PRELIMINARIES

PROVISIONAL REMEDIES – writs and processes available during the pendency of the action which may be
resorted to by a litigant to preserve and protect his rights and interests therein, pending rendition, and for the
purpose of ultimately affecting a final judgment in the case.

Nature of provisional remedies

• Provisional means temporary, preliminary or tentative
• Provisional remedies are temporary, auxiliary, and ancillary remedies available to a litigant for the protection
and preservation of his rights while the main action is pending. They are writs and processes which are not
main actions and they presuppose the existence of a principal action.

Purpose of provisional remedies

• To preserve and protect their rights or interest while the main action is pending
• To secure the judgment
• To preserve the status quo
• To preserve the subject matter of the action

Court which grants provisional remedies

• The court which grants or issues a provisional remedy is the court which has jurisdiction over the main action.

What are the different provisional remedies under the Rules of Court?
• Preliminary attachment (Rule 57)
• Preliminary injunction (Rule 58)
• Receivership (Rule 59)
• Replevin (Rule 60)
• Support Pendente Lite (Rule 61)

RULE 57
PRELIMINARY ATTACHMENTS

Nature of preliminary attachment

• Provisional remedy issued by the court placing the property under custodial legis as security for the
satisfaction of whatever judgment may be rendered in the case.
• Not a separate and distinct proceeding; accessory to the principal action.
• Nature of proceeding is quasi-in rem; jurisdiction over the person of the defendant is not required so
long as the court acquires jurisdiction over the res
• Attachment is purely statutory remedy
• Availed by both the plaintiff and defendant

(GBI vs Sanchez 98 Phil 886)

The merits of the main actions are not triable in a motion to discharge an attachment (or in a motion for writ of
preliminary attachment)

PBC vs CA, 352 SCRA 616 –

Rules on the issuance of a writ of attachment must be construed strictly against the applicants.

Purpose of PA –
Preliminary attachment is designed to:
• Seize the property of the debtor before final judgment and put the same in custodia legis even while the
action is pending for the satisfaction of a later judgment;
 • To enable the court to acquire jurisdiction over the res of the action in cases where service in person or
any other service to acquire jurisdiction over the defendant cannot be effected.

Can the order granting a writ of attachment be subject of an appeal?

Olsen vs Olsen 48 SCRA 238 –

An order denying a motion for the annulment of a preliminary attachment may be reviewed in an appeal taken
from the final judgment rendered in the principal case; thus:

GR: the order of the judge denying a motion for annulment of a writ of preliminary attachment, being of an
incident or interlocutory and auxiliary character, cannot be the subject of an appeal independently from the
principal case, because our procedural law now in force authorizes an appeal only from a final judgment.

Exception: when the writ of preliminary attachment becomes final by virtue of a final judgment rendered in the
principal case, said writ is subject to review jointly with the judgment rendered in the principal case through an
ordinary appeal.

Sec.1. Grounds upon which attachment may issue –

When to file?

At the commencement of the action or at any time before entry of judgment (before judgment become final and
executory)

Who could file?

• the plaintiff or any party may have the property of the adverse party attached as security for the
satisfaction of any judgment that may be recovered

Borja vs Platon 73 Phil 659 –

A writ of preliminary attachment may be issued in favor of a defendant who sets up a counterclaim.

Facts:

Petitioner brought a civil action in the CFI to annul a second sale by Francisco de Borja to Romero and to recover
damages. Defendant filed an answer with counterclaims. Based on their counterclaims, defendant also applied for
a writ of preliminary attachment. Petitioner contends that no writ of attachment can be issued in favor of a
defendant who presents a counterclaim.

Issue: whether a defendant who presents a counterclaim can apply for a writ of preliminary attachment.

Ruling:
The SC finds plaintiff’s contention without merit. A writ of preliminary attachment may be issued in favor of a
defendant who sets up a counterclaim. Under the Rule, a plaintiff or any proper party may have the property of
the adverse party attached as security for the satisfaction of any judgment. thus, it is immaterial whether
defendants simply presented a counterclaim or brought a separate civil action against plaintiff herein.

Grounds (exclusive in nature):

• In an action for the recovery of a specified amount of money or damages, other than moral and exemplary,
on a cause of action arising from law, contract, quasi-contract, delict or quasi-delict against a party who is
about to depart from the Philippines with intent to defraud his creditors;

Professional Video vs TESDA 591 SCRA 83 –

Principle: Funds public in nature cannot be the valid subject of a writ of garnishment proceedings even if the
consent to be sued had been previously granted and the state liability adjudged.
FACTS:

Petitioner PROVI entered into with TESDA a negotiated contract supplying the latter materials for the production
Identification Cards. The contract left with an outstanding unpaid balance, thus, prompted petitioner to file case
with the RTC for the recovery of a sum of money with damages and additionally prayed for a writ of preliminary
attachment/garnishment against TESDA. Petitioner contends that TESDA is no longer immune from suit because it
entered into a contract in its private capacity.

The RTC grants and issued the writ of preliminary attachment against TESDA.

TESDA on the other hand moves for the quashal of writ of attachment on the ground that public funds
cannot be subject of garnishment. Further argues that it entered into an agreement in the performance of its
governmental function.

ISSUE: Whether TESDA’s funds be exempt from execution, attachment or garnishment.

HELD:

Attachment, a harsh remedy, must be issued only on concrete and specific grounds and not on general averments
merely quoting the words of the pertinent rules.
TESDA’s funds are public in character, hence exempt from attachment or garnishment. TESDA’s funds are still
public in nature and, thus, cannot be the valid subject of a writ of garnishment or attachment. Public funds
cannot be the object of garnishment proceedings even if the consent to be sued had been previously granted and
the state liability adjudged.
Insular Savings Bank vs CA, 460 SCRA 122-

A writ of attachment cannot be issued for moral and exemplary damages and other unliquidated or
contingent claims.

FACTS:

Respondent FEBTC instituted an arbitration case before Arbitration committee of the Philippine Clearing House
Corporation against petitioner Insular Saving Banks for unfunded checks amounting to P25,200,000.00 which
were drawn against respondent Bank and were presented by petitioner for clearing. Before the arbitration
committee of the PCHC, FEBTC and Insular Bank agreed to equally divide between themselves the disputed
amount subject to the outcome of the arbitration proceeding. As a result thereof, the sum of 12,600,000 (amount
already secured) is in the possession of FEBTC. In the pendency of the abitration case, FEBTC instituted a civil case
and prayed for the issuance of a writ of preliminary attachment which was subsequently granted upon posting by
respondent Bank of an attachment bond.

Thereafter, Insular Savings Bank filed a motion to discharge attachment by counter-bond in the amount of
P12,600,000. the respondent judge denied the motion because the counter-bond is insufficient; that it should be
in the amount of 27,237,700 which should include unliquidated claims, attorney’s fees and exemplary damages,
legal interest and expenses of litigations.
ISSUES: Whether writ of attachment can be issued for moral and exemplary damages and other unliquidated and
contingent claim.

HELD:

A writ of attachment cannot be issued for moral and exemplary damages, and other unliquidated or contingent
claims.

• In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a
public officer, or an officer of a corporation, or an attorney, factor, broker, agent or clerk, in the course of
his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty;

Olsen vs Olsen, 48 Phil 238

Abuse of confidence by a corporate officer shown by his act of taking money of the corporation for his
personal use without being duly authorized therefor constitutes a ground for the issuance of a preliminary
attachment.

FACTS:
The evidence shows that the defendant-appellant Water Olsen was President-Treasurer and general manager of
the Plaintiff-appellee corporation (Walter E. Olsen &Co.) and exercised direct and almost exclusive supervision
over its function, funds and books of account untile about the month of August, 1921. During that time he has
been taking money of the corporation without being duly authorized to do so either by the board of directors or
by the by-laws, the money taken by him having amounted to the considerable sum of P66,207.62. Of this sum,
19,000 was invested in the purchase of the house and lot now under attachment in this case, and 50,000 in the
purchase of 500 shares of stock of prising at the prioce of 100 per share for himself and Marker. A few days
afterwards he began to sell the ordinary shares of the corporation for 430 each. The defendant-appellant
attempted to justify his conduct, alleging that the withdrawal of the funds of the corporation for his personal use
was made in his current account with said corporation, in whose treasury he deposited his own money and the
certificates of title of his shares, as well as of his estate, and that at the that at the first meeting of the
stockholders, a statement of his account with a debit balance was submitted and approved.

ISSUE: Whether the facts narrated be a ground for the issuance of a writ of preliminary attachment.

HELD:

Yes. The facts narrated falls within sec. 1 (b) rule 57, hence, a writ of preliminary attachment may issue.

Furthermore, the defendant appellant has almost an exclusive control over the function of the corporation and its
funds on account of his triple capacity as president, treasurer and general manager must be very scrupulous in
the application of the funds of said corporation to his own use. The act of taking money of the corporation for his
personal use without being duly authorized therefor constitutes such an irregularity that, while it does not
amount to a criminal fraud, is undoubtedly a fraud of a civil character, because it is an abuse of confidence and
constitutes a ground for the issuance of a preliminary attachment.

Professional video vs TESDA, 591 SCRA 83 –

Absent any actual disbursement, these funds form part of and TESDA’s public funds, and TESDA’s failure to pay
PROVI the amount stated in the certificate cannot be construed as an act of fraudulent misapplication or
embezzlement.
• In an action to recover the possession of property unjustly or fraudulently taken, detained or converted,
when the property , or any party thereof, has been concealed, removed or disposed of to prevent its being
found or taken by the applicant or an authorized person;
This ground compared to replevin:
• In replevin, the objective is to recover the possession of personal property only;
• That the personal property was WRONFULLY detained by the adverse party
• That the personal property has not been placed under custodial egis

• In action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation
upon which the action is brought, or in the performance thereof;

Liberty Insurance Corp vs C, February 23, 2001 –

To sustain an attachment on the ground that a party is guilty of fraud in contracting the debt (sec.1(d) Rule 57)
to defraud the creditor. The fraud must:
• Relate to the execution of the agreement
• Must have been the reason which induced the other party into giving consent which he would not
have otherwise given
• Be committed upon contracting the obligation sued upon

To constitute a ground for attachment in Section 1 (d), Rule 57 of the Rules of Court, fraud should be
committed upon contracting the obligation sued upon.

A debt is fraudulently contracted if at the time of contracting it the debtor has a preconceived plan or
intention not to pay.

Ng wee vs Tankiansee 545 SCRA 263

The applicant must sufficiently show the factual circumstances of the alleged fraud because fraudulent intent
cannot be inferred from the debtor’s mere non-payment of the debt or failure to comply with his obligation.

The affidavit, being the foundation of the writ, must contain such particulars as to how the fraud imputed to
respondent was committed for the court to decide whether or not to issue the writ. Absent any statement of
other factual circumstances to show that the respondent, at the time of contracting the obligation, had a
preconceived plan or intention not to pay, or without any showing of how respondent committed the alleged
fraud, the general averment in the affidavit that respondent is an officer and director of Wincorp who allegedly
connived with the other defendants to commit a fraud, is insufficient to support the issuance of a writ of
preliminary attachment.

The rules governing its issuance are strictly construed against the applicant.

FCY Corp vs CA, 324 SCRA 270

Facts:
X filed a complaint for collection of sum of money with application for preliminary attachment against
Y(FCY) with the RTC. In support of its application for writ of attachment X alleged that Y is guilty of fraud in
incurring the obligation and had fraudulently misapplied the money paid to him, to which he had an equal share.

The RTC granted the writ of preliminary attachment. Y filed a motion to lift the attachment but the court denied
the motion. Is the RTC correct?

Answer:
 Yes. The RTC is correct in denying the motion.

A debt is fraudulently contracted if at the time of contracting it the debtor has a preconceived plan or intention
not to pay.

When a preliminary attachment is issued upon a ground which is at the same time the applicant’s cause of action:
e.g. an action against a party who has been guilty of fraud in contracting the debt or incurring the obligation upon
which the action is brought; the defendant is not allowed to file a motion to dissolve the attachment otherwise
the hearing on such motion for dissolution of the writ would be tantamount to a trial on the merits. The only way
it can be dissolved is by a counterbond.

• In an action against a party who has removed or dispose of his property or is about to do so, with intent to
defraud his creditors; or

Aboitiz vs Cotabato, 105 SCRA 88

Insolvency is not a proper ground for issuance of a writ of attachment.

FACTS:

A verified complaint was filed by petitioner Abotiz for the collection of money with a corresponding writ of
preliminary attachment. The writ of attachment was issued by the trial court on the ground that the defendant
has removed or disposed of its properties or assets, or is about to do so, with intent to defraud its creditors. But
the SC found out that insolvency is the ground for the issuance of the writ of attachment which can be inferred
form the emphasis laid by petitioner particularly from the bank account which has been reduced to nil (zero).

The trial court issued the writ of attachment. The appellate court declared the writ of attachment null and void.

ISSUE:

Whether the issuance of writ of attachment is proper.

HELD:

The SC court denied the petition, saying:

Insolvency is not a proper ground for issuance of a writ of attachment.
The facts of the case do not warrant the issuance of the writ of attachment. It is an undisputed fact that, as
averred by petitioner itself, the several buses attached are nearly junks. However, upon permission by the sheriff,
five of them were repaired, but they were substituted with five buses which were also in the same condition as
the five repaired ones before the repair. This cannot be the removal intended as ground for the issuance of a writ
of attachment under sec.1(e), Rule 57 of the Rules of Court. The repair of the five buses was evidently motivated
by a desire to serve the interest of the riding public, clearly not to defraud its creditors, as there is no showing
that they were not put on the runt after their repairs, as was the obvious purpose of their substitution to be place
in running condition.

• In an action against a party who does not reside and is not found in the Philippines, or on whom summons
may be served by publications.

Miailhe vs De Lencquesaing 142 SCRA 694

Sec.1 (f) of Rule 57 of the Rules of court applies where plaintiff’s claim is for liquidated damages, not to
unliquidated damages.
FACTS:

Petitioner Alian filed a complaint against respondent Elaine, for damages and attorneys’ fees allegedly sustained
by him by reason of the filing by respondent of the criminal complaint for estafa, solely for the purpose of
embarrassing his honor and reputation. In the complaint, petitioner prayed for the issuance of a writ of
preliminary attachment of the properties of respondent on the ground that respondent is a non-resident of the
Philippines. Respondent move to dissolve or lift the writ of attachment on the ground that petitioner’s claim was
for unliquidated damages.

ISSUE:

Whether writ of attachments covers unliquidated damages.

HELD:

The attachment issued is null and void. Application for attachment on the ground that a party does not reside and
is not found in the Philippines or on whom summons may be served by publication, applies where plaintiff’s claim
is for liquidated damages, not to unliquidated damages.

Sec.2. Issuance and contents of order –

How writ of attachment issued?

An order of attachment may be issued either ex parte or upon motion with notice and hearing.

Who issues a writ of attachment:

• By the court in which the action is pending
• By the court of appeals, or
• By the Supreme Court

What are the contents of the order of attachment?

• Require the sheriff to attached:

• The property in the Philippines of the party against whom the order is issued, not exempt from
execution, sufficient to satisfy the applicant’s demand
Properties exempt from execution:
• Public funds
• Family home
• Professional libraries not exceeding the value of 300,000
• And those mention in sec.13 rule 39 of the rules of court
• The sheriff may not attached the property if:
• the adverse party makes deposits or gives a bond in amount equal to that fixed in the order,
exclusive of cost.

Toledo vs Burgos 168 SCRA 513

There is no need for a judge to set a hearing on the application for a writ of attachment because the issuance of
a writ of preliminary attachment may be made by the Court ex parte. Moreover, the judge before whom the
application is made has full discretion in considering the supporting evidence proferred by the applicant.

Facts:

An action for delivery of personal property was filed by petitioner against respondent but was subsequently
denied. Petitioner, subsequently applied for a writ of attachment alleging that respondent has removed and has
disposed or is about dispose of her property within intent to defraud Toledo petitioner herein. To support the
allegation, an affidavit of Rudolfo Inot was attached to the application stating that respondent offered to sell to
him 2 motor vehicles. The Trial Court Judge denied the application without prior hearing and notice.

Issue: Whether the denial of the application is proper.

Ruling:

Respondent Judge acted correctly in denying petitioner’s Application for Issuance of a Writ of Preliminary
Attachment. There was no need for him to set a hearing on the said application. This is because the issuance of a
writ of preliminary attachment may be made by the Court ex parte.

Davao Light vs CA, 204 SCRA 343

Attachment may be issued ex parte and even before summons is served upon the defendant. However, the writ
may not be enforced unless preceded by a service of summons upon the defendant. Implementation of a writ of
attachment without the required jurisdiction over his person is null and void.

Sec.3. Affidavit and bond required –

Requirement before the issuance of an order of a writ of attachment by the court:
• Affidavit of the applicant, or of some other person who personally knows the facts
• Bond conditioned to recompense the adverse party all the costs of litigation and all damages which he
may sustain by reason of the attachment, if the court shall finally adjudge that the applicant was not
entitled thereto.

Contents of the affidavit:

• That a sufficient cause of action exists
• The case is one of those mentioned on the grounds under sec. 1
• No other sufficient security for the claim sought to be enforced by the action
• That the amount due to the applicant, or the value of the property the possession of which he is entitled
to recover, is as much as the sum for which the order is granted above all legal counterclaims

Bonds required under attachment:

• Attachment or applicants bond
• For the issuance of the writ of PA
• Executed to the adverse party
• In the amount fixed by the court
• The bond shall answer for all damages incurred by the party against whom the attachment is issued and
sustained by him by reason of the attachment, If it be finally adjudged that the party applying for
attachment was not entitled thereto.

• Counter-bond
• Executed to the applicant
• In an amount equal to the bond fixed by the court in the order of attachment, or to the value of the
property attached, exclusive of cost
• Purpose:
• Shall secure the payment of any judgment that the attaching party may recover in the action.
• To discharge attachment

PBC vs CA, 352 SCRA 616

An order of attachment cannot be issued on a general averment, such as one ceremoniously quoting from a
pertinent rule.

Rules on the issuance of a writ of attachment must be construed strictly against the applicant.
Sec.4. Condition of applicant’s bond –
The party applying for the order must thereafter give a bond executed to the adverse party in the amount fixed
by the court in its order granting the issuance of the writ, conditioned that the latter will pay all the costs which
may be adjudged to the adverse party and all damages which he may sustain by reason of the attachment, if the
court shall finally adjudge that the applicant was not entitled thereto.

Carlos vs Sandoval, 471 SCRA 266

This bond answers for all damages incurred by the party against whom that attachment was issued and sustained
by him by reason of the attachment, if it shall be finally adjudged that the party applying for attachment was not
entitled thereto.

Sec.5. Manner of attaching property –

When can the sheriff enforce a writ of preliminary attachment –
• After summons have been duly served upon the person of the defendant; otherwise the implementation
is null and void
• It presupposes from the situation that an order of writ has been issued to, received by, the sheriff,
together with the complaint and application for attachment

How should the sheriff implement the writ?

• Shall without delay and with all reasonable diligence attach only the property of the adverse party that are:
• In the Philippines
• Not exempt from execution
• Sufficient to satisfy the claim

• The sheriff will not attach if the adverse party:

• Makes a deposit with the court from which the writ is issued in the amount equal to the bond fixed
by the court, exclusive of cost, or
• Gives a counter-bond executed to the applicant in the amount equal to the value of the property to
be attached, exclusive of costs.

• (sec.6. Sheriff’s return) after enforcing the writ, the sheriff must:
• Without delay make a return to the court which issued the writ
• The return shall have a full statement of:
• Proceedings under the writ
• Complete inventory of the property attached
• Any counter-bound given by the adverse party
• The sheriffs shall Serve copies of the return on the applicant

GR: No Summons, No implementation of attachment -

The requirement of prior or contemporaneous service of summons shall not apply where:

• The summons could not be served personally or by substituted service of summons despite diligent efforts;

Personal service – by handing a copy thereof to the defendant in person or if he refuses to receive and sign
for it, by tendering it to him

Substituted service – by leaving copies of the summons at the defendant’s residence with some person of
suitable age and discretion then residing therein, or by leaving a copies at defendant’s office or regular place
of business with some competent person in charge thereof; if for justifiable causes, the defendant cannot be
served within reasonable time
• The defendant is a resident of the Philippines temporarily absent therefrom

• Defendant is a non-resident of the Philippines

• Action is one in rem or quasi-in rem

Sec.6. Sheriff’s return –

• After enforcing the writ, the sheriff must without delay make a return to the court from which the writ
issued
• The return shall include:
• Full statement of his proceedings
• Complete inventory of the property attached
• Any counter-bond given by the party against whom attachment is issued
• The sheriff shall serve copies of the return on the applicant

Sec.7. Attachment of real and personal property; recording thereof –

How attachment of the following shall be made?

• Real property
• Personal property capable of manual delivery
• Debts and credits
• Interest in estate of decedent

REAL PROPERTY –
Includes the following:
• Those upon the record of the registry of deeds in the name of adverse party
• Growing crops or any interest thereon
• Those not appearing at all upon the records, or belonging to the adverse party and held by any other
person, or standing on the records of the registry of deeds in the name of any other person

Manner of attaching:
• By filing a copy of the order, description of the property attached, and a notice that it is attached with
the REGISTRY OF DEEDS; and
• By leaving a copy of such order, description, and notice with the OCCUPANT of the property, if any, or
with such other person or his agent if found within the province.

If the property subject to attachment has been brought under the operation of either LAND REGISTRATION ACT
or PROPERTY REGISTRATION DECREE:
• The NOTICE shall contain a reference to the number of:
• The certificate of title, volume and page in the registration book where the certificate is registered,
and the registered owner or owners thereof

PERSONAL PROPERTY

Manner of ATTACHING (capable of manual delivery ):

• By taking and safely keeping it in his (sheriff) custody, after issuing the corresponding receipt therefor

STOCKS and SHARES of any corporation or company

Manner of Attaching:
• By leaving WITH the PRESIDENT and MANAGING AGENT:
• a copy of the order and
 • notice, that such STOCK or Interest of the adverse party is attached

DEBTS and CREDITS

Includes:
• Bank deposits
• Financial interest
• Royalties
• Commission and other personal property not capable of manual delivery
Manner of attaching:

• By leaving WITH the person owing such debts, or in his possession or under his control, such credits or
other personal property, or with his agent:
• A copy of the writ, and
• Notice that the debts owing by him to the party against whom attachment is issued and the
credits and other personal property in his possession, or under his control, belonging to said
party, are attached

(sec.8) Effects of attaching:

• The third person having in their possession and control of the credits and any other similar property
belonging to the party whom attachment is issued, SHALL BE LIABLE to the APPLICANT for the amount of
such credits, debts or other similar personal property, UNTIL:
• The attachment is discharged, or
• Any judgment is satisfied

• The third person in possession and control of the property not capable of manual delivery belonging to
the party whom attachment is issued is NO LONGER liable to the applicant WHEN:
• Such property is delivered or transferred, or such
• Debts are paid, to the clerk, sheriff, or other proper officer of the court issuing the
attachment
INTEREST in ESTATE OF DECEDENT
Manner of Attaching:
• By serving the EXECUTOR or ADMINISTRATOR or other PERSONAL REPRESENTATIVE of the decedent
with a copy of the writ and notice that said interest is attached;
• And By filing a copy of such order and notice with the OFFICE of the CLERK of COURT (clerk of the
probate court) in which said estate is being settled; and notice shall be served upon the heir, legatee, or
devisee

Bar question:
If the property sought to be attached is in CUSTODIA LEGIS –
• By filing a copy of the writ with the PROPER COURT, or QUASI-JUDICIAL agency, and
• And By SERVING the notice of attachment upon the custodian of such property.

(Sec.9) Effects of attaching:

• SHALL not impair the powers of the executor, administrator, or other personal representative of the
decedent over such property for the purpose of administration

• In case where a petition for distribution is filed, the court where such petition is filed may award the
distribution to the HEIR, LEGATEE, or DEVISEE, but the PROPERTY ATTACHED shall be ORDERED delivered
to the SHERIFF making the levy, subject to the claim of such heir, legatee or devisee or any person
claiming under him
Manner of Attachment of the following:

• Real Property
• Personal Property
• Stock or shares
• Debts, Credits and all other similar personal property
• Interest in property belonging to the estate of a decedent
• Property in Custodia Legis

Real Property Personal Stocks or Debts and Interest in Property in

Property shares Credits estate of custodial legis
(bank decedent
deposits)
By filing with By taking and By leaving By leaving By leaving with By filing a
the registry of safely keeping it with the with the the copy of the
deeds a copy in his custody, president or person owing administrator or order of writ
of the order, after issuing the managing such debts, or executor or of attachment
description corresponding agent thereof, having in other personal with the
and a notice receipt therefor a copy of the possession or representative proper court
that is order and under his of the decedent or quasi-
attached; notice that control such a copy of the judicial
the stock or credits, a copy order and notice agency,
and share is of the order that it is
attached and notice attached And
By leaving a that it is
copy of such attached And By serving
order, upon the
description By filing with the custodian of
and notice office of the such property
with the clerk of court the NOTICE of
occupant of where said the
the property estate is being attachment
settled a copy of
the order and
notice that it is
attached

And

Served upon the

heir, legatee or
devisee
concerned, a
copy of such
order and notice

Examination of Party

Sec.10. Examination of party whose property is attached and persons indebted to him or controlling his
property; delivery of property to sheriff –
Who are the persons may be required to attend for examination on oath:
• any person owing debts to the party whose property attached
• any person having in his possession or under his control any creditor or other personal property
belonging to the adverse party
• the party whose property is attached

Before whom should they appear?

• before the court in which the action is pending
• before a commissioner appointed by the court

purpose of appearance:
• purpose of giving information respecting the property concerned and the testimony shall be under oath

After examination the court may (what?):

The court may order personal property capable of manual delivery belonging to adverse party, in the possession
of a third person who is require to attend before the court, TO BE DELIVERED to the CLERK OF COURT or SHERIFF
on such terms as may be just, having reference to any lien thereon or claim against the same, to await judgment
in the action.

Sale of attached property

• Sold After levy and before entry of judgment (sec.11)
• What are the attached Properties that can be sold:
• perishable ones
• those that the interest of all parties to the action will be subserved by the sale thereof

• when can it be sold:

• after levy and before entry of judgment; and
• upon hearing with notice to both parties

• who orders for the sale of the attached property

• the court in which the action is pending
• how is it sold:
• the court may order such property to be sold at PUBLIC AUCTION in such manner as it may
direct, and the proceeds of such sale to be deposited in court to abide the judgment in the
action.

II. After Entry of Judgment sec.15 (judgment has become final and executory) –

Situation:

Judgment is in favor of the attaching party and execution is issued thereon, the sheriff may cause the judgment to
be satisfied out of the property attached.

How judgment satisfied?

• in case there has been a public auction before entry of judgment:

• By paying to the judgment oblige the proceeds of all sales of perishables or other property sold in
pursuance of the order of the court, or so much as shall be necessary to satisfy the judgment

• in case there is a remaining balance due

• by selling so much of the property, real or personal, as may be necessary to satisfy the balance, if
enough for that purpose remain in the sheriff’s hands, or in those of the clerk of court
• in case property is in the possession and control of third person
• by collecting from all persons having in possession credits belonging to the judgment obligor, or owing
debts to the latter at the time of the attachment of such credits or debts, the amount of such credits and
debts as determined y the court in the action, and stated in the judgment and paying the proceeds of
such collection over the judgment oblige

Note: the sheriff shall forthwith make a return in writing to the court of his proceedings and furnish parties with
copies thereof.

Sec.16. Balance due collected upon an execution;

The sheriff must proceed to collect such balance as upon ordinary execution, if:

• any balance shall remain due after realizing upon all the property attached, including the proceeds of
any debts or credits collected, and applying the proceeds to the satisfaction of the judgment, less the
expenses of proceedings upon the judgment.

excess delivered to judgment obligor -

The sheriff shall, upon reasonable demand, must return to the judgment obligor the attached property
remaining in his hands, and any proceeds of the sale of the property attached not applied to the judgment
whenever judgment shall have been paid.

Discharge of attachment – requires notice and hearing

Period to file a motion to discharge and corresponding grounds:

• before or after levy or even after the release of the attached property upon the following grounds (sec.13):
• writ of attachment was improperly or irregularly issued or enforced
• applicant’s bond is insufficient and defect is not cured
• attachment is excessive and defect is not cured

Party who should file:

• the party whose property has been ordered attached

• after a writ of attachment is enforced upon (sec.12):

• making a cash deposit in an amount equal to that fixed by the court in the order of attachment or
equal to the value of the property as determined by the court.
• filing a counter-bond in an amount equal to that fixed by the court in the order of attachment, or
equal to the value of the property as determined by the court.

Party who should file the motion:

• the party whose property has been attached, or
• the person appearing on his behalf

Before whom should the motion be filed:

• the motion shall be filed with the court in which the action is pending

• Upon Counterbond – sec.12

Sec.12. discharge of attachment upon giving counter-bond

• when to file a motion to discharge of attachment upon counterbond
• after a writ of attachment is enforced
 • who may move for the discharge of attachment wholly or in part
• the party whose property has been attached, or
• the person appearing on his behalf

• The court shall, after due notice and hearing, order the discharge of the attachment if the movant makes a
cash deposit, or files a counter-bond executed to the attaching party with the clerk of the court where the
application is made.

• How much should the amount of the counter-bond

• In an amount equal to that fixed by the court in the order of attachment, exclusive of cost
• If the attachment is sought to be discharged with respect to a particular property, the counter-bon
shall be equal to the value of that property as determined by the court.

• purpose of the cash deposit or the counter-bond

• shall secure the payment of any judgment that the attaching party may recover in the action

• Upon the discharged of an attachment, the property attached, or the proceeds of any sale thereof, shall be
delivered to the party making the deposit or giving the counter-bond, or to the person appearing on his
behalf.

• When can the attaching party may apply for new order of attachment
• The counter-bound for any reason be found to be, or become insufficient and the party
furnishing the same fail to file an additional counter-bond

Case:

Insular Savings vs CA, 460 SCRA 122

Issue: Whether the denial of the motion to discharge attachment is proper.

The denial of the motion to discharge attachment is not proper. If a portion of a claim is already secure, there is
no justifiable reason why such portion should still be subject of counter-bond – simple common sense, if not
consideration of fair play, dictates that a part of a possible judgment that has veritably been preemptively
satisfied or secured need not be covered by the counter-bond.

Unlike the former sec.12 of rule 57 of the Rules of Court where the value of the property attached shall be the
defining measure in the computation of the discharging counter-attachment bond, the present less stringent
section 12 of Rule 57 provides that the court shall order the discharge of attachment if the movant makes a case
deposit or files a counter-bond in an amount equal to that fixed by the court in the order of attachment exclusive
of costs. Not being in the nature of a penal statute, the Rules of court cannot be given retroactive effect.

The FORMER Sec.12 of Rule 57 provides:

Sec.12. Discharge of attachment upon giving counter-bond – at any time after an order of attachment ahs been
granted, the party whose property has been attached, … may upon reasonable notice to the applicant, apply to
the judge who granted the order or to the judge of the court which the action is pending, for an order discharging
the attachment wholly or in part on the security given. The judge shall, after hearing, order the discharge of the
attachment if a cash deposit is made, or a counter-bond executed to the attaching creditor is filed, on behalf of
the adverse party, with the clerk or judge of the court where the application is made in an amount equal to the
value of the property attached as determined by the judge, to secure the payment of any judgment that the
attaching creditor may recover in the action. x x x . should such counter-bond for any reason be found to be, or
become insufficient, and the party furnishing the same fail to file an additional counter-bond, the attaching may
apply for a new order of attachment.
NEW Sec.12 of Rule 57 provides:
Sec.12. Discharge of attachment upon giving counter-bond – After a writ of attachment has been enforced, the
party whose property has been attached, or the person appearing on his behalf, may move for the discharge of
the attachment wholly or in part on the security given. The court shall, after due notice and hearing, order the
discharge of the attachment if the movant makes a cash depost, or files a counter-bond executed to the attaching
party with the clerk of the court where the application is made, in an amount equal to that fixed by the court in
the order of attachment, exclusive of costs. But if the attachment is sought to be discharged with respect to a
particular property, the counter-bond shall be equal to the value of that property as determined by the court. In
either case, the cash deposit or the counter-bond shall secure the payment of any judgment that the attaching
party may recover in the action. x x x .

GB Inc vs Sanchez 98 Phil 886

The merits of the main action are not traible in a motion to discharge an attachment; otherwise an applicant
for the dissolution could force a trial of the merits of the case on this motion.

Facts:

Respondent Chuidian secured a loan from Juan Luna Subdivision, Inc. and promised, under an “agreement to
sell”, to transfer within 60 days to Juan Luna Subdivision, Inc. the land which he bought from one Florence Shuter.
Instead of conveying the land, respondent sold the same to Elenita Hernandez for 25,000 in order to pay his
wife’s gambling debt.

Now, petitioner filed a complaint against respondent Chuidian for the collection of his indebtedness based on his
“Agreement to Sell” with a prayer asking for the issuance ex parte of a writ of preliminary attachment on the
ground that:
• Respondent converted to his own use the land which he bought in a fiduciary capacity
• Guilty of fraud in contracting his debt and incurring the obligations upon which the action is brought

Subsequently, the court granted a ex parte writ of preliminary attachment.

Before the issues have been joined (respondent not having as yet filed his answer to the complaint), respondent
filed a motion to discharge attachment on the ground that the attachment was improperly issued. After hearing
of the motion to discharge attachment, respondent Judge issued an order granting respondent’s motion to
discharge attachment.

Issue: Whether the respondent judge correct in granting the motion to discharge attachment.

Ruling:

The judge is not correct in granting the motion to discharge attachment. In the case at bar the hearings of motion
to discharge attachment were held before the issues have been joined (respondent not having yet filed his
answer to the complaint), and the order issued thereby discharging the attachment would have the effect of
deciding or prejudicing the main action.

The merits of the main action are not triable in a motion to discharge an attachment, otherwise an applicant for
the dissolution could force a trial of the merits of the case on this motion.

Recovery upon the counter bond –

Sec.17. –

Situation: when the judgment has become executory

Corresponding responsibilities:
• the surety or sureties on any counter-bond given to secure the payment of the judgment shall:
• become charged on such counter-bond, and
• bound to pay the judgment oblige upon demand amount due under the judgment

When shall the amount of counter-bond be recovered from the surety:

• after notice and summary hearing in the same action.

• On Other Grounds –

Sec.13. Discharge of attachment on other grounds – requires notice and hearing

Period to file a motion to discharge:
• before or after levy
• or even after the release of the attached property

Where to file?
• to the court in which the action is pending

Who may file?

• the party whose property has been ordered attached

grounds for an order to set aside or discharge the attachment:

• the attachment was improperly or irregularly issued or enforced and the defect is not cured
• the applicant’s bond is insufficient and the defect is not cured
• attachment is excessive and the defect is not cured
• if the attachment is excessive, the discharge shall be limited to the excess
Note: there shall be due notice and hearing before the court shall order the setting aside or the corresponding
discharge of the attachment if it appears that it was improperly or irregularly issued or enforced, or that the bond
is insufficient, or that the attachment is excessive, and the defect is not cured forthwith.

Can the attaching party file a counter-affidavit to oppose the discharge?

Yes. Under the rules, if the motion to discharge be made on affidavits, the attaching party may oppose the motion
by counter-affidavits or other evidence in addition to that on which the attachment was made.

Third party Claim

Sec.14. Proceedings where property claimed by third person –

If the property attached is claimed by any person other than the party against whom attachment had been issued
or his agent, Such THIRD Person shall:
• make an AFFIDAVIT
• Serve such affidavit upon the sheriff while the latter has possession of the attached property
• serve a copy thereof upon the attaching party

the Affidavit shall contained:

• title to the property or right to the possession thereof
• grounds of such right or title

Upon receipt, the sheriff shall not be bound to KEEP the property under attachment, UNLESS:
• the attaching party or his agent, on demand of the sheriff, shall file a BOND to indemnify the third-
party claimant

Amount and purpose of the bond:

• the bond must be approved by the court to indemnify the third party claimant
 • the bond should in a sum NOT LESS THAN the value of the property levied upon
In case of disagreement as to such value, the same shall be decided by the court issuing the writ of attachment.

NOTE: No claim for damages for the taking or keeping of the property may be enforced against the bond unless
the action (for claim of damages) thereof is filed within 120 days from the date of the filing of the bond.

Sheriff shall not be liable for damages for taking or keeping if:
• if such bond is filed
• however, nothing shall prevent such claimant or any third person from vindicating his claim to the
property, or prevent the attaching party from claiming damages against a third-party claimant who
filed a frivolous or plainly spurious claim, in the same or a separate action.

• when the writ of attachment is in favor of the RP, or any duly officer representing it;
• in the above situation, the filing of such bond is not be required;
• and in case the sheriff is sued for damages as a result of attachment, HE SHALL be represent by the
Solicitor General, and if held liable therefore, the actual damages adjudged by the court shall be paid by
the National Treasure out of the funds to be appropriated for the purpose.

Sec.15. Satisfaction of judgment out of property attached; return of sheriff – (see sale of attached property)
Sec.16. Balance due collected upon an execution; excess delivered to judgment obligor; - (see sale of attached
property)

Sec.17. Recovery upon the counterbond – (see discharge of attachment)

DISPOSITION
• disposition of money (sec.18)
Situation: the party against whom attachment is issued deposited money instead of giving a counter-bond.
If judgment rendered in favor of the attaching party:
• the money deposited shall be applied under the direction of the court to the satisfaction of the
judgment rendered
• and after satisfying the judgment the balance shall be refunded to the depositor or his assignee.

if judgment is in favor of the party against whom attachment is issued:

• the whole sum deposited must be refunded to him or his assignee

• Sec.19. Disposition of attached property where judgment is for party against whom attachment was issued –
Situation: judgment is rendered against the attaching party

Obligation of the sheriff:

• Shall deliver to the party against whom attachment issued all the proceeds of sales and money
collected or received by the sheriff, under the order of attachment, and all property attached
remaining in any such sheriff’s hands,
• And the order of attachment discharged

Sec.20. Claim for damages on account of improper, irregular or excess attachment –

When to file application for damages:
• must be filed before the trial, or
• must be filed before appeal is perfected; or
• before the judgment becomes executory

On what grounds should it be filed:

An application for damages shall be filed on account of:
• improper, irregular or excessive attachment
 • insufficiency and failed to cure the same

Judgment on such application shall not be rendered without:

• setting forth the facts showing his right to damages and the amount thereof in the application
• notices to the attaching party and his surety or sureties
• proper hearing

Compliance thereof, such damages may be awarded only after proper hearing and shall be included in the
judgment on the main case.

If the judgment of the appellate court be favorable to the party against whom the attachment is issued, when
should he file a claim for it (note: applicable on the grounds of improper, irregular, or excessive attachments):
• he must claim damages sustained during the pendency of appeal but before judgment of the appellate
court becomes executory by:
• filing an application in the appellate court and
• giving notice to the attaching party and his surety or sureties
The appellate court may allow the application to be heard and decided by the trial court.

For the grounds of insufficiency of bond or deposit given by the attaching party, the following rule shall be
observed:
• Nothing shall prevent the party against whom the attachment was issued from recovering in the same
action the damages awarded to him from any property of the attaching party not exempt from execution
should the bond or deposit given by the latter be insufficient or fail to fully satisfy the award.

Bar Questions:

Bar 1981 –
• Y is a stockholder of a local corporation. Y owns 20% of the shares of the said corporation. Y defaults on a
manufacturing contract with Z. Z sues for specific performance and damages and, on the ground that Y is
fleeing from the country to avoid his creditors, seeks to attach 20% of a parcel of land that belongs to the
corporation.

Can Z secure such an attachment granting that the averments of his petition are sufficient? Reasons.

Suggested answer:
The attachment cannot be obtained. The property sought to be attached is actually the proepryt of the
corporation which is not the defendant in the case. The corporation has a personality separate and distinct
from that of its stockholders.

Under the rules, a plaintiff or any proper party may have the PROPERTY OF THE ADVERSE PARTY attached as
security for the satisfaction of any judgment that may be recovered later.

Bar 1982 –
Edward file a complaint for accounting against Liza for accounting of the money received by her as administratix
of Edward’s hacienda. In his complaint, Edward prayed for preliminary attachment, alleging that Liza was about to
depart from the Philippines. Attached to the complaint was an affidavit executed by Marilyn to the effect that Liza
told her that she, Liza, was planning to leave for Singapore in a few days. If you were the judge, would you grant
the prayer for preliminary attachment?

Suggested answer:
Not grant the prayer for preliminary attachment. The application should show that the defendant’s departure
from the Philippines must be with the corresponding intent to defraud the creditors. This fact was not alleged in
the application for the issuance of the writ of preliminary attachment.

Would grant the prayer for preliminary attachment because this would fall under property embezzled by a person
in a fiduciary capacity under sec.1(b) of rule 57. Here, intent to defraud need not be shown because the act of Liza
is already fraudulent.

Bar 1983 –

Daniel Chan owns a house and lot at Forbes Park, Makati, where his wife and children reside, he is the chief
executive officer of various family corporation where he owns 20% of the respective capital stocks. These family
corporations owe several banks the total sum of 2.5 billion, with Chan as a solidary co-debtor.

After chan has carefully manipulated the finances of the family corporations and diverted their funds to his
account in a swiss bank, he flees from the philippines and now resident at 127 Rue Duphine, Zurich, Switzerland.
The banks concerned now retains the services of Atty. Ramon Castillo for the purpose of filing a suit in the
Philippines against Daniel Chan on his obligations as a solidiary co-debtor on the loans of the family corporations.
One of the procedural problems facing Atty. Castillo is the method of effecting a valid service of summons upon
Daniel Chan, now residing in Switzerland, to enable the Philippine courts to acquire jurisdiction over his person.

Describe the remedies and procedure, and the supporting grounds thereof that Atty. Castillo should follow as
would enable him to effect a valid service summons on Daniel Chan.

Suggested answer:

Atty. Castillo should file an action against Daniel Chan for collection of a sum of money with an application for a
writ of preliminary attachment if he has properties in the Philippines. The writ of attachment is required in order
to convert the action in personam into an action quasi in rem. In this kind of action, jurisdiction over the person of
the defendant is not required. What is required is jurisdiction over the res which could be obtained by the
attachment. Summons by publication or other modes of exterritorial service of summons would then be served
upon him with leave of court following the procedure under Sec. 15 of Rule 14 of the Rules of court.

Bar 1999 –

• In a case, the property of an incompetent under guardianship was in custodial egis. Can it be attached?
Explain.

Suggested answer:
Yes. Property placed under custodia legis can be attached. Under the rules, (Sec.7, rule 57) if the property
sought to be attached is in custodia legis,:
• A copy of the writ of attachment shall be filed with the proper court or quasi-judicial agency, and
• Notice of the attachment served upon the custodian of such property

• May damages be claimed by a party prejudiced by a wrongful attachment even if the judgment is adverse to
him? Exlpain.

Suggested answer:
Yes. Damages may be claimed even by the losing party, where the attachment was improper, irregular or
excessive. The claim for damages shall be heard with notice to the adverse party and his surety or sureties.
 An improper, irregular or excessive attachment is not validated by the fact that the attaching party prevailed
in the main action.

Bar 1999; 1975 – Kinds of attachment

Attachment vs Garnishment vs levy on execution –

Attachment and garnishment are distinguished from each other as follows:

ATTACHMENT –
• is a provisional remedy that effects a levy on property of a party as security for the satisfaction of any
judgment that may be recovered,
• the implementation must be preceded by service of summons

GARNISHMENT –
• is a levy on debts due the judgment obligor or defendant and other credits, including bank deposits,
royalties and other personal property not capable of manual delivery under a writ of execution or a writ
of attachment.
• Kind of attachment in which plaintiff seeks to subject either property of the defendant in the hands of a
third person called the garnishee, to his claim or the money which said third person owes the defendant
• Services of summons is not required to bind the garnishee

Levy on execution –
• Is a writ issued by the court after judgment by which the property of the judgment obligor is taken into
the custody of the court before the sale of the property on execution for the satisfaction of a final
judgment.
• It is the preliminary step to the sale on execution of the property of the judgment debtor

Bar 2000 –

JK’s Real property is being attached by the sheriff in a civil action for damages against LM. JK claims that he is not
party to the case; that his property is not involved in the said case; and that he is the sole or registered owner of
the said property. Under the rules of court, what must JK do to prevent the sheriff from attaching his property?

Suggested Answer:
• He may avail of the remedy called terceria by making an affidavit of his title thereto or his right to
possession thereof, stating the grounds of such right or title. The affidavit must be served upon the
sheriff and the attaching party (sec.16, Rule 57)

Upon service of the affidavit upon him, the sheriff shall not be bound to keep the property under
attachment except if the attaching party files a bond approved by the court. The sheriif shall not be liable
for damages for the taking or keeping of the property, if such bond shall be filed (sec.14, Rule 57)

• The third party claimant is not precluded under sec.14 of rule 57 from vindicating his claim to the
property in the same or in a separate action. Thus, he may file a separate action to nullify the levy with
damages resulting from the unlawful levy and seizure. This action may be totally distinct action from the
former case.

Bar 1991 –

Upon failure of X to pay the promissory note for 100,000 which he executed in favor of Y, the latter filed the
complaint for a sum of money with application for the issuance of a writ of preliminary attachment alleging
therein that X is about to dispose of his properties in fraud of his creditors.
 • May the court issue the writ immediately upon filing of the complaint and before the service of
summons?
• If service of summons is indispensable before the writ is issued, is hearing on the application necessary?
• If the writ is issued and X filed a motion to quash the attachment, may the motion be granted ex parte?

Suggested Answer
• The writ may be issued upon the filing of the complaint and even before the service of summons upon
the defendant (sec. 1 Rule 57)
• A hearing on the application is not necessary. The application for the writ need not be heard. It may be
issued ex parte. The issuance of summons is not even indispensable before the writ is issued.
• The motion to quash may not be granted ex part. A hearing is necessary (sec.12,13, rule 57)

Bar 1978

X filed a complaint in the CFI against Y for the recovery of a sum of money. X at the same time also prayed for the
issuance of an order of preliminary attachment against Y, and included in his affidavit, among others, that Y was
disposing of his properties with intent to defraud X. the court immediately issued the writ of preliminary
attachment ex parte. Y move to discharge the attachment on the ground that it was irregularly issued, in that Y
was not notified at all of such application or about the time and place of the hearing thereof, in gross violation of
the Rules and his right to due process of law.

As counsel for X prepare an opposition of Y’s motion to discharge the attachment.

Suggested answer:
Y’s motion to discharge the attachment must be denied. A writ of preliminary attachment may be issued at the
commencement of the action and can be issued ex parte.

RULE 58 – PRELIMINARY INJUNCTION

I. Definition
Temporary restraining order (sec.5, Rule 58)
• Prior notice is not mandatory
• is issued upon a verified application showing great or irreparable injury would result to the applicant
before the matter can be heard on notice. Thus preserving the status quo until the hearing of the
application for preliminary injunction.
• It only has a limited life of 20 days from date of issue
• TRO is deemed automatically vacated if before the expiration of the 20 day period, the application for PI
is denied
• Shall expire on the 20th day automatically without any judicial declaration to that effect.
• May be issued ex parte

Preliminary Injunction:
Preliminary injunction is an order granted at any stage of an action or proceeding prior to the judgment or final
order (not final and executory), requiring a party or a court, agency or a person to refrain from a particular act or
acts. It may also require the performance of a particular act or acts, in which case it shall be known as a
preliminary mandatory injunction (sec.1, Rule 58).

(Limitless vs Potentials, April 24 2007)

Preliminary injunction is a provisional remedy that a party may resort to in order to preserve and protect certain
rights and interest during the pendency of an action; the status quo should be existing ante litem motam, or at
the time of the filing of the case – preliminary injunction should not establish new relations between the parties,
but merely maintain or re-establish, the pre-existing relationship between them.

To be entitled to an injunctive writ, the petitioner has the burden to establish the following requisites:
• a right in esse or a clear and unmistakable right to be protected;
• a violation of that right
• that there is an urgent and permanent act and urgent necessity for the writ to prevent serious damage.

Absence of a showing that the petitioners have an urgent and paramount need for a writ of preliminary
mandatory injunction to prevent irreparable damage, they are not entitled to such writ (China Banking vs Co, 565
SCRA 600).

status quo – refers to the last actual, peaceful, and uncontested status that preceded the actual controversy.

