UST G N 2011: 2. Ordinary Civil Actions Versus Special Civil Actions

UST GOLDEN NOTES 2011
3. If property is concealed, make a public rules that are applicable only to specific special civil
demand for the delivery of the property actions (sec. 3) The fact that an action is subject to
4. If property is not delivered, sheriff must special rules other than those applicable to ordinary
cause the building or enclosure to be civil actions is what makes a civil action special.
broken and take property and keep such
in his custody 2. ORDINARY CIVIL ACTIONS VERSUS SPECIAL CIVIL
5. Deliver the property to the party entitled ACTIONS
to such upon receiving his fees.
Q: Distinguish ordinary civil action from special
Q: When may a property subject of replevin be civil action.
returned?
A:
A: Ordinary Civil Action Special Civil Action
1. Filing of a redelivery bond double the Must be based on a Cause of action not
value of the property cause of action – act necessarily needed
2. Plaintiff’s bond is insufficient or defective or omission in Examples:
violation of the rights 1. Declaratory relief –
and is not replaced with a proper bond
of another action is brought before
3. Property is not delivered to the plaintiff
there is any breach
for any reason
2. Interpleader – plaintiff
files a complaint even if
Q: What are the remedies of a third person whose he has not sustained
property is taken by virtue of a replevin? actual transgression of
his rights
A: Venue is determined Not necessarily true as in quo
1. Third party shall file and serve affidavit either by the warranto, the venue is where
upon sheriff and applicant stating his residences of the the Supreme Court or Court
entitlement to possession parties where the of Appeals if the petition is
2. Sheriff shall return the property to third action is personal or commenced in any of these
person unless applicant files a bond (same by the location of the courts without taking into
amount as the value of the property) property where the consideration the residences
approved by court to indemnify the third action is real of the parties
person May be filed in Some actions may be filed
3. Claim for damages upon said bond must Municipal Trial Court only in the Municipal Trial
be filed within 120days from date of filing or the Regional Trial Court, some cannot be
of the bond Court depending commenced therein
upon the
jurisdictional amount
Q: Is the Rule on Prior or Contemporaneous
or nature of the
Service of Summons observed in Replevin? action
May be commenced May be commenced by the
A: Yes. Although the writ of replevin may be issued only by the filing of filing of a complaint or
ex-parte, it cannot be implemented or enforced if complaint petition
not preceded or accompanied by a service of
summons. Q: What are the special civil actions under the
Rules of Court?
S. SPECIAL CIVIL ACTIONS
A:
1. NATURE OF SPECIAL CIVIL ACTIONS 1. Interpleader (Rule 62)
2. Declaratory relief and similar remedies
Q: What are Special Civil Actions? (Rule 63)
3. Review of judgments and final orders of
A: Since a civil action in general is one by which a the COMELEC and the Commission on
party sues another for the enforcement or Audit (Rule 64)
protection of a right, or the prevention or redress of 4. Certiorari, prohibition and mandamus
a wrong (Sec. 3 [a], Rule 1, Rules of Court), a special (Rule 65)
civil action is generally brought or filed for the same 5. Quo warranto(Rule 66)
purpose. 6. Expropriation (Rule 67)
7. Foreclosure of real estate mortgage(Rule
Note: although both types of actions are governed by 68)
the rules for ordinary civil actions, there are certain
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REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
CIVIL PROCEDURE
8. Partition (Rule 69) Declaratory Relief

9. Forcible entry and unlawful detainer RTC
(Rule 70) Note: It would be error to
10. Contempt (Rule 71) file the petition with the SC
which has no original Where the petitioner or
jurisdiction to entertain a the respondent resides
Q: What are the three special civil actions which petition for declaratory relief
are within the jurisdiction of inferior courts? (Tano v. Socrates, G.R. No.
110249, Aug. 14, 1997)
A: Expropriation
1. Interpleader, provided that the amount is Land: where the
RTC (incapable of
within the jurisdiction of such inferior property is located
pecuniary estimation)
court
(Barangay San Roque v.
2. Ejectment suits Personal property: the
Heirs of Pastor, G.R. No.
3. Contempt place where the plaintiff
138896, June 20, 2000)
or defendant resides
Q: What special civil actions are initiated by Certiorari, Prohibition, Mandamus
complaints and initiated by petitions? RTC: if it is directed
against a municipal trial
A: court, a corporation, a
1. by complaint board, an officer or a
person.
a. interpleader
b. expropriation
CA or with the SB,
c. foreclosure of real estate mortgage whether or not the
d. partition same is in aid of the
e. forcible entry and unlawful detainer court’s appellate
2. by petition jurisdiction.
a. declaratory relief
b. review of judgments and final If the petition involves
RTC, CA, SC,
orders or resolutions of the an act or an omission of
Sandiganbayan COMELEC
COMELEC / COA a quasi-judicial agency,
in aid of its appellate
c. Certiorari unless otherwise
jurisdiction (A.M. No. 07-
d. Prohibition provided by law or the
7-12-SC)
e. Mandamus Rules, the petition shall
f. Quo Warranto be filed with and be
g. Contempt cognizable only by the
Court of Appeals.
3. JURISDICTION AND VENUE
In election cases
involving an act or
Q: Who has jurisdiction over special civil actions
omission of MTC /RTC,
and where should it be filed? it shall be filed
exclusively with the
A: COMELEC, in aid of its
Jurisdiction Venue appellate jurisdiction
Interpleader (Sec. 4, Rule 65)
MTC – where the value of Quo Warranto
the claim or the personal Where the plaintiff or
With the SC, CA, or in
property does not exceed any of the principal
the RTC exercising
P300,000 or P400,000 in plaintiff resides or where
jurisdiction over the
Metro Manila or where the the defendant or any of territorial area where
value of the real property the principal defendants the respondent or any
does not exceed P20,000 resides
of the respondents
or P50,000 in Metro RTC, CA, SC, SB in aid of its resides. When the
Manila. Note: The venue of special
civil actions is governed by appellate jurisdiction Solicitor General
the general rules on commences the action,
RTC – if the value exceeds it may be brought in a
venue, except as
the above amounts or if RTC in the City of
otherwise indicated in the
the subject matter is particular rule for said Manila, in the CA, or in
exclusively within the special civil action. the SC (Sec. 7, Rule 66)
jurisdiction of the RTC
131
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
Note: Subject to the

principle of Hierarchy of Q: Distinguish between interpleader and
Courts intervention.
Contempt
Where the charge for A:
indirect contempt has
INTERPLEADER INTERVENTION
been committed against
Special civil action, Not an original action but
RTC or a court of
independent and mere ancillary and
equivalent or higher
original depends upon the
rank, or against an
existence of a precious
officer appointed by it,
pending action.
the charge may be filed
Commenced by the Commenced by a motion
with such court.
filing of a complaint. to intervention filed in a
pending case attaching
Where such contempt
thereto the pleading- in-
MTC, RTC, CA, SC has been committed
intervention.
against a lower court,
the charge may be filed Filed by a person who Filed by a person who has a
with the RTC of the has no interest in the legal interest in any of the
place in which the lower subject matter of the following:
court is sitting; but the action or if he has an a. The subject matter of
proceedings may also interest, the same is the litigation;
not disputed by the b. The success of either
be instituted in such
lower court subject to claimants. of the parties; or
appeal to the RTC of c. The success of both of
such place (Sec. 5, Rule the parties; or
70) d. He may be adversely
affected by the
Forcible Entry
disposition or
Metropolitan Trial Courts;
Where the property is distribution of
covered by Rule on
located property in the
Summary Procedure
judgment.
Unlawful Detainer
The defendants are If a complaint- in-
Metropolitan Trial Courts;
Where the property is brought into the intervention is filed, the
covered by Rule on
located action only because defendants are already
Summary Procedure.
they are impleaded as parties to an existing suit
Partition
such in the complaint. not because of the
1. Real property –
intervention but because
where the property
of the original suit.
RTC is located
(incapable of pecuniary 2. Personal property
estimation) – the place where a. REQUISITES FOR INTERPLEADER
the plaintiff or
defendant resides Q: What are the requisites in order that the
(Sec. 13, Rule 69) remedy of interpleader may be availed of?
Foreclure of REM
RTC (incapable of A:
pecuniary estimation) 1. Plaintiff claims no interest in the subject
Where the land or any
(Barangay San Roque v. matter or his claim is not disputed
part thereof is located
Heirs of Pastor, G.R. No. 2. Two or more claimants asserting
138896, June 20, 2000) conflicting claims
3. The subject matter must be one and the
4. INTERPLEADER same
4. Person in possession or obliged files a
Q: What is an interpleader? complaint.
5. The parties to be interpleaded must make
A: It is a special civil action filed by a person against effective claims.
whom two conflicting claims are made upon the 6. Payment of docket and other lawful fees.
same subject matter and over which he claims no
interest, to compel the claimants to interplead and Note: Upon filing of complaint, the court shall issue an
to litigate their conflicting claims among order requiring conflicting claimants to interplead.
themselves. (Sec. 1, Rule 62). (Sec. 2, Rule 62)
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REMEDIAL LAW TEAM:
CIVIL PROCEDURE
b. WHEN TO FILE 2. Cross-claim

3. Third-party complaints
Q: When must an action for interpleader be filed? 4. Responsive pleadings
A: Within a reasonable time after a dispute has Q: May an interpleader be availed of the resolve
arisen without waiting to be sued by claimants and breach of undertaking?
before such is barred from laches. (Feria, Civil
Procedure Annotated, Vol. II, p. 425, 2001 ed.) A: No. Such issue should be resolved in an ordinary
civil action for specific performance or other relief
Q: Which court has jurisdiction over an (Beltran v. PHHC, G.R. No. L-25138, August 28,
interpleader? 1969)
A: Inferior courts have jurisdiction so long as the 5. DECLARATORY RELIEF AND SIMILAR REMEDIES
amount involved is within their jurisdiction
Q: What is a declaratory relief?
Q: Should there be service of summons in
interpleader? A: A special civil action brought by a person
interested under a deed, will, contract or other
A: Summons and copies of the complaint and order written instrument, or whose rights are affected by
shall be served upon conflicting claimants. (Sec. 3, a statute, executive order or regulation, ordinance
Rule 62) or any other governmental regulation, before
breach or violation thereof, asking the court to
Note: Claimants shall have 15days to file an answer determine any question of construction or validity
and such answer must be served upon the plaintiff and arising, and for a declaration of his rights or duties
co-defendants. (Sec. 5, Rule 62). thereunder.
Q: What is the effect of failure of a claimant to file Q: What is the purpose of an action for declaratory
an Answer? relief?
A: Upon motion, the court may declare such

claimant in default and render a judgment barring A:
him from any claim in respect to the subject matter. 1. To determine any question of
(Sec. 5, Rule 62) construction or validity or
constitutionality of an instrument,
Q: May a motion to dismiss be filed? ordinance or regulation
2. Declaration of rights and duties
A: Yes. It may be filed by any of the claimant within thereunder
the time for filing an answer. (Sec. 4, Rule 62)
Q: Distinguish declaratory judgment from ordinary
Q: What are the grounds for filing a motion to judgment.
dismiss?
A:
A: (Sec. 4, Rule 62) DECLARATORY ORDINARY JUDGMENT
1. Impropriety of the interpleader action JUDGMENT
2. Grounds specified under Rule 16 of the Declaratory judgment Ordinary judgment
Rules of Court stands by itself and no involves executor or
executory process coercive relief
Q: What is the effect of filing a motion to dismiss? follows
Intended to determine Intended to remedy or
A: Period to file an answer is tolled and if the any question of compensate injuries
motion is denied, the answer may be filed within construction or validity already suffered
the remaining period which shall not be less than prior to breach or
5days from notice of denial. (Sec. 4, Rule 62) violation
Q: What are the other allowed pleadings in an a. WHO MAY FILE THE ACTION
interpleader?
Q: Who may file an action for declaratory relief?
A: (Sec. 5, Rule 62)
1. Counterclaim A: Any person:
133
1. Interested under a deed, will, A: Court may motupropio or upon motion refuse
contract or other written instrument based on the following grounds:
2. Whose rights are affected by a 1. A decision will not terminate the
statute, executive order or uncertainty or controversy which gave
regulation, ordinance or any other rise to the action
governmental regulation 2. Declaration or construction is not
necessary and proper under the
b. REQUISITES OF ACTION FOR DECLARATORY circumstances
RELIEF
Note: Discretion to refuse does not extend to actions
Q: What are the requisites of an action for for reformation of an instrument quiet title or remove
declaratory relief? clouds or to consolidated ownership in a pacto de retro
sale. (Regalado, Remedial Law Compendium, Vol. I, p.
A: 769, 2005 ed.)
1. Filing of Petition before there is a breach
or violation Q: Can the court exercise discretion in application
2. Subject matter is a deed, will, contract, for declaratory relief?
written instrument, statute, executive
order, regulation or ordinance A:
1. In declaratory relief, the court is given
Note: The enumeration of the subject the discretion to act or not to act on the
matter is exclusive, hence, an action not petition. It may therefore choose not to
based on any of the enumerated subject construe the instrument sought to be
matters cannot be the proper subject of construed or could refrain from
declaratory relief. (Riano, Civil Procedure: A declaring the rights of the petitioner
Restatement for the Bar, p. 613, 2009 ed.) under the deed or the law. A refusal of
3. There is justiciable controversy the court to declare rights or construe
4. Issue is ripe for judicial determination an instrument is actually the functional
(Republic v. Orbecido III, G.R. No. 154380, equivalent of the dismissal of the
October 5, 2005), i.e. litigation is petition.
imminent and inevitable (Tolentino v. 2. On the other hand, the court does not
Board of Accountancy, G.R. No. L-3062, have the discretion to refuse to act with
September 28, 1951) respect to actions described as similar
5. Adequate relief is not available through remedies. Thus, in an action for
other means or other forms of action or reformation of an instrument, to quiet
proceedings (Ollada v. Central Bank, G.R. or to consolidate ownership, the court
No. L-11357, May 31, 1962) cannot refuse to render a judgment (Sec.
6. The controversy is between persons 5, Rule 63).
whose interests are adverse;
d. CONVERSION TO ORDINARY ACTION
Q: To whom shall notices be given?
Q: When may an action for declaratory relief be
A: converted into an ordinary action?
1. Solicitor general if subject matter
involves: A: After filing of petition for declaratory relief but
a. Validity of statute, executive order, before the final termination of the case or rendition
regulation or governmental of judgment, a breach or violation of an instrument,
regulation statute, executive order, regulation or ordinance
b. Constitutionality of local government takes place. (Sec. 6, Rule 63)
ordinance
2. Prosecutor or attorney of the local Q: Distinguish Ordinary Civil Action from Special
government unit if subject matter Civil Action for Declaratory Relief.
involves validity of local government unit
A:
c. WHEN COURT MAY REFUSE TO MAKE JUDICIAL 1. Ordinary civil action – plaintiff alleges that his
DECLARATION right has been violated by the defendant; judgment
rendered is coercive in character; a writ of
Q: When may a court refuse to make a judicial execution may be executed against the defeated
declaration? party.
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REMEDIAL LAW TEAM:
CIVIL PROCEDURE
2. Special civil action of declaratory relief – an

