Rule 45 Provisional Remedies
Appeal by Certiorari to the Supreme Court
or Petition for Review on Certiorari
Application of Rule 45
- Available from the judgment, final order
or resolution of the:
o Court of Appeals
o Sandiganbayan
o Court of Tax Appeals
o Regional Trial Courts
o Other courts whenever
authorized by law
- Rule 45 applies in the following cases:
o Appeal from a judgment of the
RTC where only questions of law
are raised or are involved AND
the case is decided by said court
in the exercise of its original
jurisdiction
 When the decision is
rendered in the exercise
of its appellate
jurisdiction—Rule 42 is
the proper remedy (can
raise questions of law
also) brought to the CA
o Appeal from judgment of the CA
raising only questions of law
o Appeal from judgment of the
Sandiganbayan raising only
questions of law
o Appeal from decisions or ruling
of the CTA en banc
o Appeal from the judgment in a
petition for writ of amparo to the
SC
 Question raised need not
only be questions of law,
but also questions of fact,
or both law and fact
o Appeal from judgment in a
petition for a writ of kalikasan
 May raise question of fact
o Appeal from judgment or final
order in a petition for a writ of
habeas corpus
 May raise questions of
fact or law, or both
- Rule 45 is applicable to both civil and
criminal cases, except in criminal
cases where the penalty imposed is:
death, RP, or life imprisonment
- The petition for review on certiorari
under Rule 45 may include an
application for a writ of preliminary
injunction or other provisional remedies
o Availed by filing a verified
motion in the same action or
proceeding at any time during its
pendency
Not a matter of right
- An appeal or review under Rule 45 is
NOT a matter of right, but of SOUND
JUDICIAL DISCRETION
- Granted only when special and
important reasons could justify the
petition. Examples:
o Involves question of substance
not yet determined by the SC
o Involves question of substance
that is probably not in accord
with the law or applicable
decisions of the SC
o Court below has departed from
the accepted and usual course of
judicial proceedings , or
sanctioned such departure by a
lower court, as to call for the
exercise of the power of
supervision of the SC
- Every appeal to the SC is not a matter of
right, but of sound judicial discretion
EXCEPT in cases where the death
penalty or RP is imposed
Questions of law; Questions of fact
- Question of fact exists when the doubt
or difference arises to the truth or
falsehood of alleged facts
- Question of law arises when the doubt
or difference arises as to what the law is
on a certain state of facts
o Must not involve an examination
of the probative value of the
evidence presented by the
litigants or any of them
o The issue must rely solely on
what the law provides on the
given set of circumstances
- TEST: whether the appellate court can
determine the issue without reviewing
or evaluating the evidence
Factual Issue Bar Rule
 - GR: the SC is not a trier of facts; it does
not routinely undertake the re-
examination of the evidence presented
by the contending parties during the
trial of the case
o This is in line with the policy of
respecting the findings of fact of
specialized administrative
agencies
- Examples of issues that cannot be raised
under Rule 45:
o Damages
o Builder in good faith or bad faith
o Mortgagee in good faith or bad
faith
o Request for re-examination of
the testimony of a witness in the
TSN concerning his alleged
testimonial proof of damages
o Question of finality of ownership
o Question of good faith or bad
faith in the purchase or
registration of real property
o Question of simulated contracts
o Question of tenancy relations
o Question of perfection of a
contract of sale
o Question of abandonment
o Question of delay by one party in
the performance of an obligation
o Question of liability for poor
worksmanship, utilization of
inferior materials and delay
o Question of whether or not the
bus of the petitioner was “out-or-
line” or a holder of a franchise
raises question of facts and does
not fall within the review power
of the Court
o Question of negligence
Referral to the CA
- When a Rule 45 appeal raises a question
of fact, the SC has 2 courses of action:
o Deny on its own initiative based
on the settled rule that only
questions of law may be
entertained in a petition for
review on certiorari; OR
o Refer the appeal to the CA for
decision or appropriate action
- The determination of the SC on whether
or not the issues of fact are involved are
FINAL
When questions of fact may be passed upon
in a Rule 45 petition
- The rule barring the raising of questions
of fact is not absolute.
