Civil Procedure

Philippines to evade arrest and prosecution of protection of a right, or the prevention or redress
crime against him or her. of a wrong (Sec. 3[a], Rule 1), a special civil action is
generally brought or filed for the same purpose.
NOTE: The judge shall personally examine under
oath or affirmation, in the form of searching ORDINARY CIVIL ACTIONS vs.
questions and answers in writing, the applicant SPECIAL CIVIL ACTIONS
and the witnesses he or she may produce on facts
personally known to them and attaching to the ORDINARY CIVIL SPECIAL CIVIL ACTION
record their sworn statements. ACTION
Governing Law
If the judge finds that probable cause exists and Governed by the Governed by ordinary
there is a high probability that the respondent will ordinary rules. (Sec. 3, rules but subject to
depart, the judge shall issue the PHDO and direct Rule 1) specific rules
the Bureau of Immigration to hold and prevent the prescribed. (Sec 3, Rule
departure of the respondent at any Philippine 1)
airport or ports. Otherwise, the judge shall order Cause of Action
the dismissal of the application. (Sec. 4, A.M No. 18- It is based on a cause Not all special civil
07-05-SC) of action (Sec. 1, Rule actions are based on a
2) cause of action, i.e.
Validity of the precautionary hold departure declaratory relief (Rule
order 63) and interpleader.
(Rule 62)
The order shall be valid until lifted by the issuing
court as may be warranted by the result of the Declaratory relief –
preliminary investigation. (Sec. 5, A.M No. 18-07-05- action is brought before
SC) there is breach.

Lifting of the order Interpleader – plaintiff
files a complaint even if
The respondent may file a verified motion before he has sustained no
the issuing court for temporary lifting on actual transgression of
meritorious grounds, that is, based on the his rights. (Riano, 2012)
complaint-affidavit and evidence that he or she will Venue
present: 1. If personal action – G.R.: Governed by the
residence of the general rules of venues.
1. there is doubt that probable cause exists to parties;
issue the PHDO or 2. If real action – XPN: Otherwise
2. it is shown that he or she is not a flight location of the indicated by special
risk. (Sec. 7, A.M No. 18-07-05-SC property. (Sec. 1-2, rules (Regalado, 2016)
Rule 4)
NOTE: Respondent may ask the issuing court to Jurisdiction
allow him or her to leave the country upon posting May be filed initially in There are special civil
of a bond in an amount determined by the court. either the Municipal actions which can only
(Sec. 8, A.M No. 18-07-05-SC) Trial Court or Regional be filed in a Municipal
Trial Court depending Trial Court like the
SPECIAL CIVIL ACTIONS upon the jurisdictional actions for forcible entry
amount or nature of and unlawful detainer.
the action involved. There are also special
GENERAL MATTERS (Riano, 2012) civil actions which
cannot be commenced
in the Municipal Trial
NATURE OF SPECIAL CIVIL ACTIONS Court foremost of which
are the petitions for
Since a civil action, in general, is one by which a certiorari, prohibition
party sues another for the enforcement or and mandamus. (Ibid)

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 REMEDIAL LAW
JURISDICTION AND VENUE

JURISDICTION VENUE
Interpleader MTC – where the value of the claim or the Where the plaintiff or any of the
(Rule 62) personal property does not exceed principal plaintiff resides or where the
P300,000 outside Metro Manila or P400,000 defendant or any of the principal
in Metro Manila or where the value of the defendants resides at the option of the
real property does not exceed P20,000 plaintiff. (Sec. 2, Rule 4)
outside Metro Manila or P50,000 in Metro
Manila

RTC – if the value exceeds the above
amounts or if the subject matter is
exclusively within the jurisdiction of the
RTC. (Judiciary Act of 1980; Secs. 19[2] and
33[3], BP Blg. 129, as amended by RA 7691)
Declaratory Declaratory relief – RTC, since the subject Where the petitioner or the respondent
Relief and in a petition for declaratory relief is resides at the election of the petitioner.
Similar Reliefs incapable of pecuniary estimation (Sec. 2, Rule 4)
(Rule 63)
Similar reliefs under second paragraph,
Sec. 1, Rule 63:

MTC - where the value of the real property
does not exceed P20,000 outside Metro
Manila or P50,000 in Metro Manila

RTC – if the value exceeds the above
amounts or if the subject matter is
exclusively within the jurisdiction of the
RTC (Melana v. Tappa, G.R. No. 181303
September 17, 2009)

NOTE: It would be error to file the petition
with the SC which has no original
jurisdiction to entertain a petition for
declaratory relief. (Tano v. Socrates, G.R. No.
110249, August 14, 1997)
Review of Supreme Court on certiorari under Supreme Court
Judgments of Rule 65
COMELEC AND
COA
(Rule 64 in
relation to Rule
65)
Certiorari, 1. RTC; 1. RTC, if it is directed against a
Prohibition, 2. CA; municipal trial court, corporation,
Mandamus 3. SC; board, an officer or a person;
(Rule 65) Sandiganbayan, COMELEC in aid of their 2. CA or with the SB, whether or not
appellate jurisdiction (A.M. No. 07-7-12-SC). the same is in aid of the court’s
appellate jurisdiction;
3. If the petition involves an act or an
omission of a quasi-judicial agency,
unless otherwise provided by law or
the Rules, the petition shall be filed
with and be cognizable only by the
Court of Appeals;
In election cases involving an act or
omission of MTC/RTC, it shall be filed

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 Civil Procedure
exclusively with the COMELEC, in aid of
its appellate jurisdiction. (Sec. 4, Rule
65)
Quo warranto RTC, CA, Supreme Court (Sec. 7, Rule 66) Where the respondent or any of the
respondents resides. When the
Sandiganbayan in aid of its appellate Solicitor General commences the
jurisdiction (PD 1606, as amended by RA No. action, it may be brought in the RTC of
8249) the City of Manila, in the CA, or in the
SC. (Sec. 7, Rule 66)

NOTE: Subject to the principle of
Hierarchy of Courts
Expropriation RTC since incapable of pecuniary Real Property: where the property is
(Rule 67) estimation (Barangay San Roque v. Heirs of located
Pastor, G.R. No. 138896, June 20, 2000) Personal property: the place where
the plaintiff or defendant resides, at
the election of the plaintiff (Sec. 2, Rule
4).
Foreclosure of RTC since incapable of pecuniary Where the land or any part thereof is
REM estimation. (Barangay San Roque v. Heirs of located. (Sec. 2, Rule 4)
(Rule 68) Pastor, G.R. No. 138896, June 20, 2000)
Partition RTC since incapable of pecuniary 1. Real property – where the
(Rule 69) estimation (2000 BAR, as cited in Riano,
property is located
2012) 2.
Personal property – the place
where the plaintiff or defendant
resides at the election of the
plaintiff (Sec. 13, Rule 69).
Forcible Entry MTC, MTCCs, MCTC, MeTC; covered by Rule Where the property is located because
(Rule 70) on Summary Procedure (Sec 3, RA 7691). it is a real action. (Riano, 2012)

Unlawful MTC, MTCCs, MCTC, MeTC; covered by Rule Where the property is located because
Detainer on Summary Procedure. (Sec 3, RA 7691) it is a real action. (Ibid)
(Rule 70)
Contempt MTC, RTC, CA, Supreme Court Where the charge for indirect
(Rule 71) contempt has been committed against
RTC or a court of equivalent or higher
rank, or against an officer appointed
by it, the charge may be filed with such
court.

Where such contempt has been
committed against a lower court, the
charge may be filed with the RTC of
the place in which the lower court is
sitting; but the proceedings may also
be instituted in such lower court
subject to appeal to the RTC of such
place. (Sec. 5, Rule 70)

Special civil actions within the jurisdiction of
the inferior courts (ICE) INTERPLEADER

1. Interpleader, provided the amount
involved is within its jurisdiction (Makati It is a special civil remedy whereby a party who has
Development Corp. v. Tanjuatco, et al., G.R. property in his possession but who claims no
No. L-26443, March 25, 1969); interest in the subject, or whose interest, in whole
2. Contempt (Secs. 1 and 4, Rule 71); and or in part, is not disputed by others, goes to court
3. Ejectment Suits (Sec. 88, R.A. 296; Rule 70) and asks that conflicting claimants to the property

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 REMEDIAL LAW
or obligation be required to litigate among Summons shall be served upon the conflicting
themselves in order to determine finally who is claimants, together with a copy of the complaint
entitled to the same. (Sec. 1, Rule 62) and order. (Sec. 3, Rule 62)

NOTE: The remedy is afforded not to protect a GROUNDS FOR DISMISSAL
person against double liability but to protect him
against double vexation in respect of one liability. 1. Impropriety of Interpleader (Sec. 4, Rule 62)
(Beltran v. People’s Homesite & Housing Corp., G.R. 2. Grounds for a motion to dismiss
No. L-25138, August 28, 1969; Regalado, 2008) a. Lack of jurisdiction over the subject
matter
REQUISITES FOR INTERPLEADER b. Litis pedentia
c. Res judicata
1. There must be two or more claimants with d. Prescription (Sec. 12[a], Rule 15, 2019
adverse or conflicting interests upon a subject Amendments to the Rules of Civil
matter; Procedure)
2. The conflicting claims involve the same subject
matter and against the same person (plaintiff);
and DECLARATORY RELIEFS AND SIMILAR
3. The plaintiff has no claim upon the subject REMEDIES
matter of the adverse claims or if he has an
interest at all, such interest is not disputed by
the claimants. (2012 BAR) (Riano, 2012) Two types of action covered by Rule 63

WHEN TO FILE 1. Petition for declaratory relief; and
2. Similar remedies:
GR: An action for interpleader must be filed within
a reasonable time after the dispute has arisen, a. Action for reformation of an instrument;
otherwise it may be barred by laches. (Wack Wack b. Action to quiet title; and
Golf & Country Club Inc. v. Lee Won, et al., G.R. No. L- c. Action to consolidate ownership under
23851, March 26, 1976) Art. 1607 NCC. (Riano, 2012)

XPN: Where a stakeholder acts with reasonable NOTE: These 3 remedies are considered
diligence in view of the environmental similar to declaratory relief because they also
circumstances, the remedy is not barred. (Wack result in the adjudication of the legal rights of
Wack Golf & Country Club Inc. v. Lee Won, et al., G.R. the litigants, often without the need of
No. L-23851, March 26, 1976) execution to carry judgment into effect.

It is proper when the lessee, for instance, does not In declaratory relief, the court is given the
know who is entitled to the payment of the rentals discretion to act or not to act on the petition. It may
due because of conflicting claims on the property. choose not to construe the instrument sought to be
construed or could refrain from declaring the
Who may file rights of the petitioner under the deed or the law:

It is filed by the person against whom the 1. Where a decision would not terminate the
conflicting claims are made. (Sec. 1, Rule 62) uncertainty or controversy which gave rise to
the action; or
The person who files the complaint shall pay the 2. Where the declaration or construction is not
docket fees and other lawful fees and shall bear the necessary and proper under the
costs and other litigation expenses even if he has circumstances. (Sec. 5, Rule 63)
no interest in the subject matter of the action,
unless the court shall order otherwise. (Sec. 7, Rule NOTE: A refusal of the court to declare a right or
62; Riano, 2012) construe an instrument may be considered as the
functional equivalent of the dismissal of the
NOTE: The costs, expenses, and attorney’s fees petition.
incurred by plaintiff in the action is recoverable
from the defendant who loses in the action and is With respect to actions described as “similar
found by the court to have caused the unnecessary remedies,” the court cannot refuse to render a
litigation. (Menzi & Co. v. Bastida, 63 Phil 16) judgment thereon (Riano, 2012).

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 Civil Procedure
Declaratory Relief 3. There must have been no breach of the
document in question (Teodoro v. Mirasol, 99
It is a special civil action brought by a person Phil. 150; Reparations Commission v. Northern
interested under a deed, will, contract or other Line, Inc., G.R. No. L-24835, July 31, 1970).
written instrument or whose rights are affected by Otherwise an ordinary civil action is the
a statute, executive order or regulation, ordinance, remedy;
or any other governmental regulation before 4. There must be an actual justiciable
breach or violation thereof, asking the court to controversy or ripening seeds of one between
determine any question of construction or validity persons whose interests are adverse;
arising, and for a declaration of his rights or duties 5. The issue must be ripe for judicial
thereunder. (Sec. 1, Rule 63) determination (Tolentino v. Board of
Accountancy, et al., 90 Phil. 83), as for example,
NOTE: Declaratory judgments are to be where all administrative remedies have been
distinguished from those which are advisory in exhausted; and
character, since they are res judicata and binding 6. Adequate relief is not available through other
upon the parties and those in privity with them, means or other forms of action or proceedings.
and from decisions of abstract or moot questions (Ollada v. Central Bank, G.R. No. L-1357, May 31,
since they must involve a real controversy. (16 Am. 1962; Regalado, 2008)
Jur. Declaratory Judgments)
When an action for declaratory relief NOT
The enumeration of subject matter is exclusive, available
subject to clear and unambiguous contract or
statute. (Riano, 2012) 1. To obtain judicial declaration of citizenship;
2. In actions to resolve political questions;
WHO MAY FILE THE ACTION 3. Those determinative of the issues rather than a
construction of definite status, rights and
Any person: (IAC) relations;
4. Terms of assailed ordinances are not
1. Interested under a deed, will, contract or other ambiguous or of doubtful meaning;
written instrument (Sec. 1, Rule 63); 5. In a petition to seek relief from a moot and
2. Whose rights are affected by a statute, academic question;
executive order or regulation, ordinance or any 6. Where the contract or statute on which action
other governmental regulation (Sec. 1, Rule is based has been breached;
63); and 7. When the petition is based on the happening of
3. The other parties are all persons who have or a contingent event;
claim any interest which would be affected by 8. When the petitioner is not the real party in
the declaration. (Sec. 2, Rule 63) interest;
9. Where the administrative remedies have not
NOTE: Notice shall be sent to the Solicitor General yet been exhausted;
if subject matter involves the validity of a statute, 10. If the decision does not terminate uncertainty
EO or regulation, ordinance or any governmental or controversy (Albano, 2010);
regulation. 11. Action to assail judgment; and
12. Action to ask the court to declare filiation and
In any action involving the validity of a local consequently hereditary rights. (Riano, 2012)
government ordinance notice shall be sent to the
prosecutor or lawyer of the local government unit. NOTE: Petition for declaratory relief is not proper
for the purpose of seeking enlightenment as to the
REQUISITES OF AN ACTION FOR true import of a judgment. The remedy is to move
DECLARATORY RELIEF for a clarificatory judgment.

1. The subject-matter of the controversy must be WHEN MAY THE COURT REFUSE
a deed, will, contract, or other written TO MAKE JUDICIAL DECLARATION
instrument, statute, executive order or
regulation or ordinance; GR: The court, motu proprio or upon motion, may
2. The terms of said documents and validity refuse to exercise the power to declare rights and
thereof are doubtful and require judicial to construe instruments in any case:
construction (Santos v. Aquino, et al., 94 Phil
65);

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 REMEDIAL LAW
1. Where a decision would not terminate the There is nothing in the nature of a special civil
uncertainty or controversy which gave rise to action for declaratory relief that proscribes the
the action; or filing of a counterclaim based on the same
2. In any case where the declaration or transaction, deed or contract subject of the
construction is not necessary and proper complaint. A special civil action is after all not
under the circumstances. (Sec. 5, Rule 63) essentially different from an ordinary civil action,
which is generally governed by Rules 1 to 56 of the
XPN: In actions falling under special remedies: Rules of Court, except that the former deals with a
special subject matter which makes necessary
1. Action for reformation of an instrument some special regulation. But the identity between
authorized under Arts. 1359 to 1369; their fundamental nature is such that the same
3. Action to quiet title authorized by Arts. rules governing ordinary civil suits may and do
476 to 481 of NCC; and apply to special civil actions if not inconsistent
4. Action to consolidate ownership under with or if they may serve to supplement the
Art. 1607 NCC. provisions of the peculiar rules governing special
civil actions. (Philippine Deposit Insurance
NOTE: Where the relief sought would be Corporation v. Court of Appeals, et al., G.R. No.
determinative of issues rather than a construction 126911, April 30, 2003)
of definite stated rights, status, and other relations
commonly expressed in written instruments, the PROCEEDINGS CONSIDERED AS SIMILAR
case is not one for declaratory judgment. REMEDIES
Considering that in a proceeding for declaratory
judgment the relief which may be sought is limited REFORMATION OF AN INSTRUMENT
only to a declaration of rights and not a
determination or trial of issues, a declaratory relief It is not an action brought to reform not the
proceeding is unavailable where a judgment may contract but to reform the instrument evidencing
be made only after a judicial investigation of the the contract. It presupposes that there is nothing
issues. (Kawasaki Port Services Corp., et al. v. wrong with the contract itself because there is a
Amores, et al., G.R. No. 58340, July 16, 1991) meeting of minds between the parties. The contract
is to be reformed because despite the meeting of
CONVERSION TO ORDINARY ACTION minds of the parties as to the object and cause of
the contract, the instrument which is supposed to
If before the final termination of the case, a breach embody the agreement of the parties does not
or violation of an instrument, or a statute, reflect their true agreement by reason of mistake,
executive order or regulation, ordinance, or any inequitable conduct or accident. The action is
other governmental regulation should take place, brought so the true intention of the parties may be
the action may be converted into an ordinary expressed in the instrument. (Art. 135, NCC; Riano,
action. (Sec. 6, Rule 63) 2012)

NOTE: The law does not require that there shall be When to reform instrument
an actual pending case. It is sufficient that there is a
breach of law, an actionable violation, to bar a 1. When, there having been a meeting of the
complaint for declaratory relief. (Borja v. Villadolid, minds of the parties to a contract, their true
G.R. No. L-1897, November 28, 1949) intention is not expressed in the instrument
purporting to embody the agreement, by
Third-party complaint not proper in actions for reason of mistake, fraud, inequitable conduct
declaratory relief or accident, one of the parties may ask for the
reformation of the instrument to the end that
A third-party complaint is supposed to seek such true intention may be expressed (Art.
contribution, indemnity, subrogation or other relief 1359, NCC);
from the third-party defendant in respect to the 2. When a mutual mistake of the parties causes
claim of the plaintiff against him, and hence it is the failure of the instrument to disclose their
improper when the main case is for declaratory real agreement, said instrument may be
relief which purpose is mere interpretation and reformed. (Art. 1361, NCC);
construction. (Comm. of Customs, et al. v. Cloribel, et 3. If one party was mistaken and the other acted
al. G.R. No. L-21036, June 30, 1977) A compulsory fraudulently or inequitably in such a way that
counterclaim may be set up. (Visayan Packing Corp. the instrument does not show their true
v. Reparations Commission, G.R. No. L-20577, May intention, the former may ask for the
31, 1987) reformation of the instrument (Art. 1362, NCC);

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 Civil Procedure
4. When one party was mistaken and the other judicial order. (Cruz v. Leis, G.R. No. 125233, March
knew or believed that the instrument did not 9, 2000)
state their real agreement, but concealed that
fact from the former, the instrument may be NOTE: The concept of consolidation of ownership
reformed (Art. 1363, NCC); under Art. 1607 of Civil Code, has its origin in the
5. When through the ignorance, lack of skill, substantive provisions of the law on sales. Under
negligence or bad faith on the part of the the law, a contract of sale may be extinguished
person drafting the instrument or of the clerk either by legal redemption (Art. 1619, NCC) or
or typist, the instrument does not express the conventional redemption. (Art. 1601, NCC).
true intention of the parties, the courts may
order that the instrument be reformed (Art. Redemption
1364, NCC);
6. If the parties agree upon the mortgage or 1. Legal redemption (retracto legal) is a
pledge of property, but the instrument states statutory mandated redemption of a property
that the property is sold absolutely or with a previously sold.
right of repurchase, reformation of the
instrument is proper (Art. 1365, NCC); and 2. Conventional redemption (pacto de retro)
7. Reformation may be ordered at the instance of sale is one that is not mandated by the statute
either party or his successors in interest, if the but one which takes place because of the
mistake was mutual; otherwise, upon petition stipulation of the parties to the sale.
of the injured party, or his heirs and assigns.
(Art. 1368, NCC) The period of redemption may be fixed by the
parties in which case the period cannot exceed 10
Remedy if the consent of a party to a contract years from the date of the contract. In the absence
has been procured by fraud, inequitable of any agreement, the redemption period shall be 4
conduct, or accident years from the date of the contract. (Art. 1606,
NCC).
Where the consent of a party to a contract has been
procured by fraud, inequitable conduct or accident, When the redemption is not made within the
and an instrument was executed by the parties in period agreed upon, in case the subject matter of
accordance with the contract, what is defective is the sale is a real property, Art. 1607 provides that
the contract itself because of vitiation of consent. the consolidation of ownership in the vendee shall
The remedy is not to bring an action for not be recorded in the Registry of Property without
reformation of the instrument but to file an action a judicial order, after the vendor has been duly
for annulment of the contract. (Art. 1359, NCC) heard.

NOTE: Reformation of the instrument CANNOT be QUIETING OF TITLE TO REAL PROPERTY
brought to reform any of the following:
The action contemplates a situation where the
1. Simple donation inter vivos wherein no instrument or a record is apparently valid or
condition is imposed; effective but is in truth and in fact invalid,
2. Wills; or ineffective, voidable or unenforceable, and may be
3. When the real agreement is void. (Art. 1366, prejudicial to said title to real property. This action
NCC) is then brought to remove a cloud on title to real
property or any interest therein. It may also be
NOTE: When one of the parties has brought an brought as a preventive remedy to prevent a cloud
action to enforce the instrument, he cannot from being cast upon title to real property or any
subsequently ask for its reformation. (Art. 1367, interest therein. (Art. 476, NCC)
NCC)
Court which has jurisdiction
CONSOLIDATION OF OWNERSHIP
According to Section 3 of Republic Act No. 7691,
The action brought to consolidate ownership is not which amended the Judiciary Reorganization Act of
for the purpose of consolidating the ownership of 1980, MeTCs, MTC, and MCTC shall exercise
the property in the person of the vendee or buyer exclusive original jurisdiction in all civil actions
but for the registration of the property. Art. 1607 which involve title to, or possession of, real
requires the filing of the petition to consolidate property, or any interest therein where the
ownership because the law precludes the assessed value of the property or interest therein
registration of the consolidated title without does not exceed Twenty thousand pesos

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 REMEDIAL LAW
(P20,000.00) or, in civil actions in Metro Manila, The 30-day period is non-extendible. Filing a
where such assessed value does not exceed Fifty motion for reconsideration will interrupt the
thousand pesos (P50,000.00) exclusive of interest, period, but the Neypes Rule will not apply if the
damages of whatever kind, attorney's fees, motion for reconsideration is denied. Hence, you
litigation expenses and costs: Provided, That in only get the remaining period which should not be
cases of land not declared for taxation purposes, less than five days.
the value of such property shall be determined by
the assessed value of the adjacent lots. The mode of review under Rule 64 is totally
different from the mode applicable to the
The Procedure for the quieting of title or the judgment, final order or resolution of the Civil
removal of cloud therefrom shall be governed by Service Commission. Appeal shall be taken by filing
such rules of court as the Supreme Court shall a verified petition for review to the Court of
promulgate. (Art. 481, NCC) Appeals under Rule 43. (Riano, 2012)

A review includes digging into the merits and
REVIEW OF JUDGMENTS AND FINAL ORDERS unearthing errors of judgment, while certiorari
OR RESOLUTIONS OF THE COMELEC AND COA deals exclusively with grave abuse of discretion,
which may not exist even when the decision is
otherwise erroneous. Certiorari implies an
APPLICATION OF RULE 65 UNDER RULE 64 indifferent disregard of the law, arbitrariness and
caprice, an omission to weight pertinent
Constitutional basis for the application of Rule considerations, a decision arrived at without
65 under Rule 64 rational deliberation. (Aratuc v. COMELEC, G.R. No.
L-49705-09, February 8, 1979)
Sec. 7, Art. IX-A of the 1987 Constitution reads,
“unless otherwise provided by the Constitution or by NOTE: Only questions of jurisdiction are raised
law, any decision, order or ruling of each under this petition, therefore, questions of facts,
commission may be brought to the Supreme Court questions of law or mixed questions of facts and
on certiorari by the aggrieved party within 30 days law are not to be raised in the petition under Rule
from receipt of a copy thereof.” The provision was 64 in relation to Rule 65.
interpreted by the Supreme Court to refer to
certiorari under Rule 65 and not appeal by Order of comment
certiorari under Rule 45. To implement the above
constitutional provision, the SC promulgated Rule If the SC finds the petition sufficient in form and in
64. (Aratuc v. COMELEC, G.R. No. L-49705-09, substance, respondents will be ordered to file a
February 8, 1979; Dario v. Mison, G.R. No. 81954, verified comment within 10 days from notice of
August 8, 1989) such order, otherwise the Court might dismiss the
petition outright. (Sec. 6, Rule 64)
NOTE: The petition for certiorari shall be filed
within 30 days from notice of the judgment or final Outright Dismissal of petition (DUR)
order or resolution sought to be reviewed (Sec. 3,
Rule 64). Fresh Period Rule is inapplicable. The 30- 1. It was filed manifestly for delay;
day period has express reference to the judgment 2. The questions raised are too unsubstantial to
or a final order of the commission concerned. (Sec. warrant further proceedings (Sec. 6, Rule 64);
3, Rule 64) or
3. Failure of the petitioner to comply with any of
Mode of review the requirements under Sec. 5 Rule 64 shall be
sufficient ground for the dismissal of the
A judgment or final order or resolution of the petition.
Commission on Elections and the Commission on
Audit may be brought by the aggrieved party to the Effect of filing
Supreme Court on certiorari under Rule 65, except
as hereinafter provided. (Sec. 2, Rule 64) The filing of a petition for certiorari shall NOT stay
the execution of the judgment or final order or
NOTE: The decision of the Civil Service resolution sought to be reviewed, unless the
Commission is now reviewable by the Court of Supreme Court shall direct otherwise upon such
Appeals. (Sec. 1, R.A. No. 7902) terms as it may deem just. (Sec. 8, Rule 64)

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NOTE: To prevent the execution of the judgment, The COMELEC and COA The appellant and the
the petitioner may obtain TRO or a writ of shall be public appellee are the original
preliminary injunction because the mere filing of respondents who are parties to the action,
the petition does not interrupt the course of the impleaded in the action. and the lower court or
principal case. (Sec. 7, Rule 65; Riano, 2012) quasi-judicial agency is
not impleaded.
Submission of decision The filing of MNT or MR, Motion for
if allowed under the reconsideration is a pre-
Unless the Court sets the case for oral argument, or procedural rules of the requisite.
requires the parties to submit memoranda, the Commission, shall
case shall be deemed submitted for decision upon interrupt period fixed.
the filing of the comments on the petition, or of The court is in the The court is in the
such other pleadings or papers as may be required exercise of its appellate exercise of its appellate
or allowed, or the expiration of the period to do so. jurisdiction and power jurisdiction and power
(Sec. 9, Rule 64) of review. of review.
Petition for certiorari is Petition for certiorari is
DISTINCTION IN THE APPLICATION OF RULE 65 to be filed before the SC. to be filed with the CA,
TO JUDGMENTS OF THE COMELEC AND COA SB, RTC.
AND THE APPLICATION OF RULE 65 TO OTHER
TRIBUNALS, PERSONS AND OFFICERS If the petition relates to
an actor omission of a
REVIEW OF quasi-judicial agency,
JUDGMENTS, FINAL unless otherwise
RULE 64 FOR ORDERS OR provided by law or
COMELEC AND COA RESOLUTIONS OF these rules, the petition
OTHER TRIBUNALS, shall be filed with and
PERSONS AND be cognizable only with
OFFICER the Court of Appeals.
Petition is based on Petition is based on
questions of law. questions of law; In election cases
independent action involving an act or
grounded on grave omission of a municipal
abuse of discretion. or regional trial court,
Mode of review Not a mode of review the petition shall be
Involves review of Involves the review of filed exclusively with
judgments, final orders the judgment final the COMELEC. (Sec. 4,
or resolutions of orders or resolutions of Rule 65, as amended by
COMELEC and COA. any tribunal board or A.M. No. 07-7-12-SC).
officer exercising If MR is denied, the If MR is denied, the
judicial or quasi-judicial aggrieved party may file aggrieved party will
functions. the petition within the have another 60 days
Filed within 30 days Filed within 60 days remaining period, but within which to file the
from notice of from notice of which shall not be less petition counted from
judgment, final order or judgment, final order or than 5 days. the notice of denial.
resolution sought to be resolution sought to be
reviewed. reviewed Fresh period rule is not Fresh period Rule is
Does not stay the Does not stay the applicable. applicable.
execution unless SC judgment or order
shall direct otherwise being assailed.
upon such terms as it
may deem just. (Sec. 8,
Rule 64)

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CERTIORARI, PROHIBITION AND MANDAMUS


DEFINITIONS AND DISTINCTIONS

CERTIORARI PROHIBITION MANDAMUS
Definition Certiorari is an extraordinary Prohibition is an Mandamus is an
writ annulling or modifying extraordinary writ extraordinary writ
the proceedings of a tribunal, commanding a tribunal, commanding a tribunal,
board or officer exercising corporation, board or corporation, board or
judicial or quasi-judicial person, whether exercising person, to do an act
functions when such tribunal, judicial, quasi-judicial or required to be done:
board or officer has acted ministerial functions, to a. When he or she
without or in excess of its or desist from further unlawfully neglects
his jurisdiction, or with grave proceedings when said the performance of an
abuse of discretion amounting proceedings are without or act which the law
to lack or excess of in excess of its jurisdiction, specifically enjoins as
jurisdiction, there being no or with abuse of its a duty, and there is no
appeal or any other plain, discretion, there being no other plain, speedy
speedy and adequate remedy appeal or any other plain, and adequate remedy
in the ordinary course of law. speedy and adequate in the ordinary
(Sec. 1, Rule 65) remedy in the ordinary course of law; or
course of law. (Sec. 2, Rule b. When one unlawfully
65) excludes another
from the use and
enjoyment of a right
or office to which the
other is entitled. (Sec.
3, Rule 65)
Against Directed against any tribunal, Directed against any Directed against any
whom board or officer exercising tribunal, corporation board tribunal, corporation
judicial or quasi-judicial officer or person exercising board officer or person
function. judicial, quasi-judicial or exercising ministerial
ministerial function. function.
Ground The tribunal, board or officer The tribunal, corporation The tribunal, corporation
is alleged to have acted board officer or person is board officer or person is
without jurisdiction; in excess alleged to have acted: alleged to have unlawfully
of jurisdiction; or with grave without jurisdiction; in neglected a ministerial
abuse of discretion amounting excess of jurisdiction; or duty; or excluded another
to lack or excess of with grave abuse of from the use of a right or
jurisdiction. discretion amounting to enjoyment of a office.
lack or excess of
jurisdiction.
Purpose Purpose is to annul or nullify a Purpose is to have Purpose is for respondent
proceeding. respondent desist from to:
further proceeding.
1. Do the act required;
and
2. To pay damage.
Nature This remedy is corrective – to This remedy is preventive This remedy is affirmative
correct usurpation of and negative – to restrain or positive (if the
jurisdiction. (Sec. 1, Rule 65) or prevent usurpation of performance of a duty is
jurisdiction. (Sec. 2, Rule 65) ordered) or it is negative
(if a person is ordered to
desist from excluding
another from a right or

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 Civil Procedure
office). (Sec. 3, Rule 65)
Scope Extends to discretionary acts. Extends to discretionary Only for ministerial acts.
and ministerial acts.

Instances when the petitions for certiorari, 3. Petition for writ of habeas data against
mandamus and prohibition are NOT available any interlocutory order (Sec. 13[l], A.M.
No. 08-1-16);
1. Rule on Summary Procedure as to 4. Small claims cases against interlocutory
interlocutory order issued by the lower order issued by the lower court (Sec.
court (Sec. 19[g], Rules on Summary 14[g], A.M. No. 08-8-7-SC)
Procedure),;
2. Writ of Amparo against any interlocutory
order (Sec. 11[l], Rule on Writ of Amparo);

CERTIORARI DISTINGUISED FROM APPEAL BY CERTIORARI

RULE 65 (CERTIORARI) RULE 45 (APPEAL BY CERTIORARI UNDER ART. VIII,
CERTIORARI) SEC. 1 OF THE 1987
CONSTITUTION
A special civil action that is an Mode of Appeal
original and independent action
and not a mode of appeal

May be directed against an Seeks to review final The power to determine whether or
interlocutory order or matters judgments or final orders not there has been a grave abuse of
where no appeal may be taken discretion amounting to lack or
from excess of jurisdiction on the part of
any branch or instrumentality of the
Government.

GR: Involves questions of GR: Involves question of law Involves questions of jurisdiction
jurisdiction
XPNs: In Writ of Amparo,
XPN: When it is necessary to Habeas Data and Writ of
delve into factual issues in order Kalikasan, it may involve both
to resolve allegations of grave questions of law and facts.
abuse of discretion as a ground.
(Balba v. Peak Development, Inc.,
et al, G.R. No. 148288, August 12,
2005)

Directed against an interlocutory Involves the review of the Involves the review of an act by any
order of a court or where there is judgment, final orders or branch or instrumentality of the
no appeal or any other plain, resolutions of the CA, Government, even if it does not
speedy or adequate remedy. Sandiganbayan, CTA, RTC or exercise judicial, quasi-judicial or
other courts. ministerial functions. (Araullo v.
Aquino, G.R. No. 209287, July 1, 2014)

Filed not later than 60 days from Filed within 15 days from
notice of judgment, order or notice of judgment, final
resolution sought to be assailed. order or resolution appealed
from.

Unless a writ of preliminary Stays the judgment or order
injunction or temporary appealed from
restraining order is issued, it does
not stay the challenged
proceeding.

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 REMEDIAL LAW
The judge, court, quasi-judicial The appellant and the
agency, tribunal, corporation, appellee are the original
board, officer or person shall be parties to the action, and the
public respondents who are lower court or quasi-judicial
impleaded in the action agency is not impleaded.

As a general rule, motion for Motion for reconsideration is
reconsideration or for new trial is not required
required. If a motion for
reconsideration or new trial is
filed, another 60 days shall be
given to the petitioner. (A.M. No.
02-03-SC)

Court exercises original The court is in the exercise of The court exercises original
jurisdiction its appellate jurisdiction and jurisdiction
power of review.

Filed with the RTC, CA, Filed with the Supreme Court Filed with the Supreme Court
Sandiganbayan or COMELEC


PROHIBITION AND MANDAMUS DISTINGUISHED FROM INJUNCTION

PROHIBITION MANDAMUS INJUNCTION
Definition Prohibition is an Mandamus is an Main action for
extraordinary writ extraordinary writ injunction seeks to
commanding a tribunal, commanding a tribunal, enjoin the
corporation, board or corporation, board or person, defendant from the
person, whether exercising to do an act required to be commission or
judicial, quasi-judicial or done: continuance of a
ministerial functions, to 1. When he unlawfully specific act, or to
desist from further neglects the performance compel a particular
proceedings when said of an act which the law act in violation of
proceedings are without or specifically enjoins as a the rights of the
in excess of its jurisdiction, duty, and there is no other applicant.
or with abuse of its plain, speedy and
discretion, there being no adequate remedy in the Preliminary
appeal or any other plain, ordinary course of law; or injunction is a
speedy and adequate 2. When one unlawfully provisional remedy
remedy in the ordinary excludes another from the to preserve the
course of law (Sec. 2, Rule use and enjoyment of a status quo and
65). right or office to which prevent future
the other is entitled (Sec. wrongs in order to
3, Rule 65) preserve and
protect certain
interests or rights
during the
pendency of an
action.

Nature Special civil action Special civil action Ordinary civil action

Purpose To prevent an To compel the performance For the defendant
encroachment, excess, of a ministerial and legal either to refrain
usurpation or assumption of duty; from an act or to
jurisdiction; perform not
necessarily a legal

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 Civil Procedure
and ministerial duty

Against May be directed against May be directed against Directed against a
whom entities exercising judicial or judicial and non-judicial party
quasi-judicial, or ministerial entities
functions

Scope Extends to discretionary and Extends only to ministerial Does not
ministerial functions functions necessarily extend
to ministerial,
discretionary or
legal functions

How filed Always the main action Always the main action May be the main
action or just a
provisional remedy

Court May be brought in the May be brought in the May be brought in
which has Supreme Court, Court of Supreme Court, Court of the Regional Trial
jurisdiction Appeals, Sandiganbayan, or Appeals, Sandiganbayan, or Court which has
in the Regional Trial Court in the Regional Trial Court jurisdiction over the
which has jurisdiction over which has jurisdiction over territorial area
the territorial area where the territorial area where where respondent
respondent resides. respondent resides. resides.

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 REMEDIAL LAW
REQUISITES judicial functions whereby the record of a
particular case is ordered to be elevated for review
Requisites of a valid certiorari and correction in matters of law.

1. The petition is directed against a tribunal, NOTE: It is commenced by a verified petition
board or officer exercising judicial or quasi- accompanied by a certified true copy of the
judicial functions; judgment, order or resolution subject thereof,
2. Such tribunal, board or officer has acted copies of all pleadings and documents relevant and
without or in excess of jurisdiction or with pertinent thereto, and a sworn certification of non-
grave abuse of discretion; and forum shopping. (Sec. 1, Rule 65)
3. There is neither appeal nor any plain, speedy
and adequate remedy in the ordinary course of NOTE: In a petition for certiorari, the court will
law for the purpose of annulling or modifying only resolve errors of jurisdiction and not errors of
the proceeding. There must be capricious, judgment.
arbitrary and whimsical exercise of power for
it to prosper. (Sec. 1 Rule 65; Aggabao v. An error of judgment is one which the court may
Comelec, G.R. No. 163756, January 26, 2005; commit in the exercise of its jurisdiction. Such an
Riano, 2009) error does not deprive the court of jurisdiction and
is correctible only by appeal; whereas an error of
Requisites of a valid prohibition jurisdiction is one which the court acts without or
in excess of its jurisdiction. Such an error renders
1. The impugned act must be that of a tribunal, an order or judgment void or voidable and is
corporation, board or person; correctible by the special civil action of certiorari.
2. The respondent must be exercising judicial, (Artistica Ceramica, Inc. v Ciudad Del Carmen
quasi-judicial functions or ministerial Homeowner’s Association, Inc., G.R. Nos. 167583-84,
functions; June 16, 2010) (1989, 2012 BAR)
3. Respondents acted without or in excess of its
jurisdiction or with grave abuse of discretion Q: Acting on a petition for declaration of nullity
amounting to lack of jurisdiction; and of marriage filed by Zenaida, the RTC then
4. There must be no appeal or other plain, speedy ruled that the Marriage between Estrellita and
and adequate remedy. (Sec. 2, Rule 65) Tamano were void ab initio. Aggrieved,
Estrellita argued that RTC should have waited
Requisites of a valid mandamus for the decision of the SC regarding about the
petition for certiorari she filed, questioning the
1. There must be a clear legal right to the act impropriety of the lower court denying her
demanded; motion to dismiss in another case which is
2. It must be the duty of the defendant to perform intertwined with the current action. Is RTC
the act because it is mandated by law; wrong when it did not suspend its proceeding?
3. The defendant:
A: NO. An application for certiorari is an
a. unlawfully neglects the performance of independent action which is not part or a
the duty enjoined by law; or continuation of the trial which resulted in the
b. unlawfully excludes another from the rendition of the judgment complained of. Rule 65
use and enjoyment of a right or office of the Rules of Court is explicit in stating that "the
which such other is entitled; petition shall not interrupt the course of the
principal case unless a temporary restraining order
4. The act to be performed is ministerial, not or a writ of preliminary injunction has been issued
discretionary; against the public respondent from further
5. There is no appeal or other plain, speedy and proceeding in the case." (Juliano-Llave v. Republic,
adequate remedy in the ordinary course of law. G.R. No. 169776, November, 30, 2011)
(Sec. 3, Rule 65; Riano, 2012)
NOTE: The orders and rulings of a court on all
WHEN PETITION FOR CERTIORARI, controversies pertaining to the case cannot be
PROHIBITION OR MANDAMUS IS PROPER corrected by certiorari if the court has jurisdiction
over the subject matter and over the person. (Sea
CERTIORARI Lion Fishing Corp. v. People, G.R. No. 172678, March
23, 2011)
It is a writ issued by a superior court to an inferior
court, board or officer exercising judicial or quasi- Grounds for cetiorari

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 Civil Procedure
That a tribunal, board or officer exercising judicial GR: Where the proper remedy is appeal, the action
or quasi-judicial functions acted: for certiorari will not be entertained. Certiorari is
not a remedy for errors of judgment. Errors of
1. Without or in excess of jurisdiction; or judgment are correctible by appeal; errors of
2. In grave abuse of discretion amounting to jurisdiction are reviewable by certiorari.
lack or excess of jurisdiction.
NOTE: While the SC said in St. Martin that a special
NOTE: civil action under Rule 65 is proper to seek the
review of an NLRC decision, this remedy is, by no
1. Judicial function – Is where the tribunal or means, intended to be an alternative to an appeal.
person has the power to determine what the It is not a substitute for an appeal that was devised
law is, what the rights of the parties are, and to circumvent the absence of a statutory basis for
undertakes to determine these questions and the remedy of appeal of NLRC decisions. It is not a
adjudicate upon the rights of the parties. means to review the entire decision of the NLRC for
2. Without jurisdiction – Is where the reversible errors on questions of fact and law.
respondent does not have the legal power to (Philippine National Bank v. Gregorio, G.R. No,
determine the case. 194944, September 18, 2017)
3. Excess of jurisdiction – Is where the
respondent, being clothed with the power to XPNs: A petition for certiorari may be allowed
determine the case, oversteps his authority as despite the availability of the remedy of appeal
determined by law. when:
4. Grave abuse of discretion – The abuse must
be grave as where the power is exercised in an 1. Appeal does not constitute a speedy and
arbitrary or despotic manner by reason of adequate remedy;
passion or personal hostility; or, it must be so 2. Orders were issued either in excess of or
patent and gross as to amount to an evasion of without jurisdiction;
positive duty or to a virtual refusal to perform 3. For certain special considerations as for
the duty enjoined or to act at all in public policy or public welfare;
contemplation of law. (Planters Products, Inc. v. 4. Order is a patent nullity;
Court of Appeals, G.R. No. 10150, September 15, 5. Decision in the certiorari case will avoid
1993) future litigation; or
5. Plain, speedy and adequate remedy – Is one 6. In criminal actions, the court rejects
which promptly relieves the petitioner from rebuttal evidence for the prosecution as, in
the injurious effects of the judgment and the case of acquittal, there could be no
acts of the lower court or agency. (Regalado, remedy. (Regalado, 2010)
2010)
Q: What is the mode of appeal applicable to the
Question of fact raised in an action for following cases, and what issues may be raised
certiorari before the reviewing court/tribunal? (2017
BAR)
GR: Only established or admitted facts can be
considered. (Rubio v. Reyes, G.R. No. 24581, May 27, (c) The decision or final order of the
1968) National Labor Relations Commission.

XPN: When it is necessary to delve into factual A: There is no mode of appeal from a decision or
issues in order to resolve allegations of grave final order of the NLRC, since such decision or final
abuse of discretion as a ground for the special civil order is final and executory pursuant to the Labor
action of certiorari and prohibition. (Balba v. Peak Code (Art. 223). The remedy of the aggrieved party
Development, Inc., et al., G.R. No. 148288, August 12, is to file a special civil action for certiorari with the
2005; Regalado, 2010) Court of Appeals. (St. Martin Funeral Home v. NLRC,
295 SCRA 494) Such special civil action may raise
NOTE: In original actions for certiorari under Rule questions both of fact and law. (Aggabao v.
65, the finding of facts of the CA is not conclusive or COMELEC, 449 SCRA 400)
binding upon the SC unlike the general rule in
appeals by certiorari under Rule 45. (Medran v. CA, Q: Modes of certiorari:
G.R. No. L-1350, March 26, 1949)
1. As a mode of appeal from the RTC or the
Remedies of appeal and certiorari NOT CA to the SC;
exclusive

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 REMEDIAL LAW
2. As a special civil action from the RTC or motion to lift the order of default and
the CA to the SC; to set aside the default judgment?
3. As a mode of review of the decisions of Why? (2002 BAR)
the National Labor Relations A:
Commission and the Constitutional 1. NO. Under ordinary circumstances, the proper
Commissions. (2006 BAR) remedy of a party wrongly declared in default
is either to appeal from the judgment by
A: default or to file a petition for relief from
1. A petition for review on certiorari under Rule judgment (Jao Inc. v. CA, G.R. No. 93233, Dec. 19,
45 of the Rules of Court is a mode of appeal on 1995). A special civil action for certiorari is
pure questions of law as a general rule from a available only when no appeal or any plain,
judgment or final order or resolution of the CA speedy, and adequate remedy in the ordinary
or the RTC to the SC. course of law is available.
2. A special civil action for certiorari under Rule
65 of the Rules of Court is an original action 2. YES. The trial court gravely abused its
from the RTC or the CA to the SC against any discretion or acted without or in excess of
tribunal, board or officer exercising judicial or jurisdiction in denying the defendant’s motion
quasi-judicial functions raising the issue of lack because it was not accompanied by a separate
or excess of jurisdiction or grave abuse of affidavit of merit. In his verified motion to lift
discretion amounting to lack or excess of the order of default and to set aside the
jurisdiction, there being no appeal or any plain, judgment, the defendant alleged that
speedy and adequate remedy in the ordinary immediately upon receipt of the summons, he
course of law. saw the plaintiff and confronted him with his
3. The mode of review of the decision of the receipt showing payment and that the plaintiff
NLRC is via a special civil action for certiorari assured him that he would instruct his lawyer
under Rule 65, but pursuant to the hierarchy of to withdraw the complaint. Since the good
the courts enunciated in the case of St. Martin’s defense of the defendant was already
Funeral Homes v. NLRC (G.R. No. 130866, incorporated in the verified motion, there was
September 16, 1998), the same should be filed no need for a separate affidavit of merit. (Mago
in the CA. The mode of review of the decision v. CA, G.R. No. 115624, February 25, 1999)
of the COMELEC and the Commission on Audit,
as provided under Rule 64 of the Rules of Petition for review on certiorari (appeal by
Court, is a special civil action for certiorari certiorari) and petition for certiorari are
under Rule 65. Decisions of the Civil Service mutually exclusive
Commission, however, are reviewable by
petition for review filed with the CA under A petition for review on certiorari under Rule 45
Rule 43 of the Rules of Court. and a petition for certiorari under Rule 65 are
mutually exclusive remedies. Certiorari cannot co-
Q: Jericho was declared in default in the RTC for exist with an appeal or any other adequate remedy.
his failure to file an answer to a complaint for a (Portillo v. Rudolf Lietz, Inc., G.R. No. 196539,
sum of money. Judgment by default was October 10, 2012)
rendered against Jericho. Jericho filed a
verified motion to lift the order of default and Q: Jovina filed a Complaint for Nullity of Deed of
to set aside the judgment. In his motion, Jericho Absolute Sale on the ground that her signature
alleged that, immediately upon receipt of the therein is forged. The complaint was favorably
summons, he saw the plaintiff and confronted decided by the lower court, however the same
him with his receipt evidencing his payment was reversed on appeal. Aggrieved, Jovina filed
and that the plaintiff assured him that he would a petition for certiorari under Rule 65 before
instruct his lawyer to withdraw the complaint. the Supreme Court to assail the CA’s decision. Is
Jericho's motion was denied because it was not Jovina’s action proper?
accompanied by an affidavit of merit. Jericho
filed a special civil action for certiorari under A: NO. The proper remedy of a party aggrieved by
Rule 65 challenging the denial order. a judgment, final order, or resolution of the CA is to
file with the Supreme Court a verified petition for
1. Is certiorari under Rule 65 the proper review on certiorari under Rule 45 within 15 days
remedy? Why? from notice of the judgment, final order, or
2. Did the trial court abuse its discretion resolution appealed from. Obviously, Jovina, in
or act without or in excess of its filing a petition for certiorari under Rule 65 of the
jurisdiction in denying Jericho's Rules of Court, availed of the wrong remedy. Unlike

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 Civil Procedure
a petition for review on certiorari under Rule 45, GR: Certiorari is not available when the period for
which is a continuation of the appellate process appeal has lapsed.
over the original case, a special civil action for
certiorari under Rule 65 is an original or XPNs:
independent action based on grave abuse of
discretion amounting to lack or excess of 1. When public welfare and the advancement of
jurisdiction.It will lie only if there is no appeal or public policy dictates;
any other plain, speedy, and adequate remedy in 2. When the broader interest of justice so
the ordinary course of law. As such, it cannot be a requires;
substitute for a lost appeal, especially if such loss 3. When the writs issued are null and void; and
or lapse was due to one’s own negligence or error 4. When the questioned order amounts to an
in the choice of remedies. (Dabon v. CA, G.R. No. oppressive exercise of judicial authority.
174937, June 13, 2012)
Necessity for a motion for reconsideration
Q: The prosecutor filed a Motion to Withdraw
Information stating that there was lack of GR: As a general rule, a motion for reconsideration
probable cause to hold Carandang liable for is a prerequisite for the availment of a petition for
estafa. The RTC granted the Motion to certiorari under Rule 65. (Chua v. People of the
Withdraw Information. Personal Collection Philippines, G.R. No. 195248, November 22, 2017)
filed a petition for certiorari with the CA
arguing that the RTC acted grave abuse of XPN: In some recognized situations, the filing of a
discretion when it issued the order granting the motion for reconsideration is a condition sine qua
Motion to Withdraw Information. The CA non to the filing of a petition for certiorari. The
dismissed the petition for certiorari for lack of reason for this is to allow the court an opportunity
merit. The CA pointed out that the private to correct its imputed errors.
offended party’s interest is a criminal case was
limited to its civil aspect. It found that the Q: AY Company retrenched 21 of its employees
petition for certiorari already involved matters on the ground that it was suffering business
beyond the civil aspect of the estafa case losses. The AY Company Union filed a Notice of
against Carandang. In praying for annulment of Strike with DOLE. The case was referred to the
the trial court orders, Personal Collection was Secretary of Labor after the parties were not
asking for the reinstatement of the criminal able to settle their differences at the NCMB. The
case, which only the State, through the Office of Secretary of Labor ruled in favor of the AY
the Solicitor General, could do. Did the CA Company Union. AY Company moved for
correctly rule that the petition for certiorari reconsideration. The MR was denied by
was improper, since it is only the State which Secretary of Labor and ruled that voluntary
may pray for the reinstatement of the criminal arbitrators’ decisions, orders, resolutions or
case? awards shall not be the subject of motion for
reconsideration. AY Company then filed an
A: YES. An order granting a motion to withdraw an Original Petition for Certiorari and Prohibition
information and dismissing a criminal case is final with CA. CA dismissed the petition and held that
because it disposed of the case and terminated the AY Company erred in filing a petition for
proceedings therein, leaving nothing to be done by certiorari under Rule 65 instead of Rule 43
the court. Thus, the remedy to question this final which properly covers decisions of voluntary
order is an appeal. It is elementary that the special labor arbitrators. Is CA correct?
civil action of certiorari is not and cannot be a
substitute for an appeal, where the latter remedy is A: NO. Certiorari under Rule 65 is the proper
available for an appeal, where the latter remedy is remedy and not under Rule 43. It has long been
available, as it was in this case. (Personal Collection settled that the remedy of an aggrieved party in a
Direct Selling, Inc. v. Carandang, G.R. No. 206958, decision or resolution of the Secretary of Labor is
November 8, 2017, as penned by J. Leonen) to timely file a motion for reconsideration as a
precondition for any further or subsequent
Certiorari is not a substitute for a lost appeal remedy, and then seasonably file a special civil
action for certiorari under Rule 65 of the 1997
The filing of a petition for certiorari as a substitute Rules on Civil Procedure.
for a lost appeal is erroneous. Certiorari is not and
cannot be made a substitute for an appeal where While a government office may prohibit altogether
the latter remedy is available but was lost through the filing of a motion for reconsideration with
fault or negligence. respect to its decisions or orders, the fact remains

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 REMEDIAL LAW
that certiorari inherently requires the filing of a PROHIBITION
motion for reconsideration, which is the tangible
representation of the opportunity given to the It is a remedy to prevent inferior courts,
office to correct itself. Regardless of proscription corporations, boards or persons from usurping or
against the filing of a motion for reconsideration, exercising a jurisdiction or power which they have
the same may be filed on the assumption that not been vested by law.
rectification of the decision or order must be
obtained, and before a petition for certiorari may NOTE: It is commenced by a verified petition
be instituted. (Philtranco Service Enterprises Inc. v. accompanied by a certified true copy of the
PWU-AGLO, G.R. No. 180962, February 26, 2014) judgment, order or resolution subject thereof,
copies of all pleadings and documents relevant and
Material dates in the petition pertinent thereto, and a sworn certification of non-
forum shopping. (Sec. 2, Rule 65)
Under the material date rule, the following material
dates must be stated in the petition: When issued

1. When notice of the judgment, final order or GR: Prohibition does not ordinarily lie to restrain
resolution subject of the petition was received; an act which is already fait accompli.
2. When a motion for new trial or
reconsideration was filed, if any; and XPN: It will lie to prevent the creation of a new
3. When notice of the denial of the moton for new province by those in the corridors of power who
trial or reconsideration was received. (Sec. 3, could avoid judicial intervention and review by
Rule 46) merely speedily and stealthily completing the
commission of such illegality. (Tan v. COMELEC,
The requirement is for the purpose of determining G.R. No. 73155, July 11, 1986)
the timeliness of the petition. (Riano, 2016; Great
Southern Maritime Services Corporation v. Acuna, NOTE: Prohibition, and not mandamus, is the
452 SCRA 422) remedy where a motion to dismiss is wrongfully
The 60-day period starts to run from the date denied. (Enriquez v. Macadaeg, G.R. No. L-2422,
petitioner receives the assailed judgment, final September 30, 1949)
order or resolution, or the denial of the motion for
reconsideration or new trial timely filed, whether Q: A files a Complaint against B for recovery of
such motion is required or not. To establish the title and possession of land situated in Makati
timeliness of the petition for certiorari, the date of with the RTC of Pasig. B files a Motion to
receipt of the assailed judgment, final order or Dismiss for improper venue. The RTC Pasig
resolution or the denial of the motion for Judge denies B's Motion to Dismiss, which
reconsideration or new trial must be stated in the obviously was incorrect. Alleging that the RTC
petition; otherwise, the petition for certiorari must Judge "unlawfully neglected the performance of
be dismissed. (Isabelita Vinuya, et al. v. Honorable an act which the law specifically enjoins as a
Executive Secretary Alberto Romulo, G.R. No. duty resulting from an office," A files a Petition
162230, April 28, 2010) for Mandamus against the judge. Will
Mandamus lie? Reasons. (2012 BAR)
Offended Party in a Criminal Case
A: NO, mandamus will not lie. The proper remedy
Procedural law basically mandates that all criminal is a petition for prohibition. (Serena v.
actions commenced by complaint or by Sandiganbayan G.R. No. 162059, January 22, 2008)
information shall be prosecuted under the The dismissal of the case based on improper venue
direction and control of a public prosecutor. In is not a ministerial duty. Mandamus does not lie to
appeals of criminal cases before the CA and before compel the performance of a discretionary duty.
the SC, the OSG is the appellate counsel of the (Nilo Paloma v. Danilo Mora, G.R. No. 157783,
People. September 23, 2005)

While there may be rare oaccsions when an Exhaustion of administrative remedy necessary
offended party may be allowed to pursue the in order for an action for prohibition
criminal action on his own behalf, it can only apply
when there is a denial of due process. (Jimenez v. In order for prohibition to lie against an executive
Sorsogon, G.R. No. 178607, December 5, 2012) officer, the petitioner must first exhaust all
administrative remedies, as prohibition is available
only when there are no other plain, speedy and

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 Civil Procedure
adequate remedies in the ordinary course of law. duty, but not to compel the performance of a
(Cabedo, et al. v. Dir. of Lands, et al., G.R. No. L- discretionary duty.
12777, May 23, 1961)
However, even when the act sought to be
The availability of an administrative remedy via a performed involves the exercise of discretion, the
complaint filed before the NEA precludes respondent may be directed to act by mandamus,
respondent from filing a petition for prohibition but this is not to direct the exercise of judgment in
before the court. It is settled that one of the a particular manner.
requisites for a writ of prohibition to issue is that
there is no plain, speedy and adequate remedy in NOTE: Generally, mandamus will not lie to enforce
the ordinary course of law. In order that purely private contract rights and will not lie
prohibition will lie, the petitioner must first against an individual unless some obligation in the
exhaust all administrative remedies. (Samar II nature of a public or quasi-public duty is imposed.
Electric Cooperative, Inc. v. Seludo, Jr., G.R. No. To preserve its prerogative character, mandamus is
173840, April 25, 2012) not used for the redress of private wrongs, but only
in matters relating to the public. (Uy Kiao Eng v.
Prohibition vs. Injunction Nixon Lee, G.R. No. 176831, January 15, 2010)

PROHIBITION INJUNCTION Q: Albert was appointed Election Registrar of
Directed to court itself, Directed only to the the Municipality of Sevilla supposedly to
commanding it to cease party litigants, without replace the respondent Election Registrar
from the exercise of a in any manner Richard who was transferred to another
jurisdiction to which it interfering with the municipality without his consent and who
has no legal claim. court. (De Los Angeles v. refused to accept his aforesaid transfer, as in
(Esquivel v. Ombudsman, CA, G.R. Nos. L-34317 & fact he continued to occupy his aforesaid
GR No. 137237, L-34335, September 30, position and exercise his functions thereto.
September 17, 2002) 1974) Albert then filed a petition for mandamus
against Richard but the trial court dismissed
Albert's petition contending that quo warranto
MANDAMUS is the proper remedy. Is the court correct in its
ruling? Why? (2001 BAR)
It is a writ issued in the name of the State, to an
inferior tribunal, corporation, board or person, A: YES. Mandamus will not lie. This remedy applies
commanding the performance of an act which the only where petitioner’s right is founded clearly in
law enjoins as a duty resulting from an office, trust law, not when it is doubtful. Richard was
or station. transferred without his consent. It is tantamount to
removal without cause and is contrary to
NOTE: It is commenced by a verified petition fundamental guarantee on non-removal except for
accompanied by a sworn certification of non-forum cause. Considering that Richard continued to
shopping. (Sec. 3, Rule 65) occupy the position and exercise his functions
therein, the proper remedy is quo warranto and
Grounds for mandamus not mandamus.

