L. Writ of Kalikasan.
SPECIAL CIVIL ACTIONS (Rules 62 – 71)
NATURE OF SPECIAL CIVIL ACTIONS
I. GENERAL DEFINITION
Sec. 3(a) Rule 1 declares that civil action is one by which a party sues
another for the following purposes; (1) the enforcement or protection of
a right; or (2) prevention or redress of a wrong.
2 kinds of civil actions: (1) ordinary and (2) special.
Ordinary and special civil actions compared:
Similarity – they are both governed by the rules for ordinary civil
actions.
Difference – Special civil actions are also governed by certain
rules applicable only to them thus making them special.
A special 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 and is governed by the rules on ordinary civil actions, subject to
the specific rules for each particular special civil action.
Special civil actions are basically ordinary civil proceedings; what makes
them special are the distinct peculiarities inherent in their very nature not
found in ordinary civil actions.
They are actions in themselves, but possessing special matters that
required special procedures. For this reason, these proceedings are
classified as special civil actions.
Sec. 1, Rule 62 provides that rules provided for ordinary civil actions are
applicable in special civil proceedings, which are not inconsistent with or
may serve to supplement the provisions of the rules relating to such
special civil actions.
The special civil actions are:
A. Interpleader (Rule 62);
B. Declaratory Relief (Rule 63);
C. Certiorari (Rule 65);
D. Prohibition (Rule 65);
E. Mandamus (Rule 65) and Continuing Mandamus;
F. Quo Warranto (Rule 66);
G. Expropriation (Rule 67);
H. Foreclosure of Real Estate Mortgage (Rule 68);
I. Partition (Rule 69);
J. Forcible Entry and Unlawful Detainer (Rule 70);
K. Contempt (Rule 71); and
Examples of rules not common to both ordinary and special civil
actions:
Sec. 1 Rule 2 provides that “Every ordinary civil action must be based on
a cause of action”. The reference is to ordinary civil actions, not to a
special civil action.
1. (Cause of action) - Under Sec. 2 of Rule 2, a cause of action is
defined as “the act or omission by which a party violates the rights of
another”. This concept of violation of a right does not apply to
declaratory relief, which is brought before there is any breach or violation
of a deed, will, contract, statute, executive order or regulation, ordinance,
or any other governmental regulation (Sec. 1 R 63) and interpleader
which can be filed by the plaintiff even if he has sustained no actual
transgression of his rights because he in fact claims no interest in the
subject matter of the action. If ever he has an interest in the subject
matter of the action, such interest, in whole or in part, is not disputed by
the claimants.
2. (Venue) - Venue in ordinary civil actions is determined by either the
residences of the parties (if personal) or by the location of the property in
real actions. This does not always apply in special civil actions like in quo
warranto where venue is where the SC or the CA sits if filed there. If filed
in the RTC, while residence is factored in, it is merely the residence of the
respondent that is factored in. Then if it is the Solicitor General who
commences the action another special rule applies because the petition
may be brought in a RTC in the City of Manila, the CA or the SC. (Sec. 7
R 66)
3. (Jurisdiction) - An ordinary civil action can be initiated either at the
first or second level courts but forcible entry or unlawful detainer special
civil actions can only be commenced at the first level.
4. (Issuance of summons) - In an ordinary action, upon the filing of
the complaint and payment of the requisite legal fees, the clerk of court
shall issue the corresponding summons to the defendant (Sec. 1 R 14).
This rule does not always apply in special civil actions. In R 65, for
example, upon the filing of the petition and the same is found to be
sufficient in form and substance, the court shall issue an order (not
summons) requiring the respondent/s to comment on the petition within
10 days from receipt (Sec. 6 R 65).
5. (Verification) - As a rule, pleadings in ordinary civil actions need not
be verified, except when otherwise specifically required by law or rule
(Sec. 4 R 7). On the other hand certain, special civil actions have to be
verified, as a rule, like a complaint for expropriation (Sec. 1 R 67)
petitions for certiorari (Sec. 1 R 65), prohibition (Sec. 2 R 65) and
mandamus (Sec. 3 R 65). Same is true with an action for usurpation of a
public office, position or franchis under R 66 on quo warranto requires a
verified petition brought in the name of the Republic of the Philippines
(Sec. 1 R 66). A review of judgments, resolutions, and final orders of the
COMELEC and COA under R 64 is brought to the SC by way of a verified
petition (Sec. 5 R 64). In actions for forcible entry and unlawful detainer,
all pleadings shall be verified (Sec. 4 R 70). Also proceedings for indirect
contempt, other than those initiated by the court against which the
contempt was committed, shall be commenced by a verified petition (Sec.
4 R 71).
6. (Default) - In ordinary civil actions, if the defending party fails to
answer within the time allowed therefor, the court shall, upon motion of
the claiming party with notice to the defending party, and proof of such
failure, declare the defending party in default (Sec. 3 R 9). While such
failure in interpleader may lead to the same consequence (Sec. 5 R 62), it
does not apply in forcible entry and unlawful detainer cases. Instead the
court, motu proprio or on motion of the plaintiff, shall render judgment as
may be warranted by the facts alleged in the complaint (Sec. 7 R 70).
Also a motion to declare defendant in default is a prohibited motion
under the same R 70).
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7. How initiated
While ordinary civil actions when filed are denominated as ―complaints,
some special civil actions are not denominated as such but ―petitions.
How special civil actions are initiated or commenced:
Special civil actions may be initiated by either a complaint or a
petition.
The special civil actions commenced by complaint are:
interpleader,
expropriation,
foreclosure of real estate mortgage,
partition and
forcible entry or unlawful detainer.
The special civil actions commenced by petition are:
declaratory relief and similar remedies,
certiorari, prohibition, mandamus,
quo warranto,
contempt and
writ of Kalikasan.
8. (Execution) - Ordinary civil action – plaintiff alleges that his right has
been violated by the defendant; judgment rendered is coercive in
character; a writ of execution may be executed against the defeated
party.
Special civil action of declaratory relief – an impending violation is
sufficient to file a declaratory relief; no execution may be issued; the
court merely makes a declaration.
Court with jurisdiction over special civil actions-
1.Special civil actions which are real actions (actions involving title to,
possession of, or any interest in real property) may be filed either in the
RTC or MTC depending on the assessed value of the property involved
like in quieting of title or removal of a cloud of a title to real property. But
forcible entry and unlawful detainer cases can only be filed with the MTC.
2.Certiorari, prohibition and mandamus may be filed with the RTC if the
petition relates to the act or omission of a municipal trial court, a
corporation, board, officer or person. Under the amendments effective
December 27, 2007 by virtue of AM No. 07-7-12-SC, the petition may
also be filed with the CA or the Sandiganbayan whether or not the same
is in aid of the court’s appellate jurisdiction (Sec. 4 R 65).
If the petition involves an act or omission of a quasi-judicial agency, the
petition shall be cornizable, as a rule, by the CA, unless otherwise
provided by law or rule (Sec. 4 R 65).
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 aid
of its appellate jurisdiction (Sec. 4 R 65 as amended by AM No. 07-7-12-
SC, effective Dec. 27, 2007).
Under R 56, the petitions may also be filed in the SC including quo
warranto petitions. A quo warranto petition may also be filed in the RTC
under BP 129 Sec. 21 or the CA (Sec. 9 BP 129 as amended).
Take note hoever of the rule that when a case is subject to concurrent
jurisdictions, the principle of heirarchy of courts shall apply. Thus, even if
a petition for certiorari may be commenced in the RTC, CA and SC, the
petition will not be entertained by the higher court absent justifications
for its filing in the lowest court.
4. An interpleader may be commenced in the RTC or in the MTC
depending on the subject matter or the amount of the claim.
5. A petition for declaratory relief is to be filed in the RTC but a similar
remedy like quieting of title may be filed in the MTC depending on the
assessed value of the property.
6. A complaint for expropriation is to be commenced in the RTC but a
review of the judgments, final orders or resolutions of the COA and
COMELEC may be brought only on certiorari under R 65 to the SC.
7. Under Sec. 5 R 71, the charge for indirect contempt committed against
a RTC or a court of higher rank may be filed with such court. Where such
contempt was committed against a lower court, the charge may be filed
with the RTC of the place in which the lower court is sitting or may be
instituted in such lower court.
INTERPLEADER (RULE 62)
1.DEFINITION
The action of interpleader is a remedy whereby a person who has
property in his possession, or an obligation to render wholly or partially,
without claiming any right to either, comes to court and asks that the
persons who claim the said personal property or who consider themselves
entitled to demand compliance with the obligation, be required to litigate
among themselves in order to determine finally who is entitled to it. The
remedy is afforded to protect a person, not against double liability, but
against double vexation in respect of one liability (Wack Wack Golf &
Country Club Inc. v. Won, et al., GR No. 23851, March 26, 1976, 70 SCRA
165).
REQUISITES FOR INTERPLEADER
1. There is one and the same subject matter (property or obligation);
2. There must be two or more claimants with adverse or conflicting
interests upon the same subject matter;
3. The conflicting claims are made against the same person (Plaintiff),
not merely against each other; and
4. the plaintiff has no claim upon the subject matter of the adverse claims
or if he has an interest at all, such interest is not disputed by the
claimants (Sec. 1 R 62).
Ex.
A owns a building which is leased to B. A died. X demands payment of
the rentals due from A claiming that she is the widow. B is willing to pay
but the problem is Y also, claiming to be the widow, is making a similar
2
demand from him. Since B only knew A personally and was never 1. Actions in Metro Manila where value of personal property is more than
introduced to anybody as the wife, he cannot be sure to whom to pay. P400,000.00.

2.A deposited his goods to B under a contract of deposit. B issued a 2. Actions outside Metro Manila where value of personal property is more
negotiable warehouse receipt in favor of A. Later on, X came to B than P300,000.00
claiming that she is now the holder of the warehouse receipt as it was
indorsed to him. But A is also insisting that the he never indorsed it and
3. Where the subject matter of the action is incapable of pecuniary
declared that it was stolen from him. B who is not interested in the
estimation.
receipt and is willing to turn it over is however, not sure who is telling the
truth.
PROCEDURE
PURPOSES
1.Filing of complaint.
1. To compel conflicting claimants to interplead and litigate their several
claims among themselves (Rules of Court, Rule 62, Sec. 1). Upon the filing of the complaint, the court shall issue an Order
requiring the conflicting claimants to interplead with one
another (Rules of Court, Rule 62, Sec. 2).
2. To protect a party, not against double liability, but against
double vexation on account of one liability (Rizal Commercial
Banking Corporation v. Metro Container Corporation, GR No. 127913, 2. The court may direct, in the same order mentioned in the preceding
Sept. 13, 2001, 365 SCRA 150). paragraph, that the subject matter of the suit be paid or delivered
to the court.(Id)

3. The summons shall be served upon the conflicting claimants,

accompanied by copies of the complaint and the Order
mentioned above (Id Sec. 3). This special rule is necessitated by the
fact that the controversy actually exists among co-defendants and the
JURISDICTION plaintiff may have no interest in the subject matter (Regalado, Florenz D.,
Remedial Law Compendium, vol. 1, p. 701 (2002).
JURISDICTIONAL AMOUNT-
4. Motion to dismiss/Grounds
WHERE SUBJECT OF INTERPLEADER IS title to, possession of or
interest in REAL PROPERTY (real actions) The conflicting-claimants in interpleader may file a motion to dismiss on:

MTC a.) the ground of impropriety of the interpleader action or

b.) on other appropriate grounds specified in Rule 16 (lack
of jurisdiction over the subject matter; improper
1. Actions in Metro Manila where real property assessed value is not
venue; failure to state a cause of action, etc.)
more than

Effect of Motion to dismiss on period to answer-

P50,000.00;

The period to file the answer shall be tolled and if the motion is denied,
2. Actions outside Metro Manila where real property assessed value is not
the movant may file his answer within the remaining period, but which
more than
shall not be less than five (5) days in any event, reckoned from notice of
denial (Rules, Rule 62, Sec. 4).
P20,000.00.
5. Answer- Period to file-
RTC
Each conflicting claimants-in interpleader shall file his answer setting
1. Actions in Metro Manila where real property assessed value is more forth his claims within fifteen (15) days and serve a copy of the
than P50,000.00; answer not only to the plaintiff in interpleader but also to their
co-claimants who may file their reply thereto within the time provided
2. Actions outside Metro Manila where real property assessed value is in the Rules (Ibid, Sec. 5).
more than P20,000.00.
6. Default-
JURISDICTIONAL AMOUNT in personal actions or the when
subject of litigation is personal property. The effect of a failure to plead within the prescribed period is that the
Court may, on motion, declare defendant in default and,
MTC thereafter, render judgment barring him from any claim in
respect of the subject matter. (Id)

1. Actions in Metro Manila where value of personal property is not more

than P400,000.00. 7. Other pleadings (Counterclaim, cross-claim, 3rd-party
complaints and responsive pleadings thereof allowed)

2. Actions outside Metro Manila where value of personal property is not

more than P300,000.00. The parties in an interpleader action may file counterclaims, cross-
claims, third party complaints and responsive pleadings in the
same action, as provided in the second paragraph of Section 5, Rule 62
RTC of the 1997 Rules of Civil Procedure in the interest of a complete

3
adjudication of the controversy and its incidents (Arreza v. Diaz, Jr., GR
No. 133113, August 30, 2001, 364 SCRA 88).
8. Determination by the court. (Pre-trial, trial and judgment)
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 the parties’ respective rights and adjudicate their
several claims (Rules, Rule 62, Sec. 6).
4.
JURISPRUDENCE
1. Interpleader found to be proper in the following:
a. In an action by a sheriff against claimants who may have conflicting
claims to a property seized by said sheriff in the foreclosure of a chattel
mortgage; (Sy-Quia v. Sheriff of Ilocos Sur and De Leon, 46 Phil. 400
[1924]).
Interpleader is filed by a person who has no interest in the
subject matter of the action or if he has an interest, the
same is not disputed by the claimants. Intervention is filed
by a person who has a legal interest in any of the
following (a) the subject matter of the litigation; (b)
the success of either of the parties; (c) an interest
against both; or (d) he may be adversely affected by
the disposition or distribution of property in the
custody of the court or ot an officer thereof.
Party impleaded-
In Interpleader, the defendants are brought into the action
because they are sued and impleaded as such in the complaint.
In intervention, if a complaint-in-intervention is filed, the
defendants are already parties to an existing suit not
because of the intervention, but because of the original
suit.

b. In an action by a lessee who does not know to whom to pay rentals

due to conflicting claims on the property; (Ocampo v. Tirona, GR No. DECLARATORY RELIEF AND SIMILAR REMEDIES (Rule 63)
147812, April 6, 2005, 455 SCRA 62) and
Similar remedies are:
c. In an action by a bank where the purchaser of a cashier’s check claims
it was lost and another has presented it for payment (Mesina v IAC, et
(a) Action for reformation of an instrument;
al., GR No. 70145, Nov. 13, 1986, 145 SCRA 497).

(b) Action for quieting of title; and

6.2. Interpleader found to be improper in the following:

(c) Action to consolidate ownership (Art. 1607, Civil

a. In an action where defendants’ respective claims are separate
Code).
and distinct from each other (Vda de Camilo v. Arcamo, et al., GR No.
15653, Sept. 29, 1961, 3 SCRA 146).
(d) An action to declare a law, a statute, executive
order or any government regulation or ordinance
b. In an action where one of the defendants had earlier sued the plaintiff
unconstitutional (Araneta, et al. v. Gatmaitan, et al., and
and secured a judgment against him which has already become final, the
Soriano v. Araneta, et al., G.R. Nos. 8895 and 9191, April 30,
action being barred by laches or unreasonable delay (Wack Wack Golf &
1957).
Country Club, Inc. v. Won, et al., supra).

c. In an action where there were no conflicting claims by defendant

corporations as against plaintiffs-tenants. In this case, while PHHC and
GSIS may have conflicting claims between themselves with regard to the DECLARATORY RELIEF
management, administration and ownership of Project 4, such
conflicting claims were not against the plaintiffs-tenants nor did
1.DEFINITION
they involve or affect the latter (Beltran v. People’s Homesite and
Housing Corporation, GR No. 25138, Aug. 28, 1969, 29 SCRA 15).
Example-

Assume that the City of Cebu has passed an ordinance which requires all
interested to take up law to secure a permit to study from the city before
Interpleader distinguished from Intervention-
one can enrol in any law school located in Cebu City and this ordinance is
to take effect the next year. X plans to enrol next year but he does not
1. Nature- believe that the ordinance is valid. He wants to have that issue of the
validity of the ordinance resolved now.
Interpleader is a special civil action, independent and
original. Intervention is not an original action but Declaratory relief is an action
merely ancillary and depends upon the existence of a
previous oending action;
by any person interested under a deed, will, contract or other written
instrument, or whose rights are affected by a statute, executive order or
2. How commenced- resolution, ordinance, or any other governmental regulation,

Interpleader is commenced by the filing of a complaint, filed before breach or violation thereof,
it being an original action. Intervention is commenced by a
motion for leave to intervene filed in a pending case
to determine any question of construction or validity arising from the
attaching thereto the pleading-in-intervention (relief prayed for
instrument, executive order or regulation, or statute arising and
is not a judgment).

3. Who can file-

4
for a declaration of his rights and duties thereunder (Almeda, et al. v.
Bathala Marketing Industries, Inc., G.R. No. 150806, January 28, 2008,
542 SCRA 470. Rule 63, Section 1, Rules of Court).
Purpose
An action for declaratory relief is brought to secure an authoritative
statement of the rights and obligations of the parties under a
contract or a statute for their guidance in the enforcement or
compliance with the same. Thus, the purpose is to seek for a judicial
interpretation of an instrument or for a judicial declaration of a person’s
rights under a statute and not to ask for affirmative reliefs like
injunction, damages or any other relief beyond the purpose of
the petition as declared under the Rules.
It is not brought to settle issues arising from a breach because after the
breach of the contract or statute, the petition can no longer be brought.
The subject matter in a petition for declaratory relief is any of the
following:
a) Deed;
b) Will;
c) Contract or other written instrument;
d) Statute;
e) Executive order or regulation;
f) Ordinance; or
g) Any other governmental regulation.
The enumeration is exclusive.
Example when not proper-
An action for declaratory relief to ask the court to declare his filiation and
consequently his hereditary rights; or to seek judicial declaration of
citizenship to correct a previous unilateral registration by petitioner as an
alien; or to assail a judgment; or even if the subject is a contract or
statute but its terms are clear and there is no doubt as to their meaning.
An action filed by a student of law for declaratory relief against the school
to determine whether he deserves to graduate with honors.
2. REQUISITES
1) The subject matter must be a deed, will, contract or other written
instrument, statute, executive order or regulation or ordinance;
2) The terms of said document or the validity thereof are doubtful
and require judicial construction;
3) There must have been no breach of subject matter;
4) There must be actual justiciable controversy or the ripening
seeds of one (there is threatened litigation in the immediate
future);
5) there must be allegation of any threatened, imminent and
inevitable violation of petitioner’s right sought to be
prevented by the declaratory relief sought;
6) The controversy is between persons whose interests are
adverse;
7) The issue must be ripe for judicial determination e.g.
administrative remedies already exhausted;
8) The party seeking the relief has legal interest in the
controversy; and
9) Adequate relief is not available thru other means.
Issue and relief-
The only issue that may be raised in the petition is the question of
construction or validity of provisions in an instrument or statute
(Prov. Of Camarines Sur v. CA, 600 SCRA 569, 584-585).
The relief sought is the declaration of the petitioner’s rights or
duties thereunder (Sec. 1 R 63)
3. RTC has EXCLUSIVE JURISDICTION/Action incapable of
pecuniary estimation
The special civil action of declaratory relief falls under the exclusive
original jurisdiction of the Regional Trial Courts (Batas Pambansa Blg. 129
[1980], Sec. 19 (1). The purpose of the petition is to ask the court to
determine any question of construction or validity arising from the subject
matter thereof, and for the declaration of rights and duties thereunder.
Hence, the subject matter is not capable of pecuniary estimation.
Where a petition seeks a declaration of the unconstitutionality
and/or nullity of a law, it must be treated as one for declaratory
relief and should be brought before the RTC and not the SC (Allied
Broadcasting Center, Inc. v. Republic, 190 SCRA 782, 786).
The action for declaratory relief is not among the petitions
within the original jurisdiction of the SC (Mangahas v. Paredes, 515
SCRA 709, 715).
Jurisdiction for similar remedies-
1. Where the action is one for reconveyance, quieting of title to real
property or cancellation of title to real property, the objective of
the action is to actually obtain title to real property. Such actions are real
actions jurisdiction over which is determined by the assessed
value of the property (Heirs of Valeriano S. Concha v. Spouses J.
Lumocso, 540 SCRA 1, 16).
2. Riano submits that the following are incapable of pecuniary estimation:
(a) action for reformation of an instrument should be treated as
an action incapable of pecuniary estimation, the issue being one
other than for the recovery of money, hence, must be filed with
the RTC.
(b) an action for consolidation of ownership because the action
does not involve recovery of title to, possession of or interest in real
property. As earlier held in Cruz v. Leis, 327 SCRA 570, 578-579, the
failure by the vendor to redeem the property within the stipulated period,
vests upon the vendee absolute title and ownership over the property
sold. The action brought for consolidation of ownership is merely
to obtain a judicial order to effect the registration of the
consolidated ownership in the Registry of Property.
4. SPECIFIC FEATURES
1. No need for cause of action
The petition for declaratory relief is filed before the occurrence of
any breach or violation of the deed, contract, statute, ordinance or
executive order or regulation. It will not prosper when brought after a
contract or a statute has already been breached or violated.
If there has already been a breach, the appropriate ordinary civil action
and not declaratory relief should be filed.
This is an exception to the threshold requirement in ordinary civil
actions that there must be concurrence of all the essential
elements of a cause of action. The requirement of actual injury
and damage are substituted by an impending damage or injury.
2.The reason for this exception from the requirement of a cause
of action is that an action for declaratory relief presupposes that there
has been no actual breach of the instruments involved, or of rights
5
arising thereunder. Nevertheless, a breach or violation should be
impending, imminent or at least, threatened (Velarde v. Social
Justice Society, G.R. No. 159357, April 28, 2004, 428 SCRA 283).
2.As a general rule, this special civil action does not entail an
executory process (Philippine Deposit Insurance Corporation v. Court
of Appeals, et al., G.R. No. 126911, April 30, 2003, 402 SCRA 194) since
the result is only a declaration of rights.
Exception:
In Department of Budget and Management, et al. v. Manila’s
Finest Retirees Association Inc., (GR No. 169466, May 9, 2007,
520 SCRA 90) the Court said that the execution of judgments in a
petition for declaratory relief is not necessarily indefensible. The
Court applied its ruling in Philippine Deposit Insurance Corporation (PDIC)
v. Court of Appeals, (G.R. No. 126911, April 30, 2003, 402 SCRA 194)
wherein it held that a special civil action is, after all, not essentially
different from an ordinary civil action, which is generally governed by
Rules 1 to 56 of the Rules of Court, except that special civil actions deal
with a special subject matter which makes necessary some special
regulation. But the identity between their fundamental nature is such that
the same rules governing ordinary civil suits may, and do, apply to special
civil actions if not inconsistent with, or if they may serve to supplement,
the provisions of the peculiar rules governing special civil actions.
In the cited case, the Court further noted that the trial court’s judgment
actually forestalled multiplicity of suits which, needless to stress, would
only entail a long and arduous process. The Court said that
considering their obvious advanced years, the INP retirees could
hardly afford another protracted proceedings. Thus, the Court
wrote finis to this case by ordering the execution of its
judgment.
5. WHO MAY FILE
1) Any person interested under a deed, will, contract or other
written instrument or whose rights are affected by a statute,
executive order or regulation, ordinance or other
governmental regulation may before breach or violation thereof,
bring an action in the RTC to determine any question of construction
or validity arising and for a declaration of his rights or duties,
thereunder.
Those who may sue under the contract should be those with
interest under the contract like the parties, the assignees
and the heirs as required by substantive law.
2) If it be a statute, executive order, regulation or ordinance, the
petitioner is one whose rights are affected by the same. The
other parties are all persons who have or claim any interest which
would be affected by the declaration. The rights of person not made
parties to the action do not stand to be prejudiced by the
declaration.
6. WHEN ACTION FOR DECLARATORY RELIEF FOUND PROPER
1. The subject matter of the controversy is a deed, will, contract or other
written instrument, statute, executive order or regulation or ordinance;
(RULES OF COURT, Rule 63, Sec. 1; Jumamil v. Cafe, et al., G.R. No.
144570, September 21, 2005, 470 SCRA 475).
2. The terms of said documents and the validity thereof are doubtful and
require judicial construction; (Almeda, et al. v. Bathala Marketing
Industries, Inc., supra note 27; Santos v. Aquino, et al., 94 Phil. 65
[1953].
3. There must be a justiciable controversy or the “ripening of seeds” of a
controversy between persons whose interests are adverse; (Almeda, et
al. v. Bathala Marketing Industries, Inc., supra note 27; Edades v.
Edades, 99 Phil.) 675 [1956].
4. The parties must have legal interest in the controversy;
5. The controversy must be ripe for judicial determination; (Metropolitan
Manila Development Authority v. Viron Transportation Co., Inc., G.R. No.
170656, August 15, 2007, 530 SCRA 341, citing Republic of the
Philippines v. Orbecido III, G.R. No. 154380, October 5, 2005, 472 SCRA
114).
6. The petition must be filed before there is a breach or violation; (RULES
OF COURT, Rule 63, Sec. 1; Quisumbing, et al. v. Garcia, et al., G.R. No.
175527, December 8, 2008, 573 SCRA 266).
7. Adequate relief is not available through other means or other forms of
action or proceeding; (CJH Development Corporation v. Bureau of
Internal Revenue, et al., G.R. No. 172457, December 24, 2008, 575 SCRA
467, citing Ollada v. Central Bank of the Philippines, G.R. No. 11357, May
31 1962, 5 SCRA 29) and
8. If what is questioned is the constitutionality of a statute,
executive order or any government regulation or ordinance, the
Solicitor General must be notified (RULES OF COURT, Rule 63, Sec.
3). If the validity of a local government ordinance is in question,
the prosecutor or attorney of the local government should be
notified (Id., Sec. 4).
7. WHEN ACTION FOR DECLARATORY RELIEF FOUND
IMPROPER
1. to obtain judicial declaration of citizenship; (Lim v. Republic, G.R. No.
29535, February 27, 1971, 37 SCRA 783; Dy Poco v. Commissioner of
Immigration, G.R. No. 22313, March 31, 1966, 16 SCRA 615; Singson v.
Republic, G.R. No. 21855, January 30, 1968, 22 SCRA 353)
2. to determine the validity or construction to be placed on a
registration certificate;(In Re: The Petition for Declaratory Relief of
Hospicio Obiles and for Cancellation of Erroneous Registration as Alien
Hospicio Obiles v. Republic of the Philippines, G.R. No. 5204, March 27,
1953). A registration certificate is not among those enumerated.
3. to seek relief on moot questions (Jumamil v. Café, et al., supra note
35, citing Government Service Insurance System Employees Association
(GSISEA), et al. v. Alvendia, et al., 108 Phil. 505 [1960]), or to resolve
hypothetical, abstract or theoretical questions, or to decide
claims which are uncertain; (Lim v. Republic, G.R. No. 29535,
February 27, 1971, 37 SCRA 783).
4. to resolve political issues or questions; (Dela Llana v. Commission
on Elections, G.R. No. 47245, December 9, 1977, 80 SCRA 525)
5. to test the correctness or validity of a court decision; (CJH
Development Corporation v. Bureau of Internal Revenue, et al., supra
note 40, citing Tanda v. Aldaya, 52 O.G. No. 11, 5175, September 15,
1956)
6. to establish illegitimate filiation and determine hereditary
rights; (Edades v. Edades, supra note 37)
7. when the petition is based upon the happening of a
contingent event;(Velarde v. Social Justice Society, supra note 29)
8. when the petitioner is not the real party in interest; (Santos v.
Aquino, supra note 36)
6
 9. when administrative remedies have not yet been exhausted;
(Ollada v. Central Bank of the Philippines, G.R. No. 11357, May 31, 1962,
5 SCRA 297)
10. when judgment would have to be made only after a judicial
investigation of the disputed issues, rather than a construction of
definite stated rights, status and other relations, commonly expressed in
written instruments. In this case, what was sought was a declaration that
the corporation was separate and distinct from C.F. Sharp Kabushiki
Kaisha and was, therefore, not liable for the latter’s indebtedness;
(Kawasaki Port Service Corp. v. Amores, G.R. No. 58340, July 16, 1991,
199 SCRA 230)
11. to declare plaintiffs (Tasadays) to be a distinct ethnic community
within the territory defined under Presidential Proclamation No. 995;
(University of the Philippines v. Court of Appeals, et al., G.R. No. 97827
February 9, 1993, 218 SCRA 728) and
12. when filed by a notary public who is not a party to the contract,
because none of his rights or duties thereunder need be declared (Tadeo
v. The Provincial Fiscal of Pangasinan, et al., G.R. No. 16474, January 31,
1962, 5 SCRA 235).
8. CONVERSION TO ORDINARY ACTION
If before final termination of the case, a breach should take
place, the action may be converted into ordinary action to avoid
multiplicity of suits.
When a breach of contract or violation of a statute or ordinance occurs
before the final termination of the case, the case is converted into an
ordinary action (RULES OF COURT, Rule 63, Sec. 6.
Even when the action is for a declaratory judgment, the court may
grant such affirmative relief, as may be warranted by the
evidence, when the allegations in the complaint are sufficient to
make out a case for specific performance or recovery of property
with claims for damages, and the defendants did not raise an
issue in the trial court to challenge the remedy or the form of the
action availed of (Adlawan, et al. v.The Intermediate Appellate Court,
et al., G.R. No. 73022 February 9, 1989, 170 SCRA 165).
9. JURISPRUDENCE
Ripe for judicial determination.
A petition for declaratory relief is ripe for judicial determination if there
is a threatened litigation in the immediate future, which
litigation is imminent and inevitable unless prevented by the
declaratory relief sought (Tolentino v. Board of Accountancy, 90 Phil.
83 [1951].
What may be raised. The only issue that may be raised in a petition
for declaratory relief is the question of construction or validity of the
provisions in an instrument or statute (Almeda v. Bathala Marketing
Industries Inc.,, supra note 27).
Third party complaint not proper.
A third-party complaint is not proper when the main case is for a
declaratory relief. This is because in a third-party complaint, the
defendant or third-party plaintiff is supposed to seek
contribution, indemnity, subrogation or any other relief from the
third-party defendant in respect of the claim of the plaintiff
against him (Com. Of Customs, et al., v. Cloribel, et al., GR No. 21036,
June 30, 1977, 77 SCRA 459).
Compulsory counterclaim allowed. A compulsory counterclaim based
on, or arising from the same transaction, deed or contract on which the
petition is based may be filed and entertained in declaratory proceedings
because there is nothing in the nature of declaratory relief that proscribes
the filing of counterclaims and rules on ordinary civil action apply to
special civil action suppletorily (Visayan Packing Corp. v. Reparations
Commission, GR No. 29673, Nov. 12, 1987, 155 SCRA 542).
Non-joinder of persons who may claim interest not a
jurisdictional defect.
The non-joinder of persons who may claim interest which may be
affected by a declaratory judgment is not a jurisdictional defect, as
Section 2 of Rule 63 provides that said declaration shall not prejudice
their interests, unless otherwise provided in the Rules of Court (In the
Matter of the Petition For Declaratory Judgment Regarding the Validity of
Ordinance No. 386 of the City of Baguio, Baguio Citizens Action Inc., and
Junior Chamber of Baguio City Inc. v The City Council and City Mayor of
the City of Baguio, GR No. 27247, April 20, 1983, 121 SCRA 368).
10. WHEN COURT ACTION IS DISCRETIONARY
Except in similar remdies or actions for the reformation of an
instrument, to quiet title to real property or remove clouds
therefrom, or to consolidate ownership under Article 1607 of the
Civil Code, the Court may refuse to exercise its power to declare rights
and construe instruments in the following cases:
a. where a decision would not terminate the uncertainty or controversy
which gave rise to the action; or
b. in any case where the declaration or construction is not necessary and
proper under the circumstances, (RULES OF COURT, Rule 63, Sec. 5;
Chan v. Galang, G.R. No. 21732, October 17, 1966, 18 SCRA 345) such
as where the proper forum in which to first resolve the dispute lies with
another tribunal,(Chan v. Galang, Id) or where administrative remedies
have not been exhausted or where the declaratory judgment sought
would necessarily affect also other entitites (insurance companies) which
were not represented nor made parties in the proceedings (Chua U., et
al. v. Hon. Manuel Lim, et al., G.R. No. 19639, February 26, 1965, 13
SCRA 254)
11. Grounds for the court to refuse to exercise declaratory relief;
a) A decision would not terminate the uncertainty or controversy
which gave rise to the action; or
b) The declaration or construction is not necessary and proper
under the circumstances as when the instrument or the statute
has already been breached.
In declaratory relief, the court is given the discretion to act or not to act
on the petition. It may therefore choose not to construe the instrument
sought to be construed or could refrain from declaring the rights of the
petitioner under the deed or the law.
 A refusal of the court to declare rights or construe an
instrument is actually the functional equivalent of the
dismissal of the petition.
On the other hand, the court does not have the discretion to refuse
to act with respect to actions described as similar remedies.
Thus, in an action for reformation of an instrument, to quiet or to
consolidate ownership, the court cannot refuse to render a judgment.
7
12.PROCEEDINGS CONSIDERED AS SIMILAR REMEDIES
A. REFORMATION OF AN INSTRUMENT
The remedy when the instrument is not reflective of the contract
or agreement.
It is not an action brought to reform a contract but to reform the
instrument or document evidencing the contract. It presupposes
that there is nothing wrong with the contract itself because
there is a meeting of minds between the parties.
The instrument is to be reformed because despite the meeting of minds
of the parties as to the object and cause of the contract, the instrument
which is supposed to embody the agreement of the parties does not
reflect their true agreement by reason of mistake, inequitable conduct or
accident. The action is brought so the true intention of the parties may
be expressed in the instrument (Art. 1359, CC).
Example:
The parties have agreed on the area of the land subject of the sale. By
an act of fraud of the seller who prepared the deed of sale, a smaller
area is indicated in the deed. Here, there is nothing defective in the
contract which is the meeting of the minds. A contract does not refer
to the instrument, deed or document but to the meeting of the
minds (Art. 1305 CC).
The defect is not found in the meeting of the minds. It is found in the
deed of sale, which is the instrument. If an action for reformation is
brought, it must be for the purpose of reforming the instrument not the
contract.
When a mutual mistake of the parties causes the failure of the instrument
to disclose their real agreement, said instrument may be reformed (Art.
1361, CC).
The instrument may be reformed if it does not express the true intention
of the parties because of lack of skill of the person drafting the
instrument (Art. 1363, CC).
If the parties agree upon the mortgage or pledge of property, but the
instrument states that the property is sold absolutely or with a right of
repurchase, reformation of the instrument is proper (Art. 1365, CC).
When reformation not proper remedy when there is vitiation in
the meeting of the minds-
Where the consent of a party to a contract has been procured by fraud,
inequitable conduct or accident, and an instrument was executed by the
parties in accordance with the contract, what is defective is the contract
itself because of vitiation of consent. The remedy is not to bring an
action for reformation of the instrument but to file an action for
annulment of the contract (Art. 1359, CC).
A contract where one party’s consent is vitiated is voidable or annullable
(Arts. 1330 and 1390[2], CC).
Reformation of the instrument cannot be brought to reform any of the
following:
1) Simple donation inter vivos wherein no condition is imposed;
2) Wills; or
3) When the agreement is void (Art. 1366, CC).
B. CONSOLIDATION OF OWNERSHIP
The concept of consolidation of ownership under Art. 1607, Civil Code,
has its origin in the substantive provisions of the law on sales.
Under the law, a contract of sale may be extinguished either by
legal redemption (Art. 1619) or conventional redemption (Art.
1601).
Legal redemption (retracto legal) is a statutory mandated redemption
of a property previously sold. For instance, a co-owner of a property may
exercise the right of redemption in case the shares of all the other co-
owners or any of them are sold to a third person (Art. 1620). The owners
of adjoining lands shall have the right of redemption when a piece of
rural land with a size of one hectare or less is alienated (Art. 1621).
Conventional redemption (pacto de retro) sale is one that is not
mandated by the statute but one which takes place because of the
stipulation of the parties to the sale. The period of redemption may be
fixed by the parties in which case the period cannot exceed ten (10)
years from the date of the contract. In the absence of any agreement,
the redemption period shall be four (4) years from the date of the
contract (Art. 1606).
When the redemption is not made within the period agreed upon, in
case the subject matter of the sale is a real property, Art. 1607
provides that the consolidation of ownership in the vendee shall not be
recorded in the Registry of Property without a judicial order,
after the vendor has been duly heard.
The action brought to consolidate ownership is not for the
purpose of consolidating the ownership of the property in the
person of the vendee or buyer but for the registration of the
property. The lapse of the redemption period without the seller a retro
exercising his right of redemption consolidates ownership or title upon
the person of the vendee by operation of law.
Art. 1607 requires the filing of the petition to consolidate
ownership because the law precludes the registration of the
consolidated title without judicial order.
C. QUIETING OF TITLE TO REAL PROPERTY
This action is brought to remove a cloud on title to real property or any
interest therein. The action is called one to quiet title to real
property. The cloud is caused by any instrument, record, claim,
encumbrance or proceeding which appears to be valid or effective. The
action contemplates a situation where the instrument or a record is
apparently valid or effective but is in truth and in fact invalid,
ineffective, voidable or unenforceable, and may be prejudicial to
said title to real property.
It may also be brought as a preventive remedy to prevent a cloud
from being cast upon title to real property or any interest therein
(Art. 476 CC).
There may also be an action to quiet title or remove a cloud therefrom
when the contract, instrument or other obligation has been
extinguished or terminated, or barred by extinctive prescription
(Art. 478 CC).
The plaintiff need not be in possession of the real property before he may
bring the action as long as he can show that he has a legal or
equitable title to the property which is the subject matter of the
action (Art. 477, CC).
“It is a common law remedy for the removal of any cloud upon, doubt or
uncetainty affecting title to real property. Xxx In such action, the
8
competent court is tasked to determine the respective rights of the
complainant and the other claimants, not only to place things in their
proper places, and make the claimant, who has no rights to said
immovable, respect and not disturb the one so entitled, but also for the
benefit of both, so that whoever has the right will see every cloud of
doubt over the property dissipated, and he can thereafter fearlessly
introduce any desired improvements, as well as use, and even abuse the
property (Phil-Ville Development and Housing Corporation v. Bonifacio,
651 SCRA 327, 341, June 8, 2011; see also Spouses Santiago v. Villamor,
GR No. 168499, Nov. 26, 2012).
The cloud consists of:
(1) any instrument, record, claim, encumbrance or proceeding;
(2) which is apparently valid or effective but is in truth and in fact invalid,
ineffective, voidable or unenforceable; and
(4) may be prejudicial to the title sought to be quieted (Phil-Ville
Development and Housing Corporation v. Bonifacio, 651 SCRA 327, 347,
June 8, 2011).
Quasi in rem-
Suits to quiet title are not technically suits in rem, nor are they, strictly
speaking in personam, but being against the person in respect of
the res, these proceedings are characterized as quasi in rem. The
judgment is conclusive only between the parties. (Heirs of Marcelino
Doronio v. Heirs of Fortunato Doronio, 541 SCRA, 479, 500-501).
In an action quasi in rem, an individual is named a defendant and
the purpose of the proceeding is to subject his interests to the
obligation or loan burdening the property. Actions quasi in rem
deal with the status, ownership or liability of a particular
property but which are intended to operate on these questions
only as between the particular parties to the proceedings and
not to ascertain or cut off the rights or interests of all possible
claimants. The judgment therein is binding only upon the parties who
joined in the action (Phil-Ville Development and Housing Corporation v.
Bonifacio).
Suits to quiet title are not technically suits in rem, nor are they strictly
speaking, in personam, but being against the person in respect for the
res, these proceedings are characterized as quasi-in-rem. The judgment
in such proceedings is conclusive only between the parties.
Thus, those not made parties in the case are not bound by the
decision. The rules on quieting of title expressly provide that any
declaration in a suit to quiet title shall not prejudice persons who are not
parties to the action (Heirs of Marcelino Doronio v. Hirs of Fortunato
Doronio, 541 SCRA 479, 500-501).
Requisites:
1. the plaintiff or complainant has a legal or equitable title
or interest in the real property subject of the action; and
2. the deed, claim, encumbrance, or proceeding claimed to be
casting doubt or cloud on his title must be shown to be in fact
invalid or inoperative despite its prima facie appearance of
validity or legal efficacy ( Phil-Ville Dev. And Housing Corp. v
Bonifacio).
The title need not be a legal one because an equitable title is
sufficient. In Mananquil v. Moico, GR No. 180076, Nov. 21, 2012, the
Court clarified: “In order that an action for quieting of title may prosper,
it is essential that the plaintiff must have a legal or equitable title to or
interest in, the property which is the subject matter of the action. Legal
title denotes registered ownership, while equitable title means
beneficial ownership. In the absence of such legal or equitable title,
there is no cloud to be prevented or removed.”
In the same case the Court also said that in order to maintain a suit for
quieting of title where the grantee of a land under a National Housing
Authority (NHA) program has passed away, the plaintiffs must show
that under the terms of the NHA program, they are legitimate
successors to or beneficiaries of the deceased upon his death.
Proof of heirship alone does not suffice. Without such evidence,
their legal or equitable interest in the property could not be established.
In Chung v. Mondragon, GR No. 179754, Nov. 21, 2012, the Court
declared that the plaintiff must first show that he has legal or equitable
title over the real property in dispute, and that some deed or proceeding
beclouds its validity or efficiency. Thus, where the certificate of title
shows that the land was clearly issued in the name of the heirs of a
certain person, the petitioner, not being an heir, has neither legal not
equitable title to the property subject of the action for quieting of title.
The action must be dismissed.
The plaintiff need not be in possession of the real property before he may
bring the action as long as he can show that he has a legal or an
equitable title to the property which is the subject matter of the action
(Art. 477).
REVIEW OF JUDGMENTS AND FINAL ORDERS OR
RESOLUTION OF THE COMELEC AND COA (RULE 64)
Basis-
Sec. 7, Art. IX-A of the Constitution reads, “unless otherwise
provided by the Constitution or by law, any decision, order or ruling of
each Commission may be brought to the Supreme Court on certiorari by
the aggrieved party within 30 days from receipt of a copy thereof.”
The provision was interpreted by the Supreme Court to refer to
certiorari under Rule 65 and not appeal by certiorari under Rule
45. To implement the above constitutional provision, the SC promulgated
Rule 64. As Sec. 2 of Rule 64 states, the mode of review is by a petition
for certiorari in accordance with Rule 65 to be filed with the Supreme
Court (Lokin, Jr., v. Comelec, 621 SCRA 385, 400, June 22, 2010).
Remedy of party aggrieved by judgment, final order or
resolution of the COA and Comelec-
1. To file a petition for certiorari under Rule 65 with the Supreme
Court (Sec. 2 R 64)
2. Since the mode of review is certiorari under R 65, then
judgments, final orders or resolutions of said constitutional
bodies are not reviewable by appeal since certiorari, as a rule,
is available only when there is no appeal, nor any other plain,
speedy or adequate remedy in the ordinary course of alw. If
appeal is available, certiorari would not be a remedy.
Period to file petition; effect of filing a motion for new trial or
reconsideration-
The petition shall be filed within thirty (30) days from notice of the
judgment or final order or resolution sought to be reviewed. The filing of
a motion for new trial or reconsideration of said judgment or final order
or resolution, if allowed under the procedural rules of the Commission
concerned, shall interrupt the period herein fixed. If the motion is
denied, the aggrieved party may file the petition within the remaining
period, but which shall not be less than five (5) days in any event,
reckoned from notice of denial (Rule 64 Sec. 3).
9
The period of 30 days applies to judgments, final orders or resolutions of
the COA or Comelec. Under Rule 65, Sec. 4, however, it so provides that
the petition for certiorari shall be filed not later than 60 days from notice
of the judgment, order, or resolution, or from notice of the denial of a
motion for reconsideration or motion for new trial, whether such motion
is required or not.
Riano is of the opinion that this 60-day period to file still applies to the
COA or Comelec if the subject of the review is an interlocutory order.
Another important to point to remember- “Fresh period rule”
applicable to Certiorari petition under Rule 65 does not apply to
COA or Comelec-
Decisions of the Civil Service Commission shall be appealed via petition
for review under Rule 43 to the Court of Appeals which has exclusive
appellate jurisdiction over all judgments or final orders of such
commission (RA 7902). Under Rule 43, an appeal from the judgment or
final order of the Civil Service Commission shall be taken to the CA
whether the appeal involves questions of fact, or law, or mixed
questions of fact and law (Sec. 3 R 43) within 15 days from the
notice of the award, judgment, final order or resolution (Sec. 4 R 43).
APPLICATION OF RULE 65 UNDER RULE 64
DISTINCTION IN THE APPLICATION OF RULE 65 TO JUDGMENTS
OF THE COMELEC AND COA AND THE APPLICATION OF RULE 65
TO OTHER TRIBUNALS, PERSONS AND OFFICERS

Under Sec. 4 R 65, it provides that in case a motion for reconsideration or Rule 64 Rule 65
new trial is filed and denied, the petition may, nevertheless be filed not Directed only to the judgments, Directed to any tribunal, board or
later than 60 days counted from the notice of the denial of the motion. final orders or resolutions of the officers exercising judicial or quasi-
This in effect provides for a “fresh period”. COMELEC and COA; judicial functions;

This “fresh period rule used in R 65 however, does not similarly apply to
the timeliness of petitions under Rule 64 (Pates v. Comelec, 591 SCRA Filed within 30 days from notice of Filed within 60 days from notice of
481, as cited in Lokin v. Comelec). the judgment; the judgment;

MR or MNT from COA or Comelec judgment, etc., available only if

allowed by their own procedural rules- The filing of a motion for The period within which to file the
reconsideration or a motion for petition if the motion for
new trial if allowed interrupts the reconsideration or new trial is
Note further that under Rule 64, a motion for reconsideration or for new period for the filing of the petition denied is 60 days from notice of
trial may be availed of only if the procedural rules of the commission for certiorari. If the motion is the denial of the motion.
concerned allows the same. denied, the aggrieved party may
file the petition within the
Docket and other fees- remaining period, but which shall
not be less than 5 days reckoned
from the notice of denial.
Payment of docket and other lawful fees upon filing required. In addition
Form and contents of petition-
petitioner is also required to deposit P500.00 for costs (Sec. 4 R 64).