A preliminary injunction or TRO may be granted only when, among other things:
• the applicant files with the court, where the action is pending, a bond executed to the party or person
enjoined, in an amount to be fixed by the court, to the effect that the applicant will pay such party or
person all damages which he may sustain by reason of the injunction or TRO if the court should finally
decide that the applicant was not entitled thereto.

China Banking vs Co, 565 SCRA 600

It is settled that the grant of a preliminary mandatory injunction rests on the sound discretion of the court.

preliminary injunction is merely a provisional remedy, adjunct to the main case subject to the latter's outcome. It
is not a cause of action in itself

Final Injunction
An injunction is preliminary when it refers to the writ secured before the finality of the judgment (sec.1 rule 58,
RC).

It is final when it is issued as a judgment making the injunction permanent. It perpetually restrains a person
from the continuance or commission of an act and confirms the previous preliminary injunction (sec.9, Rule 58,
RC).

Preventive Injunction –
• Injunction is prohibitory when its purpose is to prevent a person from the performance of a particular
act.
• The act has not yet been performed
• The status quo is preserved and restored

Mandatory Injunction –
• It is mandatory when its purpose is to require a person to perform a particular act
• The act has already been performed and this act has violated the rights of another
• It does not preserve the status quo but restores it

China banking vs Co, Dec. 6, 2006 –

Since a preliminary mandatory injunction commands the performance of an act, it does not preserve the status
quo and is thus more cautiously regarded than a mere prohibitive injunction.

Semirara Coal Corporation vs HGL Development Corporation, 510 SCRA 479 –

A lawful possessor is entitled to be respected in his possession and any disturbance of possession is a ground for
the issuance of a writ of preliminary mandatory injunction to restore the possession.

II. Classes –
the new Code of Civil Procedure
• Injunction or interdictos prohibitorios

The Spanish procedural law

• interdictos de adquirir
• interdictos de retener
• interdictos de recobrar
• interedictos de despojo

Devesa vs Arbes, March 23, 1909 –

Injunctions or interdictos prohibitorios, for the issuance of which provision is made in the new code of civil
procedure, while they resemble the interdictal actions of the Spanish procedural law in some respect, are wholly
distinct therefrom and as a rule, the cirucumstances under which, in accordance with the Spanish law, interdictos
de adquirir, de retener, de recobrar, or de despojo properly issued would not justify nor sustain the issuance of
an injunction, interdito prohibitorio, as defined and provided in the new code of civil procedure.

III. Origin -
An injunction is a special remedy contained in the new code of civil procedure and adopted from American and
English law of procedure, and the accepted American doctrine limiting its use to cases where there is no other
adequate remedy, and otherwise controlling the issue thereof, must be deemed to limit its use in like manner in
this jurisdiction (Devesa vs Arbes, 13 Phil 273).
Writs not available for recovery of property when title is not established
Injunctions, as a rule, will not be granted to take property out of the possession or control of one party and place
it into that of another whose title has not clearly been established.

IV. Purpose:
• the objective of a writ of preliminary injunction is to preserve the status quo until the merits of the case
can be fully heard; status quo is the last actual, peaceable and uncontested situation which precedes a
controversy (preysler jr vs CA 494 SCRA 547).

• the purpose of preliminary injunction is to prevent threatened or continuous irremediable injury to

some of the parties before their claims can be thoroughly studied and adjudicated (limitless vs CA, 522
SCRA 70).

V. SCOPE –
Acts already performed cannot be prohibited except specifically stated in the order – if a writ of preliminary
injunction has been issued against a particular person, enjoining him, for example, from performing any act
whatever that may tend to close and obstruct an irrigation ditch by preventing the passage of the water, when
the said ditch was already closed, it cannot be understood that the person, against whom the prohibitory order
was issued, willfully disregarded and disobeyed the said judicial writ by not removing the obstacle that prevented
the flow of the water, because this last operation is not covered by the writ of injunction (mantile vs Cajucom, 19
Phil 563).

Injunction will not lie where the acts sought to be enjoined have already been accomplished or consummated – a
writ of preliminary injunction will not issue if the act sought to be enjoined is a fait accompli.

VI. Distinguished from mandamus

Mandamus is a special civil action seeking a judgment commanding a tribunal, board, officer or person to perform
a ministerial duty required to be performed by law (sec.3, Rule 65, RC).

Mandatory injunction is directed to a party litigant, not to a tribunal and is issued to required a party to perform a
particular act to restore the status quo.

VII. Distinguished from prohibition

Prohibition is a special civil action seeking a judgment commanding a tribunal, corporation, board, or officer to
desist from further proceeding in the action because it has no jurisdiction, is acting in excess of jurisdiction or has
gravely abused its discretion amounting to lack of jurisdiction (Sec.2, rule 65, RC)

Prohibitory injunction is a provisional remedy that is directed to a litigant, not a tribunal and is issued to require
said party to refrain from a particular act (sec.1 Rule 58, RC).

Feliciano vs Alipio 94 Phil 621 –

Action for declartory relief, considered as one for prohibition –

Although the ptitioen filed against public officers is for declaratory relief, yet if it prays also for the issuance of a
permanent injunction from carrying out the provisions of a Department Circular on grounds of
unconstitutionality, the same is equivalent to an action for prohibition and the court should not dismiss the
petition but should proceed with the case considering the action as one for prohibition.

VIII. KINDS

IX. When is mandatory injunction issued (sec.3, Rule 58)

Mandatory injunction is issued when it is established:
• that the applicant is entitled to the relief demanded, and the whole or part of such relief consists of:
• requiring the performance of an act or acts for limited period or perpetually

• that the commission, continuance or non performance of the act or acts complained during the litigation
would probably work injustice to the applicant;

• that a party, court, agency or a person is:

• doing, threatening, or is attempting to do, or

• procuring or suffering to be done
some act or acts probably in violation of the rights of the applicant respecting the subject of the
action or proceeding, and tending to render the judgment ineffectual

XI. When is a TRO issued (sec.5, Rule 57)

TRO may issue ex parte if by the facts shown by the affidavits or by the verified application that:
• a great or irreparable injury would result to the applicant before the matter can be heard on notice
• under such ground, TRO issued is only effective for a period of 20 dyas from issuance and the
TRO shall be deemed automatically vacated if the application for preliminary injunction is
denied or not resolved within such period.
• The TRO may be extended provided there is a judicial declaration to that effect
• The court has no authority to extend or renew the TRO on the same ground for which it was
issued
• If issued by the Court of Appeals, it shall be valid and effective for 60 days from service on the
party or person sought to be enjoined.
• If issued by the SC, effective until further orders.
 • if the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury
• may be issued ex parte by the executive judge of a multiple-sala court
• valid only for 72 hours from issuance but shall comply with the service of summons and the
documents to be served on the party sought to be enjoined
• within the 72hrs the judge before whom the case is pending shall summary hearing to
determine whether the TRO shall be extended until the application for Preliminary injunction
can be heard.
• In no case shall the total period of effectivity of the TRO exceed 20 days, including the original
72 hrs

The trial court, the CA, the SB, or the CTA that issued a writ of preliminary injunction against a lower court, board,
officer, or quasi-judicial agency shall decided the main case or petition within 6 months from the issuance of the
writ.

Kinds if TRO –
• 20 day TRO
• Issued by the court to which the application for Preliminary injunction was made
• May be issued ex parte showing by affidavits that great or irreparable injury would result to the
applicant before the matter can be heard on notice
• The 20 day period shall start from service on the party sought to be enjoined
• Extendible without need of any judicial declaration provided that the ground for extension shall not
be the same with the first because no court shall have the authority to extend or renew the same on
the same ground for which it was issued
• On the 20th day the TRO shall expire; or it shall expire automatically if the application for preliminary
injunction is denied or not resolved within the 20 day period

• 72 hrs TRO
• Issued by an EXECUTIVE judge of a multiple-sala court; or the PRESIDING judge of a single-sala court
• Grounds for issuance: if the matter is of EXTREME URGENCY and the applicant will suffer grave
injustice and irreparable injury
• May also be issued ex parte
• Effectivity: The 72hr period shall commence from the issuance but shall immediately comply with
the service of summons and documents to be served
• Extendible without need of judicial declaration but the extension shall not exceed 20 days, including
the original 72 hr; provided that the ground for the extension shall not be the same ground for
which it was issued

• 60 days TRO
• Issued by the Court of Appeals or member thereof
• The 60 day TRO shall be effective from service on the party or person sought to be enjoined
• Non-extendible; no judicial declaration that it has expired is necessary

• indefinite TRO
• issued by the Supreme Court or member thereof
• shall be effective until further orders
• has the authority to issue TROs on cases involving
• national government infrastructure projects (SC Admin Circular No. 11-2000)

Requisites for preliminary injunctive relief:

Petitioner must establish the following requisites to be entitled to a writ of preliminary injunction:
• the right sought to be protected is material and substantial
• right of the complainant is clear and unmistakable
 • there is a violation of such right
• there is an urgent and permanent necessity for the writ of to prevent serious damage

XII. Irreparable injury; define

Term irreparable injury has a definite meaning in law. It does not have reference to the amount of damages that
may be caused but rather to the difficulty of measuring the damages inflicted. If full compensation can be
obtained by way of damages, equity will not apply the remedy of injunction. The direct and inevitable result
would be the stoppage of the operations of respondents' radio stations, consequently, losing its listenership, and
tarnishing the image that it has built over time. It does not stretch one's imagination to see that the cost of a
destroyed image is significantly the loss of its good name and reputation. As aptly appreciated by the appellate
court, the value of a radio station's image and reputation are not quantifiable in terms of monetary value.

XIII.Status quo
Grave abuse of discretion amounting to lack or in excess of jurisdiction is committed if the writ of preliminary
injunction is issued restoring the situation prior to the status quo, in effect, the disposing the main issue without
trial on the merits.

The status quo usually preserved by a preliminary injunction is the last actual, peaceable and uncontested
status which preceded the actual controversy. It is the state of affairs which is existing at the time of the filing
of the case (OWWA vs Chavez, 524 SCRA 451)

A preliminary writ of injunction is merely temporary, subject to the final disposition of the principal action. the
issuance thereof is within the discretion of the court and is generally not interfered with except in cases of
manifest abuse (Dungog vs CA, 408 SCRA 267)

XIV. Who may grant injunction

Sec.2, Rule 58. Who may grant preliminary injunction –

A preliminary injunction may be granted by:

• the court where the action or proceeding is pending
• it may be issued by the CA, or the SC if the action or proceeding is pending therein;

XV. Against whom is injunction issued –

• Senate Blue Ribbon Committee vs Majaducan, 407 SCRA 356

Where the senate in conduct legislative inquiries in aid of legislation, and persons were subpoenaed and
invited thereto, the latter cannot go to the court of justice because it has no authority to prohibit (issue a
writ of injunction) the committee from requiring that person from appearing and testifying before it;
otherwise it will be inconsistent with the doctrine of separation of powers as the same is an
encroachment to one’s prerogatives. Therefore, writ of injunction shall not issue against such
constitutional body.

• Mabayo Farms vs CA, 386 SCRA 110

As an ancillary or preventive remedy, a writ of preliminary injunction may therefore be resorted to by a
party to protect or preserve his rights and for no other purpose during the pendency of the principal
action. Its object is to preserve the status quo until the merits of the case can be heard. It is not a cause
of action in itself but merely a provisional remedy, an adjunct to a main suit. Thus, a person who is not a
party in the main suit, like private respondent in the instant case, cannot be bound by an ancillary writ,
such as the writ of preliminary injunction issued against the defendants in Civil Case No. 6695. He cannot
be affected by any proceeding to which he is a stranger. Therefore writ injunction shall not issue against
a person who is not a party in the main action.
 • Southern Cross Cement vs PCMC, July 8, 2004
The court cannot grant a writ of preliminary injunction enjoining the collection of taxes, a preemptory
judicial act which is frowned upon, unless there is a statutory basis for it. In that regard, Section 218 of
the Tax Reform Act of 1997 prohibits any court from granting an injunction to restrain the collection of
any national internal revenue tax, fee or charge imposed by the internal revenue code. Therefore, a writ
of attachment shall not issue to enjoin tax collection

• Delta ventures vs Cabato, march 9, 2000

Cases involving labor dispute, the RTC being co-equal body of the NLRC, has no jurisdiction to issue any
restraining order or injunction to enjoin the execution of any decision of the NLRC. Therefore, a writ of
attachment shall not issue against labor disputes.

• Traders Royal bank vs IAC

no court has the power to interfere by injunction with the judgments or decrees of a concurrent or
coordinate jurisdiction having equal power to grant the injunctive relief sought by injunction, except in
cases where third-party claimant is involved, in order to prevent one court from nullifying the judgment
or process of another court of the same rank or category, a power which devolves upon the proper
appellate court. The purpose of the rule is to avoid conflict of power between different courts of
coordinate jurisdiction. Therefore, a writ of injunction shall not issue against a judgment of a court
except in cases of third party claimant.

• Executive Secretary vs CA, GR no. 131719

To be entitled to a preliminary injunction to enjoin the enforcement of a law assailed to be
unconstitutional, the party must establish that
• it will suffer irreparable harm in the absence of injunctive relief and
• must demonstrate that it is likely to succeed on the merits, or
• that there are sufficiently serious questions going to the merits and the balance of hardships
tips decidedly in its favor

Before the plaintiff may be entitled to injunction against future enforcement, he is burdened to show
some substantial hardship.

Therefore, writ of injunction shall not issue to enjoin the enforcement of a law unless it can be
established with substantial hardship on the part of the plaintiff that the law assailed is
unconstitutional.

• Bangko Sentral ng Pilipinas vs Antonio-Valenzuela – Oct. 2, 2009

As such, a writ of preliminary injunction may be issued only upon clear showing of an actual existing right
to be protected during the pendency of the principal action. The twin requirements of a valid injunction
are the existence of a right and its actual or threatened violations. Thus, to be entitled to an injunctive
writ, the right to be protected and the violation against that right must be shown. Thus, the issuance of
the writ of preliminary injunction must have basis in and be in accordance with law. All told, while the
grant or denial of an injunction generally rests on the sound discretion of the lower court, this Court may
and should intervene in a clear case of abuse. (submission of ROEs)

XVI. Injunction on Government Projects

• SC Administrative Circular no. 11-2000

SEC. 3. Prohibition on the Issuance of Temporary Restraining Orders, Preliminary Injunctions and
Preliminary Mandatory Injunctions.- No court, except the Supreme Court, shall issue any temporary
restraining order, preliminary injunction or preliminary mandatory injunction against the government, or
 any of its subdivisions, officials or any person or entity, whether public or private, acting under the
government's direction, to restrain, prohibit or compel the following acts:
• Acquisition, clearance and development of the right-of-way and/or site or location of
any national government project;

• Bidding or awarding of contract/project of the national government as defined under

Section 2 hereof;

• Commencement, prosecution, execution, implementation, operation of any such

contract or project;

• Termination or rescission of any such contract/project; and

• The undertaking or authorization of any other lawful activity necessary for such
contract/project. "
This prohibition shall apply in all cases, disputes or controversies instituted by a private party, including
but not limited to cases filed by bidders or those claiming to have rights through such bidders involving
such contract/project. EXCEPTION: This prohibition shall not apply when the matter is of extreme
urgency involving constitutional issue, such that unless a temporary restraining order is issued, grave
injustice and irreparable injury will arise. The applicant shall file a bond, in an amount to be fixed by the
court, which bond shall accrue in favor of the government if the court should finally decide that the
applicant was not entitled to the relief sought,
If after due hearing the court finds that the award of the contract is null and void, the court may, if
appropriate under the circumstances, award the contract to the qualified and winning bidder or order a
rebidding of the same, without prejudice to any liability that the guilty party may incur under existing
laws.
SEC. 4. Nullity of Writs and Orders.- Any temporary restraining order, preliminary injunction or
preliminary mandatory injunction issued in violation of Section 3 hereof is void and of no force and
effect.
SEC. 5. Designation of Regional Trial Courts.- The Supreme Court may designate regional trial courts to
act as commissioners with the sole function of receiving facts of the case involving acquisition clearance
and development of right-of-way for government infrastructure projects. The designated regional trial
court shall within thirty (30) days from the date of receipt of the referral, forward its findings of facts to
the Supreme Court for appropriate action.
Republic vs Nolasco, April 27, 2005
GR: Republic Act No. 8975 definitively enjoins all courts, except the Supreme Court, from issuing any temporary
restraining order, preliminary injunction, or preliminary mandatory injunction against the government, or any of
its subdivisions, officials or any person or entity to restrain, prohibit or compel the bidding or awarding of a
contract or project of the national government, precisely the situation that obtains in this case with respect to the
Agno River Project.

EXCEPTION:
• The only exception would be if the matter is of extreme urgency involving a constitutional issue, such
that unless the temporary restraining order is issued, grave injustice and irreparable injury will arise. The
TRO issued by the RTC failed to take into consideration said law. Neither did it advert to any extreme
urgency involving a constitutional issue, as required by the statute. The law ordains that such TRO is
void, and the judge who issues such order should suffer the penalty of suspension of at least sixty (60)
days without pay.

• Case of Hernandez vs NAPOCOR -

 An injunctive relief may be issued by any other court who has jurisdiction over the subject matter
whenever national projects of the government shall be detrimental to one’s right to life.

Proviso: Unquestionably, the power to issue injunctive writs against the implementation of any government
infrastructure project is exclusively lodged with this Court (SC), pursuant to Section 3 of Rep. Act No. 8975. But
while lower courts are proscribed thereunder from issuing restraining orders and/or writs of preliminary
injunction to stop such projects, the proscription does not mean that such courts are likewise bereft of authority
to take cognizance of the issue/issues raised in the principal action, as long as such action and the relief sought
are within their jurisdiction.

Hernandez vs NAPOCOR, March 23, 2006

The prohibition (under RA 8975) is not meant to be a blanket prohibition as to disregard the fundamental right to
health, safety and well-being of a community guaranteed by the fundamental law of the land. Therefore, an
injunctive relief may be issued by any other court who has jurisdiction over the subject matter whenever
national government projects shall be detrimental to one’s right to life.

Strong Arm of Equity = Preliminary injunction; It should only be extended in cases of

• great injury where courts of law cannot afford an adequate or commensurate remedy in damages; “in
cases of extreme urgency;
• where the right is very clear;
• where considerations of relative inconvenience bear strongly in complainant’s favor;
• where there is a willful and unlawful invasion of plaintiff’s right against his protest and remonstrance,
the injury being a continuing one, and
• where the effect of the mandatory injunction is rather to reestablish and maintain a preexisting
continuing relation between the parties, recently and arbitrarily interrupted by the defendant, than to
establish a new relation.

XVII. Time to Grant Injunction

At any stage of an action or proceeding prior to the judgment or final order (sec.1 Rule 58)

XVIII.

XIX. SUFFICIENCY OF COMPLAINT, APPLICATION AND OTHER REQUISITES

A injunction or TRO may be granted only when:

• the application for the same is VERIFIED
• the application shows that the applicant is entitled to the relief sought
• unless exempted by the court, the applicant shall execute a bond to the party enjoined, in an amount
fixed by the court. The filing of the bond is conditioned upon to pay the party enjoined all damages that
he may sustained by reason of the injunction or the TRO if the court should finally decide that the
applicant is not entitled thereto.
• Upon approval of the requisite bond, a writ of preliminary injunction shall be issued

When the application for a writ of preliminary injunction or TRO is included in a complaint or any initiatory
pleading:
• If filed in a multiple sala:
 • The case shall be raffled only after notice to and in the presence of the adverse party OR the person
to be enjoined
• The notice shall be preceded, or contemporaneously accompanied, by:
• Service of summons upon the adverse party in the PHlLIPPINES
• Together with the copy of the:
• Initiatory pleading
• The applicant’s affidavit
• The applicant’s bond

GR: No service of summons; no implementation

Ex:
• Summons could not be served personally or by substituted service despite diligent efforts
• Adverse party is a resident of the Philippines temporarily absent
• Defendant is a non-resident thereof

Application of TRO when shall be heard or acted upon –

The application for a TRO shall be acted upon only:

• after all parties are heard in a summary hearing
• the summary hearing shall commenced/conducted within 24 hrs after the sheriff’s return service and/or
the records are received by the branch selected by raffle and to which the records shall be transmitted
immediately.

Land Bank of the Philippines vs Continental Watchman 420 SCRA 624

The exercise of sound judicial discretion by the trial court in injunctive matters must not be interfered with except
when there is manifest abuse.

Republic vs Evangelista 466 SCRA 544

At the hearing for the issuance of a writ of preliminary injunction, mere prima facie evidence is needed to
establish the applicant’s rights or interests in the subject matter of the main action – the applicant is required
only to show that he has an ostensible right to the final relief prayed for in his complaint.

XX. Injunction Bond (sec.4 & 7)

Sec.4. – a preliminary injunction or TRO shall not issue unless the applicant shall execute a bond to the party or
person enjoined, in an amount fixed by the court, to the effect that the applicant will pay to such party or person
all damages which he may sustain by reason of the injunction or TRO if the court should finally decide that the
applicant was not entitled thereto.

Limitless potential vs CA (supra)

Issue: Is it necessary for an enjoined party who sustained damages by reason of the injunction to prove malice
or lack of good faith in the issuance thereof before he can recover damages against the injunction bond?

No. Malice or lack of good faith in the issuance of the injunction is not an element of recovery of the injunction
bond. To require otherwise would make the filing of a bond a useless formality. The dissolution of the injunction,
even if the injunction was obtained in good faith, amounts to the determination that the injunction is wrongfully
obtained and a right of action on the injunction bond immediately accrues.

The injunction bond is intended as a security for damages in case it is finally decided that the injunction ought not
to have been granted. Its principal purpose is to protect the enjoined party against loss or damage by reason of
the injunction, and the bond is usually condition accordingly.
The damages sustained as a result of a wrongful obtained injunction may be recovered upon the injunction bond
which is required to be deposited with the court as provided in Sec.20, Rule 57 which is similarly applicable to
preliminary injunction.

Sec.6. Grounds for objection t o, or for motion of dissolution of, injunction or restraining order –

Subject of objection/dissolution: Preliminary Injunction or TRO

When may be denied If granted, when may be denied May be modified
• upon showing of its insufficiency • if it appears that the extent of
• on the other grounds upon affidavits of the party or person enjoined the Preliminary Injunction or
• if it appears after hearing that although the applicant is entitled to the restraining order is TOO
injunction or restraining order, the issuance or continuance thereof, as GREAT, it may be modified
the case may be, WOULD CAUSE IRREPARABLE DAMAGE TO THE PARTY
OR PERSON ENJOINED WHILE THE APPLICANT can be fully
compensated for such damages as he may suffer, provided that the
party or person enjoined files a bond in the amount fixed by the court
conditioned that he will pay all damages which the applicant may
suffer by the denial or dissolution of the injunction or restraining order.

Sec.7. Service of copies of bonds; effect of disapproval –

The party filing a bond shall forthwith serve a copy of such bond on the other party.

When injunction shall be dissolved:

• applicant’s bond is found to be insufficient in amount
• if the surety or sureties fails to justify
• a bond sufficient in amount with sufficient sureties approved after justification was not filed

when injunction shall be restored or granted, as the case may be:

• if the bond of the adverse party is found to be insufficient in amount
• the surety or sureties thereon fail to justify a bond sufficient in amount with sufficient sureties approved
after justification is not filed forthwith

XXI. Objections to issuance (sec.6, Rule 58)

The application for injunction or restraining order may be denied upon:
• showing of its insufficiency
• on other grounds
• if it appears after hearing that it would cause irreparable damage to the party or person enjoined
• the extent of the order is too great

XXIII. When is Final Injunction Issued

Sec.9. When final injunction granted – if after the trial of the action it appears that the applicant is entitled to
have the act or acts complained of permanently enjoined, the court shall grant a final injunction perpetually
• restraining the party or person enjoined from the commission or
• continuance of the act or acts or confirming the preliminary mandatory injunction.

XXIV. Interim Rules on Intra-Corporate Controversies –

SECTION 1. (a) Cases covered. - These Rules shall govern the procedure to be observed in civil cases involving the
following:
 • Devices or schemes employed by, or any act of, the board of directors, business associates,
officers or partners, amounting to fraud or misrepresentation which may be detrimental to
the interest of the public and/or of the stockholders, partners, or members of any
corporation, partnership, or association;
• Controversies arising out of intra-corporate, partnership, or association relations, between
and among stockholders, members, or associates; and between, any or all of them and the
corporation, partnership, or association of which they are stockholders, members, or
associates, respectively;
• Controversies in the election or appointment of directors, trustees, officers, or managers of
corporations, partnerships, or associations;
• Derivative suits; and
• Inspection of corporate books.

RULE 10
PROVISIONAL REMEDIES
SECTION 1. Provisional remedies. - A party may apply for any of the provisional remedies provided in the Rules of
Court as may be available for the purposes. However, no temporary restraining order or status quo order shall
be issued save in exceptional cases and only after hearing the parties and the posting of a bond.

XXV. AM no. 07-11-08-SC

Special Rules of Court on Alternative Disputes
RULE 5: INTERIM MEASURES OF PROTECTION
Rule 5.1. Who may ask for interim measures of protection. - A party to an arbitration agreement may petition the
court for interim measures of protection.
Rule 5.2. When to petition. - A petition for an interim measure of protection may be made (a) before arbitration is
commenced, (b) after arbitration is commenced, but before the constitution of the arbitral tribunal, or (c) after
the constitution of the arbitral tribunal and at any time during arbitral proceedings but, at this stage, only to the
extent that the arbitral tribunal has no power to act or is unable to act effectively.
Rule 5.3. Venue. - A petition for an interim measure of protection may be filed with the Regional Trial Court,
which has jurisdiction over any of the following places:
a. Where the principal place of business of any of the parties to arbitration is located;
b. Where any of the parties who are individuals resides;
c. Where any of the acts sought to be enjoined are being performed, threatened to be performed or not
being performed; or
d. Where the real property subject of arbitration, or a portion thereof is situated.
Rule 5.4. Grounds. - The following grounds, while not limiting the reasons for the court to grant an interim
measure of protection, indicate the nature of the reasons that the court shall consider in granting the relief:
a. The need to prevent irreparable loss or injury;
b. The need to provide security for the performance of any obligation;
c. The need to produce or preserve evidence; or
d. The need to compel any other appropriate act or omission.
Rule 5.5. Contents of the petition. - The verified petition must state the following:
a. The fact that there is an arbitration agreement;
b. The fact that the arbitral tribunal has not been constituted, or if constituted, is unable to act or would
be unable to act effectively;
 c. A detailed description of the appropriate relief sought;
d. The grounds relied on for the allowance of the petition
Apart from other submissions, the petitioner must attach to his petition an authentic copy of the arbitration
agreement.
Rule 5.6. Type of interim measure of protection that a court may grant.- The following, among others, are the
interim measures of protection that a court may grant:
a. Preliminary injunction directed against a party to arbitration;
b. Preliminary attachment against property or garnishment of funds in the custody of a bank or a third
person;
c. Appointment of a receiver;
d. Detention, preservation, delivery or inspection of property; or,
e. Assistance in the enforcement of an interim measure of protection granted by the arbitral tribunal,
which the latter cannot enforce effectively.
Rule 5.7. Dispensing with prior notice in certain cases. - Prior notice to the other party may be dispensed with
when the petitioner alleges in the petition that there is an urgent need to either (a) preserve property, (b)
prevent the respondent from disposing of, or concealing, the property, or (c) prevent the relief prayed for from
becoming illusory because of prior notice, and the court finds that the reason/s given by the petitioner are
meritorious.
Rule 5.8. Comment/Opposition. - The comment/opposition must be filed within fifteen (15) days from service of
the petition. The opposition or comment should state the reasons why the interim measure of protection should
not be granted.
Rule 5.9. Court action. - After hearing the petition, the court shall balance the relative interests of the parties and
inconveniences that may be caused, and on that basis resolve the matter within thirty (30) days from (a)
submission of the opposition, or (b) upon lapse of the period to file the same, or (c) from termination of the
hearing that the court may set only if there is a need for clarification or further argument.
If the other parties fail to file their opposition on or before the day of the hearing, the court shall motu proprio
render judgment only on the basis of the allegations in the petition that are substantiated by supporting
documents and limited to what is prayed for therein.
In cases where, based solely on the petition, the court finds that there is an urgent need to either (a) preserve
property, (b) prevent the respondent from disposing of, or concealing, the property, or (c) prevent the relief
prayed for from becoming illusory because of prior notice, it shall issue an immediately executory temporary
order of protection and require the petitioner, within five (5) days from receipt of that order, to post a bond to
answer for any damage that respondent may suffer as a result of its order. The ex-parte temporary order of
protection shall be valid only for a period of twenty (20) days from the service on the party required to comply
with the order. Within that period, the court shall:
a. Furnish the respondent a copy of the petition and a notice requiring him to comment thereon on or
before the day the petition will be heard; and
b. Notify the parties that the petition shall be heard on a day specified in the notice, which must not be
beyond the twenty (20) day period of the effectivity of the ex-parte order.
The respondent has the option of having the temporary order of protection lifted by posting an appropriate
counter-bond as determined by the court.
If the respondent requests the court for an extension of the period to file his opposition or comment or to reset
the hearing to a later date, and such request is granted, the court shall extend the period of validity of the ex-
parte temporary order of protection for no more than twenty days from expiration of the original period.
After notice and hearing, the court may either grant or deny the petition for an interim measure of protection.
The order granting or denying any application for interim measure of protection in aid of arbitration must indicate
that it is issued without prejudice to subsequent grant, modification, amendment, revision or revocation by an
arbitral tribunal.
Rule 5.10. Relief against court action. - If respondent was given an opportunity to be heard on a petition for an
interim measure of protection, any order by the court shall be immediately executory, but may be the subject of a
motion for reconsideration and/or appeal or, if warranted, a petition for certiorari.
Rule 5.11. Duty of the court to refer back. - The court shall not deny an application for assistance in implementing
or enforcing an interim measure of protection ordered by an arbitral tribunal on any or all of the following
grounds:
a. The arbitral tribunal granted the interim relief ex parte; or
b. The party opposing the application found new material evidence, which the arbitral tribunal had not
considered in granting in the application, and which, if considered, may produce a different result; or
c. The measure of protection ordered by the arbitral tribunal amends, revokes, modifies or is
inconsistent with an earlier measure of protection issued by the court.
If it finds that there is sufficient merit in the opposition to the application based on letter (b) above, the court
shall refer the matter back to the arbitral tribunal for appropriate determination.
Rule 5.12. Security. - The order granting an interim measure of protection may be conditioned upon the provision
of security, performance of an act, or omission thereof, specified in the order.
The Court may not change or increase or decrease the security ordered by the arbitral tribunal.
Rule 5.13. Modification, amendment, revision or revocation of court’s previously issued interim measure of
protection. - Any court order granting or denying interim measure/s of protection is issued without prejudice to
subsequent grant, modification, amendment, revision or revocation by the arbitral tribunal as may be warranted.
An interim measure of protection issued by the arbitral tribunal shall, upon its issuance be deemed to have ipso
jure modified, amended, revised or revoked an interim measure of protection previously issued by the court to
the extent that it is inconsistent with the subsequent interim measure of protection issued by the arbitral
tribunal.
Rule 5.14. Conflict or inconsistency between interim measure of protection issued by the court and by the arbitral
tribunal. - Any question involving a conflict or inconsistency between an interim measure of protection issued by
the court and by the arbitral tribunal shall be immediately referred by the court to the arbitral tribunal which shall
have the authority to decide such question.
Rule 5.15. Court to defer action on petition for an interim measure of protection when informed of constitution of
the arbitral tribunal. - The court shall defer action on any pending petition for an interim measure of protection
filed by a party to an arbitration agreement arising from or in connection with a dispute thereunder upon being
informed that an arbitral tribunal has been constituted pursuant to such agreement. The court may act upon such
petition only if it is established by the petitioner that the arbitral tribunal has no power to act on any such interim
measure of protection or is unable to act thereon effectively.
Rule 5.16. Court assistance should arbitral tribunal be unable to effectively enforce interim measure of protection.
- The court shall assist in the enforcement of an interim measure of protection issued by the arbitral tribunal
which it is unable to effectively enforce.

XXVII. SC Cir. 68-94 -

Sec. 1. No court in the Philippines shall have jurisdiction to issue any restraining order, preliminary injunction, or
preliminary mandatory injunction in any case, dispute, or controversy involving
• an infrastructure project, or
• a mining, fishery, forest, or other natural resource development project of the government, or
 • any public utility operated by the government, including among others public utilities for the transport of
the goods or commodities, stevedoring and arrastre contracts, to prohibit any person or persons, entity
or government officials from proceeding with, or continuing the execution or implementation of any
such project, or the operation of such public utility, or pursuing any lawful activity necessary for such
execution, implementation or operation.

XXX. 20-95
ADMINISTRATIVE CIRCULAR NO. 20-95 September 12, 1995
TO: COURT OF APPEALS, SANDIGANBAYAN, COURT OF TAX APPEALS, REGIONAL TRIAL COURTS,
METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS, MUNICIPAL TRIAL COURTS IN CITIES,
MUNICIPAL CIRCUIT TRIAL COURTS, SHARI'A DISTRICT COURTS, SHARI'A CIRCUIT COURTS AND ALL
MEMBERS OF THE INTEGRATED BAR OF THE PHILIPPINES
SUBJECT: RE: SPECIAL RULES FOR TEMPORARY RESTRAINING ORDERS AND PRELIMINARY INJUNCTIONS.
1. Where an application for temporary restraining order (TRO) or writ of preliminary injunction is included in a
complaint or any initiatory pleading filed with the trial court, such compliant or initiatory pleading shall be raffled
only after notice to the adverse party and in the presence of such party or counsel.
2. The application for a TRO shall be acted upon only after all parties are heard in a summary hearing conducted
within twenty-four (24) hours after the records are transmitted to the branch selected by raffle. The records shall
be transmitted immediately after raffle.
3. If the matter is of extreme urgency, such that unless a TRO is issued, grave injustice and irreparable injury will
arise, the Executive Judge shall issue the TRO effective only for seventy-two (72) hours from issuance but shall
immediately summon the parties fro conference and immediately raffle the case in their presence. Thereafter,
before the expiry of the seventy-two (72) hours, the Presiding Judge to whom the case is assigned shall conduct a
summary hearing to determine whether the TRO can be extended for another period until a hearing in the
pending application for preliminary injunction can be conducted. In no case shall the total period of the TRO
exceed twenty (20) days, including the original seventy-two (72) hours, for the TRO issued by the Executive Judge.
4. With the exception of the provisions which necessarily involve multiple-sala stations, these rules shall apply to
single-sala stations especially with regard to immediate notice to all parties of all applications for TRO.

Rule 59
Receivership

PERSONS THAT CAN BE APPOINTED AS RECEIVER

• Generally: Juridical person cannot be appointed as a receiver. Only natural person can be appointed as
receiver by court order because the rules mandates that the receiver, before entering upon his duties,
shall be sworn to perform them faithfully and obey the orders of the court (take an oath).

Exception: placement of banks or quasi-banks under receivership, the Monetary Board shall Designate
the Philippine Deposit Insurance Company (PDIC) whenever it finds them pursuant to the provisions of
the New Central Bank Act.

(Compañia General vs Gauzon, 20 Phil 261)

• An indifferent person
• Subject to the control of the court
• Can exercise only those powers provided for by the rules
• Entitled to compensation as determined and fixed by the court
A receiver is generally defined to be an indifferent person between the parties litigants, appointed by the court
and on behalf of all the parties, and not of the plaintiff or defendant only,:
• To receive and hold the thing or property in litigation, pending the suit
• To receive the rents, issues, or profits of the land or thing in question
• To hold possession and control of the property which is the subject-matter of the litigation and
• To dispose of it in such manner as may be directed by the court

He is the arm and hand of the court, part of the machinery of the court, by which the rights of the parties are
protected. He is required not only to preserve the property, but to protect the rights of all the parties interested.

Generally a receiver has no authority to incur expense in the administration of his receivership, without express
permission of the court, except it be absolutely necessary to preserve the property, and then only when, under
special circumstances, he can not secure such authority from the court. He should administer the estate as
economically as possible, to the end that the interest of all the parties shall be conserved.

The amount of compensation of a receiver is fixed by the sound discretion of the court. The court, in fixing the
compensation of the receiver, should take into consideration the general efficiency of the receiver in his
administration of the property under his control.

Distinguish from replevin

Receivership
The purpose is to preserve and take care the
property disputed pending litigation
Subject may either be personal or real property
The property is taken out from the defendant and
place under the administration and protection of a
special officer appointed by the court
There is only a mere deposit of the property in
litigation
Replevin
The purpose is to recover possession of property
capable of manual delivery wrongfully detained by
the defendant
Subject is only personal property
Property is recovered from the defendant and direct
a court officer to deliver the same to the right full
owner or possessor to restore him of the possession
thereof
There is a delivery of the property of litigation

Po Pauco vs Siguenza, 52 Phil 241

Sheriff
• Is a court officer of general character
• Not appointed for a certain judicial case
• Who exercises and can exercise his functions
within the limits of his jurisdiction
• Funds in custody of a sheriff may be within the
reach of processes coming from other judicial
proceedings
Receiver
• Is a special officer
• Appointed in relation to and within the limits of
his jurisdiction
• Whose duties are limited to his sphere of action
and do not extend further than the case in
which he was appointed
• Funds in custody of a receiver are not subject to
any other judicial processes; merely act as a
depositary
• Those who have any claim to property or funds
in the possession of a receiver, must appear in
the same proceeding in which said receiver
discharges his duties, and there, by motion or
petition, allege and prove their claims.
Case: Po Pauco vs. Sigueza
G.R. NO. L-29295 ; October 22, 1928

Held: No. The sum mentioned is in the custody of a receiver and not of a sheriff.
The sheriff is a court officer of a general character who is not appointed for certain judicial case; the sheriff is an
officer who exercises or can exercise his functions within the limits of his jurisdiction. A receiver, on the other
hand, is a special officer, appointed in relation to and within a certain case or action, and whose duties are limited
to his sphere of action, and do not extend further than the case in which he was appointed.

For this reason, while the funds in the custody of a sheriff may be within the reach of processes coming from
other judicial proceeding, such is not the case with respect to those under the custody of a depositary.
From which it follows that those who, as in the discharges his duties, and there, by motion or petition, allege and
prove their claims.

Purpose
• (sec. 1, Rule 59) To protect and preserve the rights of the parties during the:
• Pendency of the main action
• Pendency of an appeal or as an aid in the execution of a judgment when the writ of execution
has been returned unsatisfied

• Receivership is aimed at preservation of and at making more secure, existing rights. It cannot be used as an
instrument for the destruction of those rights.

• Rule 59 presupposes that there is an action and that the property subject of the action requires its
preservation

Effect of the dismissal of main case

Berg vs Teus, 88 Phil 173 – The fact that the appointment of receiver, as the defendant emphasizes, is an ancillary
remedy is precisely one powerful reason why the case should not be dismissed; dismissal of the main action
would eliminate the only basis for the appointment of a receiver and thus completely bar the door to any relief
from mischiefs.

Granted only in extreme situations

• Vivares vs Reyes, 545 SCRA 80 – receivership is a harsh remedy to be granted only in extreme situations. The
power to appoint a receiver is a delicate one and should be exercised with extreme caution and only under
circumstances requiring summary relief or where the court is satisfied that there is
• imminent danger of loss,
• the injury thereby cause be far greater than the injury sought to be averted.

The court should consider the consequences to all of the parties and the power should not be exercised
when it is likely to produce irreparable injustice or injury to private rights or the facts demonstrate that the
 appointment will injure the interests of others whose rights are entitled to as much consideration from the
court as those of the complainant.

The appointment of a receiver, because of its drastic nature and of its character as a special remedy under
our Code of Civil Procedure, is a power which should be exercised with great caution."

• Cannot be used an instrument for the destruction of the rights being preserve and taken care of.

Where rights of a party are still to be determined; Propriety

Descallar vs CA, 224 SCRA 566 –

Ruling:
The Court of Appeals appear to have given no importance to the fact that the petitioner herein, besides being the
actual possessor of the disputed property, is also the registered owner thereof. To elucidate, even if it were true
that a former witness did not have the money to buy those property, the land was titled to her name and not to
the Austrian, who is also prohibited to own lands in the Phils. There is no law which declares null and void a sale
where the vendee to whom the title of the thing sold is transferred or conveyed, paid the price with money
obtained from a third person. If that were so, a bank would be the owner of whatever is purchased with funds
borrowed from it by the vendee. Moreover, the property in question is real property, hence, it is neither
perishable or consummable. In any event, the private respondent's rights and interests, may be adequately
protected during the pendency of the case by causing his adverse claim to be annotated on the petitioner's
certificates of title. In any event, the private respondent's rights and interests, may be adequately protected
during the pendency of the case by causing his adverse claim to be annotated on the petitioner's certificates of
title.

Exhaustion of local remedies (important)

Bonaplata vs Amber, 2 Phil 395

Ruling: the Creditor is not bound. In the first place the appointment of a receiver is not proper. As a general rule
the appointment of a receiver is an equitable remedy and before such remedy is resorted to, except in certain
prescribed cases, the legal remedy must be exhausted. Hence, B(the creditor) is entitled to a writ of mandamus to
compel the issuance of execution on his judgment.

Appointment (sec.1. Rule 59)

Sec.1. Appointment of receiver. – upon a verified application, one or more receivers of the property subject of the
action or proceedings may be appointed by the court where the action is pending, or by the Court of Appeals or
by the Supreme Court, or a member thereof.

Subject matter of receivership

Property subject of the action or proceedings; otherwise receivership would not lie.

[What: order granted by the court]

How: Upon a verified application

Who: one or more receivers of the property subject of the action or proceeding may be appointed

Whom: - appointed by the court where the action is pending

- Court of Appeals,
 - Supreme Court, or a member thereof

[why/ purpose: to protect the property which is the subject in the litigation.]

When may receivership issue (grounds)?

Receivership may issue in the following cases: (main case is still pending in court)
• When it appears from the verified application, and such other proof as the court may require:
• That the party applying for the appointment of a receiver has an interest in the property or fund
• The property or fund is subject of the action or proceeding, and
• That such property or fund is in danger of being lost, removed, or materially injured unless a
receiver be appointed to administer and preserve it

Commodities Storage & Ice Plant vs CA, 274 SCRA 439 –

The guiding principal is the prevention of imminent danger to the property. If an action by its nature does not
require such protection or preservation, said remedy cannot be applied for and granted.

Petitioner ground for issuance of receivership: imminent danger, to life, health and peace of mind of the
inhabitants living near the ICE PLANT due to leakage.

The Supreme Court did not grant the remedy; because at the time the trial court issued the order for receivership
of the property, the problem had been remedied and there was no imminent danger of another leakage.
Whatever danger there was to the community and the environment had already been contained.

Neither party to a litigation should be appointed as receiver –

The general rule is that neither party to a litigation should be appointed as receiver without the consent of the
other because a receiver should be a person indifferent to the parties and should be impartial and disinterested.
The receiver is not the representative of any of the parties but of all of them to the end that their interests may
be equally protected with the least possible inconvenience and expense.

• (there is a mortgage contract) When it appears in an action by the mortgagee for the foreclosure of a
mortgage:
• That the property is in danger of being wasted or dissipated or materially injured, and
• That its value is probably insufficient to discharge the mortgage debt, or
• That the parties have so stipulated in the contract of mortgage

• After judgment
• To preserve the property during the pendency of an appeal
• To dispose of it according to the judgment
• To aid execution when the execution has been returned unsatisfied or the judgment obligor refuses
to apply his property in satisfaction of the judgment
• Otherwise to carry the judgment into effect

• Whenever in other cases it appears that the appointment of a receiver is the most convenient and feasible
means of preserving, administering, or disposing of the property in litigation.

During the pendency of an appeal

The appellate court may allow an application for the appointment of a receiver to be filed in and decided by the
court of origin and the receiver appointed to be subject to the control of said court.
Sec.2. Bond on appointment of receiver –
Before issuing the order appointing a receiver the court shall
 • Require the applicant to file a bond executed to the party against whom the application is presented, in
an amount to be fixed by the court

Condition of the bond: the bond shall be filed upon the condition that the applicant shall pay all damages that the
adverse party may sustain by reason of the appointment of receiver in case the applicant shall have procured
such appointment without sufficient cause;

And the court may, in its discretion, at any time after the appointment, require an additional bond as further
security for such damages.

Jurisdiction

Harden vs Director of Prisons, GR no. L-2349

Ruling:
While a court cannot give its receiver authority to act in another state without the assistance of the courts
thereof (53 C. J., 390-391), yet it may act directly upon the parties before it with respect to property beyond the
territorial limits of its jurisdiction, and hold them in contempt if they resist the court's orders with reference to its
custody or disposition, Whether the property was removed before or after the appointment of the receiver is
likewise immaterial.

Grounds for appointment – receivership, when not proper -

“Property or fund which is subject to the action or proceeding”

Calo vs Roldan, 76 Phil 445 -

Ruling: No. the proper remedy is to apply for a preliminary prohibitory injunction. The remedy of receivership will
not lie because as the owner has more interest than persons in preserving and administering it. Furthermore, the
legal effect of the appointment is to take the real estate out of the possession of the defendant before final
adjudication of the rights of the parties. Hence, would place the defendant economically disadvantage.

Ylarde vs Enriques, June 25, 1947

Ruling: No. Receivership will not lie. Because The land which is the subject matter of the suit here is not in any
danger of disappearing or being wasted. There is no pretense that it has any permanent improvements or fixtures
which produce income, rents or profits to be collected or preserved. At the most a bond with sufficient sureties
would be adequate to protect the plaintiffs from any possible injury consequent upon being deprived of the
possession of the property.

Furthermore, plaintiff has no interest over the standing crops there being no sort of partnership or formed
between the plaintiff and defendant by a contract or operation of law. Their title to the crops is contingent upon
their success in proving their asserted title to the soil, which is still to be decided. And even if they should
ultimately succeed in that, their rights to the products would still be dependent upon many factors yet
undetermined.

Moreover, a receiver should not be appointed where the resulting injury therefrom would probably greater
than the injury ensuing from leaving the possession of the property disturbed. Otherwise, as receivership is a
drastic, harsh, extreme remedy, the defendant shall be divested with their means of livelihood.
 Rocha & Co vs Crossfield, 6 Phil 355

The case not being one in which a receiver could be appointed, the order making such appointment was void and
was beyond the jurisdiction of the court, although that court had jurisdiction of the main action

The case at bar does not fall within any of the provisions of this section. There is no allegation in the complaint,
as has been before stated, that the plaintiff is the owner of any of the property of Rocha & Co., nor is there any
allegation that he has any lien thereon, nor are there any facts alleged in the complaint from which it could be
inferred that he was owner of such property or had any lien thereon. On the contrary, from the facts that are
alleged in the complaint it would seem that his separation from the partnership of Carman & Co., left that
partnership as a going concern and did not dissolve it. The effect of the provisions of the articles of partnership
which are referred to in the complaint is that after the withdrawal of any partner the remaining partners became
the owners of all the assets of the partnership and he became a general creditor of the partnership.

In the argument in this court it was claimed that this extraordinary remedy would not lie because the plaintiff,
Rocha & Co., had a right to appeal from the order appointing a receiver, although that appeal could not be
taken until a final judgment had been entered in the case.

Paranete vs Tan, Nov. 29, 1950

RULING: Receivership is not proper. That order, in effect, made the clerk of court a sort of a receiver charged with
the duty of receiving the proceeds of sale and the harvest of every year during the pendency of the case with the
disadvantage that the clerk of court has not filed any bond to guarantee the faithful discharge of his duties as
depositary; and considering that in actions involving title to real property, the appointment of a receiver cannot
be entertained because its effect would be to take the property out of the possession of the defendant (dis-
posses the defendant), except in extreme cases when there is clear proof of its necessity to save the plaintiff from
grave and irremediable loss or damage, it is evident that the action of the respondent judge is unwarranted and
unfair to the defendants.

The question of ownership is herein involved and both parties seem to have documentary evidence in support of
their respective claims, and to order the defendants to render an accounting of the harvest and to deposit the
proceeds in case of sale thereof during the pendency of the case would be to deprive them of their means of
livelihood before the case is decided on the merits.

Attachment, preliminary injunction, receivership and replevin

Are remedies to which parties litigant may resort for the preservation or protection of their rights or interest, and
for no other purpose, during the pendency of the principal action. If an action, by its nature, does not require
such protection or preservation, said remedies cannot be applied for and granted.

