Professional Documents
Culture Documents
PRELIMINARIE
S
PROVISIONAL REMEDIES – writs and processes available during the pendency of the action which may be resorted to by a litigant to preserve and protect his rights and interests therein,
pending rendition, and for the purpose of ultimately affecting a final judgment in the case.
What are the different provisional remedies under the Rules of Court?
1. Preliminary attachment (Rule 57)
2. Preliminary injunction (Rule 58)
3. Receivership (Rule 59)
4. Replevin (Rule 60)
5. Support Pendente Lite (Rule 61)
RULE 57
PRELIMINARY ATTACHMENTS
1. Provisional remedy issued by the court placing the property under custodial legis as security for the satisfaction of whatever judgment may be rendered in the case.
2. Not a separate and distinct proceeding; accessory to the principal action.
3. Nature of proceeding is quasi-in rem; jurisdiction over the person of the defendant is not required so long as the court acquires jurisdiction over the res 4. Attachment is purely statutory
remedy
5. Availed by both the plaintiff and defendant
Purpose of PA –
Preliminary attachment is designed to:
1. Seize the property of the debtor before final judgment and put the same in custodia legis even while the action is pending for the satisfaction of a later judgment; 2. To enable
the court to acquire jurisdiction over the res of the action in cases where service in person or any other service to acquire jurisdiction over the defendant cannot be effected.
An order denying a motion for the annulment of a preliminary attachment may be reviewed in an appeal taken from the final judgment rendered in the principal case; thus:
GR: the order of the judge denying a motion for annulment of a writ of preliminary attachment, being of an incident or interlocutory and auxiliary character, cannot be the subject of an appeal
independently from the principal case, because our procedural law now in force authorizes an appeal only from a final judgment.
Exception: when the writ of preliminary attachment becomes final by virtue of a final judgment rendered in the principal case, said writ is subject to review jointly with the judgment rendered in the
principal case through an ordinary appeal.
Sec.1. Grounds upon which attachment may issue
–
When to file?
At the commencement of the action or at any time before entry of judgment (before judgment become final and
executory)
Who could file?
- the plaintiff or any party may have the property of the adverse party attached as security for the satisfaction of any judgment that may be recovered
Facts:
Petitioner brought a civil action in the CFI to annul a second sale by Francisco de Borja to Romero and to recover damages. Defendant filed an answer with counterclaims. Based on their counterclaims,
defendant also applied for a writ of preliminary attachment. Petitioner contends that no writ of attachment can be issued in favor of a defendant who presents a counterclaim.
Issue: whether a defendant who presents a counterclaim can apply for a writ of preliminary
attachment.
Ruling:
The SC finds plaintiff’s contention without merit. A writ of preliminary attachment may be issued in favor of a defendant who sets up a counterclaim. Under the Rule, a plaintiff or any proper party
may have the property of the adverse party attached as security for the satisfaction of any judgment. thus, it is immaterial whether defendants simply presented a counterclaim or brought a separate
civil action against plaintiff herein.
a. In an action for the recovery of a specified amount of money or damages, other than moral and exemplary, on a cause of action arising from law, contract, quasi-contract, delict or quasi-
delict against a party who is about to depart from the Philippines with intent to defraud his creditors; Professional Video vs TESDA 591 SCRA 83 –
Principle: Funds public in nature cannot be the valid subject of a writ of garnishment proceedings even if the consent to be sued had been previously granted and the state liability adjudged.
FACTS:
Petitioner PROVI entered into with TESDA a negotiated contract supplying the latter materials for the production Identification Cards. The contract left with an outstanding unpaid balance, thus,
prompted petitioner to file case with the RTC for the recovery of a sum of money with damages and additionally prayed for a writ of preliminary attachment/garnishment against TESDA. Petitioner
contends that TESDA is no longer immune from suit because it entered into a contract in its private capacity.
The RTC grants and issued the writ of preliminary attachment against TESDA.
TESDA on the other hand moves for the quashal of writ of attachment on the ground that public funds cannot be subject of
garnishment. Further argues that it entered into an agreement in the performance of its governmental function.
HELD:
Attachment, a harsh remedy, must be issued only on concrete and specific grounds and not on general averments merely quoting the words of the pertinent rules.
TESDA’s funds are public in character, hence exempt from attachment or garnishment. TESDA’s funds are still public in nature and, thus, cannot be the valid subject of a writ of garnishment or
attachment. Public funds cannot be the object of garnishment proceedings even if the consent to be sued had been previously granted and the state liability adjudged. Insular Savings Bank vs CA,
460 SCRA 122-
A writ of attachment cannot be issued for moral and exemplary damages and other unliquidated or contingent claims.
FACTS:
Responhdent FEBTC instituted an arbitration case before Arbitration committee of the Philippine Clearing House Corporation against petitioner Insular Saving Banks for unfunded checks amounting
to P25,200,000.00 which were drawn against respondent Bank and were presented by petitioner for clearing. Before the arbitration committee of the PCHC, FEBTC and Insular Bank agreed to
equally divide between themselves the disputed amount subject to the outcome of the arbitration proceeding. As a result thereof, the sum of 12,600,000 (amount already secured) is in the possession
of FEBTC. In the pendency of the abitration case, FEBTC instituted a civil case and prayed for the issuance of a writ of preliminary attachment which was subsequently granted upon posting by
respondent Bank of an attachment bond.
Thereafter, Insular Savings Bank filed a motion to discharge attachment by counter-bond in the amount of P12,600,000. the respondent judge denied the motion because the counter-bond is insufficient;
that it should be in the amount of 27,237,700 which should include unliquidated claims, attorney’s fees and exemplary damages, legal interest and expenses of litigations.
ISSUES: Whether writ of attachment can be issued for moral and exemplary damages and other unliquidated and contingent
claim.
HELD:
A writ of attachment cannot be issued for moral and exemplary damages, and other unliquidated or contingent claims.
b. In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent or
clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty; Olsen vs Olsen, 48 Phil 238
Abuse of confidence by a corporate officer shown by his act of taking money of the corporation for his personal use without being duly authorized therefor constitutes a ground for the
issuance of a preliminary attachment.
FACTS:
The evidence shows that the defendant-appellant Water Olsen was President-Treasurer and general manager of the Plaintiff-appellee corporation (Walter E. Olsen &Co.) and exercised direct and
almost exclusive supervision over its function, funds and books of account untile about the month of August, 1921. During that time he has been taking money of the corporation without being duly
authorized to do so either by the board of directors or by the by-laws, the money taken by him having amounted to the considerable sum of P66,207.62. Of this sum, 19,000 was invested in the
purchase of the house and lot now under attachment in this case, and 50,000 in the purchase of 500 shares of stock of prising at the prioce of 100 per share for himself and Marker. A few days
afterwards he began to sell the ordinary shares of the corporation for 430 each. The defendant-appellant attempted to justify his conduct, alleging that the withdrawal of the funds of the corporation
for his personal use was made in his current account with said corporation, in whose treasury he deposited his own money and the certificates of title of his shares, as well as of his estate, and that at
the that at the first meeting of the stockholders, a statement of his account with a debit balance was submitted and approved.
ISSUE: Whether the facts narrated be a ground for the issuance of a writ of preliminary attachment.
HELD:
Yes. The facts narrated falls within sec. 1 (b) rule 57, hence, a writ of preliminary attachment may issue.
Furthermore, the defendant appellant has almost an exclusive control over the function of the corporation and its funds on account of his triple capacity as president, treasurer and general manager
must be very scrupulous in the application of the funds of said corporation to his own use. The act of taking money of the corporation for his personal use without being duly authorized therefor
constitutes such an irregularity that, while it does not amount to a criminal fraud, is undoubtedly a fraud of a civil character, because it is an abuse of confidence and constitutes a ground for the
issuance of a preliminary attachment.
c. In an action to recover the possession of property unjustly or fraudulently taken, detained or converted, when the property , or any party thereof, has been concealed, removed or disposed of
to prevent its being found or taken by the applicant or an authorized person;
To constitute a ground for attachment in Section 1 (d), Rule 57 of the Rules of Court, fraud should be committed upon contracting the obligation sued upon.
A debt is fraudulently contracted if at the time of contracting it the debtor has a preconceived plan or intention not to pay.
Ng wee vs Tankiansee 545 SCRA 263
The applicant must sufficiently show the factual circumstances of the alleged fraud because fraudulent intent cannot be inferred from the debtor’s mere non-payment of the debt or failure to comply
with his obligation.
The affidavit, being the foundation of the writ, must contain such particulars as to how the fraud imputed to respondent was committed for the court to decide whether or not to issue the writ.
Absent any statement of other factual circumstances to show that the respondent, at the time of contracting the obligation, had a preconceived plan or intention not to pay, or without any showing of
how respondent committed the alleged fraud, the general averment in the affidavit that respondent is an officer and director of Wincorp who allegedly connived with the other defendants to commit
a fraud, is insufficient to support the issuance of a writ of preliminary attachment.
The rules governing its issuance are strictly construed against the applicant.
Facts: X filed a complaint for collection of sum of money with application for preliminary attachment against Y(FCY) with the RTC. In support of its application for writ of attachment X alleged that
Y is guilty of fraud in incurring the obligation and had fraudulently misapplied the money paid to him, to which he had an equal share.
The RTC granted the writ of preliminary attachment. Y filed a motion to lift the attachment but the court denied the motion. Is the RTC correct?
When a preliminary attachment is issued upon a ground which is at the same time the applicant’s cause of action: e.g. an action against a party who has been guilty of fraud in contracting the debt or
incurring the obligation upon which the action is brought; the defendant is not allowed to file a motion to dissolve the attachment otherwise the hearing on such motion for dissolution of the writ
would be tantamount to a trial on the merits. The only way it can be dissolved is by a counterbond.
e. In an action against a party who has removed or dispose of his property or is about to do so, with intent to defraud his creditors; or
FACTS:
A verified complaint was filed by petitioner Abotiz for the collection of money with a corresponding writ of preliminary attachment. The writ of attachment was issued by the trial court on the
ground that the defendant has removed or disposed of its properties or assets, or is about to do so, with intent to defraud its creditors. But the SC found out that insolvency is the ground for the
issuance of the writ of attachment which can be inferred form the emphasis laid by petitioner particularly from the bank account which has been reduced to nil (zero).
The trial court issued the writ of attachment. The appellate court declared the writ of attachment null and void.
f. In an action against a party who does not reside and is not found in the Philippines, or on whom summons may be served by publications.
Sec.1 (f) of Rule 57 of the Rules of court applies where plaintiff’s claim is for liquidated damages, not to unliquidated
damages.
FACTS:
Petitioner Alian filed a complaint against respondent Elaine, for damages and attorneys’ fees allegedly sustained by him by reason of the filing by respondent of the criminal complaint for estafa,
solely for the purpose of embarrassing his honor and reputation. In the complaint, petitioner prayed for the issuance of a writ of preliminary attachment of the properties of respondent on the ground
that respondent is a non-resident of the Philippines. Respondent move to dissolve or lift the writ of attachment on the ground that petitioner’s claim was for unliquidated damages.
There is no need for a judge to set a hearing on the application for a writ of attachment because the issuance of a writ of preliminary attachment may be made by the Court ex parte. Moreover,
the judge before whom the application is made has full discretion in considering the supporting evidence proferred by the applicant.
Facts:
An action for delivery of personal property was filed by petitioner against respondent but was subsequently denied. Petitioner, subsequently applied for a writ of attachment alleging that respondent
has removed and has disposed or is about dispose of her property within intent to defraud Toledo petitioner herein. To support the allegation, an affidavit of Rudolfo Inot was attached to the application
stating that respondent offered to sell to him 2 motor vehicles. The Trial Court Judge denied the application without prior hearing and notice.
Respondent Judge acted correctly in denying petitioner’s Application for Issuance of a Writ of Preliminary Attachment. There was no need for him to set a hearing on the said application. This is
because the issuance of a writ of preliminary attachment may be made by the Court ex parte.
Rules on the issuance of a writ of attachment must be construed strictly against the applicant.
3. (sec.6. Sheriff’s return) after enforcing the writ, the sheriff must:
a. Without delay make a return to the court which issued the writ
b. The return shall have a full statement of:
➢ Proceedings under the writ
➢ Complete inventory of the property attached
➢ Any counter-bound given by the adverse party
c. The sheriffs shall Serve copies of the return on the applicant
1. The summons could not be served personally or by substituted service of summons despite diligent efforts;
Personal service – by handing a copy thereof to the defendant in person or if he refuses to receive and sign for it, by tendering it to
him
Substituted service – by leaving copies of the summons at the defendant’s residence with some person of suitable age and discretion then residing therein, or by leaving a copies at defendant’s
office or regular place of business with some competent person in charge thereof; if for justifiable causes, the defendant cannot be served within reasonable time
REAL PROPERTY –
Includes the following:
1. Those upon the record of the registry of deeds in the name of adverse party
a. Growing crops or any interest thereon
2. Those not appearing at all upon the records, or belonging to the adverse party and held by any other person, or standing on the records of the registry of deeds in the name of any other person
Manner of attaching:
1. By filing a copy of the order, description of the property attached, and a notice that it is attached with the REGISTRY OF DEEDS; and 2. By leaving a copy of such
order, description, and notice with the OCCUPANT of the property, if any, or with such other person or his agent if found within the province.
If the property subject to attachment has been brought under the operation of either LAND REGISTRATION ACT or PROPERTY REGISTRATION
DECREE: ➢The NOTICE shall contain a reference to the number of:
a. The certificate of title, volume and page in the registration book where the certificate is registered, and the registered owner or owners thereof
PERSONAL PROPERTY
Manner of attaching:
1. By leaving WITH the person owing such debts, or in his possession or under his control, such credits or other personal property, or with his
agent: a. A copy of the writ, and
b. Notice that the debts owing by him to the party against whom attachment is issued and the credits and other personal property in his possession, or under his
control, belonging to said party, are attached
(sec.8) Effects of attaching:
1. The third person having in their possession and control of the credits and any other similar property belonging to the party whom attachment is issued, SHALL BE LIABLE to the APPLICANT
for the amount of such credits, debts or other similar personal property, UNTIL:
a. The attachment is discharged, or
b. Any judgment is satisfied
2. The third person in possession and control of the property not capable of manual delivery belonging to the party whom attachment is issued is
NO LONGER liable to the applicant WHEN: a. Such property is delivered or transferred, or such
b. Debts are paid, to the clerk, sheriff, or other proper officer of the court issuing the attachment
Bar question:
If the property sought to be attached is in CUSTODIA LEGIS –
1. By filing a copy of the writ with the PROPER COURT, or QUASI-JUDICIAL agency,
and 2. And By SERVING the notice of attachment upon the custodian of such property.
(Sec.9) Effects of attaching:
1. SHALL not impair the powers of the executor, administrator, or other personal representative of the decedent over such property for the purpose of administration 2. In case where a
petition for distribution is filed, the court where such petition is filed may award the distribution to the HEIR, LEGATEE, or DEVISEE, but the PROPERTY ATTACHED shall be ORDERED
delivered to the SHERIFF making the levy, subject to the claim of such heir, legatee or devisee or any person claiming under him
Manner of Attachment of the following:
a. Real Property
b. Personal Property
c. Stock or shares
d. Debts, Credits and all other similar personal property
e. Interest in property belonging to the estate of a decedent
f. Property in Custodia Legis
Examination of Party
Sec.10. Examination of party whose property is attached and persons indebted to him or controlling his property; delivery of property to
sheriff – Who are the persons may be required to attend for examination on oath: 1. any person owing debts to the party whose property
attached
2. any person having in his
possession or under his control any
creditor or other personal property
belonging to the adverse party
3. the party whose property is
attached
Before whom should they appear?
a. before the court in which the action is
pending
b. before a commissioner appointed by
the court purpose of appearance:
a. purpose of giving information respecting the property concerned and the testimony shall be under oath
Situation:
Judgment is in favor of the attaching party and execution is issued thereon, the sheriff may cause the judgment to be satisfied out of the property attached.
a. in case there has been a public auction before entry of judgment: ➢By paying to the judgment oblige the proceeds of all sales of perishables or other property sold in pursuance of the order
of the court, or so much as shall be necessary to satisfy the judgment
b. in case there is a remaining balance due ➢by selling so much of the property, real or personal, as may be necessary to satisfy the balance, if enough for that purpose remain in the sheriff’s
hands, or in those of the clerk of court
c. in case property is in the possession and control of third person ➢by collecting from all persons having in possession credits belonging to the judgment obligor, or owing debts to the latter at
the time of the attachment of such credits or debts, the amount of such credits and debts as determined y the court in the action, and stated in the judgment and paying the proceeds of such
collection over the judgment oblige
Note: the sheriff shall forthwith make a return in writing to the court of his proceedings and furnish parties with copies thereof.
c. The court shall, after due notice and hearing, order the discharge of the attachment if the movant makes a cash deposit, or files a counter-bond executed to the attaching party with the clerk of
the court where the application is made.
d. How much should the amount of the counter-bond
➢In an amount equal to that fixed by the court in the order of attachment, exclusive of cost ➢If the attachment is sought to be discharged with respect to a
particular property, the counter-bon shall be equal to the value of that property as determined by the court.
e. purpose of the cash deposit or the counter-bond ➢shall secure the payment of any judgment that the attaching party may recover in the action
f. Upon the discharged of an attachment, the property attached, or the proceeds of any sale thereof, shall be delivered to the party making the deposit or giving the counter-bond, or to the person
appearing on his behalf.
g. When can the attaching party may apply for new order of attachment ➢The counter-bound for any reason be found to be, or become insufficient and the party furnishing the same fail to file an
additional counter-bond
Case:
The denial of the motion to discharge attachment is not proper. If a portion of a claim is already secure, there is no justifiable reason why such portion should still be subject of counter-bond – simple
common sense, if not consideration of fair play, dictates that a part of a possible judgment that has veritably been preemptively satisfied or secured need not be covered by the counter-bond.
Unlike the former sec.12 of rule 57 of the Rules of Court where the value of the property attached shall be the defining measure in the computation of the discharging counter-attachment bond, the
present less stringent section 12 of Rule 57 provides that the court shall order the discharge of attachment if the movant makes a case deposit or files a counter-bond in an amount equal to that fixed
by the court in the order of attachment exclusive of costs. Not being in the nature of a penal statute, the Rules of court cannot be given retroactive effect.
Respondent Chuidian secured a loan from Juan Luna Subdivision, Inc. and promised, under an “agreement to sell”, to transfer within 60 days to Juan Luna Subdivision, Inc. the land which he bought
from one Florence Shuter. Instead of conveying the land, respondent sold the same to Elenita Hernandez for 25,000 in order to pay his wife’s gambling debt.
Now, petitioner filed a complaint against respondent Chuidian for the collection of his indebtedness based on his “Agreement to Sell” with a prayer asking for the issuance ex parte of a writ of
preliminary attachment on the ground that:
a. Respondent converted to his own use the land which he bought in a fiduciary capacity
b. Guilty of fraud in contracting his debt and incurring the obligations upon which the action is brought
Before the issues have been joined (respondent not having as yet filed his answer to the complaint), respondent filed a motion to discharge attachment on the ground that the attachment was improperly
issued. After hearing of the motion to discharge attachment, respondent Judge issued an order granting respondent’s motion to discharge attachment.
Issue: Whether the respondent judge correct in granting the motion to discharge attachment.
Ruling:
The judge is not correct in granting the motion to discharge attachment. In the case at bar the hearings of motion to discharge attachment were held before the issues have been joined (respondent not
having yet filed his answer to the complaint), and the order issued thereby discharging the attachment would have the effect of deciding or prejudicing the main action.
The merits of the main action are not triable in a motion to discharge an attachment, otherwise an applicant for the dissolution could force a trial of the merits of the case on this motion.
Corresponding responsibilities:
1. the surety or sureties on any counter-bond given to secure the payment of the judgment shall:
➢ become charged on such counter-bond, and
➢ bound to pay the judgment oblige upon demand amount due under the
judgment
When shall the amount of counter-bond be recovered from the surety:
1. after notice and summary hearing in the same action.
❖if the attachment is excessive, the discharge shall be limited to the excess
Note: there shall be due notice and hearing before the court shall order the setting aside or the corresponding discharge of the attachment if it appears that it was improperly or irregularly issued or
enforced, or that the bond is insufficient, or that the attachment is excessive, and the defect is not cured forthwith.
NOTE: No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action (for claim of damages) thereof is filed within 120 days from the date
of the filing of the bond.
Sheriff shall not be liable for damages for taking or keeping if:
1. if such bond is filed
➢however, nothing shall prevent such claimant or any third person from vindicating his claim to the property, or prevent the attaching party from claiming damages against a third-party
claimant who filed a frivolous or plainly spurious claim, in the same or a separate action.
2. when the writ of attachment is in favor of the RP, or any duly officer representing it;
➢ in the above situation, the filing of such bond is not be required;
➢ and in case the sheriff is sued for damages as a result of attachment, HE SHALL be represent by the Solicitor General, and if held liable therefore, the actual damages adjudged by the court
shall be paid by the National Treasure out of the funds to be appropriated for the purpose.
Sec.15. Satisfaction of judgment out of property attached; return of sheriff – (see sale of attached property) Sec.16. Balance due collected upon an execution; excess delivered to judgment obligor;
- (see sale of attached property) Sec.17. Recovery upon the counterbond – (see discharge of attachment)
DISPOSITION
a. disposition of money (sec.18)
Situation: the party against whom attachment is issued deposited money instead of giving a counter-bond.
If judgment rendered in favor of the attaching party:
• the money deposited shall be applied under the direction of the court to the satisfaction of the judgment rendered
• and after satisfying the judgment the balance shall be refunded to the depositor or his assignee.
if judgment is in favor of the party against whom attachment is issued:
• the whole sum deposited must be refunded to him or his assignee
b. Sec.19. Disposition of attached property where judgment is for party against whom attachment was
issued – Situation: judgment is rendered against the attaching party
Obligation of the sheriff:
➢ Shall deliver to the party against whom attachment issued all the proceeds of sales and money collected or received by the sheriff, under the order of attachment, and all property attached
remaining in any such sheriff’s hands,
Compliance 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 is issued, when should he file a claim for it (note: applicable on the grounds of improper, irregular, or
excessive attachments):
➢ he must claim damages sustained during the pendency of appeal but before judgment of the appellate court becomes executory by:
1. filing an application in the appellate court and
2. giving notice to the attaching party and his surety or sureties
The appellate court may allow the application to be heard and decided by the trial court.
For the grounds of insufficiency of bond or deposit given by the attaching party, the following rule shall be observed:
➢ Nothing 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.
Bar Questions:
Bar 1981 – 1. Y is a stockholder of a local corporation. Y owns 20% of the shares of the said corporation. Y defaults on a manufacturing contract with Z. Z sues for specific performance and damages
and, on the ground that Y is fleeing from the country to avoid his creditors, seeks to attach 20% of a parcel of land that belongs to the corporation.
Can Z secure such an attachment granting that the averments of his petition are sufficient? Reasons.
Suggested answer:
The attachment cannot be obtained. The property sought to be attached is actually the proepryt of the corporation which is not the defendant in the case. The corporation has a personality separate
and distinct from that of its stockholders.
Under the rules, a plaintiff or any proper party may have the PROPERTY OF THE ADVERSE PARTY attached as security for the satisfaction of any judgment that may be recovered
later.
Bar 1982 –
Edward file a complaint for accounting against Liza for accounting of the money received by her as administratix of Edward’s hacienda. In his complaint, Edward prayed for preliminary attachment,
alleging that Liza was about to depart from the Philippines. Attached to the complaint was an affidavit executed by Marilyn to the effect that Liza told her that she, Liza, was planning to leave for
Singapore in a few days. If you were the judge, would you grant the prayer for preliminary attachment?
Suggested answer:
Not grant the prayer for preliminary attachment. The application should show that the defendant’s departure from the Philippines must be with the corresponding intent to defraud the creditors. This
fact was not alleged in the application for the issuance of the writ of preliminary attachment.
Would grant the prayer for preliminary attachment because this would fall under property embezzled by a person in a fiduciary capacity under sec.1(b) of rule 57. Here, intent to defraud need not be
shown because the act of Liza is already fraudulent.
Bar 1983 –
Daniel Chan owns a house and lot at Forbes Park, Makati, where his wife and children reside, he is the chief executive officer of various family corporation where he owns 20% of the respective
capital stocks. These family corporations owe several banks the total sum of 2.5 billion, with Chan as a solidary co-debtor.
After chan has carefully manipulated the finances of the family corporations and diverted their funds to his account in a swiss bank, he flees from the philippines and now resident at 127 Rue Duphine,
Zurich, Switzerland. The banks concerned now retains the services of Atty. Ramon Castillo for the purpose of filing a suit in the Philippines against Daniel Chan on his obligations as a solidiary co-
debtor on the loans of the family corporations. One of the procedural problems facing Atty. Castillo is the method of effecting a valid service of summons upon Daniel Chan, now residing in
Switzerland, to enable the Philippine courts to acquire jurisdiction over his person.
Describe the remedies and procedure, and the supporting grounds thereof that Atty. Castillo should follow as would enable him to effect a valid service summons on Daniel
Chan.
Suggested answer:
Atty. Castillo should file an action against Daniel Chan for collection of a sum of money with an application for a writ of preliminary attachment if he has properties in the Philippines. The writ of
attachment is required in order to convert the action in personam into an action quasi in rem. In this kind of action, jurisdiction over the person of the defendant is not required. What is required is
jurisdiction over the res which could be obtained by the attachment. Summons by publication or other modes of exterritorial service of summons would then be served upon him with leave of court
following the procedure under Sec. 15 of Rule 14 of the Rules of court.
Bar 1999 –
1. In a case, the property of an incompetent under guardianship was in custodial egis. Can it be attached? Explain.
Suggested answer:
Yes. Property placed under custodia legis can be attached. Under the rules, (Sec.7, rule 57) if the property sought to be attached is in custodia legis,:
• A copy of the writ of attachment shall be filed with the proper court or quasi-judicial agency,
and
• Notice of the attachment served upon the custodian of such property 2. May damages be
claimed by a party prejudiced by a wrongful attachment even if the judgment is adverse to him? Exlpain.
Suggested answer:
Yes. Damages may be claimed even by the losing party, where the attachment was improper, irregular or excessive. The claim for damages shall be heard with notice to the adverse party and
his surety or sureties. An improper, irregular or excessive attachment is not validated by the fact that the attaching party prevailed in the main action.
GARNISHMENT –
• is a levy on debts due the judgment obligor or defendant and other credits, including bank deposits, royalties and other personal property not capable of manual delivery under a writ of
execution or a writ of attachment.
• Kind of attachment in which plaintiff seeks to subject either property of the defendant in the hands of a third person called the garnishee, to his claim or the money which said third person
owes the
defendant
• Services of summons is not required to bind the garnishee
Levy on execution –
• Is a writ issued by the court after judgment by which the property of the judgment obligor is taken into the custody of the court before the sale of the property on execution for the satisfaction
of a
final judgment.
• It is the preliminary step to the sale on execution of the property of the judgment debtor
Bar 2000 –
JK’s Real property is being attached by the sheriff in a civil action for damages against LM. JK claims that he is not party to the case; that his property is not involved in the said case; and that he is
the sole or registered owner of the said property. Under the rules of court, what must JK do to prevent the sheriff from attaching his property?
Suggested Answer:
• He may avail of the remedy called terceria by making an affidavit of his title thereto or his right to possession thereof, stating the grounds of such right or title. The affidavit must be served
upon
the sheriff and the attaching party (sec.16, Rule 57)
Upon service of the affidavit upon him, the sheriff shall not be bound to keep the property under attachment except if the attaching party files a bond approved by the court. The sheriif shall
not be liable for damages for the taking or keeping of the property, if such bond shall be filed (sec.14, Rule 57)
• The third party claimant is not precluded under sec.14 of rule 57 from vindicating his claim to the property in the same or in a separate action. Thus, he may file a separate action to nullify the
levy
with damages resulting from the unlawful levy and seizure. This action may be totally distinct action from the former
case.
Bar 1991 –
Upon failure of X to pay the promissory note for 100,000 which he executed in favor of Y, the latter filed the complaint for a sum of money with application for the issuance of a writ of preliminary
attachment alleging therein that X is about to dispose of his properties in fraud of his creditors.
a. May the court issue the writ immediately upon filing of the complaint and before the service of summons?
b. If service of summons is indispensable before the writ is issued, is hearing on the application necessary?
c. If the writ is issued and X filed a motion to quash the attachment, may the motion be granted ex parte?
Suggested Answer
a. The writ may be issued upon the filing of the complaint and even before the service of summons upon the defendant (sec. 1 Rule 57)
b. A hearing on the application is not necessary. The application for the writ need not be heard. It may be issued ex parte. The issuance of summons is not even indispensable before the writ is
issued.
c. The motion to quash may not be granted ex part. A hearing is necessary (sec.12,13, rule 57)
Bar 1978
X filed a complaint in the CFI against Y for the recovery of a sum of money. X at the same time also prayed for the issuance of an order of preliminary attachment against Y, and included in his
affidavit, among others, that Y was disposing of his properties with intent to defraud X. the court immediately issued the writ of preliminary attachment ex parte. Y move to discharge the
attachment on the ground that it was irregularly issued, in that Y was not notified at all of such application or about the time and place of the hearing thereof, in gross violation of the Rules and his
right to due process of law.
Suggested answer:
Y’s motion to discharge the attachment must be denied. A writ of preliminary attachment may be issued at the commencement of the action and can be issued ex parte.
I. Definition
Temporary restraining order (sec.5, Rule 58)
➢ Prior notice is not mandatory
➢ is issued upon a verified application showing great or irreparable injury would result to the applicant before the matter can be heard on notice. Thus preserving the status quo until the hearing
of the application for preliminary injunction.
➢ It only has a limited life of 20 days from date of issue
➢ TRO is deemed automatically vacated if before the expiration of the 20 day period, the application for PI is denied
➢ Shall expire on the 20th day automatically without any judicial declaration to that effect.
➢ May be issued ex parte
Preliminary Injunction:
Preliminary injunction is an order granted at any stage of an action or proceeding prior to the judgment or final order (not final and executory), requiring a party or a court, agency or a person to
refrain from a particular act or acts. It may also require the performance of a particular act or acts, in which case it shall be known as a preliminary mandatory injunction (sec.1, Rule 58).
Absence of a showing that the petitioners have an urgent and paramount need for a writ of preliminary mandatory injunction to prevent irreparable damage, they are not entitled to such writ (China
Banking vs Co, 565 SCRA 600).
status quo – refers to the last actual, peaceful, and uncontested status that preceded the actual controversy.
A preliminary injunction or TRO may be granted only when, among other things:
• the applicant files with the court, where the action 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
such
party or person all damages which he may sustain by reason of the injunction or TRO if the court should finally decide that the applicant was not entitled thereto.
preliminary injunction is merely a provisional remedy, adjunct to the main case subject to the latter's outcome. It is not a cause of action in
itself
Final Injunction
An injunction is preliminary when it refers to the writ secured before the finality of the judgment (sec.1 rule 58, RC).
It is final when it is issued as a judgment making the injunction permanent. It perpetually restrains a person from the continuance or commission of an act and confirms the previous preliminary
injunction (sec.9, Rule 58, RC).
Preventive Injunction –
➢Injunction is prohibitory when its purpose is to prevent a person from the performance of a particular
act. ➢The act has not yet been performed ➢The status quo is preserved and restored
Mandatory Injunction –
➢ It is mandatory when its purpose is to require a person to perform a particular act
➢ The act has already been performed and this act has violated the rights of another
➢ It does not preserve the status quo but restores it
II. Classes –
the new Code of Civil Procedure
1. Injunction or interdictos prohibitorios
Writs not available for recovery of property when title is not established
Injunctions, as a rule, will not be granted to take property out of the possession or control of one party and place it into that of another whose title has not clearly been
established.
IV. Purpose:
1. the objective of a writ of preliminary injunction is to preserve the status quo until the merits of the case can be fully heard; status quo is the last actual, peaceable and uncontested situation
which precedes a controversy (preysler jr vs CA 494 SCRA 547).
2. the purpose of preliminary injunction is to prevent threatened or continuous irremediable injury to some of the parties before their claims can be thoroughly studied and adjudicated (limitless
vs CA, 522 SCRA 70).
V. SCOPE –
Acts already performed cannot be prohibited except specifically stated in the order – if a writ of preliminary injunction has been issued against a particular person, enjoining him, for example, from
performing any act whatever that may tend to close and obstruct an irrigation ditch by preventing the passage of the water, when the said ditch was already closed, it cannot be understood that the
person, against whom the prohibitory order was issued, willfully disregarded and disobeyed the said judicial writ by not removing the obstacle that prevented the flow of the water, because this last
operation is not covered by the writ of injunction (mantile vs Cajucom, 19 Phil 563).
Injunction will not lie where the acts sought to be enjoined have already been accomplished or consummated – a writ of preliminary injunction will not issue if the act sought to be enjoined is a fait
accompli.
Mandatory injunction is directed to a party litigant, not to a tribunal and is issued to required a party to perform a particular act to restore the status quo.
