Recit - 58, 65, 66

Question 1

What is a preliminary injunction?

Answer 1

A preliminary injunction is an order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a party or a court, agency or a person to refrain from a particular act or acts.

Question 2

Who may grant preliminary injunction

Answer 2

By the court where the action or proceeding is pending. If the action or proceeding is pending in the Court of Appeals or in the Supreme Court, it may be issued by said court or any member thereof.

Question 3

Grounds for issuance of preliminary injunction

Answer 3

When it is established:

(a) That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts either for a limited period or perpetually;
(b) That the commission, continuance or non-performance of the act or acts complained of during the litigation would probably work injustice to the applicant; or
(c) That a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual.

Question 4

Verified application and bond for preliminary injunction or temporary restraining order. — A preliminary injunction or temporary restraining order may be granted only when:

Answer 4

(a) The application in the action or proceeding is verified, and shows facts entitling the applicant to the relief demanded; and
(b) Unless exempted by the court the applicant files with the court where the action or proceeding is pending, a bond executed to the party or person enjoined, in an amount to be fixed by the court, to the effect that the applicant will pay to such party or person all damages which he may sustain by reason of the injunction or temporary restraining order if the court should finally decide that the applicant was not entitled thereto. Upon approval of the requisite bond, a writ of preliminary injunction shall be issued. (4a)
(c) When an application for a writ of preliminary injunction or a temporary restraining order is included in a complaint or any initiatory pleading, the case, if filed in a multiple-sala court, shall be raffled only after notice to and in the presence of the adverse party or the person to be enjoined. In any event, such notice shall be preceded, or contemporaneously accompanied, by service of summons, together with a copy of the complaint or initiatory pleading and the applicant’s affidavit and bond, upon the adverse party in the Philippines.

However, where the summons could not be served personally or by substituted service despite diligent efforts, or the adverse party is a resident of the Philippines temporarily absent therefrom or is a nonresident thereof, the requirement of prior or contemporaneous service of summons shall not apply.

(d) The application for a temporary restraining order shall thereafter be acted upon only after all parties are heard in a summary hearing which shall be conducted within twenty-four (24) hours after the sheriff’s return of service and/or the records are received by the branch selected by raffle and to which the records shall be transmitted immediately.

Question 5

Preliminary injunction should not be granted without notice. T or F.

Answer 5

True, as a general rule. No preliminary injunction shall be granted without hearing and prior notice to the party or person sought to be enjoined.

BUT there is an exception.

Question 6

Exception to the general rule that preliminary injunction should not be granted without notice.

Answer 6

There must be prior notice to the person sought to be enjoined and a hearing before preliminary injunction may be granted.

If great or irreparable injury would result to the applicant, the court may issue ex parte a temporary restraining order, effective only for 20 days from service on the party sought to be enjoined.

If the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury, the judge may issue a TRO effective only for 72 hours
from issuance. Its effectivity may be extended after conducting a summary hearing w/in the 72-hrs period until the application for preliminary injunction
can be heard.

The total period of effectivity of the TRO shall not exceed 20 days, including the 72 hours.

If application is denied or not resolved within said period, the TRO is deemed automatically vacated.

Question 7

Grounds for objection to, or for motion of dissolution of, injunction or restraining order

Answer 7

1. insufficiency
2. on other grounds upon affidavits of the party or person enjoined, which may be opposed by the applicant also by affidavits
3. if it appears after hearing that although the applicant is entitled to the injunction or restraining order, the issuance or continuance thereof, as the case may be, would cause irreparable damage to the party or person enjoined while the applicant can be fully compensated for such damages as he may suffer, and the former files a bond in an amount fixed by the court conditioned that he will pay all damages which the applicant may suffer by the denial or the dissolution of the injunction or restraining order
4. if it appears that the extent of the preliminary injunction or restraining order granted is too great, it may be modified.

Question 8

Effect of disapproval of service of copies of bonds

Answer 8

The party filing a bond in accordance with the provisions of this Rule shall forthwith serve a copy of such bond on the other party, who may except to the sufficiency of the bond, or of the surety or sureties thereon. If the applicant’s bond is found to be insufficient in amount, or if the surety or sureties thereon fail to justify, and a bond sufficient in amount with sufficient sureties approved after justification is not filed forthwith the injunction shall be dissolved. If the bond of the adverse party is found to be insufficient in amount, or the surety or sureties thereon fail to justify a bond sufficient in amount with sufficient sureties approved after justification is not filed forthwith, the injunction shall be granted or restored, as the case may be.

Question 9

Judgment to include damages against party and sureties

Answer 9

At the trial, the amount of damages to be awarded to either party, upon the bond of the adverse party, shall be claimed, ascertained, and awarded under the same procedure prescribed in section 20 of Rule 57.

Section 20. Claim for damages on account of improper, irregular or excessive attachment. — An application for damages on account of improper, irregular or excessive attachment must be filed before the trial or before appeal is perfected or before the judgment becomes executory, with due notice to the attaching party and his surety or sureties setting forth the facts showing his right to damages and the amount thereof. Such damages may be awarded only after proper hearing and shall be included in the judgment on the main case.

If the judgment of the appellate court be favorable to the party against whom the attachment was issued he must claim damages sustained during the pendency of the appeal by filing an application in the appellate court, with notice to the party in whose favor the attachment was issued or his surety or sureties, before the judgment of the appellate court becomes executory. The appellate court may allow the application to be heard and decided by the trial court.

Nothing herein contained shall prevent the party against whom the attachment was issued from recovering in the same action the damages awarded to him from any property of the attaching party not exempt from execution should the bond or deposit given by the latter be insufficient or fail to fully satisfy the award.

Question 10

When final injunction granted

Answer 10

If after the trial of the action it appears that the applicant is entitled to have the act or acts complained of permanently enjoined the court shall grant a final injunction perpetually restraining the party or person enjoined from the commission or continuance of the act or acts of confirming the preliminary mandatory injunction.

Question 11

Provisional remedies

Answer 11

1. preliminary attachment
2. preliminary injunction
3. receivership
4. replevin
5. support pendente lite

Question 12

What is a preliminary mandatory injunction?

Answer 12

an order requiring the performance of a

particular act or acts

Question 13

Grounds for preliminary injunction

Answer 13

1. applicant is entitled to the relief demanded
2. commission, continuance or nonperformance of the act complained of would work injustice to the applicant if not enjoined
3. the acts sought to be enjoined probably violates the rights of the applicant respecting the subject of the action and tending to render the judgment ineffectual

Question 14

Effectivity of TRO is extendible. T or F.

Answer 14

False. Effectivity of TRO is not extendible. There is no need of a judicial declaration to that effect.

Question 15

Effectivity of TRO issued by the CA

Answer 15

A TRO issued by the CA or any of its members is effective for 60 days from service on the party sought to be enjoined.

Question 16

Effectivity of TRO issued by the SC

Answer 16

A TRO issued by the SC or a member thereof is effective until further orders.

Question 17

Grounds for objection of preliminary injunction (memaid)

Answer 17

1. insufficiency
2. if injunction would cause irreparable damage to the person enjoined while the applicant can be fully
   compensated for such damages, PROVIDED the former files a BOND.