Distinction –

Attachment Preliminary Injunction Receivership Replevin

 When may On grounds under • Relief demanded in the • When the Prov rem consist in
issue Sec.1 of Rule 57 plaintiff’s complaint applicant has an delivery, by order
consist in restraining interest in the of the court, of a
the commission or property and personal property
continuance of the acts that such by the defendant
complained for, either property which to the plaintiff,
perpetually or for a is subject to of who shall give a
limited period the action or bond to assure the
litigation is in return thereof or
• It shall not issue when danger of being the payment of
the applicant’s title has lost, removed damages to the
not been clearly materially defendant in the
established. injured unless a plaintiff's action to
receiver is recover possession
appointed to of the same
preserve it; or property fails, in
order to protect
• When the the plaintiff's right
appointment of possession of
of receiver is said property, or
the most prevent the
convenient defendant from
and feasible damaging,
means of destroying or
preserving it disposing of the
same during the
Status of the Property in the property must pendency of the
object litigation cannot be in litigation. suit.
be attached. Otherwise
appointment of a
receiver will not
prosper
Purpose: In order that To preserve the status quo the object of
defendant may of the thing subject of the appointing a
not dispose of the action; in order to receiver is to
property attached preserve the rights of the secure and
and thus secure plaintiff respecting the preserve the
the satisfaction of subject of the action property or thing
any judgment during pendency of the in controversy
that may be suit. pending the
recovered by the litigation.
plaintiff from the
defendant

Oath and Bond of Receiver (sec.4, rule 59)

Before entering upon his duties,
• The receiver shall be sworn to perform his duty faithfully
• The receiver shall file a bond executed to such person and in such sum as the court may direct, to the
effect that he will faithfully discharge his duties in the action or proceeding and obey the orders of the
court
Cases:
• Citibank vs CA March 17, 1999
Ruling: yes. The appellate court is correct. With respect to the appointment of a receiver, the lower court
gravely abuse it discretion for not having complied with the requirement of filing a bond and taking of oath
by the receiver appointed. Under the rules, (see Sec.4, Rule 59, above).

Denial of application or discharge of receiver (sec.3, Rule 59)

DENIED:
The application may be denied when:
• The adverse party files a bond executed to the applicant
• Amount of bond is fixed by the court
• the bond is conditioned upon that such party shall pay the applicant(applicant for the appointment) all
damages he may suffer by reason of the acts, omissions or other matters specified in the application as
ground for such appointment

Additional circumstance when application may be denied:

• when applicant’s bond is found to be insufficient in amount and failed to cure the same

DISCHARGED:
The receiver may be discharged when:
• if it is shown that his appointment was obtained without sufficient cause
• when the adverse party files a bond executed to the applicant
• the amount of bond is fixed by the court
• the bond is conditioned that such party will pay to the applicant all damages he may suffer by reason of
the acts, omissions, or other matters specified in the applications as grounds for such appointment

Additional circumstance when the receiver may be discharged

• when the receiver’s bond is found to be insufficient in amount and failed to cure the same
• when the court, muto proprio or upon motion by either party, shall determine that the necessity of a
receiver no longer exists.

Cases:

Vivares vs Reyes, Feb. 13, 2008 –

Ruling: the receiver should be discharged upon posting of a counterbond. The rule states that “application
may be denied or the receiver discharged.” In statutory construction, the word “may” has always been
construed as permissive. If the intent is to make it mandatory or ministerial for the trial court to order the
recall of the receiver upon the offer to post a counterbond, the court should have used the word “shall.”
Thus, the trial court has to consider the posting of the counterbond in addition to other reasons presented
by the offeror why the receivership has to be set aside.

Furthermore, the appointment of a receiver shall not lie because a notice of lis penens has been annotated
on the titles of the disputed properties, thereby by affording adequate protection thereto, thus, the property
are no longer place in danger of being lost, removed or materially injured. Once the annotation is made, any
subsequent conveyance of the lot by the respondent would be subject to the outcome of the litigation since
the fact that the properties are under custodial egis is made known to all and subdry by operation of law.
Hence, there is no need for a receiver to look after the disputed properties.

Platon vs Sandoval, 74 Phil 731

 Ruling: yes the receiver should b discharged. Under the rules, a receiver may be discharged when the court,
upon motion or motu prorprio, determines that the necessity for a receiver no longer exist. Furthermore, the
receiver, being an officer of the court and not the agent or representative of either party to the action, has
no legal interest or standing to question the court's determination that the necessity for the continuation of
the receivership has ceased to exist.

Martinez vs Grano, 49 Phil 214

Held: There cannot be the slightest doubt of the power of the lower court to remove a receiver and terminate a
receivership under section 180 of the Code of Civil Procedure; and in view of the attitude of the appellant, the
impropriety of his longer remaining in office is apparent.
But it is claimed by the appellant that he has made expenditures necessary to the care and conservation of the
property over and above the proceeds obtained from the coconuts produced by the land comprised in the
receivership; and it is contended that the lower court had no power to turn him out at least as long as the
expenditures made by him have not been reimbursed. This contention seems to us to come with bad grace from a
receiver whose attitude about the receivership property has been such as that exhibited by the appellant, and
particularly in the light of his refusal to render any account of the income from the property in his possession. The
contents of the voluminous record which we have examined carefully and the history of the proceedings afford
much material for unfavorable comment upon the attitude of the appellant, but inasmuch as the case turns in the
end upon the efficiency of Judge Paredes' order declaring the sale a nullity, any comment is unnecessary.

Powers of Receiver
The receiver shall have the power to:
• bring and defend, in such capacity, actions in his own name
• take and keep possession of the property in controversy
• receive rents,
• collect debts duet to himself as receiver or to the fund, property estate, person or corporation of which he is
the receiver
• compound for and compromise the same
• make transfer
• pay outstanding debts
• dived the money and other property that shall remain among the persons legally entitled to receive the
same
• generally, do such acts respecting the property as the court may authorize

Note: funds in the hands of a receiver may be invested only by order of the court upon the written consent of all
the parties to the action.

Note: no action may filed by or against a receiver without leave of the court which appointed him.

Actions against receivers; leave of court (sec.6)

No action may be filed by or against a receiver without leave of court which appointed him.
GR: leave of court/authority which appointed the receiver is required before an action may be filed by or against
a receiver.

Oredain vs BF Homes
Ruling.
Yes, it has the capacity to sue. . In addition, the seller, petitioner Orendain, is being sued in his individual
capacity for the unauthorized sale of the property in controversy. Hence, we find no cogent reason to sustain
petitioner’s manifestation that the resolution of the instant controversy depends on the ratification by the SEC
of the acts of its agent or the receiver because the act of Orendain was allegedly not within the scope of his
authority as receiver. Furthermore, the determination of the validity of the sale to LSFSIPI will necessitate the
application of the provisions of the Civil Code on obligations and contracts, agency, and other pertinent
provisions.
Liability for refusal or neglect to deliver property to receiver (sec.7) –
A person who refuses or neglects, upon reasonable demand, to deliver to the receiver all the properties within his
power or control, subject of or involved in the action or proceeding, or in case of disagreement, as determined
and ordered by the court, may be:
• Punished for contempt and
• Shall be liable to the receiver for the properties refused or neglected to be surrendered
• Together with all damages that may have been sustained by the party or parties entitled thereto as a
consequence of such refusal or neglect

Termination of receivership
• The court, motu proprio or upon motion of either party, shall determine that the necessity for a receiver no
longer exists
• After due notice to all parties and hearing, it shall:
• Settle the accounts of the receiver
• Direct the delivery of the funds and other property in his possession to the person adjudged to be
entitled to receive them
• Order the discharge of the receiver from further duty as such

Compensation of receiver
The court shall allow the receiver such reasonable compensation as the circumstances of the case warrant, to be
taxed as costs against the defeated party, or apportioned, as justice requires.

Case:
Traders Royal Bank vs IAC, June 17, 1997
Receiver’s compensation is to be charged against the defeated party or the prevailing litigant may be made
to share the expense, as justice requires.

Ruling:
The defeated party should be responsible for the compensation of the receiver. Under the rules, the court
shall allow the receiver such reasonable compensation as the circumstances of the case warrant, to be taxed
as costs against the defeated party, or apportioned, as justice requires.

It is, therefore, clear that when the services of a receiver who has been properly appointed terminates, his
compensation is to be charged against the defeated party, or the prevailing litigant may be made to share the
expense, as justice requires. Consequently, the trial court's order approving TRB's compensation to be
charged solely against the funds under its receivership is without legal justification; hence, it was correctly
reversed by the Court of Appeals.

Judgment to include recovery against sureties( sec.9) –

The amount, if any, to be awarded to any party upon any bond filed in accordance with the provisions of this rule,
shall be claimed, ascertained and granted under the same procedure prescribed in Sec. 20, of rule 57.

Proceedings in Receivership and liquidation

Conservatorship not a pre-condition
Should the designation of a conservator a pre-condition to the designation of a receiver?
No. the designation of a conservator is not a precondition to the designation of a receiver. Hence, a bank may be
place under a receivership without the necessity of placing it first under conservatorship.

Who shall appoint a receiver?

• vested exclusively with the monetary Board

Sec.30 of the new central bank act –

Persons may be appointed as receiver of a bank or quasi bank:
• not quasi-banks -
• Philippine Deposit Insurance Corporation (PDIC)

• For quasi-banks
• PDIC, or
• Any person of recognized competence in banking or finance may be designed as receiver

Grounds for receivership –

Whenever, upon report of the head of the supervising or examining department, the Monetary Board finds that a
bank or quasibank:

• is unable to pay its liabilities as they become due in the ordinary course of business: provided that this
shall not included inability to pay caused by extraordinary demands induced by financial panic in the
banking community;

• by the Bangko Sentral, to meet its liabilities

• cannot continue in business without involving probable losses to its depositors or creditors

• has willfully violated a cease and desist order that has become final, involving acts or transactions which
amount to fraud or a dissipation of the assets of the institution

in which cases, the Monetary Board may summarily and without need for prior hearing forbid the institution
from doing business in the Philippines and designate PDIC as receiver of the banking institution.

Duties and powers of the receiver in banking laws:

• shall immediately gather and take charge of all the assets and liabilities of the institution
• administer the same for the benefit of its creditors
• exercise the general powers of a receiver under the rules of court
• shall not pay or commit any act that will involve the transfer or disposition of any asset of the
institution, except administrative expenditures
• may place the funds of the institution in nonspeculative investments
• the receiver shall determine as soon as possible, but not later than 90 days from take over, whether the
institution may be rehabilitated or otherwise place in such a condition so that it may be permitted to
resume business with safety to its depositors and creditors and the general public: provided, that any
determination for the resumption of business of the institution shall be subject to prior approval of the
Monetary board.

When shall there be liquidation -

If the receiver determines that the institution cannot be rehabilitated or permitted to resume business in
accordance with the next preceding paragraph, the Monetary Board shall notify in writing the board of directors
of its findings and direct the receiver to proceed with the liquidation of the institution.

Placement under Conservatorship (sec.29.New Central Bank Act)

Who appoints a conservator?
The designation of a conservator is vested exclusively with the Monetary Board.

What are the grounds for appointment of conservator –

Based on a report submitted by appropriate supervising or examining department, the Monetary Board finds that
a bank or a quasi-bank is in state of:
• continuing inability, or
• unwillingness to maintain a condition of liquidity deemed adequate to protect the interest of depositors
and creditors

Powers of the Conservator

• take charge of the assets, liabilities and the management thereof
• reorganize the management
• collect all monies and debts due said institution, and
• exercise all powers necessary to restore its viability
• shall report and be responsible to the Monetary Board
• shall have the power to overrule or revoke the actions of the previous management and board of
directors of the bank or quasi-bank

Problem:
The conservator of B bank revoked a contract previously entered into by the bank on the ground that the
lands subject of said contract presently command a much higher price than when it was sold. Is the
revocation valid?

Ans: No. while lands may currently command a much higher-price, a contract of sale entered into by a
bank cannot be revoked if at the time of transaction, the price agreed upon was reasonable. To rule
otherwise is to reward lawlessness and delays in the fulfillment of binding contracts. Respect for
perfected contracts and non-impairment of obligations must be upheld under the rule of law and blind
justice.

Qualifications of conservator
The conservator should be competent and knowledgeable in bank operations and management

Period of Conservatorship
The conservatorship shall not exceed 1 year

When shall conservatorship be terminated:

When the Monetary board:
• shall be satisfied that the institution can continue to operate on its own and the conservatorship is no
longer necessary
• should determine that the continuance in business of the institution would involve probable loss to its
depositors or creditors, in which case, the provision on receivership and liquidation shall apply

Receivership; Conservatorship; and Liquidation under New Central Bank Act (RA no. 7653)
Legal Basis: (Sec.29 – 30, NCBA)

Note: The Designation of conservator is not a precondition to the designation of a receiver.

PRINCIPAL CONSERVATORSHIP RECEIVERSHIP

DISTINCTION
Who appoints Appointment shall be vested exclusively with the Monetary Board
Who are Natural person competent and
appointed knowledgeable in bank operations and
management
Duration The conservatorship shall not exceed 1
year
Grounds Based on the report submitted by the
appropriate supervising or examining
department, the Monetary Board finds
that a bank or quasi-bank is:
• In a state of continuing inability, or
• Unwillingness to maintain a
condition of liquidity deemed
adequate to protect the interest of
depositors and creditors
Duties and
powers • Shall take charge of the assets,
liabilities and management,
• Reorganize the management
• Collect all monies and debts due said
institution
• Exercise all powers necessary to
• For banks not quasi-banks
• Philippine Deposit Insurance
Corporation (PDIC)
• For qausi-banks
• PDIC, or
• Any person of recognized
competence in banking or finance
The receiver shall ASAP, but not later than 90
days from take over, whether the institution:
• May be Rehabilitated or
• Can resume business with safety to its
depositors and creditors and the General
Public
If the receiver determines that the institution
cannot be rehabilitated or permitted to
resume business; the Monetary Board shall
notify the Board of Directors and shall direct
the receiver to proceed with the liquidation
of the institution
Based on the report of the supervising or
examining department, the Monetary Board
finds that a bank or quasi-bank:
• Is unable to pay its liabilities when due
and demandable; provided that this shall
not include inability to pay caused by
extraordinary demands induced by
financial panic in the banking community
• By the bangko sentral, to meet its
liabilities
• Cannot continue in business without
involving probable losses to its
depositors or creditors
• Has willfully violated a cease and desist
order under sec.37 of NCBA that has
become final, involving acts or
transactions which amount to fraud or a
dissipation of the assets of the
institution
• Shall immediately gather and take
charge of all the assets and liabilities of
the institution
• Administer the same
• Exercise the general powers of a receiver
under the Revised Rules of Court
• Shall not pay or commit any act that will
involve the transfer or disposition of any
asset of the institution, except
 restore its viability
• Report and be responsible to the
Monetary Board
• Shall have the power to overrule or
revoke the actions of the previous
management and board of directors of
the Bank or Quasi-bank
administrative expenditures
• May deposit or place the funds of the
institution in nonspeculative investments
• Determine whether the institution be
rehabilitated or permitted to resume
business with safety to its depositors and
creditors and to the general public
• When the institution is placed under
liquidation; the receiver shall:
• Convert the assets of the institution
to money to pay the debts of such
institution
• Institute an action as may be
necessary to collect and recover
accounts and assets of institution
• defend any action against, the
institution

When shall it be When the Monetary Board is:
terminated • Satisfied that the institution can
continue to operate on its own and
the conservatorship is no longer
necessary
• Based on the conservator’s reports,
determined that the continuance in
business of the institution would
involve probable loss to its
depositors and creditors. In which
case the institution shall be placed
under receivership
IF when the receiver determines that:
• The institution cannot be rehabilitated,
or
• Permitted to resume business
The Monetary Board shall notify in writing
the Board of Directors of its findings and
direct the receiver to proceed with the
liquidation of the institution.

Effects when an banking institution place under receivership or liquidation:

• The assets of an institution under receivership or liquidation shall be deemed in custodia legis in the
hands of the receiver and
• shall, form the moment the institution was place under such receivership or liquidation, be exempt from
order of garnishment, levy, attachment or execution.

Liquidation Procedure:
When shall banks or quasi-banks be placed under liquidation?
when the receiver determines that the institution cannot be:
• rehabilitated or
• permitted to resume business

in which case the, the Monetary Board shall notify in writing the Board of Directors of its findings and shall direct
the receiver to proceed with the liquidation of the institution. The receiver shall:

• file a petitioner for assistance in the liquidation of the institution with the RTC
• upon acquiring jurisdiction, the court shall, upon motion by the receiver after due notice, adjudicate
disputed claims against the institution, assist the enforcement of individual liabilities of the stockholders,
 directors and officers, and decide on the other issues as may be material to implement the liquidation
plan adopted.
• the cost of the proceedings from the assets of the institution.
• Convert the assets of the institution to money for the purpose of paying the debts of such institution
• Institutes such any actions as may be necessary to collect and recover accounts and assets of, or defend
any action against, the institution.

Interim Rules of Procedure for Intra-Corporate Controversies; Rule 9

Who has jurisdiction?
• The RTC

Venue:
All actions covered by the Interim rules of procedures for intra-corporate controversies shall be commenced and
tried in the RTC which has jurisdiction over the principal office of the corporation, partnership, or association
concerned. Where the principal office of the corporation, partnership or association is registered in the SEC as
Metro Manila, the action must be filed in the City or Municipality where the head office is located.

Rule 9
Management committee
Sec.1. Creation of a management committee –
A party may apply for the appointment of a management committee for the corporation, partnership or
association, when there is imminent danger of:
• Dissipation, loss wastage or destruction of assets or other properties;
• Paralyzation of its business operations which may be prejudicial to the interest of the minority
stockholders, parties-litigants or the general public.

Sec.2. Receiver –
In the event the court finds the application to be sufficient in form and substance, the court shall issue an order;

• appointing a receiver of known probity, integrity and competence and without any conflict of interest to
immediately take over the corporation, partnership or association, specifying such powers as it may
deem appropriate under the circumstances;

• fixing the bond of the receiver

• directing the receiver to make a report as the affairs of the entity under receivership and on the other
relevant matters within 60 days from the time he assumes office

• prohibiting the incumbent management of the company, partnership, or association from selling,
encumbering, transferring, or disposing in any manner any of its properties except payment in full of all
administrative expenses incurred after the issuance of the order

Sec.3. Receiver and management committee as officers of the court –

The receiver and the members of the management committee in the exercise of their powers and performance of
their duties are considered officers of the court and shall be under its control and supervision.

Sec.9. immunity from suit –

The receiver and members of the management committee and the persons employed by them shall not be
subject to any action, claim or demand in connection with any act done or omitted by them in good faith in the
exercise of their functions and powers. All official acts and transactions of the receiver or management
committee duly approved or ratified by the court shall render them immune from any suit in connection with
such act or transaction.
Sec.12. Discharge of the management committee –
The management committee shall be discharged and dissolved under the following circumstances;
• whenever the court, on motion or motu proprio, has determined that the necessity for the management
committee no longer exist;
• by agreement of the parties; and
• upon termination of the proceedings

upon its discharged and dissolution, the management committee shall submit its final report and render
accounting of its management within such reasonable time as the court may allow.

Powers and function of management committee: key - IEREREDPPUIGBRMRAE

(1) To investigate the acts, conduct, properties, liabilities, and financial condition of the corporation,
association or partnership under management; I
(2) To examine under oath the directors and offices of the entity and any other witnesses that it may
deem appropriate; E
(3) To report to the court any fact ascertained by it pertaining to the causes of the problems, fraud,
misconduct, mismanagement and irregularities committed by the stockholders, directors, management
or any other person; R
(4) To employ such person or persons such as lawyers, accountants, auditors, appraisers and staff as are
necessary in performing its functions and duties as management committee; E
(5) To report to the court any material adverse change in the business of the corporation, association or
partnership under management; R
(6) To evaluate the existing assets and liabilities, earnings and operations of the corporation, association
or partnership under management; E
(7) To determine and recommended to the court the best way to salvage and protect the interest of the
creditors, stockholders and the general public, including the rehabilitation of the corporation, association
or partnership under management; D
(8) To prohibit and report to the court any encumbrance, transfer, or disposition of the debtor's property
outside of the ordinary course of business or what is allowed by the court; P
(9) To prohibit and report to the court any payments made outside of the ordinary course of business; P
(10) To have unlimited access to the employees, premises, books, records and financial documents
during business hours; U
(11) To inspect, copy, photocopy or photograph any document, paper, book, account or letter, whether
in the possession of the corporation, association or partnership or other persons; I
(12) To gain entry into any property for the purposes of inspecting, measuring, surveying, or
photographing it or any designated relevant object or operation thereon; G
(13) To bring to the attention of the court any material change affecting the entity's ability to meet its
obligations; B
(14) To revoke resolutions passed by the Executive Committee or Board of Directors/Trustees or any
governing body of the entity under management and pass resolution in substitution of the same to
enable it to more effectively exercise its powers and functions; R
(15) To modify, nullify or revoke transactions coming to its knowledge which it deems detrimental or
prejudicial to the interest of the entity under management; M
 (16) To recommend the termination of the proceedings and the dissolution of the entity if determines
that the continuance in business of such entry is no longer feasible or profitable or no longer works to
the best interest of the stockholders, parties-litigants, creditors or the general public; R
(17) To apply to the court for any order or directive that it may deem necessary or desirable to aid it in
the exercise of its powers and performance of its duties and functions; and A
(18) To exercise such other powers as may, from time to time, be conferred upon it by the court.
Rules of Procedure for Corporate Rehabilitation

What: Corporate Rehabilitation

Who: Obligor-Debtor
When: Filing of Petition for Corporate Rehabilitation
Where: Trial Court, Court of Appeals, or the Supreme Court

Principle: Petition for corporate rehabilitation only requires the consent of the directors or stockholders in
“consonance with the existing laws”. This is to avoid delay in the implementation of the plan because of the
refusal of the directors or stockholders to fully cooperate in the plan.

Case: Chas Realty & Development Corp. vs. Talavera & Concepcion
G.R. No. 151925. February 6, 2003.

Ruling:
Rule 4, Section 2(k), of the Interim Rules on Corporate Rehabilitation provides:
"Sec. 2. Contents of the Petition. – The petition filed by the debtor must be verified and must set forth with
sufficient particularity all the following material facts: (a) the name and business of the debtor; (b) the nature of
the business of the debtor; (c) the history of the debtor; (d) the cause of its inability to pay its debts; (e) all the
pending actions or proceedings known to the debtor and the courts or tribunals where they are pending; (f)
threats or demands to enforce claims or liens against the debtor; and (g) the manner by which the debtor may be
rehabilitated and how such rehabilitation may benefit the general body of creditors, employees, and
stockholders.

Nowhere in the aforequoted paragraph can it be inferred that an affirmative vote of stockholders representing at
least two-thirds (2/3) of the outstanding stock is invariably necessary for the filing of a petition for rehabilitation
regardless of the corporate action that the plan envisions. Just to the contrary, it only requires in the filing of the
petition that the corporate actions therein proposed have been duly approved or consented to by the directors
and stockholders "in consonance with existing laws." The requirement is designed to avoid a situation where a
rehabilitation plan, after being developed and judicially sanctioned, cannot ultimately be seen through because of
the refusal of directors or stockholders to cooperate in the full implementation of the plan. In fine, a certification
on the approval of stockholders is required but the question, whether such approval should be by a majority or by
a two-thirds (2/3) vote of the outstanding capital stock, would depend on the existing law vis-à-vis the corporate
act or acts proposed to be done in the rehabilitation of the distressed corporation.

RULE 60
REPLEVIN

Definition; Replevin – Bar 1999

Replevin is both a form of a principal remedy and of a provisional remedy. It may either refer to the:
• Action itself – to regain possession of personal chattels being wrongfully detained from the plaintiff by
another
• Provisional remedy – while the main action is pending, the plaintiff may ask the court to allow him to
have the possession of the thing and hold it pendent lite
The action of replevin as main action is primarily possessory in nature and generally determines nothing more
than the rights of possession (BA Finance Corp vs CA, July 5, 1996).

Nature of Replevin
Replevin is described as a mixed action, being partly in rem and partly in personam
• In rem
• Insofar as the recovery of specific property is concerned
• The gist of the action is the right of the plaintiff to obtain possession of specific personal property by
reason of his being the owner or of his having a special interest therein
• Generally, the person in possession of the property sought to be relevied is ordinary the proper and only
defendant, and the plaintiff is not require to join as defendants other persons claiming a right on the
property but not in possession thereof.

• In Personam
• As regards to damages involved

BA Finance Corp vs CA - July 5, 1996

GR: when the right of the plaintiff to the possession of the specific property is so conceded or evident, the action
need only be maintained against him who so possesses the property.

Ex: in case the right of possession on the part of the plaintiff, or his authority to claim such possession or that of
his principal, is put to great doubt, it could become essential to have other persons involved and accordingly
impleaded for a complete determination and resolution of the controversy.

Reasoning: because all the party concerned is an indispensable party. And an indispensable party is whose
interest will be affected by the court’s action in the litigation and without whom no final determination of the
case can be had. The party’s interest in the subject matter of the suit and in the relief sought are so inextricably
intertwined with the other partie’s that his legal presence as a party to the proceeding is an absolute necessity.
In his absence there cannot be a resolution of the dispute of the parties before the court which is effective,
complete or equitable.

Therefore, in this case, it is necessary that the principal defendant spouses and the adverse possessor Mr. Reyes,
be impleaded for complete determination of the controversy. Otherwise, BA Finance cannot recover the subject
property through replevin even though he stand as a mortgagee who has interest or titled thereto.

REPLEVIN
To recover personal property capable of manual
delivery from the defendant
The property either belongs to the plaintiff or one
over which the plaintiff has a right of possession
ATTACHMENT
Is have the property put in the custody of the court
to secure the satisfaction of the judgment that may
be rendered in favor of the plaintiff at some future
time
The property does not belong to the plaintiff but to
the defendant

Only extends to personal property capable of
manual delivery
Property under custodia legis cannot be the object
of replevin
Must show that plaint has a title to personal
property and is wrongfully detained by the
Extends to all kinds of property, real or personal or
even incorporeal property
Can be availed of even if the property is in
custodial egis.
Must show that the property is being removed,
concealed or disposed of
 defendant

Sec.1. application – a party praying for the recovery of the possession of personal property may, at the
commencement of the action or at any time before answer, apply for an order for the delivery of such property to
him, in the manner hereinafter provided.

Who may apply for replevin?

• a party praying for recovery of possession of personal property

when may he apply?

• At the commencement of the action, or
• At any time before answer

How to apply? Sec.2. affidavit and bond -

• Filing a verified affidavit
• It can be of his own, or
• That of some other person

• That such applicant or some other person must show in his affidavit that he personally who knows the facts:
• That the applicant, particularly describing it, is:
• The owner of the property claimed, or
• Is entitled to the possession thereof

• That the property is wrongfully detained by the adverse party, alleging the cause of detention thereof
according to the best of his knowledge, information and belief;

• That the property has not been:

• Distrained, or
• Taken for a tax assessment or fine pursuant to law
• Seized under a writ of execution or preliminary attachment
• Placed under custodial egis
• Or if seized, that it is exempt from such seizure or custody

• And, the actual market value of the property

Case:

• Servicewide Specialist vs CA – Gr no. 110048, Nov. 19, 1999

– in case the right of possession on the part of the plaintiff, or his authority to claim such possession or
that of his principal, is put to great doubt it could become essential to have other persons involved and
impleaded for a complete determination and resolution of the controversy.

Ruling: the complaint for replevin should be dismissed. The debtor-mortgagor as well as the adverse
possessors should be impleaded in the complaint as they stand as an indispensable party therein. Leticia
Laus, being an indispensable party, should have been impleaded in the complaint for replevin and damages.
Without the presence of the indispensable parties to a suit or proceeding, a judgment of a court cannot
attain real finality.

GR: where the right of the plaintiff to the possession of the specified property is so conceded or evident, the
action need only be maintained against him who so possesses the property.
 Ex: in case the right of possession on the part of the plaintiff to claim such possession or that of his principal,
is put to great doubt, it could become essential to have other persons involved and impleaded for a complete
determination and resolution of the controversy.

Indispensable vs not indispensable party

Indispensable party Not indispensable party

• One whose interest will be affect by the court’s • His interest in the controversy is distinct and
action in the litgation, without whom no final divisible from the interest of the other parties and
determination of the case can be had will not necessarily be prejudiced by a judgment
which does complete justice to the parties in court
• • Merely complete relief between him an dthose
already parties to the action or will simply avoid
multiple litigation

•
• The applicant must also give a bond, executed to the adverse party in double the value of the property as
state in the affidavit.

Purpose of the bond:

• For the return of the property to the adverse party if such return be adjudged and
• For the payment to the adverse party of such sum as he may recover from the applicant in the action

Case:

• Citibank vs CA – March, 17, 1999

HELD: When the petitioner failed to declare the actual value of the machineries and equipment subject of the
replevin suit in the affidavit, there was non-compliance with Section 2, Rule 60 of the Revised Rules of Court.

Also When the petitioner filed a bond in the amount P400,000.00 which is twice the amount of P200,000.00 as
probable value declared in its complaint, there was non-compliance with Section 2, Rule 60, because the Rules of
Court requires that bonds should be based on the actual value and not on just probable value because it is
intended to indemnify the defendant against any loss that he may suffer by reason of its being compelled to
surrender the possession of the disputed property pending trial of the action, and the same may also be
answerable for damages if any when judgment is rendered in favor of the defendant or the party against whom a
writ of replevin was issued and such judgment includes the return of the property to him.
Petition DISMISSED.

• Factoran vs CA – August 22, 2000

Property lawfully taken by virtue of legal process is deemed to be in custodia legis. 39 When a thing is in
official custody of a judicial or executive officer in pursuance of his execution of a legal writ, replevin will
not lie to recover it. 40 Otherwise, there would be interference with the possession before the function of
law had been performed as to the process under which the property was taken.

Ruling: It was not proper.

 A writ of replevin does not just issue as a matter of course upon the applicant's filing of a bond and affidavit.
The mere filing of an affidavit cannot justify the issuance of a writ of replevin.

Wrongful detention by the defendant of the properties sought in an action for replevin must be satisfactorily
established. If only a mechanistic averment thereof is offered, the writ should not be issued

In the case at bar, the subject narra lumber and six-wheeler truck were confiscated by petitioner Secretary
pursuant to Section 68-A of P.D. No. 705, as amended by Executive Order (E.O.) No. 277

Issuance of the confiscation order by petitioner Secretary was a valid exercise of his power under Sec. 68-
A of P.D. No. 705. By virtue of said order, the narra lumber and six-wheeler truck of private respondents
were held in custodia legis and hence, beyond the reach of replevin.

Property lawfully taken by virtue of legal process is deemed to be in custodia legis. 39 When a thing is in
official custody of a judicial or executive officer in pursuance of his execution of a legal writ, replevin will not
lie to recover it. 40 Otherwise, there would be interference with the possession before the function of law
had been performed as to the process under which the property was taken. 41 So basic is this doctrine that it
found inclusion in the 1997 amendments introduced to the Rules of Civil Procedure. Thus, Sec. 2(c), Rule 60
of the 1997 Rules of Civil Procedure provides that:
Affidavit and bond. — Upon applying for such order the plaintiff must show by his own affidavit
or that of some other person who personally knows the facts:
xxx xxx xxx
(c) That the property has not been distrained or taken for a tax assessment or fine pursuant to
law, or seized under a writ of execution, or preliminary attachment or otherwise placed under
custodia legis, or if so seized, that it is exempt from such seizure or custody; . . .

Sec.3. Order –

Upon the filing of such affidavit and approval of the bond, the court shall issue an order and the corresponding
writ of replevin describing the personal property alleged to be wrongfully detained and requiring the sheriff
forthwith to take such property into his custody.

Case:
[G.R. No. 137705. August 22, 2000]

SERG’S PRODUCTS, INC., and SERGIO T. GOQUIOLAY, petitioners, vs. PCI LEASING AND FINANCE, INC.,
respondent.

RULING: The Petition is not meritorious. Petitioners contend that the subject machines used in their factory were
not proper subjects of the Writ issued by the RTC, because they were in fact real property. Serious policy
considerations, they argue, militate against a contrary characterization.
Rule 60 of the Rules of Court provides that writs of replevin are issued for the recovery of personal property only.
In that sense, petitioners are correct in arguing that the said machines are real, not personal, property pursuant
to Article 415 (5) of the Civil Code.
Be that as it may, we disagree with the submission of the petitioners that the said machines are not proper
subjects of the Writ of Seizure. The Court has held that contracting parties may validly stipulate that a real
property be considered as personal. After agreeing to such stipulation, they are consequently estopped from
claiming otherwise. Under the principle of estoppel, a party to a contract is ordinarily precluded from denying
the truth of any material fact found therein.
In the present case, the Lease Agreement clearly provides that the machines in question are to be considered as
personal property. Specifically, Section 12.1 of the Agreement reads as follows:
“12.1 The PROPERTY is, and shall at all times be and remain, personal property notwithstanding
that the PROPERTY or any part thereof may now be, or hereafter become, in any manner affixed or
attached to or embedded in, or permanently resting upon, real property or any building thereon, or
attached in any manner to what is permanent.”
Clearly then, petitioners are estopped from denying the characterization of the subject machines as personal
property. Under the circumstances, they are proper subjects of the Writ of Seizure.
It should be stressed, however, that our holding -- that the machines should be deemed personal property
pursuant to the Lease Agreement – is good only insofar as the contracting parties are concerned. Hence, while
the parties are bound by the Agreement, third persons acting in good faith are not affected by its stipulation

Sec.4. Duty of the Sheriff –

The property is in the possession of the adverse party, or his agent, and retain it in his custody
Upon receiving such order, the sheriff shall:
• Serve a copy of the order, the application, affidavit and bond on the adverse party
• Forthwith take the property

The Property or any part thereof is concealed in a building

The sheriff shall:
• Serve a copy of the order, the application, affidavit and bond on the adverse party
• Demand its delivery
• and if not delivered, he must cause the building or enclosure to be broken open and take the property
into his possession

After the sheriff has taken possession of the property:

• he must keep it in a secure place
• shall be responsible for its delivery to the party entitled thereto upon receiving his fees and necessary
expenses for taking and keeping the same
• Return papers – (sec.8)The sheriff must file the order, with his proceedings indorsed thereon, with the
court within 10 days after taking the property mentioned therein.

Enforcement –
Fernandez vs The international Corporate Bank, Oct. 7, 1999 A writ of replevin issued by the Metropolitan Trial
Court of Pasay City may be served and enforced anywhere in the Philippines. Moreover, the jurisdiction of a
court is determined by the amount of the claim alleged in the complaint, not by the value of the chattel seized
in ancillary proceedings.

RULING:
Under the Resolution of the Supreme Court en banc, dated January 11, 1983, providing for the interim
rules and guidelines relative to the implementation of BP 129, a writ of replevin like the one issued in the present
case may be served anywhere in the Philippines.

Although the value of the vehicle seized pursuant to the Writ of Replevin may have exceeded P200,000,
that fact does not deprive the trial court of its jurisdiction over the case. The jurisdiction of a court is determined
by the amount of the claim alleged in the complaint, not by the value of the chattel seized in ancillary
proceedings.

Under Rule 60 of the Rules of Court, the defendant has a period of 5 days from January 7, 1997 to post a
re-delivery bond, in order to secure the return of the subject vehicle and to post a counter bond double the
amount of the chattel. In this respect, defendants failed to exercise his right and are not entitled to the redelivery
of the subject vehicle.

Sec.5.Return of Property –
Can the adverse party demand for the return of the property taken? On what ground? When can he require the
return of the property taken? How is it done?

• Yes. The adverse party can demand for the return of the property taken but he cannot immediately
require the return of the property;

• On the ground of insufficiency of the applicant’s bond, adverse party can demand for the return of the
property taken;

• He may require the return thereof at any time before the delivery of the same to the applicant; but the
adverse party is required to object to the sufficiency of the bond within 5 days after the taking of the
property; otherwise the sheriff shall deliver the same to the applicant.

• By filing with the court where the action is pending a bond executed to the applicant and by serving a
copy of such bond to the applicant
• The amount of the bond shall in double of the value of the property stated in applicant’s affidavit
• Purpose of the bond: for the delivery thereof to the applicant, if such delivery be adjudged, and for
the payment of such to him as may be recovered against the adverse party

Sec.6. Disposition of the property by Sheriff-

When shall the sheriff deliver the property taken to the applicant?
If within 5 days after the taking of the property by the sheriff:
• The adverse party does not object to the sufficiency of the bond;

• If the adverse party so objects and the court affirms its approval of the applicant’s bond or approve a
new bond;

• If the adverse party requires the return of the property but his bond is objected to and found insufficient
and he does not forthwith file an approved bond

Third party Complaint – Sec.7

How can a third party recover the personal property taken by the sheriff under a writ of replevin?

If the property is still in the possession of the sheriff:

• By making an affidavit of his title thereto, or right to the possession thereof, stating the grounds
therefor, and
• Serve such affidavit upon the sheriff and a copy thereof upon the applicant

If the affidavit shall have been served on the sheriff and upon the applicant, what shall the sheriff do?
• The sheriff shall not be bound to keep the property or
• Shall not deliver it to the applicant

What is the remedy of applicant in case a third party claim has been initiated?
• The applicant, on demand of said sheriff, shall file a bond approved by the court to indemnify the third-
party claimant in a sum not less than the value of the property under replevin (in a sum not less than in
double the value of the property)
• In case of disagreement as to such value, the court shall determine the same
Can an claim for damage be enforced against the bond filed the applicant?
• No claim for damages for the taking or keeping of the property may be enforced against the bond unless
the action therefor is filed within 120 days from the date of the filing of the bond

If the applicant was the RP, should it file a bond in case of a third party claim?
• No. under the rules, when the writ of replevin is issued in favor of the RP, or any officer duly
representing it, the filing of such bond shall not be required, and in case the sheriff is sued for damages
as a result of the replevin, he shall be represented by the SOL GEN, and if held liable therfor, the actual
damages adjudged by the court shall be paid by the National Treasury out of the funds to be
appropriated for the purpose.

Noteworthy:
The sheriff shall not be liable for damages, for the taking or keeping of such property, to any such third party
claimant if such bond shall be filed.

Nothing shall prevent such claimant or any third person from vindicating his claim to the property, or prevent the
applicant from claiming damages against a third-party claimant who filed a frivolous or plainly spurious claim, in
the same or separate action.

Sec.9. Judgment –
After trial of issues, the court shall determine who has the right of possession to and the value of the property
and shall render judgment in the alternative for:
• The delivery thereof to the party entitled to the same, plus damages as either party may prove, with cost

• For its value in case delivery cannot be made, plus damages as either party may prove, with cost

Sec.10. Judgment to include recovery against sureties –

The amount, if any to be awarded to any party upon any bond filed in accordance with the provisions of this rule,
shall be claimed, ascertained, and granted under the same procedure as prescribed in sec. 20 of Rule 57.

Case:
• Visayan Surety and Insurance Corporation vs CA – September 7, 2001 – the obligation of a surety
cannot be extended by implication beyond its specified limits. Since the obligaiotn of the surety cannot
be extended by implication, it follows that the surety cannot be held liable to the intervenor when the
relationship and obligation of the surety is limited to the defendants specified in the contract of surety.

Ruling: The petition is meritorious.

An intervenor is a person, not originally impleaded in a proceeding, who has legal interest in the matter
in litigation, or in the success of either of the parties, or an interest against both, or is so situated as to be
adversely affected by a distribution or other disposition of property in the custody of the court or of an
officer thereof.14
May an intervenor be considered a party to a contract of surety which he did not sign and which was
executed by plaintiffs and defendants?
It is a basic principle in law that contracts can bind only the parties who had entered into it; it cannot
favor or prejudice a third person.15 Contracts take effect between the parties, their assigns, and heirs,
except in cases where the rights and obligations arising from the contract are not transmissible by their
nature, or by stipulation or by provision of law.16
A contract of surety is an agreement where a party called the surety guarantees the performance by
another party called the principal or obligor of an obligation or undertaking in favor of a third person
called the obligee.17 Specifically, suretyship is a contractual relation resulting from an agreement
 whereby one person, the surety, engages to be answerable for the debt, default or miscarriage of
another, known as the principal.18
The obligation of a surety cannot be extended by implication beyond its specified limits. 19 "When a
surety executes a bond, it does not guarantee that the plaintiff’s cause of action is meritorious, and that
it will be responsible for all the costs that may be adjudicated against its principal in case the action fails.
The extent of a surety’s liability is determined only by the clause of the contract of suretyship." 20 A
contract of surety is not presumed; it cannot extend to more than what is stipulated.

Special Civil Actions

Preliminaries
Types of civil actions:
• Ordinary civil action (OCA)
• Special civil action (SCA)

Legal Basis:
Sec.3(a), Rule 1, Rules of Court – these rules shall govern the procedure to be observed in actions, civil or
criminal and special proceedings.
• A civil action is one by which a party sues another for the enforcement or protection of a right, or the
prevention or redress of a wrong.
A civil action may either be ordinary or special. Both are governed by the rules for ordinary civil
actions, subject to the specific rules prescribed for a special civil action.

Distinction:
Note: The fact that an action is subject to special rules other than those applicable to ordinary civil actions is what
makes a civil action special.

• As to cause of action –
In ordinary civil action, the defendant must have performed an act or omission in violation of the rights of
another. The cause of action as defined and required of an OCA finds no application to SCA.
Example:
• SCA of declaratory relief – is brought before there is any breach or violation of a deed, will, contract, statute,
executive order or regulation, or any other governmental regulation.
• Interpleader – the plaintiff may file a complaint even if he has sustained no actual transgression of his rights.
In fact the plaintiff in this SCA has no interest in the subject matter of the action. This is not so in an OCA.

• As to venue
OCA – venue is determined either by:
• Personal action – the residence of the parties, at the election of the plaintiff
• Real action – the location of the property
SCA – the above rule does not apply in SCA.

Example:
• Quo warranto – venue is:
• where the Supreme Court or the Court of Appeals sits without taking consideration of residence of the
parties
• Lodged with the RTC, here the RTC merely looks into the residence of the respondent, not that of the
petitioner.

• As to Court’s jurisdiction-
OCA – jurisdiction is determined or depends upon the jurisdictional amount or nature of the action involved as
provided by BP 129, as amended. In which case, OCA may be initially filed in the RTC or MTC.
SCA – there are special civil actions which can only be filed in a MTC like the actions for forcible entry and
unlawful detainer. There are also SCA which cannot be commenced in the MTC of which are the petitions for
certiorari, prohibition and mandamus.

SCA under the rules are the following:

• Interpleader (Rule 62)
• Declaratory Relief and Similar Remedies (Rule 63)
• Review of Judgment and final orders or resolutions of the Commission on Elections and the Commission
on Audit (Rule 64)
• Certiorari, Prohibition, and Mandamus (Rule 65)
• Quo Warranto (Rule 66)
• Expropriation (Rule 67)
• Foreclosure of real estate mortgage (Rule 68)
• Partition (Rule 69)
• Forcible Entry and Unlawful Detainer (Rule 70)
• Contempt (rule 71)

Initiated by filing of a PETITION Initiated by filing a Complaint

• Declaratory Relief and other similar
remedies (Rule 63)
• Review of judgment and final orders or
resoultions of COMELEC and COA (Rule 63)
• Certiorari, Prohibition and Mandamus
• Quo Warranto
• Contempt
• Interpleader (Rule 62)
• Expropriation (Rule 67)
• Foreclosure of real estate
mortgage
• Partition
• Forcible entry and Unlawful
detainer

RULE 61
SUPPORT PENDENTI LITE

Definition – Support pendente lite is an amount of support provisionally fixed by the court in favor of the person
or persons entitled thereto during the pendency of an action for support or criminal action where civil liability
includes support for the offspring provided that the civil aspect thereof has not been waived, reserved or instituted
prior to its filing.

Family Code
TITLE VIII
SUPPORT

Support (art.194)

In keeping with the financial capacity of the family, Support comprises everything indispensable for:

• Sustenance
• Dwelling
• Clothing
 • Medical attendance
• Education and
• Transportation

Education of the person shall include his:

• Schooling or training for some profession, trade or vocation,
• Even beyond the age of majority

Transportation shall include:

• Expenses in going to and from school, or
• To and from place of work

Who are obliged to support each other, under the law? (art.195)

• The spouses;
• Legitimate ascendants and descendants
• Parents and their legitimate children and the legitimate and illegitimate children of the latter;
• Parents and their illegitimate children and the legitimate and illegitimate children of the latter;
• Legitimate brothers and sisters, whether of the full or half-blood
• (art.196) Brothers and sisters not legitimately related, whether full or half blood, are likewise bound to
support each other EXCEPT only when the need for support of the brother or sister, being of age, is due to
a cause imputable to the claimant’s fault or negligence

Order in the liability for support (art.199) –

Whenever two or more persons are obliged to give support, the following persons shall be called to the
obligation in the order herein provided:
• The Spouse;
• The descendants in the nearest degree
• The ascendants in the nearest degree; and
• The brothers and sisters

The order for support may be disregarded when:

• When the father or mother of a child under the age of majority unjustly refuses to support or fails to give
support to the child when urgently needed by the latter, any third person may furnish support to the
needy individual, with a right of reimbursement from the person obliged to give a support (art207).

When shall be the separate property of a person obliged to give support be answerable? (art.197)

GR: The separate property of a person obliged to give support shall be answerable when it is for the support of:
• Legitimate ascendants;
• Descendants, whether legitimate or illegitimate; and
• Brothers and sisters, whether legitimately or illegitimately related

EX: when the obligor (person obliged to give support) has no separate property. In which case the absolute
community or the conjugal partnership, if financially capable, shall advance the support.

Effect: the support given which was taken from the absolute community or the conjugal partnership shall be
deducted from the share of the spouse obliged upon the liquidation of the absolute community or of the conjugal
partnership
 (art.198) When shall be the property of the absolute community or the conjugal partnership be answerable for
support? It shall be answerable for the support of the spouses and their children during the proceedings for:

• Legal separation
• Annulment of marriage
• Declaration of nullity of marriage

Effects of granting the petition:

• After final judgment granting the petition, the obligation of mutual support between the spouses ceases
(applicable only in cases of annulment or nullity of marriage);

• In case of legal separation, the court may order that the guilty spouse shall give support to the innocent
one, specifying the terms of such order

Art.200 –
When 2 or more persons obliged to give support; RULE –

GR: When 2 or more persons are obliged to give support –

• The payment of the same shall be divided between them in proportion to the resources of each.

EX: the judge may order only one of them to furnish the support provisionally, without prejudice to his right to
claim from the other obligors the share due from them, :

• In case of urgent need AND

• By special circumstances

When 2 or more persons are recipient from one and the same person – RULE

When 2 or more persons are recipient at the same time claim support from one and the same person legally
obliged to give it, should the latter not have sufficient means to satisfy all claims, the claims may be satisfied from
the following in the order provided:
• The spouse
• The descendants in the nearest degree
• The ascendants in the nearest degree, and
• The brothers and sisters

Should the concurrent obligees be the spouse and a child (still a minor) subject to parental authority, the child shall
be preferred.

(art.203) when shall be the obligation to give support demandable and be paid?

• Demandable – from the time the person who has a right to receive the same needs it for maintenance
• shall not be paid - except from the date of judicial or extrajudicial demand.

Payment shall be made within the first 5 days of each corresponding month. When the recipient dies, his heirs
shall not be obliged to return what he has received in advance.

Art.204. option of the person obliged to give support –

The person obliged to give support shall have the option to:

• fulfill the obligation either by:

• paying the allowance fixed
• receiving
• maintain in the family dwelling the person who has a right to receive support

• however, this alternative cannot be availed of in case there is MORAL or LEGAL OBSTACLE thereto.

Art.205. – everything receive as a support or the right to receive a support is not subject to attachment or
execution.

GR: The right to receive support under this titled as well as any money or property obtained as such support shall
not be levied upon on attachment or execution.

NOTE: right to receive support is exempt from execution.

EX: art.208. – in case of contractual support or that given by will, the excess in amount beyond that required for
legal support shall be subject to levy on attachment or execution.

Furthermore, contractual support shall be subject to adjustment whenever modification is necessary due to
changes in circumstances manifestly beyond the contemplation of the parties.

Art.206. when support is given by a strange

GR: When, without the knowledge of the person obliged to give support, it is given by a stranger, the latter shall
have a right to claim the same from the former;

EX: unless it appears that he gave it without any intention of being reimbursed.