impending violation is sufficient to file a declaratory A: It is not an action brought to reform a contract
relief; no execution may be issued; the court merely but to reform the instrument evidencing the
makes a declaration. contract. It presupposes that there is nothing wrong
with the contract itself because there is a meeting
Q: Is a third-party complaint proper in an action of minds between the parties. The contract is to be
for declaratory relief? reformed because despite the meeting of minds of
the parties as to the object and cause of the
A: No. Because in a third-party complaint, such contract, the instrument which is supposed to
person seeks to obtain contribution, indemnity, embody the agreement of the parties does not
subrogation or other reliefs and a declaratory relief reflect their true agreement by reason of mistake,
is confined merely to the interpretation of the inequitable conduct or accident. The action is
terms of a contract. (Commission of Customs v. brought so the true intention of the parties may be
Cloribel, G.R. No. 21036, June 30, 1977). expressed in the instrument (Art. 1359, CC).
Q: What are the instances wherein a declaratory Q: When may an instrument be reformed?
relief is unavailable?
A: The instrument may be reformed if it does not
A: express the true intention of the parties because of
1. To obtain judicial declaration of lack of skill of the person drafting the instrument
citizenship; (Art. 1363, CC). If the parties agree upon the
2. To establish illegitimate filiation and mortgage or pledge of property, but the instrument
determine hereditary rights; states that the property is sold absolutely or with a
3. The subject of the action is a court right of repurchase, reformation of the instrument
decision; is proper (Art. 1365, CC).
4. Actions to resolve political questions;
5. Those determinative of the issues rather Q: What is the remedy if the consent of a party to
than a construction of definite status, a contract has been procured by fraud, inequitable
rights and relations; conduct, or accident?
6. Terms of assailed ordinances are not
ambiguous or of doubtful meaning; A: Where the consent of a party to a contract has
7. In a petition to seek relief from a moot been procured by fraud, inequitable conduct or
and academic question; accident, and an instrument was executed by the
8. Where the contract or statute on which parties in accordance with the contract, what is
action is based has been breached; defective is the contract itself because of vitiation
9. When the petition is based on the of consent. The remedy is not to bring an action for
happening of a contingent event; reformation of the instrument but to file an action
10. When the petitioner is not the real party for annulment of the contract (Art. 1359, CC).
in interest; and
11. Where the administrative remedies have Note: Reformation of the instrument cannot be
not yet been exhausted. brought to reform any of the following:
1. Simple donation inter vivos wherein no condition
e. PROCEEDINGS CONSIDERED AS SIMILAR is imposed;
REMEDIES 2. Wills; or
3. When the agreement is void (Art. 1666, CC).
Q: What are the similar reliefs referred to under
Rule 63? (2) CONSOLIDATION OF OWNERSHIP
A:
Q: What is the purpose of an action brought to
1. Reformation of an instrument
consolidate ownership?
2. Quiet title to real property or to remove
clouds
3. Consolidation of ownership (Art. 1607, A: The action brought to consolidate ownership is
Civil Code) not for the purpose of consolidating the ownership
of the property in the person of the vendee or
(1) REFORMATION OF AN INSTRUMENT buyer but for the registration of the property. The
lapse of the redemption period without the seller a
Q: What is meant by reformation of instrument? retro exercising his right of redemption,
135
consolidates ownership or title upon the person of A: The plaintiff need not be in possession of the real
the vendee by operation of law. Art. 1607 requires property before he may bring the action as long as
the filing of the petition to consolidate ownership he can show that he has a legal or an equitable title
because the law precludes the registration of the to the property which is the subject matter of the
consolidated title without judicial order (Cruz vs. action (Art. 477, Civil Code).
Leis, 327 SCRA 570).
6. REVIEW OF JUDGMENT AND FINAL ORDERS OR
Note: The concept of consolidation of ownership RESOLUTIONS OF THE COMELEC AND COA
under Art. 1607, Civil Code, has its origin in the
substantive provisions of the law on sales. Under the Q: What is the constitutional basis for the
law, a contract of sale may be extinguished either by application of Rule 65 under Rule 64?
legal redemption (Art. 1619) or conventional
redemption (Art. 1601). Legal redemption (retracto
legal) is a statutory mandated redemption of a A: Sec. 7, Art. IX-A of the Constitution reads, “unless
property previously sold. For instance, a co-owner of a otherwise provided by the Constitution or by law,
property may exercise the right of redemption in case any decision, order or ruling of each commission
the shares of all the other co-owners or any of them may be brought to the Supreme Court on certiorari
are sold to a third person (Art. 1620). The owners of by the aggrieved party within 30 days from receipt
adjoining lands shall have the right of redemption of a copy thereof.” The provision was interpreted
when a piece of rural land with a size of one hectare or by the Supreme Court to refer to certiorari under
less is alienated (Art. 1621). Conventional redemption Rule 65 and not appeal by certiorari under Rule 45
(pacto de retro) sale is one that is not mandated by the (Aratuc vs. COMELEC, 88 SCRA 251; Dario vs. Mison,
statute but one which takes place because of the 176 SCRA 84). To implement the above
stipulation of the parties to the sale. The period of constitutional provision, the SC promulgated Rule
redemption may be fixed by the parties in which case 64.
the period cannot exceed ten (10) years from the date
of the contract. In the absence of any agreement, the
redemption period shall be four (4) years from the Q: What is the mode of review for judgments and
date of the contract (Art. 1606). When the redemption final orders of the COMELEC and COA?
is not made within the period agreed upon, in case the
subject matter of the sale is a real property, Art. 1607 A: The petition may be brought by the aggrieved
provides that the consolidation of ownership in the party to the Supreme Court on Certiorari under
vendee shall not be recorded in the Registry of Rule 65, except otherwise provided.
Property without a judicial order, after the vendor has
been duly heard. Note: Rule 65 applies to the mode of review under
Rule 64.Said mode of review is based on Article IX-A of
(3) QUIETING OF TITLE TO REAL PROPERTY the 1987 Constitution providing that the proper mode
of review is certiorari under Rule 65 to be filed before
the Supreme Court.Under R.A. 7902 the Court of
Q: What is an action for quieting title to real Appeals has jurisdiction over all adjudications of the
property? Civil Service Commission.
A: This action is brought to remove a cloud on title Note: The order to comment under Sec. 6, Rule 64 in
to real property or any interest therein. The action case the Supreme Court finds the petition sufficient in
contemplates a situation where the instrument or a form and substance is equivalent to summons in
record is apparently valid or effective but is in truth ordinary civil action.
and in fact invalid, ineffective, voidable or
unenforceable, and may be prejudicial to said title Q: What is the period for filing certiorari as
to real property. This action is then brought to referred to in Rule 64?
remove a cloud on title to real property or any
interest therein. It may also be brought as a A: The petition for certiorari referred to in Rule 64
preventive remedy to prevent a cloud from being shall be filed within 30 days from notice of the
cast upon title to real property or any interest judgment, final order or resolution of the COMELEC
therein (Art. 476, Civil Code). and the COA sought to be reviewed (Sec. 3, Rule
64).
Q: Is it required that the plaintiff be in the Note: While Rule 64 makes reference to the certiorari
possession of the property before an action is under Rule 65, the period for the filing of the petition
brought? for certiorari assailing the judgment of the COMELEC
and COA is shorter than that provided under Rule 65
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REMEDIAL LAW TEAM:
CIVIL PROCEDURE
Q: When may the court issue an order to aggrieved party may file aggrieved party will have
comment? the petition within the another 60 days within
remaining period, but which to file the petition
A: If the SC finds the petition sufficient, which shall not be less counted from the notice
respondents will be ordered to file a verified than 5 days. of denial.
comment within 10days from notice of such order.
(Sec. 6, Rule 64) b. DISTINCTION IN THE APPLICATION OF RULE 65
TO JUDGMENTS OF THE COMELEC AND COA AND
Q: What are basic requirements for the petition? THE APPLICATION OF RULE 65 TO OTHER
TRIBUNALS, PERSONS AND OFFICERS
A: The following basic requirements must be
complied with: Q: Distinguish the mode of review of judgment,
1. The petition shall be verified and filed in 18 final orders or resolutions of COMELEC and COA
copies; from other tribunals, persons and officers.
2. Accompanied by clearly legible duplicate original
or certified true copy of the judgment, final order or A:
resolution subject thereof, together with certified Review of judgment,
true copies of documents relevant and pertinent to final orders or
Rule 64 for COMELEC
the petition; resolutions of other
and COA
3. The aggrieved party is named as the petitioner tribunals, persons and
officer
and shall join as respondent the commission
Petition is based on Petition is based on
concerned and all the persons interested in
questions of law questions of law
sustaining the judgment, final order or resolution.
It is a mode of appeal
4. The petition shall state the facts with certainty,
but the petition used It is a mode of appeal
present clearly the issues involved, set forth the is Rule 65
grounds and brief arguments relied upon for Involves review of Involves the review of
review; judgments, final the judgment final
5. Petition shall state the specific material dates orders or resolutions orders or resolutions of
showing that it was filed within the period fixed by of COMELEC and COA the CA, Sandiganbayan,
the Rules. CTA, RTC or other courts
6. The petition shall be accompanied by proof of Filed within 30 days Filed within 15 days
service of a copy thereof on the commission from notice of from notice of
involved and on the adverse party, and of the judgment, final order judgment, final order or
timely payment of docket and other lawful fees or resolution sought resolution appealed
(Sec. 5, Rule 64) to be reviewed from
7. Certification against non forum shopping
8. Petition shall pray for a judgment annulling or Does not stay the
modifying the questioned judgment, final order or execution unless SC
resolution. shall direct otherwise Stays the judgment or
upon such terms as it order appealed from
Note: The failure of the petitioner to comply with any may deem just
of the foregoing requirements shall be sufficient
ground for the dismissal of the petition (Sec. 5, Rule The appellant and the
The COMELEC and
64). appellee are the original
COA shall be public
parties to the action,
respondents who are
and the lower court or
a. APPLICATION OF RULE 65 UNDER RULE 64 impleaded in the
quasi-judicial agency is
action
not impleaded
Q: Distinguish Rule 64 from Rule 65.
The filing of MNT or
A: MR, if allowed under
Rule 64 Rule 65 Motion for
the procedural rules of
Directed only to the Directed to any tribunal, reconsideration is not
the Commission, shall
judgments, final orders or board or officers required
interrupt period fixed
resolutions of the exercising judicial or
COMELEC and COA; quasi-judicial functions; The court is in the
Must be filed within 30 Must be filed within 60 The court is in the
exercise of its
days from notice of days from notice of exercise of its appellate
appellate jurisdiction
judgment or resolution judgment or resolution jurisdiction and power
and power of review
If MR is denied, the If MR is denied, the of review
137
Petition for certiorari Petition for certiorari is b. Certified true copy of material
is to be filed before to be filed only with the records of the case
the SC Court of Appeals 4. Statement of material dates
5. Sworn certification against forum
Q: What are the requisites for a review under Rule shopping
64? 6. Proof of service
A:
1. Filing of verified petition within 30days Q: What are the grounds for the outright dismissal
from notice of the judgment, final orders of the petition?
or resolutions (Sec. 3, Rule 64)
Note: Interlocutory orders must be assailed A: (Sec. 6, Rule 64)
under Rule 65, not Rule 64 1. Petition is not sufficient in form and
2. Payment of docket and other lawful fees substance (Sec. 5, Rule 64)
(Sec. 4, Rule 64) 2. Petition was filed for purpose of delay
3. Issue is unsubstantial
Note: The filing of the petition for certiorari does not
stay the execution of the assailed judgment, final order Q: Are findings of fact reviewable under Rule 64
or resolution of the Commission unless SC directs using Rule 65?
otherwise by the issuance of a temporary restraining
order or preliminary injunction. (Sec. 8, Rule 64)
A: The petition under Rule 64 using Rule 65, cannot
question the findings of fact of the commission
Q: What are the contents of the petition?
involved where such findings are supported by
substantial evidence. Such findings when so
A: (Sec. 5, Rule 64)
supported by the requisite quantum of evidence
1. Verified petition filed in 18copies joining
are final and non- reviewable (Sec 5, Rule 64).
as respondents the Commission
concerned and person/s interested in
Q: What is the effect of filing of a motion for new
sustaining the judgment, final order or
trial or reconsideration if allowed under the
resolution a quo
procedural rules of the commission concerned?
2. Statement of facts, issues, grounds for
review, arguments and relief prayed for
A: It will interrupt the period for filing the petition
3. Attachment of:
and if motion is denied, the petition may be filed
a. Duplicate original or certified true
within the remaining period which shall not be less
copy of assailed judgment, final
than 5days. (Sec. 3, Rule 64)
order or resolution
7. CERTIORARI, PROHIBITION AND MANDAMUS
GENERAL MATTERS
a. DEFINITIONS AND DICTINCTIONS
CERTIORARI PROHIBITION MANDAMUS

