1.

Claudio Ty was charged with murder in an information filed with the Regional
Trial Court in Dumaguete City. Through counsel, he filed #an application for bail.
Without conducting a hearing on said application and without giving the
prosecution an opportunity to comment thereon, the Judge granted bail to Ty
after examining the complaint and the affidavit attached to the bail application
which, in the evaluation of the judge, tend to show that the evidence of guilt is not
strong. The prosecution moved for reconsideration of the order granting ball,
contending that the procedure followed by the judge was irregular.
(b) If the judge denies the prosecution’s motion for reconsideration, what remedy
or remedies may the prosecution pursue if it wishes to assail the order before the
appellate court?
Answer: (b) The prosecution may file a petition for certiorari and mandamus with the
Court of Appeals or the Supreme Court in order to nullify the order of the RTC and to
compel it to hold a hearing. It may also ask for a writ of preliminary injunction against
the order granting bail.

On 3 January 1991, the Mayon Corp. filed a complaint for foreclosure of real
estate mortgage against one of its sales agents. A, who was discovered to have
incurred a shortage in his accounts. The mortgage was executed to guarantee
faithful compliance with his duties and responsibilities as a sales agent.
Impleaded in the complaint as co-defendants were A’s co-mortgagors, B and C.
Acting on defendants' motion to dismiss, the court dismissed the complaint in an
Order dated 15 February 1991, a copy of which was received by Mayon Corp. on
18 February 1991. On 15 March 1991, and definitely within a reasonable period
from receipt of the dismissal order, Mayon Corp. filed with the Supreme Court a
special civil action for certiorari under Rule 65 of the Rules of Court alleging
therein that the trial court acted without or in excess of jurisdiction or with grave
abuse of discretion amounting to lack of jurisdiction in granting the motion to
dismiss. (1991 Bar Question)
(a) Should the Supreme Court give due course to the petition?
Answer: (a) No, because the proper remedy was an appeal from the order of dismissal.
The special civil action of certiorari cannot take the place of a lost appeal. (Limpot v. CA,
170 SCRA 367)
(c) May a special civil action for certiorari prosper in case of a denial of a motion
to dismiss or a motion to quash? If so, in what instance or instances?
Answer: (c) Yes, if it can be shown that the trial court acted without or in excess of
jurisdiction or with grave abuse of discretion, since the order of denial is interlocutory
and not immediately appealable. (Manalo v. Mariano, 69 SCRA 800; Tacas v. Cariaso,
72 SCRA 171; Newsweek v. IAC, 142 SCRA 171)
Differentiate certiorari as an original action from certiorari as a mode of appeal.
(3%)
ANSWER: 1. Certiorari as an original action and certiorari as a mode of appeal may be
distinguished as follows:
a. The first is a special civil action under Rule 65 of the Rules of Court, while the second
is an appeal to the Supreme Court from the Court of Appeals, Sandiganbayan and the
Regional Trial Court under Rule 45.
b. The first can be filed only on the grounds of lack or excess of jurisdiction or grave
abuse of discretion tantamount to lack or excess of jurisdiction, while the second is
based on the errors of law of the lower court.
c. The first should be filed within sixty (60) days from notice of the judgment, order or
resolution sought to be assailed (Sec. 4, Rule 65). while the second should be filed
within fifteen (15) days from notice of the judgment or final order or resolution ap-pealed
from, or of the denial of the petitioner’s motion for new trial or recon-sideration filed in
due time after notice of the judgment. (Sec. 2, Rule 45, 1997 Rules of Civil Procedure.)
d. The first cannot generally be availed of as a substitute for a lost appeal under Rules
40. 41, 42, 43 and 45.
e. Under the first, the lower court is impleaded as a party respondent (Sec. 5 of Rule
65), while under the second, the lower court is not impleaded. (Sec. 4 of Rule of 45)

