QUO WARRANTO PROCEEDING, HOW COMMENCED.

A quo warranto proceeding is commenced by a verified petition brought in the name of the
Government of the Republic of the Philippines by the Solicitor General, by a public prosecutor, or by a
private person in his own name where he claims to be entitled to the public office or position alleged
to have been usurped or unlawfully held or exercised by another.

The provisions speak of the time when the Solicitor General must 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.

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)

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”.

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”.

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
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 Ong’s 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.

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)

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)
Illustration:

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)

This section provides the basis for the right of an individual to bring an action for quo warranto
in his own name. As previously stated, the action for quo warranto is primarily brought by the state but
under this section, the individual need not go to the Solicitor General and without need for any leave
of court to file the action54.

He must show a clear right to the office unlawfully held by another.55 For a quo warranto
petition to be successful, the private person must show a clear right to the contested office. 56 In fact,
not even a mere preferential right to be appointed thereto can lend a modicum of legal ground to
proceed with the action57. Absent that right, the lack of qualification or eligibility of the supposed
usurper is immaterial.
 The necessity for the individual to show his entitlement to the public office in dispute is of high
importance, otherwise, the court shall not pass upon the right of the respondent to such office. In
other words, if the individual fails to show that he is entitled to the public position, it would be
unnecessary for the court to pass upon the right of the respondent in relation to such public position.

But keep in mind that this treatment is not applicable if the case was commenced by the
Solicitor General or public prosecutor. The difference between an action initiated by the State and the
one initiated by a private individual rests on the showing of entitlement of the parties to the disputed
public office.

INDIVIDUAL SOLICITOR GENERAL

In the action commenced by the private
individual, it is necessary for the petitioner or
plaintiff to prove his right to the office in dispute.
If he fails to prove this, it is unnecessary for the
court to pass on the right of the defendant in
office. (Acosta vs. Flor, 5 Phil. 18
On the other hand, in an action commenced by
the Solicitor General, it is not necessary that
there be a person claiming to be entitled to the
office alleged to have been usurped, thus, the
duty of the court is to pass upon the right of the
defendant only. (Acosta vs. Flor, 5 Phil. 18)

Thus, in one case, the Supreme Court held that “the rightful authority of a judge, in the full
exercise of his public judicial functions cannot be questioned by any private suitor or by any other
except the form especially provided by law. To uphold such action would encourage every disgruntled
citizen to resort to the courts, thereby causing incalculable mischief and hindrance to the efficient
operation of the governmental machinery.

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)1 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, 20082 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.

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

In Feliciano v. Villasin, G.R. No. 174929, June 27, 2008, a quo warranto can be dismissed at
any stage without any averment or evidence to show that the plaintiff is entitled to the disputed public
office. Thus, it was held:

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
Warrantoproceedings 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.

The Court emphasizes that an action for Quo Warranto may be dismissed at any
stage when it becomes apparent that the plaintiff is not entitled to the disputed pubic
office, position or franchise. Hence, the RTC is not compelled to still proceed with the
trial when it is already apparent on the face of the Petition for Quo Warranto that it is
insufficient. The RTC may already dismiss said petition at this point.

By analogy with Sec. 5, it has been held that a public utility may bring a quo warranto action
against another public utility which has usurped the rights of the former granted under a
franchise. (Cui vs. Cui, G.R. No. 39773. April 9, 1934). The Supreme Court in that case ratiocinated
that:

All of the above authorities hold that quo warranto lies against one who usurps
an office in a private corporation upon the ground that such an office is of a public
character in such a sense and to such an extent as to render this remedy available
against a person who, not being lawfully entitled to do so, holds an office in a private
corporation. In the cases cited, which consider the question as to who has a right to
maintain quo warranto proceedings, it appears that the right of a person assuming to
act as an officer of a private corporation may be tested upon the relation of anyone
having a direct interest in the affairs of the corporations. Some of these authorities hold,
independently of statutory provisions, that a private persons has a right to test the title
to an office in a private corporation by quo warranto proceedings.

It follows that the office of administrator of the Hospicio de San Jose is, at least,
an office public in character and that quo warranto will lie against one who usurps that
office.

xxx
 This case does not involve a public question, such as would arise were an attack
made upon the franchise of a corporation, but it a case involving a private right, and
one such as referred to by Mr. Bailey, supra, when he speaks of a case involving
merely the administration of corporate functions or duties, which touch practically only
individual rights; in which cases that author recognizes the right of a private persons,
having an interest which is injuriously affected, to maintain proceedings in the nature
of quo warranto.

This court held in the cases of Navarro vs. Gimenez (10 Phil., 226), and Lino
Luna vs. Rodriguez (36 Phil., 401), that a person entitled to a public office may
maintain quo warranto without intervention of the Attorney-General, or the fiscal, and
without necessity of first obtaining leave of the court.

Section 6. Parties and contents of petition against usurpation. – When the action is against a
person for usurping a public office, position or franchise, the petition shall set forth the
name of the person who claims to be entitled thereto, if any, with an averment of his right to
the same and that the respondent is unlawfully in possession thereof. All persons who claim
to be entitled to the public office, position or franchise may be made parties, and their
respective rights to such public office, position or franchise determined, in the same action.
(7a)

The form of the petition and its content must be followed in order for the petition to be given
due course. The action for quo warranto must be commenced by the Solicitor General or public
prosecutor, or an individual on his own name by a verified petition.3The verification states that the
petitioner has read the petition and that all the allegations therein are true and correct of his
knowledge and belief.

Moreover, if the petition is commenced by the State through the Solicitor General or public
prosecutor, it must be brought in the name of the Republic of the Philippines as the petitioner. If the
petition is commenced by the individual in his own name, such individual must clearly allege in his
petition the following: 1. The name of the person who claims to be entitled to the office; 2. The right
to the said position; 3. The fact that the defendant is unlawfully in possession thereof. In addition, in
case of usurpation, the usurper must be alleged also. All persons who claim to be entitled to the
office, position, franchise may be made parties by impleading them.

It is worthy to note than in a case, the complaint failed to allege that the respondent is
unlawfully in possession of the office claimed by the petitioner. Thus, the Supreme Court held that
quo warranto will lie only when the party proceeded against is either a de facto or a de jure officer in
possession of the office.

In the case of Defensor-Santiago v. Guingona, G.R. No. 134577, November 18, 1998 the
Supreme Court defined: Usurpation generally refers to unauthorized arbitrary assumption and
exercise of power (91 CJS 551, citing State ex rel Danielson v. Village of Mound, 48 NW2d 855,
863) by one without color of title or who is not entitled by law thereto. (67 CJS 317, citing Wheat v.
Smith, 7 SW 161)