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Aquino vs. Mariano

*
No. L-30485. May 31, 1984.

BENJAMIN H. AQUINO, as Provincial Fiscal of Rizal,

petitioner, vs. HON. HERMINIO C. MARIANO, Judge of
the Court of First Instance of Rizal (Branch X), and LUCIO
ADRIANO, JR., respondents.

Remedial Law; Special Civil Actions; Mandamus; Nature and

concept of; Requirement before mandamus may be issued.—The
Revised Rules of Court (Section 3, Rule 65) on Petition for
Mandamus provides that “[w]hen any tribunal, corporation,
board, 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

________________

* FIRST DIVISION.

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Aquino vs. Mariano

rendered commanding the defendant, immediately or at some

other specified time, 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 defendant.”
Stated differently, mandamus is an extraordinary remedy that
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can be resorted to only in cases of extreme necessity where the

ordinary forms of procedure are powerless to afford relief where
there is no other clear, adequate and speedy remedy. Before a
writ of mandamus may be issued, it is obligatory upon the
petitioner to exhaust all remedies in the ordinary course of law.
He must show that the duty sought to be performed must be one
which the law specifically enjoins as a duty resulting from an
office. (Quintero vs. Martinez, 84 Phil. 496; Perez vs. City Mayor
of Cabanatuan, 3 SCRA 431; Alzate vs. Aldana, 8 SCRA 219; and,
Caltex Filipino Managers and Supervisors Association vs. Court
of Industrial Relations, 23 SCRA 492).

Same; Same; Same; Criminal Procedure; Rule that if appeal

or other adequate remedy is still available in the ordinary course
of law, action for mandamus is improper; Filing of a simple
motion with the Fiscal to include in the information Land
Registration Commissioner Noblejas as one of the accused, or to
amend the information, is much more speedy and adequate than a
mandamus petition.—Thus, if appeal or some other equally
adequate remedy is still available in the ordinary course of law,
the action for mandamus would be improper. In the case at bar,
private respondent Adriano, Jr. did not request Fiscal Aquino to
include in the information Commissioner Noblejas as one of the
accused. Had he done so and the same was met with a denial,
Adriano, Jr. could have appealed to the Secretary of Justice who
may reverse petitioner and designate another to act for the
purpose. That way, the filing of a simple motion with the Fiscal to
include or to amend the information is much more speedy and
adequate than a petition for mandamus.

Same; Same; Administrative Law; Failure of a party to avail

of the administrative remedy of filing a simple motion with the
Fiscal is fatal to his case; Necessity for the aggrieved party to show
that his case falls within the cases where party need not exhaust
administrative remedy in the ordinary course of law.—Otherwise
stated, before filing the present action for mandamus in the court
below, private respondent Adriano, Jr. should have availed of this
administrative remedy and his failure to do so is fatal. To place
his case beyond the pale of this rule, it must be shown that his
case falls—which it did not—within the cases where, in
accordance with this Court’s decisions, the aggrieved party need
not exhaust ad-

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Aquino vs. Mariano

ministrative remedies within his reach in the ordinary course of

the law (Tapales vs. the President and the Board of Regents of the
U.P., G.R. No. L-17523, March 30, 1963; Mangubat vs. Osmeña,
G.R. No. L-12837, April 30, 1959; Baguio vs. Honorable Jose
Rodriguez, G.R. No. L-11078, May 27, 1959; Pascual vs. Provincial
Board, G.R. No. L-11959, October 31, 1959; Marinduque Iron
Mines, etc. vs. Secretary of Public Works, G.R. No. L-15982, May
31, 1963; Alzate vs. Aldaba, G.R. L-14407, February 29, 1960 and
Demaisip vs. Court of Appeals, G.R. No. L-13000, September 25,
1959).

PETITION for certiorari to review the decision of the Court

of First Instance of Rizal, Br. X. Mariano, J.

The facts are stated in the opinion of the Court.

     The Solicitor General for respondents.

