SPECIAL CIVIL ACTIONS TSN
Based on the lectures of Atty. Tiu
3-Manresa 2018 Ateneo de Davao University
Special Civil Actions
(Nov. 7, 2018. ICFC)
There are several special civil actions enumerated in the Rules of Court.
Some can be filed by a PETITION, some by a COMPLAINT.
What are those special civil actions that can be filed by a petition?
1. Declaratory relief and similar reliefs (Rule 63)
2. Review of Judgments and Final Orders or Resolutions of the
Commission on Elections and the Commission on Audit (Rule
64)
3. Certiorari, Prohibition, Mandamus (Rule 65)
4. Quo Warranto (Rule 66)
5. Contempt (Rule 71)
What makes these actions special as opposed to an ordinary action?
It’s the existence of SPECIAL RULES pertaining to these specific remedies
or actions; the peculiarity in the rules that sets them apart from the
ordinary civil action.
What are the special civil actions that can be commenced by a
complaint?
1. Interpleader (Rule 62)
2. Expropriation (Rule 67)
3. Foreclosure of Real Estate Mortgage (Rule 68)
4. Partition
5. Forcible Entry and Unlawful Detainer
Some of these special civil actions have their peculiarities in the absence
of an actual violation of a right. That is why, technically, that means no
cause of action involved. What are those?
1. INTERPLEADER. The one who files
complaint-in-interpleader has no interest in the subject
matter. There is no violation of his right only a protection for a
possibility of being subjected to double vexation arising from
double liability.
2. DECLARATORY RELIEF. Again there is no actual violation of a
right here. There is no presence of all elements of cause of
action. Under Rule 63 you also have the remedy of
REFORMATION of INSTRUMENT.
For remedies of last resort, another peculiarity that makes certain actions
special, you have
1. Rule 64 - Review of Judgments and Final Orders or Resolutions
of the Commission on Elections and the Commission on Audit
2. Rule 65 - Certiorari, Prohibition, Mandamus
Those that are subject to a one-year time bar, which is a peculiarity, we
have:
1. Quo warranto
2. Unlawful Detainer and Forcible Entry
For actions that involve two stages we have:
A. Trial by Commissioners under:
1. Rule 67 - Expropriation
2. Rule 69 – Partition
B. No Commissioners
3. Rule 68 - Foreclosure
Another peculiarity is the enforcement of the power of the court that tis
CONTEMPT both direct or indirect
Lets start with the absence of an actual violation or right.
Rule 62. INTERPLEADER
Interpleader is a remedy of a person who is confronted with two
conflicting claims with respect to the same subject matter over which he
has no interest. His only purpose for filing the complaint-in-interpleader
is to COMPEL the conflicting claimants to litigate their claims among
themselves.
Who may file a complaint in interpleader?
Any person who:
1. Claims no right over the subject matter
2. Possess real or personal property, or
3. Has the obligation to render wholly or partially, and he does
not know who between the conflicting claimants should he
perform his obligation
An example of that is a LESSEE. When confronted with two conflicting
claims of persons claiming to be the owner of the property leased. The
very purpose of interpleader is to protect the complainant from double
vexation.
The person who files a complaint-in-interpleader is called the
STAKEHOLDER. His remedy is to file an interpleader to prevent a wrong,
which is to make payment to a person not entitled and to protect himself
from being vulnerable to lawsuit from those legally entitled to the
performance of the obligation.
When is it proper?
When he is confronted with conflicting claims provided that the requisites
are present: he takes no interest in the subject matter and there are two
conflicting claimants of the same subject matter, the parties must make
a effective claims, and there must be one and the same subject matter.
So when will the complaint-in-interpleader be filed?
It should be filed before LACHES set in or before a JUDGMENT has already
been rendered against the stakeholder rendering him liable to one party.
Wack wack golf v Won
It has been held that a stakeholder’s action of interpleader is too late
when filed after judgment has been rendered against him in favor of one
of the contending claimants,13 especially where he had notice of the
conflicting claims prior to the rendition of the judgment and neglected the
opportunity to implead the adverse claimants in the suit where judgment
was entered. This must be so, because once judgment is obtained against
him by one claimant he becomes liable to the latter. To be entitled to this
remedy the applicant must be able to show that he has not been made
independently liable to any of the claimants.
Now is there such a thing as a counterclaim or cross-claim in
interpleader?
Bank of Commerce v Planter’s Development Bank
F: BSP, in its answer, include a cross-claim for interpleader because it
claims that there are conflicting claimants of certain central bank bills.
I: Can you interpose an interpleader by a cross-claim or a counterclaim?
R: The interpleader here can be allowed, not because it forms part with
the counterclaim, but it was treated as a motion that the trial court can
take cognizance of. When it was given due course, then the parties may
make effective claims.
From the case: The remedy of interpleader, as a special civil action, is
primarily governed by the specific provisions in Rule 62 of the Rules of
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 SPECIAL CIVIL ACTIONS TSN
Based on the lectures of Atty. Tiu
3-Manresa 2018 Ateneo de Davao University

Court and secondarily by the provisions applicable to ordinary civil
actions. Indeed, Rule 62 does not expressly authorize the filing of a
complaint-in-interpleader as part of, although separate and independent
from, the answer. Similarly, Section 5, Rule 6, in relation to Section 1, Rule
9 of the Rules of Court does not include a complaint-in-interpleader as a
claim, a form of defense, or as an objection that a defendant may be
allowed to put up in his answer or in a motion to dismiss. This does not
mean, however, that the BSP’s “counter-complaint/cross-claim for
interpleader” runs counter to general procedures.
may, on motion, declare him in default and thereafter render judgment
barring him from any claim in respect to the subject matter.
The parties in an interpleader action may file counterclaims, cross-claims,
third-party complaints and responsive pleadings thereto, as provided by
these Rules. 
Section 6. Determination. — After the pleadings of the conflicting
claimants have been filed, and pre-trial has been conducted in accordance
with the Rules, the court shall proceed to determine their respective
rights and adjudicate their several claims.

Interpleader is a civil action made special by the existence of particular

rules to govern the uniqueness of its application and operation. Under
Section 2, Rule 6 of the Rules of Court, governing ordinary civil actions, a
party’s claim is asserted “in a complaint, counterclaim, cross-claim, third
(fourth, etc.)-party complaint, or complaint-in-intervention.” In an
interpleader suit, however, a claim is not required to be contained in any
of these pleadings but in the answer-(of the conflicting
claimants)-in-interpleader. This claim is different from the counter-claim
(or cross- claim, third party-complaint) which is separately allowed under
Section 5, par. 2 of Rule 62.
Section 2. Order. — Upon the filing of the complaint, the court shall issue
an order requiring the conflicting claimants to interplead with one
another. If the interests of justice so require, the court may direct in such
order that the subject matter be paid or delivered to the court.  defendants in interpleader who should pay the docket fees because it’s
Under section 2, the conflicting claimants may assert their respective
claims in their own pleadings not in the complaint-in-interpleader
because the complaint-in-interpleader is merely an INITIATORY
PLEADING for the conflicting claimants to plead their respective claims.
That is the uniqueness of an interpleader action.
Who will pay the docket fees?
Section 7. Docket and other lawful fees, costs and litigation expenses as
liens. — The docket and other lawful fees paid by the party who filed a
complaint under this Rule, as well as the costs and litigation expenses,
shall constitute a lien or change upon the subject matter of the action,
unless the court shall order otherwise
The docket fee will be paid initially by the one who filed the
complaint-in-interpleader and subject to reimbursement by the
claimants. The costs and expense will be considered a lien or charge on
the subject matter of the action.
The complainant in interpleader will later on be reimbursed of such costs
and expense as found later by the court. Technically, it will be the
their claims that are being litigated. It is their rights that are going to be
adjudicated by the court.
So this is the flowchart

The Supreme Court held (in a case) that in an interpleader suit a claim is
not required to contain in any of these pleadings but in an
ANSWER-IN-INTERPLEADER. If there is a complaint-in-interpleader
requiring the parties to litigate their claims among themselves, they now
assert their respective claims in their answer-in-interpleader. The
complaint-in-interpleader does not assert any claim, it only requires the
conflicting claimant to litigate their claims. This is different from the
COUNTERCLAIM which is allowed in sec 5, par 2 of Rule 62.
Here you have an answer in the complaint-in-interpleader where you
assert your claim, and you still assert a counterclaim. The counterclaim is
different. This is a separate claim na.

So an answer-in-interpleader can contain your:

1. Claim
2. Counterclaim

(T/N: The following provisions are not mentioned by Maam)

When a complaint-in-interpleader is filed in court, and the court gives due
Section 3. Summons. — Summons shall be served upon the conflicting
course to it, it could issue an ORDER directing the parties to interplead
claimants, together with a copy of the complaint and order.
and to have the subject matter deposited or paid in court. Thereafter
Section 4. Motion to dismiss. — Within the time for filing an answer, each
there will be service of summons and copies of the complaint and order to
claimant may file a motion to dismiss on the ground of impropriety of the
the claimants.
interpleader action or on other appropriate grounds specified in Rule 16.
The period to file the answer shall be tolled and if the motion is denied,
The claimants then file an answer within 15 days or a motion to dismiss.
the movant may file his answer within the remaining period, but which
When a motion to dismiss is filed, the ground will only be limited to
shall not be less than five (5) days in any event, reckoned from notice of
IMPROPRIETY of the complaint-in-interpleader and other grounds that
denial.
may be raised. In the absence of an answer, the defendants can be
Section 5. Answer and other pleadings. — Each claimant shall file his declared in default upon motion and there will be judgment against them.
answer setting forth his claim within fifteen (15) days from service of the
summons upon him, serving a copy thereof upon each of the other If a motion to dismiss has been filed and then denied, the defendant will
conflicting claimants who may file their reply thereto as provided by these have the remaining number of days not less than 5 days within which to
Rules. If any claimant fails to plead within the time herein fixed, the court submit their answer, third-party claim, cross-claim and counterclaim.

