SPECIAL CIVIL ACTIONS BAR QUESTIONS

HOW SPECIAL CIVIL ACTIONS ARE INSTITUTED OR COMMENCED:

1. While ordinary civil actions are initiated by the filing of a complaint some special
civil actions are initiated by the filing of a petition.
Each of the following special civil actions is commenced by a PETITION.
(a) Declaratory relief and other similar remedies;
(b) Review of Adjudication of the COMELEC AND COA;
(c) Certiorari, prohibition and mandamus;
(d) Quo warranto; and
(e) Contempt
2. Each of the following special civil actions is initiated by the filing of a
COMPLAINT.
(a) Interpleader;
(b) Expropriation;
(c) Foreclosure of real estate mortgage;
(d) Partition;
(e) Forcible entry; and
(f) Unlawful detainer.

RULE 62
INTERPLEADER (Complaint)
What is an interpleader?

Interpleader is a remedy whereby a person who has property in his possession

or has an obligation to render wholly or partially, without claiming any right in both,
comes to court and asks that the defendants who have made upon him conflicting
claims upon the same property or who consider themselves entitled to demand
compliance with the obligation be required to litigate among themselves in order to
determine who is entitled to the property or payment of the obligation. (Beltran vs.
PHHC, G.R. No. L-25138, August 28, 1969)
What is the purpose of interpleader?

The remedy is afforded not to protect a person against a double liability but to protect
him against a double vexation in respect of one liability. (Beltran vs. PHHC)

Requisites for an interpleader (BAR 2011)

As gleaned from the Rules, an action for interpleader requires that:

1. There must be two or more claimants with adverse or conflicting interest upon a
subject matter;
2. The conflicting claims involve the same subject matter;
3. The conflicting claims are made against the same person (plaintiff);
4. The plaintiff has no claim upon the subject matter of the adverse claims or if he
has an interest at all, such interest is not disputed by the claimants.

The provisions of Sec. 1 of Rule 62 emphasize the existence of conflicting claims

between or among the conflicting claimants. It is, however, clear from the rule that the
mere existence of conflicting claims between or among several persons is not sufficient
to sustain an interpleader action where such claims do not refer to the same subject
matter. Where the subject matters are different, the claims are to be deemed separate
and distinct, and an interpleader will not apply.

Also, the conflicting claims over the same subject matter will not sustain an
action in interpleader if such claims are merely claims against each other but not claims
against the plaintiff in interpleader. The rule requires that the conflicting claims “be
made against a person who claims no interest whatever in the subject matter.”

It is equally clear under Sec. 1 of Rule 62 that where the claims are against the
plaintiff in interpleader who also has an interest in the subject matter of the adverse
claims, then an interpleader will not lie. The rule requires that the person against whom
the conflicting claims are asserted “claims no interest whatever in the subject matter.”
Or if he has such an interest, it “is not disputed by the claimants.”

When should the interpleader be filed?

An action for interpleader should be filed within a reasonable time after a dispute
has arisen without waiting to be sued by either of the contending claimants. Otherwise,
he may be barred by laches or undue delay. (Wack-Wack Golf and Country Club vs.
Won, G.R. No. L-23851, March 26, 1976)

Question: If the allegations of the complaint do not show conflicting claims between or
among the persons required to interplead, what would be the ground for the dismissal of
the complaint for interpleader?

Answer: It is believed that where the allegations of the complaint do not show
conflicting claims between or among the persons required to interplead, the complaint
for interpleader is subject to dismissal on the ground of impropriety of the interpleader,
not a failure to state a cause of action under Rule 16 because the meaning of a cause
of action in ordinary civil actions cannot apply to an interpleader. Besides, for an
interpleader to be proper such conflicting claims must exist (Sec. 1, Rule 62, Rules of
Court). Conversely, there is impropriety where no such adverse claims can be found
from the reading of the complaint.

HOW COMMENCED:

An interpleader is commenced by the filing of a complaint. The action is brought

by the person against whom conflicting claims upon the same subject matter are made.

INTERPLEADER DISTINGUISHED FROM INTERVENTION:

The following are the well-recognized distinctions between interpleader and

intervention:

1. An interpleader is a special civil action, independent and original. An intervention

is not an original action but merely ancillary and depends upon the existence of a
previous pending action;

2. An interpleader is commenced by the filing of a complaint, it being an original. An

intervention is commenced by a motion for leave to intervene filed in a pending case
attaching thereto the pleading-in- intervention;

3. An interpleader is filed by a person who has no interest in the subject matter of

the action or if he has an interest, the same is not disputed by the claimants. An
intervention is filed by a person who has a legal interest in any of the following: (a)
the subject matter of the; (c) an interest against both; (d) he may be adversely
affected by the disposition or distribution of property in the custody of the court or of
an officer thereof.

4 In interpleader, the defendants are brought into the action because they are sued
and impleaded as such in the complaint. In intervention, if a complaint-in-intervention
is filed, the defendants are already parties to an existing suit not because of the
intervention, but because of the original suit.

To whom summons shall be served?

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

What are the courses of action of the court after filing of the pleadings and pre-
trial have been conducted?

After the pleadings of the conflicting claimants have been filed, and pre-trial has
been conducted in accordance with the Rules, the court shall:

1. Proceed to determine their respective rights and

 2. Adjudicate their several claims.

What is the recourse of the party who filed the action in case he paid the docket
and other lawful fees?

The docket and other lawful fees paid by the party who filed a complaint under
this Rule, as well as the costs and litigation expenses, shall constitute:

1. A lien or

2. Change upon the subject matter of the action,

3. Unless the court shall order otherwise.

Bar Questions:

LTA, Inc. is the lessee of a building owned by Mr. Tenorio paying rental of P10,000.00 a
month. The owner died on May 10, 1988 and since then, LTA has not paid the monthly
rentals, now amounting to P40,000.00 because two women are both claiming to be
widows of Tenorio and are demanding rental payments. What legal action may LTA's
counsel take, before what court and against whom to protect LTA's interest? (Bar 1996)

Suggested answer:

LTAs counsel should file an action for interpleader against the two women and pray that
the court resolve their conflicting claims. The action should be filed in the Municipal Trial
Court because the subject of the action is an amount within the jurisdiction of said court.
Note: When the question was asked, jurisdiction was with the Regional Trial Court. At
that time the jurisdictional amount for the RTC was an amount exceeding P10,000.00.

BAR Question 1996

A lost the cashier's check she purchased from XYZ Bank. Upon being notified of the
loss, XYZ Bank immediately issued a "STOP PAYMENT" order. Here comes B trying to
encash the same cashier's check but XYZ Bank refused payment. As precautionary
measure what remedy may XYZ Bank avail of with respect to the conflicting claims of A
and B over the cashier's check? Explain.

Suggested answer:

XYZ Bank should file a complaint for interpleader and leave unto the court the resolution
of the conflicting claims of A and B. Note: The examiner made reference to "conflicting
claims." This is a clue as to what the examiner desires as an answer. The examinee
should therefore, refrain from making assumptions or unnecessary analysis.

BAR 1978
H insured his life with X Insurance Co. and designated W as beneficiary. The policy
provided that the beneficiary could be changed by a written notice designating the new
beneficiary sent by the insured and received by X Insurance Co. before the death of the
insured. After the death of H, Q demanded from X Insurance Co. the proceeds of the
policy, claiming that she had been designated as the beneficiary by H as may be seen
from a copy of a written notice signed by H and allegedly received by X Insurance Co.
before X's death. W who is also demanding from X Insurance Co. the proceeds of the
policy, claims that the signature of H appearing on the written notice is forged. As
counsel for X Insurance Co., what advice would you give to your client and why?

Suggested answer:

I would advice my client not to pay either of the claimants in the meantime and instead
file a complaint for interpleader against them and let the court resolve their conflicting
claims (Sec. 1, Rule 62, Rules of Court).

BAR Question

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

xxx

(d) An action for interpleader to determine who between the defendants is entitled to
receive the amount of P190, 000.00 from the plaintiff.

Suggested answer:

(d) The action shall be filed in the Metropolitan Court in Metro Manila. The amount of
P190, 000.00 not being in excess of P400, 000.00, is within the jurisdiction of said court.
(Bar 1997)

BAR 2018

Dory Enterprises Inc. (Dory) leased to Digna Corporation (Digna) a parcel of land
located in Diliman, Quezon City. During the term of the lease, Digna was informed by
DBS Banking Corporation (DBS) that it had acquired the leased property from the
former owner Dory, and required Digna to pay the rentals directly to it. Digna promptly
informed Dory of DBS' claim of ownership. In response, Dory insisted on its right to
collect rent on the leased property.

Due to conflicting claims of Dory and DBS over the rental payments, Digna filed a
complaint for interpleader in the RTC of Manila. Digna prayed that it be allowed to
consign in court the succeeding monthly rentals, and that Dory and DBS be required to
litigate their conflicting claims. It later appeared that an action for nullification of a
dacion en pago was filed by Dory against DBS in the RTC of Quezon City. In said case,
Dory raised the issue as to which of the two (2) corporations had a better right to the
rental payments. Dory argued that, to avoid conflicting decisions, the interpleader case
must be dismissed.

Does the action for nullification of the dacion en pago bar the filing of the
interpleader case?

(Wala answer sa notes)

Suggested Answer: (source)

Yes. The interpleader case should be dismissed in view of the action for nullification of
the dacion en pago.

Under Rule 2, Section 4 of the Rules of Court, if two or more suits are instituted on the
basis of the same cause of action, the filing of one or a judgment upon the merits in any
one is available as a ground for dismissal of the others. In the situation above, the
interpleader case filed by Digna seeks to resolve who between Dory and DBS has the
right to receive the rental payments. Similarly, Dory’s action for nullification of the dacion
en pago will determine who between Dory and DBS has the right to collect rental
payments from Digna. Considering that the two cases involve the same cause of action,
the interpleader case should be dismissed.

RULE 63

DECLARATORY RELIEF AND SIMILAR REMEDIES

When court may refuse a judicial declaration (BAR 2012

The types of actions under Sec. 1 of Rule 63 are treated differently by the Rules.
In declaratory relief, “the court, motu proprio or upon motion, may refuse to exercise the
power to declare rights and to construe instruments in any case where a decision would
not terminate the uncertainty or controversy which gave rise to the action, or in any case
where the declaration or construction is not necessary and proper under the
circumstances.” (Sec. 5, Rule 63, Rules of Court)

In declaratory relief, the court is given the discretion to act or not to act on the
petition. It may, therefore, choose not to construe the instrument sought to be construed
or refrain from declaring the rights of the petitioner under the deed or law. A refusal of
the court to declare a right or construe an instrument may be considered as the
functional equivalent of the dismissal of the petition but on any of the two grounds not
found in either Rule 16 or Rule 17 of the Rules of Court, but under Sec. 5 of Rule 63,
namely:

1. Where a decision on the petition would not terminate the uncertainty or

controversy which gave rise to the action; or
 2. Where the declaration or construction is not necessary or proper under
the circumstances as when the instrument or the statute has already been
breached.

On the other hand, the court does not have the discretion to refuse to act with
respect to actions described as ‘similar remedies’ (reformation of the instrument,
quieting of title and consolidation of ownership)

ISSUE AND RELIEF:

The only issue that may be raised in such a petition is the question of
construction or validity of provisions in an instrument or statute. The remedy sought is
the declaration of the petitioner’s rights or duties thereunder.

WHO MAY FILE THE PETITION:

1. Where the subject of the petition is a deed, will, contract or other written
instrument, the petition is commenced by “any person interested” therein.

Those who may sue under the contract should have an interest in the contract
like the parties, their assignees and heirs as required by substantive laws
(Art. 1311, Civil Code).

2. Where the subject of the petition is a statute executive order or regulation,

ordinance, or any other governmental regulation, the petition is
commenced by one “whose rights are affected” by the same.

When should a petition for declaratory relief be filed?

The petition for declaratory relief should be filed before there occurs any breach or
violation of the deed, contract, statute, ordinance or executive order or regulation. (Sec
1, Rule 63) It will not prosper when brought after a contract or a statute has already
been breached or violated.

What is the appropriate remedy if there has already been a breach?

● If there has already been a breach, the appropriate ordinary civil action, not
declaratory relief, should be filed.

● Where the law or contract has already been contravened prior to the filing of an action
for declaratory relief, the courts can no longer assume jurisdiction over the action. In
other words, a court has no more jurisdiction over an action for declaratory relief if its
subject has already been infringed or transgressed before the institution of the action
(Malana vs. Tappa, G.R. No. 181303, September 17, 2009). Under such circumstances,
inasmuch as a cause of action has already accrued in favor of one or the other party,
there is nothing more for the court to explain or clarify short of a judgment or final order.

Will the action for declaratory relief be dismissed if the breach occurs after the
action has been constituted and during the its pendency?

When the breach occurs NOT BEFORE the filing of the petition for declaratory relief but
after the action has been constituted and during its pendency, the action is not to be
dismissed but may be converted into an ordinary action and the parties shall be allowed
to file such pleadings as may be necessary or proper (Sec 1, Rule 63).

Who shall be made parties to the action?

1. All persons who have or claim any interest which would be affected by the declaration
shall be made parties; and no declaration shall, except as otherwise provided in the
Rules, prejudice the rights of persons not parties to the action. (Sec 2, Rule 63).

2. In any action which involves the validity of a statute, executive order or regulation, or
any other governmental regulation, the Solicitor General shall be notified by the party
assailing the same and shall be entitled to be heard upon such question. (Sec 3, Rule
63).

3. In any action involving the validity of a local government ordinance, the

corresponding prosecutor or attorney of the local governmental unit involved shall be
similarly notified and entitled to be heard. If such ordinance is alleged to be
unconstitutional, the Solicitor General shall also be notified and entitled to be heard.
(Sec 4, Rule 63).

Who may appear in case of validity of a statute, executive order or regulation, or

any governmental regulation?

In any action involving the validity of a local government ordinance, the

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

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

What are the courses of action of the court in the petition?

Except in actions falling under the second paragraph of section 1 of this Rule, the
court, motu proprio or upon motion, may:
 1. Refuse to exercise the power to declare rights and to construe instruments in any
case where a decision would not terminate the uncertainty or controversy which
gave rise to the action, or

2. In any case where the declaration or construction is not necessary and proper
under the circumstances.

The types of actions under Sec. 1 of Rule 63, are treated differently by the Rules.
In declaratory relief, “the court, motu proprio, may refuse to exercise the power to
declare rights and to construe instruments in any case where a decision would not
terminate the uncertainty or controversy which gave rise to the action, or in any case
where the declaration or construction is not necessary and proper under the
circumstances.

In declaratory relief, the court is given the discretion to act or not to act on the
petition. It may, therefore, choose not to construe the instrument sought to be construed
or refrain from declaring the rights of the petitioner under the deed or law. A refusal of
the court to declare a right or construe an instrument may be considered as the
functional equivalent of the dismissal of the petition but on any of the two grounds not
found in either Rule 26 or Rule 17 of the Rules of Court, but under Sec. 5 of Rule 63,
namely:

(a) Where a decision on the petition would not terminate the uncertainty or
controversy which gave rise to the action; or

(b) Where the declaration or construction is not necessary and proper under
the circumstances as when the instrument or the statute has already been
breached

3. On the other hand the court does not have the discretion to refuse to act with
respect to actions described as ‘similar remedies’ (reformation of the instrument,
quieting of title and consolidation of ownership)

Does the court have discretion to refuse to act with respect to actions described
as `similar remedies'?

No. The court does not have the discretion to refuse to act with respect to actions
described as `similar remedies'. Thus, in an action for reformation of an instrument, to
quiet title or to consolidate ownership, the court cannot refuse to render a judgment.
(Sec 5, Rule 63)

What is the effect in case of breach or violation?

If before the final termination of the case, a breach or violation of an instrument

or a statute, executive order or regulation, ordinance, or any other governmental
regulation should take place, the action may thereupon be converted into an ordinary
action, and the parties shall be allowed to file such pleadings as may be necessary or
proper.
 The petition for declaratory relief is filed before there occurs any breach or
violation of the deed, contract, statute, ordinance or executive order or regulation. It will
not prosper after a contract or a statute has already been breached or violated. If there
has already been a breach, the appropriate ordinary civil action, not declaratory relief,
should be filed.

An action for declaratory relief presupposes that there has been no actual breach
of the instruments involved or of the rights arising thereunder. Since the purpose of an
action for declaratory relief is to secure an authoritative statement of the rights and
obligations of the parties under a statute, deed, or contract for their guidance in the
enforcement thereof, or compliance therewith, and not to settle issues arising from an
alleged breach thereof, it may be entertained before the breach or violation of the
statute, deed or contract to which it refers. A petition for declaratory relief gives a
practical remedy for ending controversies that have not reached the state where
another relief is immediately available; and supplies the need for a form of action that
will set controversies at rest before they lead to a repudiation of obligations, an invasion
of rights, and a commission of wrongs.

Where the law or contract has already been contravened prior to the filing of an
action for declaratory relief, the court can no longer assume jurisdiction over the action.
In other words, a court has no jurisdiction over an action for declaratory relief if its
subject, i.e., the statute, deed, contract, etc., has already been infringed or transgressed
before the institution of the action. Under such circumstances, inasmuch as a cause has
already accrued in favour of one or the other party, there is nothing more for the court to
explain or clarify short of a judgment or final order.

However, when the breach occurs not before the filing of the petition for
declaratory relief but after the action has been instituted and before its final termination,
it is submitted that the action need not be dismissed because it may be converted into
an ordinary action.

Once converted into an ordinary action, the parties shall be allowed to file such
pleadings as may be necessary or proper.

Although Sec. 6 of Rule 63 may allow such course of action, the party desiring
the conversion needs to argue the point and specify the ordinary action desired. The
same must also be raised in the trial court and not for the first time on appeal (Martelino
v. National Home Mortgage Finance Corporation, 556 SCRA 663).

Does judgment in action for declaratory relief entail any executory process?

There is nothing to execute in the judgment of the court the way judgments in
ordinary civil actions are executed. This is because the judgment in a declaratory relief
is confined either to an interpretation of a deed or a declaration whether or not the
petitioner has or does not have rights under the law. As a general principle therefore,
the judgment in a declaratory relief is said to stand by itself and no executory process
follows as of course. It is unlike the judgment in an ordinary civil action which is coercive
in character and enforced by execution.

What is the proper recourse to assail the validity of an executive order?

Under the Rules of Court, petitions for Certiorari and Prohibition are availed of to
question judicial, quasi-judicial and mandatory acts. Since the issuance of an EO is not
judicial, quasi-judicial or a mandatory act, a petition for certiorari and prohibition is an
incorrect remedy; instead a petition for declaratory relief under Rule 63 of the Rules of
Court, filed with the Regional Trial Court (RTC), is the proper recourse to assail the
validity of EO 7. (Galicto vs. Aquino, G.R. No. 193978, February 28, 2012)

BAR 1998

A student files an action for declaratory relief against his school to determine whether
he deserves to graduate with Latin honors. Is this action tenable?

Suggested answer:

The action is not tenable. To be the proper subject of a petition for declaratory relief, the
subject of the petition must be a deed, will, contract, written instrument, statute,
executive order, regulation, ordinance, or any other governmental regulation. Whether
or not the student is to be conferred Latin honors is not a proper subject of the petition.

QUIETING OF TITLE; QUASI IN REM ACTION:

What is the legal basis for an action of quieting of title?