- GR: only questions of law or legal
questions may be raised under Rule 45
- EX: Does not apply in the following
cases:
o Conclusion of the CA is grounded
on:
 Speculations
 Surmises
 Conjectures
o Inference made is manifestly:
 Mistaken
 Absurd
 Impossible
o There is GAD
o Judgment is based on
MISAPPREHENSION OF FACTS
o The findings of fact are
CONFLICTING
o The CA went beyond the issued
of the case and findings are
contrary to the admission of the
appellant and appellee
o Findings of fact of the CA
contrary to the trial court
o Findings of fact are
CONCLUSIONS WITHOUT
CITATION OF SPECIFIC
EVIDENCE
o Facts in the petition or
main/reply brief are NOT
DISPUTED by respondent
o Findings of fact of the CA are
premised on the supposed
absence of evidence and
contradicted by the evidence on
record
o Divergence between the findings
of the NLRC and that of the CA
Appeals from a judgment in a petition for
writ of amparo, habeas data, or kalikasan
- Writ of Amparo
o May appeal from the final order
or judgment of the court to the
SC under Rule 45
o By way of exception, may raise
not only questions of law, but
also questions of fact, or both
questions of law and fact
 - Writ of Habeas Data SC enjoined or
o May likewise raise questions of restrained
fact or law or both - The tribunal,
- Writ of Kalikasan board, officer
o May raise questions of fact exercising
judicial or
Certiorari under Rule 45 is NOT the quasi judicial
certiorari under Rule 65 functions is
impleaded as
Rule 45 Rule 65 respondent
- Mode of - Special civil - A special civil
appeal; a action; an action which
continuation of original action may be filed
the case and not a mode with RTC, CA
subject to the of appeal; or SC
appeal independent of
- A petition for the case that - A party CANNOT simultaneously file a
review gave rise to the petition both under Rule 45 and 65,
- Seeks to review assailed ruling because such rules pertain to
final judgments - An original different remedies and have distinct
or final orders special civil applications
- Raises only action for o Mutually exclusive remedies of
questions of certiorari appeal
law - May be - HOWEVER: the Court may set aside
- Filed within 15 directed technicality for justifiable reasons as
days from against an when the petition before the Court is
notice of interlocutory CLEARLY MERITORIOUS and FILED
judgment, final order or ON TIME both under Rules 45
order or matters where
resolution no appeal may When a Rule 65 petition is treated as a Rule
- Does not be taken from 45 petition
require a prior - Raises only - GR: the filing of a special civil action for
motion for questions of certiorari under Rule 65, when the
reconsideratio jurisdiction proper remedy should have been a Rule
n - Filed within 60 45 merits the outright the dismissal of
- Stays the days from the petition
judgment notice of the - EX: there are occasions when the Court
appealed from judgment, treats a Rule 64 as a Rule 45:
- Parties are order or o Petition has been filed within the
original parties resolution 15-day reglementary period
with the sought to be o Public welfare and the
appealing party assailed advancement of public policy
as the - As a general dictate such treatment
petitioner and rule, requires a o Broader instruments of justice
the adverse prior motion dictate such treatment
party as for o Writs issued were null and void
respondent reconsideratio o Questioned decision or order
without n amounts to an oppressive
impleading the - Does not stay exercise of judicial authority
lower court or the judgment
its judge or order When to appeal
- A mode of subject of the - A verified petition shall be filed within
appeal filed petition 15 days from notice of the judgment,
only with the UNLESS final order or resolution appealed from
 or within 15 days notice from notice of
denial of petitioner’s MR or MNT
- The SC for justifiable reasons, grant an
extension of 30 days only to file the
petition, PROVIDED:
o Motion for extension was duly
filed and served
o Full payment of the docket and
other lawful fees and the deposit
for costs
o Motion is filed and served and
the payment is made before the
expiration of the reglementary
period
How to appeal
- Petitioner shall file a verified petition
with the SC within the reglementary
period raising only questions of law
- Petitioner shall pay/file to the clerk of
court:
o Docket and other lawful fees
o Deposit in the amount of P500
for costs
o Proof of service on the lower
court and the adverse party shall
be submitted together with the
petition
- Petition shall contain all matters