VIII. KINDS
b. that the commission, continuance or non performance of the act or acts complained during the litigation would probably work injustice to the applicant;
➢doing, threatening, or is attempting to do, or ➢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
2. if the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury
➢may be issued ex parte by the executive judge of a multiple-sala court
➢ valid only for 72 hours from issuance but shall comply with the service of summons and the documents to be served on the party sought to be enjoined ➢within the 72hrs the judge
before whom the case is pending shall summary hearing to determine whether the TRO shall be extended until the application for Preliminary injunction can be heard.
➢ In no case shall the total period of effectivity of the TRO exceed 20 days, including the original 72 hrs
The trial court, the CA, the SB, or the CTA that issued a writ of preliminary injunction against a lower court, board, officer, or quasi-judicial agency shall decided the main case or petition within 6
months from the issuance of the writ.
Kinds if TRO –
1. 20 day TRO
➢ Issued by the court to which the application for Preliminary injunction was made
➢ May be issued ex parte showing by affidavits that great or irreparable injury would result to the applicant before the matter can be heard on notice
➢ The 20 day period shall start from service on the party sought to be enjoined
➢ Extendible without need of any judicial declaration provided that the ground for extension shall not be the same with the first because no court shall have the authority to extend or renew
the same on the same ground for which it was issued ➢On the 20th day the TRO shall expire; or it shall expire automatically if the application for preliminary injunction is denied or not
resolved within the 20 day period
2. 72 hrs TRO
➢ Issued by an EXECUTIVE judge of a multiple-sala court; or the PRESIDING judge of a single-sala court
➢ Grounds for issuance: if the matter is of EXTREME URGENCY and the applicant will suffer grave injustice and irreparable injury
➢ May also be issued ex parte
➢ Effectivity: The 72hr period shall commence from the issuance but shall immediately comply with the service of summons and documents to be served ➢Extendible without need of
judicial declaration but the extension shall not exceed 20 days, including the original 72 hr; provided that the ground for the extension shall not be the same ground for which it was
issued
3. 60 days TRO
➢ Issued by the Court of Appeals or member thereof
➢ The 60 day TRO shall be effective from service on the party or person sought to be enjoined
➢Non-extendible; no judicial declaration that it has expired is necessary
4. indefinite TRO
➢ issued by the Supreme Court or member thereof
➢ shall be effective until further orders
➢ has the authority to issue TROs on cases involving
a. national government infrastructure projects (SC Admin Circular No. 11-2000)
A preliminary writ of injunction is merely temporary, subject to the final disposition of the principal action. the issuance thereof is within the discretion of the court and is generally not interfered
with except in cases of manifest abuse (Dungog vs CA, 408 SCRA 267)
XV. Against whom is injunction issued – 1. Senate Blue Ribbon Committee vs Majaducan, 407 SCRA 356
Where the senate in conduct legislative inquiries in aid of legislation, and persons were subpoenaed and invited thereto, the latter cannot go to the court of justice because it has no authority
to prohibit (issue a writ of injunction) the committee from requiring that person from appearing and testifying before it; otherwise it will be inconsistent with the doctrine of separation of
powers as the same is an encroachment to one’s prerogatives. Therefore, writ of injunction shall not issue against such constitutional body.
5. Traders Royal bank vs IAC no court has the power to interfere by injunction with the judgments or decrees of a concurrent or coordinate jurisdiction having equal power to grant the injunctive
relief sought by injunction, except in cases where third-party claimant is involved, in order to prevent one court from nullifying the judgment or process of another court of the same rank or
category, a power which devolves upon the proper appellate court. The purpose of the rule is to avoid conflict of power between different courts of coordinate jurisdiction. Therefore, a writ of
injunction shall not issue
Before the plaintiff may be entitled to injunction against future enforcement, he is burdened to show some substantial hardship.
Therefore, writ of injunction shall not issue to enjoin the enforcement of a law unless it can be established with substantial hardship on the part of the plaintiff that the law assailed is
unconstitutional.
a. Acquisition, clearance and development of the right-of-way and/or site or location of any national government project;
b. Bidding or awarding of contract/project of the national government as defined under Section 2 hereof;
e. The undertaking or authorization of any other lawful activity necessary for such contract/project. "
This prohibition shall apply in all cases, disputes or controversies instituted by a private party, including but not limited to cases filed by bidders or those claiming to have rights through
such bidders involving such contract/project. EXCEPTION: This prohibition shall not apply when the matter is of extreme urgency involving constitutional issue, such that unless a
temporary restraining order is issued, grave injustice and irreparable injury will arise. The applicant shall file a bond, in an amount to be fixed by the court, which bond shall accrue in
favor of the government if the court should finally decide that the applicant was not entitled to the relief sought,
If after due hearing the court finds that the award of the contract is null and void, the court may, if appropriate under the circumstances, award the contract to the qualified and winning
bidder or order a rebidding of the same, without prejudice to any liability that the guilty party may incur under existing laws.
SEC. 4. Nullity of Writs and Orders.- Any temporary restraining order, preliminary injunction or preliminary mandatory injunction issued in violation of Section 3 hereof is void and of no
force and effect.
SEC. 5. Designation of Regional Trial Courts.- The Supreme Court may designate regional trial courts to act as commissioners with the sole function of receiving facts of the case involving
acquisition clearance and development of right-of-way for government infrastructure projects. The designated regional trial court shall within thirty (30) days from the date of receipt of the
referral, forward its findings of facts to the Supreme Court for appropriate action.
Republic vs Nolasco, April 27, 2005
GR: Republic Act No. 8975 definitively enjoins all courts, except the Supreme Court, from issuing any temporary restraining order, preliminary injunction, or preliminary mandatory injunction
against the government, or any of its subdivisions, officials or any person or entity to restrain, prohibit or compel the bidding or awarding of a contract or project of the national government, precisely
the situation that obtains in this case with respect to the Agno River Project.
EXCEPTION:
1. The only exception would be if the matter is of extreme urgency involving a constitutional issue, such that unless the temporary restraining order is issued, grave injustice and irreparable
injury will arise. The TRO issued by the RTC failed to take into consideration said law. Neither did it advert to any extreme urgency involving a constitutional issue, as required by the
statute. The law ordains that such TRO is void, and the judge who issues such order should suffer the penalty of suspension of at least sixty (60) days without pay.
Proviso: Unquestionably, the power to issue injunctive writs against the implementation of any government infrastructure project is exclusively lodged with this Court (SC), pursuant to Section 3 of
Rep.
Proviso: Unquestionably, the power to issue injunctive writs against the implementation of any government infrastructure project is exclusively lodged with this Court (SC), pursuant to Section 3 of
Rep. Act No. 8975. But while lower courts are proscribed thereunder from issuing restraining orders and/or writs of preliminary injunction to stop such projects, the proscription does not mean that
such courts are likewise bereft of authority to take cognizance of the issue/issues raised in the principal action, as long as such action and the relief sought are within their jurisdiction.
XVIII.
XIX. SUFFICIENCY OF COMPLAINT, APPLICATION AND OTHER
REQUISITES
A injunction or TRO may be granted only when:
1. the application for the same is VERIFIED
2. the application shows that the applicant is entitled to the relief sought
3. unless exempted by the court, the applicant shall execute a bond to the party enjoined, in an amount fixed by the court. The filing of the bond is conditioned upon to pay the party enjoined all
damages that he may sustained by reason of the injunction or the TRO if the court should finally decide that the applicant is not entitled thereto.
4. Upon approval of the requisite bond, a writ of preliminary injunction shall be issued
When the application for a writ of preliminary injunction or TRO is included in a complaint or any initiatory pleading:
a. If filed in a multiple sala:
1. The case shall be raffled only after notice to and in the presence of the adverse party OR the person to be enjoined
2. The notice shall be preceded, or contemporaneously accompanied, by:
a. Service of summons upon the adverse party in the PHlLIPPINES
b. Together with the copy of the:
➢ Initiatory pleading
➢ The applicant’s affidavit
➢The applicant’s bond
No. Malice or lack of good faith in the issuance of the injunction is not an element of recovery of the injunction bond. To require otherwise would make the filing of a bond a useless formality.
The dissolution of the injunction, even if the injunction was obtained in good faith, amounts to the determination that the injunction is wrongfully obtained and a right of action on the injunction bond
immediately accrues.
The injunction bond is intended as a security for damages in case it is finally decided that the injunction ought not to have been granted. Its principal purpose is to protect the enjoined party against
loss or damage by reason of the injunction, and the bond is usually condition accordingly.
The damages sustained as a result of a wrongful obtained injunction may be recovered upon the injunction bond which is required to be deposited with the court as provided in Sec.20, Rule 57 which
is similarly applicable to preliminary injunction.
Sec.6. Grounds for objection t o, or for motion of dissolution of, injunction or restraining order –
RULE 10
PROVISIONAL REMEDIES
SECTION 1. Provisional remedies. - A party may apply for any of the provisional remedies provided in the Rules of Court as may be available for the purposes. However, no temporary restraining
order or status quo order shall be issued save in exceptional cases and only after hearing the parties and the posting of a bond.
XXV. AM no. 07-11-08-SC
Special Rules of Court on Alternative Disputes
RULE 5: INTERIM MEASURES OF PROTECTION
Rule 5.1. Who may ask for interim measures of protection. - A party to an arbitration agreement may petition the court for interim measures of protection.
Rule 5.2. When to petition. - A petition for an interim measure of protection may be made (a) before arbitration is commenced, (b) after arbitration is commenced, but before the constitution of the
arbitral tribunal, or (c) after the constitution of the arbitral tribunal and at any time during arbitral proceedings but, at this stage, only to the extent that the arbitral tribunal has no power to act or is
unable to act effectively.
Rule 5.3. Venue. - A petition for an interim measure of protection may be filed with the Regional Trial Court, which has jurisdiction over any of the following
places: a. Where the principal place of business of any of the parties to arbitration is located;
b. Where any of the parties who are individuals resides;
c. Where any of the acts sought to be enjoined are being performed, threatened to be performed or not being performed;
ord. Where the real property subject of arbitration, or a portion thereof is situated.
Rule 5.4. Grounds. - The following grounds, while not limiting the reasons for the court to grant an interim measure of protection, indicate the nature of the reasons that the court shall consider in
granting the relief:
a. The need to prevent irreparable loss or injury;
b. The need to provide security for the performance of any obligation;
c. The need to produce or preserve evidence; or
d. The need to compel any other appropriate act or omission.
Rule 5.5. Contents of the petition. - The verified petition must state the following:
a. The fact that there is an arbitration agreement;
b. The fact that the arbitral tribunal has not been constituted, or if constituted, is unable to act or would be unable to act
effectively;c. A detailed description of the appropriate relief sought;
d. The grounds relied on for the allowance of the petition
Apart from other submissions, the petitioner must attach to his petition an authentic copy of the arbitration agreement.
Rule 5.6. Type of interim measure of protection that a court may grant.- The following, among others, are the interim measures of protection that a court may
grant: a. Preliminary injunction directed against a party to arbitration;
b. Preliminary attachment against property or garnishment of funds in the custody of a bank or a third person;
c. Appointment of a receiver;
d. Detention, preservation, delivery or inspection of property; or,
e. Assistance in the enforcement of an interim measure of protection granted by the arbitral tribunal, which the latter cannot enforce effectively.
Rule 5.7. Dispensing with prior notice in certain cases. - Prior notice to the other party may be dispensed with when the petitioner alleges in the petition that there is an urgent need to either (a)
preserve property, (b) prevent the respondent from disposing of, or concealing, the property, or (c) prevent the relief prayed for from becoming illusory because of prior notice, and the court finds
that the reason/s given by the petitioner are meritorious.
Rule 5.8. Comment/Opposition. - The comment/opposition must be filed within fifteen (15) days from service of the petition. The opposition or comment should state the reasons why the interim
measure of protection should not be granted.
Rule 5.9. Court action. - After hearing the petition, the court shall balance the relative interests of the parties and inconveniences that may be caused, and on that basis resolve the matter within thirty
(30) days from (a) submission of the opposition, or (b) upon lapse of the period to file the same, or (c) from termination of the hearing that the court may set only if there is a need for clarification or
further days from (a) submission of the opposition, or (b) upon lapse of the period to file the same, or (c) from termination of the hearing that the court may set only if there is a need for clarification
or further argument.
If the other parties fail to file their opposition on or before the day of the hearing, the court shall motu proprio render judgment only on the basis of the allegations in the petition that are substantiated
by supporting documents and limited to what is prayed for therein.
In cases where, based solely on the petition, the court finds that there is an urgent need to either (a) preserve property, (b) prevent the respondent from disposing of, or concealing, the property, or (c)
prevent the relief prayed for from becoming illusory because of prior notice, it shall issue an immediately executory temporary order of protection and require the petitioner, within five (5) days from
receipt of that order, to post a bond to answer for any damage that respondent may suffer as a result of its order. The ex-parte temporary order of protection shall be valid only for a period of twenty
(20) days from the service on the party required to comply with the order. Within that period, the court shall:
a. Furnish the respondent a copy of the petition and a notice requiring him to comment thereon on or before the day the petition will be heard; and
b. Notify the parties that the petition shall be heard on a day specified in the notice, which must not be beyond the twenty (20) day period of the effectivity of the ex-parte order.
The respondent has the option of having the temporary order of protection lifted by posting an appropriate counter-bond as determined by the court.
If the respondent requests the court for an extension of the period to file his opposition or comment or to reset the hearing to a later date, and such request is granted, the court shall extend the period
of validity of the ex-parte temporary order of protection for no more than twenty days from expiration of the original period.
After notice and hearing, the court may either grant or deny the petition for an interim measure of protection. The order granting or denying any application for interim measure of protection in aid of
arbitration must indicate that it is issued without prejudice to subsequent grant, modification, amendment, revision or revocation by an arbitral tribunal.
Rule 5.10. Relief against court action. - If respondent was given an opportunity to be heard on a petition for an interim measure of protection, any order by the court shall be immediately executory,
but may be the subject of a motion for reconsideration and/or appeal or, if warranted, a petition for certiorari.
Rule 5.11. Duty of the court to refer back. - The court shall not deny an application for assistance in implementing or enforcing an interim measure of protection ordered by an arbitral tribunal on any
or all of the following grounds:
a. The arbitral tribunal granted the interim relief ex parte; or
b. The party opposing the application found new material evidence, which the arbitral tribunal had not considered in granting in the application, and which, if considered, may produce
adifferent result; or
c. The measure of protection ordered by the arbitral tribunal amends, revokes, modifies or is inconsistent with an earlier measure of protection issued by the court.
If it finds that there is sufficient merit in the opposition to the application based on letter (b) above, the court shall refer the matter back to the arbitral tribunal for appropriate determination.
Rule 5.12. Security. - The order granting an interim measure of protection may be conditioned upon the provision of security, performance of an act, or omission thereof, specified in the order.
The Court may not change or increase or decrease the security ordered by the arbitral tribunal.
Rule 5.13. Modification, amendment, revision or revocation of court’s previously issued interim measure of protection. - Any court order granting or denying interim measure/s of protection is issued
without prejudice to subsequent grant, modification, amendment, revision or revocation by the arbitral tribunal as may be warranted.
An interim measure of protection issued by the arbitral tribunal shall, upon its issuance be deemed to have ipso jure modified, amended, revised or revoked an interim measure of protection previously
issued by the court to the extent that it is inconsistent with the subsequent interim measure of protection issued by the arbitral tribunal.
Rule 5.14. Conflict or inconsistency between interim measure of protection issued by the court and by the arbitral tribunal. - Any question involving a conflict or inconsistency between an interim
measure of protection issued by the court and by the arbitral tribunal shall be immediately referred by the court to the arbitral tribunal which shall have the authority to decide such question.
Rule 5.15. Court to defer action on petition for an interim measure of protection when informed of constitution of the arbitral tribunal. - The court shall defer action on any pending petition for an
interim measure of protection filed by a party to an arbitration agreement arising from or in connection with a dispute thereunder upon being informed that an arbitral tribunal has been constituted
pursuant to such agreement. The court may act upon such petition only if it is established by the petitioner that the arbitral tribunal has no power to act on any such interim measure of protection or
is unable to act thereon effectively.
Rule 5.16. Court assistance should arbitral tribunal be unable to effectively enforce interim measure of protection. - The court shall assist in the enforcement of an interim measure of protection
issued by the arbitral tribunal which it is unable to effectively enforce.
XXX. 20-95
ADMINISTRATIVE CIRCULAR NO. 20-95 September 12, 1995
TO: COURT OF APPEALS, SANDIGANBAYAN, COURT OF TAX APPEALS, REGIONAL TRIAL COURTS, METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS,
MUNICIPAL TRIAL COURTS IN CITIES, MUNICIPAL CIRCUIT TRIAL COURTS, SHARI'A DISTRICT COURTS, SHARI'A CIRCUIT COURTS AND ALL MEMBERS OF THE
INTEGRATED BAR OF THE PHILIPPINES
SUBJECT: RE: SPECIAL RULES FOR TEMPORARY RESTRAINING ORDERS AND PRELIMINARY INJUNCTIONS.
1. Where an application for temporary restraining order (TRO) or writ of preliminary injunction is included in a complaint or any initiatory pleading filed with the trial court, such compliant
or initiatorypleading shall be raffled only after notice to the adverse party and in the presence of such party or counsel.
2. The application for a TRO shall be acted upon only after all parties are heard in a summary hearing conducted within twenty-four (24) hours after the records are transmitted to the
branch selected byraffle. The records shall be transmitted immediately after raffle.
3. If the matter is of extreme urgency, such that unless a TRO is issued, grave injustice and irreparable injury will arise, the Executive Judge shall issue the TRO effective only for seventy-
two (72) hours from issuance but shall immediately summon the parties fro conference and immediately raffle the case in their presence. Thereafter, before the expiry of the seventy-two (72) hours,
the Presiding Judge to whom the case is assigned shall conduct a summary hearing to determine whether the TRO can be extended for another period until a hearing in the pending application for
preliminary injunction can be conducted. In no case shall the total period of the TRO exceed twenty (20) days, including the original seventy-two (72) hours, for the TRO issued by the Executive
Judge.
4. With the exception of the provisions which necessarily involve multiple-sala stations, these rules shall apply to single-sala stations especially with regard to immediate notice to all
parties of allapplications for TRO.
Rule 59
Receivership
Exception: placement of banks or quasi-banks under receivership, the Monetary Board shall Designate the Philippine Deposit Insurance Company (PDIC) whenever it finds them pursuant
to the provisions of the New Central Bank Act.
A receiver is generally defined to be an indifferent person between the parties litigants, appointed by the court and on behalf of all the parties, and not of the plaintiff or defendant
only,: a. To receive and hold the thing or property in litigation, pending the suit
b. To receive the rents, issues, or profits of the land or thing in question
c. To hold possession and control of the property which is the subject-matter of the litigation and
d. To dispose of it in such manner as may be directed by the court
He is the arm and hand of the court, part of the machinery of the court, by which the rights of the parties are protected. He is required not only to preserve the property, but to protect the rights of all
the parties interested.
Generally a receiver has no authority to incur expense in the administration of his receivership, without express permission of the court, except it be absolutely necessary to preserve the property, and
then only when, under special circumstances, he can not secure such authority from the court. He should administer the estate as economically as possible, to the end that the interest of all the parties
shall be conserved.
The amount of compensation of a receiver is fixed by the sound discretion of the court. The court, in fixing the compensation of the receiver, should take into consideration the general efficiency of
the receiver in his administration of the property under his control.
Receivership Replevin
The purpose is to preserve and take care the The purpose is to recover possession of
property disputed pending litigation property capable of manual delivery
wrongfully detained by the defendant
The property is taken out from the defendant Property is recovered from the defendant and
and place under the administration and direct a court officer to deliver the same to the
protection of a special officer appointed by the right full owner or possessor to restore him of
court the possession thereof
There is only a mere deposit of the property There is a delivery of the property of
in litigation litigation
Sheriff Receiver
- Is a court officer of general character - Is a special officer
- Not appointed for a certain judicial case - Appointed in relation to and within the limits
of his jurisdiction
- Who exercises and can exercise his functions - Whose duties are limited to his sphere of
within the limits of his jurisdiction action and do not extend further than the
case in which he was appointed
- Funds in custody of a sheriff may be within the - Funds in custody of a receiver are not
reach of processes coming from other subject to any other judicial processes;
judicial proceedings merely act as a depositary
- Those who have any claim to property or
funds in the possession of a receiver, must
appear in the same proceeding in which said
receiver discharges his duties, and there, by
motion or petition, allege and prove their
claims.
For this reason, while the funds in the custody of a sheriff may be within the reach of processes coming from other judicial proceeding, such is not the case with respect to those under the custody of
a depositary. From which it follows that those who, as in the discharges his duties, and there, by motion or petition, allege and prove their claims.
Purpose
- (sec. 1, Rule 59) To protect and preserve the rights of the parties during the:
a) Pendency of the main action
b) Pendency of an appeal or as an aid in the execution of a judgment when the writ of execution has been returned unsatisfied
- Receivership is aimed at preservation of and at making more secure, existing rights. It cannot be used as an instrument for the destruction of those rights.
- Rule 59 presupposes that there is an action and that the property subject of the action requires its preservation
The court should consider the consequences to all of the parties and the power should not be exercised when it is likely to produce irreparable injustice or injury to private rights or the facts
demonstrate that the appointment will injure the interests of others whose rights are entitled to as much consideration from the court as those of the complainant.
The appointment of a receiver, because of its drastic nature and of its character as a special remedy under our Code of Civil Procedure, is a power which should be exercised with great caution."
• Cannot be used an instrument for the destruction of the rights being preserve and taken care of.
Who: one or more receivers of the property subject of the action or proceeding may be
appointed
Whom: - appointed by the court where the action is pending
- Court of Appeals,
[why/ purpose: to protect the property which is the subject in the litigation.]
Petitioner ground for issuance of receivership: imminent danger, to life, health and peace of mind of the inhabitants living near the ICE PLANT due to leakage.
The Supreme Court did not grant the remedy; because at the time the trial court issued the order for receivership of the property, the problem had been remedied and there was no imminent danger of
another leakage. Whatever danger there was to the community and the environment had already been contained.
2. (there is a mortgage contract) When it appears in an action by the mortgagee for the foreclosure of a mortgage:
a. That the property is in danger of being wasted or dissipated or materially injured, and
b. That its value is probably insufficient to discharge the mortgage debt, or
c. That the parties have so stipulated in the contract of mortgage
3. After judgment
a. To preserve the property during the pendency of an appeal
b. To dispose of it according to the judgment
c. To aid execution when the execution has been returned unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the judgment d. Otherwise to carry the judgment
into effect
4. Whenever in other cases it appears that the appointment of a receiver is the most convenient and feasible means of preserving, administering, or disposing of the property in litigation.
Condition of the bond: the bond shall be filed upon the condition that the applicant shall pay all damages that the adverse party may sustain by reason of the appointment of receiver in case the
applicant shall have procured such appointment without sufficient cause;
And the court may, in its discretion, at any time after the appointment, require an additional bond as further security for such damages.
Jurisdiction
Ruling:
While a court cannot give its receiver authority to act in another state without the assistance of the courts thereof (53 C. J., 390-391), yet it may act directly upon the parties before it with respect to
property beyond the territorial limits of its jurisdiction, and hold them in contempt if they resist the court's orders with reference to its custody or disposition, Whether the property was removed before
or after the appointment of the receiver is likewise immaterial.
Ruling: No. the proper remedy is to apply for a preliminary prohibitory injunction. The remedy of receivership will not lie because as the owner has more interest than persons in preserving and
administering it. Furthermore, the legal effect of the appointment is to take the real estate out of the possession of the defendant before final adjudication of the rights of the parties. Hence, would
place the defendant economically disadvantage.
Ruling: No. Receivership will not lie. Because The land which is the subject matter of the suit here is not in any danger of disappearing or being wasted. There is no pretense that it has any permanent
improvements or fixtures which produce income, rents or profits to be collected or preserved. At the most a bond with sufficient sureties would be adequate to protect the plaintiffs from any possible
injury consequent upon being deprived of the possession of the property.
Furthermore, plaintiff has no interest over the standing crops there being no sort of partnership or formed between the plaintiff and defendant by a contract or operation of law. Their title to the crops
is contingent upon their success in proving their asserted title to the soil, which is still to be decided. And even if they should ultimately succeed in that, their rights to the products would still be
dependent upon many factors yet undetermined.
Moreover, a receiver should not be appointed where the resulting injury therefrom would probably greater than the injury ensuing from leaving the possession of the property disturbed. Otherwise,
as receivership is a drastic, harsh, extreme remedy, the defendant shall be divested with their means of livelihood.
The case not being one in which a receiver could be appointed, the order making such appointment was void and was beyond the jurisdiction of the court, although that court had jurisdiction of the
main action
The case at bar does not fall within any of the provisions of this section. There is no allegation in the complaint, as has been before stated, that the plaintiff is the owner of any of the property of
Rocha & Co., nor is there any allegation that he has any lien thereon, nor are there any facts alleged in the complaint from which it could be inferred that he was owner of such property or had any
lien thereon. On the contrary, from the facts that are alleged in the complaint it would seem that his separation from the partnership of Carman & Co., left that partnership as a going concern and did
not dissolve it. The effect of the provisions of the articles of partnership which are referred to in the complaint is that after the withdrawal of any partner the remaining partners became the owners of
all the assets of the partnership and he became a general creditor of the partnership.
In the argument in this court it was claimed that this extraordinary remedy would not lie because the plaintiff, Rocha & Co., had a right to appeal from the order appointing a receiver, although
that appeal could not be taken until a final judgment had been entered in the case.
RULING: Receivership is not proper. That order, in effect, made the clerk of court a sort of a receiver charged with the duty of receiving the proceeds of sale and the harvest of every year during the
pendency of the case with the disadvantage that the clerk of court has not filed any bond to guarantee the faithful discharge of his duties as depositary; and considering that in actions involving title
to real property, the appointment of a receiver cannot be entertained because its effect would be to take the property out of the possession of the defendant (dis-posses the defendant), except in
extreme cases when there is clear proof of its necessity to save the plaintiff from grave and irremediable loss or damage, it is evident that the action of the respondent judge is unwarranted and unfair
to the defendants.
The question of ownership is herein involved and both parties seem to have documentary evidence in support of their respective claims, and to order the defendants to render an accounting of the
harvest and to deposit the proceeds in case of sale thereof during the pendency of the case would be to deprive them of their means of livelihood before the case is decided on the merits.
Attachment, preliminary injunction, receivership and replevin
Are remedies to which parties litigant may resort for the preservation or protection of their rights or interest, and for no other purpose, during the pendency of the principal action. If an action, by its
nature, does not require such protection or preservation, said remedies cannot be applied for and granted.
Distinction –
Cases:
Ruling: the receiver should be discharged upon posting of a counterbond. The rule states that “application may be denied or the receiver discharged.” In statutory construction, the word “may”
has always been construed as permissive. If the intent is to make it mandatory or ministerial for the trial court to order the recall of the receiver upon the offer to post a counterbond, the court
should have used the word “shall.” Thus, the trial court has to consider the posting of the counterbond in addition to other reasons presented by the offeror why the receivership has to be set
aside.
Furthermore, the appointment of a receiver shall not lie because a notice of lis penens has been annotated on the titles of the disputed properties, thereby by affording adequate protection thereto,
thus, the property are no longer place in danger of being lost, removed or materially injured. Once the annotation is made, any subsequent conveyance of the lot by the respondent would be subject
to the outcome of the litigation since the fact that the properties are under custodial egis is made known to all and subdry by operation of law. Hence, there is no need for a receiver to look after the
disputed properties.
Platon vs Sandoval, 74 Phil 731
Ruling: yes the receiver should b discharged. Under the rules, a receiver may be discharged when the court, upon motion or motu prorprio, determines that the necessity for a receiver no longer
exist. Furthermore, the receiver, being an officer of the court and not the agent or representative of either party to the action, has no legal interest or standing to question the court's
determination that the necessity for the continuation of the receivership has ceased to exist.
Held: There cannot be the slightest doubt of the power of the lower court to remove a receiver and terminate a receivership under section 180 of the Code of Civil Procedure; and in view of the
attitude of the appellant, the impropriety of his longer remaining in office is apparent.
But it is claimed by the appellant that he has made expenditures necessary to the care and conservation of the property over and above the proceeds obtained from the coconuts produced by the land
comprised in the receivership; and it is contended that the lower court had no power to turn him out at least as long as the expenditures made by him have not been reimbursed. This contention seems
to us to come with bad grace from a receiver whose attitude about the receivership property has been such as that exhibited by the appellant, and particularly in the light of his refusal to render any
account of the income from the property in his possession. The contents of the voluminous record which we have examined carefully and the history of the proceedings afford much material for
unfavorable comment upon the attitude of the appellant, but inasmuch as the case turns in the end upon the efficiency of Judge Paredes' order declaring the sale a nullity, any comment is unnecessary.
Powers of Receiver
The receiver shall have the power to:
1. bring and defend, in such capacity, actions in his own name
2. take and keep possession of the property in controversy
3. receive rents,
4. collect debts duet to himself as receiver or to the fund, property estate, person or corporation of which he is the receiver
5. compound for and compromise the same
6. make transfer
7. pay outstanding debts
8. dived the money and other property that shall remain among the persons legally entitled to receive the same
9. generally, do such acts respecting the property as the court may authorize
Note: funds in the hands of a receiver may be invested only by order of the court upon the written consent of all the parties to the action.
Note: no action may filed by or against a receiver without leave of the court which appointed him.
Termination of receivership
1. The court, motu proprio or upon motion of either party, shall determine that the necessity for a receiver no longer exists
2. After due notice to all parties and hearing, it shall:
a. Settle the accounts of the receiver
b. Direct the delivery of the funds and other property in his possession to the person adjudged to be entitled to receive them
c. Order the discharge of the receiver from further duty as such
Compensation of receiver
The court shall allow the receiver such reasonable compensation as the circumstances of the case warrant, to be taxed as costs against the defeated party, or apportioned, as justice
requires.
Case:
Traders Royal Bank vs IAC, June 17, 1997
Receiver’s compensation is to be charged against the defeated party or the prevailing litigant may be made to share the expense, as justice
requires.
Ruling:
The defeated party should be responsible for the compensation of the receiver. Under the rules, the court shall allow the receiver such reasonable compensation as the circumstances of the case
warrant, to be taxed as costs against the defeated party, or apportioned, as justice requires.
It is, therefore, clear that when the services of a receiver who has been properly appointed terminates, his compensation is to be charged against the defeated party, or the prevailing litigant may
be made to share the expense, as justice requires. Consequently, the trial court's order approving TRB's compensation to be charged solely against the funds under its receivership is without legal
justification; hence, it was correctly reversed by the Court of Appeals.
a. is unable to pay its liabilities as they become due in the ordinary course of business: provided that this shall not included inability to pay caused by extraordinary demands induced by financial
panic in the banking community;
d. has willfully violated a cease and desist order that has become final, involving acts or transactions which amount to fraud or a dissipation of the assets of the institution
in which cases, the Monetary Board may summarily and without need for prior hearing forbid the institution from doing business in the Philippines and designate PDIC as receiver of the banking
institution.
Problem:
The conservator of B bank revoked a contract previously entered into by the bank on the ground that the lands subject of said contract presently command a much higher price than when it
was sold. Is the revocation valid?
Ans: No. while lands may currently command a much higher-price, a contract of sale entered into by a bank cannot be revoked if at the time of transaction, the price agreed upon was
reasonable. To rule otherwise is to reward lawlessness and delays in the fulfillment of binding contracts. Respect for perfected contracts and non-impairment of obligations must be upheld
under the rule of law and blind justice.
Qualifications of conservator
The conservator should be competent and knowledgeable in bank operations and
management
Period of Conservatorship
The conservatorship shall not exceed 1
year
When shall conservatorship be terminated:
When the Monetary board:
1. shall be satisfied that the institution can continue to operate on its own and the conservatorship is no longer necessary
2. should determine that the continuance in business of the institution would involve probable loss to its depositors or creditors, in which case, the provision on receivership and liquidation
shall apply
Receivership; Conservatorship; and Liquidation under New Central Bank Act (RA no.
7653) Legal Basis: (Sec.29 – 30, NCBA)
Note: The Designation of conservator is not a precondition to the designation of a receiver.