1. When any tribunal, corporation, board, officer Q: Petitioner Lihayhay in pursuant to RA 2338
or person unlawfully neglects the performance wrote two letters to Atty. Pitargue, giving
of an act which the law specifically enjoins as a confidential information regarding the ill-
duty resulting from an office, trust or station; gotten wealth of the Marcoses. In these letters,
or he also alleged that upon recovery he must be
2. When any tribunal, corporation, board, officer given the informant’s fee upon recovery of such
or person unlawfully excludes another from ill-gotten wealth. Twenty (20) years thereafter,
the use and enjoyment of a right or office to the petitioner wrote to the CIR, President GMA
which the other is entitled. (Sec. 3, Rule 65) and the Department of Finance that he be
rewarded the 25% of the 18 billion pesos
Discretionary acts not compellable by recovered from the Marcoses from the
mandamus compromise agreement the Marcoses had with
the government. Without waiting for any action
It is settled that mandamus is employed to compel on the part of the Department of finance, the
the performance, when refused, of a ministerial petitioner the present petition for mandamus
and damages, with a prayer for a writ of

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 REMEDIAL LAW
garnishment insisting on his entitlement to 3. Palpable excess of authority (Kant Wong v.
informer’s rewards amounting to 11 billion, PCGG, G.R. No. 79484, December 7, 1987)
and that the DENR be ordered to transfer to
him several governmental lands, and that the Q: The Ombudsman found probable cause to
Governor of Bangko Sentral be ordered to charge with plunder the provincial governor,
garnish in his favor 50 billion worth of jewelry vice governor, treasurer, budget officer, and
recovered from first lady Imelda Marcos. Is the accountant. An Information for plunder was
petitioner entitled to the writs he prayed for? filed with the Sandiganbayan against the
provincial officials except for the treasurer who
A: NO. The grant of an informer's reward for the was granted immunity when he agreed to
discovery, conviction, and punishment of tax cooperate with the Ombudsman in the
offenses is a discretionary quasi-judicial matter that prosecution of the case. Immediately, the
cannot be the subject of a writ of mandamus. It is governor filed with the Sandiganbayan a
not a legally mandated ministerial duty. This petition for certiorari against the Ombudsman
reward cannot be given to a person who only claiming there was grave abuse of discretion in
makes sweeping averments about undisclosed excluding the treasurer from the Information.
wealth, rather than specific tax offenses, and who
fails to show that the information which he or she b. Will the writ of mandamus lie to
supplied was the undiscovered pivotal cause for compel the Ombudsman to include the
the revelation of a tax offense, the conviction treasurer in the Information? (2015
and/or punishment of the persons liable, and an BAR)
actual recovery made by the State. Indiscriminate,
expendable information negates a clear legal right A: NO. Mandamus will not lie to compel the
and further impugns the propriety of issuing a writ Ombudsman to include the treasurer in the
of mandamus. A writ of mandamus is issued when Information. In matters involving exercise of
there is a concurrence between a clear legal right judgment and discretion, mandamus may only be
accruing to petitioner and a correlative duty resorted to in order to compel respondent tribunal,
incumbent upon respondents to perform an act, corporation, board, officer or person to take action,
this duty being imposed upon them by law and but it cannot be used to direct the manner or
there is no other plain, speedy and adequate particular way discretion is to be exercised, or to
remedy in the ordinary course of law. (Lihayhay v. compel the retraction or reversal of an action
Treasurer of the Philippines, G.R. No. 192223, July already taken in the exercise of judgment or
23, 2018, as penned by J. Leonen) discretion. (Ampatuan, Jr. v. Secretary De Lima, G.R.
No. 197291, April 3, 2013)
Exhaustion of administrative remedies
Prayer in a petition for mandamus
GR: Mandamus will not issue when administrative
remedies are still available. a. That judgment be rendered commanding the
respondent to do the act required to be done to
XPNs: protect the rights of the petitioner; and
b. That the respondent pays the damages
1. If the party is in estoppel (Vda. de Tan v. sustained by the petitioner by reason of the
Veterans Backpay Commission, G.R. No. L- wrongful acts of the respondent. (Sec. 3, Rule
12944, March 30, 1959); or 65; Riano, 2016)
2. Only questions of law are raised. (Madrigal v.
Lecaroz, G.R. No. L-46218, October 23, 1990) Q: Roldan was charged with illegal possession
of shabu before the RTC. Although bail was
Discretionary duty allowable under his indictment, he could not
afford to post bail, and so he remained in
GR: Mandamus is only applicable to a ministerial detention at the City Jail. For various reasons,
duty. However, mandamus can be used to the the arraignment of Roldan was postponed 19
extent of requiring the performance of a times over a period of 2 years. Twice during
discretionary duty to act but not to require that period, Roldan’s counsel filed motions to
performance of such duty in a particular manner. dismiss, invoking the right of the accused to a
speedy trial. Both motions were denied by the
XPNs: RTC. Can Roldan file a petition for mandamus?
Reason briefly. (2007 BAR)
1. There has been gross abuse of discretion;
2. Manifest injustice; or

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 Civil Procedure
A: YES. Roldan can file a petition for mandamus, A:
invoking the right to a speedy trial. Mandamus is a 1. YES.The OSG can represent Chairman Go
proper recourse for citizens who seek to enforce a before the RTC. The OSG is an independent
public right and to compel the performance of a office. Its hands are not shackled to the cause
public duty, most especially when the public right of its client agency. In the discharge of its tasks,
involved is mandated by the Constitution. Besides, the primordial concern of the OSG is to see to it
it has long been established in this jurisdiction that that the best interest of the government is
the writ of mandamus is available to the accused to upheld.
compel a dismissal of the case. Here, the
arraignment of Roldan was postponed 19 times 2. NO. The COMELEC cannot be compelled by a
over a period of 2 years. Hence, the petition for writ of mandamus to discharge a duty that
mandamus is proper in this case. (Symaco v. Aquino, involves the exercise of judgment and
G.R. No. L-14535, January 30, 1960) discretion, especially where disbursement of
public funds is concerned. (COMELEC v.
Awards of damages in Mandamus Proceedings Quijano-Padilla, G.R. No. 151992, September 18,
2002)
The CA, in resolving a petition for mandamus, is
authorized to award civil damages in the same Mandamus vs. Injunction
petition. (Vital-Gozon v. CA, G.R. No. 101428, August
3, 1992) MANDAMUS INJUNCTION
Remedial; To perform Preventive; To prevent
Q: Can a mayor be compelled by mandamus to positive legal duty. It is an act to maintain
issue a a special civil action. status quo between
business permit? parties. It is an ordinary
civil action.
A: NO. A mayor cannot be compelled by mandamus To set in motion and to To restrain motion or to
to issue a business permit since the exercise of the compel action (active). enforce inaction
same is delegated police power hence, (conservative).
discretionary in nature. Section 444(b)(3)(iv) of
the Local Government Code of 1991, is a Directed against a Directed against a
manifestation of the delegated police power of a tribunal, corporation litigant
municipal corporation. Necessarily, the exercise board, or officer
thereof cannot be deemed ministerial. As to the
question of whether the power is validly exercised, Remedy of Public respondent if no temporary
the matter is within the province of a writ of restraining order or writ of preliminary
certiorari, but certainly, not of mandamus. injunction was issued by the court hearing the
(Rimando v. Naguilian Emission Testing Center, Inc., petition for certiorari, prohibition or
G.R. No. 198860, July 23, 2012) mandamus

Q: Fotokina filed with the RTC a petition for The public respondent shall proceed with the
mandamus to compel the COMELEC to principal case within 10 days from the filing of a
implement a contract it had with the former petition for certiorari with a higher court or
regarding the automation of the elections. The tribunal, absent a temporary restraining order or a
Office of the Solicitor General (OSG), preliminary injunction, or upon its expiration.
representing COMELEC Chairman Go, opposed Failure of the public respondent to proceed with
the petition on the ground that mandamus does the principal case may be a ground for an
not lie to enforce contractual obligations. administrative charge. (Sec. 7, Rule 65, as amended
During the proceedings, the majority by A.M. No. 07-7-12-SC)
Commissioners filed a manifestation that
Chairman Go was not authorized by the INJUNCTIVE RELIEF
COMELEC En Banc to oppose the petition.
When proper
1. May the OSG represent Chairman Go
before the RTC notwithstanding that his The court in which the petition is filed may issue
position is contrary to that of the orders expediting the proceedings, and it may also
majority? grant a TRO or a writ of preliminary injunction for
2. Is a petition for mandamus an the preservation of the rights of the parties
appropriate remedy to enforce pending such proceedings. (Sec. 7, Rule 65) The
contractual obligations? (2006 BAR)

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 REMEDIAL LAW
public respondent shall proceed with the principal 1. Supreme Court- Subject to the doctrine of
case within 10 days from the filing of a petition for hierarchy of courts and only when compelling
certiorari with a higher court or tribunal, absent a reasons exist for not filing the same with the
TRO or a Writ of Preliminary Injunction, or upon its lower courts.
expiration. (AM 07-7-12-SC, December 12, 2007) 2. Court of Appeals only- If the petition involves
an act or an omission of a quasi-judicial
Q: In an action for specific performance in the agency, unless otherwise provided by law or
MTC, defendant Sarah filed a motion to dismiss rules.
the action based on lack of jurisdiction over the 3. Court of Appeals and Sandiganbayan- Whether
subject matter. Sarah’s motion to dismiss was or not in aid of appellate jurisdiction.
denied. Sarah filed a petition for certiorari with 4. Regional Trial Court- If the petition relates to
the RTC. Vince then filed with the MTC a motion an act or an omission of an MTC, corporation,
to declare Sarah in default. The motion was board, officer or person.
opposed by Sarah on the ground that his 5. COMELEC- In election cases involving an act or
petition for certiorari was still pending. Resolve an omission of an MTC or RTC.
the motion to declare the defendant in default.
(2003 BAR) NOTE: If the petition relates to an act or an
omission of a municipal trial court or of a
A: The court can declare Sarah in default because corporation, a board, an officer or a person, it shall
she did not obtain a writ of preliminary injunction be filed with the RTC exercising jurisdiction over
or a temporary restraining order from the RTC the territorial area as defined by the Supreme
prohibiting the judge from proceeding in the case Court. It may also be filed with the Court of Appeals
during the pendency of the petition for certiorari. or with the Sandiganbayan, whether or not the
(Diaz v. Diaz, G.R. No. 135885, April 28, 2000) same is in aid of the courts appellate jurisdiction. If
the petition involves an act or an omission of a
Q: A filed with the MTC of Manila an action for quasi-judicial agency, unless otherwise provided
specific performance against B, a resident of by law or these rules, the petition shall be filed
Quezon City, to compel the latter to execute a with and be cognizable only by the Court of
deed of conveyance covering a parcel of land Appeals. (Sec. 4, Rule 65 as amended by A.M. No. 07-
situated in Quezon City having an assessed 7-12-SC)
value of P19,000.00. B received the summons
and a copy of the Complaint of 02 January 2003. NOTE: By virtue of the amendment introduced by
On 10 January 2003, B filed a Motion to Dismiss A.M. No. 07-7-12-SC to Sec. 4, Rule 65, a petition for
the Complaint on the ground that the subject certiorari, prohibition or mandamus may not be
matter of the suit was incapable of pecuniary filed directly with the SC anymore.
estimation. The court denied the motion. In due
time, B filed with the RTC a Petition for When to file
Certiorari praying that the said Order be set
aside because the MTC has no jurisdiction over The petition shall be filed not later than 60 days
the case. On 13 February 2003, A filed with the from notice of the judgment, order or resolution. In
MTC a Motion to declare B in default. The case a motion for reconsideration or new trial is
motion was opposed by B on the ground that timely filed, whether such motion is required or
his Petition for Certiorari was still pending. not, the petition shall be filed not later than 60
days counted from the notice of the denial of the
b. Resolve the Motion to Declare the motion. (Sec. 4, Rule 65, as amended by A.M. No. 07-
Defendant in Default. (1997, 2003, 7-12-SC)
2012 BAR)
As a rule, a petition for certiorari must be filed
A: The Court could declare B in default because B strictly within 60 days from notice of judgment or
did not obtain a writ of preliminary injunction or a from order denying a motion for reconsideration.
temporary restraining order from the RTC This is in accordance with the amendment
prohibiting the judge from proceeding in the case introduced by A.M. No. 07-7-12-C where no
during the pendency of the petition for certiorari. provision for the filing of a motion for extension to
(Sec. 7 Rule 65; Diaz v. Diaz, G.R. No. 135885, April file a petition for certiorari exists, unlike in the
28, 2000) original section 4 of Rule 65 which allowed the
filing of such motion but only for compelling
WHEN AND WHERE TO FILE PETITION reasons and in no case exceeding 15 days. (The
Namaris Philippines, Inc. v. Court of Appeals, G.R. No.
Where to file 191215, February 3, 2014)

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NOTE: Under Sec. 4, Rule 65 of the Rules of Court case. (Chris Garment Corporation v. Sto. Tomas, G.R.
and as applied in Laguna Metts Corporation, the No. 167426, January 12, 2009)
general rule is that a petition for certiorari must be
filed within 60 days from notice of the judgment, XPNs: A prior motion for reconsideration is not
order or resolution sought to be assailed. Under necessary to entertain a petition for certiorari
exceptional circumstances, however, and subject to where:
the sound discretion of the court, said period may
be extended pursuant to Domdom, Labao, abd Mid- 1. the order is a patent nullity, as where the court
Islands Power cases. The exceptions are: a quo has no jurisdiction;
2. the questions raised in the certiorari
1. To serve substantial justice; proceedings have been duly raised and passed
2. Safeguard strong public interest (Republic upon by the lower court, or are the same as
v. St. Vincent de Paul Colleges, Inc., G.R. No. those raised and passed upon in the lower
192908, August 22, 2012) court;
3. there is an urgent necessity for the resolution
Effects of filing a petition for certiorari, of the question, and any further delay would
prohibition or mandamus to the principal case prejudice the interests of the Government or of
the petitioner;
It does not: 4. the subject matter of the action is perishable;
5. under the circumstances, a motion for
1. Interrupt the course of the principal action; reconsideration would be useless;
2. Affect the running of the reglementary periods 6. the petitioner was deprived of due process and
involved in the proceedings (Fuentes v. there is extreme urgency for relief;
Sandiganbayan, G.R. No. 164664, July 20, 2006); 7. in a criminal case, relief from an order of arrest
3. Stay the execution of judgment, unless a TRO is urgent and the granting of such relief by the
or writ of preliminary injunction has been trial court is improbable;
issued. 8. the proceedings in the lower court are a nullity
for lack of due process;
Acquisition of jurisdiction over the person of 9. the proceedings were ex parte or in which the
the respondent in original actions for petitioner had no opportunity to object; and
certiorari, prohibition and mandamus 10. the issue raised is one purely of law or where
public interest is involved. (Regalado, 2010)
1. If the action is filed with the RTC – Follow the
rules on ordinary civil actions. Jurisdiction is RELIEFS PETITIONER IS ENTITLED TO
acquired by the service of summons to the
respondent or by his voluntary appearance in 1. Annulment;
court. 2. Modification of the judgment, order, or
2. If the action is filed with the CA or the SC – resolution or proceeding subject of the
The court acquires jurisdiction over the petition;
respondents with the service on them of its 3. It may also include such other Incidental reliefs
orders indicating its initial action on the as law and justice may require (Sec. 1, Rule 65);
petition or by voluntary submission to such 4. The court may also award damages in its
jurisdiction. judgment and the execution of the award for
damages or costs shall follow the procedure in
EXCEPTIONS TO FILING OF MOTION FOR Sec. 1 of Rule 39. (Sec. 9, Rule 65)
RECONSIDERATION BEFORE FILING PETITION
ACTIONS/OMISSIONS OF MTC/RTC
Filing of Motion Reconsideration IN ELECTION CASES

GR: Petition for certiorari, mandamus and In election cases involving an act or an omission of
prohibition will not be entertained unless the a municipal or a regional trial court, the petition
public respondent has been given first the shall be filed exclusively with the Commission on
opportunity through a motion for reconsideration Elections, in aid of its appellate jurisdiction. (Sec.4,
to correct the error being imputed to him. Rule 65, as amended by AM No. 07-7-12-SC,
December 12, 2007)
NOTE: It is intended to afford the public
respondent an opportunity to correct any actual or EFFECTS OF FILING OF
fancied error attributed to it by way of re- AN UNMERITORIOUS PETITION
examination of the legal and factual aspects of the

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 REMEDIAL LAW
Effect of a Petition for Mandamus which is jurisdiction in denying James’ motion praying that
patently without merit, prosecuted manifestly Peter be directed to receive the amount tendered.
for delay, or raises questions which are too
unsubstantial to require consideration
QUO WARRANTO
The Court may dismiss the petition if it finds the
same patently without merit or prosecuted
manifestly for delay, or if the questions raised It is a proceeding or writ issued by the court to
therein are too unsubstantial to require determine the right to use an office, position or
consideration. In such event, the court may award franchise and to oust the person holding or
in favor of the respondent treble costs solidarily exercising such office, position or franchise if his
against the petitioner and counsel, in addition to right is unfounded or if a person performed acts
subjecting counsel to administrative sanctions considered as grounds for forfeiture of said
under Rules 139 and 139-B. (City of Davao v. Court exercise of position, office or franchise.
of Appeals, G.R. No. 200538, August 13, 2014)
It literally means “by what authority.”
The Court may impose motu proprio, based on res
ipsa loquitur, other disciplinary sanctions or NOTE: It is commenced by a verified petition
measures on erring lawyers for patently dilatory brought in the name of the Republic of the
and unmeritorious petitions for certiorari. (Sec. 8, Philippines or in the name of the person claiming
Rule 65, as amended by A.M. No. 07-7-12-SC) to be entitled to a public office or position usurped
or unlawfully held or exercised by another. (Sec. 1,
Q: James mortgaged his property to Peter. Rule 66)
James failed to pay his obligation and Peter
filed an action for foreclosure of mortgage. DISTINGUISHED FROM QUO WARRANTOUNDER
After trial, the court issued an order granting THE OMNIBUS ELECTION CODE
Peter's prayer for foreclosure of mortgage and
ordering James to pay Peter the full amount of QUO WARRANTO QUO WARRANTO IN
the mortgage debt not later than 120 days from UNDER RULE 66 ELECTORAL
date of receipt of the order. James received the PROCEEDINGS
order on August 10, 1999. No other proceeding Issue is legality of the Issue is eligibility of the
took place thereafter. On December 20, 1999, occupancy of the office person elected. (Riano,
James tendered the full amount adjudged by by virtue of a legal 2012)
the court to Peter but the latter refused to appointment. (Riano,
accept it on the ground that the amount was 2012)
tendered beyond the 120-day period granted
by the court. James filed a motion in the same Grounds: usurpation, Grounds: ineligibility or
court praying that Peter be directed to receive forfeiture, or illegal disqualification to hold
the amount tendered by him on the ground that association (Sec. 1, Rule the office (Sec. 253,
the order does not comply with the provisions 66) Omnibus Election Code)
of Sec. 2, Rule 68 of the Rules of Court which Presupposes that the Petition must be filed
gives James 120 days from entry of judgment, respondent is already within 10 days from the
and not from date of receipt of the order. The actually holding office proclamation of the
court denied his motion on the ground that the
and action must be candidate. (Riano, 2012)
order had already become final and can no
commenced within 1
longer be amended to conform with Sec. 2, Rule year from cause of
68. Aggrieved, James files a petition for ouster or from the time
certiorari against the court and Peter. Will the the right of petitioner to
petition for certiorari prosper? Explain. (2000
hold office arose.
BAR)
Petitioner is person Petitioner may be any

entitled to office. (Riano, voter even if he is not
A: YES. The court erred in issuing the order. The
2012) entitled to the office.
court should have rendered a judgment which is (Riano, 2012)
appealable. Since no appeal was taken, the
Filed before the a. Filed before the
judgment became final on August 25, 1999 which is
Supreme Court, CA or COMELEC if filed
the date of the entry of judgment. Hence, James had
RTC Manila if filed by against the election of
up to December 24, 1999 within which to pay the
the Solicitor General. a Member of
amount due. The court gravely abused its
Otherwise, RTC with Congress, regional,
discretion amounting to lack or excess of

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 Civil Procedure
jurisdiction over the provincial or city Securities Regulations Code) Quo warranto will only
territorial area where officer; lie against de facto corporations.
respondent or any of b. Filed before the
the respondents resides, appropriate RTC or WHEN INDIVIDUAL MAY COMMENCE AN
CA, or SC. (Sec. 7, Rule MTC, if filed against a ACTION
66) municipal or
barangay official, A person claiming to be entitled to a public office or
respectively. position usurped or unlawfully held or exercised
Should be filed within Should be filed within by another may bring an action therefor in his own
one year after the cause 10 days after name. (Sec. 5, Rule 66)
of such ouster, or the proclamation of results
right of the petitioner to However, not any person may file the petition. The
hold such office or person authorized to file the same is the one who
position arose. (Sec. 11, claims to be entitled to a public office or position
Rule 66) which was usurped or unlawfully held or exercised
Person adjudged Actual or compensatory by another person. (Sec. 6, Rule 66)
entitled to the office damages are
may bring a separate recoverable in quo Such person may maintain action without the
action against the warranto proceedings intervention of the Solicitor General and without
respondent to recover under the Omnibus need for any leave of court. He must show that he
damage. (Sec 11, Rule Election Code. has a clear right to the office allegedly being held
66) by another (Cuevas v. Bacal, 347 SCRA 338).

NOTE: If the dispute is as to the counting of votes NOTE: The Solicitor General or public prosecutor
or on matters connected with the conduct of the may commence the action at the instance of
election, quo warranto is not the proper remedy another person. In this case, leave of court is
but an election protest. (Cesar v. Garrido, G.R. No. necessary. (Sec. 3, Rule 66)
30705, March 25, 1929)
Who may commence (SPI)
WHEN GOVERNMENT COMMENCES AN ACTION
AGAINST INDIVIDUALS AND CORPORATIONS 1. Solicitor General;
2. Public Prosecutor; or
An action for the usurpation of a public office, 3. Individual claiming to be entitled to the office
position or franchise may be commenced by a or position usurped or unlawfully held or
verified petition brought in the name of the exercised by another. (Sec. 5 Rule 66)
Republic of the Philippines against:
NOTE: In order for a petition for quo warranto to
1. A person who usurps, intrudes into, or be successful, the suing private individual must
unlawfully holds or exercises a public office, show a clear right to the contested office. His
position or franchise; failure to establish this right warrants the
2. A public officer who does or suffers an act dismissal of the suit for lack of cause of action; it is
which, by the provision of law, constitutes a not even necessary to pass upon the right of the
ground for the forfeiture of his office; and defendant who, by virtue of his appointment,
3. An association which acts as a corporation continues in the undisturbed possession of his
within the Philippines without being legally office. (General v. Urro, G.R. No. 191560, March 29,
incorporated or without lawful authority so to 2011)
act. (de facto corporation) (Sec. 1, Rule 66)
NOTE: By analogy with provisions of Sec. 5, it has
When directed by the President of the Philippines, been held that a public utility may bring a quo
or when upon complaint or otherwise he or she has warranto action against another public utility
good reason to believe that any case specified in which has usurped the rights of the former granted
the Rules can be established by proof, the Solicitor under franchise. (Cui v. Cui, 60 Phil. 57; Regalado,
general or the public prosecutor must commence 2010)
the action. (Sec. 2, Rule 66)
Classifications of Quo warranto Proceedings
NOTE: Actions of quo warranto against
corporations now fall under the jurisdiction of the 1. Mandatory– brought by the Solicitor General
RTC acting as Special Commercial Courts. (Sec. 5.2, or Public prosecutor when:

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a. Directed by the President; or Manila, as in this case, in the Court of Appeals or in
b. Upon complaint or when he has reason to the Supreme Court. (Sec. 7, Rule 66)
believe that the cases for quo warranto can
be established by proof. (Sec. 2, Rule 66) Contents of a Petition for Quo warranto

2. Discretionary – brought by the Solicitor The petition shall set forth the following:
General or a public prosecutor at the request
and upon the relation of another person, 1. The name of the person who claim to be
provided there must be: entitled thereto;
2. If any, with an averment of his right to the
a. Leave of court; same and that the respondent is unlawfully in
b. At the request and upon the relation of possession thereof; and
another person; and 3. All persons who claim to be entitled to the
c. Indemnity bond. (Sec. 3, Rule 66) public office, position or franchise may be
made parties, and their respective rights to
Court which has jurisdiction such public office, position or franchise
determined, in the same action. (Sec. 6, Rule
1. It can be brought only in the SC, CA, or in RTC 66)
exercising jurisdiction over the territorial area
where the respondent or any of the JUDGMENT IN QUO WARRANTO ACTION
respondents resides;
When the respondent is found guilty of usurping,
NOTE: The petition may be brought in the SB intruding into, or unlawfully holding or exercising
in certain cases but when in aid of its appellate a public office, position or franchise, judgment shall
jurisdiction. (PD 1606, Sec. 4, as amended by be rendered that such respondent be ousted and
R.A No. 8249; Riano, 2009) altogether excluded therefrom, and that the
petitioner or relator, as the case may be, recover
An action for Quo Warranto may be dismissed his costs. Such further judgment may be rendered
at any stage when it becomes apparent that the determining the respective rights in and to the
plaintiff is not entitled to the disputed pubic public office, position or franchise of the parties to
office, position or franchise. Hence, the RTC is the action as justice requires. (Sec. 9, Rule 66)
not compelled to still proceed with the trial
when it is already apparent on the face of the The court may render judgment for costs against
Petition for Quo Warranto that it is insufficient. either the petitioner, relator, respondent, relator,
(Feliciano v. Villasin, G.R. No. 174929, June 27, or respondent, or the person or persons claiming
2008) to be a corporation. The corporation may also
apportion the costs, as justice requires. (Sec. 12,
2. When the Solicitor General commences the Rule 66)
action, it may be brought in a RTC in the City of
Manila, in the CA, or in the SC. (Sec. 7, Rule 66) RIGHTS OF A PERSON ADJUDGED
ENTITLED TO PUBLIC OFFICE
Q: A group of businessmen formed an
association in Cebu City calling itself Cars C. to If judgment be rendered in favor of the person
distribute /sell cars in said city. It did not averred in the complaint to be entitled to the public
incorporate itself under the law nor did it have office, he may, after taking the oath of office and
any government permit or license to conduct executing any official bond required by law:
its business as such. The Solicitor General filed
before a RTC in Manila a verified petition for 1. Take upon himself the execution of the office;
quo warranto questioning and seeking to stop 2. Immediately thereafter demand all the books
the operations of Cars Co. The latter filed a and papers in the respondent’s custody or
motion to dismiss the petition on the ground of control appertaining to the office to which the
improper venue by claiming that its main office judgment relates; and
and operations are in Cebu City and not in 3. Bring an action against the respondent to
Manila. Is the contention of Cars Co. correct? recover damages sustained by such persons by
Why? (2001 BAR) reason of usurpation. (Sec. 10, Rule 66)

A: NO. As expressly provided in the Rules, when NOTE: A quo warranto proceeding is one of the
the Solicitor General commences the action for quo instances where exhaustion of administrative
warranto, it may be brought in a RTC in the City of

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remedies is not required. (Celestial v. Cachopero, If the petitioner is adjudged to be entitled to the
G.R. No. 142595, October 15, 2003). office, he may sue for damages against the alleged
usurper within 1 year from entry of judgment
LIMITATIONS establishing his right to the office in question. (Sec.
11, Rule 66)
Period within which a person ousted from
office must file a petition for quo warranto
EXPROPRIATION
GR: An action for quo warranto must be
commenced within 1 year after the cause of such
ouster, or the right of the petitioner to hold such Power of eminent domain
office or position, arose (Sec. 11, Rule 66). The
failure to institute the same within the It is the right of the State to acquire private
reglementary period constitutes more than a property for public use upon the payment of just
sufficient basis for its dismissal (Alejo v. Marquez, compensation.
G.R. No. L-40575, September 28, 1987), since it is not
proper that the title to a public office be subjected NOTE: The scope of the power of eminent domain
to continued uncertainty. (Villegas v. De la Cruz, as exercised by the Congress is plenary and is as
G.R. No. L-23752, December 31, 1965) broad as the police power. Such power however,
may also be delegated to local political
XPN: subdivisions and public utilities. (Riano, 2012)
a. If the failure to file the action can be attributed
to the acts of a responsible government officer Expropriation
and not of the dismissed employee. (Conchita
Romualdez-Yap v. CSC, et al., G.R. No. 104226, It is the procedure for enforcing the right of
August 12, 1993) eminent domain.
b. When the action is filed by the Republic.
(Republic v. Sereno, G.R. No. 237428, May 11, NOTE: Expropriation is proper only when:
2018)
1. The owner refuses to sell; or
NOTE: The periods within which quo warranto 2. If the latter agrees, agreement as to the
action should be brought are a condition precedent price cannot be reached.
to the existence of a cause of action.
NOTE: It is the actual filing of complaint for
The pendency of administrative remedies does not expropriation which binds the land, and not a mere
operate to suspend the period of one year within notice of the intent to expropriate. However, the
which a petition for quo warranto should be filed. owner of the land may still dispose of said
While it may be desirable that administrative property, despite the filing of the action, as the
remedies be first resorted to, no one is compelled grantee would merely be substituted in his place
or bound to do so, and as said remedies neither are and holds the land subject to the results of the
pre-requisite to nor bar the institution of quo action. (Regalado, 2010)
warranto proceedings, they should not be allowed
to suspend the period of one year. Public interest By reason of expediency, counterclaim, cross-claim
requires that the right to a public office should be or third-party complaint shall be alleged or
determined as speedily as practicable. (Torres v. allowed in the answer or any subsequent pleading.
Quintos, G.R. No. L-3304, April 5, 1951)
Requisites of the Exercise of a Valid
The court may reduce the period provided by these Expropriation (DCP)
Rules for filing pleadings and for all other
proceedings in the action in order to secure the 1. Due process of law;
most expeditious determination of the matters 2. Payment of just compensation; and
involved therein consistent with the rights of the 3. Taking must be for public use.
parties. Such action may be given precedence over
any other civil matter pending in the court. (Sec. 8, Properties that are subject to expropriation
Rule 66)
All properties can be expropriated, except money
Recovery of damages against the usurper of and choses in action.
office allowed

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 REMEDIAL LAW
NOTE: Choses in action– A right to personal things TWO STAGES IN EVERY ACTION FOR
of which the owner has not the possession, but EXPROPRIATION
merely a right of action for their possession.
(Black’s Law, 2004) 1. First stage – the determination of the
authority of the plaintiff to expropriate. This
Scope of expropriation determination includes an inquiry into the
propriety of the expropriation – its necessity
Expropriation is not limited to the acquisition of and the public purpose.
real property with a corresponding transfer of title
or possession. The right-of-way easement resulting NOTE: The first stage will end in the issuance
in a restriction or limitation on property rights of an order of expropriation if the court finds
over the land traversed by transmission lines also for plaintiff or in dismissal of the complaint if it
falls within the ambit of the term "expropriation.” finds otherwise.
(National Power Corporation v. Vda. De Capin, G.R.
No. 175176, October 17, 2008) 2. Second stage – the determination of just
compensation through the court-appointed
Court that has jurisdiction commissioners. (Riano, 2016)

It is filed with RTC because it is an action incapable G.R.: Just Compensation must be reckoned
of pecuniary estimation regardless of the value of from the time of taking or filing of the
the subject property. complaint, whichever came first.

MATTERS TO ALLEGE IN XPN: As a measure of simple justice and
COMPLAINT FOR EXPROPRIATION ordinary fairness to them, therefore, reckoning
just compensation on the value at the time the
The right of eminent domain shall be exercised by owners commenced these inverse
the filing of a verified complaint, which shall: condemnation proceedings when:

1. State with certainty the right and purpose of a. stealth is employed instead of
expropriation; complying with the legal process of
2. Describe the real or personal property sought expropriation. (National Power
to be expropriated; Corporation v. Heirs of Macabangkit
3. Join as defendants all persons owning or Sangkay, 671 Phil. 569, 2011)
claiming to own, or occupying, any part thereof b. there is no intention to pay the owners
or interest therein, showing, so far as just compensation. (National Power
practicable, the separate interest of each Corporation v. Spouses Saludares, 686
defendant; and Phil. 967 2012)
4. If the title to any property sought to be
expropriated appears to be in the Republic of Q: The City of Iloilo (petitioner) represented by
the Philippines, although occupied by private Mayor Treñas filed a complaint for eminent
individuals, or if the title is otherwise obscure domain against Javellana seeking to
or doubtful so that the plaintiff cannot with expropriate two parcels of land. Mayor Treñas
accuracy or certainty specify who are the real filed a motion for issuance of writ of possession
owners, averment to that effect shall be made alleging that it had deposited 10% of the
in the complaint. (Sec. 1, Rule 67) amount of compensation. A writ of possession
was subsequently issued, and petitioner was
Rule 67 outlines the procedure under which able to take physical possession of the
eminent domain may be exercised by the properties. Sixteen (16) years later, Javellana
Government. Yet by no means does it serve at filed an ex parte motion/manifestation, where
present as the solitary guideline through which the he alleged that when he sought to withdraw the
State may expropriate private property. For money, he discovered that no deposit was
example, Section 19 of the Local Government Code made. Thereafter, Javellana filed a complaint
(RA No. 7610) governs as to the exercise by local for recovery of possession, fixing and recovery
government units of the power of eminent domain of rental and damages. The City of Iloilo argues
through an enabling ordinance. There is RA No. that Javellana could no longer bring an action
8974, which covers expropriation proceedings for recovery since the subject property was
intended for national government infrastructure already taken for public use. Javallena further
projects. (Republic of the Philippines v. Gingoyon, filed a motion that before a commission is
G.R. No. 166429, December 19, 2005) created, the trial court should first order the

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condemnation of the property, in the Under R.A. 10752, whenever it is necessary to
accordance with the rules of court. The RTC acquire real property for the right-of-way or
denied this motion. The RTC further issued location for any national government infrastructure
three orders overturning its previous order for project through expropriation, the appropriate
the issuance of a writ of possession. The implementing agency, through the Office of the
petitioner argued that the trial court cannot Solicitor General, the Office of the Government
overturn its previous order issuing the writ of Corporate Counsel, or their deputize government
possession because it was already final. Is the or private legal counsel, shall initiate the
order of expropriation final? expropriation proceedings before the proper court
under the following guidelines:
A: YES. An order of condemnation or dismissal is
final, resolving the question of whether or not the 1. Upon the filing of the complaint, and after due
plaintiff has properly and legally exercised its notice to the defendant, the implementing
power of eminent domain. Once the first order agency shall immediately pay the owner of the
becomes final and no appeal thereto is taken, the property the amount equivalent to the sum of
authority to expropriate and its public use can no 100% of the value of the property based on the
longer be questioned. Here, Javellana did not current relevant zonal valuation of the BIR
appeal from the RTC’s order issuing the writ of issued not more than 3 years prior to the filing
possession. Thus, it has become final, and the of the expropriation complaint, the
petitioner’s right to expropriate the property for a replacement cost at current market, and the
public use is no longer subject to review. (City of value of the improvements and/or structures,
Iloilo v. Hon. Lolita Contreras-Besana, G.R. No. the current market value of crops and trees
168967, February 12, 2010) located within the property;
2. In case the owner of the property cannot be
Q: May Congress enact a law providing that a found, if unknown, or deceased in cases where
5,000 square meter lot, a part of the UST the estate has not been settled, after exerting
compound in Sampaloc Manila, be expropriated due diligence, or there are conflicting claims
for the construction of a park in honor of over the ownership of the property and
former City Mayor Arsenio Lacson? As improvements and structures thereon, the
compensation to UST, the City of Manila shall implementing agency shall deposit the amount
deliver its 5-hectare lot in Sta. Rosa, Laguna equivalent to the sum provided for in the
originally intended as a residential subdivision preceding number;
for the Manila City Hall employees. Explain. 3. In provinces, cities, municipalities, and other
(2006 BAR) areas where there is no land classification, the
city or municipal assessor is hereby mandated,
A: YES, Congress may enact a law expropriating within the period of 60 days from the date of
property provided that it is for public use and with filing of the expropriation case, to come up
just compensation. In this case, the construction of with the required land classification and the
a park is for public use (See: Sena v. Manila corresponding declaration of real property and
Railroad Co, G.R. No. 15915, September 7, 1921; improvement for the area. In provinces, cities,
Reyes v. NHA, G.R. No. 147511, March 24, 2003). The municipalities and other areas where there is
planned compensation, however, is not legally no zonal valuation, the BIR is hereby mandated
tenable as the determination of just compensation within the period of 60 days from the date of
is a judicial function. No statute, decree or the expropriation case, to come up with a zonal
executive order can mandate that the valuation for said area; and
determination of just compensation by the 4. In case the completion of a government
executive or legislative departments can prevail infrastructure project is of utmost urgency and
over the court’s findings (Export Processing Zone importance, and there is no existing valuation
Authority v. Dulay, G.R. No. L-59603, April 29, 1987; of the area concerned, the implementing
Secs. 5 to 8 Rule 67). In addition, compensation agency shall immediately pay the owner of the
must be paid in money. (Esteban v. Onorio, AM No. property its proffered value taking into
00-4-166-RTC, June 29, 2001) consideration the standards prescribed by the
law.
WHEN PLAINTIFF CAN IMMEDIATELY ENTER
INTO POSSESSION OF THE REAL PROPERTY, Upon compliance with the guidelines
IN RELATION TO R.A. 10752 (THE RIGHT-OF- abovementioned, the court shall immediately issue
WAY ACT) to the implementing agency an order to take
possession of the property and start the
implementation of the project. (Sec. 6, RA 10752)

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 REMEDIAL LAW
In any of the cases abovementioned, upon its Requisites in order that plaintiff may be
receipt of the writ of possession issued by the authorized to immediately enter into property
court, the implementing agency may take under Rule 67
possession of the property and start the
implementation of the project. (Sec. 6, RA 10752) Upon the:

NEW SYSTEM OF IMMEDIATE PAYMENT OF 1. Filing of complaint, serving notice to defendant
INITIAL JUST COMPENSATION and after depositing the assessed value of
property for taxation purposes with the
System of deposit in Sec. 2, Rule 67 vs. R.A. authorized government depositary (Sec. 2, Rule
10752 (The Right-Of-Way Act) 67); and
2. Tender, or payment with legal interest from
SEC. 2, RULE 67 R.A. 10752 (THE the taking of possession of the property, of
RIGHT-OF-WAY ACT) compensation fixed by the judgment and
The government is The government is payment of costs by plaintiff (Sec. 10, Rule 67).
required only to make required to make
an initial deposit with immediate payment to NOTE: Once the preliminary deposit has been
an authorized the property owner made, the expropriator is entitled to a writ of
government upon filing of the possession as a matter of right, and the issuance of
depositary to be complaint to be said writ becomes ministerial on the part of the
entitled to a writ of entitled to a writ of trial court. (Biglang-Awa v. Bacalla, G.R. Nos.
possession. possession. 139927-36, November 22, 2000) The defenses by
The initial deposit is The implementing the owner against immediate possession can be
equivalent to the agency shall considered during trial on the merits. (NAPOCOR v.
assessed value of the immediately pay the Jocson, 206 SCRA 520)
property for the owner of the property
purposes of taxation. the amount equivalent Purposes of preliminary deposit
to the sum of 100% of
the value of the 1. It serves as an advanced payment to the owner
property based on the of the property should the court decide in
current relevant zonal favor of the plaintiff; and
valuation of the BIR 2. It shall serve as indemnity against any damage
issued not more than which the owner may have sustained. (Visayan
three (3) years prior to Refining Company v. Camus, 40 Phil. 550)
the filing of the
expropriation NOTE: The preliminary deposit is only necessary if
complaint, the the plaintiff desires entry on the land upon its
replacement cost at institution of the action. (Regalado, 2010)
current market value
of the improvements DEFENSES AND OBJECTIONS
and/or structures, the
current market value 1. If a defendant has any objection or defense to
of crops and trees the taking of his property:
located within the
property. (Sec. 6, RA a. He shall serve his answer. The answer
10752) shall specifically designate or identify the
Applies to Applies to property in which he claims to have an
expropriation by expropriation by interest, state the nature and extent of the
Government for Government for interest claimed;
purposes other than purposes of national b. Thereafter, he shall be entitled to notice of
national infrastructure all proceedings affecting the same;
infrastructure. projects.
2. If there are no objections, he must file and
NOTE: If expropriation is engaged in by the serve a notice of appearance and manifestation
national government for purposes other than to that effect. And thereafter, shall be entitled
national infrastructure projects, the assessed value to notice of all proceedings. (Sec. 3, Rule 67)
standard and the deposit mode prescribed in Rule
67 continues to apply. (Riano, 2016) Effect of failure to file an answer

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 Civil Procedure
The failure to file an answer does not produce all An order of expropriation (or order of
the disastrous consequences of default in ordinary condemnation) will be issued declaring that the
civil actions, because the defendant may still plaintiff has a lawful right to take the property.
present evidence as to just compensation. (Robern
Development Corporation v. Quitain, G.R. No. It is issued when:
135042, September 23, 1999)
1. The objections to and the defenses against
Remedy of defendant if answer omits some the right of the plaintiff to expropriate the
defenses property are overruled; and
2. No party appears to defend as required by
If the answer omits some defenses, the remedy, in this Rule. (Sec. 4, Rule 67)
order to prevent a waiver of those defenses not
alleged, is to seek leave to amend the answer NOTE: After the rendition of such an order, the
within 10 days from the filing thereof. (Sec. 3, Rule plaintiff shall not be permitted to dismiss or
67) discontinue the proceeding except on such
terms as the court deems just and equitable.
Duty of the Court if the defendant waives his
defenses or objections NOTE: After the rendition of the order of
expropriation, the plaintiff shall not be permitted
If a defendant waives all defenses and objections to dismiss or discontinue the proceeding except
not so alleged, the court, in the interest of justice, upon such terms as the court deems just and
may permit amendments to the answer to be made equitable. (Sec. 4, Rule 67)
not later than 10 days from the filing thereof.
Uncertain ownership
However, at the trial of the issue of just
compensation, whether or not a defendant has The trial court may decide conflicting claims of
previously appeared or answered, he may present ownership in the same case. There is no need for
evidence as to the amount of the compensation to an independent action since the person entitled
be paid for his property, and he may share in the thereto will be adjudged in the same proceeding.
distribution of the award. (Sec. 3, Rule 67) However, the court may order any sum(s) awarded
as compensation for the property to be paid to the
Declaration of Default court for the benefit of the person that will be
adjudged as entitled thereto. (Sec. 9, Rule 67)
The defendant cannot be declared in default.
However, failure to file an answer would not bar Appeal
the court from rendering judgment on the right to
expropriate, without prejudice to the defendant’s The order of expropriation may be appealed by the
right to present evidence on just compensation and defendant by record on appeal. This is an instance
to share in the distribution of the award. (Sec. 3, when multiple appeals are allowed because they
Rule 67) have separate and/or several judgments on
different issues, e.g. issue on the right to
Effect of non-payment of Just Compensation expropriate or issue of just compensation.

The non-payment of just compensation does not An appeal does not delay the right of the plaintiff to
entitle the private landowner to recover enter upon the property of the defendant and
possession of the expropriated lots, however, in appropriate the same for public use. (Sec. 11, Rule
cases where the government failed to pay just 67) An appeal from judgment shall not prevent the
compensation within 5 years from the finality of court from determining the just compensation to
the judgment in the expropriation proceedings, the be paid. (Sec. 4, Rule 67)
owners concerned shall have the right to recover
possession of their property. This is in consonance Multiple appeals
with the principle that "the government cannot
keep the property and dishonor the judgment.
(Republic of the Philippines v. Lim, G.R. No. 161656,
June 29, 2005)

ORDER OF EXPROPRIATION

Appeal must be made 30 days from the receipt of

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 REMEDIAL LAW
the order as the proceedings in expropriation 1. The cost of acquisition;
involve multiple appeals. 2. The current value of like properties;
3. Its actual or potential uses; and
Effect of reversal 4. In the particular case of lands, their size, shape,
location, and the tax declarations thereon.
If on appeal the appellate court determines that the (National Power Corporation v. De la Cruz, G.R.
plaintiff has no right of expropriation, judgment No. 156093, February 2, 2007)
shall be rendered ordering the Regional Trial Court
to enforce the restoration to the defendant of the Formula for the determination of just
possession of the property, and to determine the compensation
damages which the defendant sustained and may
recover by reason of the possession taken by the JC = FMV + CD – CB
plaintiff. (Sec. 11, Rule 67) If CB is more than CD, then

ASCERTAINMENT OF JUST COMPENSATION JC = FMV

Just compensation JC – Just compensation
FMV – Fair market value
Just compensation is defined as the full and fair CD – Consequential damages
equivalent of the property sought to be CB – Consequential benefits
expropriated. The measure is not the taker’s gain
but the owner’s loss. The compensation, to be just, NOTE: Sentimental value is not included
must be fair not only to the owner but also to the
taker. Even as undervaluation would deprive the Consequential Benefit
owner of his property without due process, so too
would its overvaluation unduly favor him to the It refers to actual benefits derived by the owner on
prejudice of the public. (National Power the remaining portion of his land which are the
Corporation v. De la Cruz, G.R. No. 156093, February direct and proximate results of the improvements
2, 2007) consequent to the expropriation, and not the
general benefits which he receives in common with
Just compensation means not only the correct community. (Regalado, 2010)
determination of the amount to be paid but also the
payment of the land within a reasonable time from Reckoning point for determining just
its taking (Landbank v. Obias, G.R. 184406, March compensation
14, 2012).
The value of just compensation shall be
How court determines just compensation determined as of the date of the taking of the
property or the filing of the complaint, whichever
The trial court should first ascertain the market came first. (Sec. 4, Rule 67)
value of the property, to which should be added the
consequential damages after deducting therefrom GR: When the taking of the property sought to be
the consequential benefits which may arise from expropriated coincides with the commencement of
the expropriation. If the consequential benefits the expropriation proceedings, or takes place
exceed the consequential damages, these items subsequent to the filing of the complaint for
should be disregarded altogether as the basic value eminent domain, the just compensation should be
of the property should be paid in every case. determined as of the date of the filing of the
complaint. (City of Iloilo v. Hon. Lolita Contreras-
The market value of the property is the price that Besana, G.R. No. 168967, February 12, 2010)
may be agreed upon by parties willing but not
compelled to enter into the contract of sale. Not XPNs:
unlikely, a buyer desperate to acquire a piece of
property would agree to pay more, and a seller in 1. Grave injustice to the property owner - Air
urgent need of funds would agree to accept less, Transportation Office cannot conveniently
than what it is actually worth. invoke the right of eminent domain to take
advantage of the ridiculously low value of the
NOTE: Among the factors to be considered in property at the time of taking that it arbitrarily
arriving at the fair market value of the property chooses to the prejudice of the land owners,
are: (Heirs of Mateo Pidacan & Romana Eigo v. Air

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 Civil Procedure
Transportation Office, G.R. No. 162779, June 15, Effect of non-payment of just compensation
2007)
2. The taking did not have color of legal authority - Non-payment of just compensation does not entitle
To allow NAPOCOR to use the date it the private landowner to recover possession of the
constructed the tunnels as the date of expropriated lots. However, in case where the
valuation would be grossly unfair. First, it did government failed to pay just compensation within
not enter the land under warrant or color of 5 years from the finality of judgment in the
legal authority or with intent to expropriate expropriation proceedings, the owners concerned
the same. It did not bother to notify the owners shall have the right to recover possession of their
and wrongly assumed it had the right to dig property. (Republic v. Lim, G.R. No. 161656, June 29,
those tunnels under their property. Secondly, 2005)
the “improvements” introduced by NAPOCOR,
the tunnels, in no way contributed to an NOTE: If the compensation is not paid when the
increase in the value of the land. The trial court property is taken, but is postponed to a later date,
rightly computed the valuation of the property the interest awarded is actually part of just
as of 1992, when the owners discovered the compensation, which takes into account such
construction of the huge underground tunnels delay. (Benguet Consolidated v. Republic, G.R. No.
beneath their lands and NAPOCOR confirmed 712412, August 15, 1986)
the same and started negotiations for their
purchase but no agreement could be reached. APPOINTMENT OF COMMISSIONERS;
(NAPOCOR v. Ibrahim, G.R. No. 168732, June 29, COMMISSIONER’S REPORT; COURT ACTION
2007) UPON COMMISSIONER’S REPORT
3. The taking of the property was not initially for
expropriation - There was no taking of the Appointment of commissioner
property in 1985 by Public Estates Authority
(PEA) for purposes of expropriation. As shown Upon the rendition of the order of expropriation,
by the records, PEA filed with the RTC its the court shall appoint not more than 3 competent
petition for expropriation on September 22, and disinterested persons as commissioners to
2003. The trial court was correct in ordering ascertain and report to the court the just
the Republic, through PEA, upon the filing of its compensation for the property sought to be taken.
complaint for expropriation, to pay Tan just The order of appointment shall designate the time
compensation on the basis of the BIR zonal and place of the first session of the hearing to be
valuation of the subject property. (Tan v. held by the commissioners and specify the time
Republic, G.R. No. 170740, May 25, 2007) within which their report shall be submitted to the
4. The owner will be given undue increment court. (Sec. 5, Rule 67)
advantages because of the expropriation - The
value of the property in question was greatly NOTE: Objections to the order of appointment
enhanced between the time when the must be filed within 10 days from service of the
extension of the street was laid out and the order and shall be resolved within 30 days after all
date when the condemnation proceedings the commissioners received the copies of the
were filed. The owners of the land have no objections. (Sec. 5, Rule 67)
right to recover damages for this unearned
increment resulting from the construction of Mandatory requirement of appointing
the public improvement for which the land Commissioner
was taken. To permit them to do so would be
to allow them to recover more than the value Appointment of commissioners to ascertain just
of the land at the time when it was taken, compensation for the property sought to be taken
which is the true measure of the damages, or is a mandatory requirement in expropriation cases.
just compensation, and would discourage the Where the principal issue is the determination of
construction of important public just compensation, a hearing before the
improvements. (Provincial Gov’t. of Rizal v. commissioners is indispensable to allow the
Caro de Araullo, G.R. No. L-36096, August 16, parties to present evidence on the issue of just
1933) compensation.

NOTE: Under Sec. 19 of the Local Government While it is true that the findings of commissioners
Code the amount to be paid for the expropriation of may be disregarded and the trial court may
the expropriated property shall be determined substitute its own estimate of the value, the latter
based on the fair market value at the time of the may only do so for valid reasons, that is, where the
taking of the property. (Riano, 2012) commissioners have applied illegal principles to

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the evidence submitted to them, where they have Duties of Commissioners
disregarded a clear preponderance of evidence, or
where the amount allowed is either grossly The commissioners, unless the parties consent to
inadequate or excessive. (National Power the contrary, after due notice to the parties, shall:
Corporation v. De la Cruz, G.R. No. 156093, February
2, 2007) 1. Attend, view and examine the property sought
to be expropriated and its surroundings;
Commissioner’s Report 2. Measure the same, after which either party
may, by himself or counsel, argue the case;
As a rule, the commissioners shall make their 3. Assess the consequential damages to the
report within 60 days from the date they were property not taken; and
notified of their appointment. This period may be 4. Deduct from such consequential damages the
extended in the discretion of the court. consequential benefits to be derived by the
owner from the public use or purpose of the
Upon the filing of such report, the clerk of the court property taken, the operation of its franchise
shall serve copies thereof on all interested parties, by the corporation or the carrying on of the
with notice that they are allowed 10 days within business of the corporation or person taking
which to file objections to the findings of the the property.
report, if they so desire. (Sec. 7, Rule 67; Riano,
2009) RIGHTS OF PLAINTIFF AFTER
JUDGMENT AND PAYMENT
The court may order the commissioners to report
when any particular portion of the real estate shall After payment of just compensation, as determined
have been passed upon by them, and may render in the judgment, the plaintiff shall have the right to:
judgment upon such partial report, and direct the
commissioners to proceed with their work as to 1. Enter upon the property expropriated and to
subsequent portions of the property sought to be appropriate the same for the public use or
expropriated, and may from time to time so deal purpose defined in the judgment; or
with such property. The commissioners shall make 2. To retain possession already previously made
a full and accurate report to the court of all their in accordance with Sec. 2 (Entry of plaintiff
proceedings, and such proceedings shall not be upon depositing value with authorized
effectual until the court shall have accepted their government depositary). (Sec. 10, Rule 67)
report and rendered judgment in accordance with
their recommendations. (Sec. 7, Rule 67) When defendant declines to receive the amount
tendered
Action upon Commissioner’s report
If the defendant and his counsel absent themselves
Upon the expiration of the period of ten (10) days from the court, or decline to receive the amount
referred to in the preceding section, or even before tendered, the same shall be ordered to be
the expiration of such period but after all the deposited in court and such deposit shall have the
interested parties have filed their objections to the same effect as actual payment thereof to the
report or their statement of agreement therewith, defendant or the person ultimately adjudged
the court may, after hearing,: entitled thereto. (Sec. 10, Rule 67)

1. Accept the report and render judgment in NOTE: The payment shall involve the amount fixed
accordance therewith; or in the judgment and shall include legal interest
2. For cause shown, it may recommit the same to from the taking of possession of the property.
the commissioners for further report of facts; (Ibid.)
or
3. Set aside the report and appoint new EFFECT OF ENTRY OF JUDGMENT
commissioners, or
4. Accept the report in part and reject it in part; When real estate is expropriated, a certified copy of
and such judgment shall be recorded in the registry of
5. It may make such order or render such deeds of the place in which the property is situated,
judgment as shall secure to the plaintiff of the and its effect shall be to vest in the plaintiff the title
property essential to the exercise of his right of to the real estate so described for such public use
expropriation, and to the defendant just or purpose. (Sec. 13, Rule 67)
compensation for the property so taken. (Sec.8,
Rule 67)

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There could be a There can be no
deficiency judgment judgment for a
FORECLOSURE OF REAL ESTATE MORTGAGE rendered by the court in deficiency because
the same proceeding. there is no judicial
Recovery of deficiency proceeding although
Real Estate Mortgage (REM) is by mere motion. recovery of deficiency is
allowed and through an
To be a real estate mortage, the contract must be independent action.
constituted on either immovable (real property) or No need for SPA. SPA in favor of
alienable real rights. If constituted on movables, mortgagee is essential.
the contract is a chattel mortgage. (Riano, 2016) Governed by Rule 68. Governed by Act 3135.

Foreclosure of REM NEED FOR SPECIAL POWER OF ATTORNEY

It is the remedy used for the satisfaction of any Extrajudicial foreclosure is the mode to be used if
monetary obligation, which a person owes to there is a special power inserted in the real estate
another, by proceeding against the property used mortgage contract allowing an extrajudicial
to secure said obligation. foreclosure sale. Where there is no such special
power, the foreclosure shall be done judicially
Requisites of a valid foreclosure of REM following Rule 68. (Riano, 2016)

1. A finding of the amount due the plaintiff AUTHORITY TO FORECLOSE EXTRAJUDICIALLY
including interest, cost and other charges
approved by the court; Nature of action
2. Order to defendant to pay said amount within
a period of not less than 90 days nor more than An action to foreclose a real estate mortgage ay be
120 days from entry of judgment; and considered as an action involving interest in real
3. If the defendant defaults, the court should propert, hence a real action. (Riano, 2016)
order the sale at public auction of the
mortgaged property. (Sec. 2, Rule 68) Jurisdiction over foreclosure of REM

KINDS OF FORECLOSURE Under B.P. 129, as amended, where the action is
one “involving title to, or possession of, real
1. Judicial – Governed by Rule 68, Rules of property or any interest therein,” the
Court; determination of jurisdiction shall be made by
2. Extrajudicial – The mortgagee is given a inquiring into the assessed value of the property.
SPA to sell the mortgaged property (Act No. From this point of view, exclusive jurisdiction
3135). would fall either in the MTC or the RTC depending
on the assessed value of the property involved.
Judicial Foreclosure vs. Extrajudicial (Riano, 2016)
Foreclosure
PROCEDURE
JUDICIAL EXTRAJUDICIAL
FORECLOSURE FORECLOSURE PROCEDURE JUDICIAL EXTRAJUDICIAL
Involves the filing of an Does not require the FORECLOSURE FORECLOSURE
independent action. filing of an action. Where to The mortgagee All applications
file should file a for extra-judicial
Decisions are Decisions not petition for foreclosure of
appealable. appealable; judicial mortgage,
immediately executory. foreclosure in whether under
There is only an equity Right of redemption the court which the direction of
of redemption and no exists. has jurisdiction the Sheriff or a
right of redemption over the area notary public
except when the where the pursuant to
mortgagee is a banking property is Act.No. 3135, as
institution. situated. amended, shall
be filed with the
NOTE: As Executive Judge,

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 REMEDIAL LAW
foreclosure of through the 3, Rule 8; building of the
mortgage is a Clerk of Court, Section 15, Rule municipality in
real action, it is who is also the 39) which the
the assessed Ex-Officio Sheriff. property or part
value of the (A.M. No. 99-10- thereof is
property which 05-0, as situated. (Sec.2,
determines the amended, March Act. 3135)
court's 1, 2001) Posting Before the sale Notice shall be
jurisdiction. Requiremen of real property given by posting
(Roldan v. Sps. NOTE: the t on execution, notices of the
Barrios, G.R. No. orders of the notice thereof sale for not less
214803, April 23 executive judge must be given than 20 days in
2018) in such by posting a at least three
proceedings, similar notice public places of
whether they be describing the the municipality
to allow or property and or city where the
disallow the stating where property is
extrajudicial the property is situated, .
foreclosure of to be sold for 20 NOTE: The
the mortgage, days in 3 public failure to post
are not issued in places, notice is not per
the exercise of a preferably in se a ground for
judicial function conspicuous invalidating a
but issued by the areas of the foreclosure sale
RTC Executive municipal or provided that the
Judge in the city hall, post notice thereof is
exercise of his office and duly published in
administrative public market in a newspaper of
function to the municipality general
supervise the or city where circulation.
ministerial duty the sale is to (Development
of the Clerk of take place. Bank of the
Court as Ex Philippines v.
Officio Sheriff in Aguirre, G.R. No.
the conduct of an 144877,
extrajudicial September 7,
foreclosure sale. 2007).
(Ingles v. Estrada,
G.R. 141809, April However,
8, 2013) statutory
Where to The place of Said sale cannot provisions
sell sale may be be made legally governing
agreed upon by outside of the publication of
the parties. In province in notice of
the absence of which the mortgage
such agreement, property sold is foreclosure sales
the sale of real situated; and in must be strictly
property shall case the place complied
be held in the within said with and slight
office of the province in deviations
clerk of court of which the sale is therefrom will
the RTC or MTC to be made is invalidate the
which issued subject to notice and
the writ or stipulation, such render the sale at
which was sale shall be the very least
designated by made in said voidable.
the appellate place or in the (Metrobank v.
court. (Section municipal Nikko Sources

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 Civil Procedure
Corp., G.R. circulation, it is enough that it is published for the
178479, October dissemination of local news and general
23, 2009) information, that it has a bona fide subscription
If the assessed If such property list of paying subscribers, and that it is published
Publication value of the is worth more at regular intervals. The newspaper must be
Requiremen property than Php 400, available to the public in general, and not just to a
t exceeds such notice shall select few chosen by the publisher. Otherwise, the
P50,000, by also be published precise objective of publishing the notice of sale in
publishing a once a week for the newspaper will not be realized. (Metropolitan
copy of the at least three Bank and Trust Company, Inc. v. Eugenio Peñafiel,
notice once a consecutive G.R. No. 173976, February 27, 2009)
week for 2 weeks in a
consecutive newspaper of NEED FOR REPUBLICATION IN CASE OF
weeks in one general POSTPONEMENT
newspaper circulation.
selected or that (Sec.3, Act 3135) Republication as well as reposting of the notice of
having general sale is required if the foreclosure does not proceed
circulation in on the date originally intended. (Metrobank v.
the province or Nikko Sources Corp., G.R. 178479, October 23, 2009)
city. (Section
15(c), Rule 39) In the case of Development Bank of the Philippines v.
Aguirre, the foreclosure sale held more than 2
SUFFICIENCY OF NEWSPAPER PUBLICATION months after the published date of sale was
considered void for lack of republication.
Requisites for a newspaper to be deemed of
general circulation PERONSAL NOTICE TO THE MORTGAGOR WHEN
AND WHEN NOT NEEDED
1. It must be published for the dissemination of
local news and general information; Unless the parties stipulate, personal notice to the
2. It must have a bona fide subscription list of mortgagor in extrajudicial proceedings is not
paying subscribers; necessary because Sec. 3 of Act No. 3135 only
3. It must be published at regular intervals; b. It requires the posting of notice of the sale in three
must be available to the public in general and public places and the publication of that notice in a
not just to a select few chosen by the newspaper of general circulation. (Ramirez v. The
publisher, otherwise, the precise objective of Manila Banking Corp., G.R. No. 198800, December
publication of notice of sale will not be 11, 2013)
realized; and
4. It must not be devoted to the interests or When foreclosure is proper
published for the entertainment of a
particular profession, trade, calling, race or Foreclosure of real estate mortgage presupposes
religion. that the debtor failed to pay his debt despite
demand. The default of the debtor must first be
Q: MBTC granted a loan to spouses Peñafiel, established. If demand was made and duly received
who mortgaged their two parcels of land in by the respondents and the latter still did not pay,
Mandaluyong. The spouses defaulted in the then they were already in default and foreclosure
payment. MBTC instituted an extrajudicial was proper. (Riano, 2012)
foreclosure proceeding under Act No. 3135.
The Notice of Sale was published in Maharlika NOTE: In case of default of the debtor, the creditor
Pilipinas, which has no business permit in has two alternatives: (1) to file an action for
Mandaluyong and its list of subscribers shows collection of a sum of money; or (2) to foreclose the
that there were no subscribers from mortgage, if one has been constituted. An election
Mandaluyong. Did MBTC comply with the of the first bars the recourse to the second (Riano,
publication requirement under Section 3, Act 2012). The mere act of filing of an ordinary action
No. 3135? for collection against the principal debtor, the
creditor is deemed to have elected a remedy, as a
A: NO. Maharlika Pilipinas is not a newspaper of result of which a waiver of the other must
general circulation in Mandaluyong where the necessarily arise (Bank of America, NT & SA vs.
property is located. To be a newspaper of general American Realty Corporation, G.R. No. 133876,
December 29, 1999).

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Contents of a complaint for foreclosure of REM The judgment of the court is considered a final
adjudication of the case and hence, is subject to
The complaint shall contain the following: challenge by the aggrieved party by appeal or by
other post judgment remedies. (Riano, 2012)
1. The date and due execution of the mortgage;
2. The assignments of the mortgage, if any; NOTE: The period given is not merely a procedural
3. The names and residences of the mortgagor requirement, it is a substantive right given to the
and the mortgagee; mortgage debtor as the last opportunity to pay the
4. A description of the mortgaged property; debt and save his mortgaged property from final
5. Date of the note or other documentary disposition at the foreclosure sale.
evidence of the obligation secured by the
mortgage, the amount claimed to be unpaid Procedure of foreclosure proceedings
thereon; and
6. The names and residences of all persons 1. Judgment of Foreclosure (Section 2)
having or claiming an interest in the property 2. Order confirming the foreclosure sale with
subordinate in right to that of the holder of the respect to the validity of the sale (Section 3)
mortgage. (Sec. 1, Rule 68) 3. Deficiency judgment as to the correctness of
the award (Section 6)
Cause of action in a foreclosure suit
These 3 stages culminate to a final judgment. Each
Generally, non-payment of the mortgage loan, but judgment or final order can be subject to an appeal
it may be on other grounds which under the and the period of appeal is 30 days. A record on
contract warrant the foreclosure, such as the appeal shall be submitted.
violation of some of other conditions therein.
(Regalado, 2010)

Defendants that must be joined

1. The persons obligated to pay the mortgage
debt;
2. The persons who own, occupy or control the Remedy of debtor; extrajudicial foreclosure
mortgaged premises;
3. The transferee or grantee of the property; and The debtor may, in the proceedings in which
4. The second mortgagee or junior possession was requested, but not later than thirty
encumbrancer, or any person claiming a right days after the purchaser was given possession,
or interest in the property subordinate to the petition that the sale be set aside and the writ of
mortgage sought to be foreclosed; but if the possession cancelled, specifying the damages
action is by the junior encumbrancer, the first suffered by him, because the mortgage was not
mortgagee may also be joined as defendant. violated or the sale was not made in accordance
(Regalado, 2012) with the provisions hereof, and the court shall take
cognizance of this petition in accordance with the
NOTE: If the action is brought by the junior summary procedure (Sec.8, Act 3135)
encumbrancer, the first mortgagee or the senior
one need not be joined. A property is taken subject SALE OF MORTGAGED PROPERTY; EFFECT
to the first lien. What is now required by law is to
implead the junior mortgagee. If the mortgagor fails to pay the sum due within the
period (90-120 days) stated by the court in its
JUDGMENT ON FORECLOSURE judgment, upon motion of the mortgagee, the court
FOR PAYMENT OR SALE shall order the property to be sold in the manner
and under the provisions of Rule 39 and other
It is the judgment of the court ordering the debtor regulations governing sales of real estate under
to pay within a period not less than 90 days nor execution. (Sec. 3, Rule 68)
more than 120 days from the entry of judgment
after ascertaining the amount due to the plaintiff. Effect of sale of mortgaged property
In default of such payment the property shall be
sold at publication to satisfy judgment. (Sec. 2, Rule The purchaser in a foreclosure sale is entitled to a
68) writ of possession and that, upon an ex parte
motion of the purchaser, it is ministerial upon the
Remedy of debtor if foreclosure is not proper

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 Civil Procedure
court to issue writ of possession in his favor. He is Marquez, which, however, bore an annotation
not required to bring a separate action for of adverse claim in the names of Spouses
possession after the redemption period has Alindog. Spouses Alindog sought for the
expired. annulment of the real estate mortgage and
claimed that they have purchased the property
However, where the parties in possession claim way back. Meanwhile, Anita filed an ex-parte
ownership thereof and, if there is some plausibility petition for the issuance of a writ of possession
in their claim, issue must first be ventilated in a over the property claiming that it is ministerial
proper hearing of the merits thereof. (Regalado, on the part of the court following the
2012) consolidation of their title over the property.
This was granted and the Spouses Alindog were
Notice of sale served notice to vacate. Thereafter, RTC
appreciated the initial evidence adduced by
It is well-settled rule that statutory provisions Sps. Alindog, concluding that they appear to
governing publication of notice of mortgage have a right to be protected. Thus,
foreclosure sales must be strictly complied with notwithstanding the consolidation of Sps.
and that even slight deviations therefrom will Marquez’s title over the subject property, the
invalidate the notice. This is to inform the public of RTC granted Sps. Alindog’s prayer for
the nature and condition of the property to be sold, injunctive relief, holding that any further
and of the time, place and terms of the sale. (Riano, dispossession on their part would cause them
2012) irreparable injury. This was affirmed by the CA.
Is the grant of injuctive relief correct?
NOTE: The mortgagor is entitled to a notice of
hearing of the confirmation of the sale; otherwise, A: NO. It is an established rule that the purchaser
the order is void. Due process requires that said in an extra-judicial foreclosure sale is entitled to
notice be given so that the mortgagor can resist the the possession of the property and can demand
motion and be informed that his right to redeem is that he be placed in possession of the same either
cut-off. (Tiglao v. Botones, G.R. No. L-3619, October during (with bond) or after the expiration (without
29, 1951) The order of confirmation is appealable. bond) of the redemption period therefor. The
issuance of a writ of possession to a purchaser in a
Effect of order of confirmation public auction is a ministerial act. That said, the
RTC therefore gravely abused its discretion when it
It shall operate to divest the rights in the property issued the injunctive writ which enjoined Sps.
of all the parties to the action and to vest their Marquez from taking possession of the subject
rights in the purchaser, subject to such rights of property. To be sure, grave abuse of discretion
redemption as may be allowed by law. (Sec. 3, Rule arises when a lower court or tribunal patently
68) violates the Constitution, the law or existing
jurisprudence. Here, while the RTC had initially
It is said that title vests in the purchaser upon a issued a writ of possession in favor of Sps.
valid confirmation of the sale and retroacts to the Marquez, it defied existing jurisprudence when it
date of the sale. (Binalgan Estate v. Gatuslao, 74 Phil effectively rescinded the said writ by subsequently
128; Riano, 2009) granting Sps. Alindog's prayer for injunctive relief.
The RTC's finding anent the initial evidence
Remedy if the mortgagor refuses to vacate adduced by Sps. Alindog constitutes improper
basis to justify the issuance of the writ of
The purchaser may secure a writ of possession, preliminary injunction in their favor since, in the
upon motion, from the court which ordered the first place, it had no authority to exercise any
foreclosure unless a third party is actually holding discretion in this respect. (Spouses Marquez v.
the same adversely to the judgment obligor. (Sec. 3, Spouses Alindog, G.R. No. 184045, January 22, 2014)
Rule 68)
DISPOSITION OF PROCEEDS OF SALE
Q: Anita Marquez extended a loan to a certain
Benjamin Gutierrez which was secured by a 1. The proceeds of the sale of the mortgaged
real estate mortage over a parcel of land. Since property shall, after deducting the costs of the
Gutierrez defaulted in payment, Anita sought sale, be paid to the person foreclosing the
the extra-judicial foreclosure of the subject mortgage;
property. Upon Gutierrez’s failure to redeem 2. When there is any balance or residue after
the property within the prescribed period, the paying off the mortgage debt due, the same
title was consolidated in the name of Spouses

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 REMEDIAL LAW
shall be paid to junior encumbrances in the is no deficiency judgment because the extrajudicial
order of their priority. foreclosure is not a judicial procedure. However,
3. If there be any further balance after paying the mortgagee can recover by action any deficiency
them or if there be no junior encumbrances, in the mortgage account which was not realized in
the same shall be paid to the mortgagor or any the foreclosure sale. This will not violate the res
person entitled thereto. (Sec. 4, Rule 68) judicata rule because the petition for extrajudicial
foreclosure is not an action in court.
DEFICIENCY JUDGMENT
INSTANCES WHEN COURT CANNOT RENDER
It is the judgment rendered by the court holding DEFICIENCY JUDGMENT
the defendant liable for any unpaid balance due to
the mortgagee if the proceeds from the foreclosure 1. Case is covered by the Recto Law (Art. 1484,
sale do not satisfy the entire debt. NCC);
2. Mortgagor is a non-resident and who at the
Recovery of deficiency time of the filing of the action for foreclosure
and during the pendency of the proceedings
If there is a balance due to the plaintiff after was outside the Philippines, unless there is
applying the proceeds of the sale, the court, upon attachment;
motion, shall render judgment against the 3. Mortgagor dies, the mortgagee may file his
defendant for any balance for which, by the record claim with the probate court under Sec. 7, Rule
of the case, he may be personally liable to the 86; and
plaintiff. Execution may issue immediately if the 4. Mortgagee is a third person but not solidarily
balance is all due at the time of the rendition of the liable with the debtor.
judgment. If not due, the plaintiff shall be entitled
to execution at such time as the balance remaining Q: Arlene borrowed P1 million from GAP Bank
becomes due under the terms of the original (GAP) secured by the titled land of her friend
contract, which time shall be stated in the Gretchen who, however, did not assume
judgment. (Sec. 6, Rule 68; Riano, 2009) personal liability for the loan. Arlene defaulted
and GAP filed an action for judicial foreclosure
NOTE: No independent action need be filed to of the real estate mortgage impleading Arlene
recover the deficiency from the defendant. The and Gretchen as defendants. The court
judgement shall be rendered upon motion of the rendered judgment directing Arlene to pay the
mortgagee in the same action. The deficiency outstanding account of P1.5 million (principal
judgement can be the subject of appeal. plus interest) to GAP. No appeal was taken by
Arlene. Arlene failed to pay the judgment debt
Liability of a 3rd party mortgagor in case of within the period specified in the decision. At
deficiency judgment the foreclosure sale, the land was sold to GAP
for P1.2 million. The sale was confirmed by the
If such third person did not assume personal court, and the confirmation of the sale was
liability for the payment of the debt, the extent of registered with the Registy of Deeds on January
recovery in the judgment of foreclosure shall be 5, 2002.
limited to the purchase price at the foreclosure sale
and no deficiency judgment can be recovered On January 10, 2003, GAP filed an ex-parte
against said person. (Phil. Trust Co. v. Tan Suisa, 52 motion with the court for the issuance of a writ
Phil 852) of possession to oust Gretchen from the land. It
also filed a deficiency claim for P800,000
Deficiency judgement, immediately executory against Arlene and Gretchen. The deficiency
claim was opposed by Arlene and Gretchen.
The deficiency judgment is immediately executory
if the balance is all due. If a third person merely 1. Resolve the motion for the issuance of a
executed a mortgage and did not personally writ of possession.
assume the personal liability of the debt, the third 2. Resolve the deficiency claim of the
party liability is only up to the extent of the bank. (2003 BAR)
mortgage. There can be no sufficient judgment
against the third party. A:
1. In judicial foreclosure by banks such as GAP,
Extrajudicial foreclosure; not res judicata the mortgagor or debtor whose real property
has been sold on foreclosure has the right to
In extrajudicial foreclosures under Act 3135, there redeem the property within 1 year after the

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sale (or registration of the sale). However, therefore, entitled to the possession of the
under Sec. 47 of the General Banking Law of property and can demand it at any time following
2000, the purchaser at the auction sale has the the consolidation of ownership in his name and the
right to obtain a writ of possession after the issuane to him of a new transfer certificate of title.
finality of the order confirming sale. The In such a case, the bond required in Section 7 of Act
motion for writ of possession, however, cannot No. 3135 is no longer necessary. Possession of the
be filed ex parte. There must be a notice of land then becomes an absolute right of the
hearing. purchases as confirmed owner. Upon proper
2. The deficiency claim of the bank may be application and proof of title, the issuance of the
enforced against the mortgage debtor Arlene, writ of possession becomes a ministerial duty of
but it cannot be enforced against Gretchen, the the court. (LZK Holdings and Development
owner of the mortgaged property, who did not Corporation v. Planters Development Bank, G.R. No.
assume personal liability of the loan. 167998, April 27, 2007; Sps. Marquez v. Sps. Alindog,
G.R. No. 184045, January 22, 2014; Sps. Gatuslao v.
Q: Is the buyer in the auction sale arising from Leo Ray Yanson, G.R. No. 191540, January 21, 2015)
an extra-judicial foreclosure entitled to a writ
of possession even before the expiration of the Q: Suppose that after the title to the lot has
redemption period? If so, what is the action to been consolidated in the name of the acution
be taken? buyer, said buyer sold the lot to a third party
without first getting a writ of possession. Can
A: YES. The buyer in the auction sale is entitled to a the transferee exercise the right of the auction
writ of possession even before the expiration of the buyer and claim that it is a ministerial duty of
redemption period upon the filing of the ex parte the court to issue a writ of possession in his
petition for issuance of a writ of possession and favour? Briefly explain. (2016 BAR)
posting of the appropriate bond. Under section 7 of
Act No. 3135, as amended, the writ of possession A: YES. The transferee can exercise the right of the
may be issued to the purchaser in a foreclosure auction buyer. A transferee or successor-in-interest
sale either within the one-year redemption period of the auction buyer by virtue of the contract of
upon the filing of a bond, or after the lapse of the sale between them, is considered to have stepped
redemption period, without need of a bond. (LZK into the shoes of the auction buyer. As such, the
Holdings and Development Corporation v. Planters transferee is necessarily entitled to avail of the
Development Bank, G.R. No. 167998, April 27, 2007) provisions of Sec. 7 of Act 3135, as amended, as if
he is the auction buyer. (Sps. Gatuslao v. Yanson,
Stated otherwise, Section 7 of Act No. 3135, as ibid.)
amended, also refers to a situation wherein the
purchaser seeks possession of the foreclosed When the lot purchased at a foreclosure sale is in
property during the 12-month period for turn sold or transferred, the right to the possession
redemption. Hence, upon the purchaser’s filing of thereof, along with all other rights of ownership,
the ex parte petition and posting of the appropriate transfers to its new owner. (Sps. Gallent v.
bond, the RTC shall, as a matter of course, order the Velasquez, G.R. No. 203949, Apr. 6, 2016) Ergo, it is a
issuance of the writ of possession in favour of the ministerial duty of the court to issue a writ of
purchaser. (Spouses Nicasio C. Marquez and Anita J. possession in favour of the transferee of the
Marquez v. Spouses Carlito Alindog and Carmen auction buyer.
Alindog, G.R. No. 184045, January 22, 2014; Spouses
Jose Gatuslao and Ermila Gatuslao v. Leo Ray REGISTRATION
Yanson, G.R. No. 191540, January 21, 2015)
The buyer acquires title upon finality of the
Q: After the period of redemption has lapsed confirmation sale. The certificate of sale cannot be
and the title to the lot is consolidated in the registered without the final order confirming the
name of the auction buyer, is he entitled to the sale.
writ of possession as a matter of right? If so,
what is the action to be take? Existence and absence of right of redemption

A: YES. The auction buyer is entitled to a writ of 1. When no right of redemption exists: the
possession as a matter of right. It is settled that the certificate of title in the name of the mortgagor
buyer in a foreclosure sale becomes the absolute shall be cancelled, and a new one issued in the
owner of the property purchased if it is not name of the purchaser.
redeemed within a period of one year after the 2. When right of redemption exists: the
registration of the certificate of sale. He is, certificate of title in the name of the mortgagor

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shall not be cancelled, but the certificate of sale 2. Right of redemption – Right of the mortgagor
and the order confirming the sale shall be to redeem the mortgaged property within one
registered and a brief memorandum thereof year from the date of registration of the
made by the register of deeds upon the certificate of sale. It applies in case of
certificate of title. extrajudicial foreclosure.