RELOVA, J.:

On October 9, 1968, then Rizal Provincial Fiscal Benjamin

H. Aquino filed an information in the then Court of First
Instance at Pasig, Rizal, docketed as Criminal Case No.
18425 and entitled: “The People of the Philippines vs.
Rodolfo Ceñidoza, Jose R. Baricua, Cesario B. Ong, Lucio
Adriano, Jr. and Adriano Castillo,” for estafa thru
falsification of official and/or public documents. Said
criminal case, which arose from the huge expansion in the
area after a resurvey and subdivision of a certain parcel of
registered land in Muntinlupa, Rizal, and the approval by
certain officials of the Land Registration Commission of the
corresponding plans and technical descriptions prepared by
the surveyor who resurveyed and subdivided the property,
was assigned to the branch of the then Court of First
Instance of Rizal presided by Hon. Pedro Revilla.
On October 27, 1968, Lucio Adriano, Jr., one of the
defendants in said Criminal Case No. 18425, instituted a
petition for mandamus in the then Court of First Instance
of Rizal praying for an order directing Fiscal Aquino to
include as defendants in the information filed by him in
Criminal Case No. 18425 (not 18245)—all persons of whom
he found a prima facie case as stated by him in Annex “B”
of his Petition, particularly, Commissioner Antonio
Noblejas of the Land Registration Commission, who, in the
meantime, resigned from the office. The man-
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Aquino vs. Mariano

damus case, docketed as Civil Case No. 11307, was

assigned to Branch X, presided by herein respondent Judge
Herminio C. Mariano, who, thereafter, rendered a decision,
dated March 28, 1969, granting the petition for mandamus,
the dispositive portion of which reads:

“IN VIEW OF ALL THE FOREGOING, decision is hereby

rendered in favor of the petitioner and against the respondent,
granting petitioner’s prayer for the issuance of a Writ of
Mandamus, directing the respondent Benjamin H. Aquino,
Provincial Fiscal of Rizal, to include as accused in the information
filed by him in Criminal Case No. 18425 (not 18245) of this Court,
all persons, including Commissioner Antonio Noblejas, against
whom he found a prima facie case as stated by him in his second
indorsement dated June 20, 1968 addressed to the Secretary of
Justice, a copy of which is attached to the present petition as
Annex “B” thereof.
“Let the corresponding Writ of Mandamus issue.”

Hence, this petition for review by certiorari praying that

the decision of respondent Court of First Instance be set
aside and declaring that herein petitioner cannot be
compelled to include former Commissioner Antonio
Noblejas as one of the accused in Criminal Case No. 18425.
There is merit in the petition.
As stated in the decision sought to be reviewed, herein
petitioner conducted the corresponding preliminary
investigation in the case assigned to him and, in a second
indorsement to the then Secretary of Justice, dated June
20, 1968, he had expressed the view that a strong prima
facie case exists against Commissioner Noblejas and,
therefore, recommended strongly that he be allowed to file
the corresponding information against said commissioner
and all other persons whom he found in his investigation to
be criminally liable for the offense complained of. However,
Fiscal Aquino, after a period of more than two months from
the time he made his second indorsement, addressed a
memorandum, dated September 2, 1968, to the then
Secretary of Justice stating, among others, that in view of
the offer of Commissioner Noblejas to resign from office
and in the light of the Commissioner’s explanation, he
(herein petitioner) found the responsibility of said commis-
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Aquino vs. Mariano

sioner, if any, to be only administrative in nature. Thus,

the information was filed without including Commissioner
Noblejas as one of the accused.
In the light of the foregoing facts, is the proper remedy
of private respondent Adriano, Jr., an action for
mandamus, or a simple motion in Criminal Case No. 18425
with prayer for an order directing Fiscal Aquino to include
in the information Commissioner Antonio Noblejas as one
of the defendants therein?
The Revised Rules of Court (Section 3, Rule 65) on
Petition for Mandamus provides that “[w]hen any tribunal,
corporation, board, 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 defendant, immediately or at some other
specified time, 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 defendant.” Stated differently, mandamus is an
extraordinary remedy that can be resorted to only in cases
of extreme necessity where the ordinary forms of procedure
are powerless to afford relief where there is no other clear,
adequate and speedy remedy. Before a writ of mandamus
may be issued, it is obligatory upon the petitioner to
exhaust all remedies in the ordinary course of law. He
must show that the duty sought to be performed must be
one which the law specifically enjoins as a duty resulting
from an office. (Quintero vs. Martinez, 84 Phil. 496; Perez
vs. City Mayor of Cabanatuan, 3 SCRA 431; Alzate vs.
Aldana, 8 SCRA 219; and, Caltex Filipino Managers and
Supervisors Association vs. Court of Industrial Relations,
23 SCRA 492).
Thus, if appeal or some other equally adequate remedy
is still available in the ordinary course of law, the action for
mandamus would be improper. In the case at bar, private
respon-
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dent Adriano, Jr. did not request Fiscal Aquino to include