Distinguish a petition for certiorari as a mode of appeal from a special civil action
for certiorari.
a. A PETITION FOR REVIEW ON CERTIORARI as a mode of appeal may be
distinguished from a special civil action for certiorari in that the petition for certiorari as a
mode of appeal is governed by Rule 45 and is filed from a judgment or final order of the
RTC, the Sandiganbayan or the Cout of Appeals, within fifteen (15) days from notice of
the judgment appealed from or of the denial of the motion for new trial or
reconsideration filed in due time on questions of law only (Secs. 1 and 2); meanwhile,
SPECIAL CIVIL ACTION FOR CERTIORARI is governed by Rule 65 and is filed to
annul or modify judgments, orders or resolutions rendered or issued without or in
excess of jurisdiction or with grave abuse of discretion tantamount to lack or excess of
jurisdiction, when there is no appeal nor any plain, speedy and adequate remedy in the
ordinary course of law, to be filed within sixty (60) days from notice of the judgment,
order or resolution subject of the petition. (Secs. 1 and 4.)
ADDITIONAL ANSWER: 1) In appeal by certiorari under Rule 45, the petitioner and
respondent are the original parties to the action and the lower court is not impleaded. In
certiorari, under Rule 65, the lower court is impleaded. 2) In appeal by certiorari, the
filing of a motion for reconsideration is not requited, while in the special civil action of
certiorari, such a motion is generally required.

AB mortgaged his property to CD. AB failed to pay his obligation and CD filed an
action for foreclosure of mortgage. After trial, the court issued an Order granting
CD’s prayer for foreclosure of mortgage and ordering AB to pay CD the full
amount of the mortgage debt Including Interest and other charges not later than
120 days from date of receipt of the Order. AB received the Order on August 10,
1999. No other proceeding took place thereafter. On December 20, 1999, AB
tendered the full amount adjudged by the court to CD but the latter refused to
accept it on the ground that the amount was tendered beyond the 120-day period
granted by the court. AB filed a motion in the same court praying that CD be
directed to receive the amount tendered by him on the ground that the Order
does not comply with the provisions of Section 2, Rule 68 of the Rules of Court
which gives AB 120 days from entry of judgment, and not from date of receipt of
the Order. The court denied his motion on the ground that the Order had already
become final and can no longer be amended to conform with Section 2, Rule 68.
Aggrieved, AB files a petition for certiorari against the Court and CD. Will the
petition for certiorari prosper? Explain.
SUGGESTED ANSWER:
Yes. The court erred in issuing an Order granting CD’s prayer for foreclosure of
mortgage and ordering AB to pay CD the full amount of the mortgage debt including
interest and other charges not later than 120 days from receipt of the Order. The court
should have rendered a judgment which is appealable. Since no appeal was taken, the
judgment became final on August 25, 1999, which is the date of entry of judgment. (Sec.
2, Rule 36, 1997 Rules of Civil Procedure) Hence, AB had up to December 24, 1999
within which to pay the amount due. (Sec 2, Rule 68, 1997 Rules of Civil Procedure)
The court gravely abused its discretion amounting to lack or excess of jurisdiction in
denying AB’s motion praying that CD be directed to receive the amount tendered.