Question 18

Injunction v. Prohibition (special civil action)

Answer 18

(1)

i: directed against a party in the action; it may also be directed against a court, agency, or person
p: directed against a court, tribunal or a person exercising judicial powers (corporation, board, officer or person exercising judicial, quasi-judicial or ministerial functions)

(2)

i: does not involve jurisdiction of the court; applies even if there is no issue of jurisdiction, grave abuse of discretion or other similar acts which amount to lack of jurisdiction
p: based on the ground that the court against whom the writ is sought had acted without or in excess of jurisdiction

(3)

i: it may be the main action itself or just a provisional remedy
p: always the main action

Question 19

Q: Now, is there an exception to the rule that when the court determines whether there is a cause of action or not, the court cannot look at the evidence – all must be based on the complaint and there should be no appreciation of any evidence?

Answer 19

Based on the EXCEPTION in the case of

SANTIAGO vs. PIONEER SAVINGS & LOAN BANK

FACTS: The plaintiff filed a complaint against defendant with a prayer for a preliminary injunction. So, it is not only a complaint but plaintiff applied for a provisional remedy. And under the law in provisional remedy, that must be heard immediately because that is urgent, eh! And in a preliminary injunction, there must be a hearing because preliminary injunction cannot be granted ex parte. So even before the answer could be filed, nagkaroon na ng hearing and the plaintiff already presented evidence on his cause of action during the hearing for the issuance of the writ of preliminary injunction. Then after the hearing, here comes now the defendant moving to dismiss the entire case because there is no cause of action based on the evidence you presented.

Plaintiff: No, the cause of action is determined only based on the allegations in the complaint and you do not look at the evidence.

HELD: That is the general rule. If nag-present ka na ng ebidensiya in the preliminary injunction, the court can now determine whether there is a cause of action also based on the evidence. So that is the exception because there has been a reception of evidence ahead of a motion to dismiss.

“It is true that the determination of the sufficiency of a cause of action must be limited to the facts alleged in the Complaint and no other should be considered. However, where a hearing was held and documentary evidence was presented, not on the Motion to Dismiss but on the question of granting or denying an application for a Writ of Preliminary Injunction, a motion to dismiss for insufficiency of cause of action will be granted if documentary evidence admitted by stipulation disclosing facts sufficient to defeat the claim which authorizes the court to go beyond disclosure in the complaint.”

So that would be the exception: where evidence has already been presented in the main cause of action because of the application for preliminary injunction.

Question 20

Deposition

Answer 20

written testimony of a witness given in the course of a judicial proceeding, in advance of the trial or hearing, upon oral examination or in response to written interrogatories, and where an opportunity is given for cross-examination

Question 21

Deposition v. Affidavit

Answer 21

Affidavit is also a sworn statement of a witness but the statement is taken ex– parte (no cross–examination). But indeposition there is cross–examination, there is a confrontation as if he is already testifying in court.

Affidavits are not admissible in evidence except in cases governed by the Rule on Summary Procedure or in ordinary cases subject to cross-examination.

Depositions are intended as a means to compel disclosure of facts resting in the knowledge of a party or other person, which are relevant in a suit/proceeding.

Question 22

In what proceedings may a deposition be used?

Answer 22

1. at the trial
2. upon a hearing of a motion
3. upon a hearing of interlocutory proceeding (e.g. issuance of a writ of preliminary injunction or attachment)

Question 23

The court in which the petition is filed, may grant such preliminary injunction as may be necessary for the preservation of the rights of the parties, upon the filing by the petitioner of a bond in favor of the adverse party to answer for all damages and costs that may be awarded to him by reason of issuance of such injunction or the other proceedings following the petition; but such injunction shall not operate to discharge or extinguish any lien which the adverse party may have acquired upon the property of the petitioner.

Answer 23

Ok

Question 24

Execution of judgment is not stayed unless a writ of preliminary injunction is issued by the court. T or F.

Answer 24

True.

Question 25

I lost in a case. The judgment became final and executory because I did not make an appeal. However, I filed a petition for relief. In the meantime, my opponent is asking the court to execute the decision which is his right because the judgment is already final and executory. In other words, I am questioning the judgment of the court while siya naman, he is asking the court to enforce the judgment. Now, what is my remedy to stop the enforcement of the judgment?

Answer 25

Under Section 5, I can ask the court to issue a writ of preliminary injunction to stop the enforcement of the judgment. But I have to put up a BOND conditioned that in the event that my petition for relief is not meritorious, I will pay for all the damages that the other party will incur because of the delay in the execution. After the filing of the answer or the expiration of the period therefor, the court shall hear the petition and if after such hearing, it finds that the allegations thereof are not true, the petition shall be dismissed; but if it finds said allegations to be true, it shall set aside the judgment or final order or other proceedings complained of upon such terms as may be just. Thereafter the case shall stand as if such judgment, final order or other proceeding had never been rendered, issued or taken. The court shall then proceed to hear and determine the case as if a timely motion for a new trial or reconsideration had been granted by it.

Question 26

Can one court by injunction or restraining order stop the execution of a judgment of another court?

Answer 26

NO, because that will amount to interference. EXCEPTIONS: (when the enforcement of a final judgment may be stopped by way of injunction) 1. preliminary injunction - In effect, there is a final and executory judgment but the court will issue an injunction to stop this enforcement because of the pendency of a petition for relief from judgment. 2. When there is an action for annulment of judgment of the RTC filed in the CA. The CA may issue a writ of preliminary injunction – annulment of judgment, certiorari, or prohibition cases where the CA will issue a preliminary injunction to stop the RTC from enforcing its judgment pending the resolution of whether its judgment was rendered in excess or without jurisdiction- annulment of judgement, certiorari, or prohibition cases where the CA will issue a preliminary injunction to stop the RTC from enforcing its judgement pending the resolution of whether its judgement was rendered in excess or without jurisdiction.

Question 27

Does the RTC have the power to act despite the fact that the petition for review is already before the CA? Suppose I lost in the MTC, and I also lost on appeal in the RTC. I file a petition for review. What happens to the decision? Can the decision be enforced?

Answer 27

NO, it cannot be enforced yet because it is not yet final. We still have to wait for the appeal to be dismissed or to be entertained and denied later. Under paragraph [b], the appeal shall stay the judgment or final order UNLESS the CA, the law or these rules should provide otherwise. Also, based on the opening clause of paragraph [b], except in civil cases provided in the Rules on Summary Procedure, any part thereafter appealed to the CA will not stop the implementation of the RTC decision. Under Section 21 of the Summary Rules, when a case is started in the MTC under the Summary Procedure, and appealed to the RTC and decided by the RTC, the decision becomes immediately executory. Even if we file a petition for review, it is executory. The only way to stop the RTC from enforcing that judgment is to get a TRO or a writ of preliminary injunction from the CA. That is the rule. I have a similar case now on that issue. The case originated from the MTC for ejectment. The defendant lost, akyat ngayon sa RTC, affirmed. And then akyat na naman ang defendant sa CA on petition for review (although right now, it has not yet been given due course) with a prayer for TRO. But the CA said that there is no compelling reason to issue one. In the meantime, I filed a motion for execution. The defendant opposed on the ground that a judgment cannot be executed daw because of a pending petition for review. But this is under the Summary Rules – ejectment. This is an exception, so that will not apply.

Question 28

If a preliminary injunction is availed of to refrain from a particular act, the preliminary injunction is ______. If it requires the performance of a particular act or acts, the preliminary injunction is _______.

Answer 28

prohibitory; mandatory

Question 29

Objective of writ of preliminary injunction

Answer 29

to maintain the prevailing state of affairs of the parties prior to the controversy seeks to prevent threatened wrong, further injury, and irreparable harm or injustice until the rights of the parties are settled (which will be settled in the principal action) to preserve the status quo of the matter subject of the action to protect the rights of the plaintiff during the pendency of the suit

Question 30

The use of a preliminary injunction requires a main action. T or F.

