Dear PAO,
I was not able to file my appeal in a civil case due to unforeseen circumstances. However, according to Google, I can still file this so called “Petition for Certiorari” in lieu of appeal. Is this legally correct. Thank you.
Pat
Dear Pat,
No, that is not legally correct.
Foremost, in Madrigal Transport, Inc. vs. Lapanday Holdings Corporation, et al., (G.R. No. 156067, August 11, 2004, Ponente: Honorable Chief Justice Artemio V. Panganiban, Jr.), the Supreme Court ruled that an appeal and a special civil action for certiorari are mutually exclusive remedies, saying:
“The special civil action for certiorari and appeal are two different remedies that are mutually exclusive; they are not alternative or successive. Where appeal is available, certiorari will not prosper, even if the ground therefor is grave abuse of discretion.”
This ruling is based on that fact that an appeal is the remedy available to a litigant seeking to reverse or modify a judgment on the merits of a case (Cortal, et al. vs. Larrazabal Enterprises, et al., G.R. No. 199107, August 30, 2017, Ponente: Honorable Senior Associate Justice Marvic M.V.F. Leonen), while a petition for certiorari under Rule 65 is available to correct errors of jurisdiction committed by the lower court, or grave abuse of discretion which is tantamount to lack of jurisdiction (Cunanan vs. Court of Appeals, G.R. No. 205573, August 17, 2016, Ponente: Honorable Associate Justice Jose C. Mendoza).
Consequently, in Berces vs. Civil Service Commission and Mayor of Tabaco City, G.R. No. 222557, September 29, 2021, Ponente: Honorable Associate Justice Samuel H. Gaerlan, the Supreme Court ruled that special civil action of certiorari cannot be used as a substitute for lost appeal, saying:
“A party cannot substitute the special civil action of certiorari under Rule 65 of the Rules of Court for the remedy of appeal. The existence and availability of the right of appeal are antithetical to the availability of the special civil action of certiorari. Remedies of appeal (including petitions for review) and certiorari are mutually exclusive, not alternative or successive. Hence, certiorari is not and cannot be a substitute for an appeal, especially if one’s own negligence or error in one’s choice of remedy occasioned such loss or lapse. One of the requisites of certiorari is that there be no available appeal or any plain, speedy and adequate remedy. Where an appeal is available, certiorari will not prosper, even if the ground therefor is grave abuse of discretion.”
Thus, it is clear that you cannot file a petition for certiorari in lieu of an appeal, especially when the latter was readily available to challenge the merits of your case. It is a basic rule that certiorari is not a substitute for the lapsed remedy of appeal; one cannot serve as an alternative to the other.
We hope that we were able to answer your queries. This advice was based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Thank you for your continued trust and support.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net