Verified and filed in 18 legible copies (Sec. 5, R 64)

Filing of Certiorari petition under Rule 65 filed with the SC does
not automatically stay the execution of the judgment, final order
or resolution of the Comelec or COA sought to be reviewed (Sec.
8 R 64)-
A judgment or final order or resolution of the Commission on Elections
and the Commission on Audit may be brought by the aggrieved party to
the Supreme Court on certiorari under Rule 65. The filing of a petition
for certiorari shall not stay the execution of the judgment or
final order or resolution sought to be reviewed, unless the SC
directs otherwise upon such terms as it may deem just. To prevent the
execution of the judgment, etc., the petitioner should obtain a
temporary restraining order or a writ of preliminary injunction
from the Supreme Court applying suppletorily Sec. 7 of R 65).
Findings of fact not reviewable-
It is well-settled that findings of fact of quasi-judicial agencies, such as
the COA, are generally accorded respect and even finality by the Court, if
supported by substantial evidence, in recognition of their expertise
on the specific matters under their jurisdiction (Reyna v. COA, 642 SCRA
210, 226-227, Feb. 8, 2011). Thus, only issues of jurisdiction, not of
facts are reviewable.
Petitioner must base the petition on jurisdictional grounds, i.e., that the
commission concerned acted with grave abuse of discretion amounting to
lack or excess of jurisdiction.
Basic contents:
(a) statement of the facts with certainty and clear
presentation of issues involved;
(b) the grounds and brief arguments relied upon for review;
(c) petition must be accompaied by clearly legible duplicate
original or certified true copy of the judgment, final order
or resolution subject thereof, together with certified true
copies of such material portions of the record and other
documents relevant and pertinent to the petition. The
requisite number of copies of the petition shall contain
plain copies of all documents attached to the original copy
of the petition;
(d) statement of the specific material dates showing the
timeliness of the filing of the petition;
(e) shall be accompanied by proof of service of a copy on the
Commission involved and on the adverse party, and of the
timely payment of docket and other lawful fees;
(f) sworn certification against forum shopping; and
(g) prayer that the judgment, final order or resolution be
annulled or modified.
Significant requisites: Verification, material data (date) rule and
certification against forum shopping.

Rule 64 does not apply to the Civil Service Commission; remedy

Effect of failure to comply-
is petition for review under R 43 to the CA-

Such failure will be sufficient ground for the dismissal of the petition.

10
Under Rule 64 Sec. 6 when will the SC issue an order to comment?
The Court has 2 options upon receipt of the petition, thus:
A. If it finds the petition to be sufficient in form and
substance, it will issue an order to comment thereon
within 10 days from notice thereof; or
B. To dismiss outright-
1. If the petition is not sufficient in form and substance; or
2. filed manifestly for delay; or
3. raises questions which are too unsubstantial to warrant
further proceedings.
No other pleading allowed unless required or allowed
by the Court (Sec. 7 R 64).
When deemed submitted for decision-
When the comments on the petition and the required
pleadings are filed or when the period to file has expired
unless the Court decides to set the case for oral argument or
requires the submission of memoranda (Sec. 9 R 64).
CERTIORARI, PROHIBITION AND MANDAMUS (RULE 65)
PREFATORY STATEMENT
On account of the broad scope of Rule 65 which allows a party to
question any act by any tribunal, board or officer exercising judicial or
quasi-judicial functions, by alleging simply that such act was performed
with grave abuse of discretion amounting to a lack or excess of
jurisdiction, legal practitioners and litigants have abused this for the
purpose of delaying a case, or sometimes, defeating the ends of justice.
Considering that the Supreme Court receives an average of 400 new
petitions every month while it resolves, at best, about 300 cases for the
same period, a backlog of 1,200 cases every year is added to the still
unresolved cases that have accumulated in the past decades. The Judicial
Records of the Supreme Court for the years 2004 to 2006 reveal that
about 4,200 new petitions are filed in the Supreme Court every year. In
the Judicial Reform Index for the Philippines, dated March 2006 – a study
conducted by the American Bar Association, Asia Law Initiative and the
USAID – it was found that the case backlog of various courts was
785,395 cases or a backlog clearance rate of 167% for all courts.
In 2006, the Supreme Court, together with its developmental partners,
the Rule of Law Effectiveness project and the USAID, undertook a study
to see the impact of Rule 65 in the disposition of cases. The study, using
a random sampling of 144 petitions for certiorari filed in the Supreme
Court from 1967 to 2005, revealed that there was a gestation period
averaging 11 years before petitions for certiorari reaching the Supreme
Court were dismissed and remanded back to the court of origin or before
the writ of certiorari was granted.
To address the problem spawned by Rule 65, the Supreme Court, in an
en banc meeting on April 23, 2007, created a sub-committee under the
Committee on the Revision of Rules to recommend amendments to Rule
65 and related rules.
The amendments recommended by the Sub-Committee and approved by
the Supreme Court, under A.M. No. 07-7-12-SC, took effect on December
27, 2007. They are found in Rule 65, Secs. 4, 7, and 8; Rule 41, Sec. 1;
Rule 45, Sec. 1; and Rule 58, Sec. 5.
CERTIORARI
1. DEFINITION
The Latin word certiorari literally means “to be informed of, to be made
certain in regard to.”(Black’s Law Dictionary (6th ed., 1990).
It is a remedy narrow in scope and inflexible in character. It is
not a general utility tool in the legal workshop.
Certiorari is a remedy for correction of errors of jurisdiction, not
errors of judgment (New Frontier Sugar Corporation v. Regional
Trial Court, G.R. No. 165001, January 31, 2007, 513 SCRA 601).
Certiorari will issue only to correct errors of jurisdiction and not to
correct errors of procedure or mistakes in the court’s findings
and conclusions (Lee, et al. v. Court of Appeals, G.R. No. 137914,
December 4, 2002, 393 SCRA 397; Microsoft Corporation v. Best Deal
Computer Center, G.R. No. 148029, September 24, 2002, 389 SCRA 615).
Errors of judgment are not proper subjects of a special civil action for
certiorari. Where the issue or question involved affects the wisdom or
legal soundness of the decision, and not the jurisdiction of the court to
render said decision, the same is beyond the province of a special civil
action for certiorari (Catindig v. Vda de Meneses, 641 SCRA 350, 362,
Febr. 2, 2011).
Error of judgment distinguished from error of jurisdiction-
An error of judgment is one which the court may commit in the
exercise of its jjrisdiction, and which error is reviewable only by an
appeal.
Error of jurisdiction is one where the act complained of was issued by
the court without or in excess of jurisdiction and which is correctible
only by the extraordinary writ of certiorari.
As long as the court acts within its jurisdiction, any alleged error
committed in the exercise of its discretion will amount to nothing more
than mere errors of judgment, correctible by an appeal if the
aggrieved party raised factual and legal issues; or a petition for
review on certiorari to the Supreme Court under Rule 45 if only
questions of law are involved (San Fernando Rural Bank v. Pampanga
Omnibus Development Corporation, 520 SCRA 564, 591-592; also De Los
Santos v. Metrobank, GR No. 153852, Oct. 24, 2012).
Not a mode of appeal-
One common misconception is to consider a petition for certiorari as a
mode of appeal. Certiorari, under Rule 65 is not a mode of appeal. It is
certiorari under Rule 45 which is the mode of appeal and is traditionally
called a “petition for review on certiorari”. It is also described by the
Rules as an “appeal by certiorari to the Supreme Court”. The certiorari in
Rule 65 is known as “Petition for Certiorari”.
11
Certiorari an original and independent action- Parties are the original parties The tribunal, board, officer exercising
with the appealing party as the judicial or quasi-judicial functions is
As a special civil action, Certiorari is an original action invoking the petitioner and the adverse party impleaded as respondent
original jurisdiction of a court to annul or modify the as the respondent without
proceedings of a tribunal, board or officer exercising judicial or impleading the lower court or its
quasi-judicial functions. It is an original and independent action that judge;
is not part of the trial or the proceedings on the complaint filed before
the trial court (Siok Ping Tang v. Subic Bay Distribution Inc., 638 SCRA
457, 468, Decemner 15, 2010). Filed only with the Supreme May be filed with the Supreme Court,
Court Court of Appeals, Sandiganbayan, or
Since certiorari as a special civil action is an original action, the decision Regional Trial Court
rendered on such action is appealable, and not reviewable by
another petition for certiorari (Magtoto v. CA, GR No. 175792, Nov.
21, 2012). SC may deny the petition motu same
propio on the ground that the
Read Leynes v. Former 10th Div. of the CA, 640 SCRA 25, 39-41, appeal is without merit, or is
January 19, 2011 for a more comprehensive distinction between prosecuted manifestly for delay,
appeal and certiorari. or that the questions raised
therein are too unsubstantial to
require consideration.
CERTIORARI AS A MODE OF CERTIORARI AS A SPECIAL
APPEAL (RULE 45) CIVIL ACTION (RULE 65)
Called petition for review on A special civil action that is an
certiorari, is a mode of appeal, original action and not a mode of
which is but a continuation of appeal, and not a part of the
the appellate process over the appellate process but an independent
original case; action.

Seeks to review final judgments May be directed against an

or final orders; interlocutory order of the court or
where no appeal or plain or speedy
remedy available in the ordinary
course of law

Raises only questions of law; Raises questions of jurisdiction

because a tribunal, board or officer
exercising judicial or quasi-judicial
functions has acted without
jurisdiction or in excess of jurisdiction
or with grave abuse of discretion
amounting to lack of jurisdiction;

Filed within 15 days from notice
of judgment or final order
appealed from, or of the denial
of petitioner‘s motion for
reconsideration or new trial
(fresh period rule);
Filed not later than 60 days from
notice of judgment, order or
resolution sought to be assailed and
in case a motion for reconsideration
or new trial is timely filed, whether
such motion is required or not, the
60 day period is counted from notice
of denial of said motion (fresh period
rule);

Extension of 30 days may be Extension no longer allowed;

granted for justifiable reasons

Does not require a prior motion Motion for Reconsideration is a

for reconsideration; condition precedent, subject to
exceptions

Stays the judgment appealed Does not stay the judgment or order
from; subject of the petition unless
enjoined or restrained;

12

The remedies of appeal and certiorari are mutually exclusive
and not alternative or successive. The antithetic character of
appeal and certiorari has been generally recognized and observed save
only on those rare instances when appeal is satisfactorily shown to be
an inadequate remedy. Thus, a petitioner must show valid reasons
why the issues raised in his petition for certiorari could not have been
raised on appeal.
2. REQUISITES
1. A tribunal, board or officer exercises judicial or quasi-judicial
function (See Galicto v. Aquino III, 667 SCRA 150, 166, Feb. 28,
2012);
2. It, or he, acts without, or in excess of jurisdiction, or with grave
abuse of discretion amounting to a lack or excess of jurisdiction; and
3. There is no appeal or plain, speedy and adequate remedy in the
ordinary course of law.
2.a. TERMINOLOGY
1. Without jurisdiction – absence of legal power to determine the
merits of a case.
2. Excess of jurisdiction – the court has jurisdiction but fails to
comply with the conditions prescribed for its exercise (Ben v. O’Brien,
38 Phil. 182 [1918]; Tengco v. Jocson, 43 Phil. 715 [1922]).
3. Grave abuse of discretion – capricious or whimsical exercise of
judgment equivalent to lack of jurisdiction (PCGG v. Silangan Investors
and Managers Inc., et al., G.R. Nos. 167055-56, March 25, 2010;
PCGG v. Polygon Investors and Managers Inc., et al., G.R. No. 170673,
March 25, 2010). The abuse of discretion must be so patent and
gross as to amount to an evasion of a positive duty or a virtual
non-performance of a duty enjoined by law (Julie's Franchise
Corporation v. Ruiz, G.R. No. 180988, August 28, 2009, 597 SCRA 463;
Vergara v. Ombudsman, G.R. No. 174567, March 13, 2009, 581 SCRA
454; Vda. de Daffon v. Court of Appeals, G.R. No. 129017, August 20,
2002, 387 SCRA 427; Duero v. Court of Appeals, G.R. No.131282,
January 4, 2002, 373 SCRA 11).
4. A respondent is said to be exercising judicial function when he
has the power to determine what the law is and what the legal
rights of the parties are, and then undertakes to determine
these questions and adjudicate upon the rights of the parties.
5. Quasi-judicial function is a term which applies to the action
and discretion of public administrative officers or bodies,
which are required to investigate facts or ascertain the
existence of facts, hold hearings, and draw conclusions from
them as basis for their official action and to exercise
discretion of a judicial nature.
2.b. REQUIREMENTS FOR EXTRINSIC SUFFICIENCY OF
PETITION FOR
CERTIORARI, WHICH MUST BE:
1. verified(RULES OF COURT, Rule 65, Sec. 1);
2.accompanied by a certificate of non-forum shopping (Id);
3. accompanied with (a) certified true copy of the judgment, order or
resolution subject thereof, and (b) copies of all pleadings and
documents relevant and pertinent thereto; (Id.)
4. with proof of service, pursuant to Rule 13, Sec. 1; and
5. accompanied with written explanation why personal service was not
resorted to. ((RULES OF COURT, Rule 13, Sec. 11).
Material dates in the petition; ‘material date rule’
Under the material date rule, the following dates must be stated in
the petition:
1. when notice of the judgment, final order or resolution
subject of the petition was received;
2. when a motion for new trial or reconsideration was filed, if
any; and
3. when notice of the denial of the motion for new trial or
reconsideration was received (Sec. 3 R. 46)
.
3. WHEN IMPROPER
1. Certiorari is not proper if appeal is available (Dillena v. Court
of Appeals, G.R. No. 77660, July 28, 1988, 163 SCRA 630; Vda. De
Caldito v. Segundo, G.R. No. 58187, September 30, 1982, 117 SCRA
573) or, when the right to appeal exists (MMDA v. Jancom
Environmental Corporation, G.R. No. 147465, January 30, 2002, 375
SCRA 320; Rodriguez v. CA, G.R. No. 134278, August 7, 2002, 386
SCRA 492). or, if it was lost through the fault of the petitioner,
such as prescription of right to file appeal. Certiorari is not a
substitute for lost appeal (Conejos v. Court of Appeals, G.R. No.
149473, August 9, 2002, 387 SCRA 142; Felizardo v. Court of Appeals,
G.R. No. 112050, June 15, 1994, 233 SCRA 220; Dillena v. Court of
Appeals, supra note 74; Escudero v. Dulay, G.R. No. 60578, February
23, 1988, 158 SCRA 69; Acain v. IAC, G.R. No. 72706, October 27,
1987, 155 SCRA 100; Vda. De Caldito v. Segundo, supra note 74).
Where the error is not one of jurisdiction, but of law or fact which is a
mistake of judgment, the proper remedy should be appeal. Hence, if
there was no question of jurisdiction involved in the decision and what
was being questioned was merely the findings in the decision of
whether or not the practice of the other party constitutes a violation of
the agreement, the matter is a proper subject of appeal, not certiorari.
Certiorari is not and cannot be made a substitute for an appeal where
the latter remedy is available but was lost through fault or negligence.
The remedy to obtain a reversal of judgment on the merits is
appeal. This holds true even if the error ascribed to the lower court is
its lack of jurisdiction over the subject matter, or the exercise of power
in excess thereof, or grave abuse of discretion. The existence and
availability of the right to appeal prohibits the resort to certiorari
because one of the requirements for certiorari is that there is no
appeal.
Example:
If the plaintiff files a motion to dismiss on the ground of lack of
jurisdiction arguing that the action is not capable of pecuniary
estimation but appears to be a real action and the court denies it, and
the case proceeds up to judgment, then the remedy is appeal where
the issue of lack of jursdiction may be raised as one of the errors.
13
But when the court renders a judgment depriving the defendant of its
right to present evidence, then grave abuse of discretion attends the
judgment and certiorari is the proper remedy.
EXCEPTIONS to the rule that certiorari is not proper when
appeal is available-
a. When appeal is not a speedy and adequate remedy; (Saludes v.
Pajarillo, 78 Phil. 754 [1947]);
b. When an order is issued without or in excess of jurisdiction
(Philippine National Bank v. Florendo, G.R. No. 62082, February 26,
1992, 206 SCRA 582);
c. When the issue involves public welfare or the advancement of public
policy ((Jose v. Zulueta, G.R. No. 6598, May 31, 1961, 2 SCRA 574);
d. When the order is a patent nullity (Marcelo v. De Guzman, G.R. No.
29077, June 29, 1982, 114 SCRA 657);
e. To avoid future litigation (St. Peter Memorial Park, Inc. v. Campos,
Jr., G.R. No. 38280, March 21, 1975, 63 SCRA 180);
f. To avoid a miscarriage of justice (Escudero v. Dulay, supra note
76);
g. To further the broader interest of justice and equity (Marahay v.
Melicor, G.R. No. 44980, February 6, 1990, 181 SCRA 811).
2. Certiorari is not a proper remedy to assail the order of the
trial court denying a demurrer to evidence, both in civil cases
(Asian Trading Corporation v. Court of Appeals, G.R. No. 76276,
February 15, 1999, 303 SCRA 152) and in criminal cases. (RULES
OF COURT, Rule 119, Sec. 23).
3. Certiorari is not the proper remedy to question an
interlocutory order that does not assail jurisdiction (like a
denial of a motion to dismiss based on improper venue). The proper
remedy rather is to continue with the principal case in due course, and
when an unfavorable verdict is handed down, to take an appeal and
include the matter as an assignment of error. (Mangaliag v. Pastoral,
G.R. No. 143951, October 25, 2005, 455 SCRA 460; Spouses Romero
v. Court of Appeals, et al., G.R. No. 142406, May 16, 2005, 458 SCRA
483; Heirs of Hinog v. Melicor, G.R. No. 140954, April 12, 2005, 455
SCRA 460; Law Firm of Abrenica, Tungol and Tibayan v. Court of
Appeals, G.R. No. 143706, April 5, 2002, 380 SCRA 285; Fortune
Guarantee and Insurance Corporation v. Court of Appeals, et al., G.R.
No. 110701, March 12, 2002, 379 SCRA 7).
4. Certiorari is not proper when available remedies have not
been exhausted; Necessity for a motion for reconsideration-
General Rule: A motion for reconsideration of the challenged order,
resolution or decision must first be filed to give the trial court a chance
to correct the errors imputed to it ( Metro Transit Organization Inc. v.
Court of Appeals, G.R. No.142133, November 19, 2002, 392 SCRA
229; Government of the United States of America v. Purganan, G.R.
No. 148571, September 24, 2002, 389 SCRA 623; Butuan Bay Word
Export Corporation v. Court of Appeals, G.R. No. 45473, April 28,
1980, 97 SCRA 297).
Exceptions i.e. no need to file reconsideration:
a. When the issue involves public welfare and the advancement of
public policy (Jose v. Zulueta, supra note 79);
b. When the order was issued without or in excess of jurisdiction
(Philippine Consumers Foundation, Inc. v. National
Telecommunications Commission, G.R. No. 63318, November 25,
1983, 125 SCRA 845);
c. When the order is a patent nullity, as where the court a quo had no
jurisdiction (Yan v. Manila Banking Corporation, G.R. No. 126731, July
11, 2002, 384 SCRA 340; Aquino v. National Labor Relations
Commission, G.R. No. 98108, September 3, 1993, 226 SCRA 76:
d. When petitioner’s right to due process was denied in the lower
court ((Bache and Co. (Phil.), Inc. v. Ruiz, G.R. No. 32409, February
27, 1971, 37 SCRA 823) or petitioner had been unlawfully deprived of
his right to appeal (National Electrification Administration v. Court of
Appeals, G.R. No. 32490, December 29, 1983, 126 SCRA 394);
e. When relief sought is extremely urgent, (like when the subject of
the action is perishable) thus, there is no need to wait for resolution of
a motion for reconsideration (Vda. De Sayman v. Court of Appeals,
G.R. No. 25596, April 28, 1983,121 SCRA 650);
f. When the questions raised and passed upon in the lower court are
the same as those to be passed upon in the certiorari case.
Under the circumstances, a motion for reconsideration would serve no
practical purpose since the trial judge has had the opportunity to
consider and pass upon the questions elevated on certiorari ((Peroxide
Philippines Corporation v. Court of Appeals, G.R. No. 92813, July 31,
1991, 199 SCRA 882); and
g. When the question is purely of law (Central Bank v. Cloribel, G.R.
No. 26971, April 11, 1972, 44 SCRA 307).
5.Against an interlocutory order in cases like:
a). petition for writ of amparo (Sec. 11[l], Rule on the Writ
of Amparo);
b). petition for habeas data (Sec. 13[l], Rule on the Writ of
Habeas Data;
c). small claims cases (Sec. 14[g], AM No. 08-8-7-SC;
d). cases governed by the Rules on Summary Procedure
(Sec. 19[g], Rules on Summary Procedure).
6.TIME TO FILE CERTIORARI PETITION
Within sixty (60) days from notice of decision,
resolution or order sought to be assailed, or from the
denial of petitioner’s motion for reconsideration or
new trial filed in due time after judgment.(RULES OF
COURT, Rule 65, Sec. 4). Effective December 27, 2007,
when the amendments to Rule 65 took effect, extensions
to file a petition for certiorari are now strictly
prohibited, notwithstanding any allegation of
compelling reason.(id).
7. RESPECT FOR HIERARCHY OF COURTS
1. Hierarchy of courts should always be respected. Although the
Supreme Court, the Court of Appeals and the Regional Trial
Courts have concurrent jurisdiction to issue writs of certiorari,
prohibition, mandamus and quo warranto, such concurrence does
14
 not give litigants unrestricted freedom of choice of court
forum.(Heirs of Hinog v. Melicor, supra note 86).
2. The doctrine of hierarchy of courts determines the appropriate
forum for certiorari petitions. The Supreme Court’s original
jurisdiction to issue this writ is allowed only when there
are special and important reasons therefor, clearly and
specifically set out in the petition.(Ouano v. PGTT
International Investment Corporation, G.R. No.134230, July 17,
2002, 384 SCRA 589).
3. Court where to file petition- To ensure respect for the
hierarchy of courts and to prevent litigants from filing
certiorari petitions directly with the Supreme Court when
a lower appellate court has concurrent jurisdiction over the
subject of the case, the new Section 4 Rule 65 now requires
the following procedure to be observed: (A.M. No. 07-7-12-
SC, effective December 27, 2007, Rule 65, Sec. 4: If the petition
relates to an act or omission of a municipal trial court or of a
corporation, board, officer or person, it shall be filed with the
Regional Trial Court exercising jurisdiction over the territorial area
as defined by the Supreme Court. 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. If the petition
involves an act or an omission of a quasi-judicial agency, unless
otherwise provided by law or these rules, the petition shall be
filed with and shall be cognizable only by the Court of Appeals. In
election cases involving an act or omission of a municipal or
regional trial court, the petition shall be filed exclusively with the
Commission on Elections, in aid of its appellate jurisdiction).
a. If the petition for certiorari questions an act or omission
of a municipal trial court, a corporation, a board or officer, it
shall be filed in the Regional Trial Court exercising
jurisdiction over the territorial area as defined by the
Supreme Court.
b. If the petition questions an act of a Regional Trial Court
or a quasi-judicial body, the petition shall be filed with the
Court of Appeals.
c. The Sandiganbayan may entertain petitions for certiorari,
prohibition, and mandamus in aid of its appellate
jurisdiction, (Although Rule 65, as amended by A.M. No.
07-7-12-SC, erroneously provided that the Sandiganbayan
may entertain petitions for certiorari, whether or not the
same is in aid of its appellate jurisdiction, the substantive
law creating the Sandiganbayan, Presidential Decree
No. 1606, as amended by Republic Act No. 8249,
provides that the Sandiganbayan shall have
jurisdiction over petitions for certiorari ONLY when
the same is IN AID OF ITS APPELLATE
JURISDICTION. Presidential Decree No. 1606, as
amended by Republic Act No. 8249, being substantive law,
shall prevail over the amended Rules under A.M. No. 07-7-
12-SC). and over petitions of similar nature, including quo
warranto, arising or that may arise in cases filed under
Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986,
involving graft cases.
The jurisdiction over these petitions shall be concurrent with the
Supreme Court. (Republic Act No. 8249 [1997], An Act Further
Defining the Jurisdiction of the Sandiganbayan, Amending for the
Purpose Presidential Decree No. 1606, as Amended, Providing Funds
Therefor, and for other Purposes, Sec.4).
d. In election cases involving an act or omission of a
municipal or regional trial court, the petition shall be
filed exclusively with the Commission on Elections, in
aid of its appellate jurisdiction, not with the Court of
Appeals.(Id., 3rd paragraph).
The rule is now consistent with the legal procedure directed to be
followed in Relampagos v. COMELEC, which has been in practice since
1995. (G.R. No. 118861, April 27, 1995, 243 SCRA 690).
8. ADMINISTRATIVE SANCTIONS AGAINST JUDGES WHO
REFUSE TO PROCEED WITH THE MAIN CASE:(A.M. No. 07-7-12-
SC, effective December 27, 2007, Rule 65, Sec. 7: Expediting
proceedings; injunctive relief. – x x x The public respondent shall
proceed with the principal case within ten (10) days from the
filing of a petition for certiorari with a higher court or tribunal,
absent a temporary restraining order, a preliminary
injunction, or upon its expiration. Failure of the public respondent
to proceed with the principal case may be a ground for an
administrative charge.
1. A trial court or tribunal where a principal case is lodged is
mandated to continue with the proceedings after ten (10) days from
the filing by a party of a petition for certiorari with a higher court or
tribunal, UNLESS a temporary restraining order (TRO) or a preliminary
injunction is issued by a higher court.
2. When a TRO is issued and it expires without ripening into a
preliminary injunction, the trial court or tribunal shall proceed with the
main case after ten days from the expiry of the TRO.
3. If the judge or head of tribunal fails or refuses to proceed with the
principal case, he may be charged with an administrative case.
Rationale:
Judicial courtesy may no longer be invoked by a party, a judge
or tribunal to stop or suspend the proceedings in the principal
case. This practice used to cause enormous delays in the
proceedings of a case and must no longer be allowed to
continue as an excuse to delay justice.
For instance, in the case of Trifilo Monteban v. Tangalo- Dacanay and
the Office of the Ombudsman (G.R. No. 136062, April 7, 2005, 455
SCRA 110), a petition for certiorari was filed to stop the prosecution of
Monteban. Judicial courtesy was invoked for the suspension of the
proceedings in the Ombudsman. After seven years, the Supreme Court
remanded the case back to the Office of the Ombudsman for the
prosecution of Monteban, finding that no grave abuse of discretion was
committed by the Office of the Ombudsman.
In another case, (Uy v. Sandiganbayan, et al., G.R. No. 11544, July 6,
2004, 433 SCRA 424), the petitioner, Vicente Uy, filed a certiorari
petition with the Supreme Court questioning the Order of the
Sandiganbayan which dismissed his petition for prohibition against the
PCCG. The principal case was suspended for judicial courtesy. After 11
years, the Supreme Court issued an Order stating that the
Sandiganbayan committed no grave abuse of discretion.
9. SANCTIONS AGAINST LITIGANTS AND LAWYERS WHO FILE
UNMERITORIOUS CERTIORARI PETITIONS (A.M. No. 07-7-12-
SC, effective December 27, 2007, Rule 65, Sec. 8):
1. If a petition for certiorari is patently without merit, or prosecuted
only for delay, or if the questions raised are manifestly unsubstantial to
require consideration, the court may award in favor of the respondent
treble costs solidarily against the petitioner and counsel, in
addition to subjecting counsel to administrative sanctions
under Rules 139 and 139-B of the Rules of Court.
2. The Court may impose motu proprio, based on the res ipsa loquitur
doctrine, other disciplinary sanctions or measures on erring lawyers for
patently dilatory and unmeritorious petitions for certiorari.
15
These amendments were instituted to send a stern warning to lawyers
and litigants that they should not trifle with judicial processes.
10. AMENDMENTS IN OTHER RULES AFFECTING CERTIORARI
(A.M. No. 07-7-12-SC).
1. Order denying motion for reconsideration or new trial not
subject to certiorari. Under the amendment in Rule 41, Sec. 1,(Id.,
Rule 41, Sec. 1) deleting paragraph (a), which used to allow an order
denying a Motion for New Trial or Reconsideration to be the subject of
a special civil action under Rule 65, it must be inferred that certiorari
may no longer be availed of by litigants to assail an order denying a
motion for new trial or reconsideration.
Instead, a party has to wait for the judgment and appeal
therefrom, assigning as an error the denial of his motion for
reconsideration or new trial, pursuant to Rule 37, Sec. 9.
However, under Rule 41, an interlocutory order may unquestionably
still be the subject of a petition for certiorari, the same not having
been deleted from the enumeration in Rule 41, Sec. 1 where no appeal
may be taken from the orders or judgments listed therein. The last
paragraph therein expressly provides: “In all of the above instances
where the judgment or final order is not appealable, the aggrieved
party may file an appropriate special civil action under Rule 65.”
2. Provisional remedies need not exclusively be sought under Rule 65.
Rule 45, Sec. 1,(Id., Rule 45, Sec. 1) now allows a party who files a
verified petition for review by certiorari (mode of appeal) with the
Supreme Court under Rule 45, to apply for the issuance of a writ of
preliminary injunction or any other provisional remedy. A petitioner
may also seek the same provisional remedies, including a
preliminary injunction, by verified motion, at any time during
the pendency of the appeal to prevent unnecessary filing of
certiorari petitions under Rule 65.
3. Duty of the court which issued the preliminary injunction-
The higher court which issues an injunction to restrain
proceedings in a lower court or tribunal must resolve the
petition in six months.
Rule 58, Sec. 5,(RULES OF COURT, Rule 58, Sec. 5) xxx The trial
court, the Court of Appeals, the Sandiganbayan or the Court of Tax
Appeals that issued a writ of preliminary injunction against a lower
court, board, officer, or quasi-judicial agency shall decide the main
case or petition within six (6) months from the issuance of the writ) on
preliminary injunctions now states that the trial court, the Court
of Appeals, the Sandiganbayan or the Court of Tax Appeals
which issued a writ of preliminary injunction against a lower
court, board, officer, or quasi-judicial agency, in a certiorari
petition, shall decide the main case or the petition for
certiorari within six (6) months from the issuance of the writ.
This amendment aims to prevent the stalling of proceedings in the
principal case and to discourage litigants from filing petitions for
certiorari, knowing that the principal case may only be suspended for a
period not exceeding six months, even when a preliminary injunction is
granted.
Filing of petition for certiorari does not interrupt the course of
the principal action nor the running of the reglementary
periods involved in the proceeding, unless an application for a
restraining order or a writ of preliminary injunction to the
appellate court is granted. Neither does it interrupt the
reglementary period for the filing of an answer nor the course
of the case where there is no writ of injunction.
Illustration:
In a case filed before the RTC, the defendants filed a motion to dismiss
the complaint on the ground of lack of jurisdiction. The court denied
the motion and the subsequent motion for reconsideration. A petition
for certiorari was then filed in the CA to nullify and set aside the orders
of the RTC. While the petition for certiorari was pending, the plaintiff
filed a motion to declare the defendant in default for failure to file an
answer within the reglementary period. Would the RTC be in error if it
declares the non-answering defendant in default?
The RTC would not be faulted if it grants the motion to declare the
defendant in defulat. The running of the period to file an Answer was
not interrupted because the defendant did not avail of a writ of
preliminary injunction when he filed the petition for certiorari. Settled
is the rule that to arrest the course of the principal actiond during the
pendency of certiorari proceedings, there must be a restraining order
or a writ of preliminary injunction from the appellate court directed
against the lower court (People v. Almendras, 401 SCRA 555, 571).
When a Rule 45 petition is considered as a Rule 65 petition-
This happens in cases where the subject of the recourse is one of
jurisdiction, or the act complained of is perpetrated by a court with
grave abuse of discretion amounting to lack or excess of jurisdiction,
but when the petition denominated neither involves any issue on
jurisdiction nor a grave abuse of discretion on the part of the CA, it
should be dismissed outright (China Bank Corp. v. Asian Construction
and Development Corporation, 550 SCRA 585,
Distinctions between Certiorari under Rule 64 and Certiorari
under Rule 65-
1. The certiorari in Rule 64 is directed only against the
judgments, final orders or resolutions of the COMELEC and
COA (Sec. 1, R 64). The Certiorari in Rule 65 is directed
against any tribunal, board, or officer exercising judicial or
quasi-judicial functions (Sec. 1, R 65).
2. The certiorari in Rule 64 is filed within 30 days from notice
of the judgment (Sec. 3 R 64). The certiorari in Rule 65 is
filed within 60 days from notice of the judgment (Sec. 4 R
65).
3. In Rule 64, the filing of a motion for reconsideration or new
trial, if allowed, interrupts the period for the filing of a
petition for certiorari. If the motion is denied, the aggrieved
party may file the petition within the remaining period, but
which shall not be less than 5 days reckoned from the
notice of denial (Sec. 3 Rule 64). In Rule 65, the period
within which to file the petition, if the motion for
reconsideration or new trial is denied, is 60 days from the
notice of the denial of the motion (Sec. 4 Rule 65).
PROHIBITION
1. DEFINITION
a. An action applied for in the proper court to prevent inferior courts,
corporations, boards, or persons from usurping or exercising a
jurisdiction or power with which they have not been vested by law
(Pacificador, et al. v. Commission on Elections, et al, G.R. No. 178259,
March 13, 2009, 581 SCRA 372) and to command the respondent
to desist from further proceedings in the action or matter
specified therein, or otherwise granting such incidental reliefs as law
and justice may require.
It is a process by which a superior court prevents inferior courts,
tribunals, officers, or persons from usurping or exercising a jurisdiction
with which they have not been vested by law (City Engineer of Baguio
v. Baniqued, 571 SCRA 617, 625).
16
It bears stressing that an action for prohibition or certiorari,
for that matter, does not divest the inferior or trial court of its
jurisdiction validly acquired over the case pending before it. It
is merely an invocation for the exercise of its supervisory
power over the lower court to insure that the lower court acts
within its jurisdiction (Mayon Estate Corp. v. Marietta Aktura, 440
SCRA 377, 387).
Because prohibition is an original action, the mere filing thereof
will not immediately enjoin the performance of an act sought
to be prevented while the petition is pending. The petitioner
has to obtain a writ of preliminary injunction or a TRO
pending final resolution of thepetition for prohibition.
It is an extraordinary remedy in the sense that it is ordinarily
available only when the usual and ordinary proceedings at law
or in equity are inadequate to afford reddress (Heirs of Sofia
Nanaman Lonoy v. Secretary of Agrarian Reform, 572 SCRA 185, 207).
Being an extraordianry remedy, prohibition cannot be resorted to
when the ordinary and usual remedies provided by law are
adequate and available. If the petitioner has another remedy
like appeal, such fact is generally held to be sufficient reason
for denying the issuance of the writ (Delta Development and
Management Services Inc v. Housing and Land Use Regulatory Board,
546 SCRA 240, 244).
The following requisites must be present:
i. The impugned act must be of a tribunal,
corporation, board, officer or person,
whether exercising judicial, quasi-
judicial or ministerial functions;
ii. Said tribunal, corporation, board, or person
must have acted without or in excess of
its or his jurisdiction, or with grave
abuse of discretion amounting to lack
or excess of jurisdiction; and
iii. When there is no appeal or any other plain,
speedy, and adequate remedy in the
ordinary course of law.
Example:
An action for recovery of ownership of a parcel of land with an
assessed value of P20,000.00 is filed with the RTC. Defendant moved
to dismiss but was denied and the court set the case for pre-trial.
What is the appropriate remedy of the defendant?
Certiorari to annul the order of denial and prohibition to prevent
the RTC from usurping a jurisdiction or authority it does not have and
to command the RTC to desist from further proceeding with the case.
The ground is lack of jurisdiction. No appeal is available because the
order of denial is an interlocugory order.
In Spouses Yusay v. CA, 647 SCRA 269, 285, April 6, 2011, the Court
ruled that the remedy of prohibition is not available against a mere
resolution expressing the desire of a Sangguniang Panglungsod to
expropriate property. At this stage, it would be premature for the
petitioners to mount any judicial challenge against the resolution
because the power of eminent domain could be exercised by the City
only through the filing of a verified complaint in the proper court.
Before the City as the expropriating autority files such verified
complaint, no expropriation proceeding could be said to exist. Until
then, the petitioners as owners could not be deemed as having been
deprived of their property under the power of eminent domain.
Meaning of judicial, quasi-judicial and ministerial function-
A respondent is said to be exercising judicial function when he has
the power to determine what the law is and what the legal
rights of the parties are, and then undertakes to determine
these questions and adjudicate upon the rights of the parties.
Quasi-judicial function is a term which applies to the action and
discretion of public administrative officers or bodies, which
are required to investigate facts or ascertain the existence of
facts, hold hearings, and draw conclusions from them as basis
for their official action and to exercise discretion of a judicial
nature.
Ministerial function is one which an officer or tribunal performs in
the context of a given set of facts, in a prescribed manner and without
regard for the exercise of his/its own judgment upon the propriety or
impropriety of the act done (Destileria Limtuaco & Company Inc. v.
Advertising Board of the Philippines, 572 SCRA 455, 460).
The petition shall be accompanied by:
1. a certified true copy of the judgment;
2. order or resolution subject thereof;
3. copies of all pleadings and documents relevant and pertinent
thereto; and
4. a sworn certification of non-forum shopping.(RULES OF COURT,
Rule 65, Sec.
b. As applied in our jurisprudence, the office of prohibition is to
prevent the unlawful and oppressive exercise of authority and is
directed against proceedings that are done without or in excess of
jurisdiction, or with grave abuse of discretion, there being no appeal or
other plain, speedy, and adequate remedy in the ordinary course of
law.
OBJECTIVE OF PROHIBITION
To stop the challenged proceedings, pending resolution of the
issues raised in the appellate court, of any tribunal, corporation,
board, officer or person exercising judicial, quasi-judicial or
ministerial functions which proceedings were conducted
without or in excess of jurisdiction or with grave abuse of
discretion.(Id)
Prohibition, thereofre excludes its use against any person or
group of persons acting in a purely private capacity. Prohibition
will not lie against private individuals or corporations (Destileria
Limtuaco & Company, Inc. v. Advertising Board of the Philippines, 572
SCRA 455, 459-460).
Comparisons:
Prohibition v. Injunction
Prohibition is a special civil action directed against a tribunal,
corporation, board, officer or person which exercises judicial, quasi-
judicial, or ministerial functions commanding the same to desist from
further proceedings. An injunction, as a main action, is an ordinary civil
action.
Prohibition v. Certiorari
1. A writ of prohibition is directed not only against a
respondent exercising judicial or quasi-judicial function but
even against one exercising ministerial functions. A writ
17
 of certioari seeks to annul acts of a respondent performing
judicial or quasi-judicial functions (Secs. 1 and 2 R 65).
2. A writ of prohibition is directed to the tribunal itself
commanding it to desist from further proceeding with the
case. A writ of certiorari is directed to the action of the
court which is sought to be annulled.
3. The purpose of prohibition is to command the
respondent to desist from further proceedings (Sec. 2 R
65). The purpose of certiorari is to annul or modify the
judgment, order, resolution or proceedings of the
public respondent (Sec. 1 R 65).
Example:
In an action for sum of money, the defendant moved to
dismiss the complaint for improper venue it being obvious
that the venue was improperly laid, the complaint having
been filed in a place which was neither the residence of the
plaintiff nor that of the defendant. The motion and a
subsequent motion for reconsideration of the order of denial
were denied.
The court in this case, could be deemed to have acted with
grave abuse of discretion. To prevent the court from
proceeding with the case, a petition for prohibition would be
proper to command the court to desist from further
proceedings. To annul the order of the court, the remedy
would be a petition for certiorari. To interrupt the
proceedings and prevent the court from further proceedings
during the pendence of the petitions, a prayer for a writ of
preliminary injunction would be availed of. And before the
application for preliminary injunction is considered a TRO
can be applied for, This is not uncommon.
4. JURISPRUDENCE
4.1. Prohibition refers only to proceedings of any tribunal,
corporation, board or person, exercising functions judicial,
quasi-judicial or ministerial. If the respondents do not
exercise such kind of functions, theirs being legislative or
political, it is clear the dispute falls beyond the scope of such
special remedy.(Vera v. Avelino, 77 Phil 192 [1946])
4.2. General rule: Prohibition will not lie to determine title to
office
The authorities and decisions of courts are almost unanimous in saying
that prohibition will not lie to determine the title of a de facto judicial
officer, since its only function is to prevent a usurpation of
jurisdiction by a subordinate court.(The Nacionalista Party v.
Bautista, 85 Phil. 101 [1949]).
In this case the Nacionalista Party and its official candidates for
senators filed an action for prohibition against Vicente de Vera,
Chairman of the COMELEC from sitting or taking part in the
deliberations of said Commission in connection with the elections of
Nov. 8, 1949, on two grounds: (1) that he is the father of Teodoro de
Vera one of the candidates of the Liberal Party for the position of
senator in the last elections, and for that reason, he is disqualifed from
acting on all matters connected with said elections; and (2) that his
appointment as Chairman of the COMELEC is a violation of the
Constitution and, therefore, it is void ab initio.
Exception:
Prohibition was allowed due course in the peculiar and extraordinary
circumstance where no one was entitled to the office. Hence,
there was no party who, in his name, may institute quo
warranto proceedings, and the only other party who may
institute the proceedings in the name of the Republic of the
Philippines was the Respondent himself. Were it not for this
anomalous situation where there would be no remedy to redress a
constitutional transgression, the court would have adhered strictly to
the time-honored rule that what should have been filed was a quo
warranto proceeding as the proper remedy to test the right to an
office.(Id)
4.3. Prohibition, as a rule, does not lie to restrain an act that is
already fait accompli.(Montes v. Court of Appeals, G.R. No. 143797,
May 4, 2006, 489 SCRA 432, citing Gonzales v. Narvasa, G.R. No.
140835, August 14, 2000, 337 SCRA 733, 740).
Exception: The Supreme Court made an exception where the
creation of a new province out of the original territory of Negros
Occidental had allegedly been approved in a plebiscite and the
existence of a new province had already been proclaimed. The Court
noted that considering that the legality of the plebiscite itself is
challenged for non-compliance with constitutional requisites, the case
cannot truly be viewed as already moot and academic.
Should the Court decline to perform its duty of interpreting and
indicating what the law is and should be, this might set a dangerous
precedent wherein those with ulterior motives might create, merge,
divide and/or alter the boundaries of political subdivisions, as long as
they manage to bring about a fait accompli situation.(Tan, et al. v.
COMELEC, et al., G.R. No. 73155, July 11, 1986, 142 SCRA 727).
Declaratory Relief treated as prohibition-
The validity of the impending imposition of the value-added tax was
assailed in a case. An issue was then raised on whether or not the
Court may treat the petition for declaratory relief as one for
prohibition.
In Diaz v. Secretary of Finance, 654 SCRA 96, 108-109, July 19, 2011,
the Court issued a resolution treating the petition as one for
prohibition rather than one for declaratory relief, the latter being the
characterization that the petitioners gave their action.
The government sought reconsideration of the Court’s resolution,
arguing that petitioners’ allegations clearly made out a case for
declaratory relief, an action over which the Court has no original
jurisdiction. The government added that the petition did not meet the
requirements for prohibition under Rule 65 since the BIR did not
exercise judicial, quasi-judicial or ministerial functions when it sought
to impose VAT on toll fees. Besides, argued the government, the
petitioners had a plain, speedy, and adequate remedy in the ordinary
course of law against the BIR action in the form of an appeal to the
Secretary of Finance.
The Court, however, ruled that there are precedents for treating a
petition for declaratory relief as one for prohibition if the case has
far-reaching implications and raises questions that need to be
resolved for the public good. The Court also held that a
petition for prohibition is a proper remedy to prohibit or
nullify acts of executive officials that amount to usurpation of
legislative authority.
In the case, the Court observed that the imposition of VAT on toll fees
has far-reaching implications and would impact, not only on the more
than half a million motorists who use the tollways everyday, but more
so on the government’s effort to raise revenue for funding various
projects and reducing budgetary deficits.
18
MANDAMUS
1. DEFINITION
The term mandamus is a latin term meaning "we command." (Black’s
Law Dictionary (8th Ed., 2004), p. 980).
Mandamus will lie to compel the performance of a ministerial
duty, not a discretionary duty.(Sy Ha v. Galang, G.R. No. 18513,
April 27, 1963, 7 SCRA 797)
Mandamus is an extraordianry writ commanding a tribunal,
corporation, board, officer or person to do an act required to be
done:
a. when said Tribunal, corporation, board, officer or
person unlawfully neglects the performance
of an act which the law specifically enjoins
as a duty arising from an office, trust, or
station;
b. when one unlawfully excludes another from
the use or enjoyment of a right or office to
which the plaintiff is entitled; and
c. There is no other plain, speedy and adequate
remedy in the ordinary course of law.
Example:
When a judgment has become final and executory it is a duty of the
court which rendered it, as enjoined by the law or rules, to execute or
implement it. Refusal can then be compelled by mandamus.
Prayer in a petition for mandamus:
a. that judgment be rendered commanding the respondent to
do the act required to be done to protect the rights of the
petitioner, and
b. that the respondent pay the damages sustained by the
petitioner by reason of the wrongful acts of the respondent
(Sec. 3 R 65).
Requisites:
a. the plaintiff has a clear legal right to the act demanded;
b. it must be the duty of the defendant to perform the
act, because it is mandated by law;
c. the defendant unlawfully neglects the performance of
the duty enjoined by law; and
d. there is no appeal or any plain, speedy and adequate
remedy in the ordinary course of law (De Castro v. JBC,
615 SCRA 666, 751, March 17, 2010).
Clear legal right-
It is a right which is indubitably granted by law or inferable as a
matter of law. If the right is clear and the case is meritorious,
objections raising merely technical questions will be disregarded. But
where the right sought to be enforced is in substantial doubt or
dispute, mandamus cannot issue (Angeles v. Secretary of Justice, 614
SCRA 478, 494, March 9, 2010).
Ministerial v. discretionary act
A purely ministerial act or duty is one which an officer or tribunal
performs in a given state of facts, in a prescribed manner, in
obedience to the mandate of a legal authority, without regard
to or the exercise of his own judgment upon the propriety or
impropriety of the act done. If the law imposes a duty upon a
public officer and gives him the right to decide how or when the
duty shall be performed, such duty is discretionary and not
ministerial. The duty is ministerial only when the discharge of the
same requires neither the exercise of official discretion or judgment
(Espiridion v. CA, GR No. 146933, June 8, 2006, as cited in De Castro
v. JBC, 615 SCRA 666, 753, March 17, 2010).
For example, mandamus will not lie to control the discretion of a
judge or to compel him to decide a motion pending before him in a
particular way (Morada v. Caluag, 5 SCRA 1128, 1130). But it is proper
to compel execution of a judgment (Lumapas v. Tamin, 334 SCRA 391,
396), because execution of a final and executory judgment is a matter
of right (sec. 1 R 39).
In matters involving the exercise of judgment and discretion,
mandamus may only be resorted to, to compel the respondent
to take action; it cannot be used to direct the manner or the
particular way discretion is to be exercised (Cuarto v.
Ombudsman Marcelo, 658 SCRA 580, 594, October 5, 2011).
When mandamus may lie to compel discretionary acts-
In M.A. Jimenez Enterprises, Inc. v Ombudsman, 650 SCRA
381, 399, June 6, 2011, the Court in reiterating the principle that
Mandamus is employed to compel the performance of a ministerial, not
a discretionary act, also held that while the corresponding official
cannot be directed by mandamus to act one way or the other, it may
be so directed where there is grave abuse of discretion,
manifest injustice, or palpable excess of authority.
Rights and duties under a contract cannot be compelled by
mandamus-
Mandamus cannot be be availed of as a remedy to enforce the
performance of contractual obligations.
No rule of law is better settled than that mandamus does not lie to
enforce the performance of contractual obligations. It was not
intended to aid a plaintiff in the enforcement of a mere contract right,
or to take the place of the other remedies provided by law for the
adjudication of disputed claims. To permit the writ of mandamus to be
used for the purpose of enforcing a mere contract right would be a
wide departure from the settled practice in respect to the character of
cases in which relief by mandamus may be obtained (Manalo v. PAIC
Savings Bank, 453 SCRA 747, 754; Lucman v. Malawi, 511 SCRA 268,
279).
Provisional remedies available-
The court in which the petition is filed may issue orders expediting the
proceedings, and it may also grant a temporary restraining order or a
writ of preliminary injunction for the preservation of the rights of the
parties pending such proceedings.
Filing does not interrupt principal case-
The petition shall not interrupt the course of the principal case unless a
temporary restraining order or a writ of preliminary injunction has
been issued against the public respondent from further proceeding in
the case.
The public respondent shall proceed with the principal case within ten
(10) days from the filing of a petition for certiorari with a higher court
or tribunal, absent a Temporary Restraining Order (TRO) or a Writ of
Preliminary Injunction, or upon its expiration. Failure of the public
respondent to proceed with the principal case may be a ground for an
administrative charge (AM 07-7-12-SC, Dec. 12, 2007).
19
 a right or
office to
which the
other is
entitled (Sec.
3, Rule 65).

