy but Quo Warranto which seeks to test the
- There should be conflicting claims for a party to be doubtful claim to office sought to be oustered
entitled to file interpleader suit - Certiorari upon SC under Rule 64 is for election
decisions, disputes and controversies and does not cover
Wack-wack Golf and Country Club vs. Won administrative decisions
- If the claims have been settled and there is no longer
conflict, interpleader no longer available for party. Rule 65. Certiorari
- Petitioners must allege that the tribunal acted with grave
Rule 63. abuse of discretion amounting to lack or in excess of
Declaratory Relief jurisdiction
- Any person interested under a deed, will, contract or other - Certiorari is not the remedy for appeal lost due to
written instrument, or whose rights are affected by a negligence, nor is available when adequate remedies are
statute, executive order or regulation, ordinance, or any present which is Motion for Reconsideration.
other governmental regulation may, before breach or - Only in case administrative body exercises quasi-
violation thereof bring an action in the appropriate judicial power, not if exercising quasi legislative power
Regional Trial Court to determine any question of or purely administrative function
construction or validity arising, and for a declaration of Jurisdiction Exercise of Jurisdiction
his rights or duties, thereunder. Error in jurisdiction is what The decision or all questions
should be shown in certiorari arising from the case
Cases case
Lim vs. Republic, Commissioner vs. Domingo Refers to the authority to hear Errors or judgment are
- There is no proceeding established by which the court can and decide the case reviewable only by appeal
declare the citizenship or status of a person -
Rule 43 (Petition for Rule 65 (Petition for
Reparations Committee vs. Northern Lines, Olleda vs. CA Review) Certiorari)
- The filing of action for declaratory relief must be made 1. Ordinary Appeal 1. Special Civil Action
before the breach or violation 2. There must be exhaustion 2. No other plain, speedy or
of administrative remedies adequate remedy
DyPoco vs. Commsioner, Kawasaki Port Service vs. Amores 3. Covers both questions of 3. Questions of law or errors
- The facts must be settled and there are no issues to be fact and law of jurisdiction only, except
tried before the court where it falls under the
exceptions where there can be
Rule 64 reviews of facts
Review of Judgments, Decisions and Final Orders of the
COMELEC and COA
Continental Marble vs. NLRC
- Pursuant to Sec. 7, Art. VIII of the 1987 Constitution
- Petition for certiorari is a catch all remedy where it can
- Quasi-judicial bodies other than the COMELEC and COA
cover many kinds of claims for justice
are subject to petition for review under Rule 43
- Petition for review under Rule 64 is not a matter of right
Villanueva vs. Ople
- Period for certiorari under Rule 65 is 60 days
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Provisional Remedies Finals Richard Allan A. Lim
- Certiorariisaspecialcivilactionwhenofficeractedin would prejudice the interests of the Government
graveabuseofdiscretioninexcessorwithoutjurisdiction or of the petitioner or the subject matter of the
- Grave abuse of discretion implies a capricious and action is perishable;
whimsical exercise of judgment tantamount to lack or o (d) where, under the circumstances, a motion for
excessofjurisdiction.36Theexerciseofpowermusthave reconsideration would be useless;
beendoneinanarbitraryoradespoticmannerbyreason o (e) where petitioner was deprived of due process
of passion or personal hostility. It must have been so and there is extreme urgency for relief;
patentandgrossastoamounttoanevasionofpositive o (f) where, in a criminal case, relief from an order
dutyoravirtualrefusaltoperformthedutyenjoinedorto of arrest is urgent and the granting of such relief
actatallincontemplationoflaw. by the trial court is improbable;
- Errors in judgment are not necessarily grave abuse of o (g) where the proceedings in the lower court are
discretion a nullity for lack of due process;
o (h) where the proceedings was ex parte or in
Purefoodsvs.NLRC which the petitioner had no opportunity to
- Theunquestionedruleinthisjurisdictionisthatcertiorari object; and
will lie only if there is no appeal or any other plain, o (i) where the issue raised is one purely of law or
speedyandadequateremedyintheordinarycourseoflaw public interest is involved.