The remedy of quieting of title is governed by Article 476 and 477 of the New
Civil Code of the Philippines, which state:

“Art. 476. Whenever there is a cloud on title to real property or any interest therein, by
reason of any instrument, record, claim, encumbrance or proceeding which is
apparently valid or effective but is in truth and in fact invalid, ineffective, voidable, or
unenforceable, and may be prejudicial to said title, action may be brought to remove
such cloud or to quiet the title.

An action may also be brought to prevent a cloud from being cast upon title to real
property or any interest therein.

Art. 477. The plaintiff must have legal or equitable title to, or interest in the real property
which is the subject matter of the action. He need not be in possession of said
property.”

What is the subject of an action for quieting of title?

 The concept of a cause of action in ordinary civil actions does not apply to
quieting of title. In declaratory relief, the subject matter is a deed, will, contract or other
written instrument, statute, executive order, or regulation, or ordinance. The issue is the
validity or construction of these documents. The relief sought is the declaration of the
petitioner’s rights and duties thereunder. Being in the nature of declaratory relief, this
special civil action presupposes that there has yet been no breach or violation of the
instruments involved.

In an action for quieting of title, the subject matter is the title sought to have
quieted. “Title” is not limited to the certificate of registration under the Torrens System
(i.e., OCT or TCT). Pursuant to Article 477 of the New Civil Code, the plaintiff must have
legal or equitable title to, or interest in, the real property subject of the action for quieting
of title. The plaintiff need not even be in possession of the property. (Republic v.
Mangorata, G.R. Nos. 170375, July 10, 2010).

When is there a “cloud on a title”?

“A cloud on a title exists when: (a) there is an instrument (deed, or contract) or

record or claim or encumbrance or proceeding; (b) which is apparently valid or effective;
(c) but is, in truth and in fact, invalid, ineffective, voidable or unenforceable, or
extinguished (or terminated) or barred by extinctive prescription; and (d) and may be
prejudicial to the title” (Heirs of Tappa v. Heirs of Bacud, G.R. No. 187633, April 4,
2016)

Who may file action for quieting of title?

“Generally, the registered owner of a property is the proper party to bring an

action to quiet title. However, it has been held that this remedy may also be availed of
by a person other than the registered owner because, in Article 476 of the New Civil
Code, “title” does not necessarily refer to the original or transfer certificate of title. Thus,
lack of an actual certificate of title to a property does not necessarily bar an action to
quiet title.” (Spouses Portino v. Cristobal, G.R. No. 156171, April 22, 2005)

What court has jurisdiction over actions described as "similar remedies"?

● The MTC exercise exclusive original jurisdiction over all civil actions which involve
title to or possession of real property where the assessed value does not exceed
P20,000.00 outside Metro Manila or does not exceed P50,000.00 in Metro Manila.

● The first paragraph of Section 1, Rule 63 of the Rules of Court, describes the general
circumstances in which a person may file a petition for declaratory relief, to wit:
Any person interested under a deed, will, contract or other written instrument, or whose
rights are affected by a statute, executive order or regulation, ordinance, or any other
governmental regulation may, before breach or violation thereof, bring an action in the
appropriate Regional Trial Court to determine any question of construction or validity
arising, and for a declaration of his rights or duties, thereunder.
As the afore-quoted provision states, a petition for declaratory relief under the first
paragraph of Section 1, Rule 63 may be brought before the appropriate RTC.

Section 1, Rule 63 of the Rules of Court further provides in its second paragraph that:
An action for the reformation of an instrument, (absolute sell to sell with right to
repurchase), to quiet title to real property or remove clouds therefrom, or to consolidate
ownership under Article 1607 of the Civil Code, may be brought under this Rule.

The second paragraph of Section 1, Rule 63 of the Rules of Court specifically

refers to (1) an action for the reformation of an instrument, recognized under Articles
1359 to 1369 of the Civil Code; (2) an action to quiet title, authorized by Articles 476 to
481 of the Civil Code; and (3) an action to consolidate ownership required by Article
1607 of the Civil Code in a sale with a right to repurchase. These three remedies are
considered similar to declaratory relief because they also result in the adjudication of
the legal rights of the litigants, often without the need of execution to carry the judgment
into effect.

To determine which court has jurisdiction over the actions identified in the second
paragraph of Section 1, Rule 63 of the Rules of Court, said provision must be read
together with those of the Judiciary Reorganization Act of 1980, as amended.

It is important to note that Section 1, Rule 63 of the Rules of Court does not
categorically require that an action to quiet title be filed before the RTC. It repeatedly
uses the word may that an action for quieting of title may be brought under [the] Rule on
petitions for declaratory relief, and a person desiring to file a petition for declaratory
relief may x x x bring an action in the appropriate Regional Trial Court. The use of the
word may in a statute denotes that the provision is merely permissive and indicates a
mere possibility, an opportunity or an option.

In contrast, the mandatory provision of the Judiciary Reorganization Act of 1980,

as amended, uses the word shall and explicitly requires the MTC to exercise exclusive
original jurisdiction over all civil actions which involve title to or possession of real
property where the assessed value does not exceed P20,000.00, thus:

Section 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and
Municipal Circuit Trial Courts in Civil Cases. Metropolitan Trial Courts, Municipal Trial
Courts and Municipal Circuit Trial Courts shall exercise:

xxxx

(3) Exclusive original jurisdiction in all civil actions which involve title to, possession of,
real property, or any interest therein where the assessed value of the property or
interest therein does not exceed Twenty thousand pesos (P20,000.00) or, in civil
actions in Metro Manila, where such assessed value does not exceeds Fifty thousand
pesos (P50,000.00) exclusive of interest, damages of whatever kind, attorneys fees,
litigation expenses and costs: x x x
As found by the RTC, the assessed value of the subject property as stated in Tax
Declaration No. 02-48386 is only P410.00; therefore, petitioners Complaint involving
title to and possession of the said property is within the exclusive original jurisdiction of
the MTC, not the RTC. (Malana vs. Tappa, G.R. No. 181303, September 17, 2009)

RULE 64

REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF

THE COMMISSION ON ELECTIONS AND THE COMMISSION ON AUDIT

What is the scope of rule 64?

This Rule shall govern the review of judgments and final orders or resolutions of

1. The Commission on Elections and

2. The Commission on Audit.

What is the mode of review on the decision of the Commission on Elections and
Commission on Audit?

A judgment or final order or resolution of the Commission on Elections and the

Commission on Audit may be brought by the aggrieved party to the Supreme Court on
certiorari under Rule 65, except as hereinafter provided.

Rule 64 is a relatively new rule and has the Constitution of 1987 as its basis.
Sec. 7 of Art. IX-A (Constitutional Commission) provides:

“…. Unless otherwise provided by this Constitution or by law, any decision, order, or
ruling of each commission may be brought to the Supreme Court on certiorari by the
aggrieved party within thirty days from receipt of a copy thereof.”

The provision was interpreted by the Supreme Court through Rule 64 to refer to
certiorari under Rule 65 and not to appeal by certiorari under Rule 45.

The constitutional mandate is now implemented by Rule 64 of the 1997 Rules of

Civil Procedure, which provides for the review of the judgments, final orders or
resolutions of the Commission on Elections and the Commission on Audit. As Rule 64
states, the mode of review is by a petition for certiorari in accordance with Rule 65 to be
filed in the Supreme Court (Lakin Jr. v. COMELEC, 621 SCRA 385).
What is the requirement for the commencement of the action?

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

RULE 65

CERTIORARI, PROHIBITION AND MANDAMUS

What are the remedies available under Rule 65?

Rule 65 of the Rules of Court provides for the following extraordinary remedies,
as follows:

1. Petition for Certiorari (Sec. 1)

2. Petition for Prohibition (sec. 2); and
3. Petition for Mandamus (Sec. 3)

Which court can entertain petition for certiorari, prohibition, and mandamus?

The following courts may entertain a petition for certiorari, prohibition, and
mandamus:

1. Supreme Court
2. Court of Appeals
3. Sandiganbayan
4. Regional Trial Court; and
5. Shari’ah District Court

What is a writ of certiorari?

The writ of certiorari is an extraordinary remedy that the Court issues only under
closely defined grounds and procedures that litigants and their lawyers must
scrupulously observe. They cannot seek refuge under the umbrella of this remedy on
the basis of an undemonstrated claim that they raise issues of transcendental
importance, while at the same time flouting the basic ground rules for the remedy’s
grant. (Chamber of Real Estate and Builders’ Associations, Inc. v. Energy Regulatory
Commission, G.R. No. 174697, July 8, 2010).

What is a petition for certiorari?

A petition for certiorari under Rule 65 of the Rules of Court is a pleading limited to
correction of errors of jurisdiction or grave abuse of discretion amounting to lack or
excess of jurisdiction.
Nature of a certiorari proceeding

A certiorari proceeding is limited in scope and narrow in character. The special

civil action for certiorari lies only to correct acts rendered without jurisdiction, in excess
of jurisdiction, or with grave abuse of discretion. Certiorari will issue only to correct
errors of jurisdiction, not errors of procedure or mistakes in the findings or conclusions
of the lower court. As long as the court acts within its jurisdiction, any alleged errors
committed in the exercise of its discretion will amount to nothing more than mere errors
of judgment, correctible by an appeal or a petition for review under Rule 43 of the Rules
of Court, and not a petition for certiorari (Garcia v. Court of Appeals, G.R. No. 169005,
January 28, 2013)

An application for certiorari is an independent action which is not part or a

continuation of the trial which resulted in the rendition of the judgment complained of.

It is a remedy of last recourse and is a limited form of review.

A petition for certiorari is not a mode of appeal where the appellate court reviews
the errors of fact or law committed by the lower court. The issue in Rule 65 is whether or
not the lower court acted without or in excess of jurisdiction or with grave abuse of
discretion (Yasuda c. Court of Appeals, 330 SCRA 385)

BAR 2019

ABC Homeowners Association, Inc. sued Mr. X before the Regional Trial Court
(RTC) for collection of unpaid association dues. Mr. X filed a motion to dismiss solely on
the ground of lack of jurisdiction, asserting that the Housing and Land Use Regulatory
Board (HLURB) has exclusive jurisdiction over disputes among homeowners and their
associations. The RTC denied Mr. X's motion, maintaining that it has jurisdiction over
the case. This prompted Mr. X to file a petition for certiorari under Rule 65 of the Rules
of Court before the Supreme Court, alleging grave abuse of discretion on the part of the
RTC in denying his motion to dismiss.

(a) Is Mr. X's chosen remedy of certiorari and direct recourse to the Supreme Court
proper? Explain.

(b) Assuming that Mr. X's motion was instead granted by the RTC, what is the proper
remedy of ABC Homeowners Association, Inc. to challenge the RTC ruling? Explain.

(Wala answer sa notes)

Supplemented Answer

a. No, Mr. X’s chosen remedy of certiorari and direct recourse to the Supreme
Court is improper. Under the Doctrine of Hierarchy of Courts in certiorari
petitions, although the Supreme Court has concurrent jurisdiction in certiorari
 cases, a direct recourse to the Supreme Court should be resorted to only when
there are special and important reasons therefore there is no showing of any
special and important reason for a direct recourse to the Supreme Court. Hence
the direct filing of the certiorari petition with the Supreme Court is improper.
[Montes v. Court of Appeals, 4 May 2006]
b. Assuming that Mr. X’s motion to dismiss on the ground of lack of jurisdiction was
instead granted by the RTC, the proper remedy of ABC Homeowners Association
to challenge the RTC ruling is to file a notice of appeal therefrom. Under the
Rules of Civil Procedure, the remedy from a final order is an appeal therefrom
Here the order dismissing the case is a final order. Hence appeal is the proper
remedy. (An alternative answer is that the proper remedy is certiorari under Rule
65 since the dismissal is without prejudice.)

EXCEPTIONS TO THE REQUIREMENTS OF A MOTION FOR RECONSIDERATION

(BAR 1989)

1. Although the filing of a motion for reconsideration is a condition sine qua non for
certiorari to lie, the rule is subject to certain well- recognized exceptions.

2. Some of the recognized exceptions where the special civil action for certiorari will lie
even without first availing of a motion for reconsideration included:

(a) The order is a patent nullity, as when the court a quo has no jurisdiction over the
subject matter;

(b) The questions raised in the certiorari proceeding have been duly raised and
passed upon by the lower court, or are the same as those raised and passed upon
in the lower court;

(c) There is an urgent necessity for the resolution of the question and any further
delay would prejudice the interests of the government or of the petitioner;

(d) The subject matter of the action is perishable;

(e) Under the circumstances, a motion for reconsideration would be useless;

(f) Petitioner was deprived of due process and there is an extreme urgency for relief;

(g) In a criminal case, relief from order of arrest is urgent and the granting of such relief
by the trial court is improbable;

(h) The proceedings in the lower court are a nullity for lack of due process;

(i) The proceedings were done ex parte or in which the petitioner had no opportunity to
object;

(j) Where the issue raised is one purely of law; or

(k) Where public interest is involved.

There is neither appeal nor any plain, speedy and adequate remedy in the
ordinary course of law for the purpose of annulling or modifying the proceeding.

WHEN CERTIORARI IS ALLOWED DESPITE AVAILABILITY OF APPEAL (BAR

2002)

1. Even if the extraordinary remedy of certiorari is not proper when an appeal is

available, it may be allowed when it can be shown that appeal would be inadequate,
slow, insufficient, and will not promptly relieve a party from the injurious effects of the
order complained of.

BAR 2015

The Ombudsman found probable cause to charge with plunder the provincial
governor, vice governor, treasurer, budget officer, and accountant. An Information for
plunder was filed with the Sandiganbayan against the provincial officials except for the
treasurer who was granted immunity when he agreed to cooperate with the
Ombudsman in the prosecution of the case. Immediately, the governor filed with the
Sandiganbayan a petition for certiorari against the Ombudsman claiming there was
grave abuse of discretion in excluding the treasurer from the Information.

a.) Was the remedy taken by the governor correct?

b.) Will the writ of mandamus lie to compel the Ombudsman to include the treasurer in
the Information?

c.) Can the Special Prosecutor move for the discharge of the budget officer to
corroborate the testimony of the treasurer in the course of presenting its evidence?

Suggested answers

a) No, the remedy taken by the governor was not correct. The SC has held that the
proper remedy from the Ombudsman’s orders or resolutions in criminal cases is a
petition for certiorari under Rule 65 filed with the Supreme Court. (Quarto v OMB, 5 Oct
2011; Cortes v. OMB, 10 June 2013).

Here the petition for certiorari was filed not with the Supreme Court but the
Sandiganbayan. Hence the remedy taken was not correct.

b) No, the writ of mandamus will not lie to compel the Ombudsman to include the
Treasurer in the information. The Supreme Court has held that mandamus will lie only if
the exclusion of a person from the information was arbitrary. Here the exclusion was not
arbitrary but based on Sec. 17 of RA 6770 which empowers the Ombudsman to grant
immunity to witnesses.
 c) No, the Special Prosecutor cannot move for the discharge of the budget officer to
corroborate the testimony of the treasurer. Under Section 17 of Rule 119, a
requirement for discharge is that there is no other direct evidence available for the
prosecution of the offense and that there is absolute necessity for the testimony of the
accused whose discharge is requested.

Here since the budget officer’s testimony is merely corroborative, there is no absolute
necessity for it. Necessity is not there when the testimony would simply corroborate or
otherwise strengthen the prosecution’s evidence. (Jimenez v People, 17 September
2014).

Hence the Special Prosecutor cannot move for the discharge of the budget officer.

When is the remedy of prohibition proper?

A party aggrieved in the action/proceedings may file a verified petition in the

proper court when the tribunal, corporation, board, officer or person, whether exercising
judicial, quasi-judicial or ministerial functions, are

1. Without or in excess of its or his jurisdiction, or

2. With grave abuse of discretion amounting to lack or excess of jurisdiction, and

3. There is no appeal or any other plain, speedy, and adequate remedy in the ordinary
course of law,

What are the matters to be considered in filing the petition for prohibition?

A person aggrieved thereby may file a verified petition in the proper court,
alleging the following, to wit:

1. The facts with certainty

2. Praying that judgment be rendered commanding the respondent to desist

from further proceedings in the action or matter specified therein, or

3. Otherwise granting such incidental reliefs as law and justice may require.

4. The petition shall likewise be accompanied by a certified true copy of the

judgment, order or resolution subject thereof, copies of all pleadings and
documents relevant and pertinent thereto, and

5. A sworn certification of non-forum shopping as provided in the third

paragraph of section 3, Rule 46.

REQUISITES FOR A WRIT OF PROHIBITION:

 1. For a party to be entitled to a writ of prohibition, he must establish the following
requisites:

(a) The impugned act must be that of a tribunal, corporation, board or person exercising
judicial, quasi-judicial, or ministerial functions;

(b) The tribunal, corporation, board or person must have acted without or in excess of
jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction;

(c) There is no appeal or any other plain, speedy and adequate remedy in the ordinary
course of law;

(d) Like a petition for certiorari, the petition for prohibition shall be accompanied by a
certified true copy of the judgment or order subject of the petition, copies of all pleadings
and documents relevant and pertinent thereto, and a sworn certification of non-forum
shopping as provided in Sec. 3 of Rule 46.

2. In prohibition, the respondent may be one exercising not only judicial or quasi-
judicial functions but also ministerial functions. In certiorari, the petition is directed
only against one exercising judicial or quasi-judicial functions.

3. Prohibition, however, excludes its use against any person or group of persons acting
in a purely private capacity. Prohibition will not lie against private individual or
corporations (Destileria Limtuaco & Company, Inc v. Advertising Board of the
Philippines, 572 SCRA 455).

PROHIBITION DISTINGUISHED FROM INJUNCTION:

Prohibition is a special civil action directed against a tribunal, corporation, board,

officer or person which exercises judicial, quasi-judicial, or ministerial functions
commanding the same to DESIST from further proceedings. An injunction, as a main
action, is an ordinary civil action.

PROHIBITION DISTINGUISHED FROM CERTIORARI:

1. A writ of prohibition is directed not only against respondent exercising judicial or

a quasi-judicial act but even against one exercising ministerial functions. A writ of
certiorari seeks to annul acts of a respondent performing judicial or quasi-judicial
functions

2. A writ of prohibition is directed to the tribunal itself commanding it to desist from

further proceeding with the case. A writ of certiorari is directed to the action of the
court which is sought to be annulled.

3. The purpose of prohibition is to command the respondent to desist from further

proceedings. The purpose of certiorari is to annul or modify the judgment, order,
resolution or proceedings of the public respondent.
BAR 1980

Antonio, a resident of Pampanga, filed a suit in the CFI (RTC) of Manila on a

promissory note executed by Andres, a resident of Cavite. The latter moved to dismiss
on the ground “that the venue is improperly laid.” The motion was denied and Andres
wants to question the denial before the higher court, If your Andres’ lawyer, should your
petition be for certiorari, prohibition or mandamus?

Suggested answer

If the impropriety of the venue is timely raised, the remedy is prohibition, NOT
mandamus, where the purpose of the petitioner is to prevent the court from further
exercising a power committed with grave abuse of discretion amounting to lack of
jurisdiction under Section 2, Rule 65 of the Rules of Court. Certiorari may also be
available to annul the order of the court.