Art. 207.
When the person obliged to support another unjustly refuses or fails to give support when urgently needed by the
latter,

• any third person may furnish support to the needy individual

• with the right of reimbursement from the person obliged to give support

this article shall apply particularly when the father or mother of a child under the age of majority unjustly
refuses to support or fails to give support to the child when urgently needed.

Art. 208.
In case of contractual support or that given by will, the excess in amount beyond that required for legal support
shall be subject to levy on attachment or execution.

Furthermore, contractual support shall be subject to adjustment whenever modification is necessary due to
changes in circumstances manifestly beyond the contemplation of the parties.

Section 1. Application

At the commencement of the property action or proceeding, or at any time prior to the judgment or final
order, a verified application for support pendente lite may be filed by any party stating the grounds for the claim
and the financial conditions of both parties, and accompanied by affidavits, depositions or other authentic
documents in support thereof.

When to file?
• At the commencement of the proper action or proceeding; or
 • At any time prior to the judgment or final order

Who may file?

Any party who has a right to receive support under the law.

How to file?

• By filing a verified application for support pendente lite; the application shall state:

• The grounds for the claim

• The financial conditions of both parties

The application shall be accompanied by affidavits, depositions or other authentic documents in support thereof
• A copy of the application and all supporting documents shall be served upon the adverse party

• The adverse party, upon service thereof, shall have 5 days to comment thereon, unless a different period is
fixed by the court upon his motion

• The comment shall be VERIFIED and shall be accompanied by affidavits, depositions or other authentic
documents in support thereof.

• The application shall be set for hearing and a hearing shall be conducted;

When shall be the application be set for hearing?

• After the comment is filed, or

• After the expiration of the period for its filing

• The court then shall determine. If the application is granted, the court shall issue an order where it shall fix the
amount of money to be provisionally paid as support. If the application is denied, the principal case, shall be
tried and decided as early as possible.

When support pendent lite be availed of:

• In a main action for support; or

• In a criminal action where civil liability includes support for the offspring provided the civil aspect thereof has
not been waived, reserved, or instituted prior to its filing (Sec.6 Rule 61).

• repeated acts of conjugal infidelity on the part of the husband are proved, and he appears to be a recurrent, if
not an incurable offender against the sanctity of the marriage tie. This gives the wife an undeniable right to
relief (Villanueva vs Villanueva, 54 phil 92).

When support pendente lite will not be availed of?

• When the right to support is put in issue in the pleadings or the fact from which the right to support arises has
not been established, the court cannot grant support pendente lite;

• the minor who alleges that he is the son of the defendant must first prove his civil status as such son
(Fransico vs Zandueta, 61 Phil 752).
 • A woman alleging to be the wife of the defendant, brought an action for support. The rules only grant the
right to alimony to a wife. This status not appearing by a final judgment, the court is without jurisdiction
to make any order in the matter (Yangco vs Phode, 1 Phil 404).

• When the main action is for the Recovery of the possession of a property; it is not considered as the proper
action contemplated by the rules (coquia vs Baltazar, Dec. 29, 1949).

• When there was no complete hearing of the application as the defendant was not given an opportunity to
overcome the application by presenting his defense; the case should be remanded to the lower court for
further reception of evidence (Mangoma vs Macadaeg, Dec. 10,1951).

• Arroyo vs. Vazquez de Arroyo (42 Phil. 54), where the charges of cruelty were found to be unproved or
insufficient

Ramos vs. CA, L-31897, June 30, 1972

If, before the rendition of judgment, the trial court may "provisionally" grant alimony pendente lite, with more
reason may an appellate court exercise a similar authority, after a full dress trial and a decision of the trial court on
the merits finding that the claim of filiation and support has been adequately proven — in the case at bar, beyond
doubt — even if such decision were still pending appeal taken by the party adjudged to be bound to give such
support.

“In view of the poverty of herein private respondents, "it would be a travesty of justice" to refuse them
support until the decision of the trial judge "is sustained on appeal."

Section 2. Comment

• Copy of the application and all supporting documents shall be served upon the adverse party

• The adverse party shall have 5 days to COMMENT thereon unless a different period is fixed by the court upon
his motion

• The COMMENT shall be VERIFIED and shall accompanied by:

• affidavits
• depositions or other authentic documents in support thereof

Section 3. Hearing

• The application shall be set for hearing not more than 3 days:
• after the comment is filed, or
• after the expiration of the period for its filing

• The facts in issue shall be proved in the same manner as is provided for evidence on motion.

Section 4. Order
• the court shall:
• determine provisionally the pertinent facts
• render orders as justice and equity may require

All having due regard to the:

• probable outcome of the case and
• such other circumstances as may aid in the proper resolution of the question involved

• if the application is granted:

 • the court shall fix the amount of money to be provisionally paid or such other forms of support
• Taking into account the
• necessities of the applicant
• the resources or means of the adverse party,
• the terms of payment or mode of providing the support

• if the application is DENIED

• the principal case shall be tried and decided as early as possible

Mangonon vs. CA, G.R. No. 125041, 06/30/06

“Under this provision (Sec.4), a court may temporarily grant support pendente lite prior to the rendition of
judgment or final order. Because of its provisional nature, a court does not need to delve fully into the merits of
the case before it can settle an application for this relief. All that a court is tasked to do is determine the kind and
amount of evidence which may suffice to enable it to justly resolve the application. It is enough that the facts be
established by affidavits or other documentary evidence appearing in the record.”

Section 5. Enforcement of order

If the adverse party fails to comply with an order granting support Pendente lite –
• the court shall, motu proprio, or upon motion, issue an order of execution against him, without prejudice
to his liability for contempt

When a person ordered to give support pendente lite refuses or fails to do so

• any third person who furnished that support to the applicant may, after due notice and hearing in the same
case, obtain a WRIT OF EXECUTION to enforce his right of reimbursement against the person ordered to
provide such support

Section 6. Support in criminal cases

The accused may be ordered to provide support pendente lite to the child born to the offended party allegedly
because of the crime when:

• there is a criminal action where the civil liability includes support for the offspring as a consequence of the
crime AND
• the civil aspect thereof has not been waived, reserved or instituted prior to its filing

Who may file an application in such instance?

The application may be filed successively during the pendency of the case, by:

• the offended party

• her parents
• grandparents or guardian
• the State

When should the application be filed?

During the pendency of the criminal case.

Section 7. Restitution
When person providing support pendente lite is found by judgment or final order of court that he is not liable
thereof;
• the court shall order the recipient thereof to return to the former the amounts already paid with legal
interest from the dates of actual payment

• without prejudice to the right of the recipient to obtain reimbursement in a separate action from the
person legally obliged to give the support.

If the recipient failed to reimburse the amount:

• the person who provided the same may likewise seek reimbursement thereof in a separate action from
the person legally obliged to give such support

Saavedra vs Ybanez Estrada, 56 Phil 33

An order pendente lite is in its very nature contingent, and the dismissal of the action had the effect of
abrogating the order.

RULE 62 – Interpleader

Interpleader, defined (Bar 1998) –

Interpleader is a form of action originally developed under equity jurisprudence. Under our jurisdiction it is a
special civil action. It allows a plaintiff to initiate a lawsuit in order to compel two or more other parties to litigate
a dispute. An interpleader action originates when the plaintiff holds property on behalf of another, but does not
know to whom the property should be transferred. It is often used to resolve disputes arising under insurance
contracts.
When Interpleader proper (sec.1, Rule 62)
A person (plaintiff), against whom two conflicting claims are made upon the same subject matter and over which
he claims no interest, or if he has interest at all, such interest is not disputed by the claimants, may file a special
civil action against the conflicting claimants to compel them to interplead and litigate their several claims among
themselves.
Requisites for interpleader:
• There must be two or more claimants with conflicting interest to a property in the custody or possession of
the plaintiff
• The plaintiff in an action for interpleader has no interest/claim upon the subject matter of the adverse claim,
or if he has an interest at all, such interest is not disputed by the claimiants.
• Subject matter of the adverse claims must be one and the same.

Purpose:
• Afforded to protect a person not against double liability but against double vexation in respect of one
liability.

Distinguish from Intervention –

Interpleader
• A special civil action, independent and original
• Commence by filing a complaint
• Filed by a person who has no interest in the
subject matter of the action or if he has an
Intervention
• Accessory, ancillary and depends upon the
existence of the main action
• Commenced by filing a motion to intervene
• Filed by a person who has a legal interest in
any of the following:
 interest, the same is not disputed by the
claimants.
• Defendants are brought into the action only
because they are impleaded as such in the
complaint
• Subject matter of litigation
• Success of either of the parties
• Success of both of the parties
• He may be adversely affected by the
disposition or distribution of property in the
judgment
• If a complaint-in-intervention is filed, the
defendants are already parties to the main
action not because of the intervention but
because of the original suit.

Viuda de Camilo vs. Aranio

GR No. L-15653, September 29, 1961

Interpleader will not lie when 2 defendants has separate and distinct adverse claim. And there being no
conflicting claims against the respondent, a complaint of interpleader may be dismissed for lack of cause of
action.

Facts: X and Y (petitioners) are in peaceful, open and adverse possession of two different parcels of foreshore
lands of different areas, adjoining each other, situated in Malangas, Zamboanga del Sur. X and Y built their
respective commercial building on their respective land property. However, a fire razed their building. Here
comes A and B (respondents) who takes possession and entered into the subject land. Respondents constructed a
building of their own. The building was so built that the lands previously occupied by the petitioners (X and Y)
were encroached upon.
Petitioners respectively filed an action for forcible entry against respondent with the court. Both petitioners
prayed that respondent should vacate the portion of their respective property which was encroached upon when
they erected their building.
While the two cases were pending, respondent filed a complaint for interpleader alleging that the X and Y has
conflicting interest, since they all claimed to be entitled to the possession of the lot in question and they
(respondents) could not determine without hazard to themselves who of defendants was entitled to the
possession.

Issue: Whether the action for interpleader will prosper?

Ruling: The action for interpleader will not prosper. Petitioners did not have any conflicting claims against
respondent. Their respective claim was separate and distinct from each other. De Camilo only wanted the
respondents to vacate that portion of her property which was encroached upon by them when they erected their
building. Petitioner claimed possession of two different parcels of land of different areas, adjoining each other.
They only wanted the respondent to vacate that portion of their respective property which was encroached upon
by them when they (respondentst) erected their building. Hence, absence of the requirements for action of
interpleader, the compliant of interpleader may be dismissed for lack of cause of action.

Wack-Wack Golf v. Lee Won

G.R. No. L-23851, March 26, 1976

The interpleader suit cannot prosper because the Petitioner had already been made independently liable in Civil
Case No. 26044 and, therefore, its present application for interpleader would in effect be a collateral attack
upon the final judgment in the said civil case.
Facts: Wack Wack Golf & Country Club Inc., operating under Philippine laws, filed a complaint to compel Lee and
Tan (claimants) to interplead and litigate their conflicting claims upon the ownership of its membership fee
certificates 201. The complaint further alleged that Lee claims ownership of the subject matter by virtue of
decision rendered in a civil case 26044 of the CFI Manila and that Tan claims to be a lawful owner of its aforesaid
membership fee certificate 201 by virtue of membership fee certificate 201-serial no. 1199 issued to him.
Defendants filed their separate motion to dismissed the complaint on the ground that the complaint fails to state
a cause of action and bar by prescription.

Issue: Whether or not the complaint to interplead will prosper?

Ruling: The interpleader will not prosper. It has been held that an action of interpleader is too late when filed
after judgment has been rendered against him in favor of one of the contending parties, especially where he
(plaintiff) he had prior notice of the conflicting claims prior to the rendition of judgment and neglected the
opportunity to implead the adverse claimants. Because once judgment is obtained against him by one claimant he
becomes liable to the latter.

Moreover, a successful litigant cannot later be impleaded by his defeated adversary in an interpleader suit and
compelled to prove his claim anew against other adverse claimants, as that would in effect be a collateral attack
upon the judgment. The interpleader suit cannot prosper because the Petitioner had already been made
independently liable in Civil Case No. 26044 and, therefore, its present application for interpleader would in effect
be a collateral attack upon the final judgment in the said civil case.

Rizal Commercial Banking Corporation v. Metro Container Corporation

G.R. No. 127913, September 13, 2001

The reason for the interpleader action ceased when the MeTC rendered judgment in Civil Case No. 6202
whereby the court directed METROCAN to pay LEYCON whatever rentals due on the subject premises. While
RCBC, not being a party to Civil Case No. 6202, could not be bound by the judgment therein, METROCAN is
bound by the MeTC decision.
Facts: METROCAN is the lessee of the property from LEYCON, lessor, which property is subject to the contract of
mortgage entered into between RCBC and LEYCON.

METROCAN filed the interpleader action (Civil Case No. 4398-V-94) because it was unsure which between LEYCON
and RCBC was entitled to receive the payment of monthly rentals on the subject property. LEYCON was claiming
payment of the rentals as lessor of the property while RCBC was making a demand by virtue of the consolidation
of the title of the property in its name.

Prior to the action of interpleader, LEYCON filed an action for Unlawful Detainer against METROCAN docket as
civil case no. 6202. In said civil case, the court dismissed the complaint for unlawful detainer in view of an
amicable settlement they entered and ordered METROCAN to pay LEYCON the rentals.

Comes now METROCAN moving for the dismissal of the interpleader action (civil case no. 4398-V-94) because
there is no need to pursue such cause of action because it is already moot and academic.
RCBC on the other hand wants to prove his claim in the interpleader action filed, thus, compelling METROCAN to
pursue the interpleader case.

Issue: Whether or not the interpleader case should continue?

Ruling: The interpleader case should no longer continue. the reason for the interpleader action ceased when the
MeTC rendered judgment in Civil Case No. 6202 whereby the court directed METROCAN to pay LEYCON
"whatever rentals due on the subject premises x x x." While RCBC, not being a party to Civil Case No. 6202, could
not be bound by the judgment therein, METROCAN is bound by the MeTC decision. When the decision in Civil
Case No. 6202 became final and executory, METROCAN has no other alternative left but to pay the rentals to
LEYCON. Precisely because there was already a judicial fiat to METROCAN, there was no more reason to continue
with Civil Case No. 4398-V-94. Thus, METROCAN moved for the dismissal of the interpleader action not because it
is no longer interested but because there is no more need for it to pursue such cause of action.

It should be remembered that an action of interpleader is afforded to protect a person not against double liability
but against double vexation in respect of one liability. It requires, as an indespensable requisite, that "conflicting
claims upon the same subject matter are or may be made against the plaintiff-in-interpleader who claims no
interest whatever in the subject matter or an interest which in whole or in part is not disputed by the claimants.”
The decision in Civil Case No. 6202 resolved the conflicting claims insofar as payment of rentals was concerned.

Petitioner is correct in saying that it is not bound by the decision in Civil Case No. 6202. It is not a party thereto.
However, it could not compel METROCAN to pursue Civil Case No. 4398-V-94. RCBC has other avenues to prove
its claim. Is not bereft of other legal remedies. In fact, he issue of ownership can very well be threshed out in Civil
Case No. 4037-V-93, the case for Nullification of Extrajudicial foreclosure Sale and Damages filed by LEYCON
against RCBC.

Sec.2 Order – Contents of the interpleader order –

Upon filing of the complaint, the court shall issue an order:
• Requiring the conflicting claimants to interplead with one another
• If the interest of justice so requires, the order may direct that the subject matter be paid or delivered to
the court

Sec.3. Summons
Summons shall be served upon the conflicting claimants, together with a copy of the complaint and order.

Sec.4. Motion to dismiss –

When to file a motion to dismiss –
• Within the time for filing an answer
• Within 15 days after service of summons, unless a different period is fixed by the court (Sec.1, Rule 11)

Who may file a motion to dismiss the complaint of interpleader –

• Each conflicting claimant

On what grounds:
• Ground of impropriety of interpleader action or
• On appropriate grounds specified in Rule 16
• Court has no jurisdiction over the person of the defendant
• Court has no jurisdiction over the subject matter of the claim
• the venue is improperly laid
• the plaintiff has no legal capacity to sue
• litis pendencia
• res judicata
• pleading asserting the claim states no cause of action
• the claim or demand has been waived, paid, abandoned, or otherwise extinguished
• claim on which the action is founded is unenforceable under the statute of frauds
• condition precedent for filing the claim has not been complied

Effect of filing a motion to dismiss –

The period to file the answer shall be tolled and if the motion is denied, the movant may file his answer within the
remaining period, but which shall not be less than 5 days in any event, reckoned from notice of denial.

Sec.5. Answer and other pleadings –

• each claimant shall file his answer within 15 days from service of summons upon him
• his answer shall also be served a copy upon each of the other claimants
• other claimants whom upon copy of an answer of the other claimant may file their reply thereto as provided
by the rules
• if any claimant fails to plead within the time herein fixed, the court may, on motion, declare him in default
and thereafter render judgment barring him from any claim in respect to the subject matter.
• The parties in an interpleader action may file counterclaims, cross-claims, third-party complaints and
responsive pleadings thereto, as provided by the rules.

Sec.6. Determination –
After the pleadings of the conflicting claimants have been filed, and pre-trial has been conducted in accordance
with the Rules, the court shall proceed to determine, their respective rights and adjudicate their several claims.

Maglente vs Hon. Baltazar-Padilla

GR. No. 148182, March 7,2007
A writ of possession complements the writ of execution only when the right of possession or ownership has been
validly determined in a case directly relating to either. The interpleader case obviously did not delve into that
issue, since the issue in the interpleader case is limited to who has a better right to purchase the property.

Facts: Philippine Realty Corporation (PRC) owns a parcel of land. The same was leased to the petitioner Maglente.
In their leased contract, it provides that if PRC sell the property, petitioner shall have a right of first refusal (given
the first priority to buy it). When the leased contract was about to expire, PRC sent letter offering to sell the
property to petitioner. the latter response to the letter, and intimated that she would exercise her right of first
refusal. However, on a later date, PRC receive an offer from respondent that they will buy the land.

PRC filed an interpleader action with RTC against the claimants. The RTC ruled in favor of the petitioner declaring
that she had the right to purchase the land and order PRC to execute the corresponding the contract of sale in
favor of the petitioner.

At the rendition of said judgment, the respondents have been occupying the said property. petitioner then filed
for the issuance of writ of possession. However, respondents objected on the ground that the trial court’s
decision on the interpleader case merely resolved petitioners’ right to purchase the leased property but did not
declare them as the owners entitled to possession.

Issue: Whether petitioner is entitled to a writ of possession being adjudged in the interpleader case as the rightful
parties to purchase the said land.

Ruling: No. petitioner are not entitled to a writ of possession. Petitioners’ argument that the trial court’s writ of
execution in the interpleader case carried with it the corollary right to a writ of possession is without merit. A writ
of possession complements the writ of execution only when the right of possession or ownership has been validly
determined in a case directly relating to either. The interpleader case obviously did not delve into that issue.

Furthermore, the rule is that the enforcement of a judgment may not vary or alter the tenor of the judgment but
must strictly conform to it. It should be in harmony with the judgment that gives it life and not exceed it. We thus
cannot fault the trial court for refusing to issue a writ of possession to petitioners as its issuance would not be in
conformity with the trial court’s judgment in the interpleader case.

Finally, petitioners cannot recover possession of the property via a mere motion. They must file the appropriate
action in court against respondents to recover possession. While this remedy can delay their recovery, this Court
cannot permit an abbreviated method without subverting the rules and processes established for the orderly
administration of justice.

Sec.7. Docket and other lawful fees –

The docket and other lawful fees paid by the party who filed a complaint of interpleader, as well as the costs and
litigation expenses, shall constitute a lien or charge upon the subject matter of the action, unless the court shall
order otherwise.

Court with jurisdiction (BP 129, as amended)

Sec.19 and Sec. 33
The court with jurisdiction over an action for interpleader shall depend upon the following:

• RTC –
• Subject matter of the action is personal property, valued more than P300,000 outside Metro Manila and
in Metro Manila, at more than P400,000
• Subject matter of the action REAL PROPERTY with an assessed value exceeding P20,000 outside Manila,
and in Manila, exceeding P50,000

MTC has jurisdiction if otherwise:

Civil actions/personal property:
• Outside MM – does not exceed P300,000
• in MM – Does not exceed P400,000

Civil actions which involve titled to, or possession of, real property or any interest therein: Based on Assessed
Value
• Outside MM – assessed value does not exceed P20,000
• In MM – assessed value does not exceed P50,000

Note: where the conflicting claims involve the right to receive a particular sum, the amount of sum claimed
determines jurisdiction.

Bar Question (1997):

What courts have jurisdiction over the following cases filed in Metro Manila?

• An action for interpleader to determine who between the defendants is entitled to receive the amount
of P190,000 from the plaintiff.

Suggested Answer:
The action shall be filed in the metropolitan court in Metro Manila. The amount of P190,000 not being in excess
of 400,000 is within the jurisdiction of said court.

Rule 63 – Declaratory Relief

Declaratory relief refers to a judgment of a court which determines the rights of parties without ordering
anything be done or awarding damages. By seeking a declaratory judgment, the party making the request is
seeking for an official declaration of the status of a matter in controversy. Optimally, the resolution of the rights
of the parties involved will prevent further litigation. For example, a party to a contract may seek the legal
interpretation of a contract to determine the parties' rights, or an insured may seek a determination of insurance
coverage under a policy.

Note: The court cannot award any affirmative relief in a petition for declaratory relief because the petition
merely seeks the construction of contract, will, deed, or statute to determine the rights of the parties. Corollary is
the rule that such an action must be justified, as no other adequate relief or remedy is available under the
circumstances.

Sec.1, Who may file petition

2 types of actions under Rule 63:
• Petition for Declaratory relief
• Petition for similar remedies

DECLARATORY RELIEF SIMILAR REMEDIES

Any person interested under a: Any person in an action:
Who may file • Deed • For the reformation of an
• Will instrument (1359-139, NCC)
• Contract or other written • To quite title to real property or
instrument remove clouds therefrom (Art.
476-481, NCC)
Or whose rights are affected by a: • To consolidate ownership under
• Statute Art.1607 of the Civil Code, in a
• Executive order or regulation sale with a right to repurchase.
• Ordinance, or
• Any other governmental
regulation
Where to file Before breach or violation thereof, In the appropriate COURT:
BRING an action in the appropriate Real Property:
REGIONAL TRIAL COURT to • RTC if –
determine any question of The assessed value of the subject
construction or validity arising, and property per tax declaration
for a declaration of his rights or exceeds P20,000, outside Metro
duties, thereunder. Manila; exceeds P50,000 in Metro
Manila;
REASON: declaratory relief raises • MTC if otherwise.
issues which are not capable of REASON:
pecuniary estimation and must be It must be read in relation to BP
filed with the RTC. 129, as amended (RA 7691)

Personal/amount of demand:
• RTC – if it exceeds P300,000,
outside MM; if it exceeds
P400,000, in MM
• MTC – if otherwise.

Note:
• An action for declaratory relief should be filed by a person interested under a deed, a will, a contract or other
written instrument, and whose rights are affected by a statute, an executive order, a regulation or an
ordinance. The relief sought under this remedy includes the interpretation and determination of the validity of
the written instrument and the judicial declaration of the parties’ rights or duties thereunder.

• Since the purpose of an action for declaratory relief is to secure an authoritative statement of the rights and
obligations of the parties under a statute, deed, or contract for their guidance in the enforcement thereof, or
compliance therewith, and not to settle issues arising from an alleged breach thereof, it may be entertained
only before the breach or violation of the statute, deed, or contract to which it refers.

• Where the law or contract has already been contravened prior to the filing of an action for declaratory relief,
the courts can no longer assume jurisdiction over the action. In other words, a court has no more jurisdiction
 over an action for declaratory relief if its subject has already been infringed or transgressed before the
institution of the action.

• The special civil action of declaratory relief falls under the exclusive jurisdiction of the Regional Trial Court. 5 It
is not among the actions within the original jurisdiction of the Supreme Court even if only questions of law are
involved.

Requisites for the petition –

Requisites of an action for declaratory relief, as follows:

• the subject matter of the controversy must be a deed, will, contract or other written instrument, statute,
executive order or regulation, or ordinance;
• the terms of said documents and the validity thereof are doubtful and require judicial construction;
• there must have been no breach of the documents in question;
• there must be an actual justiciable controversy or the "ripening seeds" of one between persons whose
interests are adverse;
• the issue must be ripe for judicial determination; and
• adequate relief is not available through other means or other forms of action or proceeding

Sec.2. Parties –

All persons who have or claim any interest which would be affected by the declaration shall be made parties; and
no declaration shall, except as otherwise provide in these rules, prejudice the rights of persons not parties to the
action.

Sec.3. Notice on Solicitor General –

In any action which involves the validity of:
• a statute,
• executive order or regulation
• or any other governmental regulation
The Solicitor General shall be notified by the party assailing the same and shall be entitled to be heard upon such
question.

Sec.4. Local Government Ordinances –

In any action involving the validity of a local government ordinance, the corresponding prosecutor or attorney of
the local governmental unit involved shall be similarly notified and entitled to be heard. If such ordinance is
alleged to be unconstitutional, the Solicitor General shall also be notified and entitled to be heard.

Sec.5. Court action discretionary –

Except falling under the 2nd paragraph of section 1 of this rule, the court, motuproprio or upon motion, may refuse
to exercise the power to declare the rights and to construe instruments in any case where:
• a decision would not terminate the uncertainty or controversy which gave rise to the action
• the declaration or construction is not necessary and proper under the circumstances

Sec.6. Conversion into ordinary action –

GR: action for declaratory relief shall be filed before a breach or violation of instrument concerned.

Effect if filed after violation or breach:

• a court has no more jurisdiction over an action for declaratory relief if its subject has already been
infringed or transgressed before the institution of the action.
But If the action is institution before a breach or violation and before the final termination of the case, a breach or
violation of an instrument or a statute, executive order or regulation, ordinance, or any other governmental
regulation should take place,
• the action may thereupon be converted into an ordinary action, and the parties shall be allowed to file
such pleadings as may be necessary or proper

CASES:

Malana vs. Tappa,

G.R. No. 181303, September 17, 2009

The mandatory provision of the Judiciary Reorganization Act of 1980, as amended, uses the word "shall" and
explicitly requires the MTC to exercise exclusive original jurisdiction over all civil actions which involve title to or
possession of real property where the assessed value does not exceed P20,000.00.

Facts: Petitioners filed before the RTC their Complaint for Reivindicacion, Quieting of Title, and Damages against
respondents. Petitioners alleged in their Complaint that they are the owners of a parcel of land covered by
Transfer Certificate of Title (TCT) No. T-127937 situated in Tuguegarao City (subject property). Petitioners
inherited the subject property from Anastacio Danao (Anastacio), who died intestate. During the lifetime of
Anastacio, he had allowed Consuelo Pauig (Consuelo), who was married to Joaquin Boncad, to build on and
occupy the southern portion of the subject property. Anastacio and Consuelo agreed that the latter would vacate
the said land at any time that Anastacio and his heirs might need it.
Before respondents could file their answer, the RTC issued an Order dismissing petitioners’ Complaint on the
ground of lack of jurisdiction. The RTC referred to Republic Act No. 7691, amending Batas Pambansa Blg. 129,
otherwise known as the Judiciary Reorganization Act of 1980, which vests the RTC with jurisdiction over real
actions, where the assessed value of the property involved exceeds P20,000.00. It found that the subject property
had a value of less than P20,000.00; hence, petitioners’ action to recover the same was outside the jurisdiction of
the RTC.

Issue: Did the RTC committed grave abuse of discretion in dismissing the complaint of the petitioners motu
proprio due to lack of jurisdiction?

Ruling: The RTC did not commit any grave abuse of discretion. Petitioners’ Complaint contained sufficient
allegations for an accion reivindicatoria. Jurisdiction over such an action would depend on the value of the
property involved. Given that the subject property herein is valued only at P410.00, then the MTC, not the RTC,
has jurisdiction over an action to recover the same. The RTC, therefore, did not commit grave abuse of discretion
in dismissing, without prejudice, petitioners’ Complaint in Civil Case No. 6868 for lack of jurisdiction.

Moreover, although an action for the reformation of an instrument, to quiet title to real property or remove
clouds or to consolidate ownership under Article 1607 of the Civil Code “may” be brought before the appropriate
RTC, the use of the word "may" in a statute denotes that the provision is merely permissive and indicates a mere
possibility, an opportunity or an option. In contrast, the mandatory provision of the Judiciary Reorganization Act
of 1980, as amended, uses the word "shall" and explicitly requires the MTC to exercise exclusive original
jurisdiction over all civil actions which involve title to or possession of real property where the assessed value
does not exceed P20,000.00.

Office of the Ombudsman vs. Ibay

G. R. No. 137538, September 3, 2001
In the present case, since there is no pending litigation yet before a court of competent authority, but only an
investigation by the Ombudsman on the so-called “scam”, any order for the opening of the bank account for
inspection is clearly premature and legally unjustified.
Facts: The petitioner conducted an investigation on the alleged scam on the Public-Estate Authority – Amari
Coastal Bay Development Corporation. The purpose of the investigation is to determine whether there had been
irregularity in issuing some checks which where deposited to several financial institution. Private respondent
Lourdes Marquez was required to produce several documents for inspection and the inspection shall be done in
camera wherein the bank documents will be examine without bringing them outside the bank premises.

Private respondent failed to comply with the orders averring that under RA No. 1405, otherwise known as the
Bank Secrecy Law, she had the legal obligation not to divulge any information relative to all bank deposits within
the Philippines. The Office of the Ombudsman ordered private respondent to show cause why she should not be
cited for contempt. But instead of complying with the order she filed a petition for declaratory relief with an
application for TRO and preliminary injunction before the RTC, presided by Hon. Ibay.

In this case, the controversy concerns the extent of the power of petitioner to examine bank accounts under
Section 15 (8) of R.A. 6770 vis-à-vis the duty of banks under Republic Act 1405 not to divulge any information
relative to deposits of whatever nature. The interests of the parties are adverse considering the antagonistic
assertion of a legal right on one hand, that is the power of Ombudsman to examine bank deposits, and on the
other, the denial thereof apparently by private respondent who refused to allow petitioner to inspect in camera
certain bank accounts. The party seeking relief, private respondent herein, asserts a legal interest in the
controversy.
Issue: Whether or not the issue invoked is ripe for judicial determination as litigation.

Ruling: The issue invoked is ripe for judicial determination as litigation is inevitable. Note that petitioner has
threatened private respondent with “indirect contempt” and “obstruction” charges should the latter not comply
with its order.
Circumstances considered, the public respondent has jurisdiction to take cognizance of the petition for
declaratory relief. Nor can it be said that public respondent gravely abused its discretion in doing so. Thus, the
Supreme Court dismissed the petition for lack of merit.

In any event, the relief being sought by private respondent in her action for declaratory relief before the RTC of
Makati City has been squarely addressed by the decision in Marquez vs. Desierto. In that case, it was ruled that
before an in camera inspection of bank accounts may be allowed, there must be a pending case before a court of
competent jurisdiction. Further, the account must be clearly identified, and the inspection limited to the subject
matter of the pending case before the court of competent jurisdiction. The bank personnel and the account
holder must be notified to be present during the inspection, and such inspection may cover only the account
identified in the pending case. In the present case, since there is no pending litigation yet before a court of
competent authority, but only an investigation by the Ombudsman on the so-called “scam”, any order for the
opening of the bank account for inspection is clearly premature and legally unjustified.

Dela Llana vs Alba

GR No. L-57883, March 12, 1982

In 1981, BP 129, entitled “An Act Reorganizing the Judiciary, Appropriating Funds Therefor and for Other
Purposes”, was passed. De la Llana was assailing its validity because, first of all, he would be one of
the judges that would be removed because of the reorganization and second, he said such law would contravene
the constitutional provision which provides the security of tenure of judges of the courts, He averred that only the
SC can remove judges NOT Congress.

That is the fundamental issue raised in this proceeding, erroneously entitled Petition for Declaratory Relief and/or
for Prohibition considered by this Court as an action for prohibited petition, seeking to enjoin respondent
Minister of the Budget, respondent Chairman of the Commission on Audit, and respondent Minister of Justice
from taking any action implementing Batas Pambansa Blg. 129.
ISSUE: Whether or not Judge De La Llana can be validly removed by the legislature by such statute (BP 129).

HELD: The SC ruled the following way: “Moreover, this Court is empowered “to discipline judges of inferior courts
and, by a vote of at least eight members, order their dismissal.” Thus it possesses the competence to remove
judges. Under the Judiciary Act, it was the President who was vested with such power. Removal is, of course, to be
distinguished from termination by virtue of the abolition of the office. There can be no tenure to a non-existent
office. After the abolition, there is in law no occupant. In case of removal, there is an office with an occupant who
would thereby lose his position. It is in that sense that from the standpoint of strict law, the question of any
impairment of security of tenure does not arise. Nonetheless, for the incumbents of inferior courts abolished, the
effect is one of separation. As to its effect, no distinction exists between removal and the abolition of the office.
Realistically, it is devoid of significance. He ceases to be a member of the judiciary. In the implementation of the
assailed legislation, therefore, it would be in accordance with accepted principles of constitutional construction
that as far as incumbent justices and judges are concerned, this Court be consulted and that its view be accorded
the fullest consideration. No fear need be entertained that there is a failure to accord respect to the basic principle
that this Court does not render advisory opinions.

No question of law is involved. If such were the case, certainly this Court could not have its say prior to the action
taken by either of the two departments. Even then, it could do so but only by way of deciding a case where the
matter has been put in issue. Neither is there any intrusion into who shall be appointed to the vacant
positions created by the reorganization. That remains in the hands of the Executive to whom it properly belongs.
There is no departure therefore from the tried and tested ways of judicial power. Rather what is sought to be
achieved by this liberal interpretation is to preclude any plausibility to the charge that in the exercise of the
conceded power of reorganizing the inferior courts, the power of removal of the present incumbents vested in this
Tribunal is ignored or disregarded. The challenged Act would thus be free from any unconstitutional taint, even
one not readily discernible except to those predisposed to view it with distrust. Moreover, such
a construction would be in accordance with the basic principle that in the choice of alternatives between one
which would save and another which would invalidate a statute, the former is to be preferred.”

Almeda vs Bathala Marketing

GR No. 150806 – January 28, 2008

A party is not barred from instituting the petition for declaratory relief where there is no showing that respondent
committed an act constituting a breach of the subject contract of lease.

Facts: Petitioners advised respondent that the former shall assess and collect Value Added Tax (VAT) on its
monthly rentals. In response, respondent contended that VAT may not be imposed as the rentals fixed in the
contract of lease were supposed to include the VAT therein, considering that their contract was executed on May
1, 1997 when the VAT law had long been in effect.
On January 26, 1998, respondent received another letter from petitioners informing the former that its monthly
rental should be increased by 73% pursuant to condition No. 7 of the contract and Article 1250 of the Civil Code.
Respondent opposed petitioners’ demand and insisted that there was no extraordinary inflation to warrant the
application of Article 1250 in light of the pronouncement of this Court in various cases.
Respondent refused to pay the VAT and adjusted rentals as demanded by petitioners but continued to pay the
stipulated amount set forth in their contract.

Issue: Is the respondent barred from instituting before the trial court the petition for declaratory relief?
Ruling: After petitioners demanded payment of adjusted rentals and in the months that followed, respondent
complied with the terms and conditions set forth in their contract of lease by paying the rentals stipulated
therein. Respondent religiously fulfilled its obligations to petitioners even during the pendency of the present
suit. There is no showing that respondent committed an act constituting a breach of the subject contract of
lease. Thus, respondent is not barred from instituting before the trial court the petition for declaratory relief.

Edades vs Edades, 99 Phil 675

Facts: Plaintiff Juan Edades brought this action before the Court of First Instance of Pangasinan seeking a
declaratory judgment on his hereditary rights in the property of his alleged father and incidentally the recognition
of his status as an illegitimate son of Emigdio Edades. The Edades siblings and their father (who was still alive)
filed a motion to dismiss on the ground that the complaint did not state facts sufficient to constitute a cause of
action. The motion to dismiss was sustained by CFI Pangasinan, which held that an action for declaratory relief
just for purpose of clearing away doubt, uncertainty, or insecurity to the one’s status or rights would be improper.
Juan Edades appealed.
Issue: Whether or not the present action seeking a declaratory judgment on his hereditary rights in the property
of his alleged father can be maintained.

Ruling: Yes, but not as an action for declaratory relief. The case does not fall under the authorized causes for an
action for declaratory relief. It does not concern a deed, will, contract or other written instrument. It does not
affect a statute or ordinance whose construction or validity is questioned.

The case is neither predicated on a justiciable controversy, considering that the father is still alive and there are
no successional rights yet to be resolved.

But the action is not merely aimed to determine the hereditary right of Juan. It has also the aim to establish his
status as an illegitimate child. Since this is his right, the action can prosper.

Thus, the Supreme Court remanded the case to the trial court for further proceedings.

Bar Exam (1998)

Q: A student files action for declaratory relief against his school to determine whether he deserves to graduate
with Latin honors. Is this action tenable? [3%]
A: No. The action for declaratory relief is not tenable. Whether the student deserves to graduate with Latin
honors does not fall within matters subject to declaratory relief, namely, a deed, will, contract or other written
instrument, or a statute, executive order or regulation, ordinance, or any other governmental regulation. (Sec. 1
of Rule 63, 1997 Rules of Civil Procedure)

Rule – 64
Review of Judgments and Final Orders or Resolutions of the COMELEC and the COA

Constitutional Commission/body:
• COA
• COMELEC
• CSC

COA COMELEC CSC

Mode of Review A judgment, resolution A judgment, resolution A judgment, final order
/Appeal or final order(en banc) or final order (en banc) or resolution of the CSC
of the COA may be of the COMELEC may be may be taken to the CA
brought by the brought by the under Rule 43 of the
aggrieved party to the aggrieved party to the rules within 15 days
SC on certiorari under SC on certiorari under from notice (Sec.1&3,
Rule 65 within 30 days Rule 65 within 30 days Rule 43).
from notice of judgment from notice of judgment
 (Sec.1,2&3, Rule 64) (Sec.1,2&3, Rule 64).

Sec.1. Scope –
This rule shall govern the review of judgment and final orders or resolutions of:
• The Commission on Elections and
• The Commission on Audit

Sec.2. Mode of Review –

A judgment or final order resolution of the Commission on Election and the Commission on Audit may be brought
by the aggrieved party to the Supreme Court on certiorari under Rule 65, except as hereinafter provided (within
30 not 60 days from notice)
Sec.3. Time to file petition –

The petitioner shall be filed within 30 days from notice of the judgment, or final order or resolution sought to be
reviewed.

Effect of filing the petition (sec.8)

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 shall direct otherwise upon such terms as it may deem just.

Effect of filing of motion for new trial or reconsideration

• 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 30-day period
herein fixed.
• If the motion id denied, the aggrieved party may file the petition within the remaining period, but which
shall not be less than 5 days in any event, reckoned from notice of denial.

Sec.4. Docket and other lawful fees –

Upon the filing of the petition, the petitioner shall pay to the clerk of court the docket and other lawful fees and
deposit the amount of P500.00 for cost.

Sec.5. Form and contents of petition –

The petition shall:
• Be Verified
• Be Filed in 18 legible copies
• name the aggrieved party as petitioner
• join as respondents the Commission concerned and the person or persons interested in sustaining the
judgment, final order or resolution a quo
• state the facts with certainty
• present clearly the issues involved
• set forth the grounds and brief arguments relied upon for review
• pray for judgment annulling or modifying the questioned judgment
• state the specific material dates showing that it was filed within the period fixed herein,
• contain a sworn certification against forum shopping

Note: findings of fact of the Commission supported by substantial evidence shall be final and no-reviewable
(except under Rule 65).
The petition shall be accompanied by:
• a 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 as are reffered to therein and
other documents relevant and pertinent thereto
• proof of service of a copy thereof on the Commission concerned and on the adverse party, and of the
timely payment of docket and other lawful fees.

REMEMBER: the failure of petitioner to comply with any of the foregoing requirements shall be sufficient
GROUND FOR THE DISMISSAL of the petition.

Sec.6. Order to comment –

If the SC finds the petition sufficient in form and substance:
• it shall order the respondents to file their comments on the petition within 10 days from notice thereof;
otherwise, the court may dismiss the petition outright.

When may the SC dismiss the petition?

• When the petition is not sufficient in form and in substance; dismissed outright
• It the petition was filed manifestly for delay
• When the question raised are too unsubstantial to warrant further proceedings

Sec.7. Comments of Respondents -

The comments of the respondent shall:
• Be filed in 18 legible copies
• The original shall be accompanied by certified true copies of material portion of the records referred
together with other support documents
• The requisite number of documents attached to the original and a copy thereof shall be served on the
petitioner

Note: no other pleading may be filed by any party unless required or allowed by the Court.

Sec.8. Effect of filing -

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 Supreme Court shall direct otherwise upon such terms as may deem just.

To prevent the execution of judgment:

• The petitioner may availed of the remedy under Rule 65 and may obtain TRO or a writ of preliminary
injunction

Sec.9. Submission for decision -

GR: When shall the case be deemed submitted for decision?
• Upon the filing of the comments on the petitioner
• Or upon the filing of such other pleadings or papers as may be required or allowed by the SC
• Or upon the expiration of the period to do so

Ex: unless the court sets the case for oral argument, or requires the parties to submit memoranda.

Limkaichong vs Comelec – April 1,2009

Facts: Petitioner – Jocelyn Limkaichong was aspiring to become a member of the House of Representative filed
her COC with COMELEC for May 2007 Election.
The private repondent filed a petition for her disqualification on the ground that she lacked the citizenship
requirement because there was a substantial and procedural defect in her father’s naturalization proceeding as
the OSG, at that time, was not furnished copy of the material order of the trial court thereby depriving the OSG of
its participation in all stages of the proceedings whose appearance for the STATE is necessary. Lacking the
participation of this indispensable party, the proceeding is null and void; hence no right could arise therefrom.

Petitioner claimed that she is a natural-born Filipino citizen. Her Chinese-Father was naturalized to Philippine
Citizenship in accordance with law. She was born to a naturalized-Filipino Father and a Natural-born Mother
whose Philippine citizenship was reacquired when her Father was legally naturalized. Further she avers that the
petition should be dismissed because it was in a nature of collateral attack of her and her father’s citizenship in
contravention to the well-established rule that attack on one’s citizenship may be made through a direct action
for its nullity.

After the casting, counting and canvassing of votes, the petitioner emerged as the winner. The private respondent
later on filed a motion to suspend the proclamation of the petitioner as the winning candidate.

May 17, 2007 - The COMELEC 2nd division granted the petition for disqualification and directed the PBOC to strike
out her name from the list eligible candidates and suspend her proclamation.

May 18, 2007 – COMELEC en banc issued resolution no. Resolution No. 8062 adopting the policy-guidelines of
not suspending the proclamation of winning candidates with pending disqualification cases.

May 20, 2007 – Petitioner filed a motion for reconsideration and a motion to lift the order suspending her
proclamation.

May 22, 2007 – Petitioner filed another motion for lifting the order suspending her proclamation pursuant to
Resolution No. 8062

May 25, 2007 – the PBOC reconvened and proclaimed petitioner as the winner in compliance with Resolution No.
8602.

On May 30, 2007 – The private respondent filed with the COMELEC 1st division a petition to nullify and annul the
proclamation of petitioner, stating among others that the proclamation of petitioner violated the May 17, 2007
declaration of the COMELEC 2nd division suspending her proclamation.
COMELEC 1st division dismissed the petition filed by the private respondent on the ground that her
disqualification case were not yet final and the COMELEC now is divested with its jurisdiction over the matter
because of her proclamation.

June 29, 2007 – COMELEC en banc denied the petitioner’s motion for reconsideration of the resolution of the
COMELEC’s 2nd division in the disqualification case.

August 1, 2007 – petitioner filed a petition for certiorari under rule 65 in relation to Rule 64 within 30 days from
notice praying for the annulment of the resolution of the COMELEC 2 nd division, and the resolution of the
COMELEC en Banc in the disqualification case for having been issued with grave abuse of discretion amounting to
lack amounting to lack of jurisdiction. She averred that since she was already proclaimed on May 25, 2007, had
assumed office, and had started to perform the function as the Representative of the first district of Negros
Oriental, the COMELEC has lost its jurisdiction and it is now the HRET which has jurisdiction over the issue
involving her qualifications for the office.

Issue: Whether or not the remedy of petition for certiorari under rules 65 in relation to rule 64 was proper?

Ruling: Yes. The filing of petition for certiorari under Rule 65 in relation to rule 64 was proper. The petitioner’s
proclamation was valid. When she timely filed her motion for reconsideration and lifting the order suspending her
proclamation on May 20, 2007, it effectively suspends the execution of the May 17, 2007 resolution of the
COMELEC 2nd division. Thus, there is no impediment to proclaimed her as the winner.

Section 2, Rule 19 of the COMELEC Rules of Procedure provides:

Sec. 2. Period for Filing Motions for Reconsideration. – A motion to reconsider a decision, resolution, order or
ruling of a Division shall be filed within five (5) days from the promulgation thereof. Such motion, if not pro
forma, suspends the execution for implementation of the decision, resolution, order and ruling.

Furthermore, it has long been established that once a winning candidate has been proclaimed, taken his oath,
assumed office as a member of the House of Representative, the jurisdiction of the COMELEC over cases relating
to his qualification ends, and the jurisdiction of the House of Representatives Electoral Tribunal Begins. And mere
allegation as to the invalidity of her proclamation does not divest the Electoral Tribunal of its Jurisdiction.
Unless there is patent nullity of the proclamation as it was held in the case of Codilla vs De Venecia, 393 SCRA
639.

Rule 65
Certiorari, Prohibition and Mandamus

Note:

General Rule: Well established doctrine of the courts provides that the rules of procedures are used to help
secure, not override, substantial justice. But the doctrine does not warrant wanton disregard of the Rules of
Courts, otherwise no orderly administration of justice can be maintained.

Exception: procedural rules may be set aside when:

• It is a procedural defect to correct a patent injustice

Certiorari Prohibition Mandamus

Definition • A writ from the • The act of prohibiting or the • An order issued by a superior
higher court to a condition of being court ordering a public official or
lower one prohibited body or lower court to perform a
requesting a specified duty.
transcript of • An order of a superior court
proceedings for forbidding/inhibiting an
review inferior court to determine a
matter outside its
• A common law writ jurisdiction
issued by a superior
to one of inferior
jurisdiction
demanding the
record of a
particular case for
review

• 2 types of certiorari
• Petition for
review on
certiorari under
 rule 45
• Petition on
certiorari under
rule 65

Purpose Designed to correct To keep the lower court within Commands a tribunal, corporation,
errors of jurisdiction the limits of its jurisdiction in board, or person to do the act
not errors of order to maintain the required to be done when it or he
judgment administration of justice in unlawfully neglects an act which
orderly channels. the law specifically enjoins or
Modifying or annulling unlawfully excludes another from
a proceeding. Commanding the respondent the use and enjoyment of a right or
to desist from further office to which such other is
proceeding in the action or entitled
matter specified in the
petition.
When The rules provides:
Defeated Certiorari/Prohibition : “and there is No appeal or any other plain, speedy, and
adequate remedy in the ordinary course of law”
Mandamus : “and there is no other plain, speedy and adequate
remedy in the ordinary course of law (exhaustion of
administrative remedy)”

Take note of the difference.

The special civil action of certiorari and prohibition is defeated not by the existence but by the
adequacy of a remedy by appeal. When other remedy is available or sufficient to afford redress,
the special civil action under the rules will not prosper. This is in view of the doctrine of
exhaustion of local remedies in relation also with the hierarchy of courts regarding jurisdiction.

Mandamus may lie even if the remedy by appeal is adequate, provided that local remedies have
been exhausted. Otherwise, it will not prosper.

Note: the Special civil action of petition for certiorari or prohibition may accordingly be granted
where the remedy by appeal is not plain, speedy or adequate.

GR: when there is a remedy of appeal certiorari will not lie.

Ex: certiorari is allowed when the appeal does not appear to be plain, speedy and adequate remedy in the
ordinary course of law and will not promptly relieve a party from the injurious effects of the order complained
of.

Hierarchy of courts –
Under the constitution, the Supreme Court has original jurisdiction to issue writs of certiorari, mandamus,
prohibition, quo warranto, habeas corpus and injunction. But this is not exclusive. Meaning it is shared by the SC
with the RTC and the CA.
Hierarchy of courts principle is an established policy which requires courts of superior rank/level are not allowed,
except when there are special and important reasons, to take cognizance cases over which are shared by courts
of inferior level . there is an ordained sequence of recourse to courts vested with concurrent jurisdiction,
beginning from the lowest, on to the next highest, and ultimately to the highest.
The purpose of which is to unclog court dockets and to prevent inordinate demand upon the court’s time and
attention which are better devoted to those matters within its exclusive jurisdiction.

