LAST MINUTE TIPS IN REMEDIAL LAW

By:

DEAN SALVADOR N. MOYA II, Ll.M., DCL

I. GENERAL PRINCIPLES

Q. What is the doctrine of judicial stability and its rationale? Explain.

A. No court can interfere by injunction with the judgments or orders of another court of concurrent
jurisdiction having the power to grant the relief sought by the injunction. The rationale for the rule is founded on the
concept of jurisdiction: a court that acquires jurisdiction over the case and renders judgment therein has jurisdiction
over its judgment, to the exclusion of all other coordinate courts, for its execution and overall its incidents, and to
control, in furtherance of justice, the conduct of ministerial officers acting in connection with this judgment. (Metro
Rail Transit Development Corporation vs. Trackworks Rail Transit Advertising, Vending And Promotions,
Inc., G.R. No. 204452, June 28, 2021)(Third Division)[Hernando, J.]

Q. What is the primacy of the finality of judgment principle? Explain.

A. It means that a definitive final judgment, however erroneous, is no longer subject to change or
revision. A decision that has acquired finality becomes immutable and unalterable. This quality of immutability
precludes the modification of a final judgment, even if the modification is meant to correct erroneous conclusions of
fact and law. And this postulate holds true whether the modification is made by the court that rendered it or by the
highest court in the land. The orderly administration of justice requires that, at the risk of occasional errors, the
judgments/resolutions of a court must reach a point of finality set by the law. The noble purpose is to write finis to
dispute once and for all. This is a fundamental principle in our justice system, without which there would be no end
to litigations. Utmost respect and adherence to this principle must always be maintained by those who exercise the
power of adjudication. Any act, which violates such principle, must immediately be struck down. Indeed, the
principle of conclusiveness of prior adjudication is not confined in its operation to the judgments of what is
ordinarily known as courts but extends to all bodies upon which judicial powers had been conferred. (Municipality
of Corella vs. Philkonstrak, G.R. No. 218663, 28 February 2022) (Second Division) [Hernando, J.]

II. PRINCIPLE OF JUDICIAL HIERARCHY

Q. Explain the principle of the judicial hierarchy of courts.

A. Judicial hierarchy indicates that petitions for the issuance of extraordinary writs against first level
('inferior') courts should be filed with the [RTC], and those against the latter, with the Court of Appeals (CA). A
direct invocation of the Supreme Court's original jurisdiction to issue extraordinary writs should be allowed only
when there are special and important reasons therefor, clearly and specifically set out in the petition." (Miguel vs.
Director of Bureau of Prisons, UDK 15368, 15 September 2021) (Second Division) [Hernando, J.]; (Villafuerte
vs. SEC. G.R. No. 208379, 29 March 2022) (Second Division [Hernando, J.]

Q. What are the instances that invocation of the Supreme Court’s original jurisdiction to issue
writ of certiorari may be allowed?

A. It may be allowed in certain instances on the ground of special and important reasons clearly stated
in the petition, such as: (1) when dictated by the public welfare and the advancement of public policy; (2) when
demanded by the broader interest of justice; (3) when the challenged orders were patent nullities; or (4) when
analogous exceptional and compelling circumstances called for and justified the immediate and direct handling of
the case. (Palafox, Jr., vs. Mendiola et al., G.R. No. 209551, February 15, 2021)(Third Division)[Hernando, J.]
III. JURISDICTION

PROBLEM:

Dima and his 13 siblings inherited a 15-hectares of land from their parents, Jose and Natividad; while Pilong
Ranger inherited from his parents the leasehold agreement and continued the cultivation of the 5-hectares and was in
physical possession of the said land. As Dima and his siblings want to recover the possession of the subject property,
they instituted an accion reinvindicatoria case with the RTC of Iraga. Pilong Ranger interposed the defense of
tenancy. Hence, the RTC lacks jurisdiction. The RTC referred the matter to the DAR.

Q. Is the disposition of the RTC correct when it referred the matter to the DAR? Explain.

SUGGESTED ANSWER:

Yes. Section 50-A of RA 6557, as amended by RA 9700, expressly provides that "if there is an allegation from
any of the parties that the case is agrarian in nature and one of the parties is a farmer, farmworker, or tenant, the case
shall be automatically referred by the judge or the prosecutor to the DAR which shall determine and certify within
fifteen (15) days from referral whether an agrarian dispute exists: Provided, that from the determination of the DAR,
an aggrieved party shall have judicial recourse." Hence, the proper recourse of Dima and his siblings, upon the trial
court's referral of the case, is to await the DARAB's resolution. Thereafter, they can assail the determination of the
DARAB by appeal to the CA.

An accion reinvindicatoria is an action to recover ownership over real property, the jurisdiction of which is
within the proper RTC. On the other hand, Section 50 of RA 6657 and Section 17 of Executive Order No. (EO) 229
vested upon the DAR primary jurisdiction to determine and adjudicate agrarian reform matters, as well as original
jurisdiction over all matters involving the implementation of agrarian reform. Subsequently, EO 129-A37 was issued
wherein the power to adjudicate agrarian reform cases was transferred to the DARAB, and jurisdiction over the
implementation of agrarian reform was delegated to the DAR regional offices. (Dy Buncio vs. Ramos, G.R. No.
206120, 23 March 2022)(Second Division) [Hernando, J.]

Q. What is the jurisdiction of the Adjudicator in Agrarian cases?

A. Rule II of the 2003 DARAB Rules of Procedure provides that the Adjudicator has the primary and
exclusive jurisdiction over cases involving:

a. correction; b. partition; c. cancellation; d. secondary and subsequent issuances of CLOA’s and EP’s which
are registered with the Land Registration Authority. (Heirs of Jose De Lara vs. Rural Bank of Jaen, Inc., G.R.
No. 212012, 28 March 2022)(Second Division)[Hernando, J.].

Q. What is the jurisdiction of the DARAB and of the DAR?

A. The DARAB has exclusive appellate jurisdiction to review, reverse, modify, alter, or affirm
resolutions, orders, and decisions of its Adjudicators. Whereas, the jurisdiction of the DAR concerns the:

(1) determination and adjudication of all matters involving implementation of agrarian reform; (2) resolution
of agrarian conflicts and land-tenure related problems; and (3) approval or disapproval of the conversion,
restructuring, or readjustment of agricultural lands into residential, commercial, industrial, and other non-
agricultural uses. The DAR, in turn, exercises this jurisdiction through its adjudicating arm, the DARAB.

The enactment of RA 9700, as the amendatory law to RA 6657, now transfers the exclusive and original
jurisdiction over these cases to the Secretary of the DAR.(Heirs of Jose De Lara vs. Rural Bank of Jaen, Inc., G.R.
No. 212012, 28 March 2022)(Second Division)[Hernando, J.]

Q. Distinguish the jurisdiction of the MCTC and the DARAB.

A. The MCTC has exclusive original jurisdiction over cases of forcible entry, while the DARAB has
primary jurisdiction over agrarian disputes. An agrarian dispute refers to any controversy relating to, tenancy over
lands devoted to agriculture and transfer of ownership from landowner to farm workers, tenants, and other agrarian
reform beneficiaries. The amended CARL adds that the judge or prosecutor shall automatically refer the case to the
DAR if there is an allegation from any of the parties that the case is agrarian in nature, and one of the parties is a
farmer, farm worker or tenant. (Dayrit vs. Norquillas, G.R. No. 201631, 7 December 2021) (En Banc) [Hernando, J.]
IV. CIVIL PROCEDURE
RULE 1 - GENERAL PROVISIONS
SEC. 5.–COMMENCEMENT OF ACTION

Q. Is the CTA correct in dismissing a case filed by BCDA for non-payment of docket fee?

A. No. BCDA is a government instrumentality vested with corporate powers. As such, it is exempt
from the payment of docket fees required under Section 21, Rule 141 of the Rules of Court.

If BCDA is a instrumentality, it is exempt from the payment of docket fees. If it is a GOCC, it is not exempt
and as such non-payment thereof would mean that the tax court did not acquire jurisdiction over the case and
properly dismissed it for BCDA's failure to settle the fees on time. (BCDA vs. CIR, G.R. No. 205466, January 11,
2021) (Third Division) [Hernando, J.]

SEC. 6.–CONSTRUCTION

Q. In case of delay in the submission of evidence to quasi-judicial agencies, what are the
requirements for the application of liberality of the procedural rules? Explain.

A. The liberality of procedural rules is qualified by two requirements:

(1) a party should adequately explain any delay in the submission of evidence; and (2) a party should
sufficiently prove the allegations sought to be proven. The reason for these requirements is that the liberal
application of the rules before quasi-judicial agencies cannot be used to perpetuate injustice and hamper the just
resolution of the case. Neither is the rule on liberal construction a license to disregard the rules of procedure. (Reyes
vs. Rural Bank of San Rafael, G.R. No. 230597, 23 March 2022) (Second Division) [Hernando, J.]

RULE 2 - CAUSE OF ACTION

Q. What is a cause of action?

A. Section 2, Rule 2 of the Rules of Court provides that a cause of action is that act or omission by which a
party violates a right of another. (Arakor Construction and Development Corporation, vs. Sta. Maria, Alfredo N.
Gaddi, etc., (G.R. No. 215006, January 11, 2021) [Third Division] [Hernando, J.]

SEC. 3.–ONE SUIT FOR A SINGLE CAUSE OF ACTION

PROBLEM:

Sps. Dima and Amalia Bueno have a Discounting Line with Bank of Iraga. It consists of the following: PN
Nos. 2-104-980258 BDC and 2-104-980888 BDC at P10M each or a total amount of P20M; PNs (PN Nos. 2-104-
980259/ BDC, 2-104-980296/bdc, 2-104-980975 BDC and 2-104-981149/ BDC) at 5M each or a total of 20M.
After it became due and demandable, Sps. Bueno faulted from payment in view of the pandemic. The Bank of Iraga
sent a demand. However, Sps. Bueno failed and still fails to settle their obligations. The obligations are supported
both by Real and Chattel Mortgages.

Can Bank of Iraga choose to extrajudicially foreclose the REM insofar as the first P20M loan is
concerned and institute a collection suit for the second ₱20M loan? Explain your answer with reasons.

SUGGESTED ANSWER:

No. The Bank of Iraga cannot split its cause of action on the Discounting Line by first filing a petition for
extrajudicial foreclosure of the real estate mortgage on PN Nos. 2-104-980258 BDC and 2-104-980888 BDC and
then institute a personal action for the collection of the other four PNs (PN Nos. 2-104-980259/BDC, 2-104-
980296/BDC, 2-104-980975 BDC and 2-104-981149/BDC) without violating the proscription against splitting a
single cause of action.

Section 3, Rule 2 of the Rules of Court provides that a party may not institute more than one suit for a single
cause of action and if, two or more suits are instituted based on the same cause of action, the filing of one or a
judgment upon the merits in any one is available as ground for the dismissal of the others.

Therefore, the Bank of Iraga may institute two alternative remedies against the Sps. Bueno: either a personal
action for the collection of the promissory notes issued under the Discounting Line or a real action to foreclose the
mortgage, but not both, simultaneously or successively. Although the right of the mortgage creditor is recognize to
recover the deficiency when the mortgaged properties are not enough to satisfy the entire obligation, the action is
only instituted after the termination of the foreclosure proceedings and not during its pendency, so as not to violate
the prohibition against splitting of cause of action. (Asset Pool A (Spv-Amc), Inc., vs. Sps. Berris, G.R. No. 203194,
April 26, 2021) (Third Division) [Hernando, J.]

RULE 3 - PARTIES TO CIVIL ACTIONS

(SECS. 1-22)

SEC. 1.–WHO MAY BE PARTIES; PLAINTIFF AND DEFENDANT

Q. Who may be parties to a civil action?

A. Only natural or juridical persons, or entities authorized by law may be parties in a civil action and
every action must be prosecuted and defended in the name of the real parties-in-interest. (Technical Education and
Skills Development Authority (Tesda) vs. Abragar (G.R. No. 201022, March 17, 2021) (Third Division)
[Hernando, J.] (Secs. 1-2)

Q. What is the doctrine of apparent authority?

A. Under the doctrine of apparent authority, if the corporation knowingly permits one of its officers
or any other agent to act within the scope of an apparent authority, it holds the agent out to the public as possessing
the power to do those acts. Thus, the corporation will, as against anyone who has in good faith dealt with it through
such agent, be estopped from denying the agent's authority. (Agro Food and Processing Corp., vs. Vitarich
Corporation, G.R. No. 217454, January 11, 2021)(Third Division) [Hernando, J.]

SEC. 7.–COMPULSARY JOINDER OF INDISPENSABLE PARTIES

Q. Who are considered indispensable parties ?

A. Indispensable parties are parties whose legal presence in the proceeding is so necessary that 'the
action cannot be finally determined without them because their interests in the matter and in the relief are so bound
up with that of the other parties. (TESDA vs. Abragar (G.R. No. 201022, March 17, 2021) (Third Division)
[Hernando, J.]

PROCEDURE IN REGIONAL TRIAL COURTS

RULE 6 – KINDS OF PLEADINGS

SEC. 7.–COMPULSORY COUNTERCLAIM

Q. What is a compulsory counterclaim? Explain.

A. A compulsory counterclaim is any claim for money or other relief that a defending party may have
against an opposing party, which at the time of suit arises out of, or is necessarily connected with, the same
transaction or occurrence that is the subject matter of plaintiff's complaint. It is compulsory in the sense that if it is
within the jurisdiction of the court and does not require for its adjudication the presence of third parties over whom
the court cannot acquire jurisdiction, it must be set up therein, and will be barred in the future if not set up. (PNTC
Colleges vs. Time Realty, G.R. No. 219698, 27 September 2021) (Second Division) [Hernando, J.]

RULE 7 - PARTS OF A PLEADING

SEC. 4.–VERIFICATION
 Q. What is the effect if the Verification and Certification of Non-Forum Shopping is notarized
by the counsel who also signed the petition/complaint? Explain.

A. It is considered defective. The counsel who prepared the Petition/Complaint is disqualified from
notarizing the Verification portion of the petition. The 2004 Rules on Notarial Practice clearly states that a notary
public is disqualified from performing a notarial act if he is a party to the instrument or document that is to be
notarized. Given that the petition lacks a proper verification, it ought to be treated as an unsigned pleading.

However, the High Court adopted a liberal stance and decided the petition on its merits rather than on a
procedural technicality. In fact, despite the procedural defect, petitioner-accused Horca was acquitted of the crime
charge of theft. (Horca vs. People, G.R. No. 224316, 10 November 2021) (Second Division)[Hernando, J.]

Q. What is the purpose of a verification of a pleading? Explain.

A. The purpose of verification in the petition is to secure an assurance that the allegations of a
pleading are true and correct, are not speculative or merely imagined, and have been made in good faith. To achieve
this purpose, the verification of a pleading is made through an affidavit or sworn statement, confirming that the
affiant has read the pleading whose allegations are true and correct of the affiant's personal knowledge or based on
authentic records.

Q. Is it fatal if there is a variance between the date in the verification and the date of the
petition? Explain.

A. No. A variance in the date of the verification with the date of the petition is not necessarily fatal to the case
since the variance does not necessarily lead to the conclusion that no verification was made, or that the verification
was false. It does not necessarily contradict the categorical declaration made by the petitioner/plaintiff in its affidavit
that its representatives read and understood the contents of the pleading. (Jorgenetics Swine Improvement
Corporation vs. Thick & Thin Agri-Products, Inc., G.R. Nos. 201044 & 222691, May 05, 2021) (Third Division)
[Hernando, J.]

SEC. 5.–CERTIFICATION AGAINST FORUM SHOPPING

Q. What is forum shopping? Explain.

A. Forum shopping exists when a party initiates two or more actions, other than appeal or certiorari,
grounded on the same cause to obtain a more favorable decision from any tribunal. (Santos Ventura Hocorma
Foundation, Inc., vs. Mabalacat Institute, Inc., G.R. No. 211563, September 29, 2021) (Second Division)
[Hernando, J.]

Q. What are the elements of Forum Shopping?

A. The elements are as follows:

First, there must be identity of parties.

Second, there must be similarity of rights asserted and reliefs prayed for, where the relief is anchored on the
same facts.

Third, the judgment rendered in any of the actions would amount to res judicata as to the other. (Asis et al. vs.
Heirs of Calignawan et al., G.R. No. 242127, 15 September 2021)(Second Division)[Hernando, J.]; CIR vs.
Standard Insurance, G.R. No. 219340, 28 April 2021)(Third Division) [Hernando, J.]

Q. Can the issue of forum shopping be raised on appeal?

A. No. Pursuant to Section 1, Rule 9 of the Rules of Court, defenses and objections are deemed
waived when they are not pleaded in the answer or in a motion to dismiss. (Asis et al. vs. Heirs of Calignawan et
al., G.R. No. 242127, 15 September 2021) (Second Division)[Hernando, J.]
 PROBLEM:

ABC, Inc. is the registered owner of a parcel of land with an area of 11,451 square meters located in
Mabalacat, Pampanga. The property is being occupied by EFG Enterprises for the longest time or from 1983 up to
2002 when ABC, Inc., wrote a letter to EFG Ent., demanding it to pay its monthly rent in the amount of ₱50.00/sqm.
EFG Ent. refused to pay the monthly rental. Another letter was sent by ABC., Inc. that if EFG Ent., will not pay the
monthly rental, the latter should vacate the property within 15 days from receipt of the formal demand. In view of
the continued refusal of EFG, Ent., ABC Inc., filed a collection suit for the monthly rental in the Makati RTC where
its principal business address is located. While the collection suit is pending, ABC, Inc., instituted an ejectment suit
with the Municipal Circuit Trial Court (MCTC) of Mabalacat and Magalang, Pampanga.

Is there forum shopping committed by ABC, Inc., in violation of Sec. (5)(c), Rule 7, of the 1997 Rules of
Civil Procedure? Explain.

SUGGESTED ANSWER:

No. ABC, Inc., did not violate the rule on forum shopping when it filed the ejectment case while the collection
case has been pending. The determinative factor in the violations of the rule against forum shopping is whether the
elements of litis pendentia are present, or whether a final judgment in one case will amount to res judicata in
another.

In the instant case, the second and third elements of forum shopping and litis pendentia are lacking. Thus,
there is no identity of rights asserted and reliefs prayed for between a suit for collection of sum of money and an
unlawful detainer case, and that any judgment rendered in one of these actions would not amount to res judicata in
the other action. (Asis et al. vs. Heirs of Calignawan et al., G.R. No. 242127, 15 September 2021) (Second
Division) [Hernando, J.]

Q. What are the guidelines with respect to non-compliance with the requirements or submission
of a defective verification and certification against forum shopping?

A. The guidelines are the following:

1) A distinction must be made between non-compliance with the requirement or submission of defective
verification, and non-compliance with the requirement or submission of defective certification against forum
shopping.

2) As to verification, non-compliance therewith or a defect therein does not necessarily render the pleading
fatally defective. The court may order its submission or correction or act on the pleading if the attending
circumstances are such that strict compliance with the Rule may be dispensed with in order that the ends of justice
may be served thereby.

3) Verification is deemed substantially complied with when one who has ample knowledge to swear to the
truth of the allegations in the complaint or petition signs the verification, and when matters alleged in the petition
have been made in good faith or are true and correct.

4) As to certification against forum shopping, non-compliance therewith or a defect therein, unlike in

verification, is generally not curable by its subsequent submission or correction thereof, unless there is a need to
relax the Rule on the ground of "substantial compliance" or presence of "special circumstances or compelling
reasons."

5) The certification against forum shopping must be signed by all the plaintiffs or petitioners in a case;
otherwise, those who did not sign will be dropped as parties to the case. Under reasonable or justifiable
circumstances, however, as when all the plaintiffs or petitioners share a common interest and invoke a common
cause of action or defense, the signature of only one of them in the certification against forum shopping substantially
complies with the Rule.

6) Finally, the certification against forum shopping must be executed by the party-pleader, not by his counsel.
If, however, for reasonable or justifiable reasons, the party-pleader is unable to sign, he must execute a Special
Power of Attorney designating his counsel of record to sign on his behalf. (Telus International Philippines, Inc.
vs. De Guzman, G.R. No. 202676, December 04, 2019) (Second Division) [Hernando, J.]
 Q. What is the rule if not all the petitioners with common interest sign the verification
certification of non-forum shopping? Explain.

A. If the Petitioners share a common interest and have similar claims in the subject property, the rule
is any one of them can be considered as "one who has ample knowledge to swear to the truth of the allegations" to
sign the required verification. (Villoria vs. Heirs of Pablo Gaetos, G.R. No. 206240, 12 May 2021)(Third
Division)[Hernando, J.]

Q. Can the appeal by petition for review on certiorari with a defective Verification/Certification
of Non-Forum Shopping be dismissed outright?

A. No. It should be noted that the rules on verification and certification against forum shopping are
designed to promote and facilitate the orderly administration of justice. Hence, they should not be interpreted with
such absolute literalness as to subvert their own ultimate and legitimate objectives. The requirement of strict
compliance merely underscores their mandatory nature to the effect that the verification and certification against
forum shopping cannot altogether be dispensed with or their requirements completely disregarded. The Rule do not
prohibit substantial compliance with the rules under justifiable circumstances. (Villoria vs. Heirs of Pablo Gaetos,
G.R. No. 206240, 12 May 2021) (Third Division) [Hernando, J.]

Q. What are the three (3) ways of committing forum shopping?

A. They are as follows:

(1) filing multiple cases based on the same cause of action and with the same prayer, the previous case not
having been resolved yet (litis pendentia);

(2) filing multiple cases based on the same cause of action and with the same prayer, the previous case having
been finally resolved (res judicata); or

(3) filing multiple cases based on the same cause of action but with different prayers (splitting of causes of
action, where the ground for dismissal is also either litis pendentia or res judicata). (Commissioner of Customs vs.
PTT Philippines Trading Corporation, G.R. Nos. 203138-40, February 15, 2021)(Third Division)[Hernando,
J.]

PROBLEM:

Atty. Dima and Atty. Malia are the counsels for the plaintiff and defendant respectively in a Forcible Entry
with Damages case pending before Branch 002 of the RTC of Iraga.

Later, an administrative case was filed by Fr. Elmer Chantengco, the client of Atty. Dima against Atty. Malia
with the IBP-CBD for perjury and falsification and for violation of Canons 8, 10, and 11 of the CPR. On the other
hand, Atty. Malia also filed a counter-complaint against Atty. Dima with the IBP-CBD. Upon receipt of the notice to
file an answer, Atty. Dima filed a similar complaint with that of his client Fr. Chantengco against Atty. Malia. Atty.
Dima revealed in his Verification-Certification of Non-Forum Shopping that a similar complaint was filed by Fr.
Chantengco against Atty. Malia.

Did Atty. Dima commit forum shopping? Explain.

SUGGESTED ANSWER:

Yes. Atty. Dima willfully committed forum shopping when he instituted two actions grounded on the same
cause, even if strictly speaking, he was not included as a "complainant" in Fr. Chantengco’s Complaint. This is
because he prepared and filed both administrative actions with full knowledge that they have the same cause of
action and contained nearly exactly the same allegations. Simply put, the outcome in one case would necessarily
have an effect in the other since both cases share the same cause of action and involve the same parties. (Go vs.
Teruel, A.C. No. 11119, November 04, 2020) (Third Division)[Hernando, J.]

Q. What are the two aspects of res judicata?

 A. They are as follows:

i. bar by prior judgment or the effect of a judgment as a bar to the prosecution of a second action upon the
same claim, demand or cause of action, and

ii. conclusiveness of judgment which ordains that issues actually and directly resolved in a former suit cannot
again be raised in any future case between the same parties involving a different cause of action.

RULE 8-MANNER OF MAKING ALLEGATIONS

SEC. 10.–SPECIFIC DENIAL

Q. What is a specific denial and its purpose?

A. A specific denial is made by specifying each material allegation of fact, the truth of which the
defendant does not admit, and whenever practicable, setting forth the substance of the matters upon which he relies
to support his denial. The purpose of requiring the defendant to make a specific denial is to make him briefly
disclose the matters alleged in the complaint which he intends to disprove at the trial, together with the matter which
he relied upon to support the denial. (Aljem’s Credit Investors Corp., vs. Sps. Bautista, G.R. No. 215175, 25
April 2022) (Second Division) [Hernando, J.]

RULE 9 - EFFECT OF FAILURE TO PLEAD

SEC. 1.–DEFENSES AND OBJECTIONS NOT PLEADED

Q. The Bangko Sentral's Monetary Board is a quasi-judicial agency exercising quasi-judicial

functions. What is the duty of the RTC if a Petition for Certiorari and Prohibition with an application for
TRO/WPI is filed by a banking institution which was ordered closed by the BSMB? Explain.

A. It has to dismiss the case. The petition should have been filed before the CA instead of the RTC. It
is the duty of the court to dismiss an action whenever it appears that the court has no jurisdiction over the subject
matter. (Banco Filipino Savings and Mortgage Bank vs. BSP, G.R. No. 200642, April 26, 2021)(Third Division)
[Hernando, J.]

SEC. 3.–DEFAULT; DECLARATION OF.

Q. What is the consequence if a party is declared in default? Explain.

A. A party in default loses its right to present evidence, control the proceedings, and examine or cross-
examine witnesses. Such party has no right to expect that its pleadings would be acted upon by the court nor may be
object to or refute evidence or motions filed against it. However, while a party in default loses the right to present
evidence, it retains the right to appeal as part of the remedies available to a party in default. The grounds that may be
raised in such an appeal are restricted to any of the following: first, the failure of the plaintiff to prove the material
allegations of the complaint; second, the decision is contrary to law; and third, the amount of judgment is excessive
or different in kind from that prayed for. (Disini vs. Republic, G.R. No. 205172, 23 June 2021)(En Banc)
[Hernando, J.]

Q. What are the remedies of a party declared in default?

A. The remedies are as follows:

a) The defendant in default may, at any time after discovery thereof and before judgment, file a motion under
oath to set aside the order of default on the ground that his failure to answer was due to fraud, accident, mistake
or excusable negligence, (FAMEN) and that he has a meritorious defense [Sec. 3(b), Rule 9];

b) If the judgment has already been rendered when the defendant discovered the default, but before the same
has become final and executory, he may file a motion for new trial under Section 1(a) of Rule 37;
 c) If the defendant discovered the default after the judgment has become final and executory, he may file a
petition for relief under Section 1 [now Section 1] of Rule 38; and

d) He may also appeal from the judgment rendered against him as contrary to the evidence or to the law,
even if no petition to set aside the order of default has been presented by him (Sec. 2, Rule 41).

e) Moreover, a petition for certiorari to declare the nullity of a judgment by default is also available if the
trial court improperly declared a party in default, or even if the trial court properly declared a party in default, if
grave abuse of discretion attended such declaration.
f) Also, in Martinez vs. Republic, citing Matutevs. CA, the Supreme Court pronounced that a party who was
improvidently declared in default has the option to either perfect an appeal or interpose a petition for certiorari
seeking to nullify the order of default even before the promulgation of a default judgment, or in the event that the
latter has been rendered, to have both court decrees – the order of default and the default judgment – declared
void.

RULE 10 - AMENDED AND SUPPLEMENTAL PLEADINGS

SEC. 8.–EFFECT OF AMENDED PLEADINGS

Q. Does the filing of an amended pleading retroact to the date of the filing of the original
complaint? Explain.

A. No. The statute of limitation runs until the submission of the amendment. It is true that as an
exception, the High Court has held that an amendment which merely supplements and amplifies facts originally
alleged in the complaint relates back to the date of the commencement of the action and is not barred by the statute
of limitations which expired after the service of the original complaint. Thus, when the amended complaint does not
introduce new issues, cause of action, or demands, the suit is deemed to have commenced on the date the original
complaint was filed. (Alpha Plus International Enterprises Corp., vs. Philippine Charter Insurance Corp., et
al. (G.R. No. 203756, February 10, 2021)(Third Division)[Hernando, J.]

SEC. 14.–PAPERS REQUIRED TO BE FILED AND SERVED

Q. What is the rule on service of orders and notices if the party is represented by counsel?

A. It is settled that when a party is represented by counsel of record, service of orders and notices
must be made upon his/her counsels or one of them. Otherwise, notice to the client and to any other lawyer, not the
counsel of record, is not notice in law. (People vs. Mallari, G.R. No. 197164, December 04, 2019)(Second
Division [Hernando, J.]

ADVERSE CLAIM (SEC. 70, P.D. NO. 1529)

Q. Can the trial court, where the Petition for Cancellation of Adverse Claim is pending, rule on
the claim of attorneys fees? Explain.

A. Yes. In petitions for cancellation of adverse claim, trial courts are not precluded from adjudicating
matters involving attorney's fees. The language of Section 70 of the Property Registration Decree (PD 1529) is clear;
it does not limit the issues that may be resolved by the trial court in a petition for cancellation of adverse
claim. Thus, in a petition for cancellation of adverse claim, trial courts may at the same time hear matters regarding
claims for attorney's fees and charging of lien, in observance of the policy against multiplicity of suits. Hence, the
lawyer may choose to record and enforce his attorney's fees and lien in a petition for cancellation of adverse claim or
he may opt to file an entirely separate action for this purpose. (Dominguez vs. Bank of Commerce, G.R. No.
225207, 29 September 2021)(Second Division)[Hernando, J.]

Q. What are the factors to be considered in determining lawful attorney’s fees for the legal
services rendered by a counsel? Explain.

A. The compromise agreement and those factors enumerated under Rule 20.01 of the Code of
Professional Responsibility (CPR) may serve as basis for the award, of attorney's fees. Attorney's fees can be
adjudicated based on the following factors, viz.:
Rule 20.1 — A lawyer shall be guided by the following factors in determining his fees:
a) The time spent and the extent of the services rendered or required;
b) The novelty and difficulty of the questions involved;
c) The importance of the subject matter;
d) The skill demanded;
e) The probability of losing other employment as a result of acceptance of the proffered case;
f) The customary charges for similar services and the schedule of fees of the IBP chapter to which he belongs;
g) The amount involved in the controversy and the benefits resulting to the client from the service;
h) The contingency or certainty of compensation;
i) The character of the employment, whether occasional or established; and
j) The professional standing of the lawyer (Dominguez vs. Bank of Commerce, G.R. No. 225207, 29
September 2021) (Second Division) [Hernando, J.]

Q. What is required for attorney’s lien? Explain.

A. A money judgment and execution are necessary to charge or enforce attorney's lien. This is
provided by Section 37, Rule 138 of the Rules of Court. It is clear that attorney's lien attaches on all money
judgments and on the subsequent execution thereof which the lawyer secured in advocating the cause of his client in
a litigation, provided that: (1) the lawyer caused the registration of his lien on the records of the court; and (2) the
lawyer caused a written notice to such effect to be delivered to his client and to the adverse party. Logically, it
would, be absurd to charge or enforce a lien without judgment or resolution of the case as there is absence of basis
for the determination of the legal fees.

RULE 13–FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS

RULES OF PAYMENT OF DOCKET FEES; EFFECT OF NON-PAYMENT

In the case of Sun Insurance Office Ltd. vs. Hon. Maximiano Asuncion, G.R. No. 79937-38, February 13,
1989, the Supreme Court reiterated the following rules concerning payment of docket fees:

(1) It is not simply the filing of the complaint or appropriate initiatory pleading, but the payment of the
prescribed docket fee, that vests a trial court with jurisdiction over the subject matter or nature of the action. Where
the filing of the initiatory pleading is not accompanied by payment of the docket fee, the court may allow payment
of the fee within a reasonable period of time but in no case beyond the applicable prescriptive or reglementary
period.

(2) The same rule applies to permissive counterclaims, third-party claims and similar pleadings, which shall
not be considered filed until, and unless the filing fee prescribed therefor is paid. The court may also allow payment
of the fee within a reasonable time but also in no case beyond its applicable prescriptive or reglementary period.

(3) Where the trial court acquires jurisdiction over a claim by the filing of the appropriate pleading and
payment of the prescribed filing fee but, subsequently, the judgment awards a claim not specified in the pleading, or
if specified, the same has been left for determination by the court, the additional filing fee therefor shall constitute a
lien on the judgment. It shall be the responsibility of the Clerk of Court or his duly authorized deputy to enforce said
lien and assess and collect the additional fee.

EFFECT OF NON-PAYMENT OF DOCKET FEE

Sec. 3, Rule 42 provides:

Section 3. Effect of failure to comply with requirements. -The failure of the petitioner to comply with any of
the foregoing requirements regarding the payment of the docket and other lawful fees, the deposit for costs, proof of
service of the petition, and the contents of and the documents which should accompany the petition shall be
sufficient ground for the dismissal thereof.

The full payment of docket fees within the prescribed period is mandatory and necessary to perfect the appeal.
Corollarily, the non-payment of docket fees is a ground to dismiss the appeal. In Buenaflor v. CA, however, the
high court qualified this rule, and declared: First, that the failure to pay the appellate court docket fee within the
reglementary period warrants only discretionary as opposed to automatic dismissal of the appeal; and second, that
the court shall exercise its power to dismiss in accordance with the tenets of justice and fair play and with a great
deal of circumspection considering all attendant circumstances.

RULE 14- SUMMONS

NATURE AND PURPOSE OF SUMMONS IN RELATION TO ACTIONS IN PERSONAM, IN REM, AND

QUASI IN REM

Q. How can the court acquire jurisdiction over the person of the defendant? Explain.

A. Jurisdiction over the person of the defendant in civil cases is acquired by service of summons.
However, even without valid service of summons, a court may still acquire jurisdiction over the person of the
defendant if the latter voluntarily appears before it. If the defendant knowingly does an act inconsistent with the
right to object to the lack of personal jurisdiction as to them, like voluntarily appearing in the action, they are
deemed to have submitted themselves to the jurisdiction of the court. (Jorgenetics Swine Improvement
Corporation, vs. Thick & Thin Agri-Products, Inc., G.R. Nos. 201044 & 222691, May 05, 2021)[Hernando, J.]
[Third Division]

Q. What does voluntary appearance on the part of the defendant mean? Explain.

A. A defendant is deemed to have voluntarily submitted themselves to the jurisdiction of the court if
they seek affirmative relief from the court. This includes the filing of motions to admit answer, for additional time to
file answer, for reconsideration of a default judgment, and to lift order of default with motion for reconsideration.

It was also held that a party is deemed to have submitted themselves to the jurisdiction of the court when, after
the opposing party sought the execution of the decision, they file a motion asking for the resetting of the hearing
without reserving their continuing objection to the lower court's lack of jurisdiction over their person. The active
participation of a party in the proceedings is tantamount to an invocation of the court's jurisdiction and a willingness
to abide by the resolution of the case, and will bar said party from later on impugning the court or body's
jurisdiction. (Jorgenetics Swine Improvement Corporation, vs. Thick & Thin Agri-Products, Inc., G.R. Nos.
201044 & 222691, May 05, 2021)[Hernando, J.][Third Division]

Q. What is the nature and purpose of summons vis-a-vis a TPO? Explain.

A. Summons is a procedural tool. It is a writ by which the defendant is notified that an action was
brought against him or her. In an action in personam, brought to enforce personal rights and obligations, jurisdiction
over the person of the defendant is mandatory. In such actions, therefore, summons serve not only to notify the
defendant of the filing of an action, but also to enable acquisition of jurisdiction over his person.

A protection order is not a procedural mechanism, which is imperative for the progression of an initiated
action. Rather, it is itself a substantive relief which prevents further acts of violence against a woman or her child
specified in Section 5 ofthe Anti-VAWC Law and granting other necessary relief.

Summons and temporary protection orders are entirely different judicial issuances. It is true that the latter also
serves the purpose of conveying information. However, this information pertains not to the filing of an action but
merely to the schedule of an upcoming hearing. The similarities between a summons and a protection order begin
and end with their informative capacity. At no point does the Anti-VAWC Law intimate that the temporary
protection order is the means for acquiring jurisdiction over the person of the respondent.