BAR 2017

Hannibal, Donna, Florence and Joel, concerned residents of Laguna de Bay, filed a
complaint for mandamus against the Laguna Lake Development Authority, the
Department of Environment and Natural Resources, the Department of Public Work and
Highways, Department of Interior and Local Government, Department of Agriculture,
Department of Budget, and Philippine National Police before the RTC of Laguna
alleging that the continued neglect of defendants in performing their duties has resulted
in serious deterioration of the water quality of the lake and the degradation of the marine
life in the lake. The plaintiffs prayed that said government agencies be ordered to clean
up Laguna de Bay and restore its water quality to Class C waters as prescribed by
Presidential Decree No. 1152, otherwise known as the Philippine Environment Code.
Defendants raise the defense that the cleanup of the lake is not a ministerial function
and they cannot be compelled by mandamus to perform the same. The RTC of Laguna
rendered a decision declaring that it is the duty of the agencies to clean up Laguna de
Bay and issued a permanent writ of mandamus ordering said agencies to perform their
duties prescribed by law relating to the cleanup of Laguna de Bay.

[a] Is the RTC correct in issuing the writ of mandamus? Explain.

[b] What is the writ of continuing mandamus?

SUGGESTED ANSWER:

(a)Yes, the RTC is correct. In MMDA v. Concerned Residents of Manila Bay, 18

December 2008, the SC held that the cleaning or rehabilitation of Manila Bay can be
compelled by mandamus. The ruling in MMDA may be applied by analogy to the clean
up of the Laguna de Bay.

While the term issued by the RTC of Laguna is a permanent writ of mandamus, this
should be considered only as a semantic error and that what the RTC really intended to
issue is a writ of continuing mandamus. There is no such thing as a permanent writ of
mandamus since the writ shall cease to be effective once the judgment is fully satisfied.

(b) The writ of continuing mandamus is a writ issued by a court in an environmental

case directing any agency or instrumentality of the government or officer thereof to
perform an act or series of acts decreed by final judgment which shall remain effective
until judgment is fully satisfied.

BAR 1991

After reviewing the record of a preliminary investigation of a homicide case, the

Secretary of Justice reversed the resolution of the Provincial Prosecutor and directed
the latter to move for the dismissal of the Information which has been filed in the
Regional Trial Court of Pasig. The Provincial Prosecutor thus filed such motion. If the
judge refuses to grant the Provincial Prosecutor’s motion to dismiss, may a special civil
action for mandamus lie to compel the judge to grant the motion?

SUGGESTED ANSWER:

Mandamus may not lie. The act of the judge in granting or denying the motion to
dismiss is a discretionary act, not ministerial, and mandamus is the proper remedy to
question a discretionary act under Section 3, Rule 65 of the Rules of Court.

What is the duty of the petitioner in filing the petition?

When the petition filed relates to the acts or omissions of a judge, court, quasi-
judicial agency, tribunal, corporation, board, officer or person, the petitioner shall join, as
private respondent or respondents with such public respondent or respondents, the
person or persons interested in sustaining the proceedings in the court;

What is the duty of the respondent after the filing of the petition?

It shall be the duty of such private respondents to appear and defend, both in his
or their own behalf and in behalf of the public respondent or respondents affected by the
proceedings,

To whom the cost to be awarded shall be directed?

 The costs awarded in such proceedings in favor of the petitioner shall be against
the private respondents only, and not against the judge, court, quasi-judicial agency,
tribunal, corporation, board, officer or person impleaded as public respondent or
respondents.

What is the duty of the public respondent after the petition is filed?

Unless otherwise specifically directed by the court where the petition is pending,

1. The public respondents shall not appear in

2. Nor file an answer or comment to the petition or any pleading therein.
3. If the case is elevated to a higher court by either party, the public
respondents shall be included therein as nominal parties. However, unless
otherwise specifically directed by the court, they shall not appear or
participate in the proceedings therein.

What is the duty of the court after the filing of the petition?

If the petition is sufficient in form and substance to justify such process, the court
shall

1. Issue an order requiring the respondent or respondents to comment on the

petition within ten (10) days from receipt of a copy thereof.

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

3. In petitions for certiorari before the Supreme Court and the Court of
Appeals, the provisions of section 2, Rule 56, shall be observed.

4. Before giving due course thereto, the court may require the respondents to
file their comment to, and not a motion to dismiss, the petition.

5. Thereafter, the court may require the filing of a reply and such other
responsive or other pleadings as it may deem necessary and proper.

Unlike an ordinary civil action, where the issuance and service of summons
follow the filing of the complaint, no summons is issued in a petition for certiorari.

Instead of summons, the court shall issue an order requiring the respondent to
comment on the petition within ten (10) days from receipt of a copy of the petition.
However, the order to comment shall be issued only if the court finds that the petition is
sufficient in form and substance. The inevitable implications is that the petition may be
outrightly dismissed if found not to be sufficient in both form and substance.

The determination of the completeness or sufficiency of the form of the petition,

including the relevant and pertinent documents which have to be attached to it, is
largely left to the discretion of the court taking cognizance of the petition. If the petition
is insufficient in form and substance, the same may be forthwith dismissed without
further proceedings. That is the import of Section 6, Rule 65 of the Rules of Court (Palm
Tree Estates, Inc. v. Philippine National Bank, G.R. No. 159370, October 3, 2012).

The order to comment shall be served together with a copy of the petition and the
annexes thereto. Note that it is a comment that shall be filed by the respondent, and not
a motion to dismiss.

In petitions for certiorari before the Supreme Court and the Court of Appeals, the
provisions of Sec. 2 of Rule 56 shall be observed. Before giving due course thereto, the
court may require the respondents to file their comments to, and not a motion to
dismiss, the petition. Thereafter, the court may require the filing of a reply and such
other responsive or other pleadings as it may deem necessary and proper.

Section 2, Rule 56, provides:

“Section 2. Rules applicable. — The procedure in original cases for certiorari,

prohibition, mandamus, quo warranto and habeas corpus shall be in accordance with
the applicable provisions of the Constitution, laws, and Rules 46, 48, 49, 51, 52 and this
Rule, subject to the following provisions:

a) All references in said Rules to the Court of Appeals shall be understood to

also apply to the Supreme Court;

b) The portions of said Rules dealing strictly with and specifically intended for
appealed cases in the Court of Appeals shall not be applicable; and

c) Eighteen (18) clearly legible copies of the petition shall be filed, together with
proof of service on all adverse parties.

The proceedings for disciplinary action against members of the judiciary shall be
governed by the laws and Rules prescribed therefor, and those against attorneys by
Rules 139-B, as amended. (n)

What are the orders that may be issued by the court during the pendency of the
petition?

The court in which the petition is filed may issue the following

1. Orders expediting the proceedings, and

2. It may also grant a temporary restraining order or a writ of preliminary
injunction for the preservation of the rights of the parties pending such
proceedings.

What is the effect of the filing of the petition?

 The petition shall not interrupt the course of the principal case unless a
temporary restraining order or a writ of preliminary injunction has been issued against
the public respondent from further proceeding in the case.

The public respondent shall proceed with the principal case within ten (10) days
from the filing of a petition for certiorari with a higher court or tribunal, absent a
temporary restraining order or a preliminary injunction or upon its expiration. Failure of
the public respondent to proceed with the principal case may be a ground for an
administrative charge. (As amended by A.M. No. 07-7-12-SC, effective December 27,
2007)

What are the courses of action of the court after the filing of the comment to the
petition?

After the comment or other pleadings required by the court are filed, or the time
for the filing thereof has expired, the court may perform the following

1. Hear the case or

2. Require the parties to submit memoranda.
3. If after such hearing or submission of memoranda or the expiration of the
period for the filing thereof the court finds that the allegations of the
petition are true, it shall render judgment for the relief prayed for or to
which the petitioner is entitled.

What are the grounds for the denial of the petition?

The court, may dismiss the petition if it finds that

1. The same to be patently without merit,

2. It is prosecuted manifestly for delay, or
3. That the questions raised therein are too unsubstantial to require
consideration.

What are the possible liabilities of the petitioner or counsel in case of dismissal
of the petition?

In case of dismissal of the petition, the court may award in favour of the
respondent treble costs solidarily against the petitioner and counsel, in addition to
subject the counsel to administrative sanctions under Rules 139 and 139-B of the Rules
of Court.

The Court may impose motu proprio, based on res ipsa loquitor, other
disciplinary sanctions or measures on erring lawyers for patently dilatory and
unmeritorious petitions for certiorari. (As amended by A.M. No. 07-7-12-SC, December
27, 2007).

DISTINCTION BETWEEN CERTIORARI UNDER RULE 45 AND CERTIORARI

UNDER RULE 65:
 There are well-settled distinctions between these two rules, among which are the
following:

(1) Certiorari under Rule 45, called appeal by certiorari to the Supreme Court (also
called a petition for review on certiorari), is a mode of appeal (Sec. 2[c], Rule 41,
Rules of Court); while certiorari under Rule 65 is a special civil action. As such, it is
an original and independent action, not a mode of appeal.

Certiorari under Rule 45 is but a continuation of the appellate process over the original
case. Certiorari under Rule 65 is not a part of the appellate process but an original
action.

(2) Because certiorari under Rule 45 is a mode of appeal, it seeks to review final
judgments or final orders; while certiorari under Rule 65 is usually directed against
an interlocutory order or matters where no appeal may be taken from (Sec. 1, Rule
41, Rules of Court). The purpose of a Rule 65 petition is to annul the proceedings of
a lower tribunal and prevent an unlawful and oppressive exercise of legal authority.

(3) Certiorari under Rule 45, as a rule, raises only questions of law. Questions of fact
are not entertained. The resolution of factual issues is the function of the lower
courts whose findings on these matters are received with respect and are, as a rule,
binding on the Supreme Court.

Certiorari under Rule 65 raises questions of jurisdiction because a tribunal, board or

officer exercising judicial or quasi-judicial functions has acted without jurisdiction or in
excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction.

(4) An appeal by certiorari under Rule 45 is filed within fifteen (15) days from notice
of judgment or final order appealed from; while a petition for certiorari under Rule 65
is filed not later than sixty (60) days from notice of judgment, order or resolution
sought to be assailed, and in case a motion for reconsideration or new trial is timely
filed, whether such motion is required or not, the sixty (60) day period is counted
from notice of denial of said motion.

(5) Certiorari under Rule 45 does not require a prior motion for reconsideration while
certiorari under Rule 65 requires, as a general rule, a prior motion for
reconsideration.

(6) Unless a rule provides for a contrary, certiorari under Rule 45 stays the judgment
appealed from; certiorari under Rule 65 does not stay the judgment or order subject
of the petition unless enjoined or restrained.

(7) In certiorari under Rule 45, the parties are the original parties with the appealing
party as the petitioner and the adverse party as respondent without impleading the
lower court or its judge, while in certiorari under Rule 65, the tribunal, board, or
officer exercising judicial or quasi-judicial functions is impleaded as respondent;
 (8) Certiorari, as a special civil action is filed with the Regional Trial Court, Court of
Appeals or Sandiganbayan; whereas certiorari under Rule 45 as a mode of appeal,
is filed with the Supreme Court.

DISTINCTIONS BETWEEN CERTIORARI UNDER RULE 64 AND CERTIORARI

UNDER RULE 65:

1. The certiorari in Rule 64 is directed only against judgments, final order or

resolutions of the Commission on Elections and Commission on Audit. The certiorari
in Rules 65 is directed against any tribunal, board or officer exercising judicial or
quasi-judicial functions.

2. The certiorari in Rule 64 is filed within thirty (30) days from the notice of the
judgment. The certiorari in Rule 65 is filed within sixty (60) days from the notice of
judgment.

3. In Rule 64, the filing of a motion for reconsideration or new trial, if allowed,
interrupts the period for filing of a petition for certiorari. If the motion is denied, the
aggrieved party may file the petition within the remaining period, but which may not
be less than five (5) days reckoned from the notice of denial. In Rule 65, the period
within which to file the petition, if the motion for reconsideration or new trial is
denied, is sixty (60) days from notice of the denial of the motion.

BAR 2008

Compare the certiorari jurisdiction of the Supreme Court under the Constitution with that
under Rule 65 of the Rules of Civil Procedure

SUGGESTED ANSWER:

Under the Constitution, the certiorari jurisdiction of the Supreme Court provides
for its expanded jurisdiction power of judicial power over all branches or
instrumentalities of the government where there is a grave abuse of discretion
amounting to lack or excess of jurisdiction, as provided in Section 1, second par. Art.
VIII of the 1987 Constitution. The petition is filed under Rule 45 of the Rules of Court
and the writ is directed not only to tribunal, board or officer exercising judicial or quasi-
judicial functions. And the period for availing of the remedy is within 30 days from
receipt of the copy of the decision, order or ruling in question.

But under Rule 65 of the Rules of Court, the certiorari jurisdiction of the Supreme
Court is limited to acts done without or in excess of jurisdiction or grave abuse of
discretion amounting to lack or excess of jurisdiction, by a tribunal, board or officer
exercising judicial or quasi-judicial functions only. And the period fixed for availing of the
remedy is not later than 60 from notice of judgment, order or resolution in question
(Secs. 1 and 4, Rule 65 , Rules of Court.

BAR 2004
 Charged with the offense of slight physical injuries under an information duly filed
with the MeTC in Manila, which, in the meantime, had duly issued an order declaring
that the same shall be governed by the Revised Rule on Summary Procedure, the
accused filed with said court a motion to quash on the sole ground that the officer who
filed the information had no authority to do so. The MeTC denied the motion on the
ground that it is a prohibited motion under the said Rule.

The accused thereupon filed with the RTC in Manila a petition for certiorari in
sum assailing and seeking the nullification of the MeTC’s denial of his motion to quash.
The RTC, in due time, issued an order denying due course to the certiorari petition on
the ground that it is not allowed by the said Rule.

Was the RTC order denying due course to the petition correct? Reason.

SUGGESTED ANSWER:

The denial of the petition for certiorari was correct. A petition for certiorari against
an interlocutory order of the MeTC is a prohibited pleading under Sec. 19 (g) of the
Rules on Summary Procedure.

BAR 1991

On January 3, 1991, the Mayon Corporation filed a complaint for foreclosure of

real estate mortgage against one of its sales agents, A, who was discovered to have
incurred a shortage in his accounts. The mortgage was executed to guarantee faithful
compliance with his duties and responsibilities as a sales agent. Impleaded in the
complaint as co-defendants were A’s co-mortgagors, B and C.

Acting on the defendant’s motion to dismiss, the court dismissed the complaint
on in an Order dated February 15, 1991, a copy of which was received by Mayon
Corporation on February 18, 1991. On March 15, 1991, and definitely within a
reasonable period from receipt of the dismissal order Mayon Corporation filed with the
Supreme Court a special civil action for certiorari under Rules 65 of the Rules of Court
alleging therein that the trial court acted without or in excess of jurisdiction or with grave
abuse of discretion amounting to lack of jurisdiction in granting the motion to dismiss.

(a) Should the Supreme Court give due course to the petition?

(b) May a special civil action for certiorari prosper in case of a denial of a
motion to dismiss?

SUGGESTED ANSWER:

A. No, because the proper remedy was an appeal from the order of dismissal. The
special civil action of certiorari cannot take the place of a lost appeal (Limpot v.
CA, 170 SCRA 367). Under the current Rule (Sec. 1, Rule 41 (g), if the order of
dismissal is without prejudice, the order of dismissal is not appealable. The
 remedy is the appropriate special civil action under Rule 65. If the dismissal is
with prejudice, the order is appealable.

B. An order denying a motion to dismiss is an interlocutory order, and hence, not

appelable. (Sec.1, rule 41, rules of Court). It has also been held that “an order
denying a motion to dismiss is interlocutory and cannot be the subject of the
extraordinary petition for certiorari or mandamus. The remedy of the aggrieved
party is to file an answer and to interpose as defences the objections raised in his
motion to dismiss, proceed to trial, and in case of an adverse decision, to elevate
the entire case by appeal in due course.” (sec.4, Rule 16, Rules of Court)

REMEMBER!

Under the 2000 National Prosecution Service Rules on appeal, a resolution of

the Justice Secretary affirming, modifying, or reversing the resolution of the
Investigating Prosecutor is final, and there is no more appeal or other remedy in the
ordinary course of law. The remedy of the aggrieved party is to file a petition for
certiorari under Rule 65 of the Rules of Court since there is no more appeal or other
remedy available. To file an appeal with the Court of Appeals, by way of a petition for
review under Rule 43, is to resort to an improper remedy. A petition for certiorari under
Rule 65 should be filed instead. (Alcaraz vs. Gonzalez, 502 SCRA 518)

On the other hand, a judgment or final order of the Court of Appeals on the
petition for certiorari against the Secretary of Justice is reviewable by the Supreme
Court by a petition for review on certiorari under Rule 45, not the original action for
certiorari under Rule 65 (Sec. 1, Rule 45 of the Rules of Court).

BAR 1980

Antonio, a resident of Pampanga, filed a suit in the RTC of Manila on a

promissory note executed by Andres, a resident of Cavite. The latter moved to dismiss
on the ground “that the venue is improperly laid.” The motion was denied and Andres
wants to question the denial before the higher court. If you were Andres’ lawyer, should
your petition be certiorari, prohibition or mandamus?

SUGGESTED ANSWER:

If the impropriety of the venue is timely raised, the remedy is prohibition, not
mandamus, where the purpose of the petitioner is to prevent the court from further
exercising a power committed with grave abuse of discretion amounting to lack of
jurisdiction (sec. 2, Rule 65, Rules of Court). Certiorari may also be available to annul
the order of the court.

BAR 1991
 After reviewing the record of a preliminary investigation of a homicide case, the
Secretary of Justice reversed the resolution of the Provincial Prosecutor and directed
the latter to move for the dismissal of the Information which had been filed in the
Regional Trial Court of Pasig. The Provincial Prosecutor thus filed such motion.

If the judge refuses to grant the Provincial Prosecutor’s motion to dismiss, may a
special civil action for mandamus lie to compel the judge to grant the motion?

SUGGESTED ANSWER:

Mandamus will not lie. The act of the judge in granting or denying the motion is
discretionary act, not ministerial.

BAR 1978

X filed a complaint against Y in the RTC of Manila for annulment of a deed of

mortgage, its extrajudicial foreclosure and the certificate of title issued in consequence
thereof. Y filed an answer and after trial, the complaint was dismissed. Within thirty (30)
days from notice of such dismissal, X filed his notice of appeal, his record on appeal
and appeal bond, and duly served Y with a copy thereof. Y filed a motion to dismiss the
appeal on the ground that the same was manifestly dilatory and this was granted by the
trial court. As counsel for X, what action will you take and why?

SUGGESTED ANSWER:

I will file a petition for mandamus to compel the court of origin to allow the
appeal. Where all the requirements for the perfection of an appeal have been complied
with, the duty to give due course to the same is not discretionary. Denying the appeal
constitutes an unlawful failure to perform a ministerial duty (Sec. 3, Rule 65, Rules of
Court). Whether or not the appeal is dilatory is a determination to be made by the
appellate court and not the court of origin.

RULE 66

QUO WARRANTO (Petition)

When and against whom a petition for quo warranto may be filed?

To reiterate, an action for the usurpation of a public office, position or franchise

may be commenced by a verified petition brought in the name of the Republic of the
Philippines against:

(a) A person who usurps, intrudes into, or unlawfully holds or exercises a public
office, position or franchise;
 (b) A public officer who does or suffers an act which, by the provision of law,
constitutes a ground for the forfeiture of his office; or

(c) An association which acts as a corporation within the Philippines without

being legally incorporated or without lawful authority so to act. (1a)

QUO WARRANTO DISTINGUISHED FROM MANDAMUS:

1. A quo warranto proceeding is brought against the holder of the office, who is the
person claiming the office as against the petitioner, not the one who excludes the
petitioner.