Directed against a Directed against a Directed against a

person exercising person exercising person exercising
judicial or quasi- judicial or quasi- ministerial duties
judicial functions judicial functions, or
ministerial functions

The tribunal, board The tribunal, It must be the duty

or officer has acted corporation, board or of the defendant to
without, or in excess person must have perform the act,
of jurisdiction or with acted without or in which is ministerial
grave abuse of excess of jurisdiction and not
discretion amounting or with grave abuse of discretionary,
to lack or excess or discretion amounting because the same is
jurisdiction to lack of jurisdiction; mandated by law.

There is no appeal or There is no appeal or The defendant

any plain, speedy any plain, speedy and unlawfully neglects
and adequate adequate remedy in the performance of
remedy in the the ordinary course of the duty enjoined by
ordinary course of law. law;
law.

Object is to correct Object is to prevent Object is to compel

Purpose is to annul Purpose is to stop the Purpose is to compel

or modify the proceedings performance of the
proceedings act required and to
CERTIORARI PROHIBITION MANDAMUS collect damages
Certiorari is an Prohibition is an Mandamus is an
extraordinary writ extraordinary writ extraordinary writ
ANNULLING OR COMMANDING a commanding a
MODIFYING the tribunal, corporation, tribunal, Person or entity Person or entity must Person must have
proceedings of a board or person, corporation, board must have acted have acted without or neglected a
tribunal, board or whether exercising or person, to do an without or in excess in excess of ministerial duty or
officer exercising judicial, quasi-judicial act REQUIRED to of jurisdiction, or jurisdiction, or with excluded another
judicial or quasi- or ministerial be done: with grave abuse of grave abuse of from a right or office
judicial functions functions, TO DESIST discretion discretion
when such tribunal, from further
a) When he
board or officer has proceedings when
unlawfully
acted without or in said proceedings are A person aggrieved A person aggrieved The person
neglects the
excess of its or his without or in excess of thereby may file a thereby may file a aggrieved thereby
performance of
jurisdiction, or with its jurisdiction, or with verified petition in verified petition in may file a verified
an act which
grave abuse of grave abuse of its the proper court, the proper court, petition in the
the law
discretion amounting discretion, there being alleging the facts alleging the facts with proper court,
specifically
to lack or excess of no appeal or any other with certainty and certainty and praying alleging the facts
enjoins as a
jurisdiction, there plain, speedy and praying that that judgment be with certainty and
duty, and there
being no appeal or adequate remedy in judgment be rendered praying that
is no other
any other plain, the ordinary course of rendered commanding the judgment be
plain, speedy
speedy and law (Sec. 2, Rule 65). annulling or respondent to rendered
and adequate
adequate remedy in modifying the desist from further commanding the
remedy in the
the ordinary course proceedings of proceedings in the respondent,
ordinary course
of law (Sec. 1, Rule such tribunal, board action or matter immediately or at
of law; or
65). or officer, and specified therein, or some other time
b) When one
unlawfully granting such otherwise granting to be specified by
excludes incidental reliefs as such incidental reliefs the court, to do
another from law and justice may as law and justice may the act required
the use and require. The require. The petition to be done to
enjoyment of petition shall be shall likewise be protect the rights
accompanied by a accompanied by a of the petitioner,
20
certified true copy certified true copy and to pay the
of the judgment, of the judgment, damages sustained
order or order or resolution by the petitioner by
resolution subject subject thereof, reason of the
thereof, copies of copies of all wrongful acts of the
all pleadings and pleadings and respondent. The
documents documents relevant petition shall also
relevant and and pertinent contain a sworn
pertinent thereto, thereto, and a certification of
and a sworn sworn certification non-forum
certification of of non-forum shopping.
non-forum shopping.
shopping.

 Mandamus can be issued to perform an act

but not to approve a certain request

INJUNCTIVE RELIEF
legal functions;

PROHIBITION MANDAMUS INJUNCTION

Prohibition is an Mandamus is an Main action for Always the main Always the main May be the main
extraordinary writ extraordinary writ injunction seeks to action action action or just a
commanding a commanding a enjoin the provisional remedy
tribunal, corporation, tribunal, defendant from May be brought in May be brought in May be brought in
board or person, corporation, board the commission the Supreme Court, the Supreme Court, the Regional Trial
whether exercising or person, to do an or continuance of Court of Appeals, Court of Appeals, Court which has
judicial, quasi-judicial act required to be a specific act, or Sandiganbayan, or in Sandiganbayan, or jurisdiction over the
or ministerial done: (a) When he to compel a the Regional Trial in the Regional Trial territorial area
functions, to desist unlawfully neglects particular act in Court which has Court which has where respondent
from further the performance of violation of the jurisdiction over the jurisdiction over the resides.
proceedings when an act which the law rights of the territorial area where territorial area
said proceedings are specifically enjoins applicant. respondent resides. where respondent
without or in excess as a duty, and there Preliminary resides.
of its jurisdiction, or is no other plain, injunction is a
with abuse of its speedy and provisional remedy
discretion, there adequate remedy in to preserve the
being no appeal or the ordinary course status quo and
any other plain, of law; or (b) When prevent future
speedy and one unlawfully wrongs in order to
adequate remedy in excludes another preserve and
the ordinary course from the use and protect certain
of law (Sec. 2, Rule enjoyment of a right interests or rights
65). or office to which during the
the other is entitled pendency of an
(Sec. 3, Rule 65). action.
Special civil action Special civil action Ordinary civil action

To prevent an To compel the For the defendant

encroachment, performance of a either to refrain
excess, usurpation ministerial and legal from an act or to
or assumption of duty; perform not
jurisdiction; necessarily a legal
and ministerial
duty;

May be directed May be directed Directed against a

against entities against judicial and party
exercising judicial or non-judicial entities
quasi-judicial, or
ministerial functions
Extends to Extends only to Does not
discretionary ministerial functions necessarily extend
functions to ministerial,
discretionary or
21
3. JURISPRUDENCE
3.1. Mandamus was found to be proper in granting holiday pay to
monthly salaried employees. (Mantrade/FMMC Division Employees and
Workers Union v. Bacungan, G.R. No. 48437, September 30, 1986, 144
SCRA 510).
3.2. Mandamus was found to be improper in the following:
a. to compel a school to enroll a student for academic deficiencies
because this involves the exercise by the school of discretion under
academic freedom; (University of the Philippines v. Ayson, G.R. No.
88386, August 17, 1989, 176 SCRA 571) and
b. against the President or Congress because of the principle that the
judiciary is a co-equal department of the latter (Suanes v. Chief
Accountant of the Senate, 81 Phil. 818 [1948]; Resolution on the
Motion for Reconsideration, 81 Phil. 877 [1948]).
3.3. Failure to exhaust administrative remedies is generally
fatal to an action for mandamus (Aquino v. Mariano, G.R. No.
30485, May 31, 1984, 129 SCRA 532). The exception is when the
issue raises purely a question of law (One Heart Sporting Club,
Inc. v. Court of Appeals, G.R. No. 53790, October 23, 1981, 108 SCRA
416).
Read MMDA v. Concerned Residents of Manila Bay, GR Nos.
171947-48, December 18, 2008
Meaning of continuing mandamus-
It is a writ issued by a court in an environmental case directing any
agency or instrumentality of the government or officer thereof to
perform an act or series of acts decreed by final judgment
which shall remain effective until judgment is fully satisfied
(Sec. 4[c], R I, Part I, Rules of Procedure for Environmental Cases, AM
No. 09-6-8-SC).
When writ is available-
When any agency, instrumentality of the government, or office
thereof:
(a) unlawfully neglects the performance of an act which
the law specifically enjoins as a duty resulting from an
office, trust or station in connection with the
enforcement or violation of an environmental
law rule or regulation or a right therein; or
3.4. Continuing mandamus in a case. 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 the case of Metro
Manila Development Authority v. Concerned Citizens of Manila
Bay, (G.R. Nos. 171947-48, December 18, 2008, 574 SCRA
661) the Supreme Court issued a writ of continuing mandamus and
ordered the heads of petitioners-agencies MMDA, DENR,
DepEd, DOH, DA, DPWH, DBM, PCG, PNP Maritime Group,
DILG, and also of MWSS, LWUA, and PPA, to submit to the
Court a quarterly progressive report of the activities
undertaken in accordance with the Court’s decision which
required among others, the clean up of Manila Bay and all
waterways emptying into Manila Bay and to restore the
marine life of Manila Bay.
4. RULE ON WRIT OF CONTINUING MANDAMUS
On April 13, 2010, the Supreme Court approved The Rules of
Procedure for Environmental Cases which provides for the issuance of
a Writ of Continuing Mandamus when called for by the
circumstances.(A.M. No. 09-6-8.
(b) unalwfully excludes another from the use or enjoyment
of such right (Sec. 1, R 8 Part III, Rules of Procedure
for Environmental Cases)
Form and contents of the petition-
The petition shall be verified. It shall allege facts with certainty,
attaching thereto supporting evidence, specifying that the petition
concerns an environmental law, rule or regulation, and praying
that judgment be rendered commanding the respondent to do
an act or series of acts until the judgment is fully satisfied,
and to pay damages sustained by the petitioner by reason of
the malicious neglect to perform the duties of the respondent,
under the law, rules or regulations. The petition shall also contain
a sworn certification of non-forum-shopping (Sec. 1 R 8).
Where to file the petition-
The petition shall be filed with the (a) Regional Trial Court
exercising jurisdiction over the territory where the actionable
22
neglect or omission occurred, (b) Court of Appeals, or (c)
Supreme Court (Sec. 2 R 8 Part III).
No docket fees (Sec. 3 R 8).
Action of the court when petition is filed-
1. When the petition is duly filed, the court may (a) issue such
orders to expedite the proceedings, and (b) also
grant a Temporary Environmental Protection Order
(TEPO) for the preservation of the rights of the
parties pending such proceedings (Sec. 5 R 8).
2. The TEPO is granted if it appears that the matter is of
extreme urgency and the applicant will suffer grave
injustice and irreparable injury (Sec. 8 R 2 Part II)
Order to comment-
If the petition is sufficient in form and substance, the court shall
issue the writ and reqire the respondent to comment on the petition
within 10 days from receipt of a copy thereof. Such order shall be
served on the respondents in such manner as the court may
direct, together with a copy of the petition and any annexes thereto
(Sec. 4 R 8 Part III). Note: The writ is issued as a matter of
course if the petition is sufficient in form and substance.
Pleadings after comment is filed-
1.After the comment is filed or the time for the filing thereof has
expired, the court has options, to wit:
(a) the court may hear the case. If it does so decide to
conduct a hearing, the rule requires that it be
summary in nature (Sec. 6 R 8 Part III)
(b) The court may, however, opt to merely require the
parties to submit memoranda (Sec. 6 R 8 Part III).
3. The petition shall be resolved without delay within 60
days from the date of the submission of the petition
for resolution (Sec. 6 R 8 Part III).
Judgment; periodic reports-
1. If warranted, the court shall:
(a) grant the privilege of the writ of continuing
mandamus requiring the respondent to
perform an act or series of acts until the
judgment is fully satisfied, and
(b) grant such other reliefs as may be warranted
resulting from the wrongful or illegal acts of the
respondent (Sec. 7 R 8 Part III).
2. The court shall also require the respondent to submit
periodic reports detailing the progress and execution
of the judgment, and the court may, by itself or
through a commissioner or the appropriate
government agency, evaluate and monitor
compliance (Sec. 7 R 8 Part III).
3. The periodic resports shall be contained in partial returns
of the writ (Sec. 8 R 8 Part III).
Comments of petitioner on execution of judgment-
The petitioner may submit its comments or observations on the
execution of the judgment (Sec. 7 R 8 Part III)
Return of the writ; final return-
Upon full satisfaction of the judgment, a final return of the writ
shall be made to the court wich rendered the judgment by the
respondent. If the court finds that the judgment has been fully
implemented, the satisfaction of judgment shall be entered in the court
docket (Sec. 8 R 8 Part III).
Writ of Kalikasan
Requisites for the writ to be available
1. The writ is available to (a) natural person, (b) juridical
person, (c) entity authorized by law, (d) people’s
organization, (e) NGO, or (f) any public interest group
accredited by or registered with any governmental agency
(Sec. 1 R 7 Part III, Rules of Procedure for Emvironmental
Cases, AM No. 09-6-8-SC).
2. The petition for the writ may be filed not only on one’s
personal behalf but also on behalf of persons whose
constitutional right to a balanced and healthful
ecology is violated (sec. 1 R 7 Part III).
3. An actual violation of the constitutional right to a balanced
and healthful ecology is not required before the writ may
be availed of. It is sufficient that the right is
threatened with a violation (sec. 1 R 7 Part III)
4. The violation or threatened violation is caused by an
unlawful act or omission and the one responsible for
such is any of the following:
(a) public official;
(b) public employee;
(c) private individual; or
(d) private entity (Sec. 1 R 7 Part III)
5. The unlawful act or omission involves an
environmental damage of such magnitude as to
prejudice the life, health or property of inhabitants in
two or more cities or provinces (Sec. 1 R 7 Part III).
Verified petition; contents-
1. The rule requires that the petition be verified and contain
the personal circumstances of the petitioner.
It shall also contain the name and personal circumstances
of the respondent or he may be described by an assumed
appellation if his name and personal circumstances are
unknown and uncertain (sec. 2 R 7 Part III).
2. aside from the names and personal circumstances of the
petitioner and respondent, the petition shall contain the
following:
(a) environmental law, rule or regulation violated or
threatened to be violated;
(b) act or omission complained of;
(c) environmental damage of such magnitude as to
prejudice the life, health or property of the
inhabitants in two or more cities or provinces; and
(d) all relevant and material evidence consisting of
the affidavits of witnesses, documentary
23
 evidence, scientific or other expert studies, and if
possible, object evidence (Sec. 2 R 7 Part III).
3. the petition shall also contain the equivalent of a
certification against forum shopping. The certification,
which shall be under oath, shall state the uniform contents
of said certification (Sec. 2 R 7 Part III).
4. The petition shall also state the reliefs prayed for which may
include a prayer for the issuance of a Temporary
Environmental Protection Order (TEPO).
Court where the petition is filed-
The Supreme Court or with any of the stations of the Court of Appeals
(Sec. 3 R 7 Part III).
No docket fee to be paid (Sec. 4 R 7 Part III).
Issuace of the writ-
1. The court shall give an order issuing the writ; and (b)
requiring the respondent to file a verified return (Sec. 5 R 7
Part III).
2. The above order shall be issued within 3 days from the date
of the filing of the petition. Such order, however, shall not
be issued as a matter of course. It shall be issued only if
the petition is sufficient in form and substance (Sec.
5 R 7 Part III).
Duty of the Clerk of Court-
Upon receipt of the order of the court, the clerk of court shall
issue the writ of kalikasan under the seal of the court including the
issuance of a cease and desist order and other temporary
reliefs which shall be effective until further orders (Sec. 5 R 7
Part III).
Penalty for refusing to issue the writ-
If the clerk of court either (a) unduly delays, or (b) refuses to issue the
writ after its allowance by the court, he shall be punished by the court
for contempt without prejudice to other civil, criminal or
administrative actions (Sec. 7 R 7 Part III).
Service of the writ-
1. The writ shall be served upon the respondent by a court
officer. It may also be served by any person deputized by
the court (Sec. 6 R 7 Part III).
2. The writ shall first be served personally upon the
respondent. In case it cannot be served personally, the rule
on substituted service shall apply (Sec. 6 R 7 Part III). The
substituted service referred to is Sec. 7 of R 14 of the Rules
of Court.
3. The server is required to retain a copy of the writ on which
to make a return of service (Sec. 6 R 7 Part III).
Penalty for refusing to serve the writ
A court officer or deputized person who (a) unduly delays, or
(b) refuses to serve the writ shall be punished for contempt without
prejudice to other civil, criminal or adinistrative actions (Sec. 7, Rule 7,
Part III, Rules of Procedure for Environmental Cases).
Return of respondent; non-extendible
1. Recall that the court, upon finding the petition sufficient
in form and substance, shall issue an order not only for the issuance of
the writ but also filing a verified return by the respondent (Sec. 5, Rule
7, Part III, Rules of Procedure for Environmental Cases).
The period to file a return is non-extendible (Sec. 8,
Rule 7, Part III, Rules of Procedure for Environmental Cases). A
motion for extension of time to file a return is prohibited (Sec.
9[b], Rule 7, Part III, Rules of Procedure for Environmental Cases).
2. The respondent cannot delay the filing of a return on the
pretext that the petition contains matters which are not averred with
sufficient definiteness or clarity because a motion for bill of
particulars is prohibited motion (Sec. 9[d], Rule 7, Part III, Rules
of Procedure for Environmental Cases). A motion for
postponement is, likewise, not allowed (Sec 9[c], Rule 7, Part III,
Rules of Procedurefor Environmental Cases).
Contents of the verified return of respondent
1. The verified return shall contain all defenses to show that
the respondent did not: (a) violate, (b) threaten to violate, (c) allow
the violation of any environmental law, rule or regulation, or (d)
commit any act resulting to environmental damage of such magnitude
as to prejudice the life, health or property of inhabitants in two or
more cities or provinces (Sec. 8, Rule 7, Part III, Rules of Procedure
for Environmental Cases).
The defenses must be contained in the return and a
general denial of the allegations in the petition shall be
considered as an admission thereof (Sec. 8, Rule 7, Part III, Rules
of Procedure for Environmental Cases).
2. The return shall include affidavits of witnesses,
documentary evidence, scientific or other expert studies, and if
possible, object evidence, in support of the defense of the respondent
(Sec. 8, Rule 7, Part III, Rules of Procedure for Environmental Cases).
Waiver of defenses
All defenses not raised in the return shall be deemed waived
(Sec. 8, Rule 7, Part III, Rules of Procedure for Environmental Cases).
Effect of failure to file the return
1. The respondent cannot be declared in default for failure
to file a return because a motion to declare the respondent in
default is a prohibited motion (Sec. 9[h], Rule 7, Part III, Rules of
Procedure for Environmental Cases).
2. In case the respondents fails to file a return, the court
shall proceed to hear the petition ex parte (Sec. 10, Rule 7, Part
III, Rules of Procedure for Environmental Cases).
3. The respondent is not allowed to file a motion to
dismiss the petition, instead of filing a return, because it is one of
the prohibited motions under the Rules (Sec. 9[a], Rule 7, Part III,
Rules of Procedure for Environmental Cases).
Contempt proceedings/ who may be liable-
1. The respondent (a) refuses, (b) unduly delays the filing
of a return, or (c) makes a false return may, after hearing, be
24
punished for indirect contempt under Rule 71 of the Rules of Court
(Sec. 13, Rule 7, Part III, Rules of Procedure for Environmental Cases).
2. The same contempt proceedings may apply to any
person who (a) disobeys, or (b) resist a lawful process or order of the
court (Sec. 13, Rule 7, Part III, Rules of Procedure for Environmental
Cases).
Preliminary conference; modes of discovery
1. Upon receipt of the return of the respondent, the court
may call a preliminary conference in order to (a) simplify the issues,
and (b) determine the possibility of abtaining stipulations or
admissions from the parties (Sec. 11, Rule 7, Part III, Rules of
Procedure for Environmental Cases). The phraseology of the rule
discloses that a preliminary hearing is not mandatory. The term “may”
confers the discretion to call a preliminary conference upon the court.
2. A party may file a motion for certain reliefs. The motion
must be verified. Such reliefs are:
(a) Ocular inspection order; and
(b) Production or inspection of documents or
things (See Sec. 12, Rule 7, Part III, Rules of Procedure for
Environmental Cases).
Hearing
After the preliminary conference, the petition shall also be
set for hearing. The period of the hearing, including the preliminary
conference, shall not extend beyond sixty (60) days and shall be
given the same priority as petitions for the writs of habeas
corpus, amparo and habeas data (Sec. 11, Rule 7, Part III, Rules
of Procedure for Environmental Cases).
Submission of case for decision; submission of memeoranda
After hearing, the court shall issue an order submitting the
case for decision. The court may, however, require the filing of
memoranda within a non-extendible period of thirty (30) days
from the date the petition is submitted for decision. The
memoranda submitted may be, if possible, in electronic form
(Sec. 14, Rule 7, Part III, Rules of Procedure for Environmental Cases).
Judgment; period to render
The court shall render judgment within sixty (60) days
from the time the petition is submitted for decision. The
judgment shall either grant or deny the privilege of the writ of
kalikasan (Sec. 15, Rule 7, Part III, Rules of Procedure for
Environmental Cases).
Reliefs which the court may grant under the writ
The following reliefs may be granted under a writ of
kalikasan:
(a) Directing the respondent to permanently
cease and desist from committing acts or neglecting the
performance of a duty in violation of environmental laws
resulting in environmental destruction or damage;
(b) Directing the respondent public official,
government agency, private person or entity to protect, preserve,
rehabilitate or restore the environment;
(c) Directing the respondent public official,
government agency, private person or entity to monitor strict
compliance with the decision and orders of the court;
(d) Directing the respondent public official,
government agency, or private person or entity to make periodic
reports on the execution of the final judgment; and
(e) Such other reliefs which relate to the
right of the people to a balanced and healthful ecology or to
the protection, preservation, rehabilitation or restoration of the
environment, except the award of damages to individual
petitioners (Sec. 15, Rule 7, Part III, Rules of Procedure for
Environmental Cases).
Appeal
1. A Party may appeal to the Supreme Court under Rule
45 of the Rules of Court within fifteen (15) days from the date
of notice of the adverse judgment or denial of the motion for
reconsideration. The appeal may raise questions of fact (Sec.
16, Rule 7, Part III, Rules of Proceedings for Environmental Cases).
2. The rule in a writ of kalikasan allows a Rule 45 appeal
to raise a question of fact. This rule constitutes an exception to the
general rule enunciated in Sec. 1 of Rule 45 of the Rules of Court
which provies thath the petition “shall raise only questions of law.”
Prohibited pleadings
Under Sec. 9, Rule 7, Part III of the Rules of Proceeding for
Environmental Cases, the following pleadings are prohibited:
(a) Counterclaim;
(b) Cross-claim;
(c) Third-party complaint; and
(d) Reply.
Prohibited motions
Under Sec. 9, Rule 7, Part III of The Rules of Procedure for
Environmental Cases, the following motions are prohibited:
(a) Motion to dismiss;
(b) Motion for extension of time to file
return;
(c) Motion for postponement;
(d) Motion for a bill particulars; and
(e) Motion to declare the respondent in
default.
Filing of the petition is not a bar to the filing of the actions
The filing of a petition for the issuance of the writ of
kalikasan shall not preclude the filing of other actions separate from
the petition. Such separate actions may be civil, criminal, or
administrative (Sec. 17, Rule 7, Part III, Rules of Procedure for
Environmental Cases).
25
Summary-
Writ of Kalikasan:
A remedy available to a natural or juridical person, entity authorized by
law, people”s organization, or any public interest group accredited by
or registered with any government agency, on behalf of persons
Sec. 16 Art. II (Declaration of Principles and State Policies of the 1987
Constitution) which states:
“The state shall protect and advance the right of the people to a
balanced and healthful ecology in accord with the rhythm and
harmony of nature.”
Important feature of the writ of Kailikasan-
The magnitude requirement with regard to the destruction or imminent
destruction which is sought to be prevented must be present.
Meaning of Writ of Continuing Mandamus-
It is a writ issued by a court in an environmental case directing any
agency or instrumentality of the government or officer thereof to
perform an act or series of acts decreed by final judgment
which shall remain effective until judgment is fully satisfied
(Sec. 4[c], R I, Part I, Rules of Procedure for Environmental Cases, AM
No. 09-6-8-SC).
Differences and similarities-
1. Subject matter:
WK – unalwful act or omission; life, health or property;
WCM – neglect or exclusion; law, rule or right.
2. Petitioner:
WK – Any person or representative, agent (po/ngo/ public interest
group);
WCM – one who is personally aggrieved.
3. TEPO:
WK – ancillary remedy;
WCM – ancillary remedy.
4. Jurisdiction:
Wk – SC or CA; WCM – SC or CA or RTC.
5. Discovery measures:
WK – Ocular inspection or production of documemnts;
WCM – no enumeration.
whose constitutional right to a balanced and healthful ecology is
violated, or threatened with violation by an unlawful act or omission of
a public official or employee, or private individual or entity involving
environmental damage of such magnitude as to prejudice the life,
health, or property of inhabitants in two or more cities or provinces.
Basis of the writ-
6. Award for Damages:
WK – none; separate suit; WCM –allow damages for malicious neglect
of duty.
QUO WARRANTO (RULE 66)
1. DEFINITION
Derived from the Latin phrase meaning “by what authority.” A quo
warranto is a prerogative writ by which the Government can
call upon any person to show by what warrant he holds a
public office or exercises a public franchise. (Municipality of San
Narciso, Quezon v. Mendez, G.R. No. 103702, December 6, 1994, 239
SCRA 11, citing Moran, Comments on The Rules of Court, Vol. 3, 1970
ed., p. 208, citing Newman v. U.S., 238 U.S. 537, 545, 56 L.Ed. 513).
Quo warranto is a demand made by the state upon some
individual or corporation to show by what right they exercise
some franchise or privilege appertaining to the state which,
according to the Constitution and laws they cannot legally
exercise except by virtue of a grant and authority from the
State.
It is a proceeding generally defined as an action against a person
who usurps, intrudes into, or unlawfully holds or exercises a
public office (Tecson v. Comelec, 424 SCRA 277, 326) or even
a public franchise.
Under Sec. 1 R 66, it is described as an action for the usurpation of a
public office, position, or franchise that is commenced by a verified
petition in the name of the Republic of the Philippines.
In Divinagracia v. Consolidated Broadcasting Sustem, Inc., 584 SCRA
213, 249, the Court said: “The special civil action of quo warranto is a
prerogative writ by which the Government can all upon any person to
show by what warrant he holds a public office or exercise a public
franchise. Xxx Quo warranto is specifically available as a remedy if it is
thought that a government corporation has offended against its
corporate charter or misused its franchise.”
2. Quo Warranto vs. Mandamus
1. Quo warranto is brought against the holder of the office,
who is the person claiming the office as against the
petitioner, not the one who excludes the petitioner; the
remedy when there is usurpation of the the office and to
oust the holder from its enjoyment; mandamus, on the
other hand, tries to clear duties. It is not a remedy to
disputed titles;
2. When there is usurpation or intrusion to an office, quo
warranto is the proper remedy but where the defendant
without claiming any right to the office excludes the
petitioner therefrom, the remedy is mandamus (Lota v. CA
June 30, 1961).
26
 Recall that mandamus is also available when one is
unlawfully excluded from the use or enjoyment of an office. Always the main action May be the main action or just a
While it is similar to a quo warranto proceeding in this provisional remedy
respect, in mandamus, the suit is brought against the person Directed against a court, a Directed against a party
who is responsible for unlawfully excluding the petitioner tribunal exercising judicial or
from office. The respondent here does not have to usurp, quasi-judicial functions
intrude into or hold the office (See Cornej v. Gabriel, 41 Phil Ground must be the court acted Does not involve a question of
188, 189). without or in excess of jurisdiction jurisdiction

Example:
PROHIBITION MANDAMUS
1. X is appointed City Treasurer of the City of Cebu and wants
to assume. But Y is already holding office under a claim that
he is the rightful and duly appointed City Treasurer. X To prevent an act by a To compel an act desired
believes that Y is a usurper and not entitled to the office. respondent
May be directed against entities May be directed against judicial
His remedy is quo warranto. THE ISSUE IS: WHO BETWEEN exercising judicial or quasi- and non-judicial entities
THE TWO IS ENTITLED TO THE OFFICE. judicial, or ministerial functions
Extends to discretionary functions Extends only to ministerial
functions
2. The City Treasurer retired so the next in rank X was
designated as acting City Treasurer until the successor is
appointed. Y is later on appointed as City Treasurer and
therefore wants to assume. X does not want to vacate MANDAMUS QUO WARRANTO
because he claims that the appointment of Y is defective.