Certiorari is an extraordinary writ Prohibition is an extraordinary writ Mandamus is an extraordinary writ
annulling or modifying the commanding a tribunal, commanding a tribunal, corporation, board
proceedings of a tribunal, board or corporation, board or person, or person, to do an act required to be done:
officer exercising judicial or quasi- whether exercising judicial, quasi- (a) When he unlawfully neglects the
judicial functions when such tribunal, judicial or ministerial functions, to performance of an act which the law
board or officer has acted without or desist from further proceedings specifically enjoins as a duty, and there is no
in excess of its or his jurisdiction, or when said proceedings are without other plain, speedy and adequate remedy in
with grave abuse of discretion or in excess of its jurisdiction, or the ordinary course of law; or
amounting to lack or excess of with abuse of its discretion, there (b) When one unlawfully excludes another
jurisdiction, there being no appeal or being no appeal or any other plain, from the use and enjoyment of a right or
any other plain, speedy and adequate speedy and adequate remedy in the office to which the other is entitled (Sec. 3,
remedy in the ordinary course of law ordinary course of law (Sec. 2, Rule Rule 65).
(Sec. 1, Rule 65). 65).
Directed against a person exercising to Directed against a person exercising Directed against a person exercising
judicial or quasi-judicial functions judicial or quasi-judicial functions, ministerial duties
or ministerial functions
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To correct an act performed by To prevent the commission of an To compel performance of an act

respondent act
Purpose is to annul or modify the Purpose is to stop the proceedings Purpose is to compel performance of the act
proceedings required and to collect damages
Person or entity must have acted Person or entity must have acted Person must have neglected a ministerial
without or in excess of jurisdiction, or without or in excess of jurisdiction, duty or excluded another from a right or
with grave abuse of discretion or with grave abuse of discretion office
Extends to discretionary and

Extends to discretionary acts Only for ministerial acts
ministerial acts
Only against a respondent exercising

Against respondents who exercise judicial and/or non-judicial functions
judicial or quasi-judicial functions
Q: When does the court acquire jurisdiction over the law is, what the rights of the parties
the person of the respondent in original actions are, and undertakes to determine these
for certiorari, prohibition and mandamus? questions and adjudicate upon the rights
of the parties.
A: 2. Without jurisdiction – is where the
1. If the action is filed with the RTC – Follow respondent does not have the legal
the rules on ordinary civil actions. power to determine the case.
Jurisdiction is acquired by the service of 3. Excess of jurisdiction – is where the
summons to the respondent or by his respondent, being clothed with the power
voluntary appearance in court. to determine the case, oversteps his
2. If the action is filed with the CA or the SC – authority as determined by law.
The court acquires jurisdiction over the 4. Grave abuse of discretion – is where the
respondents with the service on them of respondent acts in a capricious,
its orders indicating its initial action on whimsical, arbitrary or despotic manner
the petition or by voluntary submission to in the exercise of his judgment as to be
such jurisdiction. said to be equivalent to lack of
jurisdiction. The abuse of discretion must
CERTIORARI be so patent and gross as to amount to an
evasion of positive duty or to a virtual
Q: What is certiorari? refusal to perform a duty enjoined by law,
or to act at all in contemplation of law, as
A: A writ issued by a superior court to an inferior where the power is exercised in an
court, board or officer exercising judicial or quasi- arbitrary and despotic manner by reason
judicial functions whereby the record of a particular of passion or personal hostility.
case is ordered to be elevated for review and 5. Plain, speedy and adequate remedy – is
correction in matters of law. one which promptly relieves the
petitioner from the injurious effects of
Note: An original action for certiorari, prohibition, and the judgment and the acts of the lower
mandamus is an independent action. As such, it does court or agency.
not interrupt the course of the principal.
Q: Which court has jurisdiction over petitions for
Note: A petition for certiorari must be based on certiorari?
jurisdictional grounds because as long as the
respondent acted with jurisdiction, any error A: The courts have concurrent jurisdiction,
committed by him or it in the exercise thereof will
however, petitions are subject to the rule on
amount to nothing more than an error of judgment
hierarchy of courts.
which may be reviewed or corrected by appeal
(Microsoft Corp. vs. Best Deal Computer Center Corp.,
GR 148029, Sept. 24, 2002; Estrera vs. CA, GR 154235,
Aug. 16, 2006). Q: Does the filing of a petition for certiorari
interrupt the running of the reglamentary period?
Q: Define the following.
A: No. The rule is the same for prohibition and
A: mandamus since the remedies under Rule 65 are
1. Judicial function – is where the tribunal or independent actions.
person has the power to determine what
139
Q: Distinguish certiorari under Rule 65 and principal case. It is necessary therefore, to avail of
certiorari under Rule 45. either a temporary restraining order or a writ of
preliminary injunction to be issued by a higher
A: court against the public respondent so the latter
Rule 65 Rule 45 may, during the pendency of the petition, be
Findings of fact of Court GR: Findings of fact of CA enjoined from further proceeding with the case (sec
of Appeals are not are conclusive 7, Rule 65).
conclusive or binding
upon SC Q: Are the remedies of appeal and certiorari
Involves question of Involves question of law exclusive?
jurisdiction
Mode of appeal Mode of review A:
Directed against an Involves the review of the GR: Where the proper remedy is appeal, the
interlocutory order of a judgment final orders or action for certiorari will not be entertained.
court or where there is resolutions of the CA, Certiorari is not a remedy for errors of
no appeal or any other Sandiganbayan, CTA, RTC
judgment. Errors of judgment are correctible by
plain, speedy or adequate or other courts
appeal; errors of jurisdiction are reviewable by
remedy
certiorari.
Filed not later than 60 Filed within 15 days from
days from notice of notice of judgment, final
judgment, order or order or resolution XPN: A petition for certiorari may be allowed
resolution appealed from appealed from despite the availability of the remedy of appeal
Unless a writ of Stays the judgment or when:
preliminary injunction or order appealed from 1. Appeal does not constitute a speedy and
temporary restraining adequate remedy;
order is issued, it does 2. Orders were issued either in excess of or
not stay the challenged without jurisdiction;
proceeding 3. For certain special considerations as for
The judge, court, quasi- The appellant and the public policy or public welfare;
judicial agency, tribunal, appellee are the original 4. Order is a patent nullity;
corporation, board, parties to the action, and 5. Decision in the certiorari case will avoid
officer or person shall be the lower court or quasi- future litigation; or
public respondents who judicial agency is not 6. In criminal actions, the court rejects
are impleaded in the impleaded rebuttal evidence for the prosecution as,
action in case of acquittal, there could be no
Motion for Motion for remedy (Regalado, Remedial Law
reconsideration or for reconsideration is not
Compendium, Vol. I, p. 783, 2007 ed.).
new trial is required. required
Note: When the remedy by appeal had already been
If a motion for lost due to petitioner’s own neglect or error in the
reconsideration or new choice of remedies, certiorari cannot lie. The two
trial is filed, another 60 remedies are mutually exclusive (Meralco v. CA, G.R.
days shall be given to the No. 88396, July 4, 1990).
petitioner (A.M. No. 02-
03-SC) PROHIBITION
Court exercises original The court is in the
jurisdiction exercise of its appellate Q: What is prohibition?
jurisdiction and power of
review. A: A remedy to prevent inferior courts,
Filed with the RTC, CA, Filed with the SC corporations, boards or persons from usurping or
Sandiganbayan or
exercising a jurisdiction or power which they have
COMELEC
not been vested by law.
Q: Will the filing of a petition for certiorari Note: It is commenced by a verified petition
interrupt the course of the principal case? Or is an accompanied by a certified true copy of the judgment,
injunctive relief necessary? order or resolution subject thereof, copies of all
pleadings and documents relevant and pertinent
A: The filing of a petition for certiorari against the thereto, and a sworn certification of non-forum
lower court or tribunal or any other public shopping (Sec. 2, Rule 65).
respondent does not interrupt the course of the
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REMEDIAL LAW TEAM:
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Q: Distinction between Prohibition and injunction ministerial duty

To perform a positive To prevent an act to
A: legal duty and not to undo maintain the status quo
INJUNCTION PROHIBITION what has been done between the parties
Directed only to the Directed to court itself,
party litigants, without commanding it to cease b. REQUISITES
in any manner from the exercise of a
interfering with the jurisdiction to which it has CERTIORARI PROHIBITION MANDAMUS
court. no legal claim. That the petition The petition is The plaintiff has a
is directed directed against a clear legal right to
Q: What is the function of writ of prohibition? against a tribunal, the act
tribunal, board corporation, demanded;
A: It is a preventive remedy. Its function is to or officer board or person
restrain the doing of some act about to be done. It exercising exercising
is not intended to provide a remedy for acts already judicial or quasi-judicial, quasi-
accomplished. If the thing be already done, the writ judicial judicial, or
of prohibition cannot undo it (Agustin v. De la functions; ministerial
Fuente, G.R. No. L-2345, Aug. 31, 1949). functions;
The tribunal, The tribunal, It must be the
MANDAMUS board or officer corporation, duty of the
has acted board or person defendant to
Q: What is mandamus? without, or in must have acted perform the act,
excess of without or in which is
jurisdiction or excess of ministerial and
A: A writ issued in the name of the State, to an
with abuse of jurisdiction or not discretionary,
inferior tribunal, corporation, board or person,
discretion with grave abuse because the same
commanding the performance of an act which the
amounting to of discretion is mandated by
law enjoins as a duty resulting from an office, trust lack or excess or amounting to lack law;
or station. jurisdiction of jurisdiction;
There is no There is no The defendant
Note: It is commenced by the filing of a verified
appeal or any appeal or any unlawfully
petition accompanied by certified true copy of the
plain, speedy and plain, speedy and neglects the
judgment, order or resolution subject thereof, copies
adequate adequate remedy performance of
of all pleadings and documents relevant and pertinent
remedy in the in the ordinary the duty enjoined
thereto and a sworn certification of non-forum
ordinary course course of law. by law;
shopping (Sec. 3, Rule 65).
of law.
Accompanied by Accompanied by There is no appeal
Q: Distinguish mandamus from quo warranto.
a certified true a certified true or any plain,
copy of the copy of the speedy and
A: judgment or judgment or adequate remedy
Mandamus Quo Warranto order subject of order subject of in the ordinary
Available when one is Available against the the petition, the petition, course of law.
unlawfully excluded from holder of an office, who copies of all copies of all
the use or enjoyment of is the person claiming the pleadings and pleadings and
an office against a person office as against documents documents
who is responsible for petitioner, not relevant and relevant and
excluding the petitioner necessarily the one who pertinent pertinent thereto,
excludes the petitioner thereto, and and sworn
sworn certification of
Q: Distinguish mandamus from injunction. certification of non-forum
non-forum shopping under
A: shopping under Rule 46.
Mandamus injunction Rule 46.
Special civil action Ordinary civil action
Directed against a Directed against a litigant Q: What are the requisites of a valid certiorari?
tribunal, corporation
board, or officer A:
Purpose is for tribunal, For the defendant either 1. There must be a controversy;
corporation, board or to refrain from an act or 2. Respondent is exercising judicial or quasi-
officer to perform to perform not judicial functions;
ministerial and legal duty necessarily a legal and
141
3. Respondents acted without or in excess of A:

its jurisdiction or with grave abuse of 1. Summary procedure
discretion amounting to lack of 2. Writ of Amparo
jurisdiction; and 3. Writ of Habeas Data
4. There must be no appeal or other plain, 4. Small claims cases (Riano, Civil Procedure:
speedy and adequate remedy. (Sec. 1, A Restatement for the Bar, p. 629, 2009
Rule 65) ed.)
Note: Certiorari is not the remedy for a loss appeal. Q: When is prohibition issued?
Q: What are the requisites of a valid prohibition? A:

GR: Prohibition does not ordinarily lie to
A: Sec. 2, Rule 65 restrain an act which is already fait accompli.
1. There must be a controversy
2. Respondent is exercising judicial, quasi- XPN: It will lie to prevent the creation of a new
judicial functions or ministerial functions province by those in the corridors of power who
3. Respondents acted without or in excess of could avoid judicial intervention and review by
its jurisdiction or with grave abuse of merely speedily and stealthily completing the
discretion amounting to lack of commission of such illegality. (Tan v. COMELEC,
jurisdiction G.R. No. 73155, July 11, 1986)
4. There must be no appeal or other plain,
speedy and adequate remedy Note: Prohibition and not mandamus, is the remedy
where a motion to dismiss is wrongfully denied
Q: What are the requisites of a valid mandamus? (Enriquez v. Macadaeg, G.R. No. L-2422, Sept. 30,
1949)
A: Sec. 3, Rule 65
1. There must be a clear legal right or duty Q: What are the grounds for mandamus?
2. The act to be performed must be within
the powers of the respondent to perform; A:
3. The respondent must be exercising a 1. When any tribunal, corporation, board,
ministerial duty officer or person unlawfully neglects the
4. The duty or act to be performed must be performance of an act which the law
existing (a correlative right will be denied specifically enjoins as a duty resulting
if not performed by the respondent) from an office, trust or station; or
5. There is no appeal or other plain, speedy 2. When any tribunal, corporation, board,
and adequate remedy in the ordinary officer or person unlawfully excludes
course of law another from the use and enjoyment of a
right or office to which the other is
c. WHEN PETITION FOR CERTIORARI, PROHIBITION entitled (Sec. 3)
AND MANDAMUS IS PROPER
Q: Will mandamus issue despite the availability of
Q: What are the grounds for the filing of a petition administrative remedies?
for certiorari?
A:
A: That a tribunal, board or officer exercising GR: Mandamus will not issue when
judicial or quasi-judicial functions acted: administrative remedies are still available.
1. Without or in excess of jurisdiction
2. In grave abuse of discretion amounting to
lack or excess of jurisdiction XPN:
1. If the party is in estoppel (Vda. de Tan v.
Note: It is commenced by the filing of a verified Veterans Backpay Commission, G.R. No. L-
petition accompanied by certified true copy of the 12944, Mar. 30, 1959); or
judgment, order or resolution subject thereof, copies 2. Only questions of law are raised.
of all pleadings and documents relevant and pertinent (Madrigal v. Lecaroz, G.R. No. L-46218,
thereto and a sworn certification of non-forum Oct. 23, 1990)
shopping. (Sec. 1, Rule 65).
Q: May mandamus be used to compel a
Q: When is certiorari under Rule 65 unavailable? discretionary duty?
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REMEDIAL LAW TEAM:
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A: Mandamus is only applicable to a ministerial Raises only questions of Raises questions of