2. Recall that mandamus is also available when one is unlawfully excluded from the
use or enjoyment of an office. While it is similar to a quo warranto proceeding in this
respect, in mandamus, the suit is brought against the person who is responsible for
unlawfully excluding the petitioner from office. The respondent here does not have to
usurp, intrude into or hold the office.

A PETITION GENERALLY BROUGHT IN THE NAME OF THE REPUBLIC; VERIFIED

PETITION:

Under the Rules of Court, quo warranto is a special civil action commenced in
the name of the Republic of the Philippines by a verified petition. In certain instances,
however, the petition may be brought by an individual in is own name if he claims to be
entitled to a public office usurped or unlawfully held or exercised by another.

AGAINST WHOM PETITION MAY BE BROUGHT:

1. The petition for the usurpation of a public office, position or franchise may be
brought against any of the following:

(a) Person;
(b) Public officer; or
(c) Association

2. If brought against a person, said person is one who usurps, intrudes into, or
unlawfully holds or exercises a public office, position, or franchise.

3. If filed against a public officer, said officer is one does or suffers an act which, by
the provision of law, constitutes a ground for the forfeiture of his office.

4. If filed against an association, it is one which acts as a corporation within the

Philippines without being legally incorporated or without lawful authority to do so.

Note:
 Although a quo warranto proceeding may be brought against an association
which acts as a corporation within the Philippines without being legally incorporated or
without lawful authority so to act, the petition may be brought only against a DE FACTO
CORPORATION, not a de jure corporation. The latter corporation has no defects in its
incorporation and exercises corporate powers because it was organized in full
compliance with the laws. There is therefore, no reason to attack its existence and its
exercise of corporate powers.

WHEN THE ACTION MUST BE COMMENCED BY THE GOVERNMENT:

When directed by the President of the Philippines, or when upon complaint or

otherwise he has good reason to believe that any case specified in the Rules can be
established by proof, the Solicitor General or the public prosecutor must commence the
action.

What are the instances where the Solicitor General or public prosecutor must
commence an action for quo warranto?

The Solicitor General or a public prosecutor, must commence an action for quo
warranto in the following instances:

1. When directed by the President of the Philippines, or

2. Upon complaint or
3. Otherwise he has good reason to believe that any case specified in the
preceding section can be established by proof, must commence such
action. (3a)

BAR 2018

In 2007, Court of Appeals Justice (CA Justice) Dread Dong (J. Dong) was
appointed to the Supreme Court (Court) as Associate Justice. Immediately after the
appointment was announced, several groups questioned his qualification to the position
on the ground that he was not a natural born Filipino citizen. In the same year, the Court
issued an Order enjoining him from accepting the appointment or assuming the position
and discharging the functions of his office until he is able to successfully complete all
the necessary steps to show that he is a natural born citizen of the Philippines.
However, he continued to exercise his functions as CA Justice.

Since the qualification of a natural born citizen applies as well to CA Justices,

Atty. Dacio, a practicing lawyer, asked the Office of the Solicitor General (OSG),
through a verified request, to initiate a quo warranto proceeding against J. Dong in the
latter's capacity as incumbent CA Justice. The OSG refused to initiate the action on the
ground that the issue of J. Dong's citizenship was still being litigated in another case.

When the OSG refused to initiate a quo warranto proceeding, Atty. Dacio filed a
petition for certiorari against the OSG and certiorari and prohibition against J. Dong. The
petition for certiorari against the OSG alleged that the OSG committed grave abuse of
discretion when it deferred the filing of a quo warranto proceeding against J. Dong,
while the petition for certiorari and prohibition against J. Dong asked the Court to order
him to cease and desist from further exercising his powers, duties and responsibilities
as CA Justice. In both instances, Atty. Dacio relied on the fact that, at the time of J.
Dong's appointment as CA Justice, his birth certificate indicated that he was a Chinese
citizen and his bar records showed that he was a naturalized Filipino citizen.

(a) May the OSG be compelled, in an action for certiorari, to initiate a quo warranto
proceeding against J. Dong?

(b) Does Atty. Dacio have the legal personality to initiate the action for certiorari and
prohibition against J. Dong?

(Wala answer sa notes)

Suggested answer: (source)

a) No. the OSG has the discretion in determining the presence of the requisites for
a Quo Warranto proceeding. Besides, there is already a pending case for the
purpose of determining citizenship.

For a Quo Warranto proceeding to be successful the private person suing must
show a clear right to the contested office (Ferdinand Topacio v. Associate Justice
Gregory Ong and the Office of the Solicitor General, G.R. No. 179895, 18
December 2008).

b) No. He is not clothed with legal interest. Rule 65, Sections 1 and 2 of the Rules
of Court state that only an aggrieved party may file petitions for certiorari and
prohibition in the appropriate court.

An “aggrieved party” is one who was a party to the original proceedings that gave
rise to the original action for certiorari under Rule 65 (Siguion Reyna Montecillo
and Ongsiako Law Offices v. Chionlo-Sia, G.R. No. 181186, 3 February 2016).

In this case, since there is no “original proceeding” before J. Dong where Atty.
Dacio is a party. Atty. Dacio cannot be considered an “aggrieved party” for
purposes of Rule 65, Sections 1 and 2 of the Rules of Court. Atty. Dacio
therefore, has no legal personality to file the same.

When hearing had on application for permission to commence action.

When the application is made for permission to commence such action, the court
shall direct that notice be sent to the respondent so that he may be given the
opportunity to be heard in opposition thereto.
 If the permission is granted, the court shall issue an order to that effect. Copies of
such order shall be served on all the interested parties. The petition shall then be filed
within the period ordered by the court.

What are the courses of action by the court in case of application for a
permission to commence an action?

Upon application for permission to commence such action in accordance with the
next preceding section, the court shall:

1.Direct that notice be given to the respondent so that he may be heard in opposition
thereto;

2. If permission is granted, the court shall issue an order to that effect, copies of which
shall be served on all interested parties, and

The petition shall then be filed within the period ordered by the court.

When an individual may commence such an action.

The petition may also be commenced by a person in his own name other than by
the Solicitor General or public prosecutor.

However, not any person may file the petition for quo warranto. The person
authorized to file the same is the one who claims to be entitled to a public office or
position which was usurped or unlawfully held or exercised by another person.

The private person, as petitioner, may maintain the action without the
intervention of the Solicitor General. In bringing a petition for quo warranto, he must
show that he has a clear right to the office allegedly being held by another (Cuevas vs.
Bacal, 347 SCRA 338). Thus, one who does not claim to be entitled to the office
allegedly usurped or unlawfully held or exercised by another cannot question his title
thereto by quo warranto. Mere assertion of a right to be appointed to the office is not
sufficient regardless of the alleged flaws in the title of the respondent. (Cuyegkeg vs.
Cruz, 108 Phil. 1147)

QUO WARRANTO IN THE OMNIBUS ELECTION CODE (ELECTIVE OFFICE)

DISTINGUISHED FROM A QUO WARRANTO IN AN APPOINTIVE OFFICE)

The following are the distinctions between quo warranto in an elective office and
quo warranto in an appointive office:

1. In the first, the governing law is the Election Law; in the second, the rules that
govern are the provisions of the Rules of Court;

2. In the first, the issue is the eligibility or in ineligibility of the person elected or his
loyalty or disloyalty to the Republic of the Philippines; in the second, the issue is the
legality or illegality of the occupancy of the office by virtue of an appointment;
3. In the first, the petition is filed within ten (10) days after the proclamation of the results
of the election; in the second, it is filed within one (1) year from the time the cause of
ouster, or the right of the petitioner to hold office or position, arose;

4. In the first, the petition is brought in the COMELEC, Regional Trial Court or the
Municipal Trial Court, as the case may be; in the second, the petition is brought in
the Supreme Court, Court of Appeals or Regional Trial Court;

5. In the first, the petitioner may be any voter even if he is not entitled to the office; in
the second, the petitioner is the person claiming to be entitled to the office.

6. In the first case where the person elected is ineligible, the court cannot declare
that candidate occupying the second place as elected, even if he were eligible, since
the law authorizes a declaration of election in favour of the person obtaining the
plurality of votes. In the second case, the court determines who is legally appointed,
and can and ought to declare the person entitled to occupy the office.

QUO WARRANTO DISTINGUISHED FROM AN ELECTION PROTEST:

1. As a general rule, the proper remedy after the proclamation of the winning candidate
for the position contested would be to file a regular election protest or quo warranto
(Espidol v. COMELEC, 472 SCRA 380)

However, a quo warranto petition in an election of public office should not be confused
with an election protest.

The cause of action in the first is the eligibility of the candidate or lack of it, or his being
disloyal to the Republic of the Philippines. The cause of action in an election protest is
the irregularity in the conduct of the election.

What is the rule in case of period of filing of pleadings and other proceedings?
Purpose.

The court where the petition was filed in its discretion may:

1. Reduce the period provided by these Rules for filing pleadings and for all other
proceedings in the action in order to secure the most expeditious determination
of the matters involved therein consistent with the rights of the parties.
2. Such action may be given precedence over any other civil matter pending in the
court.

When to bring the action?

Nothing contained in this Rule shall be construed to authorize an action against a

public officer or employee for his ouster from office unless the same be commenced

1. Within one (1) year after the cause of such ouster, or

2. Within one (1) year after the right of the petitioner to hold such office or position,
arose,
3. Nor to authorize an action for damages in accordance with the provisions of the next
preceding section unless the same be commenced within one (1) year after the entry of
the judgment establishing the petitioner's right to the office in question. (16a)

What are the courses of action by the court in rendering judgment?

In an action brought in accordance with the provisions of this Rule, the court
may:

1. Render judgment for costs against either the petitioner, the relator, or the
respondent, or the person or persons claiming to be a corporation, or
2. It may apportion the costs, as justice requires.

BAR 2001

Petitioner Fabian was appointed Election Registrar of the Municipality of Sevilla

supposedly to replace the respondent Election Registrar Pablo who was transferred to
another municipality without his consent and who refused to accept his aforesaid
transfer, much less to vacate his position in Bogo town as Election Registrar, as in fact
he continued to occupy his aforesaid position and exercise his functions thereto.
Petitioner Fabian then filed a petition for mandamus against Pablo but the trial court
dismissed the petition contending that quo warranto is the proper remedy. Is the court
correct in its ruling?

SUGGESTED ANSWER:

The court is correct. The facts do not indicate that Pablo has excluded Fabian
from his office. He is the holder of the office and continues to do so believing he has a
right to the same and continues to exercise the functions of the office as against the
petitioner. The proper remedy of Fabian is a quo warranto proceeding.

BAR 1980

If the principal of a public high school is illegally replaced by another, is it a

requirement that before he can go to court on a quo warranto, he should first exhaust
administrative remedies? Why?

SUGGESTED ANSWER:

No. There is no such requirement under Rule 66. The action has to be brought
within one (1) year from the time the cause of ouster from office or the right to hold the
office, arose. A quo warranto proceeding is one of the instances where exhaustion of
administrative remedies is not required (Celestial v. Cachopero, 413 SCRA 469).

BAR 2001
 A group of businessmen formed an association in Cebu city calling itself Cars
Co. to distribute/sell cars in the said city. It did not incorporate itself under the law n or
did it have any government permit or license to conduct its business as such. The
Solicitor General filed before a Regional Trial court in Manila a verified petition for quo
warranto questioning and seeking to stop the operations of Cars Co. the latter filed a
motion to dismiss the petition on the ground of improper venue claiming that its main
office and operations are in Cebu city and not in Manila. Is the contention of Cars Co.
correct?

SUGGESTED ANSWER:

The contention of Cars co. is not correct. While as a rule, a petition for quo
warranto filed before the RTC should be brought in the place where the respondent
resides, this rule shall not apply when the petition is filed by the Solicitor General who is
given the prerogative to file the petition in the Regional Trial Court of Manila.

RULE 67

EXPROPRIATION (Petition)
Which court has jurisdiction over complaint for eminent domain?

The Regional Trial court has exclusive original jurisdiction over complaint for
expropriation since the subject matter of which is the right of the State to expropriate a
private property upon payment of just compensation, which is incapable of pecuniary
estimation.

How can the right of eminent domain be exercised?

The right of eminent domain shall be exercised by the filing of a verified

complaint with the Regional Trial Court which shall state with certainty:

1. The right and purpose of expropriation,

2. Describe the real or personal property sought to be expropriated,

3. Join as defendants all persons owning or claiming to own, or occupying,

any part thereof or interest therein, showing, so far as practicable, the
separate interest of each defendant.

4. If the title to any property sought to be expropriated appears to be in the

Republic of the Philippines, although occupied by private individuals, or if
the title is otherwise obscure or doubtful so that the plaintiff cannot with
 accuracy or certainty specify who are the real owners, averment to that
effect shall be made in the complaint. (1a)

What are the requirements for the plaintiff to enter the property subject of
expropriation?

Upon the filing of the complaint or at any time thereafter and after due notice to
the defendant, the plaintiff shall have the right to take or enter upon the possession of
the real property involved if he complies with the following requirements:

1. Due notice to the defendant;

2. Deposits with the authorized government depositary an amount equivalent

to the assessed value of the property for purposes of taxation to be held
by such bank subject to the orders of the court.

3. Such deposit shall be in money, unless in lieu thereof the court authorizes
the deposit of a certificate of deposit of a government bank of the Republic
of the Philippines payable on demand to the authorized government
depositary.

4. If personal property is involved, its value shall be provisionally ascertained

and the amount to be deposited shall be promptly fixed by the court.

The recognition of the requirements of the public good allows the expropriator to
take or enter upon the possession of the real property upon the filing of the complaint,
or at any time after the filing of the complaint after due notice to the defendant.

However, it is not the mere filing of the complaint which entitles the plaintiff to
take or enter upon the possession of the real property subject of the complaint. Under
Sec. 2 of Rule 67, as presently written, in order to be entitled to the possession of the
property, the plaintiff, upon the filing of the complaint or at any time thereafter, must
deposit with the proper government authority an amount equivalent to the assessed
value of the property for purposes of taxation with an authorized government depository,
which deposit shall be held by the bank subject to the orders of the court.

If personal property is involved, which has no assessed value, the amount to be

deposited shall be fixed by the court after the value of the property is provisionally
ascertained. (Sec. 2, Rule 67)

Effect of making the required deposit. (Bar 2011) Course of action of the court upon
deposit?

After such deposit is made the court, it shall:

1. Order the sheriff or other proper officer to forthwith place the plaintiff in
possession of the property involved and
 2. Promptly submit a report thereof to the court with service of copies to the
parties.

The deposit having been made, the court shall order the sheriff or other proper
officer to place the plaintiff in possession of the property involved and promptly submit a
report to the court. Copies of the report are to be served to the parties (Sec. 2, Rule 67)

Note that Sec. 2 of Rule 67 does not require a prior hearing before immediate
possession can be granted to the plaintiff. A fair reading of the provision discloses that
the said provision merely requires notice to the defendant and the making of the
required deposit.

Jurisprudence confirms the above rule as it declares that prior hearing is not
required before the Republic of the Philippines can be granted immediate possession of
the property. The defenses by the owner against immediate possession can be
considered on the trial on the merits. All that is required is notice to the owner and the
deposit (San Diego v. Valdellon, 206 SCRA 305)

What are the requirements in case the defendant has no objection or defense to
the taking of the property?

If a defendant has no objection or defense to the action or the taking of his

property, he may:

1. File and serve a notice of appearance and a manifestation to that effect,

specifically designating or identifying the property in which he claims to be
interested, within the time stated in the summons.

2. Thereafter, he shall be entitled to notice of all proceedings affecting the same.

What is the remedy of the defendant in case he has objections?

If a defendant has any objection to the filing of or the allegations in the complaint,
or any objection or defense to the taking of his property, he shall have the following
remedy:

1. Serve his answer within the time stated in the summons. The answer shall
specifically designate or identify the property in which he claims to have
an interest, state the nature and extent of the interest claimed, and

2. Adduce all his objections and defenses to the taking of his property.

Can a counterclaim, cross claim or third party complaint be filed in an action for
expropriation?

No counterclaim, cross-claim or third-party complaint shall be alleged or allowed

in the answer or any subsequent pleading.
What are the effects of failure of the defendant to raise defences and objections?

1. A defendant waives all defenses and objections not so alleged;

2. The court, in the interest of justice, may permit amendments to the answer
to be made not later than ten (10) days from the filing thereof.

Remedy of the defendant on the issue of just compensation?

At the trial of the issue of just compensation whether or not a defendant has
previously appeared or answered,

1. He may present evidence as to the amount of the compensation to be

paid for his property, and

2. He may share in the distribution of the award. (n)

When can the court issue an order of expropriation?

If the objections to and the defenses against the right of the plaintiff to
expropriate the property are overruled, or when no party appears to defend as required
by this Rule, the court may issue:

1. An ORDER OF EXPROPRIATION declaring that the plaintiff has a lawful

right to take the property sought to be expropriated, for the public use or
purpose described in the complaint,

2. Upon the payment of just compensation to be determined as of the date of

the taking of the property or the filing of the complaint, whichever came
first.

What is the remedy of the defendant in case of issuance of a final order of

expropriation?

A final order sustaining the right to expropriate the property may be appealed by
any party aggrieved thereby.

How to appeal the final order?

The mode of appeal from the judgment or final order issued by the court in
expropriation proceedings is by way of notice and record on appeal within thirty (30)
days from notice of judgment or final order since it involves multiple appeals under Sec.
2 of Rule 41.

What is the effect of the filing of an appeal from the final order of expropriation?
 By express provision of Sec. 4, such appeal, however, shall not prevent the court
from determining the just compensation to be paid.

What are the courses of action after the issuance of an order of expropriation?

Upon the rendition of the order of expropriation, the court shall:

1. Appoint not more than three (3) competent and disinterested persons as
commissioners to ascertain and report to the court the just compensation
for the property sought to be taken.

2. The order of appointment shall designate the time and place of the first
session of the hearing to be held by the commissioners and specify the
time within which their report shall be submitted to the court.

3. Copies of the order shall be served on the parties.

What is the remedy in the appointment of the commissioner?

A party may file with the court his objections to the appointment of any of the
commissioners shall be filed with the court within ten (10) days from service, and shall
be resolved within thirty (30) days after all the commissioners shall have received
copies of the objections.

What are the proceedings before the commissioner

Before entering upon the performance of their duties, the commissioners shall
take and subscribe an oath that they will faithfully perform their duties as
commissioners, which oath shall be filed in court with the other proceedings in the case.

What are the duties and functions of a commissioner?

1. Evidence may be introduced by either party before the commissioners who are
authorized to administer oaths on hearings before them,

2. The commissioners shall, unless the parties consent to the contrary, after due notice
to the parties, to attend, view and examine the property sought to be expropriated and
its surroundings, and may measure the same, after which either party may, by himself
or counsel, argue the case.

3. The commissioners shall assess the consequential damages to the property not
taken and deduct from such consequential damages the consequential benefits to be
derived by the owner from the public use or purpose of the property taken, the operation
of its franchise by the corporation or the carrying on of the business of the corporation
or person taking the property. But in no case shall the consequential benefits assessed
exceed the consequential damages assessed, or the owner be deprived of the actual
value of his property so taken.
What will the court do in relation to the functions of the commissioner?