Effects of redemption of property Where applicable: Extrajudicial foreclosure

1. When property is redeemed: the deed of Period to exercise: within 1 year from the
redemption shall be registered with the date of registration of the certificate of sale
registry of deeds, and a brief memorandum (Rules of Court Sec. 6, Act No. 3135; Sec. 28,
thereof shall be made by the registrar of deeds Rule 39). The right of redemption, as long as
on said certificate of title. within the period prescribed, may be
2. When the property is not redeemed, the final exercised regardless of whether or not the
deed of sale executed by the sheriff in favor of mortgagee has subsequently conveyed the
the purchaser at the foreclosure sale shall be property to some other party (Sta. Ignacia
registered with the registry of deeds; Rural Bank v. CA, G.R. No. 97812, March 1,
whereupon the certificate of title in the name 1994).
of the mortgagor shall be cancelled and a new
one issued in the name of the purchaser. NOTE: Notwithstanding Act No 3135,
juridical persons whose property is being sold
REDEMPTION pursuant to an extrajudicial foreclosure, shall
have the right to redeem the property in
Redemption is a transaction by which the accordance with Section 47 of the General
mortgagor reacquires or buys back the property Banking Act until, but not after, the
which may have passed under the mortgage or registration of the certificate of sale with the
divests the property of the lien which the mortgage applicable Register of Deeds which in no case
may have created. shall be more than 3 months after foreclosure,
whichever is earlier. Owners of property that
Kinds of redemption has been sold in a foreclosure sale prior to the
effectivity of this General Banking Act shall
1. Equity of redemption – Right of mortgagor to retain their redemption rights until their
redeem the mortgaged property after his expiration. (RA 8791, Sec. 47).
default in the performance of the conditions of
the mortgage but before the sale of the EQUITY OF RIGHT OF
mortgaged property or confirmation of sale. REDEMPTION REDEMPTION
The mortgagor pays the secured debt within Right of the defendant Right of the debtor, his
the period specified. mortgagor to extinguish successor in interest or
the mortgage and retain any judicial creditor or
Where applicable: Judicial foreclosure of real ownership of the judgment creditor of
estate mortgage; and Chattel mortgage property by paying the said debtor or any
foreclosure debt within a period of person having a lien on
not less than 90 nor the property
XPN: There is no right of redemption from a more than 120 days subsequent to the
judicial foreclosure sale after the confirmation from the entry of mortgage or deed of
of the sale, except those granted by banks and judgment or even after trust under which the
financial institution as provided by the General the foreclosure sale but property is sold to
Banking Act (GSIS v. CFI of Iloilo, G.R. No. 45322, prior to confirmation. redeem the property
July 5, 1989). within 1 year from the
registration of the
If the mortgagee is a bank, the mortgagor may Sheriff’s certificate of
exercise a right of redemption and this rule foreclosure sale.
applies even if the foreclosure is judicial in Governed by Rule 68. Governed by Secs. 29-
accordance with Rule 68 of the Rules of Court. 31, Rule 39.

Period to exercise: within 90-120 days from Who may redeem
the date of the service of the order of
foreclosure or even thereafter but before the
order of confirmation of the sale.

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1. Mortgagor or one in privity of title with Period of redemption
the mortgagor;
2. Successors-in-interest under Sec. 29, Rule 1. Extrajudicial foreclosure
39, Rules of Court.
a. Natural Person- one (1) year from
Amount of redemption price registration of the certificate of sale with
the Registry of Deeds.
1. When mortgagee is not a bank
NOTE: The statutory period of redemption
a. Purchase price of the property; is only directory and can be extended by
b. 1% interest per month on the agreement of the parties provided:
purchase price from the date of
registration of the certificate up to i. The agreement to extend is voluntary;
the time of redemption; and
c. Necessary expenses incurred by the ii. The debtor commits to pay the
purchase for the improvements redemption price on a fixed date.
made by him to preserve the (Gojudo v. Traders Royal Bank, G.R. No.
property during the period of 151098, March 21, 2006)
redemption; and,
d. Taxes paid and amount of b. Juridical Person – same rule as natural
purchaser’s prior lien, if any, with person.
the same rate of interest computed c. Juridical Person (mortgagor) and Bank
from the date of registration of sale, (mortgagee) – three (3) months after
up to the time of redemption. foreclosure or before registration of
certificate of foreclosure whichever is
2. When mortgagee is a bank (General Banking earlier. (RA 8791, Sec. 47)
Law, 2000):
NOTE: By an amendment by the General
a. Amount fixed by the court or amount Banking Law of 2000, juridical mortgagors
due under the mortgage deed; like partnerships and corporations are
b. Interest; barred from the right of redemption of
c. Cost and expenses. mortgaged property sold pursuant to an
extrajudicial foreclosure, after the
Requisites for valid right of redemption registration of the certificate of foreclosure
with the applicable Register of Deeds.
1. Must be made within twelve (12) months from
the time of the registration of the sale in the For purposes of reckoning the one-year
Office of the Registry of Property; redemption period in case of individual
2. Payment of the purchase price of the property mortgagors, or the three-month reckoning
plus 1% interest per month together with the period for juridical persons/mortgagors
taxes thereon, if any, paid by the purchaser the same shall be reckoned from the date
with the same rate of interest computed from of confirmation of the auction sale which is
the date of registration of the sale; the date when the certificate of title is
3. Written notice of the redemption must be issued (BIR RMC No. 15-2008, August 15,
served on the officer who made the sale and a 2008).
duplicate filed with the proper Register of
Deeds (Rosales v. Yboa, G.R. No. L-42282, 2. Judicial foreclosure – within the period of 90-
February 28, 1983); and 120 days from the date of the service of the
4. Tender of payment within the prescribed order of foreclosure or even thereafter but
period to make the redemption for future before the order of the confirmation of the sale
enforcement (Sec. 26, Act No. 3135; Sec. 8, Rule (Rules of Court, Secs. 2 &3, Rule 28)
39, Rules of Court).
NOTE: Allowing redemption after the lapse of
NOTE: The filing of a court action to enforce the statutory period, when the buyer at the
redemption, being equivalent to a formal offer to foreclosure sale does not object but even
redeem, would have the effect of “freezing” the consents to the redemption, will uphold the
expiration of the one-year period (Heirs of policy of the law which is to aid rather than
Quisumbing v. PNB, G.R. No. 178242, January 20, defeat the right of redemption (Ramirez v. CA,
2009). G.R. No. 98147, March 5, 1993)

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 REMEDIAL LAW
Period of redemption is not a prescriptive ownership thereof, and there may be possibility of
period said claim, the issue of ownership must be
ventilated in a proper case in the merits (Spouses
The period of redemption is not a prescriptive Kho v. VA, GR No. L-83498, October 22, 1991).
period but a condition precedent provided by law
to restrict the right of the person exercising Enforcement against third persons
redemption.
If the purchaser is a third party who acquired the
If a person exercising the right of redemption has property after the redemption period, a hearing
offered to redeem the property within the period must be conducted to determine whether
fixed, he is considered to have complied with the possession over the subject property is still with
condition precedent prescribed by law and may the mortgagor or is already in the possession of a
thereafter bring an action to enforce redemption. third party holding the same adversely to the
If, on the other hand, the period is allowed to lapse defaulting debtor or mortgagor. If the property is
before the right of redemption is exercised, then in the possession of the mortgagor, a writ of
the action to enforce redemption will not prosper, possession could thus be issued. Otherwise, the
even if the action is brought within the ordinary remedy of a writ of possession is no longer
prescriptive period. available to such purchaser, but he can wrest
possession over the property through an ordinary
Effect of Failure to Redeem action of ejectment. (Okabe v. Saturnino, GR No.
196040, August 26, 2014).
Act No. 3135 provides that if the mortgagor or
successors-in-interest fail to redeem within the Pendency of action for annulment of sale
redemption period, the title over the property
consolidates in the purchaser. The consolidation Any question regarding the validity of the
confirms the purchaser as the owner entitled to the mortgage or its foreclosure cannot be a legal
possession of the property. The mortgagor, by ground for refusing the issuance of a writ of
failing to redeem loses all interest in the property. execution. The right of the purchaser to have
(United Coconut Planters Bank v. Lumbo, GR. No. possession of the subject property would not be
162757, December 11, 2013) defeated notwithstanding the pendency of a civil
case seeking the annulment of the mortgage or of
WRIT OF POSSESSION; POSSESSIO BY the extrajudicial foreclosure. (De Vera v. Agloro,
PURCHASER OF FORECLOSED PROPERTY G.R. No. 155673, January 14, 2005)

GR: Upon the finality of the order of confirmation When writ of possession not available:
of sale or upon the expiration of the period of
redemption allowed by law, the purchaser at the 1. Where mortgaged property under lease
auction sale or the last redemptioner, if any, shall previously registered in the Registry of
be entitled to the possession of the property Property or despite non-registration, the
mortgagee has prior knowledge of the
XPN: A third party is actually holding the same existence and duration of the lease (Ibasco v.
adversely to the judgment creditor. If so, the writ of Caguioa, G.R. No. L62619, August 19, 1986);
possession will not issue as a matter of course. 2. Where the mortgagor refuses to surrender
property sold. The remedy is to file an
Ministerial duty of the court ordinary action for the recovery of possession
in order that the mortgagor may be given
The purchaser in a foreclosure sale is entitled to a opportunity to be heard; and
writ of possession upon the finality of the order of 3. When third party is in actual possession
confirmation or expiration of the period of adverse to the judgment debtor (Rules of Court,
redemption. That upon an ex parte motion of the Sec. 36, Rule 39; Act No. 3135, Sec. 6)
purchaser, it is the ministerial duty of the court to
issue the writ of possession unless a person is Possession in Extrajudicial Foreclosure
occupying the property adverse to the interest of
the judgment debtor. The purchaser may petition the Court of First
Instance of the province or place where the
Therefore, the purchaser need not file a separate property or any part thereof is situated, to give him
action for possession to acquire possession of the possession thereof during the redemption period,
property after the redemption period has expired. furnishing bond in an amount equivalent to the use
However, where the parties in possession claim of the property for a period of twelve months, to

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 Civil Procedure
indemnify the debtor in case it be shown that the the assessed value of the property (Sec. 19(2), BP
sale was made without violating the mortgage or 129, as amended by RA 7691). Hence an action for
without complying with the requirements of Act partition may be filed in the MTC, if the assessed
3135. (Sec.7, Act. 3135) value is not more than P20,000 (outside Metro
Manila) or P50,000 (in Metro Manila). If the subject
ANNULMENT OF SALE matter is personal property, an action should be
filed in the MTC if the value should not be more
Petition for Annulment of Foreclosure than P300,000 (outside Metro Manila) or P400,000
Proceedings (in Metro Manila). (Heirs of Valeriano Concha, Sr. v.
Lumocso, G.R. No. 158121, December 12, 2007)
This petition contests the presumed right of
ownership of the buyer in a foreclosure sale and Requisites of a valid partition
puts in issue such presumed right of ownership
while an ex parte petition for issuance of a writ of 1. Right to compel the partition;
possession is a non-litigious proceeding. 2. Complaint must state the nature and
extent of plaintiff's title and a description
Filing of a petition for nullification of foreclosure of the real estate of which partition is
proceedings with motion for consolidation is not demanded; and
allowed as it will render nugatory the presumed 3. All other persons interested in the
right of ownership, as well as the right of property must be joined as defendants.
possession, of a buyer in a foreclosure sale. (Sec. 1, Rule 69)

WHO MAY FILE COMPLAINT;
PARTITION WHO SHOULD BE JOINED AS DEFENDANTS

Who may file
It is a process of dividing and assigning property
owned in common among the various co-owners The action shall be brought by the person who has
thereof in proportion to their respective interests a right to compel the partition of real estate (Sec. 1,
in said property. Rule 69) or of an estate composed of personal
property, or both real and personal property. (Sec.
NOTE: It is commenced by a complaint. (Sec. 1, Rule 13, Rule 69)
69)
The plaintiff is a person who is supposed to be a co-
The determination as to the existence of co- owner of the property or estate sought to be
ownership is necessary in the resolution of an partitioned. The defendants are all the co-owners
action for partition. (Lacbayan v. Samoy, G.R. No. who are indispensable parties (Sepuveda v. Pelaez,
165427, March 21, 2011) An action for partition G.R. No. 152195, January 31, 2005; Riano, 2012).
will not lie if the claimant has no rightful interest in
the property. (Co Guik Lun v. Co, August 3, 2011) NOTE: All the co-owners are indispensable parties.
As such, an action for partition will not lie without
Nature of Partition the joinder of the said parties. (Sepuveda v. Pelaez,
G.R. No. 152195, January 31, 2005)
Partition and accounting under Rule 69 is in the
nature of an action quasi in rem. Such an action is Non-inclusion of a co-owner in an action for
essentially for the purpose of affecting the partition
defendant’s interest in a specific property and not
to render judgment against him. 1. Before judgment – Not a ground for a
motion to dismiss. The remedy is to file a
Kinds of Partition motion to include the party.
2. After judgment – Makes the judgment
1. Judicial partition; AND therein void because co-owners are
2. Extrajudicial partition indispensable parties.

Jurisdiction over partition NOTE: Creditors or assignees of co-owners may
intervene and object to a partition affected without
Since the action affects interest in real property, their concurrence. But they cannot impugn a
jurisdiction shall be determined by inquiring into partition already executed unless there has been
fraud or in case it was made notwithstanding a

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 REMEDIAL LAW
formal opposition presented to prevent it. (Sec. 12, the parties, it may and should order the
Rule 69) partition of the properties in the same
action. (Vda. de Daffon v. Court of Appeals,
1. Subject Matter is Real Property: an G.R. No. 129017, August 20, 2002)
action for partition should be filed in the
MTC or RTC of the province where the 2. Second stage/phase – commences when it
property or part thereof is situated. appears that the parties are unable to
agree upon the partition directed by the
NOTE: If several distinct parcels of land are court. (Riano, 2012)
situated in different provinces, venue may
be laid in the MTC or RTC of any of said Multiple Appeals
provinces.
The judgment declaring the existence of a co-
2. Subject Matter is Personal Property: in ownership may be appealed. This is one of the
the place where the plaintiff or the instances in which the Rules allow Multiple
defendant resides, at the election of the Appeals. As such, the record on appeal is required
plaintiff. to be submitted. The period to appeal is 30 days.

MATTERS TO ALLEGE IN ORDER OF PARTITION
THE COMPLAINT FOR PARTITION AND PARTITION BY AGREEMENT

1. The nature and extent of his title; When court can issue the order of partition
2. An adequate description of the real estate
of which partition is demanded; During the trial, the court shall determine whether
3. Shall join as defendants all other persons or not the plaintiff is truly a co-owner of the
interested in the property (Sec. 1, Rule 69); property, that there is indeed a co-ownership
and among the parties, and that a partition is not
4. Demand for the accounting of the rents, legally proscribed thus may be allowed. If the court
profits and other income from the so finds that the facts are such that a partition
property which he may be entitled to. would be in order, and that the plaintiff has a right
to demand partition, the court will issue an order of
NOTE: When the allegations of the complaint allege partition.
that the plaintiff asserts exclusive ownership of the
party sought to be partitioned, the nature of the Modes of partition
action is not one for partition. It is an action for
recovery of property. (De la Cruz v. Court of 1. By agreement of the parties – where they
Appeals, 412 SCRA 282; Riano, 2012) make the partition among themselves by
proper instruments of conveyance.
Issues to be resolved in an action for partition
NOTE: The court shall confirm the
1. Whether the plaintiff is indeed a co-owner partition so agreed upon by all the parties,
of the property sought to be partitioned. and such partition, together with the order
2. How the property is to be divided between of the court confirming the same, shall be
the plaintiff and defendant or what portion recorded in the registry of deeds of the
should go to each co-owners. place in which the property is situated.
(Sec. 2, Rule 69)
TWO STAGES IN EVERY ACTION FOR
PARTITION 2. By judicial proceedings under Rule 69
(order of partition) – if the co-owners are
1. First stage/phase – determination of unable to agree upon the partition. (Art.
whether or not a co-ownership in fact 494 NCC; Figuracion-Gerilla v. Vda. De
exists and a partition is proper Figuracion, G.R. No. 154322, August 22,
2006)
NOTE: An action for partition is at once an
action for declaration of co-ownership and NOTE: Nothing in this Rule shall be construed to
for segregation and conveyance of a restrict or prevent persons holding real estate
determinate portion of the properties jointly or in common from making an amicable
involved. If the trial court should find after partition thereof by agreement and suitable
trial the existence of coownership among instruments of conveyance without recourse to an

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 Civil Procedure
action. (Sec. 12, Rule 69) which to file objections to the findings of the
report. (Sec. 6, Rule 69) It is not binding until the
If the co-owners cannot agree on the partition of count has accepted it and rendered judgment
the property, the only recourse is the filing of an thereon.
action for partition. (Riano, 2012)
Court not bound by the report of the
PARTITION BY COMMISSIONERS; commissioner
APPOINTMENT OF COMMISSIONERS,
COMMISSIONER’S REPORT; The court may, upon hearing, accept the report and
COURT ACTION UPON COMMISSIONER’S render judgment in accordance with the same;
REPORT recommit the same to the commissioners for
further report of the facts; accept or reject the
Appointment of Commissioners report in part; or render judgment that shall
effectuate a fair and just partition of the real estate.
If co-owners are unable to agree upon the partition (Sec. 7, Rule 69)
of the property, the next stage in the action is the
appointment of commissioners. (Riano, 2012) NOTE: The rule mandates that a hearing must be
conducted before a rendition of a judgment.
The court shall appoint not more than 3
commissioners of competent and disinterested Partition by agreement vs. Partition when
persons to make or effect the partition. They shall parties fail to reach an agreement
make full and accurate report to the court of all
their proceedings as to the partition for the parties. PARTITION WHEN
(Sec. 3, Rule 69) PARTITION BY PARTIES FAIL TO
AGREEMENT REACH AN
The appointment of commissioners is mandatory AGREEMENT
unless there is an extrajudicial partition between Parties agreed to make Parties failed to agree
the parties. They have the power to effect the the partition among to make the partition.
partition but not to inquire into question of themselves.
ownership or possession. Done through an The Court shall
instrument of appoint not more than
NOTE: When it is made to appear to the conveyance or deed of three commissioners
commissioners that the real state, or a portion partition. to assist the Court and
thereof, cannot be divided without prejudice to the the parties in making
interests of the parties, the court may order it the partition.
assigned to one of the parties willing to take the The deed shall be The report of the
same, provided he pays to the other parties such confirmed by the commissioners must
amount as the commissioners deem equitable. (Sec. court. be confirmed by the
5, Rule 69) court.

If the interested parties ask for the property be JUDGMENT AND ITS EFFECTS
sold instead of being assigned the Court shall order
the Commissioners to sell the real estate at public Contents of judgment and its effects
sale under such conditions and within such time as
the court may determine. (Ibid.) 1. If actual partition of property is made, the
judgment shall state definitely:
Duties of the commissioners in an action for
partition (RAS) a. The metes and bounds and adequate
description; and
1. Make a full and accurate report to the b. The particular portion of the real
court of all their proceedings as to the estate assigned to each party.
partition;
2. The assignment of real estate to one of the NOTE: The judgment shall have the effect
parties; or of vesting in each party to the action the
3. Thesale of the same. portion of the real estate assigned to him.
(Sec. 11, Rule 69)
Commissioner’s Report

The interested parties are allowed 10 days within

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 REMEDIAL LAW
2. If the whole property is assigned to one of repudiation of the co-ownership and the co-owners
the parties upon his paying to the others are apprised of the claim of adverse and exclusive
the sum or sums ordered by the court, the ownership. (Heirs of Restar v. Heirs of Cichon, G.R.
effect of judgment shall be to vest in the No. 161720, November 22, 2005; Riano, 2012)
party making the payment the whole of
the real estate free from any interest in the NOTE: The Supreme Court held that where the
part of the other parties to the action. transferees of an undivided portion of the land
(Ibid) allowed a co-owner of the property to occupy a
3. If the property is sold and the sale definite portion thereof and had not disturbed the
confirmed by the court, the judgment shall same for a period too long to be ignored, the
state: possessor is in a better condition or right than said
transferees (Potior est conditio possidentis). Such
a. The name of the purchaser/s making undisturbed possession had the effect of a partial
the payment; and partition of the co-owned property which
b. A definite description of the parcels of entitles the possessor to the definite portion which
real estate sold to each purchaser. he occupies. (Vda. de Cabrera v. Court of Appeals,
335 Phil. 19 (1997)
NOTE: A certified copy of the judgment shall in
either case be recorded in the registry of deeds of WHEN PARTITION IS NOT ALLOWED
the place in which the real estate is situated, and
the expenses of such recording shall be taxed as Instances when a co-owner may not demand
part of the costs of the action. (Sec. 11, Rule 69) partition (ADL-UC)

Stages in an action for partition could be the 1. There is an agreement among the co-
subject of appeal owners to keep the property undivided for
a certain period of time but not exceeding
1. Order determining the propriety of the ten years (Art. 494, NCC);
partition; 2. When partition is prohibited by the donor
2. Judgment as to the fruits and income of the or testator for a period not exceeding 20
property; years (Art. 494; Art. 1083, NCC);
3. Judgment of partition 3. When partition is prohibited by law (Art.
494, NCC);
NOTE: The mode of appeal is record on appeal. This 4. When property is not subject to physical
is one of the instances when the rules allow division and to do so would render it
multiple appeals. A judgment declaring the unserviceable for the use for which it is
existence of co-ownership is immediately intended (Art. 495, NCC); and
appealable. Judgment directing an accounting is 5. When the condition imposed upon
appealable regardless of whether the accounting is voluntary heirs before they can demand
the principal relief sought or a mere incident, and partition has not yet been fulfilled. (Art.
becomes final and executory within the 1094, NCC)
reglementary period. (Miranda v. CA, G.R. No. L-
33007, June 18, 1976)
FORCIBLE ENTRY
PARTITION OF PERSONAL PROPERTY AND UNLAWFUL DETAINER

The provisions of this Rule shall apply to partitions
of estates composed of personal property, or of Ejectment proceedings
both real and personal property, in so far as the
same may be applicable. (Sec. 13, Rule 69) Unlawful detainer and forcible entry suits are
designed to summarily restore physical possession
PRESCRIPTION OF ACTION of a piece of land or building to one who has been
illegally or forcibly deprived thereof, without
GR: An action to demand partition of a co-owned prejudice to the settlement of the parties' opposing
property does not prescribe as long as there is a claims of juridical possession in appropriate
recognition of the co-ownership, expressly or proceedings.
impliedly (Art. 494, NCC).
Nature of Ejectment proceedings
XPN: A co-owner may acquire ownership thereof
by prescription where there exists a clear

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 Civil Procedure
An action for ejectment (forcible entry or unlawful United Church of Christ Inc., v. Dante Ando, et al. G.R
detainer) is a real action because it involves the No. 195669, May 30, 2016)
issue of possession of real property (Rule 4, Section
1). It is also however, an action in personam Requisites of unlawful detainer
because the action is directed against a particular
person who is sought to be held liable (Domagas v. 1. Possession of any land or building is
Jensen, 448 SCRA 663). unlawfully withheld from a lessor, vendor,
vendee, or other person after the
DEFINITION AND DISTINCTION expiration or termination of the right to
hold possession by virtue of any contract
Forcible entry express or implied;

It is an action to recover possession founded upon NOTE: It has been held that prior physical
illegal possession from the beginning when one is possession by the plaintiff is not an
deprived of physical possession of real property by indispensable requirement in an unlawful
means of force, intimidation, threat, strategy, or detainer case brought by a vendee or other
stealth. It is commenced by a verified complaint. person against whom the possession of
(Sec. 1, Rule 70) any land is unlawfully withheld after the
expiration or termination of a right to hold
Requisites of forcible entry (PFISTS-1) possession. (William Go v. Albert Looyuko,
G.R. No. 19652, July 1, 2013, citing Sps.
1. A person is deprived of possession of any Maninang v. CA, 373 Phil. 304)
land or building;
2. by force, intimidation, strategy, threat, or 2. Action is brought within 1 year after such
stealth (FISTS); and unlawful deprivation or withholding of
3. Action is brought within 1 year from the possession; and
unlawful deprivation. (Sec. 1, Rule 70) 3. Demand to pay or comply with the
conditions of the lease and to vacate is
Questions to be resolved in an action for made upon the lessee. (Sec. 1, Rule 70)
forcible entry (AOR)
NOTE: If the complaint does not allege facts
1. Who has actual possession over the real showing compliance with the prescribed one-year
property; period to file an action for unlawful detainer, then
2. Was the possessor ousted therefrom it cannot properly qualify as such action over
within 1 year from the filing of the which the MTC can exercise jurisdiction. Such
complaint by force, intimidation, strategy, allegations are jurisdictional and crucial. It may
threat or stealth; and then be an accion publiciana or accion
3. Does the plaintiff ask for the restoration of reivindicatoria. (Estate of Manantan v. Somera, G.R.
his possession? (Dizon v. Concina, G.R. No. No. 145867, April 7, 2009)
23756, December 27, 1969)
Formal contract not a prerequisite in unlawful
Unlawful detainer detainer

It is where one illegally withholds possession after Even if there is no formal contract between the
the expiration or termination of his right to hold parties, there can still be an unlawful detainer
possession under any contract, express or implied. because implied contracts are covered by
(Riano, 2012) ejectment proceedings. Possession by tolerance
creates an implied promise to vacate the premises
It is commenced by a verified complaint. (Sec. 1, upon the demand of the owner. (Peran v. CFI of
Rule 70) Sorsogon, G.R. No. 57259, October 13, 1983)
Tolerance must be present right from the start of
NOTE: In a summary action of unlawful detainer, possession sought to be recovered to categorize a
the question to be resolved is which party has the cause of action as one for unlawful detainer.
better or superior right to the physical/material (Muñoz v CA, G.R. No. 102693, Septemeber 22, 1993,
possession (or de facto possession) of the disputed citing Sarona v. Villegas G.R. No. L-22984, March 27,
premises. Whereas in the action for recovery of 1968) Otherwise, the proper remedy would be
ownership, the question to be resolved is which forcible entry.
party has the lawful title or dominical right (i.e.,
owner's right) to the disputed premises. (Bradford

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Q: In 2003, Spouses del Rosario filed a because occupancy is failure to comply with
Complaint for Unlawful Detainer against Gerry illegal from the very the lease contract.
Roxas Foundation, Inc. The spouses alleged that beginning. (Riano, 2009)
sometime in 1991, without their consent and The plaintiff must prove The plaintiff need not
authority, Gerry Roxas Foundation, Inc. took that he was in prior have been in prior
full control and possession of the subject physical possession of physical possession.
property, developed the same and used it for the premises until he
commercial purposes. They have allowed the was deprived thereof by
respondent for several years, to make use of the defendant.
the land without any contractual or legal basis. GR: The 1 year period is Period is counted from
Hence, the foundation’s possession of the counted from the date of the date of the last
subject property is only by tolerance. The actual entry on the land. demand or last letter of
spouses served notices upon the foundation to demand in case of non-
vacate the premises of said land but the latter XPN: When entry is by payment of rentals or
did not heed such notices. Will the case stealth, the period must violation of the
prosper? be counted from the conditions of the lease.
demand to vacate upon (Riano, 2012)
A: NO. The proper remedy for was to file a learning of the stealth.
Complaint for Forcible Entry and not a case for (Riano, 2012)
unlawful detainer. In forcible entry, one is deprived
of physical possession of any land or building by Mandatory allegations
means of force, intimidation, threat, strategy, or
stealth. Where the defendant’s possession of the The rule is that the allegations in the complaint
property is illegal ab initio, the summary action for determine both the nature of the action and the
forcible entry is the remedy to recover possession. jurisdiction of the court. The cause of action in a
Spouses Del Rosario maintained that Gerry Roxas complaint is not what the designation of the
Foundation, Inc. took possession and control of the complaint states, but what the allegations in the
subject property without any contractual or legal body of the complaint define and describe.
basis. Assuming that these allegations are true, it
hence follows that the Foundation’s possession The complaint must specifically allege the facts
was illegal from the very beginning. Therefore, the constituting unlawful detainer or forcible entry if
foundation of the spouses’ complaint is one for the complaint filed was for unlawful detainer, or
forcible entry. Thus, there can be no tolerance as forcible entry, respectively. It cannot be made to
the spouses alleged that the Foundation’s depend on the exclusive characterization of the
possession was illegal at the inception. Further, case by one of the parties, jurisdiction cannot be
considering that the action for forcible entry must made to depend upon the defenses set up in the
be filed within one year from the time of answer, in a motion to dismiss or in a motion for
dispossession, the action for forcible entry has reconsideration. (Balibago vs. Faith in Christ, GR No.
already prescribed when Spouses Del Rosario filed 191527, August 22, 2016)
their Complaint in 2003. (Spouses Del Rosario v.
Gerry Roxas Foundation, Inc., G.R. No. 170575, June DISTINGUISHED FROM ACCION PUBLICIANA
8, 2011) AND ACCION REIVINDICATORIA

Forcible Entry vs. Unlawful Detainer Actions available to recover possession of real
property
FORCIBLE ENTRY UNLAWFUL DETAINER
(DETENTACION) (DESAHUCIO) 1. Accion Interdictal (ejectment);
Possession of the land by Possession is inceptively 2. Accion Publiciana; and
the defendant is lawful but it becomes 3. Accion Reinvindicatoria
unlawful from the illegal by reason of the
beginning as he acquires termination of his right Three possessory actions distinguished from
possession by FISTS. to the possession of the each other
property under his
contract with the ACCION ACCION ACCION
plaintiff. INTERDICTAL PUBLICIANA REIVINDICATO-
Demand to vacate is not Demand is jurisdictional RIA
required before the if the ground is non-
filing of the action payment of rentals or

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Summary A plenary action An action for Rule that should govern the proceedings of
action for the for the recovery the recovery of accion interdictal
recovery of of the real right ownership,
physical of possession which GR: Ejectment cases are summary proceedings
possession when the necessarily intended to provide an expeditious means of
where the dispossession includes the protecting actual possession or right to possession
dispossession has lasted for recovery of of property.
has not lasted more than 1 possession.
for more than year. XPN: When the decision of the MTC is appealed to
1 year. . the RTC, the applicable rules are those of the latter
This action This actions This action is court. (Refugia v. CA, G.R. No. 118284, July 5, 1996)
must be filed must be filed imprescriptible.
within 1 year more than 1 NOTE: Ejectment suits can be maintained with
from year after but respect to all kinds of land, but agricultural lands
dispossession. within 10 years under tenancy are now subject to the land reform
from laws, and cases arising thereunder are within the
dispossession jurisdiction of Regional Trial Court acting as
since Art. 555 of Special Agrarian Court. (Regalado, 2010)
the NCC
provides that Q: Sps. De Jesus filed with the RTC an action for
the right of recovery of possession alleging that they are
possession is the real owners of the said estate evidenced by
lost after the the TCTs they were able to present. On the
lapse of 10 other hand, the Heirs of Telesforo through Sps.
years. Julao, argued that they are the lawful heirs of
All cases of RTC has RTC has the property since they never transferred nor
forcible entry jurisdiction if jurisdiction if conveyed the property to anyone; the claim was
and unlawful the value of the the value of the based on an OCT issued by the DENR. The RTC
detainer property property ruled in favor of the Sps. Julao since they were
irrespective of exceeds exceeds able to present the proper certificate of titles.
the amount of P20,000 P20,000 On appeal, the CA reversed the ruling and
damages or (outside Metro (outside Metro dismissed the complaint stating that the RTC
unpaid rentals Manila) or Manila) or never acquired jurisdiction in the said case
sought to be P50,000 (in P50,000 (in since the assessed value of the property was
recovered Metro Manila). Metro Manila). never mentioned in the complaint. Is the
should be decision of the CA proper?
brought to the MTC has MTC has
MTC. jurisdiction if jurisdiction if A: YES. In an action for recovery of possession, the
the value of the the value of the assessed value of the property sought to be
property does property does recovered determines the court's jurisdiction.
not exceed the not exceed the Jurisdiction is conferred by law and is determined
above amounts. above amounts. by the allegations in the complaint, which contains
the concise statement of the ultimate facts of a
Based on the foregoing distinctions, the material plaintiffs cause of action.
element that determines the proper action to be
filed for the recovery of the possession of the For the RTC to exercise jurisdiction, the assessed
property in this case is the length of time of value of the subject property must exceed
dispossession. (Encarnacion v. Amigo, G.R. No. ₱20,000.00. Petitioners’ failure to allege in their
169793, September 15, 2006) complaint the assessed value of the subject
property would equate to failure to establish that
NOTE: The actions of forcible entry and unlawful the RTC had jurisdiction over it. In fact, it cannot be
detainer are within the exclusive and original determined which trial court had original and
jurisdiction of the MTC, MeTC and MCTC [Sec. exclusive jurisdiction over the case. (Heirs of
33(2), BP 129; RA 7691] and shall be governed by Telesforo Julao v. Sps. Alejandro and Morenita De
the rules on summary procedure irrespective of Jesus, G.R. No. 76020, September 29, 2014)
the amount of damages or rental sought to be
recovered (Sec. 3, Rule 70). NOTE: The amount of rents and damages claimed
does not affect jurisdiction of the MTCs because the
same are only incidental or accessory to the main

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action. (Lao Seng Hian v. Lopez, G.R. No. L-1950, May 2. MTC has jurisdiction if the value of the
16, 1949) property does not exceed the above
amounts.
If only rents or damages are claimed in an ordinary
action, the action is personal and the amount WHO MAY INSTITUTE THE ACTION AND WHEN;
claimed determines whether it falls within the AGAINST WHOM THE ACTION MAY BE
jurisdiction of the RTC or the MTC. MAINTAINED

Venue Who may institute the action

Forcible entry and unlawful detainer actions are 1. A person deprived of the possession of any
those affecting possession of real property, hence, land or building by force, intimidation,
are real actions. The venue of these actions, threat, strategy, or stealth, or a lessor,
therefore, is the place where the property is vendor, vendee; or
situated. (Sec. 1, Rule 4) 2. Other persons against whom the
possession of any land or building is
On the other hand, these actions are not only real unlawfully withheld after the expiration or
actions, they are also in personam because the termination of the right to hold possession,
plaintiff seeks to enforce a personal obligation to by virtue of any contract, express or
vacate the property subject of the action and implied, or the legal representatives or
restore physical possession thereof to the plaintiff. assigns of any such lessor, vendor, vendee,
(Domagas v. Jensen, G.R. No. 158407, January 17, or other person. (Sec. 1, Rule 70)
2005)
Lessor to proceed against lessee only after
Effect of the pendency of an action involving demand
ownership on an action for forcible entry and
unlawful detainer Unless otherwise stipulated, such action by the
lessor shall be commenced only after demand to
It does not bar the filing of an ejectment suit, nor pay or comply with the conditions of the lease and
suspend the proceedings of one already instituted. to vacate is made upon the lessee, or by serving
The underlying reason for this rule is to prevent written notice of such demand upon the person
the defendant from trifling with the summary found on the premises if no person be found
nature of an ejectment suit by the simple expedient thereon, and the lessee fails to comply therewith
of asserting ownership over the disputed property. after 15 days in the case of land or 5 days in the
(Tecson v. Gutierrez, G.R. No. 152978, March 4, case of buildings. (Sec. 2, Rule 70)
2005)
When right to commence the action arises
Judgment conclusive only on possession
The action shall commence if the lessee fails to
Where the issue of ownership is raised by any of comply with the requisite demand after 15 days in
the parties, the courts may pass upon the same in case of land or 5 days in case of buildings. (Sec. 2,
order to determine who has the right to possess Rule 70)
the property. However, the adjudication is only
provisional and will not bar or prejudice an action PLEADINGS ALLOWED
between the same parties involving title to the
property. (Esmaquel v. Coprada, G.R. No. 152423, The only pleadings allowed to be filed are: (3CA)
December 15, 2010; Riano, 2012)
1. Complaint;
JURISDICTION IN ACCION PUBLICIANA AND 2. Compulsory counterclaim;
ACCION REIVINDICATORIA 3. Cross-claim pleaded in the answer; and
4. Answer (Sec. 4, Rule 70)
The court that has jurisdiction over the action
depends on te assessed value of the property. All pleadings shall be verified. (Ibid.)

1. RTC has jurisdiction if the value of the NOTE: Within 10 days from service of summons,
property exceeds P20,000 (outside Metro the defendant shall file his answer to the complaint
Manila) or P50,000 (in Metro Manila). and serve a copy thereof on the plaintiff.
Affirmative and negative defenses not pleaded
therein shall be deemed waived, except lack of

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jurisdiction over the subject matter. Cross-claims unlawful the withholding of the possession and
and compulsory counterclaims not asserted in the gives rise to an action for unlawful detainer. (Riano,
answer shall be considered barred. The answer to 2012)
counterclaims or cross-claims shall be served and
filed within 10 days from service of the answer in What constitutes a demand in unlawful
which they are pleaded. (Sec. 6, Rule 70) detainer

Q: Aries filed an unlawful detainer case against 1. To pay and to vacate – If the suit is based
Patrick before the appropriate MTC. In his on defendant’s failure to pay the rentals
answer, Patrick avers as a special and agreed upon; or
affirmative defense that he is a tenant of Aries’ 2. To comply and to vacate – If suit is
deceased father in whose name the property predicated upon the defendant’s non-
remains registered. What should the court do? compliance with the conditions of the
Explain briefly. (2007 BAR) lease contract. (Riano, 2012)

A: The court should hold a preliminary conference The reckoning point for determining the one-year
not later than 30 days after the defendant’s answer period within which to file the action is the receipt
was filed, since the case is governed by summary if the last demand to vacate and pay. (Sec. 2, Rule
procedure under Rule 70 of the Rules of Court, 70) (2014 BAR)
where a reply is not allowed. The court should
receive evidence to determine the allegations of NOTE: The notice giving the lessee the alternative
tenancy. If tenancy had in fact been shown to be either to pay the increased rental or otherwise
the real issue, the court should dismiss the case for vacate the land is not the demand contemplated by
lack of jurisdiction. the Rules of Court in unlawful detainer cases. When
after such notice, the lessee elects to stay, he
If it would appear that Patrick’s occupancy of the thereby merely assumes the new rental and cannot
subject property was one of agricultural tenancy, be ejected until he defaults in said obligation and
which is governed by agrarian laws, the court necessary demand is first made. (Peñas, Jr. v. Court
should dismiss the case because it has no of Appeals, G.R. No. 112734, July 7, 1994)
jurisdiction over agricultural tenancy cases.
Patrick’s allegation that he is a “tenant” of Form of demand
plaintiff’s deceased father suggests that the case is
one of landlord-tenant relation and therefore, not The demand may be in the form of a written notice
within the jurisdiction of ordinary courts. served upon the person found in the premises. The
demand may also be made by posting a written
ACTION ON THE COMPLAINT notice on the premises if no person can be found
thereon. (Sec. 2, Rule 70)
The court may, from an examination of the
allegations in the complaint and such evidence as It has been ruled, however, that the demand upon a
may be attached thereto, dismiss the case outright tenant may be oral. (Jakihaca v. Aquino, G.R. No.
on any of the grounds for the dismissal of a civil 83982, January 12, 1990) Since, the demand is not
action which are apparent therein. If no ground for written, sufficient evidence must be adduced to
dismissal is found, it shall forthwith issue show that there was indeed a demand like
summons. (Sec. 5, Rule 70) testimonies from disinterested and unbiased
witnesses. (Riano, 2016)
WHEN DEMAND IS NECESSARY
Prior demand in unlawful detainer not
Unless there exists a stipulation to the contrary, an required (TRID)
unlawful detainer case shall be commenced only
after the demand to pay or comply with the 1. Where the purpose of the action is to
conditions of the lease and to vacate is made upon terminate the lease by reason of expiry of
the lessee. (Sec. 2, Rule 70) its term;
2. Where the purpose of the suit is not for
The requirement for a demand implies that the ejectment but for the reinforcement of the
mere failure of the occupant to pay rentals or his terms of the contract; or
failure to comply with the conditions of the lease 3. When the defendant is not a tenant but a
does not ipso facto render his possession of the mere intruder; or
premises unlawful. It is the demand to vacate the 4. When there is stipulation dispensing with
premises and the refusal to do so which make a demand. (Art. 1169, NCC; Sec. 2, Rule 70)

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 REMEDIAL LAW
Wellington Co. filed a Complaint for unlawful
Q: Ben sold a parcel of land to Del with right to detainer before the MeTC of Manila. The MeTC
repurchase within 1 year. Ben remained in ruled in favor of Wellington Co saying that
possession of the property. When Ben failed to there was no implied new lease created when
repurchase the same, title was consolidated in Wellington accepted the rentals made by Yuki.
favor of Del. Despite demand, Ben refused to On appeal, RTC reversed the ruling of the MeTC
vacate the land, constraining Del to file a finding no proof that the petitioner actually
complaint for unlawful detainer. In his defense, received the notice to vacate. Can the implied
Ben averred that the case should be dismissed new lease divest the MeTC of jurisdiction over
because Del had never been in possession of the case?
the property. Is Ben correct? (2008 BAR)
A: NO. The existence of implied new lease or tacita
A: NO. In an action for unlawful detainer, it is not reconduccion based on the allegations in the
required that the plaintiff be in prior physical complaint will not divest the MeTC of jurisdiction
possession of the land subject of the action. In this over the ejectment case. The allegations pleaded in
action by the vendee a retro against a vendor a the complaint and not the defenses set up in the
retro who refused to vacate the property even after answer or pleadings filed by the defendant which
title has been consolidated in the vendee, the latter, determines jurisdiction of the court over ejectment
in contemplation of law, steps into the shoes of the cases. This principle holds even if the facts proved
vendor and succeeds to his rights and interest. during trial do not support the cause of action
(Pharma Industries Inc. v. Hon. Pajarillaga, G.R. No. alleged in the complaint. Here, the Complaint
L-53788, October 17, 1980) sufficiently alleged the elements to be proved and
resolved in an unlawful detainer case i.e. the facts
Rule in case of tacita reconduccion in relation to of lease and expiration or violation of its terms.
unlawful detainer (Joven Yuki, Jr. v. Wellington Co, G.R. No. 178527,
November 27, 2009)
Under Art. 1670 of NCC, if at the end of lease, the
lessee continues to enjoy the property leased for Q: The spouses Juan reside in Quezon City. With
15 days with consent of the lessor, and no notice to their lottery winnings, they purchased a parcel
the contrary has been given, it is understood that of land in Tagaytay City for P100,000.00. In a
there is an implied new lease. recent trip to their Tagaytay property, they
were surprised to see hastily assembled
When there is tacita reconduccion, the lessee shelters of light materials occupied by several
cannot be deemed as unlawfully withholding the families of informal settlers who were not there
property. There is no unlawful detainer. (Riano, when they last visited the property three (3)
2012) months ago. To rid the spouses’ Tagaytay
property of these informal settlers, briefly
An implied new lease or tacita reconduccion will discuss the legal remedy you, as their counsel,
set in if it is shown that: would use; the steps you would take; the court
where you would file your remedy if the need
1. The term of the original contract of lease arises; and the reason/s for your actions. (2013
has expired; BAR)
2. The lessor has not given the lessee a notice
to vacate; and A: As counsel of spouses Juan, I will file a special
3. The lessee continued enjoying the thing civil action for Forcible Entry. The Rules of Court
leased for fifteen days with the provides that a person deprived of the possession
acquiescence of the lessor (Riano, 2019). of any land or building by force, intimidation,
threat, strategy or stealth may at any time within
Q: Chua leased a portion of his commercial (one) 1 year after such withholding of possession
building to petitioner Joven Yuki, Jr. Thereafter, bring an action in the proper Municipal Trial Court
the lease was renewed through a series of where the property is located. This action which is
verbal and written agreements, the last of summary in nature seeks to recover the possession
which was a written Contract of Lease covering of the property from the defendant which was
the period of one year. Later on, Chua informed illegally withheld by the latter. (Sec. 1, Rule 70)
Yuki that he sold the property to Wellington Co.
and instructed petitioner to thenceforth pay the An ejectment case is designed to restore, through
rent to the new owner. After the expiration of summary proceedings, the physical possession of
the lease contract, petitioner refused to vacate any land or building to one who has been illegally
and surrender the leased premises. Thus, deprived of such possession, without prejudice to

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the settlement of the parties’ opposing claims of
juridical possession in appropriate proceedings. A possessor deprived of his possession through
(Heirs of Agapatio T. Olarte and Angela A. Olarte et forcible entry or unlawful detainer may, within 5
al. v. Office of the President of thePhilippines et al., days from the filing of the complaint, present a
G.R. No. 177995, June 15, 2011) motion in the action for forcible entry or unlawful
detainer for the issuance of a writ of preliminary
In Abad v. Farrales, G.R. No. 178635, April 11, 2011, mandatory injunction to restore him in his
the Supreme Court held that two allegations are possession. The court shall decide the motion
indispensable in actions for forcible entry to enable within 30 days from the filing thereof. (Sec. 15, Rule
first level courts to acquire jurisdiction over them: 70)
first, that the plaintiff had prior physical possession
of the property; and, second, that the defendant NOTE: If judgment is appealed to the Regional
deprived him of such possession by means of force, Trial Court, said court may issue a writ of
intimidation, threats, strategy, or stealth. preliminary mandatory injunction to restore the
plaintiff in possession if the court is satisfied that
However, before instituting the said action, I will the defendant's appeal is frivolous or dilatory or
first endeavor to amicably settle the controversy that the appeal of the plaintiff is prima facie
with the informal settlers before the appropriate meritorious. (Sec. 20, Rule 70)
Lupon or Barangay Chairman. If there is no
agreement reached after mediation and RESOLVING DEFENSE OF OWNERSHIP
conciliation under the Katarungang Pambarangay
Law, I will secure a certificate to file action and file Determination of the issue of ownership in
the complaint for ejectment before the MTC of forcible entry and unlawful detainer cases
Tagaytay City where the property is located since
ejectment suit is a real action regardless of the In cases where defendant raises the question of
value of the property to be recovered or claim for ownership in the pleadings and the question of
unpaid rentals. (BP 129 and Sec. 1, Rule 4) possession cannot be resolved without deciding
the issue of ownership, the court may proceed and
In the aforementioned complaint, I will allege that resolve the issue of ownership but only for the
Spouses Juan had prior physical possession and purpose of determining the issue of possession.
that the dispossession was due to force, However, the disposition of the issue of ownership
intimidation and stealth. The complaint will is not final as it may be the subject of separate
likewise show that the action was commenced proceeding specifically brought to settle the issue.
within a period of one (1) year from unlawful (De la Rosa v. Roldan, G.R. No. 133882, September 5,
deprivation of possession, and that Spouses Juan is 2006)
entitled to restitution of possession together with
damages and costs. NOTE: The only issue involved in ejectment
proceedings is as to who is entitled to the physical
PRELIMINARY INJUNCTION AND or material possession of the premises, that is,
PRELIMINARY MANDATORY INJUNCTION possession de facto and not possession de jure.
(Juanita Ermitaño, represented by her attorney-in-
Remedy of the plaintiff in order to obtain fact, Isabelo Ermitaño v. Paglas, G.R. No. 174436,
possession of the premises during the January 13, 2013; Regalado, 2010)
pendency of an action
The issue of ownership shall be resolved only to
The plaintiff may, within 5 days from filing of the determine the issue of possession. Allegations of
complaint file a motion in the same action for the ownership is not material in ejectment cases.
issuance of a writ of preliminary mandatory Evidence of ownership will be allowed only for the
injunction to restore him his possession. This court to determine the character and extent of
motion shall be resolved within 30 days from its possession.
filing. (Sec. 15, Rule 70; Riano, 2012)
Judgment in forcible entry and unlawful
Grant of injunction while the case is pending detainer cases NOT conclusive as to the title to
the property
The court may grant preliminary injunction, in
accordance with the provisions of Rule 58 The judgment rendered in an action for forcible
(Preliminary Injunction), to prevent the defendant entry or detainer is conclusive only as to
from committing further acts of dispossession possession of the property. Said judgment does not
against the plaintiff. bind the title or affect the ownership of the land or

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building. A distinct and separate action between Detainer against Lucia for refusal to vacate the
the same parties respecting title to the land or land despite several demands. Is Teresita
building may be had. (Sec. 18, Rule 70; Lim v. entitled to damages?
Spouses Ligon, G.R. No. 183589, June 25, 2014)
A: NO. The only damage that can be recovered by
NOTE: The assertion by the defendant of Teresita is the fair rental value or the reasonable
ownership over the disputed property does not compensation for the use and occupation of the
serve to divest the inferior court of its jurisdiction. leased property. The reason for this is that in
The defendant cannot deprive the court of forcible entry or unlawful detainer cases, the only
jurisdiction by merely claiming ownership of the issue raised in ejectment cases is that of rightful
property involved. (Rural Bank of Sta. Ignacia v. possession; hence, the damages which could be
Dimatulac, G.R. No. 142015, April 29, 2003; Perez v. recovered are those which the Teresita could have
Cruz, G.R. No. 142503, June 20, 2003) sustained as a mere possessor, or those caused by
the loss of the use and occupation of the property,
Binding of Judgment and not the damages which she may have suffered
but which have no direct relation to her loss of
GR: Judgment in an ejectment case is binding only material possession. (Rodriguez v. Salvador, G.R. No.
upon the parties properly impleaded and given an 171972, June 8, 2011)
opportunity to be heard.
HOW TO STAY THE IMMEDIATE
XPNs: It becomes binding on anyone who has not EXECUTION OF JUDGMENT
been impleaded in certain instances as in the
following: As a rule, judgment of the MTC against the
defendant in ejectment proceedings is immediately
1. A sublessee is bound by the judgment executory. The rule on immediate execution is
against the lessee because his right to the applicable only if the decision is against the
premises is merely subsidiary to that of defendant and not if it is against the plaintiff.
the lessee;
2. A guest or a successor in interest, the A judgment on forcible entry and detainer case is
members of the family of the lessee or his immediately executory to avoid injustice to a
servants and employees are likewise lawful possessor, and the court’s duty to order the
bound by the judgment even if not execution is practically ministerial (Riano, 2019).
impleaded in the suit for ejectment;
3. Trespassers, squatters or agents of the In case the judgment is against the defendant, and
defendant fraudulently occupying the in order to stay the immediate execution of
property to frustrate the judgment; and judgment, the defendant must take the following
4. Transferees pendente lite and other privies steps:
of the defendant. (Riano, 2012)
1. Perfect an appeal (in the same manner as
NOTE: The plaintiff, in ejectment cases, is entitled in ordinary civil actions, Rule 40);
to damages caused by his loss of the use and 2. File a supersedeas bond to pay for the
possession of the premises, but not for damages rents, damages and costs accruing down to
caused on the land or building, which latter items the time of the judgment appealed from;
of damages should be recovered by plaintiff, if he is and
the owner, in an ordinary action. (Santos v. 3. Deposit periodically with the RTC, during
Santiago, 38 Phil. 575) However, it has been held the pendency of the appeal, the adjudged
that plaintiff can recover from defendant liquidated amount of rent due under the contract or if
damages stipulated in the lease contract. (Gozon v. there be no contract, the reasonable value
Vda. De Barrameda, G.R. No. 17473, June 30, 1964) of the use and occupation of the premises.
(Sec. 19, Rule 70)
Q: Teresita is the absolute owner of a parcel of
land. Lucia, on the other hand, claims that she NOTE: The order for the issuance of a writ of
and her husband entered the subject land with execution to immediately enforce the judgment of
the consent and permission of Teresita’s the inferior court is interlocutory and not
predecessors-in-interest under the agreement appealable. Immediate execution is proper if the
that they would devote the property to judgment is in favor of the plaintiff.
agricultural production and share the produce
with Teresita’s predecessors-in-interest. If the judgment is in favor of the defendant with an
Teresita filed a Complaint for Unlawful award for damages under his counterclaims, such

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judgment is not immediately executory and can Rules of res judicata and conclusiveness of
be executed only after the lapse of the 15-day judgment apply in ejectment case
period to appeal without the plaintiff having
perfected his. (Regalado, 2010) But subject to the qualification that judgment is
conclusive with respect to the right of possession
EXECUTION PENDING EXECUTION PENDING under and by virtue of a contract the existence of
APPEAL UNDER RULE APPEAL UNDER RULE which has been proved in said ejectment suit.
39, SECTION 2 70, SECTION 19 (Penas v. Tuason, 22 Phil 303)
Applies in ordinary Applies in actions for
civil actions. unlawful detainer and Q: After the real estate mortgages over two
forcible entry. parcels of land over the property of Sps.
Discretionary upon the Ministerial on the part Rosario in favor of Priscilla were discharged,
trial court. of the trial court. Agnes Rosario sold the same lots in favor of
The prevailing party Upon the non- Priscilla's daughter, Evangeline but the latter
must file a motion to compliance of the later sold the lots to Priscilla for the same price.
execute the judgement defendant on the three When Priscilla sought the spouses to vacate the
pending appeal. requisites of lot, Sps. Rosario instead filed a Complaint for
perfection of appeal, Declaration of Nullity of Contract of Sale and
bond and deposit, the Mortgage. Priscilla, in turn, filed Complaint for
judgement Recovery of Possession. The cases were
automatically consolidated and the RTC ruled in favor of
executed pending Priscilla. On appeal, the CA reversed the
appeal. Decision of the RTC. In its Decision, the CA ruled
The prevailing party Proof of good cause or that although the transfers from Agnes to
must prove good reason is not required. Priscilla were identified as absolute sales, the
reasons for the court contracts are deemed equitable mortgages. The
to grant execution CA Decision became final and executory. Due to
pending appeal. the failure or refusal of Sps. Rosario to satisfy
their outstanding obligation, Priscilla filed a
Supersedeas bond Complaint for Judicial Foreclosure of Real
Estate Mortgage. May the Sps. Rosario, in the
The bond shall answer for the rents, damages and instant petition, question the legal personality
costs accruing down to the time of judgement of of Priscilla to foreclose the subject property
the inferior court appealed from. The filing of such and claim that the loan obligation has no legal
bond is mandatory to stay the judgement of the and factual bases?
MTC.
A: NO. There is conclusiveness of judgment as to
NOTE: Attorney’s fees shall not be covered by the the issues pertaining to the existence of the loan
supersedeas bond. and the legal personality of Priscilla to file a case
for judicial foreclosure in accordance with the
Supersedeas bond NOT required November 15, 2006 Decision. As such, the factual
findings and conclusions in said Decision may no
1. Monetary award in the judgment of the longer be disputed by Sps. Rosario as res judicata
inferior court has been deposited with the by conclusiveness of judgment, which bars them
court; or from challenging the same issues. The said
2. Judgment of the lower court did not make Decision of the CA, from which this case arose, has
findings with respect to any amount in attained finality due to the failure of the parties to
arrears, damages, or costs against the file a motion for reconsideration or an appeal. The
defendant. elements of res judicata by conclusiveness of
judgment are present: first, the November 15, 2006
A supersedeas bond is necessary to prevent Decision has attained finality; second, the said
immediate execution only if the judgment awarded decision was rendered by a court having
rents, damages, and costs. Where the judgment only jurisdiction over the subject matter and the parties;
ordered the defendant to vacate and to pay third, the said decision disposed of the case on the
attorney’s fees, a supersedeas bond is not required merits; and fourth, there is, as between the
to cover attorney’s fees. (Once v. Gonzalez, G.R. No. previous case and the instant case, an identity of
L-44806, March 31, 1977) (2017 BAR) parties. (Sps. Rosario v. Alvar, G.R. No. 212731,
September 6, 2017)

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PROHIBITED PLEADINGS AND MOTIONS power of the court, and also to secure the
rights of the parties to a suit awarded by
1. Motion to dismiss the complaint except on the court.
the ground of lack of jurisdiction over the
subject matter, or failure to comply with a Nature of contempt power
referral to the Lupon Tagapamayapa in
cases covered by the LGC; The power to punish for contempt is inherent in all
2. Motion for a bill of particulars; courts; its existence is essential to the preservation
3. Motion for new trial, or for of order in judicial proceedings and to the
reconsideration of a judgment, or for enforcement of judgments, orders and mandates of
reopening of trial; the courts, and, consequently, to the due
4. Petition for relief from judgment; administration of justice.
5. Motion for extension of time to file
pleadings, affidavits or any other paper; It is settled that the power is to be exercised with
6. Memoranda; the end in view of utilizing the same for correction
7. Petition for certiorari, mandamus, or and preservation of the dignity of the court, and
prohibition against any interlocutory not for retaliation or vindictiveness. It is to be
order issued by the court; exercised on the preservative, not vindictive
8. Motion to declare the defendant in default; principle, and on the corrective and not retaliatory
9. Dilatory motions for postponement; idea of punishment. (Laurel v. Francisco, A.M. No.
10. Reply; RTJ-06-1992, July 6, 2010)
11. Third-party complaints; and
12. Interventions. (Sec. 13, Rule 70) Q: A TRO was filed by Custodio against Bro.
Bernardo Oca, et al. in the RTC to prevent
another trustee from calling a special
CONTEMPT membership meeting in order to remove the
complainant from the Board of Trustees. The
case was dismissed, and the petitioner was
It is disobedience to the court by acting in subsequently removed from the Board of
opposition to its authority, justice and dignity. It Trustees and as Curriculum Administrator.
signifies not only willful disregard or disobedience Eventually, a complaint for contempt of court
of court’s orders, but such conduct as tends to was filed by the original complainant against
bring the authority of court and administration of the adverse parties for their alleged willful
law into disrepute or in some manner to impede disobedience to the various orders of the trial
the due administration of justice. (Regalado v. Go, court. Are the parties guilty of contempt of
G.R. No. 167988, Febraury 6, 2007; Riano, 2012) court?

KINDS OF CONTEMPT A: YES. The purpose of the filing and the nature of
the contempt proceeding show that the original
1. As to nature (depending on the nature and complainant was seeking enforcement of the trial
effect of the contemptuous act): court orders in the intra-corporate controversy
because the adverse parties refused to comply.
a. Civil Hence, this is a civil contempt case, which does not
b. Criminal need proof beyond reasonable doubt. This Court
has ruled that while the power to cite parties in
2. As to the manner of commission: contempt should be used sparingly, it should be
allowed to exercise its power of contempt to
a. Direct maintain the respect due to it and to ensure the
b. Indirect infallibility of justice where the defiance is so clear
and contumacious and there is an evident refusal
PURPOSE AND NATURE OF EACH to obey. (Oca v. Custodio, G.R. No. 199825, 26 July
2017, as penned by J. Leonen)
Functions of contempt proceedings
Criminal contempt vs. Civil Contempt
1. Vindication of public interest by
punishment of contemptuous conduct; and CRIMINAL CONTEMPT CIVIL CONTEMPT
2. Coercion to compel the contemnor to do It is a conduct directed It is the failure to do
what the law requires him to uphold the against the authority something ordered to

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 Civil Procedure
and dignity of the court be done by a court or a court and protect its suitor and to coerce
or a judge acting judge for the benefit of outraged dignity. compliance with an
judicially; it is a conduct the opposing party order for the
obstructing the therein and is therefore, preservation of the
administration of justice an offense against the rights of private
which tends to bring the party in whose behalf persons
court into disrepute or the violated order was Intent is necessary. Intent is not necessary.
disrespect. (Castillejos made. (Castillejos State is the real Instituted by the
Consumers Association, Consumers Association, prosecutor. aggrieved party or his
Inc. v. Domingues, G.R. Inc. v. Domingues, G.R. successor or someone
No. 189949, March 25, No. 189949, March 25, who has pecuniary
2015; Riano, 2012) 2015; Riano, 2012) interest in the right to
be protected.
NOTE: If the purpose is Proof required is proof Proof required is more
to punish, it is criminal beyond reasonable than mere
in nature but if to doubt. preponderance of
compensate, then it is evidence.
civil. If accused is acquitted, If judgment is for
Purpose is to vindicate Purpose is to provide a there can be no appeal. respondent, there can
the authority of the remedy for an injured be an appeal.


Direct contempt vs. Indirect contempt

DIRECT CONTEMPT INDIRECT CONTEMPT
Definition A person guilty of misbehavior in the Committed by a person who does the
presence of or so near a court as to following acts:
obstruct or interrupt the proceedings
before the same, including disrespect 1. Disobedience or resistance to a lawful
toward the court, offensive personalities writ, process, order or judgment of a
toward others, or refusal to be sworn or to court;
answer as a witness, or to subscribe an 2. Any abuse of or any unlawful
affidavit or deposition when lawfully interference with the processes or
required to do so. (Sec. 1, Rule 71) proceedings of a court not constituting
direct contempt; and
3. Any improper conduct tending, directly
or indirectly, to impede, obstruct or
degrade the administration of justice.
(Siy vs. NLRC, G.R. No. 158971, August
25, 2005)
Location Committed in the presence of or so near a Not committed in the presence of the court.
court.
Nature of Summary in nature Punished after being charged and heard
proceeding
How done Contempt in facie curiae Constructive contempt
Grounds 1. Misbehavior in the presence of or so 1. Misbehavior of an officer of a court in
near a court as to obstruct or the performance of his official duties or
interrupt the proceedings; in his official transactions;
2. Disrespect towards the court; 2. Abuse or any unlawful interference
3. Offensive personalities toward others; with the proceedings not constituting
or direct contempt;
4. Refusal to be sworn or to answer as a 3. Disobedience of or resistance to a
witness, or to subscribe an affidavit or lawful writ, process, order, or judgment
deposition when lawfully required to of a court or unauthorized intrusion to
do so. (Sec. 1, Rule 71) any real property after being ejected;
4. Failure to obey a subpoena duly served;
5. Assuming to be an attorney or an officer
of the court without authority;

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 REMEDIAL LAW
6. Rescue or attempted rescue, of a person
or property in the custody of an officer;
7. Any improper conduct tending to
degrade the administration of justice.
(Sec. 3, Rule 71)
Penalty The penalty for direct contempt depends The punishment for indirect contempt
upon the court to which the act was depends upon the level of the court against
committed: which the act was committed:

1. If the act constituting direct contempt 1. Where the act was committed against
was committed against an RTC or a an RTC or a court of equivalent or
court of equivalent or higher rank, higher rank, he may be punished by a
the penalty is a fine not exceeding fine not exceeding Php 30,000 or
2,000 pesos or imprisonment not imprisonment not exceeding 6
exceeding 10 days, or both; months, or both;
2. If the act constituting direct contempt 2. Where the act was committed against
was committed against a lower court, a lower court, he may be punished by
the penalty is a fine not exceeding a fine not exceeding 5,000 pesos or
200 pesos or imprisonment not imprisonment not exceeding one
exceeding 1 day, or both (Sec. 1, Rule month, or both. Aside from the
71); applicable penalties, if the contempt
consists in the violation of a writ of
If the contempt consists in the refusal or injunction, TRO or status quo order, he
omission to do an act which is yet within may also be ordered to make
the power of the respondent to perform, complete restitution to the party
he may be imprisoned by order of the injured by such violation of the
court concerned until he performs it. property involved or such amount as
may be alleged and proved (Sec. 7,
Rule 71);
3. Where the act was committed against
a person or entity exercising quasi-
judicial functions, the penalty imposed
shall depend upon the provisions of
the law which authorizes a penalty for
contempt against such persons or
entities.
Remedy The person adjudged in direct contempt Appeal (by notice of appeal)
by any court may not appeal therefrom,
but may avail himself of the remedies of The person adjudged in indirect contempt
special civil action of certiorari or may appeal from the judgment or final
prohibition directed against the court, order of the court in the same manner as in
which adjudged him in direct contempt. criminal cases. The appeal will not however
(Sec. 2, Rule 71) have the effect of suspending the judgment
if the person adjudged in contempt does
Pending the resolution of the petition for not file a bond in an amount fixed by the
certiorari or prohibition, the execution of court from which the appeal is taken. This
the judgment shall be suspended, bond is conditioned upon his performance
provided such person files a bond fixed by of the judgment or final order if the appeal
the court which rendered the judgment is decided against him. (Sec. 11, Rule 71)
and conditioned that he will abide by and
perform the judgment should the petition
be decided against him. (Sec. 2, Rule 7;
Canada v. Suerte, 474 SCRA 379)
Commencement of No formal proceeding is required to cite a 1. May be initiated motu proprio by the
Contempt person in direct contempt. The court court against which the contempt was
Proceeding against which the contempt is directed committed by order or other formal
may summarily adjudge a person in direct charge by the court requiring the
contempt. (Sec. 1 Rule 71; Encinas v. respondent to show cause why he
National Bookstore Inc., G.R. No. 162704, should not be punished for contempt;

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 Civil Procedure
July 28, 2005) or

NOTE: This procedure applies only
when the indirect contempt is
committed against a court of judge
possessed and clothed with contempt
powers.