duty. However, mandamus can be used to the law; jurisdiction because a
extent of requiring the performance of a tribunal, board or officer
discretionary duty to act but not to require exercising judicial or quasi-
performance of such duty in a particular manner. judicial functions has acted
without jurisdiction or in
Q: May the CA award damages in mandamus excess of jurisdiction or
proceedings? with grave abuse of
discretion amounting to
lack of jurisdiction;
A: Yes. The CA in resolving a petition for mandamus
is authorized to award civil damages in the same Filed within 15 days from Filed not later than 60 days
petition (Vital-Gozon v. CA, G.R. No. 101428, Aug. 3 notice of judgment or final from notice of judgment,
order appealed from, or of order or resolution sought
1992)
the denial of petitioner’s to be assailed and in case a
motion for reconsideration motion for reconsideration
d. INJUNCTIVE RELIEF or new trial; or new trial is timely filed,
whether such motion is
Q: When is injunctive relief proper? required or not, the 60 day
period is counted from
A: The court in which the petition is filed may issue notice of denial of said
orders expediting the proceedings, and it may also motion;
grant a temporary restraining order or a writ of Extension of 30 days may Extension no longer
preliminary injunction for the preservation of the be granted for justifiable allowed;
rights of the parties pending such proceedings. The reasons
petition shall not interrupt the course of the Does not require a prior Motion for
principal case unless a temporary restraining order motion for Reconsideration is a
or a writ of preliminary injunction has been issued reconsideration; condition precedent,
against the public respondent from further subject to exceptions
proceeding in the case (Sec. 7, Rule 65). Stays the judgment Does not stay the
The public respondent shall proceed with the appealed from; judgment or order subject
principal case within ten (10) days from the filing of of the petition unless
a petition for certiorari with a higher court or enjoined or restrained;
tribunal, absent a Temporary Restraining Order Parties are the original The tribunal, board, officer
(TRO) or a Writ of Preliminary Injunction, or upon parties with the appealing exercising judicial or quasi-
its expiration. Failure of the public respondent to party as the petitioner and judicial functions is
proceed with the principal case may be a ground for the adverse party as the impleaded as respondent
an administrative charge (AM 07-7-12-SC, Dec. 12, respondent without
2007). impleading the lower court
or its judge;
e. CERTIORARI DISTINGUISHED FROM APPEAL BY Filed with only the May be filed with the
CERTIORARI; PROHIBITION AND MANDAMUS Supreme Court Supreme Court, Court of
DISTINGUISHED FROM INJUNCTION; WHEN AND Appeals, Sandiganbayan,
or Regional Trial Court
WHERE TO FILE PETITION
SC may deny the decision
motupropio on the ground
Q: Distinguish certiorari from appeal by certiorari.
that the appeal is without
merit, or is prosecuted
Certiorari as a Mode of Certiorari as a Special Civil manifestly for delay, or
Appeal (Rule 45) Action (Rule 65) that the questions raised
Called petition for review A special civil action that is therein are too
on certiorari, is a mode of an original action and not a unsubstantial to require
appeal, which is but a mode of appeal, and not a consideration.
continuation of the part of the appellate
appellate process over the process but an
Note: The remedies of appeal and certiorari are
original case; independent action.
mutually exclusive and not alternative or successive.
Seeks to review final May be directed against an The antithetic character of appeal and certiorari has
judgments or final orders; interlocutory order of the been generally recognized and observed save only on
court or where not appeal those rare instances when appeal is satisfactorily
or plain or speedy remedy shown to be an inadequate remedy. Thus, a petitioner
available in the ordinary must show valid reasons why the issues raised in his
course of law petition for certiorari could not have been raised on
143
appeal (Banco Filipino Savings and Mortgage Bank vs. CA, 334 SCRA 305).
Q: Distinguish prohibition and mandamus from injunction.
A:
Prohibition Mandamus Injunction
Prohibition is an extraordinary writ Mandamus is an extraordinary writ Main action for injunction seeks to
commanding a tribunal, corporation, commanding a tribunal, corporation, enjoin the defendant from the
board or person, whether exercising board or person, to do an act required to commission or continuance of a
judicial, quasi-judicial or ministerial be done: specific act, or to compel a particular
functions, to desist from further (a) When he unlawfully neglects the act in violation of the rights of the
proceedings when said proceedings are performance of an act which the law applicant. Preliminary injunction is a
without or in excess of its jurisdiction, or specifically enjoins as a duty, and there is provisional remedy to preserve the
with abuse of its discretion, there being no other plain, speedy and adequate status quo and prevent future wrongs
no appeal or any other plain, speedy and remedy in the ordinary course of law; or in order to preserve and protect
adequate remedy in the ordinary course (b) When one unlawfully excludes certain interests or rights during the
of law (Sec. 2, Rule 65). another from the use and enjoyment of pendency of an action.
a right or office to which the other is
entitled (Sec. 3, Rule 65).
Special civil action Special civil action Ordinary civil action
To prevent an encroachment, excess, To compel the performance of a For the defendant either to refrain
usurpation or assumption of jurisdiction; ministerial and legal duty; from an act or to perform not
necessarily a legal and ministerial
duty;
May be directed against entities May be directed against judicial and non- Directed against a party
exercising judicial or quasi-judicial, or judicial entities
ministerial functions
Extends to discretionary functions Extends only to ministerial functions Does not necessarily extend to
ministerial, discretionary or legal
functions;
Always the main action Always the main action May be the main action or just a
provisional remedy
May be brought in the Supreme Court, May be brought in the Supreme Court, May be brought in the Regional Trial
Court of Appeals, Sandiganbayan, or in Court of Appeals, Sandiganbayan, or in Court which has jurisdiction over the
the Regional Trial Court which has the Regional Trial Court which has territorial area where respondent
jurisdiction over the territorial area jurisdiction over the territorial area resides.
where respondent resides. where respondent resides.
f. EXCEPTIONS TO FILING OF MOTION FOR passed upon by the lower court, or are
RECONSIDERATION BEFORE FILING PETITION the same as those raised and passed upon
in the lower court;
Q: Is it an absolute rule that before recourse to 3. Urgent necessity for the resolution of the
certiorari is taken a motion for reconsideration question, and any further delay would
must be filed? prejudice the interests of the Government
or of the petitioner, or the subject matter
A: of the action is perishable;
GR: Petition for certiorari will not be 4. Under the circumstances, a motion for
entertained unless the public respondent has reconsideration would be useless;
been given first the opportunity through a 5. Petitioner was deprived of due process
motion for reconsideration to correct the error and there is extreme urgency for relief;
being imputed to him. 6. In a criminal case, relief from an order of
arrest is urgent and the granting of such
XPNs: A prior motion for reconsideration is not relief by the trial court is improbable;
necessary to entertain a petition for certiorari 7. Proceedings in the lower court are a
where: nullity for lack of due process;
1. Order is a patent nullity, as where the 8. Proceedings were ex parte or in which the
court a quo has no jurisdiction; petitioner had no opportunity to object;
2. Questions raised in the certiorari and
proceedings have been duly raised and
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REMEDIAL LAW TEAM:
CIVIL PROCEDURE
9. Issue raised is one purely of law or where without merit, prosecuted manifestly for delay, or
public interest is involved. raises questions which are too unsubstantial to
require consideration?
g. RELIEFS PETITIONER IS ENTITLED TO
A: The court may dismiss the petition. In such
Q: What are the reliefs a petitioner is entitled to event, the court may award in favor of the
with this action? respondent treble costs solidarily against the
petitioner and counsel, in addition to subjecting
A: counsel to administrative sanctions under Rules 139
The primary relief will be the annulment or and 139-B.
modification of the judgment, order, or resolution
or proceeding subject of the petition. It may also The Court may impose motu proprio, based on res
include such other Incidental reliefs as law and ipsa loquitur, other disciplinary sanctions or
justice may require (sec 1, Rule 65) The court may measures on erring lawyers for patently dilatory
also award damages in its judgment and the and unmeritorious petitions for certiorari (Sec. 8, as
execution of the award for damages or costs shall amended by A.M. No. 07-7-12-SC).
follow the procedure in sec 1 of rule 39 (sec 9, rule
65). 8. QUO WARRANTO
h. ACTIONS/OMISSIONS OF MTC/RTC IN ELECTION Q: What is quo warranto?

CASES
A: A proceeding or writ issued by the court to
Q: What is the rule on acts or omissions of the determine the right to use an office, position or
MTC or RTC regarding election cases? franchise and to oust the person holding or
exercising such office, position or franchise if his
A: In election cases involving an act or an omission right is unfounded or if a person performed acts
of a municipal or a regional trial court, the petition considered as grounds for forfeiture of said exercise
shall be filed exclusively with the Commission on of position, office or franchise.
Elections, in aid of its appellate jurisdiction. (Sec.4,
Rule 65, As amended by AM No. 07-7-12-SC, Dec. Note: It is commenced by a verified petition brought in
12, 2007) the name of the Republic of the Philippines or in the
name of the person claiming to be entitled to a public
office or position usurped or unlawfully held or
i. WHERE TO FILE PETITION
exercised by another. (Sec. 1)
Q: When and where to file petition? Q: What are the classifications of quo warranto
proceedings?
A:
1. Supreme Court- Subject to the doctrine of A:
hierarchy of courts and only when compelling 1. Mandatory – brought by the Solicitor
reasons exist for not filing the same with the lower General or Public prosecutor when:
courts. a. directed by the President;
2. Court of Appeals only- If the petition involves an b. upon complaint or when he has
act or an omission of a quasi-judicial agency, unless reason to believe that the cases for
otherwise provided by law or rules. quo warranto can be established by
3. Court of Appeals and Sandiganbayan- Whether proof (Sec. 2)
or not in aid of appellate jurisdiction. c. at the request and upon the relation
4. Regional Trial Court- If the petition relates to an if another person (ex relatione), but
act or an omission of an MTC, corporation, board, leave of court must first be obtained.
officer or person. (Sec. 3)
5. COMELEC- In election cases involving an act or an
omission of an MTC or RTC 2. Discretionary – brought by the Solicitor
As amended by AM No. 07-7-12-SC, Dec. 12, 2007. General or a public prosecutor at the
request and upon the relation of another
j. EFFECTS OF FILING OF AN UNMERITORIOUS person, provided there must be:
PETITION a. leave of court
b. at the request and upon the relation
Q: What is the effect of a petition for certiorari, of another person
prohibition or mandamus which is patently c. indemnity bond (Sec. 3)
145
protest (Cesar v. Garrido, G.R. No. 30705, Mar. 25,

Q: Distinguish quo warranto in elective office from 1929).
an appointive office.
b. WHEN GOVERNMENT COMMENCE AN ACTION
A: AGAINST INDIVIDUALS
c. WHEN INDIVIDUAL MAY COMMENCE AN
Elective Office Appointive Office ACTION
Issue: eligibility of the Issue: validity of the
respondent appointment Q: Who commences the action?
Court will oust the
Occupant declared
person illegally A:
ineligible/disloyal will be
appointed and will order 1. The solicitor general or public prosecutor,
unseated but petitioner
the seating of the person when directed by the President of the
will not be declared the
who was legally
rightful occupant of the Philippines, or when upon complaint or
appointed and entitled to
office. otherwise he has good reason to believe
the office.
that any case specified in the proceding
section can be established by proof.
a. DISTINCTION FROM QUO WARRANTO UNDER
(mandatory quo warranto)
OMNIBUS ELECTION CODE
2. The Solicitor General or a public
Q: Distinguish quo warranto under Rule 66 from prosecutor may, with the permission of
quo warranto under Omnibus Election Code. court, bring an action at the request and
upo n the relation of another person.
A: (discretionary quo warranto)
Quo Warranto Under Rule Quo Warranto In 3. A person claiming to be entitled to a
66 Electoral Proceedings public office or position or unlawfully held
Prerogative writ by which or exercised by anoher may also bring
the government can call action, in his own name.
To contest the right of
upon any person to show
an elected public officer
by what title he holds a Q: Against whom a quo warranto may be filed?
to hold public office.
public office or exercises a
public franchise. A: The action must be filed against:
Grounds: 1. A person who usurps, intrudes into, or
Grounds: 1. usurpation
ineligibility or unlawfully holds or exercises a public
2. forfeiture
disqualification to hold office, position or franchise;
3. illegal association
the office 2. A public officer who does or suffers an act
Presupposes that the which, by the provision of law, constitutes
respondent is already a ground for the forfeiture of his office;
actually holding office and and
Petition must be filed
action must be 3. An association which acts as a corporation
within 10 days from the
commenced within 1 year
proclamation of the within the Philippines without being
from cause of ouster or
candidate. legally incorporated or without lawful
from the time the right of
petitioner to hold office
authority so to act (Sec. 1, Rule 66).
arose.
The petitioner must be the Note: Actions of quo warranto against corporations
government or the person now fall under the jurisdiction of the RTC (Sec. 5.2,
May be filed by any Securities Regulations Code).
entitled to the office and
voter even if he is not
who would assume the
entitled to the office. Q: A group of businessmen formed an association
same if his action
succeeds. in Cebu City calling itself Cars Co. to distribute/sell
Person adjudged entitled Actual or compensatory cars in said city. It did not incorporate itself under
to the office may bring a damages are recoverable the law nor did it have any government permit or
separate action against the in quo warranto license to conduct its business as such. The
respondent to recover proceedings under the Solicitor General filed before the RTC in Manila a
damages. Omnibus Election Code. verified petition for quo warranto questioning and
seeking to stop the operations of Cars Co. The
Note: If the dispute is as to the counting of votes or on latter filed a motion to dismiss the petition on the
matters connected with the conduct of the election, ground of improper venue claiming that its main
quo warranto is not the proper remedy but an election office and operations are in Cebu City and not in
146 REMEDIAL LAW TEAM:

CIVIL PROCEDURE
Manila. Is the contention of Cars Co. correct? Q: What are the requisites of a valid
Why? expropriation?
A: No. As expressly provided in the Rules, when the A:

Solicitor General commences the action for quo 1. Due process of law
warranto, it may be brought in a Regional Trial 2. Payment of just compensation
Court in the City of Manila, as in the case, in the CA 3. Taking must be for public use
or in the SC (Sec. 7, Rule 66). (2001 Bar Question)
Q: What is the power of eminent domain?
d. JUDGMENT IN QUO WARRANTO ACTION
A: It is the right of the State to acquire private
Q: What is the effect of a judgment in Quo property for public use upon the payment of just
Warranto case? compensation.
A; When the respondent is found guilty of usurping, Q: When is expropriation proper?