Answer 30

True. It is not a cause of action in itself but merely a provisional remedy, an adjunct to a main suit and subject to the latter's outcome.

Question 31

Elements of cause of action

Answer 31

1. existence of a legal right of the plaintiff 2. correlative legal duty of the defendant to respect one’s right 3. act or omission of the defendant in violation of the plaintiff’s legal right 4. compliance with a condition precedent

Question 32

Cause of action

Answer 32

delict or wrongful act or omission committed by the defendant in violation of the primary rights of the plaintiff the reason for the action the formal statement of alleged facts determined by facts as alleged in the complaint and not the prayer therein

Question 33

A preliminary injunction is permanent. T or F.

Answer 33

False. It is merely temporary and is subject to the final disposition of the principal action.

Question 34

Why is it so important that the court may grant a relief of preliminary injunction?

Answer 34

If no preliminary injunction is issued, the defendant may, before final judgment, do the act which the plaintiff is seeking the court to restrain. This will make ineffectual the final judgment that the court may afterwards render in granting relief to the plaintiff.

Question 35

Status quo

Answer 35

last actual, peaceful, and uncontested status that precedes the actual controversy, that which is existing at the time of the filing of the case.

Question 36

Status quo order or Status quo ante order

Answer 36

to maintain the last, actual, peaceable and uncontested state of things which preceded the controversy

Question 37

TRO/Preliminary injunction vs. Status quo order

Answer 37

Status quo order is more in the nature of a cease and desist order, since it neither directs the doing or undoing of acts as in the case of prohibitory or mandatory injunctive relief.

Question 38

A writ of preliminary injunction is generally based solely on initial and incomplete evidence. T or F.

Answer 38

True.

Question 39

Interlocutory

Answer 39

Interlocutory is a legal term which can refer to an order, sentence, decree, or judgment, given in an intermediate stage between the commencement and conclusion of a cause of action, used to provide a temporary or provisional decision on an issue.

Question 40

The grant or denial of a writ of preliminary injunction is discretionary upon the _____

Answer 40

Trial court. Conflicting claims in an application for a provisional writ, more often than not, involve a factual determination which is not the function of appellate courts. Hence, this exercise must not be interfered with except when there is manifest abuse.

Question 41

At what stage of the proceeding may a preliminary injunction be granted?

Answer 41

At any stage of the action or proceeding prior to the judgment or final order.

Question 42

Kinds of preliminary injunction

Answer 42

a. prohibitory ex: If an action to annul a judgment is filed by the plaintiff after the lapse of the period for appeal, he may apply for the issuance of a writ of preliminary prohibitory injunction to prevent the trial court from issuing an order of execution of the judgment b. mandatory ex: If the water company unjustly cuts off the water supply of a consumer, the latter may file an action for specific performance and damages against the former. At the same time he may apply for the issuance of a writ of preliminary mandatory injunction to restore the water connection while the principal case is being litigated

Question 43

Preliminary prohibitory injunction vs. Preliminary mandatory injunction

Answer 43

(1) ppi: to refrain from a particular act or acts pmi: performance of a particular act or acts (2) ppi: act has not yet been performed bc it is restrained or prevented by the injunction pmi: act has already been performed and this act has violated the rights of another (3) ppi: status quo is preserved pmi: to restore the status quo and then preserve the said status quo which has been restored

Question 44

Preliminary injunction vs. Main action for injunction

Answer 44

(1) pi: can only exist as an incident to a principal action; not a cause of action mai: principal action and a cause of action; can be coupled with an application for writ of preliminary injunction (2) pi: does not seek a permanent injunction mai: seeks a judgment embodying a final injunction (3) pi: an order granted at any stage of an action or proceeding prior to the judgment or final order mai: granted after the trial of the action if it appears that the applicant is entitled to have the act or acts complained of permanently enjoined; permanent and forms part of the judgment on the merits and it can only be properly ordered on final judgment (4) pi: hearing is separate and distinct from the trial on the merits of the main case for injunction (5) pi: generally based solely on initial and incomplete evidence mai: the right and the act violative thereof must be established with absolute certainty to be a basis for a final and permanent injunction (6) pi: not a final resolution or decision disposing of the case; findings of fact and opinion are interlocutory in nature; may be challenged by a petition for certiorari under Rule 65 mai: judgment should be assailed by a timely appeal

Question 45

Examples of acts subject to the main action for injunction

Answer 45

Those mentioned in Art. 26 of the Civil Code a. prying into the privacy of another's residence b. meddling with or disturbing the private life or family relations of another c. intriguing to cause another to be alienated from his friends d. vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition

Question 46

A judgment in an action for injunction is immediately executory. T or F.

Answer 46

True. It shall not be stayed by an appeal taken therefrom, unless otherwise ordered by the trial court. The stay of execution shall be upon such terms as to bond or otherwise as may be considered proper for the security or protection of the rights of the adverse party.

Question 47

Preliminary mandatory injunction vs. Petition for mandamus

Answer 47

(1) pmi: provisional remedy, not a main or independent action m: special civil action and a main action (2) pmi: generally directed against a party litigant; may also be issued against a court, agency, or person m: directed against a tribunal, board, officer or person (3) pmi: issued to require a party to perform an act in order to restore the last peaceable and uncontested status preceding the controversy m: one which seeks a judgment commanding a tribunal, corporation, board, officer or person to perform a duty which the law specifically enjoins as a duty either because there was an unlawful neglect of such duty or a person was unlawfully excluded from the use and enjoyment of an office to which such person is entitled (4) pmi: may be directed against any act m: directed against ministerial acts

Question 48

Courts that issue writ of preliminary injunction

Answer 48

1. court where the principal action is pending for preliminary injunction 2. if the main action is for injunction, MTC cannot grant the preliminary injunction BECAUSE AN ACTION FOR INJUNCTION IS ONE INCAPABLE OF PECUNIARY ESTIMATION >> so RTC lang 3. if the principal action or proceeding is pending in the CA, the application for issuance of a writ of preliminary injunction must be made with the CA and writ shall be issued by said court or any of its members 4. if it is pending in the SC, then the application must be made with that court and the writ may also be issued by the same court or any member thereof

Question 49

Preliminary injunction may be granted if the following requisites are met:

Answer 49

1. there exists a clear and unmistakable right to be protected 2. this right is directly threatened by an act sought to be enjoined 3. the invasion of the right is material and substantial 4. there is an urgent and paramount necessity for the writ to prevent serious and irreparable damage ACTUAL EXISTING RIGHT TO BE PROTECTED DURING THE PENDENCY OF THE PRINCIPAL ACTION

Question 50

Formal requisites for issuance of a writ of preliminary injunction or a temporary restraining order

Answer 50

a. there must be a verified application b. the applicant must post a bond unless exempted by the court c. conduct of court hearing

Question 51

Effect of absence of verification

Answer 51

Insufficient both in form and substance

Question 52

The application for a TRO shall be acted upon only after all parties are heard in a summary hearing which shall be conducted within 24 hours after the sheriff's return of service and/or the records are received by the branch selected by raffle and to which the records shall be transmitted immediately.

Answer 52

Ok

Question 53

A preliminary injunction may, in some cases, be issued ex parte pursuant to Sec. 5 of Rule 58, Rules of Court. T or F.

Answer 53

False. Only TRO.