The court after the appointment of the commissioner and the conduct of the
proceedings it may:

1. Order the commissioners to report when any particular portion of the real estate
shall have been passed upon by them,

2. Render judgment upon such partial report,

3. Direct the commissioners to proceed with their work as to subsequent portions of the
property sought to be expropriated, and

4. May from time to time so deal with such property.

What are the duties and functions of the commissioner?

The commissioners in the performance of his functions as mandated by the court

shall:

1. Make a full and accurate report to the court of all their proceedings, and

2. Such proceedings shall not be effectual until the court shall have accepted their
report and rendered judgment in accordance with their recommendations.

When to file the commissioner’s report? Objections.

Except as otherwise expressly ordered by the court, such report shall be filed

1. Within sixty (60) days from the date the commissioners were notified of their
appointment, which time may be extended in the discretion of the court.

2. Upon the filing of such report, the clerk of the court shall serve copies thereof on all
interested parties, with notice that they are allowed ten (10) days within which to file
objections to the findings of the report, if they so desire.

What action that can be done by the court after submission of the report?

Upon the expiration of the period of ten (10) days referred to in the preceding
section, or even before the expiration of such period but after all the interested parties
have filed their objections to the report or their statement of agreement therewith, the
court may, after hearing,

1. Accept the report and render judgment in accordance therewith,

2. For cause shown, it may recommit the same to the commissioners for further report
of facts,

3. It may set aside the report and appoint new commissioners;

4. It may accept the report in part and reject it in part and

5. It may make such order or render such judgment as shall secure to the plaintiff the
property essential to the exercise of his right of expropriation, and to the defendant just
compensation for the property so taken.

What is the duty of the court in case of uncertain ownership or conflicting claims
are involved?

If the ownership of the property taken is uncertain, or there are conflicting claims
to any part thereof, the court may

1. Order any sum or sums awarded as compensation for the property to be paid to the
court for the benefit of the person adjudged in the same proceeding to be entitled
thereto.

2. But the judgment shall require the payment of the sum or sums awarded to either
the defendant or the court before the plaintiff can enter upon the property, or retain it for
the public use or purpose if entry has already been made.

What are the rights of the plaintiff after the judgment and the payment of just
compensation?

Upon payment by the plaintiff to the defendant of the compensation fixed by the
judgment, with legal interest thereon from the taking of the possession of the property,
or after tender to him of the amount so fixed and payment of the costs, the plaintiff shall
have the following rights:

1. To enter upon the property expropriated and to appropriate it for the public use or
purpose defined in the judgment,

2. To retain it should he have taken immediate possession thereof under the provisions
of section 2 hereof.

If the defendant and his counsel absent themselves from the court, or decline to
receive the amount tendered, the same shall be ordered to be deposited in court and
such deposit shall have the same effect as actual payment thereof to the defendant or
the person ultimately adjudged entitled thereto.

What is the effect of the filing of an appeal from the judgment of the court?

In case of appeal from the judgment of the court, it shall have the effect:

1. The right of the plaintiff to enter upon the property of the defendant and appropriate
the same for public use or purpose shall not be delayed by an appeal from the
judgment.
2. If the appellate court determines that plaintiff has no right of expropriation, judgment
shall be rendered ordering the Regional Trial Court to forthwith enforce the restoration
to the defendant of the possession of the property, and to determine the damages which
the defendant sustained and may recover by reason of the possession taken by the
plaintiff.

What is the rule on the payment of cost of the proceedings?

The following shall be observed on the payment of the cost of the proceedings:

1. The fees of the commissioners shall be taxed as a part of the costs of the
proceedings.

2. All costs, except those of rival claimants litigating their claims, shall be paid by the
plaintiff,

unless an appeal is taken by the owner of the property and the judgment is affirmed, in
which event the costs of the appeal shall be paid by the owner

What does the judgment in expropriation proceedings contains?

The judgment entered in expropriation proceedings shall state definitely, by an

adequate description,

1. The particular property or interest therein expropriated, and

2. The nature of the public use or purpose for which it is expropriated.

What is the effect of the recording of the judgment in the registry of Deeds?

When real estate is expropriated, a certified copy of such judgment shall be

recorded in the registry of deeds of the place in which the property is situated, and its
effect shall be to vest in the plaintiff the title to the real estate so described for such
public use or purpose.

What are the powers of the guardian in an expropriation proceeding?

The guardian or guardian ad litem of a minor or of a person judicially declared to

be incompetent may, with the approval of the court first had, do and perform on behalf
of his ward any act, matter, or thing respecting the expropriation for public use or
purpose of property belonging to such minor or person judicially declared to be
incompetent, which such minor or person judicially declared to be incompetent could do
in such proceedings if he were of age or competent.

BAR 2009

The Republic of the Philippines, through the Department of Public Works and
Highways (DPWH) filed with the RTC a complaint for the expropriation of the parcel of
land owned by Jovito, the land to be used as an extension of the national highway.
Attached to the complaint is a bank certificate showing that there is, on deposit with the
Land Bank of the Philippines, an amount equivalent to the assessed value of the
property. Then DPWH filed a motion for the issuance of a writ of possession. Jovito filed
a motion to dismiss the complaint on the ground that there are other properties which
would better serve the purpose.

(a) Will Jovito’s motion to dismiss proper? Explain.

SUGGESTED ANSWER: NO. The present Rule of Procedure governing expropriation

(Rule 67), as amended by the 1997 Rules of Civil Procedure, requires the defendant to
file an Answer, which must be filed on or before the time stated in the summons.
Defendant’s objection and defences should be pleaded in his Answer not in a motion.

(b) As Judge, will you grant the writ of possession prayed for by the
DPWH? Explain.

SUGGESTED ANSWER: NO. The expropriation here is governed by R.A. No. 8974
which requires payment of the Zonal value of the property as determined by the BIR, to
be the amount deposited. Before such deposit is made, the national government thru
the DPWH has no right to take possession of the property under expropriation.

BAR 2006

May Congress enact a law providing that a 5,000 square meter lot, a part of the
UST compound in Sampaloc, Manila, be expropriated for the construction of a park in
honor of former City Mayor Arsenio Lacson? As compensation to UST, the City of
Manila shall deliver its 5-hectare lot in Sta. Rosa, Laguna originally intended as a
residential subdivision for the Manila City Hall employees. Explain.

SUGGESTED ANSWER:

Yes, Congress can enact a law to expropriate property, but it cannot limit just
compensation. The determination of just compensation is a judicial function and
Congress may not supplant or prevent the exercise of judicial discretion to determine
just compensation (EPZA v. Dulay, 149 SCRA 305. Under Sec. 5, Rule 67 of the Rules
of Court, the ascertainment of just compensation requires the evaluation of three
commissioners.

Distinction between Expropriation proceeding (Rule 67) and Escheat proceeding

(Rule 91)

Expropriation proceeding under Rule 67 should be distinguished from Escheat

proceeding under Rule 91 in the following manner:

1. Expropriation proceeding is a special civil action while Escheat is a special

proceeding;
2. In expropriation proceeding it is filed for the purpose of taking of property for public
use; while escheat proceeding is intended to revert back the property of the decedent
leaving no heir to succeed or person by law entitled to it;

3. In expropriation proceeding there is a requirement of payment of just compensation;

while in escheat proceeding, it is not required;

4. Venue of expropriation is the Regional Trial Court where the property to be

escheated is located; while in escheat proceeding the venue lies with the Regional Trial
Court where the deceased last resided or where his estate may be found if he is
residing outside the Philippines.

Can you refuse Eminent Domain?

In most cases, it is not possible to refuse an eminent domain action. The power
of Eminent Domain is a legal right of the government. However, you can oppose the
government’s requests if they are not acting justly, and can refuse their compensation
offers to ensure you receive a fair sum.

RULE 68 (Complaint)

FORECLOSURE OF REAL ESTATE MORTGAGE

Which court has jurisdiction over an action for foreclosure of real estate
mortgage?

The court which has jurisdiction over an action for foreclosure of real estate
mortgage shall be the Regional Trial bCourt or the Metropolitan Trial Court or Municipal
Trial Court or Municipal Circuit Trial Court based on its assessed value. Sec. 19 of BP
129 provides that:

“In all civil actions which involve title to, or possession of, real property, or any
interest therein, where the assessed value of the property involved exceeds Twenty
thousand Pesos (P20, 000. 00) or, for civil actions in Metro Manila, where such value
exceeds Fifty Thousand pesos (P50, 000. 00)” (See Sec. 3, R.A. No. 7691)

Venue in an action for foreclosure of real estate mortgage?

An action for foreclosure of mortgage is a real action which involves interest in a

real property, hence the venue is where the property is located or any portion thereof is
situated.

What are the requirements for the commencement of an action for foreclosure of
real estate mortgage?
 Under Section 1, Rule 68 of the Rules of Court, in an action for the foreclosure of
a mortgage or other encumbrance upon real estate, the plaintiff must allege the
following:

1. The complaint shall set forth the date and due execution of the mortgage;
2. Its assignments, if any;
3. The names and residences of the mortgagor and the mortgagee;
4. A description of the mortgaged property;
5. A statement of the date of the note or other documentary evidence of the
obligation secured by the mortgage,
6. The amount claimed to be unpaid thereon; and

The names and residences of all persons having or claiming an interest in the property
subordinate in right to that of the holder of the mortgage, all of whom shall be made
defendants in the action.

What are the actions of the court if it finds the allegations to be true?

If upon the trial in such action the court shall find the facts set forth in the
complaint to be true,

1. It shall ascertain the amount due to the plaintiff upon the mortgage debt or obligation,
including interest and other charges as approved by the court, and costs,

2. It shall render judgment for the sum so found due and order that the same be paid to
the court or to the judgment obligee within a period of not less than ninety (90) days nor
more than one hundred twenty (120) days from the entry of judgment, and

3. That in default of such payment the property shall be sold at public auction to satisfy
the judgment.

The judgment of the court on the above matters is considered a final adjudication
of the case and, hence, subject to challenge by the aggrieved part by appeal or other
post-judgment remedies.

The period given in the rule is not merely a procedural requirement; it is a

substantive right granted to the mortgage debtor as the last opportunity to pay the debt
and save his mortgaged property from final disposition at the foreclosure sale. It is one
of the two steps necessary to destroy what in law is known as the mortgagor’s “equity of
redemption,” the other being the sale. It may not be omitted. Again, it was ruled that this
is a substantial requirement which cannot be omitted (Rosales v. Court of Appeals, 353
SCRA 179)

Equity of redemption (BAR 2012)

The period mentioned in the judgment of the court is the period within which the
mortgagor may start exercising his “equity of redemption” which is the right to extinguish
the mortgage and retain ownership of the property by paying the debt. The payment
may be made even after the foreclosure sale provided it is made before the sale is
confirmed by the court (GSIS v. CFI, 175 SCRA 19)

Distinction between right of redemption and equity of redemption

The distinctions between right of redemption and equity of redemption in relation

to mortgage are as follows:

1. The right of redemption exists in extrajudicial foreclosure; while equity of redemption

exists only in judicial foreclosure.

(a) The right of legal pre-emption or redemption shall not be exercised

except within thirty (30) days from the notice in writing by the prospective
vendor, or by the vendor, as the case may be. The deed of sale shall not
be recorded in the Registry of Property, unless accompanied by an
affidavit of the vendor that he has given written notice thereof to all
possible redemptioners. (Barcellano v. Banas, G.R. No. 165287,
September 14, 2011).

2. In extrajudicial foreclosure, the mortgagor (or his successor in interest) may exercise
his right or redemption within one (1) year from the registration of the sale in the Office
of the Registry of Deeds; while in judicial foreclosure, the mortgagor ( or his successor
in interest) may exercise his equity of redemption during the period of not less than 90
days nor more than 120 days from entry of judgment of foreclosure or even after the
foreclosure sale but before the judicial confirmation of the same.

What is the effect if the defendant failed to pay the amount of judgment?

When the defendant, after being directed to do so as provided in the next

preceding section, fails to pay the amount of the judgment within the period specified
therein, the court, upon motion, shall

1. Order the property to be sold in the manner and under the provisions of Rule 39 and
other regulations governing sales of real estate under execution.

2. Such sale shall not affect the rights of persons holding prior encumbrances upon the
property or a part thereof, and

3. When confirmed by an order of the court, also upon motion, it shall operate to divest
the rights in the property of all the parties to the action and to vest their rights in the
purchaser, subject to such rights of redemption as may be allowed by law.

What are the rights of the purchaser in the auction sale?

Upon the finality of the order of confirmation or upon the expiration of the period
of redemption when allowed by law, the purchaser at the auction sale or last
redemptioner, if any, shall be
1. Entitled to the possession of the property unless a third party is actually holding the
same adversely to the judgment obligor.

2. The said purchaser or last redemptioner may secure a writ of possession, upon
motion, from the court which ordered the foreclosure.

How will the proceeds of the sale be disposed of?

The amount realized from the foreclosure sale of the mortgaged property shall,
after deducting the costs of the sale, be

1. Paid to the person foreclosing the mortgage;

2. When there shall be any balance or residue, after paying off the mortgage debt due,
the same shall be paid to junior encumbrancers in the order of their priority, to be
ascertained by the court, or
3. If there be no such encumbrancers or there be a balance or residue after payment to
them, then to the mortgagor or his duly authorized agent, or to the person entitled to it.

How to proceed with the sale if the debts are not all due?

If the debt for which the mortgage or encumbrance was held is not all due as
provided in the judgment:

1. As soon as a sufficient portion of the property has been sold to pay the total amount
and the costs due, the sale shall terminate;

2. Afterwards as often as more becomes due for principal or interest and other valid
charges, the court may, on motion, order more to be sold.

3. If the property cannot be sold in portions without prejudice to the parties, the whole
shall be ordered to be sold in the first instance, and the entire debt and costs shall be
paid, if the proceeds of the sale are sufficient therefore, there being a rebate of interest
where such rebate is proper.

What are the remedies in case of balance due to the plaintiff after the sale of the
mortgaged property?

If upon the sale of any real property as provided in the next preceding section
there be a balance due to the plaintiff after applying the proceeds of the sale, the court,
upon motion, shall

1. Render judgment against the defendant for any such balance for which, by the
record of the case, he may be personally liable to the plaintiff,

2. Execution may issue immediately if the balance is all due at the time of the rendition
of the judgment;
3. Otherwise; the plaintiff shall be entitled to execution at such time as the balance
remaining becomes due under the terms of the original contract, which time shall be
stated in the judgment.

What are the proper actions of the mortgagee after judgment?

After judgment the plaintiff may:

1. File a certified copy of the final order of the court confirming the sale shall be
registered in the registry of deeds.

2. If no right of redemption exists, the certificate of title in the name of the

mortgagor shall be cancelled, and a new one issued in the name of the purchaser.

What are the effects on the registration of the judgment if there is a right of
redemption existing?

Where a right of redemption exists, it has the following effects on the registration
of judgment:

1. The certificate of title in the name of the mortgagor shall not be cancelled,

2. The certificate of sale and the order confirming the sale shall be registered and a
brief memorandum thereof made by the registrar of deeds upon the certificate of title.

3. In the event the property is redeemed, the deed of redemption shall be registered
with the registry of deeds, and a brief memorandum thereof shall be made by the
registrar of deeds on said certificate of title.

What is the effect if the property is not redeemed?

If the property is not redeemed, it has the following effect:

1. The final deed of sale executed by the sheriff in favor of the purchaser at the
foreclosure sale shall be registered with the registry of deeds;

2. Whereupon the certificate of title in the name of the mortgagor shall be cancelled
and a new one issued in the name of the purchaser.

How will the property foreclosed be used during the pendency of the redemption?

Until the expiration of the time allowed for redemption, the court may, as in other
proper cases,

1. Restrain the commission of waste on the property by injunction, on the application of

the purchaser or the judgment obligee, with or without notice;

2. It is not waste for a person in possession of the property at the time of the sale, or
entitled to possession afterwards,
 3. During the period allowed for redemption, to continue to use it in the same manner
in which it was previously used, or

4. To use it in the ordinary course of husbandry; or

5. To make the necessary repairs to buildings thereon while he occupies the property.
(33a)

What is the right of the purchaser or redemptioner over the rents, earnings of the
property during the redemption period?

The purchaser or a redemptioner shall:

1. They are not be entitled to receive the rents, earnings and income of the property
sold on execution, or the value of the use and occupation thereof when such property is
in the possession of a tenant.

2. All rents, earnings and income derived from the property pending redemption shall
belong to the judgment obligor until the expiration of his period of redemption.

What are the remedies if the sale is not effective?

If the purchaser of real property sold on execution, or his successor in interest,

fails to recover the possession thereof, or is evicted therefrom, in consequence of
irregularities in the proceedings concerning the sale, or because the judgment has been
reversed or set aside, or because the property sold was exempt from execution, or
because a third person has vindicated his claim to the property, has the following
remedies:

1. He may on motion in the same action or in a separate action recover from the
judgment obligee the price paid, with interest, or so much thereof as has not been
delivered to the judgment obligor, or

2. He may, on motion, have the original judgment revived in his name for the whole
price with interest, or so much thereof as has been delivered to the judgment obligor.
The judgment so revived shall have the same force and effect as an original judgment
would have as of the date of the revival and no more.

BAR QUESTION 1999

A purchased a lot from B for Php1, 500, 000. 00. He gave a down payment of
php500, 000. 00, signed a promissory note payable thirty (30) days after date, and as
security for the settlement of the obligation, mortgaged the same lot to B. when the note
fell due and A failed to pay, B commenced suit to recover from A the balance of php1
million. After securing a favourable judgment on his claim, B brought another action
against A in the same court to foreclose the mortgage. A now files a motion to dismiss
the second action on the ground of bar by a prior judgment. Rule on the motion.

SUGGESTED ANSWER:

The motion of A should be granted. The failure to pay a debt secured by a

mortgage constitutes but a single cause of action. The creditor cannot file an action to
collect the debt and thereafter file another action to foreclose the mortgage. The filing of
the second action violates the rule against splitting a single cause of action.

BAR QUESTION

In an action for foreclosure of real estate mortgage, judgment was rendered

against A, the mortgagor-debtor. As A failed to pay the mortgage debt plus interest
thereon within the period stated in the judgment, the mortgaged property was sold at
public auction on October 1, 1984 at a price less than the amount of the judgment.

On October 3, 1984, A was able to raise enough money to fully satisfy the
judgment, including all expenses of the sale of the mortgaged property.

Assuming that the mortgagor has no right of redemption under the law, what
steps should A take to protect his interest under the circumstances?

SUGGESTED ANSWER:

A should deposit the entire amount and all expenses of the sale with the court for
the satisfaction of the judgment before the court confirms the foreclosure sale. The
equity of redemption of the mortgagor may be exercised prior to the confirmation of the
sale. After its confirmation, no further redemption may be made.

BAR 2000

AB mortgaged his real property to CD. AB failed to pay his obligation and CD
filed an action for foreclosure of mortgage. After trial, the court issued an Order granting
CD’ s prayer for foreclosure of mortgage and ordering AB to pay CD the full amount of
the mortgage debt including interest and other charges not later than 120 days from
date of receipt of the Order. AB received the Order on August 10, 1999. No other
proceeding took place thereafter. On December 20, 1999, AB tendered the full payment
adjudged by the court to CD but the latter refused to accept it on the ground that the
amount was tendered beyond the 120-day period granted by the court. AB filed a
motion in the same court praying that CD be directed to receive the amount tendered by
him on the ground that the Order does not comply with the provisions of Sec. 2, Rule 68
which gives AB 120 days from entry of judgment, and not from date of receipt of the
Order. The court denied his motion on the ground that the Order had already become
final and can no longer be amended to conform to Sec. 2, Rule 68. Aggrieved, AB files
a petition for certiorari against the Court and CD. Will the petition for certiorari prosper?

