Section 2. When Solicitor General or public prosecutor must commence action.

— The Solicitor
General or a public prosecutor, when directed by the President of the Philippines, or when upon
complaint or otherwise he has good reason to believe that any case specified in the preceding
section can be established by proof, must commence such action. (3a)

The provisions speak of the time when the Solicitor General may commence the action to file
compulsory quo-warranto. It provides that it may be commenced when directed by the President of the
Philippines, or when upon the complaint or otherwise he has good reason to believe that any case specified
in the preceding section can be established by proof.
This provision empowers the Solicitor General to determine the sufficiency of evidence. In this
manner, the Solicitor General exercises discretion. Such authority emanates from the express provision of
the law which provides that he/she is given the latitude to determine whether good reasons exists as to
establish that quo warranto is proper.
In the inquiry of the Solicitor General, it may extend to the determination of the validity of the law
authorizing of office or appointments.
As to the changes in to the rule, Herrera posits that there is no substantial change on the provision
except that “public prosecutor’ instead of Fiscal was used.

Sec 3. When Solicitor General or Public prosecutor may commence action with permission of court – the
Solicitor General or a public prosecutor may, with the permission of the court in which the action is to be
commenced, bring such an action at the request and upon the relation of another person; but in such case
the officer bringing it may first require an indemnity or the expenses and costs of the action in an amount
approved by and to be deposited in the court by the person at whose request and upon whose relation the
same is brought (4a)

Unlike Section 2 of Rule 66 which provides for compulsory quo warranto, Section 3 provides for the
Discretionary Quo warranto. This is evident by the use of the term “may” which would suggest that there is
discretion given when such was at the request and upon the relation of another person. The person who
requests for the Solicitor General or a public prosecutor to file the case is a called a “relator”1.

In holding that no abuse of discretion, much less, a grave one, on the part of the OSG in defrerring
the action on the filing of a quo warranto case, the Supreme Court in Topacio v. Associate Justice of the
Sandiganbayan, G.R. No. 179895, December 18, 2008, explained the exercise of sound discretion by the
Solicitor General in suspending or turning down the institution of an action for quo warranto as follows:

In the exercise of sound discretion, the Solicitor General may suspend or turn
down the institution of an action for quo warranto where there are just and valid
reasons. Thus, in Gonzales v. Chavez, the Court ruled:

Like the Attorney-General of the United States who has absolute discretion in
choosing whether to prosecute or not to prosecute or to abandon a prosecution already
started, our own Solicitor General may even dismiss, abandon, discontinue or
compromise suits either with or without stipulation with the other party. Abandonment of
a case, however, does not mean that the Solicitor General may just drop it without any
legal and valid reasons, for the discretion given him is not unlimited. Its exercise must
be, not only within the parameters get by law but with the best interest of the State as the
ultimate goal.

Upon receipt of a case certified to him, the Solicitor General exercises his
discretion in the management of the case. He may start the prosecution of the case by
filing the appropriate action in court or he may opt not to file the case at all. He may do

1 Relator, defined
A relator is a person referred in Section 3 in relation to Section 4 of Rule 66 of the Rules on Civil
Procedure. Relator, female relatrix, (Latin for “narrator”) is the legal term meaning a private person at whose relation or on whose behalf an
application for quo warranto is filed. (A Dictionary of Modern Legal Usage. Copyright (c) 1990 Bryan A. Garner, Oxford University Press, Inc.) The
relator appears as one beneficially interested, but the action is maintained on his behalf. The relator furnishes the knowledge or facts on which an
information or a proceeding in quo warranto is based. Such a proceeding is usually in the name of the state, ex rel. (ex relatione = “(arising) out of the
narration”) of the relator, and so is called an “ex rel. action”.
 everything within his legal authority but always conformably with the national interest and
the policy of the government on the matter at hand.