Question 54

ex parte

Answer 54

Ex parte (/ɛks ˈpɑːrteɪ, -iː/) is a Latin legal term meaning literally "from/out of the party/faction of" (name of party/faction, often omitted), thus signifying "on behalf of (name)". An ex parte decision is one decided by a judge without requiring all of the parties to the dispute to be present.

Question 55

Purpose of injunction bond

Answer 55

to protect the defendant against loss or damage by reason of the injunction in case the court finally decides that the plaintiff was not entitled to it

Question 56

The applicant for a writ of preliminary injunction may be exempted by the court from posting a bond. T or F.

Answer 56

True. Sec. 7, Rule 58

Question 57

An application for a writ of preliminary injunction or a TRO may be included in a complaint or any initiatory pleading. T or F.

Answer 57

True.

Question 58

Rule on prior or contemporary service of summons

Answer 58

If the case is filed in a multi-sala court, the case shall be raffled but only after notice to and in the presence of the party sought to be enjoined. It is, however, required that the notice be preceded or contemporaneously accompanied by service of summons upon the adverse party. Together with the summons shall be a copy of the complaint and the applicant's affidavit and bond. XPN: Where the summons could not be served upon the defendant either in person or by substituted service despite diligent efforts or when the defendant is temporarily out of the Philippines or when he is a non-resident, the requirement of prior or contemporaneous service shall not apply.

Question 59

Restraining order

Answer 59

issued to preserve the status quo until the hearing of the application for a writ of preliminary injunction because the injunction cannot be issued ex parte It could be considered as a provisional remedy within a provisional remedy because it is issued to preserve the status quo for a limited period until the court decides to issue a writ of preliminary injunction.

Question 60

Unless it appears that the enjoined party will not suffer any damage, the presiding judge must require the applicant to post a bond.

Answer 60

Ok.

Question 61

If it shall appear from facts shown by affidavits or by the verified application that great or irreparable injury would result to the applicant before the matter can be heard on notice, the court, in which the application for preliminary injunction was made, may issue a TRO ex parte for a period not exceeding 20 days from service on the party or person sought to be enjoined.

Answer 61

Ok.

Question 62

If the matter is of extreme urgency, and the applicant will suffer grave injustice and irreparable injury...

Answer 62

the executive judge of a multi-sala court or the presiding judge of a single-sala court may issue ex parte a TRO effective for only 72 hours from ISSUANCE, not service. There is also a need to comply with the requirement on service of summons and other documents as provided for in Section 4. Within this period, the judge, before whom the case is pending, shall conduct a summary hearing to determine WON the TRO can be extended to 20 days. The 72-hour period shall be included in the maximum 20-day period set by the Rules.

Question 63

When the court is a multi-sala court, the TRO may be issued by any other judge. T or F.

Answer 63

False. Only the executive judge of said court may issue the TRO.

Question 64

Effect if no action is taken by the judge within the 20-day period

Answer 64

TRO will automatically expire on the 20th day by the sheer force of law, no judicial declaration to that effect being necessary.

Question 65

The rule against the non-extendibility of the 20-day effectivity of a TRO is absolute

Answer 65

Yes, if issued by a RTC.

Question 66

The failure of the trial court to fix a period in the TRO converts it to a preliminary injunction. T or F.

Answer 66

False. Where there is an omission to fix the period, the 20-day period is deemed incorporated in the order.

Question 67

A judge may order a hearing on the issuance of a TRO where it was not prayed for in the complaint. T or F.

Answer 67

False.

Question 68

Rule against non-extendibility of TRO

Answer 68

It is prohibited if the extension or renewal is based on the very same ground upon which the TRO was originally issued. If another basis or ground should exist, aside from the original ground relied upon while the TRO is in effect, an extension or renewal of the order could be made subject to the same period limitations imposed by the Rules.

Question 69

TRO issued by CA or any member thereof

Answer 69

Effective for 60 days from service on the party or person sought to be enjoined

Question 70

TRO issued by SC or a member thereof

Answer 70

Effective until further orders

Question 71

The provisional remedy of preliminary injunction may be availed of when a petition for certiorari under Rule 65 is filed. T or F.

Answer 71

True. The filing of a petition does not interrupt the course of the principal case unless a TRO or PI is issued against the respondent tribunal or officer.

Question 72

To arrest the course of the principal action during the pendency of certiorari proceedings, there must be a TRO or PI from the higher court directed to the lower court.

Answer 72

Ok.

Question 73

Preliminary injunction may be availed of when a petition for relief, under Rule 38, is filed. T or F.

Answer 73

True. The petition for relief, which is an equitable remedy, is filed after a judgment has already become final and executory. Assuming that the prevailing party has not yet filed a motion for an order of execution, the pendency of petition for relief will not prevent a motion for the execution of the judgment. To stay its execution, the issuance of a writ of PI should be applied for in the court where the petition is filed.

Question 74

A writ of preliminary injunction cannot be availed of when an action to annul a judgment is filed under Rule 47. T or F.

Answer 74

False. It may be availed of to prevent the execution of the judgment.

Question 75

A preliminary mandatory injunction may be availed of to restore the plaintiff in his possession in a complaint for forcible entry or unlawful detainer. T or F.

Answer 75

True. A possessor deprived of his possession through forcible entry or unlawful detainer may, within 5 days from the filing of the complaint, present a motion in the action for forcible entry or unlawful detainer for the issuance of a writ of preliminary mandatory injunction to restore him in his possession.

Question 76

Cases where PI will not be issued

Answer 76

1. environmental cases 2. labor disputes (xpn: 218 and 264 of LC) p. 74

Question 77

Effect of filing a counterbond

Answer 77

It does not necessarily warrant the dissolution of the writ of preliminary injunction.

Question 78

May a PI be modified?

Answer 78

Yes, if it appears that the extent of the PI or TRO is too great.

Question 79

The trial court, CA, Sandiganbayan, or CTA that issued the writ of PI against a lower court, board, officer, or quasi-judicial agency shall decide the main case or petition within _______ from the issuance of the writ.

Answer 79

6 months

Question 80

Petition for certiorari

Answer 80

When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require. The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46.

Question 81

Petition for prohibition

Answer 81

When the proceedings of any tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial or ministerial functions, are without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent to desist from further proceedings in the action or matter specified therein, or otherwise granting such incidental reliefs as law and justice may require. The petition shall likewise be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46.

Question 82

Petition for mandamus

Answer 82

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, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent, immediately or at some other time to be specified by the court, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent. The petition shall also contain a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46.

Question 83

When and where to file petition

Answer 83

The petition shall be filed not later than sixty (60) days from notice of the judgment, order or resolution. In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the sixty (60) day period shall be counted from notice of the denial of said motion. The petition shall be filed in the Supreme Court or, if it relates to the acts or omissions of a lower court or of a corporation, board, officer or person, in the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed in the Court of Appeals whether or not the same is in aid of its appellate jurisdiction, or in the Sandiganbayan if it is in aid of its appellate jurisdiction. If it involves the acts or omissions of a quasi-judicial agency, unless otherwise provided by law or these Rules, the petition shall be filed in and cognizable only by the Court of Appeals. No extension of time to file the petition shall be granted except for compelling reason and in no case exceeding fifteen (15) days.