intruding into, or unlawfully holding or exercising a
public office, position or franchise, judgment shall A: It is proper only when the owner refuses to sell
be rendered that such respondent be ousted and or, if the latter agrees, agreement as to the price
altogether excluded therefrom, and that the cannot be reached.
petitioner or relator, as the case may be, recover
his costs. Such further judgment may be rendered a. MATTERS TO BE ALLEGED IN COMPLAINT FOR
determining the respective rights in and to the EXPROPRIATION
public office, position or franchise of the parties to
the action as justice requires (Sec. 9, Rule 66). Q: Matters to be allege in a complaint for
expropriation.
e. RIGHTS OF A PERSON ADJUDGED ENTITLED TO
A: right and purpose of expropriation, describing
PUBLIC OFFICE
the property sought to be expropriated, and joining
Q: What are the rights of persons adjudged to be as defendants all persons owning or claiming to
entitled to the office? own any part thereof or interest therein (Sec. 1).
A: if judgment be rendered in favor of the person b. TWO STAGES IN EVERY ACTION FOR
averred in the complaint to be entitled to the public EXPROPRIATION
office, he may, after taking the oath of office and
Q: What are the two (2) stages in expropriation
executing any official bond required by law:
proceedings?
1. take upon himself the execution of the
office;
A:
2. may immediately thereafter demand all
1. Determination of the authority of the
the books and papers in the respondent’s
plaintiff to exercise the power of eminent
custody or control appertaining to the
domain and the propriety of the exercise
office to which the judgment relates; and
in the context of the facts involved.
3. may bring an action against the
2. Determination of just compensation.
respondent to recover damages sustained
by such persons by reason of usurpation.
Q: City of Iloilo (petitioner) represented by Mayor
Treñas filed a complaint for eminent domain
Note: when there is a judgment in a quo warranto
against Javellana seeking to expropriate two
action finding usurpation to be existent, respondent
must be ousted and altogether excluded therefrom, parcels of land. Mayor Treñas filed a motion for
and that the petitioner or relator, as the case may be, issuance of writ of possession alleging that it had
recover his cost. Such further judgment may be deposited 10% of the amount of compensation of
rendered determining the respective rights in the which the court issued. A writ of possession was
public office, position, or franchise of all the parties to subsequently issued, and petitioner was able to
the action, as justice requires. take physical possession of the properties. After
which, the expropriation proceedings remained
9. EXPROPRIATION dormant. 16 years later, Javellana filed an ex parte
motion/manifestation, where he alleged that
Q: What is expropriation? when he sought to withdraw the money, he
discovered that no deposit was made. Thus,
A: The procedure for enforcing the right of eminent Javellana filed a complaint for recovery of
domain.
147
possession, fixing and recovery of rental and owner upon the filing of the complaint to be
damages. The City of Iloilo argues that Javellana entitled to a writ of possession. As a relevant
could no longer bring an action for recovery since standard for initial compensation, the market value
the subject property was already taken for public for the property as stated in the tax declaration or
use. The trial court in its orders and amended the current relevant zonal valuation of the Bureau
orders maintained that the assailed orders issued of internal Revenue (BIR), whichever is higher and
by it were interlocutory in character and as such the value of the improvements and/or structures
are always subject to modification and revision by using the replacement cost method.
the court anytime. Is the order of expropriation
final? Note: RA 8974 applies in instances when the national
government expropriates property for national
A: Expropriation proceedings have two stages. The government infrastructure projects. Thus, if
first phase ends with an order of dismissal, or a expropriation is engaged by the national government
determination that the property is to be acquired for purposes other that national infrastructure
for a public purpose. The second phase consists of projects, the assessed value standard and the deposit
the determination of just compensation. Both mode prescribed in Rule 67 continues to apply.
orders, being final, are appealable.
The intent of RA 8974 to supersede the system of
deposit under Rule 67 with the scheme of immediate
An order of condemnation or dismissal is final,
payment in cases involving national government
resolving the question of whether or not the infrastructure projects is indeed very clear (MCWD v. J.
plaintiff has properly and legally exercised its power King and Sons, GR 175983, April 16, 2009)
of eminent domain. Once the first order becomes
final and no appeal thereto is taken, the authority d. NEW SYSTEM OF IMMEDIATE PAYMENT OF
to expropriate and its public use can no longer be INITIAL JUST COMPENSATION
questioned. Thus, it has become final, and the
petitioner’s right to expropriate the property for a Q: What is the new system of immediate payment
public use is no longer subject to review. (City of of initial just compensation?
Iloilo v. Hon. Lolita Contreras-Besana, G.R. No.
168967, Feb. 12, 2010).
A: For the acquisition of right-of-way, site or
location for any national government infrastructure
Q: May Congress enact a law providing that a
project through expropriation, upon the filing of the
5,000 square meter lot, a part of the UST
filing of the complaint, and after due notice to the
compound in Sampaloc, Manila, be expropriated
defendant, the implementing agency shall
for the construction of a park in honor of former
immediately pay the owner of the property the
City Mayor ArsenioLacson? As compensation to
amount equivalent to the sum of (1) 100 percent of
UST, the City of Manila shall deliver its 5-hectare
the value of the property based on the current
lot in Sta. Rosa, Laguna originally intended as a
relevant zonal valuation of the BIR; and (2) the
residential subdivision for the Manila City Hall
value of the improvements and/or structures as
employees. Explain.
determined under Sec. 7 of RA 8974 (Sec. 4, RA
A: Yes, Congress may enact a law to expropriate 8974).
property but it cannot limit just compensation. The
determination of just compensation is a judicial e. DEFENSES AND OBJECTIONS
function and Congress may not supplant or prevent
the exercise of judicial discretion to determine just Q: What must be filed when defendant has an
compensation. Under Sec. 5, Rule 67 of the Rules of objection?
Court, the ascertainment of just compensation
requires the evaluation of 3 commissioners. (2006 A: If a defendant has any objection to the filing of
Bar Question) or the allegations in the complaint, or any objection
or defense to the taking of his property, he shall
c. WHEN PLAINTIFF CAN IMMEDIATELY ENTER serve his answer within the time stated in the
INTO POSSESSION OF THE REAL PROPERTY summons. The answer shall specifically designate or
identify the property in which he claims to have an
Q: What is the new system of immediate payment interest, state the nature and extent of the interest
of initial compensation? claimed, and adduce all his objections and defenses
to the taking of his property. No counterclaim,
A: RA 8974 provides a modification of sec 2, Rule 67 cross-claim or third-party complaint shall be alleged
where the Government is required to make or allowed in the answer or any subsequent
immediate and direct payment to the property pleading.

CIVIL PROCEDURE
Note: if there are no objections, he must file and serve overruled or when no party appears to object to or
a notice of appearance and manifestation to that to defend against the expropriation (Sec 4, Rule 67).
effect. And thereafter, shall be entitled to notice of all
proceedings. Note: after the rendition of the order of expropriation,
the plaintiff shall not be permitted to dismiss or
Q: What is the duty of the court if the defendant discontinue the proceeding except upon such terms as
waives his defenses or objections? the court deems just and equitable (Sec 4, Rule 67)
A: If a defendant waives all defenses and objections g. ASCERTAINMENT OF JUST COMPENSATION

not so alleged, the court, in the interest of justice,
Q: What is just compensation?
may permit amendments to the answer to be made
not later than ten (10) days from the filing thereof.
A: Just compensation is equivalent to the fair
However, at the trial of the issue of just
market value of the property at the time of its
compensation, whether or not a defendant has
taking or filing of complaint whichever comes first.
previously appeared or answered, he may present
It is the fair and full equivalent for the loss
evidence as to the amount of the compensation to
sustained by the defendant.
be paid for his property, and he may share in the
distribution of the award (Sec. 3, Rule 67). Q: What is the formula for the determination of
just compensation?
Q: How may appeal be taken from an order of
expropriation by the party aggrieved thereby? A:
JC = FMV + CD – CB
A: It may be appealed by the defendant by record
on appeal. This is an instance when multiple If CB is more than CD then,
appeals are allowed because they have separate JC = FMV
and/or several judgments on different issues e.g.
issue on the right to expropriate or issue of just
compensation JC – Just compensation
FMV – Fair market value
Note: An appeal does not delay the right of the CD – Consequential damages
plaintiff to enter upon the property of the defendant CB – Consequential benefits
and appropriate the same for public use.
Note:Sentimental value is not computed.
Q: What is the effect if the order of condemnation
was reversed? Q: What is the reckoning point for determining
just compensation?
A: The owner shall repossess the property with the
right to be indemnified for all damages sustained A:The value of just compensation shall be
due to the taking (Sec. 11, Rule 67) determined as of the date of the taking of the
property or the filing of the complaint, whichever
Note: The landowner has the option of proving came first. (Sec. 4)
damages either in the same expropriation case or in
a separate action instituted for that purpose, as the GR: When the taking of the property sought to
judgment denying the right of expropriation is not be expropriated coincides with the
res judicata on the issue of damages arising from commencement of the expropriation
such illegal expropriation (Republic v. Baylosis, G.R. proceedings, or takes place subsequent to the
No. L-6191, Jan. 31, 1955). filing of the complaint for eminent domain, the
just compensation should be determined as of
f. ORDER OF EXPROPRIATION the date of the filing of the complaint. (City of
Iloilo v. Hon. Lolita Contreras-Besana, G.R. No.
Q: What is an order of expropriation? 168967, Feb. 12, 2010).
A: An order of expropriation (or order of Note: Typically, the time of taking is

condemnation) will be issued declaring that the contemporaneous with the time the petition is
plaintiff has a lawful right to take the property for filed. (NAPOCOR v. Co, G.R. No 166973, Feb. 10,
the public use or purpose described in the 2009)
complaint upon the payment of just compensation
in the event the objections of the defendant are XPNs:
1. Grave injustice to the property owner
149
Air Transportation Office cannot the construction of the public

conveniently invoke the right of eminent improvement for which the land was
domain to take advantage of the taken. To permit them to do so would be
ridiculously low value of the property at to allow them to recover more than the
the time of taking that it arbitrarily value of the land at the time when it was
chooses to the prejudice of the land taken, which is the true measure of the
owners. (Heirs of Mateo damages, or just compensation, and
Pidacan&RomanaEigo v. Air would discourage the construction of
Transportation Office, G.R. No. 162779, important public
June 15, 2007) improvements.(Provincial Gov’t of Rizal v.
2. The taking did not have color of legal Caro de Araullo, G.R. No. L-36096, Aug.
authority 16, 1933)
To allow NAPOCOR to use the date it
constructed the tunnels as the date of h. APPOINTMENT OF COMMISSIONERS;
valuation would be grossly unfair. First, it COMMISSIONER’S REPORT; COURT ACTION UPON
did not enter the land under warrant or COMMISSIONER’S REPORT
color of legal authority or with intent to
expropriate the same. It did not bother to Q: May the court dispense with the assistance of
notify the owners and wrongly assumed it commissioners in the determination of just
had the right to dig those tunnels under compensation in expropriation proceedings?
their property. Secondly, the
“improvements” introduced by A: No. The appointment of commissioners in
NAPOCOR, the tunnels, in no way expropriation proceedings is indispensable. In such
contributed to an increase in the value of cases, trial with the aid of commissioners is a
the land. The trial court rightly computed substantial right that may not be done away with
the valuation of the property as of 1992, capriciously or for no reason at all (MERALCO v.
when the owners discovered the Pineda, G.R. No. L-59791, Feb. 13, 1992).
construction of the huge underground
Note: Objections to the order of appointment must be
tunnels beneath their lands and
filed within 10 days from service of the order and shall
NAPOCOR confirmed the same and
be resolved within 30 days after all the commissioners
started negotiations for their purchase
received the copies of the objections (Sec. 5)
but no agreement could be reached.
(NAPOCOR v. Ibrahim, G.R. No. 168732, Q: When may the court appoint a commissioner in
June 29, 2007) expropriation proceedings?
3. The taking of the property was not initially
for expropriation
There was no taking of the property in A: Upon the rendition of the order of expropriation,
1985 by Public Estates Authority (PEA) for the court shall appoint not more than three (3)
purposes of expropriation. As shown by competent and disinterested persons as
the records, PEA filed with the RTC its commissioners to ascertain and report to the court
petition for expropriation on Sept. 22, the just compensation for the property sought to
2003.The trial court was correct in be taken. The order of appointment shall designate
ordering the Republic, through PEA, upon the time and place of the first session of the hearing
the filing of its complaint for to be held by the commissioners and specify the
expropriation, to pay Tan just time within which their report shall be submitted to
compensation on the basis of the BIR the court (Sec. 5, Rule 67).
zonal valuation of the subject property.
(Tan v. Republic, G.R. No. 170740, May Q: When should the commissioner make a report?
25, 2007)
4. The owner will be given undue increment A: The court may order the commissioners to
advantages because of the expropriation report when any particular portion of the real
The value of the property in question was estate shall have been passed upon by them, and
greatly enhanced between the time when may render judgment upon such partial report, and
the extension of the street was laid out direct the commissioners to proceed with their
and the date when the condemnation work as to subsequent portions of the property
proceedings were filed. The owners of the sought to be expropriated, and may from time to
land have no right to recover damages for time so deal with such property. The commissioners
this unearned increment resulting from shall make a full and accurate report to the court of
all their proceedings, and such proceedings shall