SUGGESTED ANSWER:
 The petition will prosper. The period for payment is reckoned from the date of
entry of judgment, not from receipt of the Order of the court. Since no appeal was taken
from the judgment when AB received the notice of the Order on August 10, 1999, the
order became final on August 25, 1999 or 15 days thereafter. Under Sec. 2, Rule 36,
the date of finality of judgment or final order is also the date of its entry. The Order then
was deemed entered on August 25, 1999. The 120-day would have ended on
December 24, 1999.The tender of payment by AB on December 20, 1999 is well within
the period set under Sec. 2 of Rule 68.

Summary of distinctions between judicial foreclosure and extrajudicial

foreclosure of real estate mortgage

Judicial and extrajudicial foreclosures may be distinguished from each other, as

follows:

1. A judicial foreclosure is governed by Rules of Court; an extrajudicial foreclosure is

governed by Act 3135, as amended;

2. A judicial foreclosure involves the filing of an independent action; an extrajudicial

foreclosure does not require the filing of an action;

3. There is an equity of redemption in a judicial foreclosure and no right of redemption

except when the mortgagee is a banking institution; there is a right of redemption in
extrajudicial foreclosure of mortgage;

4. In a judicial foreclosure of mortgage, there could be a deficiency judgment rendered

by the court in the same proceedings; there can be no judgment for a deficiency in an
extrajudicial foreclosure because there is no judicial proceeding, although recovery of
the deficiency is allowed;

5. In a judicial foreclosure of mortgage, recovery of the deficiency can be done by mere

motion for a deficiency judgment; in an extrajudicial foreclosure of mortgage, the
recovery of the deficiency is through an independent action, and although nothing about
recovery of the deficiency is provided in Act 3135, there is no prohibition either.

RULE 69

PARTITION (Complaint)

Who may file an action for partition?

The action shall be brought by the person who has a right to compel the partition
of real estate (Sec 1, Rule 69) The plaintiff is a person who is supposed to be a co-
owner of the property or estate sought to be partitioned.
Who should be made defendants in actions for partition?

All persons considered as co-owners and interested in the property to be

partitioned are indispensable parties to the action and must be impleaded. [Sepulveda
v. Pelaez (2005)]

Which court has jurisdiction over an action for partition?

In case the subject matter of the action is a PERSONAL PROPERTY:

1. If the value of the personal property exceeds three hundred thousand pesos
(P300, 000. 00) outside of Metro Manila or four hundred thousand pesos (P400, 000.
00) within Metro Manila, jurisdiction lies with the Regional Trial Court;

2. If the value of the personal property does not exceed three hundred thousand
pesos (P300, 000. 00) outside of Metro Manila or four hundred thousand pesos (P400,
000. 00) within Metro Manila, jurisdiction lies with the Metropolitan Trial Court, Municipal
Trial Court, Municipal Circuit Trial Court.

When should an action for partition be filed?

No co-owner shall be obliged to remain in the co-ownership. Each co-owner may

demand at any time the partition of the thing owned in common, insofar as his share is
concerned. (Art. 494, Civil Code)

Note:

A reading of the provisions of Rule 6 of the Rules of Court, would show that it is
silent as to the concept of “Summons” and “The period of Time” the defendant should
file his/her Answer. So, in this case, the provisions on Ordinary Civil Action shall be
applied by analogy or in a suppletory character and whenever practicable and
convenient (Section 4, Rule 1, Rules of Court). Accordingly, summons shall be served
upon the defendant, requiring his to file his answer within thirty (30) days from receiot
thereof (Section 1, Rule 11), incorporating therein his counterclaim and affirmative
defences, if any. If the defendant fails to file his answer within the reglemenraty period,
on motion, he may be declared in default. Upon receipt of the defendant’s answer, and
if no reply has been filed by the plaintiff, then the court shall set the case for pre-trial
conference, and afterwhich, trial shall ensue.

Does an action for partition prescribe?

● The rule is that the action for partition does not prescribe so long as the co-ownership
is expressly or impliedly recognized (Art. 494, Civil Code).

● The right of action to demand partition does not prescribe [De Castro v. Echarri
(1911)], EXCEPT where one of the interested parties openly and adversely occupies
the property without recognizing the co-ownership [Cordova v. Cordova (1958)] in which
case, acquisitive prescription may set in.

● If a co-owner repudiates the co-ownership and makes known such repudiation to the
other co-owners, then partition is no longer a proper remedy of the aggrieved co-owner.
He should file an accion reivindicatoria, which is prescriptible. [Roque v. IAC (1988)]

What must be alleged in the complaint?

1. The plaintiff shall state in his complaint, the nature and extent of his title, an adequate
description of the real estate of which partition is demanded, and shall join as
defendants all other persons interested in the property (Sec. 1, Rule 69).

2. He must also include a demand for the accounting of the rents, profits and other
income from the property which he may be entitled to (Sec. 8, Rule 69). These cannot
be demanded in another action because they are parts of the cause of action for
partition. They will be barred if not set up in the same action pursuant to the rule against
splitting a single cause of action.

● When the allegations of the complaint allege that the plaintiff asserts exclusive
ownership of the party sought to be partitioned, the nature of the action is not one for
partition. It is an action for the recovery of property.

How shall partition be made?

Partition may be made in either of two ways:

1. By agreement of the parties (extrajudicial partition); or

2. By judicial proceedings under the Rules of Court (Art. 496, Civil Code).

● If the co-owners cannot agree on the partition of the property, the only recourse is the
filing of an action for judicial partition.

What are the two stages in every action for partition?

1. Determination of the propriety of partition - This involves a determination of

whether the subject property is owned in common and whether all the co-owners are
made parties in the case. The order may also require an accounting of rents and profits
recovered by the defendant. This order of partition is appealable. [Miranda v. Court of
Appeals(1976)]

If not appealed, then the parties may partition the common property in the way they
want. If they cannot agree, then the case goes into the second stage. However, the
order of accounting may in the meantime be executed. [De Mesa v. CA (1994)

What are the instances when a co-owner may not demand partition?
1. There is an agreement among the co-owners to keep the property undivided for a
certain period of time but not exceeding 10 years (Art. 494, Civil Code).

2. When partition is prohibited by the donor or testator for a period not exceeding 20
years (Art. 494, Art. 1083, Civil Code).

3. When partition is prohibited by law [ex. ACP, party wall] (Art. 494, Civil Code).

4. When the property is not subject to a physical division and to do so would render it
unserviceable for the use for which it is intended (Art. 495, Civil Code).; or

5. When the condition imposed upon voluntary heirs before they can demand partition
has not yet been fulfilled (Art. 1084, Civil Code).

What is the course of action of the court in case of a complaint for partition?

If after the trial the court finds that the plaintiff has the right thereto, it shall:

1. Order the partition of the real estate among all the parties in interest.

2. Thereupon the parties may, if they are able to agree, make the partition among
themselves by proper instruments of conveyance, and

3. The court shall confirm the partition so agreed upon by all the parties, and such
partition, together with the order of the court confirming the same, shall be recorded in
the registry of deeds of the place in which the property is situated.

What is the remedy of the aggrieved party?

A final order decreeing partition and accounting may be appealed by any party
aggrieved thereby. This order of partition, being a final order with respect to propriety of
partition may be the subject of appeal before the appellate court by way of filing a
Notice of Appeal and Records on Appeal, which should be filed within thirty (30) days as
provided for by the Rules of Court.

What are the actions of the court in case the parties failed to agree to partition the
property?

If the parties are unable to agree upon the partition, the court shall:

1.Appoint not more than three (3) competent and disinterested persons as
commissioners;

2. Ordering the commissioners to make the partition,

3. Commanding them to set off to the plaintiff and to each party in interest such part
and proportion of the property as the court shall direct.
What is the requirement before the commissioners can assume their functions?

Before making such partition; the commissioners shall:

1. Take and subscribe an oath that they will faithfully perform their duties as
commissioners,

2. Such oath shall be filed in court with the other proceedings in the case.

What are the duties of the commissioners?

In making the partition, the commissioners shall perform the following duties:

1. View and examine the real estate, after due notice to the parties to attend at such
view and examination,

2. Shall hear the parties as to their preference in the portion of the property to be set
apart to them and the comparative value thereof, and

3. Shall set apart the same to the parties in lots or parcels as will be most advantageous
and equitable, having due regard to the improvements, situation and quality of the
different parts thereof.

What is the recourse of the court in case the real property is indivisible?

When it is made to appear to the commissioners that the real state, or a portion
thereof, cannot be divided without prejudice to the interests of the parties, the court
may:

1. Order it assigned to one of the parties willing to take the same, provided he pays to
the other parties such amount as the commissioners deem equitable,

2. Unless one of the interested parties asks that the property be sold instead of being
so assigned, in which case the court shall order the commissioners to sell the real
estate at public sale under such conditions and within such time as the court may
determine.

When division would be prejudicial

If the commissioners determine that the property cannot be divided if the

interests of the parties will be prejudiced, the court may order that it be assigned to one
of the parties willing to take the same, provided that such party pays to the other parties
such amount as the commissioners deem equitable. Instead of the property being so
assigned, an interested party may ask that the same be sold, in which case, the court
shall order the commissioners to sell the property at a public sale.

What are the courses of action of the court on the report of the commissioner?
 Upon the expiration of the period of ten (10) days referred to in the preceding
section or even before the expiration of such period but after the interested parties have
filed their objections to the report or their statement of agreement therewith the court
may:

1. Upon hearing, accept the report and render judgment in accordance therewith,

2. For cause shown recommit the same to the commissioners for further report of facts;

3. Set aside the report and appoint new commissioners; or

4. Accept the report in part and reject it in part; and

5. May make such order and render such judgment as shall effectuate a fair and just
partition of the real estate, or of its value, if assigned or sold as above provided,
between the several owners thereof.

What is the rule on the rents and profits earned by the property?

In an action for partition in accordance with this Rule, a party shall:

1. Recover from another his just share of rents and profits received by such other party
from the real estate in question, and

2. The judgment shall include an allowance for such rents and profits.

What does the judgment of the court contains?

If actual partition of property is made, the judgment shall:

1. State definitely, by metes and bounds and adequate description,

2. The particular portion of the real estate assigned to each party,

3. The effect of the judgment shall be to vest in each party to the action in severalty the
portion of the real estate assigned to him.

4. If the whole property is assigned to one of the parties upon his paying to the others
the sum or sums ordered by the court, the judgment shall state the fact of such payment
and of the assignment of the real estate to the party making the payment, and the effect
of the judgment shall be to vest in the party making the payment the whole of the real
estate free from any interest on the part of the other parties to the action.

5. If the property is sold and the sale confirmed by the court, the judgment shall state
the name of the purchaser or purchasers and a definite description of the parcels of real
estate sold to each purchaser, and the effect of the judgment shall be to vest the real
estate in the purchaser or purchasers making the payment or payments, free from the
claims of any of the parties to the action.
What are the effects in case other person has rights over the property?

Nothing in this Rule contained shall be construed so as to:

1. Prejudice, defeat, or destroy the right or title of any person claiming the real estate
involved by title under any other person, or

2. By title paramount to the title of the parties among whom the partition may have
been made,

3. Nor so as to restrict or prevent persons holding real estate jointly or in common from
making an amicable partition thereof by agreement and suitable instruments of
conveyance without recourse to an action.

Can there be partition if there are expenses to be paid from the estate?

In a situation where there remains an issue as to the expenses chargeable to the

estate, partition is inappropriate. The determination of the expenses like those related to
the deceased's final illness and burial which are chargeable to the estate cannot be
done in an action in partition. Thus, the heirs have to first submit their father's estate to
settlement because in estate settlement proceedings, there is a proper procedure for
the accounting of all expenses for which the estate must answer. If it is any consolation
at all to petitioner, the heirs or distributees of the properties may take possession
thereof even before the settlement of accounts, as long as they first file a bond
conditioned on the payment of the estate's obligations (Figuracion-Gerilla v. Vda. de
Figuracion, 499 SCRA 484).

RULE 70

FORCIBLE ENTRY AND UNLAWFUL DETAINER

Distinction between forcible entry and unlawful detainer.

1. In FORCIBLE ENTRY, the possession of the land by the defendant is unlawful from
the beginning as he acquires possession thereof by force, intimidation, threat, strategy,
or stealth; while in UNLAWFUL DETAINER, the possession of the defendant is
inceptively lawful but it becomes illegal by reason of the termination of his right to the
possession of the property under his contract with the plaintiff.

2. In FORCIBLE ENTRY, the law does not require a previous demand to vacate the
premises; but in UNLAWFUL DETAINER, the plaintiff must first make such demand
which is jurisdictional in nature.

3. In FORCIBLE ENTRY, the plaintiff must prove that he was in prior physical
possession of the premises until he was deprived thereof by the defendant; in
UNLAWFUL DETAINER, the plaintiff need not have been in prior physical possession.
 4. In FORCIBLE ENTRY, the one (1) year period is generally counted from the date of
actual entry on the land; in UNLAWFUL DETAINER, from the date of last demand.

Who may initiate an action for forcible entry and unlawful detainer ?

Any person who is unlawfully deprived of the possession of a property may within
one (1) year after such unlawful deprivation or withholding of possession, bring an
action in the proper Municipal Trial Court against the person or persons unlawfully
withholding or depriving of possession, or any person or persons claiming under them,
for the restitution of such possession, together with damages and costs in the following
instances:

1. A person who is deprived of any land or building by force, intimidation, threat,

strategy, or stealth, or

2. A lessor, vendor, vendee, or other person against whom the possession of any land
or building is unlawfully withheld after the expiration or termination of the right to hold
possession, by virtue of any contract, express or implied, or the legal representatives or
assigns of any such lessor, vendor, vendee, or other person.

What is the requirement before filing an action against the lessee?

Unless otherwise stipulated, such action by the lessor shall be commenced with
the court after complying with the requirements set forth by the rules of serving:

1. Demand to pay or
2. Comply with the conditions of the lease and to vacate is made upon the lessee, or
3. By serving written notice of such demand upon the person found on the premises;
4. By posting such notice on the premises if no person be found thereon, and the
lessee fails to comply therewith after fifteen (15) days in the case of land or five (5) days
in the case of buildings.

What rule shall govern an action for forcible entry and unlawful detainer?

Except in cases covered by the agricultural tenancy laws or when the law
otherwise expressly provides, all actions for forcible entry and unlawful detainer,
irrespective of the amount of damages or unpaid rentals sought to be recovered, shall
be governed by the summary procedure hereunder provided. (n) (See: The Rule of
Summary Procedure, as amended)

What are the pleadings allowed in an action for forcible entry and unlawful
detainer?

The only pleadings allowed to be filed in an action for forcible entry and unlawful
detainer are as follows:
 1. The complaint,
2. Compulsory counterclaim and
3. Cross-claim pleaded in the answer, and
4. The answers thereto.

All pleadings shall be verified.

What are the courses of action of the court on the complaint?

The court may, from an examination of the allegations in the complaint and such
evidence as may be attached thereto,

1. Dismiss the case outright on any of the grounds for the dismissal of a civil action
which are apparent therein.

2. If no ground for dismissal is found, it shall forthwith issue summons. (n)

What is the duty of the court upon receipt of the complaint?

Under the Rules on Summary Procedure, the first duty of the judge upon the
filing of the case for ejectment is to examine the allegations in the complaint and the
evidence appended to it, and to dismiss the case outright on any of the grounds
apparent for the dismissal of a civil action. Section 1 of the Rules on Summary
Procedure, provides:

Section 4. Duty of Court. – After the court determines that the case falls under
summary procedure, it may, from an examination of the allegations therein and such
evidence as may be attached thereto, dismiss the case outright on any of the grounds
apparent therefrom for the dismissal of a civil action.

If no ground for dismissal is found it shall forthwith issue summons which shall
state that the summary procedure under this Rule shall apply.”

What are the remedies of the defendant upon receipt of the summons?

Within ten (10) days from service of summons, the defendant shall file

1. His answer to the complaint and

2. Serve a copy thereof on the plaintiff.

What is the rule in raising defences in the answer?

1. Affirmative and negative defenses not pleaded therein shall be deemed waived,
except lack of jurisdiction over the subject matter.

2. Cross-claims and compulsory counterclaims not asserted in the answer shall be

considered barred.
When to file the answer to counterclaims and cross-claims?

The answer to counterclaims or cross-claims shall be served and filed within ten
(10) days from service of the answer in which they are pleaded.

Defense of tenancy (BAR 2008)

Jurisdiction over the subject matter is determined by the allegations in the

complaint (Marino Jr v. Gamilla, 450 SCRA 198) Hence, the defense in the answer do
not determine jurisdiction

If the defendant raises the issue of tenancy as a defense and alleges lack of
jurisdiction because a tenancy case falls within the jurisdiction of the Department of
Agrarian Reforms adjudicatory Board (DARAB), it would be error for the court to dismiss
the complaint on that ground alone. The mere raising of the issue of tenancy does not
automatically divest the court of jurisdiction because, as earlier pointed out, the
jurisdiction of the court is determined by the allegations in the complaint and not
dependent upon the defences set up by the defendant.

Where tenancy is raised as a defense the court must conduct a hearing on the
matter to determine the veracity of the allegations of tenancy (Onquit v. Binamira-
Parcia, 27 SCRA 354)

While it is true that the jurisdiction of the court in a suit for ejectment or forcible
entry is determined by the allegations in the complaint, yet where the tenancy is averred
as a defense and, upon hearing, is shown to be the real issue, the court should dismiss
the case for want of jurisdiction (Ignacio v. CFI of Bulacan, 42 SCRA 89)

In an action for unlawful detainer, the defendant filed an answer with affirmative
defenses. A motion to hear the affirmative defenses was filed but it was denied.
Was the denial proper? Why?

Yes. Under the law, parties are not prohibited from filing an answer with
affirmative defenses in cases falling under the summary procedure. However, the trial
courts are enjoined from conducting a preliminary hearing on such affirmative defenses
to prevent unnecessary delay in disposing the case on its merits. It has been ruled that
under the summary procedure “xxx adjudication of cases can be done on the basis of
affidavits or other evidence. The proceeding must be as summary as possible in order
not to defeat the need to dispose ejectment cases in as fast a time as possible. The
reason is because cases involving possession of properties usually pose a threat to the
peace of society.” (Del Rosario vs. CA, 59 SCAD 113, 241 SCRA 519). Furthermore, it
was held that the rules are supposed to be interpreted strictly to attain the aims of
speedy and inexpensive disposition of cases. (Bayview Hotel, Inc., vs. CA, 83 SCAD
463.)

BAR 2018
Danielle, a Filipino citizen and permanent resident of Milan, Italy, filed with the Regional
Trial Court (RTC) of Davao City, where she owns a rest house, a complaint for
ejectment against Dan, a resident of Barangay Daliao, Davao City. Danielle's property,
which is located in Digos City, Davao del Sur, has an assessed value of PhP 25,000.
Appended to the complaint was Danielle's certification on non-forum shopping executed
in Davao City duly notarized by Atty. Dane Danoza, a notary public.

(a) Was there a need to refer the case to the Lupong Tagapamayapa for prior
barangay conciliation before the court can take cognizance of the case?

(b) Was the action properly instituted before the RTC of Davao City?

(c) Should the complaint be verified or is the certification sufficient?