against the acts of respondent. In the present case, the Heirs of Reterta vs. Mores
plainandadequateremedyexpresslyprovidedbylawwas - Afinaljudgmentororderisonethatfinallydisposes
amotionforreconsiderationoftheassaileddecisionand of a case, leaving nothing more to be done by the
theresolutionthereof,whichwasnotonlyexpectedtobe Courtinrespectthereto, e.g.,anadjudicationonthe
but would actually have provided adequate and more meritswhich,onthebasisoftheevidencepresentedat
speedyremedythanthepresentpetitionforcertiorari. the trial declares categorically what the rights and
- Ifmotionforreconsiderationnotresortedto,certiorarican obligationsofthepartiesareandwhichpartyisinthe
bedismissed right;orajudgmentororderthatdismissesanaction
on the ground, for instance, of res judicata or
Fortichvs.Corona prescription.
- Petitionforreview for decisions,orders, judgmentsnot - the instances in which certiorari will issue cannot be
yetfinal.Petitionforcertiorarifororders,judgmentsand defined, because to do so is to destroy the
decisionsthatarefinal comprehensiveness and usefulness of the extraordinary
- Anerrorofjudgmentisonewhichthecourtmaycommit writ.Thewidebreadthandrangeofthediscretionofthe
in the exercise of its jurisdiction, and which error is courtaresuchthatauthorityisnotwantingtoshowthat
reviewableonlybyanappeal. 35 Ontheotherhand,an certiorariismorediscretionarythaneitherprohibitionor
errorofjurisdiction isonewheretheactcomplainedof mandamus, and that in the exercise of superintending
wasissuedbythecourt,officeroraquasijudicialbody control over inferior courts, a superior court is to be
withoutorinexcessofjurisdiction,orwithgraveabuseof guidedbyallthecircumstancesofeachparticularcaseas
discretion which is tantamount to lack or in excess of theendsofjusticemayrequire.Thus,thewritwillbe
jurisdiction. 36 This error is correctable only by the granted whenever necessary to prevent a substantial
extraordinarywritofcertiorari. wrongortodosubstantialjustice

Retartevs.Mores
- As held in Flores v. Sangguniang Panlalawigan of Prohibition and Mandamus
Pampanga,21 the "plain" and "adequate remedy" - Remedy to prevent tribunal, body or officer to prevent
referred to in the foregoing Rule is a motion for exercise of jurisdiction which the law does not vest in
reconsideration of the assailed Order or Resolution, the them and only if based on undisputed facts (Garces case)
filing of which is an indispensable condition to the filing - To prevent the unlawful and oppressive exercise of
of a special civil action for certiorari, 22 subject to certain authority
exceptions, to wit: - Prohibition, certiorari and mandamus are independent
o (a) where the order is a patent nullity, as where original actions before the RTC, CA or SC
the court a quo has no jurisdiction; Certiorari Prohibition
o (b) where the questions raised in the certiorari Annul proceedings Stop exercise of power used
proceedings have been duly raised and passed without jurisdiction
upon by the lower court, or are the same as those Corrective Preventive
raised and passed upon in the lower court; - PCM are prohibited pleadings in certain cases but may be
o (c) where there is an urgent necessity for the allowed when order is patently illegal or in excess or lack
resolution of the question and any further delay of jurisdiction

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Provisional Remedies Finals Richard Allan A. Lim
- Mandamus is to compel performance of ministerial act, remedy of mandamus being invoked.27 In other words,
hence will not lie for discretionary acts mandamuscanbeissuedonlyincaseswheretheusual
- If there is no dispute to entitlement to office, mandamus is modesofprocedureandformsofremedyarepowerlessto
the remedy afford relief.28 Although classified as a legal remedy,
mandamus isequitable initsnature and its issuance is
Cases: generallycontrolledbyequitableprinciples. 29Indeed,the
Ongsucovs.Malones grantofthewritofmandamusliesinthesounddiscretion
- For a writ of prohibition, the requisites are: (1) the ofthecourt.