2. By a verified petition with supporting
particulars and certified true copies of
the necessary documents and papers
(independent action; must comply with
requirements of an initiatory
pleadings). (Sec. 4, Rule 71)

NOTE: If the contempt charges arose
out of or are related to a principal
action pending in the court, the
petition for contempt shall allege that
fact but said petition shall be docketed,
heard and decided separately, unless
the court in its discretion orders the
consolidation of the contempt charge
and the principal action for joint
hearing and decision. (Sec. 4, Rule 71)

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Court that has jurisdiction opportunity has been given to the accused to be
heard by himself and counsel.
1. Where the act was committed against a
RTC or a court of equivalent or higher Q: A temporary restraining order (TRO) was
rank, or against an officer appointed by it, issued on September 20, 2017 by the RTC
the charge may be filed with such court; against defendant Jeff enjoining him from
2. Where the act was committed against a entering the land of Regan, the plaintiff. On
lower court, the charge may be filed with October 9, 2017, upon application of Regan, the
the RTC in which the lower court is sitting. trial court, allegedly in the interest of justice,
It may also be filed in lower court against extended the TRO for another 20 days based on
which the contempt was allegedly the same ground for which the TRO was issued.
committed. The decision of the lower court On October 15, 2017, Jeff entered the land
is subject to appeal to RTC; subject of the TRO. May Jeff be liable for
3. Where the act was committed against contempt of court? Why? (2017 BAR)
persons or entities exercising quasi-
judicial functions, the charge shall be filed A: No, Jeff may not be liable for contempt. Under
in RTC of the place wherein the contempt the Rule on Preliminary Injunction, a TRO is
was committed. (Sec. 12, Rule 71; Riano, effective only for a period of 20 days from service
2012) on the person sought to be enjoined. It is deemed
automatically vacated if the application for
Q: May a non-party be held for contempt? preliminary injunction is denied or not resolved
within the said period and no court shall have the
A: GR: NO. authority to extend or renew the TRO on the same
ground for which it was issued. (Sec. 5, Rule 58)
XPN: If he of she is guilty of conspiracy with any Here the extension of the TRO by the RTC was
one of the parties in violating the court’s orders. invalid since it was for the same ground for which
(Desa Ent., Inc. v. SEC, G.R. No. L-45430, September the TRO was issued. Hence the TRO was deemed
30, 1982) automatically vacated and thus Jeff may not be
liable for contempt for ignoring it.
Q: Ray, through Atty. Velasco, filed a complaint
for quieting of title against Chiz. Chiz, however, NOTE: A pleading containing derogatory, offensive
interposed the defense that the documents or malicious statements submitted before the court
relied upon by Ray and Atty. Velasco were or judge where the proceedings are pending
forged and falsified. Finding that the said constitutes direct contempt.
documents were indeed forged and falsified,
Judge Victoria cited Ray and Atty. Velasco for It is because the insulting pleading is equivalent to
direct contempt and ordered them to serve 10 misbehavior committed in the presence of or so
days of detention at the Municipal Jail. Ray and near a court or judge as to interrupt the
Atty. Velasco filed a motion for bail and a administration of justice. (Prosecutor Jorge Baculi v.
motion to lift the order of arrest. But they were Judge Belen, A.M. No. RTJ-11-2286, February 12,
denied outright by Judge Victoria. Is Judge 2020)
Victoria correct?
REMEDY AGAINST DIRECT CONTEMPT;
A: NO. Direct contempt is a contumacious act done PENALTY
facie curiae and may be punished summarily
without hearing. Indirect or constructive contempt, A person adjudged in direct contempt may not
in turn, is one perpetrated outside of the sitting of appeal therefrom. His remedy is a petition for
the court. certiorari or prohibition against the court which
adjudged him in direct contempt. (Sec. 2, Rule 71;
Here the use of falsified and forged documents is a Riano, 2016)
contumacious act. However, it constitutes indirect
contempt not direct contempt. The imputed use of Pending the resolution of the petition for certiorari
a falsified document, more so where the falsity of or prohibition, the execution of the judgment for
the document is not apparent on its face, merely direct contempt shall be suspended. The
constitutes indirect contempt, and as such is suspension, however, shall take place only if the
subject to such defenses as the accused may raise person adjudged in contempt files a bond fixed by
in the proper proceedings. Thus, following Sec. 3, the court which rendered the judgment. This bond
Rule 71, a contemnor may be punished only after a is conditioned upon his performance of the
charge in writing has been filed, and an

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 Special Proceeding
judgment should the petition be decided against contempt is directed may summarily adjudge a
him. (Sec.2, Rule 71; Riano, 2016) person in direct contempt. (Sec. 1 Rule 71; Encinas
v. National Bookstore Inc., G.R. No. 162704, July 28,
Q: Lawyer Mendoza, counsel for the accused in 2005)
a criminal case, was cited for direct contempt
by Judge Tagle and was sentenced to 10 days of Indirect contempt
imprisonment. Lawyer Mendoza was placed in
prison immediately. Lawyer Mendoza Generally, the procedural requisites before the
manifested his readiness to post a bond and to accused be punished for indirect contempt are:
appeal the order by certiorari to stay its
execution but Judge Tagle said that the order is 1. Charge in writing;
immediately executory. Is Judge Tagle correct? 2. Opportunity for the person charged to
appear and explain his conduct; and
A: NO. An order of direct contempt is not 3. Opportunity to be heard by himself or
immediately executory or enforceable. The counsel. (Barredo-Fuentes v. Albarracion,
contemner must be afforded a reasonable remedy 456 SCRA 120; Riano, 2016)
to extricate or purge himself of the contempt.
Under Sec. 2, Rule 71, of the Rules of Court, a Since an indirect contempt charge partakes the
person adjudged in direct contempt by any court nature of a criminal charge, conviction cannot be
may not appeal therefrom but may avail himself of had merely on the basis of written pleadings. A
the remedies of certiorari or prohibition. The respondent in a contempt charge must be served
execution of the judgment shall be suspended with a copy of the motion/petition. Unlike in civil
pending resolution of such petition, provided such actions, the Court does not issue summons on the
person files a bond fixed by the court which respondent. While the respondent is not required
rendered the judgment and conditioned that he to file a formal answer similar to that in ordinary
will abide by and perform the judgment should the civil actions, the court must set the contempt
petition be decided against him. (Tiongco v. Judge charge for hearing on a fixed date and time on
Salao, A.M. No. RTJ-06-2009, July 27, 2006) which the respondent must make his appearance
to answer the charge. (Silverio Sr. v. Silverio Jr., G.R.
REMEDY AGAINST INDIRECT CONTEMPT; No. 186589, July18, 2014)
PENALTY
There are two ways by which a person can be
Remedy charged with indirect contempt, namely:

A person adjudged in indirect contempt may 1. The charge is initiated motu proprio by
appeal from the judgment or final order of the the court against which the contempt
court in the same manner as in criminal case. The was committed – it is commenced by an
appeal will not, however, have the effect of order of the same court or any formal
suspending the judgment if the person adjudged in charge requiring the respondent to show
contempt does not file a bond in an amount fixed cause why he should not be punished for
by the court from which the appeal is taken. This contempt.
bond is conditioned upon his performance of the 2. The charge is commenced by filing a
judgment or final order if the appeal is decided verified petition by someone other than
against him. (Sec. 11, Rule 71; Riano, 2016) the court – this petition shall be
accompanied by supporting particulars
HOW CONTEMPT PROCEEDINGS ARE and certified true copies of documents or
COMMENCED papers involved therein. The petition shall
likewise comply with the requirements for
Due to its primitive aspect, contempt proceeding is the filng of initiatory pleadings for civil
in the nature of a criminal action, hence procedural actions in the court concerned. (Sec. 4, Rule
and evidentiary rules of criminal action are applied 71)
as far as practicable. Doubts shall always be
resolved in favor of the person charged with NOTE: If the contempt charges arose out of or are
contempt. related to a principal action pending in the court,
the petition for contempt shall allege that fact but
Direct contempt such petition shall be docketed, heard and decided
separately, unless the court in its discretion orders
No formal proceeding is required to cite a person the consolidation of the contempt charge and the
in direct contempt. The court against which the

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principla action for joint hearing and decision. (Sec.
4, Rule 71) 1. Misbehavior an officer of a court in the
performance of his official duties or in his
Q: A complaint was filed by Ladano before the official transactions;
DARAB against Neri alleging that the latter 2. Disobedience of or resistance to a lawful
forcibly entered Ladano’s two-hectare land by writ, process, order, or judgment of a
fencing the property and destroying some of court, including the act of a person who,
the trees planted thereon. Ladano prayed that after being dispossessed or ejected from
he be declared the rightful "occupant/tiller" of any real property by the judgment or
the property, with the right to security of process of any court of competent
tenure thereon. Later, Ladano filed a Motion for jurisdiction, enters or attempts or induces
Urgent Issuance of Temporary Restraining another to enter into or upon such real
Order TRO before the Court. He alleged that, property, for the purpose of executing acts
despite the pendency of his appeal, Neri of ownership or possession, or in any
bulldozed the subject land and destroyed manner disturbs the possession given to
Ladano’s trees. The Court granted petitioner’s the person adjudged to be entitled thereto;
motion and issued a TRO. Thereafter, Ladano 3. Any abuse of or any unlawful interference
filed an Urgent Motion to Cite Neri in Contempt with the processes or proceedings of a
of Court. He alleged that Neri defied the Courts court not constituting direct contempt
TRO by bulldozing the subject property. Neri under section 1 of this Rule;
denied the allegations. He maintained that the 4. Any improper conduct tending, directly or
pictures attached to Ladano’s motion were indirectly, to impede, obstruct, or degrade
taken way back in 2003 and were not truthful the administration of justice;
representations of the current state of the 5. Assuming to be an attorney or an officer of
subject property. Is Neri guilty of indirect a court, and acting as such without
contempt? authority;
6. Failure to obey a subpoena duly served;
A. NO. A charge for indirect contempt, such as and
disobedience to a courts lawful order, is initiated 7. The rescue, or attempted rescue, of a
either motu proprio by order of or a formal charge person or property in the custody of an
by the offended court, or by a verified petition with officer by virtue of an order or process of a
supporting particulars and certified true copies of court held by him. (Sec. 3, Rule 71)
documents or papers involved therein, and upon
full compliance with the requirements for filing NOTE: Failure by counsel to inform the court of the
initiatory pleadings for civil actions in the court death of his client constitutes indirect contempt
concerned. It cannot be initiated by a mere motion, within the purview of Sec. 3, Rule 71, since it
such as the one that petitioner filed. Ladano failed constitutes an improper conduct tending to impede
to substantiate his factual allegation that the administration of justice.
respondents violated the TRO. The entries in the
barangay and police blotters attached to his motion NOTE: If a person charged with indirect contempt
carry little weight or probative value as they are fails to appear on that date after due notice without
not conclusive evidence of the truth thereof but justifiable reason, the court may order his arrest,
merely of the fact that these entries were made. just like the accused in a criminal case. The court
The pictures depicting bulldozing activities does not declare the respondent in default. (Riano,
likewise contained no indication that they were 2012)
taken after the Court’s issuance of the restraining
order. (Luciano Ladano v. Felino Neri, Edwin Soto, Sub judice rule
Adan Espanola and Ernesto Blanc G.R. No. 178622,
November 12, 2012) It restricts comments and disclosures pertaining to
the judicial proceedings in order to avoid
ACTS DEEMED PUNISHABLE prejudging the issue, influencing the court, or
AS INDIRECT CONTEMPT obstructing the administration of justice.

After a charge in writing has been filed, and an A violation of this rule may render one liable for
opportunity given to the respondent to comment indirect contempt under Sec. 3 (d) of Rule 71.
thereon within such period as may be fixed by the (Marantan v. Atty. Diokno, et al., G.R. No. 205956,
court and to be heard by himself or counsel, a February 12, 2014)
person guilty of any of the following acts may be
punished for indirect contempt:

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WHEN IMPRISONMENT SHALL BE IMPOSED Petition for Contempt filed before the Supreme
Court in an HLURB case proper?
When the contempt consists in the refusal or
omission to do an act which is yet in the power of A: NO. Petitioners should have sought to cite
the respondent to perform, he may be imprisoned respondents in contempt before the HLURB itself,
by order of the court concerned until he performs and not the Supreme Court. Where contempt is
it. (Sec.8, Rule 71) Indefinite incarceration may be committed against quasi--judicial entities, the filing
resorted to where the attendant circumstances are of contempt charges in court is observed only
such that the non-compliance with the court order when there is no law granting contempt powers to
is an utter disregard of the authority of the court these quasi-judicial entities. Executive Order No.
which has then no other recourse but to use its 648 (HLURB Charter) and the HLURB Revised
coercive power. Rules of Procedure respectively granted the
HLURB Board the power to cite and declare any
CONTEMPT AGAINST QUASI-JUDICIAL BODIES person, entity or enterprise in direct or indirect
contempt. (Spouses Trinidad v. FAMA Realty Inc., G.
The rules on contempt apply to contempt R. No. 203336, June 06, 2016)
committed against persons or entities exercising
quasi-judicial functions or in case there are rules
for contempt adopted for such bodies or entities
pursuant to law, Rule 71 shall apply suppletorily.

Quasi-judicial bodies that have the power to cite
persons for indirect contempt can only do so by
initiating them in the proper RTC. It is not within
their jurisdiction and competence to decide the
indirect contempt cases. The RTC of the place
where contempt has been committed shall have
jurisdiction over the charges for indirect contempt
that may be filed. (Sec. 12, Rule 71; LBP v. Listana,
G.R. No. 152611, August 5, 2003)

NOTE: Other acts or violations cannot be punished
as contumacious conduct by administrative or
quasi-judicial entities unless the governing law
specifically defines such.

Acts or violations may only be deemed
contemptuous if the governing laws specifically
defines such violation as a contempt of court or
unequivocally authorizes said official or body to
punish for contempt providing for at the same time
the penalty.

Q: Spouses Trinidad filed an action for specific
performance before the HLURB against FAMA.
After years of litigation, a Decision was issued
finally disposing the case. A writ of execution
was issued by the HLURB, however, the case
still continued and execution was not yet had.
This prompted spouses Trinidad to file a
Petition for Contempt before the Supreme
Court, praying that FAMA be cited for indirect
contempt for delaying the execution of the
HLURB Board’s April 2, 1997 Decision.
Petitioners further pray that the Court order
the dismissal of respondents’ HLURB appeal,
which to them is unauthorized and prohibited
under the HLURB Rules of Procedure. Is

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SPECIAL PROCEEDING inexpensive disposition of every proceeding. (De
Leon & Wilwayco, 2015)
It is a remedy by which a party seeks to establish a
status, a right or a particular fact. (Sec. 3[c], Rule 1) NOTE: Nowhere in the Rules of Court does it
categorically say that rules in ordinary actions are
Subject matter of Special Proceedings (SEGTA- inapplicable or merely suppletory to special
RR-HH-CCC-DD) proceedings. Provisions of the Rules of Court
requiring a certification of non-forum shopping for
1. Settlement of the estate of deceased complaints and initiatory pleadings, a written
persons; explanation for non-personal service and filing, and
2. Escheat; the payment of filing fees for money claims against
3. Guardianship and custody of children; an estate would not in any way obstruct probate
4. Trustees; proceedings. (Sheker v. Estate of Alice Sheker, G.R.
5. Adoption; No. 157912, Dec. 13, 2007)
6. Rescission and revocation of adoption;
7. Hospitalization of insane persons; The procedure of appeal in special proceedings
8. Habeas Corpus; should follow the procedure of appeal in civil
9. Change of name; actions. (De Leon & Wilwayco, 2015)
10. Voluntary dissolution of corporations;
11. Judicial approval of voluntary recognition Q: Ernie filed a petition for guardianship over
of minor natural children; the person and properties of his father,
12. Constitution of family home; Ernesto. Upon receipt of the notice of hearing,
13. Declaration of absence and death; and Ernesto filed an opposition to the petition.
14. Cancellation or correction of entries in the Ernie, before the hearing of the petition, filed a
civil registry. (Sec. 1, Rule 72) motion to order Ernesto to submit himself for
mental and physical examination which the
NOTE: The list under Rule 72, Section 1 is NOT court granted. After Ernie's lawyer completed
exclusive. the presentation of evidence in support of the
petition and the court's ruling on the formal
E.g. petition for liquidation of an insolvent offer of evidence, Ernesto's lawyer filed a
corporation, corporate rehabilitation, declaration demurrer to evidence. Ernie's lawyer objected
of nullity of marriage, protection orders (VAWC), on the ground that a demurrer to evidence is
arbitration, etc. not proper in a special proceeding. Was Ernie's
counsel's objection proper? (2015 BAR)
As long as the remedy seeks establishment of a
right, status, or a particular fact, then such may be A: NO. Under the Rule on Special Proceedings, in
called a special proceeding, regardless of whether the absence of special provisions, the rules
it is included in the foregoing enumeration. (De provided for in ordinary actions, shall be, as far as
Leon & Wilwayco, 2015) practicable, applicable in special proceedings. Here,
there are no special provisions on demurrer to
Applicability of General Rules evidence in the rules on guardianship. Hence, the
provisions on demurrer to evidence in ordinary
In the absence of special provisions, the rules actions are applicable to special proceedings. Such
provided for in ordinary actions, shall be, as far as application is practicable since it would be a waste
practicable, applicable in special proceedings. (Sec. of time to continue hearing the case if upon the
2, Rule 72) (2008 BAR) facts and the law, guardianship would not be
proper.
Like civil actions, the rules on special proceedings
must be liberally construed in order to promote
their objective of securing a just, speedy, and

Ordinary Action vs. Special Civil Action vs. Special Proceeding

ORDINARY ACTION SPECIAL CIVIL ACTION SPECIAL PROCEEDING
A party sues another for the Civil action subject to specific rules. A remedy to establish a status, a
enforcement or protection of a right, or a particular fact.
right, or prevention or redress of a
wrong.

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Involves two or more parties – Involves two or more parties. GR: May involve only one party,
plaintiff and defendant. who usually initiates the
proceedings with a petition, an
application, or a special form of a
pleading.

XPN: For correction or
cancellation of entries under Rule
108, the Local Civil Registrar
should be impleaded as a
respondent.
Governed by ordinary rules, Ordinary rules apply primarily but Governed by special rules,
supplemented by special rules. subject to specific rules. supplemented by ordinary rules if
applicable like rule on payment of
docket fees and the requirement
of certification against forum
shopping.
Initiated by a complaint, and Some are initiated by complaint, Initiated by a petition and parties
parties respond through an answer while some are initiated by respond through an opposition
after being served with summons.
petition. after notice and publication are
made.
Heard by courts of general Heard by courts of general Heard by courts of limited
jurisdiction. jurisdiction. jurisdiction.
Issues or disputes are stated in the Issues or disputes are stated in the Issues are determined by law.
pleadings of the parties. pleadings of the parties.
Adversarial. Some are adversarial while some Not adversarial except for
are not adversarial. correction or cancellation of
entries under Rule 108 (it may be
summary or adversarial depending
on what is sought to be rectified).
Based on a cause of action. Some special civil action does not GR: Not based on a cause of action.
require a cause of action.
XPN: Habeas corpus.
Subject matters of Special Proceedings

RULES SPECIAL JURISDICTION VENUE
PROCEEDING
Rules 73-90 Settlement of Estate RTC –when the gross value of 1. If resident of the
of Deceased Persons the estate exceeds ₱300,000 Philippines (whether
if outside Metro Manila or if it citizen or alien)– Court of
exceeds ₱400,000 if within the province/city where
Metro Manila the deceased resides at
the time of death
MTC –when the gross value of
the estate is ₱300,000 or less 2. If non- resident – Court of
if outside Metro Manila or any province/city in
₱400,000 or less if within which he or she had
Metro Manila. (Sec. 3, RA estate. (Sec. 1, Rule 73)
7691)

NOTE: MTC’s jurisdiction is
exclusive of interest,
damages of whatever kind,
attorney’s fees, litigation
expenses and costs.
Rule 91 Escheat RTC (Sec. 1, Rule 91) 1. Ordinary escheat
proceedings – RTC

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 REMEDIAL LAW
a. If resident– place where
the deceased last
resided; or
b. If non-resident– place
where the estate is
located. (Sec. 1)

2. Reversion of land to the
State for violation of the
Constitution – RTC where
the land lies in whole or in
part. (Sec. 5)
3. Unclaimed deposits (for 10
years) – RTC of the
city/province where the
bank is located.

NOTE: All banks located in
one province where the court
is located may be made
party- defendant in an action.
Rules 92-97; A.M. Guardianship Family Court – In case of 1. If resident– place where
No. 03-02-05-SC minors (Sec. 3, A.M. No. 03- minor/ incompetent
02-05-SC) resides (Sec. 1, Rule 92;
Sec. 3, A.M. No. 03-02-05-
RTC – In cases of SC ); or
incompetents other than 2. If non-resident– place
minors (Sec. 1, where minor/
Rule 92) incompetent has
property (Sec. 1, Rule 92;
Sec. 3, A.M. No. 03-02-05-
SC).
Rule 98 Trustees RTC–when the gross value of Where the will was allowed
the estate exceeds Php or where the property or
300,000 if outside Metro some portion thereof,
Manila or if it exceeds affected by the trust is
₱400,000 if within Metro situated (Sec. 1)
Manila

MTC–when the gross value of
the estate is ₱300,000 or less
if outside Metro Manila or
₱400,000 or less if within
Metro Manila (Sec. 33, BP 129,
as amended by RA 7691)
Rule 103 Change of name RTC (Sec. 1) Where petitioner resides for
at least 3 years prior to the
date of filing of the petition
(Sec. 1, in relation to Sec. 2)

Rule 108 Cancellation RTC (Sec.1) Where the corresponding
or correction of civil registry is located (Sec. 1,
entries in the civil in relation to Sec. 2)
registry

RA 9048 as 1. Administrative Local Civil Registry/Consul Local civil registry office
amended by RA No. correction of General (Sec. 3) where the record being
10172 effective entry/change of sought to be corrected or
August 15, 2012 first name or changed is kept (Sec. 3)
nickname

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2. Correction of date In case petitioner has already

of birth with migrated to another place in
regard to day and the country – with the local
month of birth but civil registrar of the place
not the year of where the interested party is
birth presently residing or
3. Change of sex of a domiciled (Sec. 3)
person where it is
patently clear that Citizens of the Philippines
there was a who are presently residing or
clerical or domiciled in foreign countries
typographical – with the nearest Philippine
error or mistake in Consulates (Sec. 3)
the entry
4. Clerical or
typographical
errors which can
be corrected by
the civil registry
Rule 107 Declaration of RTC (Sec. 1) Where the absentee resided
absence and death before his disappearance (Sec.
1)
A.M. No. 02-06-02- Domestic Adoption Family Court (Sec. 6) Where the adopter resides
SC (Sec. 6)
A.M. No. 02-6-02-SC Rescission of Family Court (Sec. 20) Where the adoptee resides
Adoption (Sec. 20)
A.M. No. 02-6-02-SC Inter-country Family Court or the Inter- Place where the child resides
Adoption Country Adoption Board or may be found
(Sec. 28)
It may be filed directly with
the Inter-Country Adoption
Board (Sec. 28)
A.M. No. 03-04-04- Custody of Minors Family Court (Sec. 3) Where petitioner resides or
SC where the minor may be
found (Sec. 3)

Rule 105 Judicial Approval of Family Court (Sec. 1) Where the child resides (Sec.
Voluntary 1)
Recognition of Minor
Natural Children
A.M. No.02-11-10-SC Declaration of nullity Family Court (Sec. 3[b]) Where petitioner or
of void marriage/ respondent has been residing
Annulment of for at least 6 months prior to
marriage the date of filing

In case of non-resident
respondent, where he may be
found, at the election of the
petitioner (Sec. 4)
A.M. No. 02-11-11- Legal Separation Family Court (Sec. 2[c]) Where petitioner or
SC respondent has been residing
for at least 6 months prior to
the date of filing

In case of non-resident
respondent, where he may be
found at the election of the
petitioner (Sec. 2[c])

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 REMEDIAL LAW
Art. 40, Family Code Petition for judicial RTC Where the petitioner resides
permission to marry
Family Code Summary Family Court (Sec. 5, RA Where the petitioner resides
Proceedings 8369) or where the child resides if it
involves minors
RA 8369 Actions mentioned in the Family Courts Act
1. Petitions on Family Court Where petitioner or
Foster care and respondent has been residing
Temporary for at least 6 months prior to
Custody the date of filing
2. Declaration of
Nullity of In case of non-resident
Marriage respondent, where he may be
3. Cases of Domestic found at the election of the
Violence Against petitioner
Women and
Children
Rule 102 Habeas Corpus SC, CA, RTC, MTC in the Where the aggrieved party is
province or city in case there detained (RTC)
is no RTC judge; SB only in
aid of its appellate
jurisdiction (Sec. 2)
A.M. No. 03-04-04- Habeas Corpus in Family Court, CA, SC (Sec. Where the petitioner resides
SC Relation to Custody of 20) or where the minor may be
Minors found
NOTE: A petition may be filed
with the regular court in the
absence of the presiding
judge of the Family Court,
provided, however, that the
regular court shall refer the
case to the Family Court as
soon as its presiding judge
returns to duty
A.M. No. 07-9-12-SC Writ of Amparo RTC, SB, CA or SC or any Where the threat, act or
justice thereof (Sec. 3) omission was committed or
any of its elements occurred
(Sec. 3)
A.M. No. 08-1-16-SC Writ of Habeas Data RTC, SB, CA or SC or any Where the petitioner or
justice thereof (Sec. 3) respondent resides, or that
which has jurisdiction over
the place where the data or
information is gathered,
collected or stored, at the
option of the petitioner (Sec.
3)
A.M. No. 09-6-8-SC Writ of Kalikasan SC or any stations of CA (Sec. Where the unlawful act,
3, Rule 7) omission or threat was
committed (Sec. 3)

Publication requirement in special proceedings

SPECIAL PROCEEDING PUBLICATION OF ORDER OF HEARING
Clerical or typographical errors; Once a week for 2 consecutive weeks (Sec. 5, RA 9048)
administrative change of first
name or nickname, the day and
month in the date of birth or sex of a
person where it is patently clear

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that there was a clerical or

typographical error or mistake in
the entry

Settlement of estate of deceased Once a week for 3 consecutive weeks (Sec. 2, Rule 74; Sec. 3; Rule 103;
persons Sec. 3, Rule 105; Sec. 12, A.M. No. 02-06-02-SC)
Judicial change of name
Judicial cancellation or correction
of entries in the civil registry
Domestic adoption
Inter-country adoption
Declaration of absence Once a week for 3 consecutive weeks (Sec. 4, Rule 107)

NOTE: The declaration of absence shall not take effect until six (6)
months after its publication in a newspaper of general circulation.
(Sec. 6, Rule 107)
Escheat Once a week for 6 consecutive weeks (Sec. 2, Rule 91)
Guardianship None
Trustees

Custody of minors
Rescission of adoption
Correction of clerical or
typographical error
Habeas corpus
Writ of amparo
Writ of habeas data
Writ of kalikasan
1. Petitions on foster care and
temporary custody
2. Cases of domestic violence
against women and children
Summary proceedings

NOTE: In declaration of nullity or annulment of marriage or legal separation, service of summons may be made
through publication once a week for 2 consecutive weeks. [Sec. 6(1), A.M. No. 02-11-10-SC, effective March 15,
2003]

Notification requirement in special proceedings

SPECIAL PROCEEDING TO WHOM NOTICE
MUST BE GIVEN
Settlement of estate of Executor/administrator/any interested party
deceased persons

Trustees All persons interested in the trust
Judicial change of name Interested parties/Solicitor General

Judicial cancellation or Persons named in the petition/Solicitor General/Civil Registrar impleaded as
correction of entries in the respondent
civil registry
Declaration of absence and Heirs/legatees/devisees/creditors/other interested persons
death

Administrative correction of Interested parties
entry/ change of first name
or nickname
Guardianship The minor if above 14 years of age/incompetent himself/Interested parties on
the property of the ward. General or special notice may be given.
Domestic Adoption Biological parents/Solicitor General
Rescission of Adoption Adopter

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 REMEDIAL LAW
Inter-country Adoption Biological parents, if any/guardian
Custody of Minors Biological parents/guardian, if any
Habeas corpus To the person to which the writ is directed
Writ of Amparo Respondent
Writ of habeas data Respondent
Writ of kalikasan Respondent
Summary proceedings Respondent and interested party
1. Petitions on foster care Solicitor General/Public Prosecutor
and temporary custody
2. Cases of domestic violence
against women and
children
Declaration of nullity of void City/Provincial Prosecutor/ Respondent
marriage/ Annulment of
marriage
Legal separation City/Provincial prosecutor/ Respondent
Escheat None

WHICH COURT HAS JURISDICTION

SETTLEMENT OF ESTATE OF DECEASED
PERSONS, VENUE, AND PROCESS RTC MTC
(RULE 73) Gross value of the estate Gross value of the estate
exceeds P300,000 is P300,000 or less
(outside Metro Manila) (outside Metro Manila)
Modes of settlement of estate or exceeds P400,000 or P400,000 or less
(within Metro Manila). (within Metro Manila).
1. Extrajudicial settlement (2001, 2005 (Sec. 19[4], BP 129, as (Sec. 33[1], BP 129, as
BAR) – if the decedent left no will and no amended by RA 7691) amended by RA 7691)
debts, and the heirs are all of age, or the
minors are represented by their judicial or VENUE IN JUDICIAL SETTLEMENT OF ESTATE
legal representatives duly authorized for (2003, 3005, 2010 BAR)
the purpose. (Sec. 1, Rule 74)
2. Judicial settlement – where proceedings RESIDENT NON-RESIDENT
in court are necessary, and includes the Court of the Court of the
following: province/city where province/city where
the deceased resided the estate may be
a. Summary settlement of estates of at the time of death, found. (Sec. 1, Rule 73)
small value – Whenever the gross whether a citizen or
value of the estate of a deceased alien. (Sec. 1, Rule 73)
person, whether he died testate or
intestate, does not exceed P10,000.00, Rule 73, Section 1 relates to venue, not jurisdiction.
the court, upon hearing and notice to In order to determine the proper venue in estate
interested persons, may proceed proceedings, one looks into the fact of residency in
summarily, without the appointment the Philippines and not the fact of citizenship. (De
of an executor or administrator. (Sec. Leon & Wilwayco, 2015)
2, Rule 74)
b. Testate proceedings – When the The determination of which court exercises
decedent left a last will and testament. jurisdiction over matters of probate depends upon
(Rules 75-79) the gross value of the estate of the decedent. Rule
c. Intestate proceedings – When the 73, Sec. 1 is deemed amended by BP 129, as
decedent died without a will, or died amended by RA 7691. (Lim v. CA, G.R. No. 124715,
with a will but was found invalid and January 24, 2000)
thereafter disallowed. (Rule 79)
d. Partition – When there is no will and As soon as the probate court acquires jurisdiction
the parties entitled to the estate would over all properties of the deceased, no other court
agree on the project of partition. (Rule can dispose of such properties without the probate
69) court’s approval, for that would be tantamount to

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divesting the latter with jurisdiction. (Union Bank

vs. Santibañez, G.R. No. 149926, February 23, 2005) The rule applies to both testate and intestate
proceedings. (Intestate Estate of Wolfson, G.R. No. L-
Once the court assumes jurisdiction, it shall not be 28054 June 15, 1972)
contested so far as it depends on the decedent’s
place of residence or the location of the estate. Testate proceedings take precedence over
intestate proceedings
As an exception, impropriety of venue may be
raised in two instances: When two proceedings were filed

1. In an appeal from the court, in the original 1. The intestate case should be consolidated
case; or with testate proceedings and the judge
2. When the want of jurisdiction appears on assigned to the testate proceeding should
the record continue hearing the two cases. (Roberts v.
Leonidas, G.R. No. L-55509 April 27, 1984)
NOTE: Venue may be assailed only when the estate 2. Testate proceeding takes precedence over
proceedings are brought up on appeal or if a plain intestate proceeding. If in the course of
reading of the records of the case will immediately intestate proceeding, it is found that
show that venue was improperly laid. decedent left a will, proceeding for probate
of will should replace the intestate
Whether a particular matter should be resolved by proceeding even if at that stage an
the Court of First Instance in the exercise of its administrator has already been appointed.
general jurisdiction or of its limited probate (Uriarte v. CFI of Negros Occidental, G.R.
jurisdiction is in reality not a jurisdictional Nos. L-21938-39, May 29, 1970) (2002
question. In essence, it is a procedural question BAR)
involving a mode of practice "which may be 3. The first court, upon learning that petition
waived." (Coca v. Borromeo, G.R. No. L-29545, for probate has been presented in another
January 31, 1978) court, may decline to take cognizance of
and hold in abeyance the petition before it,
Meaning of residency in settlement of estate and instead defer to the second court
which has before it the petition for probate
Residence is construed to be the personal, actual, of the decedent's alleged last will. If the
physical habitation, his actual residence or place of will is admitted to probate, it will
abode, not his legal residence or domicile. (Fule v. definitely decline to take cognizance.
CA, G.R. No. L-40502, November 29, 1976) (Cuenco v. CA, G.R. No. L-2474, October 26,
1973)
Principle of Preferential Jurisdiction/
Exclusionary Rule (2003, 2005, 2010 BAR) NOTE: In Uriarte, there was a showing that the
petitioner in the probate proceeding had
GR: The probate court first taking cognizance of knowledge prior to filing the testate proceeding
the settlement of the estate. that an intestate proceeding was already pending.
In Cuenco, the petition for probate was filed
NOTE: The rule on venue does not state that without knowledge of an existing intestate
the court with whom the estate or intestate proceeding, which was filed just a week earlier.
petition is first filed acquires jurisdiction. In
order for the court to acquire exclusive EXTENT OF JURISDICTION OF PROBATE COURT
jurisdiction, said court must also first take
cognizance of the same, to the exclusion of all A probate court acting as such exercises limited
other courts. (De Leon & Wilwayco, 2015) jurisdiction.

XPN: Estoppel by Laches (Uriarte v. CFI of Negros It is primarily concerned with the administration,
Occidental, G.R. Nos. L-21938-39, May 29, 1970) liquidation, and distribution of estate. (Union Bank
v. Santibañez, G.R. No. 149926, February 23, 2005)
The prohibition of filing an action relating to the
estate other than in the probate court where the It has the authority to:
petition for the settlement of estate was filed refers
only to courts in the Philippines and does not 1. Determine the heirs; and
include foreign courts. (Republic v. Villarama, Jr. 2. Make a just and legal distribution of the
G.R. No. 117733, September 5, 1997) estate.

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 REMEDIAL LAW
thereon; or
If the special proceeding had been instituted but 2. When a special proceeding had been
had been finally closed and terminated, or if a instituted but had been finally closed and
putative heir has lost the right to have himself terminated, and hence, cannot be re-
declared in the special proceedings as co-heir and opened. (Heirs of Ypon vs. Ricaforte, G.R.
he can no longer ask for its re-opening, then an No. 198680, July 8, 2013);
ordinary civil action can be filed for his declaration 3. The probate court may pass upon the issue
as heir in order to bring about the annulment of the of ownership where the interested parties
partition or distribution or adjudication of are all heirs; or the question is one of
properties belonging to the estate of the deceased. collation or advancement; or the parties
(Portugal and Portugal, Jr. v. Portugal-Beltran, G.R. consent to its assumption of jurisdiction
No. 155555, August 16, 2005) and rights of third parties are not
impaired. (Munsayac-De Villa v. CA, G.R. No.
Questions of title 148597, October 24, 2004)

GR: The question as to titles of properties should NOTE: The filiation of the paramour’s children
not be passed upon in testate or intestate must be settled in a probate or special
proceedings, but should be ventilated in a separate proceeding instituted for the purpose, not in
action. an action for recovery of property. (Reyes v.
Reyes, G.R. No. 154645. July 13, 2004)
XPN: For purposes of expediency and convenience,
the general rule is subject to exceptions, such that: Other questions which the probate court can
determine
1. The probate court may provisionally pass
upon in an intestate or testate proceeding 1. Who are the heirs of the decedent;
the question of inclusion in, or exclusion 2. The recognition of a natural child;
from, the inventory of a piece of property 3. The validity of disinheritance effected by
without prejudice to its final the testator;
determination in a separate action; 4. The status of a woman who claims to be
2. The probate court is competent to decide the lawful wife of the decedent; and
the question of ownership if the interested 5. Jurisdiction to pass upon validity of waiver
parties are all heirs, or the question is one of hereditary rights;
of collation or advancement, or the parties 6. The status of each heir;
consent to the probate court's assumption 7. Whether property in inventory is conjugal
of jurisdiction and the rights of third or exclusive property of the deceased
parties are not impaired. (Mutilan v. spouse; or
Mutilan, G.R. No. 216109, February 5, 2020, 8. Matters incidental or collateral to the
as penned by J. Leonen) settlement and distribution of the estate.
(Regalado, 2008)
Questions of Heirship
In the exercise of probate jurisdiction, the Regional
GR: Jurisprudence dictates that the determination Trial Courts may issue warrants and processes
of who are the legal heirs of the deceased must be necessary to compel the attendance of witnesses or
made in the proper special proceedings in court, to carry into effect their orders and judgments, and
and not in an ordinary suit for recovery of all other powers granted them by law. (Sec. 3, Rule
ownership and possession of property. This must 73)
take precedence over the action for recovery of
possession and ownership. Q: The probate court ordered the inclusion of a
parcel of land registered in the name of Richard
XPN: The need to institute a separate special in the inventory of the properties of the
proceeding for the determination of heirship may deceased Anna. Richard opposed the inclusion
be dispensed with: arguing that the probate court cannot
determine the issue of the ownership of the
1. For the sake of practicality, when the parcel of land inasmuch as the same was
parties in the civil case had voluntarily registered in his name. Is Richard correct?
submitted the issue to the trial court and
already presented their evidence A: YES. In probate proceedings, if a property
regarding the issue of heirship, and the covered by Torrens title is involved, the
RTC had consequently rendered judgment presumptive conclusiveness of such title should be

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given due weight, and in the absence of strong 2. Grants letters of administration (Rules 78 to
compelling evidence to the contrary, the holder 79);
thereof should be considered as the owner of the 3. Supervises and controls all acts of
property in controversy until his title is nullified or administration (Rules 80 to 85, Rule 87);
modified in an appropriate ordinary action, 4. Hears and approves claims against the estate
particularly, when as in the case at bar, possession of the deceased (Rule 86);
of the property itself is in the persons named in the 5. Orders payment of lawful debts (Rule 88);
title. (Luy Lim v. CA, G.R. No. 124715, January 24, 6. Authorizes sale, mortgage or any encumbrance
2000) of real estate (Rule 89); and
7. Directs the delivery of the estate to those
Jurisdiction over questions of title to property entitled thereto (Rule 90)

GR: A probate court cannot adjudicate or NOTE: The court acts as trustee, and as such
determine title to properties claimed to be a part of trustee, should jealousy guard the estate and see
the estate and equally claimed as belonging to that it is wisely and economically administered, not
outside parties. dissipated. (Timbol v. Cano, G.R. No. L-15445, April
29, 1961)
XPN: For the purpose of determining whether a
certain property should or should not be included
in the inventory, the probate court may pass upon SUMMARY SETTLEMENT OF ESTATES
the title thereto, but such determination is not (Rule 74)
conclusive and is subject to the final decision in a
separate action regarding ownership, which may
be instituted by the parties. (De Leon & Wilwayco, EXTRAJUDICIAL SETTLEMENT BY AGREEMENT
2015) BETWEEN HEIRS, WHEN ALLOWED

Settlement of conjugal property Requisites for extrajudicial settlement (IDA-
PPB)
When the marriage is dissolved by the death of the
husband or wife, the community property shall be 1. Decedent died intestate;
inventoried, administered and liquidated, and the 2. No outstanding debts at the time of settlement;
debts thereof paid, in the testate or intestate
proceedings of the deceased spouse. NOTE: No creditor should have filed a petition
for letters of administration within 2 years
If both spouses have died, the conjugal partnership after the decedent’s death
shall be liquidated in the testate or intestate
proceedings of either. (Sec. 2, Rule 73) (2003, 3. Heirs are all of legal age or minors represented
2005, 2010 BAR) by judicial guardians or legal representatives;
4. Settlement is made in a public instrument or
NOTE: A creditor cannot sue the surviving spouse by means of an affidavit, in case of a sole heir,
of a decedent in an ordinary proceeding for the duly filed with the RD;
collection of a sum of money chargeable against the 5. Publication in a newspaper of general
conjugal partnership and that the proper remedy is circulation in the province once a week for 3
for him to file a claim in the settlement of estate of consecutive weeks; and
the decedent. (De Leon & Wilwayco, 2015) 6. Filing of bond equivalent to the value of
personal property with the RD. (De Leon &
REASON: Upon the death of one spouse, the Wilwayco, 2015)
powers of administration of the surviving spouse
ceases and is passed to the administrator NOTE: The amount of bond is equivalent to the
appointed by the court having jurisdiction over the value of the personal property that forms part of
settlement of estate proceedings. (Alipio v. CA, G.R. the estate. This should be distinguished from the
No. 134100, September 29, 2000) amount of the bond for purposes of summary
settlement of estate, in which case, the amount of
GENERAL POWERS AND DUTIES OF A PROBATE the bond shall be fixed by the court.
COURT
With respect to real estate, there shall be a lien on
1. Orders the probate of the will of the decedent the real estate in favor of creditors, heirs, or other
(Rules 75 to 77); persons for two years after the distribution.

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In case of disagreement of heirs, they may state A: NO. Suzy can file a complaint to annul the
their oppositions in an ordinary action of partition. extrajudicial settlement and she can recover what
is due her as such heir if her status as an
It is indispensable that the decedent left no will. If illegitimate child of the deceased has been
the decedent left a will, both substantive and established. The publication of the settlement does
procedural law mandate that the same be not constitute constructive notice to the heirs who
presented and admitted into probate, and the had no knowledge or did not take part in it because
estate be distributed in accordance with the the same was notice after the fact of execution. The
decedent’s wishes. requirement of publication is intended for the
protection of creditors and was never intended to
The heirs cannot disregard the decedent’s deprive heirs of their lawful participation in the
disposition of one’s estate by resorting to decedent’s estate. She can file the action therefor
extrajudicial settlement as this is contrary to public within 4 years after the settlement was registered.
policy. (De Leon & Wilwayco, 2015)
TWO-YEAR PRESCRIPTIVE PERIOD
Effect of an extra-judicial partition depriving an
heir, creditor, or other person of his lawful GR: After the expiration of two (2) years from the
participation in the estate extrajudicial partition, distributees or heirs are
barred from objecting to an extrajudicial partition.
The court having jurisdiction of the estate may, by
order for that purpose, after hearing, settle the Provided, that the provision of Section 4 of Rule 74,
amount of such debts or lawful participation and barring distributees or heirs from objecting to an
order how much and in what manner each extrajudicial partition after the expiration of two
distribute shall contribute in the payment thereof, (2) years from such extrajudicial partition, is
and may issue execution, if circumstances require, applicable only:
against the bond or against the real estate
belonging to the deceased, or both. (Sec. 4, Rule 74) 1. To persons who have participated or taken
part or had notice of the extrajudicial partition;
Purpose of publication of settlement and
2. When all the persons or heirs of the decedent
The requirement of publication is geared for the have taken part in the extrajudicial settlement
protection of creditors and was never intended to or are represented by themselves or through
deprive heirs of their lawful participation in the their guardians. (Sampilo v. Court of Appeals,
decedent’s estate. (Cua v. Vargas, G.R. No. 156356, G.R. No. L- 10474, February 28, 1958)
October 21, 2006)
XPN: If on the date of the expiration of the period
NOTE: The procedure outlined in Section 1 of Rule of two (2) years, the person authorized to file a
74 is an ex parte proceeding. The publication of the claim is a minor or mentally incapacitated, or is in
does not constitute as constructive notice to the prison or outside the Philippines, he may present
heirs who had no knowledge or did not take part in his claim within one (1) year after such disability is
it because the same was notice after the fact of removed. (Sec. 5, Rule 74)
execution.
AFFIDAVIT OF SELF-ADJUDICATION BY SOLE
Q: Pinoy died without a will. His wife, Rosie, and HEIR
three children executed a deed of extrajudicial
settlement of his estate. The deed was properly If there is only one heir, he may adjudicate to
published and registered with the Office of the himself the entire estate by means of an affidavit
Register of Deeds. Three years thereafter, Suzy filed in the Office of the Registry of Deeds. (Sec. 1,
appeared, claiming to be the illegitimate child Rule 74)
of Pinoy. She sought to annul the settlement
alleging that she was deprived of her rightful Adjudication by an heir of the decedent’s entire
share in the estate. Rosie and the Three estate to himself by means of an affidavit is allowed
Children contended that (1) the publication of only if he is the sole heir to the estate. (Delgado
the deed constituted constructive notice to the Vda. de De la Rosa v. Heirs of Marciana Rustia Vda.
whole world and should therefore bind Suzy; de Damian, G.R. No. 155733, January 27, 2006)
and (2) Suzy’s action had already prescribed.
Are Rosie and the Three Children Correct? NOTE: Said rule is an exception to the general rule
Explain. (2009 BAR) that when a person dies leaving a property, it
should be judicially administered and the

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competent court should appoint a qualified Amount of bond is Amount of bond is to be

administrator, in the order established in Section 6, equal to the value of determined by the court
Rule 78 in case the decedent left no will, or in case personal property. irrespective of whether
he did, he failed to name an executor therein. the estate consists of
(Portugal v. Portugal-Beltran, G.R. No. 155555, If it is a real property, real or personal
August 16, 2005) it is subject to a lien property
for a period of two
SUMMARY SETTLEMENT OF ESTATES (2) years.
OF SMALL VALUE, WHEN ALLOWED Publication of notice Publication of notice
of the fact of once a week for three
Summary settlement of estate may be chosen by extrajudicial (3) consecutive weeks;
the heirs regardless of whether the decedent died settlement once a court may likewise
testate or intestate. (De Leon & Wilwayco, 2015) week for three (3) order that notice be
consecutive weeks in given to persons as the
The following requisites must be present: a newspaper of court may direct.
generalcirculation
1. The complaint must allege that the gross value There is also a hearing
of the estate of the deceased does not exceed to be held not less than
P10,000.00; one (1) month nor more
2. A bond has been duly filed in an amount fixed than three (3) months
by the court; and from the date of last
3. A proper hearing is held not less than 1 month publication of notice.
nor more than 3 months from date of last
publication of the notice. (Ibid.) REMEDIES OF AGGRIEVED PARTIES AFTER
EXTRAJUDICIAL SETTLEMENT OF ESTATE
NOTE: It is not proper to delay the summary
settlement of a deceased person just because an Claim against Grounds:
heir or a third person claims that certain the bond or
properties do not belong to the estate but to him. real estate a. If there is undue
deprivation of lawful
Such claim must be ventilated in an independent participation in the
action, and the probate court should proceed to the estate;
distribution of the estate, if there are no other legal b. Existence of
obstacles to it, for after all, such distribution must outstanding debts
always be subject to the results of the suit. against the estate. (Sec.
4, Rule 74)
Extrajudicial settlement vs. Summary
settlement of estate of small value Should be brought within
two (2) years after
EXTRAJUDICIAL SUMMARY settlement and distribution
SETTLEMENT SETTLEMENT of the estate
No court intervention Requires summary
adjudication filed with NOTE: Such bond and real
the MTC estate shall remain charged
The value of the estate Gross value of the estate with a liability to creditors,
is immaterial must not exceed P10,000 heirs or other person for the
Allowed only in Allowed in both testate full period of two (2) years
intestate succession and intestate succession after distribution,
There must be no Available even if there notwithstanding any
outstanding debts of are debts. It is the court transfer of real estate that
the estate at the time which will make may have been made (Ibid.)
of the settlement provision for its Compel the Should be brought within
payment settlement of two (2) years after
Resorted at the May be instituted by any estate in courts settlement and distribution
instance and by interested party even a of the estate
agreement of all creditor of the estate
heirs without the consent of
all the heirs

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Ordinary Action If the order of closure has and peaceful possession of
but not against already become final and the property involved.
the bond executory, the heir must file Prescription does not
an independent civil action commence to run against
of accion reivindicatoria to him because the action
recover his deprived share. would be in the nature of a
suit for quieting of title, an
NOTE: It must be brought action that is
within 10 years from the imprescriptible. (Gatmaytan
time the right of action v. Misibis Land, Inc., G.R. No.
accrues. (Art. 1144[c]) 222166, June 10, 2020)

After the lapse of two (2) NOTE: Also applicable in
years, an ordinary action judicial proceedings not
may be instituted against covered by summary
the distributees within the settlement of estate of small
statute of limitations but not value.
against the bond. Action to annul On the ground of fraud
a deed of which should be filed within
NOTE: Also applicable in extrajudicial four (4) years from the
judicial proceedings not settlement or discovery of fraud.
covered by summary judgment in
settlement of estate of small summary
value. settlement
Action for If there is preterition of Reopening of Upon motion of a person
Rescission compulsory heir tainted the who either:
(Applicable in with bad faith. (Art 1104, proceedings by
both NCC) motion in a. Has a legal interest
extrajudicial summary in the matter in
settlement or It must be availed of within settlement litigation;
summary five(5) years from the time b. Has such legal interest
settlement) the cause of action accrues. in the success of either
(Art. 1149, NCC) of the parties, or an
interest against both;
NOTE: Also applicable in or
judicial proceedings not c. Is so situated as to be
covered by summary adversely affected by
settlement of estate of small the distribution of
value. property in the custody
Action for GR: The prescriptive period of the court or of an
Reconveyance for the reconveyance of officer.
of Real fraudulently registered real
Property property is ten (10) years May be availed of after
(Applicable in reckoned from the date of judgment but before the
both the issuance of the finality of the closure order.
extrajudicial certificate of title. This ten-
settelment or year prescriptive period NOTE: Also applicable in
summary begins to run from the date judicial proceedings not
settlement) the adverse party covered by summary
repudiates the implied trust, settlement of estate of small
which repudiation takes value.
place when the adverse
party registers the land.

XPN: When the party
seeking reconveyance based
on implied or constructive
trust is in actual, continuous

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Petition for If proceedings are already ground of extrinsic fraud within four (4) years
reopening of closed and the heir is from its discovery, and if based on lack of
proceedings excluded, within a jurisdiction, before it is barred by laches or
(Summary prescriptive period of 10 estoppels. (Secs. 2&3, Rule 47)
Settlement) years.
NOTE: The prescriptive period under Section 4
NOTE: Also applicable in applies only to persons who participated, took part
judicial proceedings not in, or had notice of the settlement of the estate
covered by summary provided under Rule 74. Persons who did not
settlement of estate of small participate in the extrajudicial or summary
value. settlement of estate are not bound by the same.
Motion to If the heir is not excluded
deliver share but failed to receive his Recent Jurisprudence
(Extrajudicial share
settlement and An interested heir who was able to participate
summary NOTE: Also applicable in either in extrajudicial or summary settlement of
settlement) judicial proceedings not estate of the decedent has a period of two years
covered by summary after settlement and distribution to assail its
settlement of estate of small validity. (Cua v. Vargas, G.R. No. 156536, October 31,
value. 2006)
Petition for On grounds of fraud,
Relief accident, mistake, and Remedy
(Summary excusable negligencewithin
Settlement) 60 days after The remedy of an heir who is deprived of one’s
petitionerlearns of the share in estate because one did not participate,
judgment, final orderor take part, or had no notice is to file an action for
other proceeding to be reconveyance within ten years, which is based on
setaside, and not more than implied or constructive trust.
six (6) months after such
judgment orfinal order was An exception carved out by jurisprudence that an
entered (Rule 38). action for reconveyance is imprescriptible when
plaintiff, the legal owner, and not the defendant
Also applicable in judicial registered owner, is in possession. (Heirs of
proceedings. Saludares v. CA, G.R. No. 128254, January 16, 2004)

Three instances when an heir may be NOTE: Reconveyance can no longer be availed of
compelled to settle the decedent’s estate in once the property has passed to an innocent
court purchaser for value. The aggrieved parties may sue
for damages against co-heirs who have perpetrated
1. There has been undue deprivation of lawful the fraud.
participation in the estate on the part of an
heir or other interested person; Although the word “reconveyance” may appear in
2. There exist debts against the estate; and the title of the complaint, but it is clear from the
3. There has been undue deprivation of lawful allegations that the complainants never intended to
participation payable in money on the part of part with the property, as their signatures were
an heir or other interested person. forged, such complaint is one for annulment and
not merely for reconveyance. It is, therefore,
Q: May an order denying probate of will be imprescriptible. (Macababbad Jr. v. Masirag, G.R.
overturned after period to appeal has lapsed? No. 161237, January 14, 2009)
Why? (2002 BAR)

A: YES. A petition for relief may be filed on the PRODUCTION AND PROBATE OF WILL
grounds of fraud, accident, mistake or excusable
negligence within a period of 60 days after the
petitioner learns of the judgment or final order and NATURE OF PROBATE PROCEEDING
not more than 6 months after such judgment or
final order was entered. (Secs. 1&3, Rule 38) An 1. In rem - It is binding upon the
action for annulment may also be filed on the whole world.

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 REMEDIAL LAW
2. Mandatory - No will shall pass either real A probate court does not have jurisdiction to rule
or personal property unless it is proved with finality on the issue of ownership. Concededly,
and allowed in the proper court. (Sec.1, a probate court may provisionally pass upon
Rule 75) (2005, 2006, 2010 BAR) questions of ownership, but such determination is
without prejudice to the filing of a separate
However, a will may be sustained on the reinvindicatory action by the aggrieved party. The
basis of Article 1080 of the Civil Code liquidation of the estate of a testatator requires the
which states that: “If the testator should final resolution of all issues pertaining to
make a partition by an act inter vivos, or by ownership of property. (Sebastian, 2015)
will, such partition shall stand in so far as
it does not prejudice the legitime of the XPNs: Principle of practical considerations -
forced heirs” (Mang-Oy v. CA, G.R. No. L- wherein the court may pass upon the intrinsic
27421, September 12, 1986). validity of the will:

3. Imprescriptible - because of the public 1. In the case of absolute preterition without any
policy to obey the will of the testator. provision in favor of any devises or legatee
4. Doctrine of estoppel does not apply - (Nuguid v. Nuguid, G.R. No. L-23445, June 23,
the presentation and probate of a will are 1966); or
requirements of public policy, being 2. Where the defect is apparent on its face, the
primarily designed to protect the probate court may determine the intrinsic
testator's, expressed wishes, which are validity of the will even before its formal
entitled to respect as a consequence of the validity is established, as the probate of a will
decedent's ownership and right of may become a useless ceremony if the will is
disposition within legal limits. (Fernandez intrinsically invalid. (Regalado, 2008)
v. Dimagiba, G.R. No. L-23638, October 12,
1967) WHO MAY PETITION FOR PROBATE;
5. Res Judicata – once allowed, by the court, PERSONS ENTITLED TO NOTICE
it can no longer be questioned,
irrespective of any erroneous judgment Parties who may file petition for probate
because it serves as the law of the case.
(Balais v. Balais, G.R. No. L-33924, March 1. Executor (Sec. 1, Rule 76);
18, 1988) 2. Devisee or legatee named in the will (Ibid.);
3. Person interested in theestate (Ibid.);
NOTE: The Deed of Donation which is one
of mortis causa, not having followed the NOTE: An interested party is one who would
formalities of a will, is void and be benefited by the estate, such as an heir, or
transmitted no right to petitioner’s one who has a claim against the estate such as
mother. But even assuming that the a creditor. (Sumilang v. Ramagosa, G.R. No. L-
formalities were observed, since it was not 23135, Dec. 26, 1967)
probated, no right to the subject lots was
transmitted to Maria. (Aluad v. Aluad, G.R. 4. Testator himself during his lifetime; or
No. 176943, October 17, 2008) 5. Any creditor – as preparatory step for filing of
his claim therein. (Regalado, 2008)
Scope of Examination of a Will
Parties entitled to notice in a probate hearing
GR: The probate (allowance or authentication) of a
will refers to its due execution and settles only the 1. Designated or known compulsory heirs,
formal or extrinsic validity of the will. (Regalado, legatees and devisees of the testator resident
2008) in the Philippines at their places of residence,
at least twenty (20) days before the hearing, if
NOTE: The allowance of the decedent’s will is such places of residence beknown;
conclusive only as to its due execution. The 2. Person named executor, if he be not the
authority of the probate court is limited to petitioner;
ascertaining whether the testator, being of sound
mind, freely executed the will in accordance with NOTE: Petitioners, as nephews and nieces of
the formalities prescribed by law. (Nittscher v. the decedent, are neither compulsory nor
Nittscher, G.R. No. 160530, November 20, 2007) testate heirs who are entitled to be notified of
the probate proceedings under the Rules.
Respondent had no legal obligation to mention

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petitioners in the petition for probate, or to

personally notify them of the same. (Alaban v. ALLOWANCE OR DISALLOWANCE OF WILL
CA, G.R. No. 156021, September 23, 2005) (Rule 76)

Besides, assuming arguendo that petitioners
are entitled to be so notified, the purported GR: Probate proceedings are instituted only after
infirmity is cured by the publication of the the death of the testator (post-mortem probate)
notice. After all, personal notice upon the heirs
is a matter of procedural convenience and not XPN: The testator himself may, during his lifetime,
a jurisdictional requisite. (Ibid.) petition the court having jurisdiction for the
allowance of his will (ante-mortem probate)
3. Any person named as co-executor not
petitioning, if their places of residence be Rationale for ante-mortem probate
known; and
4. If the testator asks for the allowance of his own The Code Commission explains the reason for the
will, notice shall be sent only to his compulsory innovation thus: “Most of the cases that reach the
heirs. (Sec. 4, Rule76) courts involve either the testamentary capacity of
the testator or the formalities adopted in the
How jurisdiction is acquired execution of wills. There are relatively few cases
concerning the intrinsic validity of testamentary
1. Attachment of a copy of the will to the petition; dispositions. It is far easier for the courts to
or determine the mental condition of a testator during
2. Delivery of the will to the court his lifetime than after his death. Fraud,
intimidation and undue influence are minimized.
NOTE: Submission of the original will is not a Furthermore, if a will does not comply with the
jurisdictional requirement. requirements prescribed by law, the same may be
corrected at once. The probate during the testator’s
Custodian life, therefore, will lessen the number of contests
upon wills. Once a will is probated during the
Refers to a person who receives a will with lifetime of the testator, the only questions that may
knowledge, or under such circumstances that he remain for the courts to decide after the testator’s
ought to have known that he was receiving custody death will refer to the intrinsic validity of the
of a will. testamentary dispositions. It is possible, of course,
that even when the testator himself asks for the
Mere possession of a will does not make the holder allowance of the will, he may be acting under
thereof a custodian of the will. A custodian is duress or undue influence, but these are rare
chosen by a testator in advance and entrusted with cases.” (The Code Commission Report, p. 53)
the custody of a will by mutual agreement with the
testator. This custodianship creates a bailor-bailee Who may file petition for post-mortem probate:
relationship.
1. Executor;
Obligations of a custodian 2. Devisee;
3. Legatee; or
1. Obligated to keep and preserve the will safely 4. Any other person interested in the estate.
for the benefit of the testator until the latter’s
death Who may file petition for ante-mortem probate:
2. Must keep the contents of the will inviolate and
must not reveal its contents to anyone Only the testator himself.
3. Deliver the will either to the clerk of court in
the place where the decedent last resided or to CONTENTS OF PETITION FOR ALLOWANCE OF
the executor named in the will within twenty WILL
(20) days after he knows of the death of the
testator. A petition for the allowance of a will must show, so
far as known t the petitioner: (JuN VaLeC)
NOTE: The failure of a custodian to present the will
to the court for probate within the period given in 1. Jurisdictional facts (2012 BAR):
the rule does not preclude its probate.
a. Death of the testator;

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 REMEDIAL LAW
b. His residence at the time of his death; 2. Binding against everybody, even against the
c. If non-resident, the province where the State. (Coloma v. Coloma, G.R. No. L-19399, July
estate was left; and 31, 1965)
d. The fact that the will has been delivered to
the court (Regalado, 2008); Proving a will

2. The names, ages and residences of the heirs, WILL UNCONTESTED CONTESTED
legatees and devisees of the testator or Notarial will The court may All the
decedent; grant allowance subscribing
3. The probable value and character of the thereof on the witnesses and
property of the estate; testimony of one the notary
4. The name of the persons for whom letters are of the subscribing public
prayed; and witnesses only, if must testify as
5. If the will has not been delivered to the court, such witness to the due
the name of the person having custody of it. testifies that the execution and
(Sec. 2, Rule 76) will was executed attestation of
as is required by the will. (Sec.
NOTE: No defect in the petition shall render void law. (Sec. 5, Rule 11, Rule76)
the allowance of the will or the issuance of letters 76)
testamentary or of administration with the will
annexed. Holograp At least one The will shall
hic will witness who be allowed if at
Mere delivery of will is sufficient knows the least three (3)
handwriting and witnesses who
The court may act upon the mere deposit therein of signature of the know the
a decedent’s testament, even if no petition for its testator explicitly handwriting of
allowance is as yet filed. declares that the the testator
will and the explicitly
Where the petition for probate is made after the signature are in declare that
deposit of the will, the petition is deemed to relate the handwriting the will and
back to the time when the will was delivered. (De of the testator. the signature
Leon & Wilwayco, 2015) (Sec. 5, Rule76) are in the
handwriting of
Obligations of the court after the delivery of the testator.
will or petition for its allowance is filed (Sec.11, Rule
76)
1. Fix the time and place for proving the will Holograp The fact that he The burden of
2. Cause the notice of the time and place to be hic will affirms that the disproving
published for three successive weeks in a petitione holographic will shall be on the
newspaper of general circulation in the d by and the signature contestant.
province testator are in his own
himself handwriting shall
NOTE: The requirement of publication constitutes be sufficient.
a constructive notice that binds the whole world. A
settlement proceeding may be annulled if it is
shown that the notice is not published.
NOTE: In the absence of competent witness, and if
When it is the testator who files the petition for the court deems it necessary, expert testimony may
probate, only the testator’s compulsory heirs are be resorted to. (Sec. 5, Rule 76)
notified by the court. In such case, the publication
requirement is dispensed with. Remedy if none of the subscribing witnesses
resides in the province where probate is being
Effects of the allowance of a will conducted

The judgment or decree of the court allowing the A motion for taking of deposition of one or more of
will is: them. (Sec. 7, Rule 76)

1. Conclusive as to its due execution (Sec. 1, Rule
75) (1999, 2005, 2006, 2010 BAR); and

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Deposition may be resorted to if the deponent lives Substantial Compliance Rule

at least 100 kilometers away from the territorial
jurisdiction of the probate court. In the absence of bad faith, forgery, or fraud, or
undue and improper pressure and influence,
NOTE: The court may also authorize photographic defects and imperfections in the form of attestation
copy of the will to be made and to be presented to or in the language used therein shall not render the
the witness on his examination, who may be asked will invalid if it is proved that the will was in fact
questions with respect to it, and to the handwriting executed and attested in substantial compliance
of the testator and others, as would be pertinent with all the requirements of article 805. (Art. 809,
and competent if the original will were present. NCC)
(Ibid.)
NOTE: Separate wills which contain essentially the
Testimony of witnesses other than subscribing same provisions and pertain to properties which in
witnesses all probability are conjugal in nature, practical
considerations dictate their joint probate. (Vda. de
GR: The courts must examine the testimony of the Perez v. Tolete, G.R. No. 76714, June 2, 1994)
subscribing witnesses.
Article 809 establishes the doctrine of liberal
XPN: The court may examine witnesses other than interpretation.
the subscribing witnesses in the following
instances: Requisites of Doctrine of Liberal Interpretation:

1. The subscribing witnesses are dead or insane; 1. It applies solely to defects and imperfections in
or the form or language of the attestation clause;
2. None of them resides in the Philippines (Sec. 8, 2. Bad faith, forgery, fraud, undue and improper
Rule 76) pressure and influence must be ruled out
insofar as the execution of the attestation
Matters that shall be testified on by the other clause is concerned;
witnesses 3. The defects and imperfections in the form or
language shall be ignored and will not cause
1. The sanity of the testator; and the nullity of the will, if it is proved that the
2. Due execution of the will (Sec. 8, Rule 76) will was in fact executed and attested in
substantial compliance with Article 805; and
GROUNDS FOR DISALLOWING A WILL 4. The doctrine cannot be invoked in a
holographic will simply because it does not
The grounds for the disallowance of a will are have an attestation clause. (Sebastian, 2015)
exclusive and may be categorized into three main
groups: Once the will is admitted to probate

1. Non-compliance with legal formalities: If 1. The judge shall issue a certificate of allowance
not executed and attested as required by law of the will, which must be signed by the judge
2. Lack of testamentary capacity: If the testator and attested by the seal of the court;
was insane, or otherwise mentally incapable to 2. The clerk must record and file the certificate of
make a will, at the time of its execution; and allowance;
3. Will was not duly executed: 3. The will must be recorded in the register of
deeds of the province where the land is
a. If it was executed under duress, influence located.
of fear, or threats;
b. If it was procured by undue and improper
pressure or influence, on the part of the REPROBATE
beneficiary, or of some other person for (Rule 77)
his benefit; or
c. If the signature of the testator was
procured by fraud or trick, and he did not Reprobate is a special proceeding to establish the
intend that the instrument should be his validity of a will proved in a foreign country. (De
will at the time of fixing his signature Leon & Wilwayco, 2015)
thereto. (De Leon & Wilwayco, 2015, citing
Sec. 9, Rule 76) REQUISITES BEFORE A WILL PROVED ABROAD

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 REMEDIAL LAW
WOULD BE ALLOWED IN THE PHILIPPINES Philippine laws.