Section 15 of the Anti-VAWC Law's reference to "immediate personal service" is an incident of the underlying
urgency which compelled the ex parte issuance of a protection order. It should not be construed as a restriction on
the manner of acquisition of jurisdiction over the person of the respondent. Otherwise, far from relieving a manifest
urgency, it stifles a civil action for the issuance of a protection order right at the moment of its initiation. Construed
as such, a temporary protection order is twisted into a shrewdly convenient procedural tool for defeating the very
purposes for which it was issued in the first place. (Sabado vs. Sabado, G.R. No. 214720, 12 May 2021)(Third
Division) [Hernando, J.]

Q. What is the application of the Rules of Court in an Anti-VAWC Law?

A. Section 1 of A.M. No. 04-10-11-SC expressly states that while it governs petitions for the issuance
of protection orders under the Anti-VAWC Law, the Rules of Court shall apply suppletorily. In the silence of A.M.
No. 04-10-11-SC, service of summons - the means established by the 1997 Rules of Civil Procedure for informing
defendants and/or respondents of the filing of adverse actions, and for the acquisition of jurisdiction over their
persons - remains efficacious. (Sabado vs. Sabado, G.R. No. 214720, 12 May 2021)(Third Division)[Hernando,
J.]
 Q. How can the court acquire jurisdiction over the person of the respondent in the application
of TPO/PPO under R.A. No. 9262? Explain.

A. Jurisdiction over the person of the respondent in a petition for TPO/PPO under RA 9262 can be
acquired through any of the means of serving summons under the Rules of Court. In an action in personam such as a
petition for TPO/PPO under RA 9262, the purpose of summons is two-fold:
(1) to notify the defendant that an action has been brought against him; and (2) to acquire jurisdiction over the
person of the defendant.

When the defendant does not voluntarily submit to the court's jurisdiction or when there is no valid service of
summons, any judgment of the court which has no jurisdiction over the person of the defendant is null and void.
(Sabado vs. Sabado, G.R. No. 214720, 12 May 2021)(Third Division) [Hernando, J.]

SEC. 14.–SERVICE UPON FOREIGN PRIVATE JURIDICAL ENTITIES. (CORRELATED WITH SEC.
17) EXTRATERRITORIAL SERVICE

Q. How can a non-resident foreign corporation not doing business in the Philippines may be
served with summons? Explain.

A. It may be served with summons by extraterritorial service, to wit:

(1) when the action affects the personal status of the plaintiffs;
(2) when the action relates to, or the subject of which is property, within the Philippines, in which the
defendant claims a lien or an interest, actual or contingent;
(3) when the relief demanded in such action consists, wholly or in part, in excluding the defendant from any
interest in property located in the Philippines; and
(4) when the defendant nonresidents property has been attached within the Philippines. In these instances,
service of summons may be effected by (a) personal service out of the country, with leave of court; (b) publication,
also with leave of court; or (c) any other manner the court may deem sufficient. (Gesolgon, et al. vs. Cyberone Ph.,
Inc., et al., G.R. No. 210741, October 14, 2020) (Second Division)[Hernando, J.]

Q. What is the applicability of extraterritorial service of summons? Explain.

A. Extraterritorial service of summons applies only where the action is in rem or quasi in rem but not
if an action is in personam. Hence, jurisdiction over a non-resident foreign corporation not doing business in the
Philippines cannot be acquired unless it voluntarily appears in court. Consequently, without a valid service of
summons and without voluntarily appearance in court, jurisdiction cannot be validly acquired. Consequently, no
judgment can be issued against it, if any. (Gesolgon, et al. vs. Cyberone Ph., Inc., et al., G.R. No. 210741,
October 14, 2020)(Second Division)[Hernando, J.]

Q. How should summons be served upon a defendant who is out of the country?

A. Summons should be served through substituted service under Section 6, extraterritorial service
under Section 17, or under Section 18 when residents are temporarily out of the Philippines, Rule 14 of the amended
1997 Rules of Civil Procedure. (Sabado vs. Sabado, G.R. no. 214720, 12 May 2021) (Third Division)[Hernando,
J.].

PROBLEM:

Jose Dima is a seafarer and married to Amalia Dima. During one of his vacations, he had a quarrel with his
wife. Due to jealousy, Jose slapped his wife that caused physical injuries to the latter. After Jose’s 60-days vacation,
he again went abroad. In the meantime, Amalia filed a case for violations of R.A. No. 9262 against Jose. She also
applied for the immediate issuance of TPO/PPO. Upon learning this, Jose’s counsel filed an Entry of Appearance
with Opposition to the Issuance of the Permanent Protection Order. Jose also assailed the jurisdiction of the court as
accordingly there was invalid service of summons considering that he was already abroad.

Is Jose correct? Explain.

SUGGESTED ANSWER:
 No. Jose voluntarily submitted himself to the jurisdiction of the trial court when he filed the Entry of
Appearance with Opposition to the Issuance of the Permanent Protection Order. By seeking affirmative relief in his
opposition without objecting to the jurisdiction of the trial court, he thereby voluntarily submitted to its jurisdiction.

In effect, this cured the invalid service of summons. In a catena of cases, the High Court has ruled that
voluntary appearance by the defendant results to his submission to the court's jurisdiction. (Sabado vs. Sabaedo,
G.R. No. 214720, 12 May 2021)(Third Division)[Hernando, J.]

SEC. 21.–PROOF OF SERVICE; PURPOSE OF THE PROOF OF SERVICE OF SUMMONS

Q. How should the proof of service of summons be done by the Sheriff or his deputy?

A. The proof of service of a summons shall be made in writing by the server and shall set forth the
manner, place, and date of service; shall specify any papers which have been served with the process and the name
of the person who received the same; and shall be sworn to when made by a person other than a sheriff or his deputy.
(Sec. 21, Rule 14)[Sabado vs. Sabado, G.R. No. 214720, 12 May 2021)(Third Division)[Hernando, J.]

Q. What is the concept of prescription?

A. Prescription is a ground for the dismissal of a complaint without going into trial on the merits.
Prescription is based on a fixed time and is concerned with the fact of delay. When it appears from the pleadings or
the evidence on record that an action is barred by prescription, the court is mandated to dismiss the same. (Alpha
Plus International Enterprises Corp., vs. Philippine Charter Insurance Corp., et al., G.R. No. 203756,
February 10, 2021)(Third Division)[Hernando, J.].

RULE 15–MOTIONS

PROHIBITED MOTIONS UNDER SECTION 12(b)(c)(d),(e) and (f), RULE 15

The prohibited motions under Section 12(b) to (f) are as follows:

(b) Motion to hear affirmative defenses

(c) Motion for reconsideration of the court's action on the affirmative defenses

The provisions of Section 5(b), Rule 6 and Section 12, Rule 8 of the amended 1997 Rules of Civil Procedure
are the reasons why the motion to hear the affirmative defenses and its reconsideration are proscribed.

It shall be the duty of the trial court that within thirty (30) calendar days from the filing of the Answer with
incorporated affirmative defenses, as limited by Section 5(b), Rule 6, to motu propio resolve the same. Hence, a
motion to hear affirmative defenses and reconsideration of the court’s action thereto becomes superfluous.

If the defendant raised other affirmative defenses as embodied in the first paragraph of Section 5(b), Rule 6 of
the amended 1997 Rules of Civil Procedure, the trial court has the discretion to conduct a summary hearing within
fifteen (15) calendar days from the filing thereof. The pending incident shall be resolved within thirty (30) calendar
days reckoned from the termination of the summary hearing.

(d) Motion to suspend proceedings without a temporary restraining order or injunction issued by a
higher court

The mere pendency of a special civil action for certiorari commenced in relation to a case pending before a
lower court does not automatically interrupt the proceedings in the lower court. A petition for certiorari does not
divest the lower courts of jurisdiction validly acquired over the case pending before them. A petition for certiorari,
unlike an appeal, is an original action; it is not a continuation of the proceedings in the lower court. It is designed to
correct only errors of jurisdiction, including grave abuse of discretion amounting to lack or excess of jurisdiction.

Under Section 7, Rule 65 of the amended Rules of Civil Procedure, the higher court should issue against the
public respondent a temporary restraining order or a writ of preliminary injunction in order to interrupt the course of
the principal case. The petitioner in a Rule 65 petition has the burden of proof to show that there is a meritorious
ground for the issuance of an injunctive writ or order to suspend the proceedings before the public respondent. He
should show the existence of an urgent necessity for the writ or order, so that serious damage may be prevented.
Nonetheless, even if an injunctive writ or order is issued, the lower court retains jurisdiction over the principal case.

Q. When can the principle of judicial courtesy be applied?

A. The principle of judicial courtesy applies only "if there is a strong probability that the issues before
the higher court would be rendered moot and moribund as a result of the continuation of the proceedings in the
lower court." The High Court, however, clarified that the principle of judicial courtesy remains to be the exception
rather than the rule.

(e) Motion for extension of time to file pleadings, affidavits or any other papers, except a motion for
extension to file an answer as provided by Section 11, Rule 11
SECTION 11. Extension of time to file an answer. — A defendant may, for meritorious reasons, be granted an
additional period of not more than thirty (30) calendar days to file an answer. A defendant is only allowed to file one
(1) motion for extension of time to file an answer.

A motion for extension to file any pleading, other than an answer, is prohibited and considered a mere scrap of
paper. The court, however, may allow any other pleading to be filed after the time fixed by these Rules. (11a)

(f) Motion for postponement intended for delay, except if it is based on acts of God, force majeure or
physical inability of the witness to appear and testify. If the motion is granted based on such exceptions, the
moving party shall be warned that the presentation of its evidence must still be terminated on the dates
previously agreed upon.

EXCEPTION TO THE PROHIBITION OF MOTION FOR POSTPONEMENT

As a rule, a motion for postponement is a prohibited pleading. However, as an exception to the rule, if it is
caused by acts of God, force majeure or physical inability of the witness to appear and testify, the same may be
granted by the court. There is a caveat that the movant shall terminate his presentation of evidence on previously
agreed date that usually embodied in the pre-trial order.

MANDATORY PAYMENT OF POSTPONEMENT FEE

Party making postponement either oral or written shall pay the corresponding postponement fee under Section
2l(b), Rule 141 of the Rules of Court. The official receipt paid to the Office of the Clerk of Court shall be submitted
either at the time of the filing of said motion or not later than the next hearing date. The clerk of court shall not
accept the motion unless accompanied by the original receipt.

Rule 141, Section 21(b) of the Rules of Court provides:

Sec. 21. Other fees. — The following fees shall also be collected by the Clerks of the Regional Trial Courts or
courts of the first level, as the case may be:

x-x-x

(b) For motions for postponement (whether verbal or written) after completion of the pre-trial stage, TWO
HUNDRED (₱200.00) PESOS for the first, and an additional FIFTY (₱50.00) PESOS for every motion for
postponement thereafter based on that for the immediately preceding motion. For any other motion, TWO
HUNDRED (₱200.00) PESOS;

x-x-x

SEC. 9.–OMNIBUS MOTION RULE

Q. Under the omnibus motion rule, when the grounds for dismissal are those stated in the former Rule
16 of the 1997 Rules of Court and the movant failed to raise it, it is deemed waived. What are the exceptions
to this rule?

A. The exceptions are as follows:

 i. the grounds of lack of jurisdiction over the subject matter,

ii. litis pendentia,

iii. res judicata, and

iv. prescription.

RULE 12 - BILL OF PARTICULARS

Q. What is a bill of particulars?

A. In civil proceedings, a bill of particulars has been defined as a complementary procedural

document consisting of amplification or more particularized outline of a pleading, and is in the nature of a more
specific allegation of the facts recited in the pleading. The purpose of a motion for bill of particulars in civil cases
is to enable a party to prepare his responsive pleading properly.

Q. What is the duty of the plaintiff if the court granted the Motion for Bill of Particulars of the
defendant? Explain.

A. Under Section 3, Rule 12 of the amended 1997 Rules of Civil Procedure, the plaintiff is duty
bound to file a compliance to the Bill of Particulars or for a more definite statement as termed under the US rules
where this particular provision was patterned. The submission of the plaintiff must be effected within ten (10)
calendar days from notice of the order, unless a different period is fixed by the court. The compliance of the bill of
particulars or a more definite statement as ordered by the court, may be filed by the plaintiff, either in a separate or
in an amended pleading, copy furnished the movant-defendant for that matter.

Q. What is the effect on the period to file a responsive pleading if a bill of particulars is filed?

A. The period to file responsive pleading is stayed. Thus, after service of the bill of particulars or of
a more definite pleading, or after notice of denial of his or her motion, the moving party may file his or her
responsive pleading within the period to which he or she was entitled at the time of filing his or her motion, which
shall not be less than five (5) calendar days in any event. (Sec. 5)

RULE 17-DISMISSAL OF ACTIONS

SEC. 3.–DISMISSAL DUE TO FAULT OF PLAINTIFF

Q. Can the trial court issue an order provisionally dismissing a civil case without prejudice?
Explain.

A. No. It is void for lack of legal basis. The concept of a provisional dismissal in our jurisdiction
contemplates the temporary dismissal of a criminal action that may be revived within the period set by the Rules of
Court upon compliance with certain requisites. There is nothing in the Rules of Civil Procedure, as amended, which
provides for a provisional dismissal of a civil case. (PNB vs. Daradar, G.R. No. 180203, June 28, 2021)(Third
Division)[Hernando, J.]

Q. Can the court dismiss the case for failure of the plaintiff to prosecute? Explain.

A. Yes. A court may dismiss a case on the ground of non prosequitur, but the real test of the
judicious exercise of such power is whether, under the circumstances, plaintiff is chargeable with want of
fitting assiduousness in not acting on his complaint with reasonable promptitude. In the absence of a pattern or
scheme to delay the disposition of the case or of a wanton failure to observe the mandatory requirement of the rules
on the part of the plaintiff, as in the case at bar, courts should decide to dispense with rather than wield their
authority to dismiss. (PCIB now BDO vs. Laguna Navigation, Inc., G.R. No. 195236, 8 February 2021)(Third
Division)[Hernando, J.].

RULE 18–PRE-TRIAL
SEC. 2.–NATURE AND PURPOSE

Q. What is the purpose of pre-trial?

A. Pre-trial serves a significant purpose in court proceedings. It simplifies, abbreviates and

expedites the trial, if not the entire process of administering and dispensing justice. For this reason, the parties
and their counsels cannot take this stage for granted as it is more than just a part of procedural law or its technicality.
(Gemina vs. Heirs of Gerardo Espejo, G.R. No. 232682, 13 September 2021)(Second Division)[Hernando, J.]

Q. If the defendant is present and his counsel is absent, is the court correct in allowing the
plaintiff to present evidence ex-parte? Explain.

A. No. When the party-defendant is present, the absence of his counsel during pre-trial shall not
ipso facto result in the plaintiffs ex parte presentation of evidence. With the advent of AM 19-10-20-SC, Section
5 has been clarified by already including the word counsel and putting the conjunctive word and, to the effect that it
is only when both the party-litigant (plaintiff or defendant) and his counsel fail to appear in pre-trial that there can be
the concomitant consequence of either a dismissal (plaintiff and counsel were absent), or presentation of evidence ex
parte (defendant and counsel were absent). (Gemina vs. Heirs of Gerardo Espejo, G.R. No. 232682, 13
September 2021)(Second Division) [Hernando, J.]

MODES OF DISCOVERY
DEPOSITIONS (RULES 23-24, See People vs. Sergio, G.R. No. 240053, October 9, 2019)

Q. What are depositions?

A. Depositions are chiefly a mode of discovery. They are intended as a means to compel disclosure of
facts resting in the knowledge of a party or other person, which are relevant in some suit or proceeding in court.

Q. What are the kinds of depositions?

A. Depositions may be:

1. Depositions pending action under Rule 23; and

2. Depositions before action or pending appeal under Rule 24.

Q. What are the other modes of discovery and its objective?

A. The other modes of discovery are:

1. Interrogatories to parties (Rule 25);

2. Requests for admission by adverse party (Rule 26);
3. Production or inspection of documents or things (Rule 27);
4. Physical and mental examination of persons (Rule 28).

Q. What is the object of the modes of discovery? Explain.

A. The object of discovery is to make it possible for all the parties to a case to learn all the material
and relevant facts, from whoever may have knowledge thereof, to the end that their pleadings or motions may not
suffer from inadequacy of factual foundation, and all the relevant facts may be clearly and completely laid before the
Court, without omission or suppression.

Q. What is the purpose of the law for the availability of Depositions? Explain.

A. Depositions are principally made available by law to the parties as a means of informing
themselves of all the relevant facts; they are not therefore generally meant to be a substitute for the actual testimony
in open court of a party or witness. The deponent must as a rule be presented for oral examination in open court at
the trial or hearing.

Q. What are the two (2) instances when depositions can be availed?

A. They are as follows:

(1) After the court has acquired jurisdiction over the defendant or the property subject of the action; and (2)
After an answer has been served. Both instances presuppose that the court has already acquired jurisdiction over the
defendant.

RULE 23—DEPOSITIONS PENDING ACTIONS

The taking of depositions under Rule 23, Section 1 is clear that the testimony of any person may be taken by
deposition upon oral examination or written interrogatories at the instance of any party. In the case of San Luis vs.
Rojas, the High Court explained that this provision does not make any distinction or restriction as to who can avail
of deposition.

SEC. 2.–SCOPE OF EXAMINATION

Q. What is the scope of examination in a deposition?

A. The deponent may be examined regarding any matter, not privileged, which is relevant to the
subject of the pending action, whether relating to the claim or defense of any other party, including the
existence, description, nature, custody, condition, and location of any books, documents, or other tangible
things and the identity and location of persons having knowledge of relevant facts.

Q. What are the different uses of the modes of discovery?

A. The different modes of discovery can be utilized as:

(1) a device, along with the pre-trial hearing under Rule 18 of the amended 1997 Rules of Civil Procedure, to
narrow and clarify the basic issues between the parties; and (2) a device for ascertaining the facts relative to
those issues.

WHEN LEAVE OF COURT IS REQUIRED

Q. What modes of discovery require prior leave of court?

A. Leave of court is required in the following modes of discovery:

(a) Production or inspection of documents or things in accordance with Rule 27; or (b) Physical and
mental examination of persons under Rule 28, which may be granted upon due application and a showing of due
cause.

Q. What are the consequences when a party refused to comply with the discovery procedure?

A. This may result in:

a) Dismissal of the actionor proceeding or part thereof, or rendering a judgment by default against the
disobedient party; b) Contempt of court, or arrest of the party or agent of the party; c) Payment of the amount of
reasonable expenses incurred in obtaining a court order to compel discovery; d) Taking the matters inquired into
as established in accordance with the claim of the party seeking discovery; e) Refusal to allow the disobedient party
to support or oppose designated claims or defenses; f) Striking out pleadings or parts thereof; staying further
proceedings.
SEC. 4.–USES OF EXAMINATION

Q. Can deposition be used without the deponent being actually called to the witness stand?
Explain.

A. Yes. The Supreme Court has held that "depositions may be used without the deponent being
actually called to the witness stand by the proponent, under certain conditions and for certain limited purposes."
These exceptional cases are enumerated in Rule 23, Section 4(c) as follows: The deposition of a witness, whether or
not a party, may be used by any party for any purpose if the court finds:

(1) That the witness is dead; or (2) That the witness resides at a distance more than one hundred (100)
kilometers from the place of trial or hearing, or is out of the Philippines, unless it appears that his absence was
procured by the party offering the deposition; or (3) That the witness is unable to attend or testify because of age,
sickness, infirmity, or imprisonment; or (4) That the party offering the deposition has been unable to procure the
attendance of the witness by subpoena; or (5) Upon application and notice, that such exceptional circumstances exist
as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of
witnesses orally in open court, to allow the deposition to be used.

Q. What are the requisites in order that a testimony in a former proceeding can be admitted?

A. Section 49, Rule 130 of the Revised Rules of Evidence lays down the following requisites for the
admission of a testimony or deposition given at a former case or proceeding:

1. The testimony or deposition of a witness deceased or otherwise unable to testify; 2. The testimony was
given in a former case or proceeding, judicial or administrative; 3. Involving the same parties; 4. Relating to the
same matter; 5. The adverse party having had the opportunity to cross-examine him. [Republic vs. Sandiganbayan
(Fourth Division), et al., G.R. No. 152375, 16 December 2011](En Banc) [Brion, J.]

Q. Who has the authority to take deposition in the Philippines?

A. Section 10, Rule 23 of the Rules provides that depositions may be taken before any judge, notary
public, or the person referred to in Section 14 of Rule 23, i.e., any person authorized to administer oaths if the
parties so stipulate in writing. Until the Court revises its rules and removes the authority to take depositions from the
notary public or any person authorized to administer oaths if the parties so stipulate, these persons retain their
authority to take depositions. The trial courts cannot arrogate these duties exclusively upon themselves.

Q. How is deposition taken if the deponent is abroad?

A. If in a foreign state or country, the deposition shall be taken:

(a) on notice before a secretary or embassy or legation, consul general, consul, vice-consul, or consular agent
of the Republic of the Philippines; or (b) before a such person or officer as may be appointed by commission or
under letters rogatory. (Sec. 11, Rule 23).

WHEN LEAVE OF COURT IS NOT NECESSARY

Leave of court is not necessary where the deposition is to be taken before "a secretary or embassy or legation,
consul-general, consul, vice-consul, or consular agent of the Republic of the Philippines," and the defendant's
answer has already been served. (Section 11, Rule 23).

Q. When may the court intervene in the process of deposition?

A. The court intervenes in the process only if a party moves:

(1) to enlarge or shorten the time stated in the notice; or (2) upon notice and for good cause shown, to prevent
the deposition-taking, or impose conditions therefor, e.g., that certain matters shall not be inquired into or that the
taking be held with no one present except the parties to the action and their officers or counsel, etc. (Sec. 16, Rule
23); or (3) to terminate the process on motion and upon a showing that it is being conducted in bad faith or in such
manner as unreasonably to annoy, embarrass, or oppress the deponent or party. (Sec 18, Rule 23)

Q. Can a non-resident foreign corporation, as a plaintiff in a case filed in this jurisdiction, avail
the provision of Rule 23 on taking of depositions of his witnesses all residing in the United States? Explain.

A. Yes. Utmost freedom governs the taking of depositions to allow the widest scope in the gathering
of information by and for all parties in relation to their pending case. This is provided by Section 1, Rule 23 of the
amended 1997 Rules of Civil Procedure. As regards the taking of depositions, Rule 23, Section 1 is clear that the
testimony of any person may be taken by deposition upon oral examination or written interrogatories at the instance
of any party.
In San Luis vs. Roxas, the High Court explained that the provision of Section 1, Rule 23 does not make any
distinction or restriction as to who can avail of deposition. Thus, the High Court found it immaterial that the plaintiff
was a non-resident foreign corporation and that all its witnesses were Americans residing in the United States.

PROBLEM:

Amalia Dipaculangan was apprehended in Adisucipto International Airport in Yogyakarta, Indonesia for
allegedly carrying 2.6 kilograms of heroin inside her luggage. She was convicted and sentenced to death by firing
squad for Drug Trafficking.

Jess Dima and Anthony Tavern, the recruiters of Amalia in the Philippines, were charged by the NBI for the
following violations of R.A. No. 9208, otherwise known as "Anti-Trafficking in Persons Act of 2003"; Illegal
recruitment as penalized under Section 6, par. (k) and (1) of R.A. No. 8042, otherwise known as "Migrant Workers
and Overseas Filipino Workers Act of 1995"; and estafa in violation of Section 2(a), Article 315 of the RPC.

The representatives of the PDEA and DFA went to Indonesia, where Amalia executed a Sinumpaang Salaysay
of her ordeal when she was recruited by Dima and Tavern. In view of the representation of the Philippine
Government that the testimony of Amalia is vital to the case filed in the Philippines, the President of Indonesia
granted an indefinite suspension of the execution of Amalia. The Indonesian authorities, however, imposed the
following conditions relative to the taking of Amalia’s testimony:

(a) Amalia shall remain in detention in Yogyakarta, Indonesia; (b) No cameras shall be allowed; (c) The
lawyers of the parties shall not be present; and (d) The questions to be propounded to Amalia shall be in writing.

The prosecution filed a "Motion for Leave of Court to Take the Testimony of Complainant Amalia by
Deposition Upon Written Interrogatories." Dima and Tavern objected to the motion asserting that the deposition
should be made before and not during the trial. The depositions under Rules 23 and 25 of the Rules of Court are not
designed to replace the actual testimony of the witness in open court and the use thereof is confined only to civil
cases. Also, they argued that such a method of taking testimony will violate their right to confront the witness,
Amalia, or to meet her face to face as provided under Section 14(2) of the 1987 Constitution. The trial court granted
the motion. However, on certiorari to the CA, it was reversed.

Can a prosecution witness, like Amalia, who was convicted of drug trafficking and sentenced to death
by firing squad by the Indonesian Government and presently confined in a prison facility in Indonesia, testify
by way of a deposition without violating the constitutional right of the accused to confront the witness?

SUGGESTED ANSWER:

Yes. In People vs. Sergio and Lacanilao (G.R. No. 24053, 9 October 2019)(Third Division) [Hernando,
J.], a case with similar factual milieu with the problem, the High Court explained: Nowhere in the present Rules on
Criminal Procedure does it state how a deposition of a prosecution witness who is at the same time convicted of a
grave offense by the final judgment and imprisoned in a foreign jurisdiction, may be taken to perpetuate the
testimony of such witness. The Rules, in particular, are silent as to how to take testimony of a witness who is unable
to testify in open court because he is imprisoned in another country.

Depositions, however, are recognized under Rule 23 of the Rules on Civil Procedure. Although the rule on
deposition by written interrogatories is inscribed under the said Rule, the Court holds that it may be applied
suppletorily in criminal proceedings so long as there is compelling reason. In the problem, the conditions with
respect to the taking of the testimony of Amalia that were laid down by the Indonesian Government support the
allowance of written interrogatories under Rule 23, Sections 1, 11 and 25 of the Rules of Court. Similarly, the
deposition by written interrogatories will not infringe on the constitutional right to confrontation of accused
Dima and Tavern.
 True, Dima and Tavern have no opportunity to confront Amalia face to face in light of the prevailing
circumstance. However, they can be given ample opportunity to cross-examine Amalia by way of written
interrogatories so as not to defeat the purpose of their constitutional right to cross-examination. Although the
deposition is in writing, the trial court judge can still carefully perceive the reaction and deportment of Amalia as
she answers each question propounded to her both by the prosecution and the defense.

It must be mentioned that a "dying declaration" is one of the recognized exceptions to the right to
confrontation. In the case at bar, it will not be amiss to state that Amalia’s deposition through written
interrogatories is akin to her dying declaration. There is no doubt that Amalia will be answering the written
interrogatories under the consciousness of an impending death - or execution by a firing squad to be exact.

RULE 24 - DEPOSITIONS BEFORE ACTION OR PENDING APPEAL (SECS. 1-7)

(RULE 134 OF THE RULES OF REVISED RULES OF EVIDENCE WAS TRANSPOSED IN THE 1997
RULES OF CIVIL PROCEDURE AS RULE 24)

Q. What does in perpetuam rei memoriam mean?

A. It is a written deposition taken to memorialize testimony. An examination in perpetuam rei

momoriam (Latin for the “perpetual remembrance of a thing”) was taken according to the common law, in equity, or
in anticipation of an action and under orders of a court of equity or commissioners, of a person whose age or
infirmity supported a concern that the evidence must be recorded or be available at trial.

Q. Explain the proceedings for the perpetuation of testimony.

A. In proceedings for the perpetuation of testimony, no question of law is involved; the court
makes no decision therein; no right is recognized or declared in favor of or against anyone, and all that the
court has to do is to hear the witnesses and certify to their depositions. The court cannot even make findings
as to the credibility of the witnesses or the probatory value of their testimony. The only time when this can be
done is at the trial where the testimony thus preserved is to be utilized or offered in evidence in such cases;
Therefore, properly speaking, the testimony thus perpetuated is not in itself conclusive proof, either of the existence
of any right or even of the facts to which they relate, as it can be controverted at the trial in the same manner as
though no perpetuation of testimony was ever had.

Q. Is cross-examination available in the proceedings for perpetuation of testimony? Explain.

A. Yes. In proceedings for the perpetuation of testimony, the right to cross-examine a deponent is an
even more vital part of the procedure. In fact, the Revised Rules on Evidence provide that depositions previously
taken are only admissible in evidence against an adverse party who had the opportunity to cross-examine the
witness. Because depositions are an exception to the general rule on the inadmissibility of hearsay testimony, the
process of cross-examination is an important safeguard against false statements.

USE OF DEPOSITION IN CRIMINAL CASES

The procedure for taking depositions in criminal cases recognizes the prosecution's right to preserve
testimonial evidence and prove its case despite the unavailability of its witness. It cannot, however, give license to
prosecutorial indifference or unseemly involvement in a prosecution witness' absence from trial. To rule otherwise
would effectively deprive the accused of his fundamental right to be confronted with the witnesses against him.

The procedure for testimonial examination of an unavailable prosecution witness is covered under
Section 15, Rule 119.
The examination of witnesses must be done orally before a judge in open court. This is true, especially in
criminal cases where the Constitution secures the accused his right to a public trial and to meet the witnesses against
him face to face. The requirement is the "safest and most satisfactory method of investigating facts" as it enables the
judge to test the witness' credibility through his manner and deportment while testifying. It is not without
exceptions, however, as the Rules of Court recognize the conditional examination of witnesses and the use of their
depositions as testimonial evidence in lieu of direct court testimony.

Even in criminal proceedings, there is no doubt as to the availability of conditional examination of witnesses –
both for the benefit of the defense, as well as the prosecution. The Court's ruling in the case of Vda. de Manguerra
vs. Risos explicitly states that — "x x x As exceptions, Rules 23 to 28 of the Rules of Court provide for the different
modes of discovery that may be resorted to by a party to an action. These rules are adopted either to perpetuate the
testimonies of witnesses or as modes of discovery. In criminal proceedings, Sections 12, 13, and 15, Rule 119 of
the Revised Rules of Criminal Procedure, which took effect on December 1, 2000, allow the conditional
examination of both the defense and prosecution witnesses."

But for purposes of taking the deposition in criminal cases, more particularly of a prosecution witness
who would foreseeably be unavailable for trial, the testimonial examination should be made before the court,
or at least before the judge, where the case is pending as required by the clear mandate of Section 15, Rule
119 of the Revised Rules of Criminal Procedure.

Thus, in Go, et al. vs. People (G.R. No. 185527, 18 July 2012)(Third Division)[Perlas-Bernabe, J.], the
High Court held that:

Since the conditional examination of a prosecution witness must take place at no other place than the court
where the case is pending, the RTC properly nullified the MeTC's orders granting the motion to take the deposition
of Li Luen Ping before the Philippine consular official in Laos, Cambodia.

THE 2019 CASE OF PEOPLE VS. SERGIO AND LACANILAO

In People vs. Sergio and Lacanilao (G.R. No. 24053, 9 October 2019)(Third Division) [Hernando, J.],
where the deposition was allowed in Indonesia in a criminal case pending in the Regional Trial Court, Branch 88, of
Sto. Domingo, Nueva Ecija, the High Court explained:

Nowhere in the present Rules on Criminal Procedure does it state how a deposition of a prosecution witness
who is at the same time convicted of a grave offense by the final judgment and imprisoned in a foreign jurisdiction,
may be taken to perpetuate the testimony of a such witness. The Rules, in particular, are silent as to how to take
testimony of a witness who is unable to testify in open court because he is imprisoned in another country.

Depositions, however, are recognized under Rule 23 of the Rules on Civil Procedure. Although the rule on a
deposition by written interrogatories is inscribed under the said Rule, the Court holds that it may be applied
suppletory in criminal proceedings so long as there is compelling reason.

RULE 33 – DEMURRER TO EVIDENCE

Q. What is a demurrer to evidence?

A. A demurrer to evidence is a motion to dismiss on the ground of insufficiency of evidence. It is a

remedy available to the defendant, to the effect that the evidence produced by the plaintiff is insufficient in point of
law, whether true or not, to make out a case or sustain an issue. The question in a demurrer to evidence is whether
the plaintiff, by his evidence in chief, had been able to establish a prima facie case.

Q. What is the effect when demurrer to evidence is granted by the trial court but was reversed
by the appellate court?

A. If a demurrer to evidence is granted but on appeal the order of dismissal is reversed, the
movant shall be deemed to have waived the right to present evidence. The movant who presents a demurrer to
the plaintiff’s evidence retains the right to present their own evidence, if the trial court disagrees with them; if the
trial court agrees with them, but on appeal the appellate court disagrees with both of them and reverses the dismissal
order, the defendants lose the right to present their own evidence. The appellate court shall, in addition, resolve the
case and render judgment on the merits, in asmuch as a demurrer aims to discourage prolonged litigations.

RULE 34 - JUDGMENT ON THE PLEADINGS

Q. When can there be judgment on the pleadings?

A. A judgment on the pleadings may be allowed in cases "where an answer fails to tender an issue,
or otherwise admits the material allegations of the adverse party's pleading." In this relation, jurisprudence
dictates that an answer fails to tender an issue if it does not comply with the requirements of a specific denial as
set out in Sections 8 and 10, Rule 8 of the amended 1997 Rules of Civil Procedure, resulting in the admission
of the material allegations of the adverse party’s pleadings. As such, it is a form of judgment that is exclusively
based on the submitted pleadings without the introduction of evidence, as the factual issues remain uncontroverted.
 Any action of the court on a motion for judgment on the pleadings shall not be subject of an appeal or petition
for certiorari, prohibition or mandamus. (Sec. 2)

SUMMARY JUDGMENT DISTINGUISHED FROM JUDGMENT ON THE PLEADINGS

In Tan vs. De la Vega, citing Narra Integrated Corporation vs. CA, the Supreme Court distinguished
summary judgment from judgment on the pleadings, viz:

In judgment on the pleadings, there is no ostensible issue at all because of the failure of the defending
party’s answer to raise an issue. In the case of a summary judgment, issues apparently exist –i.e. facts are asserted
in the complaint regarding which there is as yet no admission, disavowal or qualification; or specific denials or
affirmative defenses are in truth set out in the answer – but the issues thus arising from the pleadings are sham,
fictitious or not genuine, as shown by affidavits, depositions, or admissions.

CORRELATE WITH SEC. 10, RULE 18 – JUDGMENT AFTER PRE-TRIAL

Q. When can the court render judgment after pre-trial?

A. The court can render judgment after the pre-trial when:

1. There is no more controverted facts; 2. There is no genuine issue as to any material fact; 3. Absence of any
issue; or 4. The answer fail to tender an issue. In those cases mentioned in 1-4, the court shall, without prejudice to a
party moving for judgment on the pleadings under Rule 34 or summary judgment under Rule 35, motu proprio
include in the pre-trial order that the case be submitted for summary judgment or judgment on the pleadings, without
need of position papers or memoranda.

RULE 35 - SUMMARY JUDGMENTS

SEC. 1.–SUMMARY JUDGMENT FOR CLAIMANT

Q. What is a summary judgment? Explain.

A. A summary judgment is permitted only if there is no genuine issue as to any material fact and
the moving party is entitled to a judgment as a matter of law. The test of the propriety of rendering summary
judgments is the existence of a genuine issue of fact, as distinguished from a sham, fictitious, contrived, or false
claim. A factual issue raised by a party is considered as sham when, by its natureit is evident that it cannot be
proven, or it is such that the party tendering the same has neither any sincere intention nor adequate evidence to
prove it. This usually happens in denials made by defendants merely for the sake of having an issue, and thereby
gaining delay, taking advantage of the fact that their answers are not under oath anyway. (Aljem’s Credit Investors
Corp. vs. Sps. Bautista, G.R. No. 215175, 25 April 2022)(Second Division)[Hernando, J.]

Q. How should the court determine if there are genuine issues? Explain.

A. In determining the genuineness of the issues, the court is obliged to carefully study and appraise,
not the tenor or contents of the pleadings, but the facts alleged under oath by the parties and/or their witnesses in the
affidavits that they submitted with the motion and the corresponding opposition. Thus, it is held that, even if the
pleadings on their face appear to raise issues, a summary judgment is proper so long as "the affidavits, depositions,
and admissions presented by the moving party show that such issues are not genuine."