Q: The defendant was declared in default in the RTC for his failure to file an
answer to a complaint for a sum of money. On the basis of the plaintiff’s ex parte
presentation of evidence, judgment by default was rendered against the
defendant. The default judgment was served on the defendant on October 1, 2001.
On October 10, 2001, he filed a verified motion to lift the order of default and to
set aside the judgment. In his motion, the defendant alleged that, immediately
upon receipt of the summons, he saw the plaintiff and confronted him with his
receipt evidencing his payment and that the plaintiff assured him that he would
instruct his lawyer to withdraw the complaint. The trial court denied the
defendant’s motion because it was not accompanied by an affidavit of merit. The
defendant filed a special civil action for certiorari under Rule 65 challenging the
denial order.
A. Is certiorari under Rule 65 the proper remedy? Why? (2%)
B. Did the trial court abuse its discretion or act without or in excess of its
jurisdiction in denying the defendant's motion to lift the order of default and to
set aside the default judgment? Why? (3%) (2002 Bar Question)
SUGGESTED ANSWER:
A. The petition for certiorari under Rule 65 filed by the defendant is the proper remedy
because appeal is not a plain, speedy and adequate remedy in the ordinary course of
law in appeal, the defendant in default can only question the decision in the light of the
evidence of the plaintiff. The defendant cannot invoke the receipt to prove payment of
his obligation to the plaintiff.
ALTERNATIVE ANSWER:
A. Under ordinary circumstances, the proper remedy of a party wrongly declared in
default is either to appeal from the judgment by default or to file a petition for relief from
judgment [Jeo, Inc. v. Court of Appeals, 251 SCRA3S1 (1995)].
SUGGESTED ANSWER:
B. Yes, the trial court gravely abused its discretion or acted without or in excess of
jurisdiction in denying the defendant’s motion because it was not accompanied by a
separate affidavit of merit, in his verified motion to lift the order of default and to set
aside the judgment, the defendant alleged that immediately upon receipt of the
summons, he saw the plaintiff and confronted him with his receipt showing payment and
that the plaintiff assured him that he would instruct his lawyer to withdraw the complaint.
Since the good defense of the defendant was already incorporated in the verified
motion, there was no need for a separate affidavit of merit

Q: Charged with the offense of slight physical injuries under an information duly
filed with the MeTC in Manila which in the meantime had duly issued an order
declaring that the case shall be governed by the Revised Rule on Summary
Procedure, the accused filed with said court a motion to quash on the sole
ground that the officer who filed the information had no authority to do so. The
MeTC denied the motion on the ground that it is a prohibited motion under the
said Rule.
The accused thereupon filed with the RTC in Manila a petition for certiorari in sum
assailing and seeking the nullification of the MeTC’s denial of his motion to
quash. The RTC in due time issued an order denying due course to the certiorari
petition on the ground that it is not allowed by the said Rule. The accused
forthwith filed with said RTC a motion for reconsideration of its said order. The
RTC in time denied said motion for reconsideration on the ground that the same
is also a prohibited motion under the said Rule.
Were the RTC’s orders denying due course to the petition as well as denying the
motion for reconsideration correct? Reason. (5%)(2004 Bar Question)
SUGGESTED ANSWER:
The RTC’s orders denying due course to the petition for certiorari as well as denying the
motion for reconsideration are both not correct. The petition for certiorari is a prohibited
pleading under Section 19(g) of the Revised Rule on Summary Procedure and the
motion for reconsideration, while it is not prohibited motion (Lucas v. Fabros, AM No.
MTJ-99-1226, January 31, 2000, citing Joven v. Court of Appeals, 212 SCRA 700, 707-
708 (1992), should be denied because the petition for certiorari is a prohibited pleading.

Q: After plaintiff in an ordinary civil action before the RTC ZZ has completed
presentation of his evidence, defendant without prior leave of court moved for
dismissal of plaintiff s complaint for insufficiency of plaintiff s evidence. After due
hearing of the motion and the opposition thereto, the court issued an order,
reading as follows: “The Court hereby grants defendant’s motion to dismiss and
accordingly orders the dismissal of plaintiff s complaint, with the costs taxed
against him. It is so ordered."
Is the order of dismissal valid? May plaintiff properly take an appeal? Reason.
(5%) (2004 Bar Question)
SUGGESTED ANSWER:
The order or decision is void because it does not state findings of fact and of law, as
required by Sec. 14, Article VIII of the Constitution and Sec. 1, Rule 36 of the Rules of
Court. Being void, appeal is not available. The proper remedy is certiorari under Rule
65.
ANOTHER ANSWER:
Either certiorari or ordinary appeal may be resorted to on the ground that the judgment
is void. Appeal, in fact, may be the more expedient remedy.