impugned act must be that of a "tribunal, corporation,
board, officer, or person, whether exercising judicial, Antolin vs. Domondon
quasijudicialorministerialfunctions";and(2)thereisno - Forawritofmandamustoissue,theapplicantmusthave
plain,speedy,andadequateremedyintheordinarycourse awelldefined,clear,andcertainlegalrighttothething
oflaw." demanded.Thecorrespondingdutyoftherespondentto
- Theexerciseofjudicialfunctionconsistsofthepowerto performtherequiredactmustbeequallyclear. 33
determinewhatthelawisandwhatthelegalrightsofthe
partiesare,andthentoadjudicateupontherightsofthe Metrobank vs. Reynado
parties. The term quasijudicial function applies to the - Mandamusisaremedialmeasureforpartiesaggrieved.It
actionanddiscretionofpublicadministrativeofficersor shallissuewhen"anytribunal,corporation,board,officer
bodiesthatarerequiredtoinvestigatefactsorascertain orpersonunlawfullyneglectstheperformanceofanact
the existence of facts, hold hearings, and draw whichthelawspecificallyenjoinsasadutyresultingfrom
conclusionsfromthemasabasisfortheirofficialaction anoffice,trustorstation."54Thewritofmandamusisnot
andtoexercisediscretionofajudicialnature. availabletocontroldiscretionneithermayitbeissuedto
- Aministerial functionisonethat anofficer ortribunal compeltheexerciseofdiscretion.Truly,itisamatterof
performs in the context of a given set of facts, in a discretion on the part of the prosecutor to determine
prescribedmannerandwithoutregardfortheexerciseof whichpersonsappearresponsibleforthecommissionofa
hisoritsownjudgment,upontheproprietyorimpropriety crime.However,themomenthefindsonetobesoliable
oftheactdone. itbecomeshisinescapabledutytochargehimtherewith
andtoprosecutehimforthesame.Insuchasituation,the
LeagueofCitiesvs.COMELEC rule loses its discretionary character and becomes
- Prohibition is the proper action for testing the mandatory.
constitutionality of laws administered by the
COMELEC,14 liketheCityhoodLaws,whichdirect the Secretary of Justice vs. Koruga
COMELECtoholdplebiscitesinimplementationofthe - ItisbeyondcavilthattheBIhastheexclusiveauthority
CityhoodLaws. andjurisdictiontotryandhearcasesagainstanalleged
- Thereisafterallahierarchyofcourts.Thathierarchyis alien,andthattheBOChasjurisdictionoverdeportation
determinative of the venue of appeals, and should also proceedings.24 Nonetheless, Article VIII, Section 1 25 of
serveasageneraldeterminantoftheappropriateforum theConstitutionhasvestedpowerofjudicialreviewinthe
for petitions for the extraordinary writs. A becoming SupremeCourtandthelowercourtssuchastheCA,as
regardforthatjudicialhierarchymostcertainlyindicates establishedbylaw.Althoughthecourtsarewithoutpower
that petitions for the issuance of extraordinary writs to directly decide matters over which full discretionary
againstfirstlevel("inferior")courtsshouldbefiledwith authority has been delegated to the legislative or
theRegionalTrialCourt,andthoseagainstthelatter,with executive branch of the government and are not
theCourtofAppeals.AdirectinvocationoftheSupreme empowered to execute absolutely their own judgment
Courtsoriginaljurisdictiontoissuethesewritsshouldbe fromthatofCongressorofthePresident, 26theCourtmay
allowed only when there are special and important lookintoandresolve questionsofwhether ornotsuch
reasons therefor, clearly and specifically set out in the judgmenthasbeenmadewithgraveabuseofdiscretion,
petition.Thisisestablishedpolicy.Itisapolicythatis whentheactofthelegislativeorexecutivedepartmentis
necessarytopreventinordinatedemandsupontheCourts contrarytotheConstitution,thelaworjurisprudence,or
time and attention which are better devoted to those whenexecutedwhimsically,capriciouslyorarbitrarilyout
matters withinits exclusive jurisdiction,andtoprevent ofmalice,illwillorpersonalbias.