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 SPECIAL CIVIL ACTIONS TSN
Based on the lectures of Atty. Tiu
3-Manresa 2018 Ateneo de Davao University
Thereafter there will be pre-trial. After which there will be hearing and
trial and there will be judgment rendered by the court.
Only after judgment has been rendered that docket fees and costs will be
taxed against the person liable. So it can be any of the defendants can be
held liable. Although in the meantime, advanced by the complainant.
Let’s go to declaratory relief
Section 1. When interpleader proper. — Whenever conflicting claims upon
the same subject matter are or may be made against a person who claims
no interest whatever in the subject matter, or an interest which in whole
or in part is not disputed by the claimants, he may bring an action against
the conflicting claimants to compel them to interplead and litigate their
several claims among themselves.
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Rule 63. Declaratory Relief and Similar Remedies
This also involves no violation of any right.
What is the concept of declaratory relief?
Multi-Realty Development Corporation v Makati Tuscany
I: Why is it allowed for a person to file a case even there is no actual
violation of a right?
From the case: Such a petition is a special civil action determinative of
the rights of the parties to the case. It is permitted on the theory that
courts should be allowed to act, not only when harm is actually done and
rights jeopardized by physical wrongs or physical attack upon existing legal
relations, but also when challenge, refusal, dispute or denial thereof is made
amounting to a live controversy. The uncertainty and insecurity which may
thereby be avoided may hamper or disturb the freedom of the parties to
transact business or to make improvements on their property rights. A
situation is thus created when a judicial declaration may serve to prevent
a dispute from ripening into violence or destruction must be ripe for
judicial determination.
The concept and meaning of the term cause of action in proceedings for
declaratory relief, vis-à-vis an ordinary civil action, is broadened. It is not,
as in ordinary civil action, the wrong or delict by which the plaintiff’s
rights are violated, but it is extended to a mere denial, refusal or challenge
raising at least an uncertainty or insecurity which is injurious to plaintiff’s
rights.
(Maam: Here there is an expanded or broadened concept of the cause of
action. A perfect example would be an annotation of an adverse claim in a
title. The adverse claim itself is not a violation of a right. It does not yet
establish the existence of an actual cause of action but because of that
annotation, as an owner, you are now uncertain to proceed or what to do
with your property because you cannot even sell it without the buyer
being considered a buyer in bad faith. You cannot sell it without the
danger of the sale being nullified later on because of the adverse claim.
So if you want to put a stop to the uncertainty, you can file an action to
remove the cloud from your title. This is actually falling under the similar
remedies under Rule 63. Not really declaratory relief but similar reliefs
which is the quieting of title)
For a petition for declaratory relief to prosper, the following
conditions sine qua non must concur: (1) there must be a justiciable
controversy; (2) the controversy must be between persons whose
interests are adverse; (3) the party seeking declaratory relief must have a
legal interest in the controversy; and (4) the issue involved must be ripe
for judicial determination.
So in order to clarify whatever doubts there may be or whatever live
controversy there may be with respect to certain legal relations, a part
can file a declaratory relief action.
When is the filing for an action for declaratory relief proper?
Only when there is no other available remedy.
Obviously you cannot file a case for specific performance because there is
yet no violation of a right. If specific performance is available, then it
means there is already an actual violation of a right and this remedy is no
longer available.
The purpose of declaratory relief is for the court to make a proper
interpretation of a contract and not to ask for injunction, execution or
other relief beyond the adjudication of the legal rights which are the
subject of the controversy between the parties. There is no executory
 SPECIAL CIVIL ACTIONS TSN
Based on the lectures of Atty. Tiu
3-Manresa 2018 Ateneo de Davao University
process in a declaratory relief. It ends when the court issues a decision
DECLARING the rights of the parties and that’s it. You cannot anymore file
a motion for execution.
Section 1. Who may file petition. — Any person interested under a deed,
will, contract or other written instrument, or whose rights are affected by
a statute, executive order or regulation, ordinance, or any other
governmental regulation may, before breach or violation thereof bring an
action in the appropriate Regional Trial Court to determine any question
of construction or validity arising, and for a declaration of his rights or
duties, thereunder
The declaratory relief action is to secure an authoritative statement of the
rights and obligations of the parties under a statute, deed or contract or
the ____ for the enforcement thereof or compliance of the same.
So what are the subject matter of declaratory relief?
● Deed
● Will
● Contract or other written instrument
● Statute
● Executive order
● Regulation
● Ordinance
● Any other government regulation
How about Supreme Court issuances? Can this be subject to
declaratory relief? No. not included in the enumeration
Court orders? No. Not included in the enumeration. You have specific
remedies to question court orders
Supreme Court decisions? No.
Land Titles? Yes. If there is doubt from the land title you can have it as a
subject matter for declaratory relief provided there is yet no breach.
When do you file the action?
BEFORE BREACH of obligation of a deed, will, contract, or other written
instrument, statute, executive order, regulation, ordinance, or any order.
What happens if there is already a breach?
The court will have no jurisdiction to entertain an action for declaratory
relief.
Who may file?
So ANY PERSON provided he can show interest under a deed, will,
contract or other written instrument, or whose rights are affected by a
statute, executive order or regulation, ordinance, or any other
governmental regulation.
So if it is a will, deed, contract or written instrument, he must be able to
show his own particular interest in such instrument. If it is a statute,
executive order, regulation, ordinance or other governmental regulation,
he must be able to show that his RIGHTS are affected thereby. So if he did
not show any effect of the statute, then there is no reason for initiating the
action.
Section 2. Parties. — All persons who have or claim any interest which
would be affected by the declaration shall be made parties; and no
declaration shall, except as otherwise provided in these Rules, prejudice
the rights of persons not parties to the action.
Now all persons who claim any interest the will, deed, contract or written
instrument should be made as parties, non-inclusion of these interested
4
parties will not inviolate the proceeding. It will only be binding on the
persons who participated in the proceeding. So they cannot be bound.
Section 3. Notice on Solicitor General. — In any action which involves the
validity of a statute, executive order or regulation, or any other
governmental regulation, the Solicitor General shall be notified by the
party assailing the same and shall be entitled to be heard upon such
question.
Section 4. Local government ordinances. — In any action involving the
validity of a local government ordinance, the corresponding prosecutor or
attorney of the local governmental unit involved shall be similarly notified
and entitled to be heard. If such ordinance is alleged to be
unconstitutional, the Solicitor General shall also be notified and entitled to
be heard
Now the Solicitor General will have to be notified if the action involves the
validity of a statute, executive order or regulation, or any other
governmental regulation. Any issuances by the national government,
whether congress or executive department, or any agency of the executive
department, any regulation, if you question the validity of that then you
will have to notify the solicitor general.
If it is an ORDINANCE, then you only notify the local prosecutor unless
your ground is the ordinance is unconstitutional. If it involves
constitutionality of an ordinance, then you’ll have to notify the Solicitor
General.
So where do you file it?
Exclusive original jurisdiction belongs to the Regional Trial Court. The SC
and CA have no jurisdiction over declaratory relief actions
You have here the requisites
1. There must be a justiciable controversy
2. The controversy must be between persons whose interests are
adverse
3. The party seeking declaratory relief must have a legal interest
in the controversy
4. The issue involved must be ripe for judicial determination
What is justiciable controversy?
There must be an assertion of an adverse claim presenting a ripe issue.
The petition must be able to show an active antagonistic assertion of a
legal right on one side and a denial thereof on the other concerning the
real and not a mere theoretical question or issue.
So what will be the action of the court once the petition is filed?
Section 5. Court action discretionary. — Except in actions falling under
the second paragraph of section 1 of this Rule, the court, motu proprio or
upon motion, may refuse to exercise the power to declare rights and to
construe instruments in any case where a decision would not terminate
the uncertainty or controversy which gave rise to the action, or in any case
where the declaration or construction is not necessary and proper under
the circumstances. 
So the court may:
1. Dismiss the petition motu proprio or upon motion when the
decision will not terminate the uncertainty or controversy that
gave rise to the action or the declaration or construction is not
necessary or proper under the circumstances, or
2. Grant the petition and issue a declaratory judgment when it
will serve a useful purpose in clarifying the legal relations in
issue and it will terminate and accord relief from the
uncertainty and controversy of the rights in the proceeding.
 SPECIAL CIVIL ACTIONS TSN
Based on the lectures of Atty. Tiu
3-Manresa 2018 Ateneo de Davao University
3. CONVERSION of the action into an ORDINARY ACTION and that
action happens when there is BREACH or violation of the deed,
will, instrument, executive order etc subject of the action. So if
there is breach, then the court can turn the action into an
ordinary action and in such case, the parties shall be allowed to
file such pleadings as may be necessary or proper.
(T/N: Ref Section 6)
Section 6. Conversion into ordinary action. — If before the
final termination of the case, a breach or violation of an
instrument or a statute, executive order or regulation,
ordinance, or any other governmental regulation should take
place, the action may thereupon be converted into an
ordinary action, and the parties shall be allowed to file such
pleadings as may be necessary or proper
What is the distinction between declaratory relief and ordinary
action in terms of judgments?
Declaratory Relief Ordinary action
No executory clauses in a There is an execution proceeding
declaratory relief
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Now let’s go to remedies of last resort. These are:
1. Rule 64
2. Rule 65
Rule 64. Review of judgments and final orders or resolutions of the
Commission on Elections and the Commission on Audit
Rule 64, Section 1. Scope. — This Rule shall govern the review of
judgments and final orders or resolutions of the Commission on Elections
and the Commission on Audit.
We know, certiorari covers both Rule 64 and 65. Rule 64 covers
judgments and final resolutions of the Comelec and CoA. The scope here is
limited to final judgments and resolutions of Comelec and CoA. The basis
of this is Article IX, Sec 7 of the 1987 Constitution. It says that the
decision, order or ruling of each commission, may brought to the Supreme
Court on CERTIORARI by the aggrieved party within 30 days from the
receipt of a copy thereof. The mode of review would be certiorari under
rule 65 and the same grounds in Rule 65 which is grave abuse of
discretion amounting to lack or excess in jurisdiction. The caption of the
petition will be Petition for Certiorari. When you say “petition for review
on certiorari” that is actually a certiorari petition under Rule 45.
So for Rule 64, the orders, rulings and decisions of the Comelec and CoA
should be:
1. Final and
2. Rendered in the exercise of its adjudicatory or quasi-judicial
powers.
3. It is not orders coming from a Comelec division
There is only one court that will entertain a petition under Rule 64 and
that is the SUPREME COURT.
This is now the flow chart
1. You file a petition before the Supreme Court
2. The Supreme Court can either dismiss it outright or require
respondent to comment within 10 days.
3. When CoA or Comelec files its comment, the Court will set the
date for oral argument or the submission of memorandum. The
same thing if the respondent does not file a comment. The SC
will opt to require an oral argument or the submission of
memoranda
4. Then there will be a decision.
 SPECIAL CIVIL ACTIONS TSN
Based on the lectures of Atty. Tiu
3-Manresa 2018 Ateneo de Davao University

Rule 65. Certiorari, Prohibition, and Mandamus

Under Rule 65, you have here the specific remedies; certiorari, prohibition
and mandamus. As far as certiorari is concerned, that is the kind of
certiorari that we also apply for petitions under Rule 64.

A. CERTIORARI

What is certiorari?
It is a writ issued by a superior court to any inferior court board, or officer
exercising judicial or quasi-judicial functions whereby the records of a
particular case is ordered to be elevated up for review and correction in
matters in law. It is a prerogative writ and issued in the exercise of Judicial
Discretion.

It says here records of a particular case is ordered to be elevated up for

review and correction in matters of law. This is different from appeal. In
appeal, it is the usual course to bring the records up to the higher court
for review. It is not the petitioner who is not burdened to elevate the
records it is the court a quo. They have to elevate everything up to the
appellate court.

In certiorari that is not the case. In here, the PETITIONER will have to
produce all the records and attach it to the petition. That’s why in your
requirements the records will have to be certified true copies and you
elevate it to the SC or CA or even the RTC.

What is important in certiorari is that it is more tedious on the part of the

petitioner because he will have to reproduce all the records and bring it to
the higher court for review. Whereas in appeal, it is the lower court the
moment they give due course of the appeal, they are duty bound to
transmit the records of the case for appeal.

What are the requisites?

1. There must be a tribunal, board or officer exercising judicial or
quasi-judicial functions
2. Has acted without or in excess of jurisdiction or with grave
abuse of discretion amounting to lack or excess in jurisdiction.
3. There is no appeal, or any plain, speedy, and adequate remedy
in the ordinary course of law

Does certiorari lie to assail the issuance of a resolution by the

Sangguniang Panglungsod?
No, because that is not in the exercise of a judicial or quasi judicial
function, that is in the exercise of a legislative function. (Yusay v CA, April
6, 2011)

Does certiorari lie against the JBC?

Yes. because the JBC somehow exercises discretion. It is judicially settled
that a petition for certiorari is the proper remedy to question the act of
any branch or instrumentality of the government on the ground of grave
abuse of discretion amounting to lack or excess of jurisdiction by any
branch or instrumentality of the government, even if the latter does not
exercise judicial, quasi-judicial or ministerial functions. In a case like this,
where the Constitutional bearings are too blatant to ignore, the court does
not deem passivity as an alternative. The impasse must be overcome.

(Jardeleza v Sereno)

The SC here said that the JBC is a constitutional body and is in-charge in
processing nominations for judges and justices. Somehow it exercises
discretion when it performs its function. If there is a violation in the
constitution, then certiorari will lie. The ruling here as to whether a
function that is not judicial or quasi-judicial in nature can be subject of
certiorari is part vague(?) in so far as the case of Jardeleza is concerned.
Does certiorari lie against the executive department to question
executive issuances and implementation?
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 SPECIAL CIVIL ACTIONS TSN
Based on the lectures of Atty. Tiu
3-Manresa 2018 Ateneo de Davao University

This is the DAP case involving the executive counterpart of pork barrel. In Because judicial discretion is presumed to be performed in accordance
that case, there is an executive issuance, the DAP is a product of executive with the tenets of justice and fair paly. There is a presumption that a
issuance, now can that be subject to certiorari in questioning the validity decision is rendered fairly and justly. To assail that, you have to overcome
before the SC? The SC said YES. the presumption and show that there is grave abuse of discretion and the
burden now is on the petitioner.
It then expounded on the concept of the expanded judicial power which
essentially centers on the determination of whether there is grave abuse When you say grave abuse of discretion the abuse of discretion must be
of discretion amounting to lack or excess in jurisdiction on the part of any patent and grave as to amount to an evasion of positive duty or refusal to
branch or instrumentality of the government. So judicial power now is not perform a duty required by law, or act in an arbitrary or despotic manner
only limited to the settlement of actual controversies involving rights by reason of passion and hostility.
which are legally demandable and enforceable in ordinary course of law,
but extends now to determination of grave abuse of discretion on the part There can be grave abuse of discretion when there is action despite the
of any branch or instrumentality of the government. So this second lack of jurisdiction. So here, you have to show the lack of jurisdiction,
portion of Article VIII, Section 1 of the 1987 Constitution embodies the meaning, there is absolutely no authority to act on the matter and yet
expanded judicial power of the SC. On that basis, the SC justified the there was action. This is error in jurisdiction.
certiorari petition against the executive department questioning the
executive issuances. Error in the exercise of Error in jurisdiction
jurisdiction
How about the declaration of martial law? Is certiorari the It is in the appreciation of the There is something wrong with the
appropriate remedy? (That was the argument of the SolGen saying that evidence in the conduct of the jurisdiction itself
the petition questioning the martial law should be treated as a petition for proceeding
certiorari under Rule 65 and should comply with the specific requisites of
Rule 65, meaning, there should be a showing of grave abuse of discretion) All acts in deciding questions in a case are considered as part in the
exercise of jurisdiction and the remedy would be an ordinary appeal and
The SC said No. The declaration of martial law cannot be reviewed under not certiorari.
Rule 65 because the appropriate proceeding under 3rd par, section 18,
Article VII of the 1987 Constitution does not refer to a certiorari action When you say EXCESS IN JURISIDCTION, there is jurisdiction but there is
under Rule 65. an overboard on the boundaries set by law, that can still amount to grave
abuse of discretion.
To conclude that the appropriate proceeding refers to a petition for
certiorari filed under the expanded jurisdiction of this court would So as a general rule, a certiorari is not a substitute for appeal. If your
therefore contradict the clear intention of the framers of the Constitution proper remedy is appeal, then you should appeal. If you did not file the
to place additional safeguards against possible martial law abuse. So appeal, and later on file a case for certiorari, chances are it will be
invariably the 3rd paragraph of section 18, Art VII will be subsumed under dismissed because of this basic principle that certiorari is not a substitute
section 1 of Article VII. In other words, the framers of the Constitution of appeal. There are exceptions however, these are:
added the same _____ in the 3rd par of section 18 on top of the expanded 1. When there is a question of public policy
jurisdiction of this court. 2. In the interest of justice
3. When the writs issued are null and void
So these are 2 separate remedies and the remedy under section 18 of 4. When the questioned order amounts to an oppressive exercise
Article VII is considered to be sui generis. Take note that the SC is not a of judicial authority.
trier of facts and in reviewing the propriety of the declaration of martial
law, it has to look into factual circumstances to justify the declaration. Appeal by certiorari Rule 45 Certiorari under Rule 65
That is sui generis. It cannot be subsumed under certiorari under section To review errors of judgment Corrects errors of jurisdiction only
1, Article VII of the 1987 Constitution. committed by the court in the or grave abuse of discretion
exercise of its jurisdiction amounting to lack of jurisdiction
As far as the agencies under the executive branch that exercise
Involves review of judgments, Maybe directed against an
quasi-judicial function (ex. NLRC, DARAB, HLURB, BoC, BIR), they are also
awards or final orders interlocutory order prior to appeal
covered under Rule 65 whenever they commit grave abuse of discretion.
or where there is no appeal, speedy
Although they belong in the executive department, because they exercise
or adequate remedy
quasi-judicial functions, their findings can be subject for review under
Filed within the reglementary Filed not later than 60 days from
Rule 65. The purpose of that is to keep administrative bodies within their
period to appeal (15 days). notice of judgment or order
jurisdiction and protect substantial rights of the parties affected by their
Extension can be asked (Unless related to Rule 64, in which
decision. So the review here of the findings of another independent
case, this is shortened to mere 30
branch of the government is in keeping with the system of checks and
days)
balances among the three branches which is covered by the expanded
judicial power of review of the judiciary. Stays judgment, awards or final Does not stay the challenged
orders appealed from (Not yet proceeding unless a TRO or
Grave Abuse of Discretion executory) injunctive writ is issued
It is not necessary to specifically state the words “grave abuse of Petitioner and respondent are the The parties are the aggrieved party
discretion” it is not fatal. What is important is a clear showing that there is original parties to the action, lower against the lower court or
GAOD. After all, grave abuse of discretion is a mere conclusion of law. The court is not impleaded quasi-judicial agency and
factual allegations are more important. prevailing parties
Prior filing of motion for Motion for reconsideration is a
Why is it that there must be a showing of grave abuse of discretion reconsideration is not required condition precedent subject to
for Rule 65 to be applied? certain exceptions