Evidence necessary for the reprobate or Compliance with Sections 3 and 4 of Rule 76, which
allowance of wills (PLEAD) require publication and notice by mail or
personally to the "known heirs, legatees, and
1. Due execution of the will in accordance with devisees of the testator resident in the Philippines"
the foreign laws; and to the executor, if he is not the petitioner, are
2. Testator has his domicile in the foreign required. (Vda. De Perez v. Tolete, G.R. No. 76714,
country and not in the Philippines; June 2, 1994)
3. The will has been admitted to probate in such
country; The necessity of presenting evidence on the foreign
4. The fact that the foreign tribunal is a probate laws upon which the probate in the foreign country
court; and is based is impelled by the fact that the courts
5. The laws of a foreign country on procedure cannot take judicial notice of them. (PCIB vs.
and allowance of wills. (Vda. De Perez v. Tolete, Escolin, G.R. Nos. L-27860 and L-27896, March 29,
G.R. No. 76714, June 2, 1994) 1974)

While foreign laws do not prove themselves in our EFFECTS OF REPROBATE
jurisdiction and our courts are not authorized to
take judicial notice of them, petitioner, as ancillary 1. The will shall have the same effect as if
administrator of the decedent’s estate was duty originally proved and allowed in the
bound to introduce in evidence the pertinent law of Philippines (Sec. 3, Rule 77);
the State of Maryland. (Ancheta v. Guersey- 2. Letters testamentary or administration with a
Dalaygon, G.R. No. 139868, June 8, 2006) will annexed shall extend to all estates of the
testator in the Philippines (Sec. 4, Rule 77)
Q: Johnny, a naturalized citizen of the USA but (2010 BAR);
formerly a Filipino citizen, executed a notarial 3. Such estate, after the payment of just debts and
will in accordance with the laws of the State of expenses of administration, shall be disposed
California, USA. Johnny, at the time of his death, of according to the will;
was survived by his niece Anastacia, an 4. So far as such will, may operate upon it, and
American citizen residing at the condominium the residue, if any, shall be disposed of as
unit of Johnny located at Fort Bonifacio, Taguig provided by law in cases of estates in the
City; a younger brother, Bartolome, who Philippines belonging to persons who are
manages Johnny’s fish pond in Lingayen, inhabitants of another country. (Sec. 4, Rule 77)
Pangasinan; and a younger sister, Christina, (2010 BAR)
who manages Johnny’s rental condominium
units in Makati City. Johnny’s entire estate NOTE: As a general rule, administration extends
which he inherited from his parents is valued at only to the assets of the decedent found within the
P200 million. Johnny appointed Anastacia as state or country where it was granted, so that an
executrix of his will. Can Johnny’s notarial will administrator appointed in one state or country
be probated before the proper court in the has no power over property in another state or
Philippines? (2014 BAR) country. (Herrera, 2005)

A: YES. Johnny’s notarial will can be probated Ancillary Administration
before the proper court in the Philippines. A
foreign will can be given legal effects in our When a person dies intestate owning property in
jurisdiction. Article 816 of the Civil Code states that the country of his domicile as well as in a foreign
the will of an alien who is abroad produces effect in country, administration shall be had in both
the Philippines if made in accordance with the countries. That which is granted in the jurisdiction
formalities prescribed by the law of the place of the decedent’s domicile is termed the principal
where he resides, or according to the formalities administration, while any other administration is
observed in his country. (Palaganas v. Palaganas, termed ancillary administration.
G.R. No. 169144, January 26, 2011).

Doctrine of processual presumption LETTERS TESTAMENTARY AND
ADMINISTRATION
There must be evidence to prove the existence of (Rule 78)
foreign law, otherwise the court should presume
that the law of the foreign country is the same as

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People who can administer the estate serve without a

bond or with
1. Executor– named by the testator in his will for only his
the administration of his property after individual bond
hisdeath; conditioned only
2. Administrator – appointed by the court in to pay the
accordance with the Rules or governing testator’s debts;
statutes to administer and settle the intestate but the court
testate; or may require the
3. Administrator with a will annexed– executor to
appointed by the court in cases when, execute a bond
although there is a will, the will does not in case of a
appoint any executor, or if appointed, said change in the
person is either incapacitated or unwilling to circumstance or
serve assuch. for other
sufficient cause.
NOTE: Any competent person may serve as Amount Compensation Compensation is
executor or administrator. There may be several of may be provided governed by Sec. 7,
executors named in the will. Letters testamentary compen for by the Rule 85.
may issue to such of them as are competent, accept sation testator in the
and give bond. (Sec. 4, Rule 78) If the named will, otherwise
executor does not qualify, then an administrator Sec. 7, Rule 85
may be appointed. (Sec. 6, Rule 78) will be followed.

Executor vs. Administrator Incompetent persons to serve as executor or
administrator
EXECUTOR ADMINISTRATOR
How Nominated by Appointed by the 1. Minors;
appoint the testator and court in these 2. Non-residents of the Philippines;
ed appointed by the instances: 3. Those who, in the opinion of the court, are
court. 1. The will did unfit to execute the duties of the trust by
not appoint reason of:
an executor;
2. The executor a. drunkenness;
appointed is b. improvidence;
incompetent, c. want of understanding or integrity; or
refused the d. conviction of an offense involving
appointment, moral turpitude; and
or failed to
give a bond; 4. Executor of an executor over the estate of the
3. The will was first testator. (Sec. 2, Rule 87)
disallowed;
or NOTE: In this jurisdiction, one is considered to
4. The deceased be unsuitable for appointment as administrator
died when he has adverse interest of some kind or
intestate. hostility to those immediately interested in the
Obligati Must present No such duty. estate. (Lim v. Diaz- Millarez, G.R. No. L-17633,
on to will to the court October 19, 1966)
present within 20 days
the will after knowledge The failure to file an income tax return is not a
to court of the testator’s crime involving moral turpitude as the mere
death or after he omission is already a violation regardless of the
knows that he fraudulent intent or willfulness of the individual.
was appointed (Republic v. Marcos, G.R. Nos. 130371& 130855,
as executor. August 4, 2009)
Bond Testator may Bond is always
direct that the required unless Authority issued to the person who
executor may exempted by law. administers the estate

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 REMEDIAL LAW
1. Letters testamentary – authority issued conjugal partnership but is also an heir of the
to an executor named in the will to deceased;
administer the estate (Sec. 4, Rule 78);
2. Letters of administration – authority 2. Next of kin;
issued by the court to a competent person
to administer the estate of the deceased NOTE: The next of kin hose who are entitled,
who died intestate (Sec. 6, Rule 78); or under the statute of distribution, to the
3. Letters of administration with a will decedent’s property; one whose relationship is
annexed – authority issued by the court to such that he is entitled to share in the estate as
a competent person to administer the distributed, or, in short, an heir. In resolving,
estate of the deceased if the executor therefore, the issue of whether an applicant for
named in the will refused to accept the letters of administration is a next of kin or an
office, or is incompetent. (Ibid.) heir of the decedent, the probate court
perforce has to determine and pass upon the
An executor or administrator occupies a position of issue of filiation. A separate action will only
trust and confidence. The judicial administrator is result in a multiplicity of suits. (Angeles v.
the legal representative not only of the testate or Maglaya, G.R. No. 153798, September 2, 2005)
intestate estate, but also of the creditors, and heirs
and legatees. (De Leon & Wilwayco, 2015) The preference under Section 6, Rule 78 for
the next of kin refers to the appointment of a
WHEN AND TO WHOM LETTERS OF regular administrator, and not of a special
ADMINISTRATION GRANTED administrator, as the appointment of the latter
lies entirely in the discretion of the court and is
When an administrator may be appointed not appealable. Not being appealable, the only
remedy against the appointment of a special
GR: When a person dies intestate, or, the testator, administrator is Certiorari under Rule 65 of
failed to name an executor in his will or the the Rules of Court. (Tan v. Gedorio, Jr., G.R. No.
executor named is incompetent, or refuses the 166520, March 14, 2008)
trust, or, fails to furnish the bond equipped by the
Rules of Court, then the decedent's estate shall be 3. In the discretion of the court, both surviving
judicially administered and the competent court spouse or next of kin;
shall appoint a qualified administrator the order 4. Such person as such surviving spouse or next
established. of kin, requests to have appointed, if
competent and willing to serve;
XPNs: 5. Principal creditors, if competent and willing to
serve, but only if the surviving spouse or next
1. When the heirs of a decedent, who left no will of kin, or the person selected by them be
and no debts due from is estate, may divide incompetent or unwilling or if the surviving
the estate either extrajudicially or in an spouse or next of kin neglects for 30 days after
ordinary action or partition without the death of the person to apply for
submitting the same for judicial administration or to request that
administration nor applying for the administration be granted to some other
appointment of an administrator by the court person; (2006 BAR)
(Sec. 1, Rule 74); and 6. Such other person as the court may select if
2. Where the deceased dies without pending there is no such creditor competent and willing
obligations, there is no necessity for the to serve. (Sec. 6, Rule 78)
appointment of an administrator to
administer the estate for him and to deprive When order of preference may be disregarded
the real owners of their possession to which
they are immediately entitled. (Spouses The order of preference may be disregarded for a
Butiong v. Plazo, G.R. No. 187524, August 5, valid cause. In case the persons who have the
2015) preferential right to be appointed are not
competent or are unwilling to serve,
ORDER OF PREFERENCE administration may be granted to such other on as
the court may appoint. (Villamor v. Court of
1. Surviving spouse Appeals, G.R. No. L-41508, June 27, 1988)

NOTE: The surviving spouse is the legitimate Rationale for the order of preference
spouse who is not only a partner in the

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The underlying assumption behind this rule is that marriage for 20 years, during which time they
those who will reap the benefit of a wise, speedy, purchased properties together. After Domencio
economical administration of the estate, or, on the died without a will, Gen filed a petition for
other hand, suffer the consequences of waste, letters of administration. Domencio’s siblings
improvidence or mismanagement, have the highest opposed the same on the ground that Gen has
interest and most influential motive to administer no legal personality. Decide. (2008 BAR)
the estate correctly. (Gonzales v. Aguinaldo, G.R. No.
74769, September 28, 1990) A: A petition for letters of administration may be
filed by any “interested person”. (Sec. 2, Rule 79)
Instances when co-administrators may be Gen would be considered an interested person if
appointed she was not married to Domenico, because she can
claim co-ownership of the properties left by him
1. To have the benefit of the judgment and under their property regime of a union without
perhaps at all times to have different interests marriage under conditions provided in the Family
represented (Gonzales v. Aguinaldo, G.R. No. Code. (Arts. 147-148, Family Code; San Luis v. San
74769, September 28, 1990); Luis, G.R. No. 133743, February 6, 2007)
2. Justice and equity also demand that opposing
sides in a probate proceeding be adequately NOTE: Where the right of the person filing a
represented in the administration of the petition for the issuance of letters of
decedent's estate (Vda. De Dayrit v. Ramolete, administration is dependent on a fact which has
G.R. No. L-59935, September. 30,1982); not been established or worse, can no longer be
3. Where the estate is large or, from any cause, an established, such contingent interest does not
intricate and perplexing one to settle. (Herrera, make her an interested party. (Tayag v. Tayag-
2005) Gallor, G.R. No. 174680, March 24, 2008)
4. To have all interested persons satisfied and the
representatives to work in harmony for the Grounds for opposing a petition for
best interest of the estate; or administration
5. When a person entitled to the administration
of an estate desires to have another competent 1. Incompetency of the person for whom letters
person associated with him in the office. are prayed therein; or
(Gabriel v. Court of Appeals, G.R. No. 101512, 2. Contestant’s own right to the administration.
August 7,1992) (Sec. 4, Rule 79) (2010 BAR)

OPPOSITION TO ISSUANCE OF LETTERS NOTE: Letters of administration may be granted to
TESTAMENTARY; SIMULTANEOUS FILING OF any qualified applicant, though it appears that
PETITION FOR ADMINISTRATION there are other competent persons having better
right to the administration, if such persons fail to
Who may oppose (2008 BAR) appear when notified and claim the issuance of
letters to themselves. (Sec. 6, Rule 79)
Any person interested in the will may state in
writing the grounds why letters testamentary Notice
should not issue to the persons named therein as
executors, or any of them, and the court, after The requirement as to notice is essential to the
hearing upon notice, shall pass upon the sufficiency validity of the proceedings in order that no person
of such grounds. (Sec. 1, Rule 79) may be deprived of his right or property without
due process of law. (Eusebio v. Valmores, G.R. No. L-
NOTE: The interest must be material and direct, 7019, May 31, 1955)
and not merely indirect or contingent. (Saguinsin v.
Lindayag, G.R. No. L-17759, December 17, 1962) Publication and notice jurisdictional

Who is an “Interested person” Publication and notice through publication of the
petition for the settlement of the estate of a
One who would be benefited by the estate, such as deceased person is jurisdictional, the absence of
an heir, or one who has a certain claim against the which makes court orders affecting other persons,
estate, such as a creditor. (San Luis v. San Luis, G.R. subsequent to the petition void and subject to
No. 133743, February 6, 2007) annulment. (De Leon & Wilwayco, 2015)

Q: Domencio and Gen lived without benefit of Time of filing a bond

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 REMEDIAL LAW
GR: Before an executor or administrator enters General powers of an administrator or an
upon the execution of his trust, and letters executor (Rule 84)
testamentary or of administration issue. (Sec. 1,
Rule 81) 1. In case of a deceased person:

NOTE: The term of a bond does not usually expire a. To have access to, and examine and take
until the administration has been closed and copies of books and papers relating to the
terminated in the manner directed by law. Thus, as partnership; and
long as the probate court retains jurisdiction of the b. To examine and make invoices of the
estate, the bond contemplates a continuing liability, property belonging to the partnership.
notwithstanding the non-renewal of the bond.
(Luzon Surety v. Quebrar, G.R. No. L-40517, January 2. To maintain in tenantable repairs, houses and
31, 1984) other structures and fences and to deliver the
same in such repair to the heirs or devisees
XPN: The executor may serve without a bond if the when directed to do so by the court;
testator so directs, or with only his individual bond, 3. To make improvements on the properties
conditioned only to pay the debts of the testator. under administration with the necessary court
(Sec. 2, Rule 81) approval except for necessary repairs; and
4. To possess and manage the estate when
Conditions of the bonds necessary for the payment of debts and of
expenses of administration.
1. Make within three months a true and complete
inventory of the property of the deceased NOTE: For an executor or administrator to freely
which came to his knowledge and possession; exercise his rights and duties, he shall submit a
2. Administer the estate and pay and discharge written application to the court having jurisdiction
all debts, legacies and charges, including of the estate. (Sec. 1, Rule 84)
dividends declared by the court from the
proceeds; Restrictions on the powers of Administrator or
3. Render a true and just account within one year Executor
and when required by the court; and
4. Perform all orders of the court. 1. He cannot acquire by purchase, even at public
or judicial action, either in person or mediation
Requirement of a further bond of another, the property under administration
(par. 3, Art. 1491, NCC);
The court may require further bond when there is: 2. He cannot borrow money without authority
from the court;
1. Change in circumstances of the executor or 3. He cannot speculate with funds under
administrator or for other sufficient cause (Sec. administration;
2, Rule 81); 4. He cannot lease the property under
2. Sale, mortgage, or encumbrance of the administration for more than one (1) year;
property of the estate conditioned that such
administrator or executor will account for the NOTE: The administrator has the power to
proceeds of the sale or encumbrance. (Sec. 7, enter into lease contracts involving the
Rule 89) properties of the estate even without prior
judicial authority and approval (Mananquil v.
Q: May the probate court order the forfeiture of Villegas, A.M. No. 2430, August 30, 1990), only if
the administrator’s bond? the period of such lease contract does not
extend beyond 1 year.
A: YES. The execution or forfeiture of an
administrator’s bond is deemed to be necessary 5. He cannot continue the business of the
and an incident of administration proceedings, as deceased unless authorized by the court;
much as its filing and the fixing of its amount. 6. He cannot profit by the increase or decrease in
Therefore, the probate court may have the bond the value of the property under
executed in the same proceedings. (Phil. Trust Co. v. administration;
Luzon Surety Co., G.R. No. L- 13031, May 30, 1961) 7. He cannot exercise the right of legal redemption
over a portion of the property owned in
POWERS AND DUTIES OF EXECUTORS AND common sold by one of the other co-owners;
ADMINISTRATORS; RESTRICTIONS ON THE and
POWERS 8. He may only deliver properties of the estate to

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 SPECIAL PROCEEDINGS

the heirs after payment of the debts, funeral An officer of the court who is subject to its
charges and other expenses against the estate, supervision and control, expected to work for the
except when authorized by the court. (Silverio, best interest of the entire estate, with a view to its
Jr. v. CA, G.R. No. 178933, September 16, 2009) smooth administration and speedy settlement. (De
Leon & Wilwayco, 2015)
Legal personality of heirs to bring suit in behalf
of the estate A special administrator may be appointed when:

1. Pending filing of administration proceedings 1. There is delay in granting letters testamentary
– The heirs without doubt have legal or of administration by any cause including an
personality to bring suit in behalf of the estate appeal from the allowance or disallowance of a
of the decedent in accordance with the will; (Sec. 1, Rule 80) or
provision of Article 777 of the Civil Code. This 2. The executor or administrator is a claimant
is the foundation of the principle that the against the estate he represents. The special
property, rights and obligations to the extent administrator shall, in the same adjustment of
and value of the inheritance of a person are such claim, have the same power and be
transmitted through his death to another or subject to the same liability as the general
others by his will or by operation of law. administrator or executor in the settlement of
(Riofero v. CA, G.R. No. 129008, January 13, other claims. (Sec. 8, Rule 86)
2004)
NOTE: Only one special administrator at a time
2. Even after administration proceedings have may be appointed, since the appointment is merely
commenced; prior to appointment of temporary.
administrator – This is the proper modality
despite the total lack of advertence to the heirs When appointed, a special administrator is
in the rules on party representation in Section regarded, not as a representative of the agent of
3, Rule 3 and Section 2, Rule 87. (Riofero vs. CA, the parties suggesting the appointment, but as the
G.R. No. 129008. January 13, 2004) In such administrator in charge of the estate, and in fact, as
instances, the heirs cannot be expected to wait an officer of the court subject to the supervision
for the appointment of an administrator; then and control of the probate court. (Corona v. Court of
wait further to see if the administrator Appeals, G.R. No. L-59821, August 30, 1982)
appointed would care enough to file a suit to
protect the rights and the interests of the Purpose of the special administrator
deceased; and in the meantime do nothing
while the rights and the properties of the To preserve the estate until it can pass into the
decedent are violated or dissipated. (Gochan v. hands of a person fully authorized to administer it
Young, G.R. No. 131889. March 12, 2001) for the benefit of creditors and heirs. (Tan v.
Gedorio, Jr., G.R. No. 166520, March 14, 2009)
3. When there is an appointed administrator
Qualifications of a special administrator
GR: The heirs have no legal standing to sue for
the recovery of property of the estate during The appointment should be within the sound
the pendency of the administration discretion of the court. The fundamental and legal
proceedings principles governing the choice of a regular
administrator should also be taken into account in
XPNS: the appointment of a special administrator.
a. If the executor or administrator is (Herrera, 2005)
unwilling or refuses to bring suit; and
b. When the administrator is alleged to A court is not required to follow the order of
have participated in the act complained preference prescribed under Rule 78, Section 6 for
of and he is made a party defendant. the appointment of a special administrator. The
(Riofero v. CA, G.R. No. 129008. January preference accorded to the surviving spouse refers
13, 2004) to the appointment of a regular administrator or
administratrix, not to that of a special
APPOINTMENT OF SPECIAL ADMINISTRATOR administrator, and that the order appointing the
latter lies within the discretion of the probate
Special Administrator court. (De Leon & Wilwayco, 2015)

Publication

313

 REMEDIAL LAW
Notice through publication of the petition for the Leon & Wilwayco, 2015)
settlement of the estate of a deceased person is
jurisdictional, the absence of which makes the Regular administrator v. Special administrator
court orders affecting other persons, subsequent to
the petition void and subject to annulment. (De REGULAR SPECIAL
Guzman vs. Angeles, G.R. No. 78590, June 20, 1988) ADMINISTRATOR ADMINISTRATOR
Manner of challenging the appointment
Powers and Duties of a Special Administrator Order of appointment Appointment may only
may be the subject of be challenged through
1. Possess and take charge of the goods, chattels, an appeal. special civil action for
rights, credits and estate of the deceased; certiorari.
2. Preserve the same; Obligations to pay debts
3. Commence and maintain suits for the estate; One of the obligations Not empowered to pay
is to pay and discharge unless ordered by the
NOTE: While a special administrator may all the debts of the court.
commence and maintain suits under Sec. 2 estate.
Rule 80, he cannot be sued by a creditor for the Instances when appointment is made by the
payment of the debts of the deceased. Such suit court
must await the appointment of a regular - Decedent died - There is delay in
administrator. (De Gala v. Gonzales, G.R. No. L- intestate granting letters
30289, March 26, 1929) - Decedent fails to testamentary
appoint executor or
4. Sell only: in the will administration;

- Will is disallowed - When the
a. Perishable property; and executor or
- No competent and
b. Other property ordered sold by the court; administrator is a
willing E/A
claimant against
5. Pay debts only as may be ordered by the court the estate, but
(Sec. 2, Rule 80); only to such
6. Prepare and return a true inventory of the portion over
decedent’s estate that may come into his which there is a
possession or knowledge; claim
7. Render an accounting of the decedent’s estate

he received;
When court may revoke letters of
8. Deliver the decedent’s estate to the person
administration
appointed as executor or administrator or such

other person authorized to receive them (Sec.
1. When the decedent’s will is discovered and
2, Rule 80); and admitted to probate; and
9. Submit an inventory and render an accounting
of his administration as required by the terms NOTE: The fact of discovery does not ipso facto
of his bond. (Sec. 4, Rule 81)
nullify the letters of administration. The

decedent’s will must be probated first before
Order appointing a special administrator NOT the court may revoke the letters of
appealable
administration.


The appointment or removal of special
2. When letters of administration are illegally
administrators, being discretionary, is thus
issued without jurisdiction.
interlocutory and may be assailed through a

petition for certiorari under Rule 65 of the Rules of
GROUNDS FOR REMOVAL OF ADMINISTRATOR
Court. The order cannot be the subject of an appeal.

(Manungas v. Loreto, G.R. No. 193161, August 22,
1. Neglects to render an account and settle the
2011)
estate according to law;
2. Neglects to perform an order or judgment of
Extinguishment of powers of special
the court, or a duty expressly provided by the
administrator
Rules;
3. Absconds;
The special administrator’s powers exist until the 4. Becomes insane; or
questions causing the delay are decided or when 5. Becomes incapable or unsuitable to discharge
the executor or administrator is appointed. (De

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 SPECIAL PROCEEDINGS

the trust. (Sec. 2, Rule 82) of administration is to terminate the authority of

the executor or administrator, but the acts of the
NOTE: These grounds are not exclusive. The executor or administrator, done in good faith prior
position of the administrator is one of confidence to the revocation of the letters will be protected,
and when the court finds that the administrator is and similar protection will be extended to rights
not entitled to such confidence, it is justified in acquired under a previous grant of administration.
withdrawing the appointment and giving no valid (Vda. de Bacaling v. Laguna, et al. G.R. No. L-26694,
efficacy thereto. (Cobarrubias v. Dizon, G.R. No. L- December 18, 1973)
225, February 26, 1946)
Duties of administrator upon revocation of the
Other grounds for removal of an executor or letters
administrator
1. Surrender the letters to the court; and
1. Death; 2. Render his account within such time as the
2. Resignation; court may direct. (Sec. 1, Rule 82)
3. An administratrix who paid the family
expenses and attorney’s fees out of the estate Powers of a new executor or administrator
without previous court authority (Cotia v. after the first one resigns or is removed
Jimenez, G.R. No. L-12132, December 22,1958);
4. False representation by an administrator in 1. To collect and settle the estate not
securing his appointment (Cabarubbias v. administered;
Dizon, G.R. No. L-225, February 26,1946); 2. To prosecute and defend actions
5. An administrator who holds an interest commenced by or against the former
adverse to that of the estate or by his conduct executor or administrator; and
showing his unfitness to discharge the trust 3. To recover execution on judgments in the
(Garcia v. Vasquez, G.R. Nos. L-26615, L-26884, name of the former executor or
L-27200, April 30,1970); administrator.
6. An administrator who has the physical
inability and consequent unsuitability to NOTE: An authority granted by the court to the
manage the estate. (De Borja v. Tan, G.R. No. L- former executor or administrator for the sale or
6476, November 18,1955) mortgage of real estate may be renewed in favor of
such person without further notice or hearing. (Sec.
Remedy of creditors against administrator 4, Rule 82)

Concerning complaints against the general Accountability
competence of the administrator, the proper
remedy is to seek the removal of the administrator GR: The executor or administrator is accountable
in accordance with Sec. 2, Rule 82. While the for the whole estate of the deceased.
provision is silent as to who may seek with the
court the removal of the administrator, a creditor, XPN: He is not accountable for properties which
even a contingent one, would have the personality never came to his possession.
to seek such relief. After all, the interest of the
creditor in the estate relates to the preservation of XPN to the XPN: When through untruthfulness to
sufficient assets to answer for the debt, and the the trust or his own fault or for lack of necessary
general competence or good faith of the action, the executor or administrator failed to
administrator is necessary to fulfill such purpose. recover part of the estate which came to his
(Hilado v. CA, G.R. No. 164108, May 8, 2009) knowledge. (Sec. 1, Rule 85)

NOTE: The rules provide for same grounds for Liability for damages
revocation of letters of administration/removal of
executor and administrator except in case of the The executor or administrator is liable for damages
ground of revocation of letters of administration if when:
a will of decedent is discovered. (Sec. 1, Rule 82)
(2002 BAR) 1. He neglects or unreasonably delays to raise
money, by collecting the debts or selling the
Effect of revocation of letters testamentary or real or personal estate of the deceased;
of administration 2. He neglects to pay over the money he has in his
hands;
The effect of revocation of letters testamentary or 3. The value of the estate is lessened;

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 REMEDIAL LAW
4. Unnecessary cost or interest accrues; and al, G.R. No. L-1849, October 25, 1949)
5. The persons interested suffer loss. (Sec. 5, Rule
85) NOTE: Claims originating after the decedent’s
death, may be allowed as expenses of
Expenses of administration administration which may be collected from the
administrator or executor personally or by motion
Expenses of administration refer to those in the testate or intestate proceedings without the
necessary for the management of the property, for formality and limitation provided for money claims
protecting it against destruction or deterioration, against the decedent. (Herrera, 2005)
and possibly for the production of fruits. (De
Guzman v. De Guzman-Carillo, G.R. No. L-29466, May A money claim against an estate is more akin to a
18, 1978) motion for creditors’ claims to be recognized and
taken into consideration in the proper disposition
Expenses NOT considered as necessary of the properties of the estate.

1. Expenses on the anniversary of the death of A money claim is only an incidental matter in the
the deceased (De Guzman v. De Guzman-Carillo, main action for the settlement of the decedent’s
G.R. No. L-29466, May 18, 1978); estate. (Sheker v. Estate of Alice Sheker, G.R. No.
2. Expenses incurred by a presumptive heir for 157912, December 13, 2007)
her appearance and that of her witnesses at
the trial to oppose the probate of an alleged Notice to file claims against the estate
will (Asinas v. CFI of Romblon, G.R. No. L-29038,
March 10, 1928); It is the duty of the court immediately after
3. Expenses for the settlement of the question as granting letters testamentary or of administration
who are entitled to the estate left by the to issue a notice requiring all persons having
deceased (Johannes v. Imperial, G.R. No. L- money claims to file them in the office of the clerk
19153, June 30, 1922); of court. (Sec. 1, Rule 86)
4. Expenses incurred by the executor or
administrator to procure a bond (Sulit v. Purpose of presentation of claims
Santos, G.R. No. L-34895, March 15,1932);
5. Personal expenses of the occupant of the heir The purpose is to protect the estate of the
of the family residences (De Guzman v. De deceased. Further, its primary object is to apprise
Guzman-Carillo, G.R. No. L-29466, May 18, the administrator and the probate court of the
1978); or existence of the claim so that a proper and timely
6. Expenses for stenographic notes, unexplained arrangement may be made for its payment in full
representation expenses. (Ibid.) or by pro rata portion in the due course of the
administration. (Herrera, 2005)

CLAIMS AGAINST THE ESTATE Publication and notice to creditors
(Rule 86)
The notice to creditors shall be published for three
(3) successive weeks in a newspaper of general
They are money claims of pecuniary nature which circulation in the province.
could have been enforced against the deceased in
his lifetime and could have been reduced to simple It shall also be posted for the same period in four
money judgments. (4) public places in the province and in two (2)
public places in the municipality where the
GR: Not all money claims may however be decedent last resided. (Sec. 3, Rule 86)
presented, but only those which are proper against
the decedent, that is, claims upon a liability Privity in estate
contracted by the decedent before his death.
It denotes the privity between assignor and
XPN: Claims arising after his death cannot thus be assignee, donor and donee, grantor and grantee,
presented except: joint tenant for life and remainderman or
reversioner and their respective assignees, vendor
1. Funeral expenses; and by deed of warranty and a remote vendee or
2. Expenses of the last sickness of the decedent. assignee. A privy in estate is one who derives his
(Testate Estate of deceased Gabin v. Melliza, et. title to the property in question by purchase; one
who takes by conveyance. As successors-in-

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interest, they derive their right from and are in the Guidelines as to the statute of non-claims are as
same position as their predecessor in whose shoes follows:
they now stand. (Constantino v. Heirs of
Constantino, Jr., G.R. No. 181508, October 2, 2013) 1. The period fixed by probate court must not be
less than 6 months nor more than 12 months
TIME WITHIN WHICH CLAIMS SHOULD BE from the date of the first publication of the
FILED; EXCEPTIONS notice.
2. Such period once fixed by the court is
GR: It should be filed within the time fixed in the mandatory and it cannot be shortened.
notice which shall not be less than 6 months nor 3. The statute of non-claims supersedes the
more than 12 months from the date of the first statute of limitations.
publication of the notice thereof. Such period when
fixed by the probate court becomes mandatory and NOTE: Even if a claim has not yet prescribed under
any action not filed within the period shall be the statute of limitations, if such claim is not made
barred forever. (Sec. 2, Rule 86) with the probate court within the time set forth in
the notice, the creditor may no longer collect
XPNs: because of the statue of non- claims.

a. The creditor may apply with the court for a Effect of statute of non-claims
new period not exceeding one (1) month from
the order allowing the same for just cause (Sec. The statue of non-claims effectively shortens the
2, Rule 86); and statute of limitations as regards the right of action
b. Creditor may set up his claim as a counterclaim to pursue the debtor is concerned. Still, before a
in the action filed by the executor or creditor may go against the estate, the claim must
administrator. (Sec. 5, Rule 86) both within the statute of limitations and statute of
non-claims. In short, the statute of limitations and
NOTE: Acknowledgement by the testator of a statute of non-claims must both concur before a
specific debt in his will does not relieve the creditor may collect against the estate. (De Leon &
creditor from the duty of filing his claim in the Wilwayco, 2015)
testate or intestate proceeding. (Herrera, 2005)
Q: A borrowed from B a sum of money in the
NOTE: The 1-month period does not commence year 1990 as evidenced by a written contract of
from the expiration of the original period for filing loan. A died in 2001. During the probate
claims. It begins from the date of the order of the proceedings of A, the court ordered that all
court allowing said filing. (Barredo v. CA, G.R. No. L- claims against the estate must be filed from
17863, November 28, 1962) The pendency of the June 2001 to January 2002. When B filed his
action before the regular courts was cited as a good claim on July 2001, the court granted the same.
excuse for the tardiness of the claim. (Eschaus v. Is the allowance of the claim correct?
Blanco, G.R. No. L-30453, December 4, 1989)
A: NO. The period to collect has already prescribed.
Reasons for the rule When A died in 2001, the prescriptive period of 10
years from the time A borrowed money from B in
1. To protect the estate of the deceased by 1990 has already lapsed. Thus, even if the claim
informing the executor or administrator of the was filed within the statute of non-claims, the
claims against it, thus enabling him to examine statute of limitations has already barred the filing
each claim and to determine whether it is a of the claim.
proper one which should be allowed;
2. Speedy settlement of affairs of deceased; and Q: The trial court admitted to probate the
3. Early delivery of property to distributees, holographic will of Alice and thereafter issued
legatees, or heirs. (Union Bank of the an order for all the creditors to file their
Philippines v. Santibanez, G.R. No. 149926, respective claims against the estate. Alan filed a
February 23, 2005) contingent claim for agent's commission due
him in the event of the sale of certain parcels of
STATUTE OF NON-CLAIMS land belonging to the estate and
reimbursement for expenses incurred. The
The statute of non-claims is a period fixed by the executrix of the estate moved for the dismissal
rule for the filing of claims against the estate for of said money claim against the estate on the
examination and allowance. (Herrera, 2005) grounds that Alan failed to attach a certification
against non-forum shopping. The trial court

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 REMEDIAL LAW
dismissed the case. Is the trial court correct? A deficiency judgment is a contingent claim and
therefore must be filed with the probate court
A: NO. A money claim is only an incidental matter where the settlement of the deceased is pending,
in the main action for the settlement of the with the period fixed for the filing of the claims.
decedent's estate. Hence, Alan’s contingent money (First National City Bank of New York v. Cheng Tan,
claim, not being an initiatory pleading, does not G.R. No. L-14234, February 28, 1962)
require a certification against non-forum shopping.
(Sheker v. Estate of Alice O. Sheker, G.R. No.157912, NOTE: Taxes due and assessed after the death of
December 13, 2007) the decedent should not be presented in the form
of a claim. The court in the exercise of its
Waiver of statute of non-claims administrative control over the executor or
administrator may direct him to pay such taxes.
If the judgment in a civil case has become final, the Moreover, heirs even after distribution are liable
estate cannot be heard to say that the judgment for such taxes. (Vera v. Fernandez, G.R. No. L-31364,
reached after a full-dress trial on the merits will March 30, 1979)
now go for naught. The estate has thus waived its
right to have the claim re- litigated in the estate Claims referred to in Section 5 of Rule 86 refer to
proceedings. claims for the recovery of money which are not
secured by a lien against the property of the estate.
Though presentment of probate claims is (Olave v. Canlas, G.R. No. L-12709, February 28,
imperative, it is generally understood that it may 1962)
be waived by the estate’s representative when the
administrator failed to plead the statute of non- NOTE: If the claim is secured, apply Section 7, Rule
claims, and his active participation and resistance 86.
to plaintiff’s claim in the civil suit for collection.
(Herrera, 2005) Options available to a secured creditor

Claims that must be presented under the 1. Abandon or waive the mortgage and claim the
statute of non-claims entire debt from the estate of the mortgagor as
an ordinary claim;
1. All claims for money against the decedent, 2. Foreclose the mortgage judicially and if there is
arising from contract, express or impied, judgment for deficiency, he may file a claim
whether due, not due, or contingent; against the estate within the statute of non-
2. All claims for funeral expenses; claims; or
3. Expenses for the last sickness of the decedent; 3. Rely on the mortgage exclusively, foreclosing
or the same judicially or extra judicially at any
4. Judgment for money against the decedent. (Sec. time before it is barred by prescription
5, Rule 86) without the right to claim for any deficiency.
(Sec. 7, Rule 86)
NOTE: The enumeration is exclusive. (Festin,
2011) NOTE: The mortgage creditor can avail of only one
of the three remedies and if he fails to recover
Absolute claim under that remedy, he cannot avail of any of the
other two remedies. (Bachrach Motor Co., Inc., v.
It is one which, if contested between living persons, Icarangal, G.R. No. L-45350, May 29, 1939)
would be the proper subject of immediate legal
action and would supply a basis of judgment for a The rule reserves a right to the executor or
sum certain. (Moran, 1980) administrator of an estate to redeem a mortgaged
or pledged property of a decedent which the
Contingent claim mortgagee or pledge opted to foreclose, instead of
filing a money claim with the probate court, under
It is a conditional claim, which is subject to the said Section 7 of Rule 86. While the redemption is
happening of a future uncertain event. (Buan v. subject to the approval of the probate court, the
Laya, G.R. No. L-7840, December 24, 1957) exercise of the right is discretionary upon the said
executor or administrator and may not be ordered
It has reference to uncertainty of liability, and not by the probate court on its own motion.
to uncertainty of collection. (Gaskell v. Tan Sit, G.R. (Manalansan v. Castaneda, G.R. No. L-43607,
No. 18405, September 23, 1922) June 27, 1978)

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Claims extinguished by death vs. Actions which enforce payment; claimant should present claim
survive before probate court. (Domingo v. Garlitos, G.R. No.
L-18994, June 29, 1963)
CLAIMS ACTIONS WHICH
EXTINGUISHED BY SURVIVE If the defendant dies during the pendency of the
DEATH action against him, the rule on substitution of
Personal to either of the Those claims which parties under Sec. 16, Rule 3 will be followed and
parties. can be filed either any adverse decision against him may be filed by
against the estate or the plaintiff as a claim against the estate. If none of
the executor. the heirs is willing to be substituted, the creditor
The claim can no Claim is not has to procure the appointment of an executor or
longer be prosecuted extinguished by death administrator.
by reason of the death but shall be prosecuted
of the party. as a money claim If a final judgment had already been rendered
against the estate of against the decedent prior to his death, but without
the deceased or levy on execution having been effected against his
against the executor or property, such judgment must also be filed as a
administrator. claim against the estate in the manner provided for
E.g. legal separation, E.g. contractual money by this rule. If levy has already been made before
annulment of claim, action to his death, execution shall proceed. (Sec. 7, Rule 39)
marriage, recover real property
declarationof CLAIM OF EXECUTOR OR ADMINISTRATOR
nullity of marriage AGAINST THE ESTATE

NOTE: Claim for civil liability survives An executor or administrator who has a claim
notwithstanding death of accused if the same may against the estate he represents is required to give
also be based on a source of obligation other than written notice to the court. The court shall then
delict. appoint a special administrator, who is vested with
the same power and subjected to the same liability
A separate civil action may be enforced either as the general executor or administrator. (De Leon
against: & Wilwayco, 2015) (Sec. 8, Rule 86)

1. The estate of the accused, in case of a contract; The special administrator, shall in the adjustment
or of such claim, is subject to the same liability as a
2. The executor or administrator, in case of law, regular administrator or executor in the settlement
quasi-contract, and quasi-delict. (De Leon & of other claims.
Wilwayco, 2015)
NOTE: This is one instance where a special
GR: Death of either the creditor or the debtor does administrator is appointed. The special
not extinguish the obligation. Obligations are administrator will have authority to act only with
transmissible to the heirs. respect to the claim of the regular administrator or
executor. (Regalado, 2008)
XPN: When the transmission is prevented by the
law, the stipulations of the parties, or the nature of HOW TO FILE A CLAIM
the obligation. Only obligations that are personal or
are identified with the persons themselves are 1. Deliver the claim with the necessary vouchers
extinguished by death. to the clerk of court;
2. Serve a copy thereof to the executor or
Sec. 5 of Rule 86 expressly allows the prosecution administrator;
of money claims arising from a contract against the 3. If claim is founded on an instrument, it must be
estate of a deceased debtor. What is extinguished is attached to the claim and filed therewith;
only the obligee’s action or suit filed before the 4. If the claim is due, an affidavit supporting such
court, which is not then acting as a probate court. claim must be filed which shall state:
(Stronghold Insurance Company, Inc. v. Republic-
Asahi Glass Corp., G.R. No. 147561, June 22, 2006) a. The amount justly due;
b. That no payments have been made
When judgment in a civil case has become final and thereon which are not credited; and
executory, execution is not the proper remedy to c. That there are no offsets to the same.

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 REMEDIAL LAW
5. If the claim is not due or is contingent, it must
be supported by affidavits;
6. When a person other than the claimant makes
the affidavit, the reasons why it is not made by
the claimant must be stated.

Answer of executor or administrator

GR: Within 15 days after service of a copy of the
claim.

XPN: The court, in its discretion, may extend such
time.

The answer shall either specifically admit or deny
the claim and setting forth the substance of the
matters which are relied upon to support the
admission or denial.

The executor or administrator shall further allege
in offset any claim which the decedent before death
had against the claimant. Failure to do so shall bar
the claim forever. (Sec. 10, Rule 86) (2002, 2009
BAR)

Appeal of judgment

The judgment of the court approving or
disapproving the claim is appealable as in ordinary
cases.

The mode of appeal is record on appeal and must
be filed within 30 days from notice of judgment.
(Sec. 13, Rule 86)

If the executor or administrator has a claim against
the estate, he shall give notice to the court in
writing and the court shall thereafter appoint a
special administrator. (Sec. 8, Rule 86)

This is one of the instances where a special
administrator is appointed. The special
administrator will have authority to act only with
respect to the claim of the regular administrator or
the executor. (Regalado, 2008)

From an estate proceeding perspective, the Special
Administrator’s commission is no less a claim
against the estate than a claim that third parties
may make. Sec. 8, Rule 86 of the Rules recognizes
this when it provides for “Claim of Executor or
Administrator against an Estate.” Under Section 13
of the same Rule, the action of the court on a claim
against the estate is “appealable as in ordinary
cases”. Hence, by express terms of the Rules, the
ruling on the extent of the Special Administrator’s
commission is appealable. (Briones v. Henson-Cruz,
G.R. No. 159130, August 22, 2008)

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Procedure in filing claims

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 REMEDIAL LAW
lands to such heir or devisee or until the time
ACTIONS BY AND AGAINST EXECUTORS AND allowed for paying debts has expired (Sec. 3,
ADMINISTRATORS Rule 87);
(Rule 87) 2. Administration proceedings have already been
commenced, but an administrator has not yet
been appointed (De Leon & Wilwayco, 2015
ACTIONS THAT MAY BE BROUGHT AGAINST citing Go Chan v. Young, G.R. No. 131889, March
EXECUTORS AND ADMINISTRATORS 12,2001);
3. If the executor or administrator is unwilling or
Any action affecting the property rights of a refuses to bring suit (Herrera, 2005); and
deceased which may be brought by or against him 4. When the administrator is alleged to have
if he was alive, may be instituted and prosecuted participated in the act complained of and he is
by or against the administrator, unless by its very made a party defendant. (Ibid.)
nature, it cannot survive, because death
extinguishes such right. (De Leon & Wilwayco, NOTE: Before distribution is made or before any
2015) residue known - heirs and devisees have no cause
of action against the administrator for recovery or
NOTE: When an executor or administrator is property left by the deceased. (De Leon &
appointed and assumes the trust, no action to Wilwayco, 2015 citing Lao v. Dee, G.R. No. L-21017,
recover the title or possession of lands or for February 25, 1924)
damages done to such lands shall be maintained
against him by an heir or devisee until there is an The prohibition applies only to heirs or devisees
order of the court assigning the lands to such heir and not to a donee inter vivos who may file an
or devisee or until the time allowed for paying action to compel the administrator to deliver the
debts has expired. (Sec. 3, Rule 87) property donated. (Del Rosario v. Del Rosario, G.R.
No. 1027, May 19, 1903; Lopez v. Olbes, G.R. No. L-
NOTE: As a rule, actions which survive the 5480, March 21, 1910)
decedent’s death should be made against the
executor or administrator. Conversely, actions that REQUISITES BEFORE CREDITOR MAY BRING AN
do not survive must be claimed against the estate. ACTION FOR RECOVERY OF PROPERTY
FRAUDULENTLY CONVEYED BY THE DECEASED
Claims
1. There is a deficiency of assets;
Generally construed to mean debts or demands of a 2. The deceased is his lifetime had made or
pecuniary nature which could have been enforced attempted such a conveyance with intent to
against the deceased in his lifetime or liability defraud creditors or to avoid any right, debt, or
contracted by the deceased before his death. duty;
3. The executor or administrator has not
Claims which can proceed independently of the commenced the action;
settlement proceeding (RED) 4. A bond executed to the executor or
administartor is filed in the court by the
1. Actions to recover real or personal property, creditor in an amount approved by the judge.
or an interest therein, from the estate; (Sec. 10, Rule 87; De Leon and Wilwayco, 2015)
2. Enforcement of a lien;
3. Actions to recover damages for an injury to Requisites before an executor/administrator
person or property, real or personal. (Sec. 1, may commence and prosecute an action for
Rule 87) recovery of property fraudulently conveyed, on
behalf of creditors
Right of the heirs to sue for the recovery of
property of the estate 1. The deceased in his lifetime had converted real
or personal property, right or interest therein,
GR: The heirs have no legal standing to sue for or debt or credit;
recovery of property of the property rights of the 2. Such conveyance was:
deceased. (De Leon & Wilwayco, 2015)
a. Made with intent to defraud his creditors;
XPNs: or
b. Made to avoid any right, debt, or duty or
1. There is an order of the court assigning such had so conveyed such property, right,
interest, debt, or credit that by law such

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conveyance would be void as against his

creditors; and PAYMENT OF THE DEBTS OF THE ESTATE
c. The subject of the attempted conveyance (Rule 88)
would be liable to attachment by any of
them in his lifetime;
If, after hearing all the money claims against the
3. There is deficiency of assets in the hands of an estate, and after ascertaining the amount of such
executor or administrator for the payment of claims, it appears that there are sufficient assets in
debts and expenses of administration (De Leon the estate to pay the debts, the executor or
& Wilwayco, 2015); administrator shall pay the same for the time
4. Application of the creditors; limited for that purpose. (Sec. 1, Rule 88)
5. Payment of cost and expenses by the creditors;
and Requisities before executor or administrator
6. Giving of security by the creditors in favor of may pay the money claims
the executor or administrator. (Sec. 9, Rule 87)
1. Hearing;
The last three (3) requisites are unnecessary 2. Amounts of such claims are ascertained; and
where the grantee is the executor or administrator 3. Sufficient assets to pay the debt
himself, in which event, the action should be in the
name of all the creditors. (Herrera, 2005) NOTE: A writ of execution is not the proper
procedure to satisfy debts. The court must order
NOTE: The creditor cannot directly file the action the sale or mortgage of the properties of the
in court. It is only after the executor/administrator decedent, the proceeds of which will satisfy the
failed to file the action that the creditor is debts and expenses. (Aldamiz v. Judge of CFI of
authorized to file the action, but it must still be in Mindoro, G.R. No. L-2360, December 29, 1949)
the name of the executor/administrator.
Order of preference for payment of debts
When property of the estate is embezzled or
fraudulently conveyed by other persons GR: The payment of the debts of the estate must be
taken from the following order:
The court may order any person suspected of
having concealed, embezzled or conveyed away 1. Portion or property designated in the will;
any of the money, goods, or chattels of the estate or 2. Personal property not disposed of by will;
having in his possession or knowledge any deed, and
conveyance, contract, bond or other writings which 3. Real property not disposed of by will. (Sec.
contains evidence of or tends to disclose the right, 3, Rule 88)
title, interest or claim of the deceased to real or
personal estate or the last will and testament of the XPN: The Court, on petition of interested persons,
deceased, to appear before it and be examined may modify such order of disposition.
under oath. (Sec. 6, Rule 87)
Personal estate first chargeable for debts
NOTE: Such proceedings are intended merely to
investigate and take testimony for use in an Under Section 3, Rule 86, the personal estate of the
independent action. The court in such proceedings deceased not disposed of by will shall first be
lacks the power to adjudicate titles or determine chargeable with the payment of debts and
controverted rights. (Herrera, 2005) expenses.

Double Value Rule Use of proceeds from sale of personal property

A person, who before the granting of letters The court may order the whole or part of the
testamentary or administration, embezzles or personal estate to be sold if necessary:
alienates the property of the estate shall be liable
to an action in favor of the executor or 1. To pay the debts and expenses of
administrator for double the value of the property administration;
misappropriated. (Sec. 8, Rule 87) 2. To pay legacies; and
3. To cover expenses for the preservation of the
estate. (Sec. 1, Rule 89)

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 REMEDIAL LAW
When real estate is charged for debts, sold, NOTE: If the opposition to the sale is based on the
mortgaged or encumbered even though fact that the oppositor claims title to the property
personal estate is not exhausted to be sold, the court will hold in abeyance the
authority to sell such property until the issue of
Upon application of the executor or administrator ownership has been settled in an ordinary action,
with written notice to heirs and other persons since the probate court generally has no
interested residing in the Philippines, and after jurisdiction to resolve issues of ownership in the
hearing, real properties shall be liable for debts administration proceedings. (Pio Barreto Realty
and expenses, or may be sold mortgaged or Dev., Inc. v. CA, G.R. Nos. 62431-33, August 31, 1984)
otherwise encumbered for that purpose upon
order of the court if: Payment of contingent claims

1. The personal property is not sufficient to pay If the court is satisfied that a contingent claim duly
the debts, expenses of administration and filed is valid, it may order the executor or
legacies (Sec. 3, Rule 88); administrator to retain in his hands sufficient
2. The sale of such personal property would be estate to pay such contingent claim when the same
detrimental to the participants of the estate becomes absolute, or if the estate is insolvent,
(Sec. 3, Rule 88); sufficient estate to pay a portion equal to the
3. The sale of personal property may injure the dividend of the other creditors. (Sec. 4, Rule 88)
business or other interests of those interested
in the estate (Sec. 2, Rule 89); Requisites: (FAV)
4. The testator has not made sufficient provision
for payment of such debts, expenses or legacies 1. Duly filed within the 2-year period allowed for
(Sec. 2, Rule 89); creditors to present their claims;
5. The decedent was, in his lifetime, under 2. The claim is valid; and
contract, binding in law, to deed real property, 3. The claim becomes absolute. (Sec. 5, Rule 88)
or interest therein to a beneficiary (Sec. 8, Rule
89); NOTE: If the contingent claim is not presented
6. The decedent during his lifetime held real within the two (2)-year period after it becomes
property in trust for another person. (Sec. 9, absolute, the assets retained in the hands of the
Rule 89) executor or administrator, not exhausted in the
payment of claims, shall be distributed by the order
Without notice and hearing the sale, mortgage or of the court to the persons entitled to the same.
encumbrance is void because the heirs are the (Sec. 4, Rule 88) However, the assets so distributed
presumptive owners. Since they succeed to all the may still be applied to the payment of the claim
rights and obligations of the deceased from the when established, and the creditor may maintain
moment of the latter’s death, they are the persons an action against the distributees to recover the
directly affected by the sale or mortgage therefore debt, and such distributees and their estates shall
they cannot be deprived of the property, except in be liable for the debt in proportion to the estate
the manner provided by law. (Maneclang v. Baun, they have respectively received from the property
G.R.No. L-27876, April 22, 1992) of the deceased. (Sec. 5, Rule 88)

NOTE: Under Sec. 8 of Rule 89, such conveyance If the contingent claim matures after the expiration
shall not be allowed when notice of the application of the two (2)-year period, the creditors may sue
was not given to persons interested; or if the assets the distributees, who are liable in proportion to the
in the hands of the executor or administrator will shares in the estate respectively received by them.
be reduced so as to prevent a creditor from (Jaucian v. Querol, G.R. No. L-11307, October 5,
receiving his full debt or diminish the dividend. 1918)

How to prevent authority to sell, mortgage or The only instance wherein a creditor can file an
encumber property of the estate action against a distributee of the debtor’s assets is
under Sec. 5 of Rule 88. The contingent claims must
The authority to sell, mortgage or otherwise first have been established and allowed in the
encumber real or personal property shall not be probate court before the creditors can file an action
granted if any person interested in the estate gives directly against the distributees. (De Bautista v. De
a bond in the sum fixed by the court conditioned to Guzman, G.R. No. L-28298, November 25, 1983)
pay the debts, expenses of administration and
legacies. (Sec. 3, Rule 89) Court to fix contributive shares of heirs,
devisees or legatees

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This applies where devisees, legatees, or heirs have their respective claims. (Sec. 10, Rule 88)
entered into possession of the portions of the
estate before the debts and expenses have been
settled and paid and have become liable to SALES, MORTGAGES, AND OTHER
contribute for the payment of such debts and ENCUMBRANCES OF PROPERTY OF DECEDENT
expenses. (Rule 89)

In such case, the court, after hearing, may settle the
amount of their several liabilities, and order how Order of sale of personalty
much and in what manner each person shall
contribute, and may issue execution as The court, upon the application of the executor or
circumstances require. (Sec. 6, Rule 88) administrator, and on written notice to the heirs
and other persons interested, may order the whole
NOTE: This is one of the instances where the court or a part of the personal estate to be sold, if it
may issue a writ of execution. (Sec. 6, Rule 88) appears necessary for the purpose of paying debts,
expenses of administration, or legacies, or for the
Even after partition, devisees, legatees, or heirs preservation of the property. (Sec. 1, Rule 89)
shall be liable individually for the payment of all
lawful outstanding claims against the estate in Instances when real properties may be ordered
proportion to the amount or value of the property sold, mortgaged, or encumbered
they have respectively received from the estate.
(Herrera, 2005) 1. When the personal estate of the deceased is
not sufficient to pay the debts, expenses of
Order of payment if estate is insolvent or assets administration, and legacies (Sec. 2, Rule 89);
are insufficient 2. Where the sale of such personal estate may
injure the business or other interests of those
The executor or administrator shall pay the debts interested in the estate (Ibid);
according to the concurrence and preference of 3. Where a testator has not otherwise made
credits provided by Arts. 1059 and 2239 to 2251 of sufficient provision for the payment of such
the New Civil Code. (Sec. 7, Rule 88) debts, expenses, and legacies (Ibid);
4. When it appears that the sale of the whole or a
Disposition of estate in the Philippines of an part of the real or personal estate, will be
insolvent non-resident beneficial to the heirs, devisees, legatees, and
other interested persons (Sec. 4, Rule 89);
The estate found in the Philippines shall be 5. Where the deceased was in his lifetime under
disposed of in a manner where his creditors in and contract, binding in law, to deed real property,
outside the Philippines may receive an equal share, or an interest therein (Section 8, Rule 89); and
in proportion to their respective credits. (Sec. 9, 6. Where the deceased in his lifetime held real
Rule 88) property in trust for another person. (Sec. 9,
Rule 89)
Claims that have been duly proven in another
country against the estate of an insolvent who was NOTE: The disposal of estate property requires
at the time of his death an inhabitant of the judicial approval before it could be executed.
Philippines, and that the executor or administrator Implicit in the requirement for judicial approval
in the Philippines had knowledge of the was that the probate court could rescind or nullify
presentation of such claims in such country and an the disposition of a property under administration
opportunity to contest their allowance, may be that was effected without its authority. (Spouses
added to the list of claims proved against the Lebin v. Mirasol, G.R. No.164255, September 7, 2011)
decedent in the Philippines and the estate will be
distributed equally among those creditors. (Sec. 10, Interested persons
Rule 88)
No such authority to sell mortgage, or otherwise
Principle of reciprocity encumber real or personal estate shall be granted if
any person interested in the estate gives a bond, in
The benefits in Secs. 9 and 10 shall not be extended a sum to be fixed by the court, conditioned to pay
to the creditors in another country if the property the debts, expenses of administration, and legacies
of such deceased person there found is not equally within such tune as the court directs; and such
apportioned to the creditors residing in the bond shall be for the security of the creditors, as
Philippines and the other creditors, according to

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well as of the executor or administrator, and may property of the estate without the requisite
be prosecuted for the benefit of either. (Sec, 3, Rule authority of the court, such sale is null and void.
89) (Godoy v. Orellano, G.R. No. L-16584, November 17,
1921) This rule applies to the sale of immovable
If third persons oppose an application for leave to property of the estate, although the rules do not
sell the property of the decedent, claiming title to specifically so provide, as such authority is vested
the property, the title claim, cannot be adjudicated in a probate court. (Manotok Realty, Inc. v. CA, et.al.,
by the probate court, but it can hold approval of the G.R. No. L-35367, April 9, 1987)
sale in abeyance until the question of ownership
shall have been decided in a proper action. (Pio Deed of sale, mortgage or encumbrance
Barretto Realty Dev., Inc. v. CA, G.R. No. 62431-33,
August 31, 1984) The deed executed by the executor or
administrator shall be valid as if executed by
Regulations for granting authority to sell, deceased in his lifetime. (Sec 7-8, Rule 89)
mortgage or otherwise encumber estate
NOTE: For sales contracted by the decedent during
1. The executor/administrator shall file written his lifetime, Sec. 8, Rule 89 applies. In such cases,
petition setting forth: the court having jurisdiction of the estate may, on
a. Debts due from deceased, expenses for application for that purpose, authorize the
administration, legacies; executor or administrator to convey such property
b. Value of personal estate; according to such contract, or with modifications
c. Situation of estate to be sold, mortgaged, as are agreed upon by the parties and approved by
encumbered; and the court. (Liu v. Loy, G.R. No. 145892, September 13,
d. Such other facts showing that the sale 2004)
etc., mortgage, or other encumbrance is
necessary or beneficial.
DISTRIBUTION AND PARTITION
2. The court shall thereupon fix a time and (Rule 90)
place for hearing such petition, and
cause notice stating:
a. The nature of the petition; LIQUIDATION
b. The reason for the same; and
c. The time and place of hearing Liquidation means the determination of all assets
of the estate and payment of all debts and
To be given personally or by mail to the expenses.
persons interested, and may cause such further
notice to be given, by publication or otherwise, NOTE: The probate court loses jurisdiction over
as it shall deem proper. the settlement proceedings only upon payment of
all debts and expenses of the obligor and delivery
3. The court may require the executor or of the entire estate to all the heirs. (Guilas v. Judge
administrator shall give an additional bond, in of CFI of Pampanga, G.R. No. L- 26695, Jan. 31, 1972)
such sum as the court directs, conditioned that
such executor or administrator will account for Two requisites before the distribution of the
the proceeds of the sale, mortgage, or other estate
encumbrance.
4. The court may authorize sale to be public or 1. Liquidation; and
private. 2. Declaration of heirs
5. If estate is to be sold at auction, mode of giving
notice shall be goverened by provisions When order for distribution of residue made
concerning notice of execution sale. (Sec. 1, Rule 90) (2002 BAR)
6. A certified copy of the order of the court,
together with the deed of the executor or GR: Distribution of the residue to persons entitled
administrator for such real estate shall be thereto after notice and hearing and after payment
recorded in the registry of deeds of the of: (DEFAI)
province in which the real estate thus sold,
mortgaged, or otherwise encumbered is 1. Debts;
situated. (Sec. 7, Rule 89) 2. Expenses of administration;
3. Funeral charges;
NOTE: If the administrator or executor sells

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4. Allowance to widow; and filed after the lapse of the reglementary period.
5. Inheritance tax. (De Leon & Wilwayco, 2015) (Divinagracia v. Rovira, G.R. No. L-42615, August 10,
1976)
XPN: Distribution before payment of obligations
provided distributees give a BOND fixed by the Declaration of heirship
court conditioned for payment thereof within such
time as court directs. The declaration of heirs is undertaken to
determine to whom the residue of the estate
NOTE: The order that determines distributive should be distributed. The declaration is made in
share is appealable. Title to property is vested from the same proceeding, a separate action for the
finality of the order of distribution. (Herrera, 2005) declaration of heirs not being the proper recourse.
(De Leon & Wilwayco, 2015)
Process for the distribution of the residue of
the estate NOTE: The probate court has the power to
entertain the question of whether or not a person
NOTE: Even if the testator stated in his will that he is an acknowledged natural child of the decedent.
owes a certain person and ordered that the same Thus, an action for recognition of a natural child
be paid, if the estate is insolvent, the creditor shall may be instituted and decided in the proceeding
not enjoy priority over other claimants. The for the settlement of the estate of the ancestor.
provision in the will should only establish the claim However, an adoption decree cannot be assailed in
of the creditor against the estate. He must still file the settlement of the estate of the ancestor.
his claim according to Section 9, Rule 86 and must (Herrera, 2005)
comply with the statute of non-claims.
A claim of status as heir of a decedent must always
The net estate of the decedent must be ascertained, be substantially supported by evidence as required
by deducting all payable obligations and charges under our law. Not all rights to property and
from the value of the property owned by the incidents thereof, such as titling, ought to be
deceased at the time of his death; then, all preceded by a declaration of heirship, albeit
donations subject to collation would be added to it. supposedly traced to a single decedent and original
With the partible estate thus determined, the titleholder. In this case, there is no need for the
legitime of the compulsory heir or heirs can be petitioners to first be declared heirs of the Valentin
established; and only then can it be ascertained Basbas before they can file an action for annulment
whether or not a donation had prejudiced the of title and reconveyance of real property
legitimes. (Heirs of Doronio v. Heirs of Doronio, G.R. originally owned by Severo Basbas, father of
No. 169454, December 27, 2007) Valentin Basbas, if Valentin has long possessed the
the status of a legitimate child. (Heirs of Valentin
Decree of distribution Basbas v. Basbas, G.R. No. 188773, September 10,
2014)
A decree of distribution of the estate of a deceased
person vests the title to the land of the estate in the Court may make a declaration of heirship even
distributees, which, if erroneous may be corrected before the payment of obligations
by a timely appeal. Once it becomes final, its
binding effect is like any other judgment in rem. This provision is not mandatory because it is the
distribution of the residue of the estate, before its
However, in exceptional cases, a final decree of obligations are paid, which the court is enjoined to
distribution of the estate may be set aside for lack do but not the declaration of heirs prior to the
of jurisdiction or fraud. (Ancheta v. Guersey- satisfaction of these obligations.
Dalaygon, G.R. No. 139868, June 8, 2006)
PROJECT OF PARTITION
A party interested in a probate proceeding may
have a final liquidation set aside when he is left out It is a document prepared by the executor or
by reason of circumstances beyond his control or administrator setting forth the manner in which
through mistake or inadvertence not imputable to the estate of the deceased is to be distributed
negligence. (Vda. De Alberto v. CA, G.R. No. L-29759, among the heirs. (Solivio v. CA, G.R. No. 83308,
May 18, 1989) February 12, 1990)

However, where the order closing the intestate The finality of the approval of the project of
proceedings was already final and executory, the partition by itself alone does not terminate the
same cannot be reopened on a motion therefore probate proceeding. As long as the order of the

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 REMEDIAL LAW
distribution of the estate has not been complied extreme cases, such form of advances of
with, the probate proceedings cannot be deemed inheritance should not be countenanced.
closed and terminated. (Estate of Ruiz v. CA, G.R. No.
118671, January 29, 1996) RATIO: Courts should guard with utmost zeal the
estate of the decedent to the end that creditors be
The probate court may require the executrix to adequately protected, and rightful heirs assured of
present a project of partition to better inform itself their shares in the inheritance.
of the condition of the estate to be distributed and
so facilitate the prompt distribution thereof. (Reyes The order of partial distribution appealed from is
v. Reyes de llano, 63 Phil. 629) unwarranted. Firstly, because it was prematurely
issued, the period for the presentation of claims
NOTE: Project of partition is not mandatory. not having as yet elapsed; and secondly, because no
(Herrera, 2005) bond was fixed by the court as a condition
precedent to the partial distribution ordered by it.
An appeal from an order of execution, which (Gatmaitan v. Medina, G.R. No. L-14400. August 5,
although generally not appealable, may be allowed 1960)
if the Project of Partition submitted to implement
the decision was not in accordance with the final Jurisdiction of probate court
decision in the case. However, seeking an order
from the court to allow the petitioner to present The court shall have the following powers in the
evidence with regard to the properties comprising distribution and partition of the estate:
the estate of the deceased and the heirs who are to
share in the inheritance is, in effect an appeal from 1. Collate;
a decision which has long become final and 2. Determine heirs; and
executory, and not from an order of execution 3. Determine the shares of each heir. (Herrera,
which is yet to be carried out, thru a Project of 2005)
Partition still to be submitted to and approved by
the court. (Torres v. Aruego, G.R. No. 201271, Once an action for the settlement of estate is filed
September 20, 2017) with the court, the properties included therein are
under the control of the estate court. And not even
Right of an heir over the property of the the administrator may take possession of any
decedent property that is part of the estate without the prior
authority of the Court. (Silverio, Jr. v. CA, G.R. No.
Although the right of an heir over the property of 178933, September 16, 2009)
the decedent is inchoate, as long as estate has not
been fully settled and partitioned, the law allows A probate court has the power to enforce an
the co-owner to exercise the rights of ownership accounting as a necessary means to its authority to
over such inchoate right. determine the properties included in the inventory
of the estate to be administered, divided up, and
Before partition, the heirs become co-owners of the distributed. Beyond this, the determination of title
property they inherited subject to the payment of or ownership over the subject shares may be
debts of the deceased. (Mendoza v. CA, G.R. No. conclusively settled by the probate court as a
4464, July 31, 1991) question of collation or advancement. (Reyes v. RTC
Makati, Branch 142, G.R. No. 165744, August 11,
During the pendency of the estate proceedings 2008)
without the prior approval of the probate court, an
heir has the right to sell his undivided or ideal Power to issue writ of possession
share of the estate, he being the co-owner with
other heirs of the estate. Court approval is The probate court has the authority to order the
necessary only if specific property of the estate is issuance of a writ of possession for the recovery of
sold. (Heirs of Pedro Escanlar v. CA, G.R. No. 119777, the share by the heir or other interested person
October 23, 1997) from the executor or administrator or other
persons having possession of the property without
Partial distribution the need of previous demand. (Herrera, 2005)

A partial distribution of the decedent’s estate REMEDY OF AN HEIR ENTITLED TO RESIDUE
pending the final termination of the testate or BUT NOT GIVEN HIS SHARE
intestate proceedings should as much as possible
be discouraged by the courts, and unless in 1. Motion to set aside the distribution – If an

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 SPECIAL PROCEEDINGS

heir appears after the court approved the The proper procedure is for the court to order the
project of partition, the heir must file a motion sale of the property of the deceased to satisfy the
to set aside the distribution with the court so claim and in case of refusal to comply with the
that the court will not proceed with the order; the court may cite him in contempt.
distribution of the residue. The probate court
shall determine whether such heir has a right XPNs: (DEP)
to participate in the distribution of the residue.
If it is proven that the heir has a right, the court 1. To satisfy the Distributive shares of the
may order the revision of the project of devisees, legatees and heirs in possession of
partition for its adjustment. the decedent’s assets (Sec. 6, Rule 88);
2. Motion to deliver share – If the heir was not 2. To enforce payment of the expenses of
excluded from the proceedings but was not Partition; (Sec. 3, Rule 90); and
able to receive his share. 3. To satisfy the costs when a person is cited for
3. Motion for the reopening of the settlement Examination in probate proceedings. (Sec. 13,
proceedings – If the distribution has already Rule 142)
been made, a motion for closure has already
been granted, the heir must file a motion for When court loses jurisdiction
the reopening of the settlement proceedings
within the reglementary period, provided the Probate court loses jurisdiction of an estate under
order of closure has not yet become final and administration only after payment of all debts and
executory. The period is within 30 days from remaining estate delivered to heirs entitled to
the date the order of closure of the receive the same. (Guilas v. Judge of CFI of
administration proceeding was served on the Pampanga, G.R. No. L- 26695, January 31, 1972)
executor or administrator. (Divinagracia v.
Rovira, G.R. No. L-42615, August 10, 1976)
TRUSTEES
NOTE: When motion to intervene is made by (Rule 98)
illegitimate children, there must be proof
beyond allegations in such motion to show the
interest of the private movants. In the absence Trust
thereof, the action taken by the judge allowing
said intervention could be considered Confidence reposed in one person called the
premature. (Jerez v. Nietes, G.R. No. L-26876, trustee, for the benefit of another called the cestui
December 27, 1969) que trust, with respect to property held by the
former for the benefit of the latter.
4. Petition for the re-opening of the settlement
proceedings – Although closed and Trustee
terminated, the preterited heir who was
excluded from the settlement proceedings can A trustee is one who is appointed to carry out the
still file a petition to reopen within a period of provisions of the will or any written instrument
10 years. (Art. 1144, NCC; Solvino v. CA, 182 executed by the trustor. (Sec. 1, Rule 98)
SCRA 119)
5. Accion reivindicatoria – If the order of closure The trustee has the legal title over the property
has already become final and executory, the while the beneficial title is with the cestui que trust.
remedy is to file an independent suit against
the parties and all the other heirs for his/her Therefore, unlike an executor or administrator, the
share. (Nunal v. CA, G.R. No. 94005, April 6, trustee can validly make conveyances of the
1993) property held by him in trust, subject to the right of
the beneficiary against the trustee but not against
INSTANCES WHEN PROBATE COURT MAY ISSUE the buyer.
WRIT OF EXECUTION
Rule 98 applies only to express trust
GR: Probate court cannot issue writs of execution.
One which is created by will or written instrument,
NOTE: Execution is not the proper remedy to and not to an implied trust, which is deducible
satisfy an approved claim because payment from the nature of the transaction as a matter of
approving the claim does not create a lien upon the intent, or which are superinduced on the
property of the estate. transaction by operation of law as a matter of