The remedy in this case is mandamus. The issue is to clear Clarifies legal duties, not legal
duties. titles
Respondent, without claiming any
What is the difference between the first and the second? right to the office, excludes the
petitioner
Clarifies who has legal title to the
office, or franchise
Respondent usurps the office

In the first Y the respondent is also claiming title to the office so there
is usurpation. In the second example,however, X, the Acting City
Treasurer is not really claiming that he is the rightful appointee to the
office or he is not claiming a permanent right to the office so he is not
strictly a usurper. But definitely he is excluded from the enjoyment of
the office so the correct remedy is mandamus to compel him to vacate
the position because Y is the new appointee.
Example 3.
3. An action of quo warranto may be brought against:
a. A person who usurps, intrudes into, or unlawfully holds or exercises
a public office, (Topacio v. Ong, et al., G.R. No. 179895, December 18,
2008, 574 SCRA 817) position or franchise; (Philippine Long Distance
Telephone Co. (PLDT) v. The National Telecommunications
Commission and Cellcom, Inc., (Express Telecommunications Co., Inc.
[ETCI]), G.R. No. 88404, October 18, 1990, 190 SCRA 717).

Petitioner F was appointed Election Registrar of the Municipality of

Sevilla supposedly to replace the respondent Election Registrar P who
was transferred to another municipality without his consent and who
refused to accept his aforesaid transfer, much less to vacate his
position in Bogo town as an election registrar, as in fact he continued
to occupy his aforesaid position and exercise his functions thereto.
Petitioner F then filed a petition for mandamus against P but the trial
court dismissed the petition contending that quo warranto is the
proper remedy. Is the court correct?
Yes. Based on the facts it does not show that P excluded F from his
office. He is the holder of the office and continues to do so believing
he has a right to the same and continues to exercise the functions of
the office as against the petitioner. The proper remedy of F is a quo
warranto proceeding.
b. A public officer who does or suffers an act which by a provision
of law constitutes a ground for the forfeiture of his office; and
c. An association of persons which acts as a corporation within the
Philippines without being legally incorporated or without lawful
authority so to act. (RULES OF COURT, Rule 66, Sec. 1).
Although a quo warranto proceeding may be brought against an
association which acts as a corporation within the Philippines without
being legally incorporated or without lawful authority so to act, the
petition may be brought only against a de facto corporation not
a de jure corporation. The latter corporation has no defect in its
incorporation and exercises corporate powers because it was organized
in full compliance with the laws (Black’s Law Dictionary, 5th Ed., 382).
There is therefore, no reason to attack its existence and its exercise of
corporate powers.

A de facto corporation is one which, in good faith claims to be a

corporation being organized pursuant to a valid law, and assumes
corporate powers because it was issued a certificate of incorporation.
Traditionally, it has been referred to as a corporation which exists in
fact but not in law.
PROHIBITION INJUNCTION
Under the Corporation Code, the due incorporation of any corporation
claiming in good faith to be a corporation under such Code, and its
27
right to exercise corporate powers, shall not be inquired into
collaterally in any private suit to which such corporation may be a
party. Such inquiry may be made by the Solicitor General in a quo
warranto proceeding (Sec. 20, Corporation Code of the Philippines).
4. Who may commence:
a. Government through the Solicitor General;
b. Public Prosecutor; (Id., Sec. 2) or
Concepcion, Civil Procedure Annotated, Vol. 2 (2001): Central Law
Book Publishing Co., Inc., p. 518)
2 types of Quo Warranto initiated by the Solicitor General or a
public prosecutor:
(1) Compulsory Quo Warranto under Section 2.;
and
(2) Discretionary Quo Warranto under Section 3.

c. Individual claiming to be entitled to the office or position usurped or

unlawfully held or exercised by another.(Id., Sec. 5). A person
claiming must show entitlement to the office or position.(Id.,
Sec. 6).

Why should the action be initiated by the government as a

Two types of quo warranto based on who initiates it-
rule?

WHEN GOVERNMENT COMMENCE AN ACTION AGAINST

Because the government is interested to see to it that all those
INDIVIDUALS
performing public office are validly there. That they are not impostors
Quo warranto is commenced by a verified petition brought in the name
or usurpers.
of the Government of the Republic of the Philippines by the Solicitor
General, or in some instances, by a public prosecutor.
How about corporation? Well you cannot act as a corporation without
the consent or authority of the State. That is why you have to
When the action is commenced by the Solicitor General, the petition
incorporate and get authority of the State. Therefore if you act as a
may be brought in the Regional Trial Court of the City of Manila, the
corporation without the consent or authority of the State, you are
Court of Appeals or the Supreme Court.
acting without a valid franchise. That is why government is interested.

An action for the usurpation of a public office, position or franchise

That is why plaintiff is the Republic of the Philippines. And therefore,
may be commenced by a verified petition brought in the name of the
if it is the Republic of the Philippines which is interested, generally, it is
Republic of the Philippines thru the Solicitor General against:
the Solicitor General or prosecutor (provincial fiscal) who will file the
case against you.
1) A person who usurps, intrudes into, or unlawfully holds or
exercises a public office, position or franchise;
In certain instances, however, the petition may be brought by an
2) A public officer who does or suffers an act which, by the
individual in his own name if he claims to be entitled to a publi office
provision of law, constitutes a ground for the forfeiture of his
usurped or unlawfully held or exercised by another (Sec. 5 R. 66).
office;
3) An association which acts a corporation within the
When the Solicitor General or Public Prosecutor commences Philippines without being legally incorporated or without
action: lawful authority so to act.

Mandatory

i.when directed by the President; or WHEN INDIVIDUAL MAY COMMENCE AN ACTION

ii.when he has good reason to believe that he can establish a case

under the grounds in Secs. 1 and 2.(Id., Sec. 6).
Discretionary -
At the request and upon the relation of another person (ex relatione).
However, in this case, leave of court must first be obtained and the
OSG or public prosecutor may also require an indemnity bond from the
relator.(Id., Sec. 3)
The motion for leave or application for permission to
commence action under Section 3 of Rule 66 must be set for
hearing with notice to the respondent so that he may be heard.
If permission is granted, the court issues the order allowing the filing
of the action within the period fixed therein.(Id., Sec. 4)
 The petition may be commenced by a private person in his own
name where he claims to be entitled to the public office or
position alleged to have been usurped or unlawfully held or
exercised by another.
 Accordingly, the private person may maintain the action without
the intervention of the Solicitor General and without need for any
leave of court.
 In bringing a petition for quo warranto, he must show that he has
a clear right to the office allegedly being held by another. It is
not enough that he merely asserts the right to be
appointed to the office.
Another classification of Quo Warranto based on in whose
name it is initiated:

(1) Quo Warranto in the name of the Philippines; or

A relator is a person at whose request and upon whose relation the (2) Quo Warranto in the name of a private individual.
Solicitor General or public prosecutor brings an action for quo warranto
with the permission of the court. (Feria, Jose and Noche, Maria
28
 Q: Is there a difference, procedurally, when the Solicitor
General files the Quo Warranto under Sections 2 and 3, and
when the private individual files the Quo Warranto under
Sections 5 and 6?
A: The SC said: YES. And how do we distinguish?
In the action commenced by the private
individual, it is necessary for the petitioner or
plaintiff to prove his right to the office in dispute. If
he fails to prove this, it is unnecessary for the court to
pass on the right of the defendant in office. (Acosta vs. Flor,
5 Phil. 18)
On the other hand, in an action commenced by the
Solicitor General, it is not necessary that there be a
person claiming to be entitled to the office alleged to
have been usurped, thus, the duty of the court is to
pass upon the right of the defendant only. (Acosta vs.
Flor, 5 Phil. 18)
And that distinction has been applied by the SC in several cases.
Examples:
TARROSA vs. SINGSON
May 25, 1994
FACTS: Singson, the respondent herein referred to
is the former Governor of Banko Sentral Ng Pilipinas
(BSP). Now, this petitioner, Jesus Amado Tarrosa is a
taxpayer and he filed a petition for prohibition
questioning the appointment of Singson as Governor of
BSP because according to Taroza, the appointment of
Singson has not been confirmed by the Commission on
Appointments in Congress and therefore, the petition
seeks to enjoin from the performance of his functions
as such official until his appointment is confirmed by
the Commission on Appointments.
HELD: Actually , it is not prohibition but it is quo
warranto, sabi ng SC because he is claiming that
Singson has no authority to occupy the position,
therefore, Singson is guilty of usurpation. And who is
filing the case? Taroza, the private individual.
The Court said: The instant petition is under the
quo warranto proceeding as it seeks to oust Singson
and allege that the latter is unlawfully holding or
exercising the powers of the Governor of Banko
Sentral. Such a special civil action can only be
commenced by the Solicitor General or by the person
claiming to be entitled to a public office or position
unlawfully held or exercised by another. So, it’s either
the Solicitor General or person claiming to be entitled.
5. JURISDICTION
The Supreme Court has original jurisdiction over petitions for quo
warranto.
The Court of Appeals, as well as the Regional Trial Court which
has territorial jurisdiction over the area where the respondent
resides, exercises original and concurrent jurisdiction with the
Supreme Court. (RULES OF COURT, Rule 66, Sec. 7).
Meanwhile, the Sandiganbayan has exclusive original
jurisdiction in quo warranto proceedings arising, or may arise, in
cases filed under Executive Order Nos. 1,(Executive Order No. 1
[1986] – creating PCGG) 2, (Executive Order No. 12 [1986] -
Regarding the Funds, Moneys, Assets and Properties illegally acquired
by former President Ferdinand E. Marcos and Imelda Marcos, et al.)
and 14, as amended by 14-A, (Executive Order No. 14 [1986], as
amended by Executive Order No. 14-A [1986] -Vesting on the
Sandiganbayan original and exclusive jurisdiction over all criminal and
civil suits filed by the PCGG) but this must be in aid of its appellate
jurisdiction and is not exclusive of the Supreme Court. (Presidential
Decree No. 1606 [1978], Sec. 4, as amended by Republic Act No. 8249
[1996], Sec. 4).
6. Venue-
If brought in the Regional Trial Court it shall be that which has
jurisdiction over the territorial area where the respondent or any of the
respondents resides (Sec. 7 R 66).
When commenced by the Solicitor General, the petition may be
brought in the RTC of the City of Manila, the CA or the SC (Sec. 7 R
66).
7. Contents of petition: (Id., Sec. 6).
a. Name of person or entity who, or which, claims to be entitled
thereto, if any;
b. Averment of right to office/ position/ franchise; and
c. Allegation that respondent is unlawfully in possession thereof.
All person who claim to be entitled to the public office, position or
franchise may be made parties. In the same action, the court shall
determine their respective rights to such public office, position or
franchise (Sec. 6 R 66).
8. When to file action:
General rule:
1. Action against a public officer or employee for his ouster
from office – within one (1) year from the date the petitioner is
ousted from his position (Madrigal v. Lecaroz, et al., G.R. No. 46218,
October 23, 1990, 191 SCRA 20) or when the right of the claimant to
hold office arises. (Unabia v. City Mayor of Cebu, G.R. No. 8759, May
25, 1956)
Rationale behind general rule: It is an expression of policy on the
part of the State that persons claiming a right to an office which they
were illegally dispossessed of should immediately take steps to
recover said office. If they do not do so within a period of one year,
they shall be considered as having lost their right thereto by
abandonment. Further, there must be stability in the service so
that public business may not be unduly retarded; delays, if there is a
right to position in the service, must be discouraged.( Id.)
Exception:
29
When the petitioner was constantly promised and reassured QUO WARRANTO AS A SPECIAL CIVIL ACTION
of reinstatement, laches may not be applied against him, because
he is not guilty of inaction and it was the continued assurance of the
1. Governing Rule- Rules of Court,
government, through its responsible officials, that led the petitioner to
bide his time and wait for the government to fulfill its commmitment.
(Cristobal v. Melchor, et al., G.R. No. 43203, July 29, 1977, 78 SCRA 2. Purpose- To call upon any person to show by what title he holds a
175) public office or exercises a public franchise.

2.Action for damages arising from the ouster– within one year 3. When to file- Presupposes that the respondent is actually holding
after the entry of the judgment establishing the petitioner’s right to the office. Action must be commenced within one year after cause of
office in question.(RULES OF COURT, Rule 66, Sec. 11) ouster or right of petitioner to hold office arose.

9. Judgment in quo warranto proceedings- 4. Who may file- Initiated by the government or a person entitled to
the office and who would assume the same if his action succeeds.
In case of usurpation of a public office, when the respondent is found
guilty of usurping, intruding into, or unlawfully holding or exercising a 5. Availability of action for damages-
public office, position or franchise, the judgment shall include the
following: Person adjudged entitled to the office may also bring an action
(separate) against the respondent to recover damages.
(a) The respondet shall be ousted and excluded from the
office; QUO WARRANTO AS AN ELECTORAL PROCEEDING
(b) The petitioner or relator, as the case may be, shall recover
his costs; and
(c) Such further judgment determining the respective rights in 1. Omnibus Election Code, B.P. No. 881
and to the public office, position or franchise of all the
parties to the action as justice requires (Sec. 9 R 66). 2.To impugn the election of a public officer on the ground of
ineligibility for or disqualification to hold office.
The court may render judgment for costs against either the petitioner,
relator, or respondent, or the person or persons claiming to be a 3.Within ten (10) days from proclamation of the results of the election.
corporation. The court may also apportion the costs, as justice requires
(Sec. 12, R 66).
4.May be filed by any registered voter in the constituency who may not
be entitled to the office.

5.Action or compensatory damages are recoverable in quo warranto

10. Rights of persons adjudged entitled to the office: (Id., Sec. proceedings under the Omnibus Election Code.
10)

QUO WARRANTO (RULE QUO WARRANTO (ELECTION

a. To take upon himself the execution of the office; 66)
Subject of the petition is in
b. Immediately thereafter to demand from the respondent all the relation to an appointive
books and papers appertaining to the office; and office;
The issue is the legality of
the occupancy of the office
c. To bring an action against the respondent for damages sustained by
by virtue of a legal
him by reason of the usurpration.
appointment;
Petition is brought either to
If the respondent refuses or neglects to deliver any book or paper the Supreme Court, the
pursuant to such demand, he may be punished for contempt as having Court of Appeals or the
disobeyed a lawful order of the court (Sec. 10 R 66). Regional Trial Court;
Note:
Filed within one (1) year
from the time the cause of
A disobedience to a lawful order of a court is cause for an indorect ouster, or the right of the
contempt. This contempt is punished after the charge in writing has petitioner to hold the office
been filed, and an opportunity given to the respondent to be heard or position arose;
(Sec. 3[b] R 71). Petitioner is the person
entitled to the office;
The court has to declare who
the person entitled to the
office is if he is the
11. DISTINCTIONS
petitioner.
a. Quo warranto as a special civil action under this Rule, vs.
quo warranto to contest the election of a public officer under
the Omnibus Election Code:
CODE)
Subject of the petition is in
relation to an elective office;
Grounds relied upon are: (a)
ineligibility to the position; or (b)
disloyalty to the Republic.
May be instituted with the
COMELEC by any voter contesting
the election of any member of
regional, provincial or city officer;
or to the MeTC, MTC or MCTC if
against any barangay official;
Filed within ten (10) days after the
proclamation of the results of the
election;
Petitioner may be any voter even
if he is not entitled to the office;
When the tribunal declares the
candidate-elect as ineligible, he
will be unseated but the person
occupying the second place will
not be declared as the one duly
elected because the law shall
consider only the person who,
having duly filed his certificate of
candidacy, received a plurality of

30
 votes.
 HRET has jurisdiction involving member of Congress
b. Quo warranto as distinguished from an election protest (as
a kind of election contest) under the Omnibus Election Code: (The
distinctions are important because some individuals resort to quo
warranto petition even if the same is actually an election protest. Thus,
the judge would be able to determine whether the petition is a quo
warranto or an election protest and would know how to dispose of the
same, considering that a favorable decision in these kinds of election
contests have different effects on the status of the petitioner. For a
more exhaustive discussion of the distinctions between a quo warranto
proceeding and an election protest (as election contests), see PHILJA
Guide to Election Cases for First-Level Trial Courts and Courts of
General Jurisdiction)
QUO WARRANTO
1. Who may file- Any registered voter in the constituency. (Omnibus
Election Code, Batas Pambansa Blg. 881 [1985], Sec. 253)
2. When to file Within 10 days from proclamation of the results of the
election.(Id.)
3. As to grounds- Occupant is disqualified by reason of ineligibility or
disloyalty (Fortuno v. Palma, et al., G.R. No. 70203, December 18,
1987, 156 SCRA 691).
When somebody is proclaimed and you would like to file an action for
quo warranto, what will be your grounds against a proclaimed or
elected candidate? Ineligibility for the position, or disloyalty to the
government. But the most common is ineligibility. For example, you
are proclaimed elected yun pala di ka Filipino citizen. Just like in the
case of Gov. Frivaldo because it turned out that he is not a Filipino
citizen. So he is ousted, quo warranto yan eh, he is not qualified pala
to run. That is the ground for quo warranto.
4. As to effect on status of petitioner-If the quo warranto proceeding
succeeds, the Petitioner will not assume the office. (Luison v. Garcia,
103 Phil. 453 [1958])
In quo warranto, if for example, the elected candidate turned out to be
ineligible, you will be declared as ousted or disqualified. Who will take
the place? The second placer? No, the second placer doesn’t take the
place of the ineligible winner because the second placer was not
elected by the people. Sino ang mag- takeover…yung nag-file? No…di
ka man din elected. So, sino? Yung Vice-Mayor will now become the
Mayor.
ELECTION PROTEST
1. Who may file- Any candidate who:
a. Has filed a certificate of candidacy and has been voted upon for the
same ofice; and
b. has not himself caused or contributed to the irregularities or frauds
of which he complains.
2.Period to file- Within 10 days from proclamation of the results of the
election.(Batas Pambansa Blg. 881 [1985], Sec. 250)
3.Ground: Occupant is disqualified by reason of irregularities in the
conduct of election.(Id.)
The dispute refers to the counting of votes, conduct of
election, misappreciation of ballots, vote buying, terrorism.
You are questioning the manner or irregularities in the conduct of the
election. In quo warranto, you are not questioning the conduct of the
election but you are not qualified to run in the first place. And both
election protest and quo warranto must be filed within 10 days from
the date of the promulgation. (Gregorio vs. De Jesus, 65 Phil. 332)
4.Effect- Successful protestant will assume office if he has the plurality
of votes.
On the other hand, in election protest, the person who filed the protest
is the protestant and the one who was elected is the protestee. So, if
the protestant wins in the protest, the protestee is ousted and the
protestant takes over. (Luison vs. Garcia, 55 O.G. 10252)
c. Distinctions between quo warranto actions for elective and
for appointive officers:
QUO WARRANTO FOR ELECTIVE OFFICERS
1. Issue involved- Eligibility of the respondent.
2. Effect -The occupant who was declared ineligible or disloyal will be
unseated but the petitioner will not be declared the rightful occupant
of he office.
If the candidate-elect is found to be ineligible the court cannot place
the candidate occupying the second place in the office because the
elective offices are deternined by prerogative votes.
QUO WARRANTO FOR APPOINTIVE OFFICERS
1.Validity of the appointment.
2.The court will oust the person illegally appointed and will order the
seating of the person who was legally appointed and entitled to the
office. (Gaerlan, Jr. v. Catubig, G.R. No. 23964, June 1, 1966, 17 SCRA
376)
On the other hand, when it comes to quo warranto as to an appointive
office, the court can determine who was legally appointed and can
declare who is entitled to occupy the office. The person who filed
could be and he will be declared as the one rightfully entitled to
occupy the office.
3. Where filed?
Generally, courts in case of appointive office, or Civil Service
Commission. Kung elective, well, it could be in the proper electoral
tribunal or COMELEC or RTC. When it comes to municipal officials -
RTC. That is the proper court.
4.When filed?
In appointive - one (1) year. In elective – ten (10) days from the
date of proclamation
31
12. JURISPRUDENCE
1. A controversy where the petitioner is seeking to be seated as the
second nominee of a party list organization is neither an election
protest nor a quo warranto proceeding (Lokin, Jr. v COMELEC, 621
SCRA 385, 399, June 22, 2010).
2. Whenever before judgment, it is conclusively proven that the
plaintiff has no right to maintain the action since he has not the
essential conditions required by law in order to bring and maintain
such action, his complaint should be dismissed and it becomes
unnecessary to pass upon the right of the defendant who has a perfect
right to the undisturbed possession of his office, unless action is
brought by a person having a right to maintain the same under the
law. (Castro v. Del Rosario, et al., G.R. No. 17915, January 31, 1967,
19 SCRA 196, citing Acosta v. Flor, 5 Phil. 18 [1905])
3. Effect of pendency of administrative action. The pendency of
administrative remedies does not operate to suspend the running of
the one-year period in a quo warranto proceeding (Palma-Fernandez v.
De La Paz, et al., G.R. No. 78946, April 15, 1988, 160 SCRA 751)
because, while it may be desirable that administrative remedies be first
resorted to, no one is compelled or bound to do so for these remedies
are neither a pre-requisite to, nor a bar, to the institution of quo
warranto proceedings and public interest requires that the right of
public office should be determined as speedily as practicable (Galano
v. Roxas, G.R. No. 31241, September 12, 1975, 67 SCRA 8).
EXPROPRIATION (RULE 67)
1. DEFINITION
Expropriation is the taking of a privately-owned property by the
government for public use under its power of eminent domain. (Black’s
Law Dictionary (6th ed., 1990).
The right of eminent domain is usually understood to be the ultimate
right of the sovereign power to appropriate, not only the public but
also the private property of all citizens within the territorial
sovereignty, for public purposes. (Bernas, The 1987 Constitution of the
Philippines: A Commentary, p. 347 (1996), quoting Justice Story in
Charles River Bridge v. Warren Bridge, 11 Pet. 420, 641 (U.S.) [1837]).
This is one of th inherent powers of the state with the other two being
police power and power of taxation. Being inherent they need not be
conferred by law or the Constitution, and any provision in the
Constitution making reference to these powers are not to be construed
as conferment of such power but a recognition of such powers and as
providing limitations thereto.
Other constitutional provisions on eminent domain describe the
uses to which it may be put into. Sec. 18 of Art. XII, for example, on
National Economy and Patrimony, recognizes the authority of the state
to transfer to public ownership and operation, privately-owned
enterprises and utilities upon payment of just compensation, in the
interest of national welfare or defense. Sec. 22 Art. XVIII (Transitory
Provisions) allow the state to expropriate idle or abandoned
agricultural lands for distribution to the beneficiaries of the agrarian
reform program.
When exercised, then, by the state thru Congress, the scope
of the power of eminent domain is plenary and as broad as the
police power. Such power, however, may be delegated to local
political subdivisions and public utilities.
Q: What are the limitations in the exercise of eminent
domain?
A: The following are the limitations:
1. Exercised only by the State or its entities
authorized by law.
2. Just compensation must be paid to the property
owner.
3. In the exercise of the power, due process of law
must be observed.
4.Only as much property will be taken as necessary
for the legitimate purpose of expropriation.
2. JURISDICTION
The subject of an expropriation suit is not the property to be taken but
the act of taking and, therefore, is incapable of pecuniary
estimation. Accordingly, it falls within the jurisdiction of Regional
Trial Courts, regardless of the value of the subject property.(Bardillon
v. Bgy. Masili of Calamba, Laguna, G.R. No. 146886, April 30, 2003,
402 SCRA 440; Batas Pambansa Blg. 129 [1980], Sec. 19)
3. REQUISITES/Limitations
3.1. For exercise of right:
a. Due process of law – compliance with the rules set down (Rule
67); Because the private owner is deprived of property against his will,
the mandatory requirement of due process must be strictly followed,
such that the state must show, at the minimum, a genuine
need, an exacting public purpose to take private property, the
purpose to be specifically alleged or least reasonably
deducible from the complaint.
b. Genuine necessity of a public character which must precede
or accompany, and not follow, the taking of the land; (Masikip
v. The City of Pasig, et al., G.R. No. 136349, January 23, 2006, 479
SCRA 391; The City of Manila v. Chinese Community of Manila, 40 Phil.
349 [1919])
c. Payment of just compensation;
“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. The compensation, to be just,
must be fair not only to the owner but also to the taker. Even as
undervaluation would deprive the owner of his property without due
process, so too would its overvaluation unduly favor him to the
prejudice of the public.” (NPC v. de la Cruz, 514 SCRA 56, 73).
The word “just” is used to intensify the meaning of the word
“compensation” and to convey thereby the idea that the equivalent to
be rendered for the property to be taken shall be real, substantial, full
and ample. The constitutional limitation of “just compensation” is
considered to be a sum equivalent to the market value of the
property, broadly defined as the price fixed by the seller in
open market in the usual and ordinary course of legal action
and competition; or the fair value of the property; as between
one who receives and one who desires to sell it, fixed at the
32
time of the actual taking by the government (Republic v. Rural
Bank of Kabacan, Inc., 664 SCRA 233, 244, January 25, 2012).
If the compensation is not paid when the property is taken, but is
postponed to alater date, the interest awarded is actually part of just
compensation which takes into account such delay (Benguet
Consolidated v. Republic, 143 SCRA 466, 478-479, citing Republic v.
San Juan, 92 SCRA 26). Apart from the requirement that
compensation for expropriation must be fair and reasonable,
compensation, to be “just”, must also be paid without delay if
the property is immediately taken as the property owner
suffers the immediate deprivation of both his land and its
fruits or income (Apo Fruits Corporation v. Land Bank, 632 SCRA
727, 743, October 12, 2010).
It is settled that in determining how much just compensation should
be given to the landowner, the nature and character of the land
should be principally considered (Tinio, Jr. v. NPC, 640 SCRA 287,
293, Jan. 24, 2011).
There is no legal basis to separate the value of the excavated soil from
that of the expropriated properties, contrary to what the trial court did.
In the context of expropriation proceedings, the soil has no value
separate from that of the expropriated land. Just compensation
ordinarily refers to the value of the land to compensate for what the
owner actually loses. Such value could only be that which prevailed at
the time of the taking (Republic v. Rural Bank of Kabacan, Inc., 664
SCRA 233, 244, January 25, 2012).
e. taking must be for public use. (J.M. Tuazon and Co., Inc.
v. Land Tenure Administration, G.R. No. 21064, June 30,
1970, 33 SCRA 882). Public use, as an eminent domain
concept, has now acquired an expansive meaning to
include any use that is of “usefulness, utility, or
advantage or what is productive of general benefit
[of the public].” If the genuine public necessity, the
first condition allowing, at the first instance, the
expopriation of a private land ceases or disappears,
then there is no more cogent point for the
government’s retention of the expropriated land. The
same legal situation should hold if the government devotes
the property to another public use very much different from
the original or deviates from the declared purpose to benefit
another private person. It has been said that the direct use
by the state of its power to oblige landowners to renounce
their productive possession to another citizen who will use it
predominantly for that citizen’s own private gain, is offensive
to our laws.” (Vda. De Ouano v. Republic, 642 SCRA 384,
408-409, February 9, 2011).
3.2. Contents of complaint:
a. state with certainty the right of the plaintiff to expropriate
and purpose of expropriation;
b. Description of the real or personal property sought to be
expropriated;
Q: What kind of property to be expropriated?
A: Any kind of property, real, personal, tangible, intangible
except, money. Not money because if the government will expropriate
money, the government will also pay you with money.
c. All persons owning or claiming to own or occupying any
part or interest therein must be named as defendants,
showing, as far as practicable, the separate interest of each
defendant; and
Q: Who should be joined as defendants?
A: All persons owning or claiming to own or interest on the
property sought to condemned showing the separate interest of each
defendant. So, if the property is under co-ownership. All the co-owners
will be deemed as defendants. And to be safe, include all who have an
interest in the property.
The defendants in an expropriation case are not limited to the
owners of the property condemned. They include all other persons
owning, occupying or claiming to own the property. When property is
taken by eminent domain, the owner xxx is not necessarily the only
person who is entitled to compensation. In the American jurisdiction,
the term ‘owner,’ when employed in statutes relating to eminent
domain to designate the persons who are to be made parties to the
proceeding, refers, as is the rule in respect to those entitled to
compensation, to all those who have lawful interest in the property to
be condemned , including a mortgagee, lessee and vendee in
possession under an executory contract. Every person having and
estate or interest at law or in equity in the land taken is entitled to a
share of the award. If a person claiming an interest in the land
sought to be condemned is not made a party, he is given the
right to intervene and law claim to the compensation (Republic
v. Mangotara, 624 SCRA 360, 423, July 7, 2010).
d. If the title of the property to be expropriated is in the name
of the Republic of the Philippines, although occupied by
private individuals, or if the title is obscure or doubtful,
averment to that effect shall be made in the complaint. (RULES
OF COURT, Rule 67, Sec. 1)
4. SPECIFIC FEATURES
4.1. The complaint must be verified. (Id.)
4.2. Two (2) Stages of Expropriation Proceedings:
a. Determination of the authority of the plaintiff to exercise
the power of eminent domain and the propriety of its exercise in
the context of the facts. This stage is terminated by either an
order of dismissal of the action or order of the condemnation
declaring that expropriation is proper and legal. These Orders
are final and, therefore, appealable. (Municipality of Biñan v. Garcia, et
al., G.R. No. 69260, December 22, 1989, 180 SCRA 576)
b. Determination of just compensation. This is done with the
assistance of not more than three (3) commissioners. The Order fixing
just compensation is also final and appealable. (National Housing
Authority v. Heirs of Guivelondo, G.R. No. 154411, 19 June 2003, 404
SCRA 389)
*Just compensation is to be determined as of the date of the
taking of the property or the filing of the complaint, whichever
comes first. (City of Iloilo v. Hon. Lolita Contreras-Besana, G.R. No.
168967, February 12, 2010)
The valuation of property in eminent domain is essentially a judicial
function, which is vested in the RTC acting as Special Agrarian Court.
The same cannot be lodged with administrative agencies and may not
be usurped by any other branch or official of the government. The
trial court, acting as a special agrarian court, is authorized to appoint
33
commissioners to assist in the determination of just compensation
(Apo Fruits Corporation, et al. v. Court of Appeals, G.R. No. 164195,
February 6, 2007, 514 SCRA 537).
Termination of expropriation proceedings-
In Abad v. Fil-Homes Realty and Development Corporation, 636 SCRA
247, 256, Nov. 24, 2010 the Court ruled that it is only upon the
completion of the two stages that exproriation is said to be
terminated or completed. The process is not complete until
the payment of just compensation.
EPZA VS. DULAY (1987)
149 SCRA 305
FACTS: During the Martial Law, President Marcos
issued a lot of Presidential Decrees regarding valuation
of property. And in these decrees, he resorted to
shortcuts on how to determine the market value ng
property mo.
Actually, the market value in a tax declaration has
2 columns. In the first column is the value as declared
by the owner. And in the right column is as determined
by the assessor.
Now, Marcos issued these decrees among which
were PD’s 79, 464, 794 and 1533. It said: In case of
expropriation, in determining the market value of the
property, the market value will be the market value as
declared by the owner himself of as found by the
assessor, whichever is lower. Its either the finding of
the government through the assessor or the owner's
declaration, meaning, if you under declare your
property you are in estoppel, or if it is the assessor's
which has the lower findings, then they will tell the
owner: "why did you not appeal?" You file your appeal
in the Board of Assessors. You are also under estoppel.
So either way, yari ka!
HELD: All these decrees are unconstitutional
because the determination of just compensation is a
judicial function. You cannot deprive the court of its
power to determine the just compensation. It is a
judicial function which cannot be encroached upon by
the legislative or executive branch of the government.
That’s why this is also a leading case in political law.
“The method of ascertaining just compensation
under the aforecited decrees constitutes impermissible
encroachment on judicial prerogatives. It tends to
render this Court inutile in a matter which under the
Constitution is reserved to it for final determination. the
court has only to choose between the valuation of the
owner and that of the assessor, and its choice is always
limited to the lower of the two. The court cannot
exercise its discretion or independence in determining
what is just or fair. Even a grade school pupil could
substitute for the judge insofar as the determination of
constitutional just compensation is concerned…”
“The valuation in the decree may only serve as a
guiding principle or one of the factors in determining
just compensation but it may not substitute the court's
own judgment as to what amount should be awarded
and how to arrive at such amount.”
[And what do you mean by just compensation?]
“Just compensation means the value of the property at
the time of the taking. It means a fair and full
equivalent for the loss sustained. All the facts as to the
condition of the property and its surroundings, its
improvements and capabilities, should be considered.”
“Various factors can come into play in the
valuation of specific properties singled out for
expropriation. The values given by provincial assessors
are usually uniform for very wide areas covering several
barrios or even an entire town…” (Dean I: I think so.)
“To say that the owners are estopped to question
the valuations made by assessors since they had the
opportunity to protest is illusory. The overwhelming
mass of land owners accept unquestioningly what is
found in the tax declarations prepared by local
assessors or municipal clerks for them. They do not
even look at, much less analyze, the statements. The
idea of expropriation simply never occurs until a
demand is made or a case filed by an agency
authorized to do so.”
“It is violative of due process to deny to the owner
the opportunity to prove that the valuation in the tax
documents is unfair or wrong. And it is repulsive to
basic concepts of justice and fairness to allow the
haphazard work of a minor bureaucrat or clerk to
absolutely prevail over the judgment of a court…”
“The determination of "just compensation" in
eminent domain cases is a judicial function. The
executive department or the legislature may make the
initial determinations but when a party claims a
violation of the guarantee in the Bill of Rights that
private property may not be taken for public use
without just compensation, no statute, decree, or
executive order can mandate that its own
determination shall prevail over the court's findings.
Much less can the courts be precluded from looking into
the "just-ness" of the decreed compensation.”
4.3. Entry of possession. (RULES OF COURT, Rule 67, Sec. 2)
The plaintiff shall have the right to take or enter upon the possession
of the real property involved upon:
a. Filing of complaint for expropriation;
b. Service of notice to the defendant; and
c. Deposit 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. Deposits shall be in money (legal tender) or, if the court
authorizes it, certificate of deposit of a government bank
payable on demand to the authorized government depositary.
*If personal property is involved, its value shall be
provisionally ascertained and the amount to be deposited
shall be promptly fixed by the court.
.*After deposit, the court shall order the sheriff or other proper officer
to place the plaintiff in possession of the property and promptly submit
a report thereof to the court with service of copies to the parties.
34
Exercise by local government units/requisites:
Sec. 19 of RA 7160 or the Local Government provides:
“A local government unit may, through its chief executive acting
upon an ordinance, exercise the power of eminent domain for
public use, or purpose, or welfare for the benefit of the poor
and the landless, upon payment of just compensation, pursuant
to the provisions of the Constitution and pertinent laws: Provided,
however, That the power of eminent domain may not be exercised
unless a valid and definite offer has been previously made to
the owner, and such offer was not accepted: Provided, further,
That the local government unit may immediately take possession
of the property upon the filing of the expropriation
proceedings and upon making a deposit with the proper court
of at least fifteen percent (15%) of the fair market value of
the property based on the current tax declaration of the
property to be expropriated; Provided, finally, That the amount to
be paid for the expropriated property shall be determined by the
proper court, based on the fair market value at the time of the
taking of the property.”
It lays down the follwing requisites:
(a) an ordinance is enacted by a local legislative council to
exercise the power of eminent domain, or pursue
expropriation proceedings over a particular private property
through its chief executive;
An ordinance, not a resolution is required. “xxx and the
reason for this is settled because a municipal ordinance is
different from a resolution. An ordinance is a law, but a
resolution is merely a declaration of the sentiment or
opinion of a lawmaking body on a specific matter. An
ordinance possesses a general and permanent character,
but a resolution is temporary in nature. Additionally, the
two are enacted differently – a third reading is necessary
for an ordinance, but not for a resolution, unless decided
otherwise by a majority of all the Sanggunian members”
(Beluso v Municipality of Panay, Capiz, 498 SCRA 113,
124).
(b) the power of eminent domain is exercised for public use,
purpose or welfare, or for the benefit of the poor and the
landless;
(c) there is payment of just compensation, as required under
the Constitution, and other pertinent laws; and
(d) a valid and definite offer has been previously made to the
owner of the property sought to be expropriated, but said
offer was not accepted.
Distinction between expropriation for national
infrastructure project and expropriation by local
government unit-
Note that under both Rule 67 and RA 8974, the law
governing expropriations of private property for national
government infrastructure projects, the Government
commences expropriation proceedings through the filing of
a complaint.
Unlike in the case of LGUs which necessitate an authorizing
ordinance before the expropriation may be accomplished,
there is no need, under Rule 67 or RA 8974, for legslative
authorization before the Government may proceed with a
particular exercise of eminent domain.
Expropriation procedures under Republic Act No. 8974 (An Act
to Facilitate the Acquisition of Right of Way, Site or Location
for National Government Infrastructure Projects and for Other
Purposes) and Rule 67 of the Rules of Court speak of different
procedures, with the former specifically governing
expropriation proceedings for national government
infrastructure projects.(Republic of the Philippines v. Holy Trinity
Realty Development Corp., G.R. No. 172410, April 14, 2008, 551 SCRA
303)
Expropriation under Rule 67 vs. Expropriation under RA 8974.
a. As to nature of government infrastructure projects
involved.
Republic Act No. 8974 applies in instances when the national
government expropriates property “for national government
infrastructure projects.” 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
(Republic of the Philippines, et al. v. Gingoyon, et al., G.R. No. 166429,
December 19, 2005, 478 SCRA 474).
b. As to whom payment should be made for the writ of
possession to issue.
The most crucial difference between Rule 67 and Republic Act
No. 8974 concerns the particular essential step the
Government has to undertake to be entitled to a writ of
possession. To be entitled to a writ of possession, Rule 67 merely
requires the Government to deposit with an authorized government
depositary the assessed value of the property for expropriation for it to
be entitled to a writ of possession. On the other hand, Rep. Act No.
8974 requires that the Government make a direct payment to
the property owner before the writ may issue.
c. As to basis for determination of amount of payment.
Rule 67 prescribes that the initial deposit be equivalent to the
assessed value of the property for purposes of taxation, unlike
Rep. Act No. 8974 which provides, as the relevant standard for
initial compensation equivalent ot the sum of one hundred
percent (100%) of the the market value of the property as
stated in the tax declaration or the current relevant zonal
valuation of the Bureau of Internal Revenue (BIR), whichever
is higher, and the value of the improvements and/or
structures using the replacement cost method, (Republic v. Holy
Trinity Realty Development Corporation, supra note 206) or if no
such valuation is available and in cases of utmost urgency, the
proffered value of the property to be seized.(Republic v.
Gingoyon, supra note 207)
It is the plain intent of Rep. Act No. 8974 to supersede the
system of deposit under Rule 67 with the scheme of
“immediate payment” in cases involving national government
infrastructure projects. (Id.)
Applicability of Rule 67 under RA No. 8974-
At the same time, Section 14 of the Implementing Rules recognizes
the continued applicability of Rule 67 on procedural aspects when it
provides “all matters regarding defenses and objections to the
complaint, issues on uncertain ownership and conflicting
claims, effects of appeal on the rights of the parties, and such
other incidents affecting the complaint shall be resolved under
35
the provisions on expropriation of Rule 67 of the Rules of for the benefit of the person adjudged in the same proceeding
Court.” (Id) to be entitled thereto. But the judgment shall require the
payment of the sum(s) awarded to either the defendant or the
court before the plaintiff can enter upon the property, or
Under Rule 67, the only requirement for immediate possession
retain it for the public use or purpose if entry has already been
is notice to the owner of the property and deposit of the
made. (Id., Sec. 9)
amount equivalent to the assessed value of the property
(National Power Corporation v. Jocson, et al., GR Nos. 94193-
99, February 25, 1992, 206 SCRA 520). The issuance of the Expropriation not limited to acquisition of title-
writ of possession becomes a ministerial duty of the court if
the preliminary deposit has already been made by the
In NPC v. Santa Loro Vda. De Capin, 569 SCRA 648, 666-667, the
expropriator. (Biglang-Awa v. Bacalla, G.R. Nos. 139927 and 139936,
Court ruled:
November 22, 2000, 345 SCRA 562)

“Expropriation is not limited to the acquisition of real property with a

How the local government unit may immediately take
corresponding transfer of title or possession. The right-of-way
possession of the property-
easement resulting in a restriction or limitation on property
rights over the land traversed by transmission lines also falls
Pursuant to Sec. 19 of RA 7160, the LGU may immediately take within the ambit of the term “expropriation.”
possession of the property when the following statutory requirements
are met:
Xxxx

(a) expropriation proceedings are filed;