PRINCIPAL CONSERVATORSHIP RECEIVERSHIP
DISTINCTION
Who appoints Appointment shall be vested exclusively with the Monetary Board
Who are Natural person competent and 1. For banks not quasi-banks
appointed knowledgeable in bank • Philippine Deposit Insurance
operations and management
Corporation (PDIC)
2. For qausi-banks
• PDIC, or
• Any person of recognized
competence in banking or finance
Duration The conservatorship shall not The receiver shall ASAP, but not later
exceed 1 year than 90 days from take over, whether the
institution:
1. May be Rehabilitated or
2. Can resume business with safety to
its depositors and creditors and the
General Public
If the receiver
determines that
the institution
cannot be
rehabilitated or permitted to
resume business; the Monetary Board
shall notify the Board of Directors and
shall direct the receiver to proceed with
the liquidation of the institution
Grounds Based on the report submitted by Based on the report of the supervising or
the appropriate supervising or examining department, the Monetary
examining department, the Board finds that a bank or quasi-bank:
Monetary Board finds that a bank
or quasi-bank is:
a. Is unable to pay its liabilities when due
and demandable; provided that this
shall not include inability to pay caused
a. In a state of continuing by extraordinary demands
inability, induced by financial panic in the
or banking community
b. Unwillingness to maintain a b. By the bangko sentral, to meet its
condition of liquidity liabilities
deemed adequate to protect
the interest of depositors and c. Cannot continue in business without
creditors involving probable losses to its
depositors or creditors
d. Has willfully violated a cease and
desist order under sec.37 of NCBA that
has become final, involving acts or
become final, involving acts or
transactions which amount to fraud
or a dissipation of the assets of the
institution
Duties and
powers 1. Shall take charge of the assets, 1. Shall immediately gather and take
liabilities and management, charge of all the assets and liabilities
2. Reorganize the management of the institution
2. Administer the same
3. Collect all monies and debts 3. Exercise the general powers of a
due said institution receiver under the Revised Rules of
Court
4. Exercise all powers necessary 4. Shall not pay or commit any act that
to restore its viability will involve the transfer or disposition
of any asset of the institution, except
5. Report and be responsible to administrative expenditures
the Monetary Board 5. May deposit or place the funds of the
institution in nonspeculative
6. Shall have the power to investments
overrule or revoke the actions 6. Determine whether the institution be
of the previous management rehabilitated or permitted to resume
and board of directors of the business with safety to its depositors
Bank or Quasi-bank and creditors and to the general public
When shall it be When the Monetary Board is: IF when the receiver determines that:
terminated a. Satisfied that the institution a. The institution cannot be rehabilitated,
can continue to operate on its or
own and the conservatorship
is no longer necessary
b. Permitted to resume business
Liquidation Procedure:
When shall banks or quasi-banks be placed under liquidation?
when the receiver determines that the institution cannot be:
a. rehabilitated or
b. permitted to resume
business
in which case the, the Monetary Board shall notify in writing the Board of Directors of its findings and shall direct the receiver to proceed with the liquidation of the institution. The receiver shall:
1. file a petitioner for assistance in the liquidation of the institution with the RTC
2. upon acquiring jurisdiction, the court shall, upon motion by the receiver after due notice, adjudicate disputed claims against the institution, assist the enforcement of individual liabilities of
the stockholders, directors and officers, and decide on the other issues as may be material to implement the liquidation plan adopted.
3. the cost of the proceedings from the assets of the institution.
4. Convert the assets of the institution to money for the purpose of paying the debts of such institution
5. Institutes such any actions as may be necessary to collect and recover accounts and assets of, or defend any action against, the institution.
Rule 9
Management committee
Sec.1. Creation of a management committee –
A party may apply for the appointment of a management committee for the corporation, partnership or association, when there is imminent danger of:
1. Dissipation, loss wastage or destruction of assets or other properties; 2. Paralyzation of its business operations which may be prejudicial to
the interest of the minority stockholders, parties-litigants or the general public.
Sec.2. Receiver –
In the event the court finds the application to be sufficient in form and substance, the court shall issue an order;
a. appointing a receiver of known probity, integrity and competence and without any conflict of interest to immediately take over the corporation, partnership or association, specifying such
powers as it may deem appropriate under the circumstances;
c. directing the receiver to make a report as the affairs of the entity under receivership and on the other relevant matters within 60 days from the time he assumes office
d. prohibiting the incumbent management of the company, partnership, or association from selling, encumbering, transferring, or disposing in any manner any of its properties except payment
in full of all administrative expenses incurred after the issuance of the order
(1) To investigate the acts, conduct, properties, liabilities, and financial condition of the corporation, association or partnership under management; I
(2) To examine under oath the directors and offices of the entity and any other witnesses that it may deem appropriate; E
(3) To report to the court any fact ascertained by it pertaining to the causes of the problems, fraud, misconduct, mismanagement and irregularities committed by the stockholders,
directors,management or any other person; R
(4) To employ such person or persons such as lawyers, accountants, auditors, appraisers and staff as are necessary in performing its functions and duties as management committee; E
(5) To report to the court any material adverse change in the business of the corporation, association or partnership under management; R
(6) To evaluate the existing assets and liabilities, earnings and operations of the corporation, association or partnership under management; E
(7) To determine and recommended to the court the best way to salvage and protect the interest of the creditors, stockholders and the general public, including the rehabilitation of
thecorporation, association or partnership under management; D
(8) To prohibit and report to the court any encumbrance, transfer, or disposition of the debtor's property outside of the ordinary course of business or what is allowed by the court; P(9) To
prohibit and report to the court any payments made outside of the ordinary course of business; P
(10) To have unlimited access to the employees, premises, books, records and financial documents during business hours; U
(11) To inspect, copy, photocopy or photograph any document, paper, book, account or letter, whether in the possession of the corporation, association or partnership or other persons; I
(12) To gain entry into any property for the purposes of inspecting, measuring, surveying, or photographing it or any designated relevant object or operation thereon; G
(13) To bring to the attention of the court any material change affecting the entity's ability to meet its obligations; B
(14) To revoke resolutions passed by the Executive Committee or Board of Directors/Trustees or any governing body of the entity under management and pass resolution in substitution of
thesame to enable it to more effectively exercise its powers and functions; R
(15) To modify, nullify or revoke transactions coming to its knowledge which it deems detrimental or prejudicial to the interest of the entity under management; M
(16) To recommend the termination of the proceedings and the dissolution of the entity if determines that the continuance in business of such entry is no longer feasible or profitable or no
longerworks to the best interest of the stockholders, parties-litigants, creditors or the general public; R
(17) To apply to the court for any order or directive that it may deem necessary or desirable to aid it in the exercise of its powers and performance of its duties and functions; and A
(18) To exercise such other powers as may, from time to time, be conferred upon it by the court.
Rules of Procedure for Corporate Rehabilitation
Principle: Petition for corporate rehabilitation only requires the consent of the directors or stockholders in “consonance with the existing laws”. This is to avoid delay in the implementation
of the plan because of the refusal of the directors or stockholders to fully cooperate in the plan.
Case: Chas Realty & Development Corp. vs. Talavera & Concepcion
G.R. No. 151925. February 6, 2003.
Ruling:
Rule 4, Section 2(k), of the Interim Rules on Corporate Rehabilitation provides:
"Sec. 2. Contents of the Petition. – The petition filed by the debtor must be verified and must set forth with sufficient particularity all the following material facts: (a) the name and business of the
debtor; (b) the nature of the business of the debtor; (c) the history of the debtor; (d) the cause of its inability to pay its debts; (e) all the pending actions or proceedings known to the debtor and the
courts or tribunals where they are pending; (f) threats or demands to enforce claims or liens against the debtor; and (g) the manner by which the debtor may be rehabilitated and how such rehabilitation
may benefit the general body of creditors, employees, and stockholders.
Nowhere in the aforequoted paragraph can it be inferred that an affirmative vote of stockholders representing at least two-thirds (2/3) of the outstanding stock is invariably necessary for the filing of
a petition for rehabilitation regardless of the corporate action that the plan envisions. Just to the contrary, it only requires in the filing of the petition that the corporate actions therein proposed have
been duly approved or consented to by the directors and stockholders "in consonance with existing laws." The requirement is designed to avoid a situation where a rehabilitation plan, after being
developed and judicially sanctioned, cannot ultimately be seen through because of the refusal of directors or stockholders to cooperate in the full implementation of the plan. In fine, a certification on
the approval of stockholders is required but the question, whether such approval should be by a majority or by a two-thirds (2/3) vote of the outstanding capital stock, would depend on the existing
law vis-à-vis the corporate act or acts proposed to be done in the rehabilitation of the distressed corporation.
RULE 60
REPLEVIN
The action of replevin as main action is primarily possessory in nature and generally determines nothing more than the rights of possession (BA Finance Corp vs CA, July 5, 1996).
Nature of Replevin
Replevin is described as a mixed action, being partly in rem and partly in personam
1. In rem
• Insofar as the recovery of specific property is concerned
• The gist of the action is the right of the plaintiff to obtain possession of specific personal property by reason of his being the owner or of his having a special interest therein
• Generally, the person in possession of the property sought to be relevied is ordinary the proper and only defendant, and the plaintiff is not require to join as defendants other persons claiming
a
right on the property but not in possession thereof.
2. In Personam
• As regards to damages involved
Ex: in case the right of possession on the part of the plaintiff, or his authority to claim such possession or that of his principal, is put to great doubt, it could become essential to have other persons
involved and accordingly impleaded for a complete determination and resolution of the controversy.
Reasoning: because all the party concerned is an indispensable party. And an indispensable party is whose interest will be affected by the court’s action in the litigation and without whom no final
determination of the case can be had. The party’s interest in the subject matter of the suit and in the relief sought are so inextricably intertwined with the other partie’s that his legal presence as a
party to the proceeding is an absolute necessity. In his absence there cannot be a resolution of the dispute of the parties before the court which is effective, complete or equitable.
Therefore, in this case, it is necessary that the principal defendant spouses and the adverse possessor Mr. Reyes, be impleaded for complete determination of the controversy. Otherwise, BA Finance
cannot recover the subject property through replevin even though he stand as a mortgagee who has interest or titled thereto.
REPLEVIN ATTACHMENT
To recover personal property capable of manual Is have the property put in the custody of
delivery from the defendant the court to secure the satisfaction of the
judgment that may be rendered in favor of
the plaintiff at some future time
The property either belongs to the plaintiff or one The property does not belong to the plaintiff
over which the plaintiff has a right of possession but to the defendant
Only extends to personal property capable of manual Extends to all kinds of property, real or
delivery personal or even incorporeal property
Property under custodia legis cannot be the object of Can be availed of even if the property is in
replevin custodial egis.
Must show that plaint has a title to personal property Must show that the property is being
and is wrongfully detained by the defendant removed, concealed or disposed of
Sec.1. application – a party praying for the recovery of the possession of personal property may, at the commencement of the action or at any time before answer, apply for an order for the
delivery of such property to him, in the manner hereinafter provided.
Who may apply for replevin?
• a party praying for recovery of possession of personal property
when may he apply?
• At the commencement of the action, or
• At any time before answer
b. That the property is wrongfully detained by the adverse party, alleging the cause of detention thereof according to the best of his knowledge, information and
belief;
c. That the property has not been:
i. Distrained, or ii. Taken for a tax assessment or fine
pursuant to law iii. Seized under a writ of execution or
preliminary attachment iiii. Placed under custodial egis
v. Or if seized, that it is exempt from such seizure or
custody
d. And, the actual market value of the property
Case:
Ruling: the complaint for replevin should be dismissed. The debtor-mortgagor as well as the adverse possessors should be impleaded in the complaint as they stand as an indispensable party
therein. Leticia Laus, being an indispensable party, should have been impleaded in the complaint for replevin and damages. Without the presence of the indispensable parties to a suit or
proceeding, a judgment of a court cannot attain real finality.
GR: where the right of the plaintiff to the possession of the specified property is so conceded or evident, the action need only be maintained against him who so possesses the property.
Ex: in case the right of possession on the part of the plaintiff to claim such possession or that of his principal, is put to great doubt, it could become essential to have other persons involved and
impleaded for a complete determination and resolution of the controversy.
Indispensable vs not indispensable party
The applicant must also give a bond, executed to the adverse party in double the value of the property as state in the affidavit.
Case:
HELD: When the petitioner failed to declare the actual value of the machineries and equipment subject of the replevin suit in the affidavit, there was non-compliance with Section 2, Rule 60 of the
Revised Rules of Court.
Also When the petitioner filed a bond in the amount P400,000.00 which is twice the amount of P200,000.00 as probable value declared in its complaint, there was non-compliance with Section 2,
Rule 60, because the Rules of Court requires that bonds should be based on the actual value and not on just probable value because it is intended to indemnify the defendant against any loss that he
may suffer by reason of its being compelled to surrender the possession of the disputed property pending trial of the action, and the same may also be answerable for damages if any when judgment
is rendered in favor of the defendant or the party against whom a writ of replevin was issued and such judgment includes the return of the property to him. Petition DISMISSED.
39
Property lawfully taken by virtue of legal process is deemed to be in custodia legis. When a thing is in official custody of a judicial or executive officer in pursuance of his execution of a
legal
40 writ, replevin will not lie to recover it. Otherwise, there would be interference with the possession before the function of law had been performed as
A writ of replevin does not just issue as a matter of course upon the applicant's filing of a bond and affidavit. The mere filing of an affidavit cannot justify the issuance of a writ of replevin.
Wrongful detention by the defendant of the properties sought in an action for replevin must be satisfactorily established. If only a mechanistic averment thereof is offered, the writ should not
be issued
In the case at bar, the subject narra lumber and six-wheeler truck were confiscated by petitioner Secretary pursuant to Section 68-A of P.D. No. 705, as amended by Executive Order (E.O.)
No. 277
Issuance of the confiscation order by petitioner Secretary was a valid exercise of his power under Sec. 68-A of P.D. No. 705. By virtue of said order, the narra lumber and six-wheeler
truck of private respondents were held in custodia legis and hence, beyond the reach of replevin.
39
Property lawfully taken by virtue of legal process is deemed to be in custodia legis. When a thing is in official custody of a judicial or executive officer in pursuance of his execution of a legal
40 writ, replevin will not lie to recover it. Otherwise, there would be interference with the possession before the function of law had been performed as to
the process under which the property was
41
taken. So basic is this doctrine that it found inclusion in the 1997 amendments introduced to the Rules of Civil Procedure. Thus, Sec. 2(c), Rule 60 of the 1997 Rules of Civil Procedure provides
that:
Affidavit and bond. — Upon applying for such order the plaintiff must show by his own affidavit or that of some other person who personally knows the facts:
xxx xxx xxx
(c) That the property has not been distrained or taken for a tax assessment or fine pursuant to law, or seized under a writ of execution, or preliminary attachment or otherwise
placed under custodia legis, or if so seized, that it is exempt from such seizure or custody; . . .
Sec.3. Order –
Upon the filing of such affidavit and approval of the bond, the court shall issue an order and the corresponding writ of replevin describing the personal property alleged to be wrongfully detained and
requiring the sheriff forthwith to take such property into his custody. Case:
Case:
[G.R. No. 137705. August 22,
2000]
SERG’S PRODUCTS, INC., and SERGIO T. GOQUIOLAY, petitioners, vs. PCI LEASING AND FINANCE, INC.,
respondent.
RULING: The Petition is not meritorious. Petitioners contend that the subject machines used in their factory were not proper subjects of the Writ issued by the RTC, because they were in fact real
property. Serious policy considerations, they argue, militate against a contrary characterization.
Rule 60 of the Rules of Court provides that writs of replevin are issued for the recovery of personal property only. In that sense, petitioners are correct in arguing that the said machines are real, not
personal, property pursuant to Article 415 (5) of the Civil Code.
Be that as it may, we disagree with the submission of the petitioners that the said machines are not proper subjects of the Writ of Seizure. The Court has held that contracting parties may validly
stipulate that a real property be considered as personal. After agreeing to such stipulation, they are consequently estopped from claiming otherwise. Under the principle of estoppel, a party to a
contract is ordinarily precluded from denying the truth of any material fact found therein.
In the present case, the Lease Agreement clearly provides that the machines in question are to be considered as personal property. Specifically, Section 12.1 of the Agreement reads as follows:
“12.1 The PROPERTY is, and shall at all times be and remain, personal property notwithstanding that the PROPERTY or any part thereof may now be, or hereafter become, in any
manner affixed or attached to or embedded in, or permanently resting upon, real property or any building thereon, or attached in any manner to what is permanent.”
Clearly then, petitioners are estopped from denying the characterization of the subject machines as personal property. Under the circumstances, they are proper subjects of the Writ of Seizure.
It should be stressed, however, that our holding -- that the machines should be deemed personal property pursuant to the Lease Agreement – is good only insofar as the contracting parties are
concerned.
Hence, while the parties are bound by the Agreement, third persons acting in good faith are not affected by its stipulation
Although the value of the vehicle seized pursuant to the Writ of Replevin may have exceeded P200,000, that fact does not deprive the trial court of its jurisdiction over the case. The
jurisdiction
of a court is determined by the amount of the claim alleged in the complaint, not by the value of the chattel seized in ancillary proceedings.
Under Rule 60 of the Rules of Court, the defendant has a period of 5 days from January 7, 1997 to post a re-delivery bond, in order to secure the return of the subject vehicle and to post a
counter bond double the amount of the chattel. In this respect, defendants failed to exercise his right and are not entitled to the redelivery of the subject vehicle.
Sec.5.Return of Property –
Can the adverse party demand for the return of the property taken? On what ground? When can he require the return of the property taken? How is it done?
• Yes. The adverse party can demand for the return of the property taken but he cannot immediately require the return of the property;
• On the ground of insufficiency of the applicant’s bond, adverse party can demand for the return of the property taken;
• He may require the return thereof at any time before the delivery of the same to the applicant; but the adverse party is required to object to the sufficiency of the bond within
5 days after the
taking of the property; otherwise the sheriff shall deliver the same to the applicant.
• By filing with the court where the action is pending a bond executed to the applicant and by serving a copy of such bond to the applicant ➢The amount of the bond shall in
double of the value of the property stated in applicant’s affidavit ➢Purpose of the bond: for the delivery thpereof to the applicant, if such delivery be adjudged, and for the
payment of such to him as may be recovered against the adverse party
1. The adverse party does not object to the sufficiency of the bond;
2. If the adverse party so objects and the court affirms its approval of the applicant’s bond or approve a new bond;
3. If the adverse party requires the return of the property but his bond is objected to and found insufficient and he does not forthwith file an approved bond
If the affidavit shall have been served on the sheriff and upon the applicant, what shall the sheriff do?
• The sheriff shall not be bound to keep the property or
• Shall not deliver it to the applicant
What is the remedy of applicant in case a third party claim has been initiated?
• The applicant, on demand of said sheriff, shall file a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property under replevin (in a sum
not
less than in double the value of the property)
• In case of disagreement as to such value, the court shall determine the same
Can an claim for damage be enforced against the bond filed the applicant?
• No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is filed within 120 days from the date of the filing of the bond
If the applicant was the RP, should it file a bond in case of a third party claim?
• No. under the rules, when the writ of replevin is issued in favor of the RP, or any officer duly representing it, the filing of such bond shall not be required, and in case the sheriff is sued for
damages as a result of the replevin, he shall be represented by the SOL GEN, and if held liable therfor, the actual damages adjudged by the court shall be paid by the National Treasury out of
the funds to be appropriated for the purpose.
Noteworthy:
The sheriff shall not be liable for damages, for the taking or keeping of such property, to any such third party claimant if such bond shall be filed.
Nothing shall prevent such claimant or any third person from vindicating his claim to the property, or prevent the applicant from claiming damages against a third-party claimant who filed a frivolous
or plainly spurious claim, in the same or separate action.
Sec.9. Judgment –
After trial of issues, the court shall determine who has the right of possession to and the value of the property and shall render judgment in the alternative for:
1. The delivery thereof to the party entitled to the same, plus damages as either party may prove, with
cost
2. For its value in case delivery cannot be made, plus damages as either party may prove, with cost
It is a basic principle in law that contracts can bind only the parties who had entered into it; it cannot favor or prejudice a third person. Contracts take effect between the parties, their assigns,
16
and heirs, except in cases where the rights and obligations arising from the contract are not transmissible by their nature, or by stipulation or by provision of law.
A contract of surety is an agreement where a party called the surety guarantees the performance by another party called the principal or obligor of an obligation or undertaking in favor of a
third
17 person called the obligee. Specifically, suretyship is a contractual relation resulting from an agreement whereby one person, the surety, engages to be answerable
The obligation of a surety cannot be extended by implication beyond its specified limits. "When a surety executes a bond, it does not guarantee that the plaintiff’s cause of action is
meritorious, and that it will be responsible for all the costs that may be adjudicated against its principal in case the action fails. The extent of a surety’s liability is determined only by the
clause
20 of the contract of suretyship." A contract of surety is not presumed; it cannot extend
to more than what is stipulated.
Special Civil
Actions Preliminaries Types of civil actions:
1. Ordinary civil action
(OCA)
2. Special civil action
(SCA)
Legal Basis:
Sec.3(a), Rule 1, Rules of Court – these rules shall govern the procedure to be observed in actions, civil or criminal and special proceedings.
(a) A civil action is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a
wrong.
A civil action may either be ordinary or special. Both are governed by the rules for ordinary civil actions, subject to the specific rules prescribed for a special civil action.
Distinction:
Note: The fact that an action is subject to special rules other than those applicable to ordinary civil actions is what makes a civil action special.
1. As to cause of action
–
In ordinary civil action, the defendant must have performed an act or omission in violation of the rights of another. The cause of action as defined and required of an OCA finds no application to
SCA.
Example:
• SCA of declaratory relief – is brought before there is any breach or violation of a deed, will, contract, statute, executive order or regulation, or any other governmental regulation.
• Interpleader – the plaintiff may file a complaint even if he has sustained no actual transgression of his rights. In fact the plaintiff in this SCA has no interest in the subject matter of the action. This
is not
so in an OCA.
2. As to venue
OCA – venue is determined either by:
• Personal action – the residence of the parties, at the election of the
plaintiff • Real action – the location of the property SCA – the above
rule does not apply in SCA.
Example:
• Quo warranto – venue is:
✓where the Supreme Court or the Court of Appeals sits without taking consideration of residence of the parties
✓Lodged with the RTC, here the RTC merely looks into the residence of the respondent, not that of the petitioner.
3. As to Court’s jurisdiction-
OCA – jurisdiction is determined or depends upon the jurisdictional amount or nature of the action involved as provided by BP 129, as amended. In which case, OCA may be initially filed in the RTC
or
MTC.
SCA – there are special civil actions which can only be filed in a MTC like the actions for forcible entry and unlawful detainer. There are also SCA which cannot be commenced in the MTC of
which are the petitions for certiorari, prohibition and mandamus.
SCA under the rules are the following:
1. Interpleader (Rule 62)
2. Declaratory Relief and Similar Remedies (Rule 63)
3. Review of Judgment and final orders or resolutions of the Commission on Elections and the Commission on Audit (Rule 64)
4. Certiorari, Prohibition, and Mandamus (Rule 65)
5. Quo Warranto (Rule 66)
6. Expropriation (Rule 67)
7. Foreclosure of real estate mortgage (Rule 68)
8. Partition (Rule 69)
9. Forcible Entry and Unlawful Detainer (Rule 70)
10. Contempt (rule 71)
RULE 61 SUPPORT
PENDENTI LITE
Definition – Support pendente lite is an amount of support provisionally fixed by the court in favor of the person or persons entitled thereto during the pendency of an action for support or criminal
action where civil liability includes support for the offspring provided that the civil aspect thereof has not been waived, reserved or instituted prior to its filing.
Family Code
TITLE VIII
SUPPORT
Support (art.194)
In keeping with the financial capacity of the family, Support comprises everything indispensable for:
a. Sustenance
b. Dwelling
c. Clothing
d. Medical attendance
e. Education and
f. Transportation
Education of the person shall include his:
a. Schooling or training for
some profession, trade or vocation,
b. Even beyond the age of
majority
Transportation shall include:
a. Expenses in going to and from school, or
b. To and from place of work
Who are obliged to support each other, under the law? (art.195)
1. The spouses;
2. Legitimate ascendants and descendants
3. Parents and their legitimate children and the legitimate and illegitimate children of the latter;
4. Parents and their illegitimate children and the legitimate and illegitimate children of the latter;
5. Legitimate brothers and sisters, whether of the full or half-blood
6. (art.196) Brothers and sisters not legitimately related, whether full or half blood, are likewise bound to support each other EXCEPT only when the need for support of the brother or sister,
being of age, is due to a cause imputable to the claimant’s fault or negligence
Whenever two or more persons are obliged to give support, the following persons shall be called to the obligation in the order herein provided:
1. The Spouse;
2. The descendants in the nearest degree
3. The ascendants in the nearest degree; and
4. The brothers and sisters
The order for support may be disregarded when:
a. When the father or mother of a child under the age of majority unjustly refuses to support or fails to give support to the child when urgently needed by the latter, any third person may furnish
support to the needy individual, with a right of reimbursement from the person obliged to give a support (art207).
When shall be the separate property of a person obliged to give support be answerable?
(art.197)
GR: The separate property of a person obliged to give support shall be answerable when it is for the support
of: a. Legitimate ascendants;
EX: when the obligor (person obliged to give support) has no separate property. In which case the absolute community or the conjugal partnership, if financially capable, shall advance the support.
Effect: the support given which was taken from the absolute community or the conjugal partnership shall be deducted from the share of the spouse obliged upon the liquidation of the absolute
community or of the conjugal partnership
(art.198) When shall be the property of the absolute community or the conjugal partnership be answerable for support? It shall be answerable for the support of the spouses and their
children during the proceedings for:
a. Legal separation
b. Annulment of marriage
c. Declaration of nullity of marriage
Effects of granting the petition:
1. After final judgment granting the petition, the obligation of mutual support between the spouses ceases (applicable only in cases of
annulment or nullity of marriage);
2. In case of legal separation, the court may order that the guilty spouse shall give support to the innocent one, specifying the terms of
such order
Art.200 –
When 2 or more persons obliged to give support; RULE –
EX: the judge may order only one of them to furnish the support provisionally, without prejudice to his right to claim from the other obligors the share due from them, :
When 2 or more persons are recipient from one and the same person – RULE
When 2 or more persons are recipient at the same time claim support from one and the same person legally obliged to give it, should the latter not have sufficient means to satisfy all claims, the claims
may be satisfied from the following in the order provided:
a. The spouse
b. The descendants in the nearest degree
c. The ascendants in the nearest degree, and
d. The brothers and sisters
Should the concurrent obligees be the spouse and a child (still a minor) subject to parental authority, the child shall be preferred.
(art.203) when shall be the obligation to give support demandable and be paid?
• Demandable – from the time the person who has a right to receive the same needs it for maintenance
• shall not be paid - except from the date of judicial or extrajudicial demand.
Payment shall be made within the first 5 days of each corresponding month. When the recipient dies, his heirs shall not be obliged to return what he has received in advance.
b. maintain in the family dwelling the person who has a right to receive
support
• however, this alternative cannot be availed of in case there is MORAL or LEGAL OBSTACLE thereto.
Art.205. – everything receive as a support or the right to receive a support is not subject to attachment or execution.
GR: The right to receive support under this titled as well as any money or property obtained as such support shall not be levied upon on attachment or execution.
EX: art.208. – in case of contractual support or that given by will, the excess in amount beyond that required for legal support shall be subject to levy on attachment or execution.
Furthermore, contractual support shall be subject to adjustment whenever modification is necessary due to changes in circumstances manifestly beyond the contemplation of the parties.
GR: When, without the knowledge of the person obliged to give support, it is given by a stranger, the latter shall have a right to claim the same from the former;
EX: unless it appears that he gave it without any intention of being reimbursed.
Art. 207.
When the person obliged to support another unjustly refuses or fails to give support when urgently needed by the
latter,
• any third person may furnish support to the needy individual
• with the right of reimbursement from the person obliged to give support
this article shall apply particularly when the father or mother of a child under the age of majority unjustly refuses to support or fails to give support to the child when urgently
needed.
Art. 208.
In case of contractual support or that given by will, the excess in amount beyond that required for legal support shall be subject to levy on attachment or execution.
Furthermore, contractual support shall be subject to adjustment whenever modification is necessary due to changes in circumstances manifestly beyond the contemplation of the parties.
Section 1. Application
At the commencement of the property action or proceeding, or at any time prior to the judgment or final order, a verified application for support pendente lite may be filed by any party
stating the grounds for the claim and the financial conditions of both parties, and accompanied by affidavits, depositions or other authentic documents in support thereof.
When to file?
• At the commencement of the proper action or proceeding; or
• At any time prior to the judgment or final order
How to file?
1. By filing a verified application for support pendente lite; the application shall state:
The application shall be accompanied by affidavits, depositions or other authentic documents in support thereof
2. A copy of the application and all supporting documents shall be served upon the adverse party
3. The adverse party, upon service thereof, shall have 5 days to comment thereon, unless a different period is fixed by the court upon his motion
4. The comment shall be VERIFIED and shall be accompanied by affidavits, depositions or other authentic documents in support thereof.
5. The application shall be set for hearing and a hearing shall be conducted;
When shall be the application be set for hearing?
6. The court then shall determine. If the application is granted, the court shall issue an order where it shall fix the amount of money to be provisionally paid as support. If the application is denied,
the principal case, shall be tried and decided as early as possible.
1. When the right to support is put in issue in the pleadings or the fact from which the right to support arises has not been established, the court cannot grant support pendente lite;
• the minor who alleges that he is the son of the defendant must first prove his civil status as such son (Fransico vs Zandueta, 61 Phil 752).
• A woman alleging to be the wife of the defendant, brought an action for support. The rules only grant the right to alimony to a wife. This status not appearing by a final judgment, the court is
without jurisdiction to make any order in the matter (Yangco vs Phode, 1 Phil 404).
2. When the main action is for the Recovery of the possession of a property; it is not considered as the proper action contemplated by the rules (coquia vs Baltazar, Dec. 29, 1949).
3. When there was no complete hearing of the application as the defendant was not given an opportunity to overcome the application by presenting his defense; the case should be remanded to the
lower court for further reception of evidence (Mangoma vs Macadaeg, Dec. 10,1951).
4. Arroyo vs. Vazquez de Arroyo (42 Phil. 54), where the charges of cruelty were found to be unproved or insufficient
“In view of the poverty of herein private respondents, "it would be a travesty of justice" to refuse them support until the decision of the trial judge "is sustained on
appeal."
Section 2. Comment
• Copy of the application and all supporting documents shall be served upon the adverse party
• The adverse party shall have 5 days to COMMENT thereon unless a different period is fixed by the court upon his motion
• The COMMENT shall be VERIFIED and shall accompanied by: a. affidavits
Section 3.
Hearing
• The application shall be set for hearing not more than 3 days:
a. after the comment is filed, or
b. after the expiration of the period for its filing
• The facts in issue shall be proved in the same manner as is provided for evidence on motion.
Section 4. Order
• the court shall:
1. determine provisionally the
pertinent facts
2. render orders as justice and
equity may require
All having due regard to the:
1. probable outcome of the case and
2. such other circumstances as may aid in the proper resolution of the question involved
• if the application is DENIED 1. the principal case shall be tried and decided as early as possible
“Under this provision (Sec.4), a court may temporarily grant support pendente lite prior to the rendition of judgment or final order. Because of its provisional nature, a court does not need to
delve fully into the merits of the case before it can settle an application for this relief. All that a court is tasked to do is determine the kind and amount of evidence which may suffice to enable it to
justly resolve the application. It is enough that the facts be established by affidavits or other documentary evidence appearing in the record.”
If the adverse party fails to comply with an order granting support Pendente lite –
a. the court shall, motu proprio, or upon motion, issue an order of execution against him, without prejudice to his liability for contempt
• any third person who furnished that support to the applicant may, after due notice and hearing in the same case, obtain a WRIT OF EXECUTION to enforce his right of reimbursement against the
person
ordered to provide such support
The accused may be ordered to provide support pendente lite to the child born to the offended party allegedly because of the crime when:
• there is a criminal action where the civil liability includes support for the offspring as a consequence of the crime AND
• the civil aspect thereof has not been waived, reserved or instituted prior to its filing
Who may file an application in such instance?
The application may be filed successively during the pendency of the case, by:
Section 7. Restitution
When person providing support pendente lite is found by judgment or final order of court that he is not liable thereof;
• the court shall order the recipient thereof to return to the former the amounts already paid with legal interest from the dates of actual payment
• without prejudice to the right of the recipient to obtain reimbursement in a separate action from the person legally obliged to give the support.
If the recipient failed to reimburse the amount:
• the person who provided the same may likewise seek reimbursement thereof in a separate action from the person legally obliged to give such support
Interpleader Intervention
1. A special civil action, independent and 1. Accessory, ancillary and depends upon the
original existence of the main action
2. Commence by filing a complaint 2. Commenced by filing a motion to intervene
3. Filed by a person who has no interest in the 3. Filed by a person who has a legal interest in
subject matter of the action or if he has an any of the following:
interest, the same is not disputed by the • Subject matter of litigation
claimants. • Success of either of the parties
• Success of both of the parties
• He may be adversely affected by the
disposition or distribution of property in
the judgment
4. Defendants are brought into the action only 4. If a complaint-in-intervention is filed, the
because they are impleaded as such in the defendants are already parties to the main
complaint action not because of the intervention but
because of the original suit.
Interpleader will not lie when 2 defendants has separate and distinct adverse claim. And there being no conflicting claims against the respondent, a complaint of interpleader may be dismissed
for lack of cause of action.
Facts: X and Y (petitioners) are in peaceful, open and adverse possession of two different parcels of foreshore lands of different areas, adjoining each other, situated in Malangas, Zamboanga del Sur.