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 REMEDIAL LAW
equity, independent of the particular intention of has omitted in his will to appoint a trustee in
the parties. (De Leon & Wilwayco, 2015 citing O’Lao the Philippines, and if such appointment is
v. Co Cho Chit, G.R. No. 58010, March 31, 1993) necessary to carry into effect the provisions of
the will. (Sec. 2, Rule 98)
Where trustee appointed
Although the will does not name a trustee, the
1. RTC or MTC in which the will was allowed, if it probate court exercises sound judgment in
be allowed in the Philippines; or appointing a trustee to carry into effect the
2. RTC of the province in which the property, or provisions of the will – where a trust is actually
some portion thereof, affected by the trust is created by the will by a provision that certain
situated. (Sec. 1, Rule 98) properties shall be kept together undisposed
during a fixed period and for a stated purpose.
Nature of possession by the trustee (Lorenzo v. Posadas, G.R. No. L-43082, June 18,
1937)
GR: For the purpose of prescription, the possession
of the property by the trustee is not an adverse 2. Contractual trust
possession, but only in the name and in behalf of
the owner of the same. When a trustee under a written instrument
declines, resigns, dies, or is removed before the
NOTE: A trust estate is exempt from the operation objects of the trust are accomplished, and no
of the statute of limitations. adequate provision is made in such instrument
for supplying the vacancy, the proper RTC may
XPN: A trustee, however, may acquire the trust after due notice to all persons interested,
estate by prescription provided there is appoint a new trustee to act alone or jointly
repudiation of the trust and this fact is known to with the others, as the case may be. (Sec. 3,
the cestui que trust. Rule 98)

Adverse possession The non-acceptance by the trustee will not
result in the failure of the trust, unless the trust
To constitute adverse possession, the following is purely personal. (Herrera, 2005)
requisites must concur:
NOTE: The power to appoint a trustee is
1. That the trustee has performed unequivocal discretionary with the court before whom
acts of repudiation amounting to the ouster of application is made, and the appellate court
cestui que trust; will decline to interfere except in cases of clear
2. That such positive acts of repudiation have abuse. (Herrera, 2005)
been known to the cestui que trust; and
3. The evidence should be clear and conclusive. Trustee appointed abroad

The repudiation must be clear, open and Such trustee must petition the RTC where the land
unequivocal. In that case the statute will commence is situated, otherwise, the trust will be vacant a
to run from and after said repudiation and the new trustee will be appointed.
knowledge thereof by the cestui que trust.
Furthermore, prescription in order to be available DISTINCTIONS BETWEEN TRUSTEE AND
as a defense, the trustee must prove that there was EXECUTOR/ADMINISTRATOR
a direct repudiation of the trust and that the cestui
que trust or beneficiary had knowledge thereof. EXECUTOR/ TRUSTEE
(Salinas v. Tuason, G.R. No. L-33636, March 2, 1931) ADMINISTRATOR
Duties are fixed and/or Usually governed by
NOTE: The trustee is prohibited from acquiring the limited by law the intention of the
property whether by purchase, even in a public or trustor or of the
judicial action, either in person or through parties, if established
mediation of another. (Art. 1491, Civil Code) by contract. (Art.
1441, NCC)
A trustee is necessary to carry into effect:
The duties of trustees
1. Testamentary trust may cover a much
wider range than
A new trustee shall be appointed if a testator

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 SPECIAL PROCEEDINGS

those of executors or Services of executors or Trusteeship is

administrators of the administrator are terminated upon
estate of deceased terminated upon turning over the
persons. (Araneta v. payment of debts of the property to
Perez, G.R. Nos. L- estate and distribution beneficiary after
16185-86, May 31, of property to theheirs expiration of the trust
1962 (period may be
Accounts are not under Accounts must be provided for in the
oath and except for under oath and filed will or trust contract)
initial and final annually. Must pay the debts of No obligation to pay
submission of accounts, the estate the debts of the
they shall be filed only beneficiary or trustor
at such times as may be
required by the court. CONDITIONS OF THE BOND
Court that has Court which has
jurisdiction may be MTC jurisdiction is the RTC Filing of bond
or RTC. in which the will is
allowed; or the RTC of GR: The trustee is required to file a bond with the
the province in which clerk of court having jurisdiction of the trust in the
the property or some amount fixed by the judge of said court, payable to
portion thereof the Government of the Philippines and sufficient
affected by the trust is and available for the protection of any party in
situated. interest. Neglect of trustees to file a bond will be
May sell, encumber or May sell or encumber interpreted by the court as resignation or a decline
mortgage property if it property of the estate to accept the trust. (Sec. 5, Rule 98)
is necessary for the held in trust if
purpose of paying necessary or XPN: The trustee may be exempted from filing a
debts, expenses of expedient or upon bond if requested by the testator or by all persons
administration or order of the court. beneficially interested (being of full age) in the
legacies or for the trust. However, the court may cancel such
preservation of (On petition and after exemption any time. (Sec. 5, Rule 98)
property or if sale will due notice and
be beneficial to heirs, hearing) Conditions of the bond (IDAS)
legatees or devisees.
1. Make and return to the court a true inventory
(Upon application to of all real and personal estate that at the time
the court with written of the inventory shall have come to his
notice to the heirs) possession or knowledge;
Order of sale has no time Order of sale has no 2. Manage and dispose of all such estate
limit. time limit. according to law and the will of the testator or
Appointed by the court Appointed to carry provisions of the instrument or order under
to settle estate of the into effect the which he was appointed;
decedent. provisions of a will 3. Render a true account of the property in his
(testamentary trust) hands; and
or written instrument 4. At the expiration of the trust, settle his
(contractual trust). accounts in court and pay and deliver all the
Not exempted from May be exempted estate remaining in hands, or due from him,
filing a bond even if from filing a bond if too the person/s entitled thereto.
such exemption is provided in the will or
provided in the will. if beneficiaries REQUISITES FOR THE REMOVAL AND
requested such RESIGNATION OF A TRUSTEE
Bond may still be exemption.
required for payment 1. Petition filed by parties beneficially interested;
of debts. 2. Notice to trustee; and
3. Hearing. (Sec. 8, Rule 98)

GROUNDS FOR REMOVAL AND RESIGNATION
OF A TRUSTEE

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 REMEDIAL LAW
1. Removal appears essential in the interest of leaving no heir. (De Leon & Wilwayco, 2015)
petitioners;
2. Insanity; Principle behind the rule
3. Incapability of discharging the trust; or
4. Unsuitability. (Sec. 8, Rule 98) Escheat proceedings rest on the principle of
ultimate ownership by the State of all property
NOTE: A trustee is at liberty to tender his within its jurisdiction.
resignation and apply for his release on the sole
ground of unwillingness to act further in the trust. Three kinds of escheat
But the acceptance of the resignation of a trustee is
not a matter of course; due regard must be had for 1. Intestate leaving no heir – When a person
the interest of the parties to be affected and there dies intestate leaving no heir but leaving real
must ordinarily be some ground for discharge or personal property within the Philippines
other than the mere wish of the trustee to be (Sec. 1, Rule 91);
relieved. (Herrera, 2005) 2. Reversion – Actions for reversion of
properties alienated in violation of the
EXTENT OF AUTHORITY OF TRUSTEE Constitution or statute (Sec. 5, Rule 91);

The powers of a trustee appointed by a Philippine NOTE: The proceedings must be instituted in
court cannot extend beyond the confines of the the province where the land lies in whole or in
territory of the Republic of the Philippines. This is part. It may be instituted as a consequence of a
based on the principle that his authority cannot violation of Article XIII of the Constitution
extend beyond the jurisdiction of the Republic of which prohibits transfers of private
the Philippines; under whose courts he was agricultural land to aliens. (Rellosa v. Gaw Chee
appointed. (De Leon & Wilwayco, 2015) Hun, G.R. No. L-1411, September 29, 1953)

Q: Can the possession of the trustee of the However, reversion will not be allowed even if
property ripen into ownership? the original buyer was an alien, if later on the
title to the property was transferred by
A: GR: An action to compel a trustee to convey succession to the buyer’s heirs who are
property registered in his name in trust for the qualified parties, i.e. Philippine citizens.
benefit of the cestui qui trust does not prescribe. (Republic v. Registry of Deeds of Roxas City, G.R.
The trustee’s possession is not adverse because of No. 158230, July 16, 2008)
the specific duties imposed upon him by the Rules
and therefore cannot ripen into title by 3. Unclaimed balances – Dormant accounts for
prescription. 10 years. (Unclaimed Balances Act, Act 3936, as
amended by P.D.679)
XPN: Prescription may arise where there is
adverse possession of the property. To constitute NOTE: An action to recover unclaimed
adverse possession, the following must be present: balances shall be commenced by the Solicitor
General in an action for escheat in the name of
1. That the trustee has performed unequivocal the People of the Philippines in the RTC of the
acts amounting to an ouster of the cestui que province where the bank is located, in which
trust; shall be joined as parties the bank and such
2. That such positive acts of repudiation had been creditors or depositors. (Republic v. Pres. Roxas
made known to the cestui que trust; and Rural Bank, Inc., G.R. No. L-30381, August 30,
3. That the evidence thereon should be clear and 1988)
conclusive. (Ceniza v. CA, G.R. No. L-46345,
January 30,1990) WHEN TO FILE

Who may file
ESCHEAT
(Rule 91) An escheat proceeding is initiated, upon showing
that an intestate decedent left some properties but
no heir, by the Solicitor General or his
A proceeding whereby the State, by virtue of its representatives in behalf of the Republic of the
sovereignty, steps in and claims the real and Philippines. (Sec. 1, Rule 91)
personal property of a person who dies intestate
In all actions for the reversion to the Government

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of lands of the public domain or improvements 1. A person died intestate;

thereon, the Republic of the Philippines is the real 2. He left no heirs or persons by law entitled
party in interest. (Manese v. Sps. Velasco, G.R. No. to the same; and
164024, January 29, 2009) 3. The deceased left properties in the
Philippines. (Sec. 1, Rule 91)
Where filed
Escheat cannot be converted into settlement of
It may be filed with the RTC of the province where estate
the deceased last resided or in which he had estate,
if he was a non-resident. The jurisdiction acquired cannot be converted into
one for the distribution of the properties of the said
Who may oppose the petition decedents. For such proceedings (for the
distribution of the estate of the decedents) to be
Any person alleged to have a direct right or interest instituted, the proper parties must be presented
in the property sought to be escheated, likewise an and the proceedings should comply with the
interested and necessary party. requirements of the Rules. Hence, the RTC did not
have the power to order, or to proceed with, the
Assignment of property escheated distribution of the estates of the decedents in these
escheat proceedings and adjudicate the properties
1. If personal property, to the municipality or city to the oppositors. (Municipality of Magallon v.
where he last resided in the Philippines; Bezore, G.R. No. L- 14157, October 26, 1960)
2. If real property, to the municipality or city
where the property is situated in the NOTE: The burden of proof rests on the State to
Philippines; prove that the property in question is in all
3. If deceased never resided in the Philippines, to respects liable to escheat. (Herrera, 2005)
the municipality or city where the property
may be found. (Sec. 3, Rule 91) Notice and publication

How court acquires jurisdiction The publication of the notice of hearing shall be at
least once a week for 6 consecutive weeks in a
The court acquires jurisdiction to hear the petition newspaper of general circulation. This is a
for escheat by virtue of publication of the petition jurisdictional requirement, non-compliance with
for escheat. which affects the validity of the proceedings.
(Divino v. Hilario, G.R. No. 44658, January 24, 1936)
NOTE: The court where the escheat proceeding is
pending cannot allow the filing of a claim against All interested parties, especially the actual
the estate when it has not acquired jurisdiction. occupant and adjacent lot owners, shall be
Such court has no jurisdiction to grant the remedy personally notified of the proceedings and given
enabling the devisee, legatee, heir, widow, widower the opportunity to present their valid claims,
or other person entitled to the estate to appear otherwise the property will be reverted to the
within a specific period from the date of the decree State. (De Leon & Wilwayco, 2015 citing Tan v. City
of escheat and file a claim to the estate. (Divino v. of Davao, G.R. No. L-44347, September 26, 1988)
Hilario, G.R. No. 44658, January 24, 1936)
REMEDY OF RESPONDENT AGAINST THE
Purpose PETITION, PERIOD FOR FILING A CLAIM

The estate assigned shall be for the benefit of 1. File a motion to dismiss, and in such case the
public schools, and public charitable institutions motion to dismiss plays the role of a demurrer
and centers, in such municipalities or cities. The to evidence. (Herrera, 2005)
court shall distribute the estate as the respective
needs of each beneficiary. NOTE: A respondent may file a motion to
dismiss for failure to state a cause of action,
NOTE: The court, at the instance of an interested where the petition does not state facts which
party, or on its own motion, may order the entitle petitioner to the remedy prayed for.
establishment of a permanent trust, so that only (GoPoco Grocery v. Pacific Biscuit, 65 Phil 443)
income from the property shall be used. (Sec. 3,
Rule 91) 2. File a claim for the escheated property within
the period prescribed by the Rules.
REQUISITES FOR FILING OF PETITION

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 REMEDIAL LAW
Waiver of right to escheat

It may be waived, either expressly or impliedly. GUARDIANSHIP
Hence, when the right to escheat claimed by the (Rule 93)
municipality has existed long prior to the
registration proceedings, and, as the same has not
been asserted in said proceedings, it is deemed to Guardianship
have been completely waived. (De Leon &
Wilwayco, 2015) It is the power of protective authority given by law
and imposed in an individual who is free and in the
Declaration that a person is presumptively enjoyment of his rights, over one whose weakness
dead in escheat proceedings on account of his age or other infirmity which
renders him incapable to protect himself. (Herrera,
The courts are not barred from declaring an 2005)
absentee presumptively dead as an incident of, or
in connection with, an action or proceeding for the Guardian
settlement of the intestate estate of such absentee.
(Tan v. City of Davao, G.R. No. L-44347, September A guardian is a person in whom the law has
29, 1988) entrusted the custody and control of the person or
estate or both of an infant, insane, or other person
Period for filing a claim (2002 BAR) incapable of managing his own affairs. (De Leon &
Wilwayco, 2015)
If a devisee, legatee, heir, widow, widower, or
other person entitled to such estate appears and A trust relation in which one person called a
files a claim thereto with the court within five (5) “guardian” acts for another called a “ward” whom
years from the date of such judgment, such person the law regards as incapable of managing his own
shall have possession of and title to the same, or if affairs.
sold, the municipality or city shall be accountable
to him for the proceeds after deducting reasonable Basis of guardianship
charges for the care of the estate; but a claim not
made within the said time shall be forever barred. “Parens patriae” – The State has the duty of
(Sec. 4, Rule 91) protecting the rights of persons or individuals who,
because of age or incapacity, are in an unfavorable
NOTE: Sec. 4 Rule 91 of the Rules of Court and its position vis-à-vis other person. (Herrera, 2005)
counterpart Article 1014 of the Civil Code are not
in harmony. However, it is Article 1041 which must Purpose of this rule
prevail and not the Rules of Court. The former is a
substantive law and the latter is only procedural To safeguard the rights and interests of minors and
which must yield to the former should the incompetent persons. Courts should be vigilant to
discrepancies arise in particular cases. (Pineda, see that the rights of such persons are properly
2009) protected.

Article 1014 of the Civil Code v. Sec. 4, Rule 91 Kinds of guardians

ARTICLE 1014 SEC. 4, RULE 91 1. According to scope:
Filed within 5 years Filed within 5 years from
from the date the the date of judgment a. Guardian of the person – has been
property is delivered lawfully invested with the care of the
to the State person of the minor or incompetent;
Persons who may file Filed by devisee, legatee, b. Guardian of the property – appointed to
are not specifically heirs, widow or widower have the management of the estate of a
stated or other person entitled minor or incompetent; or
to such estate c. General guardian – appointed to have the
If property is sold, Proceeds shall be care and custody of the person and of all
the proceeds shall be accouted for after the property of the ward.
accounted for except deducting reasonable
the proceeds lawfully charges of care of estate 2. According to constitution:
spent

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 SPECIAL PROCEEDINGS

a. Legal guardian – a guardian by provision children under the age of seven (7). There being no
of law without the need of judicial sufficient proof of any compelling reason to
appointment, as in the case of parents over separate the minor from his mother, custody
the persons of their minor children, or the should remain with her.
father, or in his absence, the mother (the
parent shall only furnish the necessary The so-called tender-age presumption under
bond if the property of minor child Article 213 of the Family Code may be overcome
exceeds P50,000); only by compelling evidence of the mother’s
b. Guardian ad litem – any competent unfitness. (Gualberto v. Gualberto. G.R. No. 154994,
person appointed by the court to June 28, 2005)
prosecute or defend a minor or
incompetent in an action in court; Instances when parent is declared unsuitable
c. Judicial guardian – a competent person for custody (NAU-HID-MIAA)
appointed by the court over the person or
property of the ward to represent the 1. Neglect;
latter in all his civil acts and transactions. 2. Abandonment;
(Herrera, 2005) 3. Unemployment;
4. Habitual drunkenness;
Ancillary guardianship 5. Immorality;
6. Drug addiction;
It refers to the guardianship in a State other than 7. Maltreatment of the child;
that in which guardianship is originally granted. 8. Insanity;
9. Affliction with a communicable disease; or
NOTE: Authority of the guardian may extend only 10. Analogous grounds
to the property of the minor or incompetent within
such State. Who may file a petition for guardianship of
minors
MINORS INCOMPETENTS
Now governed by the Still governed by the 1. Any relative;
2. Other person on behalf of the minor;
Rule on Guardianship of provisions of the Rules
3. The minor himself if 14 years of age or over;
Minors (AM No. 03-02- of Court on
4. The Secretary of DSWD; or
05-SC) which took Guardianship. (Rules 92-
5. The Secretary of DOH in case of an insane
effect on May 1, 2003. 97)
minor who needs to be hospitalized. (Sec. 2,

Hence, the application A.M. No. 03-02- 05-SC-2003-05-01)

of the Rules on General
Non-resident minors
Guardian and

Guardianship in the
The Courts may appoint a guardian for non-
Rules of Court is
resident minors or incompetents, but only insofar
limited to guardianship
as to the property of the non-resident minor found
of the person or estate
of an “incompetent.” in the Philippines is concerned. Any relative or
friend of such minor, or anyone interested in his

property, in expectancy or otherwise, may petition
RULE ON GUARDIANSHIP OVER MINOR
the Family Court/RTC for the appointment of a
A.M. No. 03-02-05-SC
guardian over the property. (Sec. 12, A.M. No. 03-
Effectivity: May 1, 2003
02-05-SC; Sec.6, Rule 93)


Minors
NOTE: Publication is required in case of a petition

for guardianship over the property of a non-
Those who are below 18 years of age or those over
resident minor unlike in the case of a resident
but are unable to fully take care of themselves from
minor where no publication is required.
abuse, neglect, cruelty, exploitation, or

discrimination because of a physical or mental
Where filed
disability or condition. [Sec. 3(a), RA 7610]


1. In the Family Court of the province or city
Tender Age Presumption
where the minor actually resides; or

2. If he resides in a foreign country, in the Family
A mother is to be preferred in awarding custody of
Court of the province or city where his

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 REMEDIAL LAW
property or any part thereof is situated. (Sec. 3, the court may appoint a guardian of a minor,
A.M. No. 03-02- 05-SC 2003-05-01) observing as far as practicable the following order
of preference:
Grounds for the appointment of a guardian
over the person or property, or both, of a minor 1. The surviving grandparent, and in case several
grandparents survive, the court shall select any
1. Death, continued absence, or incapacity of his of them taking into account all relevant
parents; considerations;
2. Suspension, deprivation or termination of 2. The eldest brother or sister over twenty-one
parental authority; years of age, unless he or she is unfit or
3. Remarriage of surviving parent, if the latter is disqualified;
found unsuitable to exercise paretal authority; 3. The actual custodian of the minor over twenty-
or one years of age, unless the former is unfit or
4. When the best interests of the minor so disqualified; or
require. (Sec. 4, A.M. No.03-02-05-SC) 4. Any other person who in the sound discretion
of the court, would serve the best interest of
Qualifications of guardians (MALFRAP) the minor. (Sec. 6, A.M. No.03-02-05-SC)

1. Moral character; Contents of the petition
2. Availability to exercise the powers and duties
of a guardian for the full period of the 1. Jurisdictional facts;
guardianship;
3. Lack of conflict of interest with the minor; a. Minority of the person for whom
4. Financial status; guardianship is sought; and
5. Relationship of trust with the minor; b. The fact that the minor resides in the place
6. Ability to manage the property of the minor; where the court has jurisdiction.
and
7. Physical, mental, and psychological condition. 2. The name, age and residence of the
(Sec. 5, A.M. No.03-02-05-SC) prospective ward;
3. The ground rendering the appointment
NOTE: The court shall order a social worker to necessary and convenient;
conduct a case study of the minor and all the 4. The death of the parents of the minor or the
prospective guardians and submit his report and termination, deprivation or suspension of their
recommendation to the court for its guidance parental authority;
before the scheduled hearing. (Sec. 9, A.M. No. 03- 5. The remarriage of the minor’s surviving
02-05-SC) parent;
6. The names, ages, residences of relatives within
Non-resident guardians not to be appointed 4th civil degree of minor and of persons having
him in their care and custody;
The Courts should not appoint persons as 7. The probable value, character and location of
guardians who are not within the jurisdiction of the property of the minor; and
our courts for they will find it difficult to protect 8. The name, age, and residence of the person for
the wards. (De Leon & Wilwayco, 2015) whom letters of guardianship are prayer. (Sec.
7, Ibid.)
Substitute parental authority
Time and notice of hearing
The law vests on the father and mother joint
parental authority over the persons of their Notice must be given to persons named in the
common children. In case of absence or death of petition and to the minor if over 14 years of age.
either parent, the parent present shall continue
exercising parental authority. Only in case of the NOTE: Notice to a minor who is above 14 years old
parents’ death, absence or unsuitability may is jurisdictional. Non-compliance with this renders
substitute parental authority be exercised by the the proceedings null and void.
surviving grandparent. (Santos, Sr. v. CA, G.R. No.
113054 March 16, 1995) Grounds for opposition to petition of
guardianship of minors
Who may be appointed as guardian
1. Majority of the alleged minor; or
In default of parents or a court-appointed guardian,

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 SPECIAL PROCEEDINGS

2. Unsuitability of the person for whom letters Guardianship’s termination may be motu propio or
are prayed for. (Sec. 10, A.M. No.03-02-05-SC) by a verified motion by any person allowed to file a
petition for guardianship on the grounds of:
NOTE: Any interested person may contest the
petition by filing a written opposition and pray that 1. Ward has come of age (emancipation);
the petition be denied, or that letters of 2. Ward has died.
guardianship issue to himself, or to any suitable
person named in the opposition. (Sec. 10, A.M. No. NOTE: The guardian shall notify the court of such
03-02-05-SC; Sec. 4, Rule 93) fact within 10 days of its occurrence. (Sec. 25, A.M.
No. 03-02-05-SC-2003-05-01)
If the interested person is a creditor and mortgagee
of the estate of the minor, he cannot be appointed
guardian of the person and property of the latter.

Contents of opposition to the petition

1. Grounds relied upon;
2. Prayer that the petition be denied; or
3. Prayer that letters of guardianship issue to
himself or to any suitable person named in the
opposition.

Bonds of parents as guardians

The parents shall post a bond if the market value of
the child’s properties or income exceeds
₱50,000.00. The bond shall not be less than 10% of
the value of the properties or income. (Sec. 16, A.M.
No. 03-02-05-SC-2003- 05-01)

Grounds for petition to sell or encumber

1. When the income of estate is insufficient to
maintain and educate ward when a minor; or
2. When it appears that it is for the benefit of
theward.

The authority to sell or encumber shall not extend
beyond 1 year, unless renewed by the court. (Sec.
19, A.M. No. 03-02-05-SC-2003-05-01)

Grounds for removal or resignation of guardian

1. Becomes insane or otherwise incapable of
discharging his trust;
2. Is found thereafter to be unsuitable; NOTE: The procedure for the appointment of
3. He wasted or mismanaged the property of the guardian of a minor or incompetent is similar
ward; or except for the case study report which is applicable
4. Has failed to render an account or make a only to appointment of guardian of a minor.
return 30 days after it was due. (Sec. 24, A.M.
No. 03-02-05-SC- 2003-05-01) RULE ON GUARDIANSHIP OVER AN
INCOMPETENT
NOTE: Before a motion for removal or resignation
may be granted under Sec. 24, the guardian must Incompetents
submit the proper accounting of the property of
the ward and the court has to approve the same. 1. Those suffering the penalty of civil
interdiction;
Grounds for termination of guardianship 2. Hospitalized lepers;
3. Prodigals;

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 REMEDIAL LAW
4. Deaf and dumb who are unable to read and the Philippines; and
write; 2. The incompetent. (Sec. 3, Rule 93)
5. Those who are of unsound mind, even though
they have lucid intervals; and GR: There is no requirement for publication, only
6. Persons not being of unsound mind, but by notice.
reason of age, disease, weak mind, and other
similar causes, cannot, without outside aid, Notice of hearing of the petition is not intended as
take care of themselves and manage their a personal service process in the sense necessary
property, becoming thereby an easy prey for to give the court jurisdiction over the ward. (In Re
deceit and exploitation. (Sec. 2, Rule 92) Guardianship of Incompetent Jose de Inchausti v.
Soler, G.R. No. L-15119, January 19, 1920)
Where filed
XPN: In case of non-resident incompetent, service
1. In the RTC of the province where the of notice upon the persons mentioned in the
incompetent resides; or petition is mandatory and jurisdictional. Without
2. If he resides in a foreign country, in the RTC of such notice, the court acquired no jurisdiction to
the province wherein his property or part appoint a guardian. (Nery v. Lorenzo, G.R. L-23096,
thereof is situated. (Sec. 1, Rule 92) April 27, 1972)

Who may file a petition for guardianship of The rules do not necessitate that creditors of the
incompetents minor or incompetent be likewise identified and
notified.
1. Any relative;
2. Friend; or Reason: Their presence is not essential to the
3. Other person on behalf of the resident proceedings for appointment of a guardian.
incompetent who has no parent or lawful (Alamayri v. Pabale, G.R. No.151243, April 30, 2008)
guardian;
4. Secretary of DOH in favor of an insane person Hearing and order for letters to issue
who should be hospitalized or in favor of an
isolated leper. (Sec. 1, Rule 93) At the hearing:

NOTE: If the interested person is a creditor and 1. The alleged incompetent must be present if
mortgagee of the estate of the minor, he cannot be able to attend;
appointed guardian of the person and property of 2. It must be shown that the required notice had
the latter. (Garchitorena v. Sotelo, G.R. No. L-47867, been given;
November 13, 1942) 3. The court shall hear the evidence of the parties
in support of their respective allegations; and
Contents of the petition 4. The court shall appoint a suitable guardian of
his person or estate, or both, with the
1. Jurisdictional facts: respective powers and duties. (Sec. 5, Rule 93)

a. The incompetency of the person for whom Grounds for opposition to petition of
guardianship is sought; and guardianship of incompetent
b. The fact that the ward resides in the place
where the court has jurisdiction; 1. Competency of alleged incompetent;
2. Unsuitability of the person for whom letters
2. The incompetency rendering the appointment are prayed for. (Sec. 4, Rule 93)
necessary or convenient;
3. The names, ages and residences of the relatives Parents as guardians
of the incompetent and of the persons having
him in their care; If the value of the property or the annual income of
4. The probable value and character of his estate; the child is ₱50,000.00 or less, the father and
and mother jointly exercise legal guardianship. In case
5. The name of the person for whom letters of of disagreement, the father’s decision prevails
guardianship are prayed. (Sec. 2, Rule 93) unless there is judicial order to the contrary.

To whom notice served NOTE: If the value exceeds ₱50,000.00, the parent
concerned must file a verified petition for the
1. Persons mentioned in the petition residing in approval of the bond, the amount of which the

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 SPECIAL PROCEEDINGS

court may determine, but must not be less than 1. Petition must be verified;
10% of the value of the property or the annual 2. Notice must be given to the next of kin; and
income of the child. (Arts. 225 and 220, FC) 3. Hearing so that they may show cause why
petition should not be granted.
GENERAL POWERS AND DUTIES OF GUARDIANS
NOTE: Sale of the ward’s realty by the guardian
1. Care and custody of the person of the ward; without authority from the court is void. The court
2. Management of his estate; may authorize and require the guardian to invest
3. Pay the debts of the ward; the proceeds of sales or encumbrances, and any
4. To settle accounts, collect debts, and appear in other of his ward's money in his hands, in real
actions for the ward; estate or otherwise, as shall be for the best interest
5. Manage the estate of the ward frugally, and of all concerned, and may make such other orders
apply the proceeds to the maintenance of the for the management, investment, and disposition of
ward; the estate and effects, as circumstances may
6. Render a verified inventory within 3 months require. (Sec. 5, Rule 95)
after his appointment and annually thereafter,
and upon application of interested persons; Next of kin
7. Render to court for its approval an accounting
of the property for 1 year from his Relatives who are entitled to share in the estate of
appointment and as often thereafter as may be the ward under the Law on Intestate Succession
required, and upon application of interested including those who inherit per stripes or by right
persons; and of representation. (Lopez v. Teodoro, Sr., G.R. No. L-
8. Consent to a partition of real or personal 3071, May 29, 1950)
property owned by ward jointly or in common
with others. (Secs. 1-8, Rule 96; Sec. 17, A.M. Duration of the order of sale and encumbrance
No.03-02-05-SC) of property

NOTE: Unlike trustees, the accounting made by the GR: The authority to sell or encumber shall not
guardian is not under oath, and not made annually. extend beyond 1 year. One year shall be reckoned
(Sec. 6 [c], Rule 98 in relation to Sec. 8, Rule 96) from the granting of the order.

If an issue arises as to who has the better right or XPN: Unless renewed by the court. (Sec. 4, Rule 95)
title to the properties conveyed in the guardianship
proceeding, such issue should be threshed out in a It is presumed that if the property was not sold
separate ordinary action as it is beyond the within 1 year, the ward has sufficient income.
jurisdiction of the guardianship court, unless the
ward’s right or title to the property is clear and Prohibition against guardians
undisputable.
The guardian cannot acquire by purchase even at a
When guardian may sell property of the ward public or judicial auction, either in person or
through the mediation of another, the property of
1. When the income of a property under the person or persons who may be under
guardianship is insufficient to maintain and guardianship.
educate the ward, and his family; or
2. When it is for the benefit of the ward that his Appeal is the proper remedy against an order of
personal or real property or any part thereof the court authorizing the sale of the ward’s
be sold, mortgaged or otherwise encumbered, property. (Lopez v. Teodoro, supra)
and the proceeds invested in safe and
productive security, or in the improvement or NOTE: There being a presumption that the sale of
security of other real property. (Sec. 19, A.M. the ward’s estate is valid; it cannot be attacked
No.03-02-05- SC) collaterally in the registration proceedings. A
separate action to avoid or rescind the sale on the
NOTE: However, before the guardian can sell, grounds specified by law should be filed. (Margate
mortgage or encumber the property of the ward, v. Rabacal, G.R. No. L-14302, April 30, 1963)
the guardian must seek authority from the court by
filing a verified petition. CONDITIONS OF THE BOND OF THE GUARDIAN

Jurisdictional requirements Before an appointed guardian enters upon the
execution of his trust, he shall give a bond, in such

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 REMEDIAL LAW
sum to be determined by the court and under the TERMINATION OF GUARDIANSHIP
following conditions:
Who may file
1. To make and return to the court within 3
months, a true and complete inventory of all 1. Person who has been declared incompetent;
the estate of his ward which shall come to his 2. His guardian;
possession or knowledge or to the possession 3. Relative; or
or knowledge of any other person for him; 4. Friend.
2. To faithfully execute the duties of his trust,
manage and dispose of the estate according to The petition shall be verified by oath and shall
the rules for the best interests of the ward, and state that such person is then competent. (Sec. 1,
to provide for the proper care, custody, and Rule 97)
education of the ward;
3. To render a true and just account of all the Grounds of termination
estate of the ward in his hands, and of all
proceeds or interest derived therefrom, and of 1. Death of the ward;
the management and disposition of the same, 2. Death of the guardian;
at the time designated by the rules and such 3. Competency of the ward has been judicially
other times as the court directs; declared;
4. At the expiration of his trust, settle his 4. Guardianship is no longer necessary; or
accounts with the court and deliver and pay 5. The ward has come of age (emancipation)
over all the estate, effects, and moneys
remaining in his hands, or due from him on As a general rule, a guardianship court has no
such settlement, to the person lawfully entitled power to order the person suspected of embezzling
thereto; and or concealing property of the ward to deliver the
5. To perform all orders required by the court. same to the court. A guardianship court only has
(Sec. 1, Rule 94; Sec.14, A.M. No. 03-02-05-SC) the power to cite such person to obtain
information on the property. (Parco v. CA, G.R. No.
Purpose of the bond L-33152, January 30, 1982)

For the protection of the property of the minor or Who may oppose
incompetent to the end that he may be assured of
an honest administration of his funds. (Herrera, 1. Guardian;
2005) 2. Relative of the ward; or
3. Any other person, in the discretion of the court
NOTE: The bond of the guardian is a continuing
one against the obligors and their estates until all Grounds for removal of guardianship over
its conditions are fulfilled. The mere fact that minors and incompetents
defendant was removed as guardian did not relieve
her or her bondsmen from liability during the time 1. Insanity;
she was duly acting as such guardian. (Guerrero v. 2. Incapability or unsuitability for discharging his
Teran, G.R. No. L-4898, March 19, 1909) trust;
3. Wastage or mismanagement of the property of
Necessity of the bond the ward; or
4. Failure to render an account or make a return
When required by statutes to give a bond, no for 30 days after it is due. (Sec. 2, Rule 97)
person can qualify and act as guardian without
complying with this condition precedent. The remedy of the guardian from the order of
removal is to appeal. (Olarte v. Enriquez, G.R. No. L-
Time when bond takes effect 16098, October 31, 1960)

At the time of appointment, notwithstanding the The guardian may file a petition before the
bond being filed later. guardianship court for permission to resign his
trust, stating the grounds therefore, and
NOTE: In case of breach of the bond’s conditions, accompanied by a report of the state of his account
the bond may be prosecuted in the same and an offer to settle the account and deliver the
proceeding or in a separate action, for the use and estate over the court. (Herrera, 2005)
benefit of the ward or of any person legally
interested in the estate. (Sec. 3, Rule 94) Special Disqualification

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 SPECIAL PROCEEDINGS

1. Non-residence of the guardian; 1. Must be of legal age;

2. Advance age of the guardian; and 2. In possession of full civil capacity and legal
3. Judges, clerks of court and lawyers rights;
3. Possesses good moral character;
4. Has not been convicted of any crime involving
ADOPTION moral turpitude;
5. Emotionally and psychologically capable of
caring for children;
Adoption is the process of making a child, whether 6. Who is in a position to support and care for
related or not to the adopter, possess in general, his/her children in keeping with the means of
the rights accorded to a legitimate child. It is a the family; and
juridical act, a proceeding in rem which creates 7. At least 16 years older than the adoptee
between two persons a relationship similar to that
which results from legitimate paternity and XPNs:
filiation. The modern trend is to consider adoption
not merely as an act to establish a relationship of a. Adopter is the biological parent of the
paternity and filiation, but also as an act which adoptee; or
endows the child with a legitimate status. (In the b. Adopter is the spouse of the adoptee's
Matter of the Adoption Stephanie Nathy Astorga parent. (Sec. 7[a], Art. 3, R.A. 8552)
Garcia, G.R. No. 148311, March 31, 2005)
Qualifications of an alien who may adopt
The relationship established by the adoption is
limited to the adopting parents and does not 1. Possesses same qualifications as those
extend to their other relatives, except as expressly enumerated for Filipino adopters;
provided by law. Thus, the adopted child cannot be 2. His or her country has diplomatic relations
considered as a relative of the ascendants and with the Philippines;
collaterals of the adopting parents, nor of the 3. His or her government allows the adoptee to
legitimate children which they may have after the enter his country as his adopted son/daughter;
adoption, except that the law imposes certain 4. He or she has been certified by his or her
impediments to marriage by reason of adoption. diplomatic or consular office or any
Neither are the children of the adopted considered appropriate government agency that he has
descendants of the adopter. the legal capacity to adopt in their country.
5. He or she has been living in the Philippines for
Preference in adoption (AID) at least 3 continuous years prior to the
application for adoption and maintains such
1. Adoption by the extended family; residence until adoption decree has been
2. Domestic Adoption; entered.
3. Inter-Country Adoption.
XPNs:
DOMESTIC ADOPTION
i. He or she is a former Filipino who seeks
The Domestic Adoption Act (R.A. 8552) applies to to adopt a relative within the 4th civil
adoption of Filipino children, where the entire degree of consanguinity or affinity;
adoption process beginning from the filing of the ii. He or she is married to a Filipino and
petition up to the issuance of the adoption decree seeks to adopt jointly with his spouse a
takes place in the Philippines. (Rabuya, 2009) relative within the 4th degree of
consanguinity or affinity; and
Who can adopt iii. He or she is married to a Filipino and
seeks to adopt the legitimate or
1. Filipino citizens; illegitimate son/daughter of his Filipino
2. Aliens; and spouse. (Sec. 7[b], Art. 3, R.A. 8552)
3. Guardians, with respect to their ward.
Rule on Joint Adoption of Spouses
NOTE: A guardian may only adopt his ward after
termination of guardianship and clearance of his GR: Husband and wife shall adopt jointly. (Sec. 7,
financial accountabilities. Art. 3, R.A. 8552)

Qualifications of a Filipino who may adopt XPNs:

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a. One spouse seeks to adopt the legitimate A child is any person below eighteen (18) years
son/daughter of the other; old. (Sec. 3, Art. 1, R.A. 8552)
b. One spouse seeks to adopt his own
illegitimate son/daughter, provided, that Child legally free for adoption
the other signifies his consent.
A child voluntarily or involuntarily committed to
NOTE: In seeking to adopt his own the DSWD as dependent, abandoned or neglected
illegitimate son or daughter, the law pursuant to the provisions of the Child and Youth
requires that the consent of the spouse of Welfare Code maybe subject of Inter-Country
the adopter must be given to such Adoption; provided that in case of a child shall be
adoption. made not earlier that six (6) months from the date
the Deed of Voluntary Commitment was executed
If on the other hand, the spouse would by the child’s biological parent/s. A legally-free
adopt the illegitimate son or daughter of child is freed of his biological parents, guardians, or
the other, joint adoption is still mandatory. adopters in case of rescission.

c. Spouses are legally separated. Note: The prohibition against physical transfer
shall not apply to adoption by a relative or children
Joint adoption when the adoptees are already with special medical conditions. (Rabuya, 2006)
emancipated
Necessity of written consent for adoption under
Even if emancipation terminates parental domestic adoption
authority, the adoptee is still considered a
legitimate child of the adopter with all the rights of The written consent of the following is necessary
a legitimate child such as: for adoption:

1. to bear the surname of the father and the a. Adoptee, if 10 years of age or over;
mother; b. Biological parent(s) of the child, if known, or
2. to receive support from their parents; and the legal guardian, or the proper government
3. to be entitled to the legitime and other instrumentality which has legal custody of the
successional rights. Conversely, the adoptive child;
parents shall, with respect to the adopted c. Legitimate and adopted sons or daughters, ten
child, enjoy all the benefits to which biological 10 years of age or over, of the adopter(s) and
parents are entitled such as support and adoptee, if any;
successional rights. d. Illegitimate sons/daughters, ten 10 years of
age or over, of the adopter if living with said
Who may be an adoptee adopter and the latter's spouse, if any;
e. Spouse, if any, of the person adopting or to be
1. Any person BELOW eighteen (18) years of age adopted. (Sec. 9, Art. 3, R.A. 8552)
who has been administratively or judicially
declared available for adoption; NOTE: In all instances where it appears that a
2. The legitimate son/daughter of one spouse by spouse attempts to adopt a child out of
the other spouse; wedlock, the other spouse and other legitimate
3. An illegitimate son/daughter by a qualified children must be personally notified through
adopter to improve his/her status to that of personal service of summons. It is not enough
legitimacy; that they be deemed notified through
4. A person of legal age if, prior to the adoption, constructive service. (Castro v. Gregorio, G.R.
said person has been consistently considered No. 188801, October 15 2014, as penned by J.
and treated by the adopter(s) as his/her own Leonen)
child since minority;
5. A child whose adoption has been previously EFFECTS OF ADOPTION
rescinded; or
6. A child whose biological or adoptive parent(s) GR: Severance of all legal ties between the
has died: Provided, that no proceedings shall biological parents and the adoptee and the same
be initiated within 6 months from the time of shall then be vested on the adopters. (Sec. 16, Art. 5,
death of said parent(s). (Sec. 8, Art. 3, R.A. RA 8552)
8552)
XPN: In cases where the biological parent is the
Child spouse of the adopter;

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1. Deemed a legitimate child of the adopter; (Sec. 5. Conviction of a crime which carries a penalty
17, Art. 5, RA 8552) of civil interdiction;
2. Acquires reciprocal rights and obligations 6. Adultery or concubinage with the testator’s
arising from parent-child relationship; wife;
3. Right to use surname of adopter; (NCC, Art. 7. Refusal without justifiable cause to support the
365) parent or ascendant;
4. In legal and intestate succession, the adopters 8. Leads a dishonorable or disgraceful life.
and the adoptee shall have reciprocal rights of
succession without distinction from legitimate EFFECTS OF RESCISSION OF ADOPTION
filiation. However, if the adoptee and his/her
biological parents had left a will, the law on 1. If adoptee is still a minor or is incapacitated –
testamentary succession shall govern. (Sec. 18, Restoration of:
Art. 5, R.A. 8552) a. Parental authority of the adoptee’s
biological parents, if known; or
INSTANCES WHEN ADOPTION MAY BE b. Custody of the DSWD;
RESCINDED 2. Reciprocal rights and obligations of the
adopters and adoptee to each other shall be
Who may file the action for rescission of extinguished;
domestic adoption 3. Court shall order the civil registrar to cancel
the amended certificate of birth of the adoptee
The adoptee has the sole right to severe the legal and restore his/her original birth certificate;
ties created by adoption and the one who will file 4. Succession rights shall revert to its status prior
the action for rescission. However, if the adoptee is to adoption, but only as of the date of judgment
still a minor or above eighteen (18) years of age of judicial rescission;
but incapacitated, the Department of Social and 5. Vested rights acquired prior to judicial
Welfare Development as the adoptee’s guardian or rescission shall be respected. (Sec. 20, Art. 6,
counsel may assist the adoptee for rescinding the R.A. 8552)
decree of adoption.
INTER-COUNTRY ADOPTION
The adopter cannot seek the rescission of the
adoption but he may disinherit the adoptee. A socio-legal process of adopting a Filipino child by
a foreigner or a Filipino citizen permanently
Grounds upon which an adoptee may seek residing abroad where the petition is filed, the
judicial rescission of the adoption (SARA) supervised trial custody is undertaken, and the
decree of adoption is issued outside the
When the adopter has committed the following: Philippines. (Sec. 3[a], R.A. 8043)

1. Sexual assault or violence committed against Who may adopt
the adoptee;
2. Attempt on the life of the adoptee; a. Any alien; and
3. Repeated physical and verbal maltreatment by b. Filipino citizen, both permanently residing
the adopter despite having undergone abroad.
counseling;
4. Abandonment and failure to comply with Qualifications needed for a Filipino or alien to
parental obligations; adopt (Sec. 9, Art. 3, R.A. 8043)

Grounds by which an adopter may disinherit At least 27 years old and 16 years older than the
adoptee child to be adopted at the time of the application
unless:
1. Groundless accusation against the testator of a 1. adopter is the parent by nature of the
crime punishable by 6 years or more child;
imprisonment; 2. adopter is the spouse of the parent by
2. Found guilty of attempt against the life of the nature of the child to be adopted.
testator, his/her spouse, descendant or 3. If married, his spouse must jointly file for
ascendant; adoption;
3. Causes the testator to make changes or 4. Has the capacity to act or assume all rights
changes a testator’s will through violence, and responsibilities of parental authority
intimidation, fraud or undue influence; under his national law and has undergone
4. Maltreatment of the testator by word or deed;

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 REMEDIAL LAW
the appropriate counseling from an In order that such child may be considered for
accredited counselor in his/her country; placement, the following documents must be
5. Has not been convicted of a crime submitted to the Board:
involving moral turpitude;
6. Is eligible to adopt under his national law; a. Child study;
7. Is in a position to provide for proper care b. Birth certificate/ foundling certificate;
and support and give necessary moral c. Deed of Voluntary Commitment/Decree of
values and to give the necessary moral Abandonment/Death Certificate of Parents;
values and example to all his children, d. Medical evaluation or history;
including the child to be adopted; e. Psychological evaluation, as necessary; and
8. Agrees to uphold the basic rights of the f. Recent photo of the child. (Sec. 8, R.A. 8043)
child mandated by the UN Convention of
Rights of Child and the Philippine Laws, Child
and to abide by the rules and regulations
issued to implement the provisions of this A child is any person below 15 years old. (Sec. 3,
Act; R.A. 8043)
9. Comes from a country with whom the
Philippines has diplomatic relations and Note: No child shall be matched to a foreign
whose government maintains a similarly adoptive family unless it is satisfactorily shown
authorized and accredited agency and that that the child cannot be adopted in the Philippines.
adoption is allowed under his/her national (Sec. 11, R.A. 8043)
laws; and
10. Possesses all the qualifications and none of GR: There shall be no physical transfer of a
the disqualifications under the law or voluntarily committed child earlier than 6 months
other applicable Philippine laws. from the date of execution of Deed of Voluntary
Commitment. (Sec. 26, Art. 8, Amended
Necessity of written consent for adoption in Implementing Rules and Regulations of R.A. 8043)
intercountry adoption
XPN:
The written consent of the following is necessary
for adoption: a. Adoption by relative;
b. Child with special medical condition.
a. Written consent to the adoption in the
form of a sworn statement by the WHEN ALLOWED
biological and/or adopted children of the
applicants who are ten (10) years of age or Inter-country adoption is allowed only as a last
over, to be attached to the application filed resort. No child shall be matched to a foreign
with the Family Court or Inter- Country adoptive family unless it is satisfactorily shown
Adoption Board; (Sec. 28, Art. 8, Amended that the child cannot be adopted locally. (Sec. 11,
Implementing Rules and Regulations of RA Art. 3, R.A. 8043)
8043) and
b. If a satisfactory pre-adoptive relationship All possibilities for adoption of the child under the
is formed between the applicant and the Family Code must have been exhausted first and
child, the Board shall transmit an Affidavit that inter-country adoption is in the best interest of
of Consent to the Adoption executed by the the child.
Department to the Central Authority
and/or the FAA within fifteen (15) days FUNCTIONS OF THE REGIONAL TRIAL COURT
after receipt of the last post placement
report. (Sec. 50, Art. 8, Amended An application to adopt a Filipino child shall be
Implementing Rules and Regulations of R.A. filed either with the Philippine Regional Trial Court
8043) having jurisdiction over the child, or with the
Board, through an intermediate agency, whether
Adoptee governmental or an authorized and accredited
agency, in the country of the prospective adoptive
Only a legally free child may be the subject of inter- parents, which application shall be in accordance
country adoption. In order that such child may be with the requirements as set forth in the
considered for placement, the following documents implementing rules and regulations to be
must be submitted to the Board. promulgated by the Board.

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 SPECIAL PROCEEDINGS

The application shall be supported by the following BEST INTEREST OF THE CHILD STANDARD
documents written and officially translated in
English. In choosing the parent to whom custody is given,
the welfare of the minors should always be the
1. Birth certificate of applicant(s); paramount consideration. Courts are mandated to
2. Marriage contract, if married, and divorce take into account all relevant circumstances that
decree, if applicable; would have a bearing on the children’s well-being
3. Written consent of their biological or adoptive and development. Aside from the material
children above ten (10) years of age, in the resources and the moral and social situations of
form of sworn statement; each parent, other factors may also be considered
4. Physical, medical and psychological evaluation to ascertain which one has the capability to attend
by a duly licensed physician and psychologist; to the physical, educational, social and moral
5. Income tax returns or any document showing welfare of the children. Among these factors are
the financial capability of the applicant(s); the previous care and devotion shown by each of
6. Police clearance of applicant(s); the parents; their religious background, moral
7. Character reference from the local uprightness, home environment and time
church/minister, the applicant’s employer and availability; as well as the children’s emotional and
a member of the immediate community who educational needs. (Jocelyn Pablo-Gualberto vs.
have known the applicant(s) for at least five Crisanto Rafaelito Gualberto V, G.R. No. 154994, June
(5) years; and 28, 2005)
8. Recent postcard-size pictures of the
applicant(s) and his immediate family;

NOTE: The Rules of Court shall apply in case of
adoption by judicial proceedings.

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 REMEDIAL LAW
Distinctions between the Domestic Adoption Act and the Inter-country Adoption Act

DOMESTIC ADOPTION ACT INTER-COUNTRY ADOPTION ACT
(R.A. 8552) (R.A. 8043)
Governing Department of Social Welfare and Inter-country Adoption Board
body Development
When may Adoption need not be the last resort Adoption only as last resort: No child shall be
adoption be matched to a foreign adoptive family unless it
resorted to is satisfactorily shown that the child cannot be
adopted locally (Sec. 11).

Who may 1. 1. Any FILIPINO CITIZEN

1. 1. FILIPINO CITIZEN permanently residing
adopt (regardless of where residing) abroad

Qualifications: Qualifications:

a. Of legal age; a. Is at least twenty-seven (27) years of age;
b. At least 16 years older than the b. At least sixteen (16) years older than the
adoptee, may be waived when the child to be adopted, at the time of
adopter is the biological parent of application unless the adopter is the
the adoptee, or is the spouse of the parent by nature of the child to be
adoptee’s parent; adopted or the spouse of such parent;
c. In possession of full civil capacity c. Has the capacity to act and assume all
and legal rights; rights and responsibilities of parental
d. Of good moral character, has not authority under his national laws, and has
been convicted of any crime undergone the appropriate counseling
b. involving moral turpitude, from an accredited counselor in his/her
c. emotionally and country;
d. psychologically capable of caring d. Has not been convicted of a crime
for children; and involving moral turpitude;
a. Who is in a position to support e. Is in a position to provide the proper care
and care for his/her children in and support to give the necessary moral
keeping with the means of the values and example to all his children
family. including the child to be adopted;
f. If married, his/her spouse must jointly file
2. 2. Any ALIEN possessing the same for the adoption;
qualifications as above stated for g. Is eligible to adopt under his/her national
Filipino nationals, Provided; law;
h. Agrees to uphold the basic rights of the
a. That he/she has been living in the child as embodied under Philippine laws,
Philippine for at least 3 the U.N.
continuous years prior to the i. Convention on the Rights of the Child, and
filing of the application for to abide by the rules and regulations
adoption and maintains such issued to implement the provisions of this
residence until the adoption Act;
decree is entered; j. Comes from a country with whom the
b. That his/her country has Philippines has diplomatic relations and
diplomatic relations with the whose government maintains a similarly
c. Republic of the Philippines; Authorized and accredited agency and
d. He/she has been certified by that adoption is allowed under his/her
his/her diplomatic or consular national laws; and
office or any appropriate k. Possesses all the qualifications and none
government agency that he/she of the disqualifications provided herein
has the legal capacity to adopt in and in other applicable Philippine laws.
his/her country;
2. ALIEN with above qualifications.
The requirements on residency and
certification to adopt in his/her country

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may be WAIVED for the following:

a. A former Filipino citizen who
seeks to adopt a relative within
the fourth (4th) degree of
consanguinity or affinity; or
b. One who seeks to adopt the
legitimate son/daughter of
his/her Filipino spouse; or
c. One who is married to a Filipino
citizen and seeks to adopt jointly
with his/her spouse a relative
within the fourth (4th) degree of
consanguinity or affinity of the
Filipino spouse.

3. The GUARDIAN with respect to the
ward after the termination of the
guardianship and clearance of his/her
financial.
Who may be a. Any person below 18 years of age a. Filipino children below 15 years of age
adopted who has been administratively or and who are legally free.
judicially declared available for b. Any child who has been voluntarily or
adoption; involuntarily committed to the
b. The legitimate son/daughter of Department as dependent, abandoned or
one spouse by the other spouse; neglected pursuant to the provisions of
c. An illegitimate son/daughter by a the Child and Youth Welfare Code may be
qualified adopter to improve the subject of Inter-Country Adoption xxx
his/her status to that of (Sec. 26).
legitimacy;
d. A person of legal age if, prior to
the adoption, said person
e. has been consistently considered
and treated by the adopter(s) as
his/her own child since minority;
f. A child whose adoption has been
previously rescinded; or
g. A child whose biological or
adoptive parent(s) has died.
Venue Petition for adoption shall be filed with Either with the Philippine RTC having
Family Court of the province or city jurisdiction over the child, or with the Inter-
where the prospective adoptive parents country Board through an intermediate agency,
reside. (Rule on Adoption, Sec. 6) whether governmental or an authorized and
accredited agency, in the country of the
prospective adoptive parents. (Sec. 10)
Trial Custody Takes place in the Philippines Where adoptive parents reside
Rescission Only upon petition of adoptee, never by No provision limiting act of rescission only to
adopters. (Sec. 19). adoptee.
and the cause of his caption and detention, to do,
submit to and receive whatsoever, the court or
WRIT OF HABEAS CORPUS judge awarding the writ shall consider in that
(Rule 102) behalf. (Illusorio v. Bildner, G.R. No. 139789, May 12,
2000)

It is a writ directed to the person detaining another Scope of the writ
and commanding him to produce the body of the
prisoner at a certain time and place with the day Habeas corpus extends to:

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 REMEDIAL LAW
1. All cases of illegal confinement or In habeas corpus proceedings, the only parties
detention by which a person is deprived of before the court are the petitioner (prisoner)
his liberty; or and the person holding the petitioner in
2. Cases by which the rightful custody of the custody. (Claridades, 2017)
person is withheld from the person
entitled thereto (Sec. 1, Rule 102) (2005 & 2. Ancillary – The writ of habeas corpus and
2009 BAR); certiorari may be ancillary to each other where
3. As a post-conviction remedy or when necessary to give effect to the supervisory
there is an alleged violation of the liberty powers of the higher courts. A writ of habeas
of abode (Osorio v. Navera, G.R. No. 223272, corpus reaches the body and the jurisdictional
February 26, 2018, as penned by J. matters, but not the record. A writ of certiorari
Leonen); and reaches the record but not the body. Hence, a
4. If the results of the post-conviction DNA writ of habeas corpus may be used with the
testing are favorable to the convict. (Sec. writ of certiorari for the purpose of review.
10 in relation to Sec. 6, A.M. No. 06-11-5-SC, (Galvez v. CA, G.R. No. 114046, October 24,
effective October 15, 2007). 1994)

Purpose However, habeas corpus does not lie where the
petitioner has the remedy of appeal or
In general, the purpose of the writ is to determine certiorari.
whether or not a particular person is legally held.
(De Leon & Wilwayco, 2015) NOTE: In habeas corpus cases, the judgment in
favor of the applicant cannot contain a
To justify the grant of the petition, the restraint of provision for damages.
liberty must be an illegal and involuntary
deprivation of freedom of action. The illegal 3. Prerogative writ – A writ of habeas corpus
restraint of liberty must be actual and effective, not which is regarded as a “palladium of liberty,” is
merely nominal or moral. (Ilusorio v. Bildner, G.R. a prerogative writ which does not issue as a
Nos.135789-90, May 16, 2000) matter of right but in the sound discretion of
the court or judge.
Nature of the petition
NOTE: Resort to the writ is to inquire into the
1. Summary – Habeas corpus is a summary criminal act of which a complaint is made but
remedy. It is analogous to a proceeding in rem unto the right of liberty, notwithstanding the
when instituted for the sole purpose of having act, and the immediate purpose to be served is
the person of restraint presented before the relief from illegal restraint. (Caballes v. Court of
judge in order that the cause of his detention Appeals, G.R. No. 163108, February 23, 2005)
may be inquired into and his statements final.
The writ of habeas corpus does not act upon Grounds for suspension of the privilege of the
the prisoner who seeks relief, but upon the writ of habeas corpus under the Constitution:
person who holds him in what is alleged to be
the unlawful authority. Hence, the only parties 1. Invasion, when public safety requires it; or
before the court are the petitioner and the 2. Rebellion, when public safety requires it.
person holding the petitioner in custody, and (Sec. 18, Art. VIII, 1987 Constitution)
the only question to be resolved is whether the
custodian has authority to deprive the Kinds of writ of habeas corpus
petitioner of his liberty. (Caballes v. CA, G.R. No.
163108, February 23, 2005) 1. Preliminary citation - if the person is
detained under governmental authority
NOTE: Proceedings in habeas corpus are and the illegality of his detention is not
separate and distinct from the main case from patent from the petition for the writ, the
which the proceedings spring. They rarely, if court issues the citation to government
ever touch the merits of the case and require officer having custody to show cause why
no pronouncement with respect thereto. They the habeas corpus writ should not issue;
deal simply with the detention of the prisoner and
and stop with the authority by virtue of which 2. Peremptory writ - if the cause of the
he is detained. (De Leon & Wilwayco, 2015) detention appears to be patently illegal,
the court issues the habeas corpus writ
noncompliance with which is punishable.

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(Lee Yick Hon v. Insular Collector of 1. That the person in whose behalf the
Customs, G.R. No. L-16779, March. 20, 1921) application is made is imprisoned or
restrained of his liberty;
Grounds for the issuance of writ of habeas 2. The officer or name of the person by
corpus as a consequence of judicial proceeding whom he is so imprisoned or restrained;
or, if both are unknown or uncertain, such
1. There has been a deprivation of a officer or person may be described by an
constitutional right resulting in restraint of assumed appellation, and the person who
a person; is served with the writ shall be deemed the
2. The court has no jurisdiction to impose the person intended;
sentence; 3. The place where he is so imprisoned or
3. An excessive penalty has been imposed, restrained, if known; and
the sentence being void as to excess; 4. The cause of his detention.
4. Where the law is amended, as when the
penalty is lowered; (Feria v. CA, G.R. No. NOTE: The formalities required for petitions for
122954, February 15, 2000) habeas corpus must be construed liberally. Strict
5. Denial of right to a speedy trial (since it is compliance with the technical requirements for a
jurisdictional); habeas corpus petition may be dispensed with
6. Where the results of post-conviction DNA where the allegations in the application are
testing are favorable to the convict; sufficient to make out a case for habeas corpus.
7. Enable the parents to regain custody of a (Fletcher v. Director of Bureau of Corrections, UDK-
minor child, even if the latter be in the 14071, July 17, 2009)
custody of a third person of her own free
will; (Tijing v. CA, G.R. No. 125901, March 8, CONTENTS OF THE RETURN
2001)
8. In determining the constitutionality of a When the person to be produced is imprisoned or
statute; (People v. Vera, G.R. No. L-45685, restrained by an officer, the person who makes the
November 16, 1937) return shall state therein, and in other cases the
9. When testing the legality of an alien’s person in whose custody the prisoner is found
confinement and proposed expulsion from shall state, in writing to the court or judge before
the Philippines; (Lao Tang Bun v. Fabre, whom the writ is returnable, plainly and
G.R. No. L-1673, October 22, 1948) unequivocably:
10. In permitting an alien to land in the
Philippines; (Lim Cheng v. Insular Collector 1. Whether he has or has not the party in his
of Customs, G.R. No. 16406, September 13, custody or power, or under restraint;
1920) and 2. If he has the party in his custody or power, or
11. In determining the legality of an under restraint, the authority and the true and
extradition. (United States v. Rauscher, 7 S. whole cause thereof, set forth at large, with a
Ct. 234, 30 L. Ed. 425, December 6, 1886) copy of the writ, order, execution, or other
process, if any, upon which the party is held;
CONTENTS OF THE PETITION 3. If the party is in his custody or power or is
restrained by him, and is not produced,
Who may file particularly the nature and gravity of the
sickness or infirmity of such party by reason of
1. Party for whose relief it is intended or a which he cannot, without danger, be brought
person unlawfully imprisoned or before the court or judge;
restrained of his liberty; or 4. If he has had the party in his custody or power,
2. Some person on his behalf or under restraint, and has transferred such
custody or restraint to another, particularly to
In a habeas corpus proceeding, any person may whom, at what time, for what cause, and by
apply for the writ on behalf of the aggrieved party. what authority such transfer was made. (Sec.
(Boac vs. Cadapan, G.R. No. G.R. Nos. 184461-62, 31 10, Rule 102)
May 2011)
NOTE: If it appears that the prisoner is in the
Form and contents of the petition custody of a public officer under a warrant of
commitment in pursuance of law, the return shall
The party may apply through a signed and verified be considered prima facie evidence of the validity
petition for a writ of habeas corpus and should of the restraint
contain the following: (PICO)

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 REMEDIAL LAW
But if he is restrained of his liberty by an alleged should not issue. Customs, G.R. No.
private authority, the return shall be considered 16779, March 30,
only as a plea of the facts therein set forth, and the 1921)
party claiming the custody must prove such facts.
(Sec. 13, Rule 102) In a habeas corpus petition, the order to present an
individual before the court is a preliminary step in
Return to be signed and sworn to the hearing of the petition. The respondent must
produce the person and explain the cause of his
GR: The return or statement shall be sworn to by detention. However, this order is not a ruling on
the person who makes it. the propriety of the remedy or on the substantive
matters covered by the remedy. Thus, the Court’s
XPN: The return is made and signed by a sworn order to the CA to conduct a factual hearing was
public officer in his official capacity. not an affirmation of the propriety of the remedy of
habeas corpus. (In the Matter of the Petition for
XPN to the XPN: When the prisoner is not Habeas Corpus of Alejano v. Cabuay, G.R. No.
produced. 160792, August 25, 2005)

In all cases, the return or statement shall be signed Period of appeal
by the person who makes it. (Sec. 11, Rule 102)
Under BP 129, the period of appeal in habeas
Hearing on return corpus cases shall be 48 hours from the notice of
the judgment or final order appealed from.
GR: The court or judge before whom the writ is
returned or adjourned must immediately proceed Q: Luis Ramos initiated a complaint-affidavit
to hear and examine the return. for deportation before the Bureau of
Immigration and Deportation (BID) against
XPN: The hearing may be adjourned for good Jimmy Go alleging that the latter is an illegal
causes, provided that conditions upon the and undesirable alien. The complaint for
safekeeping of the detained person are laid. If the deportation was dismissed but was
detained person cannot be produced before the subsequently reversed by the Board of
court, the officer or person detaining must satisfy Commissioners; hence the corresponding Charge
the court of the gravity of the alleged sickness or Sheet was filed against Jimmy, charging him of
infirmity. (Sec. 12, Rule 102) violating the Philippine Immigration Act of 1940.
The Board of Commissioners issued a warrant
NOTE: During the hearing, the court or judge shall of deportation which led to the apprehension of
disregard matters of form and technicalities of the Jimmy. Jimmy commenced a petition for
authority or order of commitment. habeas corpus. Should the petition be granted?