Additionally, in order for summary judgment to be granted in lieu of a full-blown trial, the party moving for
summary judgment must establish unequivocally the absence of genuine issues of fact or that the issue posed
is so patently insubstantial as to constitute a genuine issue. (Aljem’s Credit Investors Corp. vs. Sps. Bautista,
G.R. No. 215175, 25 April 2022) (Second Division) [Hernando, J.]

RULE 36 - RENDITION AND ENTRY OF JUDGMENTS AND FINAL ORDERS

Q. What is the purpose of the provision of Art. VIII, Section 14 of the Constitution in relation to
Section 1, Rule 36 of the ROC? Explain.

A. The purpose is to inform the person reading the decision, and especially the parties involved in the
case, of how the decision was reached by the court after consideration of the pertinent facts and examination of the
applicable laws. A decision that does not clearly and distinctly state the facts and the law on which it is based leaves
the parties in the dark as to how it was reached. It is especially prejudicial to the losing party who is unable to
pinpoint the possible errors of the court for review by a higher tribunal. (Domeles vs. Sps. Pastor, G.R. No. 207887,
14 March 2022)(Second Division)[Hernando, J.]

SEC. 2.–ENTRY OF JUDGMENT AND FINAL ORDERS

Q. What is the effect if a decision becomes final and executory? Explain.

A. When a decision becomes final and executory, it becomes valid and binding upon the parties and
their successors in interest. Such decision or order can no longer be disturbed or reopened no matter how erroneous
it may have been. A definitive final judgment, however erroneous, is no longer subject to change or revision.
(Aromin vs. Heirs of Spouses Wilfredo and Leonila Somis et al., G.R. No. 204447, May 03, 2021) (Third
Division)[Hernando, J.]; (Ramirez vs. Elomina, G.R. No. 202661, March 17, 2021) (Third Division)
[Hernando, J.]

POST JUDGMENT REMEDIES

1. RULE 37 - NEW TRIAL OR RECONSIDERATION

SEC. 1.–GROUNDS OF AND PERIOD FOR FILING MOTION FOR NEW TRIAL OR
RECONSIDERATION; SEC. 2.–CONTENTS OF MOTION FOR NEW TRIAL OR RECONSIDERATION
AND NOTICE THEREOF

Q. What is required if a party files a motion for a new trial as there is a newly discovered
evidence?

A. Section 2 of Rule 37 requires that a motion for the cause mentioned in paragraph (b) of the Section
1, Rule 37, shall be supported by affidavits of the witnesses by whom such evidence is expected to be given, or
by duly authenticated documents which are proposed to be introduced in evidence. The affidavit required is an
affidavit of merit which states the facts constituting the movant's good and substantial defense, which he may prove
if the motion is granted.

Q. What are the requistes for the introduction of newly discovered evidence?

A. The requisites are as follows: (1) the evidence was discovered after trial; (2) such evidence could
not have been discovered and produced at the trial even with the exercise of reasonable diligence; (3) it is
material, not merely cumulative, corroborative, or impeaching; and (4) the evidence is of such weight that it would
probably change the judgment if admitted. If the alleged evidence could have very well been presented during the
trial with the exercise of reasonable diligence, the same could not be considered newly discovered evidence.

2. APPEALS (RULES 40-45)[EXCEPT RULE 44]

Q. What is the nature of the right to appeal? Explain.

A. The right to appeal is not a part of due process of law, but is a mere statutory privilege to be
exercised only in the manner, and in accordance with, the provisions of the law. After a decision is declared final and
executory, vested rights are acquired by the winning party. The perfection of an appeal in the manner and within the
period prescribed by law is not only mandatory but jurisdictional. This means that the failure to interpose a timely
appeal deprives the appellate body of any jurisdiction to alter the final judgment, more so to entertain the appeal.
Once a decision attains finality, it becomes the law of the case irrespective of whether the decision is erroneous or
not, and no court - not even the Supreme Court - has the power to revise, review, change or alter the same. (BIR vs.
TICO, G.R. No. 204226, 18 April 2022)(Second Division)[Hernando, J.]; (Brual vs. Brual-Contreras, G.R. No.
205481, 7 March 2022)(Second Division)[Hernandeo, J.]

Q. Explain the doctrine of the fresh period rule?

A. To standardize the appeal periods and to afford the litigants fair opportunity to appeal their cases,
the Supreme Court ruled in Neypes vs. Court of Appeals that litigants must be given a fresh period of fifteen (15)
days within which to appeal, counted from receipt of the order dismissing a motion for a new trial or motion for
reconsideration under the Rules of Court, viz:

1. Rule 40 governing appeals from the Municipal Trial Courts to the Regional Trial Courts;
2. Rule 41 governing appeal from the Regional Trial Courts to the Court of Appeals;
3. Rule 42 on petitions for review from the Regional Trial Courts to the Court of Appeals;
4. Rule 43 on appeals from quasi-judicial agencies to the Court of Appeals; and
5. Rule 45 governing appeals by certiorari to the Supreme Court.

This ruling, as the Court have said in Fil-Estate Properties, Inc. vs. Homena-Valencia, retroactively applies
even to cases pending prior to the promulgation of Neypes on September 14, 2005, there being no vested rights in
the rules of procedure. This aims to regiment or to make the appeal period uniform, to be counted from receipt of the
order denying the motion for new trial, motion for reconsideration, whether full or partial, or any final order or
resolution.

DOCTRINE OF FINALITY/IMMUTABILITY OF JUDGMENT

Q. What is the concept of finality/immutability of judgment? Explain.

A. Under the doctrine of immutability of judgment, a decision or order that has attained finality
can no longer be modified in any respect, even if the modification is meant to correct erroneous conclusions of fact
and law and whether it be made by the court that rendered it or by the Highest Court of the land. A final and
executory decision is immutable. A decision or order becomes final and executory if the aggrieved party fails to
appeal or move for a reconsideration within 15 days from his or her receipt of the court's decision or order disposing
of the action or proceeding. The doctrine is grounded on public policy and sound practice which must not simply be
ignored. It is adhered to by the courts to end litigations albeit the presence of errors. (Taningco et al. vs. Fernandez,
et al., G.R. No. 215615, December 09, 2020)(Third Division)[Hernando, J.]; (Angono Medics Hospital, Inc.,
vs. Agabin (G.R. No. 202542, December 09, 2020)(Third Division)[Hernando, J.]

Q. What are the exceptions to the immutability of final judgment?

A. The exceptions to the rule on the immutability of final judgments are:

(1) the correction of clerical errors, (2) the so-called nunc pro tunc entries which cause no prejudice to any
party, and (3) void judgments. (Taningco et al. vs. Fernandez, et al., G.R. No. 215615, December 09, 2020)(Third
Division)[Hernando, J.]; (Angono Medics Hospital, Inc., vs. Agabin (G.R. No. 202542, December 09, 2020)
(Third Division) [Hernando, J.]

RULE 41- APPEAL FROM THE REGIONAL TRIAL COURTS

Q. What is the immediate remedy of a party if the case is dismissed for lack of jurisdiction over
the defendant? Explain.

A. An order dismissing an action for lack of jurisdiction over the party-defendant is cognizable
under a special civil action for certiorari. An order granting a motion to dismiss on the ground that the court has
no jurisdiction over the person of the defendant is without prejudice to the refiling of the same action or claim. In
connection thereto, Section 1, Rule 41 clearly provides that an order dismissing an action without prejudice may not
be appealed via a Rule 41 petition and must instead be assailed through a petition for certiorari under Rule 65.
(Jorgenetics Swine Improvement Corporation, vs. Thick & Thin Agri-Products, Inc.,G.R. No. 201044 and
222691, 05 May 2021)(Third Division) [Hernando, J.]

Q. Distinguish Final Order from Interlocutory Order.

A. Final Order disposes of the subject matter in its entirety or terminates the particular proceeding or
action, leaving nothing more to be done except to enforce by execution what the court has determined; Whereas an
Interlocutory Order, it does not completely dispose of the case but leaves something else to be decided upon. An
interlocutory order deals with preliminary matters and the trial on the merits is yet to be held and the judgment
rendered. The test to ascertain whether or not an order or a judgment is interlocutory or final is: does the order or
judgment leave something to be done in the trial court with respect to the merits of the case? If it does, the order or
judgment is interlocutory; otherwise, it is final. (East West Bank vs. Cruz, G.R. No. 221641, 12 July 2021)
(Second Division)[Hernando, J.]

Q. What are the three (3) modes of appeal under Rule 41?

A. The three (3) modes of appeal are as follows:

a) The first mode of appeal, the ordinary appeal under Rule 41 of the Rules of Court, is brought to the
CA from the RTC, in the exercise of its original jurisdiction, and resolves questions of fact or mixed questions of
fact and law.

b) The second mode of appeal, the petition for review under Rule 42 of the Rules of Court, is brought to
the CA from the RTC, acting in the exercise of its appellate jurisdiction, and resolves questions of fact or mixed
questions of fact and law.

c) The third mode of appeal, the appeal by certiorari under Rule 45 of the Rules of Court, is brought to
the Supreme Court and resolves only questions of law. (East West Bank vs. Cruz, G.R. No. 221641, 12 July 2021)
(Second Division)[Hernando, J.]

RULE 42- PETITION FOR REVIEW FROM THE RTCs TO THE CA

Q. What is the mode of appeal from the decision of the RTC in the exercise of its appellate
jurisdiction? Explain.

A. Under Rule 42, Section 1 of the Rules of Court, the remedy from an adverse decision
rendered by a Regional Trial Court exercising its appellate jurisdiction is to file a verified petition for review
with the CA. A petition for review under Rule 42 may include questions of fact, of law, or mixed questions of
fact and law. The power to hear cases on appeal in which only questions of law are raised is not vested exclusively
in the Supreme Court. As provided in Rule 42, Section 2, errors of fact or law, or both, allegedly committed by the
RTC in its decision must be specified in the petition for review.

RULE 43 – APPEALS FROM THE [CTA], AND QUASI-JUDICIAL AGENCIES TO THE COURT OF
APPEALS

Q. What is the effect of the factual findings of quasi-judicial agencies in administrative cases?
Explain.

A. Factual findings of quasi-judicial bodies and administrative agencies, when supported by

substantial evidence, are accorded great respect and even finality by the appellate courts. Administrative agencies
have specialized knowledge and expertise in their respective fields. Thus, their findings of fact are binding upon the
Supreme Court except if there is grave abuse of discretion, or where it is clearly shown that they were arrived at
arbitrarily or in disregard of the evidence on record. (CSC vs. vs. Beray, G.R. No. 191946, December 10, 2019)
(En Banc Hernando, J.); (Espina vs. CSC, G.R. No. 191946, December 10, 2019)(En Banc)[Hernando, J.]

CONSTRUCTION INDUSTRY ARBITRATION COMMISSION (CIAC)

Q. What is the jurisdiction of the CIAC?

 A. Section 4 of the CIAC Law lays down the jurisdiction of the Commission, as follows: The CIAC
shall have original and exclusive jurisdiction over disputes arising from, or connected with, contracts entered
into by parties involved in construction in the Philippines, whether the dispute arises before or after the
completion of the contract, or after the abandonment or breach thereof. These disputes may involve
government or private contracts. For the Board to acquire jurisdiction, the parties to a dispute must agree to submit
the same to voluntary arbitration. The jurisdiction of the CIAC may include but is not limited to violation of
specifications for materials and workmanship; violation of the terms of agreement; interpretation and/or
application of contractual time and delays; maintenance and defects; payment, default of employer or
contractor and changes in contract cost. Excluded from the coverage of this law are disputes arising from
employer-employee relationships which shall continue to be covered by the Labor Code of the Philippines.

Q. As a general rule, the awards of the Arbitral Tribunal may be appealed only on pure
questions of law, and its factual findings should be respected and upheld. Is there an exception/s since the
CIAC Arbitration Law does not provide when an arbitral award may be vacated? Explain.

A. Yes. In Wyeth Philippines, Inc. vs. CIAC, supra, [2020] citing the case of Sps. David vs. CIAC,
[2004] it was held: We reiterate the rule that factual findings of construction arbitrators are final and conclusive and
not reviewable by the Supreme Court on appeal, except when the petitioner proves affirmatively that:

(1) the award was procured by corruption, fraud or other undue means; (2) there was evident partiality or
corruption of the arbitrators or of any of them; (3) the arbitrators were guilty of misconduct in refusing to postpone
the hearing upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy;
(4) one or more of the arbitrators were disqualified to act as such under Section nine of Republic Act No. 876 and
willfully refrained from disclosing such disqualifications or of any other misbehavior by which the rights of any
party have been materially prejudiced; or (5) the arbitrators exceeded their powers, or so imperfectly executed them,
that a mutual, final and definite award upon the subject matter submitted to them was not made.

Q. What are the guidelines with respect to judicial review vis-à-vis CIAC arbitral award?

A. The new guidelines pursuant to the case of Global Medical Center of Laguna, Inc. vs. Ross
Systems International, Inc. (G.R. No. 230112) and Ross Systems International, Inc. vs. Global Medical Center
of Laguna, Inc. (G.R. No. 230119)](11 May 2021)(En Banc)[Caguioa, J.] which must be applied prospectively
are as follows:

1. For appeals from CIAC arbitral awards that have already been filed and are currently pending
before the CA under Rule 43, the prior availability of the appeal on matters of fact and law thereon applies.
This is only proper since the parties resorted to this mode of review as it was the existing procedural rules at the time
of filing, prior to the instant amendment.

2. For future appeals from CIAC arbitral awards that will be filed after the promulgation of this
Decision:

a. SC - If the issue to be raised by the parties is a pure question of law, the appeal should be filed directly
and exclusively with the Supreme Court through a petition for review under Rule 45.

b. CA - If the parties will appeal factual issues, the appeal may be filed with the CA, but only on the limited
grounds that pertain to either a challenge on the integrity of the CIAC arbitral tribunal (i.e., allegations of corruption,
fraud, misconduct, evident partiality, incapacity or excess of powers within the tribunal) or an allegation that the
arbitral tribunal violated the Constitution or positive law in the conduct of the arbitral process, through the special
civil action of a petition for certiorari under Rule 65, on grounds of grave abuse of discretion amounting to
lack or excess in jurisdiction. The CA may conduct a factual review only upon sufficient and demonstrable
showing that the integrity of the CIAC arbitral tribunal had indeed been compromised, or that it committed
unconstitutional or illegal acts in the conduct of the arbitration.

3. Under no other circumstances other than the limited grounds provided above may parties appeal to the CA a
CIAC arbitral award.

REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE OFFICE OF THE OMBUDSMAN

(ADMINISTRATIVE CASES)

PROBLEM:
 An administrative complaint was filed against Vice Mayor Jose Dima and members of the Sangguniang Bayan
of Iraga, Camarines Sur for Gross Negligence and violation of the Code of Conduct and Ethical Standards for Public
Officials and Employees. The complaint was grounded on the local government officials' failure to respond to the
request of a certain organization for an ordinance establishing a marine reserve and fish sanctuary in Iraga. Alex
Santos and Bryan Mangon are among the members of the Sangguniang Bayan impleaded in the complaint. After
investigation, the Ombudsman imposed a penalty of six (6) months suspension. Respondents filed a Motion for
Reconsideration. The Ombudsman reduced the penalty to three (3) months suspension. In the meantime, respondents
were re-elected as local officials of Iraga. Jess Dima, et al., filed a Petition for Certiorari with the Supreme Court on
the ground of grave abuse of discretion on the part of the Ombudsman.

Was the filing of a Petition for Certiorari with the Supreme Court proper, considering that the
Ombudsman committed grave abuse of discretion amounting to lack or excess of jurisdiction for imposing the
reduced penalty against vice Mayor Jose Dima, et al.? Explain.

SUGGESTED ANSWER:

No. Appeals from the decisions of the Ombudsman in administrative disciplinary cases should be taken to the
Court of Appeals under the provisions of Rule 43 as held by the Supreme Court in Fabian v. Desierto, 356 Phil.
787, 808 (1998). In Favian, the High Court declared Section 27 of R.A. No. 6770 as unconstitutional, and in line
with the regulatory philosophy adopted in appeals from quasi-judicial agencies in the 1997 Revised Rules of Civil
Procedure, appeals from decisions of the Office of the Ombudsman in administrative disciplinary cases should be
taken to the Court of Appeals under the provisions of Rule 43. Such ruling has been reiterated in many subsequent
cases, and has been later on incorporated in the first paragraph of Section 7, Rule III of the Ombudsman's Rules of
Procedure. (Monterde vs. Jacinto, G.R. No. 214102, 14 February 2022)(Second Division)[Hernando, J.].

Q. Can the length of service be considered as mitigating circumstance when the offense
committed is found to be serious like bigamy? Explain.

A. No. The administrative offense of Conviction of a Crime Involving Moral Turpitude is a grave
offense, punishable by dismissal from service. Bigamy cannot be taken lightly as its commission reflects the
person's character. It involves moral turpitude as settled in jurisprudence. (Gonzalbo vs. CSC, G.R. No. 239995, 15
June 2022)(First Division)[Hernando, J.]

PROBLEM:

A criminal case for violation of Section 65 (A)(4), Article XXI of RA 9184 in relation to Section 56.1.4., IRR
of RA 9184 was filed by the OMB against Jose Dima in the RTC of Dipolog City. It indicted Dima for taking
advantage of his official position as government officer by conspiring together with other government officials and
helping one another in splitting a single procurement contract amounting to ₱5,500,000.00 for guard rails and
accessories into eleven (11) ₱500,000.00 contracts to avoid competitive public bidding and to circumvent
Department Order No. 319 series of 2002 limiting the authority of District/Sub-District Engineers to approve
purchase request to ₱750,000.00 less for infra-related supplies and equipment. An administrative case for Grave
Misconduct, Gross Neglect of Duty, Serious Dishonesty and Conduct Prejudicial to the Best Interest of the Service
was also filed before the Ombudsman against Jose Dima.

Will the dismissal of the criminal case by the RTC absolve Jose Dima from his administrative liabilities?

SUGGESTED ANSWER:

No. The dismissal of the criminal case in the RTC does not have any bearing on the administrative case
against Dima as different degrees of evidence are required in these actions. In criminal cases, proof beyond
reasonable doubt is needed whereas only substantial evidence will suffice in administrative proceedings.
Accordingly, Jose Dima’s acquittal in the criminal aspect of this case does not affect the decision reached in the
administrative case nor carry with it relief from administrative liability.(Minao vs. OMB, G.R. No. 231042, 23
February 2022)(Second Division) [Hernando, J.].

Q. From the denial of the Motion for Reconsideration filed by a respondent before the
Ombudsman in an administrative case, how many days does the former have to file an appeal? Explain.

A. The respondent has fifteen (15) days to elevate the case on appeal to Court of Appeals under Rule
43. It has been consistently held that the right to appeal is a mere statutory privilege and may be exercised only in
the manner prescribed by, and in accordance with, the provisions of law. Under Administrative Order No. 07, as
amended, respondent only had 15 days from the time he received the denial of his Motion for Reconsideration
within which to file a Petition for Review with the CA. (Gabutina vs. Office Of The Ombudsman, G.R. No.
205572, October 07, 2020)(Second Division)[Hernando, J.]

CONDONATION DOCTRINE ABANDONED

Q. Is the condonation doctrine still applicable in this jurisdiction?

A. No. It is no longer applicable. The condonation doctrine is now abandoned. In the case of Carpio-
th
Morales vs. CA (6 Division) and Binay, Jr., (774 SCRA 431, 10 November 2015)(En Banc)[Perlas-Bernabe,
J.], however, the application is prospective in character. It was held that: This Court simply finds no legal authority
to sustain the condonation doctrine in this jurisdiction. As can be seen from this discourse, it was a doctrine
adopted from one class of US rulings way back in 1959 and thus, out of touch from - and now rendered obsolete by -
the current legal regime. In consequence, it is high time for this Court to abandon the condonation doctrine that
originated from Pascual, and affirmed in the cases following the same, such as Aguinaldo, Salalima, Mayor
Garcia, and Governor Garcia, Jr., which were all relied upon by the CA.

It should, however, be clarified that this Court's abandonment of the condonation doctrine should be
prospective in application for the reason that judicial decisions applying or interpreting the laws or the Constitution,
until reversed, shall form part of the legal system of the Philippines. Unto this, Court devolves the sole authority to
interpret what the Constitution means, and all persons are bound to follow its interpretation.

Q. Under Section 7, R.A. No. 6770 or the Ombudsman Act, the decision is immediately
executory even pending appeal. If the decision of the Ombudsman in administrative case is reversed by the
appellate court, is it also immediately executory? Explain.

A. Yes.The CA has a concomitant responsibility to ensure that, in case of exoneration, such a decision
must perforce be immediately executory, notwithstanding an appeal that may be lodged by the Ombudsman with the
Supreme Court. Such rule is necessary to fulfill the interests of justice and fairness, given that not only the
livelihoods of our public servants are at stake, but likewise the efficient operations of government as a whole. (PNP-
CIDG vs. Villafuerte, G.R. Nos. 219771 & 219773, 18 September 2018) (En Banc)[Caguioa, J.].

Q. Is the pendency of a Motion for Reconsideration a ground to stay the execution of a dismissal
Order by the Ombudsman? Explain.

A. No. The pendency of a motion for reconsideration of a decision of the Office of the Ombudsman
does not stay the immediate execution of the penalty of dismissal imposed upon a public officer. This is clear from
A.O. No. 7, as amended by A.O. No. 17, Rule III, Section 7 of the rules of the Office of the Ombudsman and our
jurisprudence.

PROBLEM:

Buenaflor was the former President of QUEDANCOR, a government owned and controlled financing
institution. In an administrative case filed against him, the Office of the Ombudsman found him guilty of grave
misconduct. According to the ruling of the Office of the Ombudsman, which was affirmed by the CA, the
Consolidated Guidelines on QUEDANCOR’s Swine Program (CG-QSP) establishing a credit program to support
the swine industry by providing affordable credit for swine raisers to aid them on their fattening and breeding
activities, was, in reality, a loan in kind and not in money. As such, the CA opined that QUEDANCOR should have
complied with the requirements of public bidding under R.A. No. 9184. On Buenaflor's contention that he was
denied due process as he was found guilty of Grave Misconduct when the charge was for Serious Dishonesty and
Conduct Prejudicial to the Best Interest of the Service, the CA concurred with the ruling of the Ombudsman in that
the designation of the offense with which a person is charged in an administrative case is not controlling and one
may be found guilty of another offense where the substance of the allegations and evidence presented sufficiently
proves one's guilt. While the case was pending and on appeal to the Supreme Court, Buenaflor died.

Can the case still prosper despite the death of respondent Buenaflor? Explain.

SUGGESTED ANSWER:

Yes. Buenaflor's death during the pendency of the instant case does not necessarily preclude the disposition of
his reconsideration or appeal with finality. Certainly, the Supreme Court retains its jurisdiction either to pronounce
the respondent official innocent of the charges or declare him guilty thereof because a contrary rule would be fraught
with injustices and pregnant with dreadful and dangerous implications. The demise of the respondent in
administrative cases does not generally preclude the finding of administrative liability, and while there are
jurisprudentially recognized exceptions to the rule, none are present in this case. The resolution of an
administrative case may continue notwithstanding the death of the respondent if the latter has been given the
opportunity to be heard, or in instances where the continuance thereof will be more advantageous and beneficial to
the respondent's heirs.

RULE 45 - APPEAL BY CERTIORARI TO THE SUPREME COURT

PROBLEM:

Bayron Lee presented his credit card in a restaurant after his dinner with some friends. He has a credit limit of
₱250,000.00. The credit card was disapproved when Bayron used it in payment for the meal. In view of humiliation
and embarrassment, Bayron filed a case against ABC bank for damages. After trial, the RTC awarded the damages
prayed for by Bayron. On appeal, the CA affirmed the RTC's finding of ABC Bank's gross negligence, but it
considerably reduced the awards of moral damages from ₱500,000.00 to ₱30,000.00; exemplary damages from
₱200,000.00 to ₱20,000.00; and, attorney's fees from ₱100,000.00 to ₱10,000.00. Hence, Bayron went the SC to
plead for the reinstatement of the monetary awards granted by the RTC on the ground that the CA's reduction
thereof was without factual and legal basis as it did not clearly and distinctly express the facts and the law on which
its Decision was based.

Is the reduction of the award of damages by the CA a question of law that can be raised to the Supreme
Court under Rule 45? Explain.

SUGGESTED ANSWER:

No. As a general rule, only questions of law may be raised in a petition for review on certiorari as the
Supreme Court is not a trier of facts. In this case, Bayron assails the CA's basis for the reduction of the award of
moral damages, exemplary damages, and attorney's fees, which necessarily involves a re-examination of the
evidence presented. In the exercise of the power of review, the High Court do not normally undertake the re-
examination of the evidence presented by the contending parties during the trial of the case. However, this rule
admits of exceptions, such as, when the findings of fact of the courts a quo will not bind the parties where the
inference made on the evidence is mistaken and the judgment is based on a misapprehension of facts, as in this case.
(Rico vs. Unionbank, G.R. No. 210928, 14 February 2022)(Second Division)[Hernando, J.].

Q. Under Rule 45, only question of law may be raised to the Supreme Court. In labor cases,
when can the Supreme Court take cognizance of question of fact? Explain.

A. A recognized exception is when there are not only different but contradictory findings between that
of the CA and of the labor tribunals. Hence, the Supreme Court can take cognizance if the factual findings of the CA
and the labor tribunals regarding the complainant’s medical condition in relation to whether the same is
compensable under the law are evidently contradictory. Thus, given the contradictions on the questions of fact that
are crucial in determining the applicable laws to the case, it is necessary that the Supreme Court must review and re-
evaluate the records of the case.

[In this case, the High Court holds that the late Antonio's pancreatic cancer is not work-related (as a seafarer)
and therefore, not compensable because he or his heirs failed to prove, by substantial evidence, its work-relatedness
and his compliance with the parameters that the law has set out with regard to claims for disability and death
benefits. While the High Court adheres to the principle of liberality in favor of the seafarer in construing the POEA-
SEC, it cannot allow claims for disability compensation based on surmises. Liberal construction is never a license to
disregard the evidence on record and to misapply the law]. (Marlow Navigation Phils. vs. Heirs of Beato, G.R.
No. 233897, 9 March 2022)(Second Division)[Hernando, J.]

Further, if the findings of the LA and NLRC on the one hand, and the CA, on the other, are conflicting, the
case falls under jurisprudential exemptions. Thus, in the exercise of its equity jurisdiction, the Supreme Court is
compelled to re-evaluate the factual issues and re-examine the questioned findings.

Q. How should labor cases be decided by the High Court elevated under a Rule 45 petition?
Explain.

A. In deciding petitions under Rule 45 assailing the CA's decision from an appeal under Rule 65, the
CA's decision must be examined from the context of whether it correctly determined the presence or absence of
grave abuse of discretion by the NLRC, rather than deciding whether the NLRC decision was correct on the case's
merits. In labor disputes, there is grave abuse of discretion on the part of the NLRC when, inter alia, its findings and
conclusions are not grounded on substantial evidence, or such amount of relevant evidence which a reasonable mind
might sufficiently accept to justify a conclusion. (Teletech vs. Geroma, G.R. No. 219166, 10 November 2021)
(Second Division)[Hernando, J.]; Belarso vs. Quality House Inc., G.R. No. 209983, 10 November 2021)
(Second Division) [Hernando, J.]; University of Cordilleras vs. Lacanaria, G.R. No. 223665, 27 September
2021) (Second Division)[Hernando, J.]; V People Manpower Phils., Inc., and/or Cape Pnl Ltd., vs. Buquid
(G.R. No. 222311, February 10, 2021)(Third Division)[Hernando, J.].

ALTERNATIVE ANSWER:

In ruling for legal correctness, the High Court have to view the CA decision in the same context that the
petition for certiorari it ruled upon was presented to it. It has to examine the CA decision from the prism of whether
it correctly determined the presence or absence of grave abuse of discretion in the NLRC decision before it, not on
the basis of whether the NLRC decision on the merits of the case was correct. In other words, the Supreme Court has
to be keenly aware that the CA undertook a Rule 65 review, not a review on appeal, of the NLRC decision
challenged before it. This is the approach that should be basic in a Rule 45 review of a CA ruling in a labor case. In
question form, the question to ask is: Did the CA correctly determine whether the NLRC committed grave
abuse of discretion in ruling on the case? (Lufthansa Technik Philippines, Inc., vs. Cuizon, G.R. No. 184452,
February 12, 2020)(Second Division)[Hernando, J.]; (CIR vs. PBCOM, G.R. No. 211348, 23 February 2022)
(Second Division)[Hernando, J.]

Q. What are the parameters of a judicial review under a Rule 45 petition to the Supreme Court?
Explain.

A. The following are the parameters of a judicial review under a Rule 45 petition:

a. A Rule 45 petition is limited to questions of law. Factual questions are not the proper subject of an appeal
by certiorari. The Supreme Court will not review facts, as it is not its function to analyze or weigh all over again
evidence already considered in the proceedings below. (Equitable PCI Bank vs. Manila Adjusters & Surveyors,
Inc., G.R. No. 166726, November 25, 2019)(Second Division) [Hernando, J.].

b. Rule 45 petition is limited to errors of the appellate court. Errors which can be reviewed in a petition for
review on certiorari are those of the CA, and not directly those of the trial court or the quasi-judicial agency,
tribunal, or officer which rendered the decision in the first instance. (KLM Royal Dutch Airlines vs. Dr. Tiongco,
G.R. No. 212136, 4 October 2021)(Second Division) [Hernando, J.]; Lopez vs. Saludo, G.R. No. 233775, 15
September 2021)(Second Division)[Hernando, J.].

Q. Distinguish question of law and question of fact in a Rule 45 petition.

A. Question of law exists when the doubt or difference arises as to what the law is on a certain state
of facts, whereas there is a question of fact when the doubt or difference arises as to the truth or the falsehood of
alleged facts; or when the query necessarily invites calibration of the whole evidence considering mainly the
credibility of witnesses, existence and relevancy of specific surrounding circumstances, their relation to each
other and to the whole and the probabilities of the situation. (Sps. Ponce vs. Aldanese, G.R. No. 216587, 4
August 2021)(Second Division)[Hernando, J.]; (People vs. Torroba, G.R. No. 249564 and 249568-76, 21 March
2022) (Second Division)[Hernando, J.]; CIR vs. Standard Insurance Co., Inc., G.R. No. 219340, April 28, 2021
(Third Division)[Hernando, J.];(Prieto vs. Cajimat, G.R. No. 214898, June 08, 2020)(Second Division)
[Hernando, J.]; Caranto vs. Caranto, G.R. No. 202889, March 02, 2020)(Second Division)[Hernando, J.].

For a question to be one of law, it must not involve an examination of the probative value of the evidence
presented by any of the litigants. The resolution of the issue must solely depend on what the law provides on the
given set of circumstances. Once it is obvious that the issue invites a review of the evidence presented, the question
posed is one of fact. (Prieto vs. Cajimat, G.R. No. 214898, June 08, 2020)(Second Division)[Hernando, J.].

Q. What are the factual findings of the CA/SB that the Supreme Court can review in a Rule 45
appeal by petition for review?

A. The findings of fact by the CA may be passed upon and reviewed by the Supreme Court in the
following instances: (1) when the conclusion is a finding grounded entirely on speculation, surmises or
conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible; (3) where there is a grave
abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of fact
are conflicting; (6) when the CA, in making its findings, went beyond the issues of the case and the same is
contrary to the admissions of both appellant and appellee; (7) the findings of the CA are contrary to those of the trial
court; (8) when the findings or fact are conclusions without citation of specific evidence on which they are based;
(9) when the facts set forth in the petition as well as in the petitioners' main and reply briefs are not disputed by the
respondents; and (10) the findings of fact of the CA are premised on the supposed absence of evidence and is
contradicted by the evidence on record. (11) such findings are contrary to the admissions of both parties. (Republic
vs. Kikuchi, G.R. No. 243646, 22 June 2022)(First Division)[Hernando, J.]; (People vs. Torroba, G.R. No.
249564 and 249568-76, 21 March 2022)(Second Division)[Hernando, J.]; Villanueva vs. People, G.R. No.
218652, 23 February 2022) (Second Division)[Hernando, J.]; Republic vs. Heirs of Book, G.R. No. 207159, 28
February 2022)(Second Division)[Hernando, J.]; Tacis vs. Shields Security, G.R. No. 234575, 7 July 2021)
(Second Division)[Hernando, J.]; Heirs of Jesus Magsaysay vs. Sps. Perez, G.R. No. 225426, 28 June 2021)
(Third Division) [Hernando, J.]; (LBP vs. Quilit, G.R. No. 194167, February 10, 2021) (Third Division)
[Hernando, J.]; Purisima, Jr., et al. vs. Purisima, G.R. No. 200484, November 18, 2020)(Third Division)
[Hernando, J.]; MERALCO vs. AAA Cryogenics Philippines, Inc., G.R. No. 207429, November 18, 2020)
(Third Division)[Hernando, J.]

Q. Is the propriety of substituted service of summons a question of law?

A. Yes. It is a question of what and how the law should be applied. Hence, the petition is within the
purview of an appeal by certiorari under Rule 45. (Yeo vs. Sps. Chua, G.R. No. 236075, 18 April 2022) (Second
Division)[Hernando, J.]

SETTLED DISTINCTION BETWEEN RULE 45 AND RULE 65

Q. What is the settled distinction between Rule 45 and Rule 65 of the 1997 Rules of Civil
Procedure?

A. The distinctions between Rule 65 and Rule 45 petitions are as follows: A Rule 65 petition is an
original action, independent of the action from which the assailed ruling arose whereas, Rule 45 petition, on the
other hand, is a mode of appeal. As such, it is a continuation of the case subject of the appeal.

PROBLEM:

Jose Dima was the Municipal Treasurer of the Municipality of Iliyan, Province of Iraga. On January 15, 2020,
the COA provincial auditor examined Dima’s cash and accounts. However, there was a shortage of cash in the
amount of ₱2.0M. Thus, the COA auditor demanded from Dima the immediate production of the missing funds and
the submission of written explanation. Dima admitted that he used the missing funds and let other municipal
officials to use it through cash advances. Formal charge was filed against Jose Dima and he was found guilty of
simple neglect and was penalized with six (6)months suspension. In the meantime, the Regional Legal and
Adjudication of COA in Region V sent its audit findings against Dikma to the Office of the Deputy Ombudsman for
Luzon, and found that Dima is guilty for grave misconduct. The penalty of dismissal from the service was imposed,
and the filing of criminal case for malversation was recommended. Jose Dima reasoned that the two administrative
cases, the one filed by COA and that of the Ombudsman are the same. Hence, to enjoin the Ombudsman from
implementing its decision, he filed a petition for review under Rule 43 with the CA with application for
TRO/Injunction. However, it was dismissed and his Motion for Reconsideration was denied. Jose Dima went to the
Supreme Court. However, instead of filing an appeal via a petition for review on certiorari within fifteen (15) days
from the denial of his Motion for Reconsideration by the CA, Dima filed a special civil action of certiorari under
Rule 65 after thirty-five (35) days from receipt of the denial of his Motion for Reconsideration.

Was the remedy availed of “A” correct? Explain.

SUGGESTED ANSWER:

No. Under Section 1, Rule 45 of the Rules of Court, the proper remedy to question the CA’s judgment, final
order or resolution is an appeal by petition for review on certiorari. The petition must be filed within fifteen (15)
days from notice of the judgment, final order or resolution appealed from; or of the denial of petitioner’s motion for
reconsideration filed in due time after notice of the judgment. By filing a special civil action for certiorari under
Rule 65, petitioner therefore clearly availed himself of the wrong remedy. Under Supreme Court Circular 2-90, an
appeal taken to the Supreme Court or to the CA by a wrong or an inappropriate mode merits outright dismissal.
(Indoyon, Jr. vs. CA, G.R. No. 193706, 12 March 2013)(En Banc)[Sereno, CJ.].

APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE SANDIGANBAYAN

Q. What is the proper mode of appeal from the judgment of conviction by the Sandiganbayan?
 A. The proper mode of appeal from the Sandiganbayan's judgment of conviction in the exercise of its
original jurisdiction to the Supreme Court is via a Notice of Appeal pursuant to the Sandiganbayan Rules. Section 1
(a), Rule XI of the Sandiganbayan Rules which provide:

REVIEW OF JUDGMENTS AND FINAL ORDERS

Section 1. Methods of Review. -

(a) In General. - The appeal to the Supreme Court in criminal cases decided by the
Sandiganbayan in the exercise of its original jurisdiction shall be by notice of appeal filed with the
Sandiganbayan and by serving a copy thereof upon the adverse party.

Sec. 3(e), Rule 122 in relation to Sec. 13(c), Rule 124 of the 2000 Rules of Criminal
Procedure also provides that: if the penalty imposed is reclusion perpetua or life imprisonment, it
must be via Notice of Appeal.

Q. What are the prevailing guidelines for the proper mode of appeal, if the penalty imposed by
the trial court is reclusion perpetua or life imprisonment considering that R.A. No. 9346 suspends the death
penalty?

A. In People vs. Olpindo, G.R. No. 252861. February 15, 2022)(En Banc)[Gesmundo, C.J.], the
Supreme Court made the following pronouncement for the guidance of the bench and the bar: Since the enactment
of R.A. No. 9346, in 2006, which prohibited the imposition of the death penalty, the procedure on automatic review
of death penalty cases under Rule 122 of the Rules of Court has been rendered ineffective and is, thus, suspended.
The suspension of the procedure on automatic review of death penalty cases shall not, however, impact the manner
of imposing penalties in view of R.A. No. 9346, and shall remain only during such time that R.A. No. 9346 is in
effect. Considering further that criminal cases imposed with the penalty of reclusion perpetua or life imprisonment
have still been elevated motu proprio to the appellate courts for automatic review, the Court adopts the following
guidelines:

1. In cases where the prescribed penalty is death, but where reclusion perpetua or life imprisonment was
imposed by reason of R.A. No. 9346, appeal shall be made by filing a notice of appeal either before the
Regional Trial Court or the Court of Appeals, as the case may be, pursuant to Sec. 3(c), Rule 122 of the Rules of
Court.

2. In cases where the penalty of reclusion perpetua or life imprisonment is imposed not by reason of
R.A. No. 9346, appeal shall be made by filing a notice of appeal either before the Regional Trial Court or the
Court of Appeals, as the case may be, pursuant to Sec. 3(c), Rule 122 of the Rules of Court.

3. When the case records of a criminal case imposing the penalty of reclusion perpetua or life
imprisonment, whether due to R.A. No. 9346 or not, are elevated motu proprio for automatic review, the
following rules shall apply:

a. If the order to elevate the records for automatic review was issued beyond
fifteen (15) days after the promulgation of the judgment or notice of final order and the
accused did not file a notice of appeal within the same period, the automatic review shall not
be given due course. The Court of Appeals or the Supreme Court shall issue an order of finality of
judgment.

b. If the order to elevate the records for automatic review was issued within fifteen (15)
days after the promulgation of the judgment or notice of final order, the Court of Appeals or
the Supreme Court shall issue an order requiring the accused within ten (10) days from receipt
thereof to manifest whether they are adopting the order to elevate the records as their notice of
appeal. If the accused shall refuse to adopt or fail to timely manifest despite due notice, they shall
be deemed to have waived their right to appeal, and the Court of Appeals or the Supreme Court
shall issue an order of finality of judgment.

4. In cases where the penalty of reclusion perpetua or life imprisonment is imposed and the accused files
a petition for review on certiorari under Rule 45 of the Rules of Court, only questions of law may be raised.
However, based on the interests of substantial justice, a petition for review on certiorari that raises questions of fact
may be treated as an ordinary appeal in order to throw the whole case open for review.

3. RULE 64 - REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE

COMMISSION ON ELECTIONS AND THE COMMISSION ON AUDIT COMELEC CASES REVIEWED
BY THE SUPREME COURT VIA RULE 64 IN RELATION TO RULE 65 OF THE 1997 RULES OF CIVIL
PROCEDURE

Q. What is the legal basis of a Certiorari Petition under Rule 64?

A. The legal basis is Section 7, Art. IX in relation to Article IX-C and D of the 1987 Constitution. It
governs the review of the COMELEC (En Banc) and COA decisions, final orders or rulings that may be brought to
the Supreme Court on certiorari, by the aggrieved party within thirty (30) days from receipt of a copy thereof. To
differentiate this review from the special civil action for certiorari under Rule 65, the Court incorporated a new rule
(Rule 64) in the 1997 revision of the Rules of Court under the title Review of Judgments and Final Orders or
Resolutions of the COMELEC and the COA. Except for the period for bringing the petition for review, Rule 64 is a
replication of the provisions of Rule 65 on the special civil action for certiorari.

Q. When can the COMELEC be divested of its jurisdiction in case of contests relating to the
election, returns, and qualifications of members of the Senate or House of Representatives? Explain.

A. Case law states that the proclamation of a congressional candidate following the election divests
the COMELEC of jurisdiction over disputes relating to the election, returns, and qualifications of the proclaimed
representative in favor of the HRET. The phrase "election, returns and qualifications" refers to all matters affecting
the validity of the contestee’s title. In particular, the term "election" refers to the conduct of the polls, including the
listing of voters, the holding of the electoral campaign, and the casting and counting of the votes; "returns" refers to
the canvass of the returns and the proclamation of the winners, including questions concerning the composition of
the board of canvassers and the authenticity of the election returns; and "qualifications" refers to matters that could
be raised in a quo warranto proceeding against the proclaimed winner, such as his disloyalty or ineligibility or the
inadequacy of his CoC.

PROBLEM:

Petitioner Jose Tapales Villarosa was the losing candidate for Mayor of the Municipality of San Jose
Occidental Mindoro in the 2013 Elections, although he was the incumbent Mayor at that time. Respondent Romulo
De Mesa Festin emerged as winner with a margin of 1,204 votes. Petitioner filed an election protest against the
respondent alleging irregularities attending the conduct of the elections. Specifically, petitioner brought to the
attention of the court the complaints of various voters who claimed that several ballots were pre-marked or that the
ovals appearing on the face of the ballots corresponding to the name of the petitioner were embossed or waxed to
prevent them from being shaded. As a consequence of the alleged massive electoral fraud and irregularities in the
92-clustered precincts of San Jose, Occidental Mindoro, Villarosa claimed that Festin was illegally proclaimed.
After the revision, the RTC, Branch 46 of Occidental Mindoro, proclaimed petitioner Villarosa as the real winner. It
further granted the Motion for Execution of the petitioner pending appeal.

Respondent Festin went to the COMELEC. The First Division issued a TRO and eventually the newly
constituted Special First Division issued an Injunction enjoining the RTC, Branch 46, San Jose, Occidental Mindoro
from enforcing its decision. The petitioner questioned the legality of the formation of the Special First Division and
the validity of its order. Without filing a Motion for Reconsideration to the COMELEC-En Banc, the petitioner went
directly to the Supreme Court under Rule 64 in relation to Rule 65 of the Rules of Court alleging grave abuse of
discretion.

Is the petitioner correct in directly filing a Rule 64 petition without filing an MR to the COMELEC En
Banc? Explain.

SUGGESTED ANSWER:

No. In Villarosa vs. Festin (732 SCRA 110, 5 August 2014)(En Banc)[Velasco, J.], the Supreme Court
dismissed the Petition. It was held that: Petitioner’s recourse, aside from being unsound in substance, is procedurally
infirm. The governing provision is Section 7, Article IX of the 1987 Constitution. In the instructive case of Ambil
vs. COMELEC, the Supreme Court have interpreted the provision to limit the remedy of certiorari against final
orders, rulings and decisions of the COMELEC-En Banc rendered in the exercise of its adjudicatory or quasi-
judicial powers. Certiorari will not generally lie against an order, ruling, or decision of a COMELEC division for
being premature, taking into account the availability of the plain, speedy and adequate remedy of a motion for
reconsideration.

Q. Is Rule 64 the exclusive remedy for all COMELEC acts?

 A. No. Rule 64 is not the exclusive remedy for all acts of the COMELEC. Rule 65 is applicable
especially to raise objections relating to a grave abuse of discretion resulting in the ouster of jurisdiction. As a
special civil action, there must also be a showing that there be no plain, speedy, and adequate remedy in the ordinary
course of the law. (Diocese of Bacolod vs. COMELEC, 747 SCRA 1, 21 January 2015)(En Banc)[Leonen, J.].

COMMISSION ON AUDIT (COA)

Q. In the exercise of its adjudicatory function, can the COA rule on the question of law as part
of its duty to audit and examine government entities? Explain.

A. Yes. Its 2009 Revised Rules of Procedure states that the COA may resolve "novel, controversial,
complicated or difficult questions of law relating to government accounting and auditing." This is in line with its
constitutional powers under Section 2, Article IX-D of the Constitution. However, its rulings do not create legal
precedent nor preclude judicial review.

Q. What are the limitations of the power of COA to resolve questions of law relating to
government auditing and accounting? Explain.

A. The limitations are as follows:

1. First, the COA's rulings on questions of law may be the subject of judicial review by the courts.
Section 1, Article VIII of the Constitution states that "judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law." Such power belongs exclusively to courts as part of the separation
of powers among the three branches of government. Judicial power includes the duty of the courts to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government, of which the COA is undoubtedly a part.

2. The second limitation on the COA's power to resolve questions of law is that its ruling thereon, even if
already final, does not create binding legal precedent that will apply to future cases. The reason is that
administrative decisions do not enjoy the same level of recognition as judicial decisions applying or interpreting the
laws or the Constitution. These decisions do not have a binding effect similar to stare decisis-the doctrine that
enjoins adherence to judicial precedents. In our jurisdiction, only the decisions of the Supreme Court establish
jurisprudence or doctrines that form a part of our legal system. (BSP vs. COA, G.R. No. 210314, 12 October 2021)
(En Banc)[Hernando, J.] (The BSP is not a GOCC as defined under RA 7656 and the Administrative Code, and as
gathered from the legislative intent of the Constitutional Commission and Congress. Thus, it is the BSP Charter, and
not RA 7656 (which applies only to GOCCs), that governs the computation of the BSP's net earnings.)

PROBLEM:

As a rule, a Motion for Reconsideration is a condition sine qua non before filing a Rule 64 Petition in relation
to Rule 65 to the Supreme Court of the adverse decision of the COA. However, the petitioner reasoned that the
motion for reconsideration would have been useless in view of the COA's consistent rejection of her pleas and
requests for copies of documents pertinent to her defense.

Is the contention of the petitioner meritorious? Explain.

SUGGESTED ANSWER:

Yes. The contention of the petitioner can be given credence. The rule is that a motion for reconsideration is a
condition sine qua non for the filing of a petition for certiorari. Such requirement is imposed to grant the court or
tribunal the opportunity to correct any actual or perceived error attributed to it through the re-examination of the
legal and factual circumstances of the case. The rule is not rigid and set in stone, but admits of exceptions, like the
following: (1) where the order is a patent nullity, such as when the court a quo had no jurisdiction; (2) where the
questions raised in the certiorari proceedings have been duly raised and passed upon by the lower court, or are the
same as those raised and passed upon in the lower court; (3) where there is an urgent necessity for the resolution of
the question, and any further delay would prejudice the interests of the Government or of the petitioner, or the
subject matter of the action is perishable; (4) where a motion for reconsideration would be useless; (5) where the
petitioner was deprived of due process, and there is extreme urgency for relief; (6) where, in a criminal case, relief
from an order of arrest is urgent, and the granting of such relief by the trial court is improbable; (7) where the
proceedings in the lower court are a nullity for lack of due process; (8) where the proceeding was ex parte, or the
petitioner had no opportunity to object; and (9) where the issue raised is one purely of law, or where public interest
is involved.
 The fourth and fifth exceptions are applicable in the problem. (Estalilla vs. COA, G.R. No. 217448, 10
September 2019)(En Banc) [Bersamin, C.J.]; Abejo vs. COA, G.R. No. 251967, 14 June 2022 (Released on 6
July 2022)(En Banc)[Zalameda, J.].

ARIAS DOCTRINE (RELIANCE IN GOOD FAITH TO SUBORDINATES)

In the 1989 case of Arias vs. Sandiganbayan, the Supreme Court placed significance on the good faith of
heads of offices having to rely to a reasonable extent on their subordinates and on the good faith of those who
prepare bids, purchase supplies or enter into negotiations.

Q. Is good faith a valid defense of public officials who received the disallowed benefits by the
COA? Explain.

A. Yes. Jurisprudences have settled that recipients or payees in good faith need not refund these
disallowed amounts. For as long as there is no showing of ill intent and the disbursement was made in good faith,
public officers and employees who receive subsequently disallowed benefits or allowances may keep the amounts
disbursed to them. (PEZA vs. COA, et al., 805 SCRA 618, 11 October 2016). Good faith has also been appreciated
in a catena of cases.

Q. What are the established rules in determining the liability of government officers and
employees being made to return employee benefits that were disallowed?

A. In Madera v. Commission on Audit, the Supreme Court provided the definitive rules as follows:

1. If a Notice of Disallowance is set aside by the Court, no return shall be required from any of the persons
held liable therein.

2. If a Notice of Disallowance is upheld, the rules on return are as follows:

a. Approving and certifying officers who acted in good faith, in regular performance of official functions, and
with the diligence of a good father of the family are not civilly liable to return consistent with Section 38 of the
Administrative Code of 1987.

b. Approving and certifying officers who are clearly shown to have acted in bad faith, malice, orgross
negligence are, pursuant to Section 43 of the Administrative Code of 1987, solidarily liable to return only the net
disallowed amount which, as discussed herein, excludes amounts excused under the following sections 2c and 2d.

c. Recipients - whether approving or certifying officers or mere passive recipients -are liable to return the
disallowed amounts respectively received by them, unless they are able to show that the amounts they received were
genuinely given in consideration of services rendered.

d. The Court may likewise excuse the return of recipients based on undue prejudice, social justice
considerations, and other bona fide exceptions as it may determine on a case to case basis. (Lumauan vs. COA G.R.
No. 218304, December 09, 2020)(En Banc)[Hernando, J.]; (Abejo vs. COA, G.R. No. 251967, 14 June 2022)
(Released on 6 July 2022)(En Banc)[Zalameda, J.].

PROBLEM:

Jose Dima was the Acting General Manager of Metropolitan Tuguegarao Water District (MTWD), a
government-owned and controlled corporation (GOCC) created pursuant to P.D. No. 198 or the Provincial Water
Utilities Act of 1973, as amended by R.A. No. 9286. The Board of Directors of MTWD through Board Resolution
Nos. 2009-005346 and 2009-012247 approved the payment of the accrued COLA. Dima was only a recipient or a
passive payee of the allowance. Upon audit of the COA, the accrued COLA was disallowed.

What is the rule in this case of disallowance? Explain.

SUGGESTED ANSWER:
Jose Dima falls under category 2(c) of the rules on return as pronounced in Madera v. Commission on
Audit.Under the rules on return of disallowed amounts as espoused in Madera, and applying the civil law principles
on solutio indebiti and unjust enrichment, recipients - whether approving or certifying officers or mere passive
recipients, like Dima in this case, are all "liable to return the disallowed amounts respectively received by them,
unless they are able to show that the amounts they received were genuinely given in consideration of services
rendered. To emphasize, payees who receive undue payment, regardless of good faith, are liable for the return of the
amounts they received. (Lumauan vs. COA (G.R. No. 218304, December 09, 2020)(En Banc)[Hernando, J.].

Q. When can the recipient be excused from returning the received amount in case of
disallowance by the COA?

A. A payee or recipient may be excused from returning the disallowed amount when he/she has shown
that he/she was actually entitled to what he/she received or when undue prejudice will result from requiring payees
to return or where social justice or humanitarian considerations are attendant. (Lumauan vs. COA (G.R. No. 218304,
December 09, 2020) (En Banc) [Hernando, J.].

RULE 50 - DISMISSAL OF APPEAL

Q. What is the proper disposition if from the decision of the RTC, the case was appealed to the
CA, but what was raised was purely a question of law?

A. Section 2 of Rule 50 of the Rules of Court provides that appeals taken from the RTC to the Court
of Appeals raising only pure questions of law are not reviewable by the CA. In which case, the appeal shall not be
transferred to the appropriate court. Instead, it shall be dismissed outright. Appeals from the decisions of the RTC,
raising purely questions of law must, in all cases, be taken to the Supreme Court on a petition for review on
certiorari in accordance with Rule 45. An appeal by notice of appeal from the decision of the RTC in the exercise of
its original jurisdiction to the CA is proper if the appellant raises questions of fact or both questions of fact and
questions of law.

Q. Is the denial of a Motion for Reconsideration always considered as an interlocutory order?

Explain.

A. No. Orders denying motions for reconsideration are not always interlocutory orders. A motion for
reconsideration may be considered a final decision, subject to an appeal, if "it puts an end to a particular matter,"
leaving the court with nothing else to do but to execute the decision. An appeal from an order denying a motion for
reconsideration of an order of dismissal of a complaint is effectively an appeal of the order of dismissal itself. It is
an appeal from a final decision or order.

WHEN APPEAL MAY BE WITHDRAWN

An appeal may be withdrawn as of right at any time before the filing of the appellee’s brief. Thereafter, the
withdrawal may be allowed in the discretion of the court. (Sec. 3)

4. RULE 38 – PETITION FOR RELIEF FROM JUDGMENT

Q. What are the grounds for relief from judgment, order or other proceedings?

A. The grounds are as follows: a) Fraud; b) Accident; c) Mistake; or d) Excusable Negligence.

(FAMEN)

Q. Explain the remedy of a petition for relief from judgment.

A. Relief from judgment is a remedy provided by law to any person against whom a decision or
order is entered through fraud, accident, mistake, or excusable negligence (FAMEN). It is a remedy, equitable
in character, that is allowed only in exceptional cases when there is no other available or adequate remedy. When a
party has another remedy available to him, which may either be a motion for new trial or appeal from an adverse
decision of the trial court, and he was not prevented by fraud, accident, mistake, or excusable negligence from filing
such motion or taking such appeal, he cannot avail of the remedy of petition for relief.

GROUNDS TO GIVE DUE COURSE TO A PETITION FOR RELIEF FROM JUDGMENT

 Q. Explain excusable negligence, fraud, and mistake as grounds for petition for relief from
judgment.

A. The said grounds can be explained as follows:

a. Excusable negligence as a ground for a petition for relief requires that the negligence be so gross "that
ordinary diligence and prudence could not have guarded against it." This excusable negligence must also be
imputable to the party-litigant and not to his or her counsel whose negligence binds his or her client. The binding
effect of counsel's negligence ensures against the resulting uncertainty and tentativeness of proceedings if clients
were allowed to merely disown their counsels' conduct. The Supreme Court has relaxed this rule on several
occasions such as:

(1) where the reckless or gross negligence of counsel deprives the client of due process of law; (2) when the
rule's application will result in outright deprivation of the client's liberty or property; or (3) where the interests of
justice so require. Certainly, excusable negligence must be proven.

b. Fraud as a ground for a petition for relief from judgment pertains to extrinsic or collateral fraud.
There is extrinsic fraud when a party is prevented from fully presenting his case to the court as when the lawyer
connives to defeat or corruptly sells out his client's interest. Extrinsic fraud can be committed by a counsel against
his client when the latter is prevented from presenting his case to the court.

c. Mistake as used in Rule 38 means mistake of fact and not mistake of law. A wrong choice in legal
strategy or mode of procedure will not be considered a mistake for purposes of granting a petition for relief from
judgment.

DOUBLE PERIOD RULE UNDER SECTION 3, RULE 38 IS JURISDICTIONAL

Q. What is the double period rule in a petition for relief from judgment? Explain.

A. It means that a party filing a petition for relief from judgment must strictly comply with two (2)
reglementary periods:

(a) the petition must be filed within sixty (60) days from knowledge of the judgment, order or other
proceeding to be set aside; and (b) within a fixed period of six (6) months from entry of such judgment, order or
other proceeding. The double period required under this provision is jurisdictional and should be strictly complied
with. Otherwise, a petition for relief from judgment filed beyond the reglementary period will be dismissed outright.

Q. What is the exception to the double period rule such that the court can still give due course to
the petition for relief from judgment? Explain.

A. The rule will not apply when a petition for relief which is grounded on extrinsic fraud
ultimately results in the court's lack of jurisdiction over the defendant, and which consequently makes the
judgment rendered by the trial court void. In such a case, the petition for relief should not be dismissed for failure
of one to avail himself of the remedy of an appeal and for untimeliness.

5. RULE 47-ANNULMENT OF JUDGMENTS OR FINAL ORDERS AND RESOLUTIONS

Q. What is annulment of judgment?

A. Annulment of judgment may either be based on the ground that a judgment is void for want of
jurisdiction or that the judgment was obtained by extrinsic fraud. It is a remedy in equity so exceptional in nature
that it may be availed of only when other remedies are wanting. (Heirs of Borras et al. vs. Borras, G.R. No.
213888, 25 April 2022)(Second Division) [Hernando, J.]; MMDA vs. Desert Stopovers, G.R. No. 213287, 6
December 2021)(Second Division)[Hernando, J.]; [Calubad vs. Aceron, G.R. No. 188029 (2 September 2020)
(Second Division)[Hernando, J.].

Q. What does extrinsic fraud mean as a ground for annulment of judgment? Explain.
 A. Extrinsic fraud means the fraudulent scheme of the prevailing litigant prevented the petitioner
from having his day in court. However, extrinsic fraud shall not be a valid ground if it was availed of, or could
have been availed of, in a motion for new trial or petition for relief. This means that the remedy of annulment of
judgment, albeit a last remedy, is not an alternative remedy to the ordinary remedies of new trial, appeal, or a
petition for relief. It must show or allege that the ordinary remedies of new trial, appeal, petition for relief or other
appropriate remedies are no longer available through no fault of petitioner. (Ancheta vs. Cambay, G.R. No.
204272, January 18, 2021)(Third division)[Hernando, J.]; (Aromin vs. Heirs of Sps. Somis, G.R. No. 204447,
May 3, 2021)(Third Division)[Hernando, J.]

Q. Why is extrinsic fraud can be excluded as a valid ground for annulment of judgment?
Explain

A. Only the ground of extrinsic fraud, not lack of jurisdiction, is excluded as a valid ground for
annulment if it was availed of, or could not have been availed of, in a motion for new trial or petition for relief.
This is because a judgment rendered without jurisdiction by the trial court is fundamentally void or nonexistent, and
therefore, can be "assailed at any time either collaterally or by direct action or by resisting such judgment or final
order in any action or proceeding whenever it is invoked. (Ancheta vs. Cambay, G.R. No. 204272, January 18,
2021)(Third division)[Hernando, J.].

GROUNDS FOR ANNULMENT OF JUDGMENT

Q. What are the two exclusive grounds for annulment of judgment?

A. Rule 47, Section 2 provides extrinsic fraud and lack of jurisdiction as the exclusive grounds for the
remedy of annulment of judgment. Case law, however, recognizes a third ground – denial of due process of law.
Arcelona vs. CA teaches that a decision, which is patently void, may be set aside on grounds of want of jurisdiction
or "non-compliance with due process of law."

Q. What is lack of jurisdiction as a ground for annulment of judgment? Explain.

A. Lack of jurisdiction as a ground for annulment of judgment refers to either lack of jurisdiction
over the person of the defending party or over the subject matter of the claim. In a petition for annulment of
judgment based on lack of jurisdiction, petitioner must show not merely an abuse of jurisdictional discretion but an
absolute lack of jurisdiction. Lack of jurisdiction means absence of or no jurisdiction, that is, the court should not
have taken cognizance of the petition because the law does not vest it with jurisdiction over the subject matter.
Jurisdiction over the nature of the action or subject matter is conferred by law. (Gaoiran vs. CA, G.R. No. 215925, 7
March 2022) (Second Division)[Hernando, J.- A case for issuance of lost title where the trial court was declared to
have NO JURISDCTION as the title was not lost or destroyed and was even used as evidence.]; (MMDA vs. High
Desert Stopovers, G.R. No. 213287, 6 December 2021)(Second Division)[Hernando, J.]

Q. Can jurisdictional defect be equated with grave abuse of discretion?

A. No. The petitioner in a petition for annulment of judgment cannot rely on jurisdictional defect due
to grave abuse of discretion, but on absolute lack of jurisdiction. The concept of lack of jurisdiction as a ground to
annul a judgment does not embrace grave abuse of discretion amounting to lack or excess of jurisdiction. (Heirs of
Borras et al. vs. Borras, G.R. No. 213888, 25 April 2022)(Second Division) [Hernando, J.] - A case for
reconstitution of title under Act. No. 26. Here, while there is no question that the CFI acted in excess of its
jurisdiction when it went beyond ordering the reconstitution of OCT No. [NA] 2097 by ordering its cancellation, and
directing the issuance of a new TCT in favor of Eustaquio, nevertheless, such order of the CFI was done in the
exercise of its jurisdiction and not the lack thereof.]

The lack of jurisdiction envisioned in Rule 47 is the total absence of jurisdiction over the person of a party or
over the subject matter. When the court has validly acquired its jurisdiction, annulment through lack of jurisdiction
is not available when the court's subsequent grave abuse of discretion operated to oust it of its jurisdiction.

Q. When can denial of due process be invoked as a ground for annulment of judgment? Explain.

A. In cases involving jurisdiction over the subject matter, the Court has consistently recognized the
denial of due process as a valid ground to file a petition for annulment of judgment. This is because, as rationalized
in the case of De Pedro vs. Romasan Development Corporation the violation of one's due process rights is, after all,
a defect in jurisdiction.

COLLATERAL ATTACK OF JUDGMENTS

Q. What is a collateral attack on a judgment?

A. Acollateral attack on a judgment is an attack made by or in an action or proceeding that has an

independent purpose other than impeaching or over turning the judgment.

RULE 39 - EXECUTION, SATISFACTION, AND EFFECT OF JUDGMENTS

SEC. 1.–EXECUTION UPON JUDGMENTS OR FINAL ORDERS

Q. What is the concept of residual jurisdiction of the trial court? Explain.

A. It means, prior to the transmittal of the original records or records on appeal to the appellate court, the trial
court still retains its so-called residual jurisdiction to issue protective orders, approve compromises, permit appeals
of indigent litigants, order execution pending appeal, and allow the withdrawal of the appeal. (Jorgenetics Swine
Improvement Corporation vs. Thick & Thin Agri-Products, Inc., G.R. Nos. 201044 & 222691, May 05, 2021)
(Third Division)[Hernando, J.]

SEC. 2.–DISCRETIONARY EXECUTION

Q. When can the trial court issue discretionary execution? Explain.

A. Discretionary execution may only issue upon good reasons to be stated in a special order after due
hearing. The trial court's discretion in allowing execution pending appeal must be strictly construed and explained
that the grant must be grounded on the existence of good reason which consist of compelling circumstances that
justify immediate execution lest the judgment becomes illusory. "The circumstances must be superior, outweighing
the injury or damages that might result should the losing party secure a reversal of the judgment. Lesser reasons
would make of execution pending appeal, instead of an instrument of solicitude and justice, a tool of oppression and
inequity. (Heirs Casiño, Sr., vs. DBP G.R. Nos. 204052-53, March 11, 2020) (Second Division) [Hernando, J.].

SEC. 5.–EFFECT OF REVERSAL OF EXECUTED JUDGMENT

Q. What is the duty of the court if the judgment already executed is reversed on appeal?

A. Rule 39, Section 5 of the Rules of Court states that where the executed judgment is reversed totally
or partially, or annulled, on appeal or otherwise, the trial court may, on motion, issue such orders of restitution
or reparation of damages as equity and justice may warrant under the circumstances.

Q. Does the execution of judgment bar the continuation of the appeal process? Explain.

A. No. Execution does not bar the continuance of the appeal on the merits, for the Rules of Court
precisely provide for restitution according to equity and justice in case the executed judgment is reversed on appeal.

Q. Can the execution of the judgment be considered as a supervening event that automatically
moots the issues on appeal? Explain.

A. No. Execution cannot be considered as a supervening event that would automatically moot the
issues in the appealed case. Otherwise, there would be no use appealing a judgment, once a writ of execution is
issued and satisfied. That situation would be absurd. On the contrary, the Rules of Court in fact provides for cases of
reversal or annulment of an executed judgment. Section 5 of Rule 39 provides that in those cases, there should be
restitution or reparation as warranted by justice and equity. Therefore, barring any supervening event, there is still
the possibility of the appellate court's reversal of the appealed decision - even if already executed - and,
consequently, of restitution or a reparation.

SEC. 6.–EXECUTION BY MOTION OR BY INDEPENDENT ACTION

Q. What is an action for revival of judgment? Explain.

A. An action for revival of judgment is an action with the exclusive purpose of enforcing a
judgment which could no longer be enforced by a motion. The action is best explained in Rule 39, Section 6 of
the Rules of Court. The provisions of Sec. 6, Rule 39 must be be read in relation to Articles 1144 (3) and 1152 of the
Civil Code, to wit:

Article 1144. The following actions must be brought within ten years from the time the right of action accrues:

xxx

(3) Upon a judgment. (Pineda vs. Miranda, G.R. No. 204997, 4 August 2021)(Second Division)
[Hernando, J.].

Q. What are the available remedies of a prevailing party once a judgment becomes final and
executory? Explain.

A. Both the Rules of Court and the Civil Code provisions relating to an action for revival of judgment
are clear. Once a judgment becomes final and executory, the prevailing party has two remedies:

(1) To have the judgment executed as a matter of right by mere motion within five years from the date of
entry of judgment; or (2) If the prevailing party fails to have the judgment enforced by motion after the lapse of
five years, to have the judgment enforced as a right of action by the institution of a complaint in a regular
court within 10 years from the time the judgment became final.

The revival action is a new action altogether; it is different and distinct from the original judgment sought to
be revived or enforced. It is a new and independent action, wherein the cause of action is the decision itself and not
the merits of the action upon which the judgment sought to be enforced is rendered. The revival of judgment is
premised on the assumption that the decision to be revived, either by motion or by independent action, is already
final and executory. (Pineda vs. Miranda, G.R. No. 204997, 4 August 2021) (Second Division) [Hernando, J.].

PROBLEM:

Spouses Jose and Amalia Dima filed a case for recovery of possession and damages against Spouses Dexter
and Analyn Dacara with the RTC of Iraga. The RTC, Branch 022 promulgated a Decision on November 15, 2012.
No appeal was further taken by Sps. Dacara to the Court of Appeals. Thus, the RTC, Branch 022 decision became
th
final. On December 15, 2022, Sps. Dima filed the motion for 4 Alias Writ of Execution or 10 years and 1 month
th
from the time the judgment was issued. The RTC, Branch 022 of Iraga denied the Motion for 4 Alias Writ of
Execution.

Is the denial of the RTC, Branch 022 of Iraga correct? Explain.

SUGGESTED ANSWER:

Yes. In accordance with Rule 39, Section 6 of the Rules of Court, Sps. Dima have five (5) years from
November 12, 2012 to file a motion to execute the final judgment. However, the records show that the motion for
th
the 4 Alias Writ of Execution was only filed with the RTC, Branch 022 on December 15, 2022, or 10 years and 1
month from the time the judgment was issued. The rule is that the court could issue a writ of execution by motion
within five (5) years from the finality of the decision. After the lapse of this period and before the same is barred by
the statute of limitations, the judgment may be enforced by instituting an ordinary civil action. The reason is that
after the lapse of the five-year period, the judgment is reduced to a mere right of action, which judgment must be
enforced, as all other ordinary civil actions, by the institution of the complaint in the regular form. Such action must
be filed within ten (10) years from the date the judgment became final. (Domilos vs. Sps. Pastor, G.R. No. 207887,
14 March 2022) (Second Division) [Hernando, J.]

SEC. 33.–DEED AND POSSESSION TO BE GIVEN AT THE EXPIRATION OF REDEMPTION PERIOD;

BY WHOM EXECUTED OR GIVEN

Q. What are the exceptions to the rule that the issuance of the writ of possession to the
purchaser is a ministerial duty of the trial court?

A. The exceptions are as follows: (a) gross inadequacy of the purchase price; (b) third party claiming
right adverse to the mortgagor/debtor; and (c) failure to pay the surplus proceeds of the sale to the mortgagor. (PNB
vs. Palencia, G.R. No. 213673, 2 March 2022)(Second Division)[Hernando, J.].

SEC. 37.–EXAMINATION OF OBLIGOR OF JUDGMENT OBLIGOR

Q. What is the extent of the jurisdiction of the court who rendered the judgment over its
execution? Explain.

A. The court which rendered the judgment has supervisory control over the execution of its judgment.
This power carries with it the right to determine every question of fact and law which may be involved in the
execution. A case in which an execution has been issued is regarded as still pending so that all proceedings on the
execution are proceedings in the suit. (Linden Suites vs. Meriden Far East Properties, G.R. No. 211969, 4
October 2021)(Second Division)[Hernando, J.].

Q. Can the doctrine of separate juridical personality be invoked by the defendant corporation if
the plaintiff applies for the examination of the judgment obligor if the judgment is unsatisfied? Explain.

A. No. The sole objective of the examination of the officers was to ascertain the properties and
income of respondent which can be subjected for execution in order to satisfy the final judgment and nothing else.
The doctrine of separate juridical personality provides that a corporation has a legal personality separate and
distinct from those individuals acting for and in its behalf and, in general, from those comprising it. Any obligation
incurred by the corporation, acting through its directors, officers and employees, is therefore its sole liability. This
legal fiction may only be disregarded if it is used as a means to perpetrate fraud or an illegal act, or as a vehicle for
the evasion of an existing obligation, the circumvention of statutes, or to confuse legitimate issues. (Linden Suites
vs. Meriden Far East Properties, G.R. No. 211969, 4 October 2021)(Second Division) [Hernando, J.].

SEC. 47.–EFFECT OF JUDGMENTS OR FINAL ORDERS

Q. What is res judicata? Explain.

A. Res judicata lays the rule that an existing final judgment or decree rendered on the merits, without
fraud or collusion, by a court of competent jurisdiction, upon any matter within its jurisdiction, is conclusive of the
rights of the parties or their privies, in all other actions or suits in the same or any other judicial tribunal of
concurrent jurisdiction on the points and matters in issue in the first suit. (Angono Medics Hospital, Inc., vs.
Agabin, G.R. No. 202542, December 09, 2020)(Third Division)[Hernando, J.]; (Villaroman vs. Estate of Jose
Arciaga, G.R. No. 210822, 28 June 2021)(Third Division) [Hernando, J.]

Q. What are the elements of res judicata?

A. The elements of res judicata are: (1) the judgment sought to bar the new action must be final; (2)
the decision must have been rendered by a court having jurisdiction over the subject matter and the parties; (3) the
disposition of the case must be a judgment on the merits; and (4) there must be as between the first and second
action, identity of parties, subject matter, and causes of action. xxx Should identity of parties, subject matter, and
causes of action be shown in the two cases, then res judicata in its aspect as a 'bar by prior judgment' would apply. If
as between the two cases, only identity of parties can be shown, but not identical causes of action, then res judicata
as 'conclusiveness of judgment' applies. (Angono Medics Hospital, Inc., vs. Agabin, G.R. No. 202542, December
09, 2020) (Third Division)[Hernando, J.]; (Villaroman vs. Estate of Jose Arciaga, G.R. No. 210822, 28 June
2021)(Third Division) [Hernando, J.]; LBP vs. Del Moral, Inc., G.R. No. 187307, October 14, 2020)(Second
Division) [Hernando, J.].
 Q. What are the two concepts of res judicata? Explain.