furtherovercrowdingoftheCourtsdocket. - When acts or omissions of a quasijudicial agency are
involved,apetitionfor certiorari orprohibitionmaybe
Chavezvs.NHA filedintheCAasprovidedbylaworbytheRulesof
- animportantprinciplefollowedintheissuanceofthewrit Court,asamended.30Clearly,thefilingbyrespondentofa
is that there should be no plain, speedy and adequate petitionfor certiorari andprohibitionbefore theCAto
remedy in the ordinary course of law other than the

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Provisional Remedies Finals Richard Allan A. Lim
assail the order of deportation on the ground of grave the proceedings are done without or in excess of
abuseofdiscretionispermitted. jurisdiction or with grave abuse of discretion. The
petitionermustallegeinhispetitionandestablishfactsto
City Engineer of Baguio vs. DUmogan show that any other existing remedy is not speedy or
- Prohibition or a "writ of prohibition" is that process by adequate.10 Aremedyisplain,speedyandadequateifit
which a superior court prevents inferior courts, tribunals, will promptly relieve the petitioner from the injurious
officers, or persons from usurping or exercising a effectsofthat judgment andtheactsofthetribunal or
jurisdiction with which they have not been vested by inferior court.11 Further, the writ will not lie to correct
law.30 As its name indicates, the writ is one that errorsofjudgmentbutonlyerrorsofjurisdiction.Aslong
commands the person or tribunal to whom it is directed as the tribunal acts within its jurisdiction, any alleged
not to do something which he or she is about to do. The errors committed in the exercise of its discretion will
writ is also commonly defined as one to prevent a tribunal amount to nothing more than mere errors of judgment
possessing judicial or quasi-judicial powers from whicharecorrectiblebyatimelyappeal. 12Indetermining
exercising jurisdiction over matters not within its whether a tribunal acted in grave abuse of discretion,
cognizance or exceeding its jurisdiction in matters of
mere abuseofdiscretionisnot enough.There mustbe
which it has cognizance.31 At common law, prohibition
graveabuseofdiscretionaswherethetribunalexercised
was a remedy used when subordinate courts and inferior
itspowerinanarbitraryordespoticmanner,byreasonof
tribunals assumed jurisdiction which was not properly
theirs. passionorpersonalhostility,anditmustbesopatentor
- It is very clear that before resorting to the remedy of grossaswouldamounttoanevasion,orvirtualrefusalto
prohibition,thereshouldbe"noappealoranyotherplain, performthedutyenjoined,ortoactincontemplationof
speedy, andadequate remedy intheordinarycourse of law.
law." Thus, jurisprudence teaches that resort to
administrativeremediesshouldbehadfirstbeforejudicial Uy Kiao Eng vs. Lee
- Mandamus is a command issuing from a court of law of
interventioncanbeavailedof
competent jurisdiction, in the name of the state or the
- Thedoctrineof exhaustionofadministrativeremedies
sovereign, directed to some inferior court, tribunal, or
isnotanironcladrule.37Itadmitsofseveralexceptions. board, or to some corporation or person requiring the
Jurisprudence is wellsettled that the doctrine does not performance of a particular duty therein specified, which
applyincases(1)whenthequestionraisedispurelylegal; duty results from the official station of the party to whom
(2)whentheadministrativebodyisinestoppel;(3)when the writ is directed or from operation of law. The writ is a
theactcomplainedofispatentlyillegal;(4)whenthereis proper recourse for citizens who seek to enforce a public
urgent need for judicial intervention; (5) when the right and to compel the performance of a public duty,
claiminvolvedissmall; (6)whenirreparabledamage most especially when the public right involved is
willbesuffered;(7)whenthereisnootherplain,speedy, mandated by the Constitution
andadequateremedy;(8)whenstrongpublicinterestis - The writ of mandamus, however, will not issue to compel
involved;(9)whenthesubjectoftheproceedingisprivate an official to do anything which is not his duty to do or
land;(10)in quowarranto proceedings;and(11)where which it is his duty not to do, or to give to the applicant
thefactsshowthattherewasviolationofdueprocess. anything to which he is not entitled by law. Nor will
mandamus issue to enforce a right which is in substantial
- Under existing laws, the office of the mayor is given
dispute or as to which a substantial doubt exists, although
powersnotonlyrelativetoitsfunctionastheexecutive
objection raising a mere technical question will be
official of the town. It has also been endowed with
disregarded if the right is clear and the case is meritorious.