The failure of petitioners to file a reply to the A: NO. Once a person detained is duly charged in
return of the writ warrants the dismissal of the court, he may no longer question his detention
petition because unless controverted, the through a petition for issuance of a writ of habeas
allegations on the return are deemed to be true or corpus. His remedy would be to quash the
admitted. (Florendo v. Javier, G.R. No. L-36101, June information and/or the warrant of arrest duly
29, 1979) issued. The writ of habeas corpus should not be
allowed after the party sought to be released had
PEREMPTORY WRIT AND PRELIMINARY been charged before any court. The term “court” in
CITATION this context includes quasi-judicial bodies of
governmental agencies authorized to order the
Kinds of Writ of Habeas Corpus person’s confinement, like the Deportation Board
of the Bureau of Immigration. (Go, Sr. v. Ramos, G.R.
PRELIMINARY PEREMPTORY WRIT No. 167569, Fernandez v. Jimmy Go, G.R. No. 167570,
CITATION September 4, 2009)
Issued when a Issued when the cause
government officer has of the detention Q: A municipal trial judge, who is related within
the person in his appears to be patently the third degree of consanguinity to Archie,
custody, the illegality illegal and the non- complainant, has conducted an ex parte
of which is not patent, compliance herewith preliminary investigation without affording
to show cause why the is punishable. (Lee Yick Ben, accused, opportunity to be heard and
writ of habeas corpus Hon v. Collector of thereafter issued a warrant of arrest, pursuant

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to which Ben has been detained, and police officer frisked him but the latter found
subsequently forwarded the records of the case no contraband. The police officer told Hercules
to the provincial prosecutor for appropriate to get inside the police station. Inside the police
action. Will habeas corpus and certiorari lie? station, Hercules asked the police officer, "Sir,
may problema po ba?" Instead of replying, the
A: YES. A petition for habeas corpus to relieve Ben police officer locked up Hercules inside the
under the illegal warrant of arrest, and for police station jail.
certiorari to assail the warrant of arrest may be
filed, and the judge may properly be made a. What is the remedy available to
respondent, even though the accused has been in Hercules to secure his immediate
physical custody of the Provincial warden, as the release from detention?
judge has constructive custody of the accused. For b. If Hercules opts to file a civil action
the illegal order and warrant of arrest issued by against the police officer, will he have a
the judge subsists and Ben is offered no speedy, cause of action? (2015 BAR)
adequate remedy or appeal in the ordinary course
of law. The writ of habeas corpus, although not A:
designed to interrupt the orderly administration of a. The remedy available to Hercules to
justice, can be invoked, in fine, by the attendance of secure his immediate release from
special circumstance that requires immediate detention is a petition for writ of habeas
action. (Calvan v. CA, G.R. No.140823, October 3, corpus. Under Rule 102, the writ of habeas
2000) corpus is available in cases of illegal
detention. Section 5 of Rule 102 provides
Q: Rita Labriaga was caught selling two tea bags that a court or judge authorized to grant
of marijuana in Daraga, Albay in a buy-bust the writ must, when the petition therefor
operation conducted by the Narcotics is presented and it appears that the writ
Command. Rita was found in possession of 115 ought to issue, grant the same forthwith,
grams of marijuana. Rita was convicted for and immediately thereupon the clerk of
violation of RA 6425 and was sentenced for life court shall issue the writ or in case of
imprisonment. Rita filed a motion for emergency, the judge may issue the writ
reconsideration with modification of sentence. under his own hand and may depute any
Rita prays for the retroactive application to her officer or person to serve it. The court or
case of RA 7659 which imposes imprisonment judge before whom the writ is returned
of prision correccional for less than 250 grams must immediately proceed to hear and
of marijuana and for her eventual release from examine the return. (Section 12, Rule 102)
confinement at the Correctional Institution for
Women in Mandaluyong as a consequence of b. YES. Hercules will have a cause of
the application of the new law to her case. It action. Under Article 32(4) of the Civil
appears that she already served sentence for a Code, any public officer who violates the
more than a year. Should the motion be right of a person to freedom from arbitrary
granted? or illegal detention shall be liable to the
latter for damages. The action to recover
A: YES. The appropriate remedy is to file a petition damages is an independent civil action.
for habeas corpus considering that the decision in Here Hercules was illegally detained as
this case is final. However, in accordance with the there was no probable cause to arrest him
ruling in Angeles v. Bilibid Prison (G.R. No. 117568, without warrant.
January 4, 1995) and People v. Agustin (G.R. No.
98362, September 5, 1995), in which the SC held Who may grant the writ
that the rules on habeas corpus should be liberally
applied in cases which are sufficient in substance, The RTC, CA, and SC have concurrent jurisdiction
the motion in this case must be treated as a to issue writs of habeas corpus. The MTC, by virtue
substantial compliance with the rules on habeas of special jurisdiction under BP. 129, can issue the
corpus. Rita Labriaga, having served more than the writ in case there is no available RTC judge.
maximum imposable penalty of prision Hierarchy of courts is not observed.
correccional, should be released. (People v.
Labriaga, G.R. No. 92418, November 20, 1995) The writ issued by the RTC is enforceable within its
territorial jurisdiction. While the writ issued by the
Q: Hercules was walking near a police station CA or SC is enforceable anywhere in the
when a police officer signaled for him to Philippines. (Sec. 2, Rule 102) (2003, 2005 & 2007
approach. As soon as Hercules came near, the BAR)

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 REMEDIAL LAW
This provision is another exception to the rule that The writ itself plays the role of summons in
processes of the RTC are enforceable throughout ordinary actions; court acquires jurisdiction over
the Philippines. (Regalado, Vol. II, 10thed.) the person of the respondent by mere service of
writ. (Sec. 7, Rule 102)
The Sandiganbayan may issue writs of habeas
corpus only if it is in aid of its appellate jurisdiction. How writ executed and returned
(Sec. 4, P.D. 1606, as amended by RA 8249)
GR: Officer to whom the writ is directed shall
Family Courts have exclusive jurisdiction to issue convey the detained person on the day specified in
writs of habeas corpus involving custody of minors. the writ

Procedure for grant of writ 1. Before the judge who allowed the writ; or
2. If he is absent, before any judge of the
1. Verified petition signed by the party for same court.
whose relief it is intended; or by some
other person in his behalf; XPN: If the person to be produced has sickness or
2. Allowance of writ; infirmity such that he cannot be brought before the
3. Command officer to produce; court without danger. (Sec. 8, Rule 102)
4. Service of writ by sheriff or other officer;
5. Return; and Q: When the soldier’s defense to a petition for
6. Hearing on return. (Sec. 5, Rule 102) habeas corpus is that they released the
detainees for whom the petition was filed, but
GR: If it appears that the writ should issue, the the allegation of release is disputed by the
clerk of court issues the writ under the court’s seal. parents of the detainees, and it is not denied
that the detainees have not been seen or heard
XPN: In emergency cases, the judge may issue the from since their supposed release, do the
writ under his own hand and deputize any person parents have the burden in law of proving that
to serve it. (Sec. 5, Rule 102) their children are still detained by the soldiers
or does the burden shifts to the soldiers?
To whom writ directed
A: The general rule in the number of cases is that
1. In case of imprisonment or restraint by the release of a detained person renders moot and
an officer, the writ shall be directed to academic the petition for habeas corpus. The cited
him and shall command him to have the general rule postulates that the release of the
body of the person restrained of his liberty detainees is an established fact and not in dispute,
before the court or judge designated in the and they do not constitute to be missing persons.
writ at the time and place specified Where, however, there are grounds for grave
therein. doubts about the alleged release of the detainees,
2. In case of imprisonment or restraint by where the standard and prescribed procedure has
a person not an officer, the writ shall be not been followed, then the burden of proving by
directed to an officer, and shall command clear and convincing evidence the alleged release is
him to take and have the body of the shifted to the soldiers, as the respondents to the
person restrained of his liberty before the petition. (Dizon v. Eduardo, G.R. No. L-59118, March
court or judge designated in the writ at the 3, 1988)
time and place therein specified. The
officer shall summon the person detaining WHEN NOT PROPER OR APPLICABLE
another to appear before the court to show
the cause of the imprisonment or restraint. Habeas corpus is NOT applicable when the
(Sec. 6, Rule 102) purpose is to:

How service is made 1. Enforce a right of service;
2. Determine whether a person has
1. By leaving the original of the writ with the committed a crime;
person to whom it is directed or to any 3. Determine a disputed interstate boundary
person having custody if the former line;
cannot be found or has not the person in 4. Punish respondent;
his custody; and 5. Recover damages or other money award;
2. By preserving a copy on which to make
return of service.

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6. Assert or vindicate denial of right to bail; Q: SSgt. Osario, together with his superior
(In re: Azucena Garcia, G.R. No. 141443, officer, was charged in two informations for
November 18, 2000) allegedly kidnapping two University of the
7. Correct errors in appreciation of facts or Philippines students. Warrants of arrest were
law; (Sotto v. Dir. Of Prisons, G.R. No. L- issued against his which caused his arrest and
18871, May 30, 1962) or was later turned over to the Criminal
8. Enforce marital rights including living in Investigation and Detection Unit Group in Camp
conjugal dwelling. Crame, Quezon City and was detained in
Bulacan Provincial Jail. He was later
In cases of illegal confinement or detention transferred to the Philippine Army Custodial
Center in Fort Bonifacio, Taguig City.
GR: The release whether permanent or temporary, Contending that he was being illegally deprived
of a detained person renders the petition for of his liberty, SSgt. Osorio filed a Petition for
habeas corpus moot and academic. Habeas Corpus. He mainly argued that courts-
martial, not a civil court such as the Regional
XPN: When there are restraints attached to his Trial Court, had jurisdiction to try the criminal
release which precludes freedom of action, in case considering that he was a soldier on active
which cases the court can still inquire into the duty and that the offense charged was allegedly
nature of his involuntary restraint. (Villavicencio v. "service-connected." Is a writ of habeas corpus
Lukban, G.R. No. L-14639, March 25, 1919) the proper remedy for SSgt. Osario?

Voluntary restraint A: NO. A writ of habeas corpus may no longer be
issued if the person allegedly deprived of liberty is
GR: Writ is not available if restraint is voluntary. restrained under a lawful process or order of the
(Kelly v. Director of Prisons, G.R. No. L-20478, March court. The restraint then has become legal.
14, 1923) Therefore, the remedy of habeas corpus is rendered
moot and academic. SSgt. Osorio's proper remedy
XPN: Writ will lie to enable the parents (or person is to pursue the orderly course of trial and exhaust
having substituted parental authority) to recover the usual remedies. (SSgt. Esgardo Osario vs. Asst.
custody of a minor child although she is in custody State Prosecutor Juan Pedro Navera, G.R. No.
of a 3rd person on her own volition. (Tijing v. CA, 223272, February 26, 2018, as penned by J.
G.R. No. 125901, March 8, 2001) Leonen)

NOTE: Voluntariness is viewed from the point of Other instances when the writ shall be
view of the person entitled to custody. disallowed or discharged

WHEN WRIT DISALLOWED OR DISCHARGED 1. In cases of supervening events such as
issuance of a process and filing of an
When writ not allowed or discharge authorized information; (Velasco v. CA, G.R. No.
118844, July 7, 1995)
The writ of habeas corpus shall not be allowed 2. In cases of improper arrest or lack of
when the person alleged to be restrained of his preliminary investigation; (Paredes v.
liberty is in the custody of an officer: Sandiganbayan, G.R. No. 89989, January 28,
1991)
1. Under process issued by a court or judge;
2. By virtue of a judgment or order of a court of NOTE: The proper remedy in case of
record; and improper arrest or lack of preliminary
3. The court or judge had jurisdiction to issue investigation is to quash warrant and
the process, render the judgment, or make conduct or direct preliminary
the order. (Sec. 4) investigation. (Raro v. Sandiganbayan, G.R.
No. 108431, July 14, 2000)
In addition, the discharge of the writ of habeas
corpus shall not be authorized upon showing that a 3. In cases of invalid arrest due to
person is: deportation cases cured by filing of the
deportation proceedings; (Santos v.
1. Charged with; Commissioner of Immigration, G.R. No. L-
2. Convicted of an offense; or 25694, November 29, 1976)
3. Suffering imprisonment under lawful 4. Petition for habeas corpus is not the
judgment. (Sec. 4) appropriate vehicle for asserting a right to

353

 REMEDIAL LAW
bail or vindicating its denial; (Galvez v. CA, Judicial discretion is called for in its issuance and it
G.R. No. 114046, October 24, 1994) must be clear to the judge to whom the petition is
presented that, prima facie, the petitioner is
NOTE: An application or admission to bail entitled to the writ. It is only if the court is satisfied
shall not bar the accused from challenging that a person is being unlawfully restrained of his
the validity of the his arrest, or the legality liberty will the petition for habeas corpus be
of warrant issued therefore, or from granted. If the respondents are not detaining or
assailing the regularity or questioning the restraining the applicant or the person in whose
absence of a preliminary investigation of behalf the petition is filed, the petition should be
the charge against him, provided that he dismissed. (Ampatuan v. Macaraig, G.R. No. 182497,
raises them before entering his plea. (Sec. June 29, 2010)
26, Rule 114; A.M. No.00-5-03-SC)
Person lawfully imprisoned, recommitted, and
5. Habeas corpus does not lie where the when let to bail (2008 BAR)
petitioner has the remedy of appeal or
certiorari because it will not be permitted If it appears that the prisoner was lawfully
to perform the functions of a writ of error committed and is plainly and specifically charged
or appeal for the purpose of reviewing in the warrant of commitment with an offense
mere errors or irregularities in the punishable by death, he shall not be released,
proceedings; (Galvez v. CA, G.R. No. 114046, discharged, or bailed.
October 24, 1994)
6. Restrictive custody and monitoring of If he is lawfully imprisoned or restrained on a
movements or whereabouts of police charge of having committed an offense not so
officers under investigation by their punishable, he may be recommitted to
superiors is not a form of illegal detention imprisonment or admitted to bail in the discretion
or restraint of liberty, as it is sanctioned by of the court or judge.
R.A. No. 6975, as amended. Restrictive
custody is, at best, a nominal restraint If he be admitted to bail, he shall forthwith file a
which is beyond the ambit of habeas bond in such sum as the court or judge deems
corpus; (Ampatuan v. Macaraig, G.R. No. reasonable, considering the circumstances of the
182497, June 29, 2010) prisoner and the nature of the offense charged,
7. If the person arrested is judicially charged conditioned for his appearance before the court
within 3 days from his detention during where the offense is properly cognizable to abide
the suspension of the writ, the aggrieved its order of judgment; and the court or judge shall
party is precluded from inquiring into the certify the proceedings, together with the bond,
legality of the arrest or detention in the forthwith to the proper court.
petition for habeas corpus and this justifies
its dismissal, as the question of the legality If such bond is not so filed, the prisoner shall be
of the arrest or detention should be raised recommitted to confinement. (Sec. 14, Rule 102)
in the pending criminal case, either in a
motion to quash the warrant of arrest or Person discharged not to be again imprisoned
the information itself. (Bernarte v. CA, G.R.
No. 107741, October 18, 1996) GR: A person who is set at liberty upon a writ of
habeas corpus shall not be again imprisoned for the
Related jurisprudence same offense.

In all petitions for habeas corpus, the court must XPN: He is imprisoned by virtue of lawful order or
inquire into every phase and aspect of petitioner’s process of court having jurisdiction of the offense
detention, from the moment petitioner was taken or cause. (Sec. 17, Rule 102)
into custody up to the moment the court passes
upon the merits of the petition and only after such NOTE: The release contemplated under the writ of
a scrutiny can the court satisfy itself that the due habeas corpus is one which is free from any
process clause of the Constitution has been involuntary restraint. When the person so released
satisfied. (Bernarte v. CA, G.R. No. 107741, continues to be denied of one or more of his
November 18, 1996) constitutional freedoms where there is present
denial of due process, or where the restraints are
While habeas corpus is a writ of right, it will not not merely involuntary but appear to be
issue as a matter of course or as a mere unnecessary, the person concerned or those acting
perfunctory operation on the filing of the petition. in his behalf may still avail themselves again of the

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privilege of the writ. (Moncupa v. Enrile, G.R. No. L- expeditious release from the National
63345, January 30, 1986) Penitentiary? Explain. (2005 BAR)

Q: Can the State reserve the power to re-arrest A: His counsel should file a petition for habeas
a person for an offense after a court of corpus for the illegal confinement of Mariano or a
competent jurisdiction has absolved him of the motion in the court which convicted Mariano to
offense? nullify the execution of his sentence or the order of
his commitment on the ground that a supervening
A: NO. Such a reservation is repugnant to the development had occurred.
principle that the government is one of laws and
not of men. Under this principle, the moment a Q: Edward Serapio is under detention pursuant
person is acquitted of a criminal charge he can no to the order of arrest issued by the
longer be detained or re-arrested for the same Sandiganbayan on April 25, 2001 after the
offense. (Toyoto v. Ramos, G.R. No. L-69270, October filing by the Ombudsman of the amended
15, 1985) information for plunder against Serapio and his
co-accused. Edward had in fact voluntarily
Habeas corpus would not lie after the Warrant of surrendered himself to the authorities on April
Commitment was issued by the court on the basis 25, 2001 upon learning that a warrant for his
of the Information filed against the accused. arrest had been issued. He filed a petition for
habeas corpus contending that he is entitled to
Once a person detained is duly charged in court, he the issuance of said writ because the State,
may no longer question his detention through a through the prosecution's refusal to present
petition for issuance of a writ of habeas corpus. evidence and by the Sandiganbayan's refusal to
The remedy would be to quash the information grant a bail hearing, has failed to discharge its
and/or the warrant of arrest duly issued. burden of proving that as against him, evidence
of guilt for the capital offense of plunder is
If the offense is punishable by death, the person strong. He also maintains that the issuance by
lawfully detained shall not be released, discharged the Sandiganbayan of new orders cancelling the
or bailed. If the offense is not punishable by death, bail hearings which it had earlier set did not
he may be recommitted to imprisonment or render moot and academic the petition for
admitted to bail in the discretion of the court. issuance of a writ of habeas corpus, since said
orders have resulted in a continuing
When prisoner may be removed from one deprivation of Serapio's right to bail. Should the
custody to another petition for habeas corpus be granted?

1. By legal process; A: NO. The general rule that habeas corpus does not
2. Prisoner is delivered to an inferior officer lie where the person alleged to be restrained of his
to carry to jail; liberty is in the custody of an officer under process
3. By order of proper court or judge directing issued by a court which had jurisdiction to issue
that he be removed from one place to the same applies. Moreover, a petition for habeas
another within the Philippines for trial; or corpus is not the appropriate remedy for asserting
4. In case of fire, epidemic, insurrection or one's right to bail. It cannot be availed of where
other necessity or public calamity. (Sec. 18, accused is entitled to bail not as a matter of right
Rule 102) but on the discretion of the court and the latter has
not abused such discretion in refusing to grant bail
Q: Mariano was convicted by the RTC for raping or has not even exercised said discretion. The
Victoria and meted the penalty of reclusion proper recourse is to file an application for bail
perpetua. While serving sentence, Mariano and with the court where the criminal case is pending
Victoria got married. Mariano filed a motion in and to allow hearings thereon to proceed.
said court for his release from the penitentiary
on his claim that under RA 8353, his marriage The issuance of a writ of habeas corpus would not
to Victoria extinguished the criminal action only be unjustified but would also preempt the
against him for rape, as well as the penalty Sandiganbayan's resolution of the pending
imposed on him. The court denied the motion application for bail of Serapio. The recourse of
on the ground that it had lost jurisdiction over Serapio is to forthwith proceed with the hearing on
the case after its decision had become final and his application for bail. (Serapio v. Sandiganbayan,
executory. What remedy/ies should the counsel G.R. No. 148468, January 28, 2003)
of Mariano take to secure his proper and most

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 REMEDIAL LAW
Q: After Alma had started serving her sentence Immigration Act of 1940, as amended. Thus, a
for violation of BP 22, she filed a petition of writ party aggrieved by a Deportation Order issued by
of habeas corpus, citing Vaca v. CA where the the BOC is proscribed from assailing said order in
sentence of imprisonment of a party found the RTC via a petition for a writ of habeas corpus.
guilty of violation of BP 22 was reduced to a
fine equal to double the amount of the check In case such motion for reconsideration is denied
involved. She prayed that her sentence be by the BOC, the aggrieved party may appeal to the
similarly modified and that she be immediately Secretary of Justice and, if the latter denies the
released from detention. In the alternative, she appeal, to the Office of the President of the
prayed that pending determination on whether Philippines. The party may also choose to file a
the Vaca ruling applies to her, she be allowed to petition for certiorari with the CA under
post bail pursuant to Sec. 14, Rule 102, which Rule 65 of the Rules of Court, on the ground that
provides that if a person is lawfully imprisoned the Secretary of Justice acted with grave abuse of
or restrained on a charge of having committed discretion amounting to excess or lack of
an offense not punishable by death, he may be jurisdiction in dismissing the appeal, the remedy of
admitted to bail in the discretion of the court. appeal not being an adequate and speedy remedy.
Accordingly, the trial court allowed Alma to In case the Secretary of Justice dismisses the
post bail and then ordered her release. In your appeal, the aggrieved party may also resort to filing
opinion, is the decision of the trial court correct a petition for review under Rule 43 of the Rules of
under Rule 102? (2008 BAR) Court, as amended. (Johnson v. Makalino, G.R. No.
139255, November 24, 2003)
A: NO. Section 4, Rule 102 of the Rules of Court
(habeas corpus) does not authorize a court to Habeas corpus as post-conviction remedy
discharge by writ of habeas corpus a person
charged with or convicted of an offense in the GR: The writ may not be availed of when the
Philippines, or of a person suffering imprisonment person in custody is under a judicial process or by
under lawful judgment. virtue of a valid judgment.

Q: Upon a complaint that he is issuing fake XPN: However, as a post conviction remedy, it may
Alien Certificate Registration, Morgan, a British be allowed when, as a consequence of a judicial
national was arrested by the Bureau of proceeding, any of the following exceptional
Immigration and Deportation (BID). The Board circumstances is attendant:
of Commissioners (BOC) of the BID issued a
deportation order against Morgan. A week 1. There has been a deprivation of a
after, Elisa, Morgan’s wife, filed a petition for constitutional right resulting in the
the issuance of a writ of habeas corpus with the restraint of a person;
Manila RTC naming the Immigration 2. The court had no jurisdiction to impose
Commissioner as respondent. After trial, the the sentence; or
RTC dismissed Elisa’s petition on the ground 3. The imposed penalty has been excessive,
that a petition for the issuance of a writ of thus voiding the sentence as to such
habeas corpus is not the proper remedy. Is the excess. (Go v. Dimagiba, G.R. No. 151876,
RTC correct? June 21, 2005)

A: YES. The power to deport aliens is vested on the
President of the Philippines, subject to the
requirements of due process. The Immigration
Commissioner is vested with authority to deport
aliens under Section 37 of the Philippine


DISTINCTIONS BETWEEN WRIT OF HABEAS CORPUS AMPARO, HABEAS DATA AND KALIKASAN

HABEAS CORPUS AMPARO HABEAS DATA KALIKASAN
Literal You have the body To protect You have the data It is a Filipino word
interpretation which means
“nature” in English
Description Writ directed to the Remedy available to Remedy available to Special remedy
person detaining any person whose any person whose available
another, right to life, liberty, right to privacy in to a natural or

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commanding him to and security is life, liberty or juridical person,

produce the body of violated or security is violated entity authorized by
the prisoner at a threatened with or threatened by an law, people’s
designated time and violation by an unlawful act or organization, non-
place, with the day unlawful act or omission of a public governmental
and cause of his omission of a public official or employee, organization, or any
capture and official or employee, or of a private public interest group
detention, to do, or of a private individual or entity accredited by or
submit to, and individual or entity. engaged in the registered with any
receive whatsoever gathering, collecting, government agency,
the court or judge or storing of data or on behalf of persons
awarding the writ information whose constitutional
shall consider in that regarding the right to a balanced
behalf. person, family, home and healthful
and correspondence ecology is violated,
of the aggrieved or threatened with
party. violation by an
unlawful act or
omission of a public
official or employee,
or private individual
or entity, involving
environmental
damage of such
magnitude as to
prejudice the life,
health or property of
inhabitants in two or
more cities or
provinces.
Office of the To direct the person To direct the public To order the To order the
Remedy detaining another to officers involved to disclosure or protection of the
produce the body of conduct an destruction of data constitutional right
the person being investigation as to relating to the right to a balanced and
detained and show the whereabouts to life, liberty or healthful ecology
the cause of and legality of the security of a person. and restrain further
detention. detention of a acts that cause
missing person. environmental
damage of such a
magnitude that
prejudices the right
to life, health or
property of
inhabitants in two or
more cities or
provinces.
Rights Involved Right to liberty of Right to life, liberty, Right to Constitutional right
and rightful custody and security informational to a balanced and
by the aggrieved privacy, honor, self- healthful ecology
party determination and
freedom of
expression
Coverage 1. All cases of 1. Extrajudicial 1. Gathering; Environmental
illegal killings; and 2. Collecting; or damage of such
confinement or 2. Enforced 3. Storing data or magnitude as to
detention by disappearances. information prejudice the life,
which any regarding: health, or property
person is of inhabitants in two
deprived of a. Person; or more cities or

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 REMEDIAL LAW
liberty; and b. Family; provinces.
2. Cases where the c. Home; or
rightful custody d. Correspond
of any person is ence.
withheld from
the person
entitled thereto.
Where to file 1. RTC where the 1. RTC of the place 1.
RTC where the 1. Court of
person is where the
petitioner or Appeals; or
detained; threat, act or
respondent 2. Supreme Court.
2. Sandiganbayan; omission was
resides, or that
3. Court of committed or
which has
Appeals; any of its
jurisdiction over
4. Supreme Court; elements
the place where
or occurred;
the data or
5. Any justice of 2. SB or any justice
information is
the three thereof;
gathered,
preceding 3. CA or any justice
collected or
courts. thereof; or
stored, at the
4. SC or any justice
option of the
thereof.
petitioner;
SB; 2.
CA; or 3.
SC when the 4.
action concerns
public data files
or government
offices.
Who may file a 1. Party for whose In the following 1. Any aggrieved A natural or juridical
petition relief it is order: party; person, entity
intended; or 1. Any member of 2. However, in authorized by law,
2. Any person on the immediate cases of people’s
his behalf. family; extralegal organization, non-
2. Any ascendant, killings and governmental
descendant, or enforced organization, or any
collateral disappearances: public interest group
relative of the a. Any member accredited by or
aggrieved party of the registered with any
within the 4th immediate government agency.
civil degree of family; or
consanguinity or b. Any
affinity; or ascendant,
3. Any concerned descendant,
citizen, or collateral
organization, relative of
association or the
institution. aggrieved
party within
the 4th civil
degree of
consanguinit
y or affinity.

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Respondent May or may not be Public official or Public official or Public official or
an officer. employee or a employee or a employee, private
private individual or private individual or individual or entity.
entity. entity engaged in the
gathering, collecting
or storing of data or
information
regarding the
person, family, home
and correspondence
of the aggrieved
party.
Enforceability If granted by SC or Enforceable Enforceable Enforceable
of the writ CA: enforceable anywhere in the anywhere in the anywhere in the
anywhere In the Philippines Philippines. Philippines.
Philippines; regardless of who
issued the same.
If granted by RTC:
enforceable only
within the judicial
district.
Docket fees Payment is required. Petitioner is Payment is required. Petitioner is
exempted from exempted from
NOTE: Rule on payment. NOTE: Rule on payment.
indigent petitioner indigent petitioner
applies. applies.
Service of writ Served upon the Served upon the Served upon the Served upon the
person to whom it is respondent respondent respondent
directed, and if not personally; or personally; or personally; or
found or has not the substituted service. substituted service. substituted service.
prisoner in his
custody, to the other
person having or
exercising such
custody.
Person who Officer by whom the Respondent Respondent Respondent
makes the prisoner is
return imprisoned or the
person in whose
custody the prisoner
is found.
When to file a On the day specified Within 5 working The respondent shall Within non-
return in the writ. days after service of file a verified written extendible period of
the writ, the return together with 10 days after the
respondent shall file supporting affidavits service of writ.
a verified written within 5 working
return together with days from service of
supporting the writ, which
affidavits. period may be
reasonably extended
by the Court for
justifiable reasons.
Return If granted by the SC If issued by RTC: If issued by RTC: If issued by SC,
or CA: returnable returnable before returnable before returnable before
before the court or such court; such court; such court or CA.
any member or
before RTC or any If issued by SB or CA If issued by SB or CA
judge thereof; or any of their or any of their
justices: returnable justices: returnable

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 REMEDIAL LAW
If granted by RTC: before such court or
before such court or
returnable before to any RTC of the
to any RTC of the
such court place where
place where the
thethreat, act or petitioner or
In writ of habeas omission was
respondent resides
corpus in relation to committed or any of
or that which has
custody of minors, its elements
jurisdiction over the
the writ may be occurred; place where the data
made returnable to a or information is
Family Court or to If issued by SC or
gathered, collected
any regular court any of its justices:
or stored;
within the region returnable before
where the petitioner such court, or before
If issued by SC or
resides or where the SB, CA, or to any RTC
any of its justices:
minor may be found of the place where
returnable before
for hearing and the threat, act or
such court, or before
decision on the omission was
SB, CA, or to any RTC
merits (Sec. 20, A.M. committed or any of
of the place where
No. 03-04-04-SC). its elements
the petitioner or
occurred. respondent resides
or that which has
jurisdiction over the
place where the data
or information is
gathered, collected
or stored.
Effect of failure Hearing of the 1. Hearing of the Hearing of the
to file a Return petition shall petition shall petition shall
proceed ex parte. proceed ex proceed ex parte.
parte; and
2. The Court may
also grant the
petitioner such
relief as the
petition may
warrant,
UNLESS the
Court, in its
discretion,
requires the
petitioner to
submit evidence.
Available 1. Temporary 1. Ocular
interim Protection Inspection
remedies Order; Order;
2. Inspection 2. Inspection
Order; Order; and
3. Production 3. Production
Order; and Order.
4. Witness
Protection
Order.
Quantum of Preponderance of Substantial evidence Substantial evidence Substantial evidence
proof evidence
General denial Not prohibited Not allowed Not allowed Not allowed
Liability of the Forfeit to the Imprisonment or Imprisonment or Indirect contempt.
person to aggrieved party the fine for committing fine for committing
whom the writ sum of P1000, and contempt. contempt.
is directed if he may also be

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 SPECIAL PROCEEDINGS

refuses to make punished for

a return contempt.
Hearing Date and time of Summary hearing Summary hearing The hearing
hearing is specified shall be conducted shall be conducted including the
in the writ. not later than 7 days not later than 10 preliminary
from the date of working days from conference shall not
issuance of the writ. the date of issuance extend beyond 60
of the writ. days and shall be
given the same
priority as petitions
for writs of habeas
corpus, amparo and
habeas data.
Period of Within 48 hours 5 working days from 5 working days from Within 15 days from
appeal from notice of the the date of notice of the date of notice of the date of notice of
judgment or final the adverse the judgment or final the adverse
order appealed judgment. order. judgment or denial
from. of motion for
reconsideration.
Prohibited 1. Motion to 1. Motion to 1. Motion to
pleadings dismiss; dismiss; dismiss the
2. Motion for 2. Motion for complaint;
extension of extension of 2. Motion for a bill
time to file time to file of particulars;
opposition, return; 3. Motion for
affidavit, 3. Motion for extension of
position paper postponement; time to file
and other 4. Motion for a bill pleadings,
pleadings; of particulars; EXCEPT to file
5. Counterclaim or answer, the
NOTE: In writ of cross-claim; extension not to
amparo, a motion for 6. Third-party exceed 15 days;
extension of time to complaint; 4. Motion to
file the return is no 7. Reply; and declare the
longer a prohibited 8. Motion to defendant in
pleading, as it may declare default;
be granted by the respondent in 5. Reply and
court on highly default. rejoinder; and
meritorious cases. 6. Third-party
complaint.
3. Dilatory motion
for
postponement;
4. Motion for a bill
of particulars;
5. Counterclaim or
cross - claim;
6. Third - party
complaint;
7. Reply;
8. Motion to
declare
respondent in
default;
9. Intervention;
10. Memorandum;
11. Motion for
reconsideration
of interlocutory

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 REMEDIAL LAW
orders or
interim relief
orders; and
Petition for
certiorari,
mandamus or
prohibition against
any interlocutory
order.

RULE ON CUSTODY OF MINORS AND WRIT OF 1. The personal circumstances of the
HABEAS CORPUS IN RELATION TO CUSTODY OF petitioner and of the respondent;
MINORS (A.M. No. 03-04-4-SC) 2. The name, age and present whereabouts
of the minor and his or her relationship to
In a petition for habeas corpus, the child’s welfare the petitioner and the respondent;
is the supreme consideration. The Child and Youth 3. The material operative facts constituting
Welfare Code unequivocally provides that in all deprivation of custody;
questions regarding the care and custody, among 4. Such other matters which are relevant to
others, of the child, his welfare shall be the the custody of the minor; and
paramount consideration. (Salientes v. Abanilla, 5. Certificate of Non-Forum Shopping signed
G.R. No. 162734, August 29, 2006 personally by the petitioner. (Sec. 4, AM
No. 03-04-04-SC)
Who may file a petition for custody of minor
Requisites in petitions for habeas corpus
A verified petition for the rightful custody of a involving minors (RWB)
minor may be filed by any person claiming such
right. The party against whom it may be filed shall 1. That the petitioner has the right of custody
be designated as the respondent. (Sec. 2, AM No. 03- over the minor;
04-04-SC) 2. That the rightful custody of the minor is
being withheld from the petitioner by the
Purpose of the petition respondent; and
3. That it is to the best interest of the minor
In cases involving minors, the purpose of a petition concerned to be in the custody of
for habeas corpus is not limited to the production petitioner and not that of the respondent.
of the child before the court; the main purpose of (Sombong v. CA, G.R. No. 11876, January 31,
the petition for habeas corpus is to determine who 1996)
has the rightful custody over the child. (Bagtas v.
Santos, G.R. No. 166682, November 27, 2009) Q: May a motion to dismiss be filed?

Where filed A: NO. Motion to dismiss is not allowed except on
the ground of lack jurisdiction over the subject
The petition for custody of minor is filed with the matter or the parties.
Family court of the province or city where the
petitioner resides or where the minor may be Filing of Answer
found. (Sec. 3, AM No. 03-04-04-SC)
NOTE: Respondent must file a verified answer
The CA and the SC have concurrent jurisdiction within 5 days from the service of summons and
with Family courts in habeas corpus cases where copy of the petition.
the custody of minors is involved. The provisions of
RA 8369 must be read in harmony with RA 7029 Pre-trial is mandatory. (Sec. 9, A.M. No. 03-04-04-
and BP 129 ― that Family courts have concurrent SC)
jurisdiction with the CA and the SC in petitions for
habeas corpus where the custody of minors is at Provisional order awarding custody
issue. (Thornton v. Thornton, G.R. No. 154598,
August 16, 2004; Madriñan v. Madriñan, G.R. No. As far as practicable, the following order of
159374, July 12, 2007) preference shall be observed in the award of
custody:
Contents of the verified petition (C-NAP-ORC)
1. Both parents jointly;

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2. Either parent, taking into account all age unless the parent so chosen be unfit to take
relevant considerations, especially the charge of the child by reason of moral depravity,
choice of the minor over 7 years of age and habitual drunkenness or poverty. (Sy v. CA, G.R. No.
of sufficient discernment, unless the 124518, December 27, 2007)
grandparent chosen is unfit or
disqualified; By filing a petition for declaration of nullity of
3. The grandparent or if there are several marriage, the issue of custody of the children is
grandparents, the grandparent chosen by deemed automatically submitted pursuant to the
the minor over 7 years of age and of express provisions of Articles 49 and 50 of the
sufficient discernment, unless the Family Code. (Yu v. Yu, G.R. No. 164915, March 10,
grandparent chosen is unfit or 2006)
disqualified;
4. The eldest brother or sister over 21 years Best interest of the minor
of age unless he or she is unfit or
disqualified; After trial, the court shall render judgment
5. The actual custodian of the minor over 21 awarding custody of the minor to the proper party
years of age unless the former is unfit or considering the best interests of the minor.
disqualified; or However, if it appears that both parties are unfit to
6. Any other person or institution the court have the care and custody of the minor, the court
may deem suitable to provide proper care may designate either:
and guidance for the minor. (Sec. 13, AM
No. 03-04-04-SC) 1. The paternal or maternal grandparent of
the minor;
Temporary visitation rights 2. His oldest brother or sister;
3. Any reputable person to take charge of
The court shall provide in its order awarding such minor; or
provisional custody appropriate visitation rights to 4. Commit him to any suitable home for
the non-custodial parent or parents unless the children.
court funds said parent or parents unfit or
disqualified. (Sec. 15, A.M. No. 03-04-04-SC) The court may issue any order that is just and
reasonable permitting the parent who is deprived
Issuance of Hold Departure Order of the care and custody of the minor to visit or have
temporary custody. (De Leon & Wilwayco, 2015)
The minor child cannot be brought out of the
country without leave from court while the petition The controversy does not involve the question of
is pending. The minor child subject of the petition personal freedom, because an infant is presumed
shall not be brought out of the country without to be in the custody of someone until he attains
prior order from the court while the petition is majority age. In passing on the writ in a child
pending. custody case, the court deals with a matter of an
equitable nature. Not bound by any mere legal
The court, motu proprio or upon application under right of parent or guardian, the court gives his or
oath, may issue ex parte a hold departure order, her claim to the custody of the child due weight as
addressed to the Bureau of Immigration and a claim founded on human nature and considered
Deportation, directing it not to allow the departure generally equitable and just. Therefore, cases are
of the minor from the Philippines without the decided, not on the legal right of the petitioner to
permission of the court. (Sec. 16, AM No. 03-04-04- be relieved from unlawful imprisonment or
SC) detention, as in the case of adults, but on the courts
view of the best interests of those whose welfare
In case of legal separation of the parents requires that they be in custody of one person or
another. In short, the child’s welfare is the
The custody of the minor children shall be awarded supreme consideration. (Sombong v. CA, G.R. No.
to the innocent spouse, unless otherwise directed 11876, January 31, 1996)
by the court in the interest of the minor children.
But when the husband and wife are living Q: Husband H files a petition for declaration of
separately and apart from each other, without nullity of marriage before the RTC of Pasig City.
decree of the court, the court shall award the care, Wife W files a petition for habeas corpus before
custody and control of each child as will be for his the RTC of Pasay City, praying for custody over
best interest, permitting the child to choose which their minor child. H files a motion to dismiss
parent he prefers to live with if he is over 7 years of

363
 REMEDIAL LAW
the wife’s petition on the ground of the was merely a procedural directive addressed to the
pendency of the other case. Rule. (2007 BAR) petitioners for them to produce the minor in court
and explain why they are restraining his liberty.
A: The motion to dismiss the petition for habeas Moreover, Art. 213 of the Family Code deals with
corpus should be granted to avoid multiplicity of the adjudication of custody and serves as a
suits. The question of who between the spouses guideline for the proper award of-custody by the
should have custody of their minor child could also court. While the petitioners can raise it as a
be determined in the petition for declaration of counter argument in the custody suit, it may not
nullity of their marriage which is already pending however be invoked by them to prevent the father
in the RTC of Pasig City. In other words, the from seeing the child.
petition filed in Pasay City, praying for custody of
the minor child is unnecessary and violates only Habeas corpus may be resorted to in cases where
the cardinal rule of procedure against multiplicity rightful custody is withheld from a person entitled
of suits. Hence, the latter suit may be abated by a thereto. Under Art. 211 of the Family Code, both
motion to dismiss on the ground of litis pendentia. parents in this case have joint parental authority
(Yu v. Yu, G.R. No. 164915, March 10, 2006) over their child and consequently joint custody
over him. Further, although the couple is separated
Q: In a petition for habeas corpus which he filed de facto, the issue of custody has yet to be
before the CA, Joey sought custody of his minor adjudicated by the court. In the absence of a
son from his former live-in partner, Loreta. judicial grant of custody, both parents are still
Joey alleged that the child's mother was abroad entitled to the custody of their child. (Salientes, et
most of the time and thus, he should be given al. v. Abanilla, et al., G.R. No. 162734, August 29,
joint custody over their son. The CA however 2006)
denied the petition, and on the basis of Art. 213,
par (2) of the Family Code, awarded custody of
the child in favor of the mother. Was the CA WRIT OF AMPARO
correct in denying Joey’s petition for habeas A.M. NO. 07-9-12-SC
corpus for the custody of his minor son? Effectivity Date: September 25, 2007

A: YES. Under Art. 176 of the FC, parental authority
over an illegitimate child is vested solely in the It is a remedy available to any person whose right
mother, and this is true notwithstanding that the to life, liberty and security is violated or threatened
child has been recognized by the father as his with violation by an unlawful act or omission of a
offspring. At most, such recognition by the father public official or employee, or of a private
would be a ground for ordering the latter to give individual or entity. The writ shall cover extralegal
support to, but not custody of, the child. (David v. killings and enforced disappearances or threats
CA, 250 SCRA 82) Custody over the minor in this thereof. (Sec. 1, A.M. No. 07-9-12-SC)
case was therefore awarded correctly to the
mother, and this is all the more so in view of Art. COVERAGE
213 of the Family Code which lays down the
Maternal Preference Rule. There is also no showing The Rule on the Writ of Amparo is now a
that Joey was able to show proof of any compelling procedural law anchored, not only on the
reason to wrest from the mother parental constitutional rights to life, liberty and security, but
authority over their minor child. on a concrete statutory definition as well of what
an ‘enforced or involuntary disappearance’ is.
Q: In a petition for habeas corpus that was filed Therefore, A.M. No. 07-9-12-SC’s reference to
by Loran against his estranged wife, as well as enforced disappearances should be construed to
against his parents-in-law whom he alleged mean the enforced or involuntary disappearance of
were unlawfully restraining him from having persons contemplated in Section 3(g) of RA No.
custody of his child, the trial court issued an 9851, otherwise known as “Philippine Act on
order directing the aforesaid persons to appear Crimes against International Humanitarian Law,
in court and produce the child in question and Genocide, and Other Crimes against Humanity.”
to show cause why the said child should not be (Navia et al v. Pardico, G.R. No. 184467, June 19,
discharged from restraint. Does the trial court's 2012)
Order run counter to Art.213 of the Family
Code? Extralegal killings

A: NO. The assailed order of the trial court did not
grant custody of the minor to any of the parties but

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These are killings committed without due process The remedy provides rapid judicial relief as it
of law, legal safeguards or judicial proceedings. partakes of a summary proceeding that requires
(Secretary of National Defense v. Manalo, G.R. No. only substantial evidence to make the appropriate
180906, October 7, 2008) reliefs available to the petitioner; it is not an action
to determine criminal guilt requiring proof beyond
Enforced disappearance reasonable doubt, or liability for damages
requiring preponderance of evidence, or
The arrest, detention, or abduction of persons by, administrative responsibility requiring substantial
or with the authorization, support or acquiescence evidence that will require full and exhaustive
of, a State or a political organization followed by a proceedings. (Deliberations of the Committee on the
refusal to acknowledge that deprivation of freedom Revision of the Rules of Court, August 10, 2007,
or to give information on the fate or whereabouts August 24, 2007, August 31, 2007 and September 20,
of those persons, with the intention of removing 2008) (2009, 2010 BAR)
from the protection of the law for a prolonged
period of time. (Section 3[g], RA No. 9851) An amparo proceeding is not criminal in nature.
While the principal objective of its proceedings is
NOTE: The elements of enforced disappearance the initial determination of whether an enforced
are: (AA-RR) disappearance, extralegal killing or threats thereof
had transpired—the writ does not fix liability for
1. That there be an arrest, detention, abduction such disappearance, killing or threats, whether that
or any form of deprivation of liberty; may be criminal, civil or administrative under the
2. That it be carried out by, or with the applicable substantive law. (Roxas v. Macapagal
authorization, support or acquiescence of, the Arroyo, G.R. No. 189155, September 7, 2010)
State or a political organization;
3. That it be followed by the State or political It partakes of the nature of a prerogative writ that
organization’s refusal to acknowledge or give does not determine guilt nor pinpoint criminal
information on the fate or whereabouts of the culpability for the disappearance; rather, it
person subject of the amparo petition; and determines responsibility, or at least
4. That the intention for such refusal is to remove accountability, for the enforced disappearance for
the subject person from the protection of the purposes of imposing the appropriate remedies to
law for a prolonged period of time. (Navia et al address the disappearance. (Razon, Jr. v. Tagitis,
v. Pardico, G.R. No. 184467, June 19, 2012) G.R. No. 182498, December 3, 2009)

Purpose of the writ of amparo State participation

The writ of amparo serves both preventive and State participation is an indispensable element for
curative roles in addressing the problem of the issuance of a writ of amparo. Proof of
extralegal killings and enforced disappearances. It disappearance alone is not enough. It is likewise
is preventive in that it breaks the expectation of essential to establish that such disappearance was
impunity in the commission of these offenses; it is carried out with the direct or indirect
curative in that it facilitates the subsequent authorization, support or acquiescence of the
punishment of perpetrators as it will inevitably government. While the writ may lie if the person
yield leads to subsequent investigation and action. sought to be held accountable or responsible in an
(Secretary of National Defense v. Manalo, G.R. No. amparo petition is a private individual or entity,
180906, October 7, 2008) still, government involvement in the disappearance
remains an indispensable element. This hallmark
One of the ultimate objectives of the writ of amparo of State participation differentiates an enforced
as a curative remedy is to facilitate the subsequent disappearance case from an ordinary case of a
punishment of perpetrators. On the other hand, if missing person. (Navia et al v. Pardico, G.R. No.
there is no actual criminal case lodged before the 184467, June 19, 2012)
courts, then the denial of the petition is without
prejudice to the filing of the appropriate Q: Virginia Pardico, in search of her missing
administrative, civil or criminal case, if applicable, husband, Ben Pardico, filed a Petition for Writ
against those individuals whom petitioner deems of Amparo before the RTC of Malolos City
to have unduly restrained his liberty. (Lozada v. against Navia, Dio, and Buising who were all
Macapagal-Arroyo, G.R. Nos. 184379-80, April 24, security guards of Grand Royale Subdivision.
2012) Allegedly, Ben was then invited to the security
department of the Grand Royale Subdivision for
Nature of writ of amparo investigation after he and Bong Lapore were

365
 REMEDIAL LAW
suspected of theft of electric wires and lamps in executory judgment adverse to them, does not
the subdivision. Navia, et al. assert that they constitute right to life, liberty and security.
had released Ben together with Bong on the
same night of the investigation. Navia. et al. There is, therefore, no legal basis for the
prayed for the denial of the petition for lack of issuance of the writ of amparo. (Canlas v.
merit. The RTC, however, granted the privilege Napico Homeowners Association I-XIII, Inc., G.R.
of the writ of amparo. Is Virginia entitled to the No. 182795, June 5, 2008)
privilege of the writ of amparo?
2. In a labor dispute
A: NO. For the protective writ of amparo to issue in
enforced disappearance cases, allegation and proof Reason: Employment constitutes a property
that the persons subject thereof are missing are not right under the context of the due process
enough. The petitioner in an amparo case has the clause of the Constitution and does not
burden of proving by substantial evidence the constitute an unlawful violation of the right to
indispensable element of government participation life, liberty, or security. (Meralco v Lim, G.R. No.
which differentiates an enforced disappearance 184769 October 5, 2010)
case from an ordinary case of a missing person.
NOTE: The rule is the same with respect to
Here, the petition does not contain any allegation habeas data.
of State complicity, and none of the evidence
presented tend to show that the government or 3. For protection of right to travel
any of its agents orchestrated Ben’s disappearance
or that they failed to exercise extraordinary Reason: The right to travel refers to the right
diligence in investigating his case. While a writ of to move from one place to another. The Court
amparo may lie against a private individual or held that a person’s right to travel is subject to
entity, government involvement in the the usual constraints imposed by the very
disappearance remains an indispensable element. necessity of safeguarding the system of justice.
Navia, et al. are mere security guards and their In such cases, whether the accused should be
principal, the Asian Land, is a private entity. They permitted to leave the jurisdiction for
do not work for the government and nothing has humanitarian reasons is a matter of the court’s
been presented that would link or connect them to sound discretion. (Marcos v. Sandiganbayan,
some covert police, military or governmental G.R. Nos. 115132-34, August 9, 1995)
operation. (Navia v. Pardico, G.R. No. 184467, June
19, 2012) Here, the restriction on petitioner’s right to
travel as a consequence of the pendency of the
When writ NOT available criminal case filed against him was not
unlawful. Petitioner has also failed to establish
1. For protection of a property right that his right to travel was impaired in the
manner and to the extent that it amounted to a
Reason: It is intended to address violations of serious violation of his right to life, liberty and
or threats to the rights to life, liberty or security, for which there exists no readily
security, as an extraordinary and independent available legal recourse or remedy. (Reyes v.
remedy beyond those available under the Gonzalez, G.R. No. 182161, December 3, 2009)
prevailing Rules, or as a remedy supplemental
to these Rules. What it is not, is a writ to 4. Inclusion of name in the Order of Battle
protect concerns that are purely property or
commercial. (Tapuz v. Del Rosario, G.R. No. Reason: Mere inclusion in the military’s order
182484, June 17, 2008) of battle which is not supported by
independent and credible evidence stands on
NOTE: The rule is the same with respect to nebulous grounds. The liberality accorded to
habeas data. amparo cases does not mean that a claimant is
dispensed with the onus of proving his case.
The threatened demolition of a dwelling by (Saez v. Macapagal Arroyo, G.R. No. 183533,
virtue of a final judgment of the court is not September 25, 2012)
included among the enumeration of rights for
which the remedy of a writ of amparo is made NOTE: The rule is the same with respect to
available. Their claim to dwelling, assuming habeas data.
they still have any despite the final and
Responsibility and Accountability

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 SPECIAL PROCEEDINGS

The concept of responsibility is not the same as responsibility does not determine criminal, civil or
accountability under an amparo proceeding. administrative liabilities but is to be applied
merely to ascertain responsibility and
Responsibility refers to the extent the actors have accountability of the persons involved. (Rodriguez
been established by substantial evidence to v. Macapagal Arroyo, G.R. No. 191805, November 15,
have participated in whatever way, by action or 2011)
omission, in an enforced disappearance.
NOTE: The same rule applies with respect to
Accountability refers to the measure of remedies habeas data.
that should be addressed to those:
DIFFERENCES BETWEEN AMPARO
1. Who exhibited involvement in the enforced AND SEARCH WARRANT
disappearance without bringing the level of
their complicity to the level of responsibility WRIT OF AMPARO SEARCH WARRANT
defined above; As to purpose
2. Who are imputed with knowledge relating to Protective: To protect Criminal
the enforced disappearance and who carry the a person’s right to life, prosecution: To
burden of disclosure; or liberty, or security. discover and seize
3. Who carry, but have failed to discharge, the personal property in
burden of extraordinary diligence in the furtherance of criminal
investigation of the enforced disappearance. prosecution.
(Razon, Jr. v. Tagitis, G.R. No. 182498, December Where filed
3, 2009) 1. RTC where the MTC/RTC within
threat or act is whose territorial
Command responsibility committed; jurisdiction or judicial
2. Sandiganbayan; region a crime was
The doctrine of command responsibility is a rule of 3. Court of Appeals; committed.
substantive law that establishes liability and, by or
this account, cannot be a proper legal basis to 4. Supreme Court.
implead a party-respondent (President) in Person initiating
an amparo petition. Since the application of Prvate or public Peace officer or law
command responsibility presupposes an person enforcement agency
imputation of individual liability, it is more aptly Seizure of personalty
invoked in a full-blown criminal or administrative Under the Inspection Personal property is
case rather than in a summary amparo proceeding. Order and Production seized under Sec. 3,
The obvious reason lies in the nature of the writ Order, personalty is Rule 126.
itself. (Roxas v. Macapagal Arroyo, G.R. No. 189155, not seized but is
September 7, 2010) merely inspected and
copied.
NOTE: The doctrine does not, by any measure,
preclude impleading military or police WHO MAY FILE
commanders on the ground that the complained
acts in the petition were committed with their
Any aggrieved party may file the petition. It may
direct or indirect acquiescence. They may be
also be filed by any qualified person or entity in the
impleaded—not actually on the basis of command
following order: (IRC)
responsibility—but rather on the ground of their
responsibility, or at least accountability. (Roxas v. 1. Any member of the immediate family,
Macapagal Arroyo, G.R. No. 189155, September 7,
namely: the spouse, children and parents
2010) of the aggrieved party;

2. Any ascendant, descendant or collateral
If command responsibility were to be invoked and relative of the aggrieved party within the
applied to these proceedings, it should, at most, be fourth civil degree of consanguinity or
only to determine the author who, at the first affinity, in default of those mentioned in
instance, is accountable for, and has the duty to the preceding paragraph; or
address, the disappearance and harassments 3. Any concerned citizen, organization,
complained of, so as to enable the Court to devise association or institution, if there is no
remedial measures that may be appropriate under known member of the immediate family or
the premises to protect rights covered by the writ
of amparo. Thus, the doctrine of command

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relative of the aggrieved party. (Sec. 2, A.M. individuals, as well as the manner and
No. 07-9-12-SC) conduct of investigation;
4. Actions and recourses taken by the
The filing of a petition by the aggrieved party petitioner to determine the whereabouts
suspends the right of all other authorized parties to of aggrieved party and identity of the
file similar petitions. Likewise, the filing of the person responsible for the threat, act or
petition by an authorized party on behalf of the omission;
aggrieved party suspends the right of all others, 5. The relief prayed for; and
observing the order established herein. (Sec. 2, 6. A general prayer for other just and
Ibid.) equitable reliefs may be included. (Sec. 5,
A.M. No. 07-9-12-SC)
Reason: To prevent the indiscriminate and
groundless filing of petitions for amparo which Sufficiency of the petition in form and
may even prejudice the right to life, liberty or substance
security of the aggrieved party.
The pleader must state the ultimate facts
Where to file constituting the cause of action, omitting the
evidentiary details. However, in an amparo
1. Regional Trial Court where the threat, act petition, this requirement must be read in light of
or omission was committed or any of its the nature and purpose of the proceeding, which
elements occurred; or addresses a situation of uncertainty – the
2. With the Sandiganbayan, Court of Appeals petitioner may not be able to describe with
the Supreme Court or any justice of such certainty how the victim exactly disappeared, or
court. who actually acted to kidnap, abduct or arrest him
or her, or where the victim is detained, because
The writ shall be enforceable anywhere in the these information may purposely be hidden or
Philippines. covered up by those who caused the
disappearance. In this type of situation, to require
NOTE: The Rule allowing the filing of the petition the level of specificity, detail and precision is to
before the RTC does not require that the RTC have make the Rule a token gesture of judicial concern
jurisdiction over the offense complained of for violations of the constitutional rights to life,
jurisdiction can only be conferred by Congress. The liberty and security.
rule merely establishes a procedure to enforce the
right to life, liberty or security of a person which The test in reading the petition should be to
requires the filing of the petition before the RTC of determine whether it contains the details available
the place where the threat, act or omission was to the petitioner under the circumstances, while
committed or any of its elements. presenting a cause of action showing a violation of
the victim’s rights to life, liberty and security
The intent is to prevent the filing of the petition in through State or party action. (Razon, Jr. v. Tagitis,
some far-flung area to harass the respondent. G.R. No. 182498, December 3, 2009)
Moreover, allowing the amparo petition to be filed
in any RTC may prejudice the effective In cases where the violation of the right to life,
dispensation of justice, as in most cases, the liberty or security has already ceased, it is
witnesses and the evidence are located within the necessary for the petitioner in an amparo action to
jurisdiction of the RTC where the act or omission prove the existence of a continuing threat. (Lozada
was committed. (Annotation on the Writ of Amparo, v. Macapagal-Arroyo, G.R. Nos. 184379-80, April 24,
A.M. NO. 07-9-12-SC) 2012)

Contents of the petition (PRARIO) CONTENTS OF RETURN

1. Personal circumstances of the petitioner Within 5 working days after service of the writ, the
and of respondent responsible for the respondent shall file a verified written return
threat, act or omission; together with supporting affidavits which shall,
2. Violated or threatened right to life, liberty among other things, contain the following: (DAIPO)
or security of the party aggrieved. Stating
in detail the circumstances; 1. The lawful defenses to show that the
3. Specify the names, personal circumstances respondent did not violate or threaten
of the investigating authority or with violation the right to life, liberty and

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security of the aggrieved party, through Sandiganbayan or the Court of Appeals or

any act or omission; any of their justices, or to any RTC in the
2. The steps or actions taken by the place where the threat, act or omission
respondent to determine the fate or was committed or any of its elements took
whereabouts of the aggrieved party and place. (Sec. 3)
the person or persons responsible for the
threat, act or omission; Q: Marinella is a junior officer of the Armed
3. All relevant information in the possession Forces of the Philippines who claims to have
of the respondent pertaining to the threat, personally witnessed the malversation of funds
act or omission against the aggrieved given by US authorities in connection with the
party; Balikatan exercises. Marinella alleges that as a
4. If the respondent is a public official or result of her exposé, there are operatives
employee, the return shall further state the within the military who are out to kill her. She
actions that have been or will still be files a petition for the issuance of a writ of
taken: amparo against, among others, the Chief of Staff
but without alleging that the latter ordered that
a. To verify the identity of the aggrieved she be killed. Atty. Daro, counsel for the Chief of
party; Staff, moves for the dismissal of the Petition for
b. To recover and preserve evidence failure to allege that his client issued any order
related to the death or disappearance to kill or harm Marinella. Rule on Atty. Daro’s
of the person identified in the petition motion. Explain. (2010 BAR)
which may aid in the prosecution of
the person or persons responsible; A: The motion to dismiss must be denied on the
c. To identify witnesses and obtain ground that it is a prohibited pleading under
statements from them concerning the Section 11(a) of the Rule on the Writ of Amparo.
death or disappearance; Moreover, said Rule does not require the petition
d. To determine the cause, manner, therefor to allege a complete detail of the actual or
location and time of death or threatened violation of the victim’s rights. It is
disappearance as well as any pattern sufficient that there be an allegation of real threat
or practice that may have brought against petitioner’s life, liberty and/or security.
about the death or disappearance; (Gen. Razon, Jr. v. Tagitis, G.R. No. 182498,
e. To identify and apprehend the person December 3, 2009)
or persons involved in the death or
disappearance; and EFFECTS OF FAILURE TO FILE RETURN
f. To bring the suspected offenders
before a competent court. The court, justice or judge shall proceed to hear the
petition ex parte. The hearing should not be
5. Other matters relevant to the delayed by the failure of the respondent to file a
investigation, its resolution and the return, otherwise the right to life, liberty and
prosecution of the case. (Sec. 9, A.M. No. 07- security of a person would be easily frustrated.
9-12-SC as amended) (Sec. 12, Ibid.)

NOTE: A general denial of the allegations in the GR: The failure to file a return cannot be extended.
petition shall not be allowed.
XPN: Except on highly meritorious grounds. Thus,
Where returnable; enforceable a motion for extension of time to file a return upon
showing of a highly meritorious ground is no
1. When issued by the RTC or a judge thereof, longer a prohibited pleading.
the writ is returnable before such court or
judge; OMNIBUS WAIVER RULE
2. When issued by the Sandiganbayan. Court
of Appeals or any of their justices, it may All defenses not raised in the return (answer) are
be returnable to such court or any justice deemed waived. (Sec. 10, Ibid.)
thereof, or to any RTC where the threat,
act or omission was committed or any of It is different from the Omnibus Motion Rule which
its elements occurred; states that defenses not raised in a Motion to
3. When issued by the Supreme Court or any Dismiss are deemed waived.
of its justices, it may be returnable to such
Court or any justice thereof, or before the

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NOTE: A motion to dismiss is a prohibited pleading the petition and its attached affidavits, the Return
in an application for a writ of amparo. The filing of and the evidence presented in the summary
a motion to dismiss even on the ground of lack of hearing, the judgment should detail the required
jurisdiction over the subject matter and the parties acts from the respondents that will mitigate, if not
is proscribed to avoid undue delay. The grounds of totally eradicate, the violation of or the threat to
a motion to dismiss should be included in the the petitioner’s life, liberty or security.
return and resolved by the court, using its
reasonable discretion as to the time and merit of A judgment which simply grants “the privilege of
the motion. (Sec. 11, Ibid.) the writ” cannot be executed. It is tantamount to a
failure of the judge to intervene and grant judicial
PROCEDURE FOR HEARING succor to the petitioner. Petitions filed to avail of
the privilege of the Writ of Amparo arise out very
The nature of the hearing on the petition is real and concrete circumstances. Judicial responses
summary. However, the court, justice or judge may cannot be as tragically symbolic or ritualistic as
call for a preliminary conference to simplify the “granting the privilege of the Writ of Amparo.” (De
issues and determine the possibility of obtaining Lima v. Gatdula, G.R. No. 204528, February 19, 2013)
stipulations and admissions from the parties. (Sec.
13, Ibid.) The writ should set the date and time for a
summary hearing of the petition which shall not be
The hearing shall be from day to day until later than seven (7) days from the date if its
completed and given the same priority as petitions issuance. (Sec. 13)
for habeas corpus. (Sec. 13, Ibid.)
INSTITUTION OF SEPARATE ACTION
If the petitioner fails to appear due to valid cause
such as threats on his life, the court shall not A separate action may be filed after filing a petition
dismiss the petition, but shall archive it, if upon its for a writ of amparo. It does not preclude the filing
determination it cannot proceed for a valid cause. of a separate criminal, civil or administrative
A periodic review of the archived cases shall be action. (Sec. 21, Ibid.) However, if the evidence so
made by the amparo court that shall, motu proprio warrants, the amparo court may refer the case to
or upon motion by any party, order their revival the Department of Justice for criminal prosecution.
when ready for further proceedings. (Sec. 20, Ibid.) (Annotation on the Writ of Amparo, A.M. NO. 07-9-
12-SC)
The petition shall be dismissed with prejudice
upon failure to prosecute the case after the lapse of An independent action for amparo is improper
2 years from notice to the petitioner of the order once criminal proceedings have been commenced.
archiving the case. (Sec. 20, Ibid.) Validity of the arrest or the proceedings conducted
thereafter is a defense that may be set up by
NOTE: Due to the extraordinary nature if the writ, respondents during trial and not before a petition
which protects the mother of all rights – the right for writ of amparo. The reliefs afforded by the
to life – the petition may be filed on any day, writs may, however, be made available to the
including Saturdays, Sundays and holidays; and at aggrieved party by motion in the criminal
any time from morning until evening. (Annotation proceedings. (Castillo v. Cruz G.R. No. 182165,
to the Writ of Amparo) November 25, 2009)

Issuance of the Writ NOTE: The rule is the same with respect to habeas
data.
Upon the filing of the petition, the court, justice or
judge shall immediately order the issuance if the EFFECT OF FILING OF A CRIMINAL ACTION
writ if on its face it ought to issue. The writ shall be
served immediately. When a criminal action has been commenced, no
separate petition for the writ shall be filed. The
Privilege of the writ of amparo different from reliefs under the writ shall be available by motion
the actual order of the writ of amparo in the criminal case. The procedure under the Rule
on the Writ of Amparo shall govern the disposition
The privilege of the Writ of Amparo should be of reliefs available under the writ. (Sec. 22)
distinguished from the actual order called the Writ
of Amparo. The privilege includes availment of the CONSOLIDATION
entire procedure outlined in A.M. No. 07-9-12-SC,
the Rule on the Writ of Amparo. After examining

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 SPECIAL PROCEEDINGS

When a criminal action is filed subsequent to the earlier petition filed by Mayumi with
filing of a petition for the writ, the latter shall be the RTC.
consolidated with the criminal action. b. Are respondents correct in raising their
defense?
When a criminal action and a separate civil action c. Mayumi later filed separate criminal
are filed subsequent to a petition for a writ of and civil actions against Mapusok. How
amparo, the latter shall be consolidated with the will the cases affect the amparo petition
criminal action. After consolidation, the procedure she earlier filed? (2015 BAR)
under this Rule shall continue to apply to the
disposition of the reliefs in the petition. (Sec. 23) A:
a. NO. The defense of Mapusok and APKA that
Q: The residents of Mt. Ahohoy, headed by they are not agents of the State and hence
Masigasig, formed a nongovernmental cannot be impleaded as respondents in an
organization - Alyansa Laban sa Minahan sa amparo petition is not tenable. The writ of
Ahohoy (ALMA) to protest the mining amparo is available in cases where the
operations of Oro Negro Mining in the enforced or involuntary disappearance of a
mountain. ALMA members picketed daily at the persons is with the authorization, support or
entrance of the mining site blocking the ingress acquiescence of the State. (Sec. 3[g], R.A. No.
and egress of trucks and equipment of Oro 9851; Navia v. Pardico, G.R. No. 184467, June 19,
Negro, hampering its operations. Masigasig had 2012)
an altercation with Mapusok arising from the
complaint of the mining engineer of Oro Negro Here, Mapusok and APKA may be considered
that one of their trucks was destroyed by ALMA as acting with the support or at least the
members. Mapusok is the leader of the acquiescence of the State since APKA serves as
Association of Peace Keepers of Ahohoy an auxiliary force of the police and the police
(APKA), a civilian volunteer organization refused to assist in the search for Masigasig.
serving as auxiliary force of the local police to
maintain peace and order in the area. b. YES. Respondents are correct in raising their
Subsequently, Masigasig disappeared. defense. Under Section 2(c) of the Rule on the
Writ of Amparo, the filing of a petition by an
Mayumi, the wife of Masigasig, and the authorized party on behalf of the aggrieved
members of ALMA searched for Masigasig, but party suspends the right of all others,
all their efforts proved futile. Mapagmatyag, a observing the order in Section 2 of the Rule on
member of ALMA, learned from Maingay, a the Writ of Amparo. Here the petition for writ
member of APKA, during their binge drinking of amparo had earlier been filed by the spouse
that Masigasig was abducted by other members of the aggrieved party Masigasig. Thus, it
of APKA, on order of Mapusok. Mayumi and suspends the right of all others, including
ALMA sought the assistance of the local police ALMA, to file the petition.
to search for Masigasig, but they refused to
extend their cooperation. c. The amparo petition shall be consolidated with
the criminal action. (Section 23, Rule on the
Immediately, Mayumi filed with the RTC, a Writ of Amparo)
petition for the issuance of the writ of amparo
against Mapusok and APKA. ALMA also filed a INTERIM RELIEFS AVAILABLE TO PETITIONER
petition for the issuance of the writ of amparo AND RESPONDENT
with the Court of Appeals against Mapusok and
APKA. Respondents Mapusok and APKA, in PETITIONER RESPONDENT
their Return filed with the RTC, raised among 1. Temporary protection 1. Inspection order;
their defenses that they are not agents of the order; and
State; hence, cannot be impleaded as 2. Inspection order; 2. Production order.
respondents in an amparo petition. 3. Production order; and (Sec. 15)
4. Witness protection
a. Is their defense tenable? Respondents order (Sec. 14)
Mapusok and APKA, in their Return
filed with the Court of Appeals, raised NOTE: An interim relief cannot be granted
as their defense that the petition should independently when a writ of amparo has already
be dismissed on the ground that ALMA been issued. Provisional reliefs are intended to
cannot file the petition because of the assist the court before it arrives at a judicious
determination of the amparo petition. The privilege

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of the writ of amparo, once granted, necessarily The court shall render judgment within ten (10)
entails the protection of the aggrieved party. (Yano days from the time the petition is submitted for
v. Sanchez, G.R. No. 186640, February 11, 2010) decision. (Sec. 18)

Temporary protection and witness protection No enforcement of five (5) days like in Habeas
orders Data.