7
 SPECIAL CIVIL ACTIONS TSN
Based on the lectures of Atty. Tiu
3-Manresa 2018 Ateneo de Davao University
Appellate court is in the exercise of Higher court exercises original
its appellate jurisdiction and jurisdiction thru its power of
power of review control and supervision over lower
court’s proceedings
There are rules where interlocutory orders cannot be subject of
certiorari, they are in fact prohibited, what are those rules?
1. Rules on Summary Procedure
2. Rules on the Writ of Amparo
3. Rules on Habeas Data
4. VAWC
B. PROHIBITION
What is prohibition?
Prohibition is a writ by which a superior court prevents the inferior
courts, a corporation, board or persons from usurping or exercising, a
jurisdiction or a power with which they have not been vested by law. It is
preventive in nature.
Requisites:
1. Main ground: Lack of jurisdiction, grave abuse of discretion
amounting to lack or excess of jurisdiction
2. Common ground: there is no appeal, plain, speedy and
adequate remedy in the ordinary course of law
May prohibition lie against the Mayor in demolition cases? Yes
because the mayor exercises discretion. So he can be prevented by a
prohibition action.
City Engineer of Baguio v Baniqued
Yes. The office of the mayor is given powers not only relative to its
function as the executive official of the town, it has also been endowed
with authority to hear the issues involving property rights of individuals
and to come out with an effective order or resolution thereon. In this
manner it exercises quasi-judicial functions. This power is obviously a
truism the matter of issuing demolition notices and/or orders against
squatters and illegal occupants through some of its agencies or authorized
committees within its respective municipalities or cities.
There is no gainsaying that a city mayor is an executive official nor is the
matter of issuing demolition notices or orders not a ministerial one. But
then, it cannot be denied as well that in determining whether or not a
structure is illegal or it should be demolished, property rights are involved
thereby needing notices and opportunity to be heard as provided for in
the constitutionally guaranteed right of due process. In pursuit of this
function, the city mayor has to exercise quasi-judicial powers.
How about in the exercise of a quasi-legislative action? Can
prohibition lie?
Holy Spirit Homeowners v Defensor
A petition for prohibition is also not the proper remedy to assail an IRR
issued in the exercise of a quasi-legislative function. Prohibition is an
extraordinary writ directed against any tribunal, corporation, board,
officer or person, whether exercising judicial, quasi-judicial or ministerial
functions, ordering said entity or person to desist from further
proceedings when said proceedings are without or in excess of said
entity’s or person’s jurisdiction, or are accompanied with grave abuse of
discretion, and there is no appeal or any other plain, speedy and adequate
remedy in the ordinary course of law. Prohibition lies against judicial or
ministerial functions, but not against legislative or quasi-legislative
functions. Generally, the purpose of a writ of prohibition is to keep a lower
court within the limits of its jurisdiction in order to maintain the
administration of justice in orderly channels. Prohibition is the proper
8
remedy to afford relief against usurpation of jurisdiction or power by an
inferior court, or when, in the exercise of jurisdiction in handling matters
clearly within its cognizance the inferior court transgresses the bounds
prescribed to it by the law, or where there is no adequate remedy
available in the ordinary course of law by which such relief can be
obtained. Where the principal relief sought is to invalidate an IRR,
petitioners’ remedy is an ordinary action for its nullification, an action
which properly falls under the jurisdiction of the Regional Trial Court. In
any case, petitioners’ allegation that “respondents are performing or
threatening to perform functions without or in excess of their jurisdiction”
may appropriately be enjoined by the trial court through a writ of
injunction or a temporary restraining order.
There are declaratory relief petitions which were taken cognizance by the
SC despite the erroneous filing, nonetheless, it is considered as an action
for prohibition. This is the case of:
Diaz v Secretary of Finance
On August 24, 2010 the Court issued a resolution, treating the petition as
one for prohibition rather than one for declaratory relief, the
characterization that petitioners Diaz and Timbol gave their action. The
government has sought reconsideration of the Court’s resolution,
however, arguing that petitioners’ allegations clearly made out a case for
declaratory relief, an action over which the Court has no original
jurisdiction. The government adds, moreover, that the petition does not
meet the requirements of Rule 65 for actions for prohibition since the BIR
did not exercise judicial, quasi-judicial, or ministerial functions when it
sought to impose VAT on toll fees. Besides, petitioners Diaz and Timbol
has a plain, speedy, and adequate remedy in the ordinary course of law
against the BIR action in the form of an appeal to the Secretary of Finance.
But there are precedents for treating a petition for declaratory relief as
one for prohibition if the case has far-reaching implications and raises
questions that need to be resolved for the public good. The Court has also
held that a petition for prohibition is a proper remedy to prohibit or
nullify acts of executive officials that amount to usurpation of legislative
authority.
Prohibition Certiorari
The respondent is to be ordered to Seeks to nullify or modify the
desist in further proceeding with proceedings of any tribunal
the action
Preventive remedy to prevent Corrective remedy for the
future actions directed to the court re-examination of some action of
itself (Araullo v Aquino) an inferior tribunal, and directed to
the proceeding of the lower court
itself
Includes a private party as Not necessarily in certiorari
respondent
Similarities
Both are ORIGINAL and independent actions.
Grounds: lack of jurisdiction, excess of jurisdiction, grave abuse of
discretion
In the case of Araullo v Aquino, there are 2 remedies when there is grave
abuse of discretion:
1. Certiorari – Rule 64 and Rule 65
2. Prohibition – Rule 65
Araullo v Aquino (July 1, 2014)
The sole office of the writ of certiorari is the correction of errors of
jurisdiction, which includes the commission of grave abuse of discretion
amounting to lack of jurisdiction. In this regard, mere abuse of discretion
is not enough to warrant the issuance of the writ. The abuse of discretion
must be grave, which means either that the judicial or quasi-judicial
 SPECIAL CIVIL ACTIONS TSN
Based on the lectures of Atty. Tiu
3-Manresa 2018 Ateneo de Davao University

power was exercised in an arbitrary or despotic manner by reason of Prevents Commands

