Provisional Remedies Finals
Richard Allan A. Lim .
Receivership (Rule 59) Unlike in attachment which creates a lien, receiv receivers ership hip does not create create a lien lien to any of the parties nor does it resolve any of the main issues of the case A coun counte terb rbon ond d can disso dissolv lvee the rece receiv iver ersh ship ip unde under r Sec. 3 Replevin (Rule 60) It is a poss posses esso sorry ac action tion It usua usually lly reso resolve lvess issues issues of posse possessi ssion on only only,, but can resolve the issue of ownership if such was raised in the action action (hion (hion! ! "ion! "ion! #an$ in order order to avoid avoid multiplicity of suits If all all the re%u re%uis isit ites es for for the appl applic icat atio ion n for repl replev evin in are present, present, then then there there is an action action for reple replevin vin (#illson vs. A$ &rio &riorr and and cont contem empo pora rane neou ouss serv servic icee of summo summons ns applies when replevin is the main cause of action, and such is filed at the commencement of the action &rior &rior and contem contempor porane aneous ous servic servicee of summon summonss does does not not appl pply when hen reple plevin vin is avai availe led d of as a provisional remedy remedy 'eplevin is usually resorted to by financin! compan companies ies,, where where the reple replevin vin action action leads leads to or ende ended d up in fore forecl clos osur uree or canc cancel ella lati tion on of the the contract based on 'ecto "aw or Art. )*) where the seller chooses to apply for replevin and recover the property. property. 'ecto "aw was enacted to protect purchasers on installment for the practices of seller which could lead to un+ust enrichment ai ailure lure to pay pay ) or times mes on ins instal tallmen lmentt is not necessarily wron!ful detention, there must be first demand. If after demand and no action was done, then there is wron!ful detention
6.
3. ilipinas Investment vs. a, onato vs. A #he #he 'ec 'ecto to law law appl applie iess in this this case case Usually in cases where personal property is purchased throu!h loan via chattel mort!a!e, but it depends on the nature of the case /a!aliho! vs. ernande0 1b+ect 1b+ect ille!a ille!ally lly sei0ed sei0ed cannot cannot be cons conside idered red as unde under r custodia le!is and thus cannot be used as a defense a!ainst replevin 2ron! 2ron!ful ful takin! takin! is the most most impo importa rtant nt aspect aspect #he opposi opposite te happ happene ened d in the the case case of &AA &AA# # vs. vs. A, A, as the truck was validly sei0ed due to it bein! used to ille!ally haul forest material Rule 70 (Forcible Entry and Unlawful etainer) +ect +ectmen mentt is a real real action action (posse (possessi ssion on and owners ownership hip of property$ but follows special rules, hence considered as a special civil action 4urisdiction for &ubliciana, 'eivindicatoria5 If value of property is less than or e%ual to & 67,777 (& 7,777 in 8etro 8anila$, the +urisdiction is with the 8#. 1therwise, '#. or e+ectment it is the 8# whatever the value.