A. The two concepts of res judicata: (1) bar by prior judgment - There is bar by prior judgment
when, as between the first case where the judgment was rendered and the second case that is sought to be
barred, there is identity of parties, subject matter, and causes of action. (2) conclusiveness of judgment –
Where there is identity of parties in the first and second cases, but no identity of causes of action, the first
judgment is conclusive only as to those matters actually and directly controverted and determined and not as
to the matters merely involved therein. (Villaroman vs. Estate of Jose Arciaga, G.R. No. 210822, 28 June
2021)(Third Division) [Hernando, J.]; (Angono Medics Hospital, Inc., vs. Agabin, G.R. No. 202542, December
09, 2020)(Third Division) [Hernando, J.]; LBP vs. Del Moral, Inc., G.R. No. 187307, October 14, 2020)(Second
Division) [Hernando, J.].

PROVISIONAL REMEDIES

RULE 57 - PRELIMINARY ATTACHMENT

Q. What is a writ of preliminary attachment? Explain.

A. A writ of preliminary attachment is a provisional remedy issued upon the order of the court
where an action is pending. Through the writ, the property or properties of the defendant may be levied upon and
held thereafter by the sheriff as security for the satisfaction of whatever judgment might be secured by the attaching
creditor against the defendant. (Chua vs. China Banking Corporation, G.R. No. 202004, November 04, 2020)
(Third Division)[Hernando, J.]; East West Bank vs. Cruz, G.R. No. 221641, 12 July 2021)(Second Division)
[Hernando, J.].

Q. Which court has jurisdiction over provisional remedies? Explain.

A. It is the court/s that has jurisdiction over the main action. An inferior court may grant a
provisional remedy in an action pending with it and within its jurisdiction. Thus, if a court has no jurisdiction over
the subject matter or over the person of the defendant in the principal action, it simply has no jurisdiction to issue a
writ of preliminary attachment against the defendant or his property.

Q. Can non-payment of debt be automatically considered as fraudulent act to warrant the

granting of a writ of preliminary attachment under Section 1(d), Rule 57 of the 1997 Rules of Civil
Procedure? Explain.

A. No. Non-payment of a debt or non-performance of an obligation does not automatically equate to a

fraudulent act. Being a state of mind, fraud cannot be merely inferred from a bare allegation of non-payment of debt
or non-performance of obligation. It must be shown that fraud was resorted to for the purpose of securing an
advantage over another by false suggestions or by suppression of truth; and it includes all surprise, trick, cunning,
dissembling, and any other unfair way by which another is cheated. (Dumaan vs. Llamedo, G.R. No. 217583, 4
August 2021)(Second Division) [Hernando, J.]; The applicant for a writ of preliminary attachment must
sufficiently show the factual circumstances of the alleged fraud because fraudulent intent cannot be inferred from the
debtor's mere non-payment of the debt or failure to comply with his obligation.(Chua vs. China Banking
Corporation, G.R. No. 202004, November 04, 2020)(Third Division)[Hernando, J.]

Q. What must be alleged in an Affidavit of Merit for purposes of applying for a Writ of
Preliminary Attachment?

A. Section 3, Rule 57 requires that an affidavit of merit be issued alleging the following facts: (1) that
a sufficient cause of action exists; (2) that the case is one of those mentioned in Section 1 hereof; (3) that there is
no other sufficient security for the claim sought to be enforced by the action; and (4) that the amount due to
the applicant, or the value of the property the possession of which he/she is entitled to recover, is as much as
the sum for which the order is granted above all legal counterclaims. (Chua vs. China Banking Corporation, G.R.
No. 202004, November 04, 2020) (Third Division)[Hernando, J.].

PROBLEM:
 Jess Dima wants to file a case for the collection of a sum of money in the amount of 20.0M against Kura
Paroko, his long-time business partner. The loan was payable for three (3) years. However, when it matured on
December 31, 2020, Kura Paroko failed to pay it despite repeated demands, oral and written. Later, Jose Dima
learned that Kura Paroko migrated to San Franciso, U.S.A. Kura Paroko, however, has a mansion consisting of
1,500 square meters located in New Manila, Quezon City. Jose Dima wants to file the case in Quezon City, RTC. He
consulted you on what to do since Kura Paroko is no longer in the Philippines.

What will be your advice? Explain.

SUGGESTED ANSWER:
I will advise Jess Dima to convert the case into a quasi-in rem by attaching the property of Kura Paroko in
New Manila, Quezon City. In case the defendant does not reside and is not found in the Philippines (and hence
personal and substituted service of summons cannot be effected), the remedy of the plaintiff in order for the court
to acquire jurisdiction to try the case is to convert the action into a proceeding in rem or quasi in rem by
attaching the property of the defendant. Thus, in order to acquire jurisdiction in actions in personam, where the
defendant resides out of and is not found in the Philippines it becomes a matter of course for the court to convert the
action into a proceeding in rem or quasi in rem by attaching the defendant’s property. The service of summons in
this case (which may be by publication coupled with the sending by registered mail of the copy of the summons
and the court order to the last known address of the defendant), is no longer for the purpose of acquiring
jurisdiction but for compliance with the requirements of due process.

SEC. 14.–WHEN PROPERTY ATTACHED IS CLAIMED BY THIRD PERSON

Q. What is the remedy of a third party when the sheriff erroneously levies on attachment and
seizes his property? Explain.

A. The available remedies to third parties are: a) Upon application of the third person, the Court
shall order a summary hearing for the purpose of determining whether the sheriff has acted rightly or
wrongly in the performance of his duties in the execution of the writ of attachment, more specifically if he has
indeed levied on attachment and taken hold of property not belonging to the plaintiff. If so, the court may then
order the sheriff to release the property from the erroneous levy and to return the same to the third person. In
resolving the motion of the third party, the court does not and cannot pass upon the question of the title to the
property with any character of finality. It can treat the matter only insofar as may be necessary to decide if the sheriff
has acted correctly or not. If the claimant’s proof does not persuade the court of the validity of the title, or right of
possession thereto, the claim will be denied by the court.

b) The aggrieved third party may also avail himself of the remedy of “terceria” by executing an affidavit
of his title or right of possession over the property levied on attachment and serving the same to the office making
the levy and the adverse party. Such party may also file an action to nullify the levy with damages resulting
from the unlawful levy and seizure, which should be a totally separate and distinct action from the former case.
The above-mentioned remedies are cumulative and any one of them may be resorted to by one third-party claimant
without availing of the other remedies.

DISCHARGE OF ATTACHMENT AND THE COUNTER-BOND (SEC. 12); OTHER GROUNDS (SEC. 13)

Q. What are the remedies that a party can avail of to discharge their attached property?
Explain.

A. Under Rule 57 of the 1997 Rules of Civil Procedure, there are two remedies:

(1) Under Section 12, make a cash deposit equal to the claim or give a counter-bond which will take the place
of the attached property; or (2) Under Section 13, file a motion to discharge the attachment on the following
grounds:

(a) that it was improperly or irregularly issued; or (b) that it was improperly or irregularly enforced; or (c) that
the bond of the plaintiff is insufficient.

For the second remedy to apply, a writ of attachment may be discharged without filing a cash bond or counter-
bond only if the writ of preliminary attachment itself has already been proven to be improperly or irregularly issued
or enforced, or the bond is insufficient. (Dumaan vs. Llamedo, G.R. No. 217583, 4 August 2021)(Second
Division)[Hernando, J.]; (Chua vs. China Banking Corporation, G.R. No. 202004, November 04, 2020)(Third
Division)[Hernando, J.].
SEC. 20.–CLAIM FOR DAMAGES ON ACCOUNT OF IMPROPER, IRREGULAR OR EXCESSIVE
ATTACHMENT

Q. An application for damages on the replevin bond shall only be claimed, ascertained, and
granted in accordance with Section 20, Rule 57 of the amended 1997 Rules of Civil Procedure. What does this
rule mean?

A. Under the said provision, an application for damages against the bond presupposes that a trial
on the merits in the main case was conducted and the defendant obtained a favorable judgment from the
court. Moreover, the damages to which the defendant would be entitled to, if any, would require the conduct of a
hearing. Thus, the petitioner's act of filing an application for damages against the replevin bond in the same action is
tantamount to requesting the trial court to conduct a trial on the merits of the case. The act is considered as an
invocation of the court's jurisdiction and a willingness to abide by the resolution of the case. Therefore, the
petitioner is deemed to have submitted itself to the jurisdiction of the court. (Jorgenetics Swine Improvement
Corporation, vs. Thick & Thin Agri-Products, Inc., G.R. Nos. 201044 & 222691, May 05, 2021) (Third
Division) [Hernando, J.]

RULE 58 - PRELIMINARY INJUNCTION

Q. What is a Writ of Preliminary Injunction (WPI)? Explain.

A. A writ of preliminary injunction is a preservative remedy for the protection of substantial rights
and interests. It is not a cause of action itself, but a mere provisional remedy adjunct to a main suit. It is granted at
any stage of an action or proceeding prior to the judgment or final order, requiring a party or a court, agency or a
person to refrain from a particular act or acts; it may also require the performance of a particular act or acts, in which
case it shall be known as a preliminary mandatory injunction. It may be granted by the court where the action or
proceeding is pending.

Q. What is the purpose of issuance of a writ of injunction?

A. The purpose of injunction is to prevent threatened or continuous irremediable injury to the

parties before their claims can be thoroughly studied, and its sole aim is to preserve the status quo until the
merits of the case are fully heard. The issuance of a writ of preliminary injunction is governed by Rule 58 of the
Rules of Court. (Bureau of Customs vs. CA, G.R. No. 192809, 26 April 2021)(Third Division)[Hernando, J.];
(LBP vs. Sps. De Jesus, G.R. No. 221133, 28 June 2021)(Third Division)[Hernando, J.].

Q. Can preliminary injunction survive despite the dismissal of the main case? Explain

A. No. Preliminary writ cannot survive the resolution of the main case of which it is an incident
because an ancillary writ "loses its force and effect after the decision in the main petition." When a main action is
dismissed, any provisional remedy in this case is dissolved. It then follows that once a decision disposing of the
main case becomes final and executory, any disposition by a court on the propriety of a TRO and WPI issued in the
case serves no practical purpose and renders such a disposition moot and academic. (Banco Filipino Savings and
Mortgage Bank vs. BSP, G.R. No. 200642, April 26, 2021)(Third Division)[Hernando, J.]

KINDS OF INJUNCTION

Q. What are the kinds of injunctions? Explain.

A. The kinds of injunctions are as follows: (a) Prohibitory injunction- requires a party to refrain
from doing a particular act; (b) Mandatory injunction—commands a party to perform a positive act to correct a
wrong in the past. It is a provisional remedy that a party may resort to in order to preserve and protect certain rights
and interests during the pendency of an action;and (c) Permanent injunctions - at the end of a court case, if the
judge agrees that there is an ongoing threat, he or she may issue a permanent injunction prohibiting the threatened
action indefinitely.

It is only after the court has come up with a definite pronouncement respecting an applicant’s right and of the
act violative of such right, based on its appreciation of the evidence presented, that a final injunction is issued. To be
a basis for a final and permanent injunction, the right and the act violative thereof must be established by the
applicant with absolute certainty.
 Q. What are the two aspects of an injunction? Explain.

A. The two aspects of Injunction are: a) It may be filed as a main action before the trial court; or b)
As a provisional remedy in the main action. The main actions for injunction is distinct from the provisional or
ancillary remedy of preliminary injunction, which cannot exist except only as part, or an incident of an independent
action or proceeding. As a matter of course, in an action for injunction, the auxiliary remedy of preliminary
injunction, whether prohibitory or mandatory, may issue. Under the law, the main action for injunction seeks a
judgment embodying a final injunction, which is distinct from, and should not be confused with, the provisional
remedy of preliminary injunction, the sole object of which is to preserve the status quo until the merits can be heard.

SEC. 3.–GROUNDS FOR ISSUANCE OF PRELIMINARY INJUNCTION

Q. What are the grounds for the issuances of a writ of preliminary injunction to be granted?

A. Under Section 3, Rule 58 of the Rules of Court, an application for a writ of preliminary injunction
may be granted if the following grounds are established: (1) That the applicant is entitled to the relief demanded, and
the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained
of, or in requiring the performance of an act or acts, either for a limited period or perpetually; (2) That the
commission, continuance or non-performance of the act or acts complained of during the litigation would probably
work injustice to the applicant; or (3) That a party, court, agency or a person is doing, threatening, or is attempting to
do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant
respecting the subject of the action or proceeding, and tending to render the judgment ineffectual.

SEC. 4.–RULE ON PRIOR OR CONTEMPORANEOUS SERVICE OF SUMMONS IN RELATION TO

ATTACHMENT

Q. What is the rule on prior or contemporaneous service of summons in relation to attachment?

A. Administrative Circular No. 20-95, which provided for the requisites of a raffle of cases, has been
incorporated into Section 4(c), Rule 58 of the amended 1997 Rules of Civil Procedure. This rule provides that the
prerequisites for conducting a raffle when there is a prayer for a writ of preliminary injunction or temporary
restraining order are: (a) notice to; and (b) presence of the adverse party or person to be enjoined. The rule also
provides that the notice shall be preceded or accompanied by a service of summons to the adverse party or person to
be enjoined.

Q. When may the prior or contemporaneous service of summons be dispensed with? Explain.

A. The required prior or contemporaneous service of summons may be dispensed with in the
following instances: (a) When the summons cannot be served personally or by substituted service despite diligent
efforts; (b) When the adverse party is a resident of the Philippines temporarily absent therefrom; or (c) When such
party is a non-resident. In such event, the notice of raffle and the presence of the adverse party must also be
dispensed with. Thus, "the requirement of notice of the raffle to the party whose whereabouts are unknown does not
also apply x x x because the case will have to be raffled first before the court can act on the motion for leave to serve
summons by publication."

SEC. 5.–PRELIMINARY INJUNCTION NOT GRANTED WITHOUT NOTICE; EXCEPTION

Q. What are the instances when a court may issue a Temporary Restraining Order (TRO)?
Explain.

A. Rule 58, Section 5 of the Rules of Court provides for two (2) instances when a temporary
restraining order may be issued: First, when great or irreparable injury would result to the applicant even before the
application for writ of preliminary injunction can be heard. Second, if the matter is of extreme urgency and the
applicant will suffer grave injustice and irreparable injury. The executive judge of a multi-sala court or the presiding
judge of a single-sala court may issue a 72-hour temporary restraining order. In both instances, the temporary
restraining order may be issued ex parte. However, in the first instance, the temporary restraining order has an
effectivity of only 20 days to be counted from service to the party sought to be enjoined. Likewise, within those 20
days, the court shall order the enjoined party to show why the injunction should not be granted and shall then
determine whether or not the injunction should be granted. In the second instance, when there is extreme urgency
and the applicant will suffer grave injustice and irreparable injury, the court shall issue a temporary restraining order
effective for only 72 hours upon issuance. Within those 72 hours, the court shall conduct a summary hearing to
determine if the temporary restraining order shall be extended until the application for writ of preliminary injunction
can be heard. However, in no case shall the extension exceed 20 days.

If the application for preliminary injunction is denied or not resolved within the given periods, the temporary
restraining order is automatically vacated and the court has no authority to extend or renew it on the same ground of
its original issuance.

Q. Which court has jurisdiction to issue Injunction/Temporary Restraining Order (TRO)?

A. As a rule, actions for injunction and damages lie within the jurisdiction of the RTC pursuant to
Section 19 of Batas Pambansa Blg. 129, otherwise known as the "Judiciary Reorganization Act of 1980," as
amended by R.A. No. 7691 and further amended by R.A. No. 11576, effective 21 August 2021.

STATUS QUO ANTE ORDER

Q. What is meant by a Status Quo Ante Order?

A. Status quo ante, meaning the situation of the contending parties prior to the case, must be maintained.

REQUISITES

Q. What are the requisites for the issuance of an injunctive writ?

A. The requisites for the issuance of a writ of preliminary injunction are as follows: (a) the applicant must
have a clear and unmistakable right to be protected, that is a right in esse; (b) there is a material and substantial
invasion of such right; (c) there is an urgent need for the writ to prevent irreparable injury to the applicant; and, (d)
no other ordinary, speedy, and adequate remedy exists to prevent the infliction of irreparable injury. (Bureau of
Customs vs. CA, G.R. No. 192809, 26 April 2021)(Third Division)[Hernando, J.].

Q. What is the concept of a clear and unmistakable right that may be protected by a writ of
injunction? Explain.

A. It means a right clearly founded on or granted by law or is enforceable as a matter of law. An

injunction is not a remedy to protect or enforce contingent, abstract, or future rights; it will not issue to protect a
right not in esse, and which may never arise, or to restrain an act which does not give rise to a cause of action. When
the complainant's right is doubtful or disputed, he does not have a clear legal right and, therefore, injunction is not
proper.While it is not required that the right claimed by the applicant, as basis for seeking injunctive relief, be
conclusively established, it is still necessary to show, at least tentatively, that the right exists and is not vitiated by
any substantial challenge or contradiction. (Bureau of Customs vs. CA, G.R. No. 192809, 26 April 2021)(Third
Division)[Hernando, J.].

Q. What does irreparable injury or damage mean in the application for a writ of injunction?

A. Injury is irreparable where there is no standard by which its amount can be measured with
reasonable accuracy. (Bureau of Customs vs. CA, G.R. No. 192809, 26 April 2021)(Third Division)[Hernando,
J.].

PROHIBITION OF ISSUANCE OF TRO/INJUNCTION AGAINST GOVERNMENT PROJECTS UNDER

R.A. NO. 8975

PROBLEM:

Section 3 of R.A. No. 8975 proscribes the issuance of TRO, Preliminary Mandatory Injunction except the
Supreme Court against the government, or any of its subdivisions, officials or any person or entity, whether public or
private acting under the government direction, to restrain, prohibit or compel the following acts: (a) Acquisition,
clearance and development of the right-of-way and/or site or location of any national government project; (b)
Bidding or awarding of contract/project of the national government as defined under Section 2 hereof; (c)
Commencement prosecution, execution, implementation, operation of any such contract or project; (d) Termination
or rescission of any such contract/project; and (e) The undertaking or authorization of any other lawful activity
necessary for such contract/ project.

Does the prohibition apply only to the issuance of TRO and preliminary Injunction? Explain.

SUGGESTED ANSWER:

Yes. The prohibition applies only to TRO and preliminary injunction. The ambit of the prohibition covers only
temporary or preliminary restraining orders or writs but NOT decisions on the merits granting permanent
injunctions. Considering that these laws trench on judicial power, they should be strictly construed. Therefore, while
courts below the Supreme Court are prohibited by these laws from issuing temporary or preliminary restraining
orders pending the adjudication of the case, said statutes however do not explicitly proscribe the issuance of a
permanent injunction granted by a court of law arising from an adjudication of a case on the merits.

Q. Can the National Commission on Indigenous Peoples (NCIP) issue writ of preliminary
injunction? Explain.

A. Yes. The NCIP may issue temporary restraining orders and writs of injunction without any
prohibition against the issuance of the writ when the main action is for injunction. The power to issue temporary
restraining orders or writs of injunction allows parties to a dispute over which the NCIP has jurisdiction to seek
relief against any action which may cause them grave or irreparable damage or injury.

PROBLEM:

An administrative case for gross ignorance of the law was filed against Judge Maximino Contrario of the RTC
of Iraga. The administrative case originated from the issuance of an Injunction by Judge Contrario without the
parties presenting and offering their respective evidence. The issuance of the injunctive writ was based merely on
testimonies of resource persons invited by the court, with counsels not being given the opportunity to cross-examine
the resource persons.

Can Judge Contrario be held administratively liable for gross ignorance of the law? Explain.

SUGGESTED ANSWER:

No. In Humol vs. Judge Clapis, the High Court ruled that: Errors or irregularities committed by the judge in
rendering his decision should be remedied first through a motion for reconsideration, appeal, special civil action for
certiorari, prohibition or mandamus, motion for inhibition or petition for change of venue. Thus, in Humol, which
has a similar factual milieu with the problem, despite the absence of the applicant’s offer of evidence in the hearing
on the motion for issuance of preliminary injunction, the Supreme Court dismissed the charge of impropriety
exhibited by the judge because the issue on the propriety of the issuance of the writ of injunction was judicial in
nature and cannot be threshed out in an administrative action.

SEC. 6.–GROUNDS FOR OBJECTION TO, OR FOR MOTION OF DISSOLUTION OF INJUNCTION OR

RESTRAINING ORDER

Q. When may the preliminary injunction be dissolved?

A. A preliminary injunction may be dissolved if it appears after hearing that although the applicant is
entitled to the injunction or restraining order, the issuance or continuance thereof, as the case may be, would cause
irreparable damage to the party or person enjoined while the applicant can be fully compensated for such
damages as he may suffer, and the former files a bond in an amount fixed by the court on condition that he
will pay all damages which the applicant may suffer by the denial or the dissolution of the injunction or
restraining order. (Sec. 6, Rule 58)

Q. What is the liability of a judge if he issued a Cease and Desist Order (CDO) without a
period? Explain.

A. If the Judge issued an indefinite cease and desist order, he/she clearly failed to observe the rules
and restrictions regarding the issuance of a TRO, which are basic tenets of procedure, and hence, renders him
administratively liable for gross ignorance of the law. Case law states that when a law or a rule is basic, judges owe
it to their office to simply apply the law. It is of no moment that he was motivated by good faith or acted without
malice, as these affect his competency and conduct as a judge in the discharge of his official functions. According to
jurisprudence, gross ignorance of the law or incompetence cannot be excused by a claim of good faith. (Boston
Finance and Investment Corporation vs. Gonzalez, A.M. No. RTJ-18-2520, 9 October 2018)(En Banc)[Perlas-
Bernabe, J.].

EXCEPTION TO THE 20-DAY TRO ISSUED BY THE REGIONAL TRIAL COURT

Q. Under Section 5, Rule 58, the lifetime of a TRO issued by the RTC is twenty (20) days. If no
injunction is issued after the lapseof the 20-day period, it becomes functus officio. Is there any exception?
Explain.

A. Yes. In case of violation of R.A. No. 9262, the Temporary Protection Order (TPO) which is
effective for 30 days can be extended by the designated Family Court of the RTC for another 30 days each time until
final judgment is rendered. Thus, to obviate potential dangers that may arise concomitant to the conduct of a hearing
when necessary, Section 26(b) of A.M. No. 04-10-11-SC provides that if a temporary protection order issued is due
to expire, the trial court may extend or renew the said order for a period of thirty (30) days each time until final
judgment is rendered. It may likewise modify the extended or renewed temporary protection order as may be
necessary to meet the needs of the parties. (Garcia vs. Drilon, 699 SCRA 352, 25 June 2013)(En Banc)[Perlas-
Bernabe, J.].

RULE 59-RECEIVERSHIP

SEC. 1.–CASES WHEN RECEIVER MAY BE APPOINTED

Q. When is the appointment of a receiver justified? Explain.

A. Only when the property is in danger of being materially injured or lost, as by the prospective
foreclosure of a mortgage thereon for non-payment of the mortgage loans despite the considerable income derived
from the property, or if portions thereof are being occupied by third persons claiming adverse title thereto, may the
appointment of a receiver be justified.

Q. When is the appointment of a receiver not proper? Explain.

A. The appointment of a receiver is not proper where the rights of the parties, one of whom is in
possession of the property, are still to be determined by the trial court. Relief by way of receivership is
equitable in nature, and a court of equity will not ordinarily appoint a receiver where the rights of the parties depend
on the determination of adverse claims of legal title to real property and one party is in possession.

Q. What is the general rule in the appointment of a receiver?

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

REQUISITES BEFORE APPOINTING A RECEIVER

Q. What are to be considered in appointing a receiver?

A. Before appointing a receiver, courts should consider: (1) Whether or not the injury resulting from
such appointment would probably be greater than the injury ensuing if the status quo is left undisturbed; and (2)
Whether or not the appointment will imperil the interest of others whose rights deserve as much a consideration
from the court as those of the person requesting for receivership. Moreover, the Supreme Court has consistently
ruled that where the effect of the appointment of a receiver is to take real estate out of the possession of the
defendant before the final adjudication of the rights of the parties, the appointment should be made only in extreme
cases.

Q. Is receivership an action in itself?

A. No. Receivership is not an action. It is but an auxiliary remedy, a mere incident of the suit to help
achieve its purpose. Consequently, it cannot be said that the grant of receivership in one case will amount to res
judicata on the merits of the other cases. The grant or denial of this provisional remedy will still depend on the need
for it in the particular action.

SEC. 6.–GENERAL POWERS OF A RECEIVER

Q. What are the general powers of a receiver?

A. Section 6, Rule 59 of the 1997 Rules of Civil Procedure provides that a receiver shall have the
power to bring and defend, as such actions in his own name subject to the control of the court in which the
action is pending. A receiver is a representative of the court appointing him for the purpose of preserving and
conserving the property under receivership and preventing its possible destruction or dissipation, if it goes to the
possession of another person.

RULE 60 – REPLEVIN

Q. What is a replevin? Explain.

A. Replevin is an action for the recovery of personal property. It is both a principal remedy and
a provisional relief. When utilized as a principal remedy, the objective is to recover possession of personal property
that may have been wrongfully detained by another. When sought as a provisional relief, it allows a plaintiff to
retain the contested property during the pendency of the action.

SEC. 1.–APPLICATION

Q. When can the plaintiff commence replevin as a provisional remedy?

A. As a provisional remedy, a party may apply for an order for the delivery of the property before the
commencement of the action or at any time before an answer is filed. Rule 60 of the Rules of Court outlines the
procedure for the application of a writ of replevin.

SEC. 2.–AFFIDAVIT AND BOND

Q. What are the requisites in the application for replevin?

A. Rule 60, Section 2 requires that the party seeking the issuance of the writ must first file the
required affidavit and a bond in an amount that is double the value of the property.

Q. What is the duty of the court once the affidavit is filed and the bond is approved? Explain.

A. The court issues an order and a writ of seizure requiring the sheriff to take the property into his or
her custody. If there is no further objection to the bond filed within five (5) days from the taking of the property, the
sheriff shall deliver it to the applicant. The contested property remains in the applicant's custody until the court
determines, after a trial on the Issues, which among the parties has the right of possession.

PROBLEM:

On January 15, 2019, Jess Dima, a businessman and owner of Jess Restaurant, applied for a car loan with
ABC Bank in the amount of ₱750,000.00 payable in two (2) years or until January 15, 2021. The said amount is
50% of the total value of the Mitsubishi pick-up. Due to the COVID-19 pandemic that hit the world and the closure
of Jess Restaurant, he failed to pay five (5) consecutive monthly amortizations. Thus, ABC bank filed a complaint
for replevin, executed the required affidavit, and posted a bond in the amount of ₱800,000.00, which is the double
amount of the balance of ₱400,000.00 of Jess Dima with the RTC of Makati City. The RTC approved the bond and
ordered the sheriff to seize the Mitsubishi pick-up and delivered it to ABC bank. However, the RTC dismissed
without prejudice the complaint for replevin for failure to prosecute. It ordered the sheriff to restore the pick-up to
Jess Dima. ABC bank, however, failed to produce the pick-up. Thus, it ordered the bonding company to pay the
amount of the bond. There was no trial on the merits.

What is ABC bank's duty in view of the dismissal of the complaint for replevin without prejudice?
Explain.

SUGGESTED ANSWER:

It was imperative for the plaintiff ABC bank to return the Mitsubishi pick-up to Jess Dima. The RTC of
Makati’s dismissal for failure to prosecute was a dismissal without prejudice to re-filing. In this particular instance,
any writ of seizure, being merely ancillary to the main action, becomes functus officio. The parties returned to the
status quo as if no case for replevin had been filed.

Q. What are the provisional remedies which provide that the amount of the bond to be fixed by
the court be merely equal to the value of the property?

A. These are the following remedies provided by the Rules of Court:

a) Rule 57– Preliminary Attachment;

b) Rule 58 – Preliminary Injunction;
c) Rule 59 – Receivership;
d) Rule 60 – Replevin (Section 7) if claimed by third party.

Q. What is the rationale why the bond in replevin suit is double the value of the property?
Explain.

A. The rationale is that, the bond functions not only to indemnify the defendant in case the property is
lost, but also to answer for any damages that may be awarded by the court if the judgment is rendered in
defendant's favor. Any application of the bond in a replevin case, therefore, is premised on the judgment rendered
in favor of the defendant. Thus, the Rules of Court imply that there must be a prior judgment on the merits before
there can be any application on the bond.

Q. What are the requirements for the forfeiture of a replevin bond?

A. The requirements are as follows: First, a judgment on the merits in the defendant's favor, and
Second, an application by the defendant for damages.

REDELIVERY BOND

Q. What is a redelivery bond?

A. It is a bond given to a sheriff or other officer, who has attached or levied on personal property, to
obtain the release and repossession of the property, conditioned to redeliver the property to the officer or pay him its
value in case the levy or attachment is adjudged good.

Q. When can the plaintiff be held liable for damages in the wrongful implementation of the writ
of replevin?

A. The plaintiff could be held liable for damages if the writ of replevin is implemented by himself
and not by the appointed sheriff by the court. Sections 3 and 4, Rule 60 of the Rules of Court are very clear and
direct as to the procedure for the seizure of property under a writ of replevin.
 Q. What are the available remedies of a defendant in a replevin proceeding? Explain.

A. A defendant or other party in a replevin proceeding has the following alternative remedies: 1.
Return of Property under Section 5 in relation to Section 6. The defendant may avail of these alternative options
only within five (5) days after the taking of the property by the officer. This was made plain albeit impliedly by
Section 6 of the same Rule. Thus, if a defendant in a replevin action wishes to have the property taken by the sheriff
restored to him, he should within five (5) days from such taking, (1) post a counter-bond in double the value of said
property, and (2) serve plaintiff with a copy thereof both requirements as well as compliance therewith within the
five-day period mentioned being mandatory.Alternatively, "the defendant may object to the sufficiency of the
plaintiff's bond, or of the surety or sureties thereon;" but if he does so, "he cannot require the return of the property"
by posting a counter-bond pursuant to Sections 5 and 6. In other words, the law does not allow the defendant to file
a motion to dissolve or discharge the writ of seizure (or delivery) — on the ground of insufficiency of the complaint
or of the grounds relied upon therefor, as in proceedings on preliminary attachment or injunction and thereby put at
issue the matter of the title or right, of possession over the specific chattel being replevied, the policy apparently
being that said matter should be ventilated and determined only at the trial on the merits.

2. If the defendant is a stranger to the action or any other person or agent whose property is seized pursuant
to the writ of delivery, he has the remedy known as terceria.

SEC. 7.– PROCEEDINGS WHERE PROPERTY CLAIMED BY THIRD PERSON

Q. What need to be proven in order to avail the remedy of terceria? Explain.

A. For a third-party claim or a terceria to prosper, the claimant must first sufficiently establish
his right on the property. The right of a third-party claimant to file a terceria is founded on his title or right of
possession. Corollary thereto, before the court can exercise its supervisory power to direct the release of the property
mistakenly levied and the restoration thereof to its rightful owner, the claimant must first unmistakably establish his
ownership or right of possession thereon. A third person, who is not the judgment debtor, or his agent, can
vindicate his claim to a property levied through the remedies of (1) terceria to determine whether the sheriff has
rightly or wrongly taken hold of the property not belonging to the judgment debtor or obligor and (2) an independent
"separate action."

SPECIAL CIVIL ACTIONS

JURISDICTION AND VENUE

Q. What are the Special Civil Actions (SCA) under the amended 1997 Rules of Civil Procedure?

A. The Special Civil Actions under the amended 1997 Rules of Civil Procedure are as follows:

Rule 62 – Interpleader
Rule 63 – Declaratory Relief and Similar Remedies
Rule 64 – Review of Judgments and Final Orders or Resolutions of the Commission on Elections and the
Commission on Audit
Rule 65 – Certiorari, Prohibition and Mandamus
Rue 66 – Quo Warranto
Rue 67 – Expropriation
Rue 68 – Foreclosue of Real Estate Mortgage
Rule 69 – Partition
Rue 70 – Forcible Entry and Unlawful Detainer
Rule 71 – Contempt

RULE 62 – INTERPLEADER

SEC. 1.–WHEN INTERPLEADER PROPER

Q. What is the purpose of interpleader? Explain

 A. The remedy of interpleader, is proper, to provide an avenue for the conflicting claims on the
same subject matter to be threshed out in an action. Through this remedy, the stakeholder can join all competing
claimants in a single proceeding to determine conflicting claims without exposing the stakeholder to the possibility
of having to pay more than once on a single liability. (BIR vs. TICO, G.R. No. 204226, 18 April 2022)(Second
Division)[Hernando, J.].

Q. Can a successful litigant who has secured a final judgment in its favor be later impleaded by
its defeated adversary in an interpleader suit, and compelled to prove its claim anew against other adverse
claimants? Explain.

A. No. It would in effect be a collateral attack upon the judgment which is proscribed. An action
for interpleader may not be utilized to circumvent the immutability of a final and executory judgment. When a
decision has attained finality, it "may no longer be modified in any respect, even if the modification is meant to
correct erroneous conclusions of fact and law." The doctrine is grounded on the public policy that at the risk of
occasional errors, litigation should end at some definite date fixed by law. " Any act, which violates such principle,
must be immediately struck down." (BIR vs. TICO, G.R. No. 204226, 18 April 2022)(Second Division)
[Hernando, J.].

Q. Can the sheriff institute an interpleader suit to resolve conflicting claims of property seized
in the foreclosure of chattel mortgage? Explain.

A. Yes. The sheriff may bring an action of interpleader under Rule 62 of the 1997 Rules of Civil
Procedure in order to determine the respective rights of the claimants. Though it may be better practice ordinarily for
the sheriff to sell the property and hold the proceeds subject to the outcome of the action of interpleader, his action
in suspending the sale pending the determination of the action of interpleader seems justified and the court will not
interfere by madamus.

Q. What is meant by good practice and fair interpretation? Explain.

A. Good practice and the fair interpretation of Rule 62 of the amended 1997 Rules of Civil
Procedure require that there be a declaration by the court requiring the claimants brought in by interpleader to
litigate among themselves before they file claims or complaints of interpleader, and a claim or complaint filed
without such an order having been made is premature.

SEC. 4.–ANSWER AND OTHER PLEADINGS

Q. Can an adverse claimant be declared in default in an interpleader suit? Explain.

A. Yes. An adverse claimant in an interpleader case may be declared in default. Under Rule 62,
Section 5 of the 1997 Rules of Civil Procedure, a claimant who fails to answer within the required period may,
on motion, be declared in default. The consequence of the default is that the court may “render judgment barring
the defaulted claimant from any claim in respect to the subject matter.” The Rules would not have allowed claimants
in interpleader cases to be declared in default if it would “ironically defeat the very purpose of the suit.”
RULE 63 - DECLARATORY RELIEF AND SIMILAR REMEDIES

SEC. 1.–WHO MAY FILE ACTION

Q. What is the concept of declaratory relief? Explain.

A. A petition for declaratory relief is an action instituted by a person interested in a deed, will,
contract or other written instrument, executive order or resolution, to determine any question of construction or
validity arising from the instrument, executive order or regulation, or statute and for a declaration of his rights and
duties thereunder. It must be filed before the breach or violation of the statute, deed or contract to which it
refers; otherwise, the court can no longer assume jurisdiction over the action. Thus, "the only issue that may be
raised in such an action is the question of construction or validity of provisions in an instrument or statute. (CIR
vs. Standard Insurance Co., Inc., G.R. No. 219340, April 28, 2021)(Third Division)[Hernando, J.]; COA vs.
Pampilo, G.R. No. 188760, 30 June 2020)(En Banc)[Hernando, J.].
PROBLEM:

In a Petition for declaratory relief, petitioners allege that the Big 3, Chevron, Shell, and Petron, increase in
prices declared by one of them is inevitably followed by increases by the others. Thus, they presented the following
issues in the trial court: (A) WHETHER THE ACT OF OIL COMPANIES, INCLUDING THE BIG 3, IN
INCREASING THE PRICE OF THEIR OIL PRODUCTS WHENEVER THE PRICE OF CRUDE OIL IN THE
WORLD MARKET INCREASES, DESPITE THE FACT THAT THEY HAD PURCHASED THEIR INVENTORY
OF CRUDE OIL LONG BEFORE SUCH INCREASE IN WORLD MARKET PRICE AND AT A MUCH LOWER
PRICE, IS VIOLATIVE OF THE FOREGOING LEGAL PROVISIONS. (B) WHETHER THE ACT OF AN OIL
COMPANY IN INCREASING THE PRICES OF ITS OIL PRODUCTS WHENEVER ITS PROPOSED
COMPETITORS INCREASE THEIR PRICES FALLS UNDER THE TERM 'COMBINATION OR CONCERTED
ACTIONS' USED IN SECTION 11 (a) OF RA 8479.