passion or personal hostility, or that the respondent judge, tribunal or Seeks to prevent the execution or Seeks to compel compliance with
board evaded a positive duty, or virtually refused to perform the duty continuation of an act the functions prescribed by law
enjoined or to act in contemplation of law, such as when such judge,
tribunal or board exercising judicial or quasi-judicial powers acted in a Mandamus Injunction
capricious or whimsical manner as to be equivalent to lack of jurisdiction. Strikes the very jurisdiction of the Recognizes the jurisdiction of the
court. It is directed to the court court but it is directed to the
Although similar to prohibition in that it will lie for want or excess of itself parties.
jurisdiction, certiorari is to be distinguished from prohibition by the fact A writ issued in the name of the
that it is a corrective remedy used for the re-examination of some action state to an inferior tribunal, a
of an inferior tribunal, and is directed to the cause or proceeding in the corporation, board or person,
lower court and not to the court itself, while prohibition is a preventative commanding the performance of
remedy issuing to restrain future action, and is directed to the court itself. an act which the law enjoins as a
duty resulting from an office. The
Prohibition is an extraordinary writ directed against any tribunal, remedy is public in character.*
corporation, board, officer or person, whether exercising judicial,
quasi-judicial or ministerial functions, ordering said entity or person to
*The performance of a duty which has nothing to do with public interest
desist from further proceedings when said proceedings are without or in
is not appropriate for mandamus.
excess of said entity’s or person’s jurisdiction, or are accompanied with
grave abuse of discretion, and there is no appeal or any other plain,
(Cont. MCPR)
speedy and adequate remedy in the ordinary course of law. Prohibition
Can Mandmus lie against them? Yes.
lies against judicial or ministerial functions, but not against legislative or
• DENR - EO 192 Section 19, RA 9275 (Phil Clean Water
quasi-legislative functions. Generally, the purpose of a writ of prohibition
Act)
is to keep a lower court within the limits of its jurisdiction in order to
• MWSS – Section 3 RA 6234
maintain the administration of justice in orderly channels. Prohibition is
• LWUA – PD 198
the proper remedy to afford relief against usurpation of jurisdiction or
• DA – Administration Code of 1997, EO 292
power by an inferior court, or when, in the exercise of jurisdiction in
• DPWH – EO 292
handling matters clearly within its cognizance the inferior court
• PCG – Section 5(p) PD 601
transgresses the bounds prescribed to it by the law, or where there is no
• PNP Maritime Group – RA 6975 Section 121, RA 8550
adequate remedy available in the ordinary course of law by which such
(Philippine Fisheries Code)
relief can be obtained. 
• PPA – Section 2 EO 515 (MMDA vs. Concerned
Residents of Manila Bay
With respect to the Court, however, the remedies of certiorari and
prohibition are necessarily broader in scope and reach, and the writ of
All of these were established by specific provisions of law that enumerate
certiorari or prohibition may be issued to correct errors of jurisdiction
and set forth the specific ministerial duties of line these agencies that
committed not only by a tribunal, corporation, board or officer exercising
make them liable to clean up Manila Bay.
judicial, quasi-judicial or ministerial functions but also to set right, undo
and restrain any act of grave abuse of discretion amounting to lack or
So remember if you are going to file a petition for Mandamus alleging
excess of jurisdiction by any branch or instrumentality of the Government,
ministerial duty on the part of the respondent, you have to state the
even if the latter does not exercise judicial, quasi-judicial or ministerial
specific law which is the basis of such ministerial duty.
functions. This application is expressly authorized by the text of the
second paragraph of Section 1, Art VIII of the 1987 Constitution
Just like what the SC did in the case of MMDA.
In this case, with respect to the SC, it can actually look into the validity of Now, let us go back to the case of Jardeleza, can JBC be compelled by
acts of other branches of the government even if they do not exercise Mandamus to include a nominee in the shortlist?
judicial or quasi-judicial functions under Rule 65. The reason for that
would be (from the case of Araullo), in discharging its duty under Section JARDALEZA vs. JBC
1, supra, to set right and undo any act of grave abuse of discretion GR No. 213818, August 19, 2014
amounting to lack or excess of jurisdiction by any branch or Mandamus lies to compel the performance when refused, of a ministerial
instrumentality of the Government, the Court is not at all precluded from duty, but to compel the performance of a discretionary duty. Mandamus
making the inquiry provided the challenge was properly brought by will not issue to control or review the exercise of discretion of a public
interested or affected parties. The Court has been thereby entrusted officer where the law imposes upon said public officer the right or duty to
expressly or by necessary implication with both the duty and the exercise his judgment in reference to any manner in which he is required
obligation of determining, in appropriate cases, the validity of any to act.
assailed legislative or executive action. This entrustment is consistent
with the republican system of checks and balances. It is his judgment that is to be exercised and not that of the court.
There is no question that the JBC’s duty to nominate is
So this is now in keeping with the mandate of the judiciary as the discretionary and it may not be compelled to do something.
gatekeeper of checks and balances. Ultimately, it has to review whether
the branches of the government have exceeded or have been contained in While Certiorari would lie against the JBC, Mandamus will not lie against
their respective boundaries under the checks and balances. The specific it. Why?
procedural remedy now is Rule 65.
Because the JBC does not perform a mere ministerial duty. When it
Now we have to differentiate prohibition and mandamus process applications for positions in the judiciary, it is not a ministerial
Prohibition Mandamus duty. It involves an exercise of discretion.
Negative remedy Affirmative remedy
9
 SPECIAL CIVIL ACTIONS TSN
Based on the lectures of Atty. Tiu
3-Manresa 2018 Ateneo de Davao University
Can Mandamus lie against a mayor to issue a business permit? No.
The mayor in issuing the business permit exercises discretion. It is not a
mere ministerial duty.
In the case of Gamboa vs Finance Secretary, the SC treated a Declaratory
Petition as one for Mandamus. This involves the definition of capital in
Section 11 Article XII of the Constitution and the reason for that is
because of the far-reaching implications to the National Government.
You have here the specific relief for Certiorari.
What is your specific relief in the petition?
You seek to annul the decision, order or proceeding of the tribunal and to
grant such other incidental relief as law and justice requires.
Whereas in Prohibition, you ask the court to order or to command the
respondent to desist from further proceedings in the action or matters
specified therein.
In Mandamus, you ask the court to command the respondent to do the act
required to be done to the rights of the petitioner. And in addition you
can ask for damages. So unlike the Prohibition or Certiorari remedies,
mandamus allows you to seek damages. But not in Certiorari or
Prohibition.
(TSN 2016) FORM AND CONTENTS OF PETITION
• Petition must be verified
• Statement of Facts, Issues & Arguments
• Prayer for Reliefs
• Material dates
• Compliance with Condition Precedents
• Payment of Docket fees
When do you File? Under Rule 64, you have only 30 days to file. And the
30-day period will be interrupted when you file a motion for a new trial
or motion for reconsideration. If it is denied, you only have the remaining
period but not less than 5 days within which to file your petition.
Under Rule 65, on the other hand, you have 60 days to file your petition
from receipt of denial of the MR or the decision or resolution. In other
words, the 60 days is not reckoned from the receipt of the original
decision but from the receipt of the denial of the MR. Technically, there is
a fresh period given to you. The 60-day period is actually a fresh period
and not to be deducted from the 60 days, would be the period for filing
the MR.
(TSN 2016) WHEN TO FILE? Within 60 days from receipt from denial of
the denial of a motion for reconsideration or decision, resolution, or
order.
If the order, resolution, or judgment is issued by the COMELEC or COA and
your petition is under Rule 65 in relation to rule 64, the period is 30 days
and not 60 days.
So under Rule 65 the fresh period rule applies and under Rule 64, it does
not apply as held in the case of Pates vs COMELEC.
PATES vs. COMELEC
G.R. No. 184915, June 30, 2009
Rule 64, however, cannot simply be equated to Rule 65 even if itexpressly
refers to the latter rule. They exist as separate rules for Sub tantive
reasons as discussed below. Proc edurally, the most patent difference
between the two – i.e., the exception that Section 2, Rule 64 refers to – is
Section 3 which provides for a special period for the filing of petitions for
certiorari from decisions or rulings of the COMELEC en banc. The period is
30 days from notice of the decision or ruling (instead of the 60 days that
10
Rule 65 provides), with the intervening period used for the filing of any
motion for reconsideration deductible from the originally-granted 30
days(instead of the fresh period of 60 days that Rule 65 provides).
Thus, as a matter of law, our ruling of November 11, 2008 to dismiss the
petition for late filing cannot but be correct.
Significantly, the petitioner presented no exceptional circumstance or any
compelling reason to warrant the non-application of Section 3, Rule 64 to
his petition. He failed to explain why his filing was late. Other than his
appeal to history, uniformity, and convenience, he did not explain why we
should adopt and apply the fresh period rule to an election case.
IS THIS 60-DAY PERIOD EXTENDIBLE? Originally in the case of LAGUNA
METTS CORPORATION V. CA, G.R. No. 185220 July 27, 2009 – NO. But in
the case of DOMDOM V. SANDIGANBAYAN, G.R. Nos. 182382-83 February
24, 2010 - YES.
So, right now the 60-day period to file Certiorari under Rule 65, can be
extended under AM#00-2-03-SC, which amended Section 4 of Rule 65. No
extension of time to file the petition shall be granted except for
compelling reasons and in no case exceeding 15 days.
So, you can actually ask for extension not to exceed 15 days to file a
petition for Certiorari but you must allege and show compelling reasons.
(TSN 2016) IS THIS 60-DAY PERIOD EXTENDIBLE? Under Rule 65, the
general rule is that you have a fresh 60-day period if your MR is denied in
the court below. But under Rule 64, you don’t have a fresh 30-day period.
You have to deduct whatever is consumed by the filing of your MR. So
there is no issue regarding the fresh period rule under Rule 65 because it
is very specific.
When to dispense Motion for Reconsideration? Take note that the MR is a
plain, speedy and adequate remedy. It is important to avail of the MR first
before you file a Petition for Certiorari under Rule 65.
Can you go directly filing your Petition for Certiorari without filing an MR?
Generally, NO. But under certain exceptions:
1. When the issue involves a principle of social justice or the
protection of labor;
2. The decision or resolution sought to be set aside is a nullity; or
3. When the need for the relief is extremely urgent and certiorari
is the only adequate and speedy remedy
available.
The effect of filing Certiorari whether under Rule 64 or 65 is not to stay
the execution of judgment because this is not an appeal. This is an
original action. This is not a continuation of the original action. It will not
stay the execution of the order, judgment subject of the petition. The only
exception when the SC will issue a stay order or TRO.
In (AM NO 07-7-12-SC) which amends Section 7 of Rule 65, the public
respondent in a Rule 65 Petition for Certiorari is directed to proceed with
the principal case within 10 days from the filing of the Petition absent a
TRO or a writ of Preliminary Injunction or upon its expiration. That is a
clear mandate to the lower tribunal to proceed with the principal action
and not to await the outcome of the Certiorari proceeding.
The failure to comply with this directive is a ground for an administrative
charge against the lower court. The reason for this is in the past, the
Petition for Certiorari is resorted to in order to delay the proceedings in
the lower court. Part of the delaying tactic of a party is to file a Certiorari
petition in order to prevent the lower court from proceeding with the
case.
 SPECIAL CIVIL ACTIONS TSN
Based on the lectures of Atty. Tiu
3-Manresa 2018 Ateneo de Davao University
Because of that there are certain measures put in place by the SC in order
to avoid that. Precisely, a Certiorari is not an appeal. It does not stay the
execution of the judgment. Neither does it prevent the lower court from
continuing with the proceeding. Unless a TRO has been issued.
What will the court do when a Petition for Certiorari is filed? Under Rule
64 and 65, there are 2 possible scenarios:
1. It can dismiss the petition when it is fatally defective or filed
manifestly for delay or questions raised are too unsubstantial
to warrant further proceedings; or
2. To require the respondent to comment.
Normally, the court will look at the formal requirements. If there are
formal defects, it can outrightly dismiss the petition. But everything is
complied with, the court will issue an order requiring the respondent to
comment. Usually it says there without necessarily giving due course to
the petition, the respondent is hereby directed to comment on the
petition within 10 days.
EFFECT OF OUTRIGHT DISMISSAL
- treble costs award against petitioner and counsel (solidary liability)
- administrative sanctions under rule 139 and 139-B (disbarment
proceeding)
- the court may impose motu proprio based on res ipsa loquitor other
disciplinary sanctions or measures on erring
lawyers.
Before, the filing of Certiorari has no specific period. It can be filed even
beyond 60 days. It can be filed years after the orders were issued and
received.
But now, there is an effort to put a stop to that and so the limit was set at
60 days. And even the 60 days can be extended if you can show
compelling reason.
Flowchart: Very straightforward proceeding, more on submission of
pleadings and written arguments. Unless the SC will require an oral
argument. Normally, it is all submission of pleadings. You will be tested
on your writing skills. You will not be seen but you will be read by the
appellate courts. It is important that you should know to write your
pleadings. Pleadings should be persuasive enough for the court to grant
your petition.
note: TSN 2016
11
Special Civil Actions that are subject to the 1-yr time bar rule:
1. Quo Warranto Rule 66
2. Ejectment Suit Rule 70
RULE 66 QUO WARRANTO
Quo warranto is a latin phrase which means “by what authority?” It is
also a prerogative writ by which the Government call upon any
person to show that he holds a public office of exercises a public
franchise. Rules 65 and 66 are all prerogative writs.
WHO MAY FILE A QUO WARRANTO PETITION?
1. The State
• Action must be brought in the name of the republic of the Philippines
and commenced by the Solicitor General or public prosecutor. (Sections 2
& 3)
2. Private individual
• Conditions:
a. when he claims entitlement to a public office or position usurped or
unlawfully held or exercised by another;
b. the law issue involves question to the
regularity of the incorporation of an entity.
WHO MAY BE RESPONDENTS?
1. Persons who usurp, intrude into or unlawfully hold public office,
position or franchise.
2.Public officers who forfeit their office; and associations which act as
corporations without being legally incorporated or authorized. (Section
1)
WHEN TO FILE? One year from the cause of such ouster or the right of
the petitioner to hold office or position arose. Otherwise, action is barred
by prescription.
Reason for the one-year prescriptive period: The title to public office
cannot be subject to continued uncertainty and people’s interest requires
that such right be determined as speedily as practicable. (CUYO vs. CITY
MAYOR, 1960)
EXCEPTION: When the petitioner is not guilty of inaction (i.e. particularly
when he was given assurance of the government in
which case he bided his time) (MELCHOR VS CUYO, 1997)
In the recent case of Sereno, where the SC held that there was no
acquiescence on the part of the petitioner regarding the disqualification
of Sereno to the position of chief justice.
The reason here is the lack of qualification of the chief justice herself to
hold the position.
2 TYPES OF QUO WARRANTO
1. Compulsory Quo Warranto (Mandatory)
- Commenced by the Solicitor General or public prosecutor;
In the case of Sereno, prescription does not lie against the State.
For Mandatory or Compulsory QW, the 1-yr period will not apply. That is
actually what the Sereno case says. It will not lie against the State.
The justification is because it may be stated that ordinary statute of
limitations, civil or penal to application to QW proceedings brought to
enforce a public right.
 SPECIAL CIVIL ACTIONS TSN
Based on the lectures of Atty. Tiu
3-Manresa 2018 Ateneo de Davao University
To prevent a continuous exercise of an authority unlawfully asserted and
to end a continuous usurpation. The position of the State in the case of
Sereno, is that her lack of qualification to the position of chief justice is a
continuing usurpation of the position. The State continues to suffer
damage in the form of her salaries, compensation given to her who is not
qualified to hold the position.
In the case of Sereno, we went to observe the oral arguments in Baguio
along with the contingent of SolGen. (story)
In the case there is a distinction between the remedy of
impeachment and QW?
The basic distinction in QW, to question the qualification of the person to
hold the position. The basic contention is that there is no qualification at
all and the holding of the position is null and void.
Whereas in impeachment, there is a culpable violation of the Constitution.
It presupposes a valid appointment. It presupposes qualification to the
position. Whereas in QW, it is a void appointment. If you pursue
impeachment and there in fact an issue on the validity of the
appointment, you are in fact legitimizing what otherwise would have been
an invalid appointment of the CJ.
The SC upheld the remedy of the QW. Despite the outrage of some of the
legal community. They thought that it is unprecedented that a CJ would
be removed via QW under Rule 66.
Loophole is the 1-year period and how to justify? According to SolGen, it
does not apply to the State. Specially, when as explained in the case, a
mandatory QW. A person who continues to hold a position that he is not
qualified, the State actually suffers damage in the form of the
compensation given to the respondent. (Exception to the Rule aside to
the Melchor case)
(continuation of story)
Issue is non filing/non-production of SALN. Why only Sereno? Because
the requirement to produce the SALNs came about after the removal of
Corona. Prior to that there was no requirement only the SALN for the last
2years is the usual requirement.
Production of all SALNs while in government is the by-product of the
impeachment of Corona.
There is a time limit, it started in 2012.
It was published by the JBS as an off-shoot of the Corona impeachment.
(story…) end
12
(Nov 8, 2018. EBR)
Under Rule 65, we have to recall that the judiciary can exercise
Judicial Activism . If you have witness the JBC interviews of
applicants after Sereno vacated, there was a question about
Judicial Restraint as against Judicial Activism, among the
applicants. It was Justice Reyes who explained exhaustively as to
what Judicial Activism is.
Judicial Activism Judicial Restraint
is the power of the court to The courts will not entertain
make an initiative to correct political questions or questions
violations of the constitution. It which pertain to appropriately
is justified under Rule 65 in its on the power of a specific
expanded judicial review . government branch.
It’ s the exercise of the court’s
expanded judicial review
under Art. VIII, Sec. 1 of the
1987 Constitution.
In the case of LIBINGAN NG MGA BAYANI, where the issue on the
Marcos Burial was raised, there was Judicial Restraint exercised
by the SC. That was the first controversy that reached the SC
regarding the official act of the executive department under the
Duterte Administration.
In the case of Sereno, on the other hand, there was Judicial
Activism, as the SC took cognizance of the Quo Warranto petition
despite objections thereto considering the proceedings already
commenced in the Congress.
In the case of REPUBLIC vs. SERENO, quo warranto was
exhaustively explained. It is supposed to be a public remedy,
imbued with public interest, the remedy is vested to the people
and not just anybody individual. The issue in quo warranto
pertains to a right or title to a government office. It is a
question of government legitimacy and not merely a private
rival among private claimants.
It traced to the origin of the quo warranto, going back to the time
of King Edward I of England, questioning the rights of the baron
to hold title to lands. If you look at the origin of quo warranto in
England, it is actually a quasi criminal action that can only be
instituted by the State or by the Sovereign. The concept of quo
warranto was later on adopted by American States. In the case of
NEWMAN vs. US EX REL FRIZELL, cited in the case of Sereno, the
Court of District of Columbia treated usurpation of public office
as a public crime. A public wrong which can only be
corrected by a proceeding in the name of the government
itself. Take note that in criminal cases, it is in the name of the
PEOPLE OF THE REPUBLIC OF THE PHILIPPINES versus the
accused. That is also the initial concept of quo warranto. Later on,
it evolved to allow private individuals to institute quo warranto
proceedings but only to a certain limited cases; when an
individual can show entitlement or right to the office.
In the Philippines, the remedy of quo warranto appears in 1900s
under Act No. 190, Sec. 197 regarding usurpation of an office or
 SPECIAL CIVIL ACTIONS TSN
Based on the lectures of Atty. Tiu
3-Manresa 2018 Ateneo de Davao University