Acci Accion on Int Inter erdi dict ctal al a. orcib orcible le entry entry (det (detent entaci acion$ on$ - takes takes plac placee when when a person is deprived of the possession of land or buildin! by means of orce, Intimidation, Intimidation, Strate!y, #hreat or Strate!y i. &oss ossessi essio on was was unla nlawful ful from rom the be!innin! ii. ii. 8ust 8ust be made made with within in one one year year from from the the time of forcible entry or one year from discovery in case of stealth and strate!y iii. iii. #here #here can be be no belate belated d tolera tolerance nce after after unlawful occupation iv. iv. Such Such IS#S IS#S is e9clus e9clusiv ivee !rou !round ndss for for forcible entry, if it is not under these !rounds, file for accion publiciana v. #here must be an intentional and delibe delibera rate te act, act, honest honest mistak mistakee is not forcible entry b. Unlawful detainer (desahucio$ - which is the withh withhold oldin! in! by a person person from from anothe anotherr of the possession of land or buildin! to which the latter is entitled to after the e9piration or termination of the former:s former:s ri!ht ri!ht to hold possession possession under a contract, e9press or implied (includes tolerance which must be present in the be!innin!$ i. &osses &ossessio sion n was lawfu lawfull in the be!in be!innin nin! ! ii. ii. 8ust 8ust be made made with within in one one year year from from the the time detention becomes unlawful (from the time of last written demand$ under Sec 6. iii. iii. #here #here is no unlaw unlawful ful detai detainer ner if if there there is no contract between the parties Accion Accion publici publiciana ana - for recover recovery y of possessi possession on of prope property rty when it does not fall under ($, or when e9ceeded the one year period allowed. Accion Accion reivindi reivindicato catoria ria or or de 'eivin 'eivindica dicacion cion - for recove recovery ry of both the possession and the ownership
otes5 Sarona vs. ;ille!as . orc orcib ible le entry entry is summa summary ry in natur nature, e, while while unla unlawf wful ul detainer is not. 6. A forcible forcible entry entry case cannot cannot be convert converted ed into into an unlawful unlawful detainer case, otherwise prescription will not take place 3. orc orcee is the mere fact act tha that some ome unla unlaw wfull ully took took possession of your real property, there is no need for war or violence &a+uyo vs. A 2hat is resolved is the issue of physical possession
>ema >emand nd must must be in writ writin in! ! #here #here is valid valid notice notice if if by re!ist re!istere ered d mail even even there there is failure to by the other party to receive the written notice to pay rentals and vacate vacate the premises premises 3. In case case of condition conditional al sale sale as stated stated in "eano "eano vs. A, there there must be5 a. otice otice of cancella cancellation tion throu!h throu!h notari notarial al recession recession,, b. 'eturn of cash surrender value, which is 7? at ? for every year after years but no more than @7? ). As ruled ruled in ;ille illena na vs. vs. hav have0 e0 ) ) S'A S'A 33, 33, forc forcee a!ainst a!ainst person person in e9tra+ud e9tra+udicia iciall e+ectmen e+ectmentt is a!ainst a!ainst the law law, and and e9tr e9tra+ a+ud udic icia iall e+ec e+ectm tmen entt does does not not conf confer er possession, in relation relation to Art. ) . &roce &roceedi edin!s n!s in e+ectme e+ectment nt are differ different ent such such that there there are mandatory periods which shorten the periods, as well as prevent the filin! of prohibited pleadin!s with the intention to delay. . 8oti 8otion on to dism dismis isss is prohi prohibi bite ted d e9ce e9cept pt for for lack lack of +urisdiction over sub+ect matter, matter, and when there is failure to comp comply ly with with conc concil ilia iati tion on (bar (baran an!! !!ay ay$. $. "ack "ack of conciliation must be raised otherwise it is deemed waived. B. 'e!l 'e!lam amen enta tary ry peri period odss a. Answer Answer - 7 days days from from summ summons ons (no (no e9ten e9tensio sion$ n$ b. Answer to counterclaims, counterclaims, cross-claims - 7 days from service of answer where they are pleaded c. &re &relim liminar nary con confere feren nce - 37 days days from rom last last answer d. 1rde 1rderr for for recor record d of preli prelimi mina nary ry confe confere renc ncee - days after preliminary conference e. Submis Submissio sion n of affid affidavi avits ts and posit position ion pape papers rs - 7 days after 1rder f. 4ud!me 4ud!ment nt - 37 37 days days after after rece receipt ipt of of affid affidavi avits ts and and position papers, papers, or after e9piration e9piration of period !. Subm Submis issi sion on of affi affida davi vits ts to clar clarif ify y the the cert certai ain n material facts - 7 days from order. h. 4ud!me 4ud!ment nt based based on clar clarifi ified ed mater material ial fact factss - days from receipt of last affidavit or e9piration of period of filin! *. &rohib &rohibit ited ed pleadin pleadin!s !s under under Sec. Sec. 3. ertior ertiorari ari allowe allowed d only only in case casess in summ summar ary y proc proced edur uree wher wheree ther theree is unnecessary delay or when there is !ross ne!li!ence of counsel as to deprive due process. @. &relim &relimina inary ry confe conferen rence ce !over !overned ned by by 'ule 'ule * 7. &relimin &reliminary ary in+unction in+unction available available to both orcible orcible entry and unlawful detainer, detainer, a. 8ust be filed within days from filin!