X and Y built their respective commercial building on their respective land property. However, a fire razed their building. Here comes A and B (respondents) who takes possession and entered into
the subject land. Respondents constructed a building of their own. The building was so built that the lands previously occupied by the petitioners (X and Y) were encroached upon.
Petitioners respectively filed an action for forcible entry against respondent with the court. Both petitioners prayed that respondent should vacate the portion of their respective property which was
encroached upon when they erected their building.
While the two cases were pending, respondent filed a complaint for interpleader alleging that the X and Y has conflicting interest, since they all claimed to be entitled to the possession of the lot in
question and they (respondents) could not determine without hazard to themselves who of defendants was entitled to the possession.
Ruling: The action for interpleader will not prosper. Petitioners did not have any conflicting claims against respondent. Their respective claim was separate and distinct from each other. De Camilo
only wanted the respondents to vacate that portion of her property which was encroached upon by them when they erected their building. Petitioner claimed possession of two different parcels of land
of different areas, adjoining each other. They only wanted the respondent to vacate that portion of their respective property which was encroached upon by them when they (respondentst) erected
their building. Hence, absence of the requirements for action of interpleader, the compliant of interpleader may be dismissed for lack of cause of action.
Wack-Wack Golf v. Lee Won G.R. No. L-23851, March 26, 1976
The interpleader suit cannot prosper because the Petitioner had already been made independently liable in Civil Case No. 26044 and, therefore, its present application for interpleader would in
effect be a collateral attack upon the final judgment in the said civil case.
Facts: Wack Wack Golf & Country Club Inc., operating under Philippine laws, filed a complaint to compel Lee and Tan (claimants) to interplead and litigate their conflicting claims upon the
ownership of its membership fee certificates 201. The complaint further alleged that Lee claims ownership of the subject matter by virtue of decision rendered in a civil case 26044 of the CFI Manila
and that Tan claims to be a lawful owner of its aforesaid membership fee certificate 201 by virtue of membership fee certificate 201-serial no. 1199 issued to him. Defendants filed their separate
motion to dismissed claims to be a lawful owner of its aforesaid membership fee certificate 201 by virtue of membership fee certificate 201-serial no. 1199 issued to him. Defendants filed their
separate motion to dismissed the complaint on the ground that the complaint fails to state a cause of action and bar by prescription.
Ruling: The interpleader will not prosper. It has been held that an action of interpleader is too late when filed after judgment has been rendered against him in favor of one of the contending parties,
especially where he (plaintiff) he had prior notice of the conflicting claims prior to the rendition of judgment and neglected the opportunity to implead the adverse claimants. Because once judgment
is obtained against him by one claimant he becomes liable to the latter.
Moreover, a successful litigant cannot later be impleaded by his defeated adversary in an interpleader suit and compelled to prove his claim anew against other adverse claimants, as that would in
effect be a collateral attack upon the judgment. The interpleader suit cannot prosper because the Petitioner had already been made independently liable in Civil Case No. 26044 and, therefore, its
present application for interpleader would in effect be a collateral attack upon the final judgment in the said civil case.
The reason for the interpleader action ceased when the MeTC rendered judgment in Civil Case No. 6202 whereby the court directed METROCAN to pay LEYCON whatever rentals due on the
subject premises. While RCBC, not being a party to Civil Case No. 6202, could not be bound by the judgment therein, METROCAN is bound by the MeTC decision. Facts: METROCAN is the
lessee of the property from LEYCON, lessor, which property is subject to the contract of mortgage entered into between RCBC and LEYCON.
METROCAN filed the interpleader action (Civil Case No. 4398-V-94) because it was unsure which between LEYCON and RCBC was entitled to receive the payment of monthly rentals on the
subject property. LEYCON was claiming payment of the rentals as lessor of the property while RCBC was making a demand by virtue of the consolidation of the title of the property in its name.
Prior to the action of interpleader, LEYCON filed an action for Unlawful Detainer against METROCAN docket as civil case no. 6202. In said civil case, the court dismissed the complaint for unlawful
detainer in view of an amicable settlement they entered and ordered METROCAN to pay LEYCON the rentals.
Comes now METROCAN moving for the dismissal of the interpleader action (civil case no. 4398-V-94) because there is no need to pursue such cause of action because it is already moot and
academic. RCBC on the other hand wants to prove his claim in the interpleader action filed, thus, compelling METROCAN to pursue the interpleader case.
Ruling: The interpleader case should no longer continue. the reason for the interpleader action ceased when the MeTC rendered judgment in Civil Case No. 6202 whereby the court directed
METROCAN to pay LEYCON "whatever rentals due on the subject premises x x x." While RCBC, not being a party to Civil Case No. 6202, could not be bound by the judgment therein, METROCAN
is bound by the MeTC decision. When the decision in Civil Case No. 6202 became final and executory, METROCAN has no other alternative left but to pay the rentals to LEYCON. Precisely because
there was already a judicial fiat to METROCAN, there was no more reason to continue with Civil Case No. 4398-V-94. Thus, METROCAN moved for the dismissal of the interpleader action not
because it is no longer interested but because there is no more need for it to pursue such cause of action.
It should be remembered that an action of interpleader is afforded to protect a person not against double liability but against double vexation in respect of one liability. It requires, as an indespensable
requisite, that "conflicting claims upon the same subject matter are or may be made against the plaintiff-in-interpleader who claims no interest whatever in the subject matter or an interest which in
whole or in part is not disputed by the claimants.” The decision in Civil Case No. 6202 resolved the conflicting claims insofar as payment of rentals was concerned.
Petitioner is correct in saying that it is not bound by the decision in Civil Case No. 6202. It is not a party thereto. However, it could not compel METROCAN to pursue Civil Case No. 4398-V-94.
RCBC has other avenues to prove its claim. Is not bereft of other legal remedies. In fact, he issue of ownership can very well be threshed out in Civil Case No. 4037-V-93, the case for Nullification
of Extrajudicial foreclosure Sale and Damages filed by LEYCON against RCBC.
Sec.3. Summons
Summons shall be served upon the conflicting claimants, together with a copy of the complaint and order.
Sec.6. Determination –
After the pleadings of the conflicting claimants have been filed, and pre-trial has been conducted in accordance with the Rules, the court shall proceed to determine, their respective rights and
adjudicate their several claims.
Facts: Philippine Realty Corporation (PRC) owns a parcel of land. The same was leased to the petitioner Maglente. In their leased contract, it provides that if PRC sell the property, petitioner shall
have a right of first refusal (given the first priority to buy it). When the leased contract was about to expire, PRC sent letter offering to sell the property to petitioner. the latter response to the letter,
and intimated that she would exercise her right of first refusal. However, on a later date, PRC receive an offer from respondent that they will buy the land.
PRC filed an interpleader action with RTC against the claimants. The RTC ruled in favor of the petitioner declaring that she had the right to purchase the land and order PRC to execute the
corresponding the contract of sale in favor of the petitioner.
At the rendition of said judgment, the respondents have been occupying the said property. petitioner then filed for the issuance of writ of possession. However, respondents objected on the ground
that the trial court’s decision on the interpleader case merely resolved petitioners’ right to purchase the leased property but did not declare them as the owners entitled to possession.
Issue: Whether petitioner is entitled to a writ of possession being adjudged in the interpleader case as the rightful parties to purchase the said land.
Ruling: No. petitioner are not entitled to a writ of possession. Petitioners’ argument that the trial court’s writ of execution in the interpleader case carried with it the corollary right to a writ of
possession is without merit. A writ of possession complements the writ of execution only when the right of possession or ownership has been validly determined in a case directly relating to either.
The interpleader case obviously did not delve into that issue.
Furthermore, the rule is that the enforcement of a judgment may not vary or alter the tenor of the judgment but must strictly conform to it. It should be in harmony with the judgment that gives it life
and not exceed it. We thus cannot fault the trial court for refusing to issue a writ of possession to petitioners as its issuance would not be in conformity with the trial court’s judgment in the interpleader
case.
Finally, petitioners cannot recover possession of the property via a mere motion. They must file the appropriate action in court against respondents to recover possession. While this remedy can delay
their recovery, this Court cannot permit an abbreviated method without subverting the rules and processes established for the orderly administration of justice.
Sec.7. Docket and other lawful fees –
The docket and other lawful fees paid by the party who filed a complaint of interpleader, as well as the costs and litigation expenses, shall constitute a lien or charge upon the subject matter of the
action, unless the court shall order otherwise.
1. RTC –
• Subject matter of the action is personal property, valued more than P300,000 outside Metro Manila and in Metro Manila, at more than P400,000
• Subject matter of the action REAL PROPERTY with an assessed value exceeding P20,000 outside Manila, and in Manila, exceeding P50,000
Civil actions which involve titled to, or possession of, real property or any interest therein: Based on Assessed Value
• Outside MM – assessed value does not exceed P20,000
• In MM – assessed value does not exceed P50,000
Note: where the conflicting claims involve the right to receive a particular sum, the amount of sum claimed determines jurisdiction.
d. An action for interpleader to determine who between the defendants is entitled to receive the amount of P190,000 from the plaintiff.
Suggested Answer:
The action shall be filed in the metropolitan court in Metro Manila. The amount of P190,000 not being in excess
of 400,000 is within the jurisdiction of said court.
Declaratory relief refers to a judgment of a court which determines the rights of parties without ordering anything be done or awarding damages. By seeking a declaratory judgment, the party making
the request is seeking for an official declaration of the status of a matter in controversy. Optimally, the resolution of the rights of the parties involved will prevent further litigation. For example, a
party to a contract may seek the legal interpretation of a contract to determine the parties' rights, or an insured may seek a determination of insurance coverage under a policy.
Note: The court cannot award any affirmative relief in a petition for declaratory relief because the petition merely seeks the construction of contract, will, deed, or statute to determine the rights of
the parties. Corollary is the rule that such an action must be justified, as no other adequate relief or remedy is available under the circumstances.
1. Petition for
Declaratory relief
2. Petition for similar
remedies
DECLARATORY RELIEF SIMILAR REMEDIES
Personal/amount of demand:
1. RTC – if it exceeds P300,000, outside
MM; if it exceeds P400,000, in MM
2. MTC – if otherwise.
Note: 1. An action for declaratory relief should be filed by a person interested under a deed, a will, a contract or other written instrument, and whose rights are affected by a statute, an executive
order, a regulation or an ordinance. The relief sought under this remedy includes the interpretation and determination of the validity of the written instrument and the judicial declaration of the
parties’ rights or duties thereunder.
2. Since the purpose of an action for declaratory relief is to secure an authoritative statement of the rights and obligations of the parties under a statute, deed, or contract for their guidance in the
enforcement thereof, or compliance therewith, and not to settle issues arising from an alleged breach thereof, it may be entertained only before the breach or violation of the statute, deed, or
contract to which it refers.
3. Where the law or contract has already been contravened prior to the filing of an action for declaratory relief, the courts can no longer assume jurisdiction over the action. In other words, a court
has no more jurisdiction over an action for declaratory relief if its subject has already been infringed or transgressed before the institution of the action.
4. The special civil action of declaratory relief falls under the exclusive jurisdiction of the Regional Trial Court.5 It is not among the actions within the original jurisdiction of the Supreme Court
even if only questions of law are involved.
Requisites for the petition –
Requisites of an action for declaratory relief, as follows:
1. the subject matter of the controversy must be a deed, will, contract or other written instrument, statute, executive order or regulation, or ordinance;
2. the terms of said documents and the validity thereof are doubtful and require judicial construction;
3. there must have been no breach of the documents in question;
4. there must be an actual justiciable controversy or the "ripening seeds" of one between persons whose interests are adverse; 5. the issue must be ripe for judicial determination; and
6. adequate relief is not available through other means or other forms of action or proceeding
Sec.2. Parties –
All persons who have or claim any interest which would be affected by the declaration shall be made parties; and no declaration shall, except as otherwise provide in these rules, prejudice the rights
of persons not parties to the action.
Except falling under the 2 paragraph of section 1 of this rule, the court, motuproprio or upon motion, may refuse to exercise the power to declare the rights and to construe instruments in any case
where:
1. a decision would not terminate the uncertainty or controversy which gave rise to
the action
2. the declaration or construction is not necessary and proper under the
circumstances
Sec.6. Conversion into ordinary action –
GR: action for declaratory relief shall be filed before a breach or violation of instrument concerned.
Effect if filed after violation or breach:
• a court has no more jurisdiction over an action for declaratory relief if its subject has already been infringed or transgressed before the
institution of the action.
But If the action is institution before a breach or violation and before the final termination of the case, a breach or violation of an instrument or a statute, executive order or regulation, ordinance,
or any But If the action is institution before a breach or violation and before the final termination of the case, a breach or violation of an instrument or a statute, executive order or regulation,
ordinance, or any other governmental regulation should take place,
• the action may thereupon be converted into an ordinary action, and the parties shall be allowed to file such pleadings as may be necessary or
proper
CASES:
The mandatory provision of the Judiciary Reorganization Act of 1980, as amended, uses the word "shall" and explicitly requires the MTC to exercise exclusive original jurisdiction over all civil
actions which involve title to or possession of real property where the assessed value does not exceed P20,000.00.
Facts: Petitioners filed before the RTC their Complaint for Reivindicacion, Quieting of Title, and Damagesagainst respondents. Petitioners alleged in their Complaint that they are the owners of a
parcel
of land covered by Transfer Certificate of Title (TCT) No. T-127937situated in Tuguegarao City (subject property). Petitioners
inherited the subject property from Anastacio Danao (Anastacio), who died
intestate.During the lifetime of Anastacio, he had allowed Consuelo Pauig (Consuelo), who was married to Joaquin Boncad, to build on and occupy the southern portion of the subject
property. Anastacio and Consuelo agreed that the latter would vacate the said land at any time that Anastacio and his heirs might need it.
Before respondents could file their answer, the RTC issued an Order dismissing petitioners’ Complaint on the ground of lack of jurisdiction. The RTC referred to Republic Act No. 7691, amending
Batas Pambansa Blg. 129, otherwise known as the Judiciary Reorganization Act of 1980, which vests the RTC with jurisdiction over real actions, where the assessed value of the property involved
exceeds P20,000.00. It found that the subject property had a value of less than P20,000.00; hence, petitioners’ action to recover the same was outside the jurisdiction of the RTC.
Issue: Did the RTC committed grave abuse of discretion in dismissing the complaint of the petitioners motu proprio due to lack of jurisdiction?
Ruling: The RTC did not commit any grave abuse of discretion. Petitioners’ Complaint contained sufficient allegations for an accion reivindicatoria. Jurisdiction over such an action would depend
on the value of the property involved. Given that the subject property herein is valued only at P410.00, then the MTC, not the RTC, has jurisdiction over an action to recover the same. The RTC,
therefore, did not commit grave abuse of discretion in dismissing, without prejudice, petitioners’ Complaint in Civil Case No. 6868 for lack of jurisdiction.
Moreover, although an action for the reformation of an instrument, to quiet title to real property or remove clouds or to consolidate ownership under Article 1607 of the Civil Code “may” be brought
before the appropriate RTC, the use of the word "may" in a statute denotes that the provision is merely permissive and indicates a mere possibility, an opportunity or an option. In contrast, the
mandatory provision of the Judiciary Reorganization Act of 1980, as amended, uses the word "shall" and explicitly requires the MTC to exercise exclusive original jurisdiction over all civil actions
which involve title to or possession of real property where the assessed value does not exceed P20,000.00.
Facts: The petitioner conducted an investigation on the alleged scam on the Public-Estate Authority – Amari Coastal Bay Development Corporation. The purpose of the investigation is to determine
whether there had been irregularity in issuing some checks which where deposited to several financial institution. Private respondent Lourdes Marquez was required to produce several documents
for inspection and the inspection shall be done in camera wherein the bank documents will be examine without bringing them outside the bank premises.
Private respondent failed to comply with the orders averring that under RA No. 1405, otherwise known as the Bank Secrecy Law, she had the legal obligation not to divulge any information relative
to all bank deposits within the Philippines. The Office of the Ombudsman ordered private respondent to show cause why she should not be cited for contempt. But instead of complying with the
order she filed a petition for declaratory relief with an application for TRO and preliminary injunction before the RTC, presided by Hon. Ibay.
In this case, the controversy concerns the extent of the power of petitioner to examine bank accounts under Section 15 (8) of R.A. 6770 vis-à-vis the duty of banks under Republic Act 1405 not to
divulge any information relative to deposits of whatever nature. The interests of the parties are adverse considering the antagonistic assertion of a legal right on one hand, that is the power of
Ombudsman to examine bank deposits, and on the other, the denial thereof apparently by private respondent who refused to allow petitioner to inspect in camera certain bank accounts. The party
seeking relief, private respondent herein, asserts a legal interest in the controversy.
Issue: Whether or not the issue invoked is ripe for judicial determination as litigation.
Ruling: The issue invoked is ripe for judicial determination as litigation is inevitable. Note that petitioner has threatened private respondent with “indirect contempt” and “obstruction” charges should
the latter not comply with its order.
Circumstances considered, the public respondent has jurisdiction to take cognizance of the petition for declaratory relief. Nor can it be said that public respondent gravely abused its discretion in
doing so. Thus, the Supreme Court dismissed the petition for lack of merit.
In any event, the relief being sought by private respondent in her action for declaratory relief before the RTC of Makati City has been squarely addressed by the decision in Marquez vs. Desierto. In
that case, it was ruled that before an in camera inspection of bank accounts may be allowed, there must be a pending case before a court of competent jurisdiction. Further, the account must be clearly
identified, and the inspection limited to the subject matter of the pending case before the court of competent jurisdiction. The bank personnel and the account holder must be notified to be present
during the inspection, and such inspection may cover only the account identified in the pending case. In the present case, since there is no pending litigation yet before a court of competent authority,
but only an investigation by the Ombudsman on the so-called “scam”, any order for the opening of the bank account for inspection is clearly premature and legally unjustified.
Dela Llana vs Alba GR No. L-57883, March 12, 1982
In 1981, BP 129, entitled “An Act Reorganizing the Judiciary, Appropriating Funds Therefor and for Other Purposes”, was passed. De la Llana was assailing its validity because, first of all, he would
be one of the judges that would be removed because of the reorganization and second, he said such law would contravene the constitutional provision which provides the security of tenure of judges
of the courts, He averred that only the SC can remove judges NOT Congress.
That is the fundamental issue raised in this proceeding, erroneously entitled Petition for Declaratory Relief and/or for Prohibition considered by this Court as an action for prohibited petition, seeking
to enjoin respondent Minister of the Budget, respondent Chairman of the Commission on Audit, and respondent Minister of Justice from taking any action implementing Batas Pambansa Blg. 129.
ISSUE: Whether or not Judge De La Llana can be validly removed by the legislature by such statute (BP 129).
HELD: The SC ruled the following way: “Moreover, this Court is empowered “to discipline judges of inferior courts and, by a vote of at least eight members, order their dismissal.” Thus it possesses
the competence to remove judges. Under the Judiciary Act, it was the President who was vested with such power. Removal is, of course, to be distinguished from termination by virtue of the abolition
of the office. There can be no tenure to a non-existent office. After the abolition, there is in law no occupant. In case of removal, there is an office with an occupant who would thereby lose his position.
It is in that sense that from the standpoint of strict law, the question of any impairment of security of tenure does not arise. Nonetheless, for the incumbents of inferior courts abolished, the effect is
one of separation. As to its effect, no distinction exists between removal and the abolition of the office. Realistically, it is devoid of significance. He ceases to be a member of the judiciary. In the
implementation of the assailed legislation, therefore, it would be in accordance with accepted principles of constitutional construction that as far as incumbent justices and judges are concerned,
this Court be consulted and that its view be accorded the fullest consideration. No fear need be entertained that there is a failure to accord respect to the basic principle that this Court does not
render advisory opinions.
No question of law is involved. If such were the case, certainly this Court could not have its say prior to the action taken by either of the two departments. Even then, it could do so but only by way
of deciding a case where the matter has been put in issue. Neither is there any intrusion into who shall be appointed to the vacant positions created by the reorganization. That remains in the hands
of the Executive to whom it properly belongs. There is no departure therefore from the tried and tested ways of judicial power. Rather what is sought to be achieved by this liberal interpretation is to
preclude any plausibility to the charge that in the exercise of the conceded power of reorganizing the inferior courts, the power of removal of the present incumbents vested in this Tribunal is ignored
or disregarded. The challenged Act would thus be free from any unconstitutional taint, even one not readily discernible except to those predisposed to view it with distrust. Moreover, such a
construction would be in accordance with the basic principle that in the choice of alternatives between one which would save and another which would invalidate a statute, the former is to be
preferred.”
A party is not barred from instituting the petition for declaratory relief where there is no showing that respondent committed an act constituting a breach of the subject contract of lease.
Facts: Petitioners advised respondent that the former shall assess and collect Value Added Tax (VAT) on its monthly rentals. In response, respondent contended that VAT may not be imposed as
the rentals fixed in the contract of lease were supposed to include the VAT therein, considering that their contract was executed on May 1, 1997 when the VAT law had long been in effect.
On January 26, 1998, respondent received another letter from petitioners informing the former that its monthly rental should be increased by 73% pursuant to condition No. 7 of the contract and
Article 1250 of the Civil Code. Respondent opposed petitioners’ demand and insisted that there was no extraordinary inflation to warrant the application of Article 1250 in light of the pronouncement
of this Court in various cases.
Respondent refused to pay the VAT and adjusted rentals as demanded by petitioners but continued to pay the stipulated amount set forth in their contract.
Issue: Is the respondent barred from instituting before the trial court the petition for declaratory relief?
Ruling: After petitioners demanded payment of adjusted rentals and in the months that followed, respondent complied with the terms and conditions set forth in their contract of lease by paying the
rentals stipulated therein. Respondent religiously fulfilled its obligations to petitioners even during the pendency of the present suit. There is no showing that respondent committed an act constituting
a breach of the subject contract of lease. Thus, respondent is not barred from instituting before the trial court the petition for declaratory relief.
Facts: Plaintiff Juan Edades brought this action before the Court of First Instance of Pangasinan seeking a declaratory judgment on his hereditary rights in the property of his alleged father and
incidentally the recognition of his status as an illegitimate son of Emigdio Edades. The Edades siblings and their father (who was still alive) filed a motion to dismiss on the ground that the complaint
did not state facts sufficient to constitute a cause of action. The motion to dismiss was sustained by CFI Pangasinan, which held that an action for declaratory relief just for purpose of clearing away
doubt, uncertainty, or insecurity to the one’s status or rights would be improper. Juan Edades appealed.
Issue: Whether or not the present action seeking a declaratory judgment on his hereditary rights in the property of his alleged father can be maintained.
Ruling: Yes, but not as an action for declaratory relief. The case does not fall under the authorized causes for an action for declaratory relief. It does not concern a deed, will, contract or other written
instrument. It does not affect a statute or ordinance whose construction or validity is questioned.
The case is neither predicated on a justiciable controversy, considering that the father is still alive and there are no successional rights yet to be resolved.
But the action is not merely aimed to determine the hereditary right of Juan. It has also the aim to establish his status as an illegitimate child. Since this is his right, the action can prosper.
Thus, the Supreme Court remanded the case to the trial court for further proceedings.
Bar Exam (1998)
Q: A student files action for declaratory relief against his school to determine whether he deserves to graduate with Latin honors. Is this action tenable? [3%]
A: No. The action for declaratory relief is not tenable. Whether the student deserves to graduate with Latin honors does not fall within matters subject to declaratory relief, namely, a deed, will,
contract or other written instrument, or a statute, executive order or regulation, ordinance, or any other governmental regulation. (Sec. 1 of Rule 63, 1997 Rules of Civil Procedure)
Rule – 64
Review of Judgments and Final Orders or Resolutions of the COMELEC and the COA
Constitutional Commission/body:
1. COA
2. COMELEC
3. CSC
Sec.1. Scope –
This rule shall govern the review of judgment and final orders or resolutions of:
a. The Commission on Elections and
b. The Commission on Audit
A judgment or final order resolution of the Commission on Election and the Commission on Audit may be brought by the aggrieved party to the Supreme Court on certiorari under Rule 65, except as
hereinafter provided (within 30 not 60 days from notice)
Sec.3. Time to file petition –
The petitioner shall be filed within 30 days from notice of the judgment, or final order or resolution sought to be reviewed.
REMEMBER: the failure of petitioner to comply with any of the foregoing requirements shall be sufficient GROUND FOR THE DISMISSAL of the petition.
Note: no other pleading may be filed by any party unless required or allowed by the Court.
Ex: unless the court sets the case for oral argument, or requires the parties to submit memoranda.
Facts: Petitioner – Jocelyn Limkaichong was aspiring to become a member of the House of Representative filed her COC with COMELEC for May 2007 Election.
The private repondent filed a petition for her disqualification on the ground that she lacked the citizenship requirement because there was a substantial and procedural defect in her father’s naturalization
proceeding as the OSG, at that time, was not furnished copy of the material order of the trial court thereby depriving the OSG of its participation in all stages of the proceedings whose appearance for
the STATE is necessary. Lacking the participation of this indispensable party, the proceeding is null and void; hence no right could arise therefrom.
Petitioner claimed that she is a natural-born Filipino citizen. Her Chinese-Father was naturalized to Philippine Citizenship in accordance with law. She was born to a naturalized-Filipino Father and
a Natural-born Mother whose Philippine citizenship was reacquired when her Father was legally naturalized. Further she avers that the petition should be dismissed because it was in a nature of
collateral attack of her and her father’s citizenship in contravention to the well-established rule that attack on one’s citizenship may be made through a direct action for its nullity.
After the casting, counting and canvassing of votes, the petitioner emerged as the winner. The private respondent later on filed a motion to suspend the proclamation of the petitioner as the winning
candidate.
nd
May 17, 2007 - The COMELEC 2 division granted the petition for disqualification and directed the PBOC to strike out her name from the list eligible candidates and suspend her proclamation.
May 18, 2007 – COMELEC en banc issued resolution no. Resolution No. 8062 adopting the policy-guidelines of not suspending the proclamation of winning candidates with pending
disqualification cases.
May 20, 2007 – Petitioner filed a motion for reconsideration and a motion to lift the order suspending her proclamation.
May 22, 2007 – Petitioner filed another motion for lifting the order suspending her proclamation pursuant to Resolution No.
8062
May 25, 2007 – the PBOC reconvened and proclaimed petitioner as the winner in compliance with Resolution No. 8602.
st
On May 30, 2007 – The private respondent filed with the COMELEC 1 division a petition to nullify and annul the proclamation of petitioner, stating among others that the proclamation of petitioner
nd violated the May 17, 2007 declaration
of the COMELEC 2 division suspending her proclamation.
st
COMELEC 1 division dismissed the petition filed by the private respondent on the ground that her disqualification case were not yet final and the COMELEC now is divested with its jurisdiction
over the matter because of her proclamation.
nd
June 29, 2007 – COMELEC en banc denied the petitioner’s motion for reconsideration of the resolution of the COMELEC’s 2 division in the disqualification case.
nd
August 1, 2007 – petitioner filed a petition for certiorari under rule 65 in relation to Rule 64 within 30 days from notice praying for the annulment of the resolution of the COMELEC 2 division, and
the resolution of the COMELEC en Banc in the disqualification case for having been issued with grave abuse of discretion amounting to lack amounting to lack of jurisdiction. She averred that
since she was already proclaimed on May 25, 2007, had assumed office, and had started to perform the function as the Representative of the first district of Negros Oriental, the COMELEC has lost
its jurisdiction and it is now the HRET which has jurisdiction over the issue involving her qualifications for the office.
Issue: Whether or not the remedy of petition for certiorari under rules 65 in relation to rule 64 was proper?
Ruling: Yes. The filing of petition for certiorari under Rule 65 in relation to rule 64 was proper. The petitioner’s proclamation was valid. When she timely filed her motion for reconsideration and
lifting
nd the order suspending her proclamation on May 20,
2007, it effectively suspends the execution of the May 17, 2007 resolution of the COMELEC 2 division. Thus, there is no impediment to proclaimed her as the winner.
Section 2, Rule 19 of the COMELEC Rules of Procedure provides:
Sec. 2. Period for Filing Motions for Reconsideration. – A motion to reconsider a decision, resolution, order or ruling of a Division shall be filed within five (5) days from the promulgation thereof.
Such motion, if not pro forma, suspends the execution for implementation of the decision, resolution, order and ruling.
Furthermore, it has long been established that once a winning candidate has been proclaimed, taken his oath, assumed office as a member of the House of Representative, the jurisdiction of the
COMELEC over cases relating to his qualification ends, and the jurisdiction of the House of Representatives Electoral Tribunal Begins. And mere allegation as to the invalidity of her proclamation
does not divest the Electoral Tribunal of its Jurisdiction.
Unless there is patent nullity of the proclamation as it was held in the case of Codilla vs De Venecia, 393 SCRA 639.
Rule 65
Certiorari, Prohibition and
Mandamus
Note:
General Rule: Well established doctrine of the courts provides that the rules of procedures are used to help secure, not override, substantial justice. But the doctrine does not warrant wanton disregard
of the Rules of Courts, otherwise no orderly administration of justice can be maintained.
Purpose Designed to correct errors To keep the lower court within Commands a
of the limits of its jurisdiction in tribunal,
jurisdiction not errors of order to maintain the corporation,
judgment administration of justice in board, or person
orderly channels. to do the act
Commanding the respondent to required to be
Modifying or annulling a
desist from further proceeding in done when it or
proceeding.
the action or matter specified in he unlawfully
the petition. neglects an act
which the law
specifically
enjoins or
unlawfully
excludes another
from the use and
enjoyment of a
right or office to
which such other
is entitled
When The rules provides:
Defeated Certiorari/Prohibition : “and there is No appeal or any other plain, speedy, and
adequate remedy in the ordinary course of law”
Mandamus : “and there is no other plain, speedy and adequate
remedy in the ordinary course of law (exhaustion of
administrative remedy)”
Take note of the
difference.
The special civil action of certiorari and prohibition is defeated not by the
existence but by the adequacy of a remedy by appeal. When other remedy is
available or sufficient to afford redress, the special civil action under the rules
will not prosper. This is in view of the doctrine of exhaustion of local remedies in
relation also with the hierarchy of courts regarding jurisdiction.
Mandamus may lie even if the remedy by appeal is adequate, provided that local
remedies have been exhausted. Otherwise, it will not prosper.
Note: the Special civil action of petition for certiorari or prohibition may
accordingly be granted where the remedy by appeal is not plain, speedy or
Hierarchy of courts –
Under the constitution, the Supreme Court has original jurisdiction to issue writs of certiorari, mandamus, prohibition, quo warranto, habeas corpus and injunction. But this is not exclusive. Meaning
it is shared by the SC with the RTC and the CA.
Hierarchy of courts principle is an established policy which requires courts of superior rank/level are not allowed, except when there are special and important reasons, to take cognizance cases over
which are shared by courts of inferior level . there is an ordained sequence of recourse to courts vested with concurrent jurisdiction, beginning from the lowest, on to the next highest, and ultimately
to the highest.
The purpose of which is to unclog court dockets and to prevent inordinate demand upon the court’s time and attention which are better devoted to those matters within its exclusive jurisdiction.
GENERAL RULE: Being an interlocutory order, an order denying demurer to evidence is not appealable. Neither can it be the subject of a petition for certiorari.
REMEDY: after such denial, the petitioners should present their evidence and if the decision of the trial judge would be adverse to them, they could raise on appeal the same issues raised in the
demurer.
EXCEPTION: when the denial of demurer (interlocutory order) is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction. A petition on certiorari under rule 65 may be
filed with the appropriate tribunal.
Note: the perfection of an appeal in the manner and within the period prescribed by law is jurisdictional and failure to perfect an appeal renders the judgment final and executory (Mabuhay vs NLRC
, 288 SCRA 1)
When any tribunal, board, or officer exercising judicial or quasi-judicial function has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or in
excess of jurisdiction, and there is no appeal, nor any plain, speedy and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in a 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.
1. NLRC
2. DOJ (justice secretary) rulings – affirming or reversing the resolution of the investigating prosecutor is final and executor. The remedy is to file a petition for certiorari under rule 65 to the
CA not a petition for review under rule 43 (alcaraz vs Gonzalez, September 20, 2006).
3. Tribunal, board, officer exercising judicial or quasi-judicial functions
Decision of the following quasi-judicial body is subject to RULE 43 not RULE 65 (sec.1, rule 43)
–
1. Court of Tax Appeals
2. Civil Service Commission
3. Central Board of Assessment Appeals
4. Securities and Exchange Commission
5. Office of the President
6. Land Registration Authority
7. Social Security Commission
8. Civil Aeronautics Board
9. Bureau of Patents, Trademarks and Technology Transfer
10. National Electrification Administration
11. Energy Regulatory Board
12. National Telecommunication Commission
13. Department of Agrarian Reform under RA no. 6657
14. Government Service Insurance System
15. Employees Compensation Commission
16. Agricultural Inventions Board
17. Insurance Commission
18. Philippine Atomic Energy Commission
19. Board of Investments
20. Construction Industry Arbitration Commission
21. Voluntary arbitrators authorized by law
When the proceedings of any Tribunal, Corporation, Board, Officer or Person whether exercising judicial, quasi-judicial function or ministerial functions, are without or in excess of its or his
jurisdiction, or with grave abuse of discretion amounting to lack or in excess of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of the law, a
jurisdiction, or with grave abuse of discretion amounting to lack or in excess of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of the law, a
person aggrieved thereby may file a verified petition in a proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent to desist from further
proceeding in he action or matters specified therein, or, otherwise grant such incidental reliefs as the law and justice may require.