“After petitoner’s transmission lines were fully constructed on portions
(b) the LGU makes a deposit with the proper court of at
of respondent’s lots, petitioner imposed restrictions thereon
least 15% of the fair market value of the property
such as the prohibition against planting or building anything higher
based on the current tax declaration of the property
than three meters below the area traversed by said lines. In addition,
to be expropriated. Note: The amount to be paid for
respondent-spouses Quimco, holders of a Small Scale Quarry Permit,
the property shall be based on the fair market value
Series of 1995, were also prohibited from continuing their quarry
at the time of the taking of the property.
business near petitioner’s transmission towers because of the great
possibility that it could weaken the foundation thereof. Hence, the
Q: What is the purpose of preliminary deposit: respondent-spouses Quimco suffered substantial loss of income. It is
clear then that petitioner’s acquisition of an easement of right of way
of the lands of the respondents amounted to an expropriation of the
A: There are two (2) possible purposes:
portions of the latter’s properties and perpetually deprived the
respondents of their property rights thereon and for which they
1. If the government wins the case and the amount of are entitled to a reasonable and just compensation.xxx”
just compensation is now fixed by the court, the
deposit is parang down payment na no? So the
4.5. Answer to complaint
government will just raise the money to fill the balance.
Yung deposit, nakareserba na sa iyo yun e. In short, it
is an advance deposit for just compensation; and The defendant shall serve an answer if he has an objection to the:

2. If the government lose the case and it has already

explored your land, according to the SC: you are
entitled to claim for damages for the damage sustained
by your property because of the entry of the
government and that the money deposited is already
an advance deposit by the government to answer for
the damages. (Republic vs. Baylosis, Sept. 30, 1960)
Hearing not required before immediate
possession is granted-
A fair reading of Sec. 2 of R 67 discloses that the said
provision merely requires notice to the defendant and
the making of the required deposit. In San Diego v.
Valdellon, 80 SCRA 305, 310, NPC v. Jocson, 206 SCRA
520, 536-537, the Court declared that prior hearing is
not required before the Republic of the Philippines can
be granted immediate possession of the property. The
defenses by the owner against immediate possession
can be considered on the trial on the merits. All that is
required is notice to the owner and the deposit.
4.4. If ownership of property is uncertain.
If the ownership of the property taken is uncertain, or there are
conflicting claims to any part thereof, the court may order any sum(s)
awarded as compensation for the property to be paid to the court
1. filing of the complaint;
2. allegations in the complaint; or
3. objection or defense to the taking of his property. This
answer shall be served within the time stated in the
summons (Sec. 3 R 67)
Note:
In expropriation proceedings, the period within which to file
an answer is stated in the summons. In ordinary civil actions,
the period to file an answer is specified in Rule 11 of the Rules
of Court.
a. Where no objection to the expropriation.
Defendant may file and serve notice of appearance and a
manifestation that he has no objection or defense, specifically
designating or identifying the property in which he claims to be
interested within the time stated in the summons. Thereafter, the
defendant shall be entitled to notice of all proceedings affecting
the same.
b. Where there is objection to the expropriation.
Defendant shall serve his answer within the time stated in the
summons, specifically designating or identifying the property

36
in which he claims to have an interest, state the nature and
extent of the interest claimed, and adducing all his objections
and defenses to the taking of his property in observance of
the following rules:
i.General Rule:
All defenses or objections not alleged in the answer are
deemed waived. (this is similar to the Omnubus Motion Rule under
Sec. 8 of R15 governing ordinary civil actions which requires that a
motion attacking a pleading, order, judgment or proceeding shall
include all grounds then available, and all objections not so included
shall be deemed waived.
ii. Exception:
The court, in the interest of justice, may allow the answer to be
amended not later than 10 days from filing. (Id., Sec. 3). Leave is
required because of the tenor of the rule which provides “ xxx the
court, in the interest of justice, may permit amendments to the answer
to be made not later than ten (10) days from the filing thereof.”
Because prior leave of court is required to amend, it differs then from
the rule of amendment in ordinary civil actions which can be a matter
of right before the responding pleading (reply) is served or before the
expiration of the period to file it.
4.6. Prohibited pleadings
a. No motion to dismiss is allowed. The former Rules of Court
(1940 and 1964), which allowed a defendant in an expropriation case
to file a motion to dismiss, in lieu of an answer, have been amended
by the 1997 Rules of Civil Procedure, Section 3, Rule 67, which
expressly mandates that any objection or defense to the taking of the
property of a defendant must be set forth in an answer. (Masikip v.
City of Pasig, supra note 173; Feria, Jose and Noche, Maria Concepcion
Civil Procedure Annotated, Volume 2 (2001): Central Law Book
Publishing Co., Inc., p. 536)
b. No counterclaim, cross-claim or third-party complaint is
allowed, whether as alleged in the answer or in any subsequent
pleading. (RULES OF COURT, Rule 67, Sec. 3)
4.7. Order for expropriation
a. When issued.
It is issued by the court in which the complaint for expropriation is
filed when:
i. objections or defenses of the defendant have been overruled, or
ii. the defendant raised no such defense or objection, or
iii. no party appears to defend.
b. Contents of order.
It declares that the plaintiff has a lawful right to take the property
sought to be expropriated for the public use or purpose described in
the complaint, upon payment of just compensation to be determined
as of the date of the taking of the property or the filing of the
complaint, whichever is earlier.
No dismissal by plaintiff upon rendition of the order
of exproriation-
After the rendition of such an order, the plaintiff shall not be
permitted to dismiss or discontinue the proceeding except on
such terms as the court deems just and equitable. (Sec. 4 R
67)
4.8. Compensation
a. Definition of terms
i. 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, and 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. (Manila Railroad Co. v. Velasquez, 32 Phil. 286
[1915])
ii. 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 therefore.” (Bank
of Philippine Islands v. Court of Appeals, et al., G.R. No. 160890,
November 10, 2004, 441 SCRA 637)
b. At the trial of the issue of compensation, whether or not the
defendant has previously appeared or answered, he may present
evidence as to the amount of the compensation to be paid for his
property, and he may share in the distribution of the award (RULES OF
COURT, Rule 67, Sec. 3). In other words there is no default re
determination of compensation even if defendant does not file
an answer.
c. Appeal of a final order sustaining right to expropriate shall
not prevent the court from determining the just compensation
to be paid.(Id., Sec. 4)
d. “the right of the plaintiff to enter upon the property of the
defendant and appropriate the same for public use or purpose shall
not be delayed by an appeal from the judgment (Sec. 11).
4.9. Appointment of commissioners.
Upon rendition of the order of expropriation, the court shall appoint
not more than three (3) competent and disinterested persons as
commissioners to ascertain and report to the court the just
compensation for the property sought to be taken.
MERALCO VS. PINEDA
206 SCRA 196
FACTS: After the issuance of the order of
expropriation, the court did not anymore appoint
commissioners saying that even if there are
commissioners, the report is only recommendatory. The
court will still have the final say. So the appointment of
the commissioners can be dispensed with.
37
 ISSUE: May the trial court dispense with the
appointment of the commissioners in expropriation
proceedings?
HELD: No. The appointment of the commissioners
cannot be dispensed with. This is a mandatory
procedure. This is a substantive right of a party. While
it is true that the court has the final say, the court can
do that only if there is a showing that the report of the
commissioners is 100% wrong. It cannot just disregard
the report. The aid of the commissioners is a
substantial right that may not be done away
capriciously or for no reason at all.
a. Contents of order of appointment:
i. the time and place of the first session of the hearing to be held by
the commissioners; and
ii. the time within which the commissioners’ report shall be submitted
to the court.
b. Objections to the appointment.
Copies of the order shall be served on the parties. Objections to the
appointment of any of the commissioners shall be filed with the court
within ten (10) days from service, and shall be resolved within thirty
(30) days after all the commissioners shall have received copies of the
objections. (Id., Sec. 5)
c. Powers and duties of commissioners:
i. to take and subscribe an oath that they will faithfully perform their
duties as commissioners, before entering upon the performance of
their duties;
ii. to receive evidence presented by the parties before the
commissioners and administer oaths or hearings before them;
iii. to attend, view and examine, after due notice to the parties, the
property sought to be expropriated and its surroundings and may
measure the same, except when the parties agree otherwise. In such a
case, the commissioners cannot view and examine the property;
iv. to assess the consequential damages to the property taken and
deduct from such consequential damages the consequential benefits
derived by the owner from the public use or purpose of the property
taken, the operation of its franchise by the corporation or person
taking the property. In no case shall the consequential benefits
assessed exceed the consequential damages assessed, or the owner
be deprived of the actual value of his property so taken; (Id., Sec. 6)
and
v. to make a full and accurate report to the court of all their
proceedings. (Id., Sec. 7)
d. Commissioners’ report.
Except as otherwise expressly ordered by the court, such report shall
be filed within sixty (60) days from the date the commissioners were
notified of their appointment, which time may be extended in the
discretion of the court. Upon the filing of such report, the clerk of the
court shall serve copies thereof on all interested parties, with notice
that they are allowed ten (10) days within which to file objections to
the findings of the report, if they so desire.(Id.)
f. Action upon commissioners’ report.
After the 10-day period for objecting to the commissioners’ report, the
court, after hearing, may:
i. Accept the report and render judgment in accordance therewith;
ii. Re-commit the report to the commissioners for further report of
facts;
iii. Set aside the report and appoint new commissioners;
iv. Accept the report in part and reject it in part; and
v. Make such order or render judgment as shall secure to the plaintiff
the property essential to the exercise of his right of expropriation and
to the defendant just compensation for the property so taken. (Id.,
Sec. 8)
4.10. Judgment.
The judgment entered in expropriation proceedings shall state
definitely, by an adequate description, the particular property or
interest therein expropriated, and the nature of the public use or
purpose for which it is expropriated. (Id., Sec. 13)
a. Rights of plaintiff after judgment and payment.
Upon payment by the plaintiff to the defendant of the compensation
fixed by the judgment, with legal interest thereon from the taking of
the possession of the property, or after tender to him of the amount so
fixed and payment of the costs, the plaintiff shall have the right to
enter upon the property expropriated and to appropriate it for
the public use or purpose defined in the judgment, or to retain
it should he have taken immediate possession thereof under
the provisions of section 2 of Rule 67.
If the defendant and his counsel absent themselves from the court, or
decline to receive the amount tendered, the same shall be ordered to
be deposited in court and such deposit shall have the same effect as
actual payment thereof to the defendant or the person ultimately
adjudged entitled thereto.(Id., Sec. 10)
b. Recording and its effect.
When real estate is expropriated, a certified copy of such judgment
shall be recorded in the registry of deeds of the place in which the
property is situated, and its effect shall be to vest in the plaintiff the
title to the real estate so described for such public use or purpose.(Id.,
Sec. 13)
c. Entry not delayed by appeal.
The right of the plaintiff to enter upon the property of the defendant
and appropriate the same for public use or purpose shall not be
delayed by an appeal from the judgment.(Id., Sec. 11)
38
 d. Effect of reversal- Restoration of possession to defendant
and damages;
If the appellate court determines that plaintiff has no right of
expropriation, judgment shall be rendered ordering the Regional Trial
Court to forthwith enforce the restoration to the defendant of
the possession of the property, and to determine the damages
which the defendant sustained and may recover by reason of
the possession taken by the plaintiff.(Id.)
4.11. Appeals.
The special civil action of expropriation is one wherein multiple appeals
are permitted. An appeal may be taken from the order authorizing
expropriation and, thereafter, another appeal lies against the judgment
on the just compensation to be paid. The significance of this fact is
that, just as in special proceedings, the reglementary period to
appeal shall be 30 days and a record on appeal shall be
required for each of the permissible appeals(Remedial Law
Compendium, Volume I, Florenz D. Regalado)
4.12. Receipt of full compensation by the defendant does not
bar his right to appeal.(The City of Manila v. Batlle, et al., 25 Phil.
566 [1913])
The court reasoned thus in support of its holding:
4.12.1. The taking of the money tendered by the plaintiff being the
exact legal equivalent of the deprivation of his property, what
consideration is there for claiming that the defendant lost also his right
to appeal? While the right may not be a vested right, it is a valuable
right. While it may be waived or given away, it cannot be taken
without consent and without consideration. Can the plaintiff by doing
an act which the law requires it to do, namely, pay the value of the
property taken, secure a greater benefit than that which the same law
attaches to the act? Shall the defendant by performing an act which
the law requires or, at least, permits him to perform, be visited with
further consequences than those which the same law attaches to the
act?
4.12.2. It is apparent, then, that there was no consideration for the
alleged release by the defendant of his right to appeal. The
relationship, if any, created between the parties by the offer and
acceptance of the sum found due defendant by the Court of First
Instance was not one springing from contract; it was not the result of
an accord and satisfaction — an agreement where one of the parties
undertook to give or perform and the other party to accept, in
satisfaction of a claim, liquidated or in dispute, and arising either from
contract or from tort, something other than or different from what he
was, or considered, himself, entitled to. It was but a step in a statutory
proceeding in which the defendant received no more than he was
entitled to under that proceeding.
4.13. Power of guardian in expropriation proceedings.
In an expropriation, approval of the court is required before a guardian
or guardian ad litem of a minor or a person judicially declared to be
incompetent can act on behalf of his ward.(RULES OF COURT, Rule 67,
Sec.14)
5. JURISPRUDENCE
5.1. Property devoted to public use is not subject to expropriation.
(The City of Manila v. Chinese Community of Manila, supra note 173)
5.2. Just compensation is determined as of time of taking of property
or filing of the complaint, whichever comes first. (Republic of the
Philippines v. Vda. De Castellvi, G.R. No. 20620, August 15, 1974, 58
SCRA 336)
5.3. There is taking when:
a. the expropriator enters a private property;
b. the entry must be for more than a momentary period;
c. the entry should be under warrant or color of legal authority;
d. the property must be devoted to a public use or otherwise
informally appropriated or injuriously affected; and
e. the utilization of the property for public use must be in such a way
as to oust the owner and deprive him of all beneficial enjoyment of the
property. (Didipio Earth-Savers’ Multi-Purpose Association,
Incorporated (Desama), et al. v. Gozun, et al., G.R. No. 157882, March
30, 2006, 485 SCRA 586)
5.4. The appointment of commissioners is mandatory and cannot be
dispensed with, without violating the constitutional right to due
process and the mandated rule established by the Revised Rules of
Court (Manila Electric Company v. Pineda, et al., G.R. No. 59791,
February 13, 1992, 206 SCRA 196)
5.5. In case of conflicting claims over the property subject of
expropriation. The court has the jurisdiction to determine, in the same
expropriation proceedings, conflicting claims of ownership over the
property involved and declare the lawful owner thereof.(Republic of
the Philippines v. Court of First Instance of Pampanga, et al., G.R. No.
27006, June 30, 1970, 33 SCRA 527)
If the ownership of the property taken is uncertain, or if there are
conflicting claims to any part thereof, the court may order any sum
awarded as compensation for the property, to be paid to the court, for
the benefit of the person adjudged in the same proceeding to be
entitled thereto. But the judgment shall require the payment of the
sum or sums awarded to either the defendant or the court before the
plaintiff can enter upon the property, or retain it for the public use or
purpose if entry has already been made.(RULES OF COURT, Rule 67,
Sec. 9)
5.6. In the event the judgment of expropriation is reversed by the
appellate court and the case is remanded to the lower court with the
mandate to determine the damages caused to the landowner, such
landowner has the option of proving such damages either in the same
expropriation case or in a separate action instituted for that
purpose,(MWV v. De los Angeles, 55 Phil. 776 [1927]) as the
judgment denying the right of expropriation is not res
judicata on the issue of damages arising from such illegal
expropriation.(Republic of the Philippines v. Baylosis, 109 Phil. 580
[1960])
5.7. MUNICIPALITY OF PARAÑAQUE vs. V.M. REALTY CORP.July
20, 1998 (292 SCRA 678)
FACTS: The government filed an expropriation
case and by reason of some technicalities the case was
dismissed and the judgment became final. The
expropriation is not for public purpose.
After 20 years, the government would like to file
39
 another case because of the changed conditions. Sabi
ng defendant, “ah hindi na pwede. Wala na yan! Res
judicata!”
ISSUE: Is the principle of res judicata strictly
applicable to expropriation cases?
HELD: NO. the principle of res judicata does not
strictly apply against the State in eminent domain
because you cannot curtail an inherent power of the
State.
“…the principle of res judicata, which finds
application in generally all cases and proceedings,
cannot bar the right of the State or its agent to
expropriate private property… The scope of eminent
domain is plenary and, like police power, can reach
every form of property which the State might need for
public use… Thus, the State or its authorized agent
cannot be forever barred from exercising said right by
reason alone of previous non-compliance with any legal
requirement.”
NEW SYSTEM OF IMMEDIATE PAYMENT OF INITIAL JUST
COMPENSATION
For the acquisition of right-of-way, site or location for any national
government infrastructure project through expropriation, upon the
filing of the filing of the complaint, and after due notice to the
defendant, the implementing agency shall immediately pay the owner
of the property the amount equivalent to the sum of:
1) 100 PERCENT of the value of the property based on the
current relevant zonal valuation of the BIR; and
2) The value of the improvements and/or structures as
determined under Sec. 7 of RA 8974 (Sec. 4, RA 8974).
 LGU – 15% market value
EFFECT OF RECORDING OF JUDGMENT
The judgment entered in expropriation proceedings shall state
definitely, by an adequate description, the particular property or
interest therein expropriated, and the nature of the public use or
purpose for which it is expropriated.
When real estate is expropriated, a certified copy of such judgment
shall be recorded in the registry of deeds of the place in which the
property is situated, and its effect shall be to vest in the plaintiff the
title to the real estate so described for such public use or purpose.
JUDICIAL FORECLOSURE OF REAL ESTATE MORTGAGE
(RULE 68)
There can be a loan without a security or mortgage; but there
can be no mortgage without a loan.
1. DEFINITION of real estate mortgage-
FORECLOSURE
 A real estate mortgage is-
an accessory contract; executed by a debtor in favor of a
creditor; as security for the principal obligation.
 The principal obligation is a simple loan or mutuum described
in Art. 1953, Civil Code.
 To be a real estate mortgage, the contract must be constituted
on either immovables (real property) or inalienable real
rights.
 If constituted on movables, the contract is a chattel mortgage
(Art. 2124, CC).
 A real estate mortgage creates a real right which follows the
property whoever the owner may be after the
constitution of the mortgage. Hence, the new owner, who
knows of the mortgage (if registered), is bound by the
mortgage even if he is not a party to the contract of mortgage
(see Art. 2126 CC)
 Accomodation mortgagor-
 The mortgagor need not be the debtor and he is referred to as an
accomodation mortgagor (Art. 2085 CC). An accomodation
mortgagor, as such, is not in anyway liable for the payment
of the loan or principal obligation of the debtor/borrower.
His liability extends only up to the loan value of the
mortgaged property and not to the entire loan itself (Belo
v. PNB, 353 SCRA 359, 377).
 There can be several mortgages over the same property since
there is neither a law nor a rule prohibiting the existence of more
than one encumbrance over a property. These encumbrances
have no effect on the ownership of the property and are treated
merely as liens, the first one being normally treated as more
superior over subsequent encumbrances. However, a junior
encumbrancer is not precluded by any rule from initiating
foreclosure proceedings ahead of a prior encumbrancer in case
the debt in his favor matures earlier.
 If the second mortgagee, for instance, files a complaint for
foreclosure, there is no rule prohibiting the former from
impleading the first mortgagee (De la Riva v. Reynoso, 61 Phil.
734, 736). If the first mortgagee is not impleaded, he may
intervene in the action if he desires, and if the obligation in his
favor is already due and payable. This is because he has a legal
interest in the subject matter of the litigation, a requisite for
intervention under R 19 of the Rules of Court.
 The failure to register the real estate mortgage contract does not
affect its validity between the parties. The registration of the
mortgage is, however, necessary for the purpose of
binding third parties.
DRAGNET CLAUSE OR BLANKET mortgage clause
A mortgage contract may have a provision in which the mortgage is a
security for past, present and future indebtedness. This clause known
as a DRAGNET CLAUSE OR BLANKET mortgage clause has its
origins in American jurisprudence.
The Supreme Court ruled that mortgages given to secure future
advancements are valid and legal contracts (Prudential Bank vs. Alviar,
464 SCRA 353).
Such clause operates as a convenience and accomodation to the
borrowers as it makes available additional funds without their having
to execute additional security documents, thereby saving time, travel,
loan closing costs, costs of extra legal services, recording fees, etc.
While a real estate mortgage may exceptionally secure future loans or
advancements, these future debts must be sufficiently described in the
mortgage contract. An obligation is not secured by a mortgage unless
it comes fairly within the terms of the mortgage contract (Traders
Royal Bank v. Castanares, 636 SCRA 519, 528-529, Dec. 6, 201
40
Foreclosure is the termination of all rights of the mortgagor or
his grantee in the property covered by the mortgage. (Black’s
Law Dictionary (6th ed., 1990).
It presupposes that the debtor failed to pay his debt despite
demand. The default of the debtor must first be established.
Such default occurs when payment is not made after a valid demand,
unless the contract between the parties carries with it a stipulation
that demand is not necessary for default to arise. (Read General
Milling Corporation v. Ramos, 654 SCRA 256, 266, July 20, 2011 citing
DBP v. Licuanan, 516 SCRA 644).
Alternative remedies of the creditor in case of default-
There is only one cause of action, the failure to pay despite
demand or to recover the debt but the mortgagee-creditor has 2
alternative remedies or options to enforce said right to
recover or seek redress for such violation, namely:
a. to file an action for collection of sum of money; or
b. to foreclose the mortgage, if one has been
constituted.
Splitting a single cause of action-
A creditor cannot file a civil action against the debtor for collection of
the debt and subsequently file an action to foreclose the mortgage.
This is an example of splitting a single cause of action, a practice that
is vexatious and oppressive.
Example:
A purchase a lot from B for P1.5M. He gave a downpayment of P.5M,
signed a PN payable 30 days after date, and as security for the
settlement of the obligation, mortgaged the same lot to B. When the
note fell and failed to pay, B commenced suit to recover from A the
balance of P1M. After securing a favorable judgment on his claim, B
brought another action against A in the same court to foreclose the
mortgage. A now files a motion to dismiss the second action on the
ground of bar by a prior judgment. Rule on the motion.
Ans. The motion should be granted. The failure to pay a debt secured
by a mortgage constitutes but a single cause of action. The creditor
cannot file an action to collect the debt and thereafter file another
action to foreclose the mortgage. The filing of of the second action
violates the rule against splitting a single cause of action (Danao v. CA
154 SCRA 446, 457-458).
An election of one bars recourse of the other, otherwise, there would
be multiplicity of suits in which the debtor would be tossed from one
venue to another depending on the location of the mortgaged
properties and the residence of the parties (Flores v. Lindo, Jr., 648
SCRA 772, 777, April 13, 2011).
In Bank of America, NT & SA v. American Realty Corporation, 321
SCRA 659, 667-669), it was categorically ruled that the mere act of
filing of an ordinary action for collection operates as a waiver of the
mortgagee-creditor’s remedy to foreclose the mortgage. By the mere
act of filing of an ordinary civil action for collection against the
principal debtors, the creditor is deemed to have elected a remedy, as
a result of which a waiver of the other must necessarily arise.
Corollarily, no final judgment in the collection suit is required for the
rule on waiver to apply.
Effect of death of the mortgagor/debtor-
When the mortgagor dies, the mortgagee/creditor has the following
remedies:
(a) abandon the security and prosecute his claim in the manner
provided for under Rule 86 (Settlement of the Estate), and
share in the general distribution of the assets of the estate;
(b) foreclose the mortgage by action in court, making the
executor or administrator a party defendant, and if there is
deficiency judgment after the sale of the mortgaged
property, he may claim the deficiency in the manner
provided by Rule 86; or
(c) rely upon the mortgage or the security alone, and foreclose
the same at any time before it is barred by prescription,
and in that event, he shall not be admitted as a creditor,
without the right to share in the distribution of the other
assests of the estate (Sec. 7 R 86).
Redemption-
Rule 86 however, does not prohibit the executor or administrator
from redeeming the property mortgaged or pledged, by paying
the debt for which it is held as security. The redemption is to be
made if the court shall adjudge it to be for the best interest of the
estate (Sec. 7 R 86).
Pactum commissorium prohibited-
Art. 2088 of the CC expressly prohibits the creditor from appropriating
the things given by way of pledge or mortgage, and any stipulation to
the contrary is null and void. This appropriation to be null and void has
been interpreted to refer to an automatic appropriation granted by
contract to the creditor in case of non-payment of the obligation within
the stipulated period.
Modes of foreclosure
1. Judicial (R 68) and 2. Extrajudical foreclosure per Act 3135,
as amended by Act 4118.
Extrajudicial foreclosure is the mode to be used if there is a special
power inserted in or attached to the real estate mortgage contract
allowing an extrajudicial foreclosure sale (Sec. 1 Act 3135, as
amended). Where there is no such special power, the foreclosure shall
be done judicially following the procedure set forth in R 68.
Jurisdiction-
Examples of actions incapable of pecuniary estimation are those for
specific performance, support, or foreclosure of mortgage or
annulment of judgment, also actions questioning the validity of a
mortgage, annulling a deed of sale or conveyance and to recover the
price paid and for rescission which is a counterpart of specific
performance. (Russel vs. Vestil, 304 SCRA, 739, 744-745 [1999])
Such ruling was, however, modified in Go vs. UCPB, GR No. 156182
Nov. 11, 2004 where the court declared the following as real actions:
41
 1.) judicial foreclosure of real estate mortgage;
2.) actions to annul real estate mortgage;
for the reason that a real estate mortgage is a real right as well as a
real property. So an action to cancel or annul a real estate mortgage
necessarily affects title to the real property, hence a real action and
jurisdiction is determined by the assessed value of the property.
2. REQUISITES
2.1. The defendants in a judicial foreclosure:
a. The persons obliged to pay the mortgage debt;
b. The persons who own, occupy or control the mortgaged premises or
any part thereof; (Soriano v. Enriquez, 24 Phil. 584 [1913]);
c. The transferee or grantee of the property; (De Villa v. Fabricante,
105 Phil. 672 [1959]);
d. The second mortgagee or junior encumbrancers or any person
claiming a right or interest in the property subordinate to the mortgage
sought to be foreclosed; but if the action is by the junior
encrumbrancer, the first mortgagee may also be joined as defendant;
(De La Riva v. Reynoso, 61 Phil. 734 [1935]) because to foreclose is to
cut off the rights of the subsequent lien holders. They are not
indispensable parties but only necessary parties. If they are not
included the case can go on but they can enforce their rights thru
another action. and
e. The debtor, even if he is not the owner of the mortgaged property,
should be included to satisfy the deficiency judgment. He is the real
party in interest if the remedy chosen by the creditor is to foreclose
the mortgage. If it is to collect on the loan then the real party in
interest is the debtor.
It has been held that the mortgagor who is not the debtor and who
merely executed the mortgage to secure the principal debtor’s
obligation is not liable for the deficiency unless he assumed liability for
the same in the contract
2.2. Contents of the complaint: (RULES OF COURT, Rule 68,
Sec. 1) 221
a. The date and due execution of the mortgage, its assignments, if
any;
b. The names and residences of the mortgagor and the mortgagee;
c. A description of the mortgaged property;
d. A statement of the date of the promissory note or other
documentary evidence of the obligation secured by the mortgage, the
amount claimed to be unpaid thereon; and
e. 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.
3. Procedure
In the absence of special provisions relative to the mechanics of the
action, it will proceed like an ordinary civil action insofar as they are
not inconsistent with Rule 68.
Specific Features-
Steps after trial:
1. Judgment- if the plaintiff wins it will grant the foreclosure
but also require the loser to pay the equity of
redemption. If, after the trial, the court finds for the
plaintiff, it will render a judgment containing the following
matters: (a) ascertainment of the amount due to the
plaintiff upon the mortgage debt or obligation, including
interest and other charges as approved by the court,
as well as costs; (b) judgment for the sum found
due;(c) order that the amount found due be paid to
the court or to the judgment obligee within a period
of not less than 90 days nor more than 120 days from
the entry of judgment; and (d) admonition that in
default of such payment, the property shall be sold at
public auction to satisfy the judgment.
Significance of the period-
The period given in the rule is not merely a procedural
requirement; it is a substantive right granted to the mortgage
debtor as the last opportunity to pay the debt and save his
mortgaged property from final disposition at the foreclosure sale.
It (the period) is one of the two steps necessary to
destroy what in law is known as the mortgagor’s “equity
of redemption,” the other being the sale. It may not be
omitted (De Leon v. Ibanez, 95 Phil. 119, 122). Again, it was
ruled that this is a substantial requirement which cannot
be omitted (Rosales v. CA, 353 SCRA 179, 188).
The judgment of the court on the above matters is considered a
final adjudication of the case and hence, is subject to challenge
by the aggrieved party by appeal or by other post-judgment
remedies.
If no equity of redemption is exercised by the mortgagor, the
foreclosure sale will follow upon motion.
2. The foreclosure sale or sale of the foreclose property
at public auction. The procedure will be the same as sale
on execution under Rule 39. But while under Rule 39 the
buyer gets only a certificate of sale from the sheriff
to be registered with the register of deeds, here
there is a need to secure a confirmation of sale from
the court and to register the certificate and
confirmation with the register of deeds which will
effect the transfer of all rights to the buyer because
there is no right to redeem. Note, therefore that
equity of redemption can be exercised even after the
foreclosure sale and before the issuance of the order
of confirmation.
3. Confirmation of the sale and issuance of Writ of
possession in judicial foreclosure.
42
 The order of confirmation is appealable, and if not action, multiple appeals may be taken in the case.(Remedial
appelaed from within the period of appeal, such Law, Compendium, Florenz D. Regalado, page 765)
order becomes final.
Disposition of the proceeds of the foreclosure sale-
After the foreclosure sale is confirmed and the order of
confirmation becomes final, or upon the expiration of the
The proceeds of the sale of the mortgaged property shall, after
period of redemption when allowed by law, the court, upon
deducting the costs of the sale, be paid to the person foreclosing the
motion, may issue a writ of possession to install the
mortgage, and when there shall be any balance or residue after paying
buyer at auction into possession of the property sold.
off the mortgage debt due, the same shall be paid to junior
It is necessary to put an end to litigation, placing the
encumbrancers in the order of their priority. If there be any further
purchaser the purchaser at the auction sale or last
balance after paying them or if there be no junior encumbrancers, the
redemptioner, if any,in possession of the property.(Ramos v.
same shall be paid to the mortgagor or any person entitled thereto
Mañalac, et al., G.R. No. 2610, June 16, 1951) There is no
(Sec. 4 R 68).
need for the purchaser to file an ejectment case
against the occupants.
DIFFERENCES BETWEEN JUDICIAL and EXTRA-JUDICIAL
FORECLOSURE OF MORTGAGE:
The law expressly authorizes the purchaser to petition for a
writ of possession by filing an ex parte motion. That being
so, there is no need for the purchaser to notify the parties of JUDICIAL FORECLOSURE
the proceedings. The motion for issuance of a writ of
possession is an exception to the general 3-day 1.Requires court intervention;
notice rule for motions. Nevertheless, the ex parte nature
of the proceeding does not deny due process to the
petitioners because the issuance of the writ of 2.Generally, there is only an equity of redemption; and
possession does not bar a separate case for
annulment of the mortgage and foreclosure sale 3.Governed by Rule 68.
(Carlos v. CA, 537 SCRA 247, 253).

EXTRA-JUDICIAL FORECLOSURE
It was also ruled that a pending suit for annulment of
the mortgage or annulment of the foreclosure
proceedings does not defeat the right of the 1.No court intervention is necessary;
purchaser to a writ of possession to which the
purchaser is entitled as a matter of right. An 2.Right of redemption exists;
injunction to prohibit the issuance or enforcement of
the writ is entirely out of place (Carpo v. Chua 471
SCRA 471, 486-487). 3.Governed by Act No. 3135 (An Act to Regulate the Sale of Property
under Special Powers Inserted in or annexed to Real Estate Mortgages
(As amended by Republic Act No. 4118).
Registration of the sale-

A certified copy of the final order of the court confirming the

sale is necessary for the sale to be registered in the registry
of deeds. If there is no right of redemption, the certificate of EXTRA-JUDICIAL JUDICIAL FORECLOSURE
title in the name of the mortgagor shall be cancelled, and a FORECLOSURE (ACT 3135) (RULE 68)
new one shall be issued in the name of the purchaser (Sec.
7 R 68).
No complaint is filed; Complaint is filed with the
When the right to redemption exists, the certificate of sale courts;
and order confirming the sale shall be registered and a brief There is a right of redemption. No right of redemption except
memoranda thereof shall be made by the register of deeds Mortgagor has a right of when mortgagee is a banking
upon the certificate of title. The certificate of title, however, redemption for 1 year from institution; equity of redemption
in the name of the mortgagor shall not be cancelled. In the registration of the sale; only (90 to 120 days, and any
event the property is redeemed, the deed of redemption time before confirmation of
shall be registered with the register of deeds and a brief foreclosure sale);
memorandum thereof shall likewise be made upon the Mortgagee has to file a Mortagagee can move for
certificate of title (Sec. 7 R 68). separate action to recover any deficiency judgment in the
deficiency; same action
Buyer at public auction Buyer at public auction becomes
If the property is not redeemed, the final deed of sale becomes absolute owner only absolute owner only after
executed by the sheriff in favor of the purchaser at the after finality of an action for confirmation of the sale;
foreclosure sale shall be registered with the register of consolidation of ownership;
deeds. The certificate of title in the name of the mortgagor
Mortgagee is given a special Mortgagee need not be given a
shall then be cancelled and a new one shall be issued in the
power of attorney in the special power of attorney.
name of the purchaser (Sec. 7 R 68).
mortgage contract to foreclose
the mortgaged property in case
4.5. Multiple appeals, allowed. of default.