Richard Allan A. Lim 6. '# rulin! a!ainst a!ainst defendant defendant is immediatel immediately y e9ecutory, e9ecutory, without pre+udice to further appeal. 3. >emand >emand to vacate vacate applies applies only to lease lease contract contractss and where there was lawful possession, is not necessary in cases of forcible entry and e9piration of the lease contract ). #here #here is implied implied renewal renewal of lease lease or #acita #acita reconducci reconduccion on when as provided for in Art. B7 when the lessor upon the e9piration of the lease contract does not !ive notice that he is renewin! the lease contract within days days from from the e9pirati e9piration. on. Such renew renewal al is not for the ori!inal period but for the period of payment. . If notice notice is !iven upon the e9pira e9piration tion of the contrac contract, t, the lessor lessor could could file file unlaw unlawful ful detain detainer er case case even even witho without ut dema demand nd to vaca vacate te.. =owe =oweve verr unde underr Sec. Sec. 6, ther theree is necessity for notice when the reason is non-payment of rentals or tolerance . 8otion 8otion to dismiss dismiss is prohibit prohibited ed e9cept e9cept in cases of lack lack of +urisdiction or failure to comply with conciliation proceedin!s under Sec. 6. As stated in Art. )B , any of the co-owners can file for e+ectment B. B. It is not not the the nonnon-pa paym ymen entt of rent rental alss that that rend render erss the the possession unlawful but the refusal to vacate the premises despite the demand. *. #he fact fact that there there is no demand demand to vacate vacate is one of the defenses that can be used a!ainst e+ectment cases @. If there is no mention mention of non-complian non-compliance ce to conciliati conciliation on proceedin!s in the defendants answer, answer, then such is deemed waived 67. 67. Unde Underr Sec. Sec. , , owne owners rshi hip p as an issu issuee will will only only be resolv resolved ed if necess necessary ary to resolv resolvee the issue issue of who is entitled entitled to possessio possession, n, but otherwise otherwise ownershi ownership p is not resolved in e+ectment cases 6. If there is claim claim that possessi possession on is based on a!ricultur a!ricultural al tenancy under Sec. 3, then the court should conduct a hearin! to determine if such is really based on a!ricultural tenancy to refer the dispute to >A'A/. Rule 6!" #upport pendente lite Such Such is made made at the the comm commen enccement ment of the act action ion or before final +ud!ment +ud!ment or order, order, in a proper action It is avai availa labl blee in in cri crimi mina nall cas cases es 2ho 2ho shal shalll file fileCC (in (in pref prefer eren enti tial al ord order er$$ 1ffended party o &arents o Drandparents o Duardians o In default of all precedin!, the State o $ases "erma vs. A Adulte Adultery ry is is a defen defense se a!ai a!ainst nst supp support ort penden pendente te lite lite as it it is
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Provisional Remedies Finals -
#he prov provisi isiona onall chara characte cterr of suppo support rt pende pendente nte lite lite shou should ld not be made to rely on final outcome of the case, hence it is e9ecutory even if the adverse party appeals the case.