Interlocutory Orders – (David vs Revira, 420 SCRA 90)

GENERAL RULE: Being an interlocutory order, an order denying demurer to evidence is not appealable. Neither
can it be the subject of a petition for certiorari.

REMEDY: after such denial, the petitioners should present their evidence and if the decision of the trial judge
would be adverse to them, they could raise on appeal the same issues raised in the demurer.

EXCEPTION: when the denial of demurer (interlocutory order) is tainted with grave abuse of discretion amounting
to lack or excess of jurisdiction. A petition on certiorari under rule 65 may be filed with the appropriate tribunal.

Distinguished From each other

Certiorari Prohibition Mandamus
When any: When the proceedings of any: When any:
• Tribunal • tribunal • tribunal
• Board or • corporation • corporation
• Officer • board • board
• officer • officer
• person • person
• unlawfully neglects the
• Exercising judicial or • Whether exercising judicial, performance of an act which
• quasi-judicial functions • quasi-judicial or the law specifically enjoins as a
• ministerial functions duty resulting from an office,
trust, or station
• unlawfully excludes another
from the use and enjoyment of
a right or office to which such
other is entitled
Has acted: Are:
• without its or his jurisdiction • without of its or his jurisdiction
• in excess of its or his • in excess of its or his
jurisdiction jurisdiction
• with grave abuse of discretion • with grave abuse of discretion
all amounting to lack or excess of all amounting to lack or excess of
jurisdiction jurisdiction
And: And:
There is no appeal, nor any plain, speedy, and adequate remedy in the There is no other plain, speedy,
ordinary course of law and adequate remedy in the
ordinary course of law
Praying that: Praying that: Praying that:
Judgment be rendered annulling Judgment be rendered Judgment be rendered
or modifying the proceedings of commanding the respondent to commanding the respondent,
such tribunal, board or officer, and desist from further proceedings in immediately or at some other time
granting such incidental reliefs as the action or matter specified to be specified by the court, to do
law and justice may require. therein, or otherwise granting the act required to be done to
 such incidental reliefs as law and protect the rights of the
justice may require petitioner, and to pay the
damages sustained by the
petitioner by reason of the
wrongful acts of the respondent.
The petition shall likewise be accompanied by: The petition shall contain:
• a certified true copy of the judgment, final order or resolution • a sworn certification of
subject thereof non-forum shopping
• copies of all pleadings and documents relevant and pertinent thereto
• and a sworn certification of non-forum shopping

Material Data Rule:

3 material dates must be stated in the petition:
• date when the judgment or final order, or resolution is RECEIVED
• date when motion for new trial or motion for reconsideration when one is filed
• date when notice of the denial thereof was RECEIVED

Purpose: determine the timeliness of the petition

Note: the perfection of an appeal in the manner and within the period prescribed by law is jurisdictional and
failure to perfect an appeal renders the judgment final and executory (Mabuhay vs NLRC , 288 SCRA 1)

Sec.1. – Petition for certiorari –

When any tribunal, board, or officer exercising judicial or quasi-judicial function has acted without or in excess of
its or his jurisdiction, or with grave abuse of discretion amounting to lack or in excess of jurisdiction, and there is
no appeal, nor any plain, speedy and adequate remedy in the ordinary course of law, a person aggrieved thereby
may file a verified petition in a proper court, alleging the facts with certainty and praying that judgment be
rendered annulling or modifying the proceedings of such tribunal, board or officer and granting such incidental
reliefs as law and justice may require.

Decision of the following are subject of Certiorari under Rule 65 –

• NLRC
• DOJ (justice secretary) rulings – affirming or reversing the resolution of the investigating prosecutor is
final and executor. The remedy is to file a petition for certiorari under rule 65 to the CA not a petition for
review under rule 43 (alcaraz vs Gonzalez, September 20, 2006).
• Tribunal, board, officer exercising judicial or quasi-judicial functions

Decision of the following quasi-judicial body is subject to RULE 43 not RULE 65 (sec.1, rule 43) –

• Court of Tax Appeals

• Civil Service Commission
• Central Board of Assessment Appeals
• Securities and Exchange Commission
• Office of the President
• Land Registration Authority
• Social Security Commission
• Civil Aeronautics Board
 • Bureau of Patents, Trademarks and Technology Transfer
• National Electrification Administration
• Energy Regulatory Board
• National Telecommunication Commission
• Department of Agrarian Reform under RA no. 6657
• Government Service Insurance System
• Employees Compensation Commission
• Agricultural Inventions Board
• Insurance Commission
• Philippine Atomic Energy Commission
• Board of Investments
• Construction Industry Arbitration Commission
• Voluntary arbitrators authorized by law

Sec.2. Petition for Prohibition –

When the proceedings of any Tribunal, Corporation, Board, Officer or Person whether exercising judicial, quasi-
judicial function or ministerial functions, are without or in excess of its or his jurisdiction, or with grave abuse of
discretion amounting to lack or in excess of jurisdiction, and there is no appeal, nor any plain, speedy, and
adequate remedy in the ordinary course of the law, a person aggrieved thereby may file a verified petition in a
proper court, alleging the facts with certainty and praying that judgment be rendered commanding the
respondent to desist from further proceeding in he action or matters specified therein, or, otherwise grant such
incidental reliefs as the law and justice may require.

Sec.3. Petition for Mandamus –

When any tribunal, corporation, board, officer or person unlawfully neglects to perform an act which the law
specifically enjoins as a duty resulting from an office, trust, or station or unlawfully excludes another from the use
and enjoyment of a right or office to which such other is entitled, and there is no plain, speedy, and adequate
remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in a proper court,
alleging the facts with certainty and praying that judgment be rendered commanding the respondent,
immediately or at some other time to be specified by the court, to do the act required to be done to protect the
rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the
respondent.

Sec.4 When and Where to File the petition –

The petition shall be filed NOT LATER THAN 60 days from notice of judgment, final orders or resolution. In case a
motion for reconsideration or new trial is timely filed, whether such motion is required or not, the petition shall be
filed NOT LATER THAN 60 days from the notice of the denial of the motion.

The petition shall be filed with the RTC exercising jurisdiction over the territorial area as defined by the SC, If the
petition relates to an act or omission of a:
• Municipal trial court
• Corporation
• Board
• Officer, or
• Person
It may also be filed with the COURT OF APPEALS or with the SANDIGANBAYAN, whether or not the same is in
aid of the court’s appellate jurisdiction. The rule used to be that the petition may be filed with the
SANDIGANBAYAN if it is in aid of its appellate jurisdiction but not the petition may be filed in the SB whether or
not the same is in aids of its appellate jurisdiction (AM no. 07-7-12-SC).

IN election cases involving an act or omission of a MUNICIPAL or REGIONAL trial court, the petition shall be
filed exclusively with the COMELEC, in aids of its appellate jurisdiction.

Cases:

Laguna Metts Corporation vs Caalam, July 27, 2009 –

Private respondent filed a complaint for illegal dismissal with the Labor Arbiter. The labor arbiter decided in favor
of private respondent. Petitioner LMC appeal the decision of the labor arbiter to the NLRC which reversed the
appealed decision. Private Respondent timely filed a motion for reconsideration but was denied. The notice of
denial was received on May 6, 2008. Counsel for private respondent filed with the CA a 15-day period motion for
extension of time to file a petition for certiorari under Rule 65. The CA granted the motion and respondent was
given a non-extendible 15-day period within which to file the petition for certiorari. The petitioner LMC assailed
the resolution of the CA contending that extensions of time to file a petition for certiorari is no longer allowed
under the rules. Is the petitioner correct?

Ans: Yes. The rule used to be that the grant of an extension of time to file a petition for certiorari under rule 65
was left to the discretion of the court because the rules provide that no extension of time for filing a petition for
certiorari shall be granted except for compelling reason and in no case exceeds 15-days.

But the rules have been amended, (AM no. 07-7-12-SC) which deleted that provision. The filing of motion to extend
the time to file a petition for certiorari is no longer allowed under the new rules to avoid unreasonable delay that
would violate the constitutional rights of the parties to speedy disposition of their case.

Lapid vs Laurea –

Spouses Lapid filed complaint for damages against respondents before the RTC. the complaint alleged that the
malicious imputations against their son tarnished their good name and reputation. It further avers that their son
was summarily dismissed from the school without them being diligently informed. Petitioner filed a motion to
declare the respondent as in default which motion was denied by the court. a motion for reconsideration of such
denial was filed but was denied. a petition for certiorari was filed without indicating the date when the motion for
reconsideration was filed. The CA dismissed the motion. Is the dismissal correct?

ANS: Yes. There are three materials dates that must be stated in a petition for certiorari under rule 65.
• Date when notice of judgment, final order or resolutions have been received
• Date when motion for reconsideration or new trial was filed
• Date when notice of denial thereof was received
Failure to comply with the requirements shall be a sufficient ground for the dismissal of the petition. The
requirement is for determining the timeliness of the petition.

Parties

• Person Aggrieved

Concepcion Jr vs COMELEC – 591 SCRA 420 –

Petitioner concepcion is an incumbent Barangay Captain of FORBES PARK, Makati City and at the same time the
National Chairman of NAMFREL. NAMFREL filed a petition for accreditation to conduct operation quick with the
COMELEC. Petitioner was one of the signatories of the petition. COMELEC in its en banc resolution conditionally
grants the petition. The condition provides that petitioner must be removed from his position and membership of
NAMFREL and shall be disqualified to be a part of the in citizens’ arm in view of the passage of Resolution no.
7798 pursuant to EO no. 94, which provides:

Sec. 3. Prohibition on barangay officials. – No barangay official shall be appointed as member of the Board of
Election Inspectors or as official watcher of each duly registered major political party or any socio-civic, religious,
professional or any similar organization of which they may be members.

NAMFREL did not question the COMELEC’s RULING.

Aggrieved thereby, petitioner assailed COMELEC’s en banc resolution by filing a petition for certiorari under rule
65. Would the petition prosper?

ANS: No. the petition for certiorari under rule 65 is misused. Petitioner has no personality to file a petition for
certiorari because he was not a party to, and the direct party, NAMFREL, did not question the assailed petition.
He is not the party-in-interest who can directly assail the COMELEC’s resolution in an original RULE 65 before this
Court.

Under sec.1, Rule 65, an aggrieved party is one who was a party to the original proceedings that gave rise to the
original action for certiorari under Rule 65. The petition for certiorari under rule 65 is not available to any person
who feels injured by the decision of a tribunal, board or officer exercising judicial or quasi-judicial functions.
It would have been another matter if NAMFREL had filed the present petition with the petitioner as intervenor.

• Private Respondent and Public Respondent

The petitioner shall join, as private respondent with such public respondents, the person interested in sustaining
the proceedings in the court when the petition filed relates to the acts or omissions of a:
(the following are the public respondents)
• judge
• Court
• Quasi-judicial agency
• Tribunal
• Corporation
• Board, officer or person

Duty of private respondent Duty of public respondent

• To appear and defend both in his own behalf
and in behalf of the public respondent affected
by the proceedings
• Cost awarded in such proceedings in favor of
the petitioner shall be against the private
respondent only
In the court where the petition is pending:
• Shall not appear in or file or comment to the
petition or any pleading therein, unless
otherwise specifically directed by the court
where the petition is pending
If the case is elevated to a higher court by either party:
• The public respondent shall be included
therein as nominal parties
• The public respondent shall not appear or
participate in the proceedings therein, unless
specifically directed by the court
•

• Indispensable party

Golangco vs Fung, 598 SCRA 637

A complaint for the crime of libel was filed against respondent before the RTC. During trial, the prosecution failed
to present their witnesses despite the request for a subpoena testifecandum. The RTC then issued an order
terminating the prosecution’s presentation of evidence. The petitioner assailed the order in the CA by filing a
petition for certiorari under rule 65 on the ground of grave abuse of discretion. The petition did not join the
PEOPLE of the PHILIPPINES and did not obtain the consent of the OSG. Will the petition for certiorari prosper?

ANS: No. it will not prosper. The petitioner did not join the People of the Philippines as a party in his action for
certiorari. The People of the Philippines in criminal proceedings are indispensable party in a petition for certiorari.
The omission is fatal and a sufficient ground for the rejection of the petition.

The petitioner did not also obtained the consent of the Office of the Solicitor General (OSG) or at the very least
furnished a copy of the petition to the OSG. The OSG is mandated under the administrative code (Sec.35,Chapter
12,Title III of

Book IV, EO no. 292) to represent the Government in the Supreme Court and the Court of Appeals in all criminal
proceedings.

Sec.6 Order to Comment –

Petition for mandamus; Petition for prohibition –

The court shall issue an order requiring the respondent to comment on the petition within 10 days from receipt of
a copy thereof if the petition is sufficient in form and substance to justify the process.

Such order shall be served on the respondent in such manner as the court may direct, together with a copy of the
petition and any annexes thereto.

Petition for certiorari –

Before giving due course thereto, the court MAY require the respondents to file their comment to, and not a
motion to dismiss, the petition. Thereafter, the court may require the filing of a reply and such other responsive or
other pleadings as it may deem necessary and proper.

Sec.7 Expediting proceedings; injunctive relief –

The court in which the petition is filed may issue:

• Orders expediting the proceedings
• 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

Effect of filing a petition for mandamus/prohibition

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, enjoining the public respondent from further proceeding with the case.

Effect of filing a petition for certiorari

The public respondent shall proceed with the principal case within 10 days from filing of a petition for certiorari
with a higher court or tribunal, absent a temporary restraining order or a preliminary injunction, or upon its
expiration. Failure of the public respondent to proceed with the principal case may be a ground for administrative
charge.

Sec.8. Proceedings after comment is filed –

After the comment or other pleadings required by the court are filed, or the time for the filing thereof has expired,
the court may:
• Hear the case or
• Require the parties to submit memoranda

If, after such hearing or filing of memoranda or upon the expiration of the period for filing, the court finds that
the allegations of the petition are true, it shall render judgment for such relief to which the petitioner is entitled.

When may the court dismiss the petition?

If it finds that the petition:
• Is patently without merit
• Prosecuted manifestly for delay
• The questions raised therein are too unsubstantial to require consideration
In such event, the court may award in favor of the respondent TREBLE COST solidary against the petitioner and
counsel, in addition subjecting counsel to administrative sanctions.
The court may imposed motu proprio, based on res ipsa loquitor, other disciplinary sanctions or measures on
erring lawyers for patently dilatory and unmeritorious petitions for certiorari.

Sec.9. Service and enforcement of order of judgment –

A certified copy of the judgment shall be served upon the court, quasi-judicial agency, tribunal, corporation, board,
officer or person concerned in such manner as the court may direct, and disobedience thereto shall be punished as
contempt. An execution may issue for any damages or costs awarded in accordance with sec.1 rule 39.

DOJ rulings –

Alcaraz vs Gonzalez Sep. 20, 2006 –

A complaint for attempted homicide was filed against alcaraz in the prosecutor office. After the prosecution
conducted an inquest an information was filed with the METC. On motion of alcaraz, MeTC order the city
prosecutor to conduct a preliminary investigation. The city prosecutor finds probable cause and retain the
information. Alcaraz filed a motion for reconsideration and was denied. from the order of the denial, he filed a
petition for review with the DOJ. The Secretary of Justice issued a resolution granting the petition and ordered the
withdrawal of the information.

Gonzales filed a motion for reconsideration which was denied by the DOJ. Aggrieved to the decision of the DOJ, he
filed a petition for review under RULE 43 before the CA seeking reversal of the DOJ’s Resolution. The CA granted
the petition. Alcaraz filed a motion for reconsideration but was denied.

Was the CA correct to grant the petition?

Ans: NO. the CA was not correct to grant the petition. The petition for review under rule 43 was not the proper
remedy for the respondent. He should have instead filed a petition for certiorari under rule 65 in appealing his case
before the CA. the decision/resolution of the Secretary of Justice in affirming, modifying, or reversing the
resolution of the investigating prosecutor is final and executory. The legislature has not provided an adequate
remedy by appeal in such case. Thus, the petition for certiorari is available.
Cases:

CERTIORARI –DEFINITION

Triplex Enterprises Inc. vs PNB Republic Bank

Facts: Petitioner sought to annul the sale of two parcels of land situated in Tagaytay City by PNB-Republic Bank to
Solid Builders, Inc. and to compel PNB-Republic Bank to award instead the sale to it as the highest bidder.
Petitioner's claim was rejected by PNB-Republic Bank due to the sale of the properties to Solid Builders, Inc.

Petitioner moved for the reconsideration of the court a quo's refusal to admit its evidence but it was denied in an
order dated February 26, 1999. The order disallowed the presentation and admission in evidence of any
testimony referring to the December 7, 1994 opinion of the OGCC. The prohibition was based on the ground that
the testimony was in violation of the rule on privileged communication between attorney and client, i.e., the
OGCC and PNB-Republic Bank.

Aggrieved, petitioner filed a petition for certiorari with the Court of Appeals. However, the appellate court
dismissed the petition. Petitioner moved for reconsideration but the same was denied. Hence, this petition.

Issue: Petitioner claims that the Court of Appeals erred when it ruled that the trial court did not commit grave
abuse of discretion in disallowing the presentation and admission in evidence of Roque's testimony.

RULING: The petition has no merit.

Certiorari as a special civil action is proper when any tribunal, board or officer exercising judicial or quasi-
judicial functions has acted without or in excess of its jurisdiction, or with grave abuse of discretion, and there
is no appeal nor any plain, speedy and adequate remedy at law. The writ may be issued only where it is
convincingly proved that the lower court committed grave abuse of discretion, or an act too patent and gross as
to amount to an evasion of a duty, or to a virtual refusal to perform the duty enjoined or act in contemplation of
law, or that the trial court exercised its power in an arbitrary and despotic manner by reason of passion or
personal hostility.

While certiorari may be maintained as an appropriate remedy to assail an interlocutory order in cases where the
tribunal has issued an order without or in excess of jurisdiction or with grave abuse of discretion, it does not lie to
correct every controversial interlocutory ruling.

Here, petitioner assails the order of the trial court disallowing the admission in evidence of the testimony of
Roque on the opinion of the OGCC. By that fact alone, no grave abuse of discretion could be imputed to the trial
court. Furthermore, the said order was not an error of jurisdiction. Even assuming that it was erroneous, the
mistake was an error in judgment not correctable by the writ of certiorari. WHEREFORE, the petition is hereby
DENIED.

PROHIBITION -DEFINITION

David vs Rivera

Facts: Claiming to be the owner of an eighteen thousand (18,000)- square meter portion (hereafter, "subject
land") of Lot No. 38-B,1 a five (5)-hectare lot situated at MacArthur Highway, Dau, Mabalacat, Pampanga, herein
respondent Agustin Rivera filed on May 10, 1994 a Complaint 2 for "Maintenance of Peaceful Possession with
Prayer for Restraining Order and Preliminary Injunction" before the Provincial Adjudication Board (PARAB) of San
Fernando, Pampanga against petitioners heirs of Spouses Cristino and Consolacion David. The respondent averred
that the petitioners had been harassing him for the purpose of making him vacate the subject land although it
had already been given to him sometime in 1957 by the parents of the petitioners as "disturbance
compensation", in consideration of his renunciation of his tenurial rights over the original eighteen (18)-hectare
farmholding.

For their part, the petitioners filed a Complaint for ejectment before the Municipal Circuit Trial Court (MCTC) of
Mabalacat and Magalang, Pampanga. They alleged that the respondent was occupying the subject land without
paying rentals therefor. The petitioners also averred that they need the subject land for their personal use but the
respondent refused to vacate it despite repeated demands.

On September 28, 1995, the MCTC rendered its Decision ordering the respondent to vacate the subject land. The
court found that there was a dearth of evidence supportive of the respondent‘s claim that the land is agricultural
or that it is devoted to agricultural production. Further, it ruled that the petitioners as the registered owners have
a better right to possession of the subject land.

Without appealing the MCTC Decision but within the period to appeal, the respondent filed before the Regional
Trial Court (RTC) of Angeles City a Petition for prohibition with preliminary injunction and/or temporary
restraining order, seeking the nullification of the MCTC Decision. The thrust of the petition was that the MCTC
had no jurisdiction as the issue before it was agrarian in nature.

On February 25, 1998, the RTC issued an Order14 denying the motion to dismiss. The court ruled that the motion,
which was filed after the presentation of the plaintiff‘s evidence, partakes of a demurrer to evidence which under
Section 1, Rule 33 of the Rules of Court, 15 may be granted only upon a showing that the plaintiff has shown no
right to the relief prayed for. Noting that "the evidence presented by the petitioner establishes an issue which is
addressed to [the] court for resolution. . . whether or not the respondent court
had jurisdiction over the subject matter of the case filed before it", the RTC ruled that the denial of the motion to
dismiss is proper. The petitioners moved for reconsideration16 but was denied in an Order17 dated June 23,
1998.

ISSUE: whether the denial of the motion to dismiss by way of demurrer to evidence was afflicted with grave
abuse of discretion.

RULING: The SC upheld the CA’s Decision.

With the facts doubtlessly presenting a question of jurisdiction, it follows that the respondent has availed of the
proper, speedy and adequate remedy which is the special civil action of prohibition. It is a settled rule that
prohibition is the
proper remedy to afford relief against usurpation of jurisdiction or power by an inferior court, or when, in the
exercise of jurisdiction in handling matters clearly within its cognizance the inferior court transgresses the
bounds prescribed to it by the law, or where there is no adequate remedy available in the ordinary course of
law by which such relief can be obtained. The purpose of a writ of prohibition is to keep a lower court within the
limits of its jurisdiction in order to maintain the administration of justice in orderly channels. Also noteworthy is
the fact that the petition for prohibition was filed within the reglementary period to appeal; hence, it cannot be
claimed that the same was used as substitute for a lost appeal.

It should be pointed out that the petitioners elevated to the appellate court the Order of the RTC denying their
motion to dismiss by way of demurrer to evidence. A demurrer to evidence is an objection by one party to the
adequacy of the evidence of his adversary to make out a case. Otherwise stated, the party demurring challenges
the sufficiency of the whole evidence to sustain a verdict. In this case, the trial court ruled that respondent‘s
evidence in support of his application for a writ of prohibition was sufficient to require the presentation of
petitioners‘ contravening proof. The RTC did not commit grave abuse of discretion in so ruling. The Court of
Appeals is therefore correct in upholding the lower court‘s denial of the petitioners‘ motion to dismiss.
Esquivel vs Ombudsman

FACTS: In their respective complaint affidavits, filed before the Philippine National Police – Criminal Investigation
and Detection Group (PNP-CIDG), Third Regional Office, Camp Olivas, San Fernando, Pampanga, Eduardo and
Catacutan charged herein petitioners Antonio Prospero Esquivel, municipal mayor of Jaen and his brother, Mark
Anthony "Eboy" Esquivel, barangay captain of barangay Apo, Jaen, with alleged illegal arrest, arbitrary detention,
maltreatment, attempted murder, and grave threats. Also included in the charges were SPO1 Reynaldo Espiritu,
SPO2 Nestor Villa Almayda, and LTO Officer Aurelio Diaz. PO2 Eduardo and SPO1 Catacutan likewise accused P/S
Insp. Bienvenido C. Padua and SPO3 Inocencio P. Bautista of the Jaen Municipal Police Force of dereliction of
duty.

The initial investigation conducted by the PNP-CIDG showed that at about 12:30 p.m. of March 14, 1998, PO2
Eduardo was about to eat lunch at his parents‘ house at Sta. Monica Village, Dampulan, Jaen, Nueva Ecija, when
petitioners arrived. SPO1 Espiritu, SPO2 Almayda, LTO Officer Diaz, and several unidentified persons accompanied
them. Without further ado, petitioners disarmed PO2 Eduardo of his Cal. 45 service pistol, which was covered by
a Memorandum Receipt and COMELEC Gun Ban Exemption. They then forced him to board petitioners’ vehicle
and brought him to the Municipal Hall.

Petitioners argue that the Ombudsman committed grave abuse of discretion when he failed to consider the
exculpatory evidence in their favor, namely, the admission of PO2 Eduardo that he was in good physical condition
when he left the police station in Jaen, Nueva Ecija. With such admission, PO2 Duardo is now estopped from
claiming that he was injured since it is conclusive evidence against him and need not be proven in any other
proceeding. Public respondents, represented by the Office of the Ombudsman through the OSP, counter that
petitioners raise a factual issue which is not a proper subject of a certiorari action. They further postulate that this
is the very same defense advanced by petitioners in the charges against them and being evidentiary in nature, its
resolution can only be threshed out in a full-blown trial.

ISSUE: WON Sandiganbayan has jurisdiction over the offenses and committed grave abuse of discretion.

HELD: Being an extraordinary remedy, prohibition cannot be resorted to when the ordinary and usual remedies
provided by law are adequate and available.40 Prohibition is granted only where no other remedy is available or
sufficient to afford redress. That the petitioners have another and complete remedy at law, through an appeal or
otherwise, is generally held sufficient reason for denying the issuance of the writ. In this case, petitioners were
not devoid of a remedy in the ordinary course of law. They could have filed a motion to quash the information at
the first instance but they did not. They have only themselves to blame for this procedural lapse as they have not
shown any adequate excuse for their failure to do so. Petitioners did make a belated oral motion for time
to file a motion to quash the information, during their much delayed arraignment,42 but its denial is not a proper
subject for certiorari or prohibition as said denial is merely an interlocutory order.

A writ of prohibition will not be issued against an inferior court unless the attention of the court whose
proceedings are sought to be stayed has been called to the alleged lack or excess of jurisdiction. The foundation
of this rule is the respect and consideration due to the lower court and the expediency of preventing unnecessary
litigation; it cannot be presumed that the lower court would not properly rule on a jurisdictional objection if it
were properly presented to it. The records show that petitioners only raised the issue
of the alleged lack of jurisdiction by the Sandiganbayan before this Court.

MANDAMUS –DEFINITION

Militante vs. Court of Appeals

FACTS: Petitioner Pilo Militante is the registered owner of three (3) contiguous parcels of land with an aggregate
area of 1,590 square meters in Balintawak, Caloocan City. The three parcels are covered by TCT Nos. 53066-A,
53067 and 53068, all derived from TCT No. 71357 issued by the Register of Deeds of Caloocan City. Twenty-four
(24) squatter families live in these lots. In 1975, President Marcos issued Presidential Decree (P.D.) No. 13152
expropriating forty (40) hectares of land in Bagong Barrio, Caloocan City.

The NHA called the squatters for a dialogue "to look into the possibility of amicably settling the eviction problem
and/or to find out why a clearance should be issued or not for the removal/demolition of all the illegal structures
in the said property." The squatters did not attend the meeting. In view of their failure to attend, Joaquin
Castano, Acting Division Manager, Resettlement Division, NHA, wrote a memorandum to the Department
Manager, Resettlement Department, NHA, recommending the issuance of a demolition clearance. Respondent
Annabelle Carangdang, NHA Project Manager in Bagong Barrio, refused to implement the clearance to eject the
squatters on petitioner's land. At the conference of February 13, 1991, Carangdang claimed that petitioner‘s land
had already been declared expropriated by P.D. 1315.
Petitioner then filed with the respondent Court of Appeals a "Petition for Prohibition and Mandamus with
Declaration as Inexistent and Unconstitutional Presidential Decree No. 1315" against the NHA and Carangdang.

ISSUE: WON Carangdang can be compelled to effect the directive/ memorandum of relocation/ resettlement
subjecting the said 24 squatter families from unlawfully occupying petitioner‘s subject property without declaring
PD 1315 as void and unconstitutional.

RULING:

In the case at bar, petitioner does not pray that respondent Carangdang should be ordered to desist from
relocating the squatters. What petitioner challenges is
respondent Carangdang's refusal to implement the demolition clearance issued by her administrative superiors.
The remedy for a refusal to discharge a legal duty is mandamus, not prohibition.

Second. The petitioner is not also entitled to a writ of mandamus. Mandamus is a writ commanding a tribunal,
corporation, board, or person to do the act required to be done when it or he unlawfully neglects the
performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station, or
unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled,
there being no other plain, speedy, and adequate remedy in the ordinary course of law.

It is incumbent upon petitioner to show that he has a well-defined, clear and certain right to warrant the grant of
the writ of mandamus. He failed to discharge this burden. The records show that there is no direct order from
the NHA General Manager addressed to respondent Carangdang to evict the squatters and demolish their
shanties on the subject property. The NHA demolition clearance issued by General Tobias on January 21, 1982
was addressed to Mayor Asistio, the mayor of Caloocan City. The clearance's revalidation by NHA General
Manager Monico Jacob was likewise addressed
to Mayor Asistio.

DISTINGUISHED FROM EACH OTHER:

Pamana vs Court of Appeals (Certiorari vs Prohibition)

Certiorari Prohibition
Against whom directed only against a tribunal, directed against a tribunal, corporation,
directed? board or officer exercising judicial or board, officer or person exercising
quasi-judicial functions. judicial, quasi-judicial or ministerial
functions
It is not available as a remedy for
 the correction of acts performed by
a sheriff during the execution
process, which acts are neither
judicial nor quasi-judicial but
are purely ministerial functions.
As to purpose aimed at "annulling or modifying" a "commanding the respondent to desist
proceeding from further proceedings in the action or
matter specified in the petition".

Enriquez vs Macadaeg (Prohibition vs Mandamus)

Prohibition
Case Type a case where a judge is proceeding in
defiance of the Rules of Court by
refusing to dismiss an action which
would not be maintained in his court.
The remedy in such case is
prohibition.
Mandamus
a case where a tribunal "unlawfully
neglects the performance of an act
which the law specifically enjoins as a
duty resulting from an office" or
"unlawfully excludes another from the
use and enjoyment of a
right."

Madrigal Transport vs Lapanday Holdings Corps

(Certiorari vs Appeal)

Certiorari Appeal
Purpose Certiorari is a remedy designed for the Where the error is not one of
correction of errors of jurisdiction, not jurisdiction, but of an error of law or fact
errors of judgment. -- a mistake of
judgment -- appeal is the remedy.
As to the manner Over a certiorari, the higher court uses Over an appeal, the CA exercises its
of filing its original jurisdiction in accordance appellate jurisdiction and power of
with its power of control and review.
supervision over the proceedings of
lower courts. An appeal is thus a continuation of the
Petition for certiorari is an original and original suit.
independent action that was not part of
the trial that had resulted in the
rendition of the judgment or order
complained of.
Parties In contrast, the parties to a petition for The parties to an appeal are the original
certiorari are the aggrieved party (who parties to the action.
thereby becomes the petitioner) against
the lower court or quasi-judicial agency,
and the prevailing parties (the public
and the private respondents,
respectively).
As to the Subject Since the issue is jurisdiction, an original Only judgments or final orders and those
Matter action for certiorari may be directed that the Rules of Court so declare are
against an interlocutory order of the appealable.
lower court prior to an appeal from the
judgment; or
where there is no appeal or any plain,
speedy or adequate
 remedy.
As to the period of A petition for certiorari should be filed
filing not later than sixty days from the notice
of judgment, order, or resolution.
If a motion for new trial or motion for
reconsideration was timely filed, the
period shall be counted from the denial
of the motion.
As to the need for A motion for reconsideration is
a Motion for generally required prior to the filing of a
Reconsideration petition for certiorari, in order to afford
the tribunal an opportunity to correct
the alleged errors. Note also that this
motion is a plain and adequate remedy
expressly available under the law.
Aquino vs Court of Appeals (Certiorari under Rule 65 and 45 distinguished)
Rule 65 - Certiorari
In a petition for certiorari under Rule 65,
only jurisdictional issues may be raised,
as when a court or tribunal has acted
"without or in excess of jurisdiction, or
with grave abuse of discretion amounting
to lack or excess of
jurisdiction." The extraordinary writ of
certiorari cannot legally
be used for any other purpose.
In a special civil action for certiorari, the
Court cannot correct errors of fact which
the
lower court or tribunal may have
committed.
Prohibition distinguished from Injunction
Ordinary appeals should be filed within
fifteen days from the notice of judgment
or final order appealed from.
Where a record on appeal is required,
the appellant must file a notice of
appeal and a record on appeal within
thirty days from the said notice of
judgment or final order.
A petition for review should be filed and
served within
fifteen days from the notice of denial of
the decision, or of the petitioner‘s timely
filed motion for new trial or motion for
reconsideration.
In an appeal by certiorari, the petition
should be filed also within fifteen days
from the notice of judgment or final
order, or of the denial of the petitioner‘s
motion for new trial or motion for
reconsideration.
Such motion is not required before
appealing a judgment or final order.
Rule 45 - Certiorari
A party desiring to appeal by certiorari
from a judgment or
final order or resolution of the Court of
Appeals, the Sandiganbayan, the Regional
Trial Court or other courts whenever
authorized by law, may file with the
Supreme Court a verified petition for
review on certiorari. The petition shall
raise only questions of law which must be
distinctly set forth.
 Prohibition
Prohibition is a special civil action seeking
a judgment commanding a tribunal,
corporation, board, or officer to desist
from further proceeding in the action
because it has no jurisdiction, is acting in
excess of jurisdiction or has gravely
abused its discretion amounting to lack
of jurisdiction (Sec.2, Rule 65, Rules of
Court).
Topacio vs Ong (Prohibition vs Quo Warranto)
Prohibition
The writ of prohibition, even when
directed against persons acting as judges
or other judicial officers, cannot be
treated as a substitute for quo warranto or
be rightfully called
upon to perform any of the functions of
the writ. If there is a court, judge or officer
de facto, the title to the office and the
right to act cannot be questioned by
prohibition. If an intruder takes possession
of a judicial office, the person
dispossessed cannot obtain relief through
a writ of prohibition commanding the
alleged intruder to cease from performing
judicial acts, since in its very nature
prohibition is an improper remedy by
which to determine the title to an office.
Injunction
Preliminary injunction is an order granted
at any stage of an action or proceeding
prior to the judgment or final order (not
final and executory), requiring a party or
a court, agency or a person to refrain
from a particular act or acts. It may also
require the performance of a particular
act or acts, in which case it shall be
known as a preliminary mandatory
injunction (sec.1, Rule 58).
Quo Warranto
A quo warranto proceeding is the proper
legal remedy to determine the right or
title to the contested public office and to
oust the holder from its enjoyment. It is
brought against the person who is alleged
to have usurped, intruded into, or
unlawfully held or exercised the public
office, and may be commenced by the
Solicitor General or a public prosecutor, as
the case may be, or by any person
claiming to be entitled to the public office
or position usurped or unlawfully held or
exercised by another.
Morabe vs Brown (Mandamus distinguished from Injunction)
Mandamus Injunction
The action of the petitioner is not an An injunction, is available only against acts
action of injunction but one of mandamus, about to be committed or actually being
because it seeks the performance of a committed, and not against past acts; that
legal duty, the reinstatement of Pablo S. injunction is preventive in nature only.
Afuang. The writ known as preliminary
mandatory injunction is also amandamus,
though merely provisional in character.

Mandamus distinguished from Quo Warranto

Mandamus Quo Warranto

A case where a tribunal "unlawfully A quo warranto proceeding is the proper
neglects the performance of an act which legal remedy to determine the right or
the law specifically enjoins as a duty title to the contested public office and to
resulting from an office" or "unlawfully oust the holder from its enjoyment.
excludes another from the use and
enjoyment of a
right."

Jurisdiction and Exercise of Jurisdiction Distinguished

Herrera vs Barretto

Jurisdiction Exercise of Jurisdiction

Jurisdiction is the authority to hear and
determine a cause —
the right to act in a case. Since it is the
power to hear and determine, it does not
depend either upon the regularity of the
exercise of that power or upon the
rightfulness of the decisions made.
Where there is jurisdiction of the person
and subject matter, as we have said
before, the decision of all other
questions arising in the case is but an
exercise of that jurisdiction.

The authority to decide a cause at all, and

not the decision rendered therein, is
what makes up jurisdiction.

Error of Jurisdiction and Error of Judgment Distinguished

Microsoft Corp. vs Best Deal Computer Center Corporation

 Error of Jurisdiction
For certiorari to lie, it must be shown that
the tribunal, board or officer exercising
judicial functions acted without or in
excess of jurisdiction or with grave abuse
of discretion amounting to lack or excess
of jurisdiction, and that there is no appeal
nor any plain, speedy and adequate
remedy in the ordinary course of law for
the purpose of amending or nullifying the
proceeding.
The sole office of the writ of certiorari is
the correction of errors of jurisdiction
including the commission of grave abuse
of discretion amounting to lack of
jurisdiction, and does not include
correction of public respondent's
evaluation of the evidence and factual
findings thereon.
Error of Judgment
-error committed in the exercise of
jurisdiction.
The petition for certiorari must be based
on jurisdictional grounds because as long
as the respondent acted with
jurisdiction, any error committed by him
or it in the exercise thereof will amount
to nothing more than an error of
judgment which may be reviewed or
corrected only by appeal. Even an abuse
of discretion is not sufficient by itself to
justify the issuance of a writ of certiorari.

Conclusiveness of court’s findings as to its jurisdiction

Campos vs Wislizenus –

The general rule is that, where the jurisdiction of the court depends upon the existence of facts, and the court
judicially considers and adjudicates the question of its jurisdiction, and decides that the fact exist which are
necessary to give it jurisdiction of the case, the finding is conclusive and cannot be controverted in a collateral
proceeding.

The rule applies to a case where the proper service of notice on the candidates voted for was challenged and the
court determined upon the facts presented, after hearing the allegations of the parties and their arguments
based thereon, that service had not been made as required by law. Such a determination involves a mixed
question of law and fact; and it is a rule, as stated in the case cited, that, where the jurisdiction of the court
depends upon the determination of a question of fact and that question has been determined by the court after a
hearing, that determination is conclusive and cannot be attacked collaterally. In the case before us evidence as to
the fact of service was introduced by the petitioner and the sufficiency of that evidence was challenged by the
respondent. The petitioner did not take advantage of the opportunity given him by the challenge to present other
and further evidence in relation to the service but stood squarely upon the facts already presented and accepted
a decision of the court thereon. Under such circumstances there was nothing left for the court to do except to
decide the question upon the facts as they were. The court did so; and although to say so is unnecessary to a
decision of this case, we are of the opinion that its finding on the facts as they existed of record at the time was
well founded.
ABAD SANTOS VS PROVINCE OF TARLAC (DEFINITION) – the terms are mostly defined in the case of Madrigal
Transport Inc. vs Lapanday Holdings Corporation

WITHOUT JURISDICTION
- means that the court acted with absolute lack of authority.
LACK OF JURISDICTION
- An act of a court or tribunal may only be considered as in grave abuse of discretion when it is performed in a
capricious or whimsical exercise of judgment which is equivalent to lack of jurisdiction.

EXCESS OF JURISDICTION
- when the court transcends its power or acts without any statutory authority.

GRAVE ABUSE OF DISCRETION

- implies such capricious and whimsical exercise of judgment as to be equivalent to lack or excess of jurisdiction;
in other words, power is exercised in an arbitrary or despotic manner by reason of passion, prejudice, or personal
hostility; and such exercise is so patent or so gross as to amount to an evasion of a positive duty or to a virtual
refusal either to perform the duty enjoined or to act at all in contemplation of law.

EFFECT OF ERRONEOUS EXERCISE OF JURISDICTION

Napa vs Weissenhagen

The writ of certiorari in so far as it was a method by which mere errors of an inferior court could be corrected no
longer exists. Its place is now taken by the appeal. So long as the inferior court maintains jurisdiction, its errors
can be corrected only by that method (APPEAL). The writ in this country has been confined to the correction of
defects of jurisdiction solely and cannot be legally used for any other purpose.

If the judgment of the justice's court was void, it was nevertheless appealable, although the losing party might
have been able to rid himself of it by other means. Having been appealed, it stands upon substantially the same
footing in the appellate court, so far as the appeal itself is concerned, as any other judgment of a justice's court
and the jurisdiction of the appellate court in that appeal is as full and complete as it is any other.

PLAIN, SPEEDY AND ADEQUATE REMEDY

San Pedro vs Hon. Aspala

A "plain" and "adequate remedy" is a motion for reconsideration of the assailed order or resolution, the filing of
which is an indispensable condition to the filing of a special civil action for certiorari. This is to give the lower
court the opportunity to correct itself.

If petitioner had an adequate remedy, namely, a petition for review on certiorari under Rule 45 of the Rules of
Court, a special civil action for certiorari was, therefore, not the correct remedy. (CAMUTIN VS SPOUSES
POTENTE)

There are, of course, exceptions to the foregoing rule, to wit (SIM VS NLRC):
(a) where the order is a patent nullity, as where the court a quo has no jurisdiction;
(b) where the questions raised in the certiorari proceedings have been duly raised and passed upon by the lower
court, or are the same as those raised and passed upon in the lower court;
(c) where there is an urgent necessity for the resolution of the question and any further delay would prejudice
the interests of the Government or of the petitioner or the subject matter of the action is perishable;
(d) where, under the circumstances, a motion for reconsideration would be useless;
(e) where petitioner was deprived of due process and there is extreme urgency for relief;
(f) where, in a criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial
court is improbable;
(g) where the proceedings in the lower court are a nullity for lack of due process;
(h) where the proceeding was ex parte or in which the petitioner had no opportunity to object; and
(i) where the issue raised is one purely of law or public interest is involved.
PROHIBITION AGAINST ACCOMPLISHED ACTS

Alcantara vs Ermita

Facts: On October 13, 2005, lawyers Samson S. Alcantara, Ed Vincent S. Albano, and Rene B. Gorospe, herein
petitioners, filed with this Court the instant petition for prohibition in their capacity as Filipino citizens and
taxpayers. They alleged that under Article XVII of the Constitution, President Macapagal- Arroyo has no authority
to participate in the process to amend or revise the Constitution. Likewise, she has no power to create a
Consultative Commission to study and propose amendments and allocate public funds for its operations.

RULING: From the foregoing, it is evident that the writ of prohibition is one which commands the person to whom
it is directed not to do something which he is about to do. If the thing is already done, it is obvious that the writ of
prohibition cannot undo it, for that would require an affirmative act, and the only effect of a writ of prohibition is
to suspend all action, and to prevent any further proceeding in the prohibited direction.[4] In other words,
prohibition is a preventive remedy to restrain future action. Prohibition, as a rule, does not lie to restrain an act
that is already afait accompli. The Consultative Commission has been dissolved. Consequently, we find no more
reason to resolve the constitutional issues raised by petitioners.

MINISTERIAL ACTS

Pefianco vs Moral

In fine, the trial court's Order of 23 April 1997 denying petitioner's motion to dismiss is not a mere error of
judgment as the Court of Appeals held, but a grave abuse of discretion amounting to lack or excess of jurisdiction
because, to capsulize, the Order is a patent nullity for failure to comply with the provisions of the rules requiring
that a resolution on a motion to dismiss should clearly and distinctly state the reasons therefor; and, respondent
is clearly not entitled to the writ of mandamus as she did not appeal the DECS resolution dismissing her from
service, and there is no law or rule which imposes a ministerial duty on petitioner to furnish respondent with a
copy of the investigation report, hence her petition clearly lacked a cause of action. In such instance, while the
trial court's order is merely interlocutory and nonappealable, certiorari is the proper remedy to annul the same
since it is rendered with grave abuse of discretion.

PIMENTEL VS EXECUTIVE SECRETARY

It should be emphasized that under our Constitution, the power to ratify is vested in the President, subject to the
concurrence of the Senate. The role of the Senate, however, is limited only to giving or withholding its consent, or
concurrence, to the ratification. Hence, it is within the authority of the President to refuse to submit a treaty to
the Senate or, having secured its consent for its ratification, refuse to ratify it.Although the refusal of a state to
ratify a treaty which has been signed in its behalf is a serious step that should not be taken lightly, such decision is
within the competence of the President alone, which cannot be encroached by this Court via a writ of mandamus.
This Court has no jurisdiction over actions seeking to enjoin the President in the performance of his official duties.
The Court, therefore, cannot issue the writ of mandamus prayed for by the petitioners as it is beyond its
jurisdiction to compel the executive branch of the government to transmit the signed text of Rome Statute to the
Senate.

MANDAMUS TO DIRECT EXERCISE OF A JUDGMENT IN A PARTICULAR WAY

HIPOS SR. VS. JUDGE BAY

There is indeed an exception to the rule that matters involving judgment and discretion are beyond the reach of a
writ of mandamus, for such writ may be issued to compel action in those matters, when refused. However,
mandamus is never available to direct the exercise of judgment or discretion in a particular way or the
retraction or reversal of an action already taken in the exercise of either. In other words, while a judge refusing
to act on a Motion to Withdraw Informations can be compelled by mandamus to act on the same, he cannot be
compelled to act in a certain way, i.e., to grant or deny such Motion. In the case at bar, Judge Bay did not refuse
to act on the Motion to Withdraw Informations; he had already acted on it by denying the same. Accordingly,
mandamus is not available anymore. If petitioners believed that Judge Bay committed grave abuse of discretion in
the issuance of such Order denying the Motion to Withdraw Informations, the proper remedy of petitioners
should have been to file a Petition for Certiorari against the assailed Order of Judge Bay.

COMELEC v. Judge Quijano-Padilla, G. R. No. 151992, September 18, 2002

PHOTOKINA filed with the Regional Trial Court, Branch 215, Quezon City a petition for mandamus, prohibition and
damages (with prayer for temporary restraining order, preliminary prohibitory injunction and preliminary
mandatory injunction) against the COMELEC and all its Commissioners,[14] docketed as Special Civil Action No. Q-
01- 45405. PHOTOKINA alleged three causes of action: first, the deliberate refusal of the COMELEC and its
Commissioners to formalize the contract rendered nugatory the perfected contract between them; second, in
announcing that the VRIS Project has been junked and that he has plans to re-engineer the COMELEC’s entire
modernization program, Chairman Benipayo committed grave abuse of discretion; and third, the
COMELEC’s failure to perform its duty under the contract has caused PHOTOKINA to incur damages since it has
spent substantial time and resources in the preparation of the bid and the draft contract.

PHOTOKINA, though the winning bidder, cannot compel the COMELEC to formalize the contract. Since
PHOTOKINA’s bid is beyond the amount appropriated by Congress for the VRIS Project, the proposed contract is
not binding upon the COMELEC and is considered void; and that in issuing the questioned preliminary writs of
mandatory and prohibitory injunction and in not dismissing Special Civil Action No. Q-01-45405, respondent judge
acted with grave abuse of discretion. Petitioners cannot be compelled by a writ of mandamus to discharge a
duty that involves the exercise of judgment and discretion, especially where disbursement of public funds is
concerned.

No rule of law is better settled than that mandamus does not lie to enforce the performance of contractual
obligations.[34] As early as 1924, Justice Street, in Quiogue vs. Romualdez,[35] already set forth the justification
of this rule, thus:

“Upon the facts above stated we are of the opinion that the writ of mandamus is not the appropriate, or even an
admissible remedy. It is manifest that whatever rights the petitioner may have, upon the facts stated, are
derived from her contract with the city; and no rule of law is better settled than that mandamus never lies to
enforce the performance of private contracts. x x x The petitioner’s remedy, if any she has, is by an original
action in the Court of First Instance to compel the city to pay the agreed price or to pay damages for the breach of
contract.

Metropolitan Manila Development Authority, et al. v. Concerned Residents of Manila Bay, G.R. Nos. 171947-48,
December 18, 2008

Cleaning or Rehabilitation of Manila Bay Can be Compelled by Mandamus.

Petitioners maintain that the MMDA’s duty to take measures and maintain adequate solid waste and liquid
disposal systems necessarily involves policy evaluation and the exercise of judgment on the part of the agency
concerned. They argue that the MMDA, in carrying out its mandate, has to make decisions, including choosing
where a landfill should be located by undertaking feasibility studies and cost estimates, all of which entail the
exercise of discretion.
Respondents, on the other hand, counter that the statutory command is clear and that petitioners’ duty to
comply with and act according to the clear mandate of the law does not require the exercise of discretion.
According to respondents, petitioners, the MMDA in particular, are without discretion, for example, to choose
which bodies of water they are to clean up, or which discharge or spill they are to contain. By the same token,
respondents maintain that petitioners are bereft of discretion on whether or not to alleviate the problem of solid
and liquid waste disposal; in other words, it is the MMDA’s ministerial duty to attend to such services.