Question 84

Respondents and costs in certain cases

Answer 84

When the petition filed relates to the acts or omissions of a judge, court, quasi-judicial agency, tribunal, corporation, board, officer or person, the petitioner shall join, as private respondent or respondents with such public respondent or respondents, the person or persons interested in sustaining the proceedings in the court; and it shall be the duty of such private respondents to appear and defend, both in his or their own behalf and in behalf of the public respondent or respondents affected by the proceedings, and the costs awarded in such proceedings in favor of the petitioner shall be against the private respondents only, and not against the judge, court, quasi-judicial agency, tribunal, corporation, board, officer or person impleaded as public respondent or respondents. Unless otherwise specifically directed by the court where the petition is pending, the public respondents shall not appear in or file an answer or comment to the petition or any pleading therein. If the case is elevated to a higher court by either party, the public respondents shall be included therein as nominal parties. However, unless otherwise specifically directed by the court, they shall not appear or participate in the proceedings therein.

Question 85

Order to comment

Answer 85

If the petition is sufficient in form and substance to justify such process, the court shall issue an order requiring the respondent or respondents to comment on the petition within ten (10) days from receipt of a copy thereof. Such order shall be served on the respondents in such manner as the court may direct together with a copy of the petition and any annexes thereto. In petitions for certiorari before the Supreme Court and the Court of Appeals, the provisions of section 2, Rule 56, shall be observed. Before giving due course thereto, the court may require the respondents to file their comment to, and not a motion to dismiss, the petition. Thereafter, the court may require the filing of a reply and such other responsive or other pleadings as it may deem necessary and proper.

Question 86

Expediting proceedings; injunctive relief

Answer 86

The court in which the petition is filed may issue orders expediting the proceedings, and it may also grant a temporary restraining order or a writ of preliminary injunction for the preservation of the rights of the parties pending such proceedings. The petition shall not interrupt the course of the principal case unless a temporary restraining order or a writ of preliminary injunction has been issued against the public respondent from further proceeding in the case.

Question 87

Proceedings after comment is filed

Answer 87

After the comment or other pleadings required by the court are filed, or the time for the filing thereof has expired, the court may hear the case or require the parties to submit memoranda. If after such hearing or submission of memoranda or the expiration of the period for the filing thereof the court finds that the allegations of the petition are true, it shall render judgment for the relief prayed for or to which the petitioner is entitled. The court, however, may dismiss the petition if it finds the same to be patently without merit, prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to require consideration.

Question 88

Service and enforcement of order or judgment

Answer 88

A certified copy of the judgment rendered in accordance with the last preceding section shall be served upon the court, quasi-judicial agency, tribunal, corporation, board, officer or person concerned in such manner as the court may direct, and disobedience thereto shall be punished as contempt. An execution may issue for any damages or costs awarded in accordance with section 1 of Rule 39.

Question 89

ERRORS OF JURISDICTION are reviewable by the extraordinary writ of certiorari. T or F.

Answer 89

True. ERRORS OF JUDGMENT are reviewable by appeal.

Question 90

In certiorari petition, the action of the superior court is to correct.

Answer 90

False. In certiorari petition, the action of the superior court is not to correct but to annul.

Question 91

Writs of certiorari, prohibition and mandamus are enforceable only within the region where the issuing court is located; while a writ of execution can be enforced even outside said territory.

Answer 91

Ok.

Question 92

The CA may pass upon factual issues as when a petition for certiorari is filed before it. T or F.

Answer 92

True.

Question 93

Petition for certiorari, mandamus, or prohibition against any interlocutory orders issued by the court are prohibited documents, motions, or pleadings under the Summary Rules.

Answer 93

Ok.

Question 94

Special civil actions

Answer 94

1. interpleader 2. declaratory relief 3. certiorari, prohibition, mandamus 4. quo warranto 5. expropriation 6. foreclosure of mortgage 7. partition 8. forcible entry, unlawful detainer 9. contempt

Question 95

This case involved a petition for certiorari (special civil action under Rule 65) and then before the respondent could answer the petition, he withdrew the petition. Later on he changed his mind and re-filed the petition. The question that was asked by the SC is when you file a special civil action for certiorari and then before the other party could answer you withdraw it, is the withdrawal with or without prejudice? Can you re-file it?

Answer 95

There is no rule in Rule 65 answering that question so the SC had to resort to the ordinary rules by analogy. Certiorari is similar to appeal although it is not really an appeal. And the SC looked at the law on appeal. What happens when you perfect your appeal and then later on you withdraw your appeal? What will happen to the order or judgment? Rule 50 says that if you withdraw the appeal, the judgment appealed from will now become final and executory. Therefore, since it is now final and executory, you cannot change it anymore. “Applying the foregoing rules in a supplementary manner (or by analogy), upon the withdrawal of a petition in a special civil action before the answer or comment thereto has been filed, the case shall stand as though no appeal has been taken, so that the judgment or order of the lower court being questioned becomes immediately final and executory. Thus, a resolution granting the withdrawal of such a petition is with prejudice and petitioner is precluded from bringing a second action based on the same subject matter.” Now, there are other classifications of civil actions which are not expressly stated in Section 3. The only one stated there is ordinary and special.

Question 96

If the petitioner filed before the SC a petition captioned “Petition for Certiorari” based on Rule 65 but the allegations show that the issues raised are pure questions of law, the cause of action is not one based on Rule 65 which raises issues of jurisdiction, but on Rule 45 which raises pure questions of law. The allegations of the pleading determine the cause of action and not the title of the pleading.

Answer 96

Oki.

Question 97

Effect of appeal by certiorari without certification

Answer 97

not curable by the submission thereof after the filing of the petition sufficient ground for the dismissal thereof XPN: In certain exceptional circumstances, however, the Court has allowed the belated filing of the certification. In all these cases, there were special circumstances or compelling reasons that justified the relaxation of the rule.

Question 98

Defaults are allowed in special civil actions of certiorari, prohibition, and mandamus where comment instead of an answer is required to be filed. T or F.

Answer 98

False.

Question 99

Remedies of a defending party declared in default

Answer 99

1. Remedy after notice of order and before judgment – The defendant must file a motion under oath to set aside the order of default and show that a. the failure to answer was due to fraud, accident, mistake or excusable negligence (FAMEN) and that b. the defendant has a meritorious defense, i.e., there must be an affidavit of merit 2. Remedy after judgment and before judgment becomes final and executor – The defendant may file a motion for new trial under Rule 37. He may also appeal from the judgment as being contrary to the evidence or the law 3. Remedy after the judgment becomes final and executory – The defendant may file a petition for relief from judgment under Rule 38 4. Where the defendant has however, been wrongly or improvidently declared in default, the court can be considered to have acted with grave abuse of discretion amounting to lack of jurisdiction and when the lack of jurisdiction is patent in the face of the judgment or from the judicial records, he may avail of the special civil action of certiorari under Rule 65

Question 100

Where the judgment or final order is not appealable, like an interlocutory order, Rule 41 declares that the “aggrieved party may file an appropriate civil action under Rule 65.” The remedy therefore, would be certiorari, prohibition or mandamus. This remedy however, is predicated upon an allegation and a showing that the denial of the motion was tainted with grave abuse of discretion amounting to lack of jurisdiction where the remedy chosen is either certiorari or prohibition or both. In case the remedy chosen is mandamus, there must be a showing that the respondent court unlawfully neglected the performance of an act which the law specifically enjoins. Without such showing, Rule 65 cannot be availed of as a remedy.

Answer 100

Ok.

Question 101

“An order denying a motion to dismiss is an interlocutory order which neither terminates nor finally disposes of a case, as it leaves something to be done by the court before the case is finally decided on the merits. As such, the general rule is that the denial of a motion to dismiss cannot be questioned in a special civil action for certiorari which is a remedy designed to correct errors of jurisdiction and not errors of judgment. Neither can a denial of a motion to dismiss be the subject of an appeal unless and until a final judgment or order is rendered. In order to justify the grant of the extraordinary remedy of certiorari, the denial of the motion to dismiss must have been tainted with grave abuse of discretion amounting to lack or excess of jurisdiction

Answer 101

Ok.