CIVIL PROCEDURE
not be effectual until the court shall have accepted a. JUDGMENT ON FORECLOSURE FOR PAYMENT
their report and rendered judgment in accordance OR SALE
with their recommendations. Except as otherwise
expressly ordered by the court, such report shall be Q: What is judgment on foreclosure?
filed within sixty (60) days from the date the
commissioners were notified of their appointment, A: It is the judgment of the court ordering the
which time may be extended in the discretion of debtor to pay within a period not less than 90 days
the court. Upon the filing of such report, the clerk nor more than 120 days from the entry of judgment
of the court shall serve copies thereof on all after ascertaining the amount due to the plaintiff
interested parties, with notice that they are allowed (Sec. 2, Rule 68).
ten (10) days within which to file objections to the
findings of the report, if they so desire (Sec. 7, Rule Q: What is foreclosure sale?
67).
A: When the defendant fails to pay the amount of
i. RIGHTS OF PLAINTIFF UPON JUDGMENT AND the judgment within the period specified therein,
PAYMENT the court, upon motion, shall order the property to
be sold in the manner and under the provisions of
Q: What are the rights of the plaintiff after Rule 39 and other regulations governing sales of
payment? real estate under executions (Sec.3, Rule 68).
A: After payment of just compensation, as Q: When is the sale of mortgaged property proper
determined in the judgment, the plaintiff shall have and how must it be brought about?
the right to enter upon the property expropriated
and to appropriate the same for the public use or A: if the mortgagor fails to pay the sum due within
purpose defined in the judgment or to retain the period (90-120 days) stated by the court in its
possession already previously made in accordance judgment, it would be good practice for the
with Sec 2, Rule 67. mortgagee to file a motion for the sale of the
mortgaged property because under the Rules, the
j. EFFECT OF RECORDING OF JUDGMENT court shall order the sale of the property only
“upon motion of the mortgagee” (sec 3, rule 68)
Q: What is the effect of the recording of the
judgment? Note: it has been held that the motion for the sale of
the mortgaged property is non-litigable and may be
A: When real estate is expropriated, a certified copy made ex parte. After the foreclosure sale has been
of such judgment shall be recorded in the registry effected, the mortgagee should file a motion for the
of deeds of he place in which the property is confirmation of the sale which requires notice and
hearing.
situated, and its effect shall be to vest in the
plaintiff the title to the real estate so described for
b. SALE OF MORTGAGED PROPERTY
such public use or purpose (Sec 13, Rule 69).
Q: What is the effect of confirmation of the sale?
10. FORECLOSURE OF REAL ESTATE MORTGAGE
A: It shall divest the rights in the property of all the
Q: What is foreclosure of Real Estate Mortgage
parties to the action and shall vest their rights in
(REM)?
the purchaser, subject to such rights of redemption
as may be allowed by law (Sec 3, Rule 68)
A: It is the remedy used for the satisfaction of any
monetary obligation, which a person owes to
Note: it is said that title vests in the purchaser upon a
another, by proceeding against the property used valid confirmation of the sale and retroacts to the date
to secure said obligation. of sale.
Note: It is commenced by a complaint setting forth the c. DISPOSITION OF PROCEEDS OF SALE
date and due execution of the mortgage; the names
and residences of the mortgagor and the mortgagee; a Q: How is the disposition of the proceeds of the
description of the mortgaged property; date of the
sale done?
note or other documentary evidence of the obligation
secured by the mortgage, the amount claimed to be
A: The proceeds of the sale of the mortgaged
unpaid thereon; and the names and residences of all
property shall, after deducting the costs of the sale,
persons having or claiming an interest in the property
subordinate in right to that of the holder of the be paid to the person foreclosing the mortgage, and
mortgage (Sec. 1). when there shall be any balance or residue after
151
paying off the mortgage debt due, the same shall On January 10, 2003, GAP filed an ex-parte motion
be paid to junior encumbrances in the order of their with the court for the issuance of a writ of
priority. If there be any further balance after paying possession to oust Gretchen from the land. It also
them or if there be no junior encumbrances, the filed a deficiency claim for P800,000 against Arlene
same shall be paid to the mortgagor or any person and Gretchen. The deficiency claim was opposed
entitled thereto (Sec. 4) by Arlene and Gretchen.
Q: What claims shall be satisfied from the 1. Resolve the motion for the issuance of a
proceeds of the public sale of the mortgaged writ of possession.
property (in order)? 2. Resolve the deficiency claim of the bank.
A: A:
1. Costs incurred in the sale of property; 1. In judicial foreclosure by banks such as GAP,
2. Claim of the person foreclosing the the mortgagor or debtor whose real
property; property has been sold on foreclosure has
3. Claims of junior encumbrancers in the the right to redeem the property within 1
order of their priority; year after the sale (or registration of the
4. Residue goes to the mortgagor or his sale). However, under Sec. 47 of the General
authorized agent, or any other person Banking Law of 2000, the purchaser at the
entitled to it. auction sale has the right to obtain a writ of
possession after the finality of the order
d. DEFICIENCY JUDGMENT confirming sale. The motion for writ of
possession, however, cannot be filed ex
Q: What is deficiency judgment? parte. There must be a notice of hearing.
2. The deficiency claim of the bank may be
A: It is the judgment rendered by the court holding enforced against the mortgage debtor
the defendant liable for any unpaid balance due to Arlene, but it cannot be enforced against
the mortgagee if the proceeds from the foreclosure Gretchen, the owner of the mortgaged
sale do not satisfy the entire debt. property, who did not assume personal
liability of the loan. (2003 Bar Question)
Q: What are the instances when the court cannot
render deficiency judgment? (1) INSTANCES WHEN COURT CANNOT RENDER
DEFICIENCY JUDGMENT
A: where the debtor-mortgagor is a non-resident
and who at the time of the filing of the action for
Q: What are the instances when the courts cannot
foreclosure and during the pendency of the
render deficiency judgment?
proceedings was outside the Philippines, then it is
not procedurally feasible. It is by nature in A: When the:
personam and jurisdiction over the person is
mandatory. 1. Case is covered by the Recto Law (Art.
1484, NCC);
Q: Arlene borrowed P1 million from GAP Bank 2. Mortgagor is a non-resident and is not
(GAP) secured by the titled land of her friend found in the Philippines, unless there is
Gretchen who, however, did not assume personal attachment;
liability for the loan. Arlene defaulted and GAP 3. Mortgagor dies, the mortgagee may file
filed an action for judicial foreclosure of the real his claim with the probate court under
estate mortgage impleading Arlene and Gretchen Sec. 7, Rule 86; and
as defendants. The court rendered judgment 4. Mortgagee is a third person but not
directing Arlene to pay the outstanding account of solidarily liable with the debtor.
P1.5 million (principal plus interest) to GAP. No
appeal was taken by Arlene. Arlene failed to pay e. JUDICIAL FORECLOSURE VERSUS EXTRAJUDICIAL
the judgment debt within the period specified in FORECLOSURE
the decision. At the foreclosure sale, the land was
sold to GAP for P1.2 million. The sale was Q: Distinguish judicial foreclosure from
confirmed by the court, and the confirmation of extrajudicial foreclosure.
the sale was registered with the Registy of Deeds
on January 5, 2002. A:
Judicial Foreclosure Extrajudicial Foreclosure
Governed by Rule 68 Governed by Act 3135

CIVIL PROCEDURE
There is only an equity of appeal. (Consolidated Bank and Trust Corp. v. IAC, G.R.
Right of redemption
redemption except when No. 73341, Aug. 21, 1987)
exists
the mortgagee is a bank
Requires court No court intervention 11. PARTITION
intervention necessary
Mortgagee is given a Q: What is partition?
special power of attorney
Mortgagee need not be
in the mortgage contract A: It is a process of dividing and assigning property
given a special power of
to foreclose the
attorney. owned in common among the various co-owners
mortgaged property in
thereof in proportion to their respective interests in
case of default.
said property.It presupposes the existence of a co-
Note: A mortgagee may bring a personal action for the
amount due, instead of a foreclosure suit, in which
ownership over a property between two or more
case, he will be deemed to have waived his right to persons. The rule allowing partition originates from
proceed against the property in a foreclosure a well-known principle embodied in the Civil Code,
proceeding. (Movido v. RFC, G.R. No. L-11990, May 29, that no co-owner shall be obliged to remain the co-
1959) ownership. Because of this rule, he may demand at
any time the partition of the property owned in
f. EQUITY OF REDEMPTION VERSUS RIGHT OF common (Art. 494).
REDEMPTION
Note: It is commenced by a complaint. (Sec.1, Rule 69)
Q: Distinguish equity of redemption from right of
redemption. Q: What are the requisites of a valid partition?
A: A:
Equity of Redemption Right of Redemption 1. Right to compel the partition;
Right of the debtor, his 2. Complaint must state the nature and
Right of the defendant
successor in interest or any extent of plaintiff's title and a description
mortgagor to
judicial creditor or judgment of the real estate of which partition is
extinguish the
creditor of said debtor or demanded; and
mortgage and retain
any person having a lien on 3. All other persons interested in the
ownership of the
the property subsequent to
property by paying the property must be joined as defendants
the mortgage or deed of
debt within 90-120 (Sec. 1, Rule 69)
trust under which the
days after the entry of
property is sold to redeem
judgment or even after a. WHO MAY FILE A COMPLAINT; WHO SHOULD BE
the property within 1 year
the foreclosure sale MADE DEFENDANT
from the registration of the
but prior to
Sheriff’s certificate of
confirmation Q: Who may file and who should be made
foreclosure sale
Governed by Secs. 29-31, defendants?
Governed by Rule 68
Rule 39
A: The action shall be brought by the person who
Note: There is no right of redemption in judicial has a right to compel the partition of real estate
foreclosure sale after the confirmation of sale except (Sec. 1, Rule 69) or of an estate composed of
those granted by banks or banking institutions in favor personal property, or both real and personal
of non-judicial persons as provided by the General property (Sec. 13, Rule 69). The plaintiff is a person
Banking Act (Government Insurance System v. CFI of who is supposed to be a co-owner of the property
Iloilo, G.R. No. 45322, July 5, 1989). or estate sought to be partitioned. The defendants
are all the co-owners.
In extrajudicial foreclosure, the mortgagor has the
right to redeem the property within one year from the Q: What is the effect of non-inclusion of a co-
registration of the deed of sale. However, Sec. 47 of owner in an action for partition?
the General Banking Act provides that in case of
extrajudicial foreclosure, juridical persons shall have A:
the right to redeem the property until, but not after, 1. Before judgment – not a ground for a
the registration of the certificate of foreclosure sale motion to dismiss. The remedy is to file a
which in no case shall be more than 3 months after
motion to include the party.
foreclosure, whichever is earlier.
2. After judgment – makes the judgment
therein void because co-owners are
The pendency of the action stops the running of the
right of redemption. Said right continues after indispensable parties.
perfection of an appeal until the decision of the
153
Note: Creditors or assignees of co-owners may 2. Judgment as to the fruits and income of
intervene and object to a partition affected without the property
their concurrence. But they cannot impugn a partition 3. Judgment of partition (Riano, Civil
already executed unless there has been fraud or in Procedure: A Restatement for the Bar, p.
case it was made notwithstanding a formal opposition 596, 2009 ed.)
presented to prevent it. (Sec. 12, Rule 69)
d. ORDER OF PARTITION AND PARTITION BY
b. MATTERS TO ALLEGE IN THE COMPLAINT FOR
AGREEMENT
PARTITION
Q: What is an order of partition?
Q: What are the matters to be alleged in the
complaint for partition?
A: The order of partition is one that directs the
parties or co-owners to partition the property
A: The plaintiff shall state in his complaint, the
nature and extent of his title, an adequate Q: When does the court issue the order of
description of the real estate of which partition is partition?
demanded, and shall join as defendants all other
persons interested in the property (Sec. 1, Rule 69). A: During the trial, the court shall determine
He must also include a demand for the accounting whether or not the plaintiff is truly a co-owner of
of the rents, profits and other income from the the property, that there is indeed a co-ownership
property which he may be entitled to. These cannot among the parties, and that a partition is not legally
be demanded in another action because they are proscribed thus may be allowed. If the court so
parts of the cause of action for partition. They will finds that the facts are such that a partition would
be barred if not set up in the same action pursuant be in order, and that the plaintiff has a right to
to the rule against splitting a single cause of action. demand partition, the court will issue an order of
partition.
c. TWO (2) STAGES IN EVERY ACTION FOR
PARTITION Note: The court shall order the partition of the
property among all the parties in interest, if after trial
Q: What are the two aspects of partition it finds that the plaintiff has the right to partition (Sec.
proceedings? 2, Rule 69). It was held that this order of partition
including an order directing an accounting is final and
A: not interlocutory and hence, appealable; thus,
1. Existence of co-ownership; and revoking previous contrary rulings on the matter. A
2. Accounting or how to actually partition final order decreeing partition and accounting may be
the property. appealed by any party aggrieved thereby.
Note: During the trial, the court shall determine Q: When is partition by agreement proper?
whether or not the plaintiff is truly a co-owner and
there is co-ownership and that partition is not legally
proscribed, the court will issue an order of partition. It
A: The parties may make the partition among
directs the parties to partition the property by proper themselves by proper instruments of conveyance, if
instruments of conveyance, if they agree among they agree among themselves. If they do agree, the
themselves. court shall then confirm the partition so agreed
upon by all of the parties, and such partition,
If they do agree, the court shall then confirm the together with the order of the court confirming the
partition so agreed and such is to be recorded in the same, shall be recorded in the registry of deeds of
registry of deeds of the place in which the property is the place in which the property is situated (Sec. 2,
situated (Sec 2, Rule 69). There always exist the Rule 69).
possibility that the parties are unable to agree on the
partition. Thus, the next stage is the appointment of
e. PARTITION BY COMMISSIONERS; APPOINTMENT
commissioners.
OF COMMISSIONERS, COMMISSIONER’S REPORT;
Q: What are the stages in an action for partition COURT ACTION UPON COMMISSIONER’S REPORT
which could be the subject of appeal?
Q: Can the appointment of commissioners be
A: dispensed with in an action for partition?
1. Order determining the propriety of the A: The appointment of commissioners is mandatory