mentioned in Sec. 4 of Rule 45 including:
o Material dates
o Certification against non-forum
shopping
- The petition does NOT require the
attachment of all pleadings filed before
the lower courts
o ONLY judgments or final orders
must be attached
- The lower courts or judges are NOT to
be impleaded either as petitioners or
respondents
- Failure to comply with any of the
foregoing requirements is sufficient
ground for dismissal
- The SC may, on its own initiative, deny
the petition on the ground:
o Appeal is without merit
o Prosecuted manifestly for delay
o The questions raised therein are
too unsubstantial to require
consideration
- The SC may require the filing of such
pleadings, briefs, memoranda or the
submission of documents as it may
deem necessary
- If the petition is given due course, the SC
may require the elevation of the
complete record of the case or specified
parts thereof within 15 days from notice
Lecture: Proceedings in the CA
- Membership: 69
- Divisions: 23
- En banc: for ceremonial purposes only;
there can be nomination without the
banc; has the power to adjourn or
suspend proceedings
- The court of appeals has original
jurisdiction and appellate jurisdiction
o Original Jurisdiction:
 Action for annulment of
judgment of the RTC
(exclusive only to the CA)
 Special civil actions of
certiorari, prohibition,
mandamus, habeas data,
amparo, kalikasan, etc
 HOWEVER, these
are CONCURRENT
with the
jurisdiction of the
SC and RTC
o Appellate cases
 Emanate from municipal
courts
o Certiorari
 Grounded on jurisdiction
on subject matter
 Grave abuse of discretion
amounting to lack of
jurisdiction
 Lack or excess
 You file a petition for
certiorari under Rule 65
 Prepare copies
 Pay docket fee
 The court will
determine whether
to accept or not
(discretionary
aspect of this
petition)
- All cases in the CA are raffled; the
presiding judge appoints 3 judges to be
part of the raffle committee
- If the case is raffled to you, you act on
that case from beginning to the end
 o Every resolution that you the deliberations in appellate courts are
promulgate must have highly confidential
concurrence of the 2 other - discussion of the report, and they come
judges into a decision on whether to accept the
- 1 judge, however, can issue a TRO on report or not
his/her own in emergency cases - voting—a majority of the quorum is
- make sure you comply with all the enough to approve the report
technical requirements otherwise your o therefore, it is possible that 5
petition will be dismissed immediately justices can vote for in an en
- you can re-file but you have lost the banc
appellate fees o favorable voting: the
- what are these technical requirements: chairman/CJ will appoint the
o number of copies ponente or the one who will
o the attachments write the decisions
 most important: a copy of  normally, the member in
the decision or final order charge is the one to write
being appealed must be a the decision
certified true copy o if there is a dissenting opinion—
o proof of payment the dissenter writes his dissent,
o proof of service and the dissent is sent to other
o verification members and another
o certificate of non forum shopping deliberations are held. If the
o provisional remedies (payment) dissent gets more votes, then the
- when the case is ready for decision, writer of the dissent shall be the
notify the chairman that the case you writer of the decision
have prepared is ready for deliberation, o 3 kinds of decisions:
and the chairman will calendar such  majority opinion
case  dissenting opinion
- during deliberation the 3 of you will  separate opinion
discuss the case based on the report  2 kinds:
o concurrenc
Supreme Court e at
- 15 Members reversal--
- 2 bodies: justice
o SC en banc agrees with
o 3 Divisions the decision
- once the case is filed, it is raffled to a of the
person who is called a member in majority,
charge but the
- the member in charge is responsible of reasoning is
overseeing the development of the case wrong
from the time it is filed to the time it is o separate
in court concurring
- when all the pleadings and memoranda opinion—
are all in and the case is ready for opinion of a
decision, the member in charge justice
prepares a report, and that report is which
distributed to all the members of the agrees with
division to which he belongs, and the the opinion
chairman of the division calendars the of the
case for deliberations majority but
- during the deliberations, only the 5 wants to
members should be present, because fortify want
s to
strengthen
the
reasoning of
the majority
opinion