Rule 6% &nterpleader 2hen 2hen the the are are conf confli lict ctin in! ! clai claims ms on the the same same sub+ sub+ec ectt matter a!ainst a party who has no interest in the sub+ect matter, matter, such party may file the action to resolve who shall be entitled between between the claimants claimants $ases 1campo vs. #irona Interp Interplea leader der is is proper proper in in lease lease contr contract actss where where the the lease leaseee does not know who amon! the people claimin! payment should be !iven payment for lease #here here shou should ld be conf confllicti ictin! n! cla claims ims for a part party y to be entitled to file interpleader suit
/eltran vs. &==, ternal Dardens vs. irst >ivision IA #here here shou should ld be conf confllicti ictin! n! cla claims ims for a part party y to be entitled to file interpleader suit 2ack-wack Dolf and ountry lub vs. 2on If the the claim claimss have have been been settl settled ed and and there there is no lon! lon!er er conflict, interpleader no lon!er available for party. Rule 6'" eclaratory Relief Any per person son inte interes rested ted unde underr a deed, deed, will, will, cont contrac ractt or othe other r writte written n instru instrume ment, nt, or whose whose ri!hts ri!hts are are affec affected ted by a statute, e9ecutive order or re!ulation, ordinance, or any other other !overn !overnmen mental tal re!ula re!ulatio tion n may, may, before before breac breach h or violat violation ion there thereof of brin! brin! an action action in the approp appropri riate ate 'e!i 'e!ion onal al #rial rial our ourtt to dete determ rmin inee any any %ues %uesti tion on of construction or validity arisin!, and for a declaration of his ri!hts or duties, thereunder. $ases "im vs. 'epublic, ommissioner vs. >omin!o #here #here is is no proc procee eedin din! ! establ establish ished ed by by which which the court court can can declare the citi0enship or status of a person
'eparations ommittee ommittee vs. orthern "ines, 1lleda vs. A #he #he filin filin! ! of actio action n for decl declar arat ator ory y relie relieff must must be made made before the breach breach or violation >y&oco vs. ommsioner, Eawasaki &ort Service vs. Amores #he #he facts facts must must be sett settle led d and ther theree are are no issue issuess to be tried before the court
Richard Allan A. Lim ases5 "o0ada vs. 18" &eti &etiti tion on dism dismis issa sabl blee if the petit petitio ione nerr does does not have have the le!al standin! specific to the case at hand 8and 8andam amus us not not issu issuab able le in in doub doubtf tful ul cas cases es &etitioner askin! must have clear ri!ht o Fuas Fuasii-+u +udi dici cial al body body must must have have clea clearr duty duty o correspondin! to said ri!ht Eho vs. 18" In case casess of !ra !rave abu abuse of disc discre reti tion on on the the part art of 18" 18" ,, the remedy remedy is not en banc banc but ertio ertiora rari ri under 'ule Darces vs. 18" o le!a le!all ri!ht ri!ht to a posi positi tion on whic which h is not vaca vacate ted, d, henc hencee 8andamus cannot lie 8and 8andam amus us whic which h seek seekss to enfo enforc rcee le!a le!all duti duties es is not proper remedy but Fuo 2arranto which seeks to test the doubtful claim to office sou!ht to be oustered ertiorari upon S under 'ule ) is for election decisions, disputes and controversies and does not cover administrative decisions Rule 65" $ertiorari &etiti &etitione oners rs must must alle! alle!ee that that the trib tribuna unall acted acted with with !rave !rave abuse of discretion amountin! to lack or in e9cess of +urisdiction er ertior tioraari is not not the the rem remedy edy for appe appeal al lost lost due due to ne!li!ence, nor is available when ade%uate remedies are present which is is 8otion for 'econsideration. 'econsideration. -nly in case case ad+inis ad+inistra trativ tivee body body e1erc e1ercise isess 2uasi3 2uasi3 4udicial power, power, not if e1ercisin* 2uasi le*islative power or purely ad+inistrative function 4urisdiction 9ercise of 4urisdiction rror in +urisdiction is what #he decision or all %uestions should be shown in certiorari arisin! from the case case 'efers to the authority to hear rrors or +ud!ment are and decide the case reviewable only by appeal Rule ' (etition for Rule 65 (etition for Review) $ertiorari) . 1rdinary Appeal . Special ivil Action 6. #here must be e9haustion 6. o other plain, speedy or of administrative remedies ade%uate remedy 3. overs both %uestions %uestions of 3. Fuestions of law or errors fact and law of +uris +urisdic dictio tion n only only, e9cept e9cept where ere it fall fallss unde underr the e9ceptions where there can be
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Provisional Remedies Finals -
Richard Allan A. Lim
Fortich vs. Corona Petition for review for decisions, orders, judgments not yet final. Petition for certiorari for orders, judgments and decisions that are final An error of judgment is is one which the court may commit in the exercise exercise of its jurisdic jurisdictio tion, n, and which error error is 35 reviewabl reviewablee only by an appeal. appeal. On the other hand, an error of jurisdiction is one where the act complained of was issued by the court, officer or a quasi-judicial body without or in excess of jurisdiction, or with grave abuse of discretion which is tantamount to lack or in excess of jurisdiction. 36 This This erro errorr is corr correc ecta tabl blee only only by the the extraordinary writ of certiorari.