partition unless there is an extrajudicial partition between

CIVIL PROCEDURE
the parties. They have the power to effect the A; The provisions of this Rule shall apply to
partition but not to inquire into question of partitions of estates composed of personal
ownership or possession property, or of both real and personal property, in
so far as the same may be applicable (Sec. 13, Rule
Note: if parties cannot agree, the court shall appoint 69).
not more than 3 commissioners of competent and
disinterested persons to make partition. They shall h. PRESCRIPTION OF ACTION
make full and accurate report to the court of all their
proceedings as to the partition. Upon the filing of such Q: What is the rule on prescription in an action of
report, copies of which shall be served to the clerk of
partition?
court upon all interested parties with notice that they
are allowed 10 days within which to file objections to
A: Prescription of action does not run in favor of a
the findings of the report, if they so desire.
co-owner or co-heir against his co-owner or co-
The court may upon hearing accept the report and heirs as long as there is a recognition of the co-
render judgment in accordance with the same, may ownership expressly or impliedly (Art. 494). Also,
recommit to the commissioners for further the action for partition cannot be barred by
proceedings, or reject the report and render judgment prescription
that shall effectuate a fair and just partition.
12. FORCIBLE ENTRY AND UNLAWFUL DETAINER
f. JUDGMENT AND ITS EFFECTS
a. DEFINITIONS AND DISTINCTION
Q: What should the judgment contain and its
effects? Q: What is forcible entry?
A: The judgment shall state definitely, by metes and A: It is entry effected by force, intimidation, threat,
bounds and adequate description, the particular strategy, or stealth; the action is to recover
portion of the real estate assigned to each party, possession founded upon illegal possession from
the effect of the judgment shall be to vest in each the beginning.
party to the action in severalty the portion of the
real estate assigned to him. A certified copy of the Note: It is commenced by a verified complaint. (Sec. 1)
judgment shall in either case be recorded in the
registry of deeds of the place in which the real Q: What are the requisites of a valid forcible
estate is situated, and the expenses of such entry?
recording shall be taxed as part of the costs of the
action (Sec. 11, Rule 69). A:
a. If the whole property is assigned to one of the 1. A person is deprived of possession of any
parties upon his paying to the others the sum or land or building by force, intimidation,
sums ordered by the court, the judgment shall state threat, strategy, or stealth; and
the fact of such payment and of the assignment of 2. Action is brought within 1 year from the
the real estate to the party making the payment, unlawful deprivation. (Sec. 1)
and the effect of the judgment shall be to vest in
the party making the payment the whole of the real Q: What are the questions to be resolved in an
estate free from any interest on the part of the action for forcible entry?
other parties to the action.
A:
b. If the property is sold and the sale confirmed by
1. Who has actual possession over the real
the court, the judgment shall state the name of the
property;
purchaser or purchasers and a definite description
2. Was the possessor ousted therefrom
of the parcels of real estate sold to each purchaser,
within one year from the filing of the
and the effect of the judgment shall be to vest the
complaint by force, intimidation, strategy,
real estate in the purchaser or purchasers making
threat or stealth; and
the payment or payments, free from the claims of
3. Does the plaintiff ask for the restoration
any of the parties to the action.
of his possession (Dizon v. Concina, G.R.
No. 23756, Dec. 27, 1969)
g. PARTITION OF PERSONAL PROPERTY
Q: What is unlawful detainer?
Q: What is the rule on partition of personal
property?
A: It is unlawful detention by a person who has
acquired possession rightfully, but who detains the
155
property after the right to keep possession has force, intimidation, the possession of the
ended. strategy, threat property under his
or stealth. contract with the plaintiff.
Demand is jurisdictional if
Note: It is commenced by a verified complaint. (Sec. 1) No previous demand for the ground is non-
the defendant to vacate payment of rentals or
Q: What are the requisites of a valid unlawful the premises is necessary. failure to comply with the
detainer? lease contract.
The plaintiff must prove
A: that he was in prior
The plaintiff need not
1. Possession of any land or building is physical possession of the
have been in prior physical
unlawfully withheld from a lessor, vendor, premises until he was
possession.
vendee, or other person after the deprived thereof by the
expiration or termination of the right to defendant.
hold possession by virtue of any contract The 1 year period is
Period is counted from the
generally counted from
express or implied; date of last demand or last
the date of actual entry on
2. Action is brought within 1 year after such letter of demand.
the land.
unlawful deprivation or withholding of
possession; and
b. DISTINGUISHED FROM ACCION PUBLICIANA
3. Demand to pay or comply with the
AND ACCION REINVINDICATORIA
conditions of the lease and to vacate is
made upon the lessee. (Sec. 1)
Q: What are the possessory actions on real
property?
Q: Is formal contract a prerequisite in unlawful
detainer? A:
Accion Accion Accion
A: The existence of a formal contract is not Interdictal Publiciana Reinvindicatoria
necessary in unlawful detainer. Even if there is no Summary
formal contract between the parties, there can still A plenary action
action for the An action for the
be an unlawful detainer because implied contracts for the recovery
recovery of recovery of
are covered by ejectment proceedings. Possession of the real right
physical ownership,
by tolerance creates an implied promise to vacate of possession
possession which
when the
the premises upon the demand of the owner (Peran where the necessarily
dispossession
v. CFI of Sorsogon, G.R. No. 57259, Oct. 13, 1983). disposses-sion includes the
has lasted for
has not lasted recovery of
more than 1
Q: Does the amount of rents and damages prayed for more than possession.
year.
for in an action for forcible entry and unlawful 1 year.
detainer affect the jurisdiction of the courts? RTC has
All cases of RTC has
jurisdiction if
forcible entry jurisdiction if the
A: No. The amount of rents and damages claimed the value of the
and unlawful value of the
does not affect jurisdiction of the MTCs because the property
detainer property
same are only incidental or accessory to the main exceeds
irrespective of exceeds P20,000
action (Lao SengHian v. Lopez, G.R. No. L-1950, May P20,000 or
the amount of or P50,000 in
16, 1949). P50,000 in
damages or Metro Manila.
Metro Manila.
unpaid rentals
Note: If only rents or damages are claimed in an sought to be MTC has
ordinary action, the action is personal and the amount MTC has
recovered jurisdiction if the
claimed determines whether it falls within the jurisdiction if
should be value of the
jurisdiction of the RTC or the MTC. the value of the
brought to the property does
property does
MTC. not exceed the
Q: Distinguish forcible entry from unlawful not exceed the
above amounts.
detainer. above amounts.
A: Note: Forcible entry and unlawful detainer actions are

summary in nature designed to provide for an
Forcible Entry Unlawful Detainer
expeditious means of protecting actual possession or
(Detentacion) (Desahucio)
the right to possession of the property involved
Possession of the land by Possession is inceptively
(Sudaria v..Quiambao, GR No. 164305, November 20,
the defendant is unlawful lawful but it becomes
2007)
from the beginning as he illegal by reason of the
acquires possession by termination of his right to

CIVIL PROCEDURE
Q: What rule should govern the proceedings of A: The only pleadings allowed to be filed are the
accion interdictal? complaint, compulsory counterclaim and cross-
claim pleaded in the answer, and the answers
A: thereto. All pleadings shall be verified (Sec. 4, Rule
GR: Ejectment cases are summary proceedings 70).
intended to provide an expeditious means of
protecting actual possession or right to f. ACTION ON THE COMPLAINT
possession of property.
Q: What action will the court make upon receipt of
XPN: When the decision of the MTC is appealed
to the RTC, the applicable rules are those of the the complaint?
latter court (Refugia v. CA, G.R. No. 118284, July
5, 1996). A: The court may, from an examination of the
allegations in the complaint and such evidence as
c. JURISDICTION IN ACCION PUBLICIANA AND may be attached thereto, dismiss the case outright
ACCION REINVINDICATORIA on any of the grounds for the dismissal of a civil
action which are apparent therein. If no ground for
Q: In which court accion publiciana and accion dismissal is found, it shall forthwith issue summons
reinvindicatoria filed? (Sec. 5, Rule 70).
A: The actions of forcible entry and unlawful

g. WHEN DEMAND IS NECESSARY
detainer are within the exclusive and original
jurisdiction of the MTC, MeTC and MCTC (Sec.
Q: When is demand necessary?
33[2], BP 129; RA 7691) and shall be governed by
the rules on summary procedure irrespective of the
amount of damages or rental sought to be A: Unless there exists a stipulation to the contrary,
recovered (Sec. 3, Rule 70). an unlawful detainer case shall be commenced only
after the demand to pay or comply with the
conditions of the lease and to vacate is made upon
d. WHO MAY INSTITUTE THE ACTION AND WHEN;
the lessee (Sec. 2). The requirement for a demand
AGAINST WHOM THE ACTION MAY BE
implies that the mere failure of the occupant to pay
MAINTAINED
rentals or his failure to comply with the conditions
Q: Who may institute the action? of the lease does not ipso facto render his
possession of the premises unlawful. It is the failure
A: Subject to the provisions of the next succeeding to comply with the demand that vests upon the
section, a person deprived of the possession of any lessor a cause of action.
land or building by force, intimidation, threat,
strategy, or stealth, or a lessor, vendor, vendee, or Q: In what form should the demand be made?
other person against whom the possession of any
land or building is unlawfully withheld after the A: The demand may be in the form of a written
expiration or termination of the right to hold notice served upon the person found in the
possession, by virtue of any contract, express or premises. The demand may also be made by
implied, or the legal representatives or assigns of posting a written notice on the premises if no
any such lessor, vendor, vendee, or other person, person can be found thereon (Sec. 2). It has been
may, at any time within one (1) year after such ruled, however, that the demand upon a tenant
unlawful deprivation or withholding of possession, may be oral (Jakihaca vs. Aquino, 181 SCRA 67).
bring an action in the proper Municipal Trial Court Sufficient evidence must be adduced to show that
against the person or persons unlawfully there was indeed a demand like testimonies from
withholding or depriving of possession, or any disinterested and unbiased witnesses.
person or persons claiming under them, for the
restitution of such possession, together with
damages and costs (Sec. 1, Rule 70). h. PRELIMINARY INJUNCTION AND PRELIMINARY
MANDATORY INJUNCTION
e. PLEADINGS ALLOWED
Q: Can the court grant injunction while the case is
pending?
Q: What are the pleadings allowed?
A: The court may grant preliminary injunction, in
accordance with the provisions of Rule 58, to
157
prevent the defendant from committing further k. SUMMARY PROCEDURE; PROHIBITED

acts of dispossession against the plaintiff. A PLEADINGS
possessor deprived of his possession through
forcible entry or unlawful detainer may, within five Q: What is the nature of an action for forcible
(5) days from the filing of the complaint, present a entry and unlawful detainer?
motion in the action for forcible entry or unlawful
detainer for the issuance of a writ of preliminary A: Forcible entry and unlawful detainer actions are
mandatory injunction to restore him in his summary in nature designed to provide for an
possession. The court shall decide the motion expeditious means of protecting actual possession
within thirty (30) days from the filing thereof (Sec. or the right to possession of the property involved
15, Rule 70). (Tubiano vs. Riazo, 335 SCRA 531). These action
shall both fall under the coverage of the Rules of
i. RESOLVING DEFENSE OF OWNERSHIP Summary Procedure irrespective of the amount of
damages or unpaid rental sought to be recovered
Q: In what instances may the court resolve issue of (Sec. 3, Rule 70).
ownership?
Q: What are the prohibited pleadings and motion
A: When the defendant raises the issue of under Rule 70?
ownership, the court may resolve the issue of
ownership only under the following conditions: A: Prohibited pleadings and motions:
(a) When the issue of possession cannot be 1. Motion to dismiss the complaint except
resolved without resolving the issue of ownership; on the ground of lack of jurisdiction over
and the subject matter, or failure to comply
(b) The issue of ownership shall be resolved only with section 12;
to determine the issue of possession (Sec. 16). 2. Motion for a bill of particulars;
3. Motion for new trial, or for
Note: The assertion by the defendant of ownership reconsideration of a judgment, or for
over the disputed property does not serve to divest reopening of trial;
the inferior court of its jurisdiction. The defendant 4. Petition for relief from judgment;
cannot deprive the court of jurisdiction by merely 5. Motion for extension of time to file
claiming ownership of the property involved (Rural pleadings, affidavits or any other paper;
Bank of Sta. Ignacia vs. Dimatulac, 401 SCRA 742; 6. Memoranda;
Perez vs. Cruz, 404 SCRA 487).If the defendant raises 7. Petition for certiorari, mandamus, or
the question of ownership and the issue of possession prohibition against any interlocutory
cannot be resolved without deciding the question of order issued by the court;
ownership, the issue of ownership shall be resolved 8. Motion to declare the defendant in
only to determine the issue of possession (Sec. 3, RA default;
7691). 9. Dilatory motions for postponement;
10. Reply;
j. HOW TO STAY THE IMMEDIATE EXECUTION OF 11. Third-party complaints;
JUDGMENT 12. Interventions
Q: How is the execution of judgment stayed? 13. CONTEMPT
A: Defendant must take the following steps to stay

the execution of the judgment: Q: What is contempt?
1. Perfect an appeal;
A: It is a defiance of the authority, justice or dignity
2. File a supersedeas bond to pay for the rents,
of the court; such conduct as tends to bring the
damages and costs accruing down to the time of
authority and administration of the law into
the judgment appealed from; and
disrespect or to interfere with, or prejudice litigant
3. Deposit periodically with the RTC, during the
or their witnesses during litigation (Halili v. CIR, G.R.
pendency of the appeal, the adjudged amount of
No. L-24864, Nov. 19, 1985)
rent due under the contract or if there be no
contract, the reasonable value of the use and Note: It is commenced by a verified petition with
occupation of the premises (Sec. 19, Rule 70). supporting particulars and certified true copies of
documents or papers involved therein (Sec. 4).