When any tribunal, corporation, board, officer or person unlawfully neglects to perform 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 plain, speedy, and adequate remedy in the ordinary course of law, the person aggrieved
thereby may file a verified petition in a 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.
Sec.4 When and Where to File the petition –
The petition shall be filed NOT LATER THAN 60 days from notice of judgment, final orders or resolution. In case a motion for reconsideration or new trial is timely filed, whether such motion is
required or not, the petition shall be filed NOT LATER THAN 60 days from the notice of the denial of the motion.
The petition shall be filed with the RTC exercising jurisdiction over the territorial area as defined by the SC, If the petition relates to an act or omission of
a: 1. Municipal trial court
2. Corporation
3. Board
4. Officer, or
5. Person
It may also be filed with the COURT OF APPEALS or with the SANDIGANBAYAN, whether or not the same is in aid of the court’s appellate jurisdiction. The rule used to be that the petition
may be filed with the SANDIGANBAYAN if it is in aid of its appellate jurisdiction but not the petition may be filed in the SB whether or not the same is in aids of its appellate jurisdiction (AM
no. 07-712-SC).
IN election cases involving an act or omission of a MUNICIPAL or REGIONAL trial court, the petition shall be filed exclusively with the COMELEC, in aids of its appellate jurisdiction.
Cases:
Private respondent filed a complaint for illegal dismissal with the Labor Arbiter. The labor arbiter decided in favor of private respondent. Petitioner LMC appeal the decision of the labor arbiter to
the NLRC which reversed the appealed decision. Private Respondent timely filed a motion for reconsideration but was denied. The notice of denial was received on May 6, 2008. Counsel for private
respondent filed with the CA a 15-day period motion for extension of time to file a petition for certiorari under Rule 65. The CA granted the motion and respondent was given a non-extendible 15-
day period within which to file the petition for certiorari. The petitioner LMC assailed the resolution of the CA contending that extensions of time to file a petition for certiorari is no longer allowed
under the rules. Is the petitioner correct?
Ans: Yes. The rule used to be that the grant of an extension of time to file a petition for certiorari under rule 65 was left to the discretion of the court because the rules provide that no extension of
time for filing a petition for certiorari shall be granted except for compelling reason and in no case exceeds 15-days.
but the rules have been amended, (AM no. 07-7-12-SC) which deleted that provision. The filing of motion to extend the time to file a petition for certiorari is no longer allowed under the new rules to
avoid unreasonable delay that would violate the constitutional rights of the parties to speedy disposition of their case.
Lapid vs Laurea –
Spouses Lapid filed complaint for damages against respondents before the RTC. the complaint alleged that the malicious imputations against their son tarnished their good name and reputation. It
further avers that their son was summarily dismissed from the school without them being diligently informed. Petitioner filed a motion to declare the respondent as in default which motion was denied
by the court. a motion for reconsideration of such denial was filed but was denied. a petition for certiorari was filed without indicating the date when the motion for reconsideration was filed. The
CA dismissed the motion. Is the dismissal correct?
ANS: Yes. There are three materials dates that must be stated in a petition for certiorari under rule 65.
1. Date when notice of judgment, final order or resolutions have been received
2. Date when motion for reconsideration or new trial was filed
3. Date when notice of denial thereof was received
Failure to comply with the requirements shall be a sufficient ground for the dismissal of the petition. The requirement is for determining the timeliness of the petition.
Parties
a. Person Aggrieved
Concepcion Jr
vs COMELEC –
591 SCRA 420 –
Petitioner concepcion is an incumbent Barangay Captain of FORBES PARK, Makati City and at the same time the National Chairman of NAMFREL. NAMFREL filed a petition for accreditation to
conduct operation quick with the COMELEC. Petitioner was one of the signatories of the petition. COMELEC in its en banc resolution conditionally grants the petition. The condition provides that
petitioner must be removed from his position and membership of NAMFREL and shall be disqualified to be a part of the in citizens’ arm in view of the passage of Resolution no. 7798 pursuant to EO
no. 94, which provides:
Sec. 3. Prohibition on barangay officials. – No barangay official shall be appointed as member of the Board of Election Inspectors or as official watcher of each duly registered major political party
or any socio-civic, religious, professional or any similar organization of which they may be members.
Aggrieved thereby, petitioner assailed COMELEC’s en banc resolution by filing a petition for certiorari under rule 65. Would the petition prosper?
ANS: No. the petition for certiorari under rule 65 is misused. Petitioner has no personality to file a petition for certiorari because he was not a party to, and the direct party, NAMFREL, did not
question the assailed petition. He is not the party-in-interest who can directly assail the COMELEC’s resolution in an original RULE 65 before this Court.
Under sec.1, Rule 65, an aggrieved party is one who was a party to the original proceedings that gave rise to the original action for certiorari under Rule 65. The petition for certiorari under rule
65 is not available to any person who feels injured by the decision of a tribunal, board or officer exercising judicial or quasi-judicial functions. It would have been another matter if NAMFREL had
filed the present petition with the petitioner as intervenor.
c. Indispensable party
Golangco vs
Fung, 598 SCRA
637
A complaint for the crime of libel was filed against respondent before the RTC. During trial, the prosecution failed to present their witnesses despite the request for a subpoena testifecandum. The
RTC then issued an order terminating the prosecution’s presentation of evidence. The petitioner assailed the order in the CA by filing a petition for certiorari under rule 65 on the ground of grave
abuse of discretion. The petition did not join the PEOPLE of the PHILIPPINES and did not obtain the consent of the OSG. Will the petition for certiorari prosper?
ANS: No. it will not prosper. The petitioner did not join the People of the Philippines as a party in his action for certiorari. The People of the Philippines in criminal proceedings are indispensable
party in a petition for certiorari. The omission is fatal and a sufficient ground for the rejection of the petition.
The petitioner did not also obtained the consent of the Office of the Solicitor General (OSG) or at the very least furnished a copy of the petition to the OSG. The OSG is mandated under the
administrative code (Sec.35,Chapter 12,Title III of
Book IV, EO no. 292) to represent the Government in the Supreme Court and the Court of Appeals in all criminal proceedings.
The court shall issue an order requiring the respondent to comment on the petition within 10 days from receipt of a copy thereof if the petition is sufficient in form and substance to justify the process.
Such order shall be served on the respondent in such manner as the court may direct, together with a copy of the petition and any annexes thereto.
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.
After the comment or other pleadings required by the court are filed, or the time for the filing thereof has expired, the court may:
a. Hear the case or
b. Require the parties to submit memoranda
If, after such hearing or filing of memoranda or upon the expiration of the period for filing, the court finds that the allegations of the petition are true, it shall render judgment for such relief to which
the petitioner is entitled.
Gonzales filed a motion for reconsideration which was denied by the DOJ. Aggrieved to the decision of the DOJ, he filed a petition for review under RULE 43 before the CA seeking reversal of the
DOJ’s Resolution. The CA granted the petition. Alcaraz filed a motion for reconsideration but was denied.
Ans: NO. the CA was not correct to grant the petition. The petition for review under rule 43 was not the proper remedy for the respondent. He should have instead filed a petition for certiorari under
rule 65 in appealing his case before the CA. the decision/resolution of the Secretary of Justice in affirming, modifying, or reversing the resolution of the investigating prosecutor is final and executory.
The legislature has not provided an adequate remedy by appeal in such case. Thus, the petition for certiorari is available.
Cases:
CERTIORARI –DEFINITION
Petitioner moved for the reconsideration of the court a quo's refusal to admit its evidence but it was denied in an order dated February 26, 1999. The order disallowed the presentation and admission
in evidence of any testimony referring to the December 7, 1994 opinion of the OGCC. The prohibition was based on the ground that the testimony was in violation of the rule on privileged
communication between attorney and client, i.e., the OGCC and PNB-Republic Bank.
Aggrieved, petitioner filed a petition for certiorari with the Court of Appeals. However, the appellate court dismissed the petition. Petitioner moved for reconsideration but the same was denied.
Hence, this petition.
Issue: Petitioner claims that the Court of Appeals erred when it ruled that the trial court did not commit grave abuse of discretion in disallowing the presentation and admission in evidence of
Roque's testimony.
RULING: The petition has no merit.
Certiorari as a special civil action is proper when any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its jurisdiction, or with grave
abuse of discretion, and there is no appeal nor any plain, speedy and adequate remedy at law. The writ may be issued only where it is convincingly proved that the lower court committed grave
abuse of discretion, or an act too patent and gross as to amount to an evasion of a duty, or to a virtual refusal to perform the duty enjoined or act in contemplation of law, or that the trial court exercised
its power in an arbitrary and despotic manner by reason of passion or personal hostility.
While certiorari may be maintained as an appropriate remedy to assail an interlocutory order in cases where the tribunal has issued an order without or in excess of jurisdiction or with grave abuse of
discretion, it does not lie to correct every controversial interlocutory ruling.
Here, petitioner assails the order of the trial court disallowing the admission in evidence of the testimony of Roque on the opinion of the OGCC. By that fact alone, no grave abuse of discretion could
be imputed to the trial court. Furthermore, the said order was not an error of jurisdiction. Even assuming that it was erroneous, the mistake was an error in judgment not correctable by the writ of
certiorari. WHEREFORE, the petition is hereby DENIED.
PROHIBITION -DEFINITION
David vs Rivera
Facts: Claiming to be the owner of an eighteen thousand (18,000)- square meter portion (hereafter, "subject land") of Lot No. 38-B,1 a five (5)-hectare lot situated at MacArthur Highway, Dau,
Mabalacat, Pampanga, herein respondent Agustin Rivera filed on May 10, 1994 a Complaint 2 for "Maintenance of Peaceful Possession with Prayer for Restraining Order and Preliminary Injunction"
before the Provincial Adjudication Board (PARAB) of San Fernando, Pampanga against petitioners heirs of Spouses Cristino and Consolacion David. The respondent averred that the petitioners had
been harassing him for the purpose of making him vacate the subject land although it had already been given to him sometime in 1957 by the parents of the petitioners as "disturbance compensation",
in consideration of his renunciation of his tenurial rights over the original eighteen (18)-hectare farmholding.
For their part, the petitioners filed a Complaint for ejectment before the Municipal Circuit Trial Court (MCTC) of Mabalacat and Magalang, Pampanga. They alleged that the respondent was occupying
the subject land without paying rentals therefor. The petitioners also averred that they need the subject land for their personal use but the respondent refused to vacate it despite repeated demands.
On September 28, 1995, the MCTC rendered its Decision ordering the respondent to vacate the subject land. The court found that there was a dearth of evidence supportive of the respondent‘s claim
that the land is agricultural or that it is devoted to agricultural production. Further, it ruled that the petitioners as the registered owners have a better right to possession of the subject land.
Without appealing the MCTC Decision but within the period to appeal, the respondent filed before the Regional Trial Court (RTC) of Angeles City a Petition for prohibition with preliminary
injunction Without appealing the MCTC Decision but within the period to appeal, the respondent filed before the Regional Trial Court (RTC) of Angeles City a Petition for prohibition with
preliminary injunction and/or temporary restraining order, seeking the nullification of the MCTC Decision. The thrust of the petition was that the MCTC had no jurisdiction as the issue before it was
agrarian in nature.
On February 25, 1998, the RTC issued an Order14 denying the motion to dismiss. The court ruled that the motion, which was filed after the presentation of the plaintiff‘s evidence, partakes of a
demurrer to evidence which under Section 1, Rule 33 of the Rules of Court, 15 may be granted only upon a showing that the plaintiff has shown no right to the relief prayed for. Noting that "the
evidence presented by the petitioner establishes an issue which is addressed to [the] court for resolution. . . whether or not the respondent court
had jurisdiction over the subject matter of the case filed before it", the RTC ruled that the denial of the motion to dismiss is proper. The petitioners moved for reconsideration16 but was denied in an
Order17 dated June 23, 1998.
ISSUE: whether the denial of the motion to dismiss by way of demurrer to evidence was afflicted with grave abuse of discretion.
Esquivel vs Ombudsman
FACTS: In their respective complaint affidavits, filed before the Philippine National Police – Criminal Investigation and Detection Group (PNP-CIDG), Third Regional Office, Camp Olivas, San
Fernando, Pampanga, Eduardo and Catacutan charged herein petitioners Antonio Prospero Esquivel, municipal mayor of Jaen and his brother, Mark Anthony "Eboy" Esquivel, barangay captain of
barangay Apo, Jaen, with alleged illegal arrest, arbitrary detention, maltreatment, attempted murder, and grave threats. Also included in the charges were SPO1 Reynaldo Espiritu, SPO2 Nestor Villa
Almayda, and LTO Officer Aurelio Diaz. PO2 Eduardo and SPO1 Catacutan likewise accused P/S
Insp. Bienvenido C. Padua and SPO3 Inocencio P. Bautista of the Jaen Municipal Police Force of dereliction of duty.
The initial investigation conducted by the PNP-CIDG showed that at about 12:30 p.m. of March 14, 1998, PO2 Eduardo was about to eat lunch at his parents‘ house at Sta. Monica Village, Dampulan,
Jaen, Nueva Ecija, when petitioners arrived. SPO1 Espiritu, SPO2 Almayda, LTO Officer Diaz, and several unidentified persons accompanied them. Without further ado, petitioners disarmed PO2
Eduardo of his Cal. 45 service pistol, which was covered by a Memorandum Receipt and COMELEC Gun Ban Exemption. They then forced him to board petitioners’ vehicle and brought him to the
Municipal Hall.
Petitioners argue that the Ombudsman committed grave abuse of discretion when he failed to consider the exculpatory evidence in their favor, namely, the admission of PO2 Eduardo that he was in
good physical condition when he left the police station in Jaen, Nueva Ecija. With such admission, PO2 Duardo is now estopped from claiming that he was injured since it is conclusive evidence
against him and need not be proven in any other proceeding. Public respondents, represented by the Office of the Ombudsman through the OSP, counter that petitioners raise a factual issue which is
not a proper subject of a certiorari action. They further postulate that this is the very same defense advanced by petitioners in the charges against them and being evidentiary in nature, its resolution
can only be threshed out in a full-blown trial.
ISSUE: WON Sandiganbayan has jurisdiction over the offenses and committed grave abuse of discretion.
HELD: Being an extraordinary remedy, prohibition cannot be resorted to when the ordinary and usual remedies provided by law are adequate and available.40 Prohibition is granted only where no
other remedy is available or sufficient to afford redress. That the petitioners have another and complete remedy at law, through an appeal or otherwise, is generally held sufficient reason for denying
the issuance of the writ. In this case, petitioners were not devoid of a remedy in the ordinary course of law. They could have filed a motion to quash the information at the first instance but they did
not. They have only themselves to blame for this procedural lapse as they have not shown any adequate excuse for their failure to do so. Petitioners did make a belated oral motion for time to file a
motion to quash the information, during their much delayed arraignment,42 but its denial is not a proper subject for certiorari or prohibition as said denial is merely an interlocutory order.
A writ of prohibition will not be issued against an inferior court unless the attention of the court whose proceedings are sought to be stayed has been called to the alleged lack or excess of
jurisdiction. The foundation of this rule is the respect and consideration due to the lower court and the expediency of preventing unnecessary litigation; it cannot be presumed that the lower court
would not properly rule on a jurisdictional objection if it were properly presented to it. The records show that petitioners only raised the issue of the alleged lack of jurisdiction by the Sandiganbayan
before this Court.
MANDAMUS –DEFINITION
FACTS: Petitioner Pilo Militante is the registered owner of three (3) contiguous parcels of land with an aggregate area of 1,590 square meters in Balintawak, Caloocan City. The three parcels are
covered by TCT Nos. 53066-A, 53067 and 53068, all derived from TCT No. 71357 issued by the Register of Deeds of Caloocan City. Twenty-four (24) squatter families live in these lots. In 1975,
President Marcos issued Presidential Decree (P.D.) No. 13152 expropriating forty (40) hectares of land in Bagong Barrio, Caloocan City.
The NHA called the squatters for a dialogue "to look into the possibility of amicably settling the eviction problem and/or to find out why a clearance should be issued or not for the removal/demolition
of all the illegal structures in the said property." The squatters did not attend the meeting. In view of their failure to attend, Joaquin Castano, Acting Division Manager, Resettlement Division, NHA,
wrote a all the illegal structures in the said property." The squatters did not attend the meeting. In view of their failure to attend, Joaquin Castano, Acting Division Manager, Resettlement Division,
NHA, wrote a memorandum to the Department Manager, Resettlement Department, NHA, recommending the issuance of a demolition clearance. Respondent Annabelle Carangdang, NHA Project
Manager in Bagong Barrio, refused to implement the clearance to eject the squatters on petitioner's land. At the conference of February 13, 1991, Carangdang claimed that petitioner‘s land had already
been declared expropriated by P.D. 1315.
Petitioner then filed with the respondent Court of Appeals a "Petition for Prohibition and Mandamus with Declaration as Inexistent and Unconstitutional Presidential Decree No. 1315" against the
NHA and Carangdang.
ISSUE: WON Carangdang can be compelled to effect the directive/ memorandum of relocation/ resettlement subjecting the said 24 squatter families from unlawfully occupying petitioner‘s subject
property without declaring PD 1315 as void and unconstitutional.
RULING:
In the case at bar, petitioner does not pray that respondent Carangdang should be ordered to desist from relocating the squatters. What petitioner challenges is respondent Carangdang's
refusal to implement the demolition clearance issued by her administrative superiors. The remedy for a refusal to discharge a legal duty is mandamus, not prohibition.
Second. The petitioner is not also entitled to a writ of mandamus. Mandamus is a writ commanding a tribunal, corporation, board, or person to do the act required to be done when it or he
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, there being no other plain, speedy, and adequate remedy in the ordinary course of law.
It is incumbent upon petitioner to show that he has a well-defined, clear and certain right to warrant the grant of the writ of mandamus. He failed to discharge this burden. The records show that
there is no direct order from the NHA General Manager addressed to respondent Carangdang to evict the squatters and demolish their shanties on the subject property. The NHA demolition clearance
issued by General Tobias on January 21, 1982 was addressed to Mayor Asistio, the mayor of Caloocan City. The clearance's revalidation by NHA General Manager Monico Jacob was likewise
addressed to Mayor Asistio.
DISTINGUISHED FROM EACH OTHER:
Certiorari Prohibition
Prohibition Mandamus
Mandamus Injunction
Herrera vs Barretto
Campos vs Wislizenus –
The general rule is that, where the jurisdiction of the court depends upon the existence of facts, and the court judicially considers and adjudicates the question of its jurisdiction, and decides
that the fact exist which are necessary to give it jurisdiction of the case, the finding is conclusive and cannot be controverted in a collateral proceeding.
The rule applies to a case where the proper service of notice on the candidates voted for was challenged and the court determined upon the facts presented, after hearing the allegations of the parties
and their arguments based thereon, that service had not been made as required by law. Such a determination involves a mixed question of law and fact; and it is a rule, as stated in the case cited, that,
where the jurisdiction of the court depends upon the determination of a question of fact and that question has been determined by the court after a hearing, that determination is conclusive and cannot
be attacked collaterally. In the case before us evidence as to the fact of service was introduced by the petitioner and the sufficiency of that evidence was challenged by the respondent. The petitioner
did not take advantage of the opportunity given him by the challenge to present other and further evidence in relation to the service but stood squarely upon the facts already presented and accepted
a decision of the court thereon. Under such circumstances there was nothing left for the court to do except to decide the question upon the facts as they were. The court did so; and although to say so
is unnecessary to a decision of this case, we are of the opinion that its finding on the facts as they existed of record at the time was well founded.
ABAD SANTOS VS PROVINCE OF TARLAC (DEFINITION) – the terms are mostly defined in the case of Madrigal Transport Inc. vs Lapanday Holdings Corporation
WITHOUT JURISDICTION
- means that the court acted with absolute lack of authority.
LACK OF JURISDICTION
- An act of a court or tribunal may only be considered as in grave abuse of discretion when it is performed in a capricious or whimsical exercise of judgment which is equivalent to lack of
jurisdiction.
EXCESS OF JURISDICTION
- when the court transcends its power or acts without any statutory authority.
Napa vs Weissenhagen
The writ of certiorari in so far as it was a method by which mere errors of an inferior court could be corrected no longer exists. Its place is now taken by the appeal. So long as the inferior court
maintains jurisdiction, its errors can be corrected only by that method (APPEAL). The writ in this country has been confined to the correction of defects of jurisdiction solely and cannot be
legally used for any other purpose.
If the judgment of the justice's court was void, it was nevertheless appealable, although the losing party might have been able to rid himself of it by other means. Having been appealed, it stands upon
substantially the same footing in the appellate court, so far as the appeal itself is concerned, as any other judgment of a justice's court and the jurisdiction of the appellate court in that appeal is as full
and complete as it is any other.
A "plain" and "adequate remedy" is a motion for reconsideration of the assailed order or resolution, the filing of which is an indispensable condition to the filing of a special civil action for certiorari.
This is to give the lower court the opportunity to correct itself.
If petitioner had an adequate remedy, namely, a petition for review on certiorari under Rule 45 of the Rules of Court, a special civil action for certiorari was, therefore, not the correct
remedy.
(CAMUTIN VS SPOUSES
POTENTE)
There are, of course, exceptions to the foregoing rule, to wit (SIM VS NLRC):
(a) where the order is a patent nullity, as where the court a quo has no jurisdiction;
(b) where the questions raised in the certiorari proceedings 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;
(c) 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
isperishable;
(d) where, under the circumstances, a motion for reconsideration would be useless;
(e) where petitioner was deprived of due process and there is extreme urgency for relief;
(f) where, in a criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial court is improbable;
(g) where the proceedings in the lower court are a nullity for lack of due process;
(h) where the proceeding was ex parte or in which the petitioner had no opportunity to object; and(i) where the issue raised is one purely of law or public interest is involved.
Alcantara vs Ermita
Facts: On October 13, 2005, lawyers Samson S. Alcantara, Ed Vincent S. Albano, and Rene B. Gorospe, herein petitioners, filed with this Court the instant petition for prohibition in their capacity
as Filipino citizens and taxpayers. They alleged that under Article XVII of the Constitution, President Macapagal- Arroyo has no authority to participate in the process to amend or revise the
Constitution. Likewise, she has no power to create a Consultative Commission to study and propose amendments and allocate public funds for its operations.
RULING: From the foregoing, it is evident that the writ of prohibition is one which commands the person to whom it is directed not to do something which he is about to do. If the thing is already
done, it is obvious that the writ of prohibition cannot undo it, for that would require an affirmative act, and the only effect of a writ of prohibition is to suspend all action, and to prevent any further
proceeding in the prohibited direction.[4] In other words, prohibition is a preventive remedy to restrain future action. Prohibition, as a rule, does not lie to restrain an act that is already afait accompli.
The Consultative Commission has been dissolved. Consequently, we find no more reason to resolve the constitutional issues raised by petitioners.
MINISTERIAL ACTS
Pefianco vs Moral
In fine, the trial court's Order of 23 April 1997 denying petitioner's motion to dismiss is not a mere error of judgment as the Court of Appeals held, but a grave abuse of discretion amounting to lack
or excess of jurisdiction because, to capsulize, the Order is a patent nullity for failure to comply with the provisions of the rules requiring that a resolution on a motion to dismiss should clearly and
distinctly state the reasons therefor; and, respondent is clearly not entitled to the writ of mandamus as she did not appeal the DECS resolution dismissing her from service, and there is no law or rule
which imposes a ministerial duty on petitioner to furnish respondent with a copy of the investigation report, hence her petition clearly lacked a cause of action. In such instance, while the trial court's
order is merely interlocutory and nonappealable, certiorari is the proper remedy to annul the same since it is rendered with grave abuse of discretion.
It should be emphasized that under our Constitution, the power to ratify is vested in the President, subject to the concurrence of the Senate. The role of the Senate, however, is limited only to giving
or withholding its consent, or concurrence, to the ratification. Hence, it is within the authority of the President to refuse to submit a treaty to the Senate or, having secured its consent for its ratification,
refuse to ratify it.Although the refusal of a state to ratify a treaty which has been signed in its behalf is a serious step that should not be taken lightly, such decision is within the competence of the
President alone, which cannot be encroached by this Court via a writ of mandamus. This Court has no jurisdiction over actions seeking to enjoin the President in the performance of his official duties.
The Court, therefore, cannot issue the writ of mandamus prayed for by the petitioners as it is beyond its jurisdiction to compel the executive branch of the government to transmit the signed text of
Rome Statute to the Senate.
There is indeed an exception to the rule that matters involving judgment and discretion are beyond the reach of a writ of mandamus, for such writ may be issued to compel action in those matters,
when refused. However, mandamus is never available to direct the exercise of judgment or discretion in a particular way or the retraction or reversal of an action already taken in the
exercise of either. In other words, while a judge refusing to act on a Motion to Withdraw Informations can be compelled by mandamus to act on the same, he cannot be compelled to act in a certain
way, i.e., to grant or deny such Motion. In the case at bar, Judge Bay did not refuse to act on the Motion to Withdraw Informations; he had already acted on it by denying the same. Accordingly,
mandamus is not available anymore. If petitioners believed that Judge Bay committed grave abuse of discretion in the issuance of such Order denying the Motion to Withdraw Informations, the
proper remedy of petitioners should have been to file a Petition for Certiorari against the assailed Order of Judge Bay.
PHOTOKINA filed with the Regional Trial Court, Branch 215, Quezon City a petition for mandamus, prohibition and damages (with prayer for temporary restraining order, preliminary prohibitory
injunction and preliminary mandatory injunction) against the COMELEC and all its Commissioners,[14] docketed as Special Civil Action No. Q- 01- 45405. PHOTOKINA alleged three causes of
action: first, the deliberate refusal of the COMELEC and its Commissioners to formalize the contract rendered nugatory the perfected contract between them; second, in announcing that the
VRIS Project has been junked and that he has plans to re-engineer the COMELEC’s entire modernization program, Chairman Benipayo committed grave abuse of discretion; and third, the
COMELEC’s failure to perform its duty under the contract has caused PHOTOKINA to incur damages since it has spent substantial time and resources in the preparation of the bid and the draft
contract.
PHOTOKINA, though the winning bidder, cannot compel the COMELEC to formalize the contract. Since PHOTOKINA’s bid is beyond the amount appropriated by Congress for the VRIS Project,
the proposed contract is not binding upon the COMELEC and is considered void; and that in issuing the questioned preliminary writs of mandatory and prohibitory injunction and in not dismissing
Special Civil Action No. Q-01-45405, respondent judge acted with grave abuse of discretion. Petitioners cannot be compelled by a writ of mandamus to discharge a duty that involves the exercise
of judgment and discretion, especially where disbursement of public funds is concerned.
No rule of law is better settled than that mandamus does not lie to enforce the performance of contractual obligations.[34] As early as 1924, Justice Street, in Quiogue vs. Romualdez,[35] already set
forth the justification of this rule, thus:
“Upon the facts above stated we are of the opinion that the writ of mandamus is not the appropriate, or even an admissible remedy. It is manifest that whatever rights the petitioner may have, upon
the facts stated, are derived from her contract with the city; and no rule of law is better settled than that mandamus never lies to enforce the performance of private contracts. x x x The petitioner’s
remedy, if any she has, is by an original action in the Court of First Instance to compel the city to pay the agreed price or to pay damages for the breach of contract.
Metropolitan Manila Development Authority, et al. v. Concerned Residents of Manila Bay, G.R. Nos. 171947-48, December 18,
2008
Cleaning or Rehabilitation of Manila Bay Can be Compelled by Mandamus.
Petitioners maintain that the MMDA’s duty to take measures and maintain adequate solid waste and liquid disposal systems necessarily involves policy evaluation and the exercise of judgment on
the part of the agency concerned. They argue that the MMDA, in carrying out its mandate, has to make decisions, including choosing where a landfill should be located by undertaking feasibility
studies and cost estimates, all of which entail the exercise of discretion.
Respondents, on the other hand, counter that the statutory command is clear and that petitioners’ duty to comply with and act according to the clear mandate of the law does not require the exercise
of discretion. According to respondents, petitioners, the MMDA in particular, are without discretion, for example, to choose which bodies of water they are to clean up, or which discharge or spill
they are to contain. By the same token, respondents maintain that petitioners are bereft of discretion on whether or not to alleviate the problem of solid and liquid waste disposal; in other words, it is
the MMDA’s ministerial duty to attend to such services.
The Supreme Court agreed with the respondents.
First off, the petitioners’ obligation to perform their duties as defined by law, on one hand, and how they are to carry out such duties, on the other, are two different concepts.
The cleanup and/or restoration of the Manila Bay is only an aspect and the initial stage of the long-term solution. The preservation of the water quality of the bay after the rehabilitation process is as
important as the cleaning phase. It is imperative then that the wastes and contaminants found in the rivers, inland bays, and other bodies of water be stopped from reaching the Manila Bay. Otherwise,
any cleanup effort would just be a futile, cosmetic exercise, for, in no time at all, the Manila Bay water quality would again deteriorate below the ideal minimum standards set by PD 1152, RA 9275,
and other relevant laws. It thus behooves the Court to put the heads of the petitioner-department-agencies and the bureaus and offices under them on continuing notice about, and to enjoin them to
perform, their mandates and duties towards cleaning up the Manila Bay and preserving the quality of its water to the ideal level. Under what other judicial discipline describes as “continuing
mandamus,”[36] the Court may, under extraordinary circumstances, issue directives with the end in view of ensuring that its decision would not be set to naught by administrative inaction or
indifference. In India, the doctrine of continuing mandamus was used to enforce directives of the court to clean up the length of the Ganges River from industrial and municipal pollution.
The heads of petitioners-agencies MMDA, DENR, DepEd, DOH, DA, DPWH, DBM, PCG, PNP Maritime Group, DILG, and also of MWSS, LWUA, and PPA, in line with the principle of “continuing
mandamus,” shall, from finality of this Decision, each submit to the Court a quarterly progressive report of the activities undertaken in accordance with this Decision.
Manalo v. PAIC Savings Bank, G.R. No. 146531, March 18, 2005
This is a case involving a writ of mandamus compelling respondent bank (1) to allow him to redeem and/or repurchase the subject lots for P18,000,000.00; and (2) to release to him TCT No. 6076.
On June 29, 1997, when Angsico sold the lot to Manalo, Angsico was not the owner of the subject property simply because at the time he (Angsico) purchased the same property from Vargas and/or
S. Villanueva on December 23, 1992, said sellers were no longer the lawful owners of the property.
As correctly pointed out by the appellees, after the expiration of the one (1) year redemption period and no redemption was made on December 5, 1985, PAIC Bank ipso facto became the legal owner
in fee simple of the subject lot and its improvements, being the highest bidder in the auction sale and the vendee in the Sheriff’s Certificate of Sale duly registered a year before and which entitles it
to the issuance of a new certificate of title in his name.
Mandamus is not the proper recourse to enforce petitioner’s alleged right of redemption. To begin with, mandamus applies as a remedy only where petitioner’s right is founded clearly in law and not
when it is doubtful.[3] In varying language, the principle echoed and reechoed is that legal rights may be enforced by mandamus only if those rights are well-defined, clear and certain.
On December 4, 1985 or when respondent Vargas failed to exercise her right of redemption within the one (1) year redemption period, respondent bank ipso facto became the absolute owner of the
lots. Surprisingly, however, on December 23, 1992, she sold the property for P18,000,500.00 to Angsico, who eventually transferred his rights to petitioner. Not only that, on August 24, 1994,
respondent Vargas still leased to petitioner a portion of the subject lots.
Verily, when respondent bank became the owner of the lots on December 4, 1985, respondent Vargas could no longer legally transfer, cede and convey the property to petitioner.
Moreover, mandamus cannot be availed of as a remedy to enforce the performance of contractual obligations.
Private respondent herein is a citizen of India and a holder of a Philippine visitor’s visa. She enrolled in a doctoral program in anthropology of the University of the Philippines. After completing her
units of course work required in her doctoral program, she left the country to work in Rome. After two years, she returned to the Philippines to work on her dissertation. Upon her presentation of her
dissertation for approval to the panel, Dr. Medina, a dean’s representative to the panel, noticed that some portions of her work were lifted from other works without the proper acknowledgement.