franchise. Under Rule 66, Sections 2 and 3, the State can make an impeachable offense and
action in the name of the government or the state. That’s why in In appointment cases, the should be convicted therefor.
the case of Sereno, it is REPUBLIC VS. SERENO. A private inquiry is on the legality of the
individual, however, can institute a quo warranto provided it appointment.
claims entitlement to the public office or position usurped or The proper legal remedy to Does not involve questions as
unlawfully held or exercise by another. determine the right or title to to title to public office which
the contested public office or cannot be subject of collateral
In the case of Sereno, there are several law makers as well as to oust the holder from its attack; but the determination
private individuals who sought to intervene to the quo warranto enjoyment of the public officer’s fitness to
petition. Most of them sought to dismiss the quo warranto case stay in office based on
saying that there is already pending impeachment proceeding in allegations of breach of public
the Congress. The SC did not allow them to intervene. Why? trust.
Because of the principle that they failed to show entitlement to Cause of action lies in the Cause of action lies on the
the position of Chief Justice. They have no locus standi or usurping, intruding or commission of an impeachable
personality to intervene. unlawfully holding of public offense
office
The issue of transcendental importance was also raised in The crux of the matter is The focus for the prosecution
order to exempt the would- be- intervenors from showing locus whether or not the respondent of the respondent are the
standi. In the past, the absence can be disregarded and the court legally holds the position to be impeachable offenses and
can take cognizance of the case despite the lack of locus standi considered as an impeachable presupposes that respondent
due to transcendental importance of the case. But here, the SC did officer legally holds public office.
apply the doctrine of transcendental importance but not to Will result into the ouster of The conviction will result in
grant the intervention of the intervenors who failed to show locus the public officer who shall the removal of the public
standi but in favor of the State, saying that the state maintains cease to hold public office officer.
an interest on the issue of the legality of the Chief Justice’s
appointment. And indeed the petition is of paramount Ouster is due to lack of Removal is for cause.
importance to the public, in a sense that qualification and qualification or the invalidity of
legitimacy of the appointment of the Chief Justice as the the appointment.
highest official of the judiciary is being scrutinized in an
action for quo warranto.
This distinctions came about in the discussion on the issue on
It was Roque who actually said that it is an unprecedented move forum shopping. In determining whether there was forum
to oust the Chief Justice through a quo warranto proceeding. shopping because of the pending impeachment proceedings vis a
vi the filing of the quo warranto petition, the SC again made
The SC’s action on the quo warranto petition has a far reaching certain distinctions between quo warranto and impeachment
implication and it is paramount that the court make definitive proceedings.
pronouncements on the issues presented for the guidance of the
bench, bar and the public in future analogous cases. If your purpose is to question the qualification of a person or an
impeachable officer, then your remedy is not impeachment but
quo warranto. But if your purpose is to remove an impeachable
WHO MAY BE RESPONDENTS officer, due to violations of impeachable offenses, your remedy is
impeachment.
● A person alleged to have usurped the position or
intruded unlawfully held position or franchise The similarity is that it results in the ouster of the public officer
from the position.
The issue on whether an impeachable officer can be a
respondent in a quo warranto petition. DISCUSSIONS IN THE CASE THAT ARE INCONSISTENT
Yes, the SC said that quo warranto and impeachment are different 1. As stated in page 53, both remedies are not mutually
remedies and may proceed simultaneously. exclusive and they can proceed simultaneously with
each other.
Quo Warranto Impeachment
Is a judicial remedy which Is a political process exercised But in page 56, it is legally impossible to impeach or
involves a judicial by the legislative branch meant remove a person from an office that he or she does not
determination of the eligibility to vindicate violations of the legally hold. The remedy of quo warranto has primacy
and validity of the election or constitution over the remedy of impeachment.
appointment of a public official
based on predetermined rules 2. SC interpreted Sec. 2 of Article XI of the 1987
In election cases, the inquiry is The inquiry is whether the Constitution, that by its tenor the provision allows the
the eligibility of the candidates respondent committed an institution of quo warranto action against an
elected. impeachable officer. A quo warranto petition is
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 SPECIAL CIVIL ACTIONS TSN
Based on the lectures of Atty. Tiu
3-Manresa 2018 Ateneo de Davao University

predicated on grounds distinct from impeachment. The Discretionary Quo Warranto, can still be commenced by the Sol.
former questions the validity of a public officer’s Gen. or the Public Prosecutor but with the permission of the court
appointment while the latter sues him for impeachable upon the relation of another person known as the RELATOR.
offenses without questioning the title to the office.
The Relator can be the person entrusted with the position. A
The SC also said that to construe Sec. 2, as proscribing a private individual, who is alleged to be deprived of the position
quo warranto petition is to deprive the State of a can either institute it in his name or still in the name of the
remedy to correct a public wrong arising from a Republic of the Philippines by relating it to the Sol. Gen. The costs
defective or void appointment. The essence of quo and the expenses shall be borne by the private individual.
warranto is to protect the body politic from the
usurpation of public office and to ensure that
government authority is entrusted only to qualified DISCRETIONARY QUO WARRANTO
individuals. Reason dictates that quo warranto should
be an available remedy to question the legality of
appointments especially of impeachable officers
considering that they occupy some of the highest ranks
in offices in the land and are capable of holding vast
powers on matters of law and policy.

When to file? The 1 year prescriptive period to file applies when

a private individual will file the quo warranto proceeding. The 1
year period will not apply to the state, in mandatory/ compulsory
quo warranto proceeding.

Where to file? The SC, CA and the RTC have concurrent

jurisdiction

When it is the Sol. Gen. who commences the action, it may be

brought in the RTC of Manila, CA or SC. Quo warranto can also be
allowed in Sandiganbayan, in aid of appellate jurisdiction.
With the hierarchy of courts, how come that the case of Sereno
went directly to the SC? The SC justified it by saying that the quo
warranto questions the qualification of the member of the SC.
A Compulsory/ Mandatory Quo Warranto, commenced by the
Sol. Gen. or the Public Prosecutor when directed by the President
or upon complaint or otherwise there is good reason to believe
that they can establish proof of the cases under Sec. 1 of Rule 66.
In discretionary quo warranto, you have to go to the court to ask
permission to be allowed to proceed. The Sol. Gen. will apply for
permission to file a warranto action. The court will direct the
respondent to comment. And the court will either deny or grant
the application. If it grants the application, the petition will be
filed within the period fixed by the court.
In the case of Acosta, we have here the distinctions as when can
the individual or the state file it and the proof required in either
case.

Initially, the first impression created when Sol. Gen. Calida Individual State
announced the filing of the quo warranto petition so that it was Needs to prove his entitlement No need to prove the
upon the instruction of the president. But the Sol. Gen. said that to the public office. Only after entitlement of the petitioner to
the president did not instruct him to file the petition. It was he has proven his entitlement, the office. Obviously, there is
actually the letter of Atty. Eligio Mallari, after the deliberations of can the court proceed to look no private individual who
the committee on justice in congress that it came to light the into the legality of the claims entitlement to the office
irregularities or anomalies that transpired during the JBC appointment of the
nomination of candidates to the position of CJ. A letter from Atty. respondent.
Mallari was sent to the Sol. Gen. urging the latter to commence a
quo warranto petition against Sereno.
The quo warranto cases is given priority in the dockets of the
Is the letter of Atty. Mallari considered to be a Relator? The SC court. It is given preference over all the civil cases.
did not expound on that in the case of Sereno. It only said that it
was a compulsory/ mandatory quo warranto proceeding The judgment, finding usurpation, will include the ouster of the
commenced in the name of the republic. And so the 1 year one occupying the in the public office and the recovery of the
prescriptive period will not apply and that the Sol. Gen. has costs of petitioner or relator, as the case may be, and will
the discretion whether or not to pursue the quo warranto determine the rights in the office, position or franchise of all
proceeding, citing the case of TOPACIO v. ONG. parties in the action.

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 SPECIAL CIVIL ACTIONS TSN
Based on the lectures of Atty. Tiu
3-Manresa 2018 Ateneo de Davao University

The ousted respondent will have the duty to turn over the The jurisdiction is with the The action can filed to proper
position to the rightful occupant together with books and records courts or the CSC electoral tribunal, COMELEC,
in his possession. Failure to do so will result to sanctions of or RTC
contempt of court and damages which maybe recovered in The period to file is 1 year 10 days from the date of
separate action. proclamation
Governed by the rules in OEC;
The quo warranto judgment will not bind successors in the office. grounds are different from the
grounds set forth in Rule 66
In the case of Sereno, the SC said that the judgment of quo
warranto does not include correction or reversal of acts taken
under ostensible authority, office of franchise. It is limited to
ouster, forfeiture and may not be imposed retroactively upon
prior exercise of an official or corporate duties. It cannot retroact
to invalidate acts committed prior to the filing of the case and the
rendition of the judgment.

The action for damages may be commenced within 1 year after

entry of the quo warranto judgment establishing the petitioner’s
right to the office or position. The right to damages pertains to a
quo warranto instituted by a private individual.

The costs may be borne by the petitioner, relator or the

respondent. The court may however apportion these costs.

Distinction between quo warranto and mandamus

Quo Warranto Mandamus

Is proper when respondent
who has no right to the office
usurps into or unlawfully holds
it against the petitioner
Is directed against the person
actually holding the office
Tests title to one’s office
claimed by another
Is proper when the respondent
unlawfully excludes the
petitioner from the office to
which the latter is entitled
without usurping, intruding or
unlawfully holding the office
Is directed against the person
unlawfully excluding the
petitioner from holding office
in question
Available to enforce clear legal
duties

Under the Election Code, which is not covered by Rule 66, the quo
warranto here refers to issues pertaining to ineligibility to hold
public office or disloyalty to the RP. Take note that the 2nd placer
does not take the place of the ousted or disqualified winner under
the OEC. Rather, it is the law on succession that will apply.

As to Election Protest, the dispute would refer to the conduct of

election and if the protestant wins then there is ouster of the
protestee and the protestant will take over.

To distinguish quo warranto in appointive office and elective

office

Appointive Office Elective Office

The issue here is the legality of
the appointment
The court determines who is
legally appointed and declares
him to be entitled to occupy
the office
The issue is the eligibility of
the candidate
The court will not declare the
2nd placer to take the place of
the disqualified or ineligible
winner
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 SPECIAL CIVIL ACTIONS TSN
Based on the lectures of Atty. Tiu
3-Manresa 2018 Ateneo de Davao University
Rule 70. Forcible Entry and Unlawful Detainer
Why is it that the eviction or ejectment cases are covered by the 1
year time barred rule? The reason is, they are in the nature of
possessory action involving real properties, also called as accion
interdictal. Unlawful detainer is also called detentacion; and
forcible entry as desahucio. These are possessory actions that
involve timely resolutions.
Unlike other possessory actions, such as accion publiciana or
accion reinvidicatoria, accion interdictal only centers to the issue
of material possession over a certain real property. These are
governed by summary procedure because they involve the
disturbance of a social order that should be restored as promptly
as possible. These are designed to provide expeditious means
protecting actual possession or the right to possession of the
property involved. The very purpose of these eviction cases is to
provide immediate relief so that the parties may not take the law
into their own hands.
Forcible Entry consists in depriving a person of the possession
of land or building, for a period of time not exceeding 1 year, by
FISTS.
Unlawful Detainer is the unlawful withholding by a person from
another for not more than 1 year of the possession of any land or
building after the expiration or culmination of the right to hold
such possession by virtue of a contract expressed or implied.
Forcible Entry Unlawful Detainer
The possession is unlawful The possession is inceptively
from the beginning lawful that only became
unlawful upon the expiration
of the contract or from the
issuance of the demand to
vacate by the owner of the
property
Prior physical possession must The prior demand to vacate is a
be alleged and proven by the jurisdictional requirement
plaintiff
The underlying philosophy in this kind of actions is to prevent
breaches of the peace and criminal disorder, to compel the party
out of possession to respect and resort to the law alone to
obtain what he claims is his (Fermin Supia vs. Jose M.
Quintero G.R. No. L-37452 December 23, 1933)
The owners of the property have no authority to use force or
violence to eject alleged usurpers or in prior possession of it.
They must file a complaint or action in court and should not take
the law into their own hands.
The basis is actually found in Art. 536 of the NCC, “In no case
may possession be acquired through force or intimidation as
long as there is a possessor who objects thereto. He who
believes that he has an action or a right to deprive another of
the holding of a thing, must invoke the aid of the competent
court, if the holder should refuse to deliver the thing”.
If there is an intruder in your property, are you justified in
resorting to violence in order to oust that person? It depends,
under the doctrine of self- help, the property owner can use
16
reasonable force in order to oust intruders into his property. But
it will not apply in cases where the intruder has already
established his structure in the property. If in the process pa lang
siya ng pagbuild ng kanyang shanty or structure on the property
intruded, then right there and then you can invoke the doctrine of
self- help and oust that person. You can seek the help of barangay
officials or the office of the city mayor to assist you in the removal
of the usurper. However, in cases where structures have already
been there, and months have already passed, you can no longer
resort to the doctrine of self- help. Art. 536 will set in.
If you look at quo warranto and accion interdictal, with a 1 year
time bar, there is an element of usurpation. In quo warranto,
there is usurpation of a public office. If you are a private
individual who claims to have been deprived of your position by
usurpation of the respondent, you have 1 year period to file your
quo warranto petition against the usurper. Whereas in accion
interdictal, if you are an owner of a real property that was
intruded into and usurped by a squatter or unlawfully withheld
by a lessee after the termination of the lease contract, you also
have a 1 year period to an action from the time of the usurpation
or illegality of the holding of the property.
Who may be parties in the forcible entry case?
The plaintiff must be the one deprived of possession of any land
or building by FISTS.
The defendant is the one who unlawfully withholds or deprives
the possession of the land or building
Who may be parties in an unlawful detainer case?
The plaintiff can also be extended to the lessor, vendee, vendor
or other person legally representing them, or assignee of such
lessor, vendor, vendee.
The defendant can be anyone who is in possession of the
property, by contract (expressed or implied); provided there is
already expiration of the contract or violation of the contract.
A vendor can be a plaintiff, and his right is recognized to institute
an action for ejectment and to send notices of termination of
lease agreement and to vacate the property. Take note that if you
have a property with a lessee, you sell your property to the other
person, the buyer does not want the property to be occupied by a
lessee, as a vendor, you can send notice to vacate to the lessee.
Unless there is a provision in the lease contract that you cannot
do it under the terms of the contract, which the buyer must
respect.
The vendee, on the other hand, also has the right to evict the
lessee of the property that he has bought. A purchaser has the
right to file an ejectment case against the lessee whose
possession became unlawful.
The period to file is 1 year after the deprivation or unlawfully
withholding of the possession.
The exclusive original jurisdiction belongs to the MTC, MeTC,
MTCC, MCTC; regardless of the value of the property involved.
 SPECIAL CIVIL ACTIONS TSN
Based on the lectures of Atty. Tiu
3-Manresa 2018 Ateneo de Davao University