Temporary protection and witness protection Judgment subject to appeal via Rule 45
orders may be issued motu proprio by the court
unlike inspection and protection orders which may If the allegations are proven with substantial
be issued only upon verified petition by the party. evidence, the court shall grant the privilege of the
writ and such reliefs as may be proper and
Inspection Order appropriate. The judgment should contain
measures, which the judge views as essential for
An inspection order is an interim relief designed to the continued protection of the petitioner in the
give support or strengthen the claim of a petitioner Amparo case. These measures must be detailed
in an amparo petition, in order to aid the court enough so that the judge may be able to verify and
before making a decision. While the Amparo Rule monitor the actions taken by the respondents. It is
does not require that the place to be inspected be this judgment that could be subject to appeal to the
identified with clarity and precision, it is, Supreme Court via Rule 45. (De Lima v. Gatdula, G.R.
nevertheless, a minimum for the issuance of an No. 204528, February 19, 2013)
inspection order that the supporting allegations of
a party be sufficient in itself, so as to make a prima Appeal (2012 BAR)
facie case. (Roxas v. Macapagal Arroyo, G.R. No.
189155, September 7, 2010) Any party may appeal from the final judgment or
order to the SC under Rule 45 within five (5) days.
QUANTUM OF PROOF IN APPLICATION FOR The appeal may raise not only questions of law but
ISSUANCE OF WRIT OF AMPARO also questions of fact or both because its subject is
extralegal killings or enforced disappearances,
In a petition for a writ of amparo, the parties shall which might necessitate a review of errors of fact.
establish their claims by substantial evidence. (Sec. (Sec. 19, Ibid.)
17, A.M. No. 07-9-12-SC)
Reason: Amparo proceedings involve
NOTE: Substantial evidence is sufficient in determination of facts considering its subject-
proceedings involving petitions for the writ extralegal killings and enforced disappearances.
of amparo. The respondent must show in the
return on the writ of amparo the observance of Doctrine of totality of evidence
extraordinary diligence. Once an enforced
disappearance is established by substantial The court must consider all the pieces of evidence
evidence, the relevant State agencies should be adduced in their totality, not in isolation with each
tasked to assiduously investigate and determine other, and to consider any evidence otherwise
the disappearance, and, if warranted, to bring to inadmissible under our usual rules to be
the bar of justice whoever may be responsible for admissible if it is consistent with the admissible
the disappearance. (Republic v. Cayanan, G.R. No. evidence adduced. In other words, we reduce our
181796, November 7, 2017) rules to the most basic test of reason – i.e., to
the relevance of the evidence to the issue at hand
Public officials and employees must prove that and its consistency with all other pieces of adduced
extraordinary diligence was exercised in the evidence. Thus, even hearsay evidence can be
performance of duty while only ordinary diligence admitted if it satisfies this basic minimum
is required for private individual or entity. Public test. (Razon, Jr. v. Tagitis, G.R. No. 182498, December
officials or employees are charged with a higher 3, 2009)
standard of conduct because it is their legal duty to
obey the Constitution, especially its provisions
protecting the right to life, liberty and security. WRIT OF HABEAS DATA
They cannot simply invoke the presumption of (A.M. No. 08-1-16-SC)
regularity. (Sec. 17, A.M. No. 07-9-12-SC) Effectivity Date: February 2, 2008

Judgment

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It is a remedy available to any person whose right (Rodriguez vs. Arroyo, G.R. No. 191805,
to privacy in life, liberty or security is violated or November 15, 2011)
threatened by an unlawful act or omission of a
public official or employee, or of a private NOTE: The remedies include updating,
individual or entity engaged in the gathering, rectification, suppression, or destruction of the
collecting or storing of data or information database or information or files in possession or
regarding the person, family, home and control of the respondents. It is not limited to cases
correspondence of the aggrieved party. (Sec. 1, A.M. of extralegal killings and enforced disappearances
No. 08-1-16-SC) (2009, 2010 BAR) (Vivares v. St. Theresa’s College, G.R. No. 202666,
September 29, 2014)
Objective
Where the writ of habeas data is not applicable
The writ of habeas data was conceptualized as a
judicial remedy enforcing the right to privacy, most While the writ of habeas data is a remedy available
especially the right to informational privacy of for the protection of one’s right to privacy, the state
individuals. The writ operates to protect a interest in dismantling private armed groups
person’s right to control information regarding outweighed the alleged intrusion of a person’s
himself, particularly in the instances where such private life.
information is being collected through unlawful
means in order to achieve unlawful ends. (Roxas v. Related jurisprudence
Macapagal Arroyo, G.R. No. 189155, September 7,
2010) Gamboa was unable to prove through substantial
evidence that her inclusion in the list of individuals
In a proceeding for a writ of habeas data, courts maintaining Private Army Groups made her and
only determine the respondent's accountability in her supporters susceptible to harassment and to
the gathering, collecting, or storing of data or increased police surveillance. In this regard,
information regarding the person, family, home, respondents sufficiently explained that the
and correspondence of the aggrieved party. Any investigations conducted against her were in
civil, criminal, or administrative liability may only relation to the criminal cases in which she was
be imposed in a separate action. implicated. As public officials, they enjoy the
presumption of regularity, which she failed to
Nature of hearing on the petition overcome. The state interest of dismantling PAGs
far outweighs the alleged intrusion on the private
The nature of the hearing on the petition is life of Gamboa, especially when the collection and
summary. However, the court, justice or judge may forwarding by the PNP of information against her
call for a preliminary conference to simplify the was pursuant to a lawful mandate. Therefore, the
issues and determine the possibility of obtaining privilege of the writ of habeas data must be denied.
stipulations and admissions from the parties. (Sec. (Gamboa v. Chan, G.R. No. 193636, July 24, 2011)
15, A.M. No. 08-1-16-SC)
Until such time that any of the respondents were
SCOPE OF WRIT found to be actually responsible for the abduction
and torture of the petitioner, any inference
As an independent and summary remedy to regarding the existence of reports being kept in
protect the right to privacy – especially the right to violation of the petitioners right to privacy
informational privacy – the proceedings for the becomes farfetched, and premature. (Roxas v.
issuance of the writ of habeas data does not entail Macapagal Arroyo, G.R. No. 189155, September 7,
any finding of criminal, civil or administrative 2010)
culpability.
The incumbent Chief Executive cannot be haled to
Reliefs granted by the court court even for the limited purpose under the Rules
on the Writ of Habeas Data on the basis of
If the allegations in the petition are proven through presidential immunity from suit. (De Lima v.
substantial evidence, then the Court may: President Duterte, G.R. No. 227635, October 15,
2019)
1. Grant access to the database or information;
2. Enjoin the act complained of; or AVAILABILITY OF WRIT
3. In case the database or information contains
erroneous data or information, order its 1. To any person;
deletion, destruction or rectification.

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2. Whose right to privacy in life, liberty and NOTE: Unlike in amparo, human rights
security is violated or threatened; organizations or institutions are no longer allowed
3. With violation by an unlawful act or to file the petition.
omission of a public official or employee,
or of a private individual or entity engaged CONTENTS OF THE PETITION
in:
A verified petition for a writ of habeas data should
a. Gathering; contain the following: (PM-LARO)
b. Collecting; or
c. Storing of data or information a. The personal circumstances of the petitioner
regarding the person family, home and and the respondent;
correspondence of the aggrieved b. The manner the right to privacy is violated or
party. (Sec. 1, A.M. No. 08-1-16-SC) threatened and how it affects the right to life,
liberty or security of the aggrieved party;
NOTE: The writ however will not issue on the basis c. The location of the files, registers or databases,
merely of an alleged unauthorized access to the government office, and the person in
information about a person. Availment of the writ charge, in possession or in control of the data
requires the existence of a nexus between the right or information, if known;
to privacy on the one hand, and the right to life, d. The actions and recourses taken by the
liberty or security on the other. Thus, the existence petitioner to secure the data or information;
of a person’s right to informational privacy and a e. The reliefs prayed for, which may include the
showing, at least by substantial evidence, of an updating, rectification, suppression or
actual or threatened violation of right to privacy in destruction of the database or information or
life, liberty, or security of the victim are files kept by the respondent. In case of threats,
indispensable before the privilege of the writ may the relief may include a prayer for an order
be extended. enjoining the act complained of; and
f. Such other relevant reliefs as are just and
Right to informational privacy is defined as the equitable (Sec. 6, A.M. No. 08-1-16-SC)
right of individuals to control information about
themselves. And such right depends on the NOTE: Section 6 of the Rule on the Writ of Habeas
existence of “expectational privacy” a person has Data requires material allegations of ultimate facts
toward particular information. Before one can have in a petition for the issuance of a writ of habeas
expectational privacy, it must be shown the the data.
person intended such information to be private
(Vivares v. St. Theresa’s College, G.R. No. 202666, CONTENTS OF RETURN
September 29, 2014)
The respondent, within 5 working days from the
WHO MAY FILE service of the writ, unless reasonably extended by
the Court, shall file a verified return containing:
An aggrieved party whose right to privacy in life,
liberty or security is violated or threatened may a. Lawful defenses such as national security, state
file a petition. secrets, privileged communication,
confidentiality of the source of information of
However, in cases of extralegal killings and media and others;
enforced disappearances, the petition may be filed b. If respondent in charge, in possession or in
by: control of the data or information subject of
the petition:
1. Any member of the immediate family of
the aggrieved party, namely: the spouse, i. Disclosure of the data or information
children and parents; or about petitioner, nature of such data or
2. Any ascendant, descendant or collateral information, and purpose of its collection;
relative of the aggrieved party within the ii. Steps or actions taken by respondent to
fourth civil degree of consanguinity or ensure the security and confidentiality of
affinity, in default of those mentioned in the data or information;
the preceding paragraph. (Sec. 2, A.M. No. iii. Currency and accuracy of the data and
08-01-16-SC) information held; and

c. Other allegations relevant to the resolution of
the proceeding;

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 SPECIAL PROCEEDINGS

A general denial of the allegations in the petition QUANTUM OF PROOF IN APPLICATION FOR
shall not be allowed. (Sec. 10, A.M. No. 08-1-16-SC) ISSUANCE OF WRIT OF HABEAS DATA

NOTE: In case the respondent fails to file a return, If the allegations in the petition are proven by
the court, justice or judge shall proceed to hear the substantial evidence, the court shall enjoin the act
petition ex parte, granting the petitioner such relief complained of, or order the deletion, destruction,
as the petition may warrant unless the court in its or rectification of the erroneous data or
discretion requires the petitioner to submit information and grant other relevant reliefs as may
evidence. (Sec. 14, A.M. No. 08-1-16-SC) be just and equitable; otherwise, the privilege of
the writ shall be denied. (Sec. 16, A.M. No. 08-1-16-
The court, justice or judge may punish with SC)
imprisonment or fine a respondent who commits
contempt by making a false return, or refusing to NOTE: The Court has ruled that in view of the
make a return; or any person who otherwise recognition of the evidentiary difficulties attendant
disobeys or resist a lawful process or order of the to the filing of a petition for the privilege of the
court. (Sec. 11, A.M. No. 08-1-16-SC) writs of amparo and habeas data, not only direct
evidence, but circumstantial evidence, indicia, and
INSTANCES WHEN PETITION MAY BE presumptions may be considered, so long as they
HEARD IN CHAMBERS lead to conclusions consistent with the admissible
evidence adduced.
Hearing in chambers may be conducted where
respondent invokes the defense that the release of Judgment
the data or information shall compromise:
1. The court shall render judgment within ten
1. National security; (10) days from the time the petition is
2. State secrets; and submitted for decision. (Sec. 16, A.M. No. 08-1-
3. When the data or information cannot be 16-SC)
divulged to the public due its nature or 2. Upon its finality, the judgment shall be
privileged character. (Sec. 12, A.M. No. 08-1-16- enforced by the sheriff or any lawful officers as
SC) may be designated by the court, justice or
judge within 5 working days. (Sec. 16, A.M. No.
CONSOLIDATION 08-1-16-SC)
3. The officer who executed the final judgment
1. When a criminal action is filed subsequent to shall, within 3 days from its enforcement,
the filing of a petition for the writ, the latter make a verified return to the court. The officer
shall be consolidated with the criminal action; shall state in the return how the judgment was
or enforced and complied with by the respondent,
2. When a criminal action and a separate civil as well as all objections of the parties
action are filed subsequent to a petition for a regarding the manner and regularity of the
writ of habeas data, the petition shall be service of the writ. (Sec. 17, A.M. No. 08-1-16-
consolidated with the criminal action. SC)
4. The court shall set the return for hearing with
After consolidation, the procedure under the Rule due notice to the parties and act accordingly.
shall continue to govern the disposition of the (Sec. 18, A.M. No. 08-1-16-SC)
reliefs in the petition. (Sec. 21, A.M. No. 08-1-16-SC)
Appeal
EFFECT OF FILING OF A CRIMINAL ACTION
Any party may appeal from the final judgment or
When a criminal action has been commenced, no order to the Supreme Court under Rule 45. The
separate petition for the writ shall be filed. The appeal may raise questions of fact or law or both.
reliefs under the writ shall be available by motion The period of appeal shall be five (5) working days
in the criminal case. (Sec. 22, A.M. No. 08-1-16-SC) from the date of notice of the judgment or final
order. The appeal shall be given the same priority
INSTITUTION OF SEPARATE ACTION as in habeas corpus and amparo cases. (Sec. 19,
A.M. No. 08-1-16-SC)
This Rule shall not preclude the filing of separate
criminal, civil or administrative actions. (Sec. 20,
A.M. No. 08-1-16-SC)

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 REMEDIAL LAW
Issuance of the writ vs. Privilege of the writ publication of the order containing certain data.
(Secan Kok v. Republic, G.R. No. L-27621, August 30,
ISSUANCE OF THE PRIVILEGE OF THE 1973)
WRIT WRIT
This is issued upon the This is issued after Who may file petition
filing of the petition if on hearing, in the form of
its face it ought to issue. a judgment. Under Rule 103, the word “person” is a generic
term which is not limited to Filipino citizens, but
NOTE: Sec. 7. Upon the NOTE: The court shall embraces all natural persons (Yu v. Republic, G.R.
filing of the petition, the render judgment No. L-20874, May 25, 1966). It includes:
court, justice or judge within 10 days from
shall immediately order the time the petition is 1. Alien - must be domiciled in the
the issuance of the writ if submitted for decision. Philippines, not one temporarily staying
on its face it ought to If the allegations in the (Ong Huan Ting vs. Rep., G.R. No. L-20997,
issue. The clerk of court petition are proven by April 27, 1967); and
shall issue the writ under substantial evidence, 2. Adopted child (Republic vs. Wong, G.R. No.
the seal of the court and the court shall enjoin 97906, May 21, 1992)
cause it to be served the act complained of,
within 3 days from its or order the deletion, NOTE: The name that can be changed is the name
issuance; or, in case of destruction, or that appears in the civil register, and not in the
urgent necessity, the rectification of the baptismal certificate or that by which the person is
justice or judge may erroneous data or known in the community. (Ng Yao Siong v. Republic,
issue the writ under his information and grant G.R. No. L-20306, October 30, 1962)
or her own hand, and other relevant reliefs
may deputize any officer as may be just and Q: A was adopted by B and C when A was only a
or person to serve it. The equitable; otherwise, toddler. Later on in life, A filed with the RTC a
writ shall also set the the privilege of the petition for change of name under Rule 103, as
date and time for writ shall be denied. he wanted to reassume the surname of his
summary hearing of the natural parents because the surname of his
petition which shall not adoptive parents sounded offensive and was
be later than 10 work seriously affecting his business and social life.
days from the date of its The adoptive parents gave their consent to the
issuance. petition for change of name. May A file a
petition for change of name? If the RTC grants
the petition for change of name, what, if any,
CHANGE OF NAME will be the effect on the respective relations of
(Rule 103) A with his adoptive parents and with his
natural parents? Discuss. (2014 BAR)

Purpose A: A should be allowed to change his surname
because the reasons he invoked are proper and
No person can change his name or surname reasonable under the circumstances. Besides, his
without juridical authority involving substantial adoptive parents have agreed on the change of his
changes. (Art. 376, Civil Code) Its objective is for surname.
prevention of fraud since the rule involves
substantial changes in a person's name. (De Leon & In a case with similar facts, Republic v. Wong (G.R.
Wilwayco, 2015) No. 97906, May 21, 1992) the Supreme Court
allowed Maximo Wong to change his name to
Nature of the proceeding Maximo Alcala, Jr. Maximo was the natural child of
Spouses Maximo Alcala, Sr. and Segundina Y.
It is a proceeding in rem to establish the status of a Alcala. When he was adopted by Spouses Hoong
person involving his relations with others, that is, Wong and Conception Ty, his name was changed to
his legal position in, or, with regard to the rest of Maximo Wong. Upon reaching the age of 22, he
the community. (Republic v. CA, G.R. No. 97906, May filed a petition to change his name to Maximo
21, 1992) Alcala, Jr. It was averred that his use of the
surname Wong embarrassed and isolated him from
Hence, jurisdiction to hear and determine the his relatives and friends, as the same suggests a
petition for change of name is acquired after due Chinese ancestry when in truth and in fact he is a
Muslim Filipino residing in a Muslim community,

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 SPECIAL PROCEEDINGS

and he wants to erase any implication whatsoever therewith precludes the court from obtaining
of alien nationality; that he is being ridiculed for jurisdiction. Likewise, the failure to include the
carrying a Chinese surname, thus hampering name sought to be adopted in the title of the
business and social life; and that his adoptive petition and, consequently, the notices published in
mother does not oppose his desire to revert to his the newspapers, is a substantial jurisdictional
former surname. infirmity. (In the Matter of the Change of Name of
Hermogenes Diangkinay, G.R. No. L-29850, June 30,
Venue 1972)

Any person desiring to change his name shall The incorrect spelling of the petitioner’s name in
present the petition to the Regional Trial Court of the petition and the order is a substantial defect
the province where the petitioner has been because it did not correctly identify the party in the
residing for three (3) years prior to the filing of the said proceedings. (Tan v. Republic, G.R. No. L-16384,
petition. (Sec.1, Rule 103) April 26, 1962)

Contents of the petition (BANC) Order for hearing

1. That the petitioner has been a bona fide If petition sufficient in form and substance:
resident of the province where the petition
is filed for at least three (3) years prior to The court, by an order reciting the purpose of the
the date of such filing; petition, shall:
2. The cause for which the change of the
petitioner's name is sought; 1. Fix the date and place for the hearing thereof;
3. The name asked for (Sec. 2, Rule 103); and 2. Direct that copy of the order be published at
4. All names and aliases of petitioner least once a week for three (3) consecutive
(Republic v. Marcos, G.R. No. L-31065, weeks in a newspaper of general circulation;
February 15, 1990) and
3. Set the date for hearing which shall not be:
NOTE: The petition shall be signed and verified by
the person desiring his name changed or some a. Within 30 days prior to an election; nor
other person in his behalf. However, the b. Within four (4) months after the last
requirement of verification is a formal, and not a publication of the notice.
jurisdictional requisite. It is not a ground for
dismissing the petition. (Yu v. Republic, G.R. No. L- NOTE: The court shall grant the petition under
20874, May 25, 1966) Rule 103 only when satisfactory proof has been
presented in open court that the order had been
Jurisdictional facts published as directed, the allegations in the
petition are true, and proper and reasonable
1. Publication of petition for three (3) causes appear for changing the name of the
consecutive weeks in newspaper of petitioner. (RE: Final Report on the Judicial Audit
general circulation in the province; and Conducted at the RTC, BR. 67, Paniqui Tarlac, A.M.
2. Both title or caption and body shall recite No. 06- 7-414-RTC, October 19, 2007)
(NCN)

a. Name/names or aliases of applicant;
b. Cause for which change of name is
sought; and
c. New name asked for

Reason: A change of name is a matter of public
interest. (Secan Kok v. Republic, G.R. No. L-27621,
August 30, 1973)

Jurisdictional defects

The failure to include the true name of the party
whose name is sought to be changed in the title of
the petition and of notices published in connection

377
 REMEDIAL LAW
DIFFERENCES UNDER RULE 103, RA NO. 9048, AND RULE 108

RA NO. 9048 AS
RULE 103 AMENDED BY RA RULE 108
10172
Scope Change of full name or Clerical or Correction of or substantial
surname (substantial typographical errors; errors or cancellation of
corrections). (De Leon and change of first name or entries in the Civil Registry/
Wilwayco, 2015) nickname, the day and cancellation of entries.
month in the date of
birth or sex of a person
where it is patently
clear that there was a
clerical or
typographical error or
mistake in the entry,
which can be corrected
or changed by the
concerned City or
Municipal Civil
Registrar or Consul
General.
Nature Judicial; hearing is Administrative; Judicial; hearing is necessary.
necessary. hearing is not Adversarial since it involves
necessary. Summary substantial errors and affects
as it merely involves the status of an individual.
clerical errors.
Initiatory pleading Verified petition. Sworn affidavit. Verified petition.
Coverage 1. Correction of 1. Correction of 1. Births;
clerical or clerical or 2. Marriages;
typographical typographical 3. Deaths;
errors in civil errors in the 4. Legal separations;
registry documents, civil registry, 5. Judgments of
EXCEPT corrections INCLUDING annulments of
involving the correction of marriage;
change in sex, age, date of birth 6. Judgments declaring
nationality, and and sex; and marriages void from
status of a person; 2. Change of a the beginning;
and person’s first 7. Legitimations;
2. Change of a name or 8. Adoptions;
person’s first name nickname in his 9. Acknowledgment of
or nickname in his or her civil natural children;
or her civil registry. registry. 10. Naturalization;
11. Election, loss, or
recovery of
citizenship;
12. Civil interdiction;
13. Judicial determination
of filiation; and
14. Change of name

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 SPECIAL PROCEEDINGS

Grounds 1. Name is ridiculous, 1. Petitioner finds Upon good and valid grounds
tainted with the first name
dishonor, or or nickname to
extremely difficult be ridiculous,
to write or tainted with
pronounce; dishonor, or
2. Change is a legal extremely
consequence of difficult to
legitimation or write or
adoption; pronounce;
3. Change will avoid 2. The new first
confusion; name or
4. When one has nickname has
continuously used been habitually
and been known and
since childhood by a continuously
Filipino name, and used by
was unaware of petitioner and
alien parentage; he has been
5. Sincere desire to publicly known
adopt Filipino name by such name
to erase signs of in the
former alienage, all community; or
in good faith and 3. The change will
without prejudicing avoid
any body; confusion.
6. Surname causes
embarrassment and
there is no showing
that the desired
change of name was
for a fraudulent
purpose or that the
change of name
would prejudice
public interest.
Where to file RTC of the province where Local Civil Registry RTC where the corresponding
the petitioner resides at office where the civil registry is located.
least at least three (3) record is kept/Consul
years prior to the filing of General.
the petition.
Where to appeal, CA under Rule 41 Civil Registrar General CA under Rule 41
in case of adverse under (Rule 14, IRR of
decision RA 9048) or CA under
Rule 43
Who may file Filed by the person Petition is filed by the Any person interested in the
desiring to change his person of legal age act, event, decree or order
name. who must have a concerning the civil status of
direct and personal persons.
interest in the
correction:
1. Owner of the
record;
2. Owner’s spouse,
children, parents,
brothers, sisters,
grandparents,
guardian; or
3. Anyone authorized

379
 REMEDIAL LAW
by law or owner of
the record.
Who must be Solicitor General/ Interested Civil registrar is impleaded as
notified Interested parties. parties/Solicitor respondent; Solicitor
General need not be General/ Interested parties.
notified.
Notice and Order for hearing shall be Order for hearing in Order for hearing shall be
publication published once a week for case of change of first published once a week for
three (3) consecutive name or nickname, the three (3) consecutive weeks
weeks in a newspaper of day and month in the in a newspaper of general
general circulation (notice date of birth or sex of a circulation (notice of
of hearing). person where it is hearing). (2007 BAR)
patently clear that
there was a clerical or
typographical error or
mistake shall be
published once a week
for two (2) consecutive
weeks.

GROUNDS FOR CHANGE OF NAME (R-CAUSE) A change of name should not be permitted if it will
give a false impression of family relationship to
1. Name is ridiculous, tainted with dishonor, another where none actually exists. (Republic v.
or extremely difficult to write or Marcos, G.R. No. 31065, February 15, 1990)
pronounce;
2. Change is a legal consequence of Change of name is a matter of public interest
legitimation or adoption;
3. Change will avoid confusion; The State has an interest in the names borne by
4. When one has continuously used and been individuals and entities for purposes of
known since childhood by a Filipino name, identification. A change of name is a privilege and
and was unaware of alien parentage; not a right, so that before a person can be
5. Sincere desire to adopt Filipino name to authorized to change his name, he must show
erase signs of former alienage, all in good proper or reasonable cause, or any compelling
faith and without prejudicing anybody; reason which may justify such change.
6. Surname causes embarrassment and there
is no showing that the desired change of Illegitimate child may now use father’s
name was for a fraudulent purpose or that surname
the change of name would prejudice public
interest. R.A. 9255 amended Article 176 of the Family Code
allowing the Illegitimate Child to Use the Surname
The above grounds are not exclusive. The matter of the Father If the Latter Expressly Recognized
of whether to grant a petition for change of name is Filiation in a Record of Birth (took effect on March
left to the sound discretion of the court. 19, 2004).

When petition is granted This modifies Leonardo v. Court of Appeals (G.R. No.
125329, September 10, 2003) disallowing an
The petition should be granted where there is: illegitimate child the right to use his/her father’s
name. (Republic v. Wong, G.R. No. 88202, December
1. Proper and reasonable cause; and 14, 1998)
2. Where there is no showing that the
petition was motivated by fraudulent NOTE: This rule is subject to the requirement that
intent, or that the change of name will filiation has been expressly recognized by the
prejudice public interest. (Oshita v. father through:
Republic, G.R. No. L-21180, March 31, 1967)
1. Record of birth appearing in the civil
When petition is NOT granted register;
2. When an admission in a public document
is made by the father; and

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 SPECIAL PROCEEDINGS

3. When an admission in a private A: NO. In case of annulment of marriage or divorce,

handwritten instrument is made by the there is no need to file a petition for resumption of
father. (De Leon & Wilwayco, 2015) maiden name or surname. The true and real name
of a person is that given to him and entered in the
Who has the choice of name civil register which a woman may continue to use
despite her marriage or cessation of marriage for
Article 176 of the Family Code, as amended by R.A. whatever cause. The use of the husband’s name is
No. 9255, gives illegitimate children the right to merely permissive which the wife may continue to
decide if they want to use the surname of the father use except in case of legal separation. (Yasin v.
or not. Judge, Sharia District Court, G.R. No. 94986,
February 23, 1995)
In fact, the Supreme Court in Grande v. Antonio
(G.R. No. 206248, February 18, 2014) voided Under Art. 370 of the Civil Code, a married
provisions of the IRR of R.A. No. 9255 insofar as it woman may use:
provides the mandatory use by illegitimate
children of their father’s surname upon the latter’s 1. Her maiden first name and surname and
recognition of his paternity. (De Leon & Wilwayco, add her husband’s surname;
2015) 2. Her maiden first name and her husband’s
surname; or
A child was allowed to change his name as he was 3. Her husband’s full name, but prefixing a
never recognized by his father while his mother word indicating that she is his wife, such
has always recognized him as her child. A change of as “Mrs.”
name will erase the impression that he was ever
recognized by his father. (Republic v. Capote, G.R. On the other hand, Art. 372 of the Civil Code
No. 157043, February 2, 2007) provides: When legal separation has been granted,
the wife shall continue using her name and
Change of name under Rule 108 surname employed before the legal separation.

The enactment in March 2001 of Republic Act No. Q: Petitioner sought to drop his middle name
9048 has been considered to lend legislative and have his registered name changed from
affirmation to the judicial precedence that Julian Lin Carulasan Wang to Julian Lin Wang.
substantial corrections to the civil status of persons Since in Singapore, middle names or the
recorded in the civil registry may be effected maiden surname of the mother are not carried
through the filing of a petition under Rule 108. in a person’s name, they anticipate that Julian
When all the procedural requirements under Rule Lin Carulasan Wang will be discriminated
108 are thus followed, the appropriate adversary against because of his current registered name
proceeding necessary to effect substantial which carries a middle name. Julian and his
corrections to the entries of the civil register is sister might also be asking whether they are
satisfied. brother and sister since they have different
surnames. Carulasan sounds funny in
With respect to the correction in Carlito’s birth Singapore’s Mandarin language since they do
certificate of his name from “Carlito John” to not have the letter “R” but if there is, they
“Carlito,” the same was properly granted under pronounce it as “L.” It is for these reasons that
Rule 108 of the Rules of Court. The cancellation or the name of Julian Lin Carulasan Wang is
correction of entries involving changes of name requested to be changed to Julian Lin Wang.
falls under letter “o” of the following provision of Should the petition be granted?
Section 2 of Rule 108: “Entries subject to
cancellation or correction. — upon good and valid A: NO. Middle names serve to identify the maternal
grounds, the following entries in the civil register lineage or filiation of a person as well as further
may be cancelled or corrected: x xx (o) changes of distinguish him from others who may have the
name.” Hence, while the jurisdictional same given name and surname as he has. In the
requirements of Rule 103 (which governs petitions case at bar, the only reason advanced by petitioner
for change of name) were not complied with, for the dropping his middle name is convenience.
observance of the provisions of Rule 108 suffices to
effect the correction sought for. (Republic v. Kho, However, how such change of name would make
G.R. No. 170340, June 28, 2007) his integration into Singaporean society easier and
convenient is not clearly established. That the
Q: Is there a need for change of name by a continued use of his middle name would cause
married woman? confusion and difficulty does not constitute proper

381
 REMEDIAL LAW
and reasonable cause to drop it from his registered Q: Jennifer was born on January 13, 1981 and
complete name. (In Re Petition for Change of Name was registered as a female in the Certificate of
and/or Correction/Cancellation of Entry of Civil Live Birth but while growing up, she developed
Registry of Julian Lin Carulasan Wang, G.R. No. secondary male characteristics and was
159966, March 30, 2005) diagnosed to have Congenital Adrenal
Hyperplasia (CAH) which is a condition where
Q: As may be gleaned from the petition, the persons thus afflicted possess both male and
reasons offered for changing the name of female characteristics. Jennifer filed a Petition
petitioner's daughter are: (1) that "her for Correction of Entries in Birth
daughter grew up with, and learned to love and Certificate before the RTC, praying that her
recognize Alfredo de la Cruz as her own father"; birth certificate be corrected such that her
(2) to afford her daughter a feeling of security; gender be changed from female to male and her
and (3) that "Alfredo de la Cruz agrees to this first name be changed from Jennifer to Jeff.
petition, and has signified his conformity at the Rule on the petition.
foot of this pleading". Should the petition be
granted? A: A change of name is not a matter of right but of
judicial discretion, to be exercised in the light of the
A: NO. Clearly, these are not valid reasons for a reasons adduced and the consequences that will
change of name. The general rule is that a change of follow. The trial court’s grant of respondent’s
name should not be permitted if it will give a false change of name from Jennifer to Jeff implies a
impression of family relationship to another where change of a feminine name to a masculine name.
none actually exists. In Padilla v. Republic (G.R. No. Considering the consequence that respondent’s
L-28274, April 30, 1982), it was specifically held change of name merely recognizes his preferred
that our laws do not authorize legitimate children gender, there is merit in respondent’s change of
to adopt the surname of a person not their father, name. Such a change will conform with the change
for to allow them to adopt the surname of their of the entry in his birth certificate from female to
mother's husband, who is not their father, can male. Here, it is noteworthy to emphasize that
result in confusion of their paternity. (Republic v. Jennifer has simply let nature take its course and
Marcos G.R. No. 31065, February 15, 1990) has not taken unnatural steps to arrest or interfere
with what he was born with. To him belongs the
Q: Petitioner sought to have his name in his human right to the pursuit of happiness and of
birth certificate changed from “Rommel health. (Republic v. Cagandahan, G.R. No. 166676,
Jacinto” to “Mely,” and his sex from “male” to September 12, 2008)
“female.” Petitioner’s basis in praying for the
change of his first name was his sex Notice to the Solicitor General
reassignment. He intended to make his first
name compatible with the sex he thought he The State has an interest in the names borne by
transformed himself into through surgery. Can individuals for purposes of identification, and that
a person’s first name be changed on the ground changing one’s name is a privilege and not a right.
of sex reassignment? Accordingly, a person can be authorized to change
his name appearing in either his certificate of birth
A: NO. A change of name does not alter one’s legal or civil registry upon showing not only of
capacity or civil status. RA 9048 does not sanction reasonable cause, or any compelling reason which
a change of first name on the ground of sex may justify such change, but also that he will be
reassignment. Rather than avoiding confusion, prejudiced by the use of his true and official name.
changing petitioner’s first name for his declared (Republic of the Philippines v. Bolante, G.R. No.
purpose may only create grave complications in 160597, July 20, 2006)
the civil registry and the public interest. Also, there
is no such special law in the Philippines governing The interest of the State which is represented by
sex reassignment and its effects. In our system of the Solicitor General is paramount over personal
government, it is for the legislature, should it right to choose a name. The State must identify its
choose to do so, to determine what guidelines subjects. (Ong Peng Oan v. Republic, G.R. No. L-
should govern the recognition of the effects of sex 80035, November 29, 1975)
reassignment. (Silverio v. Republic, G.R. No. 174689,
October 22, 2007) Who may oppose the petition

Requisite for compelling reason 1. Any interested person; or
2. The Republic of the Philippines through
the Solicitor General or the proper

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 SPECIAL PROCEEDINGS

provincial or city prosecutor (Sec. 4, Rule necessary. (Reyes v. Alejandro, G.R. No. L-46187,
103) January 16, 1986)

Judgment WHO MAY FILE; WHEN TO FILE

Upon satisfactory proof in open court on the date Who may file (2010 BAR)
fixed in the order that such order has been
published as directed and that the allegations of 1. Spouse present;
the petition are true, the court shall, if proper and 2. Heirs instituted in a will, who may present
reasonable cause appears for changing the name of an authentic copy of the same;
the petitioner, adjudge that such name be changed 3. Relatives who would succeed by the law of
in accordance with the prayer of the petition. (Sec. intestacy; or
5, Rule 103) 4. Those who have over the property of the
absentee some right subordinated to the
A decree of adoption grants the adoptee the right condition of his death. (Sec. 2)
to use the adopter’s surname, if change of first
name is so desired, it must be prayed and alleged in When to file
the petition for adoption. (Sec. 16, A.M. No. 02-6-02-
SC) 1. After 2 years
a. From his disappearance and without
Service of judgment any news about the absentee; or
b. From the last news about the
Judgments or orders rendered in connection with absentee.
this rule shall be furnished the civil registrar of the
municipality or city where the court issuing the 2. After 5 years if he left an administrator of
same is situated, who shall forthwith enter the his property (Sec. 2)
same in the civil register. (Sec. 6, Rule 103)
Where to file
Effect of change of name
The petition for the appointment of an absentee
A change of name does not define or effect a change should be filed in the RTC where the absentee
of one’s existing family relations or in the rights resided before his disappearance. (Sec. 1)
and duties flowing therefrom. It does not alter
one’s legal capacity, civil status or citizenship; what Contents of the Petition
is altered is only the name. (Republic v. CA, G.R. No.
97906, May 21, 1992) 1. Jurisdictional facts;
2. Names, ages, and residences of the heirs
A change of name granted by the court affects only instituted in the will, copy of which shall
the petitioner. A separate petition for change of be presented, and of the relatives who
name must be filed for his wife or children. (Secan would succeed by the law of intestacy;
Kok v. Republic, G.R. No. L-27621, August 30, 1973) 3. Names and residences of the creditors and
others who may have an adverse interest
over the property if the absentee; and
ABSENTEES probable value, location and character of
(Rule 107) the property belonging to the absentee.
(Sec. 3, Rule 107)

An absentee is a person who disappears from his Appointment of representative
domicile, his whereabouts being unknown, and
without having left an agent to administer property When a person disappears from his domicile, his
or the power conferred on the agent has expired. whereabouts being unknown, and without having
(Sec. 1, Rule 107) left an agent to administer property or the power
conferred on the agent has expired, any interested
PURPOSE OF THE RULE party, relative or friend may file a petition in the
RTC of the place where the absentee resided before
To appoint an administrator over the properties of disappearance appoint provisionally a
the absentee. This is proper only where the representative for him. (Sec. 1, Rule 107)
absentee has properties to be administered. If the
absentee left no properties, such petition is not Who may be appointed

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1. Appointment of representative/trustee; subsequent marriage the absent spouse was absent
for:
a. Spouse present shall be preferred
when there is no legal separation; or 1. 4 consecutive years – spouse present had
b. If absentee left no spouse, or spouse a well-founded belief that the absent
present is a minor or otherwise spouse was already dead; or
incompetent- any competent person 2. 2 years – in danger of death under the
may be appointed by the court. circumstances in Art. 391 of the Civil Code,
computed from the occurrence of the
2. Declaration of absence – trustee or event from which death is presumed.
administrator of absentee’s property shall
be appointed in accordance with the NOTE: There are certain circumstances where a
preceding paragraph. (Sec. 7, Rule 107) person was already considered dead without
waiting for the period to expire. Where there are
A petition to declare the husband an absentee and facts, known or knowable, from which a rational
the petition to place the management of the conclusion can be made, the presumption does not
conjugal properties in the hands of the wife could step in and the rule of preponderance of evidence
be combined and adjudicated in the same controls. (Eastern Shipping Lines v. Lucero G.R. No.
proceedings. L-60101 August 31, 1983)

The wife who is appointed as an administratrix of Periods of absence and their corresponding
the husband's property cannot alienate or consequences
encumber the husband's property, or that of the
conjugal partnership, without judicial authority. PERIOD OF CONSEQUENCE
(Art. 388, NCC) ABSENCE
Petition for Appointment
Declaration of absence of Representative (unless the
After lapse of 2
absentee left an
The declaration of absence takes effect six (6) years
administrator to manage his
months after publication of the judgment on property)
declaration of absence in a newspaper of general Presumed dead for all
circulation and in the Official Gazette. The order purposes, including
must also be recorded in the Civil Registry of the succession:
place where the absentee last resided. (Sec. 6, par.
2) 1. A person on board a
vessel lost during a sea
Declaration of presumptive death voyage, or an aircraft
which is missing,who has
GR: No independent action for declaration of not been heard of for four
presumption of death. The presumption may arise years since the loss of the
and be invoked in an action or special proceeding. vessel or aircraft;
(Lukban v. Republic, G.R. No. L-8492, February 29, 2. A member of the armed
1956) 2 years forces who has taken part
in armed hostilities, and
XPN: Under Art. 41 of Family Code, for purpose of has been missing for four
present spouse contracting a second marriage, he years; or
must file a summary proceeding for declaration of 3. A person who has been in
presumptive death of the absentee, without danger of death under
prejudice to the latter’s reappearance. other circumstances and
whose existence has not
This is intended to protect present spouse from been known for four
criminal prosecution for bigamy under Art. 349 of years. (Art. 391, NCC)
RPC. With judicial declaration that missing spouse
is presumptively dead, good faith of present spouse Present spouses may re-
in contracting marriage is established. marry

Marriage contracted by any person during the
subsistence of a previous marriage shall be null
and void, unless before the celebration of the

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Petition for Declaration of publication in a newspaper of general

Absence and Appointment of circulation designated by the court and in
Administrator or Trustee the Official Gazette. (Sec. 6, Rule 107)
may be filed
Grounds for termination of the administration
5 years Presumed dead for all
purposes, including the 1. Absentee appears personally or through
opening of succession, if the an agent;
absentee disappeared after 2. Absentee’s death is proved and heirs
the age of seventy-five (75) appear; or
years old 3. Third person appears showing that he
Considered dead for all acquired title over the property of the
7 years intent and purposes, except absentee. (Sec. 8, Rule 107)
for purposes of succession
Presumed dead for purpose Duty of the Court
of opening absentee’s
10 years
succession. (De Leon & Upon filing of the petition, the court should:
Wilwayco, 2015)
1. Issue an order setting forth the date and
NOTE: If the spouse was absent for 4 years (or 2 place of the hearing;
years under extraordinary circumstances) and the 2. Direct that notice must be sent to known
spouse present has a well - founded belief that the interested persons at least 10 days before
absent spouse is already dead, the spouse present the hearing; and
must institute a summary proceeding for the 3. Order the publication once a week for 3
declaration of presumptive death for the purposes consecutive weeks in a newspaper of
of contracting a subsequent marriage. (Arts. 41- 43, general circulation in the province or city
FC; Sec. 3 [w][4], Rule 131) where the absentee resides. (Sec.4, Rule
107)
Notice and publication required

Copies of the notice of the time and place fixed for CANCELLATION OR CORRECTION OF
the and hearing shall be served upon known heirs, ENTRIES IN THE CIVIL REGISTRY
legatees, devisees, creditors and other interested (Rule 108)
persons at least ten (10) days before the day of the
hearing.
Nature of proceedings
It shall be published once a week for 3 consecutive
weeks in a newspaper of general circulation in the GR: Summary in nature
place where the absentee resides. (Sec. 4, Rule 107)
It should be limited solely to the implementation of
Opposition Article 412 of the Civil Code. The said article
contemplates a summary hearing, involving
Anyone appearing to contest the petition shall: correction of clerical errors of a harmless,
innocuous nature, not changes involving civil
1. State in writing his grounds therefor; and status, nationality, or citizenship, which are
2. Serve a copy thereof to petitioner and substantial or controversial. (Ty Kong Tin vs.
other interested parties on or before the Republic, G.R. No. L-5609, February 5, 1954)
hearing. (Sec. 5, Rule 107)
XPN: Adversarial proceedings if:
Proof at hearing; order
1. The procedural requisites under Sections 3, 4,
1. Show compliance with Sec. 4 and 5 of Rule 108 are followed; or
2. Upon satisfactory proof of allegations in 2. When the civil registrar or any person having
the petition, the court shall issue an order or claiming interest in entries sought to be
granting the same and appointing the cancelled and/or corrected files an opposition
representative, trustee or administrator and it is actively prosecuted. (Republic v. Kho,
for the absentee G.R. No. 170340, June 29, 2007)
3. In case of declaration of absence, the same
shall not take effect until 6 months after its

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 REMEDIAL LAW
Who may file petition (1993 BAR) notice or from the last date of publication,
files his opposition thereto; and
Any person interested in any act, event, order or 5. Full blown trial (Republic v. Valencia,
decree concerning the civil status of persons supra.)
recorded in the civil registry may file a verified
petition. Reckoning period

Where to file The law did not fix a period within which the
petition for correction under Rule 108 in relation
In the Regional Trial Court of the province where to Art. 412 of Civil Code may be filed. Such petition
the corresponding civil registrar is located. (Sec. 1, may be filed within 5 years from the time the
Rule 108) petitioner discovered the error or mistake in the
civil registry, and not from the date the birth
Adversarial proceedings certificate was registered in the civil registry. (Lee
v. CA, L-118387, October 11, 2001)
One having opposing parties, contested, as
distinguished from an ex parte application, one of Correction of entry under Rule 108 proceeding
which the party seeking relief has given legal in rem
warning to the other party, and afforded the latter
an opportunity to contest it. (Republic v. Valencia, Substantial corrections or cancellations of entries
G. R. No. L-32181, March 5, 1986) in civil registry records affecting the status or
legitimacy of a person may be effected through the
No substantial change or correction in an entry in a institution of a petition under Rule 108 of the
civil register can be made without a judicial order, Revised Rules of Court, with the proper Regional
and, under the law, a change in citizenship status is Trial Court. Being a proceeding in rem, acquisition
a substantial change. (Republic v. Kho, G.R. No. of jurisdiction over the person of petitioner is
170340, June 29, 2007) therefore not required in the present case. It is
enough that the trial court is vested with
Reason for adversarial proceedings jurisdiction over the subject matter. (Alba v. CA,
G.R. No. 164041, July 29, 2005)
The reason why non-clerical mistakes cannot be
corrected under the summary proceeding set by Substantial corrections
Art. 412 of the Civil Code “lies in the fact that the
books making up the civil register and all When a petition for cancellation or correction of an
documents relating thereto shall be considered as entry in the civil register involves substantial and
public documents and shall be prima facie evidence controversial alterations including those on
of facts contained therein, and if the entries in the citizenship, legitimacy of paternity or filiation, or
civil register could be corrected or changed legitimacy of marriage, a strict compliance with the
through a mere summary proceeding, and not requirements of Rule 108 is mandated. (Republic v.
through the appropriate action, wherein all parties Coseteng-Magpayo, G.R. No. 189476, February 2,
who may be affected by the entries are notified or 2011)
represented we would set wide open the door to
fraud or other mischief the consequences of which Indispensable parties must be notified
might be detrimental and far reaching.” (In Re:
Cesar Yu v. Civil Registrar of Manila, G.R. No. L- 1. Civil Registrar; and
36478, April 29, 1983) 2. All persons who may have a claim or
interest which would be affected thereby
Requisites of adversarial proceedings (Sec. 3, Rule 108)

1. Proper petition is filed where the Civil Summons must still be served, not for the purpose
Registrar and all parties interested are of vesting the courts with jurisdiction, but to
impleaded; comply with the requirements of fair play and due
2. The order of hearing must be published process. This is but proper, to afford the person
once a week for three (3) consecutive concerned the opportunity to protect her interest if
weeks; she so chooses. (Ceruila v. Delantar, G.R. No.
3. Notice must be given to the Civil 140305, December 9, 2005)
Registrar and all parties affected thereby;
4. The civil registrar and any person NOTE: Upon the filing of the petition, it becomes
interested, may within 15 days from the duty of the court to:

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1. Issue an order fixing the time and place for RTC sets the case for hearing and directs the
the hearing of the petition, and publication of the order once a week for 3
2. Cause the order for hearing to be consecutive weeks in a newspaper of general
published once a week for 3 consecutive circulation. Summons was served on the Civil
weeks in a newspaper of general Registrar but there was no appearance during
circulation in the province. the hearing. The RTC granted the petition.
Jeanie filed a petition for annulment of
Q: The allegations of the petition filed before judgment before the CA, saying that she was not
the trial court clearly show that petitioners notified of the petition and hence, the decision
seek to nullify the marriage with which they was issued in violation of due process. Celine
ask the court to order Patrick to be subjected to opposed saying that the publication of the
a DNA test. Petitioners insist, however, that the court order was sufficient compliance with
main cause of action is for the correction of due process rule. (2007 BAR)
Patrick's birth records and that the rest of the
prayers are merely incidental thereto. Should it A: It should not be granted. The publication of an
prosper? order of hearing under Section 4 of Rule 108 cured
the failure to implead an indispensable party. A
A: NO. Petitioners' position does not lie. Their petition for correction is an action in rem, an action
cause of action is actually to seek the declaration of against a thing and not against a person.
Pablo and Lucille's marriage as void for being Publication is notice to the whole world that the
bigamous and impugn Patrick's legitimacy, which proceeding has for its object to bar indefinitely all
causes of action are governed not by Rule 108 but who might be minded to make an objection of any
by A.M. No. 02-11-10-SC which took effect on sort against the right sought to be established. It is
March 15, 2003, and Art. 171 of the Family Code, the publication of such notice that brings in the
respectively, hence, the petition should be filed in a whole as a party in the case and vests the court
Family Court as expressly provided in said Code. In with jurisdiction to hear and decide it. (Republic v.
a special proceeding for correction of entry under Kho, G.R. No. 170340, June 29, 2007; Alba v. CA, G.R.
Rule 108, the trial court has no jurisdiction to No. 164041, July 29, 2005; Barco v. CA, G.R. No.
nullify marriages and rule on legitimacy and 120587, January 20, 2004)
filiation. (Braza v. City Civil Registrar of
Himamaylan City, Negros Occidental, G.R. No. Q: Helen is the daughter of Eliza, a Filipina, and
181174, December 4, 2009) Tony, a Chinese, who is married to another
woman living in China. Her birth certificate
ENTRIES SUBJECT TO CANCELLATION indicates that Helen is the legitimate child of
OR CORRECTION UNDER RULE 108, Tony and Eliza and that she is a Chinese citizen.
IN RELATION TO R.A. NO. 9048 Helen wants her birth certificate corrected by
changing her filiation from "legitimate" to
(BiMaDeL-AV-LAANE-CJC) "illegitimate" and her citizenship from
“Chinese" to "Filipino" because her parents
1. Births; were not married. What petition should Helen
2. Marriages; file and what procedural requirements must be
3. Deaths; observed? Explain. (2005 BAR)
4. Legal separations;
5. Judgments of annulments of marriage; A: A petition has to be filed in a proceeding under
6. Judgments declaring marriages void from Rule 108 of the Rules of Court. A petition to change
the beginning; the record of birth by changing the filiation from
7. Legitimation; “legitimate” to “illegitimate” and petitioner’s
8. Adoptions; citizenship from “Chinese” to “Filipino” does not
9. Acknowledgments of natural children; involve a simple summary correction which could
10. Naturalization; otherwise be done under the authority of RA 9048.
11. Election, loss or recovery of citizenship;
12. Civil interdiction; Procedural requirements include:
13. Judicial determination of filiation; and
14. Change of name (Sec. 2, Rule108) a. Filing a verified petition;
b. Naming as parties all persons who have or
Q: Celine files a petition for cancellation of the claim any interest which would be
birth certificate of her daughter Jeanie on the affected;
ground of falsified material entries therein c. Issuance of an order fixing the time and
made by Celine’s husband as the informant. The place of hearing;

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 REMEDIAL LAW
d. Giving reasonable notice to the parties Hades flew back to California, United States of
named in the petition; and America, to wind up his business affairs. On his
e. Publication of the order once a week for 3 return to the Philippines, Hades discovered
consecutive weeks in a newspaper of that Persephone had an illicit affair with
general circulation. Phanes. Immediately, Hades returned to the
United States and was able to obtain a valid
NOTE: The legitimacy and filiation of children divorce decree from the Superior Court of the
cannot be collaterally attacked in a petition for County of San Mateo, California, a court of
correction of entries in the certificate of live birth. competent jurisdiction against Persephone.
Otherwise, the filiation of the said children would Hades desires to marry Hestia, also a Filipina,
be gravely affected, affecting not only his or her whom he met at Baccus Grill in Pasay City.
identity, but her successional rights as well.
Certainly, this change is substantial. (Miller v. Miller a. As Hades’ lawyer, what petition should
y Espenida, G.R. No. 200344, August 28, 2019, as you file in order that your client can
penned by J. Leonen) avoid prosecution for bigamy if he
desires to marry Hestia?
Q: Mary Jane met Shiela May at the recruitment b. In what court should you file the
agency where they both applied for overseas petition?
employment. They exchanged pleasantries, c. What is the essential requisite that you
including details of their personal must comply with for the purpose of
circumstances. Fortunately, Mary Jane was establishing jurisdictional facts before
deployed to work as front desk receptionist at a the court can hear the petition? (2015
hotel in Abu Dhabi where she met Sultan BAR)
Ahmed who proposed marriage, to which she
readily accepted. Unfortunately for Shiela May, A:
she was not deployed to work abroad, and this a. As Hades’ lawyer, I would file a petition for
made her envious of Mary Jane. Mary Jane recognition of a foreign divorce decree, or at
returned to the Philippines to prepare for her least a special proceeding for cancellation or
wedding. She secured from the National correction of entries in the civil registry under
Statistics Office (NSO) a Certificate of No Rule 108 of the Rules of Court and include
Marriage. It turned out from the NSO records therein a prayer for recognition of the
that Mary Jane had previously contracted aforementioned divorced decree.
marriage with John Starr, a British citizen,
which she never did. The purported marriage In Corpus v. Sto. Tomas (G.R. No. 186571, August
between Mary Jane and John Starr contained all 11, 2010), the High Court declared that the
the required pertinent details on Mary Jane. recognition of the foreign divorce decree may
Mary Jane later on learned that Shiela May is be made in a Rule 108 proceeding itself, as the
the best friend of John Starr. As a lawyer, Mary object of special proceedings (such that in Rule
Jane seeks your advice on her predicament. 108 of the Rules of Court) is precisely to
What legal remedy will you avail to enable establish the status of a party or a particular
Mary Jane to contract marriage with Sultan fact. (Fujiki v. Marinay, G.R. No. 196049, June 26,
Ahmed? (2014 BAR) 2013)

A: A Petition for Correction or Cancellation of Entry b. Petition for cancellation or correction of
under Rule 108 may be filed by Mary Jane because entries under Rule 108 should be filed in the
what she sought to be corrected is only the record Regional Trial Court of Makati City, where the
of such marriage in the Civil Registry Office in corresponding Local Civil Registry is located.
order to reflect the truth as set forth by the
evidence, and not the nullification of marriage as c. Before the court can hear the petition under
there was no marriage in the first place. (Republic Rule 108 of the Rules of Court, Hades must
v. Olaybar, G.R. No. 189538, February 10, 2014) satisfy the following procedural requirements:

Q: Hades, an American citizen, through a dating i. Filing a verified petition;
website, got acquainted with Persephone, A ii. Naming as parties all persons who
Filipina. Hades came to the Philippines and have or claim any interest which
proceeded to Baguio City where Persephone would be affected;
resides. Hades and Persephone contracted iii. Issuance of an order fixing the time
marriage, solemnized by the Metropolitan Trial and place of hearing;
Court judge of Makati City. After the wedding,

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iv. Giving reasonable notice to the parties RA 10172, which was approved on August 15,
named in the petition; and 2012 and became effective on September 8 of the
v. Publication of the order once a week same year, now allows the administrative
for 3 consecutive weeks in a correction of (a) day and month of the date of birth
newspaper of general circulation. and (b) sex of a person provided that it is patently
(Rule 108, Rules of Court; Co v. Civil clear that there was a clerical or typographical
Register of Manila, G.R. No. 138496, error or mistake in the entry. Moreover, the
February 23, 2004, 423 SCRA 420; grounds enumerated are subject to the
Corpuz v. Tirol, G.R. No. 186571, August qualification that the error or mistake to be
11,2010) corrected must be patently clear and it must be
within the competence of the local civil registrar or
RA 9048 as amended by RA 10172 consul general. (R.A. 10172, September 8, 2012)
Administrative Correction of Clerical or
Typographical Error in an Entry and/or Change Clerical or typographical error
of First Name or Nickname in the Civil Register
It refers to a mistake committed in the
RA 9048 now governs the change of first name. It performance of clerical work in writing, copying,
vests the power and authority to entertain transcribing or typing an entry in the civil register
petitions for change of first name to the city or that is harmless and innocuous, such as misspelled
municipal civil registrar or consul general name or misspelled place of birth, mistake in the
concerned. Under the law, therefore, jurisdiction entry of day and month in the date of birth or the
over applications for change of first name is now sex of the person or the like, which is visible to the
primarily lodged with the aforementioned eyes or obvious to the understanding, and can be
administrative officers. corrected or changed only by reference to other
existing record or records.
Nature of proceeding
NOTE: No correction must involve the change of
The intent and effect of the law is to exclude the nationality, age (correction on year of birth), or
change of first name from the coverage of Rules status of the petitioner. (Sec. 2[3], RA 9048 as
103 (Change of Name) and 108 (Cancellation or amended by RA 10172; NSO Administrative Order
Correction of Entries in the Civil Registry) of the No. 1 Series of 2012)
Rules of Court, until and unless an administrative
petition for change of name is first filed and Q: From the allegations in her petition,
subsequently denied. It likewise lays down the Mercadera clearly prayed for the lower court
corresponding venue, form and procedure. In sum, "to remove the faults or error" from her
the remedy and the proceedings regulating change registered given name "MARILYN," and "to
of first name are primarily administrative in make or set aright" the same to conform to the
nature, not judicial. (Silverio v. Republic, G.R. No. one she grew up to, "MERLYN." The OSG posits
174689, October 22, 2007) that the conversion from "MARILYN" to
"MERLYN" is not a correction of an innocuous
Coverage (FEDS) error but a material correction tantamount to a
change of name which entails a modification or
1. Change of first name or nickname; increase in substantive rights. For the OSG, this
2. Correction of clerical or typographical is a substantial error that requires compliance
errors; with the procedure under Rule 103, and not
3. Change of the day and month in the date of Rule 108. The petition filed by Mercadera
birth; and before the RTC correctly falls under Rule 108 as
4. Change of sex of a person (Sec. 1 of RA it simply sought a correction of a misspelled
9048 as amended by RA 10172) (2005 given name. Is the contention of OSG correct?
BAR)
A: The use of the letter "a" for the letter "e," and the
NOTE: The obvious effect of RA 9048 is merely to deletion of the letter "i," so that what appears as
make possible the administrative correction of "Marilyn" would read as "Merlyn" is patently a
clerical or typographical errors or change of first rectification of a name that is clearly misspelled.
name or nickname in entries in the civil register, The similarity between "Marilyn" and "Merlyn"
leaving to Rule 108 the correction of substantial may well be the object of a mix- up that blemished
changes in the civil registry in appropriate Mercadera’s Certificate of Live Birth until her
adversarial proceedings. (Republic v. Benemerito, adulthood, thus, her interest to correct the same.
G.R. No. 146963, March 15, 2004)

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 REMEDIAL LAW
Besides, granting that Rule 103 applies to this case
and that compliance with the procedural NOTE: The local civil registrar has primary, not
requirements under Rule 108 falls short of what is exclusive, jurisdiction over such petitions for
mandated, it still cannot be denied that Mercadera correction of clerical errors and change of first
complied with the requirement for an adversarial name or nickname, with R.A. No. 9048
proceeding before the lower court. The publication prescribing the procedure that the petitioner
and posting of the notice of hearing in a newspaper and local civil registrar should follow. Since
of general circulation and the notices sent to the R.A. No. 9048 refers specifically to the
OSG and the Local Civil Registry are sufficient administrative summary proceeding before the
indicia of an adverse proceeding. The fact that no local civil registrar, it would be inappropriate
one opposed the petition, including the OSG, did to apply the same procedure to petitions for
not deprive the court of its jurisdiction to hear the the correction of entries in the civil registry
same and did not make the proceeding less before the courts. (Re: Final Report on the
adversarial in nature. Considering that the OSG did Judicial Audit Conducted at the Regional Trial
not oppose the petition and the motion to present Court, Br. 67, Paniqui, Tarlac, A.M. No. 06-7-414-
its evidence ex parte when it had the opportunity RTC, October 19, 2007)
to do so, it cannot now complain that the
proceedings in the lower court were procedurally 2. When the petitioner has migrated to another
defective. (Republic v. Mercadera, G.R. No. 186027, place within the Philippines and it is not
December 8, 2010) practical for such party, in terms of
transportation expenses, time and effort to
NOTE: Correction is allowed only on the day and appear before the local civil registrar of the
month of birth but not on the year of birth because place of birth) – Local Civil Registry Office (city
this will already alter the age of the petitioner. or municipal civil registrar) of the place where
the petitioner is residing or domiciled.
Republic Act No. 9048 provides in Section 2 (3)
that a summary administrative proceeding to 3. When the person is any person whose birth
correct clerical or typographical errors in a birth record was reported abroad and presently
certificate cannot apply to a change in nationality. residing in the Philippines – Local Civil
Substantial corrections to the nationality or Registry Office (city or municipal civil
citizenship of persons recorded in the civil registry registrar) of the place of residence following
should, therefore, be effected through a petition the procedures of migrant petition.
filed in court under Rule 108 of the Rules of Court.
(Kilosbayan Foundation v. Ermita, G.R. No. 177721, NOTE: Place of domicile is not included under
July 3, 2007) this portion because it is understood that his
domicile is abroad, his birth record having
Grounds for a change of first name or nickname been reported therein, and under which
under RA 9048 (CURED) Philippine laws do not apply.

1. The petitioner finds the first name or 4. Citizens of the Philippines who are presently
nickname to be ridiculous, tainted with residing or domiciled in foreign countries–
dishonor or extremely difficult to write or Nearest Philippine consulate (Consul General).
pronounce; (Sec. 4, Republic Act No. 10172 Implementing
2. The new first name or nickname has been Rules and Regulations, Administrative Order No.
habitually and continuously used by the 1, Series of 2012)
petitioner and he has been publicly known
by that first name or nickname in the NOTE: The Philippines Statistics Authority,
community; or being the central statistical authority of the
3. The change will avoid confusion. (Sec. 4, Philippine Government, is mandated carry out
RA 9048 as amended by RA10172) and administer provisions of laws on civil
registration. It is no longer the National
Where to file the petition for correction of Statistics Office or NSO. (Republic Act No.
entry or change of name under RA 9048 10625)

1. Resident of the Philippines- Local Civil Q: Carla was born with two genitals, one for
Registry Office (city or municipal civil male and one for female. Only after maturity
registrar) of the city or municipality where the did his male dominant features becomes
record being sought to be corrected or manifest. Carla filed a petition for change of
changed is kept. name to Carlo. The available evidence

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presented in court including the fact that Carla An interested person may appeal in special
thinks of himself as a male and as to the proceedings from an order or judgment rendered
statement made by the doctor that Carla’s body by a Court of First Instance or a Juvenile and
produces high levels of male hormones, which Domestic Relations Court, where such order or
is preponderant biological support for judgment if:
considering him as male. Should the petition be
granted? 1. It allows or disallows a will;
2. It determines who are the lawful heirs of a
A: YES. Compassion calls for recognition of the deceased person, or the distributive share
various degrees of intersex as variations should not of the estate to which such person is
be subject to outright denial. The court must give entitled
respect to:
NOTE: Properties of the estate shall only
1. The diversity of nature; and be distributed after the payment of the
2. How an individual deals with what nature debts, funeral charges, and other expenses
has handed out. against the estate, except when authorized
by the Court. (Silverio, Jr. v. CA, G.R. No.
His congenital condition and his mature decision to 178933, 16 September 2009)
be a male must be considered. (Republic v.
Cagandahan, G.R. No. 166676, September 12, 2008) 3. It wholly or partially allows or disallows a
claim against a decedent’s estate, or any
Q: Can an illegitimate child whose filiation is claim presented on the decedent’s estate,
not recognized by the father bear both the or any claim presented on the estate’s
mother’s surname as his middle name and his behalf in offset to claim against it;
father’s surname as surname? 4. It settles the account of an executor,
administrator, trustee or guardian;
A: An illegitimate child whose filiation is not 5. It constitutes a final determination in the
recognized by the father bears only a given name lower court of the rights of the party
and his mother’s surname and does not have a appealing in proceedings relating to estate
middle name. The name of the unrecognized settlement or administration of a trustee
illegitimate child therefore identifies him as such. It or guardian;
is only when the illegitimate child is legitimated by
the subsequent marriage of his parents or XPN: Appointment of a special
acknowledged by the father in a public document administrator is not appealable.
or private handwritten instrument that he bears
both his mother’s surname as his middle name and NOTE: The remedy is a petition for
his father’s surname as his surname, reflecting his certiorari under Rule 65, if there is grave
status as a legitimated child or an acknowledged abuse of discretion.
illegitimate child. Accordingly, the registration in
the civil registry of the birth of such individuals 6. It is the final order or judgment rendered
requires that the middle name be indicated in the in the case, and affects the substantial
certificate. The registered name of a legitimate, rights of the person appealing.
legitimated and recognized illegitimate child thus
contains a given or proper name, a middle name, XPN: Orders granting or denying a Motion
and a surname. (In Re: Petition for Change of Name for Reconsideration or Motion for New
and/or Correction/Cancellation of Entry in Civil Trial. (Sec. 1, Rule 109)
Registry of Julian Lin Carulasan Wang, G.R. No.
159966, March 30, 2005) Who may appeal

Any person legally interested in any order, decree,
APPEALS IN SPECIAL PROCEEDINGS or judgment of a Court of First Instance in the
(Rule 109) exercise of its jurisdiction in special proceedings in
the settlement of the estates of deceased persons
etc., may appeal to the Supreme Court from such
JUDGMENTS AND ORDERS FOR WHICH APPEAL order, decree, or judgment, when such order,
MAY BE TAKEN decree, or judgment constitutes a final
determination of the rights of the appellants, and
the appeal shall affect every order, decree, or
judgment appealed from.

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 REMEDIAL LAW
NOTE: As representative of the heirs instituted HABEAS WRIT OF HABEAS
therein, an executor under the will is an interested CORPUS AMPARO DATA
party and may appeal for the purpose of Within 48 5 working 5 working
maintaining the validity of the will, the provisions hours from days from the days from the
of which, he is in duty bound to execute. notice of the date of notice date of notice
judgment of of adverse of adverse
The validity of judgment or order of court entered final order judgment to judgment to
in a special proceedings can be assailed only appealed. the SC under the SC under
directly and not collaterally unless the ground for (Sec. 39, BP 129; Rule 45. Rule 45.
the attack is: Sec 3, Rule 4) (Sec. 19, AM (Sec. 19, AM
No. 07-9-12-S) No. 08-1-16-S)
a. Lack of jurisdiction
b. Fraud by the party sought to be charged MODES OF APPEAL
with it in procurement
No record on appeal shall be required except in
WHEN TO APPEAL special proceedings and other cases of multiple or
separate appeals where the law or the Rules of
GR: Appeals in special proceedings necessitate a Court so require. The reason for multiple appeals
record on appeal as the original record should in the same case is to enable the rest of the case to
remain with the trial court; hence the period of 30 proceed in the event that a separate and distinct
days is provided for the perfection of appeals in issue is resolved by the trial court and held to be
special proceedings. (Sec. 3, Rule 41) final. In such a case, the filing of a record on appeal
becomes indispensable since only a particular
NOTE: Appeals in liquidation proceedings against incident of the case is brought to the appellate
insolvent corporation is by Record on appeal court for resolution with the rest of the
because several claims are actually separate ones proceedings remaining within the jurisdiction of
and a decision or final order with respect to any the trial court.
claim can be appealed. Necessarily the original
record on appeal must remain in the Trial Court NOTE: Jurisprudence recognizes the existence of
where other claims may still be pending. multiple appeals in a complaint for expropriation
because there are two stages in every action for
XPNS: expropriation. The first stage is concerned with the
determination of the authority of the plaintiff to
1. Habeas Corpus – The period for appeal from exercise the power of eminent domain and the
final orders, resolutions, awards, judgments, or propriety of its exercise in the context of the facts
decisions of any court in all cases shall be 48 involved in the suit. The order of expropriation
hours from notice of judgment in final order may be appealed by any party by filing a record on
appealed from. (Sec. 39, BP 129; Sec 3, Rule 41) appeal. The second stage is concerned with the
2. Amparo – Any party may appeal from the final determination by the court of the just
judgment or order to the Supreme Court under compensation for the property sought to be
Rule 45. The appeal may raise questions of fact expropriated. A second and separate appeal may be
or law or both. Period of appeal shall be 5 taken from this order fixing the just compensation.
working days from the date of notice of the (Marinduque Mining and Industrial Corporation v.
adverse judgment. Appeal shall be given the CA, G.R. No. 161219, 6 October 2008)
same priority as in Habeas Corpus cases.
(Section 19, A.M. No. 07-9-12-SC); and While under the concept in ordinary civil actions
3. Habeas Data – 5 working days from the date of some of the orders stated in Section 1 Rule 41 may
notice of the judgment or final order. Appeal be considered interlocutory, the nature of special
shall be given the same priority as in Habeas proceedings declares them as appealable orders, as
Corpus and Amparo cases. (Section 19, A.M. No. exceptions. Thus:
08-1-16-SC)
a. Ordinary Appeal
NOTE: The period of appeal shall be interrupted by
a timely Motion for New Trial or Motion for The appeal to the CA in cases decided
Reconsideration. No motion for extension of time by the RTC in the exercise of its
to file a motion for New Trial or Reconsideration original jurisdiction shall be taken by
shall be allowed. (Sec. 3, Rule 41, as amended by SC filing a notice of appeal with the court
Resolution, A.M. No. 01-1-03-SC effective June 19, which rendered the judgment or final
2001)

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 SPECIAL PROCEEDINGS

order appealed from and serving a

copy thereof upon the adverse party. Appealable because such order constitutes
a definite pronouncement as relates to his
No record on appeal shall be required bond and to his movable property of which
except in special proceedings and he will be deprived, thus, he can appeal.
other cases of multiple or separate
appeals where the law or the Rules so e. Order to contract obligation
require. In such cases, the record on
appeal shall be filed and served in like Appealable because it affects substantial
manner; rights of the parties and may unnecessarily
prolong the admin of the intestate estate
b. Petition for Review to the detriment of the heirs.

The appeal to the CA in cases decided f. Order appointing administrator
by the RTC in the exercise of its
appellate jurisdiction shall be by An order appointing an administrator is
petition for review in accordance with appealable because this is a final
Rule 42; determination of the rights of the parties
thereunder (Intestate Estate of Luis
c. Petition for Review on Certiorari Morales v. Sicat, G.R. No. L-5236, 25 May
- In all cases where only questions of 1953); and
law are raised or involved, the appeal
shall be to the SC by petition for g. Order annulling appointment of guardian
review on certiorari in accordance or removing a guardian. (Alemany v.
with Rule 45. Sweeney, G.R. No. 1403, 31 October 1903)

Other instances where appeal is available RULE ON ADVANCE DISTRIBUTION

a. Appeal by heir from money claim Q: In estate proceedings, may the court pending
a controversy or appeal, allow an advance
An heir, legatee or devisee who has been distribution?
served with notice as to money claim
against the estate admitted by the A: YES. The court may in its discretion and upon
executor or administrator may be allowed proper and just terms, allow advance distribution
to appeal from an order of the court subject to the following requirements:
approving such claim (Fluemer v. Hix, G.R.
No. L-32636, 17 March 1930); 1. Advance distribution shall pertain only to
such part of the estate as may not be
b. Appeal by Surety affected by the controvery or appeal.
2. The debts, funeral charges, administration
When a surety of an executor or expenses, and estate taxes must first have
administrator of the estate of a deceased been paid, unless the distributees or any of
person is admitted as a party to an them give a bond to secure such payment.
accounting made by such executor or (Riguera, 2020, citing Sec. 2, Rule 109)
administrator under Sec. 11, Rule 85 he or
she may be allowed to appeal from any Q: Is the probate court’s order denying a
order of the court approving or motion for advance distribution appealable?
disapproving such accounting.
A: NO. Such order is merely interlocutory and thus,
c. Order for license to sell real estate in not appealable. (Riguera, 2020, citing Ignacio v.
administrative proceedings. Reyes, G.R. No. 213192, July 12, 2017)
d. Order against bond

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