Nonetheless, she was allowed to defend her dissertation. She passed her oral defense, which was approved by four of the five panelists with the condition that she shall incorporate certain amendments
to the final copy of her dissertation. However, in her final submission of the copy of her dissertation, she failed to incorporate the necessary revisions. With this development, Dr. Medina formally
charged her with plagiarism and recommended that the doctorate granted upon her be withdrawn. After an investigation, the College of Social Sciences and Philosophy (CSSP) College Assembly
recommended the withdrawal of her doctorate degree, which was approved by the U.P. Board of Regents. Private respondent filed a petition for mandamus with prayer for a writ of preliminary
injunction and damages against petitioners herein, alleging that they had unlawfully withdrawn her degree without justification. The trial court dismissed her petition. However, on appeal, the Court
of Appeals reversed the lower court’s decision. Hence, this petition.
1. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; MANDAMUS, DEFINED; NOT AVAILABLE TO RESTRAIN THE EXERCISE OF ACADEMIC FREEDOM; CASE AT BAR. -
Mandamus is a writ commanding a tribunal, corporation, board or person to do the act required to be done when it or he 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, there being no other plain,
speedy, and adequate remedy in the ordinary course of law. In University of the Philippines Board of Regents vs. Ligot-Telan, 227 SCRA 342 (1993), this Court ruled that the writ was not available
to restrain U.P. from the exercise of its academic freedom. In that case, a student who was found guilty of dishonesty and ordered suspended for one year by the Board of Regents, filed a petition
for mandamus and obtained from the lower court a temporary restraining order stopping U.P. from carrying out the order of suspension. In setting aside the TRO and ordering the lower court to
dismiss the student’s petition, this Court said: [T]he lower court gravely abused its discretion in issuing the writ of preliminary injunction of May 29, 1993. The issuance of the said writ was based
on the lower court’s finding that the implementation of the disciplinary sanction of suspension on Nadal “would work injustice to the petitioner as it would delay him in finishing his course, and
consequently, in getting a decent and good paying job.” Sadly, such a ruling considers only the situation of Nadal without taking into account the circumstances, clearly of his own making, which
led him into such a predicament. More importantly, it has completely disregarded the overriding issue of academic freedom which provides more than ample justification for the imposition of a
disciplinary sanction upon an erring student of an institution of higher learning. From the foregoing arguments, it is clear that the lower court should have restrained itself from assuming
jurisdiction over the petition filed by the Nadal. Mandamus is never issued in doubtful cases, a showing of a clear and certain right on the part of the petitioner being required. It is of no avail
against an official or government agency whose duty requires the exercise of discretion or judgment.
WHEN AND WHERE FILED (SECTION 4, A.M. NO. 07-7-12-
SC):
Laguna Metts Corporation v. Caalam, et
al.
Facts:
Private respondents Aries C. Caalam and Geraldine Esguerra filed a labor case against petitioner Laguna Metts Corporation (LMC).The labor arbiter decided in favor of private respondents. On
appeal, the NLRC reversed the decision of the labor arbiter. Private respondents’ motion for reconsideration was denied.
Counsel for respondents filed a motion for extension of time to file petition for certiorari under Rule 65 of the Rules of Court; a 15-day extension period was prayed for. In a resolution dated August
7, 2008, the CA granted the motion and gave private respondents a non-extendible period of 15 days within which to file their petition for certiorari. LMC moved for the reconsideration of the said
resolution claiming that extensions of time to file a petition for certiorari are no longer allowed under Section 4, Rule 65 of the Rules of Court, as amended by A.M. No. 07-7-12-SC. This was denied
by the CA.
Aggrieved, LMC now assails the resolutions dated August 7, 2008 and October 22, 2008 of the Court of Appeals in this petition for certiorari under Rule 65 of the Rules of Court.
Issue: Whether or not CA committed grave abuse of discretion when it granted private respondents’ motion for extension of time to file petition for
certiorari.
Held:
Section 4 of Rule 65 prescribes a period of 60 days within which to file a petition for certiorari. The 60-day period is deemed reasonable and sufficient time for a party to mull over and to
prepare a petition asserting grave abuse of discretion by a lower court. The period was specifically set to avoid any unreasonable delay that would violate the constitutional rights of the
parties to a speedy disposition of their case.
While the proper courts previously had discretion to extend the period for filing a petition for certiorari beyond the 60-day period, the amendments to Rule 65 under A.M. No. 07-7-12-SC disallowed
extensions of time to file a petition for certiorari with the deletion of the paragraph that previously permitted such extensions.
If the Court intended to retain the authority of the proper courts to grant extensions under Section 4 of Rule 65, the paragraph providing for such authority would have been preserved. The removal
of the said paragraph under the amendment by A.M. No. 07-7-12-SC of Section 4, Rule 65 simply meant that there can no longer be any extension of the 60-day period within which to file a petition
for certiorari.
The rationale for the amendments under A.M. No. 07-7-12-SC is essentially to prevent the use (or abuse) of the petition for certiorari under Rule 65 to delay a case or even defeat the ends of justice.
Deleting the paragraph allowing extensions to file petition on compelling grounds did away with the filing of such motions. As the Rule now stands, petitions for certiorari must be filed strictly
within 60 days from notice of judgment or from the order denying a motion for reconsideration.
In granting the private respondents’ motion for extension of time to file petition for certiorari, the Court of Appeals disregarded A.M. No. 07-7-12-SC. The action amounted to a modification, if not
outright reversal, by the Court of Appeals of A.M. No. 07-7-12-SC. In so doing, the Court of Appeals arrogated to itself a power it did not possess, a power that only this Court may exercise.For this
reason, the challenged resolutions dated August 7, 2008 and October 22, 2008 were invalid as they were rendered by the Court of Appeals in excess of its jurisdiction.
Lapid v.
Laurea
Facts:
Spouses Ramon Isidro P. Lapid and Gladys B. Lapid are the parents of seven-year-old Christopher B. Lapid, who was a Grade 1 pupil of the respondent school, St. Therese of the Child Jesus. Private
respondents Esperanza N. Prim, Norilyn A. Cruz, Flordeliza C. Santos and Macario B. Binondo are its directress, teacher-in-charge, guidance counselor and principal, respectively.
Petitioners filed a complaint for damages against the private respondents before the RTC. Petitioners averred that their son was summarily dismissed from school sans notice and hearing. Petitioners
denied any knowledge of the alleged letters of complaint filed by the parents whose children were allegedly offended by Christopher. As a result of the strained relations between the Lapids and the
school management, Christopher was transferred to a different school immediately thereafter. According to petitioners, the school’s malicious imputation against their son tarnished their good name
and reputation.
reputation.
Eventually, petitioners filed a motion to declare respondent school as in default, which motion was denied by the trial court. With the denial of their motion for reconsideration, petitioners filed a
petition for certiorari with the Court of Appeals, which was dismissed for failure to indicate the particular date of filing the motion for reconsideration with the RTC. On motion for reconsideration,
petitioners still failed to indicate said date thus, it was likewise denied. Hence this petition.
Issue: WON the CA erred in dismissing the petition for certiorari filed by petitioners on the ground of formal and procedural deficiency, i.e., the petitioners’ failure to state a material date in their
petition for certiorari
Ruling:
After a careful consideration of the submissions of the parties, particularly their respective memoranda, we are constrained to agree with the ruling of the respondent appellate court which dismissed
the instant petition for certiorari. We find no reversible error in the assailed resolutions of the Court of Appeals because in filing a special civil action for certiorari without indicating the requisite
material date thereon, petitioners violated basic tenets of remedial law, particularly Rule 65 of the Rules of Court.
There are three material dates that must be stated in a petition for certiorari brought under Rule 65. First, the date when notice of the judgment or final order or resolution was received; second, the
date when a motion for new trial or for reconsideration was filed; and third, the date when notice of the denial thereof was received. In the case before us, the petition filed with the CA failed to
indicate the second date, particularly the date of filing of their motion for reconsideration. As explicitly stated in the aforementioned Rule, failure to comply with any of the requirements shall be
sufficient ground for the dismissal of the petition.
The rationale for this strict provision of the Rules of Court is not difficult to appreciate. As stated in Santos vs. Court of Appeals, the requirement is for purpose of determining the timeliness of the
petition, thus:
The requirement of setting forth the three (3) dates in a petition for certiorari under Rule 65 is for the purpose of determining its timeliness. Such a petition is required to be filed not later than sixty
(60) days from notice of the judgment, order or Resolution sought to be assailed. Therefore, that the petition for certiorari was filed forty-one (41) days from receipt of the denial of the motion for
reconsideration is hardly relevant. The Court of Appeals was not in any position to determine when this period commenced to run and whether the motion for reconsideration itself was filed on time
since the material dates were not stated.
All told, no reversible error can be ascribed to the Court of Appeals for dismissing the petition for certiorari and later denying the petitioners’ motion for reconsideration.
Petition denied.
The National Citizen’s Movement for Free Elections (NAMFREL) filed a petition for Accreditation to Conduct the Operation Quick Count with the COMELEC. The petitioner was the incumbent
Punong Barangay of Barangay Forbes Park, Makati City, was one of the signatories of the NAMFREL petition in his capacity as the National Chairman of NAMFREL.
On the same date when the petition was filed, COMELEC promulgated Resolution No. 7798 wherein it prohibited among others “the appointment of barangay officials which includes the Punong
Barangay, Barangay Kagawad, Barangay Secretary, Barangay Treasurer, and Barangay Tanod, as Chairman/person and/or Member of the BEIs or as official watcher of any candidate, duly registered
major political party, or any similar organization, or any socio-civic, religious, professional [sic], in the May 14, 2007 National and Local Elections. The prohibition extends to barangay officials,
employees and tanods, who are members of accredited citizen’s arms.”
The COMELEC ruled on NAMFREL’s petition, conditionally granting in the following tenor: “… There is, however, one important condition that must be fulfilled by the petitioner before its
accreditation as citizen’s arm could legally take effect. Accordingly, Mr. Jose S. Concepcion, Jr., the National Chairman of NAMFREL, must first be removed both as a member and overall Chairman
of said organization…. This is explicitly provided for in COMELEC Resolution No. 7798.” Also, it further subjected NAMFREL from enjoining and encouraged by the Commission to re-organize.
Thereafter, NAMFREL filed a manifestation and request for re-examination which contain therein among others its re-organization and new set of officers. COMELEC denied the request for
reexamination. NAMFREL did not question the ruling.
Instead of direct reaction to NAMFREL, petitioner Concepcion filed this petition for certiorari raising issues with respect to Resolution No. 7798.
The first defect lies in the petitioner’s personality to file a petition for certiorari to address the adjudicatory resolution of the COMELEC in which he was not a party to, and where the direct party,
NAMFREL, does not even question the assailed resolution.
Section 1, Rule 65 essentially provides that a person aggrieved by any act of a tribunal, board or officer exercising judicial or quasi-judicial functions rendered without or in excess of jurisdiction or
with grave abuse of discretion amounting to lack or excess of jurisdiction may file a petition for certiorari.
An aggrieved party under Section 1, Rule 65 is one who was a party to the original proceedings that gave rise to the original action for certiorari under Rule 65.
In Development Bank of the Philippines v. Commission on Audit - a case that involves a certiorari petition, under Rule 64 in relation with Rule 65, of a ruling of the Commission on Audit (a
constitutional commission like COMELEC):
The novel theory advanced by the OSG would necessarily require persons not parties to the present case – the DBP employees who are members of the Plan or the trustees of the Fund –
to avail of certiorari under Rule 65. The petition for certiorari under Rule 65, however, is not available to any person who feels injured by the decision of a tribunal, board or officer
exercising judicial or quasi-judicial functions. The "person aggrieved" under Section 1 of Rule 65 who can avail of the special civil action of certiorari pertains only to one who was a
party in the proceedings before the court a quo, or in this case, before the COA. To hold otherwise would open the courts to numerous and endless litigations. Since DBP was the sole
party in the proceedings before the COA, DBP is the proper party to avail of the remedy of certiorari.
The real party in interest who stands to benefit or suffer from the judgment in the suit must prosecute or defend an action. We have held that "interest" means material interest, an interest in issue that
the decision will affect, as distinguished from mere interest in the question involved, or a mere incidental interest.
INDISPENSIBLE PARTY:
Golangco v.
Fung
FACTS:
In a Criminal Case a prosecution for libel initiated by the petitioner as the complainant against the respondent, was commenced in 1995. Allegedly, the respondent had issued an office memorandum
dated May 10, 1995 maliciously imputing against the petitioner the commission of bribery and had sent copies of the memorandum to the petitioner’s superiors in the Philippine Overseas Employment
Administration (POEA) and to other public officers and personalities not connected with the POEA, causing damage and prejudice to the petitioner.
After almost 6 years, the Prosecution had presented only two witnesses in Criminal Case No. 95-145703. On February 16, 2001, the Prosecution requested that a subpoena ad testificandum be issued
to and served on Atty. Oscar Ramos, Resident Ombudsman of the POEA, to compel him to testify in the criminal case on February 20, 2001. The RTC did not granted the request. The same was
affirmed by the Court of Appeals.
ISSUE: Whether the Court of Appeals correctly ruled on the petition for certiorari of the petitioner.
RULING:
The petitioner did not join the People of the Philippines as a party in his action for certiorari in the Court of Appeals. He thereby ignored that the People of the Philippines were indispensable parties
due to his objective being to set aside the trial court’s order dated May 23, 2001 that concerned the public aspect of Criminal Case No. 95-145703. The omission was fatal and already enough cause
for the summary rejection of his petition for certiorari.
We find that the trial judge did not act capriciously, arbitrarily or whimsically in issuing the assailed order. Thus, the Court of Appeals properly dismissed the petition for certiorari. The petitioner
now needs to be reminded that certiorari is an extraordinary remedy to correct a grave abuse of discretion amounting to lack or excess of jurisdiction when an appeal, or any plain, speedy and adequate
remedy in the ordinary course of law is not available. In this regard, grave abuse of discretion implies a capricious and whimsical exercise of judgment that is equivalent to lack of jurisdiction
whenever the power is exercised in an arbitrary or despotic manner by reason of passion, prejudice or personal aversion amounting to an evasion of a positive duty or to a virtual refusal to perform
the duty enjoined, or to act at all in contemplation of law.
Settled rule that certiorari does not lie to review an interlocutory order, but only a final judgment or order that terminates the proceedings. Certiorari will be refused where there has been no final
judgment or order and the proceeding for which the writ is sought is still pending and undetermined in the lower court.
As long as the trial court acted within its jurisdiction, its alleged error committed in the exercise of its jurisdiction amounted to nothing more than an error of judgment that was reviewable by a timely
appeal, not by a special civil action of certiorari.
DOJ RULINGS:
Alcaraz v.
Gonzalez
FACTS:
August 11, 2000, 61-year-old Ramon C. Gonzalez was driving his Nissan Cefiro car with plate no. UPW-298 along the right outermost lane of the South-Luzon Expressway. He was on his way to
Makati City and had just passed the Sucat toll gate. Atty. Arnel C. Alcaraz, a Customs Collector of the Bureau of Customs, Batangas Port, was driving his Nissan Infiniti car with plate no. CNH-338.
He was in the middle lane of the South-Luzon Expressway, between the Sucat and Bicutan Interchange, on his way to Manila from Batangas City, armed with a .38 caliber pistol and had with him
Mission Order No. 699-2000, to expire on August 21, 2000.
Alcaraz intended to use the Skyway, he signaled, and proceeded to the right-most lane which was reserved for vehicles taking the Skyway. Gonzalez, who was on the right-most lane, was forced to
swerve his car to the right to avoid colliding with Alcaraz's vehicle and nearly hit the concrete island. Gonzalez chased after Alcaraz, opened his windows and shouted at Alcaraz, demanding to know
why the latter suddenly cut into his lane. Alcaraz retorted that he had signaled that he was swerving to the right. Gonzalez reproved Alcaraz and drove on. Upon nearing an island, Alcaraz raised his
pistol towards Gonzalez and fired twice: the first bullet hit the right front window of the vehicle and exited at the left rear door; the second bullet hit the left rear window of Gonzalez's car. Alcaraz
hurriedly drove away from the scene, but was intercepted by the PNCC guards at the Skyway toll gate. The guards confiscated from Alcaraz the .38 pistol with 7 live bullets and 3 empty shells.
Gonzalez reported the matter to the Parañaque City Police Station where he gave a statement to the police investigator, and filed a criminal complaint for attempted homicide against Alcaraz.The
PNP Crime Laboratory examined Gonzalez's car to determine the trajectory of the bullets. Report No. PI-46-2000 was prepared in connection with the investigation:
CONCLUSION:
The entrance bullet holes and the exit bullet hole were caused by bullets fired from right, front side of the vehicle. Alfredo Tan Buraga, Officer-in-Charge of the Parañaque Police Station, filed a
criminal complaint for attempted homicide against Alcaraz in the Office of the City Prosecutor of Parañaque City.On motion of Alcaraz, the MeTC ordered the City Prosecutor to conduct a preliminary
investigation.
Alcaraz claimed that he did not aim his gun at Gonzalez; he had no intention of hitting Gonzalez, and only wanted to scare him. At the police station, Gonzalez identified himself as the brother of
Congressman Jose Mari Gonzalez. Gonzalez insisted that Alcaraz attempted to kill him. He denied having thrown coins at Alcaraz and that he had a gun at the time. Gonzalez pointed out that Alcaraz's
allegation that he was defending himself when he fired his gun was in effect an admission of intent to kill. Alcaraz filed a motion for reconsideration, and when it was denied, filed a petition for
review with the City Prosecutor's Office, Department of Justice.
Secretary of Justice Hernando Perez issued a Resolution granting the petition and ordering the City Prosecutor to withdraw the Information.
Gonzalez failed to prove beyond reasonable that Alcaraz had intended to kill him, thus:
Evidence shows that respondent was provoked by complainant's acts of repeatedly hurling, not only invectives like "putang ina mo" with a dirty finger sign, but also the throwing of coins that hit
respondent's face and his lady passenger. The natural consequence was for respondent to retaliate as what had transpired in the instant case. There is no dispute that respondent fired his gun. But as
to whether or not he had the intention to kill complainant is a different issue. Respondent's argument that he had no intention of hitting complainant and that his objective was only to scare him finds
merit.
The element of intent to kill not having been satisfactorily established, and considering that complainant was unscathed, a finding of probable cause against respondent for attempted homicide is
difficult to sustain.
Gonzalez filed a motion for reconsideration, which the Undersecretary of Justice denied on January 29, 2003.Gonzalez then filed a petition for review under Rule 43 of the 1997 Rules of Civil
Procedure before the CA, seeking the reversal of the Justice Secretary's Resolution.
He claimed that the Secretary acted beyond his authority in finding no probable cause to charge Alcaraz with attempted homicide and for ordering the City Prosecutor to withdraw the Information.
He insisted that by invoking self-defense, Alcaraz thereby admitted his intention to kill him (Gonzalez). He claimed that Alcaraz's claim of self-defense should be ventilated during trial on the merits.
Alcaraz averred that the CA had no appellate jurisdiction over the petition, and that Gonzalez had no legal standing to file the petition. He insisted that the remedy from an adverse resolution of the
Justice Secretary is to file a petition for certiorari under Rule 65 of the Rules of Court, as amended, grounded on grave abuse of discretion amounting to excess of jurisdiction, not one under Rule 43
of said Rule. He averred that the Justice Secretary is not a quasi-judicial officer under Rule 43 whose resolutions may thus be reviewed by the CA. Alcaraz likewise pointed out that the CA was
without power to substitute its own judgment for that of the Justice Secretary regarding the existence or non-existence of probable cause to charge him with attempted homicide.
The CA ruled that the petition for review under Rule 43 of the Rules of Court, as amended, was meritorious. The appellate court declared that, based on the evidence on record, there was probable
cause to file an Information for attempted homicide against Alcaraz. However, the CA failed to resolve the issue of whether it had appellate jurisdiction over the petition under Rule 43 of the Rules
of Court, as amended.
On July 19, 2004, the CA resolved to deny Alcaraz's motion, holding that his grounds and objections had already been considered and passed upon by it in its decision.
OSG avers that the CA erred in granting the petition of respondent, since the proper remedy from an adverse resolution issued by the Secretary of Justice is to file a petition for certiorari under Ruler
65 of the Rules of Court, not a petition under Rule 43.
Petitioner avers that conformably with the resolution of the Secretary of Justice, the City Prosecutor had filed a motion to withdraw the information in the MeTC, and the court had granted the motion
per its Order dated March 7, 2003. He points out that respondent had not appealed the said order of the trial court.
ISSUE: Whether the petition for review under Rule 43 of the Rules of Court was the proper remedy of respondent?
HELD: We agree with petitioner's contention that respondent resorted to an improper remedy when he filed a petition for review under Rule 43 of the Rules of Court, instead of filing a petition for
certiorari under Rule 65. The determination of probable cause during the preliminary investigation, the executive branch of government has full discretionary authority. The decision whether or not
to dismiss the criminal complaint against the private respondent is necessarily dependent on the sound discretion of the Investigating Prosecutor and ultimately, that of the Secretary of Justice. Courts
are not empowered to substitute their own judgment for that of the executive branch.
The resolution of the Investigating Prosecutor is subject to appeal to the Justice Secretary who, under the Revised Administrative Code, exercises the power of control and supervision over said
Investigating Prosecutor; and who may affirm, nullify, reverse, or modify the ruling of such prosecutor. While the CA may review the resolution of the Justice Secretary, it may do so only in a petition
for certiorari under Rule 65 of the Rules of Court, solely on the ground that the Secretary of Justice committed grave abuse of his discretion amounting to excess or lack of jurisdiction.
The resolution of the Justice Secretary affirming, modifying or reversing the resolution of the Investigating Prosecutor is final. Under the 1993 Revised Rules on Appeals (now the 2000 National
Prosecution Service Rules on Appeals), resolutions in preliminary investigations or reinvestigations from the Justice Secretary's resolution, except the aggrieved party, has no more remedy of
appeal to file a motion for reconsideration of the said resolution of such motion if it is denied by the said Secretary. The remedy of the aggrieved party is to file a petition for certiorari
under Rule 65 of the Rules of Court since there is no more appeal or other remedy available in the ordinary course of law.
Respondent filed a petition for review under Rule 43 of the Rules of Court, assailing the resolutions of the Justice Secretary. Instead of dismissing the petition, however, the CA gave due course to it
and thereafter granted the petition, on its finding that the Justice Secretary erred in reversing the resolution of the Investigating Prosecutor which found probable cause against petitioner for attempted
homicide. Patently, the ruling of the CA is incorrect. The petition is GRANTED. The assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 75589 are NULLIFIED.
c. When he has good reason to believe that any of the grounds can be established by
proof
II. Individual (Private persons) in his own name (Sec 5)
• Ground : such person claims to be entitled to a public office or position usurped or unlawfully held or exercised by another
• May maintain action without intervention of the Solicitor General and without need for any leave of court
• Must show he has a clear right to the office allegedly held by another
✓ Procedure
1. Verified petition shall contain (Sec 6) :
a. Name of the person entitled thereto (all persons who claim to be entitled to the public office, position or francise may be made parties and their respective rights thereto determined in the
same action)
b. Averment of his right to the same
c. That the respondent is unlawfully in possession thereof
2. Venue (Sec 7)
a. Supreme Court; or,
b. Court of Appeals
c. Regional Trial Court :
• Takes oath of office and execute any official bond required by law
• Take upon himself the execution of office
• May demand of respondent all books and papers in his custody or control
** if respondent refuses or neglects to deliver, he may be punished for contempt
• May bring action for damages sustained by reason of the
usurpation Court may render judgment for costs either against
: a. petitioner ; or,
b. respondent; or,
c. the persons claiming to be a corporation or may apportion the
costs
5. Prescription of Action (Sec 11)
• Action to ouster must be commenced within one (1) year after the cause of such ouster, or right of the petitioner to hold office arose
• Action for damages must be commenced within one year after the entry of judgment establishing the petitioner’s right to the office
✓ Petition may be brought only against a de facto corporation not a de jure corporation because the latter was organized in full compliance with the laws hence, there is no reason to attach its
existence and its exercise of corporate powers
• It will be recalled that in Kilosbayan Foundation v. Ermita, the Court enjoined Ong "from accepting an appointment to the position of Associate Justice of the Supreme Court or assuming the
position and discharging the functions of that office, until he shall have successfully completed all necessary steps, through the appropriate adversarial proceedings in court, to show that he is a
natural-born Filipino citizen and correct the records of his birth and citizenship. Ong subsequently complied with the order by filing a petition for correction of his birth certificate.
• Meanwhile, petitioner, by verified Letter-Request/Complaint implored respondent Office of the Solicitor General (OSG) to initiate post-haste a quo warranto proceeding against Ong in the latter’s
capacity as an incumbent Associate Justice of the Sandiganbayan.
• The OSG informed petitioner that it "cannot favorably act on [his] request for the filing of a quo warranto petition until the [RTC] case shall have been terminated with finality." Petitioner assails
this
position of the OSG as being tainted with grave abuse of discretion, aside from Ong’s continuous discharge of judicial functions. Hence, this petition.
• Subsequently, Ong informs that the RTC, by Decision of October 24, 2007, already granted his petition and recognized him as a natural-born citizen. The Decision having, to him, become final,
he caused the corresponding annotation thereof on his Certificate of Birth. Invoking the curative provisions of the 1987 Constitution, Ong explains that his status as a natural-born citizen inheres
from birth and the legal effect of such recognition retroacts to the time of his birth.
ISSUE:
Whether or not the OSG committed grave abuse of discretion in deferring the filing of a petition for quo warranto,
HELD:
The Court rules in the negative.
Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, in other words, where the power is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility, and it 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 or to act
at all in contemplation of law.
The Court appreciates no abuse of discretion, much less, a grave one, on the part of the OSG in deferring action on the filing of a quo warranto case until after the RTC case has been terminated with
finality. A decision is not deemed tainted with grave abuse of discretion simply because the affected party disagrees with it.
The Solicitor General is the counsel of the government, its agencies and instrumentalities, and its officials or agents. In the discharge of its task, the Solicitor General must see to it that the best interest
of the government is upheld within the limits set by law
--------------------------------------------------
While denominated as a petition for certiorari and prohibition, the petition partakes of the nature of a quo warranto proceeding with respect to Ong, for it effectively seeks to declare null
and void his appointment as an Associate Justice of the Sandiganbayan for being unconstitutional. While the petition professes to be one for certiorari and prohibition, petitioner even adverts to a
"quo warranto" aspect of the petition.
Being a collateral attack on a public officer’s title, the present petition for certiorari and prohibition must be dismissed.
The title to a public office may not be contested except directly, by quo warranto proceedings; and it cannot be assailed collaterally, even through mandamus or a motion to annul or set
aside order. In Nacionalista Party v. De Vera, the Court ruled that prohibition does not lie to inquire into the validity of the appointment of a public officer.
x x x [T]he writ of prohibition, even when directed against persons acting as judges or other judicial officers, cannot be treated as a substitute for quo warranto or be rightfully called upon to
perform
any of the functions of the writ. If there is a court, judge or officer de facto, the title to the office and the right to act cannot be questioned by prohibition. If an intruder takes possession of a
judicial office, the person dispossessed cannot obtain relief through a writ of prohibition commanding the alleged intruder to cease from performing judicial acts, since in its very nature
prohibition is an improper remedy by which to determine the title to an office.
Even if the Court treats the case as one for quo warranto, the petition is, just the same, dismissible.
A quo warranto proceeding is the proper legal remedy to determine the right or title to the contested public office and to oust the holder from its enjoyment. It is brought against the person
who is alleged to have usurped, intruded into, or unlawfully held or exercised the public office, and may be commenced by the Solicitor General or a public prosecutor, as the case may be, or by any
person claiming to be entitled to the public office or position usurped or unlawfully held or exercised by another.
Nothing is more settled than the principle, which goes back to the 1905 case of Acosta v. Flor, reiterated in the recent 2008 case of Feliciano v. Villasin, that for a quo warranto petition to be
successful, the private person suing must show a clear right to the contested office. In fact, not even a mere preferential right to be appointed thereto can lend a modicum of legal ground to
proceed with the action.
(3) The determination of the respective rights in and to the office, position, right, privilege or franchise of all the parties to the action as justice requires.
The character of the judgment to be rendered in quo warranto rests to some extent in the discretion of the court and on the relief sought
Ordinarily, a judgment against a public officer in regard to a public right binds his successor in office. This rule, however, is not applicable in quo warranto cases.[xiii][21] A judgment in quo
warranto does not bind the respondent's successor in office, even though such successor may trace his title to the same source. This follows from the nature of the writ of quo warranto itself. It is
never directed to an officer as such, but always against the person-- to determine whether he is constitutionally and legally authorized to perform any act in, or exercise any function of the office to
which he lays claim.[xiv] [22] In the case at bar, the petition for quo warranto was filed by petitioner solely against respondent Allas. What was threshed out before the trial court was the qualification
and right of petitioner to the contested position as against respondent Ray Allas, not against Godofredo Olores. The Court of Appeals did not err in denying execution of the trial court's decision.
Madrigal filed a petition before the Court of First Instance (now Regional Trial Court) of Marinduque against public respondents for mandamus and damages. The trial court issued an order
dismissing the petition on the ground that Madrigal's cause of action was barred by laches because herein petitioner was separated from the service on November 25, 1971, and it was only on
December 15, 1975, or FOUR (4) YEARS and TWENTY (20) DAYS after, that he filed this case for "Mandamus and Damages" with the principal aim of causing his reinstatement to the public
position from where his service was terminated.
Issue:
Whether or not the petitioner’s cause of action is barred by laches.
Ruling:
That the instant case is one for MANDAMUS, and not QUO WARRANTO, is not of any significance, for the same principle applies as held in these cases:
An action for reinstatement, by a public official, whether it be quo warranto or mandamus, should be filed in court within one year from removal or separation, otherwise the action will be barred.
The unbending jurisprudence in this jurisdiction is to the effect that a petition for quo warranto and mandamus affecting titles to public office must be filed within one (1) year from the date the
petitioner is ousted from his position. The reason behind this being there must be stability in the service so that public business may (sic) be unduly retarded; delays in the statement of the right to
positions in the service must be discouraged.
ACCORDINGLY, the appeal is hereby DENIED. SO ORDERED.
6. Pardo de Tavera v. Phil. Tuberculosis Society, GR. No. L-48928, February 25, 1982
Facts:
Plaintiff is a doctor of Medicine by profession and a recognized specialist in the treatment of tuberculosis and a member of the Board of Directors of the defendant Society, in
representation of the Philippine Charity Sweepstakes Office as Executive Secretary. The Board of Directors removed her from her position averring that said position is held at the pleasure of
the Board of Directors and when the pleasure is exercised, it only means that the incumbent has to vacate the same because her term has expired.
Plaintiff-appellant Mita Pardo de Tavera filed with the Court of First Instance of Rizal a complaint against the Philippine Tuberculosis Society, Inc.
On September 3, 1976, the court a quo rendered a decision holding that the present suit being one for quo warranto it should be filed within one year from plaintiff's outer from office; that
nevertheless, plaintiff was not illegally rendered or used from her position as Executive Secretary in The Society since plaintiff as holding an appointment all the pleasure of the appointing
power and hence her appointment in essence was temporary in nature. The case was remanded to this Court considering that the appeal raises no factual issues and involves only issues of law.
Issue:
Whether or not the instant case is an action for damages and not of quo warranto.
Ruling:
While it is true that the complaint questions petitioner's removal from the position of Executive Secretary and seeks her reinstatement thereto, the nature of the suit is not necessarily one of quo
warranto because the respondents, except for one, namely, Alberto Romulo, are not actually holding the office in question. Corollarily, the one-year period fixed in Section 16, Rule 66 of the
Revised Rules of Court within which a petition for quo warranto should be filed, counted from the date of ouster, does not apply to the case at bar.
The action is one for "injury to the rights of the plaintiff, and must be brought within 4 years murder Article 1146 of the New Civil Code. Nonetheless, the action will not prosper because the By-laws
of the Society stated that petitioner held an appointment at the pleasure of the appointing power that is in essence temporary in nature. It is co-extensive with the desire of the Board of Directors.
WHEREFORE, premises considered, the decision of the lower court holding that petitioner was not illegally removed or ousted from her position as Executive Secretary of the Philippine Tuberculosis
Society, Inc., is hereby AFFIRMED.
SO ORDERED.
On July 20, 1972, private respondent Eufemia M. San Luis as a member of the Philippine Public School Teachers Association (PPSTA for short), a fraternal non-stock association of public school
teachers throughout the country, filed with respondent court of first instance at Quezon City a complaint with preliminary injunction for the annulment of the 1972 annual elections of the PPSTA
board of directors held on June 26-28, 1972 at Teachers Camp in Baguio City for having been held outside its principal office at Quezon City against herein petitioners as defendants.
Respondent court rendered without further hearing and trial its decision of April 26, 1973 holding that " (T)he meeting held in Baguio City being contrary to the by-laws of the corporation and the
Corporation Law, whatever acts therein made, including the elections of the Board of Directors, are null and void," and declared as null and void all resolutions and corporate acts at the 29th (1972)
annual PPSTA Representative Assembly, including the elections of the 1972 PPSTA board of directors and the formation of the PPSTA commission on elections which supervised the elections and
proclaimed the winners.
Issue:
Whether or not the action has complied with the requirements of Rule 66 governing such special civil actions of quo
warranto.