CIVIL PROCEDURE
a. KINDS OF CONTEMPT d. Failure to obey a subpoena duly

served.
Q: What are the kinds of contempt? e. Assuming to be an attorney or an
officer of the court without
A: authority.
1. Direct or indirect, according to the f. Rescue or attempted rescue, of a
manner of commission. person or property in the custody of
2. Civil or Criminal, depending on the nature an officer.
and effect of the contemptuous act. g. Any improper conduct tending to
degrade the administration of justice
Q: Distinguish direct from indirect contempt? (Sec. 3)
A: Q: Distinguish criminal contempt from civil

Direct Contempt Indirect Contempt contempt.
Committed in the presence Not committed in the
of or so near a court. presence of the court. A:
Punished after being Criminal Contempt Civil Contempt
Summary in nature
charged and heard
Punitive in nature Remedial in nature
If committed against: IF COMMITTED AGAINST:
1. RTC – fine not 1. RTC – FINE NOT
Purpose is to provide a
exceeding P2,000 or EXCEEDING P30,000 Purpose is to
remedy for an injured suitor
imprisonment not OR IMPRISONMENT preserve the court’s
and to coerce compliance
exceeding 10 days or NOT EXCEEDING 6 authority and to
with an order for the
both. MONTHS OR BOTH punish disobedience
preservation of the rights of
2. MTC – fine not 2. MTC – fine not of its orders
private persons
exceeding P200 or exceeding P5,000
imprisonment not or imprisonment
Intent is necessary Intent is not necessary
exceeding 1 day, or not exceeding 1
both. month or both
Instituted by the aggrieved
Remedy:Certiorari or Remedy: Appeal (by party or his successor or
prohibition notice of appeal) State is the real
someone who has pecuniary
prosecutor
Contempt in facie curiae Constructive contempt interest in the right to be
protected
Q: What are the grounds of contempt?
Proof required is Proof required is more than
A: proof beyond mere preponderance of
1. Direct contempt reasonable doubt. evidence
a. Misbehavior in the presence of or so
near a court as to obstruct or If accused is If judgment is for
acquitted, there can respondent, there can be an
interrupt the proceedings
be no appeal. appeal
b. Disrespect towards the court
c. Offensive personalities toward
others; or
Q: Lawyer Mendoza, counsel for the accused in a
d. Refusal to be sworn or to answer as
criminal case, was cited for direct contempt by
a witness, or to subscribe an affidavit
Judge Tagle and was sentenced to 10 days
or deposition when lawfully required
imprisonment. Lawyer Mendoza was placed in
to do so (Sec. 1)
prison immediately. Lawyer Mendoza manifested
2. Indirect contempt
his readiness to post a bond and to appeal the
a. Misbehavior of an officer of a court
order by certiorari to stay its execution but Judge
in the performance of his official
Tagle said that the order is immediately executory.
duties or in his official transactions;
Is Judge Tagle correct?
b. Abuse or any unlawful interference
with the proceedings not A: No. An order of direct contempt is not
constituting direct contempt. immediately executory or enforceable. The
c. Disobedience of or resistance to a contemner must be afforded a reasonable remedy
lawful writ, process, order, or to extricate or purge himself of the contempt.
judgment of a court or unauthorized Under Sec. 2, Rule 71, of the Rules of Court, a
intrusion to any real property after person adjudged in direct contempt by any court
being ejected.
159
may not appeal therefrom, but may avail himself of lower court, the penalty is a fine not
the remedies of certiorari or prohibition. The exceeding 200 pesos or
execution of the judgment shall be suspended imprisonment not exceeding one (1)
pending resolution of such petition, provided such day, or both (Sec. 1)’;
person files a bond fixed by the court which c. If the contempt consists in the
rendered the judgment and conditioned that he will refusal or omission to do an act
abide by and perform the judgment should the which is yet within the power of the
petition be decided against him (Tiongco v. Judge respondent to perform, he may be
Salao, A.M. No. RTJ-06-2009, July 27, 2006). imprisoned by order of the court
concerned until he performs it.
b. PURPOSE AND NATURE OF EACH 2. A person adjudged in direct contempt may not
appeal therefrom. His remedy is a petition for
certiorari or prohibition directed against the
Q: What is the purpose of the power to contempt?
court which adjudged him in direct contempt
(Sec. 2). Pending the resolution of the petition
A: The reason for the power to punish for contempt for certiorari or prohibition, the execution of
is that respect of the courts guarantees the stability the judgment for direct contempt shall be
of their institution. Without such guarantee, said suspended. The suspension however shall take
institution would be resting on shaky foundation place only if the person adjudged in contempt
(Cornejovs.Tan, 85 Phil. 772). files a bond fixed by the court which rendered
the judgment. This bond is conditioned upon
Q: What is the nature of contempt power? his performance of the judgment should the
petition be decided against him.
A: The power to punish for contempt is inherent in
all courts; its existence is essential to the d. REMEDY AGAINST INDIRECT CONTEMPT;
preservation of order in judicial proceedings and to PENALTY
the enforcement of judgments, orders and
mandates of the courts, and, consequently, to the
Q: What is theremedy against indirect contempt
due administration of justice.
and its penalty?
Q: What are the dual aspects on the power to
punish contempt? A:
1. The punishment for indirect contempt depends
A: upon the level of the court against which the act
1. Primarily, the proper punishment of the was committed;
guilty party for his disrespect to the (a) Where the act was committed
courts; and against an RTC or a court of equivalent or
2. Secondarily, his compulsory performance higher rank, he may be punished by a fine
of some act or duty required of him by the not exceeding 30,000 pesos or
court and which he refuses to perform. imprisonment not exceeding 6 months, or
both;
c. REMEDY AGAINST DIRECT CONTEMPT; PENALTY (b) Where the act was committed
against a lower court, he may be
punished by a fine not exceeding 5,000
Q: What is theremedy against direct contempt and
pesos or imprisonment not exceeding one
its penalty?
month, or both. Aside from the applicable
penalties, if the contempt consists in the
A: violation of a writ of injunction, TRO or
1. The penalty for direct contempt depends upon status quo order, he may also be ordered
the court which the act was committed; to make complete restitution to the party
a. If the act constituting direct injured by such violation of the property
contempt was committed against an involved or such amount as may be
RTC or a court of equivalent or alleged and proved (Sec. 7);
higher rank, the penalty is a fine not (c) Where the act was committed
exceeding 2,000 pesos or against a person or entity exercising
imprisonment not exceeding 10 quasi-judicial functions, the penalty
days, or both; imposed shall depend upon the provisions
b. If the act constituting direct of the law which authorizes a penalty for
contempt was committed against a

CIVIL PROCEDURE
contempt against such persons or pursuant to law, Rule 71 shall apply suppletorily (Sec
entities. 12, Rule 71)
(2) The person adjudged in indirect contempt
may appeal from the judgment or final order of the Quasi-judicial bodies that have the power to cite
court in the same manner as in criminal cases. The persons for indirect contempt pursuant to Rule 71 of
appeal will not however have the effect of the Rules of Court can only do so by initiating them in
the proper RTC. It is not within their jurisdiction and
suspending the judgment if the person adjudged in
competence to decide the indirect contempt cases.
contempt does not file a bond in an amount fixed
by the court from which the appeal is taken. This
Q: May a non-party be held for contempt?
bond is conditioned upon his performance of the
judgment or final order if the appeal is decided A: No, unless he is guilty of conspiracy with any one
against (Sec. 11). of the parties in violating the court’s orders
(DesaEnt., Inc. v. SEC, G.R. No. L-45430, Sept. 30,
e. HOW CONTEMPT PROCEEDINGS ARE 1982).
COMMENCED
Q: Ray, through Atty. Velasco, filed a complaint for
Q: How may an action for indirect contempt be quieting of title against Chiz. Chiz, however,
commenced? interposed the defense that the documents relied
upon by Ray and Atty. Velasco were forged and
A: falsified. Finding that the said documents were
indeed forged and falsified, Judge Victoria cited
1. By order or other formal charge by the Ray and Atty. Velasco for direct contempt and
court requiring the respondent to show ordered them to serve 10 days of detention at the
cause why he should not be punished for Municipal Jail. Ray and Atty. Velasco filed a
contempt (motuproprio); or motion for bail and a motion to lift the order of
2. By a verified petition with supporting arrest. But they were denied outright by Judge
particulars and certified true copies of the Victoria. Is Judge Victoria correct?
necessary documents and papers
(independent action) (Sec. 4). A: No. Direct contempt is a contumacious act done
facie curiae and may be punished summarily
Note: The first procedure applies only when the without hearing. Indirect or constructive contempt,
indirect contempt is committed against a court or in turn, is one perpetrated outside of the sitting of
judge possessed and clothed with contempt powers. the court.
The second mode applies if the contemptuous act was Here the use of falsified and forged documents is a
committed not against a court or a judicial officer with contumacious act. However, it constitutes indirect
authority to punish contemptuous acts. (Nazareno v. contempt not direct contempt. The imputed use of
Barnes, G.R. No. L-59072, Apr. 25, 1984) a falsified document, more so where the falsity of
the document is not apparent on its face, merely
The court does not declare the respondent in default constitutes indirect contempt, and as such is
since the proceeding partakes the nature of a criminal subject to such defenses as the accused may raise
prosecution (Fuentes v. Leviste, G.R. No. L-47363, Oct.
in the proper proceedings. Thus, following Sec. 3,
28, 1982).
Rule 71, acontemner may be punished only after a
charge in writing has been filed, and an opportunity
Q: What are the procedural requisites before the
has been given to the accused to be heard by
accused may be punished for indirect contempt?
himself and counsel.
A:
Moreover, settled is the rule that a contempt
1. A charge in writing to be filed;
proceeding is not a civil action, but a separate
2. An opportunity for the person charged to
proceeding of a criminal nature in which the court
appear and explain his conduct; and
exercises limited jurisdiction. Thus, the modes of
3. To be heard by himself or counsel.
procedure and the rules of evidence in contempt
(Regalado v. Go, G.R. No. 167988, Feb. 6,
proceedings are assimilated as far as practicable to
2007)
those adapted to criminal prosecutions. Thus, the
NOTE: The rules on contempt under Rule 71 apply to judge erred in declaring summarily that Ray and
contempt committed against persons or entities Judge Velasco are guilty of direct contempt and
exercising quasi-judicial functions or in case there are ordering their incarceration. He should have
rules for contempt adopted for such bodies or entities conducted a hearing with notice to Ray and Judge
161
Velasco (Judge Espaool v. Formoso, G.R. No. g. WHEN IMPRISONMENT SHALL BE IMPOSED
150949, June 21, 2007).
Q: When shall imprisonment be imposed?
f. ACTS DEEMED PUNISHABLE AS INDIRECT
CONTEMPT A: When the contempt consists in the refusal or
omission to do an act which is yet in the power of
Q: What are the acts which are deemed the respondent to perform, he may be imprisoned
punishable as indirect contempt? by order of the court concerned until he performs
it. Indefinite incarceration may be resorted to
A:After a charge in writing has been filed, and an where the attendant circumstances are such that
opportunity given to the respondent to comment the non-compliance with the court order is an utter
thereon within such period as may be fixed by the disregard of the authority of the court which has
court and to be heard by himself or counsel, a then no other recourse but to use its coercive
person guilty of any of the following acts may be power. When a person or party is legally and validly
punished for indirect contempt: required by a court to appear before it for a certain
purpose, and when that requirement is disobeyed,
the only remedy left for the court is to use force to
1. Misbehavior an officer of a court in the
bring the person or party before it.
performance of his official duties or in his
official transactions;
2. Disobedience of or resistance to a lawful Note: The punishment is imposed for the benefit of a
writ, process, order, or judgment of a complainant or a party to a suit who has been injured
aside from the need to compel performance of the
court, including the act of a person who,
orders or decrees of the court, which the contemnor
after being dispossessed or ejected from
refuses to obey although able to do so. In effect, it is
any real property by the judgment or within the power of the person adjudged guilty of
process of any court of competent contempt to set himself free.
jurisdiction, enters or attempts or induces
another to enter into or upon such real
property, for the purpose of executing h. CONTEMPT AGAINST QUASI-JUDICIAL BODIES
acts of ownership or possession, or in any
manner disturbs the possession given to Q: What is the rule on contempt against quasi-
the person adjudged to be entitled judicial bodies?
thereto;
3. Any abuse of or any unlawful interference A: The rules on contempt apply to contempt
with the processes or proceedings of a committed against persons or entities exercising
court not constituting direct contempt quasi-judicial functions or in case there are rules for
under section 1 of this Rule; contempt adopted for such bodies or entities
4. Any improper conduct tending, directly or pursuant to law, Rule 71 shall apply suppletorily.
indirectly, to impede, obstruct, or Quasi-judicial bodies that have the power to cite
degrade the administration of justice; persons for indirect contempt can only do so by
5. Assuming to be an attorney or an officer initiating them in the proper RTC. It is not within
of a court, and acting as such without their jurisdiction and competence to decide the
authority; indirect contempt cases. The RTC of the place
6. Failure to obey a subpoena duly served; where contempt has been committed shall have
7. The rescue, or attempted rescue, of a jurisdiction over the charges for indirect contempt
person or property in the custody of an that may be filed (Sec. 12).
officer by virtue of an order or process of
a court held by him (Sec. 3).
Note: Failure by counsel to inform the court of the

death of his client constitutes indirect contempt within
the purview of Sec. 3, Rule 71, since it constitutes an
improper conduct tending to impede the
administration of justice.


UST G N 2011: 2. Ordinary Civil Actions Versus Special Civil Actions

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UST GOLDEN NOTES 2011

8. Partition (Rule 69) Declaratory Relief

Note: Subject to the

b. WHEN TO FILE 2. Cross-claim

A: Upon motion, the court may declare such

2. Special civil action of declaratory relief – an

7. CERTIORARI, PROHIBITION AND MANDAMUS

CERTIORARI PROHIBITION MANDAMUS

To correct an act performed by To prevent the commission of an To compel performance of an act

Extends to discretionary and

Only against a respondent exercising

Q: Distinction between Prohibition and injunction ministerial duty

3. Respondents acted without or in excess of A:

Q: What are the requisites of a valid prohibition? A:

A: Mandamus is only applicable to a ministerial Raises only questions of Raises questions of

Q: Distinguish prohibition and mandamus from injunction.

h. ACTIONS/OMISSIONS OF MTC/RTC IN ELECTION Q: What is quo warranto?

protest (Cesar v. Garrido, G.R. No. 30705, Mar. 25,

146 REMEDIAL LAW TEAM:

A: No. As expressly provided in the Rules, when the A:

A; When the respondent is found guilty of usurping, Q: When is expropriation proper?

148 REMEDIAL LAW TEAM:

A: If a defendant waives all defenses and objections g. ASCERTAINMENT OF JUST COMPENSATION

A: An order of expropriation (or order of Note: Typically, the time of taking is

Air Transportation Office cannot the construction of the public

150 REMEDIAL LAW TEAM:

152 REMEDIAL LAW TEAM:

1. Order determining the propriety of the A: The appointment of commissioners is mandatory

154 REMEDIAL LAW TEAM:

A: Note: Forcible entry and unlawful detainer actions are

156 REMEDIAL LAW TEAM:

A: The actions of forcible entry and unlawful

prevent the defendant from committing further k. SUMMARY PROCEDURE; PROHIBITED

Q: How is the execution of judgment stayed? 13. CONTEMPT

A: Defendant must take the following steps to stay

158 REMEDIAL LAW TEAM:

a. KINDS OF CONTEMPT d. Failure to obey a subpoena duly

A: Q: Distinguish criminal contempt from civil

160 REMEDIAL LAW TEAM:

Note: Failure by counsel to inform the court of the

162 REMEDIAL LAW TEAM:

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