authority to hear issues involving property rights of - As a rule, mandamus will not lie in the absence of any of
individuals and to come out with an effective order or the following grounds: [a] that the court, officer, board, or
resolution thereon. In this manner, it exercises quasi person against whom the action is taken unlawfully
judicialfunctions.Thispowerisobviouslyatruisminthe neglected the performance of an act which the law
matterofissuingdemolitionnoticesand/orordersagainst specifically enjoins as a duty resulting from office, trust,
squatters and illegal occupants through some of its or station; or [b] that such court, officer, board, or person
agencies or authorized committees within its respective has unlawfully excluded petitioner/relator from the use
municipalitiesorcities. and enjoyment of a right or office to which he is
entitled.20 On the part of the relator, it is essential to the
Tan vs. CA issuance of a writ of mandamus that he should have a
- Basic is the rule that the writ of prohibition is an clear legal right to the thing demanded and it must be the
extraordinary remedy to prevent the unlawful and imperative duty of respondent to perform the act required.
oppressiveexerciseoflegalauthorityandtoprovidefora - Recognized further in this jurisdiction is the principle that
fairandorderlyadministrationofjustice. 9 Itisavailable mandamus cannot be used to enforce contractual
onlywhenthereisnoappeal oranyplain,speedyand obligations. Generally, mandamus will not lie to enforce
adequateremedyintheordinarycourseoflaw,andwhen purely private contract rights, and will not lie against an
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Provisional Remedies Finals Richard Allan A. Lim
individual unless some obligation in the nature of a public
or quasi-public duty is imposed.
- Inotherwords,mandamuscanbeissuedonlyincases
wheretheusualmodesofprocedureandformsofremedy
arepowerlesstoaffordrelief.28 Althoughclassifiedasa
legalremedy,mandamusisequitableinitsnatureandits
issuanceisgenerallycontrolledbyequitableprinciples. 29
Indeed, the grant of the writ of mandamus lies in the
sounddiscretionofthecourt.
Quo Warranto
Municipality of San Narciso vs. Mendez
- Thespecialcivilactionofquowarrantoisa"prerogative
writbywhichtheGovernmentcancalluponanyperson
to show by what warrant he holds a public office or
exercises a public franchise." 13 When the inquiry is
focusedonthelegalexistenceofabodypolitic,theaction
isreservedtotheStateinaproceedingforquowarranto
oranyothercreditproceeding. 14 Itmustbebrought"in
the name of the Republic of the Philippines" 15 and
commencedbytheSolicitorGeneralorthefiscal"when
directedbythePresidentofthePhilippines...." 16Such
officersmay,undercertaincircumstances,bringsuchan
action "at the request and upon the relation of another
person"withthepermissionofthecourt.17TheRulesof
Courtalsoallowsanindividualtocommenceanactionfor
quowarranto inhisownnamebutthisinitiativecanbe
donewhenheclaimstobe"entitledtoapublicofficeor
position usurped or unlawfully held or exercised by
another."
Garces vs. CA
-
Ascorrectlyruledbyrespondentcourt,mandamus,which
petitionerfiledbelow,willnotlieasthisremedyapplies
onlywherepetitioner'srightisfoundedclearlyinlawand
notwhenitisdoubtful. 24 Itwillnotissuetogivehim
something to which he is not clearly and conclusively
entitled. 25 Considering that Concepcion continuously
occupies the disputed position and exercises the
corresponding functions therefor, the proper remedy
should have been quo warranto and not mandamus. 26
Quo warranto tests the title to one's office claimed by
anotherandhasasitsobjecttheousteroftheholderfrom
its enjoyment, while mandamus avails to enforce clear
legaldutiesandnottotrydisputedtitles.2

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