Can the business practice of the Big 3 that allegedly violates the RPC and RA 8479 be the subject of a
petition for declaratory relief under Rule 63 of the amended 1997 Rules of Civil Procedure? Explain.

SUGGESTED ANSWER:

No. When the petition was filed, the acts imputed was already committed or being committed by the Big
3, which the petitioner believe, are in violation of the RPC and RA 8479. It cannot be the subject of a
declaratory relief. The action for declaratory relief presupposes that there has been no actual breach as such action
is filed only for the purpose of securing an authoritative statement of the rights and obligations of the parties under a
contract, deed or statute. It cannot be availed of if the statute, deed or contract has been breached or violated
because, in such a case, the remedy is for the aggrieved party to file the appropriate ordinary civil action in court.
Thus, it has been consistently ruled that "if adequate relief is available through another form or action or proceeding,
the other action must be preferred over an action for declaratory relief. (COA vs. Pampilo, G.R. No. 188760, 30
June 2020)(En Banc)[Hernando, J.]

SEC. 3.–NOTICE ON SOLICITOR GENERAL

Q. If the Solicitor General was duly notified by the Court, but failed to participate in a
declaratory relief proceeding, is it a ground for dismissal of the petition? Explain.

A. No. The Rules only require that notice be given to the Solicitor General. They do not state that
if the Solicitor General fails to participate in the action, the action would be dismissed. The Administrative Code
provides that the Solicitor General shall appear in any action involving the validity of a statute "when in his or her
judgment his intervention is necessary or when requested by the Court." The failure of the Office of the Solicitor
General to participate, however, should not prejudice a litigant's cause. The Solicitor General does not have and
should not have unbridled control over cases that were originally filed between private parties. (Zomer
Development Company, Inc. vs. Special Twentieth Division of the CA, Cebu City, G.R. No. 194461, 7 January
2020) (En Banc) [Leonen, J.].

SEC. 5.–COURT ACTION DISCRETIONARY

Q. Can the Supreme Court assume jurisdiction over the petition for prohibition, mandamus,
certiorari, and declaratory relief against the JBC? Explain.

A. Yes, except for declaratory relief. By virtue of the Supreme Court’s supervisory power over the
JBC and in the exercise of its expanded judicial power, the High Court can assume jurisdiction over the petition.
However, the petition for declaratory relief is improper. "An action for declaratory relief should be filed by a person
interested under a deed, a will, a contract or other written instrument, and whose rights are affected by a statute, an
executive order, a regulation or an ordinance. The relief sought under this remedy includes the interpretation and
determination of the validity of the written instrument and the judicial declaration of the parties' rights or duties
thereunder." "The purpose of the action is to secure an authoritative statement of the rights and obligations of the
parties under a statute, deed, contract, etc., for their guidance in its enforcement or compliance and not to settle
issues arising from its alleged breach."

In the case of Villanueva vs. JBC, the petition for declaratory relief did not involve an unsound policy.
Rather, the petition specifically sought a judicial declaration that the petitioner has the right to be included in the list
of applicants although he failed to meet JBC's five-year requirement policy. Again, the Supreme Court reiterates that
no person possesses a legal right under the Constitution to be included in the list of nominees for vacant judicial
positions. The opportunity of appointment to judicial office is a mere privilege, and not a judicially enforceable right
that may be properly claimed by any person. The inclusion in the list of candidates, which is one of the incidents of
such appointment, is not a right either. Thus, the petitioner cannot claim any right that could have been affected by
the assailed policy. Furthermore, the petition must necessarily fail because the Supreme Court does not have original
jurisdiction over a petition for declaratory relief even if only questions of law are involved. The special civil action
of declaratory relief falls under the exclusive jurisdiction of the appropriate RTC pursuant to Section 19 of Batas
Pambansa Blg. 129, as amended by R.A. No. 7691.

Q. Is there an actual case or controversy in a Petition for declaratory relief?

A. None. One of the requisites for an action for declaratory relief is that it must be filed before any
breach or violation of an obligation. Thus, there is no actual case involved in a Petition for Declaratory Relief. It
cannot, therefore, be the proper vehicle to invoke the judicial review powers to declare a statute unconstitutional.
(DOTR vs. Philippine Petroleum Sea Transport Association, et al., G.R. No. 230107, 24 July 2018)(En Banc)
[Velasco, Jr., J.]

RULE 65 - CERTIORARI, PROHIBITION AND MANDAMUS

Q. As a rule, a Petition for Certiorari under Rule 65 cannot be availed of if there is a remedy of
appeal. Are there exceptions?

A. Yes. There are instances when recourse to certiorari may be allowed despite the availability of
appeal, such as: (1) when public welfare and the advancement of public policy dictates; (2) when the broader interest
of justice so requires; (3) when the writs issued are void; or (4) when the questioned order amounts to an oppressive
exercise of judicial authority. (Garcia vs. Esclito, G.R. No. 207210, 21 March 2022)(Second Division)[Hernando,
J.].

Q. What are the requisites in order for a petition for certiorari to prosper?

A. Under Section 1, Rule 65 of the Rules of Court, the following requisites must be present in order
for a petition for certiorari to prosper: (1) the writ is directed against a tribunal, a board, or any officer exercising
judicial or quasi-judicial functions; (2) such tribunal, board, or officer has acted without or in excess of jurisdiction,
or with grave abuse of discretion amounting to lack or excess of jurisdiction; and (3) there is no appeal or any plain,
speedy, and adequate remedy in the ordinary course of law. (Metro Rail Transit Development Corporation vs.
Trackworks Rail Transit Advertising, Vending And Promotions, Inc. (G.R. No. 204452, June 28, 2021)(Third
Division)[Hernando, J.]; Home Guaranty Corporation, Petitioner vs. Manlapaz G.R. No. 202820, January 13,
2021)(Third Division) [Hernando, J].

Q. What is the meaning of grave abuse of discretion in contemplation of Section 1? Explain.

A. Grave abuse of discretion exists when "an act is (1) done contrary to the Constitution, the law or
jurisprudence or (2) executed whimsically, capriciously or arbitrarily, out of malice, ill will or personal bias." It
has been described as follows: Grave abuse of discretion implies such capricious and whimsical exercise of
judgment as to be equivalent to lack or excess of jurisdiction; in other words, power is exercised in an arbitrary or
despotic manner by reason of passion, prejudice, or personal hostility; and such exercise is so patent or so gross as to
amount to an evasion of a positive duty or to a virtual refusal either to perform the duty enjoined or to act at all in
contemplation of law. Mere abuse of discretion is not enough. (LBP vs. Sps. De Jesus, G.R. No. 221133, 28 June
2021)(Third Division) Hernando, J.]; Linden Suites vs. Meriden Far East Properties, G.R. No. 211969, 4
October 2021)(Second Division)[Hernando, J.].

Q. Who is considered the aggrieved party or person in a Rule 65 Petition under the Rules of
Court? Explain.

A. The 'person aggrieved' referred to under Section 1 of Rule 65 who can avail of the special civil
action of certiorari pertains to one who was a party in the proceedings before the lower court. The correctness of
this interpretation can be gleaned from the fact that a special civil action for certiorari may be dismissed motu
proprio if the party elevating the case failed to file a motion for reconsideration of the questioned order or decision
before the lower court. (Province of Bataan vs. Casimiro and De Mesa vs. OMB, G.R. No. 197510-A, 18 April
2022)(Second Division)[Hernando, J.].

Q. What is the concept of a writ of certiorari under Rule 65? Explain.

A. A writ of certiorari under Rule 65 is an extraordinary remedy limited to correction of errors of

jurisdiction or grave abuse of discretion amounting to lack or excess of jurisdiction. It aims to keep the inferior
court within the bounds of its jurisdiction or to preclude it from committing grave abuse of discretion amounting to
lack or excess of jurisdiction. The burden lies on the petitioner who must prove that the lower court gravely abused
its discretion tantamount to lack or excess of jurisdiction. Mere abuse of discretion is therefore not enough to
warrant a certiorari proceeding. (Linden Suites vs. Meriden Far East Properties, G.R. No. 211969, 4 October
2021)(Second Division)[Hernando, J.].

Q. Can a Rule 65 petition be utilized to substitute an appeal via Rule 45? Explain.

A. No. It is elementary that the special civil action of certiorari is not and cannot be a substitute for an
appeal, where the latter remedy is available. While the Supreme Court has, in several cases, previously granted a
petition for certiorari despite the availability of an appeal, it only applies (a) when public welfare and the
advancement of public policy dictates; (b) when the broader interest of justice so requires; (c) when the writs
issued are null and void; or (d) when the questioned order amounts to an oppressive exercise of judicial authority.
(Idul vs. Alster, G.R. No. 209907, 23 June 2021) (Second Division) [Hernando, J.].

EXCEPTIONS TO FILING OF MOTION FOR RECONSIDERATION

Q. What are the exceptions to the pre-requisite Motion for Reconsideration before filing a
petition for certiorari?

A. Certain exceptions were crafted to the general rule requiring a prior motion for reconsideration
before the filing of a petition for certiorari, which exceptions also apply to a petition for prohibition. These are:

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

In the case of Carpio-Morales vs. CA (Sixth Division), [En Banc](2015) the exceptions attend since, for the
first time, the question on the authority of the CA - and of the Supreme Court, for that matter - to enjoin the
implementation of a preventive suspension order issued by the Office of the Ombudsman is put to the fore.
This case tests the constitutional and statutory limits of the fundamental powers of key government
institutions - namely, the Office of the Ombudsman, the Legislature, and the Judiciary - and hence, involves
an issue of transcendental public importance that demands no less than a careful but expeditious resolution.
Also raised is the equally important issue on the propriety of the continuous application of the condonation doctrine
as invoked by a public officer who desires exculpation from administrative liability. As such, the Ombudsman's
direct resort to certiorari and prohibition before this Court, notwithstanding her failure to move for the prior
reconsideration of the assailed issuances in CA is justified.

Q. Can private parties be allowed to institute certiorari and prohibition proceedings against the
trial court to assail the rulings or orders in criminal cases? Explain.

A. Yes. While the OSG ordinarily represents the People in proceedings before the Supreme Court, in
the past, private parties were allowed to file certiorari petitions assailing rulings and orders of the RTC in criminal
cases. As early as 1969, in Paredes vs. Gopengco, it was already held that offended parties in criminal cases have
sufficient interest and personality as "persons aggrieved" to file a special civil action of prohibition and certiorari
under Sections l and 2 of Rule 65. That ruling was in line with the underlying spirit of adopting a liberal
construction of the Rules of Court in order to promote their object. This ruling was reiterated in Almero vs.
People [2017].

OMBUDSMAN ADVERSE DECISION OR RESOLUTION IN CRIMINAL CASES CAN BE ELEVATED

TO THE SUPREME COURT UNDER RULE 65

Q. What is the proper remedy of a party in case of adverse resolution or decision of the
Ombudsman in criminal cases? Explain.
 A. The remedy to assail the OMB's findings of probable cause in criminal or non-administrative cases
is still by filing a petition for certiorari with the Supreme Court, and not with the CA. This doctrine has never been
struck down or abandoned by Carpio-Morales. (Patdu, Jr. vs. Carpio-Morales, G.R. No. 230171, 27 September
2021) (Second Division) [Hernando, J.]

Q. Is the non-compliance by the Ombudsman of its own rules considered as grave abuse of
discretion? Explain

A. Yes. The Ombudsman committed grave abuse of discretion due to its failure to follow its own rules in the
conduct of the proceedings. Changing regulations in the middle of the proceedings without reason, after the
violation has accrued, does not comply with fundamental fairness, or in other words, due process of law. (Villa-
Ignacio vs. Gutierrez, Casimiro and Chua, 818 SCRA 297, 21 February 2017)(En Banc)[Sereno, J.].

PROBLEM:

Anthony Tavern filed an administrative complaint for Grave Misconduct and Dishonesty and for violation of
R.A. No. 3019 against Atty. Jess Dima, former Provincial Agrarian Reform Adjudicator (PARAD) of the
Department of Agrarian Reform Adjudication Board (DARAB) Regional Office No. III, Talavera, Nueva Ecija with
the Office of the Ombudsman for Luzon. The case was in connection with Atty. Dima’s alleged irregular issuance of
an Order granting the quashal of a writ of execution in favor of Bonifacio Tijam. Atty. Dima meted the penalty of
a fine equivalent to a one-month salary by the Ombudsman. Instead of availing a Rule 43 remedy, Atty. Dima
filed a Certiorari Petition against the Ombudsman to the Court of Appeals. The Court of Appeals dismissed the
petition outright and denied Atty. Dima’s Motion for Reconsideration based on the Supreme Court ruling in Fabian
vs. Desierto.

Was the dismissal of the Rule 65 petition of Atty. Dima by the CA correct?

SUGGESTED ANSWER:

No. The CA's reliance on Fabian in dismissing Atty. Dima’s petition is misplaced. The CA failed to consider
that Atty. Dima was meted the penalty of a fine equivalent to one-month salary by the Ombudsman. Such penalty
was final, executory, and unappealable under Section 7, Rule III of Administrative Order No. 07, issued by the
Ombudsman to implement Section 27 of R.A. No. 6770. Given the final, executory and unappealable nature of the
Ombudsman's decision, Atty. Dima’s remedy is a Rule 65 Petition. Atty. Dima was therefore correct in filing a
petition for certiorari before the CA to assail the Ombudsman decision considering that the same was final,
executory and unappealable and he was able to show that the Ombudsman grossly misappreciated the evidence so as
to compel a contrary conclusion. Thus, the CA erred in dismissing his petition outright.

Q. What does judicial and quasi-judicial functions mean in contemplation of Section 1, Rule 65?
Explain.

A. Judicial function means, that it has the power to determine what the law is and what the legal
rights of the parties are, and then undertakes to determine these questions and adjudicate upon the rights of the
parties. Whereas, quasi-judicial function, is "a term which applies to the actions, discretion, etc., of public
administrative officers or bodies … required to investigate facts or ascertain the existence of facts, hold hearings,
and draw conclusions from them as a basis for their official action and to exercise discretion of a judicial nature."
(Rosales, et al. vs. ERC, et al., G.R. No. 201852, 5 April 2016)(En Banc)[Peralta, J.].

Q. Does the ERC exercise quasi-judicial functions? Explain.

A. The ERC exercised neither judicial nor quasi-judicial function. In issuing and implementing
the RSEC-WR and Resolution No. 14, it was not called upon to adjudicate the rights of contending parties to
exercise, in any manner, discretion of a judicial or quasi-judicial nature. Instead, RSEC-WR and Resolution No.
14 were done in the exercise of the ERC's quasi-legislative and administrative functions. It was in the nature of
subordinate legislation, promulgated in the exercise of its delegated power.
Quasi-legislative power is exercised by administrative agencies through the promulgation of rules and
regulations within the confines of the granting statute and the doctrine of non-delegation of powers flowing from the
separation of the branches of the government. Particularly, the ERC applied its rule-making power as expressly
granted by R.A. No. 9136 (Electric Power Industry Reform Act of 2001 or EPIRA). (Rosales, et al. vs. ERC, et al.,
supra)(En Banc).
 Q. What is the distinction between error of jurisdiction and error of judgment? Explain.

A. The distinctions are as follows: (a) An error of judgment is one, which the court may commit in
the exercise of its jurisdiction. Whereas, an error of jurisdiction renders an order or judgment void or voidable. (b)
Errors of jurisdiction is reviewable on certiorari. Whereas, errors of judgment only by appeal. (c) The true
function of the writ of certiorari - "to keep an inferior court within the bounds of its jurisdiction or to prevent it
from committing such a grave abuse of discretion amounting to excess of jurisdiction." And, abuse of discretion
must be so grave and patent to justify the issuance of the writ. Whereas, errors of judgment may involve a court's
appreciation of the facts and conclusions of law drawn from such facts. If a court acts within its jurisdiction, then
"any alleged errors committed in the exercise of its discretion will amount to nothing more than mere errors of
judgment." (d) In Madrigal Transport, Inc. vs. Lapanday Holdings Corporation made the following
disquisitions: The supervisory jurisdiction of a court over the issuance of a writ of certiorari cannot be
exercised for the purpose of reviewing the intrinsic correctness of a judgment of the lower court - on the basis either
of the law or the facts of the case, or of the wisdom or legal soundness of the decision. Even if the findings of the
court are incorrect, as long as it has jurisdiction over the case, such correction is normally beyond the province of
certiorari. Where the error is not one of jurisdiction, but of an error of law or fact - a mistake of judgment - appeal is
the remedy. On the other hand, errors of jurisdiction are those where the act or acts complained of were done
without jurisdiction, in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction. (e) The mere allegation of grave abuse of discretion in a petition for certiorari does not mean that
the petition will automatically be given due course, the general invocation of grave abuse of discretion is
insufficient. Parties must satisfy other exacting requirements under the Rules of Court. A petition for certiorari
brought under Rule 65, Section 1 of the Rules of Court is specifically required to have "no appeal, or any plain,
speedy, and adequate remedy in the ordinary course of law." Ordinarily, if an appeal can be taken from a judgment
or order, then the remedy of certiorari will not lie. The mere possibility of delay arising from an appeal does not
warrant direct recourse to a petition for certiorari.

Q. Can the Supreme Court take cognizance of a Certiorari, Prohibition and Mandamus petition
despite the fact that the assailed laws and executive issuances did not involve the exercise of judicial or quasi-
judicial function? Explain.

A. Yes. The political question doctrine is no longer the insurmountable obstacle to the exercise of
judicial power or the impenetrable shield that protects executive and legislative actions from judicial inquiry or
review under the expanded definition of judicial power of the 1987 Philippine Constitution. Section 1, Article VIII
thereof authorizes courts of justice not only to settle actual case controversies involving rights, which are legally
demandable and enforceable, but also to determine whether there has been grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. [Council of
Teachers and Staff of Colleges and Universities of the Philippines (CoTeSCUP), et al. vs. Secretary of
Education, et al., G.R. No. 216930, 29 October 2018] (En Banc) [Caguioa, J.]

Q. What are the requisites that must first be complied with before the Supreme Court may
exercise its power of judicial review?

A. The requisites are as follows: (1) There is an actual case or controversy calling for the exercise of
judicial power; (2) The petitioner has standing to question the validity of the subject act or issuance, i.e., he has a
personal and substantial interest in the case that he has sustained, or will sustain, direct injury as a result of the
enforcement of the act or issuance; (3) The question of constitutionality is raised at the earliest opportunity; and (4)
The constitutional question is the very lismota of the case. (See also Kilusang Mayo Uno, et al. vs. Aquino III,
et al., G.R. No. 210500, 2 April 2019) (En Banc)[Leonen, J]

SUPERVISORY WRITS

Q. How are the writs of Certiorari and Prohibition characterized?

A. These writs - now recognized and regulated as remedies under Rule 65 of our Rules of Court-have
been characterized a supervisory writs used by superior courts to keep lower courts within the confines of their
granted jurisdictions, thereby ensuring orderliness in lower courts' rulings. The Supreme Court confirmed this
characterization in Madrigal Transport vs. Lapanday Holdings Corporation, when it was held that a writ is founded
on the supervisory jurisdiction of appellate courts over inferior courts, and is issued to keep the latter within the
bounds of their jurisdiction. Thus, the writ corrects only errors of jurisdiction of judicial and quasi-judicial bodies,
and cannot be used to correct errors of law or fact. For these mistakes of judgment, the appropriate remedy is an
appeal. (Association of Medical Clinics for Overseas Workers, Inc. vs. GCC Approved Medical Centers
Association, Inc. and Christian Cangco, 812 SCRA 452, 6 December 2016)(En Banc)[Brion, J.].
WHEN PETITION FOR CERTIORARI, PROHIBITION IS PROPER AND WHEN MANDAMUS
CANNOT BE AVAILED OF

PROBLEM:

Hon. Antonio Villamar is the MTC Judge in the Municipality of Palitok, Province of Iliyan. He has been in the
judiciary for four (4) years. Upon learning that there is a vacancy for an RTC Judge in his province, he applied for
the position with the JBC. However, his application was denied due course in view of the policy that judges of the
first level courts, like him, must first comply with the five (5) years service requirement before the application can
be accepted. Judge Villamar disagrees with the policy of the JBC. According to him, it is unconstitutional. Hence, he
filed with the Supreme Court a petition for certiorari, prohibition and mandamus and declaratory relief against the
JBC, questioning its five-year policy.

Are the remedies availed of by Judge Villamar correct? Explain.

SUGGESTED ANSWER:

THE REMEDIES OF CERTIORARI AND PROHIBITION ARE TENABLE.

The present Rules of Court uses two special civil actions for determining and correcting grave abuse of
discretion amounting to lack or excess of jurisdiction. These are the special civil actions for certiorari and
prohibition, and both are governed by Rule 65. Jurisprudence provides that the power of supervision is the power of
oversight, or the authority to see that subordinate officers perform their duties. It ensures that the laws and the rules
governing the conduct of a government entity are observed and complied with. Supervising officials see to it that
rules are followed, but they themselves do not lay down such rules, nor do they have the discretion to modify or
replace them. If the rules are not observed, they may order the work done or redone, but only to conform to such
rules. They may not prescribe their own manner of execution of the act. They have no discretion on this matter
except to see to it that the rules are followed. Following this definition, the supervisory authority of the Court over
the JBC is to see to it that the JBC complies with its own rules and procedures. Thus, when the policies of the JBC
are being attacked, then the Court, through its supervisory authority over the JBC, has the duty to inquire about the
matter and ensure that the JBC complies with its own rules.

THE REMEDY OF MANDAMUS CANNOT BE AVAILED OF BY THE PETITIONER IN

ASSAILING JBC'S POLICY

Mandamus, as an extraordinary writ, lies only to compel an officer to perform a ministerial duty, not a
discretionary one. Clearly, the use of discretion and the performance of a ministerial act are mutually exclusive. The
writ of mandamus does not issue to control or review the exercise of discretion or to compel a course of conduct,
which, it quickly seems to us, was what the petitioner would have the JBC do in his favor. The function of the JBC
to select and recommend nominees for vacant judicial positions is discretionary, not ministerial. Moreso, the
petitioner cannot claim any legal right to be included in the list of nominees for judicial vacancies. Possession of the
constitutional and statutory qualifications for appointment to the judiciary may not be used to legally demand that
one's name be included in the list of candidates for a judicial vacancy. One's inclusion in the list of the candidates
depends on the discretion of the JBC. Clearly, to be included as an applicant to second-level judge is not properly
compellable by mandamus inasmuch as it involves the exercise of sound discretion by the JBC.

THE PETITION FOR DECLARATORY RELIEF IS IMPROPER.

An action for declaratory relief should be filed by a person interested under a deed, a will, a contract or other
written instrument, and whose rights are affected by a statute, an executive order, a regulation or an ordinance. In
this case, the petition for declaratory relief did not involve an unsound policy. Rather, the petition specifically sought
a judicial declaration that the petitioner has the right to be included in the list of applicants although he failed to
meet JBC's five-year requirement policy. Furthermore, the Supreme Court does not have original jurisdiction over a
petition for declaratory relief even if only questions of law are involved. The special civil action of declaratory relief
falls under the exclusive jurisdiction of the appropriate RTC pursuant to Section 19 of Batas Pambansa Blg. 129, as
amended by R.A.No. 7691. (Villanueva vs. JBC, 755 SCRA 182, 7 April 2015)(En Banc)[Reyes, J.].

CERTIORARI AS A REMEDY IN SUMMARY PROCEEDINGS

PROBLEM:

A proceeding for presumptive declaration of death under the Family Code is considered summary in nature.
Hence, the decision is immediately final and executory. Can Certiorari under Rule 65 be availed of to challenge the
final order of the trial court? Explain.
 SUGGESTED ANSWER:

Yes. A losing party in a summary proceeding is not entirely left without a remedy. While jurisprudence
tells us that no appeal can be made from the trial court's judgment, an aggrieved party may, nevertheless, file
a petition for certiorari under Rule 65 of the Rules of Court to question any abuse of discretion amounting to
lack or excess of jurisdiction that transpired. By express provision of law, the judgment of the court in a summary
proceeding shall be immediately final and executory. As a matter of course, it follows that no appeal can be had of
the trial court's judgment in a summary proceeding for the declaration of presumptive death of an absent spouse
under Article 41 of the Family Code. It goes without saying, however, that an aggrieved party may file a petition for
certiorari to question abuse of discretion amounting to lack of jurisdiction.Such petition should be filed in the Court
of Appeals in accordance with the Doctrine of Hierarchy of Courts. (Republic vs. Cantor, 712 SCRA 1, 10
December 2013)(En Banc)[Brion, J.].

SPECIAL CIVIL ACTION OF CERTIORARI IN CRIMINAL CASES

Q. When can there be grave abuse of discretion in the context of filing criminal charges?
Explain.

A. Grave abuse of discretion exists in cases where the determination of probable cause is exercised in
an arbitrary and despotic manner by reason of passion and personal hostility. The abuse of discretion to be qualified
as “grave” must be so patent or gross as to constitute an evasion of a positive duty or a virtual refusal to perform the
duty or to act at all in contemplation of law. In this regard, case law states that not every error in the proceedings, or
every erroneous conclusion of law or fact, constitutes grave abuse of discretion.

Q. If the accused filed a Demurrer to Evidence and the same was granted by the
Sandiganbayan, what is the proper remedy of the state? Explain.

A. A review of a dismissal order of the Sandiganbayan granting an accused's demurrer to evidence

may be done via the special civil action of certiorari under Rule 65, based on the narrow ground of grave abuse of
discretion amounting to lack or excess of jurisdiction. Mere allegations of grave abuse of discretion, however, are
not enough to establish this ground; so also, mere abuse of discretion is not sufficient. On the petitioner lies the
burden of demonstrating, plainly and distinctly, all facts essential to establish its right to a writ of certiorari. [People
vs. Sandiganbayan (Fourth Division), 665 SCRA 89, 7 February 2012](En Banc)[Brion, J.].

MATERIAL DATA RULE

Q. What are the requisites to be complied by the petitioner in a Petition for Review on
Certiorari under the last paragraph of Section 1, Rule 65? Explain.

A. Rule 65, Section 1 in relation to Rule 46, Section 3 requires that a petition for certiorari indicate
three (3) material dates, namely: (1) when the notice of the judgment or final order was received; (2) when the
motion for new trial or reconsideration, if any, was filed; and (3) when notice of the denial of the motion for new
trial or reconsideration was received. This is for the court or tribunal to easily assess whether the petition was timely
filed. Failure to indicate these material dates is sufficient ground for the dismissal of the petition.

Q. When can a petition tagged as a Petition for Mandamus also be treated as a Petition for
Certiorari?

A. It will be treated also as petition for certiorari if it alleges that respondent committed grave abuse
of discretion amounting to lack or excess of jurisdiction. (Mandanas, et al. vs. Ochoa, et al., G.R. No. 199802, 3
July 2018)(En Banc)[Bersamin, J.]

Q. Is certiorari the proper remedy to question the constitutionality of an IRR jointly issued by
the DOJ and the DILG to implement a law passed by Congress? Explain.
 A. Yes. Petitions for certiorari and prohibition are appropriate remedies to raise constitutional issues
and to review and/or prohibit or nullify the acts of legislative and executive officials. (Inmates of the New Bilibid
Prison, Muntinlupa City vs. De Lima, G.R. No. 212719, 25 June 2019)(En Banc)[Peralta, J.]

PROHIBITION (SECTION 2)

Q. What is the proper function of a Petition for Prohibition under Section 2, Rule 65 of the 1997
Rules of Civil Procedure?

A. As a rule, the proper function of a writ of prohibition is to prevent the performance of an act
which is about to be done. It is not intended to provide a remedy for acts already accomplished. It must be
stressed, though, that resort to prohibition and mandamus on the basis of alleged constitutional violations is not
without limitations. After all, the Supreme Court does not have unrestrained authority to rule on just about any and
every claim of constitutional violation. [Dynamic Builder & Construction Co. (Phil.) vs. Presbitero, Jr., 755
SCRA 90, 7 April 2015] (En Banc)[Leonen, J.] [See also Agcaoili, Jr., et al. and Marcos vs. Farinas, et al.,
G.R. No. 232395 (3 July 2018)(En Banc)[Tijam, J.]; Zabal, et al. vs. Duterte, et al., G.R. No. 238467 (12
February 2019)(En Banc)[Del Castillo, J.]; Cawad, et al. vs. Abad, et al., G.R. No. 207145, 28 July 2015)(En
Banc)[Peralta, J.]

Q. Is a petition for Prohibition under Section 2, Rule 65 of the 1997 Rules of Civil Procedure the
proper remedy to prohibit the legislative branch of the government from proceeding with its legislative
inquiry in aid of legislation?

A. Yes. Under the Supreme Court's expanded jurisdiction, the remedy of prohibition may be issued to
correct errors of jurisdiction by any branch or instrumentality of the Government. (Agcaoili, Jr., et al. vs. Fariñas,
et al., G.R. No. 232395, 3 July 2018)(En Banc)[Tijam, J.].

MANDAMUS (SEC. 3)

Q. What is incumbent upon the petitioner to show for the issuance of a writ of mandamus?
Explain.

A. For the writ of mandamus to issue, the petitioner must show that the act sought to be
performed or compelled is ministerial on the part of the respondent. An act is ministerial when it does not
require the exercise of judgment and the act is performed pursuant to a legal mandate. The burden of proof is on the
mandamus petitioner to show that he is entitled to the performance of a legal right, and that the respondent has a
corresponding duty to perform the act. The writ of mandamus may not issue to compel an official to do anything that
is not his duty to do, or that is his duty not to do, or to obtain for the petitioner anything to which he is not entitled
by law.

It is worth reminding that the actual nature of every action is determined by the allegations in the body of the
pleading or the complaint itself, not by the nomenclature used to designate the same. Moreover, neither should the
prayer for relief be controlling; hence, the courts may still grant the proper relief as the facts alleged in the pleadings
and the evidence introduced may warrant even without a prayer for specific remedy. [In the Matter of: Save the
Supreme Court Judicial Independence and Fiscal Autonomy Movement vs. Abolition of Judiciary
Development Fund (JDF) and Reduction of Fiscal Autonomy, 746 SCRA 352, 21 January 2015](En Banc)
[Leonen, J].

Q. What is a Writ of Mandamus? Explain.

A. The peremptory Writ of Mandamus is an extraordinary remedy that is issued only in extreme
necessity, and the ordinary course of procedure is powerless to afford an adequate and speedy relief to one who has a
clear legal right to the performance of the act to be compelled. A writ of mandamus is a command from a court of
law of competent jurisdiction, in the name of the state or sovereign, directed to an inferior court, tribunal, or board,
or to some corporation or person, requiring the performance of a particular duty therein specified, which duty
results from the official station of the party to whom the writ is directed, or from operation of law.

Q. What are the requisites for mandamus to issue?

A. For mandamus to lie, the following requisites must be present: (a) the plaintiff has a clear legal
right to the act demanded; (b) it must be the duty of the defendant to perform the act, because it is mandated by law;
(c) the defendant unlawfully neglects the performance of the duty enjoined by law; (d) the act to be performed is
ministerial, not discretionary; and (e) there is no appeal or any other plain, speedy and adequate remedy in the
ordinary course of law.

Q. What is the concept of ministerial functions? Explain.

A. Ministerial functions are those which an officer or tribunal performs in the context of a given set of
facts, in a prescribed manner and without regard to the exercise of his own judgment upon the propriety or
impropriety of the act done.

Q. Can mandamus be utilized to compel a discretionary duty?

A. No. Mandamus may issue only to compel the performance of a ministerial duty. It cannot be
issued to compel the performance of a discretionary act. (Zomer Development Company, Inc. vs. Special
Twentieth Division of the CA, Cebu City, G.R. No. 194461, 7 January 2020)(En Banc) [Leonen, J.].

DISTINCTIONS BETWEEN DISCRETIONARY AND MINISTERIAL ACT

Q. Distinguish discretionary act from ministerial act.

A. A purely ministerial act or duty is one which an officer or tribunal performs in a given state of
facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to or the exercise of
his own judgment upon the propriety or impropriety of the act done. Whereas, if the law imposes a duty upon a
public officer and gives him the right to decide how or when the duty shall be performed, such duty is
discretionary and not ministerial. The use of discretion and the performance of a ministerial act are mutually
exclusive.

Q. Is a petition for Mandamus proper in a contested seat in the House of Representatives after
the finality of the decision of the COMELEC? Explain.

A. Yes. A petition for mandamus will prosper if it is shown that the subject thereof is a ministerial act
or duty, and not purely discretionary on the part of the board, officer or person, and that the petitioner has a well-
defined, clear and certain right to warrant the grant thereof. (Velasco vs. Belmonte, Jr., et al., G.R. No. 211140, 12
January 2016)(En Banc)[Leonardo-De Castro, J.].

Q. Can mandamus be availed to challenge the manner how the National Government computed
the just share in the National taxes of the LGUs? Explain.

A. No. Considering that its determination of what constitutes the just share of the LGUs in the
national taxes under the 1987 Constitution is an entirely discretionary power, Congress cannot be compelled
by writ of mandamus to act either way. The discretion of Congress thereon, being exclusive, is not subject to
external direction; otherwise, the delicate balance underlying our system of government may be unduly disturbed.
[Mandanas, et al. vs. Ochoa, Jr., et al. (G.R. No. 199802) and Garcia, Jr., vs. Ochoa, Jr., et al. (G.R. No.
208488), 3 July 2018](En Banc)[Bersamin, J.].

Q. Can the Secretary of the DBM be compelled by mandamus, to pay the gratuity differentials
of the retired justices of the CA? Explain.

A. Yes. The Supreme Court finds that Section 3-A of R.A. No. 910, as amended, buttressed by the
Resolution in A.M. No. 91-8-225-CA, prescribes a duty under the law upon the DBM to pay to the petitioners the
increases in salary granted by law during the 5 year period after date of retirement. Mandamus will lie to compel
respondent DBM to fulfill its duty under the law. [Association of Retired CA Justices, Inc. (ARCAJI) vs. Abad,
Jr., G.R. No. 210204, 10 July 2018] (En Banc) [Velasco, Jr., J.].

Q. Can the Treasurer, Secretary of Finance, Secretary of DENR and Governor of the BSP of the
RP, be compelled via Petition for Mandamus to deliver to the petitioner the proceeds of the Informer’s
reward under Section 1 of R.A. No. 2338? Explain.
 A. No. The grant of an informer's reward for the discovery, conviction, and punishment of tax
offenses is a discretionary quasi-judicial matter that cannot be the subject of a writ of mandamus. It is not a
legally mandated ministerial duty. This reward cannot be given to a person who only makes sweeping averments
about undisclosed wealth, rather than specific tax offenses, and who fails to show that the information which he or
she supplied was the undiscovered pivotal cause for the revelation of a tax offense, the conviction and/or
punishment of the persons liable, and an actual recovery made by the State. Indiscriminate, expendable information
negates a clear legal right and further impugns the propriety of issuing a writ of mandamus. (Bagumbayan-VNP
Movement, Inc., et al. vs. COMELEC, G.R. No. 222731 (8 March 2016) (En Banc) [Leonen, J.]; Knights of
Rizal vs. DMCI Homes, Inc., 824 SCRA 327 (25 April 2017) (En Banc) [Carpio, J.].]

Q. Appointment in the government service needs the attestation of the CSC being the central
personnel agency of the government. Is the attestation of appointments by the CSC a ministerial function,
hence compellable by mandamus? Explain.