Question 102

What is the remedy of the plaintiff in case of dismissal for his failure to appear?

Answer 102

Since the dismissal is with prejudice or an adjudication upon the merits of the case, the remedy of the plaintiff is to appeal from the order of dismissal. An order dismissing an action with prejudice is appealable. Under the rules, it is only when the dismissal is without prejudice that appeal cannot be availed of (Sec. 1[g] R 41). Since appeal is available, certiorari is not the remedy because the application of a petition for certiorari under Rule 65 of the Rules is conditioned upon the absence of appeal or any plain, speedy and adequate remedy

Question 103

Remedies from denial of intervention

Answer 103

1. appeal 2. mandamus (if there is grave abuse of discretion) 3. certiorari (if there is improper granting of intervention)

Question 104

Certiorari will not lie against an order admitting or rejecting a deposition in evidence. The remedy is an appeal from the judgment. T or F.

Answer 104

True.

Question 105

The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable by appeal or by certiorari before judgment.

Answer 105

Ok. An order denying a demurrer to the evidence is interlocutory and is therefore, not appealable. It can however, be the subject of a petition for certiorari in case of grave abuse of discretion or an oppressive exercise of judicial authority

Question 106

After judgment becomes executory, the losing party may avail of the following

Answer 106

1. petition for relief from judgment 2. action to annul a judgment 3. certiorari 4. collateral attack of judgment

Question 107

Can an order of denial be assailed by a petition for certiorari under Rule 65?

Answer 107

Not anymore. Effective December 27, 2007, an order of denial is no longer assailable by certiorari because of the amendment to Rule 41 by A.M. No. 07-7-12-SC. Deleted from those matters from which no appeal can be taken and from which order Rule 65 petition may be availed of, is “an order denying a motion for new trial or a reconsideration”. The amendment obviously seeks to prevent the filing of a petition for certiorari under Rule 65 based on an order denying a motion for new trial or a motion for reconsideration. The remedy available therefore, would be that prescribed under Sec. 9, i.e., to appeal from the judgment or final order.

Question 108

A judgement in a certiorari, prohibition or mandamus case, if not complied with, is punishable by contempt. T or F.

Answer 108

True.

Question 109

A party is not ALLOWED TO QUESTION THE DECISION ON THE MERITS AND ALSO INVOKE THE EXTRAORDINARY REMEDY OF CERTIORARI UNDER Rule 65 and an ordinary appeal under Rule 41 cannot be allowed since one remedy would necessarily cancel out the other. T or F.

Answer 109

True.

Question 110

What orders or judgment are subject to appeal?

Answer 110

Only FINAL judgments or orders can be appealed as distinguished from interlocutory judgments or orders (paragraph [c])which are not appealable. If appeal is available, certiorari under Rule 65 cannot be available!!

Question 111

Final judgment

Answer 111

[1] The judgment is final in the sense that it is already executory and that happens if there is no appeal. And that is for purposes of applying Rule 39 on execution. [2] The judgment is final in the sense that it is not merely interlocutory and this is for the purpose of applying the law on appeal under Rule 41. In other words, a final order or judgment (for purposes of appeal) is one which is not merely interlocutory in the sense that it completely disposes of the case or a particular matter therein where there is nothing more for the court to do after its rendition.

Question 112

How do you appeal from the RTC to the CA?

Answer 112

1. Ordinary Appeal (in cases decided by the RTC pursuant to its original jurisdiction) 2. Petition For Review (in cases decided by the RTC pursuant to its appellate jurisdiction) 3. Appeal By Certiorari (appeal from RTC direct to the SC on pure questions of law)

Question 113

In all cases where only questions of law are raised or involved, the appeal shall be to the Supreme Court by petition for review on certiorari in accordance with Rule 45.

Answer 113

K.

Question 114

You filed an action for recovery of money amounting to P1 million. Obviously the jurisdiction is in the RTC. Now, natalo ka and you want to go to the CA. What is your mode of appeal? Ordinary Appeal because the case was decided by the RTC pursuant to its original jurisdiction. In paragraph B, the case is recovery of sum of money amounting to P50,000. Saan i-file yan? MTC man yan ba. Now, you lose, where will you appeal and what is the mode of appeal? RTC by Ordinary appeal. Suppose, talo ka pa rin sa RTC and you want to go to CA. This time, the mode of appeal is not by ordinary appeal but by petition for review because the case now being appealed has been decided by the RTC pursuant to its appellate jurisdiction.

Answer 114

This goes back to the jurisdiction of the SC. The SC has exclusive, appellate jurisdiction in certain cases — constitutionality of a law, treaty is in issue, jurisdiction of the court is in issue, and when only questions of law are being raised. So the case is in the RTC and you lost. You would like to appeal on pure question of law. Now, do not go to the CA for it has no jurisdiction. You by-pass CA and go directly to the SC on appeal by certiorari in accordance with Rule 45. NOTE: Only in exercise of its original jurisdiction.

Question 115

Time for filing memoranda in special cases

Answer 115

In certiorari, prohibition, mandamus, quo warranto and habeas corpus cases, the parties shall file, in lieu of briefs, their respective memoranda within a non-extendible period of thirty (30) days from receipt of the notice issued by the clerk that all the evidence, oral and documentary, is already attached to the record. (13a, R46) The failure of the appellant to file his memorandum within the period therefor may be a ground for dismissal of the appeal.

Question 116

What are these original cases which can be filed in the CA?

Answer 116

Under Section 9 of BP 129, Certiorari, prohibition, mandamus, quo warranto, annulment of judgment of the RTC. The Annulment of Judgment of the RTC, which belongs to the exclusive original jurisdiction of the CA, is governed by Rule 47.

Question 117

Rule 47 vs. Rule 65

Answer 117

Rule 47 is an entirely new rule which governs the remedy of annulment of judgments or final orders or resolutions. We already met this remedy in judiciary law. The CA has original exclusive jurisdiction to annul final judgments and resolutions of the RTC. (Section 9, BP 129) So it is an entirely original action for annulment of judgment of the RTC. Now, that should not be confused with certiorari, prohibition and mandamus which fall under the original concurrent jurisdiction of the CA. Rule 47 or annulment of judgment of the RTC falls within the exclusive original jurisdiction of the CA. Take note that in an appeal, the judgment appealed from is valid. But in annulment under Rule 47, the judgment is being asked to be declared void. Under the prior law there was no direct rule governing that remedy. The only guideline for annulment of judgments of the RTC are decided cases. Now for the first time the 1997 Rules have a definite rule on how to enforce this remedy.