Ruling
:
The Court sets aside the judgment of respondent court.
Respondent's action below was in essence one of quo warranto which is governed by Rule 66 of the Rules of Court Section 6 thereof provides that in order that an individual may directly
bring
6 t
he action, he or she must claim to entitled to the public office or position
allegedly unlawfully held or usurped. Otherwise, the action must be
brought by the Solicitor General or fiscal with leave of
7 t
he court upon the complaint of the relator under section 4 of the Rule.
Chief Justice Moran thus explained the application of the two cited provisions:
The general rule is that actions for quo warranto should be brought by the Solicitor General or a fiscal in cases of usurpation of an office established by law or by the Constitution under
color of an executive appointment, or the abuse of a public franchise under color of a legislative grant, for these are public wrongs and not private injuries. Since, under our system all power
emanates from the people, who constitute the sovereignty, the right to inquire into the authority by which a person assumes to exercise the functions of a public office or franchise is regarded
as inherent in the people on the right their sovereignty. Hence, the action should be brought by the Solicitor General or the fiscal who represents the sovereign power.
However, in a case involving merely the administration corporate functions or duties which touch only private individual rights, such as the election of officers, admission of a corporate officer, or
member, and the like the action for quo warranto may be brought with leave of court, by the Solicitor General or fiscal upon the relation of any person or persons having an interest injuriously
affected. Such action may be allowed in the discretion of the court, according to section 4 and the court, before granting leave, may direct that, notice be given to the defendant so that he may be
heard in opposition
thereto,
under section 5.
Respondent manifestly lays no claim herself to the office of PPSTA director nor has the present action been filed with leave of court by the Solicitor General or fiscal upon her relation as a party
having an interest injuriously affected, as required by the cited Rule.
Her action must therefore fail on this score and the judgment erroneously rendered by respondent court shall be set aside.
ACCORDINGLY, the judgment under review of respondent court is hereby set aside and the complaint ordered dismissed. No pronouncement as to costs.
8. Liban v. Gordon, G.R. No.
175352
Facts:
Petitioners are officers of the Board of Directors of the QC Red Cross Chapter while Respondent is the Chairman of the Philippine National Red Cross (PNRC) Board of Governors.
Petitioners allege that by accepting the chairmanship of the PNRC Board of Governors, respondent has ceased to be a member of the Senate - Sec. 13, Art. VI, 1987 Consti: No Senator or Member
of the HoR may hold any other office/employment in the Gov’t, or any subdivision, agency, or instrumentality thereof, including gov’t-owned or controlled corporations or their subsidiaries, during
his term w/o forfeiting his seat. Neither shall he be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected).
Petitioners cite Camporedondo v. NLRC which held that PNRC is a gov’t-owned or controlled corporation. Flores v. Drilon held that incumbent national legislators lose their elective posts
upon their appointment to another government office.
Respondent:
• Petitioners have no standing to file petition w/c appears to be an action for quo warranto – they do not claim to be entitled to the Senate office of respondent.
• Sec. 11, Rule 66, Rules of Civil Procedure: action should be commenced w/in 1 year after the cause of public officer’s forfeiture of office – respondent has been working as a Red Cross
volunteer for 40 yrs
• Petitioners cannot raise a constitutional question as taxpayers – no claim that they suffered some actual damage/threatened injury or illegal disbursement of public funds
Petitioners: present petition is a taxpayer’s suit questioning unlawful disbursement of funds considering that respondent has been drawing his salaries and other compensation as a Senator even
if he is no longer entitled to his office. Court has jurisdiction because it involves a legal/constitutional issue of transcendental importance.
SC: NO. The petition is an action for quo warranto (Sec. 1, Rule 66, Rules of Court – an action for the usurpation of a public office against a public officer who does or suffers an act which
constitutes a ground for forfeiture of his office). See facts for petitioner’s allegations. Petitioners do not claim to be entitled to the Senate office of respondent.
10. Yap v. Civil Service Commission, G.R. No. 104226, August 12,
1993
FACTS:
Conchita Romualdez-Yap started working with the PNB on 20 September 1972 as special assistant with the rank of Second Assistant Manager assigned to the office of the PNB President. After
several promotions, she was appointed in 1983 as Senior Vice President assigned to the Fund Transfer Department.
Petitioner filed several applications for leave of absence which were duly approved. While she was on leave, Executive Order No. 80 (Revised Charter of the PNB) was approved authorizing the
reorganization and rehabilitation of PNB. Pursuant to the reorganization plan, the Fund Transfer Department was abolished and its functions transferred to the International Department. Conchita
was notified of her separation from service thru a letter. Conchita seeks immediate reinstatement to her former position as senior vice president and head of the Fund Transfer Department, or
reappointment to a notified of her separation from service thru a letter. Conchita seeks immediate reinstatement to her former position as senior vice president and head of the Fund Transfer
Department, or reappointment to a position of comparable or equivalent rank without loss of seniority rights and pay, etc., under the bank's new staffing pattern.
She appealed to the CSC which upheld her separation. Hence the petition.
ISSUE:
WON the 1 year prescriptive period for quo warranto proceedings should apply in this case.
HELD:
YES. The prayer in the petition at bar seeks petitioner's immediate reinstatement to her former position as senior vice president and head of the Fund Transfer Department, or reappointment to a
position of comparable or equivalent rank without loss of seniority rights and pay, etc., under the bank's new staffing pattern.
An action for quo warranto should be brought within one (1) year after ouster from office. The failure to institute the same within the reglementary period constitutes more than a sufficient basis for
its
, dismissal since it is not proper that the title to a public office be subjected to continued with uncertainty. An exception to this prescriptive period lies only if the failure to file the action can
be attributed to the acts of a responsible government officer and not of the dismissed employee. Based on her allegations, the action is one for quo warranto which prescribes after 1 year from the
ouster. She claims that the action is one for separation from service without just cause with a prescriptive period of 4 years under Article 1146 of the Civil Code and that there is no claim of usurpation.
This cannot be upheld because her separation from service was due to the abolition of her office in implementation of a valid reorganization. This is not the unjustifiable cause whichresults in injury
to the rights of a person contemplated by Article 1146.
Vigilantibus, non dormientibus, jura subveniunt (Laws come to the assistance of the vigilant, not of the sleeping)
Restoring petitioner to her previous position with backwages would be unjust enrichment to her, considering that she had abandoned or showed lack of interest in reclaiming the same position when
the bank was not yet fully rehabilitated and she only insisted on reinstatement in August 1989 or two (2) years after her alleged unjustified separation.
PETITION DISMISSED.
RULE 67 – Expropriation
✓ The power of eminent domain is described as the right to take or reassert dominion over property within the state for public use or to meet a public exigency
✓ Scope of eminent domain as exercised by Congress is plenary and broad, however, may also be delegated to local political subdivisions and public utilities.
✓ Requisites of exercise of eminent domain by local government units (Sec 19, RA 7160)
1. An ordinance enacted by the local legislative council (mere resolution of lawmaking body is not acceptable)
2. Exercised for public use, purpose or welfare for the benefit of the poor and the landless;
3. Payment of just compensation
4. Valid and definite offer previously made to owner but said offer was not accepted
5. Deposit of at least 15% of the fair market value of the property based on the current tax declaration of the property expropriated
✓ Two stages in expropriation process: 1. Determination of authority of plaintiff to expropriate : result in:
a. the issuance of an order of expropriation if the court finds for the plaintiff or
b. The dismissal of complaint
2. Determination of just compensation through the court-appointed commissioners
✓ Just compensation is defined as the full and fair equivalent of the property sought to be expropriated. The measure is not the taker’s gain but the owner’s loss.
✓ Nonpayment of just compensation does not entitle the landowner to recover possession of the expropriated lots. However, in cases where the government failed to pay just compensation within
5 years from the finality of judgment, the owners concerned shall have the right to recover possession of their property.
• Appeal
a. Final order sustaining the right to expropriate may be appealed by any aggrieved party
b. Shall not prevent the court from determining the just compensation to be paid
Appointment of Commissioners
• Court shall appoint not more than 3 competent and disinterested persons as commissioners to report on just compensation for property to be
taken • Appointment shall contain :
a) time and place of first session of hearing
b) time within which report shall be submitted to the court
• Objections to the appointment shall be filed with the court within 10 days from service and resolved within 30 days after receipt by commissioners of the objections
1. Order the commissioner to report when any particular portion of the real estate shall have been passed upon by them
2. Render judgment upon such partial report
3. Direct commissioners to proceed with the subsequent portions of the
property
Full Report
1. Shall not be effectual until courts have accepted report in accordance with recommendations
2. Shall be filed within 60 days from date commissioners were notified of appointment, which time may be extend upon discretion of the court
3. Clerk shall serve copies to all interested parties with notice that they are allowed 10 days which to file objections to the findings of the report
Recordin g Judgment
• Judgment shall contain :
1. Adequate description of the property or interest expropriated;
2. Nature of the public use or purpose
• Copy of judgment shall be recorded in the registry of deeds where property is situated
• Effect : vest in the plaintiff the title to the real estate expropriated
Power of
Guardian
• May, with the approval of the court, do and perform on behalf of his ward any act, matter or thing re: the appropriation
8. Appeal (Sec
11)
• Right of the plaintiff to enter upon property and appropriate the same shall not be delayed by an appeal from the judgment
• If appellate court determines plaintiff had no right to expropriate, RTC shall be ordered to enforce :
a. The restoration to the defendant of the possession of the property
b. Determine the damages which the defendant sustained
✓ RA 8974 – “An Act to Facilitate the Acquisition of Right of Way, Site, or Location for National Government Infrastructure Projects and for Other Purposes”
✓ Supercedes the system of deposit under Rule 67 with the scheme of “immediate payment” in cases involving national government infrastructure projects
Sometime in June 27, 2001, petitioner filed a complaint with the RTC of San Fernando, Pampanga, for the acquisition of an easement of right-of-way over three (3) lots at Barangay Cabalantian,
Bacolor, Pampanga belonging to respondent herein for purposes of construction of its transmission lines for its Lahar Affected Transmission Line Project.
On March 25, 2002, NPC obtained a writ of possession and on April 15, 2002 they took possession of the property.
On hearing the RTC appointed 3 commissioners to determine the fair market value of the property as of 15 April 2002. The first two commissioners appraised the property at P1,900.00 per square
meter or a total of P1,179,000.00. While the third commissioner peg the value of the property at P875.00 per square meter.
The RTC rendered its Partial Decision, wherein it declared the validity of the expropriation and ordered petitioner to pay the sum of P1,179,000.00, with interest at 6% per annum beginning
April 15, 2002, the date of actual taking, until full payment.
Not satisfied with the ruling of lower court NPC elevate the case to CA, which the appellate court also rendered Decision holding petitioner liable to pay the full fair market value at the time of actual
taking, with interest at 6% per annum from 15 April 2002.
Is the reckoning date for the determination of just compensation is upon position or upon the date of
filing?
HELD:
YES. As earlier mentioned, Section 3A of R.A. No. 6395, as amended, substantially provides that properties which will be traversed by transmission lines will only be considered as easements and
just compensation for such right of way easement shall not exceed 10 percent of the market value. However, this Court has repeatedly ruled that when petitioner takes private property to construct
transmission lines, it is liable to pay the full market value upon proper determination by the courts.
The presence of transmission lines undoubtedly restricts respondent’s use of his property. Petitioner is thus liable to pay respondent the full market value of the property.
UPON THE DATE OF FILING. Rule 67 clearly provides that the value of just compensation shall “be determined as of the date of the taking of the property or the filing of the complaint,
whichever came first.”
It is settled that just compensation is to be ascertained as of the time of the taking, which usually coincides with the commencement of the expropriation proceedings. Where the institution
of the
action precedes entry into the property, the just compensation is to be ascertained as of the time of the filing of the complaint.
Based on the foregoing, the reckoning date for the determination of the amount of just compensation is 27 June 2001, the date when petitioner filed its expropriation complaint.
2. Philippine Veterans Bank v. Bases Conversion Development Authority, G.R. No. 173085, Jan 19,
2011
FACTS:
Sometime in 2003 respondent Bases Conversion Development Authority, a government corporation, filed several expropriation actions before the various branches of the RTC of Angeles City, for
acquisition of lands needed for the construction of the Subic-Clark-Tarlac Expressway Project. Ten of these cases were raffled to Branch 58 of the court which was being the concern of this case.
Respondents in Branch 58 cases are Armando Simbillo, Christian Marcelo, Rolando David, Ricardo Bucud, Pablo Santos, Agrifina Enriquez, Conrado Espeleta, Catgerube Castro, Carlito Mercado,
and Alfredo Suarez. All of them are the registered owners of the expropriated lands that they acquired as beneficiaries of the comprehensive agrarian reform program.
Land Bank of the Philippines, another respond herein, is the mortgagee of the lands by virtue of the loans it extended for their acquisition. The lands in these cases were located in Porac
and Floridablanca, Pampanga.
Upon notice of the filing of the case, petitioner herein, move for intervention before the RTC branch 58 which was also denied by said court.
PVB then filed its motion for reconsideration but Branch 58 denied the same, prompting the bank to file a petition for certiorari with the Court of Appeals. The CA on its decision rendered
dismissed the petition for lack of merit. Hence this
case.
ISSUE:
Whether or not intervention in the expropriation cases
allowed?
HELD:
YES. PVB’s point regarding the authority of the court in expropriation cases to hear and adjudicate conflicting claims over the ownership of the lands involved in such cases is valid. But such rule
obviously cannot apply to PVB for the following reasons:
1. At the time PVB tried to intervene in the expropriation cases, its conflict with the farmer beneficiaries who held CLOAs, EPs, or TCTs emanating from such titles were already pending before
Angeles City RTC Branch 62, a co-equal branch of the same court. Branch 58 had no authority to pre-empt Branch 62 of its power to hear and adjudicate claims that were already pending before it.
2.Of course, subsequently, after the CA dismissed PVB’s petition on January 26, 2006, the latter filed a motion for reconsideration, pointing out that it had in the meantime already withdrawn the
actions it filed with Branch 62 after learning from the decision of the Supreme Court in Department of Agrarian Reform v. Cuenca, that jurisdiction over cases involving the annulment of CLOAs
and EPs were vested by Republic Act 6657 in the DARAB.
Branch 58 would still have no power to adjudicate the issues of ownership presented by the PVB’s intervention.
Section 9 above empowers the court to order payment to itself of the proceeds of the expropriation whenever questions of ownership are yet to be settled. There is no reason why this rule
should
not be applied even where the settlement of such questions is to be made by another tribunal. Denied.
The present controversy has its roots with the promulgation of the Court’s decision in Agan v. PIATCO, which nullified the “Concession Agreement for the Build-Operate-and-Transfer
Arrangement of the Ninoy Aquino International Airport Passenger Terminal III” entered into between the Philippine Government and the Philippine International Air Terminals Co., Inc. as well as
the amendments and supplements thereto. On the ground that the said agreement was contrary to public policy.
After the promulgation of the rulings in Agan, the NAIA 3 facilities have remained in the possession of PIATCO, despite the avowed intent of the Government to put the airport terminal into
immediate operation. The Government and PIATCO conducted several rounds of negotiation regarding the NAIA 3 facilities.
Sometime inDecember 21, 2004, the Government filed a Complaint for expropriation with the Pasay RTC, together with an Application for Special Raffle seeking the immediate holding of a special
raffle and sought upon the filing of the complaint the issuance of a writ of possession authorizing it to take immediate possession and control over the NAIA 3 facilities.
The Government also declared that it had deposited the amount of P3,002,125,000.00 in Cash with the Land Bank of the Philippines, representing the NAIA 3 terminal’s assessed value for
taxation purposes.
The case was raffled to the sala of public respondent herein, who issued the same an order directing the issuance of a writ of possession to the Government, authorizing it to “take or enter
upon
the possession”
However, on 4 January 2005, the RTC issued another Order designed to supplement its 21 December 2004 Order and the Writ of Possession noting its earlier issuance of its writ of possession
Accordingly, on the basis of Sections 4 and 7 of R.A. No. 8974 and Section 10 of the Implementing Rules, issued another order. First, it directed theLBP-Baclaran, to immediately release the
amount of US$62,343,175.77 to PIATCO. Second, the Government was directed to submit to the RTC a Certificate of Availability of Funds signed by authorized officials to cover the payment of
just compensation. Third, the Government was directed “to maintain, preserve and safeguard” the NAIA 3 facilities or “perform such as acts or activities in preparation for their direct operation” of
the airport terminal, pending expropriation proceedings and full payment of just compensation. However, the Government was prohibited “from performing acts of ownership like awarding
concessions or leasing any part of NAIA-3 to other parties.”
The government then filed a motion for reconsideration but was denied by public respondent. Hence a Petition for Certiorari and Prohibition under Rule 65 was filed, praying for the
nullification
of the RTC orders dated January 4, 2005, January 7, 2005, and January 10, 2005, and for the inhibition of Hon. Gingoyon from taking further action on the expropriation
case.
ISSUE:
Whether or not Rule 67 prevails over R.A.
8974?
HELD:
NO. Rule 67 outlines the procedure under which eminent domain may be exercised by the Government. Yet by no means does it serve at present as the solitary guideline through which the State may
expropriate private property.
Rep. Act No. 8974, which provides for a procedure eminently more favorable to the property owner than Rule 67, inescapably applies in instances when the national government expropriates
property “for national government infrastructure projects.”[28] Thus, if expropriation is engaged in by the national government for purposes other than national infrastructure projects, the assessed
value property “for national government infrastructure projects.”[28] Thus, if expropriation is engaged in by the national government for purposes other than national infrastructure projects, the
assessed value standard and the deposit mode prescribed in Rule 67 continues to apply.
It is the finding of this Court that the staging of expropriation proceedings in this case with the exclusive use of Rule 67 would allow for the Government to take over the NAIA 3 facilities in a
fashion that directly rebukes our 2004 Resolution in Agan. This Court cannot sanction deviation from its own final and executory orders.
Thus, at the very least, Rule 67 cannot apply in this case without violating the 2004 Resolution. Even assuming that Rep. Act No. 8974 does not govern in this case, it does not necessarily follow
that Rule 67 should then apply. After all, adherence to the letter of Section 2, Rule 67 would in turn violate the Court’s requirement in the 2004 Resolution that there must first be payment of just
compensation to PIATCO before the Government may take over the property.
4. Republic v. Gingoyon, G.R. No. 166429, Feb 1, 2006
FACT:
ibid
ISSUE: Is motion for intervention allowed?
HELD: Since this case originated from an original action filed before this Court, the appropriate time to file the motions-in-intervention in this case if ever was before and not after resolution of this
case. To allow intervention at this juncture would be highly irregular. It is extremely improbable that the movants were unaware of the pendency of the present case before the Court, and indeed none
of them allege such lack of knowledge. ‘
Moreover, the requisite legal interest required of a party-in-intervention has not been established so as to warrant the extra-ordinary step of allowing intervention at this late stage. As earlier
noted, the claims of Takenaka and Asahikosan have not been judicially proved or conclusively established as fact by any trier of facts in this jurisdiction. Certainly, they could not be considered as
indispensable parties to the petition for certiorari.
5. Asia’s Emerging Dragon Corporation v. DOTC, G.R. No. 169914, April 18, 2008
Facts:
This is a consolidated case, but in view of the topic of expropriation we focus more in the case of DOTC vs. SalacnibBaternia.
In order to better appreciate the case we must first discuss the facts and rulings in the case ofAgan andGingoyon.
In 1995 Asia’s Emerging Dragon (AEDC ),( composed of the 6 most influential businessman in the Philippines mainly John Gokongwei, Lucio Tan, Henry Sy, Andrew Gotianun, George Ty and
Alfonso Yuchengco.,) – submitted an unsolicited proposal to the Government through the DOTC for the development of NAIA III under a build-operate-and transfer-arrangement pursuant to RA
6957 as amended by RA 7718. Wherefore the proposal was indeed approved by the Government.
Biddings were held, in which in the end the Project was awarded to PIATCO. Objections were raised by AEDC but in the end the Government justified the award to PIATCO mainly because
AEDC was not able to match the bid of PIATCO.
In 2002 the Build-operate-and transfer-arrangement (BOT) between the GOvt. and PIATCO was questioned in the case of Agan. Wherefore the court ruled among others that, in view of anomalies
in awarding PIATCO the BOT , the contract/ award (BOT) was declared null and void. However the court ruled that it was not unmindful of the reality that the structures comprising the NAIA III
facility are almost complete and that the funds have been spent by PIATCO in their construction. For the Government to take over said facility, it has to compensate respondent PIATCO as builder
of the said structures. The compensation must be just and accordance with law and equity for the government can not unjustly enriched itself at the expense of PIATCO and its investors. The
abovementioned pronouncement of the Court in Agan gave rise to the petition in the GIngoyan case. The facts of which are as follows .After the promulgation of the ruling in Agan case,
NAIA III was still in the possession of PIATCO, despite the avowed intent of the Government to put the airport terminal into immediate operation. Whereby the Govt. and PIATCO entered into
several rounds of negotiation and even appeared before arbitral proceedings before International Chamber of Commerce International Court of Arbitration.
Then on, Dec. 21, 2004 the Govt filed a complaint for expropriation with the Pasay RTC. The Govt seeks the issuance of a writ of possession authorizing immediate possession of NAIA III, it
also declared that it had deposited the amount of 3 Billion in cash with the Land Bank, representing the NAIA 3 terminal assessed value for tax purposes. The RTC through Judge Gingoyonissued
in the same day the Writ of Possession prayed for by the Government citing the case of Manila vs. Serrano that the RTC had the ministerial duty to issue the writ of possession upon filing of a
complaint for expropriation sufficient in form and substance, and upon deposit made by the Government of the amount equivalent to assessed value of the property subject for expropriation.
However, on Jan 4. 2005, the RTC issued another order – the assailed order in this case of Gingoyon- to supplement its earlier order dated Dec. 21, 2004. The RTC noted that the first order was
issued pursuant to Sec. 2, Rule 67 of the Rules of Court. However, it was observed that R.A.8974, had amended Rule 67 in many respects. That there are at least two crucial differences between the
respective procedures under RA 8974 and Rule 67. Under the Statute the Govt. is required to make immediate payment to the property owner upon filing of the complaint to be entitled to a writ of
possession, whereas in Rule 67, the Govt. is required only to make an initial deposit with an authorized government depositary. Moreover Rule 67 prescribes that the initial deposit be equivalent to
the assessed value of the property for purposes of Tax, unlike in RA 8974 which provides, as the relevant standard for initial compensation, the market value of the property as stated in the tax
declarations or the current relevant zonal valuation of the BIR, whichever is higher, and the value of the improvements and/or structure using the replacement cost method.
The Supreme Court held the validity of the RTC’s ruling. It held among others that 1. RA 8947 applies in this case, particularly insofar as it requires the immediate payment by the Govt. of
at
least the proferred value of the NAIA III facilities to PIATCO and provides certain valuation standard method for the determination of just compensation. 2. That in applying RA 8974, the
implementation of Writ of Possession in favour of the Govt over NAIA is held in abeyance until PIATCO is directly paid the amount of 3 Billion pesos, representing the proferred value of NAIA
III 3. The Govt. shall pay the just compensation fixed in the decision of the trial court to PIATCO immediately upon the finality of said decision.
Finally we tackle the facts of the case of Republic vs. CA and Baterina. Congressman Baterina, together with other member of the Lower House filed a petition for Prohibition in
Intervention with application for TRO. Baterina, et. al believes that the Govt. need not file expropriation proceedings to gain possession if NAIA 3 and that PIATCO is not entitled to just
compensation, arguing that PIATCO does not own NAIA 3 because BOT contract do not vest ownership. That the land in which NAIA 3 is situated is owned by the Government.
Issue:
In essence, Baterina is opposing the expropriation proceedings on the ground that NAIA 3 is already a public property. Hence PIATCO is not entitled to just compensation for NAIA 3.
HELD: PIATCO is entitled to just compensation and that the expropriation proceedings commenced by the Government was proper and valid.. The Government has chosen to resort to
expropriation, a remedy available under the law, which has the added benefit of an integrated process for the determination of just compensation and the payment thereof to PIATCO. We
appreciate that the case at bar is a highly unusual case, whereby the Government seeks to expropriated a building complex constructed on land which the State already owns.
The right of eminent domain extends to personal property and real property, and the NAIA 3 structures, adhered as they are to the soil, are considered real property. The public purpose for
the
expropriation is also beyond dispute. It should also be noted that Section 1 of Rule 67 recognizes the possibility that the property sought to be expropriated may be titled in the name of the Republic
of the
Philippines, although occupied by private individuals, and in such case an averment to that effect should be made in the complaint. The instant expropriation complaint did aver that the NAIA 3
complex
“stands on a parcel of land owned by the Bases Conversion Development Authority, another agency of the Republic”. Admittedly, eminent domain is not the sole judicial recourse by which the
government may have acquired the NAIA 3 facilities while satisfying the requisites in the order held by the SC in the Case of Agan. Eminent Domain though may be the most effective, as well as
the speediest means by which such goals may be accomplished. Not only does it enable immediate possession after satisfaction of the requisites under the law, it also has a built-in procedure
through which just compensation may be ascertained. Thus, there should be no question as to the propriety of eminent domain proceedings in this case.
Two consecutive motions for reconsideration of the said consolidated decision were filed by the petitioner. The same were denied by the respondent court. Petitioner did not appeal the aforesaid
consolidated decision, which became final and executory.Thus, on May 16, 1980, one of the private respondents [Sittie Sohra Batara] filed an ex-parte motion for the execution of the June 15, 1979
decision, praying that petitioner be directed to pay her the unpaid balance of P14,300.00 for the lands expropriated from her, including legal interest which she computed at 6% per annum. The said
motion was granted by the lower court. Thereafter, the lower court directed the petitioner to deposit with its Clerk of Court the sums of money as adjudged in the joint decision dated June 15, 1979.
Petitioner complied with said order and deposited the sums of money with interest computed at 6% per annum. On February 10, 1981, one of the private respondents [Pangonatan Cosna Tagol],
through counsel, filed with the trial court anex-parte motion in Civil Case No. 2248 praying, for the first time, that the legal interest on the just compensation awarded to her by the court be
computed at 12% per annum as allegedly "authorized under and by virtue of Circular No. 416 of the Central Bank issued pursuant to Presidential Decree No. 116 and in a decision of the Supreme
Court that legal interest allowed in the judgment of the courts, in the absence of express contract, shall be computed at 12% per annum."
On February 11, 1981, the lower court granted the said motion allowing 12% interest per annum. [Annex L, Petition]. Subsequently, the other private respondents filed motions also praying that the
legal interest on the just compensation awarded to them be computed at 12% per annum, on the basis of which the lower court issued on March 10, 1981 and August 28, 1981 orders bearing similar
import. Petitioner moved for a reconsideration of the lower court's last order dated August 28, 1981, alleging that the main decision had already become final and executory with its compliance of
depositing the sums of money as just compensation for the lands condemned, with legal interest at 6% per annum; that the said main decision can no longer be modified or changed by the lower
court; and that Presidential Decree No. 116 is not applicable to this case because it is Art. 2209 of the Civil Code which applies.
On January 25, 1982, the lower court denied petitioner's, motion for reconsideration, stating that the rate of interest at the time of the promulgation of the June 15, 1981 decision is that
prescribed by Central Bank Circular No. 416 issued pursuant to Presidential Decree No. 116, which is 12% per annum, and that it did not modify or change but merely amplified its order of
August 28, 1981 in the determination of the legal interest. Issue:
Issue:
WON in the computation of the legal rate of interest on just compensation for expropriated lands, the law applicable is Article 2209 of the Civil Code which prescribes a 6% legal interest rate or
Central Bank Circular No. 416 which fixed the legal interest rate at 12% per annum.
Ruling: WHEREFORE, the petition is granted. The Orders promulgated on February 11, 1981, March 10, 1981, August 28, 1981 and January 25, 1982 [as to the recomputation of interest at 12%
per
annum] are annulled and set aside. It is hereby declared that the computation of legal interest at 6% per annum is the correct and valid legal interest allowed in payments of just compensation for lands
expropriated for public use to herein private respondents by the Government through the National Power Corporation. The injunction heretofore granted is hereby made permanent. No costs.
FACTS:
The City Council of Manila enacted Ordinance No. 7833 authorizing the expropriation of certain properties in Manila’s First District in Tondo. One of the properties sought to be expropriated was
that supposedly owned by respondents.
Petitioner City of Manila filed an amended complaint for expropriation, docketed as Civil Case No. 94-72282, with the RTC of Manila, against the supposed owners of the lots, which included herein
respondents Oscar, Felicitas, Jose, Benjamin, Estelita, Leonora, Adelaida, all surnamed Serrano.
Respondents filed a consolidated answer, in which they alleged that their mother, the late Demetria De Guia, had acquired Lot 1-C from Lee Kian Hui; that they had been the bona fide occupants of
the said parcel of land for more than 40 years; that the expropriation of Lot 1-C would result in their dislocation, it being the only residential land left to them by their deceased mother; and that the
said lot was exempt from expropriation because dividing the said parcel of land among them would entitle each of them to only about 50 square meters of land. Respondents, therefore, prayed that
judgment be rendered declaring Lot 1-C exempt from expropriation and ordering the cancellation of the notice annotated on the back of TCT No. 226048, regarding the pendency of Civil Case No.
94-72282 for eminent domain filed by petitioner.
Upon motion by petitioner, the trial court issued an order, dated October 9, 1998, directing petitioner to deposit the amount of P1,825,241.00 equivalent to the assessed value of the properties. After
petitioner had made the deposit, the trial court issued another order, dated December 15, 1998, directing the issuance of a writ of possession in favor of petitioner.
Respondents filed a petition for certiorari with the Court of Appeals, alleging that the expropriation of Lot 1-C would render respondents, who are actual occupants thereof, landless; that Lot 1-C is
exempt from expropriation because R.A. No. 7279 provides
that properties consisting of residential lands not exceeding 300 square meters in highly urbanized cities are exempt from expropriation; that respondents would only
receive around 49 square meters each after the partition of Lot 1-C which consists of only 343.10 square meters; and that R.A. No. 7279 was not meant to deprive an
owner of the entire residential land but only that in excess of 300 square meters.
On November 16, 1999, the Court of Appeals rendered a decision holding that Lot 1-C is not exempt from expropriation because it undeniably exceeds 300 square
meters which is no longer considered a small property within the framework of R.A. No. 7279. However, it held that in accordance with the ruling in Filstream
International Inc.
v. Court of Appeals, the other modes of acquisition of lands enumerated in §§9-10 of the law must first be tried by the city government before it can resort to expropriation. As petitioner failed to
show that it had done so, the Court of Appeals gave judgment for respondents and enjoined petitioner from expropriating Lot 1-C.
ISSUE:
WON the CA erred in concluding that the Order of the RTC which authorizes the immediate entry of the City as the expropriating agency into the property sought to be expropriated upon the
deposit thereof as tantamount to condemnation of the property.
RULING:
YES. Rule 67, §2 provides: Upon the filing of the complaint or at any time thereafter and after due notice to the defendant, the plaintiff shall have the right to take or enter upon the possession of
the real property involved if he deposits with the authorized government depositary an amount equivalent to the assessed value of the property for purposes of taxation to be held by such bank
subject to the orders of the court. After such deposit is made the court shall order the sheriff or other proper officer to forthwith place the plaintiff in possession of the property involved and
promptly submit a report thereof to the court with service of copies to the parties. Thus, a writ of execution may be issued by a court upon the filing by the government of a complaint for
expropriation sufficient in form and substance and upon deposit made by the government of the amount equivalent to the assessed value of the property subject to expropriation. Upon compliance
with these requirements, the issuance of the writ of possession becomes ministerial. In this case, these requirements were satisfied and, therefore, it became the ministerial duty of the trial court to
issue the writ of possession.
The Court of Appeals, however, ruled that petitioner failed to comply with the requirements laid down in §§9-10 of R.A. No. 7279 and reiterated in the Filstream ruling. This is error. The ruling in
Filstream was necessitated because an order of condemnation had already been issued by the trial court in that case. Thus, the judgment in that case had already become final. In this case, the trial
court has not gone beyond the issuance of a writ of possession. Hearing is still to be held to determine whether or not petitioner indeed complied with the requirements provided in R.A. No. 7279. It
is, therefore, premature at this stage of the proceedings to find that petitioner resorted to expropriation without first trying the other modes of acquisition enumerated in §10 of the law. Expropriation
proceedings consists of two stages: first, condemnation of the property after it is determined that its acquisition will be for a public purpose or public use and, second, the determination of just
compensation to be paid for the taking of private property to be made by the court with the assistance of not more than three commissioners.
Facts:
Helena Benitez is a registered owner of 2 parcels of land in Bgy. Salwag, Dasmarinas, Cavite. Sometime in Sept. 1982, the Philippine Government, through the Philippine Human Resources
Development
Center (PHRDC), an agency under the Ministry of Human Settlements, negotiated with the Japanese International Cooperation Agency (JICA) Survey Team on technicalities of the establishment of
ASEAN Human Resources Development Project in the Philippines. Among the the 5 main programs of the proposed project was the Construction Manpower Development Center (CMDC), an
agency now under the Department of Trade and Industry.