A. Yes.The CSC’s attestation is a ministerial duty once it finds the appointee eligible for the position.
The Commission is limited only to the non-discretionary authority of determining whether or not the person
appointed meets all the required conditions laid down by the law. If the appointee possesses the required civil
service eligibility, the Commission has no choice but to attest to the appointment. (Luego vs. CSC, G.R. No. L-
69137, 5 August 1986)(En Banc)[Cruz, J.] Mandamus, therefore, is the proper remedy to compel the CSC to attest
to a valid appointment as the Supreme Court ruled in Villegas vs. Subido. (See also Kalipunan ng Damay Ang
Mahibirap, Inc., et al. vs. Robredo, et al., G.R. No. 200903, 22 July 2014)(En Banc)[Brion, J.].

PROBLEM:

Roderick D. Sumatra also known as Ha Datu Tawahig, filed a petition for Mandamus before the Supreme
Court, praying that respondent Judge Estela Alma Singco and her co-respondents, all public prosecutors from Cebu
City, be compelled to honor a January 3, 2007 Resolution issued by a body known as the "Dadantulan Tribal Court,"
and be required to put an end to Sumatra's criminal prosecution. The Dadantulan Tribal Court absolved Sumatra, a
tribal leader of the Higaonon Tribe, of liability for charges of rape and discharged him from criminal, civil, and
administrative liability.

Sumatra asserts that, in light of the Indigenous Peoples' Rights Act, it was respondents' duty to desist from
proceeding with the case against him.

Is Sumatra correct? Explain.

SUGGESTED ANSWER:

No. The Philippine legal system's framework for the protection of indigenous peoples was never intended and
will not operate to deprive courts of jurisdiction over criminal offenses. Individuals belonging to indigenous cultural
communities who are charged with criminal offenses cannot invoke R.A. No. 8371, or the Indigenous Peoples'
Rights Act of 1997, to evade prosecution and liability under courts of law. The Indigenous Peoples' Rights Act does
not compel courts of law to desist from taking cognizance of criminal cases involving indigenous peoples. It
expresses no correlative rights and duties in support of petitioner's cause. Thus, a writ of mandamus cannot be
issued.
SEC. 4.–WHEN AND WHERE TO FILE THE PETITION

Q. What court has jurisdiction over a Certiorari petition against quasi-judicial agencies of the
government? Explain

A. Unless otherwise provided by the law or the Rules of Court, petitions for certiorari, prohibition,
and mandamus involving acts or omissions of a quasi-judicial agency are cognizable only by the appellate court
pursuant to Section 4, Rule 65 of the Rules of Court. (Banco Filipino Savings and Mortgage Bank vs. BSP (G.R.
No. 200642, April 26, 2021)(Third Division) [Hernando, J.]

Q. What are the instances when the sixty (60)-day period to file a petition for certiorari may be
given an extension of fifteen (15) days either from receipt of the adverse judgment, order, or resolution or
from the denial of the Motion for Reconsideration, if one is filed?

A. Under exceptional cases, the High Court has held that the 60-day period may be extended subject
to the court’s sound discretion. The Supreme Court laid down the following recognized exceptions to the strict
observance of the 60-day reglementary period: (1) When the most persuasive and weighty reasons obtain; (2)
When it is necessary to do so in order to relieve a litigant from an injustice not commensurate with his failure
to comply with the prescribed procedure; (3) In case of the good faith of the defaulting party by immediately
paying within a reasonable time of the default; (4) When special or compelling circumstances exist; (5) When
the merits of the case so demand; (6) When the cause of the delay was not entirely attributable to the fault or
negligence of the party favored by the suspension of the rules; (7) When there is no showing that the review
sought is merely frivolous and dilatory; (8) When the other party will not be unjustly prejudiced thereby; (9)
In case of fraud, accident, mistake or excusable negligence without the appellant's fault; (10) When the
peculiar legal and equitable circumstances attendant to each case so require; (11) When substantial justice
and fair play are thereby served; (12) When the importance of the issues involved call for the relaxation; (13)
In the exercise of sound discretion by the court guided by all the attendant circumstances; and (14) When the
exceptional nature of the case and strong public interest so demand. [See also Home Development Mutual
Fund (HDMF) Pag-Ibig Fund vs. Christina Sagun, et al., G.R. No. 205698 (31 July 2018)(En Banc)[Bersamin,
J.].

Q. When will the sixty (60)-day period for filing a special civil action of certiorari under Section
4, Rule 65 of the amended 1997 Rules of Civil Procedure start to run?

A. As the rule indicates, the 60-day period starts to run from the date petitioner receives the
assailed judgment, final order or resolution, or the denial of the motion for reconsideration or new trial timely
filed, whether such motion is required or not. To establish the timeliness of the petition for certiorari, the date of
receipt of the assailed judgment, final order or resolution or the denial of the motion for reconsideration or new trial
must be stated in the petition; otherwise, the petition for certiorari must be dismissed. The importance of the dates
cannot be understated, for such dates determine the timeliness of the filing of the petition for certiorari. (Vinuya vs.
Romulo, 732 SCRA 595, 12 August 2014)(En Banc)[Bersamin, J.](Resolution of the Motion for
Reconsideration from the original decision dated 28 April 2010).

SEC. 7.–EXPEDITIONS PROCEEDINGS; INJUNCTIVE RELIEF

Q. Is the Sandiganbayan precluded from proceeding with a case if a Petition for Certiorari was
filed with the Supreme Court? Explain.

A. No. The pendency of a petition for certiorari before the Supreme Court will not prevent the
Sandiganbayan from proceeding to trial absent the issuance of a temporary restraining order or writ of
preliminary injunction. This is anchored on the provision of Section 7, Rule 65 of the 1997 Rules of Civil
Procedure. (Cagang vs. Sandiganbayan, Fifth Division, G.R. Nos. 206438, 206458, and 210141-42, 31 July 2018)
(En Banc) [Leonen, J.]

SEC. 8.–PROCEEDINGS AFTER COMMENT IS FILED

Q. Is the non-filing of comment and memorandum means that the ruling automatically favors
the petitioner and grants the petition?

A. No. From the provision of Section 8, Rule 65, it is clear that it is not the filing or non-filing of the
comment and/or memorandum which determines whether the petition should be granted or dismissed, but whether
the allegations of the petition are meritorious as to warrant the relief sought. Indeed, when a respondent fails to file
his comment within the given period, the court may decide the case on the basis of the records before it, specifically
the petition and its attachments.

SEC. 9.–SERVICE AND ENFORCEMENT OF ORDER OR JUDGMENT

Q. What is the rule in the execution of special judgment such as mandamus? Explain.

A. The rule is that, the service and execution of a special judgment, such as a favorable judgment in
mandamus should be deemed to be limited to directing compliance with the judgment, and in case of
disobedience, to have the disobedient person required by law to obey such judgment punished with contempt.

RULE 66 - QUO WARRANTO

 Q. What is a Petition for Quo Warranto? Explain.

A. A petition for quo warranto is a proceeding to determine the right of a person to use or exercise
a franchise or an office and to oust the holder from the enjoyment, thereof, if the claim is not well-founded, or if
his right to enjoy the privilege has been forfeited. (De Castro vs. Carlos, 696 SCRA 400, 16 April 2013)(En
Banc)[Sereno, CJ.]

DISTINCTION BETWEEN QUO WARRANTO IN ELECTIVE POSITION AND QUO WARRANTO IN

APPOINTIVE POSITION

Q. Distinguish quo warranto under Rule 66 of the Rules of Court and quo warranto under the
Omnibus Election Code.

A. Distinction should be drawn between quo warranto referring to an office filled by election and quo
warranto involving an office held by appointment:

(1) In quo warranto referring to an office filled by election, what is to be determined is the eligibility of the
candidate elect, while in quo warranto involving an office held by appointment, what is determined is the legality of
the appointment. (2) In quo warranto proceedings referring to offices filled by election, when the person elected
is ineligible, the court cannot declare that the candidate occupying the second place had been elected, even if he
were eligible, since the law only authorizes a declaration of election in favor of the person who has obtained a
plurality of votes, and has presented his certificate of candidacy. In quo warranto proceedings referring to offices
filled by appointment, the court determines who had been legally appointed, can, and ought to declare who is
entitled to occupy the office.

Q. What are the distinctions between quo warranto and election protest?

A. The distinctions are as follows: An election protest proposes to oust the winning candidate from
office. It is strictly a contest between the defeated and the winning candidates, based on the grounds of electoral
frauds and irregularities, to determine who between them has actually obtained the majority of the legal votes cast
and is entitled to hold the office. It can only be filed by a candidate who has duly filed a certificate of candidacy and
has been voted for in the preceding elections. Whereas, a special civil action for quo warranto refers to questions
of disloyalty to the State, or of ineligibility of the winning candidate. The objective of the action is to unseat the
ineligible person from the office, but not to install the petitioner in his place. Any voter may initiate the action,
which is, strictly speaking, not a contest where the parties strive for supremacy because the petitioner will not be
seated even if the respondent may be unseated.

Q. Is impeachment the sole remedy in removing impeachable appointive officials in the

government?

A. No. In the Resolution of the Motion for Reconsideration in Republic vs. Sereno (G.R. No.
237428, 19 June 2018), Mr. Justice Tijam, as ponente, pointed out that: Underlying all constitutional provisions on
government service is the principle that public office is a public trust. The people, therefore, have the right to have
only qualified individuals appointed to public office. To construe Section 2, Article XI of the Constitution as
proscribing a quo warranto petition is to deprive the State of a remedy to correct a public wrong arising from
defective or void appointments. Equity, however, will not suffer a wrong to be without remedy. It stands to reason,
therefore, that quo warranto should be available to question the validity of appointments especially of impeachable
officers since they occupy the upper echelons of government and are capable of wielding vast power and influence
on matters of law and policy.

Q. In election contest for the position of Barangay Chairman, can the proclaimed winner apply
for execution pending appeal? Explain.

A. Yes. Rule 14, Section 11 of A.M. No. 07-4-15-SC provides the window of time when the MTCC
retains residual powers to order execution pending appeal: Sec. 11. Execution pending appeal. – On motion of the
prevailing party with notice to the adverse party, the court, while still in possession of the original records, may, at
its discretion, order the execution of the decision in an election contest before the expiration of the period to appeal,
subject to the following rules: xxx. Under this Rule, the MTCC retains residual jurisdiction while two conditions
concur: (1) records of the case have not yet been transmitted to the Commission; and (2) the period to appeal has not
yet expired. (Tolentino vs. COMELEC, G.R. No. 218536, 26 January 2016)(En Banc)[Brion, J.].
SEC. 9.–JUDGMENT WHERE USURPATION FOUND

Q. What is the consequence of a de facto officer subjected to a quo warrano petition? Explain.

A. The effect of finding that person appointed to an office is ineligible therefor is that his presumably
valid appointment will give him color of title that confers on him the status of de facto officer. In Republic vs.
Sereno (G.R. No. 237428, 11 May 2018)(En Banc)[Tijam, J.], upon finding that respondent is in fact ineligible to
hold the position of Chief Justice and is therefore unlawfully holding and exercising such public office, the
consequent judgment under Section 9, Rule 66 of the amended 1997 Rules of Civil Procedure is the ouster and
exclusion of respondent from holding and exercising the rights, functions and duties of the Office of the Chief
Justice.

Q. What is the possible outcome of a petition for quo warranto? Explain.

A. If it is found that the respondent or defendant is usurping or intruding into the office, or unlawfully
holding the same, the court may order: (1) The ouster and exclusion of the defendant from office; (2) The recovery
of costs by plaintiff or relator; (3) The determination of the respective rights in and to the office, position, right,
privilege or franchise of all the parties to the action as justice requires.

SEC. 11.–LIMITATIONS

Q. Does the prescriptive period imposed by Section 11, Rule 66 runs against the state? Explain.

A. No. The question of prescription was raised in the landmark case of Republic vs. Sereno, supra.
The Supreme Court held that the petition commenced by the Solicitor General was not dismissible on the
ground of prescription. Accordingly, prescription does not lie against the state.

Q. When is the one (1) year prescriptive period under Section 11, Rule 66 on quo warranto
applicable?

A. In Republic vs. Sereno, supra, Mr. Justice Tijam clarified and said: To be clear, this Court is not
abolishing the limitation set by the rules in instituting a petition for quo warranto. The one-year presciptive period
under Section 11, Rule 66 of the Rules of Court still stands. However, for reasons explained in the main Decision,
this Court made distinctions as to when such prescriptive period applies, to wit:

(1) When filed by the State at its own instance, through the Solicitor General, prescription shall not
apply. This, of course, does not equate to a blanket authority given to the Solicitor General to indiscriminately file
baseless quo warranto actions in disregard of the constitutionally-protected rights of individuals;

(2) When filed by the Solicitor General or public prosecutor at the request and upon relation of another
person, with leave of court, prescription shall apply except when established jurisprudential exceptions are present;
and

(3) When filed by an individual in his or her own name, prescription shall apply, except when
established jurisprudential exceptions are present. In fine, Our pronouncement in the assailed Decision as to this
matter explained that certain circumstances preclude the absolute and strict application of the prescriptive period
provided under the rules in filing a petition for quo warranto. Thus, an action for quo warranto is imprescriptible if
brought by the State at its own instance.

Q. Are quo warranto and impeachment proceedings the same? Explain.

 A. No. Quo warranto and impeachment are two distinct proceedings, although both may result in the
ouster of a public officer. Strictly speaking, quo warranto grants the relief of "ouster", while impeachment affords
"removal." (Republic vs. Sereno, G.R. No. 237428, 19 June 2018)(En Banc)[Tijam, J.].

Q. Distinguish quo warranto and impeachment proceedings?

A. The two (2) may be distinguished as follows: A quo warranto proceeding is the proper legal
remedy to determine a person's right or title to a public office and to oust the holder from its enjoyment. It is the
proper action to inquire into a public officer's eligibility or the validity of his appointment. Under Rule 66 of the
Rules of Court, a quo warranto proceeding involves a judicial determination of the right to the use or exercise of the
office. Impeachment, on the other hand, is a political process undertaken by the legislature to determine whether
the public officer committed any of the impeachable offenses, namely, culpable violation of the Constitution, treason,
bribery, graft and corruption, other high crimes, or betrayal of public trust. It does not ascertain the officer's
eligibility for appointment or election, or challenge the legality of his assumption of office. Conviction for any of the
impeachable offenses shall result in the removal of the impeachable official from office.

Q. What is required if a private person is the petitioner in a quo warranto petition? Explain

A. The private person suing must show a clear right to the contested office. In fact, not even a
mere preferential right to be appointed thereto can lend a modicum of legal ground to proceed with the action. Thus,
in the case of Aguinaldo, et al., vs. Aquino et al., G.R. No. 224302, 29 November 2016) (En Banc) [Leonardo-
th
De Castro, J.], the High Court ruled: Petitioners Aguinaldo, et al., as nominees for the 16 Saridiganbayan
Associate Justice, did not have a clear right to said position, and therefore not proper parties to a quo warranto
proceeding. Being included in the list of nominees had given them only the possibility, but not the certainty, of
being appointed to the position, given the discretionary power of the President in making judicial appointments. It is
st
for this same reason that respondents Jorge-Wagan, et al., nominees for the 21 Sandiganbayan Associate Justice,
may not be impleaded as respondents or unwilling plaintiffs in a quo warranto proceeding. Neither can the IBP
initiate a quo warranto proceeding to oust respondents Musngi and Econg from their current posts as Sandiganbayan
Associate Justices for the IBP does not qualify under Rule 66, Section 5 of the Revised Rules of Court as an
individual claiming to be entitled to the positions in question.

RUE 67 - EXPROPRIATION; SEE ALSO GUIDELINES FOR EXPROPRIATION PROCEEDINGS OF

NATIONAL GOVERNMENT INFRASTRUCTURE PROJECTS, (SEC. 4, R.A. NO. 8974)

Q. What is just compensation in an expropriation proceeding? Explain

A. Just compensation refers to the just and complete equivalent of the loss which the owner of the
thing expropriated has to suffer by reason of the expropriation and is ordinarily determined by referring to the value
of the land and its character at the time it was taken by the expropriating authority. (Philippine Veterans Bank vs.
Bases Conversion and Development Authority, G.R. No. 217492, 4 October 2021) (Second Division)
[Hernando, J.]

Q. In expropriation proceedings what is the reckoning period for the proper determination of
just compensation? Explain

A. The value as of the time of taking should be the price to be paid the property owner. Just
compensation is the full and fair equivalent of the property taken from its owner by the expropriator which simply
means the property's fair market value at the time of the filing of the complaint, or "that sum of money which a
person desirous but not compelled to buy, and an owner willing but not compelled to sell, would agree on as a price
to be given and received therefor. (Republic vs. Castillo, et al., G.R. No. 190453 February 26, 2020)(Second
Division)[ Hernando, J.]

Q. Who has the authority to initiate expropriation proceedings?

A. The Solicitor General has the authority to file the complaint for expropriation, under Section
1(a) of P.D. No. 478, otherwise known as "Defining the Powers and Functions of the Office of the Solicitor
General" provides that the Solicitor General has the power to represent the government and its officers
before the Supreme Court and the CA, and all other courts or tribunals in all civil actions and special
proceedings in which the government or any officer thereof in his official capacity is a party. Section 1(k) of
P.D. No. 478 likewise provides that the Solicitor General can and represent the RP and/or the people before any
court, tribunal, body or commission in any matter, action or proceedings which, in his opinion, affects the welfare of
the people as the ends of justice may require. (Republic vs. Castillo, et al., G.R. No. 190453 February 26, 2020)
(Second Division)[Hernando, J.]

TWO (2) STAGES IN EVERY ACTION FOR EXPROPRIATION

Q. What are the two stages of expropriation?

A. The expropriation of property consists of two stages:

i) The first stage is concerned with "the determination of the authority of the plaintiff to exercise the power of
eminent domain and the propriety of its exercise in the context of the facts involved in the suit." ii) The second
stage is concerned with "the determination by the court of 'the just compensation for the property sought to be
taken'. This is done by the court with the assistance of not more than three (3) commissioners." (PNOC Alternative
Fuels Corp. vs. National Grid Corp., G.R. No. 224936, 4 September 2019)(Second Division)[Cagiuoa, J.];
(National Transmission Corporation vs. Orville Development Corporation, G.R. No. 223366, 1 August 2017)
(En Banc)[Mendoza, J.]

Q. Who may be considered defendants in an expropriation proceeding? Explain.

A. The defendants in an expropriation case are not limited to the owners of the property
condemned. They include all other persons owning, occupying or claiming to own the property. When property
is taken by eminent domain, the owner xxx is not necessarily the only person who is entitled to compensation. In the
American jurisdiction, the term ‘owner’ when employed in statutes relating to eminent domain to designate the
persons who are to be made parties to the proceeding, refer, as is the rule in respect of those entitled to
compensation, to all those who have lawful interest in the property to be condemned, including a mortgagee, a lessee
and a vendee in possession under an executory contract. Every person having an estate or interest at law or in equity
in the land taken is entitled to share in the award. If a person claiming an interest in the land sought to be condemned
is not made a party, he is given the right to intervene and lay claim to the compensation.

Q. Is the owner of the property necessarily considered as an indispensable party in an

expropriation proceedings? Explain.

A. No. Under Section 1 Rule 67, of the Rules of Court, expropriation proceedings may be
instituted even when "title to the property sought to be condemned appears to be in the Republic of the
Philippines, although occupied by private individuals." The same rule provides that a complaint for
expropriation shall name as defendants "all persons owning or claiming to own, or occupying, any part thereof or
interest" in the property sought to be condemned.Clearly, when the property already appears to belong to the
Republic, there is no sense in the Republic instituting expropriation proceedings against itself. It can still, however,
file a complaint for expropriation against the private persons occupying the property. In such an expropriation case,
the owner of the property is not an indispensable party.

SEC. 1.–THE COMPLAINT

Q. What is eminent domain or expropriation? Explain.

A. Eminent domain or expropriation is the inherent right of the state to condemn private
property to public use upon payment of just compensation. This power is exercised by the legislature and may
be delegated to local governments, other public entities, and public utilities.

Q. What is inverse expropriation?

A. Inverse expropriation is a claim for compensation by the deprived landowner as a complaint or as

a counterclaim. It seeks to recover the value of property taken, even though there is no formal exercise of the power
of eminent domain. Normally, it is the expropriator the State that files the complaint.

JURISDICTION

Q. Who has jurisdiction to take cognizance of an expropriation suit?

A. An expropriation suit falls under the jurisdiction of the RTC because it is a case incapable of
pecuniary estimation. It deals with the government's exercise of its authority and right to take property for public
use.

Q. Is the property owner entitled to be paid an interest if the compensation was not fully paid,
although the property was already taken? Explain.

A. Yes. Interest on the unpaid compensation becomes due as compliance with the constitutional
mandate on eminent domain and as a basic measure of fairness. Thus, interest in eminent domain cases "runs as
a matter of law and follows as a matter of course from the right of the landowner to be placed in as good a position
as money can accomplish, as of the date of taking." The delay in the payment of just compensation is a forbearance
of money. As such, this is necessarily entitled to earn interest.

Q. What is the reckoning period of the payment of interest? Explain.

A. Interest should be reckoned from the date of taking of the property up to full payment to
compensate the land owner.

SEC. 2.–ENTRY OF PLAINTIFF UPON DEPOSITING VALUE WITH AUTHORIZED GOVERNMENT

DEPOSITARY

Q. When can the plaintiff take possession of the expropriated property?

A. The general rule is that upon the filing of the expropriation complaint, the plaintiff has the right to
take or enter into possession of the real property involved if he deposits with the authorized government depositary
an amount equivalent to the assessed value of the property.

Q. Is there any exception to the rule?

A. Yes. An exception to this procedure is provided by R.A. No. 8974 with respect to national
government projects, which requires the payment of 100% of the zonal value of the property to be expropriated as
the provisional value.

NEW SYSTEM OF IMMEDIATE PAYMENT OF INITIAL JUST COMPENSATION

Q. What is the effect of the repeal of R.A. No. 8974 to the Republic in case of expropriation?
Explain.

A. The repeal of R.A. No. 8974 by R.A. No. 10752 does not affect the Republic's obligation to deposit
the land's zonal value plus the value of the improvements situated thereon. The latter law substantially retained the
deposit requirement.

Q. What is the purpose of the deposit embodied in Rule 67 of the 1997 Rules of Civil Procedure
and R.A. No. 8974?

A. It must be emphasized that whether a deposit is made under Rule 67 of the Rules of Court or the
provisional value of the property is paid pursuant to R.A. No. 8974, the said amount serves the double-purpose of:
(a) Pre-payment if the property is fully expropriated; and (b) Indemnity for damages if the proceedings are
dismissed.
Section 2, Rule 67 of the Rules of Court requires the expropriator to deposit the amount equivalent to the
assessed value of the property to be expropriated prior to entry. The assessed value of a real property constitutes a
mere percentage of its fair market value based on the assessment levels fixed under the pertinent ordinance passed
by the local government where the property is located. In contrast, RA 8974 requires the payment of the amount
equivalent to 100% of the current zonal value of the property, which is usually a higher amount.

Q. Did the provisions of R.A No. 8974 supersede Rule 67 of the Revised Rules of Court relative
to the system of deposit before the government can take possession of the expropriated property? Explain.
 A. Yes. The Supreme Court recognized that while expropriation proceedings have always
demanded just compensation in exchange for private property, the deposit requirement under Rule 67 of the
Rules of Court impeded immediate compensation to the private owner, especially in cases wherein the
determination of the final amount of compensation would prove highly disputed. Thus, it categorically declared
that it is the plain intent of RA 8974 to supersede the system of deposit under Rule 67 with the scheme of 'immediate
payment' in cases involving national government infrastructure projects. (Republic vs. Judge Gingoyon, G.R. No.
166429, 19 December 2005)(En Banc)[Tinga, J.].

A matter is substantive when it involves the creation of rights to be enjoyed by the owner of the property
to be expropriated. The right of the owner to receive just compensation prior to acquisition of possession by the
State of the property is a proprietary right, appropriately classified as a substantive matter and, thus, within the sole
province of the legislature to legislate on. (Republic vs. Judge Gingoyon, G.R. No. 166429, 1 February 2006)(En
Banc)[Tinga, J.]

SEC. 4.–ORDER OF EXPROPRIATION

Q. What are the three (3) interrelated concepts in determining the payment of just
compensation in expropriation proceedings? Explain.

A. The three (3) interrelated concepts in the payment of just compensation are as follows:

(1) The valuation period of just compensation under Rule 67 of the Rules of Court; (2) The reckoning period
of interest in eminent domain cases pursuant to Section 9, Article 3 of the 1987 Constitution; and (3) The initial and
final payments of just compensation under RA 8974.

SEC. 5.–ASCERTAINMENT OF JUST COMPENSATION

Q. Is the determination of just compensation a judicial function? Explain.

A. Yes. The determination of just compensation in expropriation cases is a function addressed to the
discretion of the courts, and may not be usurped by any other branch or official of the government. This judicial
function has constitutional raison d’être; Article III of the 1987 Constitution mandates that no private property shall
be taken for public use without payment of just compensation. Legislative enactments, as well as executive
issuances, fixing or providing for the method of computing just compensation are tantamount to impermissible
encroachment on judicial prerogatives. They are not binding on courts and, at best, are treated as mere guidelines in
ascertaining the amount of just compensation.

SEC. 6.–PROCEEDINGS BY COMMISSIONERS

Q. Can consequential damages be awarded in expropriation proceedings? Explain.

A. Yes. Where only a portion of a certain property is to be acquired, the owner is not restricted only to
compensation for the part actually taken, but is likewise entitled to recover consequential damages for the remainder
of the property, which may suffer an impairment or decrease in value as an incidental result of the expropriation,
provided such fact is proven by sufficient evidence.

SEC. 8.–ACTION UPON COMMISSIONERS' REPORT

Q. Will the failure of the Clerk of Court to furnish the parties of the final report of the
commissioners render the decision of the trial court null and void? Explain.

A. No. Rule 67 of the Rules of Court provides that the clerk of court shall serve copies of the
commissioners' final report on all interested parties upon the filing of the report. Each party shall have ten days
within which to file their objections to the report's findings. Upon the expiration of the ten-day period or after all the
parties have filed their objections and after hearing, the trial court may: (a) Accept the report and render judgment
in accordance therewith; (b) For cause shown, recommit the report to the commissioners for further report of facts;
(c) Set aside the report and appoint new commissioners; (d) Partially accept the report; and (e) 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, the just compensation for the property so taken.

Under Section 8, Rule 67 of the Rules of Court, the RTC may accept or reject, whether in whole or in part,
the BOC's report, which is merely advisory and recommendatory in character. (Republic vs. Mupas, 769 SCRA
384, 8 September 2015)(En Banc)[Brion, J.]

R.A. NO. 8974 (AN ACT TO FACILITATE THE ACQUISITION OF RIGHT-OF-WAY, SITE OR
LOCATION FOR NATIONAL GOVERNMENT INFRASTRUCTURE PROJECTS AND FOR OTHER
PURPOSES)

Q. What rule and law governs the expropriation proceedings for national infrastructure
projects? Explain.

A. Expropriation proceedings for national infrastructure projects are governed by Rule 67 of the Rules
of Court and R.A. No. 8974. The power of eminent domain is an inherent competence of the state. It is essential to a
sovereign. Thus, the Constitution does not explicitly define this power but subjects it to a limitation: that it be
exercised only for public use and with payment of just compensation. Whether the use is public or whether the
compensation is constitutionally just will be determined finally by the courts.

However, the manner of its exercise such as which government instrumentality can be delegated with the
power to condemn, under what conditions, and how may be limited by law. Republic Act No. 8974 does these, but it
should not be read as superseding the power of this court to promulgate rules of procedure. Thus, our existing rules
should be read in conjunction with the law that limits and conditions the power of eminent domain.

Q. What does the depreciated replacement cost method mean for purposes of payment of just
compensation?

A. In applying this method, the owner is compensated for his actual loss at the date of taking of the
expropriated property. Consequently, the deduction from the construction cost of the deterioration and depreciation
items is permissible under RA 8974. (Republic Mupas, G.R. No. 181892, 19 April 2016) (En Banc)[Brion, J.].

SEC. 12.–COSTS, BY WHOM PAID

Q. Is the Land Bank of the Philippines exempt from paying costs of suit, including
commissioners' fees? Explain.

A. Yes. LBP is exempt from paying the costs of the suit pursuant to Section 1, Rule 142 of the Rules
of Court, since it is an instrumentality performing a governmental function in agrarian reform proceedings charged
with the disbursement of public funds. Recently, in the case of LBP vs. Baldoza, it was reiterated that since LBP is
performing a governmental function in an agrarian reform proceeding, it is exempt from payment of costs of suit,
including commissioners' fees, as it is considered part of costs of suit.

SEC. 13.–RECORDING JUDGMENT, AND ITS EFFECT

Q. Can the subdivision developers be compelled to cede subdivision road lots to the government
without payment of just compensation? Explain.

A. No. Only after a subdivision owner has developed a road may it be donated to the local
government, if it so desires. On the other hand, a subdivision owner may even opt to retain ownership of private
subdivision roads, as in fact is the usual practice of exclusive residential subdivisions for example those in Makati
City. Subdivision streets belonged to the owner until donated to the government or until expropriated upon payment
of just compensation." Stated otherwise, "the local government should first acquire them by donation, purchase, or
expropriation, if they are to be utilized as a public road."

NON-ISSUANCE OF INJUCTIVE RELIEF UNDER R.A. NO. 8975

Q. R.A. No. 8975 enjoins the RTCs from issuing injunctive reliefs filed by a private individual
against government infrastructure projects. Does the expressed prohibition include assuming jurisdiction
over the case?

A. No. The Supreme Court has set the limit on the prohibition found in Presidential Decree No. 1818
by explaining that lower courts are not prohibited from enjoining administrative acts when questions of law exist
and the acts do not involve administrative discretion in technical cases. The general rule of prohibition under R.A.
No. 8975 does not preclude lower courts from assuming jurisdiction when the ultimate relief prayed for is to nullify
a national government infrastructure project and its implementation.

What is expressly prohibited by the statute is the issuance of the provisional reliefs of temporary restraining
orders, preliminary injunctions, and preliminary mandatory injunctions. It does not preclude the lower courts from
assuming jurisdiction over complaints or petitions that seek as ultimate relief the nullification or implementation of a
national government infrastructure project. A statute such as R.A. No. 8975 cannot diminish the constitutionally
mandated judicial power to determine whether or not there has been a grave abuse of discretion amounting to excess
of jurisdiction on the part of any branch or instrumentality of government.

Thus, when a court is called upon to rule on an initiatory pleading in any material aspect pertinent to a national
government infrastructure project, the court ordinarily may not dismiss the action based solely on R.A. No. 8975 but
is merely enjoined from granting provisional reliefs. If no other ground obtains to dismiss the action, the court
should decide the case on the merits. [Dynamic Builders & Construction Co. (Phil.) vs. Presbitero, Jr., G.R. No.
174202, 7 April 2015](En Banc)[Leonen, J.].

Q. Does the prohibition for non-issuance of TRO/Injunction against government infrastructure

projects apply to LGUs?

A. No. R.A. No. 8975 does not sanction splitting a cause of action in order for a party to avail itself of
the ancillary remedy of a temporary restraining order from the Supreme Court. Also, this law covers only national
government infrastructure projects. For local government infrastructure projects, Regional Trial Courts may issue
provisional injunctive reliefs against government infrastructure projects only when: (1) there are compelling and
substantial constitutional violations; (2) there clearly exists a right in esse; (3) there is a need to prevent grave and
irreparable injuries; (4) there is a demonstrable urgency to the issuance of the injunctive relief; and (5) there are
public interests at stake in restraining or enjoining the project while the action is pending that far outweigh (a) the
inconvenience or costs to the party to whom the project is awarded and (b) the public benefits that will result from
the completion of the project. The time periods for the validity of temporary restraining orders issued by trial courts
should be strictly followed. No preliminary injunction should issue unless the evidence to support the injunctive
relief is clear and convincing.

PROBLEM:

Sections 1 to 2 of P.D. No. 1818 provide that:

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

Section 2. This decree shall take effect immediately.

Whereas, Section 3, second paragraph, R.A. No. 8975 provides that: This prohibition shall apply in all cases,
disputes or controversies instituted by a private party, including but not limited to cases filed by bidders or those
claiming to have rights through such bidders involving such contract/
project. This prohibition shall not apply when the matter is of extreme urgency involving a constitutional issue, such
that unless a temporary restraining order is issued, grave injustice and irreparable injury will arise. The applicant
shall file a bond, in an amount to be fixed by the court, which bond shall accrue in favor of the government if the
court should finally decide that the applicant was not entitled to the relief sought.

x-x-x

Are all government infrastructure projects without classifications covered under the above-cited provisions?
 SUGGESTED ANSWER:

No. The RTC can issue injunctive relief against government infrastructure projects, even those undertaken by
local governments, considering that the prohibition in Section 3 of Republic Act No. 8957 only mentions national
government projects. These courts can issue injunctive relief when there are compelling constitutional violations—
only when the right is clear, there is a need to prevent grave and irreparable injuries, and the public interest at stake
in restraining or enjoining the project while the action is pending far outweighs the inconvenience or costs to the
party to whom the project is awarded.

GUIDELINES FOR EXPROPRIATION PROCEEDINGS OF NATIONAL GOVERNMENT

INFRASTRUCTURE PROJECTS (SEC. 4, R.A. NO. 8974-AN ACT TO FACILITATE THE ACQUISITION
OF RIGHT-OF-WAY, SITE OR LOCATION FOR NATIONAL GOVERNMENT INFRASTRUCTURE
PROJECTS AND FOR OTHER PURPOSES

Q. Can R.A. No. 8974 be given retroactive application? Explain

A. No. R.A. No. 8974 applies only prospectively. R.A. No. 8974 cannot be made to apply
retroactively since it is a substantive law; there is nothing in R.A. No. 8974 which expressly provides for retroactive
application; and retroactivity could not necessarily be implied from R.A. No. 8974 or in any of its provisions. It is a
well-entrenched principle that statutes, including administrative rules and regulations, operate prospectively unless
the legislative intent to the contrary is manifest by express terms or by necessary implication because the retroactive
application of a law usually divests rights that have already become vested. This is based on the Latin maxim: Lex
prospicit non respicit (the law looks forward, not backward).

RULE 68 - JUDICIAL FORECLOSURE

Q. In case of default of payment by a mortgagor, can the latter exercise collection suits and
foreclosure proceedings at the same time? Explain

A. No. The settled rule is that these remedies of collection and foreclosure are mutually exclusive. In
the absence of express statutory provisions, a mortgage creditor may institute against the mortgage debtor either a
personal action for debt or a real action to foreclose the mortgage. In other words, he may pursue either of the two
remedies, but not both. By such election, his cause of action can by no means be impaired, for each of the two
remedies is complete in itself. Thus, an election to bring a personal action will leave open to him all the properties of
the debtor for attachment and execution, even including the mortgaged property itself. And, if he waives such
personal action and pursues his remedy against the mortgaged property, an unsatisfied judgment thereon would still
give him the right to sue for a deficiency judgment, in which case, all the properties of the defendant, other than the
mortgaged property, are again open to him for the satisfaction of the deficiency. In either case, his remedy is
complete, his cause of action undiminished, and any advantages attendant to the pursuit of one or the other remedy
are purely accidental and are all under his right of election. On the other hand, a rule that would authorize the
plaintiff to bring a personal action against the debtor and simultaneously or successively another action against the
mortgaged property, would result not only in multiplicity of suits so offensive to justice (Soriano vs. Enriques, 24
Phil., 584) and obnoxious to law and equity (Osorio vs. San Agustin, 25 Phil., 404), but also in subjecting the
defendant to the vexation of being sued in the place of his residence or of the residence of the plaintiff, and then
again in the place where the property lies.