Question 118

RTC decided a forcible entry. By simply reading the decision, obviously the RTC has no jurisdiction. Therefore, I can attack it directly by filing a case for its annulment under Rule 47. OR, I will not file a case under Rule 47 but I will attack it collaterally. Meaning, bayaan ko lang. I will raise that issue during execution. If you move for execution, I can oppose, “You cannot execute because the RTC has no jurisdiction over the case. Therefore the judgment is void.” So it is not necessary to file a case to declare the decision as null and void. That is collateral attack. But if the judgment is not void on its face but the nullity is intrinsic or nakatago – not obvious ba – the rule is, you must file a direct action for its annulment which must be done before the action is barred by laches or estoppel. So it is necessary to file a case for annulment of judgment under Rule 47. Well of course, certiorari under Rule 65 is also a ground for attacking a judgement but the trouble is you are limited to 3 grounds:

Answer 118

1) Lack of jurisdiction, 2) excess of jurisdiction and 3) grave abuse of discretion. Walang extrinsic fraud. That is governed by Rule 65 and not by Rule 47. And under Rule 65, you can avail of certiorari only within 60 days. But if you want annulment, it could be longer under Rule 47. That is under section 3. That could be a big difference. Moreover, what do you attack in certiorari? Normally, interlocutory orders eh. But a final judgment can be attacked by annulment under Rule 47. Now, those remedies were summarized in the case of BAYOG vs. NATINO – 258 SCRA 378 [1996] HELD: It is a settled rule that a final and executory judgment may be set aside in three (3) ways. To wit: 1) By petition for relief from judgment under Rule 38; 2) When the judgment is void for want of jurisdiction, by direct attack, by certiorari, annulment of judgment or by collateral attack; and 3) When the judgment was obtained by fraud and Rule 38 cannot be applied anymore. So those are the summary of the remedies.

Question 119

Possible remedies of defendant declared in DEFAULT

Answer 119

1) Rule 9, Section 3 [b] – Motion to lift Order of Default, there is still no judgment; ground: FAME; 2) Rule 37 – Motion for new trial, judgment not yet final; Ground: FAME; 3) Rule 38 – Petition for relief within 60 days and 6 months, judgment is already final; ground: FAME; 4) Rule 41 – Appeal within 15 days; ground: Default judgment is contrary to law or evidence; 5) Rule 47 – Annulment of judgment; Ground: Extrinsic Fraud; 6) Rule 65 – Certiorari; ground: Lack or excess of jurisdiction or grave abuse of discretion

Question 120

Does the petitioner have the remedy of appeal or any other remedy? If the answer is in the affirmative, certiorari is not available, as a rule. However, even if appeal is available, if it is not adequate, speedy or equally beneficial as certiorari, a petition for certiorari may be availed of.

Answer 120

Noice.

Question 121

Its function is to raise only questions of jurisdiction and no other. It cannot be used for any other purpose (Landbank vs. CA, supra). Do not file a certiorari if your purpose is to raise a factual issue or to ask for a re-evaluation of the facts and the evidence (PILTEL vs. NTC 410 SCRA 82).

Answer 121

Okrrr

Question 122

Direct attack v. Collateral attack

Answer 122

A direct attack of a judgment is made through an action or proceeding the main object of which is to annul, set aside or enjoin the enforcement of such judgment if not yet carried into effect; or if the property has been disposed of, the aggrieved party may sue for recovery. A collateral attack is made when, in another action to obtain a different relief, an attack on the judgment is made as an incident in said action. This is proper only when the judgment, on its face, is null and void, as where it is patent that the court which rendered said judgment has no jurisdiction. A petition for certiorari under Rule 65 is a direct attack. It is filed primarily to have an order annulled. An action for annulment of a judgment is likewise a direct attack on a judgment. A motion to dismiss a complaint for collection of sum of money filed by a corporation against the defendant on the ground that the plaintiff has no legal capacity to sue is a collateral attack on the corporation. A motion to dismiss is incidental to the main action for a sum of money. It is not filed as an action intended to attack the legal existence of the plaintiff.

Question 123

Other term for certiorari

Answer 123

prerogative writ; bc it is never demandable as a matter of right

Question 124

Purpose of certiorari

Answer 124

to correct errors of jurisdiction, which includes the commission of grave abuse of discretion amounting to lack of jurisdiction *mere abuse of discretion is not enough to warrant the issuance of the writ. It must be grave

Question 125

Rule 45 vs. Rule 65

Answer 125

45: petition for review on certiorari or appeal by certiorari; continuation of the appellate process over the original case; filed within 15 days from notice of judgment or final order appealed from; does not require a prior motion for reconsideration; filed only with SC 65: petition for certiorari; special civil action; not part of the appellate process but an original action; filed not later than 60 days from notice of judgment, order or resolution sought to be assailed; requires a prior motion for reconsideration (general rule); filed with RTC, CA, SC or Sandiganbayan 45 is an APPEAL. It raises the errors of judgment of a court, tribunal or officer and normally dwells on the factual or legal merits of the case; raises only questions of law 65 is not designed to review every error of a lower court or tribunal. It is narrow in scope and seeks to correct only jurisdictional errors often arising out of a grave abuse of discretion amounting to lack of jurisdiction; raises questions of jurisdiction 45 or appeal: MISTAKE OF JUDGMENT 65: MISTAKE OF JURISDICTION

Question 126

The remedies of appeal and certiorari are considered as mutually exclusive and not alternative or successive. T or F.

Answer 126

True. Certiorari cannot even be a substitute for a lost appeal. Certiorari cannot co-exist with an appeal or any other adequate remedy.

Question 127

Certiorari is not appealable. T or F.

Answer 127

False. Pero by appeal na ulit ha not certiorari ulit.

Question 128

Certiorari vs. appeal

Answer 128

(1) c: remedy designed for the correction of errors of jurisdiction, not errors of judgment a: where the error is not one of jurisdiction, but of an error of law or fact, which is a mistake or an error of judgment (2) c: original and independent action that is not part of the trial that had resulted in the rendition of the judgment or order complained of a: merely a continuation of the original suit (3) c: higher court uses its original jurisdiction in accordance with its power of control and supervision over the proceedings of lower courts a: higher court exercises its appellate jurisdiction and power of review (4) c: parties include the lower court or quasi-judicial agency issuing the assailed order a: parties are the original parties to the action (5) c: may be directed against an interlocutory order of the lower court a: directed to judgments and final orders or to those that the Rules of Court declares as appealable (6) c: should be filed not later than 60 days from the notice of judgment, order, or resolution; if a motion for new trial or motion for reconsideration was timely filed, the period shall be counted from the denial of the motion a: should be filed within 15 days from the notice of judgment or final order appealed from; where a record on appeal is required, the appellant must file a notice of appeal and a record on appeal within 30 days from the said notice of judgment or final order; petition for review should be filed and served within 15 days from notice of denial of decision or of the petitioner's timely filed motion for new trial or motion for reconsideration (7) c: generally requires a motion for reconsideration prior to the filing of the petition in order to afford the tribunal an opportunity to correct the alleged errors

Question 129

You can file a petition for certiorari as a substitute for a lost appeal. T or F.

Answer 129

False. That is erroneous.

Question 130

When will certiorari be available despite the loss of appeal?

Answer 130

1. if appeal is lost without the appellant's negligence 2. when the public welfare and advancement of public policy dictate 3. when the writs issued are null and void 4. when the questioned order amounts to an oppressive exercise of judicial authority

Question 131

Essential requisites for a petition for certiorari

Answer 131

1. petition is directed against a tribunal, board or officer exercising judicial or quasi-judicial function 2. such tribunal, board or officer has acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction 3. there is neither appeal nor any plain, speedy and adequate remedy in the ordinary course of law for the purpose of annulling or modifying the proceeding 4. there must be capricious, arbitrary and whimsical exercise of power for it to prosper

Question 132

A respondent is said to be exercising judicial function where he has the power to...