would pre+udice the interests of the Dovernment or of the petitioner or the sub+ect matter of the action is perishableG (d$ where, under the circumstances, a motion for o reconsideration reconsideration would be uselessG (e$ where petitioner was deprived of due process o and there is e9treme ur!ency for reliefG (f$ where, in a criminal case, relief from an order o of arrest is ur!ent and the !rantin! of such relief by the trial court is improbableG improbableG (!$ where the proceedin!s in the lower court are o a nullity for lack of due processG (h$ where the proceedin!s was e9 parte or in o whic which h the the peti petiti tion oner er had had no oppo opport rtun unit ity y to ob+ectG and (i$ where the issue raised is one purely of law or o public interest interest is involved. =eirs of 'eterta vs. 8ores A ‘final’ judgment or order is one that finally disposes of a case, leaving nothing more to be done by the Court in respect thereto, thereto, e.g., e.g., an adjudication on the merits which, on the basis of the evidence presented at the trial declares declares categorically categorically what the rights rights and obligations of the parties are and which party is in the right; or a judgment or order that dismisses an action on the grou ground nd,, for for inst instan ance ce,, of res judicata or prescription. the instan instances ces in which certiorari will will issue issue cannot cannot be defined, because to do so is to destroy the comprehens comprehensivene iveness ss and usefulnes usefulnesss of the extraordi extraordinary nary writ. The wide breadth and range of the discretion of the court are such that authority is not wanting to show that certiorari is more discretionary than either prohibition or mandamus, and that that in the exercise exercise of superi superinte ntendi nding ng contro controll over over inferi inferior or courts courts,, a superi superior or court court is to be guided by all the circumstances of each particular case “as the ends of justice may require.” Thus, the writ will be whenever er necess necessary ary to preven preventt a subst substant antial ial gran grante ted d whenev wrong or to do substantial justice
Retarte vs. Mores As he held in in Flores v. Sangguniang Panlalawigan of Pampanga, Pampanga,6 the plain an and ade2uate ade2uate re+edy re+edy refe referr rred ed to in the the fore fore!o !oin in! ! 'ule 'ule is a +otion +otion for reconsideration of the assailed 1rder or 'esolution, the filin! of which is an indispensable condition to the filin! of a special civil action for certiorari, 66 sub+ect to certain e9ceptions, to wit5 (a$ where the order is a patent nullity, as where o
rohibition and .anda+us 'eme 'emedy dy to prev preven entt tribu tribuna nal, l, body body or offi office cerr to preve prevent nt e9ercise of +urisdiction which the law does not vest in them and only if based on undisputed facts (Darces case$ #o prev preven entt the the unla unlaw wful ful and oppr oppreessi ssive e9er e9erci cise se of authority &roh &rohib ibit itio ion, n, certi certior orar arii and and mand mandam amus us are indepe independ nden entt ori!inal actions before the '#, A or S
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Certiorari is a special civil action when officer acted in grave abuse of discretion in excess or without jurisdiction Grav Gravee abus abusee of disc discre reti tion on impl implie iess a capr capric icio ious us and and whimsical whimsical exercise exercise of judgment judgment tantamount tantamount to lack or 36 excess of jurisdiction. The exercise of power must have been done in an arbitrary or a despotic manner by reason of passio passion n or person personal al hosti hostilit lity. y. It must must have have been been so patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. Errors Errors in judgment are not necessar necessarily ily grave abuse of discretion
Purefoods vs. NLRC The unquestioned rule in this jurisdiction is that certiorari will lie only if there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law against the acts of respondent. In the present case, the plain and adequate remedy expressly provided by law was a motion for reconsideration of the assailed decision and the resolution thereof, which was not only expected to be but would would actual actually ly have have provid provided ed adequa adequate te and more more speedy remedy than the present petition for certiorari. If motion for reconsideration not resorted to, certiorari can be dismissed
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Provisional Remedies Finals -
8and 8andam amus us is to compe compell perfo perform rman ance ce of minis ministe teri rial al act, act, hence will not lie for discretionary acts If there there is is no dispu dispute te to enti entitle tleme ment nt to off office ice,, mandam mandamus us is the remedy
