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Taha, Aye'sha Shaireen L.: 7 Reporter

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28 views12 pages

Taha, Aye'sha Shaireen L.: 7 Reporter

Uploaded by

Thalia Macadato
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Taha, Aye’sha Shaireen L.

7th Reporter
Instances when mandamus may or may not lie.
Mandamus will not lie: Mandamus lies:
- To compel a course of conduct
- To compel an official to do anything which is not his
duty to do or to give the applicant anything to which he - To compel execution when decision had become
is not entitled by law (the writ neither confers powers final
not imposes duties)
- To compel payment
- To compel performance of an act prohibited by law
- To compel the enactment and approval of the
- To require anyone to fulfil contractual obligations (a
contractual obligation is not a duty specifically enjoined
necessary appropriation ordinance
by law resulting from office, trust, or station and the - To compel the corresponding payment of
rule is that mandamus never lies to enforce the municipal funds
performance of contractual obligations.
- To compel the appointing authority to appoint a
particular person to a specific position, through how
qualifies he may be to the position
- To compel to issue rules and regulations when the law
is silent as to the standard for control and regulation
Unlawfully excluded from office or position.
• A person who has been excluded from the use and enjoyment of right or office to which he is
entitled
• may file a petition for mandamus, where there is no appeal or plain, speedy and adequate remedy in the ordinary
course, commanding the board or person that unlawfully excluded him to reinstate him to such office or enjoyment
of such right.

• Petitioner must show that he has a clear legal right to the office and that the respondent, without
any right thereto, is illegally excluding him therefrom.

• Mandamus does not lie to oust the person who occupies it and exercises its functions.

• Mandamus will lie only where petitioner’s right is founded clearly in law and not when it is
doubtful.

• The remedy is an action for quo warranto


Where to file petition.

• The petition shall be filed:


- In the Supreme Court
- Regional Trial Court exercising jurisdiction over the territorial area as defined by
the Supreme Court. ( if relates to the acts or omissions of a lower court or of a
corporation, board, office or person)
- Court of Appeals, whether or not the same is in aid of its appellate jurisdiction;
involves the acts or omissions of a quasi-judicial agency
• Sandiganbayan, in aid of its appellate jurisdiction
Respondents and costs in certain cases.

- The petitioner shall join, as private respondent/s with such public respondent/s,
- The person/s interested in sustaining the proceedings in the court
o Duty of such private respondents to appear and defend, both in his or their own behalf and
in behalf of the public respondent/s affected by the proceedings
- Costs are awarded in favor of the petitioner shall be against the private respondents only
- Public respondents shall not appear or participate in the proceedings unless otherwise
specifically directed by the court.
Order to comment.

- The court shall issue and order requiring the respondent/s to comment on
the petition within ten (10) days from the receipt thereof.
- It shall be served on the respondents together with a copy of the petition
and any annexes thereto
- Petition for Certiorari; Section 2 Rule 56 (shall be observed)
o The court may require the respondents to file their comment to, and
not to dismiss the petition. Thereafter the court may require the filing of
a replt and such other responsive or other pleading as it may deem
necessary and proper.
Expediting proceedings; injunctive relief.

- The court may issue order expediting the proceedings


- The court may grant a temporary restraining order or
a writ of preliminary injunction for the preservation
of the rights of the parties pending such proceedings
Proceedings after comment is filed.

- The court may hear the case or require the parties to


submit memoranda
- After such hearing, the court shall render judgement
for the relief prayed for
Service and enforcement of order or judgement.

• a certified copy of the judgement 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.
Common requisites.
1. The petition must be verified - a pleading is verified by an affidavit that the affiant has read the pleading and that the
allegations therein are true and correct of his knowledge or based on authentic records.
2. When and where to file petition- the petition may be filed not later than sixty (60) days from notice of the judgement, order
or resolution sought to be assailed in the court
a. Supreme Court
b. Regional Trial Court; if it relates to the acts or omissions of a lower court or of a corporation, board, officer or person,
exercising jurisdiction over the territorial are as defined by the Supreme Court
c. Court of Appeals; if it involved the acts or omissions of a quasi-judicial agency, and unless provided by law or Rules of
Court
d. Sandiganbayan; if it is in aid of its jurisdiction
- Deemed waived where the petition is filed beyond the 60-day period.
3. Jurisdiction to issue writ – the Supreme Court, Court of Appeals and Regional Trial Court have original concurrent jurisdiction
a. Regional Trial Court; if acts or omissions of a lower court of or of a corporation, board, officer or person, exercising
jurisdiction over the territorial are as defined by the Supreme Court
b. Court of Appeals; if it involved the acts or omissions of a quasi-judicial agency, and unless provided by law or Rules of
Court
Common requisites.
4. Who should be respondents – public respondents shall not appear or file an answer or comment to the
petition or any pleading unless specifically directed by court
- The petitioner shall join, as private respondent/s with such public respondent/s,
- The person/s interested in sustaining the proceedings in the court
5. Content of petition – the petition shall contain the full names and actual address of all the petitioner and
respondents, a concise statement of the matters involved, the factual background of the case, and the
grounds relied upon for the relief prayed for.
6. Non-forum shopping certification- the petition must be accompanied by a verified non-forum certification,
combined with its verification that petitioner has not commenced any other action involving the same
issues in different courts
- The certification must be executed by petitioner himself
Injunctive relief.

- The court may issue a status quo order to maintain the last, actual, peaceable
and uncontested status of things which preceded the controversy
- The court may grant a temporary restraining order or a writ of preliminary
injunction for the preservation of the rights of the parties pending such
proceedings.
- The court may proceed with the trial or heading in the absence of such
temporary restraining order or a writ of preliminary injunction.

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