The Supreme Court agreed with the respondents.

First off, the petitioners’ obligation to perform their duties as defined by law, on one hand, and how they are to
carry out such duties, on the other, are two different concepts.

The cleanup and/or restoration of the Manila Bay is only an aspect and the initial stage of the long-term solution.
The preservation of the water quality of the bay after the rehabilitation process is as important as the cleaning
phase. It is imperative then that the wastes and contaminants found in the rivers, inland bays, and other bodies of
water be stopped from reaching the Manila Bay. Otherwise, any cleanup effort would just be a futile, cosmetic
exercise, for, in no time at all, the Manila Bay water quality would again deteriorate below the ideal minimum
standards set by PD 1152, RA 9275, and other relevant laws. It thus behooves the Court to put the heads of the
petitioner-department-agencies and the bureaus and offices under them on continuing notice about, and to
enjoin them to perform, their mandates and duties towards cleaning up the Manila Bay and preserving the quality
of its water to the ideal level. Under what other judicial discipline describes as “continuing mandamus,”[36] the
Court may, under extraordinary circumstances, issue directives with the end in view of ensuring that its decision
would not be set to naught by administrative inaction or indifference. In India, the doctrine of continuing
mandamus was used to enforce directives of the court to clean up the length of the Ganges River from industrial
and municipal pollution.

The heads of petitioners-agencies MMDA, DENR, DepEd, DOH, DA, DPWH, DBM, PCG, PNP Maritime Group, DILG,
and also of MWSS, LWUA, and PPA, in line with the principle of “continuing mandamus,” shall, from finality of this
Decision, each submit to the Court a quarterly progressive report of the activities undertaken in accordance with
this Decision.

Manalo v. PAIC Savings Bank, G.R. No. 146531, March 18, 2005

This is a case involving a writ of mandamus compelling respondent bank (1) to allow him to redeem and/or
repurchase the subject lots for P18,000,000.00; and (2) to release to him TCT No. 6076. On June 29, 1997, when
Angsico sold the lot to Manalo, Angsico was not the owner of the subject property simply because at the time he
(Angsico) purchased the same property from Vargas and/or S. Villanueva on December 23, 1992, said sellers were
no longer the lawful owners of the property.

As correctly pointed out by the appellees, after the expiration of the one (1) year redemption period and no
redemption was made on December 5, 1985, PAIC Bank ipso facto became the legal owner in fee simple of the
subject lot and its improvements, being the highest bidder in the auction sale and the vendee in the Sheriff’s
Certificate of Sale duly registered a year before and which entitles it to the issuance of a new certificate of title in
his name.

Mandamus is not the proper recourse to enforce petitioner’s alleged right of redemption. To begin with,
mandamus applies as a remedy only where petitioner’s right is founded clearly in law and not when it is
doubtful.[3] In varying language, the principle echoed and reechoed is that legal rights may be enforced by
mandamus only if those rights are well-defined, clear and certain.

On December 4, 1985 or when respondent Vargas failed to exercise her right of redemption within the one (1)
year redemption period, respondent bank ipso facto became the absolute owner of the lots. Surprisingly,
however, on December 23, 1992, she sold the property for P18,000,500.00 to Angsico, who eventually
transferred his rights to petitioner. Not only that, on August 24, 1994, respondent Vargas still leased to petitioner
a portion of the subject lots.

Verily, when respondent bank became the owner of the lots on December 4, 1985, respondent Vargas could no
longer legally transfer, cede and convey the property to petitioner.

Moreover, mandamus cannot be availed of as a remedy to enforce the performance of contractual obligations.

CLEAR AND DEFINED RIGHT:

UP Board of Regents v. Court of Appeals

Private respondent herein is a citizen of India and a holder of a Philippine visitor’s visa. She enrolled in a doctoral
program in anthropology of the University of the Philippines. After completing her units of course work required
in her doctoral program, she left the country to work in Rome. After two years, she returned to the Philippines to
work on her dissertation. Upon her presentation of her dissertation for approval to the panel, Dr. Medina, a
dean’s representative to the panel, noticed that some portions of her work were lifted from other works without
the proper acknowledgement. Nonetheless, she was allowed to defend her dissertation. She passed her oral
defense, which was approved by four of the five panelists with the condition that she shall incorporate certain
amendments to the final copy of her dissertation. However, in her final submission of the copy of her
dissertation, she failed to incorporate the necessary revisions. With this development, Dr. Medina formally
charged her with plagiarism and recommended that the doctorate granted upon her be withdrawn. After an
investigation, the College of Social Sciences and Philosophy (CSSP) College Assembly recommended the
withdrawal of her doctorate degree, which was approved by the U.P. Board of Regents. Private respondent filed a
petition for mandamus with prayer for a writ of preliminary injunction and damages against petitioners herein,
alleging that they had unlawfully withdrawn her degree without justification. The trial court dismissed her
petition. However, on appeal, the Court of Appeals reversed the lower court’s decision. Hence, this petition.
The narration of facts showed that various committees were formed to investigate the charges that private
respondent committed plagiarism. In all investigations held, she was heard in her defense. Where it was shown
that the conferment of an honor or distinction was obtained through fraud, a university has the right to withdraw
the honor or distinction it has conferred. Under the U.P. Charter, the Board of Regents is the highest governing
body of the U.P. In the case at bar, the Board of Regents’ decision to withdraw private respondent’s doctorate
degree was based on records, including her admission that she committed the offense. The Supreme Court
reversed the decision of the Court of Appeals and the petition for mandamus was dismissed.

1. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; MANDAMUS, DEFINED; NOT AVAILABLE TO RESTRAIN THE EXERCISE
OF ACADEMIC FREEDOM; CASE AT BAR. - Mandamus is a writ commanding a tribunal, corporation, board or
person to do the act required to be done when it or he unlawfully neglects the performance of an act which the
law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from
the use and enjoyment of a right or office to which such other is entitled, there being no other plain, speedy, and
adequate remedy in the ordinary course of law. In University of the Philippines Board of Regents vs. Ligot-Telan,
227 SCRA 342 (1993), this Court ruled that the writ was not available to restrain U.P. from the exercise of its
academic freedom. In that case, a student who was found guilty of dishonesty and ordered suspended for one
year by the Board of Regents, filed a petition for mandamus and obtained from the lower court a temporary
restraining order stopping U.P. from carrying out the order of suspension. In setting aside the TRO and ordering
the lower court to dismiss the student’s petition, this Court said: [T]he lower court gravely abused its discretion in
issuing the writ of preliminary injunction of May 29, 1993. The issuance of the said writ was based on the lower
court’s finding that the implementation of the disciplinary sanction of suspension on Nadal “would work injustice
to the petitioner as it would delay him in finishing his course, and consequently, in getting a decent and good
paying job.” Sadly, such a ruling considers only the situation of Nadal without taking into account the
circumstances, clearly of his own making, which led him into such a predicament. More importantly, it has
completely disregarded the overriding issue of academic freedom which provides more than ample justification
for the imposition of a disciplinary sanction upon an erring student of an institution of higher learning. From the
foregoing arguments, it is clear that the lower court should have restrained itself from assuming jurisdiction over
the petition filed by the Nadal. Mandamus is never issued in doubtful cases, a showing of a clear and certain right
on the part of the petitioner being required. It is of no avail against an official or government agency whose duty
requires the exercise of discretion or judgment.

WHEN AND WHERE FILED (SECTION 4, A.M. NO. 07-7-12-SC):

Laguna Metts Corporation v. Caalam, et al.

Facts:

Private respondents Aries C. Caalam and Geraldine Esguerra filed a labor case against petitioner Laguna Metts
Corporation (LMC).The labor arbiter decided in favor of private respondents. On appeal, the NLRC reversed the
decision of the labor arbiter. Private respondents’ motion for reconsideration was denied.
Counsel for respondents filed a motion for extension of time to file petition for certiorari under Rule 65 of the
Rules of Court; a 15-day extension period was prayed for. In a resolution dated August 7, 2008, the CA granted
the motion and gave private respondents a non-extendible period of 15 days within which to file their petition for
certiorari. LMC moved for the reconsideration of the said resolution claiming that extensions of time to file a
petition for certiorari are no longer allowed under Section 4, Rule 65 of the Rules of Court, as amended by A.M.
No. 07-7-12-SC. This was denied by the CA.
Aggrieved, LMC now assails the resolutions dated August 7, 2008 and October 22, 2008 of the Court of Appeals in
this petition for certiorari under Rule 65 of the Rules of Court.

Issue: Whether or not CA committed grave abuse of discretion when it granted private respondents’ motion for
extension of time to file petition for certiorari.

Held:

Section 4 of Rule 65 prescribes a period of 60 days within which to file a petition for certiorari. The 60-day period
is deemed reasonable and sufficient time for a party to mull over and to prepare a petition asserting grave
abuse of discretion by a lower court. The period was specifically set to avoid any unreasonable delay that
would violate the constitutional rights of the parties to a speedy disposition of their case.
While the proper courts previously had discretion to extend the period for filing a petition for certiorari beyond
the 60-day period, the amendments to Rule 65 under A.M. No. 07-7-12-SC disallowed extensions of time to file a
petition for certiorari with the deletion of the paragraph that previously permitted such extensions.
If the Court intended to retain the authority of the proper courts to grant extensions under Section 4 of Rule 65,
the paragraph providing for such authority would have been preserved. The removal of the said paragraph under
the amendment by A.M. No. 07-7-12-SC of Section 4, Rule 65 simply meant that there can no longer be any
extension of the 60-day period within which to file a petition for certiorari.
The rationale for the amendments under A.M. No. 07-7-12-SC is essentially to prevent the use (or abuse) of the
petition for certiorari under Rule 65 to delay a case or even defeat the ends of justice. Deleting the paragraph
allowing extensions to file petition on compelling grounds did away with the filing of such motions. As the Rule
now stands, petitions for certiorari must be filed strictly within 60 days from notice of judgment or from the
order denying a motion for reconsideration.

In granting the private respondents’ motion for extension of time to file petition for certiorari, the Court of
Appeals disregarded A.M. No. 07-7-12-SC. The action amounted to a modification, if not outright reversal, by the
Court of Appeals of A.M. No. 07-7-12-SC. In so doing, the Court of Appeals arrogated to itself a power it did not
possess, a power that only this Court may exercise.For this reason, the challenged resolutions dated August 7,
2008 and October 22, 2008 were invalid as they were rendered by the Court of Appeals in excess of its
jurisdiction.

WHEN AND WHERE FILED (SECTION 4, A.M. NO. 07-7-12-SC):

Lapid v. Laurea

Facts:

Spouses Ramon Isidro P. Lapid and Gladys B. Lapid are the parents of seven-year-old Christopher B. Lapid, who
was a Grade 1 pupil of the respondent school, St. Therese of the Child Jesus. Private respondents Esperanza N.
Prim, Norilyn A. Cruz, Flordeliza C. Santos and Macario B. Binondo are its directress, teacher-in-charge, guidance
counselor and principal, respectively.
Petitioners filed a complaint for damages against the private respondents before the RTC. Petitioners averred that
their son was summarily dismissed from school sans notice and hearing. Petitioners denied any knowledge of the
alleged letters of complaint filed by the parents whose children were allegedly offended by Christopher. As a
result of the strained relations between the Lapids and the school management, Christopher was transferred to a
different school immediately thereafter. According to petitioners, the school’s malicious imputation against their
son tarnished their good name and reputation.
Eventually, petitioners filed a motion to declare respondent school as in default, which motion was denied by the
trial court. With the denial of their motion for reconsideration, petitioners filed a petition for certiorari with the
Court of Appeals, which was dismissed for failure to indicate the particular date of filing the motion for
reconsideration with the RTC. On motion for reconsideration, petitioners still failed to indicate said date thus, it
was likewise denied. Hence this petition.

Issue: WON the CA erred in dismissing the petition for certiorari filed by petitioners on the ground of formal and
procedural deficiency, i.e., the petitioners’ failure to state a material date in their petition for certiorari

Ruling:
After a careful consideration of the submissions of the parties, particularly their respective memoranda, we are
constrained to agree with the ruling of the respondent appellate court which dismissed the instant petition for
certiorari. We find no reversible error in the assailed resolutions of the Court of Appeals because in filing a special
civil action for certiorari without indicating the requisite material date thereon, petitioners violated basic tenets
of remedial law, particularly Rule 65 of the Rules of Court.
There are three material dates that must be stated in a petition for certiorari brought under Rule 65. First, the
date when notice of the judgment or final order or resolution was received; second, the date when a motion for
new trial or for reconsideration was filed; and third, the date when notice of the denial thereof was received. In
the case before us, the petition filed with the CA failed to indicate the second date, particularly the date of filing
of their motion for reconsideration. As explicitly stated in the aforementioned Rule, failure to comply with any of
the requirements shall be sufficient ground for the dismissal of the petition.
The rationale for this strict provision of the Rules of Court is not difficult to appreciate. As stated in Santos vs.
Court of Appeals, the requirement is for purpose of determining the timeliness of the petition, thus:
The requirement of setting forth the three (3) dates in a petition for certiorari under Rule 65 is for the purpose of
determining its timeliness. Such a petition is required to be filed not later than sixty (60) days from notice of the
judgment, order or Resolution sought to be assailed. Therefore, that the petition for certiorari was filed forty-one
(41) days from receipt of the denial of the motion for reconsideration is hardly relevant. The Court of Appeals was
not in any position to determine when this period commenced to run and whether the motion for
reconsideration itself was filed on time since the material dates were not stated.
All told, no reversible error can be ascribed to the Court of Appeals for dismissing the petition for certiorari and
later denying the petitioners’ motion for reconsideration.
Petition denied.

PERSON AGGRIEVED: Concepcion, Jr. v. COMELEC

Facts:

The National Citizen’s Movement for Free Elections (NAMFREL) filed a petition for Accreditation to Conduct the
Operation Quick Count with the COMELEC. The petitioner was the incumbent Punong Barangay of Barangay
Forbes Park, Makati City, was one of the signatories of the NAMFREL petition in his capacity as the National
Chairman of NAMFREL.

On the same date when the petition was filed, COMELEC promulgated Resolution No. 7798 wherein it prohibited
among others “the appointment of barangay officials which includes the Punong Barangay, Barangay Kagawad,
Barangay Secretary, Barangay Treasurer, and Barangay Tanod, as Chairman/person and/or Member of the BEIs or
as official watcher of any candidate, duly registered major political party, or any similar organization, or any socio-
civic, religious, professional [sic], in the May 14, 2007 National and Local Elections. The prohibition extends to
barangay officials, employees and tanods, who are members of accredited citizen’s arms.”

The COMELEC ruled on NAMFREL’s petition, conditionally granting in the following tenor: “… There is, however,
one important condition that must be fulfilled by the petitioner before its accreditation as citizen’s arm could
legally take effect. Accordingly, Mr. Jose S. Concepcion, Jr., the National Chairman of NAMFREL, must first be
removed both as a member and overall Chairman of said organization…. This is explicitly provided for in COMELEC
Resolution No. 7798.” Also, it further subjected NAMFREL from enjoining and encouraged by the Commission to
re-organize.

Thereafter, NAMFREL filed a manifestation and request for re-examination which contain therein among others
its re-organization and new set of officers. COMELEC denied the request for re-examination. NAMFREL did not
question the ruling.

Instead of direct reaction to NAMFREL, petitioner Concepcion filed this petition for certiorari raising issues with
respect to Resolution No. 7798.
Issue: Whether or not the resolution is valid?

Ruling:

The first defect lies in the petitioner’s personality to file a petition for certiorari to address the adjudicatory
resolution of the COMELEC in which he was not a party to, and where the direct party, NAMFREL, does not even
question the assailed resolution.

Section 1, Rule 65 essentially provides that a person aggrieved by any act of a tribunal, board or officer exercising
judicial or quasi-judicial functions rendered without or in excess of jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction may file a petition for certiorari.
An aggrieved party under Section 1, Rule 65 is one who was a party to the original proceedings that gave rise to
the original action for certiorari under Rule 65.

In Tang v. Court of Appeals where we said:

Although Section 1 of Rule 65 provides that the special civil action of certiorari may be availed of by a
"person aggrieved" by the orders or decisions of a tribunal, the term "person aggrieved" is not to be
construed to mean that any person who feels injured by the lower court’s order or decision can question
the said court’s disposition via certiorari. To sanction a contrary interpretation would open the
floodgates to numerous and endless litigations which would undeniably lead to the clogging of court
dockets and, more importantly, the harassment of the party who prevailed in the lower court.
In a situation wherein the order or decision being questioned underwent adversarial proceedings before
a trial court, the "person aggrieved" referred to under Section 1 of Rule 65 who can avail of the special
civil action of certiorari pertains to one who was a party in the proceedings before the lower court. The
correctness of this interpretation can be gleaned from the fact that a special civil action for certiorari
 may be dismissed motu proprio if the party elevating the case failed to file a motion for reconsideration
of the questioned order or decision before the lower court. Obviously, only one who was a party in the
case before the lower court can file a motion for reconsideration since a stranger to the litigation would
not have the legal standing to interfere in the orders or decisions of the said court. In relation to this, if a
non-party in the proceedings before the lower court has no standing to file a motion for reconsideration,
logic would lead us to the conclusion that he would likewise have no standing to question the said order
or decision before the appellate court via certiorari. (emphasis supplied)

In Development Bank of the Philippines v. Commission on Audit - a case that involves a certiorari petition, under
Rule 64 in relation with Rule 65, of a ruling of the Commission on Audit (a constitutional commission like
COMELEC):

The novel theory advanced by the OSG would necessarily require persons not parties to the present case
– the DBP employees who are members of the Plan or the trustees of the Fund – to avail of certiorari
under Rule 65. The petition for certiorari under Rule 65, however, is not available to any person who
feels injured by the decision of a tribunal, board or officer exercising judicial or quasi-judicial functions.
The "person aggrieved" under Section 1 of Rule 65 who can avail of the special civil action of certiorari
pertains only to one who was a party in the proceedings before the court a quo, or in this case, before
the COA. To hold otherwise would open the courts to numerous and endless litigations. Since DBP was
the sole party in the proceedings before the COA, DBP is the proper party to avail of the remedy of
certiorari.

The real party in interest who stands to benefit or suffer from the judgment in the suit must prosecute or defend
an action. We have held that "interest" means material interest, an interest in issue that the decision will affect,
as distinguished from mere interest in the question involved, or a mere incidental interest.

INDISPENSIBLE PARTY:

Golangco v. Fung

FACTS:

In a Criminal Case a prosecution for libel initiated by the petitioner as the complainant against the respondent,
was commenced in 1995. Allegedly, the respondent had issued an office memorandum dated May 10, 1995
maliciously imputing against the petitioner the commission of bribery and had sent copies of the memorandum to
the petitioner’s superiors in the Philippine Overseas Employment Administration (POEA) and to other public
officers and personalities not connected with the POEA, causing damage and prejudice to the petitioner.

After almost 6 years, the Prosecution had presented only two witnesses in Criminal Case No. 95-145703. On
February 16, 2001, the Prosecution requested that a subpoena ad testificandum be issued to and served on Atty.
Oscar Ramos, Resident Ombudsman of the POEA, to compel him to testify in the criminal case on February 20,
2001. The RTC did not granted the request. The same was affirmed by the Court of Appeals.

ISSUE: Whether the Court of Appeals correctly ruled on the petition for certiorari of the petitioner.

RULING:

The petitioner did not join the People of the Philippines as a party in his action for certiorari in the Court of
Appeals. He thereby ignored that the People of the Philippines were indispensable parties due to his objective
being to set aside the trial court’s order dated May 23, 2001 that concerned the public aspect of Criminal Case
No. 95-145703. The omission was fatal and already enough cause for the summary rejection of his petition for
certiorari.
We find that the trial judge did not act capriciously, arbitrarily or whimsically in issuing the assailed order. Thus,
the Court of Appeals properly dismissed the petition for certiorari. The petitioner now needs to be reminded that
certiorari is an extraordinary remedy to correct a grave abuse of discretion amounting to lack or excess of
jurisdiction when an appeal, or any plain, speedy and adequate remedy in the ordinary course of law is not
available. In this regard, grave abuse of discretion implies a capricious and whimsical exercise of judgment that is
equivalent to lack of jurisdiction whenever the power is exercised in an arbitrary or despotic manner by reason of
passion, prejudice or personal aversion amounting to an evasion of a positive duty or to a virtual refusal to
perform the duty enjoined, or to act at all in contemplation of law.
Settled rule that certiorari does not lie to review an interlocutory order, but only a final judgment or order that
terminates the proceedings. Certiorari will be refused where there has been no final judgment or order and the
proceeding for which the writ is sought is still pending and undetermined in the lower court.

As long as the trial court acted within its jurisdiction, its alleged error committed in the exercise of its jurisdiction
amounted to nothing more than an error of judgment that was reviewable by a timely appeal, not by a special
civil action of certiorari.

DOJ RULINGS:

Alcaraz v. Gonzalez

FACTS:

August 11, 2000, 61-year-old Ramon C. Gonzalez was driving his Nissan Cefiro car with plate no. UPW-298 along
the right outermost lane of the South-Luzon Expressway. He was on his way to Makati City and had just passed
the Sucat toll gate. Atty. Arnel C. Alcaraz, a Customs Collector of the Bureau of Customs, Batangas Port, was
driving his Nissan Infiniti car with plate no. CNH-338. He was in the middle lane of the South-Luzon Expressway,
between the Sucat and Bicutan Interchange, on his way to Manila from Batangas City, armed with a .38 caliber
pistol and had with him Mission Order No. 699-2000, to expire on August 21, 2000.

Alcaraz intended to use the Skyway, he signaled, and proceeded to the right-most lane which was reserved for
vehicles taking the Skyway. Gonzalez, who was on the right-most lane, was forced to swerve his car to the right
to avoid colliding with Alcaraz's vehicle and nearly hit the concrete island. Gonzalez chased after Alcaraz, opened
his windows and shouted at Alcaraz, demanding to know why the latter suddenly cut into his lane. Alcaraz
retorted that he had signaled that he was swerving to the right. Gonzalez reproved Alcaraz and drove on. Upon
nearing an island, Alcaraz raised his pistol towards Gonzalez and fired twice: the first bullet hit the right front
window of the vehicle and exited at the left rear door; the second bullet hit the left rear window of Gonzalez's
car. Alcaraz hurriedly drove away from the scene, but was intercepted by the PNCC guards at the Skyway toll
gate. The guards confiscated from Alcaraz the .38 pistol with 7 live bullets and 3 empty shells.

Gonzalez reported the matter to the Parañaque City Police Station where he gave a statement to the police
investigator, and filed a criminal complaint for attempted homicide against Alcaraz.The PNP Crime Laboratory
examined Gonzalez's car to determine the trajectory of the bullets. Report No. PI-46-2000 was prepared in
connection with the investigation:

CONCLUSION:

The entrance bullet holes and the exit bullet hole were caused by bullets fired from right, front side of the vehicle.
Alfredo Tan Buraga, Officer-in-Charge of the Parañaque Police Station, filed a criminal complaint for attempted
homicide against Alcaraz in the Office of the City Prosecutor of Parañaque City.On motion of Alcaraz, the MeTC
ordered the City Prosecutor to conduct a preliminary investigation.
Alcaraz claimed that he did not aim his gun at Gonzalez; he had no intention of hitting Gonzalez, and only wanted
to scare him. At the police station, Gonzalez identified himself as the brother of Congressman Jose Mari Gonzalez.
Gonzalez insisted that Alcaraz attempted to kill him. He denied having thrown coins at Alcaraz and that he had a
gun at the time. Gonzalez pointed out that Alcaraz's allegation that he was defending himself when he fired his
gun was in effect an admission of intent to kill. Alcaraz filed a motion for reconsideration, and when it was
denied, filed a petition for review with the City Prosecutor's Office, Department of Justice.

Secretary of Justice Hernando Perez issued a Resolution granting the petition and ordering the City Prosecutor to
withdraw the Information.

Gonzalez failed to prove beyond reasonable that Alcaraz had intended to kill him, thus:
Evidence shows that respondent was provoked by complainant's acts of repeatedly hurling, not only invectives
like "putang ina mo" with a dirty finger sign, but also the throwing of coins that hit respondent's face and his lady
passenger. The natural consequence was for respondent to retaliate as what had transpired in the instant case.
There is no dispute that respondent fired his gun. But as to whether or not he had the intention to kill
complainant is a different issue. Respondent's argument that he had no intention of hitting complainant and that
his objective was only to scare him finds merit.

The element of intent to kill not having been satisfactorily established, and considering that complainant was
unscathed, a finding of probable cause against respondent for attempted homicide is difficult to sustain.
Gonzalez filed a motion for reconsideration, which the Undersecretary of Justice denied on January 29,
2003.Gonzalez then filed a petition for review under Rule 43 of the 1997 Rules of Civil Procedure before the CA,
seeking the reversal of the Justice Secretary's Resolution.

He claimed that the Secretary acted beyond his authority in finding no probable cause to charge Alcaraz with
attempted homicide and for ordering the City Prosecutor to withdraw the Information. He insisted that by
invoking self-defense, Alcaraz thereby admitted his intention to kill him (Gonzalez). He claimed that Alcaraz's
claim of self-defense should be ventilated during trial on the merits.

Alcaraz averred that the CA had no appellate jurisdiction over the petition, and that Gonzalez had no legal
standing to file the petition. He insisted that the remedy from an adverse resolution of the Justice Secretary is to
file a petition for certiorari under Rule 65 of the Rules of Court, as amended, grounded on grave abuse of
discretion amounting to excess of jurisdiction, not one under Rule 43 of said Rule. He averred that the Justice
Secretary is not a quasi-judicial officer under Rule 43 whose resolutions may thus be reviewed by the CA. Alcaraz
likewise pointed out that the CA was without power to substitute its own judgment for that of the Justice
Secretary regarding the existence or non-existence of probable cause to charge him with attempted homicide.

The CA ruled that the petition for review under Rule 43 of the Rules of Court, as amended, was meritorious. The
appellate court declared that, based on the evidence on record, there was probable cause to file an Information
for attempted homicide against Alcaraz. However, the CA failed to resolve the issue of whether it had appellate
jurisdiction over the petition under Rule 43 of the Rules of Court, as amended.
On July 19, 2004, the CA resolved to deny Alcaraz's motion, holding that his grounds and objections had already
been considered and passed upon by it in its decision.
OSG avers that the CA erred in granting the petition of respondent, since the proper remedy from an adverse
resolution issued by the Secretary of Justice is to file a petition for certiorari under Ruler 65 of the Rules of Court,
not a petition under Rule 43.

Petitioner avers that conformably with the resolution of the Secretary of Justice, the City Prosecutor had filed a
motion to withdraw the information in the MeTC, and the court had granted the motion per its Order dated
March 7, 2003. He points out that respondent had not appealed the said order of the trial court.

ISSUE: Whether the petition for review under Rule 43 of the Rules of Court was the proper remedy of
respondent?
HELD: We agree with petitioner's contention that respondent resorted to an improper remedy when he filed a
petition for review under Rule 43 of the Rules of Court, instead of filing a petition for certiorari under Rule 65.
The determination of probable cause during the preliminary investigation, the executive branch of government
has full discretionary authority. The decision whether or not to dismiss the criminal complaint against the private
respondent is necessarily dependent on the sound discretion of the Investigating Prosecutor and ultimately, that
of the Secretary of Justice. Courts are not empowered to substitute their own judgment for that of the executive
branch.

The resolution of the Investigating Prosecutor is subject to appeal to the Justice Secretary who, under the Revised
Administrative Code, exercises the power of control and supervision over said Investigating Prosecutor; and who
may affirm, nullify, reverse, or modify the ruling of such prosecutor. While the CA may review the resolution of
the Justice Secretary, it may do so only in a petition for certiorari under Rule 65 of the Rules of Court, solely on
the ground that the Secretary of Justice committed grave abuse of his discretion amounting to excess or lack of
jurisdiction.

The resolution of the Justice Secretary affirming, modifying or reversing the resolution of the Investigating
Prosecutor is final. Under the 1993 Revised Rules on Appeals (now the 2000 National Prosecution Service Rules
on Appeals), resolutions in preliminary investigations or reinvestigations from the Justice Secretary's resolution,
except the aggrieved party, has no more remedy of appeal to file a motion for reconsideration of the said
resolution of such motion if it is denied by the said Secretary. The remedy of the aggrieved party is to file a
petition for certiorari under Rule 65 of the Rules of Court since there is no more appeal or other remedy
available in the ordinary course of law.

Respondent filed a petition for review under Rule 43 of the Rules of Court, assailing the resolutions of the Justice
Secretary. Instead of dismissing the petition, however, the CA gave due course to it and thereafter granted the
petition, on its finding that the Justice Secretary erred in reversing the resolution of the Investigating Prosecutor
which found probable cause against petitioner for attempted homicide. Patently, the ruling of the CA is incorrect.
The petition is GRANTED. The assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 75589
are NULLIFIED.

RULE 66 - Quo Warranto

• literally means “by what authority”

• Purpose : 1. To determine the rights of a person to the use or exercise of a franchise or office
2. To oust the holder from its enjoyment
• Party to commence action (Sec 1 – 5)
• Government (through Solicitor General or public prosecutor

• Grounds - action for usurpation of public office, position or franchise against :

• A person who usurps, intrudes into, or unlawfully holds or exercise a public office, position or
franchise;
• A public officer who does or suffers an act which, by provision of law, constitutes a groupd for
the forfeiture of his office; or
• An association which acts as a corporation within the Philippines without being legally
incorporated or without lawful authority so to act
• Time to file : a.. When directed by the President of the Philippines
b. Upon complaint of individual(Sec 3 and 4)
 • With permission of the court in which action is to be commenced;
• Officer must require indemnity for the expenses and costs of the action in an amount approved by
and to be deposited in court by the person at whose request and upon whose relation the same is
brought
• Court shall direct that notice be given to respondent that he may be heard in opposition thereto
• If permission granted, court shall issue order ; copies to be served on all interested parties and
petition filed within period ordered by court

c. When he has good reason to believe that any of the grounds can be established by proof

• Individual (Private persons) in his own name (Sec 5)

• Ground : such person claims to be entitled to a public office or position usurped or unlawfully held or
exercised by another
• May maintain action without intervention of the Solicitor General and without need for any leave of
court
• Must show he has a clear right to the office allegedly held by another

• Procedure
• Verified petition shall contain (Sec 6) :
• Name of the person entitled thereto (all persons who claim to be entitled to the public office,
position or francise may be made parties and their respective rights thereto determined in the same
action)
• Averment of his right to the same
• That the respondent is unlawfully in possession thereof

• Venue (Sec 7)
a. Supreme Court; or,
b. Court of Appeals
c. Regional Trial Court :
c.1. if commenced by individual : where respondent or any of the respondents reside
c.2. if commenced by Sol Gen : RTC in the City of Manila

• Period for Pleading (Sec 8)

• Court may reduce the period for filing pleadings to secure the most expeditious determination of the
matter
• Such action may take precedence over any civil matter pending in the court

• Judgment (Sec 9, 10, 12)

If responding found guilty :
• Respondent to be ousted and excluded therefrom
• Petitioner or relator may recover his costs
• Judgment rendered may determine respective rights in and to the public office, position or franchise
of all parties

If judgment renders complainant entitled to public office

• Takes oath of office and execute any official bond required by law
• Take upon himself the execution of office
• May demand of respondent all books and papers in his custody or control
** if respondent refuses or neglects to deliver, he may be punished for contempt
• May bring action for damages sustained by reason of the usurpation
 Court may render judgment for costs either against :
• petitioner ; or,
• respondent; or,
• the persons claiming to be a corporation or may apportion the costs

• Prescription of Action (Sec 11)

• Action to ouster must be commenced within one (1) year after the cause of such ouster, or right of
the petitioner to hold office arose
• Action for damages must be commenced within one year after the entry of judgment establishing the
petitioner’s right to the office

• Quo Warranto under the Omnibus Election Code

• May be instituted by any voter contesting the election of any member of Congress, regional, provincial or
city officer within 10 days after proclamation of the results of the election
• Grounds : a) ineligibility to the position or b) disloyalty to the Republic of the Phils
• If brought against municipal official, must be brought in the appropriate Regional Trial Court
• If against any barangay official, must be brought before Metropolitan Trial Court, Municipal Trial Court or
Municipal Circuit Trial Court

• Quo Warranto in Elective Office vs Appointive Office

Elective Office Appointive Office

• Governed by election laws
• Issue: eligibility of person elected
• To be filed within 10 days after the procla-mation
of the election results
• Brought before the COMELEC, the RTC or the
MTC, as the case may be
• Petitioner may be any voter even if he is not
entitled to the office
• When tribunal declares candidate-elect as
ineligible, he will be unseated but second placer
will not be declared as duly elected
• Governed by Rules of Court
• Issue : legality of the appointment
• To be filed within 1 year from the time the cause of
ouster
• Brought before SC, CA or RTC
• Petitioner is the person entitled to the office
• Court has to declare who the person entitled to the
office is if he is the petitioner

• Petition may be brought only against a de facto corporation not a de jure corporation because the latter was
organized in full compliance with the laws hence, there is no reason to attach its existence and its exercise of
corporate powers

• Topacio v. Ong, GR No. 179895, December 18, 2008

FACTS:
• Ferdinand Topacio (petitioner) via the present petition for certiorari and prohibition seeks, in the main, to
prevent Justice Gregory Ong (Ong) from further exercising the powers, duties and responsibilities of a
Sandiganbayan Associate Justice.

• It will be recalled that in Kilosbayan Foundation v. Ermita, the Court enjoined Ong "from accepting an
appointment to the position of Associate Justice of the Supreme Court or assuming the position and
discharging the functions of that office, until he shall have successfully completed all necessary steps, through
the appropriate adversarial proceedings in court, to show that he is a natural-born Filipino citizen and correct
the records of his birth and citizenship. Ong subsequently complied with the order by filing a petition for
correction of his birth certificate.
• Meanwhile, petitioner, by verified Letter-Request/Complaint implored respondent Office of the Solicitor
General (OSG) to initiate post-haste a quo warranto proceeding against Ong in the latter’s capacity as an
incumbent Associate Justice of the Sandiganbayan.

• The OSG informed petitioner that it "cannot favorably act on [his] request for the filing of a quo warranto
petition until the [RTC] case shall have been terminated with finality." Petitioner assails this position of the
OSG as being tainted with grave abuse of discretion, aside from Ong’s continuous discharge of judicial
functions. Hence, this petition.

• Subsequently, Ong informs that the RTC, by Decision of October 24, 2007, already granted his petition and
recognized him as a natural-born citizen. The Decision having, to him, become final, he caused the
corresponding annotation thereof on his Certificate of Birth. Invoking the curative provisions of the 1987
Constitution, Ong explains that his status as a natural-born citizen inheres from birth and the legal effect of
such recognition retroacts to the time of his birth.
ISSUE:
Whether or not the OSG committed grave abuse of discretion in deferring the filing of a petition for quo warranto,
HELD:
The Court rules in the negative.
Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of
jurisdiction, or, in other words, where the power is exercised in an arbitrary or despotic manner by reason of
passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty or to a
virtual refusal to perform the duty enjoined or to act at all in contemplation of law.
The Court appreciates no abuse of discretion, much less, a grave one, on the part of the OSG in deferring action on
the filing of a quo warranto case until after the RTC case has been terminated with finality. A decision is not
deemed tainted with grave abuse of discretion simply because the affected party disagrees with it.
The Solicitor General is the counsel of the government, its agencies and instrumentalities, and its officials or
agents. In the discharge of its task, the Solicitor General must see to it that the best interest of the government is
upheld within the limits set by law

--------------------------------------------------
While denominated as a petition for certiorari and prohibition, the petition partakes of the nature of a quo
warranto proceeding with respect to Ong, for it effectively seeks to declare null and void his appointment as an
Associate Justice of the Sandiganbayan for being unconstitutional. While the petition professes to be one for
certiorari and prohibition, petitioner even adverts to a "quo warranto" aspect of the petition.
Being a collateral attack on a public officer’s title, the present petition for certiorari and prohibition must be
dismissed.
The title to a public office may not be contested except directly, by quo warranto proceedings; and it cannot be
assailed collaterally, even through mandamus or a motion to annul or set aside order. In Nacionalista Party v. De
Vera, the Court ruled that prohibition does not lie to inquire into the validity of the appointment of a public officer.
x x x [T]he writ of prohibition, even when directed against persons acting as judges or other judicial officers,
cannot be treated as a substitute for quo warranto or be rightfully called upon to perform any of the functions
of the writ. If there is a court, judge or officer de facto, the title to the office and the right to act cannot be
questioned by prohibition. If an intruder takes possession of a judicial office, the person dispossessed cannot
obtain relief through a writ of prohibition commanding the alleged intruder to cease from performing judicial
acts, since in its very nature prohibition is an improper remedy by which to determine the title to an office.
Even if the Court treats the case as one for quo warranto, the petition is, just the same, dismissible.
A quo warranto proceeding is the proper legal remedy to determine the right or title to the contested public
office and to oust the holder from its enjoyment. It is brought against the person who is alleged to have usurped,
intruded into, or unlawfully held or exercised the public office, and may be commenced by the Solicitor General or
a public prosecutor, as the case may be, or by any person claiming to be entitled to the public office or position
usurped or unlawfully held or exercised by another.
Nothing is more settled than the principle, which goes back to the 1905 case of Acosta v. Flor, reiterated in the
recent 2008 case of Feliciano v. Villasin, that for a quo warranto petition to be successful, the private person
suing must show a clear right to the contested office. In fact, not even a mere preferential right to be appointed
thereto can lend a modicum of legal ground to proceed with the action.

• Mendoza v. Allas, G.R. No. 131977, Feb. 4, 1999

Facts:
In September 1994, petitioner received a letter from Deputy Customs Commissioner Cesar Z. Dario, informing him
of his termination from the Bureau of Customs, in view of respondent Allas' appointment as Director III by
President Fidel V. Ramos. The pertinent portion of the letter reads:bb
"Effective March 4, 1994, Mr. Ray Allas was appointed Director III by President Fidel V. Ramos and as a
consequence, [petitioner's] services were terminated without prejudice to [his] claim for all government benefits
due [him]."
Attached to the letter was the appointment of respondent Ray Allas as "Director III, CIIS, Bureau of Customs, vice
Pedro Mendoza."
Petitioner wrote the Customs Commissioner demanding his reinstatement with full back wages and without loss of
seniority rights. No reply was made.
On December 2, 1994, petitioner filed a petition for quo warranto against respondent Allas before the Regional
Trial Court, Paranaque, Branch 258.[i][3] The case was tried and on September 11, 1995, a decision was rendered
granting the petition. The court found that petitioner was illegally terminated from office without due process of
law and in violation of his security of tenure, and that as he was deemed not to have vacated his office, the
appointment of respondent Allas to the same office was void ab initio. The court ordered the ouster of
respondent Allas from the position of Director III, and at the same time directed the reinstatement of petitioner to
the same position with payment of full back salaries and other benefits appurtenant thereto.
On May 9, 1996, petitioner filed with the court a quo a Motion for Execution of its decision. On July 24, 1996, the
court denied the motion on the ground that the contested position vacated by respondent Allas was now being
occupied by respondent Godofredo Olores who was not a party to the quo warranto petition.[ii][5]
Petitioner filed a special civil action for certiorari and mandamus with the Court of Appeals questioning the order
of the trial court.[iii][6] On November 27, 1997, the Court of Appeals dismissed the petition.[iv][7] Hence, this
recourse.
Petitioner claims that:
"The Court of Appeals grossly erred in holding that a writ of execution may no longer be issued, considering that
respondent Olores who was not a party to the case now occupies the subject position."
Issue:
Whether or not Mendoza validly ousted from his office amounting to illegally dismissed?
Held:
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 of the
land, they cannot legally exercise except by virtue of a grant or authority from the state. In other words, a petition
for quo warranto is a proceeding to determine the right of a person to the use or exercise of a franchise or office
and to oust the holder from its enjoyment, if his claim is not well-founded, or if he has forfeited his right to enjoy
the privilege. The action may be commenced for the Government by the Solicitor General or the fisca against
individuals who usurp a public office, against a public officer whose acts constitute a ground for the forfeiture of
his office, and against an association which acts as a corporation without being legally incorporated.The action
may also be instituted by an individual in his own name who claims to be entitled to the public office or position
usurped or unlawfully held or exercised by another.
Where the action is filed by a private person, he must prove that he is entitled to the controverted position,
otherwise respondent has a right to the undisturbed possession of the office.[x][14] If the court finds for the
respondent, the judgment should simply state that the respondent is entitled to the office.[xi][15] If, however, the
court finds for the petitioner and declares the respondent guilty of usurping, intruding into, or unlawfully holding
or exercising the office, judgment may be rendered as follows:
"Sec. 10. Judgment where usurpation found.-- When the defendant is found guilty of usurping, intruding into, or
unlawfully holding or exercising an office, position, right, privilege, or franchise, judgment shall be rendered that
such defendant be ousted and altogether excluded therefrom, and that the plaintiff or relator, as the case may be,
recover his costs. Such further judgment may be rendered determining the respective rights in and to the office,
position, right, privilege, or franchise of all the parties to the action as justice requires."
If it is found that the respondent or defendant is usurping or intruding into the office, or unlawfully holding the
same, the court may order:
(1) The ouster and exclusion of the defendant from office;
(2) The recovery of costs by plaintiff or relator;
(3) The determination of the respective rights in and to the office, position, right, privilege or franchise of all
the parties to the action as justice requires.
The character of the judgment to be rendered in quo warranto rests to some extent in the discretion of the court
and on the relief sought
Ordinarily, a judgment against a public officer in regard to a public right binds his successor in office. This rule,
however, is not applicable in quo warranto cases.[xiii][21] A judgment in quo warranto does not bind the
respondent's successor in office, even though such successor may trace his title to the same source. This follows
from the nature of the writ of quo warranto itself. It is never directed to an officer as such, but always against the
person-- to determine whether he is constitutionally and legally authorized to perform any act in, or exercise any
function of the office to which he lays claim.[xiv][22] In the case at bar, the petition for quo warranto was filed by
petitioner solely against respondent Allas. What was threshed out before the trial court was the qualification and
right of petitioner to the contested position as against respondent Ray Allas, not against Godofredo Olores. The
Court of Appeals did not err in denying execution of the trial court's decision.

• Damasen v. Tumamao, G.R. No. 173165, Feb. 17, 2010

Facts:
On December 2, 2004, Nelia Tumamao, the Vice-Mayor of San Isidro, Isabela, died.[1][3] As a result, a permanent
vacancy was created in the Office of the Vice-Mayor.
Pursuant to Sec. 44 of Republic Act (RA) No. 7160,[2][4] Ligaya C. Alonzo (Alonzo) was elevated to the position of
Vice-Mayor, she being the highest-ranking member of the Sangguniang Bayan, that is, the one who garnered the
highest number of votes for that office.[3][5] As a result, a permanent vacancy was created in the Sangguniang
Bayan.
To fill up the ensuing vacancy in the Sangguniang Bayan, San Isidro Mayor Abraham T. Lim (Mayor Lim)
recommended to Governor Maria Gracia Cielo M. Padaca (Governor Padaca), the appointment of respondent
Oscar G. Tumamao (Tumamao), a member of the Laban ng Demokratikong Pilipino (LDP), the same political party
to which Alonzo belonged On April 15, 2005, Tumamao took his oath as a member of the Sangguninang Bayan
before Mayor Lim.[4][7]
On April 26, 2005 and May 3, 2006, Tumamao attended the regular sessions of the Sangguniang Bayan.[5][8]
On May 5, 2005, petitioner Atty. Lucky Damasen (Damasen) became a member of the LDP after taking his oath of
affiliation before the LDP Provincial Chairman, Ms. Ana Benita Balauag (Provincial Chairman Balauag).[6][9] On
even date, Damasen was able to secure from LDP Provincial Chairman Balauag a letter of nomination addressed to
Governor Padaca for his appointment to the Sangguniang Bayan.[7][10] On May 12, 2005, Damasen was appointed
as Sangguniang Bayan member by Governor Padaca.[8][11]
On May 16, 2005, Damasen took his oath as member of the Sangguniang Bayan before Governor Padaca.[9][12]
On May 17, 2005, Damasen attended the Sangguniang Bayan session, but with Tumamao present thereat, the
former was not duly recognized.[10][13] Hence, in the afternoon of the same day, Damasen filed with the Regional
Trial Court of Santiago City (RTC) a Petition for Quo Warranto with Prayer for the Issuance of a Writ of Preliminary
Injunction,[11][14] seeking to be declared the rightful member of the Sangguniang Bayan, claiming that he had
been nominated by LDP Provincial Chairman Balauag and had been appointed thereto by Governor
Padaca.[12][15] The case was docketed as Special Civil Action Case No. 0234.
The RTC issued a Temporary Restraining Order effective for 72 hours. Thereafter, the RTC issued an order
extending the Temporary Restraining order to 17 days.
Later, Tumamao presented Provincial Chairman Balauag who affirmed the contents of her letter revoking the
nomination of Damasen.[13][18]
On August 4, 2005, the RTC rendered a Decision[14][19] ruling in favor of Damasen, The RTC based its decision on
Sec. 45 (b) of RA 7160,[15][21] which provides for the rule on succession in cases of permanent vacancies in the
Sangguninan. The RTC ruled that the evidence submitted by Damasen proved that the requirements to be able to
qualify for the position was fully complied with. Tumamao appealed the RTC Decision to the CA.
On June 14, 2006, the CA rendered a Decision reversing the appealed Decision, While Atty. Damasen might have
been appointed by Governor Padaca, this appointment must fly in the face of the categorical and unbending sine
qua non requirements of the statute.
Indeed, Atty. Damasen was nominated simply by Ms. Balauag, the Provincial Chairman of the LDP, who obviously
is not the highest official of this political party. It cannot escape notice that the quoted provision particularizes:
“highest official of the political party concerned” without any additional qualifying or restrictive words.
Issue :
Whether or not Atty Damasen , has the right to have the office as Sanguniang Bayan?
Held: Petition dismissed. Affirmed the reversal of the CA ruling.
Section 45. Permanent Vacancies in the Sanggunian. –
Xxx Xxxx
(b) Except for the Sangguniang Barangay, only the nominee of the political party under which the sanggunian
member concerned had been elected and whose elevation to the position next higher in rank created the last
vacancy in the sanggunian shall be appointed in the manner hereinabove provided. The appointee shall come
from the same political party as that of the sanggunian member who caused the vacancy and shall serve the
unexpired term of the vacant office. In the appointment herein mentioned, a nomination and a certificate of
membership of the appointee from the highest official of the political party concerned are conditions sine qua
non, and any appointment without such nomination and certification shall be null and void ab initio and shall be a
ground for administrative action against the official responsible therefore.[16][30]
As can be gleaned from the above provision, the law provides for conditions for the rule of succession to
apply: First, the appointee shall come from the same political party as that of the Sanggunian member who caused
the vacancy. Second, the appointee must have a nomination and a Certificate of Membership from the highest
official of the political party concerned.
Thus, this Court cannot countenance Damasen’s insistence in clinging to an appointment when he is in fact not a
bona fide member of the LDP. While the revocation of the nomination given to Damasen came after the fact of his
appointment, this Court cannot rule in his favor, because the very first requirement of Sec. 45 (b) is that the
appointee must come from the political party as that of the Sanggunian member who caused the vacancy. To
stress, Damasen is not a bona fide member of the LDP.
In addition, appointing Damasen would not serve the will of the electorate. He himself admitts that he was
previously a member of the Lakas-CMD, and that he ran for the position of Mayor under the said party on the May
2004 Elections. Likewise, he did not resign from the said party when he joined the LDP, and even admitted that his
joining the LDP was not because of party ideals, but because he just wanted to.[17][46] How can the will of the
electorate be best served, given the foregoing admissions of Damasen? If this Court were to grant herein petition,
it would effectively diminish the party representation of the LDP in the Sanggunian, as Damasen would still be
considered a member of the Lakas-CMD, not having resigned therefrom, a scenario that defeats the purpose of the
law, and that ultimately runs contrary the ratio of Navarro.
Lastly, the records of the case reveal that Tumamao has the nomination[18][47] of Senator Edgardo J. Angara, the
Party Chairman and, therefore, the highest official of the LDP. In addition, he is a member in good standing of the
LDP.