(Wala answer sa notes)

Suggested answer: (source)

a) No. Since Danielle is not an actual resident of Barangay Daliao, or a barangay

adjacent thereto, this case is not subject to the Katarungang Pambarangay Law;
hence, prior referral to the Lupong Tagamayapa is not a pre-condition to the filing
of this case in court (Pascual v. Pascual, G.R. No. 157830, 17 November 2005).
b) No. Batas Pambansa Blg. 129 vests the Municipal Trial Court with the exclusive
jurisdiction over unlawful detainer cases, regardless of the assessed value of the
property; hence, the action was wrongfully instituted with the RTC.
c) Yes. Considering that the action is for unlawful detainer, the Rules on Summary
Procedure will apply. Rule II, Section 3(B) of the Rules on Summary Procedure
requires that all pleadings submitted to the court be verified; hence, a mere
certification on non-forum shopping, the complaint being an initiatory pleading is
insufficient.

What are the courses of action of the court in case of failure to file an answer?

Should the defendant fail to answer the complaint within the period above
provided, the court,

1. Motu proprio or on motion of the plaintiff, shall render judgment as may be

warranted by the facts alleged in the complaint and limited to what is prayed for therein.

2. The court may in its discretion reduce the amount of damages and attorney's fees
claimed for being excessive or otherwise unconscionable, without prejudice to the
applicability of section 3 (c), Rule 9 if there are two or more defendants.

When to conduct preliminary conference?

Not later than thirty (30) days after the last answer is filed, a preliminary
conference shall be held.
What is the rule on the applicability of Rule 18?

The provisions of Rule 18 on pre-trial shall be applicable to the preliminary

conference unless inconsistent with the provisions of this Rule.

What is the effect of failure on the part of the plaintiff to appear on the preliminary
conference?

The failure of the plaintiff to appear in the preliminary conference shall be cause
for:

1. The dismissal of his complaint.

2. The defendant who appears in the absence of the plaintiff shall be entitled to
judgment on his counterclaim in accordance with the next preceding section.

3. All cross-claims shall be dismissed.

What is the effect if the defendant failed to appear?

If a sole defendant shall fail to appear, it has the following effects:

1. The plaintiff shall likewise be entitled to judgment in accordance with the next
preceding section.

2. This procedure shall not apply where one of two or more defendants sued under a
common cause of action defense shall appear at the preliminary conference.

Can a preliminary conference be postponed?

No postponement of the preliminary conference shall be granted except for

highly meritorious grounds and without prejudice to such sanctions as the court in the
exercise of sound discretion may impose on the movant. (n)

Effect if defendant failed to appear in the preliminary conference; Effect if there

are two (2) or more defendants.

If a sole defendant shall fail to appear in the preliminary conference, the plaintiff
shall be entitled to judgment, however, “this rule (Sec. 7) shall not apply where one of
two or more defendants sued under a common cause of action, who had pleaded a
common defense, shall appear at the preliminary conference. “xxxx The Supreme Court
held that the afore-quoted provision does not apply in the case where petitioner is not a
co-defendant in the same case but actually sued in a separate case for ejectment
(Soriente v. The Estate of Arsenio E. Concepcion, G.R. No. 160239, November 25,
2009).

What does the order of preliminary conference contain?

 Within five (5) days after the termination of the preliminary conference, the court
shall issue an order stating the matters taken up therein, including but not limited to:

1. Whether the parties have arrived at an amicable settlement, and if so, the terms
thereof;

2. The stipulations or admissions entered into by the parties;

3. Whether, on the basis of the pleadings and the stipulations and admission made by
the parties, judgment may be rendered without the need of further proceedings, in which
event the judgment shall be rendered within thirty (30) days from issuance of the order;

4. A clear specification of material facts which remain converted; and

5. Such other matters intended to expedite the disposition of the case. (8, RSP)

What is the duty of the parties after receipt of the order of the court?

Within ten (10) days from receipt of the order (preliminary conference) mentioned
in the next preceding section, the parties shall:

1. Submit the affidavits of their witnesses and

2. Other evidence on the factual issues defined in the order, together with their position
papers setting forth the law and the facts relied upon by them.

Explain the importance of the Order issued by the court in a case governed by the
Rules on Summary Procedure setting forth the issues of the case after the
preliminary conference.

After the preliminary conference, the MTC should issue an order clearly and
distinctly setting forth the issues of the case and other matters taken up in the
conference. The order is an important part of the summary proceeding because it is the
receipt to the parties that the ten (10) days period wherein to submit the affidavits and
other evidence. Without such order, the ten (10) day period to submit affidavits and
position papers does not commence to run. Hence, any judgment rendered by the court
without such order is violative of due process as it denies the parties’ opportunity to
submit the affidavits and position papers. (Bayubay vs. CA, 43 SCAD 378).

When can the court render judgment?

The court shall render judgment after receipt of the position paper and affidavits of the
parties within:

1. Thirty (30) days after receipt of the affidavits and position papers, or

2. The expiration of the period for filing the same, the court shall render judgment.
When can the court conduct clarificatory hearing?

Should the court find it necessary to clarify certain material facts, during the said
period,

1. Issue an order specifying the matters to be clarified,

2. Require the parties to submit affidavits or other evidence on the said matters within
ten (10) days from receipt of said order.

3. Judgment shall be rendered within fifteen (15) days after the receipt of the last
affidavit or the expiration of the period for filing the same.

4. The court shall not resort to the foregoing procedure just to gain time for the
rendition of the judgment. (n)

What is the effect in case of non-compliance with referral for conciliation, in case
required?

Cases requiring referral for conciliation, where there is no showing of compliance

with such requirement, shall be

1. Dismissed without prejudice, and

2. May be revived only after that requirement shall have been complied with.

What are the prohibited pleadings and motion in an action for forcible entry and
unlawful detainer?

The following petitions, motions, or pleadings shall not be allowed:

1. Motion to dismiss the complaint except on the ground of lack of jurisdiction over the
subject matter, or failure to comply with section 12;
2. Motion for a bill of particulars;
3. Motion for new trial, or for reconsideration of a judgment, or for reopening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings, affidavits or any other paper;
6. Memoranda;
7. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued
by the court;
8. Motion to declare the defendant in default;
9. Dilatory motions for postponement;
10. Reply;
11. Third-party complaints;
12. Interventions. (19a, RSP)

An ejectment suit was filed by Andres against Barbo. The MTC issued an order
dismissing the action for lack of jurisdiction. A motion for reconsideration was
filed by the plaintiff which was granted. The RTC held otherwise, which was
sustained by the CA stating that it is a prohibited motion. Is the ruling proper?
Why?

No, because the motion for reconsideration was not covered by the prohibition
under the Rules on Summary Procedure. The motion for reconsideration that is
prohibited is one which seeks reconsideration of the judgment rendered by the court
after trial on the merits of the case. The decision dismissing the petitioner’s ejectment
case for lack of jurisdiction was not an adjudication on the merits. (Joven vs. CA, G.R.
No. 80739, August 20, 1992.)

BAR 2016

Laura was the lessee of an apartment unit owned by Louie. When the lease
expired, Laura refused to vacate the property. Her refusal prompted Louie to file an
action for unlawful detainer against Laura who failed to answer the complaint within the
reglementary period.

Louie then filed a motion to declare Laura in default. Should the motion be
granted? Explain your answer.

SUGGESTED ANSWER:

No, a Motion to declare the defendant in default is a prohibited motion in

ejectment cases pursuant to S13.8 R70.

What are the contents of the affidavit to be filed by the parties?

The affidavits required to be submitted under this Rule shall state:

1. Facts of direct personal knowledge of the affiants which are admissible in

evidence, and

2. Shall show their competence to testify to the matters stated therein.

What is the effect in case of non-compliance with the rule?

A violation of this requirement may:

1. Subject the party or the counsel who submits the same to disciplinary action, and

2. Shall be cause to expunge the inadmissible affidavit or portion thereof from the
record.

What is the remedy of the plaintiff to prevent further acts of dispossession?

The court may grant preliminary injunction, in accordance with the provisions of
Rule 58 hereof, to prevent the defendant from committing further acts of dispossession
against the plaintiff.
When can a preliminary mandatory injunction be issued?

A possessor deprived of his possession through forcible entry or unlawful

detainer, may within five (5) days from the filing of the complaint, present a motion in the
action for forcible entry or unlawful detainer for the issuance of a writ of preliminary
mandatory injunction to restore him in his possession. The court shall decide the motion
within thirty (30) days from the filing thereof.

What is the effect in case the issue of ownership is raised by the defendant?

When the defendant raises the defense of ownership in his pleadings and the
question of possession cannot be resolved without deciding the issue of ownership, the
issue of ownership shall be resolved only to determine the issue of possession.

Defense of ownership in an ejectment suit?

Where the cause of action in an ejectment suit is based on ownership of the

property, the defense that the defendant retained title or ownership is a proper subject
for determination by the MTC but only for the purpose of adjudicating the rightful
possessor of the property.

What does the judgment in ejectment include?

If after trial court finds that the allegations of the complaint are true, it shall render
judgment in favor of the plaintiff:

1. The restitution of the premises,

2. The sum justly due as arrears of rent or as reasonable compensation for the use and
occupation of the premises,

3. Attorney's fees and costs.

4. If it finds said allegations are not true, it shall render judgment for the defendant to
recover his costs;

5. If a counterclaim is established, the court shall render judgment for the sum found in
arrears from either party and award costs as justice requires. (6a)

What is the nature of the judgment in an action for forcible entry or unlawful
detainer?

The judgment rendered in an action for forcible entry or detainer shall be:

1. Conclusive with respect to the possession only and

2. Shall in no wise bind the title or affect the ownership of the land or building.
3. Such judgment shall not bar an action between the same parties respecting title to
the land or building.

What is the remedy from a judgment or final order?

The judgment or final order shall be appealable to the appropriate Regional Trial
Court which shall decide the same on the basis of the entire record of the proceedings
had in the court of origin and such memoranda and/or briefs as may be submitted by
the parties or required by the Regional Trial Court.

How to perfect an appeal in an action for forcible entry and unlawful detainer?

If judgment is rendered against the defendant, execution shall issue immediately

upon motion unless:

1. An appeal has been perfected;

2. The defendant to stay execution files a sufficient supersedeas bond, approved by

the Municipal Trial Court and executed in favor of the plaintiff to pay the rents,
damages, and costs accruing down to the time of the judgment appealed from, and

3. Unless, during the pendency of the appeal, he deposits with the appellate court the
amount of rent due from time to time under the contract, if any, as determined by the
judgment of the Municipal Trial Court. In the absence of a contract, he shall deposit with
the Regional Trial Court the reasonable value of the use and occupation of the premises
for the preceding month or period at the rate determined by the judgment of the lower
court on or before the tenth day of each succeeding month or period.

4. The supersedeas bond shall be transmitted by the Municipal Trial Court, with the
papers, to the clerk of the Regional Trial Court to which the action is appealed.

How to stay immediate execution of the judgment (BAR 2009)

The defendant must take the following steps to stay the execution of the
judgment:

1. Perfect an appeal

2. File a supersedeas bond to pay for the rents, damages and costs accruing down
to the time of the judgment appealed from; and

3. Deposit periodically with the Regional Trial Court, during the pendency of the
appeal, the adjudged amount of the rent due under the contract or if there be no
contract, the reasonable value of the use and occupation of the premises

All the above requisites must concur. Thus, even if the defendant had appealed
and filed a supersedeas bond, but failed to pay the accruing rentals, the appellate court
could, upon motion of the plaintiff, with notice to the defendant, and upon proof of such
failure, order the immediate execution of the appealed decision without prejudice to the
appeal taking its course. Such deposit, like supersedeas bond, is a mandatory
requirement; hence, if it is not complied with, execution will issue as a matter of right
(Antonio v. Geronimo, 476 SCRA 340)

By virtue of Sec. 19 of Rule 70, the defendant, in order to stay the execution of
the judgment, shall file a “sufficient supersedeas bond, approved by the Municipal Trial
Court and executed in favour of the plaintiff to pay the rents, damages and costs
accruing down to the time of the judgment appealed from xxx.”

In other words, the supersedeas bond covers the monetary judgment of the lower
court. If the judgment does not make any pronouncement as to the pecuniary liability of
the defendant, the bond should not be required. Attorney’s fees are not covered by a
supersedeas bond (Once v. Gonzales, 76 SCRA 258)

In a decision that made pronouncements as to the monetary liability of the

defendant in an ejectment suit, the defendant filed a notice of appeal on time but did not
file a supersedeas bond. Nevertheless, the judge denied the plaintiff’s motion for
execution contending that the appeal was perfected on time. The Court, ruling on the
administrative case against the judge, held that granting the plaintiff’s motion for
execution became a ministerial duty of the judge upon the defendant’s failure to file a
supersedeas bond, and that the execution of the decision could not be stayed by the
mere taking of an appeal. The perfection of the appeal must be coupled with the filing of
the requisite bond (Ferrer v. Rabaca, 632 SCRA 204)

BAR 2016

Judgment was rendered against defendant Jaypee in an action for unlawful

detainer. The judgment ordered Jaypee to vacate and to pay attorney's fees in favor of
Bart, the plaintiff.
To prevent the immediate execution of the judgment, would you advise the
posting of a supersedeas bond as counsel for Jaypee? Explain your answer briefly.

SUGGESTED ANSWER:

No, as counsel for Jaypee I would not advise the posting of a supersedeas bond.
Under the Rule 70, a supersedeas bond is necessary to prevent immediate execution
only if the judgment awarded rents, damages, and costs.
Here the judgment only ordered Jaypee to vacate and to pay attorney’s fees. A
supersedeas bond is not required to cover attorney’s fees. [Once v. Gonzalez, 31 March
1977]. Hence the posting of a supersedeas bond is not required.

What will be the action of the appellate court on the amount deposited?

All amounts so paid to the appellate court shall be:

1. Deposited with said court or authorized government depositary bank, and

2. Shall be held there until the final disposition of the appeal, unless the court, by
agreement of the interested parties, or

3. In the absence of reasonable grounds of opposition to a motion to withdraw, or for

justifiable reasons, shall decree otherwise.

What is the effect in case of failure to make deposit?

Should the defendant fail to make the payments above prescribed from time to
time during the pendency of the appeal, the appellate court, upon motion of the plaintiff,
and upon proof of such failure, shall

1. Order the execution of the judgment appealed from with respect to the restoration of
possession, but

2. Such execution shall not be a bar to the appeal taking its course until the final
disposition thereof on the merits.

What is the effect after the case is decided by the Regional Trial Court?

After the case is decided by the Regional Trial Court shall order that:

1. Any money paid to the court by the defendant for purposes of the stay of execution
shall be disposed of in accordance with the provisions of the judgment of the Regional
Trial Court.

2. In any case wherein it appears that the defendant has been deprived of the lawful
possession of land or building pending the appeal by virtue of the execution of the
judgment of the Municipal Trial Court, damages for such deprivation of possession and
restoration of possession may be allowed the defendant in the judgment of the Regional
Trial Court disposing of the appeal.

When can the appellate court issues a preliminary mandatory injunction?

Upon motion of the plaintiff, within ten (10) days from the perfection of the appeal
to the Regional Trial Court, the latter may issue a writ of preliminary mandatory
injunction to restore the plaintiff in possession if the court is satisfied that

1. The defendant's appeal is frivolous or dilatory or

2. That the appeal of the plaintiff is prima facie meritorious.

What is the nature of the judgment of the Regional Trial Court?

The judgment of the Regional Trial Court against the defendant shall be
immediately executory, without prejudice to a further appeal that may be taken
therefrom.

BAR QUESTION
 For failure of the tenant to pay rentals, A, the court-appointed administrator of the
estate of Henry Datu decides to file an action against the former for the recovery of
possession of the leased premises located in Davao City and for the payment of the
accrued rentals in the total amount of Php25, 000. 00.

What is the court of proper jurisdiction and venue of the intended action?

SUGGESTED ANSWER:

The court with jurisdiction over the action is the Municipal Trial Court of Davao
City. The cause is, obviously, an unlawful detainer case which is within the exclusive
original jurisdiction of said court (Sec. 33 [2], BP 129). The action is a real action and
must be filed in the place where the property is located, which is Davao City (Sec. 1,
Rule 4, Rules of Court)

Persons bound by the judgment in ejectment cases

As a rule, the judgment in an ejectment case is binding only upon the parties
impleaded and given an opportunity to be heard. This is because an ejectment suit is an
action in personam. However, the judgment may become binding on anyone who has
not been impleaded in certain instances.

In a case, the basic issue presented was whether or not petitioner’s members of
the family, who were not parties to the unlawful detainer case, may be ejected from the
land subject of the case.

The Court ruled in the affirmative. Although an ejectment case is an action in

personam wherein the judgment is binding only upon the parties properly impleaded
and given an opportunity to be heard, the judgment becomes binding on anyone who
has not been impleaded if he or she is a :

(a) trespasser, squatter or agent of the defendant fraudulently occupying the property to
frustrate the judgment;
(b) guest or occupant of the premises with the permission of the defendant;
(c) a transferee pendent lite;
(d) sublessee;
(e) co-lessee; or
(f) member of the family, relative or privy of the defendant (Sunflower Neighborhood
Association v. Court of Appeals, 410 SCRA 318)

BAR 2009

Mike was renting an apartment unit in the building owned by Jonathan. When
Mike failed to pay six months’ rent, Jonathan filed an ejectment suit. The Municipal Trial
Court (MTC) rendered judgment in favour of Jonathan, who then filed a motion for the
issuance of a writ of execution. The MTC issued the writ.

(a) How can Mike stay the execution of the MTC judgment? Explain.
SUGGESTED ANSWER:

Execution shall issue immediately upon motion, unless Mike (1) perfect his
appeal to the RTC, (b) files a sufficient supersedeas bond to pay the rents, damages
and cost accruing up to the time of the judgment appealed from, and (c) deposits
monthly with the RTC during the pendency of the appeal the amount of rent due from
time to time (Rule 70, Sec. 19, of the Rules of Court)

(b) Mike appealed to the Regional Trial Court (RTC), which affirmed the MTC decision.
Mike then filed a petition for review with the Court of Appeals (CA). The CA dismissed
the petition on the ground that the sheriff had already executed the MTC decision and
had ejected Mike from the premises, thus rendering the appeal moot and academic. Is
the CA correct? Reasons.

SUGGESTED ANSWER:

NO, the Court of Appeals is not correct. The dismissal of the appeal is wrong,
because the execution of the RTC judgment is only with respect of the eviction of the
defendant from the leased premises. Such execution pending appeal has no effect on
the merits of the ejectment suit which still has to be resolved in the pending appeal.
Rule 70, Sec. 21 of the Rules of Court provides that the RTC judgment against the
defendant shall be immediately executory, “without prejudice to a further appeal” that
may be taken therefrom (Uy v. Santiago, 336 SCRA 680).

BAR 2008

Ben sold a parcel of land to Del with right to repurchase within one (1) year. Ben
remained in possession of the property. When Ben failed to repurchase the same, title
was consolidated in favour of Del. Despite demand, Ben refused to vacate the land,
constraining Del to file a complaint for unlawful detainer. In his defense, Ben averred
that the case should be dismissed because Del had never been in possession of the
property. Is Ben correct?

SUGGESTED ANSWER:

No, Ben is not correct. In an action for unlawful detainer, it is not required that the
plaintiff be in prior physical possession of the land subject of the action. In this action by
the vendee a retro against a vendor a retro who refused to vacate the property even
after title has been consolidated in the vendee, the latter, in contemplation of law, steps
into the shoes of the vendor and succeeds to his right and interest (Pharma Industries,
Inc., v. Hon. Pajarillaga, 100 SCRA 339).