vendor in a contract to sell, may bring an ejectment suit, provided

XPN: the following requisites are present:
1. Cases covered by DARAB
2. Cases covered by HLURB 1. There is failure to pay the installment due or to comply
with the conditions in the contract to sell
The jurisdiction of the MTC is neither affected by the value of the 2. There is demand to pay or to comply, as well as to
property nor the amount of damages or unpaid rentals that is vacate, within the period specified in Sec. 2 of Rule 70.
claimed.
This is a situation where in a contract to sell, possession of the
The judgement is related to the material possession of the property has already been turned over to the buyer and there is
property. It does not involve the issue of ownership or possession violation of said contract. The case for unlawful detainer
de jure. cannot prosper unless there is demand to comply with the
terms and conditions of the contract, other than the demand
Jurisdiction Requirements: to vacate. Only when there is non-compliance to both that
you can institute an action for unlawful detainer.
Forcible Entry Unlawful Detainer
The petitioner must alleged his Must include averments of the What constitutes valid demand to vacate?
prior physical possession of unlawful withholding of the
the property and the defendant of the possession of The demand must be actual and definite and must be served
deprivation of your possession the property. After the prior to the filing of the action.
by means of FISTS expiration of the right to
possess by virtue of a contract When the lessor gives the lessee 5 days to pay back rentals and
(expressed or implied) + the failure to do so a case for ejectment will be filed against him,
demand to vacate is that sufficient demand? There is no specific statement of
That the action is filed within 1 demand to vacate. The SC in a case held that that is a valid
year from the occurrence of demand. The owner has given due notice that you either pay or
FISTS or from the discovery of he will file a case. The word “vacate” need not be employed in all
the stealth notices. But if I were you, why would you risk it? Just put there
“demand to pay and to vacate” para tapos ang usapan. Rather than
How do you establish “prior physical possession”? create a scenario where the defendant finds a loophole to your
demand to vacate.
1. In the case of DELA ROSA v. CARLOS, the SC said that
visiting the property on weekends or holidays is Cases where the is no valid demand
evidence of actual physical possession. The law does not
(Cont. ST)
require to reside in the house to retain his possession.
CONTINUATION OF RULE 70 (FORCIBLE ENTRY AND UNLAWFUL
DETAINER)
2. Fencing of property immediately after purchase is also If there is failure to pay the installment due in a contract to sell, then you
evidence of prior physical possession. must first demand that they must pay the unpaid installment. Faiulure of
which, you can now set the demand to vacate, and noncompliance of
Demand to vacate: which can now justify your action for unlawful detainer. That is an
additional requirement imposed by Larano vs. Carandacion in cases of
In certain cases, when the contract has expired, a demand to unlawful detainer executed by the vendor in cases of contracts to sell.
vacate may no longer be required.
What constitutes valid demand to vacate?
The basis of the requirement of the demand to vacate is found in The demand must be ACTUAL and DEFINITE, and must be served prior to
Sec. 2 of Rule 70: “action by the lessor shall be commenced only the filing of the action.
after demand to pay or comply with the conditions of the lease
When the lessor gives the lessee five days to pay back rentals, and
and to vacate is made upon the lessee, or by serving written
failure to do so a case for ejectment was filed against him. Is that
notice of such demand upon the person found on the premises, sufficient demand? There is no specific demand of demand to vacate, but
or by posting such notice on the premises if no person be found only that pay the back rentals otherwise a case for ejection will be filed
thereon, and the lessee fails to comply therewith after fifteen against you.
(15) days in the case of land or five (5) days in the case of In the case of Golden Gate Realty vs IAC, that is a valid demand. The
buildings.” owner was giving strong (?) notice that you either pay your back rentals
Demand to vacate is required in cases of lessor- lessee or I will file a case for you to be thrown out of my property. The word
relationships; as well as in possession by tolerance. In order for “vacate” is not a talismanic word that must be employed in all notices. But
the possession to become unlawful, you must send a demand to if I were you, why would I risk it? Just put there ‘Demand to Vacate’, rather
vacate. than create a scenario where the defendant can find a loophole to your
demand.
Take note that while a vendor can file a case for unlawful detainer In the following cases, there was no valid demand:
against the possessor of the property subject of a sale, there is ● In San Andres vs. CA, the demand was to execute a new lease
however a limitation when the contract is a contract to sell. The contract. No categorical demand to vacate. SC said that is not a

17
 SPECIAL CIVIL ACTIONS TSN
Based on the lectures of Atty. Tiu
3-Manresa 2018 Ateneo de Davao University
valid demand that is jurisdictional in the case of unlawful
detainer.
● Demand to pay arrears, otherwise upon your failure we may
forward this matter to our legal counsel for proper action
thereof. SC said that is not a valid demand.
● An alternative demand to pay or to vacate. Not a valid demand.
The demand to vacate must be categorical, although not necessarily
employing the word demand, but the intent for you to have the defendant
vacate the property must be very clear. In these cases, there is no
categorical demand to vacate. That's why if you are the lawyer setting out
the demand to vacate, don’t risk it. Just put there “Demand to pay back
rentals AND to vacate”.
If you do not send the prior demand to vacate, can that be cured?
In a certificate to file action issued by the Barangay, in the case of Bandoy
vs. CA, SC said no. The certification issued by the office of the barangay is
not conclusive as to the jurisdiction of the court to which the case was
subsequently filed. What was certified true by the brgy. captain is that no
settlement was reached by the parties in the brgy level. It did not certify
that all the requisites for the filing of the unlawful detainer case were
complied with.
The nature of the proceeding in the ejectment cases is summary in nature,
to provide expeditious means of protecting actual possession or right of
possession of the property. Title is not involved. Issues of ownership are
irrelevant. Technicalities should be avoided.
<FLOWCHART>
● Verified complaint filed with the MTC.
● Court will issue summons or dismiss the case outright for lack
of jurisdiction.
● If there is no answer, there can be judgment based on the
reliefs prayed for in the complaint. If there is an answer filed
within ten days with a counterclaim, there will be a preliminary
conference.
● After a preliminary conference, the court may issue a judgment
right away when there is non-appearance by the parties. If the
plaintiff does not appear, it can dismiss the case. If the
defendant does not appear, there can be judgment based on the
complaint. There can also be judgment based on the
counterclaim if there is non-appearance of the plaintiff.
● If both parties appear, there will be a record of preliminary
conference. Thereafter, there may be submission of position
papers.
● After submission of position papers, the court can either
render a decision right away based on the position paper, OR
ask the parties to submit clarificatory affidavits.
● After which, the court can render judgment within thirty days.
The MTC can issue writs of injunction in ejectment cases. The preliminary
injunction can be granted in accordance with the provisions of Rule 58, to
prevent the defendant from further act of disposition against the plaintiff.
There is a preliminary mandatory injunction that is available under
Section 15 of Rule 70. Here, a possessor deprived the dispossession
through forcible entry or unlawful detainer made within five days from
the filing of the complaint, present a motion with the court for forcible
entry or unlawful detainer for the issuance of the writ of preliminary
mandatory injunction to restore him in his possession. The motion shall
be decided by the court within thirty days from the filing thereof.
When you file a case for forcible entry or unlawful detainer, you can file
for an application for a writ of preliminary mandatory injunction within
18
five days from the filing of the complaint to restore you to that possession
over the property.
In the case of Maderada vs. Mediodea, SC held that once a motion for
preliminary injunction was filed in a forcible entry or unlawful detainer
case, the judge is duty bound to resolve the same within thirty days from
its filing. It can’t be allowed to linger or languish for so long. Ito nga ang
perfect example of a mandamus over an officer exercising discretionary
function, because here the language of the law is for the judge to resolve
within thirty days from filing. If there is violation of that, that judicial
officer can be compelled by mandamus to act on the motion.
The mandatory nature of resolving the motion for preliminary mandatory
injunction under Section 15 of Rule 70 is emphasized in the case of
Maderada vs. Mediodea where the SC emphasized that the injunction
under Section 15 is merely a provisional remedy in an action for forcible
entry and should lent itself to the summary nature of the main case. That
is why the period for deciding the motion is only thirty days. This is a
deviation from the usual procedure under Rule 58 where the injunction
should be resolved within a period of twenty days (maximum period of
the TRO that can be granted).
Aside from the preliminary mandatory injunction relief under Section 15,
there is also another injunctive relief that may be availed of under Section
20, Rule 70. That is a preliminary injunction pending appeal that may be
issued by the appellate court within ten days from the perfection of the
appeal. This time, this is the appellate court who can issue the injunctive
relief. The appellate court is RTC. Within ten days from the perfection of
the appeal, the injunction can be issued by the appellate court against the
defendant.
What is the binding effect in the judgment in eviction cases?
It binds the parties and all persons claiming under them. Persons claiming
under the defendant includes:
1. trespassers, squatters or agents of the defendant fraudulently
occupying the property to frustrate the judgment;
2. guests and other occupants of the premises with the
permission of the defendant;
3. transferees pendente lite;
4. Sub-lessees;
5. Members of the family and other relatives; and
6. Other privies of the defendant.
The extent of the judgment is conclusive in the issue of possession and
not ownership.
The judgment may award damages. If the allegations in the complaint are
true, the judgment shall be for the plaintiff granting restitution of the
premises, as well as the sum justly due as arrears for rent or as
reasonable compensation for the use and occupation of the premises,
atty’s fees and costs. If the judgment is in favor of the defendant, it shall
also include an award of the counterclaim that was interposed.
How do you appeal the judgment in forcible entry or unlawful
detainer cases?
It will be appealed before the RTC, which shall decide the same on the
basis of the entire record of the proceedings and such memoranda or
briefs as may be submitted by the parties or required by the RTC.
The judgment of the MTC is immediately executory, even if an appeal is
timely filed. That is found under Section 19.
 SPECIAL CIVIL ACTIONS TSN
Based on the lectures of Atty. Tiu
3-Manresa 2018 Ateneo de Davao University
If the judgment is rendered against the defendant, the execution shall be
issued immediately upon motion.
What is the remedy of the defendant if he intends to appeal the
adverse decision but there is now a motion for the immediate
execution of the decision?
The remedy is to stay the execution of the adverse decision. The
defendant has to perfect an appeal within fifteen days and file a sufficient
supersedeas bond and must be approved by the MTC within the period to
appeal. He must deposit with the appellate court the amount due from
time to time under the contract, if any, as determined by the judgment of
MTC.
Supposing the defendant was able to perfect an appeal and post a
supersedeas bond, but during the pendency of the appeal, he fails to
make the monthly deposit?
The plaintiff can actually move for the execution of the decision pending
appeal on the ground of noncompliance of the condition to stay the
execution of the decision pending appeal.
Supposing there is no contract, you do not know how much you will
deposit in court monthly during the pendency of the appeal?
It will be the reasonable value of the use and occupation of the premises
for the preceding month or period at the rate determined in the decision
of the lower court.
Supposing after the appeal has been perfected, and the RTC still
finds for the plaintiff, what happens to the decision?
It now becomes executory.
Can the defendant still stay the execution of the judgment?
No more. If he goes to the CA to question the decision of the RTC as well
as the MTC under Rule 42, he must secure a TRO or writ of preliminary
injunction in the CA. The conditions to stay the execution of the decision
pending appeal will only apply up to the level of RTC. Pagkatapos nyan
talo pa rin si defendant, hindi na nya pwedeng ipa-stay yan unless he goes
to the CA and asks for an injunctive relief. What will govern will be Rule
58.
Under Section 21 of Rule 70, when the decision of the RTC in its appellate
jurisdiction is adverse to the defendant, the decision will have to be
executed. In the case of Benedicto vs.CA, SC said that the RTC here is now
authorized to immediately issue a writ of execution without prejudice to
the appeal taking its due course. In City of Naga vs. Asuncion, SC
distinguished Section 19 from Section 21 of Rule 70. Unlike Section 19,
Section 21 does not provide for a procedure to avert immediate execution
of an RTC decision. This is not to say that a losing defendant in an
ejectment case has no recourse to avoid the immediate execution of the
RTC decision. The defendant may, as in this case, appeal such judgment to
the CA and therein apply for a writ of preliminary injunction.
19
REMEDIES WITH TWO STAGES:
TWO TYPES:
1) Involving trial with commissioners;
a) Rule 67 – Expropriation
b) Rule 69 - Partition
2) Not involving trial with commissioners
a) Rule 68 – Foreclosure of Mortgage
RULE 67 - EXPROPRIATION
Expropriation is the procedural remedy to enforce the inherent right of
the state to eminent domain. How to go about that, you have the
procedure under Rule 67.
Eminent domain is the power of the sovereign state to authorize the
taking of a property within its jurisdiction for public use without the
owner’s consent. The limitations to the exercise of this power are stated
in the Constitution, under the Bill or Rights and Articles 12, 13, 18 of the
Constitution.
The basic requirements in the exercise of the power of eminent
domain are the:
1) due process of law;
2) just compensation;
3) Another requisite aside from these two would be the nature of the
taking must be for public use.
The complaint in an expropriation case:
1) must be verified;
2) must implead all persons owning or claiming to own or occupying any
part thereof or interest therein, showing so far as practicable the separate
interest of each defendant;
3) must allege the right, basis and purpose of the expropriation;
4) must include a description of the property to be expropriated, whether
it is real or personal property.
5) must allege title to the property, whether it is in the name of the
Republic but occupied by private individuals, or whether the title is
obscure or doubtful and there is uncertainty as to who is the rightful title
owner.
There are 2 Basic Stages in Expropriation:
1) Determination of plaintiff’s authority to exercise the power of eminent
domain and the propriety of its exercise in the context of facts involved in
the suit;
2) Determination of just compensation with the assistance of 3
commissioners.
Upon the filing of the complaint, the plaintiff can immediately be placed in
possession of the property during the pendency of the case, provided a
preliminary deposit is made. What is this? It must be in an amount
equivalent to the assessed value of the property for purposes of taxation.
Meaning, it’s the BIR zonal valuation, to be held by the authorized
government depository subject to the orders of the court. It can also be
deposited in the court itself. Once the deposit is made, the plaintiff can
now enter into the property sought to be expropriated.
What is the amount of the preliminary deposit?
Under R.A. 8974, it requires 100% of the current BIR zonal value of the
land and value of the improvements. That must be the preliminary
deposit. This will apply when the property to be acquired is for right of
way, site or location for national government infrastructure projects. The
deposit must be in cash, unless the court allows a certificate of deposit of
a government bank payable in demand to the authorized government
depository. For personal property, the deposit must be valued
provisionally and ascertained by the court itself.
 SPECIAL CIVIL ACTIONS TSN
Based on the lectures of Atty. Tiu
3-Manresa 2018 Ateneo de Davao University
What is the use of the preliminary deposit?
It will serve as prepayment of the value of the property if expropriation is
granted by the court. If not granted, it will indemnify any damage in the
event the proceedings failed to consummate. Whatever damage that may
have been incurred by the property owner and the expropriation
proceeding is not granted, but in the meantime the plaintiff already
entered the property, the deposit is served to answer for the damages
incurred.
1) Complaint together with the preliminary deposit must be filed in court
2) The court will cause the service of summons and copy of the complaint
to the defendants
3) The defendants will appear, either by filing an answer to the court or
filing a manifestation of no objection or defense.
4) In the answer, the defendant is not allowed to file counterclaim,
cross-claim or third party claim, but it may identify property, nature and
extent of the interest claim and adduce all the objections and defenses to
the taking of the property. You are NOT allowed to file a motion to dismiss.
All the grounds for a motion to dismiss must be interposed in an answer
as affirmative defenses.
. loss. It must be just and fair not only to the owner but also to the taker. It
5) After the answer is filed, there will be a trial or hearing conducted by
the court, after which the court will decide and issue an order of
expropriation if it grants the petition. Otherwise it will dismiss the case.
What is this appearance with manifestation of no objection or
defense?
When the defendant does not object to the taking of the property, then
instead of filing an answer opposing the expropriation, he can file a
manifestation stating the lack of objection to the expropriation.
The order of expropriation will terminate the first stage of the
proceeding. The order of expropriation will basically uphold the right of
the plaintiff to expropriate the property, and the nature of the taking is for
public use and in accordance with the purposes stated in the complaint.
Since it terminates stage one, it is in reality a final order that may be
subject of an appeal. This is where a multiple appeal is allowed. If he does
not agree with the order of expropriation, the defendant can go to the
appellate court and file an appeal while the court proceeds to the second
stage.Because this involves multiple appeals, then you are required not
just to file a notice of appeal, but also a record on appeal.
For purposes of determining whether the taking is for public use, in the
case of Ouano vs. Republic, SC had emphasize that in the concept of
20
eminent domain, public use has acquired an expansive meaning to include
any use that is of usefulness, utility or advantage, or what is productive of
general benefit of the public. It is not actually used by the public.
To be compensable, the taking need not be an actual physical taking or
appropriation. As held in NPC vs. Malihan, the expropriator’s action may
be short of acquisition of title, physical possession or occupancy, but may
still amount to a taking. The compensable taking would include
destruction, restriction, diminution or interruption of the rights of
ownership or of the common and necessary use and enjoyment of the
property in a lawful manner, lessening or destroying its value. It is neither
necessary that the owner be wholly deprived of the use of his property,
nor material whether the property is removed from the possession of the
owner, or in any respect changes __. What happened here is that the
construction of the tower, while you may make use of the prop below the
tower, restricts your right to do so. In a sense, there is taking for public
use and that is compensatory.
Going now to stage 2, is it necessary that there should be first deter
of just compensation before the court will issue an order of
expropriation?
In the case of Republic vs. PDHC, SC said no. The order of expropriation
appropriately belongs to the first stage of the proceeding. It precedes the
determination of just compensation which is in the second stage. In
expropriation proceeding, it is the transfer of title that must wait until
indemnity is actually paid. It is not the order of expropriation that must
be preceded by the determination of just compensation, but rather it is
the transfer of title.
In the second stage, what is important before the transfer of title is the
determination of just compensation. It is after the rendition of the order
of expropriation that the court shall appoint commissioners to ascertain
the just compensation for the property sought to be taken. After the order
of expropriation has been issued, regardless of whether the defendant
will appeal the same, the court may now proceed to the second stage. It
will now proceed to the appointment of commissioners. The main task of
the commissioners is to determine just compensation.
What is just compensation?
Just compensation is the full and fair equivalent of the property to be
expropriated. The measure here is not the taker’s gain but the owner’s
must not be overvalued/undervalued.
Formula:
Just compensation = the full and fair value of the lot at the time of the
taking PLUS consequential damages PLUS attorney’s fees MINUS
consequential benefits.
Why is it the basis of the valuation if fair market value?
In the case of Republic vs. Vda. de Castellvi, SC said that the owner of the
land has the right to its value for the use for which he brings the __ to the
market. The owner may thus show every advantage that his property
possesses, present and prospective, in order that the price it could be sold
for in the market may be satisfactorily determined. It is incumbent upon
the owner to show the fair market value of the property.
What are the factors to consider?
1) the cost of the acquisition
2) the current value of like properties
3) actual and potential uses
4) size, shape, notation (?) and tax declaration
 SPECIAL CIVIL ACTIONS TSN
Based on the lectures of Atty. Tiu
3-Manresa 2018 Ateneo de Davao University