Answer 132

determine what the law is and what the legal rights of the parties are, and then undertakes to determine these questions and adjudicate upon the rights of the parties

Question 133

Quasi-judicial function

Answer 133

term which applies to the action, discretion, etc. of public administrative officers or bodies, which are required to investigate facts or ascertain the existence of facts, hold hearings, and draw conclusions from them as a basis for their official action and to exercise discretion of a judicial nature

Question 134

Ministerial function

Answer 134

one which an officer or tribunal performs in the context of a given set of facts, in a prescribed manner and without regard to the exercise of his own judgment upon the propriety or impropriety of the act done

Question 135

Can you assail the validity of an EO through certiorari?

Answer 135

No. A petition for declaratory relief under Rule 63, filed with the RTC, is the proper recourse to assail the validity of the EO. Galicto v. Aquino

Question 136

During the formal offer of evidence by the plaintiff, the defendant opposed the admission of a purported deed of sale between the parties, arguing against its genuineness and due execution. His objection was overruled and the deed was admitted for the purpose for which it was offered. On the premise that the objection was legally sound, is the error of the court sufficient to sustain a petition for certiorari against it?

Answer 136

It is not. The error of the court could be deemed a mere error in its conclusion, hence, a mere error of judgment. If the judgment in the case would, later on, be adverse to the defendant, the error of the court would be a proper subject of an appeal.

Question 137

Under Sec. 1, Rule 65 the act of the tribunal, board or officer which is the object of the petition should constitute errors of jurisdiction which may be any of the following:

Answer 137

a. acting without jurisdiction - the tribunal, board, or officer acted with absolute lack of authority b. acting in excess of jurisdiction even if initially the tribunal, board or officer had jurisdiction - when the public respondent exceeds its power or acts without any statutory authority c. acting with grave abuse of discretion amounting to lack of jurisdiction or in excess of jurisdiction even if the tribunal, board or officer based its or his resolution or decision - connotes such capricious and whimsical exercise of judgment as to be equivalent to lack or excess of jurisdiction; excess of jurisdiction means that an act, though within the general power of a tribunal, board, or officer, is not authorized and invalid with respect to the particular proceeding because the conditions, which alone authorize the exercise of the general power in respect thereof, are wanting

Question 138

To be considered grave...

Answer 138

discretion must be exercised in a despotic manner by reason of passion or personal hostility, and must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined by or to act at all in contemplation of law

Question 139

Judge extends by 20 days the 72-hour restraining order he issued. Does this amount to grave abuse of discretion?

Answer 139

Yes. In no case shall the total period of effectivity of the TRO exceed 20 days including the 72 hours originally provided

Question 140

The trial court failed to determine a factual controversy before issuing a writ of demolition. Is there grave abuse of discretion?

Answer 140

Yes. This is a disregard to the basic principles of due process. Such error may be corrected by a writ of certiorari.

Question 141

A judge hears a motion on the same day it was filed. Grave abuse of discretion?

Answer 141

Yes. The other party needs time to oppose the motion.

Question 142

May the court order immediate execution of a final order?

Answer 142

Not really. It has to wait for the expiration of the period to appeal.

Question 143

When a court allows an uninterested person to intervene in a case, is this an error of judgment or an error of jurisdiction?

Answer 143

Error of jurisdiction. This may be reviewed in a special civil action for certiorari

Question 144

The trial court required a full-blown hearing to determine factual issues in a land registration case even if the petitioner did not comply with some procedural rules. Grave abuse of discretion?

Answer 144

Not if it is in the interest of justice.

Question 145

Motion for recosnideration

Answer 145

adequate remedy against a decision, resolution or order of a lower court it provides the court opportunity to correct any error it might have committed the availability of a motion for reconsideration generally precludes immediate recourse to a certiorari petition

Question 146

A remedy is plain, speedy, and adequate if

Answer 146

it will promptly relieve the petitioner from the injurious effects of the judgment, order, or resolution of the lower court or agency

Question 147

When certiorari is allowed despite availability of appeal

Answer 147

1. when it can be shown that appeal would be inadequate, slow, insufficient, and will not promptly relieve a party from the injurious effects of the order complained of 2. where an appeal would be slow, inadequate and insufficient and that to strictly observe the general rule would result in a miscarriage of justice

Question 148

Filing of a motion for reconsideration is a condition sine qua non to the filing of a petition for certiorari. T or F.

Answer 148

True. This is to allow the court an opportunity to correct its imputed error. This is to afford the public respondent an opportunity to correct any actual or fancied error attributed to it by way of re-examination of the legal and factual aspects of the case. Another reason is that the motion may still be considered as a plain, speedy and adequate remedy of law.

Question 149

The mere fact that a petitioner fails to move for the reconsideration of the court a quo's order denying his motion is a sufficient cause for the outright dismissal of a petition for certiorari. T or F.

Answer 149

True.

Question 150

Exceptions to the requirement of a motion for reconsideration

Answer 150

1. the order is a patent nullity, as where the court a quo has no jurisdiction 2. questions raised in the certiorari proceeding have been duly raised and passed upon by the lower court, or are the same as those raised and passed upon in the lower court 3. there is an urgent necessity for the resolution of the question and any further delay would prejudice the interests of the government or of the petitioner 4. the subject matter of the action is perishable 5. under the circumstances, a motion for reconsideration would be useless 6. petitioner was deprived of due process and there is an extreme urgency for relief 7. in a criminal case, relief from order of arrest is urgent and the granting of such relief by the trial court is improbable 8. the proceedings in the lower court are a nullity for lack of due process 9. the proceedings were done ex parte or in which the petitioner had no opportunity to object 10. where the issue raised is one purely of law 11. where public interest is involved 12. where there is an urgent necessity for the resolution of the question and any further delay would prejudice the interests of the government or of the petitioner or the subject matter of the action is perishable 13. where the issue raised is one purely of law or where public interest is involved 14. where the petition is filed questioning the authority of the CA to enjoin the implementation of a preventive suspension order issued by the Office of the Ombudsman >> issue of transcendental public importance (constitutionality)

Question 151

Court a quo

Answer 151

Court from which an appeal has been taken

Question 152

Formal requirements for petition of certiorari

Answer 152

1. verification 2. full names and address of all the petitioners and respondents; statement of facts 3. certified true copy of the judgment, order, resolution subject of the petition 4. copies of all pertinent pleadings and documents 5. sworn certification of non-forum shopping

Question 153

Material date rule

Answer 153

The ff material dates must be stated in the petition: a. when notice of the judgment, final order or resolution subject of the petition was received b. when a motion for new trial or reconsideration was filed, if any c. when notice of the denial of the motion for new trial or reconsideration was received Requirement is for the purpose of determining the timeliness of the petition

Question 154

The 60-day period may be extended under any of the circumstances provided in the earlier case of Labao vs. Flores

Answer 154

1. most persuasive and weighty reasons 2. to relieve a litigant from an injustice not commensurate with his failure to comply with the prescribed procedure 3. good faith of the defaulting party by immediately paying within a reasonable time from the time of the default 4. existence of special or compelling circumstances 5. merits of the case 6. a cause not entirely attributable to the fault or negligence of the party favored by the suspension of the rules 7. a lack of any showing that the review sought is merely frivolous and dilatory 8. the other party will not be unjustly prejudiced thereby 9. fraud, accident, mistake or excusable negligence without appellant's fault 10. peculiar legal and equitable circumstances attendant to each case 11. in the name of substantial justice and fair play 12. importance of the issues involved 13. exercise of sound discretion by the judge guided by all the attendant circumstances

Question 155

Court where petition is filed

Answer 155

a. RTC if acts or omissions of a MTC, corporation, board, officer or person b. CA, if acts or omissions of a quasi-judicial agency c. Sandiganbayan d. Commission on Elections, in election cases involving act or omission of MTC or RTC