in the information Commissioner Noblejas as one of the
accused. Had he done so and the same was met with a
denial, Adriano, Jr. could have appealed to the Secretary of
Justice who may reverse petitioner and designate another
to act for the purpose. That way, the filing of a simple
motion with the Fiscal to include or to amend the
information is much more speedy and adequate than a
petition for mandamus. As aptly stated by the Solicitor
General in his brief for the petitioner:

“x x x By just presenting the motion, there will be no need of

paying any docket fee and the numbering of another case; there
will be no issuance and service of a summons or of an order
equivalent thereto; there will be no more raffles to determine the
sala of the court to which the case will be assigned; and there will
be no pre-trial, all of which necessarily consume time. At least,
there is no prohibition in the rules against this procedure. After
all a motion is defined as ‘every application for an order not
included in a judgment’ (Sec. 1, Rule 15, of the Revised Rules of
Court).
“x x x     x x x     x x x
“The conclusion is therefore inevitable that the filing of a mere
motion in the criminal case to achieve the same purpose as prayed
for in the petition for mandamus is not only an adequate remedy
but even a plainer, speedier, and more adequate remedy in the
ordinary
course of law than mandamus. “Another substantial argument
in favor of filing only a motion in the criminal case instead of the
petition for mandamus is that it will avoid multiplicity of suits
which modern procedure abhors (3 Moran’s Comments on the
Rules of Court, 1963 ed., p. 134)”

Otherwise stated, before filing the present action for

mandamus in the court below, private respondent Adriano,
Jr. should have availed of this administrative remedy and
his failure to do so is fatal. To place his case beyond the
pale of this rule, it must be shown that his case falls—
which it did not—within the cases where, in accordance
with this Court’s decisions, the aggrieved party need not
exhaust administrative remedies within his reach in the
ordinary course of the law (Tapales vs. the President and
the Board of Regents of the U.P., G.R. No. L-17523, March
30, 1963; Mangubat vs. Osmeña, G.R. No. L-12837, April
30, 1959; Baguio vs.

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Pascual vs. Provincial Board, G.R. No. L-11959, October 31,

1959; Marinduque Iron Mines, etc. vs. Secretary of Public
Works, G.R. No. L-15982, May 31, 1963; Alzate vs. Aldaba,
G.R. L-14407, February 29, 1960 and Demaisip vs. Court of
Appeals, G.R. No. L-13000, September 25, 1959). Neither is
there merit in the argument that if a motion is presented
before the trial judge he would be prejudging the case if he
should grant the same because such a resolution will be
premised only on a prima facie evidence, while a judgment
of conviction must be based on evidence beyond reasonable
doubt.
WHEREFORE, the petition is GRANTED and the
decision dated March 28, 1969, of respondent judge is SET
ASIDE.
SO ORDERED.

          Melencio-Herrera, Plana, Gutierrez, Jr. and De la

Fuente, JJ., concur.
     Teehankee, J., (Chairman), no part.

Petition granted and decision set aside.

Notes.—Grounds for the grant of the writ of mandamus

are: (1) in case any tribunal unlawfully neglects the
performance of an act which the law specifically enjoins as
a duty; (2) in case any corporation, board, or person
unlawfully neglects the performance of an act which the
law enjoins as a duty from an office, trust or station; and in
case, any tribunal, corporation, board or person unlawfully
excludes another from the use and enjoyment of a right to
which such other is legally entitled; and there is no other
plain, speedy and adequate remedy in the ordinary course
of law. (Province of Pangasinan vs. Reparations
Commission, 80 SCRA 376.)

——o0o——

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