When it comes to the appointment of the commissioners, this is a

MANDATORY stage of the proceedings. It is in fact considered as a When will the court not give value to the report of the
substantive right. commissioners?
1) when there is error that is plainly manifest in the report
If there is lack of opportunity to present evidence before the 2) when it is apparent that injustice has been done
commissioner, that will tantamount to denial of due process, even if the 3) when the commissioners have clearly gone astray or adopted
parties were able to file motion for reconsideration. erroneous or illegal principles to the evidence submitted to them
4) when the award is palpably excessive or inadequate
The trial by commissioner is separate from an independent ocular 5) when the commissioners disregarded a clear preponderance of
inspection conducted by the commissioners. evidence
Take note, that the commissioners here may not even be lawyers. They
What can the commissioners do? may not be aware of the legal principles involved.
There will be a trial. However, they may also do ocular inspection of the
property. They may view, examine and measure the property. When will
they do that? If testimony on the value and damages is conflicting, the
commissioners may resort to their knowledge of the elements which
affect assessment and which were obtained from the view of the premises
in order to determine the relative weight of the conflicting testimony.
Their award must be supported by the evidence adduced at the hearings
made on record, otherwise such award cannot stand. If there are
conflicting claims, the commissioners can see for themselves the actual
situation of the property. All of these must be properly recorded. Without
sufficient basis in the proc, the commissioners cannot just rely on their
ocular inspection.

Can the commissioners go there on their own without the parties

present?
No, they cannot. If they do so, they cannot use it as the basis for their
decision.

There must be proper procedure for the ocular inspection. It must be part
of the official proceeding. There must be a proper schedule when both
parties and their respective representative can be present during the
ocular inspection. The stenographer and clerk of court can also be present
in order to observe and be part of the proceeding.
● After the court orders or issues expropriation, it will now issue
another order appointing NOT more than 3 commissioners
and will designate the time and place of first session of hearing
and also specify the time for the submission of their final
report (60 days from their appointment).

The ocular inspection, while maybe allowed, cannot be the sole basis for
determining just compensation. The commissioners must also consider
other evidence submitted, testimonies of the witnesses, and other
evidentiary documents submitted by the parties.
What will happen to the commissioners’ report?
After trial, the commissioners will come up with their report and submit
it to the court. The court may require them to submit a partial report, and
that is when the property is so vast that the determination of just
compensation may be done partially. The partial report with respect to
the portions of the property already passed upon by them. The court,
based on the partial report, may also render judgment based thereon.
After the proceedings before the commissioners have been concluded,
they will render a final report. The final report is a full and accurate
report of all the proceedings which would be effectual upon the court’s
acceptance thereof. Unless the court accepts the final report, the same
cannot be considered binding and effective among the parties. The final
report must be submitted within sixty days from the date the
commissioners were notified of the date of their appointment, which time
may be extended at the discretion of the court.
● The order will be furnished to all the parties, and they are
given 10 days within which to make a comment/objection to
the appointment of the commissioners.
● The court will resolve the objections within 30 days from the
receipt by commissioners.
● The commissioners are tasked to receive evidence from the
parties; View, examine properties; assess consequential
damages.
● The commissioners can give partial/final reports to the court
within 6o days from their appointment unless extended, and
copy furnish the parties who may object 10 days from the
receipt.
● Afterwards, there will be hearing on the report together with
objections from the parties. So there‘s notice of hearing
● After the hearing, the court can either:
1. Accept in full, render judgment based thereon,
2. Return

The final report must also be served on the parties who have ten days 3. Reject all and appoint new commissioners or
within which to comment/object to the report.
4. Partially accept or reject the report.
The commissioners’ findings must be based on the evidence presented.
The judgment in expropriation proceeding should state definitely the
When that is so, the court can give weight to the report rendered by the
particular property or interest that is expropriation and the nature of the
commissioners. The valuation made by them based on the evidence
public use or purpose for which it is expropriated. The judgment will
presented will not be likely set aside, provided it is supported by
entitle the plaintiff to acquire the right over the property upon payment of
evidence.