In view of the procedural stages and the adjudicative actions

required to be taken by the trial court in this special civil

43
3. DISTINCTION BETWEEN RIGHT OF REDEMPTION AND days after the entry of judgment (RULES OF COURT, Rule 68, Sec. 2)
EQUITY OF REDEMPTION or even after the foreclosure sale but prior to confirmation. After such
order of confirmation, no redemption can be effected any
longer(Limpin v. Intermediate Appellate Court, G.R. No. 70987,
EQUITY OF REDEMPTION RIGHT OF REDEMPTION
September 29, 1988, 166 SCRA 87)
The right of defendant A right granted to a debtor
mortgagor to extinguish the mortgagor, his successor in
mortgage and retain interest or any judicial creditor or EQUITY OF REDEMPTION
ownership of the property by judgment creditor or any person
paying the debt within 90 to having a lien on the property 1.Right of the defendant mortgagor to extinguish the mortgage and
120 days after the entry of subsequent to the mortgage or retain ownership of the property by paying the debt within 90-120
judgment or even after the deed of trust under which the days after the entry of judgment or even after the foreclosure sale but
foreclosure sale but prior to property is sold to repurchase the prior to confirmation.(Id.)
confirmation. property within one year even
after the confirmation of the sale
and even after the registration of 2.Governed by Rule 68.
the certificate of foreclosure sale.
May be exercised even after There is no right of redemption in Period is 90-120 days after entry of judgment or even after the
the foreclosure sale provided a judicial foreclosure of mortgage foreclosure sale but prior to confirmation.
it is made before the sale is under Rule 68 as a rule. This right
confirmed by order of the of redemption exists only in
court. extrajudicial foreclosures where
there is always a right of
redemption within one year from RIGHT OF REDEMPTION (Execution of a money judgment
the date of sale (Sec. 3, Act under Rule 39- Governed by Sections 29-31)
3135), but interpreted by the
Court to mean one year from the
1.Definition- Right of debtor or his successor-ininterest or any
registration of the sale.
judicial creditor or judgment creditor of said debtor or any person
General rule: In judicial May also exist in favor of other
having a lien on the property subsequent to the mortgage or deed of
foreclosures there is only an encumbrancers. If subsequent
trust under which the property is sold to redeem the property within 1
equity of redemption which lien holders are not impleaded as
year from the registration of the Sheriff’s certificate of foreclosure sale
can be exercised prior to the parties in the foreclosure suit, the
(RULES OF COURT, Rule 39, Sec. 29; De Castro v. Intermediate
confirmation of the judgment in favor of the
Appellate Court, G.R. No. 73859, September 26, 1988, 165 SCRA 654).
foreclosure sale. This means foreclosing mortgagee does not
In other words, it is available to the mortgagor in order to
that after the foreclosure sale bind the other lien holders. In this
reacquire the property foreclosed even after the confirmation
but before its confirmation, case, their equity of redemption
of the sale and the registration of the certificate of sale.
the mortgagor may exercise remains unforeclosed. A separate
his right to pay the proceeds foreclosure proceeding has to be
of the sale and prevent the brought against them to require
confirmation of the sale. them to redeem from the first
mortgagee or from the party 2.Governed by Sections 29-31 of Rule 39.
acquiring the title to the
mortgaged property.
If not by banks, the Exception: there is a right of 1. Where Mortgagor is a Natural Person - Period is 1 year from the
mortgagors merely have an redemption if the foreclosure is in date of the confirmation of the auction sale
equity of redemption, which favor of banks as mortgagees,
is simply their right, as whether the foreclosure be 2. Where mortgagor is a Juridical Person - Period is 3 months from the
mortgagor, to extinguish the judicial or extrajudicial. This right date of the confirmation of the auction sale.
mortgage and retain of redemption is explicitly
ownership of the property by provided in Sec. 47 of the General
paying the secured debt prior Banking Law of 2000. While the * Reckoning period for exercise of right of redemption. For purposes of
to the confirmation of the law mentions the redemption reckoning the one-year redemption period in the case of individual
foreclosure sale. period to be one year counted mortgagors, or the three-month redemption period for juridical
from the date of registration of persons/mortgagors, the same shall be reckoned from the date of
the certificate in the Registry of the confirmation of the auction sale, which is the date when
Property the certificate of sale is issued.(Commissioner of Internal Revenue
1.Equity of redemption is the right of the mortgagor to redeem the v. United Coconut Planters Bank, G.R. No. 179063, October 23, 2009,
mortgaged property after his default in the performance of the 604 SCRA 343)
conditions of the mortgage but before the sale of the property or the
confirmation of the sale. (Top Rate International Services, Inc. v. IAC, Foreclosure by banks- (Right of redemption v. Equity of
et al., supra note 229). If done before the sale it will prevent redemption)
said sale. If done after the sale but before the confirmation of
sale it will prevent ownership to accrue in the buyer.
Rule-*Right of Redemption is available only in extrajudicial
foreclosure of mortgage. No right of redemption in judicial
*Equity of redemption, not right of redemption, is available in foreclosure of mortgage; exception-
judicial foreclosure of mortgage.
The right of redemption in relation to a mortgage:
There then exists only what is known as the equity of redemption
which is the right of the defendant mortgagor to extinguish the
– understood in the sense of a prerogative to re-acquire
mortgage and retain ownership of the property by paying the secured
mortgaged property after registration of the foreclosure sale
debt within a period of not less than 90 days but not more than 120
44
 – exists only in the case of the extrajudicial foreclosure of the
mortgage.
* In judicial foreclosure, there is no right of redemption available to
the debtor mortgagor. The law declares that a judicial foreclosure sale
'when confirmed by an order of the court, shall operate to
divest the rights 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. (Huerta Alba Resort Inc. v.
Court Of Appeals, G.R. No. 128567, September 1, 2000, 339 SCRA
534)
Exception: Where the mortgagee is the Philippine National
Bank or a bank or banking institution.(Id.)
1.Generally, the right of redemption means the right of the
mortgagor to repurchase the property within one year from the
registration of the sale, even after confirmation of the sale, in cases
of foreclosure by banks. (Top Rate International Services, Inc. v.
IAC, et al., G.R. No. 67496 July 7, 1986, 142 SCRA 467)
PNB
The right of redemption (Executive Order No. 80, promulgated
on December 3, 1986) under the 1986 Revised Charter of the
Philippine National Bank provides that within one year from the
registration of the foreclosure sale of real property, the mortgagor
shall have the right to redeem the property by paying the principal,
interests, charges, commissions and all claims of whatever nature of
the Bank that are outstanding and due as of the date of the sale,
including all the costs and other expenses it incurred by reason of the
foreclosure sale and custody of the property, as well as charges and
accrued interest. (Id., Sec. 22)
Under the General Banking Law, right of redemption available
in judicial or extra-judicial foreclosure-
On the other hand, the right of redemption under the General Banking
Law of 2000 (Republic Act No. 8791 [2000]) provides that in the
event of a judicial or extra-judicial foreclosure of any
mortgage on real estate, which is the security for any loan or other
credit accommodation granted, the mortgagor or debtor whose real
property has been sold for the full or partial payment of his obligation
shall have the right within one year after the sale of the real estate, to
redeem the property by paying:
a) the amount due under the mortgage deed, with interest thereon at
rate specified in the mortgage;
b) all the costs and expenses incurred by the bank or institution from
the sale and custody of said property;
c) and deducting the income derived therefrom. (Id., Sec. 47)
4. Other SPECIFIC FEATURES
Deficiency judgment.
In foreclosure proceedings there can be two judgments, the
foreclosure and deficiency judgment.
Deficiency judgment is a judgment rendered by the court upon motion
and showing that the proceeds from the sale of the mortgaged
property is not sufficient for the payment of the judgment debt.
While a foreclosure judgment is a judgment quasi in rem
because it is directed against the property mortgaged, a
deficiency judgment is in personam intended to bind the
person of the mortgage debtor.
If 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. Execution may issue immediately if
the balance is all due the plaintiff shall be entitled to execution at such
time as the remaining balance shall become due and such due date
shall be stated in the judgment.(Sec. 6 R 68). Note that the deficiency
judgment is in itself a judgment hence, also appealable.
No independent action need be filed to recover the deficiency from the
mortgagor. The deficiency judgment shall be rendered upon motion of
the mortgagee. The motion must be made only after the sale
and after it is known that a deficiency exists. Before that, any
court order to recover the deficiency is void. It has been held that
the mortgagor who is not the debtor and who merely
executed the mortgage to secure the principal debtor’s
obligation is not liable for the deficiency unless he assumed
liability for the same in the contract.
Since a deficiency judgment cannot be obtained against the mortgagor
who is not the debtor in the principal obligation, mortgagee may
have to file a separate suit against the principal debtor.
Instances when court cannot render deficiency judgment:
Where the debtor-mortgagor is a non-resident and who at the time of
the filing of the action for foreclosure and during the pendency of the
proceedings was outside the Philippines, it is believed that a deficiency
judgment would not be procedurally feasible.
A deficiency judgment is by nature in personam and
jurisdiction over the person is mandatory. Having been
outside the country, jurisdiction over his person could not
have been acquired.
Rule in case there is a surplus instead of a deficiency-
It s the duty of the mortgagee to return to the mortgagor any
surplus in the selling price during the foreclosure sale (Sulit v.
CA, 268 SCRA 441, 455-457).
Some rules on deficiency judgment are:
a. A motion for deficiency judgment may be made only after the
sale and after it becomes known that a deficiency exists
(Governor of the Philippine Islands v. Torralba Viuda de Santos, 61
Phil. 689 [1935]).
b. Deficiency judgment cannot be rendered against a non-
resident defendant (El Banco Espanol-Filipino v. Palanca, 37
Phil. 921 [1918]) who has not submitted himself voluntarily to
the jurisdiction of the court.
c. No deficiency judgment may be rendered against the owner
who is not a mortgagor and has not assumed personal liability
for the debt. The remedy is an ordinary action against the
debtor.(Philippine Trust Co. v. Siua, 52 Phil. 852 [1929])
45
 d. If the debtor dies, the deficiency may be filed as a claim
against his estate.(RULES OF COURT, Rule 86, Sec. 7; Reyes v.
Rosenstock, 47 Phil. 789 [1925])
5. JURISPRUDENCE
5.1. Waiver of right.
A personal action for recovery of debt constitutes a waiver of right of
foreclosure.(Bachrach Motor Co., Inc. v. Icarañgal and Oriental
Commercial Co., Inc., 68 Phil. 287 [1939])
5.2. The first mortgagee may be joined as a party defendant in an
action for foreclosure by the second mortgagee.(Alpha Insurance and
Surety Co., Inc. v. Reyes, G.R. No. 26274, July 31, 1981, 106 SCRA
274)
Even if not joined, the first mortgagee may file a complaint in
intervention.
5.3. Revival of judgment in a judicial foreclosure:(Bank of the
Philippine Islands v. Green, 52 Phil., 491 [1935])
a. A judgment foreclosing a mortgage which has lost executory force
by the lapse of five years, may be revived by filing a complaint based
thereon;
b. A second mortgagee, not a party in the original complaint or in the
judgment entered by virtue thereof, may not be included as party
defendant in an action commenced by a complaint for the purpose of
reviving the said judgment which has already lapsed;
c. The mortgagee who forecloses a part of the mortgaged properties
only and does not foreclose the remainder until after the expiration of
five years to recover the balance is not entitled to charge interest on
the balance for the period of delay.
5.4. Order of confirmation:
a. An order of confirmation requires notice and hearing, otherwise
it may be set aside any time. It is to enable the interested parties to
resist the motion and inform them of the time when their right of
redemption is cut off.(Tiglao v. Botones, 90 Phil. 275 [1951])
PARTITION (RULE 69)
1.DEFINITION of partition
Partition is related to co-ownership - when a property is owned in
common by two or more persons.
Partition presupposes the existence of a co-ownership over a property
between two or more persons.
Thus, it was ruled that a division of property cannot be ordered
by the court unless the existence of ownership is first
establsihed, and that an action for partition will not lie if the claimant
has no righful interest in the property (Co Giuk Lun v. Co, 655 SCRA
131, 138, August 3, 2011).
b. An order of confirmation retroacts to the date of the sale
and is appealable.(Ocampo v. Domalanta, et al., G.R. No. 21011,
August 30, 1967, 20 SCRA 1136)
The confirmation of the sale shall divest the rights in the property of all
parties to the action and shall vest their rights in the purchaser,
subject to such rights of redemption as may be allowed by law. The
title vests in the purchaser upon a valid confirmation of the sale and
retroacts to the date of sale.
The import of Sec. 3 includes one vital effect:
The equity of redemption of the mortgagor or redemptioner is cut-off
and there will be no further redemption, unless allowed by law (as in
the case of banks as mortgagees).
The equity of redemption starts from the ninety-day period set in the
judgment of the court up to the time before the sale is confirmed by
an order of the court. Once confirmed, no equity of redemption
may further be exercised.
The order of confirmation is appealable and if not appealed
within the period for appeal becomes final. 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, shall be entitled
to the possession of the property and he may secure a writ of
possession, upon, motion, from the court which ordered the
foreclosure unless a third party is actually holding the same
adversely to the judgment obligor.
5.5. Mere inadequacy of price is not ground for setting aside a
sale, unless shocking to the conscience of the court.(Ponce De
Leon v. Rehabilitation Finance Corporation, G.R. No. 24571, December
18, 1970, 36 SCRA 289)
5.6. Pendency of an action tolls the term of the right of redemption.
(Consolidated Bank v. IAC, G.R. No. 73976, May 29, 1987, 150 SCRA
591)
5.7. The purchaser in a foreclosure sale of a mortgaged property is
entitled to a writ of possession and upon an ex-parte petition of the
purchaser; it is ministerial upon the court to issue such writ of
possession in favor of the purchaser (Barican, et al. v. Intermediate
Appellate Court, et al., G.R. No. 79906, June 20, 1988, 162 SCRA 358;
Banco Filipino Savings and Mortgage Bank v. Pardo, et al., G.R. No.
55354, June 30, 1987, 151 SCRA 481).
The best example of co-ownership is inherited property.
Note, however, that not every co-ownership is based on inheritance.
Further, there is a limit to co-ownership. A person may not want
to own the property with so many people because most co-owned
properties are stagnant. There is no improvement because no one
usually takes the initiative because investment might go to waste
considering that he/she does not own the entire property or even a
definite part of the property.
A well-known principle embodied in the Civil Code, is that no
co-owner shall be obliged to remain in the co-ownership.A co-
owner is thus entitled to demand for partition. In a situation where the
co-ownership exists over inherited property then, judicial partition
under Rule 69 can be availed of as one of the modes of settling the
estate of a decedent. (Rule 74, Sec. 1 of the Revised Rules of Court).
46
What then is partition?
Partition is the process of dividing and assigning property
owned in common among the various co-owners thereof in
proportion to their respective interests in said property.
Partition, in general, is the separation, division, and assignment of a
thing held in common by those to whom it may belong (Cano Vda. De
Viray v. Spouses Usi, GR No. 192486, Nov. 21, 2012).
The Civil Code of the Philippines defines partition as the
separation, division, and assignment of a thing held in
common among those to whom it may belong (Art. 1079, CC).
Partition is the division between two or more persons of real or
personal property, owned in common, by setting apart their respective
interests so that they may enjoy and possess these in severalty,
resulting in the partial or total extinguishment of co-ownership
(Leoveras v. Valdez, 652 SCRA 61, 75-76, June 15, 2011).
In its narrow and technical sense, "partition" is used with
respect to the multilateral act by which several co-owners
divide common property among themselves, or to the act by
which the court effects such a division at the instance of one
or more of the persons concerned (Fule v. Fule, 52 Phil. 750
[1929]).
No transmission of rights in partition-
There is no transmission of rights among co-owners but only a
division and distribution of shares among them. It is a
confirmation or ratification of title or right of property that an heir is
renouncing in favor of another heir who accepts and receives the
inheritance. It is merely a deisgnation and segregation of that part
which belongs to each heir (Heirs of Ureta, Sr. v. Heirs of Ureta, 657
SCRA 555, 596, Sept. 14, 2011).
Partition does not affect the rights of third parties over the
properties subject thereof-
So if the property is a ten-hectare lot mortgaged to a bank and it is
subsequently subdivided among the co-owners, the mortgage will still
bind the entire lot. There is no transmission of rights but only a
division and distribution of shares over the lot that is done thru
partition.
Instances when a co-owner may not demand partition at any
time:
1) There is an agreement among the co-owners to keep the
property undivided for a certain period of time but not
exceeding ten years (Art. 494);
2) When partition is prohibited by the donor or testator for a
period not exceeding 20 years (Art. 494);
3) When partition is prohibited by law (Art. 494);
4) When the property is not subject to a physical division and
to do so would render it unserviceable for the use for which
it is intended (Art. 495);
5) When the condition imposed upon voluntary heirs before
they can demand partition has not yet been fulfilled (Art.
1084).
Action to demand partition imprescriptible; when made:
General Rule:
An action to demand partition is imprescriptible and not subject to
laches and each co-owner may demand at any time the
partition of the common property (CIVIL CODE, Art. 494; De Guia
v. Court of Appeals, et al., G.R. No. 120864, October 8, 2003, 413
SCRA 114).
Exceptions:
1.Where one of the interested parties openly and adversely
occupies the property without recognizing the co-ownership
(Delima, et al. v. Court of Appeals, et al., G.R. No. 46296,
September 24, 1991, 201 SCRA 641; Cordova v. Cordova, 102
Phil 1182 [1948]) in which case, acquisitive prescription may
set in in his/her favor if there is no partition demanded.
2. Article 159 of the Family Code of the Philippines proscribes
against the immediate partition of the family home regardless
of its ownership. This signifies that even if the family home has
passed by succession to the co-ownership of the heirs, or has been
willed to any one of them, this fact alone cannot transform the family
home into an ordinary property, much less dispel the protection cast
upon it by the law. The rights of the individual owner or co-
owners of the family home cannot subjugate the rights
granted under Article 159 to the beneficiaries of the family
home.
“The family home shall continue despite the death of one or both
spouses or of the unmarried head of the family for a period of ten
years or for as long as there is a minor beneficiary, and the
heirs cannot partition the same unless the court finds
compelling reasons therefore. This rule shall apply regardless
of whoever owns the property or constituted the family
home.” (Arriola v. Arriola, G.R. No. 177703, January 28, 2008, 542
SCRA 666).
A quasi in rem action-
An action for partition and accounting under Rule 69 is in the
nature of an action quasi in rem. Such an action is essentially
for the purpose of affecting the defendant's interest in a
specific property and not to render a judgment against him
(Valmonte v. Court of Appeals, G.R. No. 108538, January 22, 1996,
252 SCRA 92).
2.KINDS or Modes OF PARTITION
a. Extrajudicial Partition – by agreement or voluntary. Again if
it is inherited party another mode of settling it is by extrajudicial
settlement or partition of the estate which means by agreement of all
the heirs or if there is only one heir, thru an Affidavit of self-
adjudication by a sole heir.
b. Judicial Partition – compulsory which is governed by Rule 69 of
the Rules of Court.
The right of the co-owners to opt for an agreement of partition in lieu
of judicial partition is recognized by the Rules of Court. The provision
of Section 12 of Rule 69 provides that “Nothing in this Rule … shall be
construed … as to restrict or prevent person holding real estate jointly
or in common from making an amicable partition thereof by agreement
and suitable instruments of conveyance without recourse to an action.”
If the co-owners cannot agree on the partition of the property, the
only recourse is the filing of an action for partition.
3. JURISDICTION in Judicial partition
47
General Rule: If the subject matter of the action is personal
property valued at not more than P300,000.00 and in Metro Manila,
at not more than P400,000.00; or real property valued at not more
than P20,000.00 and in Metro Manila, at not more than P50,000.00,
the Municipal Trial Courts have jurisdiction [Batas Pambansa Blg. 129
[1980], Secs. 19 and 33, as amended by Republic Act No. 7691
[1994]] (Provisional Remedies and Special Civil Actions, Reviewer-
Primer, Feria and Noche 2007 Ed., p.266)
Exception: If the title or possession of the real property in an action
for partition depends on the annulment of a Deed of Declaration
of Heirs, which is incapable of pecuniary estimation, the
Municipal Trial Courts have no jurisdiction (Russel v. Vestil, G.R.
No. 119347, March 17, 1999, 304 SCRA 738).
Riano’s view-
Riano however, is of the opnion that “the primary issue to be
determined in an action for partition boils down to whether or not
the plaintiff has a right to partition, an issue incapable of
pecuniary estimation. Thus, from this perspective, it may be argued
that the action would be cognizable by the RTC.
4. REQUISITES
4.1. Who may file.
Any person having the right to compel the partition of real estate
(RULES OF COURT, Rule 69, Sec. 1) or of an estate composed of
personal property (Sec. 13, R 69).
The plaintiff is a person who is supposed to be a co-owner of the
property or estate sought to be partitioned. The defendants are all co-
owners.
In a partition, approval of court is required before a guardian
or guardian ad litem of a minor or a person judicially declared
to be incompetent can act on behalf of his ward (Id., Sec. 9).
All the co-owners must be joined. Accordingly, an action will not lie
without the joinder of all co-owners and other persons having interest
in the property (Moran, Comments on the Rules of Court, 1997 ed
citing Garcia de Lara v. Gonzales de Lara, 2 Phil 294; Reyes v.
Cordero, 46 Phil. 658, 661-662). All the co-owners are
indispensable parties.
4.2. Contents of the complaint:
a. Nature and extent of his title;
b. Adequate description of the real estate of which partition is
demanded; and
c. Defendants and all other persons interested in the property are
joined. (Secs. 1 and 13, R 69). He must also include a demand for
accounting of the rents, profits and other income from the property
which he may be entitled to as his share (Sec. 8, R 69).
These cannot be demanded in another action because they are
parts of the cause of action for partition. These will be barred if
not set up in the same action pursuant to the rule against splitting a
single cause of action.
When action is for recovery of property not partition-
When the allegations in the complaint allege that the plaintiff
asserts exclusive ownership of the property sought to be
partitioned, the nature of the action is not one for partition. It
is an action for recovery of property (De la Cruz v. CA, 412 SCRA
281, 289).
5. SPECIFIC FEATURES:
5.1. Two stages in an action for partition and/or accounting:
a. First stage – Determination of the propriety of partition
This involves a determination of whether the subject property
is owned in common and whether all the co-owners are made
parties in the case. All co-owners are indispensable parties (RULES
OF COURT, Rule 3, Sec. 7 Compulsory joinder of indispensable parties.
Parties in interest without whom no final determination can be had of
an action shall be joined either as plaintiffs or defendants). This
phase may end with (DISMISSAL) a declaration that plaintiff
is not entitled to have a partition either because a co-
ownership does not exist, or partition is legally prohibited. It
may end, on the other hand, with (ORDER OF PARTITION) an
adjudgment that a co-ownership does in truth exist, partition
is proper in the premises, and an accounting of rents and
profits received by the defendant from the real estate in
question xxx (Lacbayan v. Samoy, 645 SCRA 677, 688 citing Mun. of
Binan v. Garcia, 180 SCRA 576). This order of partition and
accounting is appealable by any party aggrieved thereby
(Maglucot-Aw, et al. v. Maglucot, et al., G.R. No. 132518, March 28,
2000, 329 SCRA 78; Miranda v. Court of Appeals, G.R. No. 33007,
June 18, 1976, 71 SCRA 295; Sec. 2, R 69). The order of partition is
then issued after the court finds that the facts are such that a partition
would be in order.
If the order of partition is not appealed (and is therefore
executory), then the parties may partition the common
property in the way they want. If they cannot agree, then the
case goes into the second stage. However, the order of
accounting may, in the meantime, be executed (De Mesa v.
Court of Appeals, G.R. No. 109387, April 25, 1994, 231 SCRA 773).
It is to be observed that the order of partition directs the parties or co-
owners to partition the property where they may make the partition
among themselves by proper instruments of conveyance, if they agree
among themselves. If they do agree, the court shall then confirm the
partition so agreed upon by all the parties, and such partition, together
with the order of the court confirming the same, shall be recorded in
the registry of deeds of the place where the property is situated (Sec.
2 R 39).
Order of partition.
After trial, if the court finds that the plaintiff has the right to the
property subject of partition, it shall issue an order demanding the
partition of the real estate among all the parties in interest (RULES OF
COURT, Rule 69, Sec. 2).
Thereupon, the parties may, if they are able to agree, make the
partition among themselves, otherwise, the court shall appoint
commissioners to make the partition.
b.Second stage - Actual partitioning of the subject property;
b.1.Partition by agreement / Confirmaton by the court
48
After the issuance of the order of partition, the parties will then be
asked if they agree to make partition of the property among
themselves. If they agree, proper instruments of conveyance
will be executed to effect the partition. After the execution of
instruments of conveyance, the court shall confirm the
partition through a final order. The final order of partition and
the instruments of conveyance shall be registered with the
Registry of Deeds where the property is situated. (Id.)
b.2.Partition by commissioners.
If the parties are unable to agree upon the partition, the court shall
appoint not more than 3 competent and disinterested persons as
commissioners to make the partition,commanding them to set off to
the plaintiff and to each party in interest such part and proportion of
the property as the court shall direct (Id., Sec. 3).
If the parties are unable to agree upon the partition, the
partition shall be done for the parties with the assistance of
not more than three (3) commissioners (Municipality of Biñan v.
Garcia, supra note 177; Sec. 3, R 69).).
This is also a complete proceeding and the order or decision
partitioning the property is also appealable.
The second phase commences when it appears that “the
parties are unable to agree upon the partition” directed by the
court. In that event partition shall be done for the parties by the court
with the assistance of nit more than 3 commissioners. This second
stage may well also deal with the rendition of the accounting
itself and its approval by the court after the parties have been
accorded opportunity to be heard thereon, and an award for
the recovery by the party or parties thereto entitled of their
just share in the rents and profits of the real estate in
question xxx” (Lacbayan v. Samoy).
*Duties of commissioners:
1. To view and examine the real estate, after due notice to the parties
to attend at such view and examination;
2. To hear the parties as to their preference in the portion of the
property to be set apart to them and the comparative value thereof;
3. To set apart the same to the parties in lots or parcels as will be
most advantageous and equitable, having due regard to the
improvements, situation, and quality of the different parts thereof (Id.,
Sec. 4).
*If the commissioners should determine that the real estate cannot be
divided without prejudice to the interests of the parties, the court may
order that the property be assigned to one of the parties willing to
take the same, PROVIDED he pays to the other parties such amounts
as the commissioners deem equitable.
*EXCEPTION: if one of the parties asks that the property be sold,
instead of being so assigned, then the court shall ORDER the
commissioners to sell the real estate at public sale under such
conditions and within such time as the court may determine (Id., Sec.
5).
*Commissioners’ report.
The commissioners shall make a full and accurate report to the court
of all their proceedings as to the partition, or the assignment of real
estate to one of the parties or the sale of the same. Upon filing the
report, the clerk of court shall serve copies thereof on all interested
parties with notice that they are allowed 10 days within which to file
objections to the findings of the report, if they so desire (Id., Sec. 6).
*No proceeding had before or conducted by the
commissioners shall pass the title to the property or bind the
parties until the court accepts the commissioners’ report and
rendered judgment thereon. (Id.)
*Action of the court on the commissioners’ report.
Upon the expiration of the 10-day period, or even before the
expiration of such period but after the interested parties filed their
objections to the report/statement of agreement, the court, upon
hearing, may:
1. Accept the commissioners’ report and render judgment
based upon it;
2. Recommit the report to the commissioners for further report of facts
if there is cause to do the same;
3. Set aside the report and appoint new commissioners;
4. Accept the report in part and reject it in part; or
5. Make such order and render such judgment as shall effectuate a fair
and just partition of the real estate or of its value, if the property is
assigned or sold between the several owners thereof (Id., Sec. 7).
Limited authority of the commissioners-
Note that the provision authorizes the commissioners merely to
make or effect the partition (Sec. 3 R 69). Nothing in the provision
grants them the authority to adjudicate on questions of title or
ownership of property. Hence, Sec. 12 of R 69 emphasizes that
partition of property under R 69 is not meant to prejudice, defeat, or
destroy the rights of any person holding a title paramount to the title
of the parties among whom the partition shall have been made.
Proceedings before the commissioners; no binding effect-
The proceedings before the commissioners shall not bind the parties or
pass title to the property until the court shall have accepted the
report of the commissioners and rendered judgment thereon
(Sec. 6, R 69)
Some authors, however, are of the opinion that there are
actually 3 stages:
1) the order of partition where the propriety of the partition is
determined;
2) the judgment or order as to the accounting of the fruits and
income of the property; and
3) the judgment of partition.
Judicial partition allows multiple appeals.
The action for partition is subject to multiple appeals and would
require a record on appeal. Multiple appeals are allowed in special
proceedings, actions for recovery of property with accounting, actions
49
for partition of property with accounting, special civil actions of Judgment shall vest in the party making the payment the whole of the
eminent domain and foreclosure of mortgage. The rationale behind real estate free from any interest on the part of the other parties.
allowing more than one appeal in the same case is to enable
the rest of the case to proceed in the event that a separate
IF PROPERTY IS SOLD AND SALE IS CONFIRMED BY THE
and distinct issue is resolved by the court and held to be final
COURT
(Roman Catholic Archbishop of Manila v. CA, 258 SCRA 186, 194).

Judgment shall state the name of the purchaser or purchasers and a

definite description of the parcels of real estate sold to each purchaser.

Judgment shall vest the real estate in the purchaser(s), making the
payment(s) free from the claims of any parties to the action.
5.2. Venue:
6. JURISPRUDENCE
Actions for partition should be filed in the RTC of the province where
the property or part thereof is situated. If several distinct parcels of
6.1. Kinds of property involved.
land are situated in different provinces, venue may be laid in the RTC
of any of said provinces (Pancho v. Villanueva, 99 Phil 611 [1956]).
An action for partition may involve personal property, real property or
both real and personal property. (Del Val v. Del Val, 29 Phil. 534
5.7. Accounting, costs and expenses.
[1915]).

The court shall equitably tax and apportion between or among the
6.2. The claims for rents and profits are parts of a single cause
parties the costs and expenses which accrue in the action, including
of action and will be barred if not set up in the action for
the compensation of the commissioners, having regard to the interests
partition. (Lavarro v. Labitoria, 54 Phil. 788 [1930]).
of the parties, and execution may issue therefor as in other cases (Id.,
Sec. 10).
6.3. When there was a prior partition, the fact that the share
of each co-heir has not been technically described and the
A party shall recover from another his just share of rents and profits
title over the whole lot remains un-cancelled do not negate
received by such other party from the real estate in question, and the
such partition. There can be no partition again because there
judgment shall include an allowance for such rents and profits (Id.,
is no more common property. (Noceda v. Court of Appeals, G.R.
Sec. 8).
No. 119730, September 2, 1999, 313 SCRA 504).

Each co-owner shall pay for damages caused by reason of his

6.4. Oral partition, valid.
negligence or fraud (CIVIL CODE, Art. 500).

Oral partition of land, when the same is fully consummated, is valid

5.8. Judgment.
and binding upon the parties thereto. (Crucillo v. Intermediate
Appellate Court, G.R. No. 65416, October 26, 1999, 317 SCRA 351).
A judgment in the action for partition is res judicata only on the
parties thereto and their successors-in-interest (RULES OF
6.5. Right to intervene.
COURT, Rule 69, Sec. 12; CIVIL CODE, Art. 499).

The right to intervene is not absolute, it depends upon the sound

5.9. A certified copy of the judgment shall, in either case, be recorded
in the registry of deeds of the place in which the real estate is situated
(RULES OF COURT, Rule 69, Sec. 11).
CONTENTS OF JUDGMENT
Judgment shall state definitely, by metes and bounds and adequate
description, the particular portion of the real estate assigned to each
party.
EFFECTS OF JUDGMENT IF ACTUAL PARTITION IS PROPERLY
MADE
Judgment shall vest in each party to the action in severalty the portion
of the real estate assigned to him.
IF THE WHOLE PROPERTY IS ASSIGNED TO ONE OF THE
PARTIES AFTER PAYMENT
Judgment shall state the fact of such payment and of the assignment
of the real estate to the party making the payment.
discretion of the court and when there is no evidence that the person
who desires to intervene as such has an interest in the subject matter
of the litigation, his right thereto should not be recognized. (De Borja
v. Jugo, 64 Phil. 464 [1937]).
6.6. Indispensable parties.
All persons considered as co-owners and interested in the property to
be partitioned are indispensable parties to the action and must be
impleaded. (Sepulveda, Sr. v. Pelaez, G.R. No. 152195, January 31,
2005, 450 SCRA 302).
6.7. Estoppel.
Parties to a partition proceeding, who elected to undertake partition,
and who took possession of the portion allotted to them, are estopped
to question title to portion allotted to another party.
A person cannot claim both under and against the same instrument. In
other words, if they accepted the lands awarded them by its
provisions, then they cannot accept the decree in part, and repudiate it
in part.

50
They must accept all or none. Parties who had received the property
assigned to them are precluded from subsequently attacking its validity
of any part of it. (Maglucot-Aw, et al. v. Maglucot, et al., supra)
6.8. Partition may be inferred from circumstances sufficiently
strong to support the presumption. Thus, after a long
possession in severalty, a deed of partition may be presumed.
It has been held that recitals in deeds, possession and occupation of
land, improvements made thereon for a long series of years, and
acquiescence for 60 years, furnish sufficient evidence that there was
an actual partition of land, either by deed or by proceedings in the
probate court, which had been lost and were not recorded. And where
a tract of land held in common has been subdivided into lots, and one
of the lots has long been known and called by the name of one of the
tenants in common, and there is no evidence of any subsequent claim
of a tenancy in common, it may fairly be inferred that there has been a
partition and that such lot was set off to him whose name it bears.
(Id.)
6.9. Prescription of action.
Action for partition is imprescriptible for as long as the co-
owners expressly or impliedly recognize the co-ownership.
(Heirs of Infante v. Court of Appeals, G.R. No. 77202, June 22, 1988,
162 SCRA 431)
However, if a co-owner repudiates the co-ownership and makes known
such repudiation to the other co-owners, then partition is no longer a
proper remedy of the aggrieved co-owner. An accion reivindicatoria,
which is prescriptible, should be filed (Heirs of Jardin v. Heirs of
Hallasgo, G.R. No. 55225, September 30, 1982, 117 SCRA 532).
Partition of personal property-
The provisions of this Rule shall apply to partitions of estates
composed of personal property, or of both real and personal property,
in so far as the same may be applicable.
Rule when there are expenses to be paid from the estate-
In a situation when there remains an issue as to the expenses
chargeable to the estate, partition is inappropriate. The determination
of the expenses like those related to the deceased’s final illness and
burial,which are chargeable to the estate, cannot be done in an action
for partition. Thus, the heirs have to first submit the decedent father’s
estate to settlement because in estate settlement proceedings, there is
a proper procedure for the accounting of all expenses for which the
estate must answer. If it is any consolation at all to petitioner, the
heirs or distributees of the properties may take possession thereof
even before the settlement of accounts, as long as they first file a
bond conditioned on the payment of the estate’s obligations
(Figuracion-Gerilla v. Vda. De Figuracion, 499 SCRA 484, 490-491).
FORCIBLE ENTRY AND UNLAWFUL DETAINER (RULE 70)
1. Actions to recover possession of real property-
(a) Accion interdictal;
(b) Accion publiciana; and
(c) Accion reivindicatoria (Cano Vda. De Viray v Spouses Usi,
GR No. 192486, Nov. 21, 2012)
THREE KINDS OF ACTIONS TO RECOVER POSSESSION OF
REALTY
I. Accion Interdictal - the summary action for forcible entry
(detentacion), where the defendant’s possession of property
is illegal ab initio, or the summary action for unlawful detainer
(desahucio), where the defendant’s possession was originally
lawful but ceased to be so by the expiration of his right to
possess, both of which must be brought within one year from the
date of actual entry to the land, in case of forcible entry, and
from the date of last demand to vacate or of the expiration of
the contract of lease, in case of unlawful detainer, in the proper
Municipal Trial Court or Metropolitan Trial Court.
II. Accion Publiciana - is a plenary action for recovery of the
right to possess and which should be brought in the proper
Regional Trial Court or Municipal Trial Court (where the
assessed value of the property does not exceed P20,000.00, or
in Metro Manila, P50,000.00) when the dispossession has
lasted for more than one year.
III. Accion Reivindicatoria - or accion de reivindicacion, seeks the
recovery of ownership and includes the jus utendi and the jus
fruendi, which must be brought in the proper Regional Trial Court
or Municipal Trial Court (where the assessed value of the
property does not exceed P20,000.00, or in Metro Manila,
P50,000.00). It is thus an action whereby plaintiff alleges
ownership over a parcel of land and seeks recovery of its full
possession (Javier v. Veridiano II, et al., G.R. No. 48050, October 10,
1994, 237 SCRA 565).
1.1. Distinctions between Accion Interdictal from Accion
Publiciana:
1.Nature:
Forcible entry and unlawful detainer are summary proceedings
governed by the Summary Rules the purpose of which is recovery of
possession de facto; while Accion publiciana is an ordinary civil action
not governed by the rules of summary procedure the purpose of which
is recovery of the right of possession which we call possession de jure
- Real right.
2. Jurisdiction:
Forcible entry and Unlawful Detainer falls under the exclusive
jurisdiction of the MTC regardless of the assessed value of the
property; while Accion Publiciana may be triable by the MTC or RTC
depending on the assessed value.
Jurisdiction in accion publiciana-
In the case of Quinagoran v. Court of Appeals, (G.R. No. 155179,
August 24, 2007, 531 SCRA 104) the Court held that the doctrine that
all cases of recovery of possession or accion publiciana lies with the
regional trial courts regardless of the value of the property— no longer
holds true. As things now stand, a distinction must be made
between those properties the assessed value of which is
below P20,000.00, if outside Metro Manila; and P50,000.00, if
within. Moreover, the complaint must allege the assessed value
of the real property subject (Batas Pambansa Blg. 129 [1980], Sec.
33 (2) and 19 (2) of the complaint to determine which court has
jurisdiction over the action. Absent any allegation in the complaint of
the assessed value of the property, it cannot be determined whether
51
the RTC or the MTC has original and exclusive jurisdiction over the ownership.
petitioner's action, because the courts cannot take judicial notice
of the assessed or market value of the land.
Jurisdiction is based on the value of the of the property applying
3.The period to file the action: 20K and 50K rule

Forcible entry and Unlawful detainer: Within One (1) year from
unlawful deprivation or entry or unlawful withholding of possession or 1.2. Determining whether it is accion interdictal or publiciana-
last demand to vacate.
There are instances when it is difficult to determine whether it is
Accion publiciana may be filed at any time after 1 year from unlawful accion interdictal or accion publician.
dispossession or unlawful withholding of possession and before
ownership or other real rights of the real property involved are lost by
acquisitive prescription. Normally, 10 years. If in bad faith, 30 years. Examples:

Note however that in SARONA vs. VILLEGAS G.R. No. L- LIM KIEH TONG VS. CA.
22984, March 27, 1968 the SC ruled that the rule on
acquisitive prescription applies only to untitled March 18, 1991
property. If the property is titled under the Torrens
Title, you can file the case even after 100 years because
FACTS: Reginaldo Lim and his family resided in
prescription will not work against a Torrens Title.
room 301 of the building of Lim Kieh Tong, Inc. until
they transferred to their new residence in Quezon City.
4.As to the grounds: However despite the fact that they moved to Quezon
City, Reginaldo Lim retained possession of the room to
Forcible Entry and Unlawful Detainer: Only on ground of (FISTS) keep his important belongings. So he did not give up
mentioned for forcible entry in Section 1 or unlawful withholding of the lease of that room 301. The building has only one
possession but within one year from date of dispossession reckoned common main door through which all the occupants of
from ouster, discovery or date of demand; while for Accion Publiciana the various rooms can get in.
the ground may be any other cause of unlawful dispossession other
than FISTS or even FISTS under Section 1 but after the lapse of one Accordingly, all occupants including Reginaldo Lim
year. were given a key to the main door lock by Lim Kieh
Tong Inc.
5.As to execution:
However, when Reginaldo Lim wanted to go inside
In Unlawful Detainer or Forcible Entry the judgment is immediately his room on September 30 to get some things which he
executory and does not require good reason pursuant to Rule 70, needed, he found out that the key he possessed was
Section 19; while immediate execution in Accion Publiciana is no longer compatible with the lock.
discretionary or refers only to execution pending appeal under Rule 39,
Sec. 2 and requires good reason. He requested Lim Kieh Tong to provide him with
the appropriate key but his request was denied. So
Reginaldo Lim filed a complaint against Lim Kieh Tong
ACCION PUBLICIANA ACCION
alleging those grounds. And he alleges that he has a
REINVINDICATORIA
clear and unmistakable right to the use of the room and
A plenary ordinary civil action for An action for the recovery
he prays that Lim Kieh Tong be commanded to provide
the recovery of the better right of of the exercise of
him the appropriate key to the lock of the main
possession (juridical possession), ownership, particularly
building. That was the complaint.
must be filed after the expiration recovery of possession as
of one year from the accrual of an attribute or incident of
the cause of action or from the ownership; ISSUE: What kind of a complaint is that? Is that a
unlawful withholding of complaint for Forcible entry or a complaint for specific
possession of the realty. In other performance wherein jurisdiction is vested with the
words, if at the time of the filing RTC?
of the complaint more than one
year had elapsed since defendant HELD: The SC said from the facts of the case it
had turned plaintiff out of appears that Lim Kieh Tong Inc. through stealth
possession or defendant‘s deprived Reginaldo Lim of the possession of the rented
possession had become illegal, room. Therefore, the suit is one for FE under Rule 70 of
the action will be not one of the Rules of Court.
forcible entry or unlawful detainer
but an accion publiciana.
TIME BROADCASTING NETWORK VS. CA

The basis of the recovery of
possession is the plaintiff‘s real
right of possession or jus
possessionis, which is the right to
the possession of the real
property independent of
The basis for the recovery
of possession is ownership
itself.
June 19, 1997 (274 SCRA 366)
FACTS: Petitioner Times Broadcasting Network
leased a portion of Hotel Arocha in Ozamis City owned
by private respondent Filomeno Arocha. The subject of
52
 the lease consisted of two rooms with a total area of 7
meters by 11 meters, a terrace with an area of 25
square meters, and the rooftop of the four-storey
building. The premises were to be used by petitioner to
operate a radio station.
In June 1993, petitioner began installing its
equipment and apparatus in the leased premises.
Petitioner, however, installed its radio antenna on the
third floor rooftop of the hotel, instead of the fourth
floor rooftop as stipulated in the contract.
Private respondent Arocha filed before the
Municipal Trial Court in Cities (MTCC) of Dipolog,
Branch 1 a verified complaint for ejectment with
payment of back rentals and damages against
petitioner
Petitioner moved to dismiss the complaint. It
argued that the MTCC has no jurisdiction over the case
because private respondent's cause of action is actually
not for ejectment but for specific performance.
Petitioner contended that private respondent's action
was not simply for recovery of possession of the
premises but was for compliance with the terms of the
lease contract. Hence, petitioner asserted that it was
the Regional Trial Court (RTC), not the MTCC, which
had jurisdiction over the case.
ISSUE: Whether the complaint filed by private
respondent is one for ejectment or specific
performance.
HELD: The nature of the action and the
jurisdiction of courts are determined by the allegations
in the complaint. The aforequoted complaint shows that
the private respondent is the owner of the Hotel Arocha
building in Ozamis City and that the petitioner, through
stealth and strategy, and without any authority from
the owner, used the third floor rooftop of the building
as mounting pad of its radio antenna.
In the case at bar, private respondent was
unlawfully deprived of the possession of the third floor
rooftop of Hotel Arocha when petitioner used it as
mounting pad for its antenna. Private respondent
sought to recover physical possession thereof through
an action for ejectment filed before the MTCC. Hence,
the case properly falls within the jurisdiction of the
MTCC.
3. DEFINITION of Forcible entry and unlawful detainer-
Forcible entry defined-
Forcible Entry consists in depriving a person of the physical
possession of land or building for a period of time not exceeding one
(1) year by force, intimidation, strategy, threat, or stealth (FISTS).
(Tenerio vs. Gamboa, 81 Phil. 55)
So in forcible entry:
1. what is deprived of the plaintiff is phycial possession;
2. there is a duration of the dispossession - one year, so
plaintiff must recover possession within one year: and
3. the entry of the defendant over another’s land or building
should be through any of the five means, namely: force,
intimidation, strategy, threat, or stealth (FISTS), thus illegal
from the beginning.
Unlawful Detainer defined
Unlawful Detainer consists in the unlawful withholding by a person
from another, for not more than one (1) year, of the possession
of any land or building after the expiration or termination of the
right to hold such possession by virtue of a contract, express
or implied. (Torres vs. Ocampo, 80 Phil. 36)
Example:
You want to eject your lessee from your apartment or house. Actually,
the usual grounds are (1) non-payment of rentals or (2)
violation of any conditions of the lease contract, even if he has
paid, or (3) expiration of the lease contract, even if he has
faithfully paid and complied with the other conditions.
3.1. Definition of terms used in the definition-
a. The word “vacate” is not a talismanic word that must be employed
in all notices, as long as there are other terms definitively
implying that the tenant should vacate (Golden Gate Realty Corp.
v. Intermediate Appellate Court, G.R. No. 74289, July 31, 1987, 152
SCRA 684).
However, this doctrine is not applicable if there is no
statement that is an unequivocal or even an implied demand
on the defendant to vacate the leased premises (La Campana
Food Products, Inc. v. Court of Appeals, G.R. No. 88246, June 4, 1993,
223 SCRA 151).
b. The word "possession" means nothing more than actual
physical possession, not legal possession, in the sense
contemplated in civil law.
The only issue in such cases is who is entitled to the physical
or material possession of the property involved, independently
of any claim of ownership set forth by any of the party-
litigants (Salandanan v. Spouses Mendez, G.R. No. 160280, March
13, 2009, 581 SCRA 182).
c. The word “strategy” could only mean, for purposes of Section 1,
Rule 70 of the Revised Rules of Court, any machination or artifice
designed to withhold from another possession of real property
(Sumulong v. Court of Appeals, G.R. No. 108817, May 10, 1994, 232
SCRA 372).
d. “Stealth” is any secret, sly or clandestine act to avoid
discovery and to gain entrance into or remain within residence
of another without permission (Black’s Law Dictionary (5th ed.,
1979), p. 1267, cited in Sumulong v. Court of Appeals, G.R. No.
108817, May 10, 1994, 232 SCRA 372).
e. In order to constitute the use of “force,” as contemplated in
Section 1 of Rule 70, the trespasser does not have to institute a state
of war. Nor is it even necesary that he should use violence against the
persons of the party in possession. The act of going into a
property and excluding the lawful possessor therefrom
necessarily implies the exertion of force over the property,
and this is all that is necessary (Wong v. Carpio, G.R. No. 50264,
October 21, 1991, 203 SCRA 118; Drilon v. Gaurana, G.R. No. 35482,
April 30, 1987, 149 SCRA 342).
53
4. Issue to be resolved:
The issue to be resolved in accion interdictal is merely physical
possession, not ownership; not right of possession but physical
possession.
In ejectment cases, possession means nothing more than actual
physical possession, not legal possession in the sense contemplated in
civil law (Anatazo v. Doblada, 611 SCRA 586, 592, Februrary 4, 2010).
In Heirs of Isip v. Quintos, GR No. 172008, August 1, 2012, the Court
explains the concept of actual possession, thus:
“Actual possession consists in the manifestation of acts of dominion
over it of such a nature as those a party would naturally exercise over
his own property. It is not necessary that the owner of a parcel of land
should himself occupy the property as someone in his name may
perform the act. In other words, the owner of real estate has
possession, either when he himself is physically in occupation in
property, or when another person who recognizes his rights as owner
is in such occupancy. This declaration is in conformity with Art. 524 of
the Civil Code providing that possession may be exercised in one’s own
name or in the name of another.”
Possession in the eyes of the law, does not mean that a man has to
have his feet on every square meter of the ground before he is
deemed to be in possession (De la Rosa v. Carlos, 414 SCRA 226,
235).
Where the basic issue is not possession but interpretation,
enforcement and/or rescission of the contract, the same is no longer
an ejectment suit. Hence, it is beyond the jurisdiction of the MTC to
hear and determine (Villena v. Chavez, 415 SCRA 33, 41).
Since the issue in ejectment cases is mere possession, it is worth
remembering that the decision in an ejectment case does not bind the
title to or ownership of the land or building. It does not also bar an
action between the same parties respecting title to the
property (Balanon-Anicete v. Balanon, 402 SCRA 514, 518).
Where the action seeks to recover ownership from the defendant
including the possession of the property, the action is no longer
interdictal but an accion reivindicatoria xxx (Serdoncillo v. Benolirao,
297 SCRA 448, 459).
4.1. Issue in forcible entry:
Was the plaintiff in prior physical possession of property in
litigation and was he deprived of his possession unlawfully
through FISTS?
Q: Can a squatter occupying a property file a forcible entry case
against another squatter who forcibly ejected him, when technically
both of them have no rights?
A: Even if one is not the owner, he can file a case because
according to the SC, the purpose of the action, this is regardless of the
actual condition of the title to the property, is that the party in
peaceable and quiet possession of the land or building shall not be
turned out by strong hands of violence or terror. The object of the
law is to prevent breaches of peace and criminal disorder
which will ensue if there were no such remedy. (Villaflor vs.
Reyes, January 30, 1968)
4.2. Issue in unlawful detainer:
Whether or not the lawful possession of the defendant has
already become unlawful.
Hence, whether or not the plaintiff was in prior physical possession is
not an issue.
In unalwful detainer cases, the issue to be resolved is the right to
physical or material possession of the subject real property
independent of any claim of ownership by any of the parties involved
(Mendoza v. CA, 452 SCRA 117, 121).
5. PURPOSE
Forcible entry and unlawful detainer cases are summary proceedings
designed to provide an expeditious means of protecting actual
possession or right to possession of property (Salandanan v.
Spouses Mendez, supra note 299).
6.JURISDICTION in accion interdictal-
Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit
Trial Courts have exclusive original jurisdiction over cases of forcible
entry and unlawful detainer, regardless of the value of the property
involved and irrespective of the amount of damages or unpaid rentals
sought to be recovered (1991 Revised Rule on Summary Procedure,
Rule I, Sec. 1-A (1).
It is a real action which involves possession of real property. It is the
only real action exclusively triable by the Municipal Trial Court.
The other one is accion publiciana provided the assessed value of the
property is P20,000.00 or less.
So accion publiciana could be MTC or RTC, but it is mostly RTC
because the assessed value of real properties are usually more than
P20,000.00.
But in forcible entry and unlawful detainer cases, the assessed value is
irrelevant in order to determine jurisdiction.
7. REQUISITES
7.1. Who may bring action (RULES OF COURT, Rule 70, Sec. 1).
FORCIBLE ENTRY
Anyone deprived of the possession of any land or building by force,
intimidation, threat, strategy, or stealth
UNLAWFUL DETAINER
a. Any landlord, vendor, vendee, or other person from whom the
possession of any land or building is unlawfully withheld after the
expiration or termination of the right to hold possession by virtue of
any contract, express or implied; or
b. the legal representatives or assigns of any such landlord, vendor,
vendee, or any other person.
7.2. The nature of the action is determined by the allegation
of the complaint and the character of the relief sought (Abrin v.
Campos, G.R. No. 52740, November 12, 1991, 203 SCRA 420).
54