Several transaction and agreements were entered into between Benitez (together with Philippine Women’s University) and the PHRDC with regards to the lease and consequently, the possible sale
of the land which did not push through because of Benitez’s desistance. Thereafter, Benitez and PWU demanded from PHRDC the payment of rentals and to vacate the premises. Benitez later filed
an unlawful detainer case against PHRDC. In turn, the state through DTI (with GMA as undersecretary), to which CMDF is attached instituted a complaint for Eminent Domain, pursuant to EO
1935. In compliance with Section 2, Rule 67 of the Rules of Court, as amended by Presidential Decree No. 42, DTI deposited with PNB in favor of Benitez P708,490 an amount equivalent to the
provisional value of the land sought to be expropriated. Subsequently, DTI filed a Motion for Issuance of Writ of Possession which had been granted but subsequently quashed by MTC Judge
Tagle.
Issue:
Whether Judge Tagle may quash a writ of possession on the ground that the expropriating government agency is already occupying the property sought to be expropriated.
Held:
No. Judge Tagle is required to issue a writ of possession in favor DTI pursuant to Sec. 7 of EO 1035:
“SEC 7. Expropriation. If the parties fail to agree in negotiation of the sale of the land as provided in the preceding section, the government implementing agency/instrumentality concerned shall
have authority to immediately institute expropriation proceedings through the Office of the Solicitor General, as the case may be. The just compensation to be paid for the property acquired through
expropriation shall be in accordance with the provisions of P.D. No. 1533. Courts shall give priority to the adjudication of cases on expropriation and shall immediately issue the necessary writ of
possession upon deposit by the government implementing agency/instrumentality concerned of an amount equivalent to ten per cent (10%) of the amount of just compensation provided under P.D.
No. 1533; Provided, That the period within which said writ of possession shall be issued shall in no case extend beyond five (5) days from the date such deposit was made.”
Under this statutory provision, when the government or its authorized agent makes the required deposit, the trial court has a ministerial duty to issue a writ of possession.
The expropriation of real property does not include mere physical entry or occupation of land. Although eminent domain usually involves a taking of title, there may also be compensable taking of
only some, not all, of the property interests in the bundle of rights that constitute ownership. The writ of possession is both necessary and practical, because mere physical possession that is gained
by entering the property is not equivalent to expropriating it with the aim of acquiring ownership over, or even the right to possess, the expropriated property.
Clearly, an ejectment suit ordinarily should not prevail over the State’s power of eminent domain. DTI has deposited not just the 10 percent required under EO 1035, but the whole amount of the
just compensation that private respondent is entitled to. Thus, there is no any legal impediment for the issuance of a writ of possession in favor of DTI. Precisely, the purpose of instituting
expropriation proceedings is to prevent petitioner from being ejected from the subject property; otherwise, the above-mentioned absurd and circuitous rulings would arise.
FACTS: On 17 September 1993, petitioner City of Cebu filed a complaint for eminent domain against respondents spouses Apolonio and Blasa Dedamo. The petitioner alleged therein that it
needed the land for a public purpose, i.e., for the construction of a public road which shall serve as an access/relief road of Gorordo Avenue to extend to the General Maxilum Avenue and the back
of Magellan International Hotel Roads in Cebu City. The lower court fixed the amount of just compensation at P20,826,339.50.
Petitioner alleged that the lower court erred in fixing the amount of just compensation at P20,826,339.50. The just compensation should be based on the prevailing market price of the
property at the commencement of the expropriation proceedings.
The petitioner did not convince the Court of Appeals, which affirmed the lower court’s decision in toto.
ISSUE: Whether or not just compensation should be determined as of the date of the filing of the complaint.
HELD: NO. In the case at bar, the applicable law as to the point of reckoning for the determination of just compensation is Section 19 of R.A. No. 7160, which expressly provides that just
compensation shall be determined as of the time of actual taking.
The petitioner has misread our ruling in The National Power Corp. vs. Court of Appeals. We did not categorically rule in that case that just compensation should be determined as of the filing of the
complaint. We explicitly stated therein that although the general rule in determining just compensation in eminent domain is the value of the property as of the date of the filing of the complaint, the
rule
"admits of an exception: where this Court fixed the value of the property as of the date it was taken and not at the date of the commencement of the expropriation proceedings."
11. BPI v. Court of Appeals, G.R. No. 160890, November 10, 2004
NATURE
Petition for review under Rule 45, assailing the CA Decision which reversed RTC Imus, Cavite Decision reducing from P10,000.00 to P3,000.00 the amount of just compensation for the expropriated
land Petition for review under Rule 45, assailing the CA Decision which reversed RTC Imus, Cavite Decision reducing from P10,000.00 to P3,000.00 the amount of just compensation for the
expropriated land of BPI and decreasing from P10,000.00 to P3,000.00 the commissioners’ fee for each of the three commissioners.
FACTS
- April 15, 1996 > NAPOCOR filed a Complaint for Eminent Domain, seeking to expropriate a portion of BPI property in Barrio Bucal, Dasmariñas, Cavite, for the purpose of constructing and
maintaining its Dasmariñas-Zapote 230 KV Transmission Line Project.
- August 1, 1996 > pursuant to Sec 2 of Rule 67 RoC, NAPOCOR deposited with PNB in Quezon City, P3,013.60 - equivalent to the assessed value of the property
- August 15, 1996 > NAPOCOR notified BPI, through registered mail, of its intention to take possession of the property. Thereafter, the trial court granted their urgent ex-parte motion for the issuance
of awrit of possession and authorized them to enter and take possession of the premises.
- Previously, BPI filed a motion for bill of particulars which the trial court denied. Consequently, BPI moved for the dismissal of the case and the same was granted without prejudice to its
reinstatement.- NAPOCOR filed an MFR. RTC granted the motion and reinstated the case.
- November 28, 1997 > In its Order , RTC designated 3 commissioners to determine the just value of the property subject of the expropriation in this case
- February 26, 1999 > the Commissioners submitted its Report which assessed the sum of the area of the property taken: 75.34 square meters (TIMES) estimated value of just compensation:
P10,000.00 = P753,400.00 and recommended an additional payment as severance damage: P524,660.00 TOTAL: P1,278,060.00.
Likewise, they submitted an undated Commissioners’ Valuation Report citing the “Market Data Approach” as the method used in arriving at the amount of P10,000.00 per square meter as just
compensation, whereby the value of the land is based on sales and listing of comparable property registered within the immediate vicinity.
- August 5, 1999 > RTC rendered judgment in favor of BPI ordering NAPOCOR to pay (75.34 sqm x P10,000 per sqm) P753,400.00 with legal rate of interest reckoned from the date of possession
by theplaintiff.
- After the denial of its motion for reconsideration, NAPOCOR appealed to CA, which REVERSED the RTC decision. A new one is entered ordering NAPOCOR to pay BPI P3,000.00 per square
meter asjust compensation for the expropriated land; and P3,000.00 commissioner’s fee to each of the three (3) commissioners.
- BPI moved for the reconsideration of CA decision but the same was denied for lack of merit.
ISSUES
WON CA gravely abused its discretion and seriously erred in fixing the just compensation for the subject property at P3,000.00 per square
meter
HELD
.
NO
Ratio Just compensation is defined as the full and fair equivalent of the property taken from its owner by the expropriator. The measure is not the taker’s gain, but the owner’s loss. To compensate
is to render something which is equal in value to that taken or received. The word “just” is used to intensify the meaning of the word “compensation”; to convey the idea that the equivalent to be
rendered for the property taken shall be real, substantial, full, ample. In eminent domain or expropriation proceedings, the general rule is that the just compensation which the owner of condemned
property is entitled to is the market value. Market value is “that sum of money which a person desirous but not compelled to buy, and an owner willing but not compelled to sell, would agree on as
a price to be given and received therefor.”
Reasoning
- After a careful perusal of the records, we find no reason to disturb this finding of fact by the Court of Appeals, sufficiently supported as it is, by the evidence on record.
> In this instance, we accord more weight to Resolution No. 08-95 promulgated by the Provincial Appraisal Committee of Cavite held at the Office of the Provincial Assessor on October 25, 1995.
Said Resolution pegs as fair and reasonable the value of P3,000.00 per square meter of all the lots in the Municipality of Dasmariñas, specifically along General Aguinaldo Highway.
> The just compensation is determined as of the date of the taking of the property or the filing of the complaint whichever came first. NAPOCOR filed the complaint on April 15, 1996. A period
of 6 months has elapsed from the valuation of the Provincial Assessors and the filing of the complaint. We note the considerable discrepancy between the valuation of the former and that of the
Commissioners. Indeed, the appellate court computed the increase of the valuation to be 233%.
> The Court of Appeals pointed out that more than 70% of the 200 lot owners have entered into compromise agreements and accepted the price set by the Provincial Appraisal Committee of Cavite.
It is also worthy to note that one of the Commissioners in this case, Mr. Lamberto C. Parra, was the Chairman Provincial Assessor and signatory of the same Resolution.
- We find that the rate imposed by the Commissioners is unsubstantiated. No official documents were presented to reflect the true market value of the subject lots in the surrounding area. The
Commissioner’s Report merely states that the value of the land is based on sales and listings of comparable property registered within the immediate vicinity without any evidence to support the
market data provided.
Disposition Petition for review on certiorari is DENIED. CA Decision which reversed RTC Decision is AFFIRMED in toto.
12. Bardillon v. Barangay Masili, G.R. No. 146886, April 30,
2003
FACTS:
Two [C]omplaints for eminent domain were filed by herein respondent for the purpose of expropriating the land owned by petitioner.
1st [C]omplaint [Civil Case No. 3648] was filed before the MTC on Feb. 23, 1998, following the failure of Barangay Masili to reach an agreement with herein petitioner on the purchase
offer of P200,000.00. The expropriation of Lot 4381-D was being pursued in view of providing Barangay Masili a multi-purpose hall for the use and benefit of its constituents.
MTC dismissed the case ‘for lack of interest’ for failure of the [respondent] and its counsel to appear at the pre-trial.
2nd [C]omplaint [Civil Case No. 2845-99-C] was filed before RTC on October 18, 1999. This [C]omplaint also sought the expropriation of the said Lot 4381-D. Petitioner, by way of a Motion
to Dismiss, opposed this [C]omplaint by alleging in the main respondent’s cause of action is barred by prior judgment, pursuant to the doctrine of res judicata.
Judge denied petitioner’s Motion to Dismiss, holding that the MTC which ordered the dismissal of Civil Case No. 3648 has no jurisdiction over the said expropriation proceeding. 2nd
complaint
was ordered in favor of Barangay Masili.
Court of Appeals
CA held that RTC did not commit grave abuse of discretion in issuing the assailed Orders. It ruled that the second Complaint for eminent domain was not barred by res judicata. The reason is
that the MTC had no jurisdiction over the action.
ISSUES:
CA: held that the assessed value of the property was P28,960. Thus, MTC did not have jurisdiction over the expropriation proceedings, because the amount involved was beyond the P20,000
jurisdictional amount cognizable by MTCs.
An expropriation suit does not involve the recovery of a sum of money. Rather, it deals with the exercise by the government of its authority and right to take property for public use. As such, it is
incapable of pecuniary estimation and should be filed with the regional trial courts regardless of the value of the land.
Condemnation proceedings are within the jurisdiction of Courts of First Instance, the forerunners of the regional trial courts. The Judiciary Act of 1948 which, like BP 129 in respect to RTCs,
provided that courts of first instance had original jurisdiction over ‘all civil actions in which the subject of the litigation is not capable of pecuniary estimation’.
While it is true that the value of the property to be expropriated is estimated in monetary terms, for the court is duty-bound to determine the just compensation for it, this, however, is merely incidental
to the expropriation suit. Indeed, that amount is determined only after the court is satisfied with the propriety of the expropriation.
Rule 68
FORECLOSURE OF REAL ESTATE MORTGAGE
Foreclosure of mortgage is the remedy available to the morgagee by which he subjects the mortgage property to the stipulation of the obligation for which the mortgage was given.
2. Foreclosure of the mortgage (judicial under Rule 68 or extrajudicial under Act No. 3135);
3. Simple action for collection (Bacrach Motor Co. vs. Carangal, 68 Phil. 287)
The rule is settled that a mortgage creditor may, in the recovery of a debt secured by real estate mortgage, institute against the mortgage debtor either personal action for debt or a real action to
foreclose the mortgage. These remedies available to the creditor are deemed alternative not cumulative. An election of one remedy operates as waiver of the other (Bacrach Motor Co. vs.
Carangal, 68 Phil. 287).
However, the rule will not bar the filing of another action for the recovery of the balance left after the foreclosure sale of the mortgaged properties.
Given the fact that the proceeds of the auction sale were not sufficient to answer the entire obligation of petitioners to respondent bank, the latter has the right to recover the balance due it after
applying the proceeds of the sale. We agree with the CA that where the mortgage creditor chooses the remedy of foreclosure and the foreclosure sale are insufficient to cover the debt, the
mortgagee is entitled to claim the deficiency from the debtor (Suico Rattan and Buri Interiors, Inc. vs. CA, G.R. No. 133145).
The creditor cannot appropriate the things given by way of pledge or mortgage, or dispose them. Any stipulation to the contrary is null and void.
Section 1. Complaint in action for foreclosure. — In an action for the foreclosure of a mortgage or other encumbrance upon real estate, the complaint shall set
forth a. the date and due execution of the mortgage;
e. a statement of the date of the note or other documentary evidence of the obligation secured by the mortgage, the amount claimed to be unpaid thereon;
f. and the names and residences of all persons having or claiming an interest in the property subordinate in right to that of the holder of the mortgage, all of whom shall be made defendants in
the action. (1a)
2. The persons who own, occupy or control the mortgaged premises or any other part thereof (Soriano vs. Enriquez, 24 Phil. 584).
5. The mortgagor.
Equitable mortgage is one which although lacking in some formality, or form or words, or other requisites demanded by a statute, nevertheless reveals intention of the parties to change real property
as security for a debt, and contains nothing impossible or contrary to law (Sps. Sibug vs. Sps. Suba, G.R. No. 137792)
A subordinate lien holder is a proper, even a necessary, but not an indispensable, party to a foreclosure proceeding (Looyuko vs. CA, G.R. No.102696).
A first mortgagee is not a necessary party in the foreclosure of a second mortgage but he may be joined or may intervene when the mortgage debt is already due (De Castro vs. IAC, 165 SCRA 654).
b. The remedy is a separate foreclosure proceeding to require them to redeem from the first mortgagee, or the party acquiring title to the mortgaged property at the forclosure sale, within
90 days (Looyuko vs. CA, supra
b. shall render judgment for the sum so found due and order that the same be paid to the court or to the judgment obligee within a period of not less than ninety (90) days nor more than one
hundred twenty (120) days from the entry of judgment, and that in default of such payment the property shall be sold at public auction to satisfy the judgment. (2a)
Equity of Redemption Right of Redemption
Right of defendant mortgagor to Right of the debtor to redeem the
extinguish the mortgage and retain property within 1 year from
ownership of the property by paying registration of the Sheriff’s
the debt within 90-120 days after certificate of foreclosure sale in an
entry of judgment or even after the extrajudicial foreclosure under Act
foreclosure sale but prior to 3135.
confirmation, in the case of judicial
foreclosure under Rule 68.
Where a mortgaged is foreclosed extrajudicially, act 3135 grants to the mortgagor the right of redemption within 1 year from registration of the sheriff’s certificate of foreclosure sale. Where the
foreclosure is judicially effected, however, no equivalent right of redemption exists, except only where the mortgagee is the Philippine National bank or a bank or banking institution (Huerta Alba
resort Inc. vs. CA, G.R. No. 128667).
When the defendant, after being directed to do so as provided in the next preceding section, fails to pay the amount of the judgment within the period specified
therein,
-the court, upon motion shall order the property to be sold in the manner and under the provisions of Rule 39 and other regulations governing sales of real estate under execution.
Such sale shall not affect the rights of persons holding prior encumbrances upon the property or a part thereof, and when confirmed by an order of the court, also upon motion, it shall operate to divest
the rights in the property of all the parties to the action and to vest their rights in the purchaser, subject to such rights of redemption as may be allowed by law.
Upon the finality of the order of confirmation or upon the expiration of the period of redemption when allowed by law, the purchaser at the auction sale or last redemptioner, if any,
a. shall be entitled to the possession of the property unless a third party is actually holding the same adversely to the judgment obligor
b. said purchaser or last redemptioner may secure a writ of possession, upon motion, from the court which ordered the foreclosure. (3a)
Three kinds of sale:
Rule 39 Rule 68 Act 3135
Ordinary execution Judicial foreclosure Extrajudicial foreclosure
sale sale sale
After the sale of mortgaged property and before its confirmation, the court may still grant the judgment debtor an opportunity to pay the amount of judgment.
Notice and hearing of a motion for confirmation are essential to the validity of the order of confirmation, not only to enable the interested parties to resist the motion but also to inform them of the
time when the right of redemption is cut off (Tiglao vs. Botones, 90 Phil 275).
The amount realized from the foreclosure sale of the mortgaged property shall, after deducting the costs of the sale, be paid to the person foreclosing the mortgagee, and when there shall be any
balance or residue, after paying off the mortgage debt due, the same shall be paid to junior encumbrancers in the order of their priority, to be ascertained by the court, or if there be no such
encumbrancers or there be a balance or residue after payment to them, then to the mortgagor or his duly authorized agent, or to the person entitled to it. (4a) Disposition of the proceeds of the sale in
foreclosure shall be as follows:
a. First, pay the costs to court;
d. Give the balance to the mortgagor, his agent or person entitled to it. (Suico vs. PNB, G.R. No. 170215, August 28, 2007)
Section 5. How sale to proceed in case the debt is not all due. —
If the debt for which the mortgage or encumbrance was held is not all due as provided in the judgment as soon as a sufficient portion of the property has been sold to pay the total amount and the
costs due, the sale shall terminate; and afterwards as often as more becomes due for principal or interest and other valid charges, the court may, on motion, order more to be sold. But if the property
cannot be sold in portions without prejudice to the parties, the whole shall be ordered to be sold in the first instance, and the entire debt and costs shall be paid, if the proceeds of the sale be sufficient
therefor, there being a rebate of interest where such rebate is proper. (5a)
If the debt for which the mortgage or encumbrance was held is not all due
a. the sale shall terminate
Section 6. Deficiency judgment. — If upon the sale of any real property as provided in the next preceding section there be a balance due to the plaintiff after applying the proceeds of the sale, the
court, upon motion, shall render judgment against the defendant for any such balance for which, by the record of the case, he may be personally liable to the plaintiff, upon which execution may issue
immediately if the balance is all due at the time of the rendition of the judgment; otherwise; the plaintiff shall be entitled to execution at such time as the balance remaining becomes due under the
terms of the original contract, which time shall be stated in the judgment. (6a)
Deficiency judgment is a judgment by the court upon motion and showing that the proceeds from the sale of the property are not sufficient for the payment of the judgment debt.
2. Where the mortgagor is a non resident who failed to submit himself to the jurisdiction of the court. Deficiency judgment cannot be rendered against a non-resident defendant (Banco
Espanol Filipino vs. Palanca, 37 Phil. 921).
3. Where the mortgagor dies after the rendition of the judgment of foreclosure. A motion for deficiency judgment may be made only after the sale and after it becomes known that the
deficiency exists.
Section 7. Registration. — A certified copy of the final order of the court confirming the sale shall be registered in the registry of deeds.
If no right of redemption exists
a. the certificate of title in the name of the mortgagor shall be cancelled and;
b. the certificate of sale and the order confirming the sale shall be registered
c. a brief memorandum made by the registrar of deeds upon the certificate of title shall be registered
In the event the property is redeemed
a. the deed of redemption shall be registered with the registry of deeds
b. a brief memorandum thereof shall be made by the registrar of deeds on said certificate of title
If the property is not redeemed
-the final deed of sale executed by the sheriff in favor of the purchaser at the foreclosure sale shall be registered with the registry of deeds; whereupon the certificate of title in the name of
the
mortgagor shall be cancelled and a new one issued in the name of the purchaser. (n)
Section 8. Applicability of other provisions. — The provisions of sections 31, 32 and 34 of Rule 39 shall be applicable to the judicial foreclosure of real estate mortgages under this Rule insofar as
the former are not inconsistent with or may serve to supplement the provisions of the latter. (8a)
RULE 69
PARTITION
Partitiion, defined
Partition is a division between two or more persons or real or personal property which they own as co-partners, joint tenants or tenants in common effected by the setting apart of such
interest so
that they may enjoy it in severality or by a sale of the whole and awarding to each of his share of the proceeds.
Purpose of partition
To separate, divide and assign a thing held in common to those whom it may belong.
Note: An action for partition does not prescribe, as long as the co-ownership still exist, and it will lie at anytime. (Bicarme vs. CA, et al. G.R. No. L-51914, June 6,1990.186 SCRA 294).
Kinds of partition
Modes of Partition
Parties
1. Before Judgment- not a ground for motion to dismiss; remedy is to file a motion to include the party.
2. After Judgment–Judgment is void because co wners are indispensable parties.
Procedure in Partition
Forcible Entry is a special civil action to recover material or physical possession of real property when the plaintiff’s deprivation of possession to his real property is through force,
intimidation,
strategy, threat or stealth (FISTS). It is founded upon illegal occupation from the very beginning. [Example- Squatting]
Unlawful detainer is a special civil action to recover material or physical possession of real property from a person unlawfully detaining the same as tenant, or other person. It is founded on
unlawful detention by a person who originally acquired possession of the real property lawfully. (Medel vs. Militante, 41 Phil. 44).
1. Accioninterdictal, or an ejectment proceeding which may be either that for forcible entry (detentacion) or unlawful detainer (desahucio), which is a summary action for the recovery of physical
possession where the dispossession has not lasted for more than one year, and should be brought in the proper inferior court.
2. Accionpubliciana or the plenary action for the recovery of the real right of possession, which should be brought in the proper Regional Trial Court when the dispossession has lasted for more
than one year, (VictorianoEncarnacion vs. Nieves Amigo),and
3. Action reinvindicatoria which is an action for the recovery of ownership which must be brought in the proper Regional
Trial Court.
Note:
1. Both actions must be brought within one (1) year in the city or municipality where the property is located (Refugia vs. CA, July 23, 1992) within one (1) year from the time possession
became unlawful. Example: Expiration of one year (1) year lease contract. (Benitez vs. CA, Jan 16,1977):
2. The issue involved is material or physical possession or de facto and not juridical possession or de jure. (Refugia vs. CA, Supra).
Note: Any one of the co – owners may bring an action in ejectment. (Sps. Mendoza vs. Coronel).
Issue to be determined
In unlawful detainer and forcible entry cases, the only issue to be determined is who between the contending parties has better possession of the contested property. (A. Bejar vs. Caluag,
supra)
It is only where there has been forcible entry that as a matter of public policy the right to physical possession should be immediately set at rest in favor of the prior possession regardless of
the
fact that the other party might ultimately be found to have superior claim to the premises involved thereby to discourage any attempt to recover possession thru force,strategy or stealth and without
resorting to the courts. (Victoria Fernando vs. SpsLim )
1. Writ of preliminary Injunction – to prevent the defendant from committing further acts of disposition against plaintiff. 2. Writ of Preliminary Mandatory Injunction – to restore the plaintiff
in his possession, to be filed within ten (10) days from filing of complaint, the court shall decide the motion within 30 days. (Sec. 10, Rule 70).
Jurisdiction
Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Courts shall have exclusive original jurisdiction over cases of forcible entry and unlawful detainer.
Inferior courts have jurisdiction to resolve the question of ownership raised as an incident in an ejectment case where a determination thereof is necessary for a proper and complete
adjudication
of the issue of possession. (SpsRefugia vs. CA).
Note: A pending civil action involving ownership of the same property does not justify the suspension of the ejectment proceedings. (Sps. Barnachea vs. CA).
Absence of Title over the disputed property will not divest the Courts of jurisdiction to resolve the issue of possession. (Pajuyo vs. Ca and Guevarra).
Rule on Execution of Judgment In Ejectment
Cases
General Rule: After court (MTC) rendered judgment, execution may issue immediately.
1. Perfected an appeal;
2. Put up supersedeasbond to stay execution; and 3. Deposits rental due during the pendency of appeal. (Aznar Bros. Realty Co. vs. CA, March
7, 2000 and Chua, et al vs. CA, et al, Feb.24, 1998).
Distinction between
Note: All cases of forcible entry and unlawful detainer are governed by the 1991 Revised Rules on Summary Proceedings.
Contempt is a disregard of or disobedience to the rules or orders of a judicial body, or an interruption of its proceedings by disorderly behavior or insolent language, in its presence or so near thereto
as to disturb the proceedings or to impair the respect due to such body.
Contempt of court is disobedience to the court by acting in opposition to its authority, justice and dignity. It signifies not only a willful disregard or disobedience of the court’s orders but al so conduct
tending to bring the authority of the court and the administration of law into disrepute or, in some manner to impede the due administration of justice.
The reason for the power to punish for contempt is that respect of the courts guarantees the stability of their institution. Without such guarantee, said institution would be resting on shaky
foundation. I is inherent in all courts,; its existence is essential to the preservation of order in judicial proceedings, orders and mandates of the courts, and consequently, to the due
administration of justice. Contempt proceeding has dual function:
1. Vindication of public interest by punishment of contemptuous conduct; and
2. Coercion to compel the contemnor to do what the law requires him to uphold the power of the Court, and also to secure the rights of the parties to a suit awarded by the
1. Civil or criminal, depending on the nature and effect of the contemptuous act
The punishment for indirect contempt depends upon the level of the court against which the act was commited:
a. Where the act was committed against an RTC or a court of equivalent or higher rank, he may be punished by a fine not exceeding 30,000 or imprisonment not exceeding 6 months,
or both
b. Where the act was committed against a lower court, he may be punished by a fine not exceeding 5,000 or imprisonment not exceeding 1 month, or both. Aside from the applicable
penalityies, if the contempt consists in the violation of a writ of injunction, TRO or status quo order, he may
➢ Indefinite incarceration may be resorted to where the attendant circumstance are such that the non-compliance of the authority of the court which has then no other recourse but to use its
coercive power Cases:
3. In Re: Conviction of Judge Adoracion G. Angeles, RTC, Br. 121, Caloocan City in Crim. Cases Q-97-69655 to 56 for Child Abuse
Contempt of court is a defiance of the authority, justice or dignity of the court, such conduct as tends to bring the authority and administration of the law into disrespect or to interfere with
or prejudice parties, litigant or their witnesses during litigation.
There are two kinds of contempt punishable by law: direct contempt and indirect contempt. Direct contempt is committed when a person is guilty of misbehavior in the presence of or so
near a court as to obstruct or interrupt the proceedings before the same, including disrespect toward the court, offensive personalities toward others, or refusal to be sworn or to answer as a
witness, or to subscribe an affidavit or deposition when lawfully required to do so. Indirect contempt or constructive contempt is that which is committed out of the presence of the court.
Any improper
5
conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice would constitute indirect contempt.
A pleading containing derogatory, offensive or malicious statements submitted before a court or judge where the proceedings are pending constitutes direct contempt, because it is equivalent
to
6 misbehavior committed in the presence of or so near a court
or judge as to interrupt the administration of justice. In this regard, respondent committed a serious blunder when he cited
complainant for indirect contempt.
Compounding this blunder, even if we assume that complainant's unfounded and contumacious statements in his pleadings translate to indirect contempt as respondent mistakenly believed,
7 respondent failed to follow the proper procedure therefor
under Section 4 of Rule 71 of the Revised Rules of Civil Procedure, which particularly provides:
SEC. 4. How proceedings commenced. — Proceedings for indirect contempt may be initiated motu proprio by the court against which the contempt was committed by an order or any other
formal charge requiring the respondent to show cause why he should not be punished for contempt.
In all other cases, charges for indirect contempt shall be commenced by a verified petition with supporting particulars and certified true copies of documents or papers involved therein, and
upon full compliance with the requirements for filing initiatory pleadings for civil actions in the court concerned. If the contempt charges arose out of or are related to a principal action
pending in the court, the petition for contempt shall allege that fact but said petition shall be docketed, heard and decided separately, unless the court in its discretion orders the consolidation
of the contempt charge and the principal action for joint hearing and decision.
As correctly observed by the OCA, there was no order issued by respondent for the charge of indirect contempt against complainant to be docketed separately; neither was there an order that
the said charge be consolidated with the principal action. In sum, respondent simply incorporated or integrated the proceedings for indirect contempt with the principal case. This fortifies the
OCA’s
8 finding that respondent is grossly ignorant of basic
procedure. When the law is so elementary, such as the provisions of the Rules of Court, not to know, or to act as if one does
not know the same, constitutes gross ignorance of the law.
It is well settled that the power to punish a person in contempt of court is inherent in all courts to preserve order in judicial proceedings and to uphold the orderly administration of justice.
However, judges are enjoined to exercise the power judiciously and sparingly, with utmost restraint, and with the end in view of utilizing the same for correction and preservation of the
dignity
11 of the court, and not for retaliation or vindictiveness. It bears stressing that the power to declare a person in contempt of court must
be exercised on the preservative, not the vindictive, principle; and on the corrective, not the retaliatory, idea of punishment.
4. In the matter of the contempt orders against lt. gen. jose m. calimlim and atty. Domingo a. doctor G.R. NO. 141668
Proper Procedure for Indirect Contempt o First, there must be an order requiring the respondent to show cause why he
should not be cited for contempt. o Second, the respondent must be given the opportunity to comment on
o Third, there must be a hearing and the court must investigate the charge and consider respondent’s answer. Finally, only if found guilty will respondent be punished accordingly.
In this case, Judge Cruz-Avisado failed to observe the proper procedure in the exercise of the power to punish for indirect contempt. First, there can be no indirect contempt absent any prior written
charge. In the 19 November
1999 Order, Judge Cruz-Avisado only ordered petitioners to explain their failure to bring Pitao before the RTC for his scheduled arraignment. The 19 November 1999 Order did not yet amount to a
show-cause order directing petitioners to explain why they should not be cited for indirect contempt. Absent an order specifically requiring petitioners to show cause why they should not be punished
for contempt, Judge Cruz-Avisado had no authority to punish petitioners.
Second, if the answer to the contempt charge is satisfactory, the contempt proceedings end. Even if we consider the 19 November 1999 Order sufficient to charge petitioners with indirect contempt,
petitioners still could not be punished for contempt because Judge Cruz-Avisado found petitioners’ explanation satisfactory. Only in cases of clear and contumacious refusal to obey should the power
to
punish for contempt be exercised. Absent any finding that petitioners contumaciously refused to comply with the orders of the RTC, Judge Cruz-Avisado had no
reason to punish petitioners for indirect contempt.
Lastly, there must be a hearing conducted on the contempt charge. In this case, no hearing was ever conducted. After receiving petitioners’ Compliance, Judge Cruz-Avisado immediately issued the
11
December 1999 Order. Petitioners were not afforded full and real opportunity to be heard. Since a contempt charge partakes of the nature of a criminal prosecution and follows the proceedings similar
to
criminal prosecution, judges must extend to the alleged contemnor the same rights accorded to an accused. Judge Cruz-Avisado should have given petitioners their day in
court and considered the testimony and evidence petitioners might offer. Proper Penalty for Indirect Contempt
Section 7, Rule 71 of the Rules of Court provides the penalty for indirect contempt. Section 7 of Rule 71 reads:
SEC. 7. Punishment for indirect contempt. - If the respondent is adjudged guilty of indirect contempt committed against a Regional Trial Court or a court of equivalent or higher rank, he
may be punished by a fine not exceeding thirty thousand pesos or imprisonment not exceeding six (6) months, or both. x x x Indeed, the Rules do not provide that reprimand and admonition may be
imposed on one found guilty of indirect contempt.
However, in Racines v. Judge Morallos, the Court, after finding Jaime Racines (Racines) guilty of indirect contempt, merely reprimanded Racines because "he is not learned in the intricacies of law."
However, in Racines v. Judge Morallos, the Court, after finding Jaime Racines (Racines) guilty of indirect contempt, merely reprimanded Racines because "he is not learned in the intricacies of law."
Therefore, the courts may impose a penalty less than what is provided under the Rules if the circumstances merit such.
In this case, if petitioners were found guilty of indirect contempt, Judge Cruz-Avisado may penalize them with reprimand. However, since the proper procedure for indirect contempt was not followed,
Judge Cruz-Avisado’s Orders to reprimand Atty. Doctor, Jr. had no legal basis.
On the other hand, admonition is not a penalty but merely a warning.Judge Cruz-Avisado may admonish Lt. Gen. Calimlim for the failure to comply with the RTC’s 4 November 1999 Order. Judge
CruzAvisado may make such admonition even in the absence of contempt proceedings.
Judges are reminded that the power to punish for contempt should be used sparingly and only in cases of clear and contumacious refusal to obey should the power be exercised. The power to punish
for contempt must also be used with due regard to the provisions of the law and the constitutional rights of the individual.
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