Q: May the aggrieved party file a petition for certiorari in the Supreme Court
under Rule 65 of the 1997 Rules of Civil Procedure instead of filing a petition for
review on certiorari under Rule 45 thereof for the nullification of a decision of the
Court of Appeals in the exercise either of its original or appellate jurisdiction?
Explain. (2005 Bar Question)
SUGGESTED ANSWER:
The remedy to nullify a decision of the Court of Appeals is a petition for review on
certiorari in the Supreme Court under Rule 45, instead of a petition for certiorari under
Rule 65, except in certain exceptional circumstances such as where appeal is
inadequate. By settled jurisprudence, certiorari is not a substitute for a lost appeal.

Q: What is an interlocutory order? (2006 Bar Question)

SUGGESTED ANSWER:
An interlocutory order is an order which decides some point or matter between the
commencement and end of the suit but it is not the final decision on the whole
controversy. It leaves something to be done by the court before the case is finally
decided on the merits. (Metropolitan Bank &. Trust Co. v. Court of Appeals, 356 SCRA
563 [2001]; Gallardo v. People, 456 SCRA 494 [2005]).
Q: Explain each mode of certiorari: (2006 Bar Question)
As a special civil action from the Regional Trial 2ourt or the Court of Appeals to
the Supreme Court. 2.5%
SUGGESTED ANSWER:
A special civil action for certiorari under Rule 65 of the 1997 Revised Rules of Civil
Procedure, is an original action from the Regional Trial "Court or the Court of Appeals to
the Supreme Court against any tribunal, board or officer exercising judicial or quasi-
judicial functions raising the issue of lack or excess of jurisdiction or grave abuse of
discretion amounting to lack or excess of jurisdiction, there being no appeal or any
plain, speedy and adequate remedy in the ordinary course of law.

What is the movant’s remedy if the trial court incorrectly denies his motion to
dismiss and related motion for reconsideration? (2011 BAR EXAMS)
SUGGESTED ANSWER
(A) Answer the complaint.
(B) File an administrative action for gross ignorance of the law against the trial judge.
(C) File a special civil action of certiorari on ground of grave abuse of discretion.
(D) Appeal the orders of denial.
What is the remedy of the accused if the trial court erroneously denies his motion
for preliminary investigation of the charge against him? (2011 BAR EXAMS)
SUGGESTED ANSWER
A. Wait for judgment and, on appeal from it, assign such denial as error.
B. None since such order is final and executory.
C. Ask for reconsideration; if denied, file petition for certiorari and prohibition.
D. Appeal the order denying the motion for preliminary investigation.

A party aggrieved by an interlocutory order of the Civil Service Commission

(CSC) filed a petition for certiorari and prohibition with the Court of Appeals. May
the Court of Appeals take cognizance of the petition? (2011 BAR EXAMS)
SUGGESTED ANSWER
(A) Yes, provided it raises both questions of facts and law.
(B) No, since the CSC Chairman and Commissioners have the rank of Justices of the
Court of Appeals.
(C) No, since the CSC is a Constitutional Commission.
(D) Yes, since the Court of Appeals has jurisdiction over the petition concurrent with the
Supreme Court.

The Ombudsman found probable cause to charge with plunder the provincial
governor, vice governor, treasurer, budget officer, and accountant. An Information
for plunder was filed with the Sandiganbayan against the provincial officials
except for the treasurer who was granted immunity when he agreed to cooperate
with the Ombudsman in the prosecution of the case. Immediately, the governor
filed with the Sandiganbayan a petition for certiorari against the Ombudsman
claiming there was grave abuse of discretion in excluding the treasurer from the
Information. (2015 BAR)
(a) Was the remedy taken by the governor correct?
A: NO, the remedy taken by the Governor is not correct. The petition for certiorari is a
remedy that is only available when there is no plain, speedy and adequate remedy
under the ordinary course of law; hence, the Governor should have filed a Motion for
Reconsideration. Besides, there is no showing that the Ombudsman committed grave
abuse of discretion in granting immunity to the treasurer who agreed to cooperate in the
prosecution of the case.