• Calleja v. Panday, G.R. No. 168696, Feb. 28, 2006

Facts:
On May 16, 2005, respondents filed a petition with the Regional Trial Court of San Jose, Camarines Sur for quo
warranto with Damages and Prayer for Mandatory and Prohibitory Injunction, Damages and Issuance of
Temporary Restraining Order against herein petitioners. Respondents alleged that from 1985 up to the filing of the
petition with the trial court, they had been members of the board of directors and officers of St. John Hospital,
Incorporated, but sometime in May 2005, petitioners, who are also among the incorporators and stockholders of
said corporation, forcibly and with the aid of armed men usurped the powers which supposedly belonged to
Respondents.
On May 24, 2005, RTC-Br. 58 issued an Order transferring the case to the Regional Trial Court in Naga City.
According to RTC-Br. 58, since the verified petition showed petitioners therein (herein respondents) to be
residents of Naga Citybvg, then pursuant to Section 7, Rule 66 of the 1997 Rules of Civil Procedure, the action for
quo warranto should be brought in the Regional Trial Court exercising jurisdiction over the territorial area where
the respondents or any of the respondents resides. However, the Executive Judge of RTC, Naga City refused to
receive the case folder of the subject case for quo warranto, stating that improper venue is not a ground for
transferring a quo warranto case to another administrative jurisdiction.
The RTC-Br. 58 then proceeded to issue and serve summons on herein petitioners (respondents below). Petitioner
Tabora filed his Answer dated June 8, 2005, raising therein the affirmative defenses of (1) improper venue, (2) lack
of jurisdiction, and (3) wrong remedy of quo warranto. Thereafter, the other petitioners also filed their Answer,
also raising the same affirmative defenses.
On March 13, 2001, A.M. No. 01-2-04 SC was promulgated and took effect on April 1, 2001.
From the foregoing discussion and historical background relative to the venue and jurisdiction to try and decide
cases originally enumerated in Section 5 of PD 902-A and later under Section 5.2 of RA 8799, it is evident that the
clear intent of the circular is to bestow the juridiction "to try and decide these cases to the "special courts" created
under A.M. No. 00-11-03-SC. . . .
Under Section 8, of the Interim Rules, [a] Motion to Dismiss is among the prohibited pleadings. On the otherhand,
the Supreme Court under Administrative Order 8-01 has directed the transfer from the regular courts to the
branches of the Regional Trial Courts specially designated to try and decide intra-corporate dispute.
Petitioners no longer moved for reconsideration of the foregoing Order and, instead, immediately elevated the
case to this Court via a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure.
Issue: Whether or not the RTC of Co-Equal court having concurrent jurisdiction and whether or not the following
Circular AM No 00-11-03-SC will be applied in this cases?
Held: Petition Granted.
Note, further, that respondents’ petition for quo warranto was filed as late as 2005. A.M. No. 03-03-03-SC took
effect as early as July 1, 2003 and it was clearly provided therein that such petitions shall be filed in the Office of
the Clerk of Court in the official station of the designated Special Commercial Court. Since the official station of
the designated Special Commercial Court for Camarines Sur is the Regional Trial Court in Naga City, respondents
should have filed their petition with said court. A.M. No. 00-11-03-SC having been in effect for four years and A.M.
No. 03-03-03-SC having been in effect for almost two years by the time respondents filed their petition, there is no
cogent reason why respondents were not aware of the appropriate court where their petition should be filed.
The ratiocination of RTC-Br.58 that Administrative Circular No. 08-2001 authorized said trial court to order the
transfer of respondents’ petition to the Regional Trial Court of Naga City is specious because as of the time of filing
of the petition, A.M. No. 03-03-03-SC, which clearly stated that cases formerly cognizable by the SEC should be
filed with the Office of the Clerk of Court in the official station of the designated Special Commercial Court, had
been in effect for almost two years. Thus, the filing of the petition with the Regional Trial Court of San Jose,
Camarines Sur, which had no jurisdiction over those kinds of actions, was clearly erroneous.
[2][4] Otherwise known as the Local Government Code of 1991. Section 44 provides:
Section 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor, and Vice-Mayor. - If a
permanent vacancy occurs in the office of the governor or mayor, the vice-governor or vice-mayor concerned shall
become the governor or mayor. If a permanent vacancy occurs in the offices of the governor, vice-governor,
mayor, or vice-mayor, the highest ranking sanggunian member or, in case of his permanent inability, the second
highest ranking sanggunian member, shall become the governor, vice-governor, mayor or vice-mayor, as the case
may be. Subsequent vacancies in the said office shall be filled automatically by the other sanggunian members
according to their ranking as defined herein.
(a) If a permanent vacancy occurs in the office of the punong barangay, the highest ranking sanggunian barangay
member or, in case of his permanent inability, the second highest ranking sanggunian member, shall become the
punong barangay.
(b) A tie between or among the highest ranking sanggunian members shall be resolved by the drawing of lots.
(c) The successors as defined herein shall serve only the unexpired terms of their predecessors.
For purposes of this Chapter, a permanent vacancy arises when an elective local official fills a higher vacant office,
refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is otherwise
permanently incapacitated to discharge the functions of his office.
For purposes of succession as provided in the Chapter, ranking in the sanggunian shall be determined on the basis
of the proportion of votes obtained by each winning candidate to the total number of registered voters in each
district in the immediately preceding local election.

• Madrigal v. Lecaroz, G.R. No. L-46218, Oct. 23, 1990

Facts:
Joventino Madrigal's position as a permanent construction capataz in the office of the Provincial Engineer was
abolished. The abolition was allegedly due to the poor financial condition of the province and it appearing that his
position was not essential. The Civil Service Commission declared the removal of Madrigal from the service illegal.

Madrigal filed a petition before the Court of First Instance (now Regional Trial Court) of Marinduque against public
respondents for mandamus and damages. The trial court issued an order dismissing the petition on the ground
that Madrigal's cause of action was barred by laches because herein petitioner was separated from the service
on November 25, 1971, and it was only on December 15, 1975, or FOUR (4) YEARS and TWENTY (20) DAYS after,
that he filed this case for "Mandamus and Damages" with the principal aim of causing his reinstatement to the
public position from where his service was terminated.
Issue:
Whether or not the petitioner’s cause of action is barred by laches.

Ruling:
That the instant case is one for MANDAMUS, and not QUO WARRANTO, is not of any significance, for the same
principle applies as held in these cases:

An action for reinstatement, by a public official, whether it be quo warranto or mandamus, should be filed in court
within one year from removal or separation, otherwise the action will be barred.

The unbending jurisprudence in this jurisdiction is to the effect that a petition for quo
warranto and mandamus affecting titles to public office must be filed within one (1) year from the date the
petitioner is ousted from his position. The reason behind this being there must be stability in the service so that
public business may (sic) be unduly retarded; delays in the statement of the right to positions in the service must
be discouraged.

ACCORDINGLY, the appeal is hereby DENIED. SO ORDERED.

• Pardo de Tavera v. Phil. Tuberculosis Society, GR. No. L-48928, February 25, 1982

Facts:
Plaintiff is a doctor of Medicine by profession and a recognized specialist in the treatment of tuberculosis
and a member of the Board of Directors of the defendant Society, in representation of the Philippine Charity
Sweepstakes Office as Executive Secretary. The Board of Directors removed her from her position averring
that said position is held at the pleasure of the Board of Directors and when the pleasure is exercised, it only
means that the incumbent has to vacate the same because her term has expired.

Plaintiff-appellant Mita Pardo de Tavera filed with the Court of First Instance of Rizal a complaint against
the Philippine Tuberculosis Society, Inc.

On September 3, 1976, the court a quo rendered a decision holding that the present suit being one
for quo warranto it should be filed within one year from plaintiff's outer from office; that nevertheless,
plaintiff was not illegally rendered or used from her position as Executive Secretary in The Society since
plaintiff as holding an appointment all the pleasure of the appointing power and hence her appointment in
essence was temporary in nature. The case was remanded to this Court considering that the appeal raises no
factual issues and involves only issues of law.

Issue:
Whether or not the instant case is an action for damages and not of quo warranto.

Ruling:

While it is true that the complaint questions petitioner's removal from the position of Executive Secretary and
seeks her reinstatement thereto, the nature of the suit is not necessarily one of quo warranto because the
respondents, except for one, namely, Alberto Romulo, are not actually holding the office in question. Corollarily,
the one-year period fixed in Section 16, Rule 66 of the Revised Rules of Court within which a petition for quo
warranto should be filed, counted from the date of ouster, does not apply to the case at bar.

The action is one for "injury to the rights of the plaintiff, and must be brought within 4 years murder Article 1146
of the New Civil Code. Nonetheless, the action will not prosper because the By-laws of the Society stated that
petitioner held an appointment at the pleasure of the appointing power that is in essence temporary in nature. It is
co-extensive with the desire of the Board of Directors.

WHEREFORE, premises considered, the decision of the lower court holding that petitioner was not illegally
removed or ousted from her position as Executive Secretary of the Philippine Tuberculosis Society, Inc., is hereby
AFFIRMED.
SO ORDERED.

• PPSTA v. Apostol, G.R. No. L-36966, Feb. 28, 1974

Facts:

On July 20, 1972, private respondent Eufemia M. San Luis as a member of the Philippine Public School Teachers
Association (PPSTA for short), a fraternal non-stock association of public school teachers throughout the country,
filed with respondent court of first instance at Quezon City a complaint with preliminary injunction for the
annulment of the 1972 annual elections of the PPSTA board of directors held on June 26-28, 1972 at Teachers
Camp in Baguio City for having been held outside its principal office at Quezon City against herein petitioners as
defendants.

Respondent court rendered without further hearing and trial its decision of April 26, 1973 holding that " (T)he
meeting held in Baguio City being contrary to the by-laws of the corporation and the Corporation Law, whatever
acts therein made, including the elections of the Board of Directors, are null and void," and declared as null and
void all resolutions and corporate acts at the 29th (1972) annual PPSTA Representative Assembly, including the
elections of the 1972 PPSTA board of directors and the formation of the PPSTA commission on elections which
supervised the elections and proclaimed the winners.

Issue:

Whether or not the action has complied with the requirements of Rule 66 governing such special civil
actions of quo warranto.

Ruling:

The Court sets aside the judgment of respondent court.

Respondent's action below was in essence one of quo warranto which is governed by Rule 66 of the Rules
of Court Section 6 thereof provides that in order that an individual may directly bring the action, he or she
must claim to entitled to the public office or position allegedly unlawfully held or usurped. 6 Otherwise, the
action must be brought by the Solicitor General or fiscal with leave of the court upon the complaint of the
relator under section 4 of the Rule. 7

Chief Justice Moran thus explained the application of the two cited provisions:

The general rule is that actions for quo warranto should be brought by the Solicitor General or a fiscal in
cases of usurpation of an office established by law or by the Constitution under color of an executive
appointment, or the abuse of a public franchise under color of a legislative grant, for these are public
wrongs and not private injuries. Since, under our system all power emanates from the people, who constitute
the sovereignty, the right to inquire into the authority by which a person assumes to exercise the functions of
a public office or franchise is regarded as inherent in the people on the right their sovereignty. Hence, the
action should be brought by the Solicitor General or the fiscal who represents the sovereign power.
However, in a case involving merely the administration corporate functions or duties which touch only private
individual rights, such as the election of officers, admission of a corporate officer, or member, and the like the
action for quo warranto may be brought with leave of court, by the Solicitor General or fiscal upon the relation of
any person or persons having an interest injuriously affected. Such action may be allowed in the discretion of the
court, according to section 4 and the court, before granting leave, may direct that, notice be given to the
defendant so that he may be heard in opposition thereto, under section 5.

Respondent manifestly lays no claim herself to the office of PPSTA director nor has the present action been filed
with leave of court by the Solicitor General or fiscal upon her relation as a party having an interest injuriously
affected, as required by the cited Rule.

Her action must therefore fail on this score and the judgment erroneously rendered by respondent court shall be
set aside.

ACCORDINGLY, the judgment under review of respondent court is hereby set aside and the complaint ordered
dismissed. No pronouncement as to costs.

• Liban v. Gordon, G.R. No. 175352

Facts:
Petitioners are officers of the Board of Directors of the QC Red Cross Chapter while Respondent is the Chairman of
the Philippine National Red Cross (PNRC) Board of Governors.
Petitioners allege that by accepting the chairmanship of the PNRC Board of Governors, respondent has ceased to
be a member of the Senate - Sec. 13, Art. VI, 1987 Consti: No Senator or Member of the HoR may hold any other
office/employment in the Gov’t, or any subdivision, agency, or instrumentality thereof, including gov’t-owned or
controlled corporations or their subsidiaries, during his term w/o forfeiting his seat. Neither shall he be appointed
to any office which may have been created or the emoluments thereof increased during the term for which he was
elected).
Petitioners cite Camporedondo v. NLRC which held that PNRC is a gov’t-owned or controlled corporation.
Flores v. Drilon held that incumbent national legislators lose their elective posts upon their appointment to
another government office.

Respondent:
• Petitioners have no standing to file petition w/c appears to be an action for quo warranto – they do not
claim to be entitled to the Senate office of respondent.
• Sec. 11, Rule 66, Rules of Civil Procedure: action should be commenced w/in 1 year after the cause of
public officer’s forfeiture of office – respondent has been working as a Red Cross volunteer for 40 yrs
• Petitioners cannot raise a constitutional question as taxpayers – no claim that they suffered some actual
damage/threatened injury or illegal disbursement of public funds
• If petition is for declaratory relief, SC has no jurisdiction original jurisdiction in RTC
• PNRC is not a gov’t owned/controlled corporation
• Sec. 13, Art. VI of Consti does not apply because volunteer service to PNRC is not an office/employment

Petitioners: present petition is a taxpayer’s suit questioning unlawful disbursement of funds considering that
respondent has been drawing his salaries and other compensation as a Senator even if he is no longer entitled
to his office. Court has jurisdiction because it involves a legal/constitutional issue of transcendental
importance.

Issues, Holding & Ratio:

WON petitioners have standing.

 SC: NO. The petition is an action for quo warranto (Sec. 1, Rule 66, Rules of Court – an action for the
usurpation of a public office against a public officer who does or suffers an act which constitutes a ground for
forfeiture of his office). See facts for petitioner’s allegations. Petitioners do not claim to be entitled to the
Senate office of respondent.

• Santiago v. Guingona, G.R. No. 134577, Nov 18, 1998

FACTS:
During the first regular session of the eleventh Congress, Senator Fernan was declared the duly elected President
of the Senate by a vote of 20 to 2. Senator Tatad manifested that, with the agreement of Senator Santiago,
allegedly the only other member of the minority, he was assuming the position of minority leader. He explained
that those who had voted for Senator Fernan comprised the majority, while only those who had voted for him, the
losing nominee, belonged to the minority. Senator Flavier manifested that the senators belonging to the Lakas-
NUCD-UMDP Party numbering 7 and, thus, also a minority had chosen Senator Guingona as the minority leader.
Thereafter, the majority leader informed the body that he was in receipt of a letter signed by the 7 Lakas-NUCD-
UMDP senators, stating that they had elected Senator Guingona as the minority leader. By virtue thereof, the
Senate President formally recognized Senator Guingona as the minority leader of the Senate. Senators Santiago
and Tatad filed a petition for quo warranto, alleging that Senator Guingona had been usurping, unlawfully holding
and exercising the position of Senate minority leader, a position that, according to them, rightfully belonged to
Senator Tatad.

ISSUE:
Respondent Guingona usurping, unlawfully holding and exercising the position of Senate minority leader?

HELD:
As discussed earlier, the specific norms or standards that may be used in determining who may lawfully occupy the
disputed position has not been laid down by the Constitution, the statutes, or the Senate itself in which the power
has been vested. Absent any clear-cut guideline, in no way can it be said that illegality or irregularity tainted
Respondent Guingona's assumption and exercise of the powers of the office of Senate minority leader.
Furthermore, no grave abuse of discretion has been shown to characterize any of his specific acts as minority
leader.

• Yap v. Civil Service Commission, G.R. No. 104226, August 12, 1993

FACTS:
Conchita Romualdez-Yap started working with the PNB on 20 September 1972 as special assistant with the rank of
Second Assistant Manager assigned to the office of the PNB President. After several promotions, she was
appointed in 1983 as Senior Vice President assigned to the Fund Transfer Department.

Petitioner filed several applications for leave of absence which were duly approved. While she was on leave,
Executive Order No. 80 (Revised Charter of the PNB) was approved authorizing the reorganization and
rehabilitation of PNB. Pursuant to the reorganization plan, the Fund Transfer Department was abolished and its
functions transferred to the International Department. Conchita was notified of her separation from service thru a
letter. Conchita seeks immediate reinstatement to her former position as senior vice president and head of the
Fund Transfer Department, or reappointment to a position of comparable or equivalent rank without loss of
seniority rights and pay, etc., under the bank's new staffing pattern.

She appealed to the CSC which upheld her separation. Hence the petition.

ISSUE:
WON the 1 year prescriptive period for quo warranto proceedings should apply in this case.
HELD:
YES. The prayer in the petition at bar seeks petitioner's immediate reinstatement to her former position as senior
vice president and head of the Fund Transfer Department, or reappointment to a position of comparable or
equivalent rank without loss of seniority rights and pay, etc., under the bank's new staffing pattern.

An action for quo warranto should be brought within one (1) year after ouster from office. The failure to institute
the same within the reglementary period constitutes more than a sufficient basis for its dismissal , since it is not
proper that the title to a public office be subjected to continued with uncertainty. An exception to this prescriptive
period lies only if the failure to file the action can be attributed to the acts of a responsible government officer and
not of the dismissed employee. Based on her allegations, the action is one for quo warranto which prescribes after
1 year from the ouster. She claims that the action is one for separation from service without just cause with a
prescriptive period of 4 years under Article 1146 of the Civil Code and that there is no claim of usurpation. This
cannot be upheld because her separation from service was due to the abolition of her office in implementation of
a valid reorganization. This is not the unjustifiable cause whichresults in injury to the rights of a person
contemplated by Article 1146.

Vigilantibus, non dormientibus, jura subveniunt (Laws come to the assistance of the vigilant, not of the sleeping)

Restoring petitioner to her previous position with backwages would be unjust enrichment to her, considering that
she had abandoned or showed lack of interest in reclaiming the same position when the bank was not yet fully
rehabilitated and she only insisted on reinstatement in August 1989 or two (2) years after her alleged unjustified
separation.

PETITION DISMISSED.

RULE 67 – Expropriation

• The power of eminent domain is described as the right to take or reassert dominion over property within the
state for public use or to meet a public exigency

• Constitutional limitations of expropriation:

• Public use
• Payment of just compensation

• Scope of eminent domain as exercised by Congress is plenary and broad, however, may also be delegated to
local political subdivisions and public utilities.

• Requisites of exercise of eminent domain by local government units (Sec 19, RA 7160)
• An ordinance enacted by the local legislative council (mere resolution of lawmaking body is not
acceptable)
• Exercised for public use, purpose or welfare for the benefit of the poor and the landless;
• Payment of just compensation
• Valid and definite offer previously made to owner but said offer was not accepted
• Deposit of at least 15% of the fair market value of the property based on the current tax declaration of
the property expropriated

• Two stages in expropriation process:

• Determination of authority of plaintiff to expropriate : result in:

• the issuance of an order of expropriation if the court finds for the plaintiff or
• The dismissal of complaint
• Determination of just compensation through the court-appointed commissioners
• Just compensation is defined as the full and fair equivalent of the property sought to be expropriated. The
measure is not the taker’s gain but the owner’s loss.

• Nonpayment of just compensation does not entitle the landowner to recover possession of the expropriated
lots. However, in cases where the government failed to pay just compensation within 5 years from the finality
of judgment, the owners concerned shall have the right to recover possession of their property.

• Procedure (Rules of Court)

• Verified Complaint (Sec 1)
Contents
• Right and purpose of expropriation
• Description of the real or personal property sought to be expropriated
• Join as defendants all persons owning or claiming to own, or occupying, any part thereof or interest
therein
• The fact, if any, that :
d.1. title to property expropriated appears to be in the Republic of the Phils although occupied by
private individuals
d.2. title is obscure or doubtful so that plaintiff cannot specify with accuracy or certainty who the
real owners are

• Notice, Deposit, Enter (Sec 2)

If Real Property
Plaintiff shall have right to take or enter upon possession of the real property:
• Upon filing of complaint or any time thereafter
• After due notice to the defendant
• If he deposits with authorized government depositary the amount of the assessed value of the
property
***Deposit shall be in the form of:
c.1. money; or
c.2. if the court authorizes, a certificate of deposit of a government bank of the
Phils payable on demand to the authorized government depositary

If Personal Property
• Value shall be provisionally ascertained and amount to be deposited to be fixed by the court
• Court shall order sheriff or other proper officer to place plaintiff in possession of the personal
property
• Sheriff submits a report thereof with service of copies to parties.

• Manifestation/Answer - No Objections or With Objections (Sec 3)

Without Objections
• Defendant files:
• Notice of Appearance
• Manifestation that he has no objection or defense to the action or taking of property
• Specifically designate or identify the property to which he claims to be interested
• Effect : he shall be entitled to all notice of all proceedings

With Objections
• Defendant shall service his answer within the time stated in the summons; the answer shall:
• Specifically designate or identify the property to which he claims interest;
• Nature and extent of interest claimed;
• Adduce all objections and defenses to the taking of his property
 • No counterclaim, cross-claim or third party complaint shall be alleged or allowed in the answer or
any subsequent pleading

Waiver
• Applied to issues not so alleged
• However :
• On Determination of Propriety of Expropriation
Court may permit (and therefore leave of court is required) amendments to the answer to be
made not later than 10 days from the filing
• On Determination on Just Compensation
Defendant may (whether or not he has appeared or answered):
b.1. present evidence as to the amount of compensation to be paid and
b.2. may share in the distribution of the award

• Order of Expropriation (Sec 4)

• Order contains declaration that plaintiff has lawful right to expropriate 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 came first.
• After rendition of order, plaintiff shall not be permitted to dismiss or discontinue the proceeding
except on such terms as the court deems just and equitable

• Issued when:
• The objections to and defenses against the right of the plaintiff to expropriate are overruled; or,
• When no party appears to defend

• Appeal
• Final order sustaining the right to expropriate may be appealed by any aggrieved party
• Shall not prevent the court from determining the just compensation to be paid

• Ascertainment of Just Compensation/Commissioner’s Report (Sec 5,6,7,8)

Appointment of Commissioners
• Court shall appoint not more than 3 competent and disinterested persons as commissioners to
report on just compensation for property to be taken
• Appointment shall contain :
a) time and place of first session of hearing
b) time within which report shall be submitted to the court
• Objections to the appointment shall be filed with the court within 10 days from service and resolved
within 30 days after receipt by commissioners of the objections

Proceedings in the Commission

• Commissioners shall take and subscribe to an oath to be filed in court with other proceedings
• Duties of Commissioners:
• Receive evidence introduced by either party
• Administer oaths on hearings before them
• Attend, view and examine the property to be expropriated and its surroundings, unless parties
consent to the contrary and after due notice to parties
• Measure the property to be taken
• Assess the consequential benefits and deduct from such the consequential damages, however, in
no case shall :

a) the former exceed the latter ; or,

 • the owner deprived of the actual value of the property

Report of the Commission and Judgment Thereupon

Partial report – the court may :

• Order the commissioner to report when any particular portion of the real estate shall have been
passed upon by them
• Render judgment upon such partial report
• Direct commissioners to proceed with the subsequent portions of the property

Full Report
• Shall not be effectual until courts have accepted report in accordance with recommendations
• Shall be filed within 60 days from date commissioners were notified of appointment, which time may
be extend upon discretion of the court
• Clerk shall serve copies to all interested parties with notice that they are allowed 10 days which to file
objections to the findings of the report

• Judgment/Order on Just Compensation (Sec 8,12,13,14)

When judgment issued
• Upon expiration of the 10 days for which to file objections to the report; or,
• After all the interested parties have filed their objections to the report or their agreement therewith;

Judgment – court may:

• Accept the report and render judgment in accordance with report; or,
• Recommit the same to the commissioners for further report of facts; or
• Set aside report and appoint new commissioners; or,
• Accept the report in part and reject it in part
• Make such order or render such judgment to secure the property to the plaintiff and the just
compensation to the defendant

Costs
• For Plaintiff
a.1. fees of the commissioners
a.2. all costs except those of rival claimants
• For Owner of Property
b.1. costs of appeal when judgment is affirmed

Recording Judgment
• Judgment shall contain :
• Adequate description of the property or interest expropriated;
• Nature of the public use or purpose
• Copy of judgment shall be recorded in the registry of deeds where property is situated
• Effect : vest in the plaintiff the title to the real estate expropriated

Power of Guardian
• May, with the approval of the court, do and perform on behalf of his ward any act, matter or thing re:
the appropriation

• Payment of just compensation/taking of property (Sec 9 and 10)

• If ownership uncertain or there are conflicting claims

 • Court may order sum to be paid to the court for the benefit of the person adjudged to be entitled
thereto
• Judgment shall require payment of the sum to either defendant or the court before plaintiff can
enter property or retain it for public use if entry has already been made
• Amount for just compensation includes legal interest thereon from the time of taking of the
property
• Upon payment, plaintiff shall have right to a) enter upon property and b) appropriate it for purpose
defined in the judgment or c) retain it should he have possession of such already
• Amount shall be ordered to be deposited in court if :
• The defendant and his counsel absent themselves from the court; or,
• Decline to receive the amount tendered
**The deposit in court shall have the same effect as actual payment.

• Appeal (Sec 11)

• Right of the plaintiff to enter upon property and appropriate the same shall not be delayed by an
appeal from the judgment
• If appellate court determines plaintiff had no right to expropriate, RTC shall be ordered to enforce :
• The restoration to the defendant of the possession of the property
• Determine the damages which the defendant sustained

• RA 8974 – “An Act to Facilitate the Acquisition of Right of Way, Site, or Location for National Government
Infrastructure Projects and for Other Purposes”

• Supercedes the system of deposit under Rule 67 with the scheme of “immediate payment” in cases
involving national government infrastructure projects

• NPC v. Co, G.R. No. 166973, February 10, 2009

FACTS:
The petitioner herein, NPC, is a government corporation created under R.A. No. 6395 to undertake the
development of hydroelectric generation of power and the production of electricity from nuclear, geothermal and
other sources, as well as the transmission of electric power on a nationwide basis. Its charter grants to petitioner,
among others, the power to exercise the right to eminent domain.

Sometime in June 27, 2001, petitioner filed a complaint with the RTC of San Fernando, Pampanga, for the
acquisition of an easement of right-of-way over three (3) lots at Barangay Cabalantian, Bacolor, Pampanga
belonging to respondent herein for purposes of construction of its transmission lines for its Lahar Affected
Transmission Line Project.

On March 25, 2002, NPC obtained a writ of possession and on April 15, 2002 they took possession of the
property.

On hearing the RTC appointed 3 commissioners to determine the fair market value of the property as of 15 April
2002. The first two commissioners appraised the property at P1,900.00 per square meter or a total of
P1,179,000.00. While the third commissioner peg the value of the property at P875.00 per square meter.

The RTC rendered its Partial Decision, wherein it declared the validity of the expropriation and ordered
petitioner to pay the sum of P1,179,000.00, with interest at 6% per annum beginning April 15, 2002, the date of
actual taking, until full payment.
Not satisfied with the ruling of lower court NPC elevate the case to CA, which the appellate court also rendered
Decision holding petitioner liable to pay the full fair market value at the time of actual taking, with interest at 6%
per annum from 15 April 2002.

Aggrieved with the order NPC appealed to SC hence this case.

ISSUES:
Whether or not petitioner herein should pay the subject property in its full market value?

Is the reckoning date for the determination of just compensation is upon position or upon the date of filing?

HELD:
YES. As earlier mentioned, Section 3A of R.A. No. 6395, as amended, substantially provides that properties which
will be traversed by transmission lines will only be considered as easements and just compensation for such right
of way easement shall not exceed 10 percent of the market value. However, this Court has repeatedly ruled that
when petitioner takes private property to construct transmission lines, it is liable to pay the full market value upon
proper determination by the courts.

The presence of transmission lines undoubtedly restricts respondent’s use of his property. Petitioner is
thus liable to pay respondent the full market value of the property.

UPON THE DATE OF FILING. Rule 67 clearly provides that the value of just compensation shall “be
determined as of the date of the taking of the property or the filing of the complaint, whichever came first.”

It is settled that just compensation is to be ascertained as of the time of the taking, which usually
coincides with the commencement of the expropriation proceedings. Where the institution of the action precedes
entry into the property, the just compensation is to be ascertained as of the time of the filing of the complaint.

EXCEPTIONS: There are exceptions—

• grave injustice to the property owner,
• the taking did not have color of legal authority,
• the taking of the property was not initially for expropriation and the owner will be given undue increment
advantages because of the expropriation.
However, none of these exceptions are present in the instant case.

Based on the foregoing, the reckoning date for the determination of the amount of just compensation is
27 June 2001, the date when petitioner filed its expropriation complaint.

• Philippine Veterans Bank v. Bases Conversion Development Authority, G.R. No. 173085, Jan 19, 2011

FACTS:
Sometime in 2003 respondent Bases Conversion Development Authority, a government corporation, filed several
expropriation actions before the various branches of the RTC of Angeles City, for acquisition of lands needed for
the construction of the Subic-Clark-Tarlac Expressway Project. Ten of these cases were raffled to Branch 58 of the
court which was being the concern of this case.

Respondents in Branch 58 cases are Armando Simbillo, Christian Marcelo, Rolando David, Ricardo Bucud,
Pablo Santos, Agrifina Enriquez, Conrado Espeleta, Catgerube Castro, Carlito Mercado, and Alfredo Suarez. All of
them are the registered owners of the expropriated lands that they acquired as beneficiaries of the comprehensive
agrarian reform program.
 Land Bank of the Philippines, another respond herein, is the mortgagee of the lands by virtue of the loans
it extended for their acquisition. The lands in these cases were located in Porac and Floridablanca, Pampanga.
Upon notice of the filing of the case, petitioner herein, move for intervention before the RTC branch 58
which was also denied by said court.

PVB then filed its motion for reconsideration but Branch 58 denied the same, prompting the bank to file a
petition for certiorari with the Court of Appeals. The CA on its decision rendered dismissed the petition for lack of
merit. Hence this case.

ISSUE:
Whether or not intervention in the expropriation cases allowed?

HELD:
YES. PVB’s point regarding the authority of the court in expropriation cases to hear and adjudicate conflicting
claims over the ownership of the lands involved in such cases is valid. But such rule obviously cannot apply to PVB
for the following reasons:

1. At the time PVB tried to intervene in the expropriation cases, its conflict with the farmer beneficiaries who held
CLOAs, EPs, or TCTs emanating from such titles were already pending before Angeles City RTC Branch 62, a co-
equal branch of the same court. Branch 58 had no authority to pre-empt Branch 62 of its power to hear and
adjudicate claims that were already pending before it.

2.Of course, subsequently, after the CA dismissed PVB’s petition on January 26, 2006, the latter filed a motion for
reconsideration, pointing out that it had in the meantime already withdrawn the actions it filed with Branch 62
after learning from the decision of the Supreme Court in Department of Agrarian Reform v. Cuenca, that
jurisdiction over cases involving the annulment of CLOAs and EPs were vested by Republic Act 6657 in the DARAB.

Branch 58 would still have no power to adjudicate the issues of ownership presented by the PVB’s
intervention.

Section 9 above empowers the court to order payment to itself of the proceeds of the expropriation
whenever questions of ownership are yet to be settled. There is no reason why this rule should not be applied even
where the settlement of such questions is to be made by another tribunal. Denied.

• Republic v. Gingoyon, G.R. No. 166429, 19 Dec 2005

FACTS:
There are two cases has been filed, one is Agan v. PIATCO which has been decided on 2004 on the basis of fairness,
the same norm that pervades both the Court’s 2004 Resolution in the first case and the latest expropriation law.
The second is this present controversy which involves the matter of just compensation due the contractor for the
terminal complex it built.

The present controversy has its roots with the promulgation of the Court’s decision in Agan v. PIATCO,
which nullified the “Concession Agreement for the Build-Operate-and-Transfer Arrangement of the Ninoy Aquino
International Airport Passenger Terminal III” entered into between the Philippine Government and the Philippine
International Air Terminals Co., Inc. as well as the amendments and supplements thereto. On the ground that the
said agreement was contrary to public policy.

After the promulgation of the rulings in Agan, the NAIA 3 facilities have remained in the possession of
PIATCO, despite the avowed intent of the Government to put the airport terminal into immediate operation. The
Government and PIATCO conducted several rounds of negotiation regarding the NAIA 3 facilities.
Sometime inDecember 21, 2004, the Government filed a Complaint for expropriation with the Pasay RTC, together
with an Application for Special Raffle seeking the immediate holding of a special raffle and sought upon the filing of
the complaint the issuance of a writ of possession authorizing it to take immediate possession and control over
the NAIA 3 facilities.

The Government also declared that it had deposited the amount of P3,002,125,000.00 in Cash with the
Land Bank of the Philippines, representing the NAIA 3 terminal’s assessed value for taxation purposes.

The case was raffled to the sala of public respondent herein, who issued the same an order directing the
issuance of a writ of possession to the Government, authorizing it to “take or enter upon the possession”

However, on 4 January 2005, the RTC issued another Order designed to supplement its 21 December 2004
Order and the Writ of Possession noting its earlier issuance of its writ of possession was pursuant to Section 2, Rule
67 of the 1997 Rules of Civil Procedure.

It was found out later that said rule 67 sec. 2 had been amended by R.A. No. 8974 known as “An Act to
Facilitate the Acquisition of Right-of-Way, Site or Location for National Government Infrastructure Projects and For
Other Purposes”.

Accordingly, on the basis of Sections 4 and 7 of R.A. No. 8974 and Section 10 of the Implementing Rules,
issued another order. First, it directed theLBP-Baclaran, to immediately release the amount of US$62,343,175.77
to PIATCO. Second, the Government was directed to submit to the RTC a Certificate of Availability of Funds signed
by authorized officials to cover the payment of just compensation. Third, the Government was directed “to
maintain, preserve and safeguard” the NAIA 3 facilities or “perform such as acts or activities in preparation for
their direct operation” of the airport terminal, pending expropriation proceedings and full payment of just
compensation. However, the Government was prohibited “from performing acts of ownership like awarding
concessions or leasing any part of NAIA-3 to other parties.”

The government then filed a motion for reconsideration but was denied by public respondent. Hence a
Petition for Certiorari and Prohibition under Rule 65 was filed, praying for the nullification of the RTC orders dated
January 4, 2005, January 7, 2005, and January 10, 2005, and for the inhibition of Hon. Gingoyon from taking
further action on the expropriation case.

ISSUE:
Whether or not Rule 67 prevails over R.A. 8974?

HELD:
NO. Rule 67 outlines the procedure under which eminent domain may be exercised by the Government. Yet by no
means does it serve at present as the solitary guideline through which the State may expropriate private property.

Rep. Act No. 8974, which provides for a procedure eminently more favorable to the property owner than
Rule 67, inescapably applies in instances when the national government expropriates property “for national
government infrastructure projects.”[28] Thus, if expropriation is engaged in by the national government for
purposes other than national infrastructure projects, the assessed value standard and the deposit mode prescribed
in Rule 67 continues to apply.

It is the finding of this Court that the staging of expropriation proceedings in this case with the exclusive
use of Rule 67 would allow for the Government to take over the NAIA 3 facilities in a fashion that directly rebukes
our 2004 Resolution in Agan. This Court cannot sanction deviation from its own final and executory orders.

Thus, at the very least, Rule 67 cannot apply in this case without violating the 2004 Resolution. Even
assuming that Rep. Act No. 8974 does not govern in this case, it does not necessarily follow that Rule 67 should
then apply. After all, adherence to the letter of Section 2, Rule 67 would in turn violate the Court’s requirement in
the 2004 Resolution that there must first be payment of just compensation to PIATCO before the Government may
take over the property.

• Republic v. Gingoyon, G.R. No. 166429, Feb 1, 2006

FACT: ibid

ISSUE: Is motion for intervention allowed?

HELD: Since this case originated from an original action filed before this Court, the appropriate time to file the
motions-in-intervention in this case if ever was before and not after resolution of this case. To allow intervention
at this juncture would be highly irregular. It is extremely improbable that the movants were unaware of the
pendency of the present case before the Court, and indeed none of them allege such lack of knowledge. ‘

Moreover, the requisite legal interest required of a party-in-intervention has not been established so as to
warrant the extra-ordinary step of allowing intervention at this late stage. As earlier noted, the claims of Takenaka
and Asahikosan have not been judicially proved or conclusively established as fact by any trier of facts in this
jurisdiction. Certainly, they could not be considered as indispensable parties to the petition for certiorari.

• Asia’s Emerging Dragon Corporation v. DOTC, G.R. No. 169914, April 18, 2008

Facts:
This is a consolidated case, but in view of the topic of expropriation we focus more in the case of DOTC vs.
SalacnibBaternia.

In order to better appreciate the case we must first discuss the facts and rulings in the case ofAgan
andGingoyon.

In 1995 Asia’s Emerging Dragon (AEDC ),( composed of the 6 most influential businessman in the
Philippines mainly John Gokongwei, Lucio Tan, Henry Sy, Andrew Gotianun, George Ty and Alfonso Yuchengco.,) –
submitted an unsolicited proposal to the Government through the DOTC for the development of NAIA III under a
build-operate-and transfer-arrangement pursuant to RA 6957 as amended by RA 7718. Wherefore the proposal
was indeed approved by the Government.

Biddings were held, in which in the end the Project was awarded to PIATCO. Objections were raised by
AEDC but in the end the Government justified the award to PIATCO mainly because AEDC was not able to match
the bid of PIATCO.

In 2002 the Build-operate-and transfer-arrangement (BOT) between the GOvt. and PIATCO was questioned in the
case of Agan. Wherefore the court ruled among others that, in view of anomalies in awarding PIATCO the BOT ,
the contract/ award (BOT) was declared null and void. However the court ruled that it was not unmindful of the
reality that the structures comprising the NAIA III facility are almost complete and that the funds have been spent
by PIATCO in their construction. For the Government to take over said facility, it has to compensate respondent
PIATCO as builder of the said structures. The compensation must be just and accordance with law and equity for
the government can not unjustly enriched itself at the expense of PIATCO and its investors.

The abovementioned pronouncement of the Court in Agan gave rise to the petition in the GIngoyan case.
The facts of which are as follows .After the promulgation of the ruling in Agan case, NAIA III was still in the
possession of PIATCO, despite the avowed intent of the Government to put the airport terminal into immediate
operation. Whereby the Govt. and PIATCO entered into several rounds of negotiation and even appeared before
arbitral proceedings before International Chamber of Commerce International Court of Arbitration.
 Then on, Dec. 21, 2004 the Govt filed a complaint for expropriation with the Pasay RTC. The Govt seeks
the issuance of a writ of possession authorizing immediate possession of NAIA III, it also declared that it had
deposited the amount of 3 Billion in cash with the Land Bank, representing the NAIA 3 terminal assessed value for
tax purposes. The RTC through Judge Gingoyonissued in the same day the Writ of Possession prayed for by the
Government citing the case of Manila vs. Serrano that the RTC had the ministerial duty to issue the writ of
possession upon filing of a complaint for expropriation sufficient in form and substance, and upon deposit made
by the Government of the amount equivalent to assessed value of the property subject for expropriation.

However, on Jan 4. 2005, the RTC issued another order – the assailed order in this case of Gingoyon- to
supplement its earlier order dated Dec. 21, 2004. The RTC noted that the first order was issued pursuant to Sec. 2,
Rule 67 of the Rules of Court. However, it was observed that R.A.8974, had amended Rule 67 in many respects.
That there are at least two crucial differences between the respective procedures under RA 8974 and Rule 67.
Under the Statute the Govt. is required to make immediate payment to the property owner upon filing of the
complaint to be entitled to a writ of possession, whereas in Rule 67, the Govt. is required only to make an initial
deposit with an authorized government depositary. Moreover Rule 67 prescribes that the initial deposit be
equivalent to the assessed value of the property for purposes of Tax, unlike in RA 8974 which provides, as the
relevant standard for initial compensation, the market value of the property as stated in the tax declarations or the
current relevant zonal valuation of the BIR, whichever is higher, and the value of the improvements and/or
structure using the replacement cost method.

The Govt. in this case of GiNgoyon questioned the above ruling.

The Supreme Court held the validity of the RTC’s ruling. It held among others that 1. RA 8947 applies in
this case, particularly insofar as it requires the immediate payment by the Govt. of at least the proferred value of
the NAIA III facilities to PIATCO and provides certain valuation standard method for the determination of just
compensation. 2. That in applying RA 8974, the implementation of Writ of Possession in favour of the Govt over
NAIA is held in abeyance until PIATCO is directly paid the amount of 3 Billion pesos, representing the proferred
value of NAIA III 3. The Govt. shall pay the just compensation fixed in the decision of the trial court to PIATCO
immediately upon the finality of said decision.
Finally we tackle the facts of the case of Republic vs. CA and Baterina. Congressman Baterina, together with other
member of the Lower House filed a petition for Prohibition in Intervention with application for TRO. Baterina, et. al
believes that the Govt. need not file expropriation proceedings to gain possession if NAIA 3 and that PIATCO is not
entitled to just compensation, arguing that PIATCO does not own NAIA 3 because BOT contract do not vest
ownership. That the land in which NAIA 3 is situated is owned by the Government.

Issue:
In essence, Baterina is opposing the expropriation proceedings on the ground that NAIA 3 is already a public
property. Hence PIATCO is not entitled to just compensation for NAIA 3.

HELD: PIATCO is entitled to just compensation and that the expropriation proceedings commenced by the
Government was proper and valid.. The Government has chosen to resort to expropriation, a remedy available
under the law, which has the added benefit of an integrated process for the determination of just compensation
and the payment thereof to PIATCO. We appreciate that the case at bar is a highly unusual case, whereby the
Government seeks to expropriated a building complex constructed on land which the State already owns.

The right of eminent domain extends to personal property and real property, and the NAIA 3 structures,
adhered as they are to the soil, are considered real property. The public purpose for the expropriation is also
beyond dispute. It should also be noted that Section 1 of Rule 67 recognizes the possibility that the property
sought to be expropriated may be titled in the name of the Republic of the Philippines, although occupied by
private individuals, and in such case an averment to that effect should be made in the complaint. The instant
expropriation complaint did aver that the NAIA 3 complex “stands on a parcel of land owned by the Bases
Conversion Development Authority, another agency of the Republic”. Admittedly, eminent domain is not the sole
judicial recourse by which the government may have acquired the NAIA 3 facilities while satisfying the requisites in
the order held by the SC in the Case of Agan. Eminent Domain though may be the most effective, as well as the
speediest means by which such goals may be accomplished. Not only does it enable immediate possession after
satisfaction of the requisites under the law, it also has a built-in procedure through which just compensation may
be ascertained. Thus, there should be no question as to the propriety of eminent domain proceedings in this case.

• NPC v. Angas, G.R. Nos. 60225-26, 8 May 1992, 208 SCRA 542.

Facts:
On April 13, 1974 and December 3, 1974, petitioner National Power Corporation, a government-owned and
controlled corporation and the agency through which the government undertakes the on-going infrastructure and
development projects throughout the country, filed two complaints for eminent domain against private
respondents with the Court of First Instance. Both cases were jointly tried upon agreement of the parties. On June
15, 1979, a consolidated decision in Civil Cases Nos. 2248 and 2277 was rendered by the lower court, declaring and
confirming that the lots mentioned and described in the complaints have entirely been lawfully condemned and
expropriated by the petitioner, and ordering the latter to pay the private respondents certain sums of money as
just compensation for their lands expropriated "with legal interest thereon until fully paid."

Two consecutive motions for reconsideration of the said consolidated decision were filed by the petitioner. The
same were denied by the respondent court. Petitioner did not appeal the aforesaid consolidated decision, which
became final and executory.Thus, on May 16, 1980, one of the private respondents [Sittie Sohra Batara] filed
an ex-parte motion for the execution of the June 15, 1979 decision, praying that petitioner be directed to pay her
the unpaid balance of P14,300.00 for the lands expropriated from her, including legal interest which she computed
at 6% per annum. The said motion was granted by the lower court. Thereafter, the lower court directed the
petitioner to deposit with its Clerk of Court the sums of money as adjudged in the joint decision dated June 15,
1979.

Petitioner complied with said order and deposited the sums of money with interest computed at 6% per annum.
On February 10, 1981, one of the private respondents [Pangonatan Cosna Tagol], through counsel, filed with the
trial court anex-parte motion in Civil Case No. 2248 praying, for the first time, that the legal interest on the just
compensation awarded to her by the court be computed at 12% per annum as allegedly "authorized under and by
virtue of Circular No. 416 of the Central Bank issued pursuant to Presidential Decree No. 116 and in a decision of
the Supreme Court that legal interest allowed in the judgment of the courts, in the absence of express contract,
shall be computed at 12% per annum."

On February 11, 1981, the lower court granted the said motion allowing 12% interest per annum. [Annex L,
Petition]. Subsequently, the other private respondents filed motions also praying that the legal interest on the just
compensation awarded to them be computed at 12% per annum, on the basis of which the lower court issued on
March 10, 1981 and August 28, 1981 orders bearing similar import. Petitioner moved for a reconsideration of the
lower court's last order dated August 28, 1981, alleging that the main decision had already become final and
executory with its compliance of depositing the sums of money as just compensation for the lands condemned,
with legal interest at 6% per annum; that the said main decision can no longer be modified or changed by the
lower court; and that Presidential Decree No. 116 is not applicable to this case because it is Art. 2209 of the Civil
Code which applies.

On January 25, 1982, the lower court denied petitioner's, motion for reconsideration, stating that the rate of
interest at the time of the promulgation of the June 15, 1981 decision is that prescribed by Central Bank Circular
No. 416 issued pursuant to Presidential Decree No. 116, which is 12% per annum, and that it did not modify or
change but merely amplified its order of August 28, 1981 in the determination of the legal interest.

Issue:
WON in the computation of the legal rate of interest on just compensation for expropriated lands, the law
applicable is Article 2209 of the Civil Code which prescribes a 6% legal interest rate or Central Bank Circular No.
416 which fixed the legal interest rate at 12% per annum.

Ruling:
WHEREFORE, the petition is granted. The Orders promulgated on February 11, 1981, March 10, 1981,
August 28, 1981 and January 25, 1982 [as to the recomputation of interest at 12% per annum] are annulled and set
aside. It is hereby declared that the computation of legal interest at 6% per annum is the correct and valid legal
interest allowed in payments of just compensation for lands expropriated for public use to herein private
respondents by the Government through the National Power Corporation. The injunction heretofore granted is
hereby made permanent. No costs.

• City of Manila v. Serrano, G.R. No. 142304, Jun 20, 2001

FACTS:
The City Council of Manila enacted Ordinance No. 7833 authorizing the expropriation of certain properties in
Manila’s First District in Tondo. One of the properties sought to be expropriated was that supposedly owned by
respondents.

Petitioner City of Manila filed an amended complaint for expropriation, docketed as Civil Case No. 94-72282, with
the RTC of Manila, against the supposed owners of the lots, which included herein respondents Oscar, Felicitas,
Jose, Benjamin, Estelita, Leonora, Adelaida, all surnamed Serrano.

Respondents filed a consolidated answer, in which they alleged that their mother, the late Demetria De Guia, had
acquired Lot 1-C from Lee Kian Hui; that they had been the bona fide occupants of the said parcel of land for more
than 40 years; that the expropriation of Lot 1-C would result in their dislocation, it being the only residential land
left to them by their deceased mother; and that the said lot was exempt from expropriation because dividing the
said parcel of land among them would entitle each of them to only about 50 square meters of land. Respondents,
therefore, prayed that judgment be rendered declaring Lot 1-C exempt from expropriation and ordering the
cancellation of the notice annotated on the back of TCT No. 226048, regarding the pendency of Civil Case No. 94-
72282 for eminent domain filed by petitioner.

Upon motion by petitioner, the trial court issued an order, dated October 9, 1998, directing petitioner to deposit
the amount of P1,825,241.00 equivalent to the assessed value of the properties. After petitioner had made the
deposit, the trial court issued another order, dated December 15, 1998, directing the issuance of a writ of
possession in favor of petitioner.