BAR 2007

X files an unlawful detainer case against Y before the appropriate Metropolitan

Trial Court. In his answer, Y avers a special and affirmative defense that he is a tenant
of X’s deceased father in whose name the property remains registered. What should the
court do? Explain briefly.
SUGGESTED ANSWER:

The court should hold a preliminary conference not later than thirty (30) days
after the defendant’s Answer was filed, since the case is governed by summary
procedure under Rule 70 of the Rules of Court, where a Reply is not allowed. The court
should receive evidence to determine the allegations of tenancy. If tenancy had in fact
been shown to be the real issue, the court should dismiss the case for lack of
jurisdiction.

If it would appear that Y’s occupancy of the subject property was one of
agricultural tenancy, which is governed by agrarian laws, the court should dismiss the
case because it has no jurisdiction over agricultural tenancy cases. Defendant’s
allegations that he is a “tenant” of plaintiff’s deceased father suggests that the case is
one of landlord-tenant relation and therefore, not within the jurisdiction of ordinary
courts.

BAR Question 1997

On January 10, 1990, X leased the warehouse of A under a lease contract with a
period of five (5) years. On June 08, 1996, A filed an unlawful detainer case against X
without prior demand to X to vacate the premises.

Can X contest his ejectment on the ground that there was no prior demand for
him to vacate the premises?

SUGGESTED ANSWER:

X cannot successfully contest his ejectment on the ground of absence of a

demand. By the time the action was filed, the lease had already expired. Demand to
vacate is not required when the ground for the suit is based on the expiration of the
lease because when the lease expires the cause of action for unlawful detainer
immediately arises (Panganiban v. Pilipinas shell Petroleum Corporation, 395 SCRA
624).

BAR Question

Suppose that by virtue of an execution of the judgment in an ejectment case, the

defendant was successfully ousted from the property in litigation and the plaintiff was
lawfully placed in possession thereof. Seven (7) years later, however, the defendant re-
entered the property and forcibly took over its possession. Can the plaintiff move that
defendant be declared in indirect contempt? Explain.

SUGGESTED ANSWER:

The defendant may be declared in contempt after he is duly charged, and not by
mere motion.
 The act of re-entry by a party into the land from which he was ordered by the
court to vacate may be punished for contempt of court even after the lapse of five years
from the date of the execution of the judgment (Benedicto v. Canada, 21 SCRA 10660.
The same case held that the re-entry is clearly a defiance of the authority of the court.
As it is, the decision sought to be enforced had long become final and executor. And
unless and until the said decision is annulled or set aside in a proper proceeding, the
same must be given effect. (Patagan v. Panis, 159 SCRA 507).

BAR 1990

Juan Santos, who is leasing an apartment unit in Antipolo, Rizal from Maria Cruz,
a resident of Quezon City, under a five (5)-year contract expiring on October 15, 1991,
is in arrears in his rent for three months as of August 15, 1990. Maria Cruz, through
counsel, sends a demand letter to Juan Santos.

Suppose that Juan Santos, upon receipt of the letter of demand to pay and
vacate the apartment unit, immediately pays the rentals in arrears. He claims that he
was so busy with his business that he neglected to pay his rent. May Maria Cruz still file
an unlawful detainer case against Juan Santos? Discuss with reasons.

SUGGESTED ANSWER:

Maria Cruz may still file an unlawful detainer detainer case. The failure to vacate
after a demand to pay and vacate gave rise to a cause of action in favour of the lessor.
The subsequent payment did not cure his unlawful withholding of possession of the
premises. The essence of unlawful detainer involved in the case is the failure of the
defendant to heed the demand to vacate, and not failure to pay the rentals in arrears.

BAR 1990

While the ejectment suit was pending before the Municipal Trial Court, Juan
Santos religiously deposits all current rentals. In due time, the judge ordered Juan
Santos to pay all rents until he vacates the premises, as well as attorney’s fees in the
amount of P50, 000. 00. Maria Cruz moves for immediate execution on the ground that
Juan Santos did not deposit the attorney’s fees of P50, 000. 00 and supersedeas bond
for the award. Should the court grant immediate execution? Decide with reasons.

SUGGESTED ANSWER:

The court should not grant immediate execution. A supersedeas bond covers
rentals in arrears up to the time of the judgment. Since there are no unpaid rentals,
there is no reason for the bond. Also, the rule does not require a deposit for attorney’s
fees for execution to be stayed.

RULE 71
 CONTEMPT

Classification of contempt.

1. Direct contempt which is committed in the presence of or so near the judge as to

obstruct him in the administration of justice;

2. Constructive or indirect contempt, which consists of wilful disobedience of the lawful

process or order of the court.

Indirect versus Direct Contempt

A contempt is INDIRECT when it occurs out of the presence of the court, thereby
requiring the court to rely on the testimony of third parties for proof of the offense. It is
DIRECT when it occurs under the court’s own eyes and within its own hearing. (United
States v. Peterson, 456 F .2d 1135, 1139.

Nature of contempt proceedings: Criminal and civil contempt:

Proceedings for contempt are sui generis, in nature criminal, but may be resorted
to in civil as well as criminal actions, and independently of any action. They are of two
(2) classes, the criminal or punitive, and the civil or remedial.

A criminal contempt consist in conduct that is directed against the authority and
dignity of a court or a judge acting judicially, as in unlawfully assailing or discrediting the
authority and dignity of the court of judge, or in doing a duly forbidden act.

A civil contempt consists in the failure to do something ordered to be done by a

court of judge in a civil case for the benefit of the opposing party therein.

The proceedings are to be regarded as criminal when the purpose is primarily

punishment, and civil when the purpose is primarily compensatory or remedial. Where
the dominant purpose is to enforce compliance with an order of the court for the benefit
of a party in whose favour the order runs, the contempt is civil; where the dominant
purpose is to vindicate the dignity and authority of the court, and to protect the interest
of the general public, the contempt is criminal. (Lorenzo Shipping Corp. vs. Lorenzo
Cinco, G.r. No. 155849, August 31, 2011)

When is a person guilty direct contempt? BAR 2012

Direct contempt may be committed:

1. A person guilty of misbehaviour in the presence of or so near a court as to obstruct

or interrupt the proceedings before the same,
2. Disrespect toward the court,
3. Offensive personalities toward others, or
4. Refusal to be sworn or to answer as a witness, or
5. Refusal to subscribe an affidavit or deposition when lawfully required to do so,

What is the punishment for indirect contempt?

A person summarily adjudged in contempt by such court and punished by

1. A fine not exceeding two thousand pesos or

2. Imprisonment not exceeding ten (10) days, or both,

3. If it be a Regional Trial Court or a court of equivalent or higher rank, or by a fine not

exceeding two hundred pesos or imprisonment not exceeding one (1) day, or both, if it
be a lower court.

What is the remedy in case of direct contempt?

The person adjudged in direct contempt by any court may not appeal therefrom,
but may avail himself of the remedies of certiorari or prohibition.

What is the effect of the filing of the petition? How to stay?

The execution of the judgment shall be suspended pending resolution of such

petition, provided such person shall:

1. Files a bond fixed by the court which rendered the judgment and

2. Conditioned that he will abide by and perform the judgment should the petition be
decided against him.

Pending the resolution of the petition for certiorari or prohibition, the execution of
the judgment for direct contempt shall be suspended. The suspension, however, shall
place only if the person adjudged in contempt files a bond fixed by the court which the
rendered the judgment. This bond is conditioned upon his performance of the judgment
should the petition be decided against him Canada v. Suerte, 474 SCRA 379)

How can a person be held liable for indirect contempt? BAR 1995 & 2012

A person can be held liable for indirect contempt when:

1. After a charge in writing has been filed, and

2. An opportunity given to the respondent to comment thereon within such period as

may be fixed by the court and

3. Given a chance to be heard by himself or counsel,

Unlike direct contempt which is summary, an act constituting an indirect

contempt is to be punished only after a charge in writing and hearing. The requirement
of a written charge and hearing shall not, however, be construed to prevent the court
from issuing process to bring the respondent into court, or from holding him in custody
pending the proceedings.

When can a person be held liable for indirect contempt?

A person guilty of any of the following acts may be punished for indirect contempt;

(a) Misbehavior of an officer of a court in the performance of his official duties or in his
official transactions;

(b) Disobedience of or resistance to a lawful writ, process, order, or judgment of a court,

including the act of a person who, after being dispossessed or ejected from any real
property by the judgment or process of any court of competent jurisdiction, enters or
attempts or induces another to enter into or upon such real property, for the purpose of
executing acts of ownership or possession, or in any manner disturbs the possession
given to the person adjudged to be entitled thereto;

(c) Any abuse of or any unlawful interference with the processes or proceedings of a
court not constituting direct contempt under section 1 of this Rule;

(d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade
the administration of justice;

(e) Assuming to be an attorney or an officer of a court, and acting as such without

authority;

(f) Failure to obey a subpoena duly served;

(g) The rescue, or attempted rescue, of a person or property in the custody of an officer
by virtue of an order or process of a court held by him.

The failure of the counsel to inform the court of the death his client constitutes
indirect contempt within the purview of Sec. 3, Rule 71 (BAR 1998) since it constitutes
an improper conduct tending to impede the administration of justice. It is also a ground
for disciplinary action under Sec. 16 of Rule 3 of the Rules of Court.

How can an indirect contempt proceeding be commenced? Requirements. (BAR

2012)

Proceedings for indirect contempt may be initiated:

1. Motu proprio by the court against which the contempt was committed by an order or

2. Any other formal charge requiring the respondent to show cause why he should not
be punished for contempt.
 3. In all other cases, charges for indirect contempt shall be commenced by a verified
petition with supporting particulars and certified true copies of documents or papers
involved therein, and upon full compliance with the requirements for filing initiatory
pleadings for civil actions in the court concerned.

There are two ways by which a person can be charged with indirect contempt,
namely: (a) through a verified petition; and (b) by order or formal charge initiated by the
court motu proprio.

(a) If the charge is initiated motu proprio by the court against which the contempt was
committed, it is commenced by an order of the same court or any formal charge
requiring the respondent to show cause why he should not be punished for contempt.

(b) If initiated by someone other than the court, the charge is commenced by filing a
verified petition. This petition shall be accompanied by supporting particulars and
certified true copies of documents or papers involved therein.

The petition shall likewise comply with the requirements for the filing of initiatory
pleadings for civil actions in court concerned. Since it is considered an initiatory
pleading and must comply with the requirements for the filing of initiatory pleadings, the
petition must hence, contain a certification against forum shopping mandated under
Sec. 5 of Rule 7. The verified petition or contempt shall be docketed heard and decided
separately unless the court in its discretion orders the contempt charge, which arose out
of or related to the principal action, to be consolidated with the main action for joint
hearing and decision (Comilang v. Belen, A.M. RTJ – 10- 2216, June 26, 2012).

What is the rule in case the contempt arose from the principal action?

If the contempt charges arose out of or are related to a principal action pending
in the court, the petition for contempt shall:

1. Allege that fact

2. It shall be docketed, heard and

3. 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. (n)

Where can an action for indirect contempt be filed?

An action for indirect contempt may be filed in the following court:

1. Where the charge for indirect contempt has been committed against a Regional Trial
Court or a court of equivalent or higher rank, or against an officer appointed by it, the
charge may be filed with such court.
2. Where such contempt has been committed against a lower court, the charge may be
filed with the Regional Trial Court of the place in which the lower court is sitting;

3. The proceedings may also be instituted in such lower court subject to appeal to the
Regional Trial Court of such place in the same manner as provided in section 11 of this
Rule. (4a; Bar Matter No. 803, 21 July 1998)

What is the course of action of the court if hearing is not conducted?

If the hearing is not ordered to be had forthwith by the court:

1. The respondent may be released from custody upon filing a bond, in an amount
fixed by the court, for his appearance at the hearing of the charge.

2. On the day set therefor, the court shall proceed to investigate the charge and
consider such comment, testimony or defense as the respondent may make or offer.

BAR 2019

Ms. R received a subpoena ad testificandum from a Regional Trial Court (RTC)

directing her to appear and testify in a case. Despite notice and without any sufficient
justification, Ms. R failed to appear. This prompted the RTC to issue a show-cause
order directing Ms. R to explain, within ten (10) days, why she should not be cited for
contempt for her nonappearance despite receipt of the subpoena. Ms. R, however, did
not file her comment. After due hearing with notice to the parties, the RTC cited her in
indirect contempt, and consequently, ordered her arrest.

Ms. R moved to quash the warrant issued for her arrest, claiming that a formal charge
should have been filed against her, and that the same should have been docketed and
prosecuted as a separate case against her. She thus claimed that since this procedure
was not followed, the order citing her in contempt is null and void.

(a) Is Ms. R's contention tenable? Explain.

(b) What is the proper mode of appeal should Ms. R decide to assail her contempt
citation? Will the filing of such appeal automatically result in the suspension of the
execution of judgment? Explain.

(Wala answer sa notes)

Quamto

A. No. Under Section 4, Rule 71, a person may be charged with indirect contempt
only by either two (2) alternative ways, namely:

(1) By a verified petition, if initiated by a party; or

(2) By an order or any other formal charge requiring the respondent to show cause
why he should not be punished for contempt, if made by a court against which the
contempt is committed.

In short, a charge of indirect contempt must be initiated through a verified petition,

unless the charge is directly made by the court against which the contemptuous act is
committed. Here, it was the court who initiated the contempt charge against Mr. R.
Hence, his contention is untenable. (Peralta v. Omelio, A.M. No. RTJ-11-2259, October
22, 2013)

B. The proper remedy of Mr. R is to file a petition for certiorari or prohibition under
Rule 65. The execution of the judgment shall be suspended pending resolution of
such petition, provided such person file a bond fixed by the court which rendered
the judgment and conditioned that he will abide by and perform the judgment
should the petition be decided against him. (Section 2, Rule 71)

BAR 2016

A temporary restraining order (TRO) was issued on September 20, 2017 by the
RTC against defendant Jeff enjoining him from entering the land of Regan, the plaintiff.

On October 9, 2017, upon application of Regan, the trial court, allegedly in the
interest of justice, extended the TRO for another 20 days based on the same ground for
which the TRO was issued.

On October 15, 2017, Jeff entered the land subject of the TRO. May Jeff be liable
for contempt of court? Why?
SUGGESTED ANSWER:

No, Jeff may not be liable for contempt. Under the Rule on Preliminary Injunction,
a TRO is effective only for a period of 20 days from service on the person sought to be
enjoined. It is deemed automatically vacated if the application for preliminary injunction
is denied or not resolved within the said period and no court shall have the authority to
extend or renew the TRO on the same ground for which it was issued.

Here the extension of the TRO by the RTC was invalid since it was for the same
ground for which the TRO was issued. Hence the TRO was deemed automatically
vacated and thus Jeff may not be liable for contempt for ignoring it.

What is the penalty in case of indirect contempt?

If the respondent is adjudged guilty of indirect contempt it has the following penalty:

1. If it is committed against a Regional Trial Court or a court of equivalent or higher rank,

he may be punished by a fine not exceeding thirty thousand pesos or imprisonment not
exceeding six (6) months, or both.
2. If he is adjudged guilty of contempt committed against a lower court, he may be
punished by a fine not exceeding five thousand pesos or imprisonment not exceeding
one (1) month, or both.

3. If the contempt consists in the violation of a writ of injunction, temporary restraining

order or status quo order, he may also be ordered to make complete restitution to the
party injured by such violation of the property involved or such amount as may be
alleged and proved.

How can the judgment be enforced?

The writ of execution, as in ordinary civil actions, shall issue for the enforcement
of a judgment imposing a fine unless the court otherwise provides. (6a)

What is the consequence if the contempt is based on the refusal of the

respondent?

When the contempt consists in the refusal or omission to do an act which is yet in
the power of the respondent to perform, he may be imprisoned by order of the court
concerned until he performs it.

What is the effect if the respondent failed to appear on the hearing?

When a respondent released on bail fails to appear on the day fixed for the
hearing, the court may:

1. Issue another order of arrest or

2. May order the bond for his appearance to be forfeited and confiscated, or both; and,

3. If the bond be proceeded against, the measure of damages shall be the extent of
the loss or injury sustained by the aggrieved party by reason of the misconduct for
which the contempt charge was prosecuted, with the costs of the proceedings, and such
recovery shall be for the benefit of the party injured.

4. If there is no aggrieved party, the bond shall be liable and disposed of as in criminal
cases.

What may the court do if the release of the respondent does not affect public
interest?

The court which issued the order imprisoning a person for contempt may
discharge him from imprisonment when it appears that public interest will not be
prejudiced by his release.
 A person imprisoned for contempt may be discharged provided that the interest
of the public will not be prejudiced by such release. The release shall be upon the order
of the same court which ordered the imprisonment.

What is the remedy in case of adverse judgment in indirect contempt?

The judgment or final order of a court in a case of indirect contempt may be

appealed to the proper court as in criminal cases.

How can the judgment be stayed?

Execution of the judgment or final order shall not be suspended until:

1. A bond is filed by the person adjudged in contempt, in an amount fixed by the court
from which the appeal is taken,

2. The bond is conditioned that if the appeal be decided against him he will abide by
and perform the judgment or final order.

Which court has jurisdiction over contempt against quasi-judicial bodies?

Unless otherwise provided by law, this Rule shall apply to contempt committed
against persons, entities, bodies or agencies exercising quasi-judicial functions, or shall
have suppletory effect to such rules as they may have adopted pursuant to authority
granted to them by law to punish for contempt. The Regional Trial Court of the place
wherein the contempt has been committed shall have jurisdiction over such charges as
may be filed therefor. (n)

The rules on contempt under Rule 71 apply to contempt committed against

persons or entities exercising quasi-judicial functions. Said rules also suppletorily apply
to rules on contempt which may, pursuant to law, be adopted by such quasi-judicial
bodies.

The court that has jurisdiction over charges for indirect contempt committed
against quasi-judicial bodies is the Regional Trial Court of the place where the
contemptuous act was committed.

Quasi-judicial bodies that have the power to cite persons for indirect contempt
pursuant to Rule 71 of the Rules of Court can only do so by initiating them in the proper
Regional Trial Court. It is not within their jurisdiction and competence to decide the
indirect contempt cases. These matters are still within the province of the Regional Trial
Courts. The requirement for a verified petition must also be complied with. The DARAB,
for example, has no power to decide the contempt charge filed before it. (LBP v.
Listana, 408 SCRA 328).

BAR 1995
 Suppose that by virtue of an execution of the judgment in an ejectment case, the
defendant was successfully ousted from the property in litigation and the plaintiff was
lawfully placed in possession thereof. Seven (7) years later, however, the defendant re-
entered the property and forcibly took over its possession. Can the plaintiff move that
defendant be declared in indirect contempt? Explain.

SUGGESTED ANSWER:

The defendant may be declared in contempt after he is duly charged, and not by
mere motion.

The act of re-entry by a party into the land from which he was ordered by the
court to vacate may be punished for contempt of court even after the lapse of five years
from the date of the execution of the judgment (Benedicto v. Canada, 21 SCRA 10660.
The same case held that the re-entry is clearly a defiance of the authority of the court.
As it is, the decision sought to be enforced had long become final and executor. And
unless and until the said decision is annulled or set aside in a proper proceeding, the
same must be given effect. (Patagan v. Panis, 159 SCRA 507).