21
 SPECIAL CIVIL ACTIONS TSN
Based on the lectures of Atty. Tiu
3-Manresa 2018 Ateneo de Davao University
the compensation fixed by the judgment, with legal interest thereon from
the time of the taking or after tender of the amount so fixed. If there has
been yet no preliminary deposit or prior entry of the plaintiff into the
property, the judgment will also entitle the plaintiff to enter the property
and to appropriate for public use as stated in the judgment. The plaintiff
will have to deposit the amount of just compensation if the defendant and
his attorney should not be present in the court or decline to receive the
amount tendered.
If the owner disagrees with the just compensation but there is judgment
already fixing the just compensation, the plaintiff can just tender the
amount to the court and that would be sufficient basis for the plaintiff to
enter the property. The judgment should include not only the just
compensation but also the interest and damages to be awarded to the
landowner.
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RULE 69 – PARTITION
Partition is the process of dividing and assigning the property owned in
common among various co-owners in proportion to their respective
interest in the property. It is a mere separation, division, assignment of
the thing in common to those to whom it may belong.
Kinds of partition:
1) judicial under Rule69
2) extra-judicial by agreement of the parties. No need to go to court, but
only execute a deed of extra-judicial partition.
In an action for partition, the plaintiff must allege:
1) the right to compel partition
2) the nature and extent of his title
3) the adequate description of the property
4) must implead all co-owners as indispensable parties, and all persons
interested in the property as defendants
When do you file the complaint for partition?
Can be filed anytime, and the right to demand part is imprescriptible. The
exception is when one co-owner asserts adverse title to the property in
which case the period of prescription runs from such time of assertion of
adverse title.
The action for partition involves two basic issues:
1) whether the plaintiff is a co-owner, and whether co-ownership exists
among the parties
2) how the property is to be divided
The first stage will be the determination of the existence of the
co-ownership and the propriety of partition. If the parties agreed among
themselves during the first stage on how the property is to be divided
after a finding that a co-ownership exists, and the propriety of partition
has been determined, there is no need to go to the next stage. They can
submit a project of partition and the court can approve the same
without having to go to the second stage. Only when there is
disagreement on how partition is to be made will the court proceed to the
second stage. If they cannot agree on how to divide the property, the court
has no choice but to proceed to the second stage.
How?
It will appoint 3 competent and disinterested persons as commissioners
to make the partition.
Duties of the commis:
The same duties, functions and procedure as in the expropriation cases.
The judgment will be based on the report rendered by the commissioners.
There would be actual partition and the metes and bounds and adequate
description of the property and the particular portion of the estate
assigned to each party will be expressly stated in the judgment.
When it is determined that the property cannot be divided without
prejudice to the interest of the parties, the logical option there would be
to assign the entire property to one co-owner, subject to payment of the
shares of the other co-owners. In that case, that must be reflected in the
judgment.
When the property is not assigned to any co-owner, but instead sold to a
third person, because that is most feasible under the circumstances, then
that fact of sale must be stated in the judgment, including the
confirmation of sale by the court. The judgment must specify the name of
the purchaser and the definite description of the real property sold to
each purchaser.
 SPECIAL CIVIL ACTIONS TSN
Based on the lectures of Atty. Tiu
3-Manresa 2018 Ateneo de Davao University
There must also be accounting of the rents and profits on the real
property, and the just share of each party shall be included in the
judgment. After accounting, the share of the co-owners to such income
must also be reflected in the judgment. Costs and expenses will be
equitably taxed and apportioned between and among the parties. It will
include compensation of commissioners, having regard to the interest of
the parties. It will also include the cost of registration.
If there are parties who refused to pay their shares, the court will issue a
writ of execution with respect to their shares.
After the judgment has been issued, the certified true copy thereof shall
be registered in the ROD. The expenses for the recording shall be taxed as
part of the cost of the action.
The rule of partition under Rule 69 also governs partition of personal
property.
23
SPECIAL CIVIL ACTION THAT INVOLVES TWO STAGES THAT DOES
NOT INVOLVE COMMISSIONERS:
RULE 68 - FORECLOSURE OF REAL ESTATE MORTGAGE
What is a mortgage? It is an interest in land created by a written
instrument providing security for the performance of a duty or payment
of a debt. It is a pledge or security of a particular property for the
payment of a debt or the performance of some other obligation, whatever
form the transaction may take, but it is not now regarded as a conveyance
in effect, though it may be cast in the form of conveyance. Mortgage,
simply put, is a security. It is an accessory contract to a principal contract
of loan.
What is the remedy of an unpaid mortgagee? It is to foreclose the
mortgage. The foreclosure can be done judicially (Rule 68) or
extra-judicially (Act 3135 and Act 1508 with respect to chattel
mortgage).
The parties to a foreclosure suit are:
1) creditor-mortgagee, and
2) debtor-mortgagor.
Other parties:
1) persons obligated to pay the mortgage debt;
2) persons who own, occupy or control the mortgaged premises or any
part thereof;
3) transferee or grantees of the properties.
4) second mortgagees/encumbrancers.
5) The mortgagor, even if not the owner of the property, should be
included to satisfy the deficiency of the judgment.
A mortgagor can be a third-party mortgagor. Third-party mortgagor is a
person who is not a debtor, but allowed his property to be used by the
debtor to use as collateral for the debt. Technically, he is not the debtor, he
only allows the use of his property as security for the debt, in that case
when you foreclose the mortgage judicially, you not only implead the
mortgagor/owner of the property, but also the debtor himself who is not
a mortgagor, in order that you may recover a deficiency judgment against
the debtor, because a third-party mortgagor cannot be held liable for any
deficiency judgment. His liability is only to the extent of the value of the
property he allowed to be used as collateral for the debt, unless he signed
as principal co-debtor, or what you call co-maker in a promissory note,
then he can be held liable in his personal capacity.
(Cont. JS)
(1:59:16)The Parties to a foreclosure suit are creditor-mortgagee and the
debtor-mortgagor. There are also other parties, namely persons obligated
to pay the mortgage debt, persons who own, occupy or control the subject
mortgage or any part thereof. The transferee/grantee of the property. The
2nd mortgagee or junior encumbrancer (not sure). Okay, the mortgagor,
even not the owner of the subject property, should be included to satisfy
the deficiency of judgment.
So a mortgagor can be a 3rd party mortgagor, it is a person who is not the
debtor but only allows its property to be used by the debtor as collateral
for the debt. So technically he is not a debtor, he only allows the use of his
property. In that case, when you foreclose the mortgage judicially, you not
only impersonate the mortgagor or the owner of the property but also the
debtor himself who is not the mortgagor. In order that you may recover
the deficiency judgment against the debtor because a 3rd party mortgagor
cannot be held liable for any deficiency judgment. His liability is only to
the extent of the value of the property that he allowed to be used as
collateral for the debt. Unless he signed as a principal co-debtor or a
co-maker in a promissory note. Otherwise, it is only to the extent to the
value of the property that he allowed it to be used. So if there is a
deficiency judgment, you cannot go to the 3rd party mortgagor that is why
 SPECIAL CIVIL ACTIONS TSN
Based on the lectures of Atty. Tiu
3-Manresa 2018 Ateneo de Davao University
you must implead the principal debtor himself even if he is not the
mortgagor.
If you do not also include a 2nd mortgagee or the junior encumbrancer, the
foreclosure is ineffective against the subordinate lien holder then there
remains in time an unforeclosed equity of redemption. So that is why it is
necessary that a 2nd mortgagee should also be implemented in an action
for foreclosure.
Under the 1997 Rules of Procedure, the foreclosure of chattel mortgage is
no longer covered. There is a specific rule governing such, it is AM
99-10-05-0. So you had here the contents and form of the complaint. You
must allege particulars of the mortgage contract, the date and due
execution, any assignment of the contract if any and the names of the
mortgagor and mortgagee, residences, the description of the property
mortgaged. As well as the circumstances surrounding the principal debt.
The document evidencing the debt. The amount claimed to be unpaid. So
you must also attach your statement of accounts as to the total unpaid
obligations. The names and residences of all persons having or claiming
interest on the property.
So upon receipt of the complaint, the court will ascertain the amount due
to the plaintiff upon the mortgage debtor’s obligation. After due
proceedings the court will then render judgment for the sum due and
order for the same to be paid within a period between 90days to 120days
from entry of judgment. So the first stage will consist in the determination
of the existence of the obligation. How much is the obligation? And the
court will render an order stating the amount due to the plaintiff and will
require the defendant to pay the amount within 90days to 120days from
the date of the entry of judgment. This period of 90 to 120days is called
the Equity of Redemption. That is the last chance for the debtor to avoid
the foreclosure by paying the total obligation as stated in the court order.
Now, if there is non-payment within this period, then the court will now
proceed to the 2nd stage which is now the auction sale. The rules
governing auction sale will be those under RULE 39. So it is like there is
an execution proceeding with respect to the property mortgaged. The sale
should not affect the rights of the persons holding prior encumbrances
upon the property.
After the auction sale, the court will have to confirm it. Actually there are
authorities saying that even up to the stage of the confirmation of sale, the
equity of redemption can still be executed. Pwede pa rin ipahabol ang
equity of redemption. But once the sale has been confirmed, then that will
now foreclose any exercise of the equity of redemption. So the
confirmation of sale will entitled the purchaser to possess the property,
unless there is an adverse claim made by a 3rd party. It will allow the
purchase to secure a writ of possession from the court which allows the
order of execution and it will bar the exercise of the equity of redemption.
The order of confirmation is a final order and it is appealable. The same
thing with the order granting the amount of the obligation. That is also a
final and appealable order. So again because it involves 2 stages, it allows
multiple pleadings. So the record on appeal is required for each stage.
Now the confirmation of sale will require a hearing and a prior motion to
that effect. So unless there is a confirmation of the sale, the defendant can
still exercise the equity of redemption. So if you are the plaintiff then a
sale has been made, it is to your best interest that you immediately move
for the confirmation of the sale and for the court to issue a confirmation
of sale. In the confirmation of sale, there has to be a motion and a hearing
conducted by the court. Without such motion and notice of hearing, the
confirmation of sale will be fatally defective. So part of the validity of the
confirmation of sale is the prior notice and hearing. This is required to
enable the interested party to resist the motion and to inform them of the
time when the right of redemption is exercised.
Equity of Redemption (ER) vs Right of Redemption (RR)
24
ER is the right of the mortgagor to extinguish the mortgage and regain
ownership of the property by paying the secure debt within 90 to 120
days after entry of judgment or even after foreclosure sale but prior to
confirmation. RR is the right granted to the debtor, his
successor-in-interest, through any judgment creditor or any person
having lien on the property subsequently mortgaged under which the
property sold to redeem the property in the period of 1yr from the
registration of the certificated of sale.
Who may exercise the Equity of Redemption?
One having title of the mortgagor;
The successor-in-interest
What is the redemption price?
The amount that is stated in the judgment. However the amount payable
in property sold in auction sale under RULE 39 is the purchase price, no
longer the judgment debt, except unless otherwise provided by special
rules.
So whatever the amount that is paid by the purchaser at the auction, that
will also be considered as the redemption price.
How will the proceeds be disposed of?
It will be paid to the creditor after deducting the costs of the sale. If there
is balance or residue, then it will be paid-off. After paying off the
mortgaged debt due, it will be paid to the junior encumbrancers. If there
is none, then it will be paid back to the mortgagor or his agent.
When the debt is not all due, then there will be a partial sale of the
property depending when they will become due. So there will be sale of
portions of the property depending on when the debts become due. The
exemption to that is when the property cannot be sold in proportion
without prejudice to the parties, then the whole property shall be sold in
the 1st instance and the entire debt and costs shall be paid. If the proceeds
are sufficient. Now suppose the proceeds of the sale if not enough, then
there can be deficiency judgment. The court will render it to cover the
balance due, there has to be motion to that effect. So the defendant here
may be personally liable and a writ of execution may be issued against
him for the deficiency judgment. So you cannot ask for deficiency
judgment unless there has been sale of the property. Otherwise, there will
be no basis for the existence of the deficiency. A deficiency judgment
cannot be rendered against a non-resident defendant. It cannot be
rendered against an owner who is not a mortgagor who doesn’t assume
personal liability for the debt. So if the 3rd party mortgagor has not
assumed personal liability for the debt, then no deficiency judgment can
be made against him. Now if the debtor dies, the deficiency may be filed
as a claim against his estate. So after the sale has been made and a
confirmation sale is also made, then the final order of the court
confirming the sale may be recorded in the registry of deeds. The
certificate of sale and order of confirming the sale shall be submitted to
the ROD for recording and when there is redemption, the deed of
redemption shall also be submitted to the ROD. After the lapse of
redemption period, the final deed of sale executed by the sheriff in favor
of the buyer shall also be submitted to ROD.
Take note that the RR does not exist in judicial foreclosure, except when
the foreclosure involves real estate in favor of a bank or any trust entity,
then the mortgagor has granted a right of redemption to be exercised
within 1year from the sale of the real estate. However when it comes to
mortgagor who is a corporate entity, the redemption period can be
shortened to only 3months under the General Banking Act.
Judicial Foreclosure (JF) vs Extrajudicial Foreclosure (EF)
In JF there is an equity of redemption, in EF, there is right of redemption.
JF is governed by RULE 68 while EF is governed by ACT 3135. The
decisions in JF are appealable. The EF, there is no decision. So there is no
court intervention. So there is nothing to appeal. The order of the court if
 SPECIAL CIVIL ACTIONS TSN
Based on the lectures of Atty. Tiu
3-Manresa 2018 Ateneo de Davao University

JF will cut-off all the rights of the parties included. In EF it doesn’t cut-off
the rights of the parties involved. In JF the period to redeem starts from
finality of judgment until order of confirmation. In EF the period to
redeem starts from the registration of the certificate of sale. In JF the SPA
is not needed in the contract of mortgage. In EF, the SPA is required.
Rule 71. Contempt
So now let us go to the Special Civil Action pertaining to the exercise of
the inherent power of the court which is contempt under RULE 71.
It applies to contempt arising from court proceedings and before
quasi-judicial agencies with no contempt powers. It also applies
supplementary to rules of quasi-judicial agencies with contempt powers.
So there are quasi-judicial agencies that have no contempt powers. Does
that mean that they can no longer hold parties in contempt? Still they can.
But they have to file a petition for contempt under RULE 71 with the
regular courts. That is the implication but for those quasi-judicial
agencies who were granted contempt powers, RULE 71 will only apply
supplementary.
If you are cited as DC, there is no appeal available. Your remedy will rather
be a petition for certiorari or prohibition subject to compliance with
certain conditions. So when you are cited for DC, automatic ang
pag-execute. So the judge says you pay, automatic magbayad ka na or
ipasok ka na for imprisonment. Since there is no appeal, you can actually
stay the execution by filing a petition for certiorari or prohibition. So bago
ka i-confine dapat naka certiorari or prohibition ka na. Then you will ask
the court to allow you for bail. So you will be filing a bond in court so that
the judgment will not be executed pending the proceeding for petition of
certiorari or prohibition.
The penalty here will be 30k or 6months imprisonment or both if
committed before the RTC. 5k or 1month maximum imprisonment or
both is committed before the MTC.
Chitchat***
DC is a summary. Immediately, the court can cite you in contempt and
punish you immediately. But IDC, there must be a written charge, notice
and a hearing. Remedies, appeal is only allowed in IDC.

So what is the rationale for the grant of the contempt powers and its
proceedings? It is given towards the preservation of the order in judicial
proceedings and to the enforcement of judgments and orders. So
contempt is essential to enforce order in proceedings as well as its
implementation. It has a 2-fold aspect. The proper punishment for the
guilty party and to compel his performance required by the court but
which he refuses to perform.

So there are 2 kinds of contempt: Criminal and Civil Contempt

A criminal contempt is conduct directed against the authority and dignity
of a court or the judge acting judicially. It is an offense against public
justice which raises an issue between the public and the accused and the
proceedings to punish it.
It is civil when it is directed or geared toward requiring the party to do
something for the benefit of the opposing party therein. So it is an offense
against the party on whose behalf the violated order is made. So the
nature here is remedial. Civil contempt is remedial in nature, whereas
criminal contempt is punitive in nature.

Civil Contempt vs Criminal Contempt

Civil Contempt is compensatory or remedial while criminal contempt is
punitive or meant to punish. In civil contempt, the intent of the accused is
immaterial, while in criminal contempt, it is a necessary element. In civil
contempt, the aggrieved party can initiate the action, while in criminal
contempt, it is the state that is the real prosecutor. There is no
presumption of innocence in civil contempt while there is in criminal. So
the quantum of proof in criminal contempt is proof beyond reasonable
doubt while in civil it is merely preponderance of evidence.

How do you characterizes contempt?

The real character of the proceedings in contempt is to be determined by
the relief sought by the documents’ purpose. So the proceedings are to be
regarded as criminal when the purpose is primarily for punishment. It is
civil when the purpose is for compensation. So you look at the prayer,
what is the relief sought? Is it to punish or is it to compel a party to do so?

Direct Contempt (DC) vs Indirect Contempt (IDC)

Please refer to the Codal
This is actually contemplated by RULE 71. DC, there are several grounds
provided by the rules.
Chitchat***
Penalty for DC: If committed in the RTC (Fine of 2000max or 10days
imprisonment maximum)
If committed in the MTC (Fine 200 or 1 imprisonment or both)

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