It appears that after studying the case, the Solicitor General saw the folly of re-
litigating the same issue of Ongs citizenship in the quo warranto case simultaneously
with the RTC case, not to mention the consequent risk of forum-shopping. In any event,
the OSG did not totally write finis to the issue as it merely advised petitioner to await the
outcome of the RTC case.2

Section 4. When hearing had on application for permission to commence action. — Upon application for
permission to commence such action in accordance with the next preceding section, the court shall direct
that notice be given to the respondent so that he may be heard in opposition thereto; and if permission is
granted, the court shall issue an order to that effect, copies of which shall be served on all interested
parties, and the petition shall then be filed within the period ordered by the court. (5a)

PROCEDURE FOR THE COMMENCEMENT OF DISCRETIONARY QUO WARRANTO

1) The Solicitor General or public prosecutor may bring the action at the request and upon the relation
of another person with the permission of the court in which the action is to be commenced. (Sec 3,
Rule 66)
2) In the above situation, the officer bringing the action, may first required an indemnity for the
expenses and costs of the action. Such indemnity which shall be in an amount approved by the
court and deposited with it, shall be provided by the person at whose request and upon whose
relation the action is brought. (Sec 3, Rule 66)
3) When the application is made for permission to commence such action, the court shall direct that
notice be sent to respondent so that he may be given the opportunity to be heard and to oppose
the application. The opposition of respondent will be heard before the filing of the action itself.
After the respondent is given the chance to oppose, the court will then decide whether or not the
action for quo warranto may be filed. (Sec 4, Rule 66)

2 Topacio v. Associate Justice of the Sandiganbayan, G.R. No. 179895, December 18, 2008
 4) Once there is permission to file is granted, the court shall issue an order to that effect and copies
shall be served on such parties. The copies of the order will then be served on all the interested
parties and the petition shall be filed within the period ordered by the court. (Sec 4, Rule 66

Section 5. When an individual may commence such an action. – A person claiming to be entitled to a public
office or position usurped or unlawfully held or exercised by another may bring an action therefor in his own
name. (6)

SUMMARY: WHO MAY FILE A CASE FOR QUO WARRANTO

1) The Solicitor General or a public prosecutor:

a. When directed by the President of the Philippines; or
b. When upon complaint or otherwise he has good reason to believe that any case specified in
the preceding section can be established by proof, must commence such action. (Sec 2)
2) The Solicitor General or public prosecutor may:
a. With the permission of the court in which the action is to be commenced, bring such an
action at the request and upon the relation of another person. (Sec 3)
3) A person claiming to be entitled to a public office usurped or unlawfully held or exercised by
another may also bring an action for quo warranto in his own name (Sec 5)

ILLUSTRATION:
The parties who can commence a quo warranto proceedings was clearly explained in Feliciano v. Villasin
G.R. No. 174929 (June 27, 2008)3 as follows:

It is well-established that Quo Warranto proceedings determine the right of a person to the
use or exercise of a franchise or an office and to oust the holder from its enjoyment, if the
latters claim is not well-founded, or if he has forfeited his right to enjoy the privilege. According
to the Rules of Procedure:

The action may be commenced for the Government by the Solicitor General or
the fiscal against a person who usurps, intrudes into, or unlawfully holds or
exercises a public office, position or franchise; a public officer whose acts
constitute a ground for the forfeiture of his office; or against an association which
acts as a corporation without being legally incorporated or without lawful authority
to so act.

The action may also be instituted by an individual in his own name who claims
to be entitled to the public office or position usurped or unlawfully held or exercised
by another. (Emphasis supplied.)

The High Court explained in Topacio v. Associate Justice of the Sandiganbayan, G.R. No. 179895,
December 18, 20084 that for a quo warranto petition to be successful, the private person suing must show
a clear right to the contested office and not a mere preferential right to be appointed thereto. Thus, the
Court held:
While denominated as a petition for certiorari and prohibition, the petition
partakes of the nature of a quo warranto proceeding with respect to Ong, for it
effectively seeks to declare null and void his appointment as an Associate Justice
of the Sandiganbayan for being unconstitutional. While the petition professes to be
one for certiorari and prohibition, petitioner even adverts to a quo warranto aspect
of the petition.