ases5 Ongsuco vs. Malones For a writ writ of prohib prohibiti ition, on, the requisit requisites es are: are: (1) the impugned act must be that of a "tribunal, corporation, board, board, officer, officer, or person, person, whether whether exercisi exercising ng judicial, judicial, quasi-judicial or ministerial functions"; and (2) there is no plain, speedy, and adequate remedy in the ordinary course of law." The exercise of judicial function consists of the power to determine what the law is and what the legal rights of the parties are, and then to adjudicate upon the rights of the parties. parties. The term quasi-judici quasi-judicial al function function applies to the action and discretion of public administrative officers or bodies that are required to investigate facts or ascertain the the exis existe tenc ncee of fact facts, s, hold hold hear hearin ings gs,, and and draw draw conclusions from them as a basis for their official action and to exercise discretion of a judicial nature. A ministerial function is one that an officer or tribunal perf perfor orms ms in the cont contex extt of a give given n set set of fact facts, s, in a prescribed manner and without regard for the exercise of his or its own judgment, upon the propriety or impropriety of the act done. League of Cities vs. COMELEC Proh Prohib ibit itio ion n is the the prop proper er acti action on for for test testin ing g the the cons consti titu tuti tio onal nality ity of laws aws admi admini nisstere tered d by the COMELEC, COMELEC,14 like the Cityhood Laws, which direct the COMELEC to hold plebiscites in implementation of the Cityhood Laws. There is after all a hierarchy of courts. That hierarchy is determinative of the venue of appeals, and should also serve as a general determinant of the appropriate forum for petiti petitions ons for the extrao extraordi rdinar nary y writs. writs. A becomi becoming ng regard for that judicial hierarchy most certainly indicates that that petiti petitions ons for the issuan issuance ce of extrao extraordi rdinar nary y writs writs against first level ("inferior") courts should be filed with the Regional Trial Court, and those against the latter, with the Court of Appeals. A direct invocation of the Supreme Court’s original jurisdiction to issue these writs should be allo allowe wed d only only when when ther theree are are spec specia iall and and impo import rtan antt reasons reasons therefor, therefor, clearly clearly and specifica specifically lly set out in the petition. This is established policy. It is a policy that is necessary to prevent inordinate demands upon the Court’s time time and attent attention ion which which are better better devote devoted d to those those matters within its exclusive jurisdiction, and to prevent
Richard Allan A. Lim remedy of mandamus being invoked. 27 In other words, mandamus can be issued only in cases where the usual modes of procedure and forms of remedy are powerless to afford afford relief relief .28 Althou Although gh classi classifie fied d as a legal legal remed remedy, y, mandamus is equitable in its nature and its issuance is generally controlled by equitable principles . 29 Indeed, the grant of the writ of mandamus lies in the sound discretion of the court.
Antolin vs. >omondon For a writ of mandamus to issue, the applicant must have a well-defined, clear, and certain legal right to the thing demanded. The corresponding duty of the respondent to perform the required act must be equally clear. 33 8etrobank vs. 'eynado Mandamus is a remedial measure for parties aggrieved. It shall issue 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." 54 The writ of mandamus is not available to control discretion neither may it be issued to compel the exercise of discretion. Truly, it is a matter of discre discretio tion n on the part part of the prosec prosecuto utorr to determ determine ine which persons appear responsible for the commission of a crime. However, the moment he finds one to be so liable it becomes his inescapable duty to charge him therewith and to prosecute him for the same. In such a situation, the rule rule lose losess its its disc discre reti tion onar ary y char charac acte terr and and beco become mess mandatory. Secretary of 4ustice vs. Eoru!a It is beyond cavil that the BI has the exclusive authority and jurisdiction to try and hear cases against an alleged alien, and that the BOC has jurisdiction over deportation proceedings. proceedings.24 Nonethele Nonetheless, ss, Article Article VIII, VIII, Section Section 1 25 of the Constitution has vested power of judicial review in the Supreme Court and the lower courts such as the CA, as established by law. Although the courts are without power to directly decide matters over which full discretionary auth author orit ity y has has been been dele delega gate ted d to the the legi legisl slat ativ ivee or exec execut utiv ivee bran branch ch of the the gove govern rnme ment nt and and are are not not empowered empowered to execute execute absolutel absolutely y their own judgment judgment 26 from that of Congress or of the President, the Court may look into and resolve questions of whether or not such judgment has been made with grave abuse of discretion, when the act of the legislative or executive department is contrary to the Constitution, the law or jurisprudence, or when executed whimsically, capriciously or arbitrarily out of malice, ill will or personal bias.