7.3. DISTINCTIONS BETWEEN FORCIBLE ENTRY AND
UNLAWFUL DETAINER:
FORCIBLE ENTRY
1.Ground
The deprivation of physical possession of land and building is effected
through force, intimidation, strategy, threat, or stealth.
2.Nature of defendant’s possession
The possession of the defendant is illegal from the beginning, and that
the issue is which party has prior de facto possession.
3.Necessity of Demand to Vacate
Does not require a previous demand for the defendant to vacate the
premises.
4.Proof of prior possession
The plaintiff must prove that he was in prior physical possession of the
premises until he was deprived thereof by the defendant.
5.Reckoning date for one-year period for filing
General Rule: The one-year period is generally counted from the
date of actual entry on the land (Elane v. Court of Appeals, G.R. No.
80638, April 26, 1989, 172 SCRA 822).
Exception: The one-year period in cases of entry by stealth is
counted from the demand to vacate upon learning of the entry
by stealth (Nunez v. SLTEAS Phoenix Solutions, Inc., 618 SCRA 134,
142, April 12, 2010).
6. In actions for forcible entry, two allegations are mandatory
for the MTC to acquire jurisdiction:
1) plaintiff must allege his prior physical possession of the
property; and
2) he must also allege that he was deprived of his possession
by force, intimidation, strategy, threat or stealth.
If the alleged dispossession did not occur by any of these
means, the proper recourse is to file not an action for forcible
entry but a plenary action to recover possession or accion
publiciana.
Q: In one case, the complaint for forcible entry alleges “that defendant
unlawfully turned the plaintiff out of the possession of the property in
question.” Is that an allegation of prior physical possession? Is the
complaint sufficient?
A: YES. While it is true that there was no express allegation of
prior physical possession by the plaintiff, this fact can be inferred from
the words "unlawfully turned the plaintiff out of possession" for how
can a person turn someone out of possession if the latter was not in
the physical possession of the property. The allegation of prior
physical possession by the plaintiff need not be express. It is
enough that said allegation is inferable from the other
allegations in the complaint. (Maddammu vs. Mun. Court of
Manila, 74 Phil. 230)
Q: On the other hand, suppose the complaint for FE alleged “that
before plaintiff could take possession of and occupy the said house,
defendant surreptitiously occupy the same without the knowledge and
consent of the plaintiff.” Is the complaint sufficient?
A: NO, it is not sufficient. It is clear from the allegation that the
plaintiff have not had prior physical possession because “before
plaintiff could take possession of…” (Maddammu vs. Mun. Court of
Manila, 74 Phil. 230)
Q: In another case of FE, the complaint alleged that the plaintiff
has been “deprived” of the land in question by the defendant. Is it a
sufficient complaint for FE?
A: NO. There was no allegation that the deprivation of possession
was illegal though FISTS. Thus, you must alleged that you were
deprived through FISTS. (Gumiran vs. Gumiran, 21 Phil. 174)
UNLAWFUL DETAINER
1.Ground
The unlawful withholding of possession is made after the expiration or
termination of the right to hold possession under any contract, express
or implied.
2.Nature of defendant’s possession
Possession of the defendant is originally legal but became illegal due to
the expiration or termination of the right to possess (Go, Jr. v. Court of
Appeals, G.R. No. 142276, August 14, 2001, 422 SCRA 101).
3.Necessity of Demand to Vacate
The plaintiff must first make such demand, which is jurisdictional in
nature (Medel v. Militante, 41 Phil. 44 [1921]).
4.Proof of prior possession
The plaintiff need not have been in prior physical possession
(Maddammu v. Sanchez, et al., 74 Phil. 230 [1943]).
5.Reckoning date for one-year period for filing
The one-year period is counted from the date of last demand to
vacate (Sarona, et al. v. Carillo, G.R. No. 22984, March 27, 1968, 22
SCRA 1256) or from the expiration of the contract of lease.
6. Important allegation in Unlawful Detainer cases-
Of course, you as plaintiff must show that the defendant was in lawful
possession of the property, then, there must be an allegation or
allegations showing that the defendant is already unlawfully
55
withholding possession from you, plaintiff by stating that you have
made a demand to vacate which was refused. (Co Tiamco vs. Diaz, 75
Phil. 672)
Like in a lease, you admit that you leased your building to him, and
then he could not pay rentals; you asked him to leave; you gave him
until the end of the month to vacate; he did not vacate. Therefore
from that moment, he is now unlawfully withholding possession of the
land or building.
Take note in Section 2, the basic distinction between FE and UD is that
a demand to vacate is not required in FE. But a demand to vacate by
the plaintiff and the defendant refuses to vacate, is an essential
requisite in UD. That is where you determine that the defendant is
unlawfully withholding.
The possession of the defendant cannot be unlawful until you asked
him to leave and he refuses to leave. Therefore, if there is no demand
to vacate, the case will be dismissed because the MTC has no
jurisdiction. So that is a jurisdictional requirement. Why? Because if
there is no demand to vacate, according to the SC, your action actually
is accion publiciana which is normally cognizable by the RTC.
That is why Section 2 says “Lessor to proceed against lessee only after
demand”. Obviously, Section 2 applies only to UD.
When defendant occupies premises by mere tolerance-
While possession by tolerance is lawful, such possession
becomes illegal upon demand to vacate by the owner and the
possessor by tolerance refuses to comply with such demand. A
person who occupies the land of another at the latter’s tolerance or
permission, without any contract between them, is necessarily bound
by an implied promise that he will vacate upon demand, failing
which a summary action for ejectment is the proper remedy
against him (Monasterio-Pe v. Tong, 646 SCRA 161, 172, March 23,
2011).
As explained in Sarona v. Villegas, 22 SCRA 1257, cited in Munoz v.
CA, 214 SCRA 216, 224, tolerance must be present right from the
start of the possession sought to be recovered to categorize a
cause of action as one for unlawful detainer.
In said Munoz v. CA case, the Court said that the rule as to tolerance
does not hold true where there was forcible entry at the start.
Thus, in Jose v. Alfuerto, GR No. 169380, Nove. 26, 2012, the Court
ruled that tolerance or permission must have been present at the
beginning of the possession. Hence, if the possession was unlawful
from the start, an action for unlawful detainer would not be the proper
remedy.
Q: What is the demand in a lease contract?
1. Demand to pay or comply with the conditions of the lease contract;
and
2. Demand to vacate-
Suppose I will write you a letter. “This is to remind you Mr. Lessee that
you have not been paying your rentals for the past 3 months. I am
hereby giving you exactly one week to pay all your rentals.” He did
not pay. I will file a case after one week. But where is you demand to
vacate? Your demand is only to pay rentals. You should say “I am
giving you one week to pay your back rentals and to vacate!”. “and to
vacate” is vital, because if it is only failure to pay rentals, there is no
demand to vacate; your claim is for a sum of money.
Now, we will go to the issue of demand…
A: Here are some decisions:
LESACA vs. CUEVAS 125 S 384
HELD: An alternative demand to pay rentals
or to vacate is legally sufficient for the purpose
of ejectment suit. A more definite and unconditional
demand to vacate is not necessary where the lessee
has no legal right to remain in the premises for his
refusal to pay the increased rentals.
GOLDEN GATE vs. IAC 152 SCRA 684
FACTS: The lessee was in arrears for P18,000 so
he received a letter from the lessor. "I am giving you 5
days to pay back rentals, otherwise I will file an
ejectment case against you." Of course after the
deadline, he did not pay. So the lessor filed a case for
UD.
According to the defendant, there is no demand to
vacate; you are definite to file a case against me but
where is the demand to vacate?
HELD: The letter is sufficient. And the SC said,
“When the private respondents defaulted in the
payment of rents in the amount of P18,000.00, they
lost their rights to remain in the premises. Hence, when
the petitioner demanded payment of the P18,000.00
due and unpaid rentals or a case for ejectment would
be filed against them, the owner was giving strong
notice that "you either pay your unpaid rentals or I will
file a court case to have you thrown out of my
property." The word "vacate" is not a talismanic word
that must be employed in all notices. The alternatives
in this case are clear cut. The tenants must pay rentals
which were fixed and which became payable in the
past, failing which they must move out. There can be
no other interpretation of the notice given to them.
Hence when the petitioner demanded that either he
pays P18,000.00 in five days or a case for ejectment
would be filed against him, he was placed on notice to
move out if he does not pay. There was, in effect, a
notice or demand to vacate.”
Compare that with the case of
LA CAMPANA FOOD PRODUCTS vs. CA 233 SCRA 151
Here, the lessee has not also been paying his
rentals and water bills. So the lessor wrote a letter to
the lessee, “Warning: Upon your failure to pay your
unpaid rentals and unpaid water bills, I will forward
this matter to our legal counsel for proper action.” Is
there a sufficient demand?
56
 HELD: No. We do not see in this statement an
unequivocal or even an implied demand on the lessee
to vacate from the premises. The doctrine in the
Golden Gate case is therefore not applicable.
PEÑAS, SR. vs. CA 233 SCRA 704
“I am giving you until next month to pay OR to
vacate.”
for ejectment is not non-payment of rentals or violation of conditions
of the lease contract. Meaning, the defendant should be informed
straight ahead that he could not extend his stay anymore.
That is what Section 2 seems to convey, “…such action by the
lessor shall be commenced only after demand to pay or comply with
the conditions of the lease and to vacate…”
8. SPECIFIC FEATURES

HELD: No proper demand to vacate. In other 8.1. Covered by the Revised Rule on Summary Procedure
words, it should be “pay the rentals AND to (RULES OF COURT, Rule 70, Sec. 3).
vacate!”
8.2. Pleadings
BANDOY vs. CA 175 SCRA 459
a. All pleadings shall be verified (Id., Sec 4; 1991 Revised Rule on
FACTS: Prior to filing of ejectment case against Summary Procedure, Rule II, Sec. 3-B.
the defendant, the plaintiff brought the matter to the
Barangay Captain, but to no avail. A certification to file
b. The only pleadings allowed are the complaint, compulsory
a case was issued by the Barangay Captain. So the
counterclaim, and cross-claim pleaded in the answer (Id.; Id.,
plaintiff filed a complaint. The complaint for UD
Sec. 3-A).
however, contained no allegation that there was a prior
demand to vacate.
c. The following petitions, motions, or pleadings shall be
prohibited:
“Motion to dismiss,” argued the defendant, “there
was no demand to vacate.
i. Motion to dismiss the complaint, except on the ground of lack of
jurisdiction over the subject matter, or failure to comply with Sec. 12;
According to the plaintiff, “My golly! We have
*Cases requiring referral to conciliation, where there is no showing of
already talked with the Barangay. We already agreed
compliance with such requirement, shall be dismissed without
on that! So the plaintiff contended that no further
prejudice, and may be revived only after that requirement has been
demand to vacate is needed after a certification to file a
complied with (Id., Sec. 12; Id., Sec. 18)
case was issued by the Barangay Captain for the
reason that the case was already certified to court for
action. Any further demand to vacate is merely ii. Motion for a bill of particulars;
repetitive and unnecessary.
iii. Motion for new trial, or for reconsideration of a judgment, or for
HELD: Plaintiff is wrong. The certification of the reopening of trial;
Barangay Captain is not conclusive as to the jurisdiction
of the Court to which the case was subsequently filed. iv. Petition for relief from judgment;
What was certified by the Baranggay Captain was that
no settlement was reached by the parties in the
Barangay level. It did not certify that all the requisites v. Motion for extension of time to file pleadings, affidavits, or any other
for the filing of the UD case was complied with. paper;
Therefore the case is dismissed.
vi. Memoranda;
So demand to vacate is jurisdictional. So to play it safe, say: “I am
requesting you to pay your rentals AND TO VACATE!” vii. Petition for certiorari, mandamus, or prohibition against any
interlocutory order issued by the court;
Q: Is there a possibility that an UD case will be filed without a
prior demand to vacate? viii.Motion to declare the defendant in default;

A: It would seem so. Demand to vacate, if you observed, is ix. Dilatory motions for postponement;
essential if you ground for UD is non-payment of rentals or failure to
comply the condition of the lease.
x. Reply;

Q: Now, suppose the ground for ejectment is expiration of the

lease contract. Example: “Mr. Lessee, this is to remind you that the xi. Third-party complaints;
lease contract is going to expire at the end of this month. I will not
renew your contract so you better look for another place to move.” xii. Interventions (Id., Sec. 13; Id., Sec. 19).
Well, that is just a reminder. There is no demand to vacate. At the
end of the month, the lessee did not vacate. Is an unlawful detainer
case proper under such circumstance? 8.3. Procedure (follows the rules on summary procedure)

A: There are some decided cases where the SC said that the a. Filing of complaint.
demand to vacate may be dispensed with because anyway, the ground

57
b. Action of the court.
After the court has examined the allegations in the complaint and
supporting evidence attached to the same, the court may:
i. dismiss the case outright based on the grounds for dismissal
for ordinary civil actions apparent in the complaint; (Id., Sec. 5;
Id., Sec. 4). or
ii. issue summons, if no ground for dismissal is found. (Id.)
Preliminary injunction. The court may grant preliminary injunction
in accordance with Rule 58 to prevent the defendant from committing
further acts of dispossession against the plaintiff. A possessor
deprived of his possession may move for a preliminary
mandatory injunction within 5 days to restore him in his
possession of the property. The court then shall decide the motion
within 30 days from the filing thereof (Id., Sec. 15).
c. Filing of answer. The defendant shall file his answer and serve a
copy of it to the plaintiff within 10 days from service of summons (Id.,
Sec. 6; Id., Sec. 5).
* Failure of the defendant to answer within the period
provided above shall give power to the court, motu proprio or
on motion, to render judgment as may be warranted by the
facts alleged in the complaint and limited to what is prayed
for therein (Id., Sec. 7; Id., Sec. 6) No declaration of default is
necessary.
* Affirmative and negative defenses not pleaded in the answer
are deemed waived.
Exception: lack of jurisdiction over the subject matter.
* Cross-claims and compulsory counterclaims not pleaded in
the answer shall be barred.
*Answers to the counterclaims or cross-claims shall be served and filed
within 10 days from service of the answer in which they are pleaded
(Id., Sec. 6; Id., Sec. 5).
Provisional ruling on the issue of ownership-
*When the defendant raises the defense of ownership in his pleadings,
and the question of possession cannot be resolved without deciding
the issue of ownership, the issue of ownership shall be resolved only
to determine the issue of possession (RULES OF COURT, Rule 70, Sec.
16).
When preliminary hearing related to a defense is proper prior
to dismissal-
*Where there is a defense of tenancy, there must be a
preliminary hearing on the question of tenancy relations
(Bayog v. Natino, G.R. No. 118691, July 5, 1996, 258 SCRA
378). This is an exception to the rule that the nature of an action is
determined by the allegations in the complaint and the main relief
prayed for. Or the rule that when the defendant files a motion to
dismiss on the ground of lack of juriscdiction over the subject matter
he/she hypothetically admits the allegations in the complaint thus,
there is no need to conduct a hearing on the defenses.
If there is a prima facie showing of tenancy, the court shall
dismiss the case for lack of jurisdiction (jurisdiction belongs
to the DARAB). (Baranda v. Padios, G.R. No. 61371, October 21,
1987, 154 SCRA 720).
d. Preliminary conference (RULES OF COURT, Rule 70, Sec. 8;
1991 Revised Rule on Summary Procedure, Rule II, Sec. 7).
Not later than 30 days after the last answer is filed, a preliminary
conference shall be held.
* Rule 18 (Pre-trial) is applicable.
* Effects of failure to appear during the pre-trial:
WHEN THE PLAINTIFF DOES NOT APPEAR
It shall be a cause for the dismissal of his complaint.
All cross-claims shall be dismissed.
The defendant who appears shall be entitled to the judgment
on his counterclaim.
WHEN THE DEFENDANT DOES NOT APPEAR
The plaintiff shall be entitled to judgment.
(This is true when there is only one defendant or when all of
the defendants did not appear.)
e. The court shall issue an Order stating matters taken up during
the preliminary conference within 5 days after the termination of
the same.
f. Contents of the Order:
i. Whether the parties have arrived at an amicable settlement, and if
so, the terms thereof;
ii. The stipulations or admissions entered into by the parties;
iii. Whether, on the basis of the pleadings and the stipulations and
admissions made by the parties, judgment may be rendered without
the need of further proceedings, in which event, the judgment shall be
rendered within 30 days from issuance of the Order;
iv. A clear specification of material facts which remain controverted;
v. Such other matters intended to expedite the disposition of the case.
(Id., Sec. 9; Id., Sec. 8).
g. Submission of affidavits and position paper
The parties shall submit, within 10 days from receipt of the Order
affidavits of their witnesses and other evidence on the factual issues
defined in the Order, together with their position papers,
setting forth the law and the facts relied upon by them (Id., Sec. 10;
Id., Sec. 9).
58
 * Affidavits required to be submitted shall state only facts of direct
personal knowledge of the affiants which are admissible in evidence,
and shall show their competence to testify on the matters stated
therein.
*Violation of this requirement may subject the party or the counsel
who submits the same to disciplinary action and shall be cause to
expunge the inadmissible affidavit or portion thereof from the records
(Id., Sec. 14; 1991 Id., Sec. 20).
h. Judgment
* General Rule:
The court shall render judgment within 30 days from the date of
its receipt of the affidavits and position papers, OR the
expiration of the period for filing the same (Id., Sec. 11; Id.,
Sec. 10).
Exception:
Should the court find it necessary to clarify certain material
facts, it may, during the 30-day period, issue an Order specifying the
matters to be clarified and require the parties to submit affidavits or
other evidence on the said matters within 10 days from receipt of said
Order.
Judgment shall be rendered within 15 days after receipt of the
last affidavit or the expiration of the period for filing the
same.(Id.)
The court shall not resort to the foregoing procedure just to gain time
for the rendition of the judgment.(Id.)
Judgment in favor of the plaintiff:
* If the trial court finds that the allegations of the complaint are true,
it shall render judgment in favor of the plaintiff for the:
i. restitution of the premises;
ii. the payment of the just sum due as arrears of rent
(unlawful detainer) or reasonable compensation for the use
and occupation of the premises (Forcible entry);
iii. attorney’s fees and costs (RULES OF COURT, Rule 70, Sec.
17).
Damages recoverable are limited only to:
1. attorney's fees;
2. costs; and
3. unpaid rentals in unlawful detainer; or
4. reasonable compensation in forcible entry.(REYES vs.
CA 38 SCRA 138; BAEN vs. CA, 125 SCRA 634)
Q: Suppose you occupy my property, so I file FE. I will pray for
ejectment, payment for reasonable compensation for the use of my
property, attorney’s fees, costs, damages i.e. moral and exemplary,
unrealized profits (somebody wanted to lease my property but cannot
because it is occupied). Or, if UD, I will eject you from my building,
the house needs repairs particularly the walls, roof, floor, windows,
doors, etc. So I will pay for damages for the deterioration you caused
to my building.
Can the court award these damages i.e. moral, exemplary, or
unrealized profits, or for the value of the destroyed portions of my
house or building?
A: NO. The only thing you can recover are unpaid rentals, or in case of
FE, reasonable compensation, attorney's fees and costs.
Q: How about my claims for damages and unrealized profits?
A: If you want to recover, you file another case. Damages are
not recoverable in FE and UD except such damages as attorney’s fees,
costs, unpaid rentals, or reasonable compensation. All other damages
are not recoverable. File another case.
Judgment for the defendant:
 If the court finds that the allegations of the plaintiffs are not
true, it shall render judgment for the defendant to recover
his costs.( Id.)
 If the allegations are not true, then the case will be
dismissed and if there is a counterclaim, the same
can be awarded.
Appeal
The judgment or final order shall be appealable to the
appropriate Regional Trial Court which shall decide
the same on the basis of the entire record of the
proceedings had in the court of origin and such
memoranda and/or briefs as may be submitted by
the parties or required by the Regional Trial Court.
(7a)
SEC. 18. Judgment conclusive only on possession; not
conclusive in actions involving title or ownership. The judgment
rendered in an action for forcible entry or detainer shall be conclusive
with respect to the possession only and shall in no wise bind the title
or affect the ownership of the land or building. Such judgment shall
not bar an action between the same parties respecting title to the land
or building.
There is no res adjudicata on the issue of ownership. But
there is as to the issue of possession.
However, if you say that the court has the power to rule on the issue
of possession, it also means all other issues incident to the
possession, e.g. has the lease contract expired. Or on the
interpretation of terms and provisions of the contract.
These issues are res adjudicata, except as to ownership. That is why
Section 18 is related to Section 16. When there is an issue raised
in the pleadings as to the ownership, such will be resolved
provisionally or only for the purpose of resolving the issue of
possession. But definitely, there should be another case to be filed to
settle with finality the issue of ownership.
Q: Is it possible that we have two cases against each other? In the
MTC on possession in the FE or UD, in the RTC we are fighting on the
issue of ownership.
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 A: YES. There is no interference.
Q: Suppose I file a case against you for FE or UD. Now you file a
case also in the RTC where you raise the issue that you are the owner.
I'm claiming possession in the MTC and you are claiming ownership in
the RTC. Suppose the person claiming ownership would say, "Alright,
since we are quarrelling on ownership already in the RTC, the MTC
should not try the case of FE or UD. The cases of FE or UD should be
dismissed because the issue of ownership is being litigated in the
RTC.” Is that a correct position?
A: NO. The two can continue. RTC decides on ownership, the
MTC decides on possession. The two are separate issues. If I will file
a case against you for FE or UD, which is actually a summary
proceeding for ejectment, you can easily defeat that by filing a case
against me in the RTC where you raise the issue of ownership,
although your opposition is not serious if the rule was otherwise. You
will then contest the ownership just to kill my case. That would be
improper.
REFUGIA vs. CA, 258 SCRA 347. July 5, 1996
HELD: By virtue of the express mandate set forth
in Section 33, paragraph 2 of the Judiciary Law, which
is also Section 16, inferior courts or first level courts,
i.e. MTC, have the power to resolve the question of
ownership raised as an incident of an ejectment case
where the determination thereof is necessary for a
proper and complete adjudication on the issue of
possession. Any such pronouncements made affecting
ownership is to be regarded merely as provisional.
Hence it will not bar nor prejudice an action
between the same parties involving title to the land.
HILARIO vs. COURT OF APPEALS 260 SCRA 420
HELD: Even where the defendant alleges
ownership or title to the property in his or her answer,
the first level court will not be divested of its
jurisdiction. (It will not be deprived of its role) A
contrary rule will pave the way for the defendant to
trifle with the ejectment suit which is summary in
nature. He could easily defeat the same through the
simple expedient of asserting ownership.
Where Litis pendentia applies and it is the first case filed
which is dismissed-
As a general rule, when there are two cases pending between the two
parties, for the same cause, which should be dismissed? The first or
the second case? Based on priority in time, the second will be
dismissed.
Q: Is there a possibility that it should be the first (which must be
dismissed)?
A: YES. When the first case was filed as an anticipatory suit, on
the theory that the best defense is an offense. You are converting
your defense as a cause of action. That is what happened here.
UNIVERSITY PHYSICIANS SERVICES INC. vs. CA 233 SCRA 86
FACTS: UPSI is a corporation that operates a
school. It bought 2 parcels of land in Manila where an
apartment was constructed. The obvious purpose of
the company is to demolish it. They will put up a
school (building) there or classrooms. However, one
unit of the apartment was occupied by a certain Jocelyn
Formentira. Despite the demand to vacate, Formentira
refused. Hence UPSI commenced the demolition of the
apartment.
When Formentira saw that the apartment was
demolished little by little, what she did was to file a
complaint for damages against UPSI, claiming that the
demolition was unlawful. With it was a prayer for
preliminary injunction and restraining order against
UPSI in the RTC. As main relief, she demanded
that UPSI be permanently enjoined from doing
any act to force out or cause her ejectment from
said apartment unit.
UPSI, in turn, filed a complaint for ejectment
against formentira in the MTC of Manila. So there are 2
pending cases:
1. The first by Formentira i.e. damages with
Preliminary Injunction; and
2. The second was filed by UPSI for
ejectment.
ISSUE: Which of the two cases shall take
precedence over the other? If we follow the rule of
first-come-first-serve, we will conclude that the case
filed by UPSI (the second case) should be dismissed.
HELD: Formentira's action for damages should be
dismissed. It is the RTC case filed ahead that should
be dismissed. Formentira cannot deny that the
complaint for damages taken in its full context was
meant to prevent UPSI from ejecting her. The main
action is damages but with the prayer for injunction, in
effect she is using the case for damages to stop her
ejectment from the apartment. Her complaint for
damages bears unmistakable earmarks that show of its
true nature and character, touching as it does, on her
alleged right to continue possession of the premises.
Though not couched in specific terms, Formentira
is virtually asking for an indefinite extension of the
lease of the disputed premises. Admittedly, while she
claims indemnity for what she believes were wrongful
and illegal acts committed against her by the UPSI, it is
nevertheless indisputable that the pivotal issue
presented by the complaint involves the determination
of her right or the lack of it over the disputed property.
It follows therefore that the damages allegedly suffered
by her is merely an incident to the question of
possession disputed by the parties.
The issue of whether Formentira has the right
should be threshed out in an ejectment suit and not an
action for damages, though the question of possession
is likewise in issue. We cannot simply ignore the fact
that Formentira, after her unjustified refusal to vacate
the premises was aware that an ejectment case against
her was forthcoming.
i. Execution of judgment / need for motion to execute
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General Rule:
If judgment is rendered against a defendant, execution shall issue
immediately (Id., Secs. 19 and 21).
Exception:
Appeal has been duly perfected by the defendant and bond has been
posted.
* Although immediately executory, the judge should not order
immediate execution in his decision (Lu v. Siapno, et al., A.M.
MTJ-99-1199, July 6, 2000, 335 SCRA 181).
There must be notice of the judgment (Dy v. Court of Appeals,
et al., G.R. No. 93756, March 22, 1991, 195 SCRA 585) and a
motion for execution with notice to the adverse party ( Kaw v.
Anunciacion Jr., et al., A.M. No. MTJ-93-811 March 1, 1995,
242 SCRA 1).
Sec. 19. Immediate execution of judgment; how to stay same if
judgment is rendered against the defendant, execution shall issue
immediately upon motion, unless an appeal has been perfected
and the defendant to stay execution files a sufficient supersedeas
bond, approved by the Municipal Trial Court and executed in
favor of the plaintiff to pay the rents, damages, and costs
accruing down to the time of the judgment appealed from, and
unless, during the pendency of the appeal, he deposits with the
appellate court the amount of rent due from time to time under
the contract, if any, as determined by the judgment of the
Municipal Trial Court. In the absence of a contract, he shall
deposit with the Regional Trial Court the reasonable value of the
use and occupation of the premises for the preceding month or
period at the rate determined by the judgment of the lower court
on or before the tenth day of each succeeding month or period.
The supersedeas bond shall be transmitted by the Municipal Trial
Court, with the other papers, to the clerk of the Regional Trial
Court to which the action is appealed.
All amounts so paid to the appellate court shall be deposited with
said court or authorized government depositary bank, and shall
be held there until the final disposition of the appeal, unless the
court, by agreement of the interested parties, or in the absence
of reasonable grounds of opposition to a motion to withdraw, or
for justifiable reasons, shall decree otherwise. Should the
defendant fail to make the payments above prescribed from time
to time during the pendency of the appeal, the appellate court,
upon motion of the plaintiff, and upon proof of such failure, shall
order the execution of the judgment appealed from with respect
to the restoration of possession, but such execution shall not be a
bar to the appeal taking its course until the final disposition
thereof on the merits.
After the case is decided by the Regional Trial Court, any money
paid to the court by the defendant for purposes of the stay of
execution shall be disposed of in accordance with the provisions
of the judgment of the Regional Trial Court. In any case wherein
it appears that the defendant has been deprived of the lawful
possession of land or building pending the appeal by virtue of the
execution of the judgment of the Municipal Trial Court, damages
for such deprivation of possession and restoration of possession
may be allowed the defendant in the judgment of the Regional
Trial Court disposing of the appeal. (8a)
Illustration:
Plaintiff files a complaint for FE or UD. The complaint prays for the
decision to order the defendant to vacate the property. Chances are
rentals are included. After the hearing, the court renders the
judgment: "WHEREFORE. finding the plaintiff to have proven his cause
of action, the same being meritorious, the court hereby (orders the
defendant) to pay all his unpaid rentals, beginning last year, at the
rate of P1,000 a month, until he vacates." Or if FE, "pay P1,000 as
reasonable compensation for the occupation of the property from the
time he entered it to the time he vacates." plus attorney's fees. So
oredered.”
Procedure re execution
As to plaintiff-
If we follow the general rules of civil procedure, the judgement is not
yet final. The defendant has 15 days to appeal. Now under the Rules,
the plaintiff can file a motion to execute after the period to appeal,
when there is no appeal.
That is the rule, although as an exception, the plaintiff can file a
motion for discretionary execution i.e. execution pending appeal,
provided there is a good reason… yun lang. So kung walang good
reason, pasensya. So you have to convince the court that there is a
good reason. Otherwise you stick to the general rule.
Now, under the rule applicable to accion interdictal cases or under
Section 19, tomorrow, I can already file a motion for immediate
execution, because under the Rules, the judgment for UD or FE is
IMMEDIATELY executory.
Q: Does the plaintiff have to cite good reason?
A: No good reason is required. The only reason is – I won. And
according to the SC " it is a ministerial duty of the MTC to order
execution.
We will now go to the side of the defendant. So there is now an
order to eject you. The sheriff will go to you anytime and kick you out.
Is there a way for you to stop him?
Procedure to stay execution of judgment
1. When the defendant perfects his appeal in due time;
2. When the defendant files a sufficient supersedeas bond,
approved by the Municipal Trial Court, (First level courts have residual
jurisdiction over supersedeas bond even if records have been
transmitted to the Regional Trial Court) which the latter shall transmit,
together with the other documents of the case, to the clerk of the
Regional Trial Court where the action is appealed (RULES OF COURT,
Rule 70, Sec. 19); a supersedeas bond is not required when
there is no back rentals adjudged by the court); (Once v.
Gonzales, G.R. No. 44806, March 31, 1977, 76 SCRA 258) and
3.During the pendency of the appeal, if the defendant deposits
with the appellate court the amount of rent due from time to
time under the contract, if any, as determined by the judgment of the
Municipal Trial Court, on or before the tenth (10th) day of each
succeeding month (RULES OF COURT, Rule 70, Sec. 19).
What happens if you failed to deposit monthly?
61
The plaintiff, through his lawyer will now file a motion to execute in
the RTC… to execute the judgment of the MTC for non-compliance
of the requirements to stay executon.
What about the appeal?
It will continue, but in the meantime, you will have to vacate.
The purpose of this law is to prevent the prolonged agony of the
plaintiff.. The squatter or the delinquent lessee can always delay.
These are the counter-measures.
Q: Now, when do you file the supersedeas bond?
A: The SC said, EXECUTE! The supersedeas bond should be
deposited within the 15 days period to appeal. NO EXTENSION is
allowed for the filing of the supersedeas bond.
CHUA vs. COURT OF APPEALS 286 SCRA 437, February 24, 1998
HELD: If the defendant-appellant perfected the
appeal but failed to file a supersedeas bond, immediate
execution of the judgement automatically follows.
Conversely, the filing of the supersedeas bond will not
stay the execution if the appeal is not perfected also.
Necessarily then, the supersedeas bond should be filed
within the period for the perfection of the appeal.
CORDOVA vs. GABAYLEN 249 SCRA 172, October 10, 1995
HELD: While it is true therefore that defendant
deposited the amount which approximates the
monetary judgment for unpaid rentals, since the same
was filed late, it could not qualify as a supersedeas
bond. What is considered material for the
purpose of the stay of execution pending appeal
under Rule 70 is not the fact of payment but
more importantly, the timeliness of the filing of
the supersedeas bond. Execution could not be
legally stayed by reason of the admittedly belated filing
of the aforequoted supersedeas bond.
So everything within 15 days in order for the execution to not
proceed. Take note of that.
The monthly deposit of rentals or reasonable compensation
pending appeal should be made even if the appellant is the
plaintiff not the defendant.
CITY OF MANILA vs. CA 149 SCRA 150
FACTS: In a case involving the premises of an
underpass in the Quiapo district, which is owned by the
City of Manila, below are stalls which the City is leasing.
The stall owners were paying rentals per month. Manila
increased the rental, but the stall owners refused to
pay.
The City filed UD. The old city court of Manila
rendered a decision upon declaring that the City can
increase the rental and fixed the rate different from
what the city intended. The stall owners agreed. It is
the City that is aggrieved, and it appealed. It appealed
on that issue on whether the court was authorized to
fix its own rate as against what the lessor is setting. So
the city appealed. While when the appeal was going
on, these defendants did not deposit in the clerk of
court the increased monthly rental. So that City moved
to execute the judgement.
HELD: The SC said that the rule that immediate
execution of judgement should be applied is true not
only when it is the defendant appealing but also when
it is the plaintiff appealing.
“We rule that Sec. 8 of Rule 70 (referring to the
1964 Rules) can apply even if it is the lessor who
appeals in the sense that in such a case, if the lessee
desires to prevent execution pending appeal, he (the
lessee) must still file the supersedeas bond and deposit
in court the accruing rentals. Our doctrine in CRUZ, ET
AL. vs. FERNANDO JUGO, ET AL. is reversed insofar as
it conflicts with the present case. The rationale for Our
ruling is simple: why should the lessee continue
occupying the premises without filing the supersedeas
bond and making the necessary deposit for ensuing
rentals (particularly when, by his failure to appeal, the
lessee does not question said accrued and incoming
rents)?”
HOW TO STAY THE IMMEDIATE EXECUTION OF JUDGMENT
Defendant must take the following steps to stay the execution of the
judgment:
1) Perfect an appeal;
2) File a supersedeas bond to pay for the rents, damages and
costs accruing down to the time of the judgment appealed
from; and
3) Deposit periodically with the RTC, during the pendency of
the appeal, the adjudged amount of rent due under the
contract or if there be no contract, the reasonable value of
the use and occupation of the premises.
Exceptions to the rule:
1) Where delay in the deposit is due to fraud, accident,
mistake, or excusable negligence;
2) Where supervening events occur subsequent to the
judgment bringing about a material change in the situation
of the parties which makes execution inequitable; and
3) Where there is no compelling urgency for the execution
because it is not justified by the circumstances.
Q: Under Section 19, where the defendant fails to deposit the
rental or reasonable compensation which judgment is the RTC
executing?
A: The RTC is executing the judgment of the MTC. The
case will still be decided by the RTC on appeal.
Sec. 20. Preliminary mandatory injunction in case of
appeal. Upon motion of the plaintiff, within ten (10) days
from the perfection of the appeal to the Regional Trial Court,
the latter may issue a writ of preliminary mandatory
injunction to restore the plaintiff in possession if the court is
satisfied that the defendant’s appeal is frivolous or dilatory,
or that the appeal of the plaintiff is prima facie meritorious.
(9a)
62