3 An action for Quo Warranto may be commenced by the OSG or fiscal or by an individual in his own name
4 The private person suing must show a clear right to the contested offcie
 Being a collateral attack on a public officers title, the present petition for
certiorari and prohibition must be dismissed.

The title to a public office may not be contested except directly, by quo
warranto proceedings; and it cannot be assailed collaterally, even through
mandamus or a motion to annul or set aside order. In Nacionalista Party v. De
Vera, the Court ruled that prohibition does not lie to inquire into the validity of the
appointment of a public officer.

xxx
Even if the Court treats the case as one for quo warranto, the petition is, just the
same, dismissible.

A quo warranto proceeding is the proper legal remedy to determine the right or
title to the contested public office and to oust the holder from its enjoyment. It is
brought against the person who is alleged to have usurped, intruded into, or
unlawfully held or exercised the public office, and may be commenced by the
Solicitor General or a public prosecutor, as the case may be, or by any person
claiming to be entitled to the public office or position usurped or unlawfully held or
exercised by another.

Nothing is more settled than the principle, which goes back to the 1905 case
of Acosta v. Flor, reiterated in the recent 2008 case of Feliciano v. Villasin, that for
a quo warranto petition to be successful, the private person suing must show
a clear right to the contested office. In fact, not even a mere preferential right to
be appointed thereto can lend a modicum of legal ground to proceed with the
action.

In the present case, petitioner presented no sufficient proof of a clear and

indubitable franchise to the office of an Associate Justice of the Sandiganbayan. He
 in fact concedes that he was never entitled to assume the office of an Associate
Justice of the Sandiganbayan.

In the instance in which the Petition for Quo Warranto is filed by an individual in
his own name, he must be able to prove that he is entitled to the controverted
public office, position, or franchise; otherwise, the holder of the same has a right to
the undisturbed possession thereof. In actions for Quo Warranto to determine title
to a public office, the complaint, to be sufficient in form, must show that the plaintiff
is entitled to the office. In Garcia v. Perez, this Court ruled that the person
instituting Quo Warranto proceedings on his own behalf, under Section 5, Rule 66
of the Rules of Court, must aver and be able to show that he is entitled to the office
in dispute. Without such averment or evidence of such right, the action may be
dismissed at any stage. (Emphasis in the original)

“Nothing is better settled than that a petitioner, in a quo warranto proceeding to try title to
a public office, must be able to show that he is entitled to said office. Absent such an element,
the petition must be dismissed.” This is the principle that goes back to Acosta v. Flor (5 Phil. 18,
22). There, the doctrine has been laid down that: “No individual can bring a civil action relating to
the usurpation of a public office without averring that he has a right to the same; and at any stage
of the proceedings, if it be shown that such individual has no such right, the action may be
dismissed because there is no legal ground upon which it may proceed when the fundamental
basis of such action is destroyed as is the case here.”5 This has been the exacting rule, since
then, followed with the stricter firmness in Cuyegkeng v. Cruz (108 Phil 1147 ), where this Court
held that, “One who does not claim to be entitled to the office allegedly usurped or unlawfully
held or exercised by another, but who “merely asserts a right to be appointed” thereto cannot
question his title thereto by quo warranto.” In other words, one whose claim is predicated solely
upon a more or less remoted possibility, that he may be the recipient of the appointment, has no
cause of action against the office holder. This is precisely the situation in the case at hand, and
there is no cogent reason to change the rule. Perforce, the instant appeal may be dismissed,

5 Acosta v. Flor (5 Phil. 18, 22).

even on this ground alone. (Garcia v. Perez, 99 SCRA 628, 633-34, September 11, 1980, per
De Castro J.)