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Provisional Remedies Finals assail the order of deportation on the ground of grave abuse of discretion is permitted.
ity n!ineer of /a!uio vs. >Umo!an &roh &rohib ibit itio ion n or a Hwri Hwritt of prohi prohibi biti tion onHH is that that proce process ss by which a superior court prevents inferior courts, tribunals, offi office cers rs,, or pers person onss from from usur usurpi pin! n! or e9er e9erci cisi sin! n! a +urisdiction with which they have not been vested by law. law.37 As its name name indi indica cate tes, s, the the writ writ is one one that that commands the person or tribunal to whom it is directed not to do somethin! which he or she is about to do. #he writ is also commonly defined as one to prevent a tribunal possessin! +udicial or %uasi-+udicial powers from e9er e9erci cisi sin! n! +uri +urisd sdic icti tion on over over matt matter erss not not with within in its its co!ni0anc co!ni0ancee or e9ceedin! e9ceedin! its +urisdicti +urisdiction on in matters matters of which it has co!ni0ance.3 co!ni0ance. 3 At At common law, prohibition was a remedy used when subordinate courts and inferior tribunals tribunals assumed +urisdic +urisdiction tion which which was not properly properly theirs. It is very clear clear that that before before resorti resorting ng to the remed remedy y of prohibition, there should be "no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law. law."" Thus Thus,, juri jurisp spru rude denc ncee teac teache hess that that reso resort rt to administrative remedies remedies should be had first before judicial intervention can be availed of The doctrine of exhaustion of administrative remedies is not an iron-clad rule. 37 It admits of several exceptions. Jurisprude Jurisprudence nce is well-sett well-settled led that the doctrine does not apply in cases (1) when the question raised is purely legal; (2) when the administrative body is in estoppel; (3) when the act complained of is patently illegal; (4) when there is when the urgent urgent need for judicial judicial intervent intervention; ion; (5) when irreparable le damage damage claim claim involved is small; (6) when irreparab will be suffered; (7) suffered; (7) when there is no other plain, speedy, and adequate remedy; (8) when strong public interest is involved; (9) when the subject of the proceeding is private land; (10) in quo warranto proceedings; and (11) where the facts show that there was violation of due process. Under Under existi existing ng laws, laws, the office office of the mayor is given given powers not only relative to its function as the executive offi offici cial al of the the town town.. It has has also also been been endo endowe wed d with with author authority ity to hear hear issues issues involv involving ing proper property ty rights rights of individuals and to come out with an effective order or resolutio resolution n thereon. thereon. In this manner, it exercise exercisess quasiquasi judicial functions. This power is obviously a truism in the matter of issuing demolition notices and/or orders against squatt squatters ers and illega illegall occupa occupants nts throu through gh some some of its agencies agencies or authorize authorized d committe committees es within within its respecti respective ve municipalities or cities.