There are two (2) instances when preliminary mandatory
injunction can be availed of under Rule 70.
The first is Section 15, second paragraph i.e. before the case is
decided, immediately upon the filing of the complaint.
Second, in case the defendant will appeal or the plaintiff will
appeal, the plaintiff can still ask for it on appeal. That is on
appeal if the defendant is frivolous or dilatory or the appeal of
the plaintiff is prima facie meritorious.
That is different from failure to file the supersedeas bond
Sec. 21. Immediate execution on appeal to Court of
Appeals or Supreme Court The judgment of the Regional
Trial Court against the defendant shall be immediately
executory, without prejudice to a further appeal that may be
taken therefrom. (10a)
So, the defendant lost in the MTC. He appealed to the RTC, posted a
bond, made monthly deposits for the rentals, so plaintiff cannot file
for execution pending appeal.
But the defendant still lost on appeal to the RTC so he appeals to the
CA under Rule 42, Petition for Review. Here the plaintiff can already
file a motion to execute because the decision of the RTC is
immediately executory.
You can appeal and cause more delay of a case under the summary
procedure.
Where to file the motion to execute-
Under Section 17, the plaintiff can file a motion in the RTC for the
execution of the MTC decision.
Then after the RTC decided to affirm the decision of the MTC, so you
will also file another motion for execution under Section 21.
Q: Where will you file your motion to execute under Section 21?
A: MTC or RTC.
Q: What are you actually executing?
A: The decision of the RTC or the MTC as affirmed by the RTC. (City of
Manila vs. CA, 204 SCRA; SY vs. Romero, 214 SCRA; Salientes vs. IAC,
246 SCRA 150 [1995]- the latest.)
What you are going to execute is the original decision of the MTC, so
the records are brought back there and you file your motion to execute
in the MTC.
k. Rule on summary procedure applicable only in MTC.
The Rule on Summary Procedure applies only to cases filed
before the Metropolitan Trial Courts and Municipal Trial
Courts, pursuant to Section 36 of B.P. Blg. 129. Summary procedure
has no application before the Regional Trial Courts. Hence, when the
respondent appeals the decision of the Municipal Trial Court to the
Regional Trial Court, the applicable rules are those of the latter court
(Jakihaca v. Aquino, et al., G.R. No. 83982, January 12, 1990 181
SCRA 67).
Thus, while a motion for reconsideration of the judgment of
the Municipal Trial Court is a prohibited pleading under the
Rule on Summary Procedure, a motion for reconsideration
may validly be filed from a decision of the Regional Trial Court
in the exercise of its appellate jurisdiction over decisions of
the inferior courts in ejectment cases (Refugia, et al., v. Court of
Appeals, et al., G.R. No. 118284, July 5, 1996, 258 SCRA 347).
l. The judgment of the Regional Trial Court against the defendant
shall be immediately executory, without prejudice to a further appeal
that may be taken therefrom (RULES OF COURT, Rule 70, Sec. 21).
9. JURISPRUDENCE
9.1. Ejectment suits are not suspended or barred by other
actions involving the sale, ownership and physical possession
of the same property subject of the ejectment suits (Wilmon
Auto Supply Corp. v. Court of Appeals, G.R. No. 97637, April 10, 1992,
208 SCRA 108).
These actions are:
a. Injunction; (Nacorda v. Yatco, G.R. No. 19520, August 12, 1966, 17
SCRA 920).
b. Consignation of rentals; (Lim Si v. Lim, 98 Phil. 868 [1956], citing
Pue, et al. v. Gonzales, 87 Phil. 81 [1950]).
c. Accion publiciana; (Ramirez v. Bleza, et al., G.R. No. 45640, July
30, 1981, 106 SCRA 187).
d. Writ of possession; (Heirs of Guballa, Sr., et al. v. Court of Appeals,
et al., G.R. No. 78223, December 19, 1988, 168 SCRA 518).
e. Quieting of title; (Quimpo v. de la Victoria, G.R. No. 31822, July 31,
1972, 46 SCRA 139).
f. Specific performance with damages (e.g. to compel renewal of a
lease contract); (Commander Realty, Inc. v. Court of Appeals, G.R. No.
77227, November 29, 1988, 168 SCRA 181; Rosales v. Court of First
Instance, G.R. No. 62577, September 21, 1987, 154 SCRA 153; Pardo
de Tavera v. Encarnacion, G.R. Nos. 28170 and 8200, February 17,
1968, 22 SCRA 632; Desamito v. Cuyegkeng. G.R. No. 19173,
December 27, 1966, 18 SCRA 1184).
g. reformation of instrument (e.g. from deed of absolute sale to one
of sale with pacto de retro); (Lozada v. Abragan, G.R. No. 41162,
September 5, 1975, 66 SCRA 600).
h. reconveyance of property or accion reivindicatoria; (Del Rosario v.
Jimenez, G.R. No. 17468, July 31, 1963, 8 SCRA 549).
i. annulment of sale and reconveyance; (Sy v. Court of Appeals, et al.,
G.R. No. 95818, August 2, 1991, 200 SCRA 117).
j. Annulment of sale, title, or document; annulment of deed of sale
with assumption of mortgage and/or to declare the same an equitable
mortgage; annulment of sale with damages (Salinas v. Navarro, et al.,
G.R. No. 50259, November 29, 1983, 126 SCRA 167).
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Exception.
The Court held that proceedings in an ejectment case may be
suspended in whatever stage it may be found, when a petition for
review filed with the Court of Appeals raises substantial issues
meriting serious consideration. The appellant’s putative right
to continued possession of the premises stands to be violated
if the adverse judgment of the Regional Trial Court were to be
fully executed. Hence, the complete execution of the RTC
judgment could be held in abeyance, through a writ of
preliminary injunction, until final resolution of the main
controversy (Benedicto v. Court of Appeals, G.R. No. 157604,
October 19, 2005, 473 SCRA 363).
9.2. Who may be parties
a. An action of forcible entry and detainer may be maintained
only against one in possession at the commencement of the
action, and not against one who does not, in fact, hold the
land (Co Tiac v. Natividad, et al., 80 Phil. 127 [1948]).
b. A tenant with the right of possession may bring an action of
forcible entry and detainer against another tenant of the same
landlord.
c. A vendor may bring an action for ejectment against a vendee upon
failure to pay the installments due (Ayala y Compañia v. Arcache, 98
Phil. 273 [1956]).
d. A forcible entry and unlawful detainer can lie even against the
very owner of the property (Prado v. Calpo, G.R. No. 19370, April
30, 1964, 10 SCRA 801).
e. All persons occupying property with the consent of the defendant
from whom they derived their possession may be ejected upon
execution of the judgment (Ariem v. De los Angeles, G.R. No. 32164,
January 31, 1973, 49 SCRA 343).
9.3. Monetary awards
a. Damages other than reasonable rentals or fair rental value are not
recoverable by plaintiff. Reasonable attorney’s fees may be allowed if
the provisions of Art. 2208 of the Civil Code are applicable (Baens v.
Court of Appeals, et al., G.R. No. 57091, November 23, 1983, 125
SCRA 634), but the same shall not exceed P20,000.00 (Rule on
Summary Procedure, Rule I, Section 1-A (1).
b. Any amount for rents or in the nature of rents is allowable in an
action of forcible entry or unlawful detainer. This is so because rents or
compensation for the use and occupation of the premises is only
incidental or accessory to the main action for the restitution of
possession unlawfully withheld Lao Seng Hian v. Lopez, 83 Phil. 617
[1949]).
c. Damages in an ejectment suit may be awarded by the court
referring to: (Azcuna v. Court of Appeals, G.R. No. 116665, March 20,
1996, 225 SCRA 215).
e. The fair and reasonable value of the use and enjoyment of the
property or the rent arising from the loss of possession;
ii. Rent in arrears;
iii. Liquidated damages since they are already part of the
contract.
d. Attorney’s fees cannot be considered as damages
(Laureano v. Adil, G.R. No. 43345, July 29, 1976, 72 SCRA 148).
9.4. Enforceability and binding effect.
*General Rule.
Where the party sought to be ejected under a writ of execution was
not impleaded and is a total stranger to the defendant, certiorari will
not (?) lie as, not being a party to the action, he cannot appeal from
the judgment rendered therein (Sta. Ana v. Sunga, et al., G.R. No.
32642, November 26, 1973, 54 SCRA 36).
A judgment for ejectment cannot be enforced against a co-owner who
was not made a party to the action (Cruzcosa v. Concepcion, 101 Phil.
147 [1957]).
Exception.
A judgment in an ejectment suit shall be binding not only
upon the defendants in the suit, but also against those not
parties thereto, if they are: (Oro Cam Enterprises Incorporated v.
Court of Appeals, G.R. No. 128743 November 29, 1999, 319 SCRA
444).
a. Trespassers, squatters or agents of the defendant fraudulently
occupying the property to frustrate the judgment; (Santiago v. Sheriff,
77 Phil. 740 [1947]).
b. Guests or other occupants of the premises with the permission of
the defendant; (Gozon v. De la Rosa, 77 Phil. 919 [1947]).
c. Transferees pendente lite; (Planas v. Madrigal & Co., et al., 94 Phil.
754 [1954]).
d. Sublessees; (King, et al. v. Geronimo, et al., 81 Phil. 445 [1948]).
e. Co-Lessees; and
f. Members of the family, relatives and other privies of the defendant
(Ariem v. De los Angeles, et al., G.R. No. 32164, January 31, 1973, 49
SCRA 343).
9.5. A covenant to renew a lease contract which makes no provision as
to the renewal or extension implies an extension or renewal upon the
same terms as provided in the original lease contract (Ledesma v.
Javellana, G.R. No. 55187, April 28, 1983, 121 SCRA 794).
9.6. The lessee is not permitted to deny the lessor’s title (RULES OF
COURT, Rule 131, Sec. 3(b); Reyes v. Villaflor, G.R. No. 15755, May
30, 1961, 2 SCRA 247).
9.7. Person who occupies the land of another at the latter’s tolerance
or permission, without any contract between them, is necessarily
bound by an implied promise that he will vacate upon demand, failing
which an action for unlawful detainer may be instituted against him
(Dakudao v. Consolacion, G.R. No. 54753, June 24, 1983, 122 SCRA
877).
This rule as to tolerance does not hold true in a case where there was
forcible entry at the start, but the lawful possessor did not attempt to
64
oust the intruder for over one year, and only, thereafter, filed forcible
entry suit following demand to vacate (Munoz v. Court of Appeals, G.R.
No. 102693, September 23, 1992, 214 SCRA 216).
Elsewhere stated, the tolerance must be presented right from the
start of possession sought to be recovered to categorize a cause of
action as one of unlawful detainer (Refugia v. Court of Appeals, G.R.
No. 118284, July 5, 1996, 258 SCRA 211).
9.8. Demand.
a. How made.
Demand upon a tenant may be oral (Jakihaca v. Aquino, G.R. No.
83982, January 12, 1990, 181 SCRA 67).
If demand is made upon the person found on the premises, it must be
done by serving upon him notice of such demand or by posting such
notice on the premises if no person be found thereon (RULES OF
COURT, Rule 70, Sec. 2).
It may also be made through registered mail (Co Keng Kian v.
Intermediate Appellate Court, G.R. No. 75676, August 29, 1990, 189
SCRA 112).
b. When failure to pay rent or comply with conditions of the lease is
the ground for ejectment, plaintiff should give two (2) demands:
i. demand to pay rental or comply with conditions of the
lease and, if this is not complied with,
ii. demand to vacate within fifteen (15) days, in case of land
or five (5) days in case of buildings, from notice thereof.
The two (2) demands may be embodied in one (1) letter (Zobel v.
Abreu, 98 Phil. 343 [1956]).
Demand to pay or comply makes lessee a deforciant, while demand to
pay and vacate is a requirement for filing the action for unlawful
detainer.
c. When prior demand is necessary.
A demand is a prerequisite to an action for unlawful detainer when the
action is “for failure to pay rent due or to comply with the conditions of
his lease,” and not where the action is to terminate the lease because
of the expiration of its term. This is in conformity with Articles 1669
and 1687 of the Civil Code, (Co Tiamco v. Diaz, 75 Phil. 672 [1946])
because mere failure to pay the rent or to comply with the terms of
the lease does not ipso facto render defendant’s possession illegal
(Canaynay, et al. v. Sarmiento, et al., 79 Phil. 36 [1947]).
d. When prior demand is not necessary:
i. where the purpose of the action is to terminate the lease by reason
of the expiry of its term and is not for failure to pay rentals or comply
with the terms of the lease contract; (De Santos v. Vivas, 96 Phil. 538
[1955]).
ii. when the purpose of the suit is not for ejectment but for the
enforcement of the terms of the contract; (Guanzon v. Ang Ban, et al.,
77 Phil. 7 [1946]).
iii. when the defendant is not a tenant but a mere intruder (Id.)
e. Notice and demand to vacate is, however, required on a lease on a
month-to-month period to render effective the termination of the lease
upon the expiration of the month, and prevent an implied renewal of
the lease (Chua v. Court of Appeals, G.R. No. 106573 March 27, 1995,
60 SCRA 57; Gamboa’s Incorporated v. Court of Appeals, G.R. No.
23634, July 29, 1976, 72 SCRA 131).
f. The notice provision is the one given after the expiration of the
lease period for the purpose of aborting an implied renewal of the
lease (Yap v. Cruz, G.R. No. 89307, May 8, 1992, 208 SCRA 692).
g. An alternative demand to either renew the expired lease contract at
a higher rental rate or vacate is not a definite demand to vacate and,
therefore, insufficient basis for the filing of an action for unlawful
detainer (Penas, Jr. v. Court of Appeals, G.R. No. 112734, July 7,
1994, 233 SCRA 744).
h. When there is no definite period for a lease, but rental is paid from
month to month, then under Article 1687 (Civil Code), the fixed period
is from month to month. When the lessor gave the lessee a demand to
vacate at the end of the month and he fails to do so, an action for
unlawful detainer may be filed against him (Crisostomo v. Court of
Appeals, G.R. No. 43427 August 30, 1982, 116 SCRA 199).
9.9. Refusal to collect or accept rentals is not a defense. There must
be consignation (Uy v. Court of Appeals, G.R. No. 78538, October 25,
1989, 178 SCRA 671; Velez v. Avelino, G.R. No. 48448, February 20,
1984, 127 SCRA 602; Soco v. Militante, G.R. No. 58961, June 28,
1983, 123 SCRA 160).
Acceptance of back rentals after demand to vacate does not legitimize
possession (Cursino v. Bautista, G.R. No. 50335, August 7, 1989, 176
SCRA 65).
Consignation must be either in the court or in the bank, in the name
of and with notice to the lessor, and not elsewhere (Medina v. Court of
Appeals, G.R. No. 104615, August 24, 1993, 225 SCRA 607).
9.10. An action for ejectment is not abated by the death of the
defendant (Vda. De Salazar v. Court of Appeals, G.R. No. 121510,
November 23, 1995, 250 SCRA 305). The heirs become the substitute
defendants (Caniza v. Court of Appeals, G.R. No. 110427, February 24,
1997, 268 SCRA 640).
CONTEMPT (RULE 71)
1. DEFINITION
“Contempt of court has been defined as a willful disregard or
disobedience of a public authority. In its broad sense, contempt
is disregard of, or disobedience to, the rules or orders of a
legislature or judicial body or an interruption of its
proceedings by disorderly behavior or insolent language in its
presence or so near thereto as to disturb its proceedings or to
impair the respect due to such a body. In its restricted and
more usual sense, contempt comprehends a despising of the
authority, justice or dignity of a court. The phrase contempt of
court is generic, embracing within its legal signification a variety of
different acts” xxx (Lorenzo Shipping Corporation v. Distribution
Association Management of the Philippines, 656 SCRA 331, 342-343,
August 31, 2011).
65
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. It is defined as a disobedience to the court by
setting up an opposition to its authority, justice and dignity. It
signifies not only a willful disregard or disobedience to the
court’s order, but such conduct as tends 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
(Heirs of Vda. de Ramos v. Court of Appeals, et al., G.R. No. 138660,
February 5, 2004, 422 SCRA 101; Quinio v. Court of Appeals, G.R. No.
113867
, July 13, 2000, 335 SCRA 522).
Pursunat to AM No. 10-10-4-SC, Re: Letter of the UP Law Faculty
Entitled: Restoring the Integrity: a Statement by the Faculty of the
University of the Philippines College of Law on the Allegations of
Plagiarism and Misrepresentation in the Supreme Court, March 8,
2011, the Court declared that “xxx any publication, pending a
suit, reflecting upon the court, the jury, the parties, the
officers of the court, the counsel with reference to the suit, or
tending to influence the decision of the controversy, is
contempt of court and is punishable.’ (sub-judice rule)
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.
It is inherent in all courts; its existence is essential to the
preservation of order in judicial proceedings and to the enforcement of
judgments, orders and mandates of the courts, and consequently, to
the due administration of justice.
Contempt proceedings 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 Court (Regalado v. Go, 514 SCRA 616,
627).
2. JURISDICTION
(a). Where the charge for indirect contempt has been committed
against a Regional Trial Court or a court of equivalent or
higher rank, or against an officer appointed by it, the charge
may be filed with such court (Sec. 5 R 71).
(b). Where such contempt has been committed against a lower
court, the charge may be filed with the Regional Trial Court of
the place in which the lower court is sitting (RULES OF COURT,
Rule 71, Sec. 5) or in such lower court and the judgment or final
order of a court in a case of indirect contempt may be appealed to
the proper court as in criminal cases. But execution of the
judgment or final order shall not be suspended until a bond is
filed by the person adjudged in contempt, in an amount fixed by the
court from which the appeal is taken, conditioned that if the appeal be
decided against him, he will abide by and perform the judgment or
final order (Id., Sec. 11).
© Unless otherwise provided by law, where the act was committed
against persons, entities, bodies or agencies exercising quasi-
judicial functions, the charge shall be filed with the Regonal Trial
Court of the place where the contempt was committed (Sec. 12
R 71).
3. KINDS OF CONTEMPT:
As to manner of commission:
Direct contempt (contempt in facie curiae) consists of a misbehavior
committed in the presence of or so near a court or judge so as
to obstruct or interrupt the proceedings before the same. It
can be punished summarily without hearing. It is conduct
directed against or assailing the authority and dignity of the court or a
judge, or in the doing of a forbidden act (Encinas, et al. v. National
Bookstore Inc., G.R. No. 162704, July 28, 2005, 464 SCRA 572). Any
of the following constitutes direct contempt:
(1) Misbehavior in the presence or so near the court as to
obstruct or interrupt the proceedings before the same;
(2) Disrespect toward the court;
(3) Offensive personalities toward others;
(4) Refusal to be sworn as a witness or to answer as a witness;
and
(5) Refusal to subscribe to an affidavit or deposition when
lawfully required to do so (Sec. 1, R 71, Rules of Court).
b. Indirect or constructive contempt refers to contumacious acts
perpetrated outside of the sitting court (Tokio Marine Malayan
Insurance Company Incorporated, et al. v. Valdez, G.R. No. 150107,
January 28, 2008, and Tokio Marine Malayan Insurance Company
Incorporated, et al. v. Valdez, G.R. No. 150108, January 28, 2008, 542
SCRA 455), which may be punished only after written charge and
due hearing (RULES OF COURT, Rule 71, Sec. 3).
Specific acts of indirect contempt:
(1) Misbehavior of an officer of a court in the performance of
his official duties or in his official transactions;
(2) Disobedience of or resistance to a lawful writ, process,
order, or judgment of a court, including the act of a person
who, after being dispossessed or ejected from any real
property by the judgment or process of any court of
competent jurisdiction, enters or attempts or induces
another to enter into or upon such real property, for the
purpose of executing acts of ownership or possession, or in
any manner disturbs the possession given to the person
adjudged to be entitled thereto;
(3) Any abuse of or any unlawful interference with the
processes of proceedings of a court not constitutiing direct
contempt;
(4) Any improper conduct tending, directly or indirectly, to
impede, obstruct, or degrade the administration of justice;
(5) Assuming to be an attorney or an officer of a court, and
acting as such without authority;
(6) Failure to obey a subpoena duly served; or
(7) The rescue, or attempted rescue, of a peron or property in
the custody of an officer by virtue of an order or process of
a court held by him (Sec. 3 R 71)
DIRECT CONTEMPT INDIRECT CONTEMPT
In general is committed in the It is not committed in the presence
presence of or so near the court of the court, but done at a
or judge while performing the distance which tends to belittle,
judicial function as to obstruct or degrade, obstruct or embarrass
interrupt the proceedings before the court and justice;
66
it; administration of justice.

Acts constituting direct contempt Acts constituting indirect contempt 4. BENCH WARRANTS not allowed in indirect contempt
are: are:
Pursuant to the clear mandate of Rule 71, Section 3, 1997 Rules of
a) Misbehavior in the After a charge in writing has been Civil Procedure, judges cannot immediately impose a penalty and issue
presence of or so near the filed, and an opportunity given to a bench warrant without complying with the due process
court as to obstruct or the respondent to comment requirements, namely, the filing of a charge in writing and an
interrupt the proceedings thereon within such period as may opportunity for the accused to be heard by himself or by counsel. It is
before it; be fixed by the court and to be essential that the contemner be granted an opportunity to
b) Disrespect toward the heard by himself or counsel, a meet the charges against him and to be heard in his defense,
court; person guilty of any of the as contempt of court proceedings are commonly treated as
c) Offensive personalities following acts may be punished for criminal in nature.
towards others; indirect contempt:
d) Refusal to be sworn as a
Thus, finding a contemner guilty of indirect contempt and ordering his
witness or to answer as a
1) Misbehavior of an officer of a immediate arrest and confinement without affording him an
witness;
court in the performance of opportunity to be heard is violative of the requirements of due process
e) Refusal to subscribe an
his official duties or in his and, therefore, is without or in excess of jurisdiction or with grave
affidavit or deposition when
official transactions; abuse of discretion (Rodriguez v. Bonifacio, A.M. No. RTJ-99-1510,
lawfully required to do so;
2) Disobedience of or resistance November 6, 2000, 344 SCRA 519; Tabujara III v. Gonzales-Asdala,
f) Acts of a party or a counsel
to a lawful writ, process, A.M. No. RTJ-08-2126, January 20, 2009, 576 SCRA 404).
which constitute willful and
order, or judgment of a court,
deliberate forum shopping;
including the act of a person
g) Unfounded accusations or 5. REQUISITES
who, after being dispossessed
allegations or words in a
or ejected from any real
pleading tending to 5.1. Direct contempt
property by the judgment or
embarrass the court or to
process of any court of
bring it into disrepute.
competent jurisdiction, enters *Grounds:
or attempts or induces
another to enter into or upon
such real property, for the a. Disrespect toward the court;
purpose of executing acts of
ownership or possession, or b. Offensive personalities toward others;
in any manner disturbs the
possession given to the
person adjudged to be c. Refusal to be sworn or to answer as witness or to subscribe an
entitled thereto; affidavit or deposition;
3) Any abuse of or any unlawful
interference with the d. Misbehavior in the presence of or so near a court as to obstruct or
processes or proceedings of a interrupt the proceedings (RULES OF COURT, Rule 71, Sec. 1).
court not constituting direct
contempt under section 1 of
this Rule;
4) Any improper conduct
tending, directly or indirectly, *How Commenced:
to impede, obstruct, or
degrade the administration of
- summarily adjudged by the court against which the contempt is
justice;
directed and punished there and then.
5) Assuming to be an attorney
or an officer of a court, and
acting as such without 5.2. Indirect contempt
authority;
6) Failure to obey a subpoena * Grounds:
duly served;
7) The rescue, or attempted
rescue, of a person or a. Misbehavior of an officer of a court in the performance of his official
property in the custody of an duties or in his official transactions;
officer by virtue of an order
or process of a court held by b. Disobedience or resistance to a lawful writ, process, order or
him. judgment of a court, or any unauthorized intrusion to any real property
after being ejected;
Failure by counsel to inform the
court of the death of his client c. Any abuse or any unlawful interference with the proceeding of a
constitutes indirect contempt court not constituting direct contempt;
within the purview of Sec. 3, Rule
71, since it constitutes an improper
conduct tending to impede the d. Any improper conduct tending, directly or indirectly, to impede,
obstruct, or degrade the administration of justice;

67
e. Assuming to be an attorney or an officer of the court without
authority;
f. Failure to obey a subpoena duly served;
g. The rescue, or attempted rescue, of a person or property in the
custody of an officer (Id., Sec. 3).
* How Commenced:
a. By the court, motu proprio, thru an Order or any Formal Charge;
b. In all other cases, by a Verified Petition.
6. SPECIFIC FEATURES
6.1. Direct Contempt v. Indirect Contempt
DIRECT CONTEMPT
1.How committed
Can be committed only in the presence of, or so near, a court or
judge.
2.Nature of Proceedings
The person guilty of misbehavior is summarily adjudged by the court
against which the contempt was committed at the very moment of the
perpetration (Id., Sec. 1).
3.How Proceedings Commenced
Summarily adjudged by the court against which the contempt is
directed and punished there and then (Id., Sec. 1).
4.Punishment
If the contempt is directed against an RTC, a court of
equivalent or higher rank:
FINE not exceeding P2,000.00; or IMPRISONMENT not exceeding 10
days; or both
If the contempt is directed against a lower court:
FINE not exceeding P200; or IMPRISONMENT not exceeding 1 day; or
both (Id., Sec. 1).
5.Remedy
No appeal, but subject to certiorari or prohibition (Id., Sec. 2).
INDIRECT CONTEMPT
1.How committed
Can be committed anywhere as long as the acts mentioned in Rule 71,
Sec. 3 are done.
2.Nature of proceedings
The person guilty of misbehavior may be punished only after charge in
writing has been filed, and an opportunity given to the accused to be
heard by himself or counsel (Id., Sec. 3).
3.How Proceedings Commenced
a.) by the court, motu proprio, thru an order or any formal charge;
b.) In all other cases, by a verified petition. (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.) (Id., Sec. 4).
4. Punishment
If the contempt is directed against an RTC, a court of
equivalent or higher rank:
FINE not exceeding P30,000.00; or IMPRISONMENT not exceeding 6
months; or both
If contempt is directed against a lower court:
FINE not exceeding P5,000.00; or IMPRISONMENT not exceeding 1
month; or both (Id., Sec. 7).
5. Remedy
May be appealed to the proper court as in criminal cases, but
execution shall not be suspended until BOND is filed (Id., Sec. 11).
6.2. Procedure for Indirect Contempt
a. How commenced.
Proceeding is commenced either:
i) by an order or any written charge requiring respondent to show
cause why he should not be held in contempt; or
ii) by a verified petition with supporting particulars and certified true
copy of documents or papers involved and full compliance with the
requirements for filing initiatory pleadings in ordinary civil actions (Id.,
Sec. 4).
b. Where filed.
When the contempt is directed against a Regional Trial Court or
equivalent or higher rank, the charge shall be filed with the same
court.
When the contempt is directed against a lower court, the charge may
be filed with the Regional Trial Court of the place where the lower
court is sitting or in such lower court subject to appeal to the Regional
68
Trial Court of such place in the same manner as provided in Rule 71,
Sec. 11 (Id., Sec. 5).
c. Hearing and bail.
If the hearing is not ordered to be had forthwith, the respondent may
be released from custody upon filing a bond, in an amount fixed by the
court, for his appearance at the hearing of the charge. On the day set
therefor, the court shall proceed to investigate the charge and consider
such comment, testimony or defense as the respondent may make or
offer (Id., Sec. 6).
d. Penalty.
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.
If he is adjudged guilty of contempt committed against a lower court,
he may be punished by a fine not exceeding five thousand pesos or
imprisonment not exceeding one (1) month, or both.
If the contempt consists in the violation of a writ of injunction,
temporary restraining order or status quo order, he may also be
ordered to make complete restitution to the party injured by such
violation of the property involved or such amount as may be alleged
and proved (Id., Sec. 7).
The punishment for indirect contempt, therefore, depends upon the
level of the court against which the act was committed.
Where the act was committed against a person or entity exercising
quasi-judicial functions, the penalty imposed shall depend upon the
provisions of the law which authorizes a penalty for contempt against
such persons or entities.
f. Appeal.
The judgment or final order of a court in a case of indirect contempt
may be appealed to the proper court as in criminal cases (Id., Sec.
11).
e. Execution and stay thereof.
The writ of execution, as in ordinary civil actions, shall issue for the
enforcement of a judgment imposing a fine, unless the court otherwise
provides (Id., Sec. 7).
Furthermore, execution of the judgment or final order shall not be
suspended by an appeal until a bond is filed by the person adjudged in
contempt, in an amount fixed by the court from which the appeal is
taken, conditioned that if the appeal be decided against him he will
abide by and perform the judgment or final order (Id., Sec. 11).
6.3. Imprisonment until order obeyed.
When the contempt consists in the refusal or omission to do an act
which is yet in the power of the respondent to perform (like payment
of support), he may be imprisoned by order of the court concerned
until he performs it (Id., Sec. 8).
6.4. When court may release respondent.
The court which issued the order imprisoning a person for contempt
may discharge him from imprisonment when it appears that public
interest will not be prejudiced by his release (Id., Sec. 10).
Other forms of contempt / As to nature and effect:
Contempt whether direct or indirect, may be classified as civil or
criminal depending on the nature and effect of the contumacious act.
a. Civil contempt is the failure to do something ordered to be
done by a court or a judge for the benefit of the opposing
party therein. It is an offense against the party in whose behalf the
violated order is made. Intent in committing the contempt is
immaterial. It is instituted by an aggrieved party, or his
successor, or someone who has a pecuniary interest in the
right to be protected. It is remedial or compensatory in nature
(People v. Godoy and Gacott, Jr. v. Reynoso, Jr., et al., G.R. Nos.
115908-09, March 29, 1995, 243 SCRA 64, in this case, the Court
resolved separately the complaint for indirect contempt, which arose
from the principal criminal cases, filed by Judge Gacott against
columnist Reynoso, Jr. and publisher Ponce De Leon).
Ex. In an action for support, the judge orders the defendant-husband
to pay money for his wife’s support. If he refuses to comply there is a
civil contempt.
b. Criminal contempt is conduct directed against the authority
and dignity of a court or of a judge, as in unlawfully assailing
or discrediting the authority and dignity of a court or a judge
or in doing a forbidden act. (Id.) It is an offense against organized
society and is held to be an offense against public justice. Intent is a
necessary element in criminal contempt. It is generally the
State who is the real prosecutor. (Id.) It is punitive in nature.
Thus, the proceedings are to be conducted in accordance with
the principles and rules applicable to criminal cases (Yasay, Jr.,
et al. v. Recto, et al., G.R. No. 129521, September 7, 1999, 313 SCRA
739).
However, the classification of contempt as a criminal
contempt does not preclude punishment for direct contempt.
Direct contempt, under the Rules of Court, Rule 71 Section 1,
may be punished summarily and, thus, need not be classified
as criminal.
Purpose:
Criminal- primary purpose is to preserve the court’s authority and to
punish disobedience of its orders. Initiated by the State.
Civil- primary purpose is to provide a remedy for an injured suitor
(party in a case) and to coerce compliance with an order. Initiated by
an aggrieved party.
CIVIL CONTEMPT CRIMINAL CONTEMPT
It is the failure to do something It is a conduct directed against
ordered to be done by a court or the authority and dignity of the
a judge for the benefit of the court or a judge acting judicially;
opposing party therein and is it is an act obstructing the
therefore an offense against the administration of justice which
party in whose behalf the tends to bring the court into
violated order was made; disrepute or disrespect;
The purpose is to compensate for The purpose is to punish, to
69
the benefit of a party; vindicate the authority of the
court and protect its outraged
dignity;
The rules of procedure governing Should be conducted in
contempt proceedings or criminal accordance with the principles
prosecutions ordinarily are and rules applicable to criminal
inapplicable to civil contempt cases, insofar as such procedure
proceedings. is consistent with the summary
nature of contempt proceedings.
In Lorenzo Shipping Corporation v. Distribution Association
Management of the Philippines, 656 SCRA 332, 334, the Court
declared:
a. Proceedings for contempt are sui generis, in
nature criminal, but may be resorted to in civil, as
well as in criminal actions, and independently of
any action. Xxxx
The proceedings are to be regarded as criminal when the purpose if
primarily punishment, and civil, when the purpose is primarily
compensatory or remedial. Where the dominant purpose is to enforce
compliance with an rder of a court for the benefit of a party in whose
favor the order runs, the contempt is civil; where the dominant
purpose is to vindicate the dignity and authority of the court, and
protect the interest of the general public, the contempt is criminal.
In proceedings for criminal contempt, the defendant is presumed
innocent and the burden is on the prosecution to prove the charges
beyond reasonable doubt. The presumption of innocence can be
overcome only by proof of guilt beyond reasonable doubt which means
proof to the satisfaction of the court and keeping in mind the
presumption of innocence that precludes every reasonable hypothesis
except that for which it is given. It is not sufficient for the proof to
establish a probability, even though strong, that the fact charged is
more likely true than the contrary. It must establish the truth of the
fact to a reasoanble and moral certainty – a certainty that convinces
and satisfies the reason and coscinece of those who are to act upon it
(Burgos v. Macapagal-Arroyo, 653 SCRA 512, 537, July 5, 2011 citing
Montenegro v. Montenegro, 431 SCRA 415).
When imprisonment shall be imposed:
 When the contempt consists in the refusal or omission to do an
act which is yet in the power of the respondent to perform, he
may be imprisoned by order of the court concerned until he
performs it.
 Indefinite incarceration may be resorted to where the attendant
circumstances are such that the non-compliance with the court
order is an utter disregard of the authority of the court which has
then no other recourse but to use its coercive power.
 When a person or party is legally and validly required by a court
to appear before it for a certain purpose, and when that
requirement is disobeyed, the only remedy left for the court is to
use force to bring the person or party before it.
 The punishment is imposed for the benefit of a complainant or a
party to a suit who has been injured aside from the need to
compel performance of the orders or decrees of the court, which
the contemnor refuses to obey although able to do so. In effect,
it is within the power of the person adjudged guilty of contempt
to set himself free.
CONTEMPT AGAINST QUASI-JUDICIAL BODIES
 The rules on contempt apply to contempt committed against
persons or entities exercising quasi-judicial functions or in
case there are rules for contempt adopted for such bodies or
entities pursuant to law, Rule 71 shall apply suppletorily.
 Quasi-judicial bodies that have the power to cite persons for
indirect contempt can only do so by initiating them in the
proper RTC. It is not within their jurisdiction and
competence to decide the indirect contempt cases. The RTC
of the place where contempt has been committed shall have
jurisdiction over the charges for indirect contempt that may
be filed.
7. JURISPRUDENCE
7.1. Power to punish for contempt to be exercised in the
preservative, not vindictive principle; what constitutes
disobedience.
Only in cases of clear and contumacious refusal to obey should
the power be exercised. A bona fide misunderstanding of the terms of
the order or of the procedural rules should not immediately cause the
institution of contempt proceedings. The power to punish for contempt
of court should be exercised on the preservative and not on the
vindictive principle. Only occasionally should the court invoke its
inherent power in order to retain the respect without which the
administration of justice must falter or fail. Such power being drastic
and extraordinary in its nature xxx, should not be resorted to xxx,
unless necessary in the interest of justice (Lipata v. Tutaan, G.R. No.
61643, September 29, 1983, 124 SCRA 877; Sulit v. Tiangco, G.R. No.
35333, July 20, 1982, 115 SCRA 207; Gamboa v. Teodoro, 91 Phil. 270
[1952]; Villavicencio v. Lukban, 39 Phil. 778 [1919]).
7.2. When the contempt consists in the refusal or omission to
do an act which is yet in the power of the respondent to
perform, he may be imprisoned by order of the court
concerned until he performs it (RULES OF COURT, Rule 71, Sec.
8).
Such imprisonment is remedial in nature and coercive in character. It
relates to something to be done by the respondent and by doing the
same, he can obtain his discharge. In effect, under such
circumstances, the respondent “carries the keys to his prison in his
pocket.” (Galvez v. Republic Surety and Insurance Co., Inc., 105 Phil.
944 [1959]; Quinio v. Court of Appeals, supra note 405).
7.3. Necessity of hearing.
Previous hearing is required under Rule 71, Section 3 of the Revised
Rules of Court, where an arrest and the subsequent detention of
petitioner for her failure to appear at a hearing set by the trial judge is
based on the commission of an indirect contempt. Without that
hearing, the order violated the rules and deprived the petitioner of her
liberty without due process (Bulado v. Navarro, G.R. No. 59442,
February 2, 1988, En Banc, Minute Resolution).
Where a lawyer fails to obey a subpoena and likewise committed
direct contempt for having disturbed the preliminary examination being
conducted by the judge by repeatedly driving his jeep and honking its
horn in the vicinity of the court session hall, for which the lawyer was
ordered arrested and confined in jail, the judge should issue a
separate order for such direct contempt, and another order
requiring the lawyer to show cause why he should not be
punished for disobedience to its process, to give the lawyer a
chance to explain his failure to appear as a witness (Gardones
v. Delgado, A.M. No. 120-MJ, July 23, 1974, 58 SCRA 58).
7.4. Contempt by non-party.
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Generally, no contempt is committed by one not a party to the
case. The remedy against such person is either a civil or
criminal action (Ayog v. Cusi, Jr., G. R. No. 46729, November 19,
1982, 118 SCRA 492).
However, persons who are not parties in a proceeding may be
declared guilty of contempt for willful violation of an order issued in a
case, if said persons are guilty of conspiracy with any one of
the parties in violating the Court’s order (Desa Enterprises, Inc.
v. Securities and Exchange Commission, G.R. No. 45430, September
30, 1982, 117 SCRA 321).
7.5. A characterization by a lawyer that the injunction issued by the
Supreme Court as "unjust and a miscarriage of justice" and as
devoid of factual and legal basis is unfounded and unwarranted.
He treated a resolution of this Court as if it were a pleading of an
adversary which he could assail in unrestrained and abrasive language.
His unjustified and disrespectful characterization carries with it obvious
derogatory implications or innuendos which clearly constitute direct
contempt or contempt facie curiae (Lim Se v. Argel, G.R. No. 42800,
April 7, 1976, 70 SCRA 378).
7.6. The use of disrespectful or contemptuous language
against a particular judge in pleadings presented in another
court or proceeding is indirect, not direct, contempt as it is not
tantamount to a misbehavior in the presence of or so near a court or
judge as to interrupt the administration of justice. Stated differently, if
the pleading containing derogatory, offensive or malicious
statements is submitted in the same court or judge in which
the proceedings are pending, it is direct contempt because it
is equivalent to a misbehavior committed in the presence of or
so near a court or judge as to interrupt the administration of
justice (Ang v. Castro, G.R. No. 66371, May 15, 1985, 136 SCRA
453).
7.7. The request of the plaintiff that the Judge should inhibit himself is
not direct contempt (Delima v. Gallardo, G.R. Nos. 41281-82, May 31,
1977, 77 SCRA 286).
7.8. The violation of a TRO issued by the SEC or any quasi-judicial
tribunal is criminal contempt so that acquittal of the respondents is
unappealable (Yasay v. Recto, G.R. No. 129521, September 7, 1999,
313 SCRA 739).
7.9. A writ of execution issued by a court after five (5) years from
entry of final judgment is void and disobedience thereto does not
constitute indirect contempt (Crucillo v. Intermediate Appellate Court,
G.R. No. 65416, October 26, 1999, 317 SCRA 351).
7.10. For an indirect contempt in violation of an injunction or any
judicial order, the act which is forbidden or required to be done
should be clearly and exactly defined so as to leave no
reasonable doubt or uncertainty as to what specific act or
thing is forbidden or required (Lee Yick Hon v. Collector of
Customs, 41 Phil. 548 1921]).
7.11. Publication pending litigation: Any publication, pending a
suit, reflecting upon the court, the jury, the parties, the officers of the
court, the counsel, etc., with reference to the suit, or tending to
influence the decision of the controversy, is contempt of court and is
punishable (In re: Kelly, 35 Phil. 944 [1916]).
7.12. All proceedings looking to the suspension or disbarment of
lawyers and all proceedings looking to the suspension or removal of
judges shall be considered as confidential in nature until the final
disposition of the matter. Any violation is punishable by contempt
(In re: Abistado, 57 Phil. 669 [1932]).
7.13. Post litigation publication: There may be contempt of court
even though the case has been terminated, if the publication is
attended by either of these circumstances: (People v. Godoy, G.R.
Nos. 115908-09, March 29, 1995, 243 SCRA 64)
a. where it tends to bring the court into disrespect or, in other
words, to scandalize the court; or
b. where there is a clear and present danger that the
administration of justice would be impeded.
7.14. The availability of the power to punish for contempt does not
and will not prevent a prosecution for libel, either before,
during, or after the institution of contempt proceedings. (Id.)
The power to punish for contempt and the power to disbar are
separate and distinct, and the exercise of one does not
exclude the exercise of the other.
7.15. If the term of imprisonment in this case is indefinite and might
last through the natural life of the petitioner, yet by the terms of the
sentence the way is left open for him to avoid serving any part of it by
complying with the orders of the court, and in this manner put an end
to his incarceration, in these circumstances, the judgment can not be
said to be excessive or unjust (Harden v. Director of Prisons, 81 Phil.
741 [1948]).
7.16. Only the court which rendered the order commanding
the doing of a certain act is vested with the right to determine
whether or not the order has been complied with, or whether
a sufficient reason has been given for non-compliance, and,
therefore, whether a contempt has been committed. The power
to determine the existence of contempt rests exclusively with the court
against which the contempt was committed (Igot v. Court of Appeals,
et al., G.R. No. 150794, August 17, 2004, 436 SCRA 668).
7.17. Quasi-judicial agencies that have the power to cite
persons for indirect contempt pursuant to Rule 71, can only do
so by initiating them in the proper RTC. It is not within their
jurisdiction and competence to decide the indirect contempt
cases. These matters are still within the province of the RTCs (Land
Bank of the Philippines v. Listana, G.R. No. 152611, August 5, 2003,
408 SCRA 328).
7.18. Criticism of Courts
As an officer of the court, a lawyer may criticize the court. The right
of a lawyer, or any person, for that matter, to be critical of
courts and magistrates as long as they are made in properly
respectful terms and through legitimate channels has long
been recognized and respected (Fudot v. Cattleya Land, Inc., 570
SCRA 86, 108-109).
It was likewise held that no matter how firm a lawyer’s conviction in
the righteousness of his cause, there is simply no excuse for
denigrating the courts and engaging in public behavior that tends to
put the courts and the legal profession into disrepute (UP Law Faculty
case).
The rule on contempt, however, does not prohibit a criticism
of the courts. It is, in fct, conceded that “an attorney or any
other person may be critical of the courts and their judges
provided the criticism is made in respectful terms and through
legitimate channels.”
Quoting the case In re Almacen, 31 SCRA 562, the Court said:
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“ xxxx But it is the cardinal condition of all such criticism that it shall be
done bona fide, and not spill over the walls of decency and
propriety. A wide chasm exists between fair criticism, on the one
hand, and abuse and slander of courts and the judge thereof, on the
other. Intemperate and unfair criticism is a gross violation of the duty
of respect to courts. It is such a misconduct that subjects a lawyer to
disciplinary action (Habawel v. Court of Tax Appeals, First Division, 657
SCRA 138, 149, September 7, 2011).

The same Habawel case explained that the test for criticizing a
judge’s decision is, therefore, whether or not the criticism is
bona fide or done in good faith, and does not spill over the
walls of decency and propriety.

In said case, the First Division of the CTA found the following
statements in the petitoner’s motion for reconsideration
contemptuous:

(a) “it is gross ignorance of the law for the Honorable Court to
have held that it has no jurisdiction over the instant
petition”;
(b) “the grossness of the Honorable Court’s ignorance of the
law is matched only by the unequivocal expression of this
Honorable Court’s jjurisdiction”; and
(c) the “Honorable Court’s lack of understanding or respect for
the doctrine of stare decisis.”

In affirming the finding of the CTA the Court said: “ x x x By such

statements, the petitioners clearly and definitely overstepped the
bounds of propriety as attorneys, and disregarded their sworn duty to
respect the courts. An imputastion in a pleading of gross ignorance
against a court or its judge, especially in the absence of any evidence,
is a serious allegation, and constitutes direct contempt of court. x x x.”

7.19. Contempt and Execution of judgment- Generally, contempt

is not ameans of enforcing a judgment. For example, the mere refusal
or unwillingness of a judgment debtor to comply with an order of a
court to vacate the property is not a sufficient ground to hold him in
contempt. A writ of possession is not directed against a judgment
debtor but to a sheriff who is ordered to deliver the property to the
prevailing party. As such writ does not command a judgment debtor to
doa anything, he cannot be guilty of “disobedience of or resistance to
a lawful writ, process, order, or judgment or command of any court”
punishable under Rule 71 of the Rules of Court (See also Barrete v.
Amila, 230 SCRA 219, 223).

The proper procedure is not for the court to cite the debtor in
contempt. What the sheriff should do is to dispossess him of the
property. If after the dispossession, the judgment debtor should
continue to execute acts of ownership or possession, or in any manner
disturb the possession of the judgment creditor, then and only then
may he be charged with and punished for contempt (Pascua v. Heirs
of Segundo Simeon, 161 SCRA 1, 5).

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