Respondents filed a petition for certiorari with the Court of Appeals, alleging that the expropriation of Lot 1-C
would render respondents, who are actual occupants thereof, landless; that Lot 1-C is exempt from expropriation
because R.A. No. 7279 provides
that properties consisting of residential lands not exceeding 300 square meters in highly urbanized cities are
exempt from expropriation; that respondents would only receive
around 49 square meters each after the partition of Lot 1-C which consists of only
343.10 square meters; and that R.A. No. 7279 was not meant to deprive an owner of the
entire residential land but only that in excess of 300 square meters.
On November 16, 1999, the Court of Appeals rendered a decision holding that Lot 1-C
is not exempt from expropriation because it undeniably exceeds 300 square meters
which is no longer considered a small property within the framework of R.A. No. 7279. However, it held that in
accordance with the ruling in Filstream International Inc.
v. Court of Appeals, the other modes of acquisition of lands enumerated in §§9-10 of the law must first be tried by
the city government before it can resort to expropriation. As petitioner failed to show that it had done so, the
Court of Appeals gave judgment for respondents and enjoined petitioner from expropriating Lot 1-C.

ISSUE:
WON the CA erred in concluding that the Order of the RTC which authorizes the immediate entry of the City as the
expropriating agency into the property sought to be expropriated upon the deposit thereof as tantamount to
condemnation of the property.

RULING:
YES. Rule 67, §2 provides: Upon the filing of the complaint or at any time thereafter and after due notice to the
defendant, the plaintiff shall have the right to take or enter upon the possession of the real property involved if he
deposits with the authorized government depositary an amount equivalent to the assessed value of the property
for purposes of taxation to be held by such bank subject to the orders of the court. After such deposit is made the
court shall order the sheriff or other proper officer to forthwith place the plaintiff in possession of the property
involved and promptly submit a report thereof to the court with service of copies to the parties. Thus, a writ of
execution may be issued by a court upon the filing by the government of a complaint for expropriation sufficient in
form and substance and upon deposit made by the government of the amount equivalent to the assessed value of
the property subject to expropriation. Upon compliance with these requirements, the issuance of the writ of
possession becomes ministerial. In this case, these requirements were satisfied and, therefore, it became the
ministerial duty of the trial court to issue the writ of possession.

The Court of Appeals, however, ruled that petitioner failed to comply with the requirements laid down in §§9-10 of
R.A. No. 7279 and reiterated in the Filstream ruling. This is error. The ruling in Filstream was necessitated because
an order of condemnation had already been issued by the trial court in that case. Thus, the judgment in that case
had already become final. In this case, the trial court has not gone beyond the issuance of a writ of possession.
Hearing is still to be held to determine whether or not petitioner indeed complied with the requirements provided
in R.A. No. 7279. It is, therefore, premature at this stage of the proceedings to find that petitioner resorted to
expropriation without first trying the other modes of acquisition enumerated in §10 of the law. Expropriation
proceedings consists of two stages: first, condemnation of the property after it is determined that its acquisition
will be for a public purpose or public use and, second, the determination of just compensation to be paid for the
taking of private property to be made by the court with the assistance of not more than three
commissioners.

• Republic v. Tagle, G.R. No. 129079, December 2, 1998

Facts:
Helena Benitez is a registered owner of 2 parcels of land in Bgy. Salwag, Dasmarinas, Cavite. Sometime in Sept.
1982, the Philippine Government, through the Philippine Human Resources Development Center (PHRDC), an
agency under the Ministry of Human Settlements, negotiated with the Japanese International Cooperation Agency
(JICA) Survey Team on technicalities of the establishment of ASEAN Human Resources Development Project in the
Philippines. Among the the 5 main programs of the proposed project was the Construction Manpower
Development Center (CMDC), an agency now under the Department of Trade and Industry.

Several transaction and agreements were entered into between Benitez (together with Philippine Women’s
University) and the PHRDC with regards to the lease and consequently, the possible sale of the land which did not
push through because of Benitez’s desistance. Thereafter, Benitez and PWU demanded from PHRDC the payment
of rentals and to vacate the premises. Benitez later filed an unlawful detainer case against PHRDC. In turn, the
state through DTI (with GMA as undersecretary), to which CMDF is attached instituted a complaint for Eminent
Domain, pursuant to EO 1935. In compliance with Section 2, Rule 67 of the Rules of Court, as amended by
Presidential Decree No. 42, DTI deposited with PNB in favor of Benitez P708,490 an amount equivalent to the
provisional value of the land sought to be expropriated. Subsequently, DTI filed a Motion for Issuance of Writ of
Possession which had been granted but subsequently quashed by MTC Judge Tagle.

Issue:
Whether Judge Tagle may quash a writ of possession on the ground that the expropriating government agency is
already occupying the property sought to be expropriated.

Held:
No. Judge Tagle is required to issue a writ of possession in favor DTI pursuant to Sec. 7 of EO 1035:

“SEC 7. Expropriation. If the parties fail to agree in negotiation of the sale of the land as provided in the preceding
section, the government implementing agency/instrumentality concerned shall have authority to immediately
institute expropriation proceedings through the Office of the Solicitor General, as the case may be. The just
compensation to be paid for the property acquired through expropriation shall be in accordance with the
provisions of P.D. No. 1533. Courts shall give priority to the adjudication of cases on expropriation and shall
immediately issue the necessary writ of possession upon deposit by the government implementing
agency/instrumentality concerned of an amount equivalent to ten per cent (10%) of the amount of just
compensation provided under P.D. No. 1533; Provided, That the period within which said writ of possession shall
be issued shall in no case extend beyond five (5) days from the date such deposit was made.”

Under this statutory provision, when the government or its authorized agent makes the required deposit, the trial
court has a ministerial duty to issue a writ of possession.

The expropriation of real property does not include mere physical entry or occupation of land. Although eminent
domain usually involves a taking of title, there may also be compensable taking of only some, not all, of the
property interests in the bundle of rights that constitute ownership. The writ of possession is both necessary and
practical, because mere physical possession that is gained by entering the property is not equivalent to
expropriating it with the aim of acquiring ownership over, or even the right to possess, the expropriated property.

Clearly, an ejectment suit ordinarily should not prevail over the State’s power of eminent domain. DTI has
deposited not just the 10 percent required under EO 1035, but the whole amount of the just compensation that
private respondent is entitled to. Thus, there is no any legal impediment for the issuance of a writ of possession in
favor of DTI. Precisely, the purpose of instituting expropriation proceedings is to prevent petitioner from being
ejected from the subject property; otherwise, the above-mentioned absurd and circuitous rulings would arise.

• City of Cebu v. Spouses Dedamo, G.R. No. 142971, May 7, 2002

FACTS: On 17 September 1993, petitioner City of Cebu filed a complaint for eminent domain against respondents
spouses Apolonio and Blasa Dedamo. The petitioner alleged therein that it needed the land for a public purpose,
i.e., for the construction of a public road which shall serve as an access/relief road of Gorordo Avenue to extend to
the General Maxilum Avenue and the back of Magellan International Hotel Roads in Cebu City. The lower court
fixed the amount of just compensation at P20,826,339.50.

Petitioner alleged that the lower court erred in fixing the amount of just compensation at P20,826,339.50. The just
compensation should be based on the prevailing market price of the property at the commencement of the
expropriation proceedings.

The petitioner did not convince the Court of Appeals, which affirmed the lower court’s decision in toto.
ISSUE: Whether or not just compensation should be determined as of the date of the filing of the complaint.

HELD: NO. In the case at bar, the applicable law as to the point of reckoning for the determination of just
compensation is Section 19 of R.A. No. 7160, which expressly provides that just compensation shall be determined
as of the time of actual taking.

The petitioner has misread our ruling in The National Power Corp. vs. Court of Appeals. We did not categorically
rule in that case that just compensation should be determined as of the filing of the complaint. We explicitly
stated therein that although the general rule in determining just compensation in eminent domain is the value of
the property as of the date of the filing of the complaint, the rule "admits of an exception: where this Court fixed
the value of the property as of the date it was taken and not at the date of the commencement of the
expropriation proceedings."

• Spouses Ortega v. City of Cebu, G.R. No. 181562-63, October 2, 2009

Doctrine:
It is well-settled in jurisprudence that the determination of just compensation is a judicial prerogative.

• BPI v. Court of Appeals, G.R. No. 160890, November 10, 2004

NATURE

Petition for review under Rule 45, assailing the CA Decision which reversed RTC Imus, Cavite Decision reducing
from P10,000.00 to P3,000.00 the amount of just compensation for the expropriated land of BPI and decreasing
from P10,000.00 to P3,000.00 the commissioners’ fee for each of the three commissioners.

FACTS
- April 15, 1996 > NAPOCOR filed a Complaint for Eminent Domain, seeking to expropriate a portion of BPI property
in Barrio Bucal, Dasmariñas, Cavite, for the purpose of constructing and maintaining its Dasmariñas-Zapote 230 KV
Transmission Line Project.

- August 1, 1996 > pursuant to Sec 2 of Rule 67 RoC, NAPOCOR deposited with PNB in Quezon City, P3,013.60 -
equivalent to the assessed value of the property

- August 15, 1996 > NAPOCOR notified BPI, through registered mail, of its intention to take possession of the
property. Thereafter, the trial court granted their urgent ex-parte motion for the issuance of a writ of possession
and authorized them to enter and take possession of the premises.

- Previously, BPI filed a motion for bill of particulars which the trial court denied. Consequently, BPI moved for the
dismissal of the case and the same was granted without prejudice to its reinstatement.
- NAPOCOR filed an MFR. RTC granted the motion and reinstated the case.

- November 28, 1997 > In its Order , RTC designated 3 commissioners to determine the just value of the property
subject of the expropriation in this case

(1) Mr. Lamberto C. Parra, Provincial Assessor of Cavite

(2) Mr. Regalado Andaya, Municipal Assessor of Dasmariñas, Cavite
(3) Mr. Rodolfo D. Leonen, Defendant’s Representative
- February 26, 1999 > the Commissioners submitted its Report which assessed the sum of the area of the property
taken: 75.34 square meters (TIMES) estimated value of just compensation: P10,000.00 = P753,400.00 and
recommended an additional payment as severance damage: P524,660.00 TOTAL: P1,278,060.00.

Likewise, they submitted an undated Commissioners’ Valuation Report citing the “Market Data Approach” as the
method used in arriving at the amount of P10,000.00 per square meter as just compensation, whereby the value of
the land is based on sales and listing of comparable property registered within the immediate vicinity.

- August 5, 1999 > RTC rendered judgment in favor of BPI ordering NAPOCOR to pay (75.34 sqm x P10,000 per sqm)
P753,400.00 with legal rate of interest reckoned from the date of possession by the plaintiff.

- After the denial of its motion for reconsideration, NAPOCOR appealed to CA, which REVERSED the RTC decision. A
new one is entered ordering NAPOCOR to pay BPI P3,000.00 per square meter as just compensation for the
expropriated land; and P3,000.00 commissioner’s fee to each of the three (3) commissioners.

- BPI moved for the reconsideration of CA decision but the same was denied for lack of merit.

ISSUES
WON CA gravely abused its discretion and seriously erred in fixing the just compensation for the subject property
at P3,000.00 per square meter

HELD
.
NO
Ratio Just compensation is defined as the full and fair equivalent of the property taken from its owner by the
expropriator. The measure is not the taker’s gain, but the owner’s loss. To compensate is to render something
which is equal in value to that taken or received. The word “just” is used to intensify the meaning of the word
“compensation”; to convey the idea that the equivalent to be rendered for the property taken shall be real,
substantial, full, ample. In eminent domain or expropriation proceedings, the general rule is that the just
compensation which the owner of condemned property is entitled to is the market value. Market value is “that
sum of money which a person desirous but not compelled to buy, and an owner willing but not compelled to sell,
would agree on as a price to be given and received therefor.”

Reasoning
- After a careful perusal of the records, we find no reason to disturb this finding of fact by the Court of Appeals,
sufficiently supported as it is, by the evidence on record.

> In this instance, we accord more weight to Resolution No. 08-95 promulgated by the Provincial Appraisal
Committee of Cavite held at the Office of the Provincial Assessor on October 25, 1995. Said Resolution pegs as fair
and reasonable the value of P3,000.00 per square meter of all the lots in the Municipality of Dasmariñas,
specifically along General Aguinaldo Highway.

> The just compensation is determined as of the date of the taking of the property or the filing of the complaint
whichever came first. NAPOCOR filed the complaint on April 15, 1996. A period of 6 months has elapsed from the
valuation of the Provincial Assessors and the filing of the complaint. We note the considerable discrepancy
between the valuation of the former and that of the Commissioners. Indeed, the appellate court computed the
increase of the valuation to be 233%.

> The Court of Appeals pointed out that more than 70% of the 200 lot owners have entered into compromise
agreements and accepted the price set by the Provincial Appraisal Committee of Cavite. It is also worthy to note
that one of the Commissioners in this case, Mr. Lamberto C. Parra, was the Chairman Provincial Assessor and
signatory of the same Resolution.
- We find that the rate imposed by the Commissioners is unsubstantiated. No official documents were presented
to reflect the true market value of the subject lots in the surrounding area. The Commissioner’s Report merely
states that the value of the land is based on sales and listings of comparable property registered within the
immediate vicinity without any evidence to support the market data provided.

Disposition Petition for review on certiorari is DENIED. CA Decision which reversed RTC Decision is AFFIRMED in
toto.

• Bardillon v. Barangay Masili, G.R. No. 146886, April 30, 2003

FACTS:

Two [C]omplaints for eminent domain were filed by herein respondent for the purpose of expropriating the land
owned by petitioner.

1st [C]omplaint [Civil Case No. 3648] was filed before the MTC on Feb. 23, 1998, following the failure of
Barangay Masili to reach an agreement with herein petitioner on the purchase offer of P200,000.00. The
expropriation of Lot 4381-D was being pursued in view of providing Barangay Masili a multi-purpose hall for the
use and benefit of its constituents.

MTC dismissed the case ‘for lack of interest’ for failure of the [respondent] and its counsel to appear at
the pre-trial.

2nd [C]omplaint [Civil Case No. 2845-99-C] was filed before RTC on October 18, 1999. This [C]omplaint
also sought the expropriation of the said Lot 4381-D. Petitioner, by way of a Motion to Dismiss, opposed this
[C]omplaint by alleging in the main respondent’s cause of action is barred by prior judgment, pursuant to the
doctrine of res judicata.

Judge denied petitioner’s Motion to Dismiss, holding that the MTC which ordered the dismissal of Civil
Case No. 3648 has no jurisdiction over the said expropriation proceeding. 2 nd complaint was ordered in favor of
Barangay Masili.

Court of Appeals

CA held that RTC did not commit grave abuse of discretion in issuing the assailed Orders. It ruled that the second
Complaint for eminent domain was not barred by res judicata. The reason is that the MTC had no jurisdiction over
the action.

ISSUES:

1. Whether the MTC had jurisdiction over the expropriation case;

RULING:

No merit.

1.) Jurisdiction Over Expropriation

Petitioner’s claim: value of the land is only P11,448, the MTC had jurisdiction over the case.
CA: held that the assessed value of the property was P28,960. Thus, MTC did not have jurisdiction over the
expropriation proceedings, because the amount involved was beyond the P20,000 jurisdictional amount
cognizable by MTCs.

An expropriation suit does not involve the recovery of a sum of money. Rather, it deals with the exercise by the
government of its authority and right to take property for public use. As such, it is incapable of pecuniary
estimation and should be filed with the regional trial courts regardless of the value of the land.

Condemnation proceedings are within the jurisdiction of Courts of First Instance, the forerunners of the regional
trial courts. The Judiciary Act of 1948 which, like BP 129 in respect to RTCs, provided that courts of first instance
had original jurisdiction over ‘all civil actions in which the subject of the litigation is not capable of pecuniary
estimation’.

While it is true that the value of the property to be expropriated is estimated in monetary terms, for the court is
duty-bound to determine the just compensation for it, this, however, is merely incidental to the expropriation suit.
Indeed, that amount is determined only after the court is satisfied with the propriety of the expropriation.

Rule 68
FORECLOSURE OF REAL ESTATE MORTGAGE

Foreclosure of mortgage is the remedy available to the morgagee by which he subjects the mortgage property to
the stipulation of the obligation for which the mortgage was given.

Remedies available to the creditor secured by a mortgage are:

• Demand specific performance of an obligation;

• Foreclosure of the mortgage (judicial under Rule 68 or extrajudicial under Act No. 3135);

• Simple action for collection (Bacrach Motor Co. vs. Carangal, 68 Phil. 287)

The rule is settled that a mortgage creditor may, in the recovery of a debt secured by real estate mortgage,
institute against the mortgage debtor either personal action for debt or a real action to foreclose the mortgage.
These remedies available to the creditor are deemed alternative not cumulative. An election of one remedy
operates as waiver of the other (Bacrach Motor Co. vs. Carangal, 68 Phil. 287).

However, the rule will not bar the filing of another action for the recovery of the balance left after the foreclosure
sale of the mortgaged properties.

Given the fact that the proceeds of the auction sale were not sufficient to answer the entire obligation of
petitioners to respondent bank, the latter has the right to recover the balance due it after applying the proceeds
of the sale. We agree with the CA that where the mortgage creditor chooses the remedy of foreclosure and the
foreclosure sale are insufficient to cover the debt, the mortgagee is entitled to claim the deficiency from the
debtor (Suico Rattan and Buri Interiors, Inc. vs. CA, G.R. No. 133145).

Article 2088 of the Civil Code prohibits Pactum Commissorium.

The creditor cannot appropriate the things given by way of pledge or mortgage, or dispose them. Any stipulation
to the contrary is null and void.
Two kinds of foreclosure:

Judicial Foreclosure Extrajudicial Foreclosure

Requires court intervention No court intervention
Only equity of redemption Right of redemption
Governed by Rule 68 Governed by Act 3135
There could be deficiency judgment There is no deficiency judgment
Recovery of deficiency by mere motion Recovery of deficiency through independent action

Section 1. Complaint in action for foreclosure. — In an action for the foreclosure of a mortgage or other
encumbrance upon real estate, the complaint shall set forth
• the date and due execution of the mortgage;

• its assignments, if any;

• the names and residences of the mortgagor and the mortgagee;

• a description of the mortgaged property;

• a statement of the date of the note or other documentary evidence of the obligation secured by the
mortgage, the amount claimed to be unpaid thereon;

• and the names and residences of all persons having or claiming an interest in the property subordinate in
right to that of the holder of the mortgage, all of whom shall be made defendants in the action. (1a)

Parties in Foreclosure suit

The following must be joined as defendants:
• The persons obligated to pay the mortgaged.

• The persons who own, occupy or control the mortgaged premises or any other part thereof
(Soriano vs. Enriquez, 24 Phil. 584).

• The transferee or grantee of the property.

• The second mortgagee or junior encumbrancer.

• The mortgagor.

Equitable mortgage is one which although lacking in some formality, or form or words, or other requisites
demanded by a statute, nevertheless reveals intention of the parties to change real property as security for a
debt, and contains nothing impossible or contrary to law (Sps. Sibug vs. Sps. Suba, G.R. No. 137792)

A subordinate lien holder is a proper, even a necessary, but not an indispensable, party to a foreclosure
proceeding (Looyuko vs. CA, G.R. No.102696).

A first mortgagee is not a necessary party in the foreclosure of a second mortgage but he may be joined or may
intervene when the mortgage debt is already due (De Castro vs. IAC, 165 SCRA 654).

Effect of failure to implead second mortgagee

 • The foreclosure is ineffective against such subordinate lien holder with the result that there remains
in time an unforeclosed equity of redemption.

• The remedy is a separate foreclosure proceeding to require them to redeem from the first
mortgagee, or the party acquiring title to the mortgaged property at the forclosure sale, within 90
days (Looyuko vs. CA, supra

Section 2. Judgment on foreclosure for payment or sale. —

If upon the trial in such action the court shall find the facts set forth in the complaint to be true
• it shall ascertain the amount due to the plaintiff upon the mortgage debt or obligation, including interest
and other charges as approved by the court, and costs, and

• shall render judgment for the sum so found due and order that the same be paid to the court or to the
judgment obligee within a period of not less than ninety (90) days nor more than one hundred twenty
(120) days from the entry of judgment, and that in default of such payment the property shall be sold at
public auction to satisfy the judgment. (2a)

Equity of Redemption Right of Redemption

Right of defendant mortgagor Right of the debtor to
to extinguish the mortgage redeem the property within
and retain ownership of the 1 year from registration of
property by paying the debt the Sheriff’s certificate of
within 90-120 days after foreclosure sale in an
entry of judgment or even extrajudicial foreclosure
after the foreclosure sale but under Act 3135.
prior to confirmation, in the
case of judicial foreclosure
under Rule 68.
Where a mortgaged is foreclosed extrajudicially, act 3135 grants to the mortgagor the right of redemption within
1 year from registration of the sheriff’s certificate of foreclosure sale. Where the foreclosure is judicially effected,
however, no equivalent right of redemption exists, except only where the mortgagee is the Philippine National
bank or a bank or banking institution (Huerta Alba resort Inc. vs. CA, G.R. No. 128667).

Section 3. Sale of mortgaged property; effect. —

When the defendant, after being directed to do so as provided in the next preceding section, fails to pay the
amount of the judgment within the period specified therein,

-the court, upon motion shall order the property to be sold in the manner and under the provisions of
Rule 39 and other regulations governing sales of real estate under execution.
Such sale shall not affect the rights of persons holding prior encumbrances upon the property or a part thereof,
and when confirmed by an order of the court, also upon motion, it shall operate to divest the rights in the
property of all the parties to the action and to vest their rights in the purchaser, subject to such rights of
redemption as may be allowed by law.

Upon the finality of the order of confirmation or upon the expiration of the period of redemption when allowed
by law, the purchaser at the auction sale or last redemptioner, if any,
• shall be entitled to the possession of the property unless a third party is actually holding the same
adversely to the judgment obligor

• said purchaser or last redemptioner may secure a writ of possession, upon motion, from the court which
ordered the foreclosure. (3a)

Three kinds of sale:

 Rule 39 Rule 68 Act 3135
Ordinary execution sale Judicial foreclosure sale Extrajudicial foreclosure sale

(Monzon vs. Sps. Nieves, G.R. No. 171827)

After the sale of mortgaged property and before its confirmation, the court may still grant the judgment debtor
an opportunity to pay the amount of judgment.

Notice and hearing of a motion for confirmation are essential to the validity of the order of confirmation, not only
to enable the interested parties to resist the motion but also to inform them of the time when the right of
redemption is cut off (Tiglao vs. Botones, 90 Phil 275).

Section 4. Disposition of proceeds of sale. —

The amount realized from the foreclosure sale of the mortgaged property shall, after deducting the costs of the
sale, be paid to the person foreclosing the mortgagee, and when there shall be any balance or residue, after
paying off the mortgage debt due, the same shall be paid to junior encumbrancers in the order of their priority, to
be ascertained by the court, or if there be no such encumbrancers or there be a balance or residue after payment
to them, then to the mortgagor or his duly authorized agent, or to the person entitled to it. (4a)
Disposition of the proceeds of the sale in foreclosure shall be as follows:
• First, pay the costs to court;

• Second, pay off the mortgage debt;

• Third, pay the junior encumbrances, if any in the order of priority;

• Give the balance to the mortgagor, his agent or person entitled to it.

(Suico vs. PNB, G.R. No. 170215, August 28, 2007)

Section 5. How sale to proceed in case the debt is not all due. —

If the debt for which the mortgage or encumbrance was held is not all due as provided in the judgment as soon as
a sufficient portion of the property has been sold to pay the total amount and the costs due, the sale shall
terminate; and afterwards as often as more becomes due for principal or interest and other valid charges, the
court may, on motion, order more to be sold. But if the property cannot be sold in portions without prejudice to
the parties, the whole shall be ordered to be sold in the first instance, and the entire debt and costs shall be paid,
if the proceeds of the sale be sufficient therefor, there being a rebate of interest where such rebate is proper. (5a)
If the debt for which the mortgage or encumbrance was held is not all due
• the sale shall terminate

• the court may, on motion, order more to be sold

If the property cannot be sold in portions without prejudice to the parties

• the whole shall be ordered to be sold

• proceeds of the sale be paid to the entire debt and costs

Section 6. Deficiency judgment. — If upon the sale of any real property as provided in the next preceding section
there be a balance due to the plaintiff after applying the proceeds of the sale, the court, upon motion, shall
render judgment against the defendant for any such balance for which, by the record of the case, he may be
personally liable to the plaintiff, upon which execution may issue immediately if the balance is all due at the time
of the rendition of the judgment; otherwise; the plaintiff shall be entitled to execution at such time as the balance
remaining becomes due under the terms of the original contract, which time shall be stated in the judgment. (6a)

Deficiency judgment is a judgment by the court upon motion and showing that the proceeds from the sale of the
property are not sufficient for the payment of the judgment debt.

When may a deficiency judgment not rendered?

There are 3 instances:

• Where the mortgagor mortgaged his property to secure the debt of another without assuming
personal liability for such debt (Philippine Trust Co. vs. Echaus Tan siva, 52 phil. 852).

• Where the mortgagor is a non resident who failed to submit himself to the jurisdiction of the court.
Deficiency judgment cannot be rendered against a non-resident defendant (Banco Espanol Filipino
vs. Palanca, 37 Phil. 921).

• Where the mortgagor dies after the rendition of the judgment of foreclosure.

A motion for deficiency judgment may be made only after the sale and after it becomes known that the deficiency
exists.

Section 7. Registration. — A certified copy of the final order of the court confirming the sale shall be registered in
the registry of deeds.
If no right of redemption exists
• the certificate of title in the name of the mortgagor shall be cancelled and;

• a new one issued in the name of the purchaser

Where a right of redemption exists

• the certificate of title in the name of the mortgagor shall not be cancelled

• the certificate of sale and the order confirming the sale shall be registered

• a brief memorandum made by the registrar of deeds upon the certificate of title shall be registered

In the event the property is redeemed

• the deed of redemption shall be registered with the registry of deeds

• a brief memorandum thereof shall be made by the registrar of deeds on said certificate
of title

If the property is not redeemed

-the final deed of sale executed by the sheriff in favor of the purchaser at the foreclosure sale shall be
registered with the registry of deeds; whereupon the certificate of title in the name of the mortgagor shall be
cancelled and a new one issued in the name of the purchaser. (n)

Section 8. Applicability of other provisions. — The provisions of sections 31, 32 and 34 of Rule 39 shall be
applicable to the judicial foreclosure of real estate mortgages under this Rule insofar as the former are not
inconsistent with or may serve to supplement the provisions of the latter. (8a)

RULE 69
 PARTITION

Partitiion, defined

Partition is a division between two or more persons or real or personal property which they own as co-
partners, joint tenants or tenants in common effected by the setting apart of such interest so that they may enjoy
it in severality or by a sale of the whole and awarding to each of his share of the proceeds.

Purpose of partition

To separate, divide and assign a thing held in common to those whom it may belong.

Note: An action for partition does not prescribe, as long as the co-ownership still exist, and it will lie at
anytime. (Bicarme vs. CA, et al. G.R. No. L-51914, June 6,1990.186 SCRA 294).

Kinds of partition

• Judicial partition –Rule 69

• Extra judicial Partition- no court intervention

Modes of Partition

• Voluntary if by act of the co-owners

• Compulsory if by judicial proceedings.
(Africa vs, Africa, 42 Phil. 902)

Parties

All co-owners are indispensable parties

Non- inclusion of a Co- owner

• Before Judgment- not a ground for motion to dismiss; remedy is to file a motion to include the party.
• After Judgment–Judgment is void because co wners are indispensable parties.

Procedure in Partition

FIRST STAGE: Determination of Ownership

• Filing of complaint after payment of docket and other lawful fee.

• Filing of answer and other pleading
• Court issue order of partition.

SECOND STAGE: Actual physical partition

If parties can agree –

• Preparation of instrument of partition;
• Court issue order of partition.

If parties cannot agree –

• Court appoints at least three (3) commissioners;
• Commissioners take oath of office;
 • Commissioners receive evidence from parties, conduct ocular inspection;
• Submission of Commissioners report to the Court;
• The Clerk of Court shall serve copies of the report to parties;
• Filing of objections on the Commissioner’ report within (10) days from service of the report;
• Court issue order disposing Commissioners’ report, recommit to the Commissioners, set
aside the report or appoint new commissioners, accept the past report and reject part of it.
(Sec. 6 & 7, Rue 69)
RULE 70
FORCIBLE ENTRY AND UNLAWFUL DETAINER

Forcible Entry, defined

Forcible Entry is a special civil action to recover material or physical possession of real property when the
plaintiff’s deprivation of possession to his real property is through force, intimidation, strategy, threat or stealth
(FISTS). It is founded upon illegal occupation from the very beginning. [Example- Squatting]

Action for Unlawful Detainer, defined

Unlawful detainer is a special civil action to recover material or physical possession of real property from
a person unlawfully detaining the same as tenant, or other person. It is founded on unlawful detention by a
person who originally acquired possession of the real property lawfully. (Medel vs. Militante, 41 Phil. 44).

Three kinds actions for the recovery of possession of real property:

• Accioninterdictal, or an ejectment proceeding which may be either that for forcible entry (detentacion)
or unlawful detainer (desahucio), which is a summary action for the recovery of physical possession
where the dispossession has not lasted for more than one year, and should be brought in the proper
inferior court.

• Accionpubliciana or the plenary action for the recovery of the real right of possession, which should be
brought in the proper Regional Trial Court when the dispossession has lasted for more than one year,
(VictorianoEncarnacion vs. Nieves Amigo),and

• Action reinvindicatoria which is an action for the recovery of ownership which must be brought in the
proper Regional Trial Court.

Kinds of Ejectment Case

• Action of Forcible Entry

• Action for Unlawful Detainer

Note:

• Both actions must be brought within one (1) year in the city or municipality where the property is
located (Refugia vs. CA, July 23, 1992) within one (1) year from the time possession became
unlawful. Example: Expiration of one year (1) year lease contract. (Benitez vs. CA, Jan 16,1977):
• The issue involved is material or physical possession or de facto and not juridical possession or de
jure. (Refugia vs. CA, Supra).
Note: Any one of the co – owners may bring an action in ejectment. (Sps. Mendoza vs. Coronel).

Issue to be determined

In unlawful detainer and forcible entry cases, the only issue to be determined is who between the
contending parties has better possession of the contested property. (A. Bejar vs. Caluag, supra)

It is only where there has been forcible entry that as a matter of public policy the right to physical
possession should be immediately set at rest in favor of the prior possession regardless of the fact that the other
party might ultimately be found to have superior claim to the premises involved thereby to discourage any
attempt to recover possession thru force,strategy or stealth and without resorting to the courts. (Victoria
Fernando vs. SpsLim )

Other Provisional Remedies Available

• Writ of preliminary Injunction – to prevent the defendant from committing further acts of disposition
against plaintiff.
• Writ of Preliminary Mandatory Injunction – to restore the plaintiff in his possession, to be filed within ten
(10) days from filing of complaint, the court shall decide the motion within 30 days. (Sec. 10, Rule 70).

Jurisdiction

Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Courts shall have exclusive
original jurisdiction over cases of forcible entry and unlawful detainer.

Inferior courts have jurisdiction to resolve the question of ownership raised as an incident in an
ejectment case where a determination thereof is necessary for a proper and complete adjudication of the issue of
possession. (SpsRefugia vs. CA).

Note: A pending civil action involving ownership of the same property does not justify the suspension of
the ejectment proceedings. (Sps. Barnachea vs. CA).

Absence of Title over the disputed property will not divest the Courts of jurisdiction to resolve the issue
of possession. (Pajuyo vs. Ca and Guevarra).

Rule on Execution of Judgment In Ejectment Cases

General Rule: After court (MTC) rendered judgment, execution may issue immediately.

Exception: Execution may not issue if the defendant –

• Perfected an appeal;
• Put up supersedeasbond to stay execution; and
• Deposits rental due during the pendency of appeal. (Aznar Bros. Realty Co. vs. CA, March 7, 2000 and
Chua, et al vs. CA, et al, Feb.24, 1998).

Distinction between

FORCIBLE ENTRY UNLAWFUL DETAINER

• Possession of the defendant over the • Possession of the defendant is initially
land or building is unlawful from the very lawful but it becomes unlawful by reason
 beginning thru FISTS.
• Formal demand to vacate is not required.
• Plaintiff must prove that he was in prior
physical possession of the premises until
he was deprived of the possession by the
defendant; (Javelosa vs. CA, Dec.
10,1996)
• The one (1) year period is generally
counted from the date of actual entry on
the land.
of termination of his right to the
possession.
• Formal demand is required.
3.Plaintiff need not have prior physical possession.
(Benitez vs. CA, Jan. 16, 1977).
4. The one (1) year period is counted from the
last demand. (Caniza,et al vs. CA, Feb. 27,1997
and Munoz, et al vs. CA, et al, Sept. 23,1992).

Note: All cases of forcible entry and unlawful detainer are governed by the 1991 Revised Rules on Summary
Proceedings.

Contempt is a disregard of or disobedience to the rules or orders of a judicial body, or an interruption of its
proceedings by disorderly behavior or insolent language, in its presence or so near thereto as to disturb the
proceedings or to impair the respect due to such body.

Contempt of court is disobedience to the court by acting in opposition to its authority, justice and dignity. It
signifies not only a willful disregard or disobedience of the court’s orders but al so conduct tending to bring the
authority of the court and the administration of law into disrepute or, in some manner to impede the due
administration of justice.
The reason for the power to punish for contempt is that respect of the courts guarantees the stability of their
institution. Without such guarantee, said institution would be resting on shaky foundation.
I is inherent in all courts,; its existence is essential to the preservation of order in judicial proceedings, orders and
mandates of the courts, and consequently, to the due administration of justice.
Contempt proceeding has dual function:
• Vindication of public interest by punishment of contemptuous conduct; and

• 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

Kinds of contempt, purpose and nature of each:

• Civil or criminal, depending on the nature and effect of the contemptuous act

• Direct or indirect, according to the manner of commission

Civil contempt Criminal contempt

It is the failure to do
something ordered to be
done by a court or a
judge for the benefit of
the opposing party
therein and is therefore
an offense against the
It is a conduct directed against
the authority and dignity of
the court or a judge acting
judicially; it is an obstructing
the administration of justice
which tends to bring the court
into disrepute or disrespect
party in whose behalf
the violated order was
made
The purpose is to The purpose is to punish, to
compensate for the vindicate the authority of the
benefit of a party court and protect its outraged
dignity
The rules of procedure Should be conducted in
governing contempt accordance with the principle
proceedings or criminal and rules applicable to
prosecutions ordinarily criminal cases, insofar as such
are inapplicable to civil procedure is consistent with
contempt proceedings the summary nature of
contempt proceedings
Direct contempt
In general is committed in the presence of or so near
the court or judge performing the judicial function as to
obstruct or interrupt the proceedings before it
Acts constituting direct contempt are
• Misbehavior in the presence of or so near
the court as to obstruct or interrupt the
proceedings before it
• Disrespect toward the court
• Offensive personalities towards others
• Refusal to be sworn as witness or to
answer as a witness
• Refusal to subscribe an affidavit or
deposition when lawfully required to do so
• Acts of party or a counsel which constitute
willful and deliberate forum shopping
• Unfounded accusations or allegations or
words in a pleading tending to embarrass
the court or to bring it into disrepute
Indirect contempt
It is not committed in the presence of the court
but done at a distance which tends to belittle,
degrade, obstruct or embarrass the court and
justice
Acts constituting indirect contempt area after a
charge in writing has been filed, and an
opportunity given to the respondent to comment
thereon within such period as may be fixed by the
court and to be heard by himself or counsel, a
person guilty of any of the following acts may be
punished for indirect contempt:
• Misbehavior towards an officer of a
court in the performance of his official
duties or in his official transactions
• Disobedience of or resistance to a lawful
writ, process, order, or judgment of a
court, including the act of a person who,
after being dispossess 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 reason 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
• Any abuse of or any unlawful
 interference with the processes or
proceedings of a court not constituting
direct contempt under section 1 of rule
71
• Any improper conduct tending, directly
or indirectly, to impede obstruct, or
degrade the administration of justice
• Assuming to be an attorney or an officer
of a court, and acting as such without
authority
• Failure to obey a subpoena duly served
• The rescue of attempted rescue, of a
person or property in the custody of an
officer of the court by virtue of an order
or process of a court held by him
• Failure by counsel to inform the court of
the death of his client constitutes
indirect contempt within the purviews of
Sec. 3 of this rule since it constitutes
improper conduct tending to impede the
administration of justice

Remedy against contempt, penalty

The punishment for indirect contempt depends upon the level of the court against which the act was committed:

• Where the act was committed against an RTC or a court of equivalent or higher rank, he may be
punished by a fine not exceeding 30,000 or imprisonment not exceeding 6 months, or both

• Where the act was committed against a lower court, he may be punished by a fine not exceeding 5,000
or imprisonment not exceeding 1 month, or both. Aside from the applicable penalties, if the contempt
consists in the violation of a writ of injunction, TRO 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

• 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

The person adjudged in indirect contempt may appeal from the judgment or final order of the court in the
same manner as in criminal cases. The appeal will not however have an effect of suspending the judgment if
the person adjudged in contempt does not file a bong in an amount fixed by the court from which the appeal
 is taken. This bond is conditions upon his performance of the judgment or final order if the appeal is decided
against.
How contempt proceeding are commenced
Proceedings for indirect contempt may be initiated motu proprio by the court against which the contempt
was committed by an order or any other formal charge requiring the respondent to show cause why he
should not be punished for contempt
In all other cases, charges for indirect contempt shall be commence by a verified petition with supporting
particular and certified true copies of documents or paper involved therein, and upon full compliance with
the requirements for filing initiatory compliance with the requirements for filing initiatory pleadings for civil
actions in the court concerned, 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
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 the order of the court concerned until he performs it

• Indefinite incarceration may be resorted to where the attendant circumstance are such that the non-
compliance of the authority of the court which has then no other recourse but to use its coercive power

Cases:

• BPI vs CALANZA G.R. no. 180699

Finally, Sheriff Paredes, in serving the notice of sale, was only performing his duty pursuant to the writ of
execution. No matter how erroneous the writ was, it was issued by LA Calanza and was addressed to him
as the sheriff, commanding him to collect from petitioner the amount due Enriquez and Sia. In the event
he failed to collect the amount, he was authorized to cause the satisfaction of the same on the movable
and immovable properties of petitioner not exempt from execution. 29 Thus, any act performed by Sheriff
Paredes pursuant to the aforesaid writ cannot be considered contemptuous. At the time of the service of
the notice of sale, there was no order from any court or tribunal restraining him from enforcing the writ.
It was ministerial duty for him to implement it.
To be considered contemptuous, an act must be clearly contrary to or prohibited by the order of the
court or tribunal. A person cannot, for disobedience, be punished for contempt unless the act which is
forbidden or required to be done is clearly and exactly defined, so that there can be no reasonable doubt
or uncertainty as to what specific act or thing is forbidden or required
• PEOPLE OF THE PHILIPPINES VS GODOY G.R. NOS. 115908-09

Whether or not the Same Contemptuous Conduct of a Member of the Bar can be the Subject of both a
Contempt Proceeding and an Administrative Disciplinary Action
The basic rule here is that the power to punish for contempt and the power to disbar are separate and
distinct, and that the exercise of one does not exclude the exercise of the other. A contempt proceeding
for misbehavior in court is designed to vindicate the authority of the court; on the other hand, the object
of a disciplinary proceeding is to deal with the fitness of the court's officer to continue in that office, to
preserve and protect the court and the public from the official ministrations of persons unfit or
unworthy to hold such office. The principal purpose of the exercise of the power to cite for contempt is
to safeguard the functions of the court and should thus be used sparingly on a preservative and not, on
the vindictive principle. The principal purpose of the exercise of disciplinary authority by the Supreme
Court is to assure respect for orders of such court by attorneys who, as much as judges, are responsible
for the orderly administration of justice.
Moreover, it has been held that the imposition a fine as a penalty in a contempt proceeding is not
considered res judicata to a subsequent charge for unprofessional conduct. In the same manner an
 attorney's conviction for contempt was not collaterally estopped by reason of a subsequent disbarment
proceeding in which the court found in his favor on essentially the same facts leading to conviction. It
has likewise been the rule that a notice to a lawyer to show cause why he should not be punished for
contempt cannot be considered as a notice to show cause why he should not be suspended from the
practice of law, considering that they have distinct objects and for each of them a different procedure is
established. Contempt of court is governed by the procedures laid down under Rule 71 of the Rules of
Court, whereas disciplinary actions in the Practice of law are governed by file 138 and 139 thereof.
Although apparently different in legal bases, the authority to punish for contempt and to discipline
lawyers are both inherent in the Supreme Court and are equally incidents of the court's basic power to
oversee the proper administration of justice and the orderly discharge of judicial functions. As was
succinctly expounded in Zaldivar vs. Sandiganbayan, et al.: 82
There are, in other words, two (2) related powers which come into play in cases like that before us here:
the Court's inherent power to discipline attorneys and the contempt power. The disciplinary authority of
the Court over members of the Bar is broader than the power to punish for contempt. Contempt of court
may be committed both by lawyers and non-lawyers, both in and out of court. Frequently, where the
contemnor is a lawyer, the contumacious conduct also constitutes professional misconduct which calls
into play the disciplinary authority of the Supreme Court. Where the respondent is a lawyer, however,
the Supreme Court's disciplinary authority over lawyers may come into play whether or not the
misconduct with which the respondent is charged also constitutes contempt of court. The power to
punish for contempt of court does not exhaust the scope of disciplinary authority of the Court over
lawyers. The disciplinary authority of the Court over members of the Bar is but corollary to the court's
exclusive power of admission to the bar. A lawyer is not merely a professional but also an officer of the
court and as such, he is called upon to share in the task and responsibilities of dispensing justice and
resolving disputes in society. Any act on his part which visibly tends to obstruct, pervert, or impede and
degrade the administration of justice constitutes both professional misconduct calling for the exercise of
disciplinary action against him, and contumacious conduct warranting application of the contempt
power.
• In Re: Conviction of Judge Adoracion G. Angeles, RTC, Br. 121, Caloocan City in Crim. Cases Q-97-69655
to 56 for Child Abuse
Contempt of court is a defiance of the authority, justice or dignity of the court, such conduct as tends to
bring the authority and administration of the law into disrespect or to interfere with or prejudice parties,
litigant or their witnesses during litigation.
There are two kinds of contempt punishable by law: direct contempt and indirect contempt. Direct
contempt is committed when a person is guilty of misbehavior in the presence of or so near a court as to
obstruct or interrupt the proceedings before the same, including disrespect toward the court, offensive
personalities toward others, or refusal to be sworn or to answer as a witness, or to subscribe an affidavit
or deposition when lawfully required to do so. Indirect contempt or constructive contempt is that which
is committed out of the presence of the court. Any improper conduct tending, directly or indirectly, to
impede, obstruct, or degrade the administration of justice would constitute indirect contempt. 5
A pleading containing derogatory, offensive or malicious statements submitted before a court or judge
where the proceedings are pending constitutes direct contempt, because it is equivalent to misbehavior
committed in the presence of or so near a court or judge as to interrupt the administration of justice. 6 In
this regard, respondent committed a serious blunder when he cited complainant for indirect contempt.
Compounding this blunder, even if we assume that complainant's unfounded and contumacious
statements in his pleadings translate to indirect contempt as respondent mistakenly believed,
respondent failed to follow the proper procedure therefor 7 under Section 4 of Rule 71 of the Revised
Rules of Civil Procedure, which particularly provides:
 SEC. 4. How proceedings commenced. — Proceedings for indirect contempt may be initiated motu
proprio by the court against which the contempt was committed by an order or any other formal charge
requiring the respondent to show cause why he should not be punished for contempt.
In all other cases, charges for indirect contempt shall be commenced by a verified petition with
supporting particulars and certified true copies of documents or papers involved therein, and upon full
compliance with the requirements for filing initiatory pleadings for civil actions in the court concerned. If
the contempt charges arose out of or are related to a principal action pending in the court, the petition
for contempt shall allege that fact but said petition shall be docketed, heard and decided separately,
unless the court in its discretion orders the consolidation of the contempt charge and the principal action
for joint hearing and decision.
As correctly observed by the OCA, there was no order issued by respondent for the charge of indirect
contempt against complainant to be docketed separately; neither was there an order that the said
charge be consolidated with the principal action. In sum, respondent simply incorporated or integrated
the proceedings for indirect contempt with the principal case. This fortifies the OCA’s finding that
respondent is grossly ignorant of basic procedure. 8 When the law is so elementary, such as the
provisions of the Rules of Court, not to know, or to act as if one does not know the same, constitutes
gross ignorance of the law.
It is well settled that the power to punish a person in contempt of court is inherent in all courts to
preserve order in judicial proceedings and to uphold the orderly administration of justice. However,
judges are enjoined to exercise the power judiciously and sparingly, with utmost restraint, and with the
end in view of utilizing the same for correction and preservation of the dignity of the court, and not for
retaliation or vindictiveness.11 It bears stressing that the power to declare a person in contempt of court
must be exercised on the preservative, not the vindictive, principle; and on the corrective, not the
retaliatory, idea of punishment.

• In the matter of the contempt orders against lt. Gen. Jose m. Calimlim and atty. Domingo a. doctor
G.R. NO. 141668
Proper Procedure for Indirect Contempt
• First, there must be an order requiring the respondent to show cause why he should not be
cited for contempt.
• Second, the respondent must be given the opportunity to comment on the charge against him.
• Third, there must be a hearing and the court must investigate the charge and consider
respondent’s answer. Finally, only if found guilty will respondent be punished accordingly.
In this case, Judge Cruz-Avisado failed to observe the proper procedure in the exercise of the power to punish for
indirect contempt. First, there can be no indirect contempt absent any prior written charge. In the 19 November
1999 Order, Judge Cruz-Avisado only ordered petitioners to explain their failure to bring Pitao before the RTC for
his scheduled arraignment. The 19 November 1999 Order did not yet amount to a show-cause order directing
petitioners to explain why they should not be cited for indirect contempt. Absent an order specifically requiring
petitioners to show cause why they should not be punished for contempt, Judge Cruz-Avisado had no authority to
punish petitioners.
Second, if the answer to the contempt charge is satisfactory, the contempt proceedings end. Even if we consider
the 19 November 1999 Order sufficient to charge petitioners with indirect contempt, petitioners still could not be
punished for contempt because Judge Cruz-Avisado found petitioners’ explanation satisfactory. Only in cases of
clear and contumacious refusal to obey should the power to punish for contempt be exercised. Absent any finding
that petitioners contumaciously refused to comply with the orders of the RTC, Judge Cruz-Avisado had no reason
to punish petitioners for indirect contempt.
Lastly, there must be a hearing conducted on the contempt charge. In this case, no hearing was ever conducted.
After receiving petitioners’ Compliance, Judge Cruz-Avisado immediately issued the 11 December 1999 Order.
Petitioners were not afforded full and real opportunity to be heard. Since a contempt charge partakes of the
nature of a criminal prosecution and follows the proceedings similar to criminal prosecution, judges must extend
to the alleged contemnor the same rights accorded to an accused. Judge Cruz-Avisado should have given
petitioners their day in court and considered the testimony and evidence petitioners might offer.
Proper Penalty for Indirect Contempt
Section 7, Rule 71 of the Rules of Court provides the penalty for indirect contempt. Section 7 of Rule 71 reads:
SEC. 7. Punishment for indirect contempt. - If the respondent is adjudged guilty of indirect contempt
committed against a Regional Trial Court or a court of equivalent or higher rank, he may be punished by
a fine not exceeding thirty thousand pesos or imprisonment not exceeding six (6) months, or both. x x x
Indeed, the Rules do not provide that reprimand and admonition may be imposed on one found guilty of indirect
contempt.
However, in Racines v. Judge Morallos, the Court, after finding Jaime Racines (Racines) guilty of indirect contempt,
merely reprimanded Racines because "he is not learned in the intricacies of law." Therefore, the courts may
impose a penalty less than what is provided under the Rules if the circumstances merit such.
In this case, if petitioners were found guilty of indirect contempt, Judge Cruz-Avisado may penalize them with
reprimand. However, since the proper procedure for indirect contempt was not followed, Judge Cruz-Avisado’s
Orders to reprimand Atty. Doctor, Jr. had no legal basis.
On the other hand, admonition is not a penalty but merely a warning. Judge Cruz-Avisado may admonish Lt. Gen.
Calimlim for the failure to comply with the RTC’s 4 November 1999 Order. Judge Cruz-Avisado may make such
admonition even in the absence of contempt proceedings.
Judges are reminded that the power to punish for contempt should be used sparingly and only in cases of clear
and contumacious refusal to obey should the power be exercised. The power to punish for contempt must also be
used with due regard to the provisions of the law and the constitutional rights of the individual.