Richard Allan A. Lim the the proc procee eedi ding ngss are are done done with withou outt or in exce excess ss of jurisdiction or with grave abuse of discretion. The petitioner must allege in his petition and establish facts to show show that that any other existing existing remedy remedy is not speedy speedy or 10 adequate. A remedy is plain, speedy and adequate if it will promptly relieve the petitione petitionerr from the injurious injurious effects of that judgment and the acts of the tribunal or inferior court. court .11 Further, the writ will not lie to correct errors of judgment but only errors of jurisdiction. As long as the tribunal acts within its jurisdiction, any alleged errors errors committe committed d in the exercise exercise of its discretion discretion will amount amount to nothing more than mere errors errors of judgment which are correctible by a timely appeal . 12 In determining whethe whetherr a tribu tribunal nal acted in grave grave abuse abuse of discr discreti etion, on, mere abuse of discretion is not enough. There must be grave abuse of discretion as where the tribunal exercised its power in an arbitrary or despotic manner, by reason of passion or personal hostility, and it must be so patent or gross as would amount to an evasion, or virtual refusal to perform the duty enjoined, or to act in contemplation of law.
Uy Eiao n! vs. "ee 8and 8andam amus us is is a comma command nd issu issuin in! ! from from a cour courtt of law law of competent +urisdiction, in the name of the state or the soverei!n, soverei!n, directed directed to some inferior inferior court, court, tribunal, tribunal, or board, or to some corporation or person re%uirin! 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. #he writ is a proper recourse for citi0ens who seek to enforce a public ri!ht and to compel the performance of a public duty, most most espe especi cial ally ly when when the the publ public ic ri!h ri!htt invo involv lved ed is mandated by the onstitution #he wri writt of mand mandamu amus, s, howe however ver,, will will not not issue issue to compe compell an official to do anythin! which is not his duty to do or which it is his duty not to do, or to !ive to the applicant anythin! to which he is not entitled by law. or will mandamus issue to enforce a ri!ht which is in substantial dispute or as to which a substantial doubt e9ists, althou!h ob+ec ob+ectio tion n raisin raisin! ! a mere mere techni technical cal %uesti %uestion on will will be disre!arded if the ri!ht is clear and the case is meritorious. As a rule rule,, mand mandam amus us wil willl not not lie lie in the the absen absence ce of of any any of the followin! !rounds5 aJ that the court, officer, officer, board, or person a!ainst whom the action is taken unlawfully ne!l ne!lec ecte ted d the the perf perfor orma manc ncee of an act act whic which h the the law law specifically en+oins as a duty resultin! from office, trust, or stationG or bJ that such court, officer, board, or person has unlawful unlawfully ly e9cluded e9cluded petition petitioner
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Provisional Remedies Finals individual unless some obli!ation in the nature of a public or %uasi-public duty is imposed. 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. 28 Although classified as a legal remedy, mandamus is equitable in its nature and its issuance is generally controlled by equitable principles. 29 Indeed Indeed,, the grant grant of the writ of mandam mandamus us lies lies in the sound discretion of the court. Fuo 2arranto 8unicipality of San arciso vs. 8ende0 The special civil action of quo warranto is a "prerogative writ by which the Government can call upon any person to show by what warran warrantt he holds holds a public public office office or 13 exerci exercises ses a public public franchis franchise." e." When When the inquiry inquiry is focused on the legal existence of a body politic, the action is reserved to the State in a proceeding for quo warranto or any other credit credit proceeding. proceeding. 14 It must be brought "in the the name name of the the Repu Republ blic ic of the the Phil Philip ippi pine nes" s" 15 and commenced by the Solicitor General or the fiscal "when directed by the President of the Philippines . . . ." 16 Such officers may, under certain circumstances, bring such an action "at the request and upon the relation of another person" with the permission of the court. 17 The Rules of Court also allows an individual to commence an action for quo warranto in his own name but this initiative can be done when he claims to be "entitled to a public office or positi position on usurpe usurped d or unlawf unlawfull ully y held held or exerci exercised sed by another." Darces vs. A As correctly ruled by respondent court, mandamus, which petitioner filed below, will not lie as this remedy applies only where petitioner's right is founded clearly in law and not when it is doubtful doubtful.. 24 It will not issue to give him something something to which which he is not clearly clearly and conclusive conclusively ly enti entitl tled ed.. 25 Considerin Considering g that Concepcion Concepcion continuous continuously ly occu occupi pies es the the disp disput uted ed posi positi tion on and and exer exerci cise sess the the corres correspon pondin ding g functi functions ons there therefor for,, the proper proper remedy remedy
Richard Allan A. Lim