Q. What is the rationale in the exercise of a single remedy of secured mortgage? Explain

A. For non-payment of a note secured by mortgage, the creditor has a single cause of action against
the debtor. This single cause of action consists in the recovery of the credit with execution of the security. In other
words, the creditor in his action may make two demands, the payment of the debt and the foreclosure of the
mortgage. But both demands arise from the same cause, the non-payment of the debt, and, for that reason, they
constitute a single cause of action. Though the debt and the mortgage constitute separate agreements, the latter is
subsidiary to the former, and both refer to one and the same obligation. Consequently, there exists only one cause of
action for a single breach of that obligation.

EXTRAJUDICIAL FORECLOSURE (ACT NO. 3135, AS AMENDED)

Q. Is personal notice to the mortgagor necessary in extra-judicial foreclosure under At. No. 3135
as amended by Act. No. 4118? Explain
 A. No. Personal notice to the mortgagor in extrajudicial foreclosure proceedings is not necessary.
Section 3 of Act No. 3135, as amended by Act No. 4118, requires only the posting of the notice of sale in three
public places and the publication of that notice in a newspaper of general circulation. An exception to this rule is
when the parties stipulate that personal notice is additionally required to be given to the mortgagor. Failure to abide
by the general rule or its exception renders the foreclosure proceedings null and void. (Panacan Lumber Co., et al.
vs. Solidbank Corp., (Now Metropolitan Bank & Trust Company), G.R. No. 226272, September 16, 2020)
(Second Division) [Hernando, J.] (The Extra-judicial Foreclosure was declared void for failure to personally
notify the mortgager as stipulated in the REM)

Q. What is the nature and purpose of "blanket mortgage" or "dragnet" clause? Explain

A. A "blanket mortgage clause," also known as a "dragnet clause" in American jurisprudence,

is one which is specifically phrased to subsume all debts of past or future origins. Such clauses are "carefully
scrutinized and strictly construed." A mortgage that provides for a dragnet clause is in the nature of a continuing
guaranty and constitutes an exception to the rule that an action to foreclose a mortgage must be limited to the
amount mentioned in the mortgage contract. (Panacan Lumber Co., et al. vs. Solidbank Corp. (Now
Metropolitan Bank & Trust Company), G.R. No. 226272, September 16, 2020)(Second Division)[Hernando,
J.].

Q. What are the three (3) elements that must be established before a creditor may proceed with
the extra-judicial foreclosure of a mortgage?

A. First, there must have been the failure to pay the loan obtained from the mortgagee-creditor;
Second, the loan obligation must be secured by a real estate mortgage; and Third, the mortgagee-creditor has the
right to foreclose the real estate mortgage either judicially or extra-judicially."

Q. What is the importance of demand before foreclosure?

A. The issue of whether demand was made before the foreclosure was effected is essential. If demand
was made and duly received by the respondents and the latter still did not pay, then they were already in default and
foreclosure was proper. However, if demand was not made, then the loans had not yet become due and demandable.
This meant that respondents had not defaulted on their payments and the foreclosure by petitioner was premature.
Foreclosure is valid only when the debtor is in default in the payment of his obligation.

Q. What are the instances when a writ of possession may be issued to the purchaser?

A. The general rule is that in extra-judicial foreclosures, a writ of possession may be issued to the
purchaser in two different instances, and based on two different sources: (1) within the redemption period, in
accordance with Act No. 3135, particularly Section 7, as amended; (Section 7 of Act No. 3135 provides that the
purchaser in a foreclosure sale may apply for a writ of possession by filing an ex parte motion under oath. The
provision also requires that a bond be furnished and approved, and no third person is involved). (2) after the lapse
of the redemption period, based on the purchaser's right of ownership. (Section 8 of the same Act, as amended,
provides the remedy available to the debtor, that is, the opportunity to contest the transfer of possession but only
within the period of redemption). (Sps. Torrecampo vs. Wealth Development Bank, G.R. No. 221845, 21 March
2022)(Second Division)[Hernando, J.].

Q. What is the extent of the applicability of Act No. 3135?

A. Act No. 3135 governs only the manner of the sale and redemption of the mortgaged real property
in an extra-judicial foreclosure; proceedings beyond these, i.e., upon the lapse of the redemption period and the
consolidation of the purchaser's title, are no longer within its scope. This is apparent from Section 1 of Act No.
3135. (Sps. Torrecampo vs. Wealth Development Bank, G.R. No. 221845, 21 March 2022)(Second Division)
[Hernando, J.].

THE GENERAL BANKING LAW OF 2000 (SEC. 47, R.A. No. 8791)

Section 47. Foreclosure of Real Estate Mortgage. - In the event of foreclosure, whether judicially or extra-
judicially, of any mortgage on real estate which is security for any loan or other credit accommodation granted, the
mortgagor or debtor whose real property has been sold for the full or partial payment of his obligation shall have the
right within one year after the sale of the real estate, to redeem the property by paying the amount due under the
mortgage deed, with interest thereon at rate specified in the mortgage, and all the costs and expenses incurred by the
bank or institution from the sale and custody of said property less the income derived therefrom. However, the
purchaser at the auction sale concerned whether in a judicial or extra-judicial foreclosure shall have the right to enter
upon and take possession of such property immediately after the date of the confirmation of the auction sale and
administer the same in accordance with law. Any petition in court to enjoin or restrain the conduct of foreclosure
proceedings instituted pursuant to this provision shall be given due course only upon the filing by the petitioner of a
bond in an amount fixed by the court conditioned that he will pay all the damages which the bank may suffer by the
enjoining or the restraint of the foreclosure proceeding. Notwithstanding Act 3135, juridical persons whose
property is being sold pursuant to an extrajudicial foreclosure, shall have the right to redeem the property in
accordance with this provision until, but not after, the registration of the certificate of foreclosure sale with
the applicable Register of Deeds which in no case shall be more than three (3) months after foreclosure,
whichever is earlier. Owners of property that has been sold in a foreclosure sale prior to the effectivity of this
Act shall retain their redemption rights until their expiration. (78a)

Q. What is the rationale why juridical persons are given shorter period of redemption of three
(3) months from the registration of the Shehriff’s Cerificate of Sale to the ROD compared to natural person
who is given one (1) year? Explain.

A. A longer period of redemption is given to natural persons whose mortgaged properties are more
often used for residential purposes. A shorter period of redemption is given to juridical persons whose properties
are more often used for commercial purposes. Goldenway Merchandising explains that the shorter period is aimed to
ensure the solvency and liquidity of banks. This helps minimize the period of uncertainty in the ownership of
commercial properties and enable mortgagee-banks to dispose of these acquired assets quickly. There is, thus, a
legitimate government interest in the protection of the banking industry and a legitimate government interest in the
protection of foreclosed residential properties owned by natural persons. The shortened period of redemption for
juridical entities may be considered to be the reasonable means for the protection of both these interests. (Zomer
Development Company, Inc., Special Twentieth Division of the Court Of Appeals, Cebu City and Union Bank
Of The Philippines (G.R. No. 194461, January 07, 2020)(En Banc)[Leonen, J.].

RULE 69 - PARTITION

SEC. 1.–WHO MAY FILE COMPLAINT; WHO SHOULD BE MADE DEFENDANTS; MATTERS TO
ALLEGE IN THE COMPLAINT FOR PARTITION

Q. What is the concept of the special civil action of judicial partition? Explain.

A. A special civil action of judicial partition under Rule 69 of the Rules of Court is a judicial
controversy between persons who, being co-owners or coparceners of common property, seek to secure a division or
partition thereof among themselves, giving to each one of them the part corresponding to him.

TWO (2) STAGES IN EVERY ACTION FOR PARTITION

Q. What are the two stages of judicial partition? Explain.

A. In our jurisdiction, Rule 69 of the Rules of Court have laid down two phases of an action for
partition: First, the trial court, after determining that a co-ownership in fact exists and that partition is proper, issues
an order for partition; and, Second, the trial court promulgates a decision confirming the sketch and subdivision of
the properties submitted by the parties (if the parties reach an agreement) or by the appointed commissioners (if the
parties fail to agree), as the case may be. (Silva vs. Lo, G.R. No. 206667, 23 June 2021)(Third Division)
[Hernando, J.].

Q. What is the object of judicial partition? Explain.

A. The object of partition is to enable those who own property as joint tenants, or coparceners,
or tenants in common to put an end to the joint tenancy to vest in each a sole estate in specific property or an
allotment in the lands or tenements. It is typically brought by a person claiming to be the owner of a specified
property against a defendant or defendants whom the plaintiff recognizes to be his co-owners and is premised on the
existence or nonexistence of co-ownership between the parties. Hence, unless and until the issue of co-ownership is
definitively resolved, it would be premature to effect a partition of an estate. Consequently, the first stage of an
action for judicial partition and/or accounting is concerned with the determination of whether or not a co-ownership
in fact exists and a partition is proper.

Q. Is a judicial partition an action for declaration of ownership? Explain.

A. Yes. An action for partition is at once an action for declaration of co-ownership and for segregation
and conveyance of a determinate portion of the properties involved. If the trial court should find after trial the
existence of co-ownership among the parties, it may and should order the partition of the properties in the same
action. It is only properties owned in common that may be the object of an action for partition; it will not lie if the
claimant has no rightful interest over the subject property.

Q. Is publication a requirement under Rule 69?

A. No. There is no requirement for publication under Section 1, Rule 69 of the 1997 Rules of Civil
Procedure.

Q. What is the proper remedy of co-owners deprived of their rights? Explain.

A. The appropriate recourse of co-owners in cases where their consent were not secured in a sale of
the entire property as well as in a sale merely of the undivided shares of some of the co-owners is an action for
PARTITION under Rule 69 of the Revised Rules of Court. Neither recovery of possession nor restitution can be
granted since the defendant buyers are legitimate proprietors and possessors in joint ownership of the common
property claimed.

SEC. 4.–OATH AND DUTIES OF COMMISSIONERS

Q. What is the duty of the court if the parties are unable to agree on partition? Explain.

A. The trial court should order the appointment of commissioners. In partition proceedings, reference
to commissioners is required as a procedural step in the action and is not discretionary on the part of the court. It was
held in a number of cases that if the parties are unable to agree on a partition, the trial court should order the
appointment of commissioners.

SEC. 5.–ASSIGNMENT OR SALE OF REAL ESTATE BY COMMISSIONERS

Q. What is the duty of the commissioners when a portion of the real estate cannot be divided
without great prejudice to the interest of the parties? Explain.

A. The court may order it assigned to one of the parties willing to take the same, provided he pays to
the other parties such sum or sums of money as the commissioners deem equitable, unless one of the parties
interested ask 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, and the commissioners shall sell the same accordingly.

SEC. 6.–REPORT OF COMMISSIONERS; PROCEEDINGS NOT BINDING UNTIL CONFIRMED

Q. When is a party to a partition barred from avoiding partition? Explain.

A. A co-owner, who, though not a party to a partition accepts the partition allotted to him, and
holds and conveys the same in severalty, will not be subsequently permitted to avoid partition. It follows that a
party to a partition is also barred from avoiding partition when he has received and held a portion of the subdivided
land especially in this case where respondents have enjoyed ownership rights over their share for a long time. Parties
to a partition proceeding, who elected to take under partition, and who took possession of the portion allotted to
them, are estopped to question title to portion allotted to another party. A person cannot claim both under and against
the same instrument. In other words, they accepted the lands awarded them by its provisions, and they cannot accept
the decree in part, and repudiate it in part. They must accept all or none. Parties who had received the property
assigned to them are precluded from subsequently attacking its validity of any part of it.
SEC. 7.–ACTION OF THE COURT UPON COMMISSIONERS’ REPORT

Q. In partition proceedings, what is the common denominator of the parties? Explain.

A. It rarely happens in partition proceedings, where so many conflicting interests and imponderable
factors of value, convenience and the like may enter, that all parties are satisfied, Where so much rests upon the
informed opinion and sound judgment of impartial commissioners and an impartial trial judge, it would seem
inexpedient for the appellate court to reverse their findings and confirm the report of a commissioner who stands
alone in his recommendations, specially where, as in this case, the proceedings were entirely regular.

Q. What is the general and universal rule in a case where tenants made an improvement in the
property subject of judicial partition? Explain.

A. The rule requires that the properties should be partitioned in a manner that would be most
advantageous and equitable to the parties, having "due regard to the improvements, situation and quality of the
different parts" of the properties subject of the partition.

WHEN PARTITION IS NOT ALLOWED

Q. When can a judicial partition under Rule 69 be disallowed by the court? Explain.

A. Judicial partition will not be allowed if the subject property is in the actual adverse possession of
third persons, who claim to be the owners thereof, and who are not parties to the suit, the proceedings cannot go on.

RULE 70 - FORCIBLE ENTRY AND UNLAWFUL DETAINER

Q. The sole issue in ejectment cases is physical or material possession of the subject property.
Can the Court resolve the issue of ownership interposed by the defendant as a defense?

A. Yes. Section 16, Rule 70 of the 1997 Rules of Civil Procedure provides the exception to the rule in
that the issue of ownership shall be resolved in deciding the issue of possession if the question of possession is
intertwined with the issue of ownership. (Tiña vs. Sta. Clara Estate, Inc., G.R. No. 239979, February 17, 2020)
(Second Division) [Hernando, J.].

ALTERNATIVE ANSWER:

Yes. The courts may pass upon that issue only for the purposes of determining who between the parties
has the better right to possess the property. Where the issue of ownership is inseparably linked to that of
possession, adjudication of ownership is not final and binding, but merely for the purpose of resolving the issue of
possession.

Q. What is the concept of a forcible entry? Explain

A. In actions for forcible entry, the party is deprived of physical possession of land or building by
means of force, intimidation, threat, strategy, or stealth. The inquiry centers on who has the prior possession de
facto. Plaintiff's proof of prior physical possession of the usurped property is essential for the action to prosper. This
is determined by examining the allegations in the complaint. (Dayrit vs. Norquillas, et al., G.R. No. 201631, 7
December 2021)(En Banc)[Hernando, J.].

DIFFERENTIATED FROM ACCION PUBLICIANA AND ACCION REIVINDICATORIA

 Q. What are the three (3) actions to recover possession of real property?

A. The three (3) usual actions to recover possession of real property are:

1. Accion interdictal or a summary ejectment proceeding, which may be either for forcible entry
(detentacion) or unlawful detainer (desahucio), for the recovery of physical or material possession (possession de
facto) where the dispossession has not lasted for more than one year, and should be brought in the proper inferior
court;

2. Accion publiciana or the plenary action to recover the better right of possession (possession de jure),
which should be brought in the proper inferior court or Regional Trial Court (depending upon the value of the
property) when the dispossession has lasted for more than one year (or for less than a year in cases other than those
mentioned in Rule 70 of the Rules of Court); and

3. Accion reivindicatoria or accion de reivindicacion or reivindicatory action, which is an action for

recovery of ownership which must be brought in the proper inferior court or Regional Trial Court (depending upon
the value of the property). (Cullado vs. Gutierrez, G.R. No. 212938, 30 July 2019)(En Banc)[Caguioa, J.].

Q. Distinguish forcible entry from unlawful detainer.

A. The distinctions between the two (2) actions are as follows:

(1) Forcible entry is the act of depriving a person of the material or actual possession of a land or building or
of taking possession thereof by force, intimidation, threat, strategy or stealth, against the will or without the consent
of the possessor; while unlawful detainer is the act of unlawfully withholding the possession of a land or building
against or from a landlord, vendor, vendee or other persons, after the expiration or termination of the detainer's right
to hold possession by virtue of a contract, express or implied. (2) With respect to possession, in forcible entry, the
possession of the intruder is illegal at the outset because his or her "possession thereof is made against the will or
without the consent of the former possessor." In unlawful detainer, by contrast, the possession is previously legal
but becomes unlawful upon the expiration of one's right to possess the property after, for instance, the termination or
violation of a lease contract. (3) Another difference rests in terms of a demand to vacate: "in an action of
forcible entry, no previous demand to vacate is required by law before the filing of the action," while such demand
is required in unlawful detainer.

PROBLEM:

“A” filed a case for recovery of possession against “B” with the RTC of Manila. Due to non-compliance with
prior barangay conciliation, “B” filed a Motion to Dismiss. The RTC at first dismissed the case for lack of cause of
action. However, on Motion for Reconsideration of “A”, the case was reinstated and referred the case to the
Barangay concerned to comply with the barangay conciliation proceedings in accordance with the 1991 Local
Government Code. “B” went to the CA on the ground of grave abuse of discretion on the part of the RTC when his
Motion for Reconsideration was denied. The CA reversed the RTC and ordered the Dismissal of the Recovery of
Possession case.

Is the CA correct? Explain.

SUGGESTED ANSWER:

Yes. The CA was correct. R.A. No. 7160, or the 1991 Local Government Code, provides that barangay
conciliation proceedings is a pre-condition to filing a complaint in court between persons actually residing in the
same barangay to explore possible amicable settlement. [Ngo vs. Gabelo et al., G.R. No. 207707, 24 August 2020)
(Second Division)[Hernando, J], citing Sections 409 and 412 of the 1991 LGC].
PROBLEM:

Mr. Jose Dima has been in physical and actual possession of the real property consisting of five (5) hectares
located at Barangay Sampaga, City of Iraga for 36 years. One day, he learned that the subject property was already
titled in the name of Mr. Anthony Tavern. When he verified from the Registry of Deeds of Iraga, the title was
already more than one (1) year in the name of Mr. Tavern. Mr. Dima instituted an accion publiciana case with the
RTC of Iraga and at the same time attacked the validity of the title issued in the name of Mr. Tavern as accordingly,
it was issued fraudulently. Mr. Tavern on the other hand interposed the defense of ownership in his affirmative
defenses, because of the title issued in his name. After the trial on the merits, the RTC of Iraga issued a decision in
favor of Mr. Dima as follows: (a) Annulment of the title issued in favor of Mr. Tavern; (b) Reconvey the same title
in favor of Mr. Dima due to acquisitive prescription; (c) Installed Mr. Dima to possess the subject property.
 Was the decision of the RTC of Iraga correct? Explain.

SUGGESTED ANSWER:

No. The RTC, of Iraga was wrong. It has no jurisdiction to order the annulment of the title, reconveyance, and
installation of Mr. Dima to possess the subject property. The title issued in the name of Mr. Tavern becomes
incontrovertible upon the lapse of the one-year period pursuant to the second paragraph of Section 32 of P.D. No.
1529. Thus, the RTC was clearly without jurisdiction in ruling that Mr. Dima had become the owner of the land in
controversy "through the medium of acquisitive prescription" having been in possession for 36 years and that Mr.
Tavern must reconvey the land in favor Mr. Dima. While the RTC could have resolved the issue of ownership
provisionally to determine the "better right of possession," which is allowed in an accion publiciana, it was without
any power or jurisdiction to order the reconveyance of the land in dispute because that can be done only upon a
definitive ruling on the said issue - something that cannot be done in an accion publiciana. (The Heirs Cullado vs.
Gutierrez, G.R. No. 212938, 30 July 2019)(En Banc)[Caguioa, J.].

SEC. 1.–WHO MAY INSTITUTE THE ACTION AND WHEN; AGAINST WHOM THE ACTION MAY BE
MAINTAINED

Q. What are the differences between Unlawful detainer and forcible entry?

A. The two may be differentiated as follows:

Forcible Entry Unlawful Detainer

Possession The possession of the defendant
or the intruder is illegal from the
beginning because his/her
possession of the property is
against the will or without the
consent of the plaintiff or the
former possessor.
The possession is previously
legal but eventualy becomes
unlawful upon the expiration of
one's right to possess the
property after, for instance, the
termination or violation of a
lease contract.

Thus, plaintiff must allege in the Thus, the plaintiff need not
complaint and prove tha the/she have prior physical possession
was in prior physical possession of the property.
of the property in itigation until
he/she was deprived thereof by
the defendant.
Demand to No previous demand to vacate is Prior to the filing of the action,
Vacate required before the filing of the plaintiff must issue a demand
action. to vacate to defendant, which
the latter fails to comply.
Prescriptive Ingeneral, the one-year The one-year period in
Period prescriptive period is Reckoned unlawful detainer is Counted
from the date of actual entry on from the date of The last
the property. However, If demand to vacate.
forcible entry is done through
stealth, the Period is counted
from the time the plaintiff
Discovered the entry.
(Palajos vs. Abad, G.R. No. 205832, 7 March 2022) (Second Division) [Hernando, J.].

Q. What is the coverage of an unlawful detainer? Explain.

A. Unlawful detainer is a summary action for the recovery of possession of real property. This action
may be filed by 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. In unlawful detainer cases, the possession of the defendant was originally legal, as his
possession was permitted by the plaintiff on account of an express or implied contract between them. However,
defendant's possession became illegal when the plaintiff demanded that defendant vacate the subject property due to
the expiration or termination of the right to possess under their contract, and defendant refused to heed such demand.
 Q. What are the requisites for an action for unlawful detainer?

A. These are as follows: (a) Initially, possession of property by the defendant was by contract with or
by tolerance of the plaintiff; (b) Eventually, such possession became illegal upon notice by plaintiff to defendant of
the termination of the latter's right of possession; (c) Thereafter, the defendant remained in possession of the
property and deprived the plaintiff of the enjoyment thereof; and (d) Within one year from the last demand on
defendant to vacate the property, the plaintiff instituted the complaint for ejectment. (Sps. Liu vs. Espinosa, et al.,
G.R. No. 238513, July 31, 2019)(Third Division)[Hernando, J.]

Q. What should the plaintiff allege in a forcible entry case to prosper? Explain.

A. For a forcible entry suit to prosper, the plaintiffs must allege and prove: (a) That they have prior
physical possession of the property; (b) That they were deprived of possession either by force, intimidation,
threat, strategy or stealth; and (c) that the action was filed within one (1) year from the time the plaintiff learned of
his deprivation of the physical possession of the property, except that when the entry is through stealth, the one (1)-
year period is counted from the time the plaintiff-owner or legal possessor learned of the deprivation of the physical
possession of the property. (Palajos vs. Abad, G.R. No. 205832, 7 March 2022)(Second Division)[Hernando, J.].

Q. What is the rationale for requiring the jurisdictional facts to be alleged in the complaint for
ejectment suit both in forcible entry and unlawful detaioner? Explain.

A. The requirement that the complaint should aver, as jurisdictional facts, when and how entry into
the property was made by the defendants applies only when the issue is the timeliness of the filing of the complaint
before the MTC. This is because, in forcible entry cases, the prescriptive period is counted from the date of
defendants’ actual entry into the property; Whereas, in unlawful detainer cases, it is counted from date of the last
demand to vacate. Hence, to determine whether the case was filed on time, there is a necessity to ascertain whether
the complaint is one for forcible entry or for unlawful detainer; and since the main distinction between the two
actions is when and how defendant entered the property, the determinative facts should be alleged in the complaint.

Q. What does the one (1) year time bar rule mean? Explain.

A. Under the Civil Code and the Rules of Court, a party seeking to eject another from a property for
unlawful detainer must file the action for ejectment within one year from the last demand to vacate. In forcible
entry, the one-year period is counted from the date of actual entry on the land.

Q. Is prior physical possession indispensable in unlawful detainer? Explain.

A. No. Nowhere does it appear in Section 1 of Rule 70 of the Rules of Court that, in an action for
unlawful detainer, the plaintiff must be in prior physical possession of the property. The Court has repeatedly ruled
that prior physical possession by the plaintiff is not an indispensable requirement in an unlawful detainer case
brought by a vendee or other person against whom the possession of any land is unlawfully withheld after the
expiration or termination of a right to hold possession.

Q. How about action for forcible entry, is prior physical possession a requirement? Explain.

A. Yes. In an action for forcible entry, the plaintiff must prove that he was in prior possession of the
land or building and that he was deprived thereof by means of force, intimidation, threat, strategy or stealth. The
plaintiff, however, cannot prevail where it appears that, as between himself and the defendant, the latter had
possession-antedating his own.

Q. Can public lands be the subject of forcible entry proceedings? Explain.

A. Yes. Even public lands can be the subject of forcible entry cases as it has already been held that
ejectment proceedings may involve all kinds of land. Thus, while the parties are fighting over the possession of a
government land, the courts below are not deprived of jurisdiction to render judgment thereon. Courts must resolve
the issue of possession even if the parties to the ejectment suit are mere informal settlers.
EXCEPTION WHEN THE ISSUE OF OWNERSHIP CAN BE RESOLVED IN AN EJECTMENT SUIT

Q. Is it necessary that actual use of force be employed to constitute forcible entry? Explain.

A. No. Unlawfully entering the subject property, erecting a structure thereon and excluding therefrom
the prior possessor would necessarily imply the use of force. In order to constitute force, the trespasser does not have
to institute a state of war. No other proof is necessary. The words "by force, intimidation, threat, strategy or stealth"
include every situation or condition under which one person can wrongfully enter upon real property and exclude
another, who has had prior possession thereof. To constitute the use of "force" as contemplated in the above-
mentioned provision, the trespasser does not have to institute a state of war. Nor is it even necessary that he use
violence against the person of the party in possession. The act of going on the property and excluding the lawful
possessor therefrom necessarily implies the exertion of force over the property, and this is all that is necessary.

Q. What does strategy and stealth mean in contemplation of ejectment suit? Explain.

A. Strategy connotes the employment of machinations or artifices to gain possession of the subject
property. Whereas, stealth, is defined as any secret, sly, or clandestine act to avoid discovery and to gain entrance
into or remain within residence of another without permission.

Q. What is the effect of lessor’s continued acceptance of lease payments despite breach of
contract?

A. The lessor’s continued acceptance of lease payments despite breach of contract amounted to
waiver.

Q. Can the owner’s right to eject any person illegally occupying his property be barred by
laches? Explain.

A. No. As a registered owner, petitioner has a right to eject any person illegally occupying his
property. This right is imprescriptible and can never be barred by laches. Thus, if the occupation of the subject lot is
by mere tolerance or permission of the registered owner, without any contract between them, the occupant is bound
by an implied promise that she will vacate the same upon demand, failing which a summary action for ejectment is
the proper remedy against her.

Q. Is a demand letter necessary in an unlawful detainer case, if the ground is the expiration of
the lease contract? Explain.

A. No. The jurisdictional requirement of prior demand is unnecessary if the action is premised on the
termination of lease due to expiration of the terms of contract. The complaint must be brought on the allegation that
the lease has expired and the lessor demanded the lessee to vacate, not on the allegation that the lessee failed to pay
rents. The cause of action, which would give rise to an ejectment case, would be the expiration of the lease. Thus,
the requirement under Rule 70, Section 2 of a prior "demand to pay or comply with the conditions of the lease and to
vacate" would be unnecessary. (Cruz vs. Sps. Christensen, G.R. No. 205539, 4 October 2017)(Third Division)
[Leonen, J.].

Q. When can demand to vacate considered as a jurisdictional requirement in an ejectment suit,

even if there is no lease contract?

A. Possession of a property belonging to another may be tolerated or permitted, even without a prior
contract between the parties, as long as there is an implied promise that the occupant will vacate upon demand.
Refusal to vacate despite demand will give rise to an action for summary ejectment. Thus, prior demand is a
jurisdictional requirement before an action for forcible entry or unlawful detainer may be instituted.

SEC. 4.–PLEADINGS ALLOWED

Q. Is motion to dismiss allowed in an ejectment suit? Explain.

 A. A Motion to Dismiss is permissible only on the ground of lack of jurisdiction over the subject
matter in cases covered by the rules of summary procedure.

Q. Is a petition for certiorari allowed in cases covered by the Rules of Summary Procedure?
Explain.

A. No. A petition for certiorari is prohibited under the rules on summary procedure. Weighing the
consequences of continuing with the proceedings in the MCTC as against the consequences of allowing a petition
for certiorari, it is more in accord with justice, the purpose of the Rule on Summary Procedure, the policy of speedy
and inexpensive determination of cases, and the proper administration of justice, to obey the provisions in the Rule
on Summary Procedure prohibiting petitions for certiorari.

SEC. 2.–LESSOR TO PROCEED AGAINST LESSEE ONLY AFTER DEMAND

Q. What is the importance of demand in an unlawful detainer suit? Explain.

A. The demand required and contemplated in Section 2, aforequoted, is a jurisdictional requirement

for the purpose of bringing an unlawful detainer suit for failure to pay rent or comply with the conditions of lease. It
partakes of an extrajudicial remedy that must be pursued before resorting for judicial action so much so that when
there is full compliance with the demand, there arises no necessity for court action. Payment of the arrearages in
rental after the demand to pay and to vacate under Section 2, Rule 70 does not extinguish the cause of action for
ejectment as the lessor is not only entitled to recover the unpaid rents but also to eject the lessee.

SEC. 15.–PRELIMINARY INJUNCTION

Q. What is the liability of a judge who granted application for a writ of preliminary injunction
without any notice and hearing?

A. The Judge committed grave abuse of discretion and gross inefficiency. Section 15, Rule 70 of the
1997 Rules of Civil Procedure as amended, expressly prohibit the grant of preliminary injunction without hearing
and prior notice to the party or person sought to be enjoined. But courts are authorized to issue ex-parte a temporary
restraining order (TRO) if it should appear from facts shown by affidavits or by the verified petition that great or
irreparable injury would result to the applicant before the matter could be heard on notice. The TRO, however, shall
be effective only for a period of twenty (20) days from notice to the party or person sought to be enjoined. During
the 20-day period, the judge must conduct a hearing to consider the propriety of issuing a preliminary injunction. At
the end of such period, the TRO automatically terminates without need of any judicial declaration to that effect,
leaving the court no discretion to extend the same.

SEC. 16.–RESOLVING DEFENSE OF OWNERSHIP

Q. What is the preference in resolving the issue of possession in an ejectment case between the
registered owner with torrens title and the transferee under an unregistered deed of sale? Explain.

A. The registered owner of the property is preferred over the transferee under an unregistered deed of
sale. It is settled that a Torrens title is evidence of indefeasible title to property in favor of the person in whose name
the title appears. It is conclusive evidence with respect to the ownership of the land described therein. It is also
settled that the title holder is entitled to all the attributes of ownership of the property, including possession. Thus, in
Arambulo vs. Gungab, the Supreme Court declared that the age-old rule is that the person who has a Torrens title
over a land is entitled to possession thereof.

Q. What does actual possession means in contemplation of ejectment cases? Explain.

A. Actual possession of land consists in the manifestation of acts of dominion over it of such a nature
as those a party would naturally exercise over his own property. It is not necessary that the owner of a parcel of land
should himself occupy the property as someone in his name may perform the act. In other words, the owner of real
estate has possession, either when he himself is physically in occupation of the property, or when another person
who recognizes his rights as owner is in such occupancy. This declaration is in conformity with Art. 524 of the Civil
Code providing that possession may be exercised in one’s own name or in the name of another.

Q. Does the allegation in the answer by the defendant that there was implied or new lease divest
the MeTC of its jurisdiction over the ejectment case? Explain.

A. No. The allegation of existence of implied new lease or tacita reconduccion will not divest the
MeTC of jurisdiction over the ejectment case. It is an elementary rule that the jurisdiction of the court in ejectment
cases is determined by the allegations pleaded in the complaint and cannot be made to depend upon the defenses set
up in the answer or pleadings filed by the defendant. This principle holds even if the facts proved during trial do not
support the cause of action alleged in the complaint. In connection with this, it is well to note that in unlawful
detainer cases the elements to be proved and resolved are the facts of lease and expiration or violation of its terms.
In Mid-Pasig Land Development Corporation vs. CA, the High Court ruled that the MeTC is clothed with
exclusive original jurisdiction over an unlawful detainer case even if the same would entail compelling the plaintiff
therein to recognize an implied lease agreement.

Q. Can a case of unlawful detainer be suspended due to another case filed by the defendant to
enforce his right of preemption? Explain.

A. No. In Wilmon Auto Supply Corp. vs. CA, it was categorically held that an action for unlawful
detainer cannot be abated or suspended by an action filed by the defendant-lessee to judicially enforce his right of
preemption.

JUDGMENT (SEC. 17)

PROBLEM:

In an ejectment suit, the Municipal Trial Court of Iraga, Province of Timbukto, issued an amended decision.
The fifth instruction of the MTC states: Ordering the plaintiff CH Lopez to pay Charizza Alombro, the defendant, by
way of refund, the sum of $20,000 less the total sum cumulatively due to the plaintiff as reasonable compensation
for defendant's use and occupancy of the real property. Neither of the parties assailed the validity of the Amended
MTC Decision dated July 27, 2019, particularly the fifth instruction. Said instruction pertained to the restitution of
the money CH Lopez received from Charizza Alombro as a down payment for the sale of the subject property that
did not push through.

QUESTIONS:

(a) Is the amended decision of the MTC valid and within the coverage of Section 17, Rule 70 of the 1997
Rules of Civil Procedure? Explain.

(b) If both parties did not raise it on appeal to the Supreme Court, can the highest tribunal rule on the
matter which pertains to the jurisdiction of the MTC? Explain.

SUGGESTED ANSWERS:

(a) No. It is not one of the permissible reliefs in an ejectment case enumerated in Section 17, Rule 70 of
the 1997 Rules of Civil Procedure as amended. The instruction pertained to the restitution of the money CH
Lopez received from Charizza Alombro as down payment for the sale of the subject property that did not push
through. It is a subject matter beyond the jurisdiction of the MTC to resolve and a relief more than what the MTC
may award in an ejectment case. Under Section 17, Rule 70 of the Rules, if after the trial, the MTC finds that the
allegations of the complaint for ejectment are true, the reliefs that may be granted to the plaintiff in the judgment are
limited only to the following: (1) restitution of the premises; (2) the sum justly due as arrears of rent or as a
reasonable compensation for the occupation and use of the premises; (3) attorney's fees; and (4) costs. Any monetary
award beyond what is permissible under the Rules is beyond the jurisdiction of the MTC.

(b) Yes. Section 8, Rule 51 of the 1997 Rules of Civil Procedure provides: SECTION 8. Questions that
may be decided. — No error which does not affect the jurisdiction over the subject matter or the validity of the
judgment appealed from or the proceedings therein will be considered unless stated in the assignment of errors, or
closely related to or dependent on an assigned error and properly argued in the brief, save as the court may pass
upon plain errors and clerical errors. (7a)
As a rule, a judgment of a court upon a subject within its general jurisdiction, which is not before it by any
statement or claim of the parties, and is foreign to the issues submitted for its determination, is a nullity. No error
which was not assigned and argued may be considered unless such error is closely related to or dependent on an
assigned error or it affects the jurisdiction over the subject matter on the validity of the judgment. It is settled that
the courts have ample authority to rule on matters not raised by the parties in their pleadings if such issues are
indispensable or necessary to the just and final resolution of the pleaded issues.

The same also applies to issues not specifically raised by the parties. The Supreme Court, likewise, has broad
discretionary powers, in the resolution of a controversy, to take into consideration matters on record which the
parties fail to submit to the Court as specific questions for determination. Where the issues already raised also rest
on other issues not specifically presented, as long as the latter issues bear relevance and close relation to the former
and as long as they arise from matters on record, the Court has the authority to include them in its discussion of the
controversy as well as to pass upon them. In brief, in those cases wherein questions not particularly raised by the
parties surface as necessary for the complete adjudication of the rights and obligations of the parties and such
questions fall within the issues already framed by the parties, the interests of justice dictate that the Court consider
and resolve them.

SEC. 19.–IMMEDIATE EXECUTION OF JUDGMENT; HOW TO STAY THE SAME

Q. How may the immediate execution of judgment in ejectment case be stayed? Explain.

A. To stay the immediate execution of the said judgment, while the appeal is pending, the following
requisites must concur: (1) The defendant perfects his appeal; (2) He files a supersedeas bond; and (3) He
periodically deposits the rentals, which become due during the pendency of the appeal. The failure of the
defendant to comply with any of these conditions is a ground for the outright execution of the judgment, the duty of
the court in this respect being "ministerial and imperative." Hence, if the defendant-appellant perfected the appeal
but failed to file a supersedeas bond, the immediate execution of the judgment would automatically follow.
Conversely, the filing of a supersedeas bond will not stay the execution of the judgment if the appeal is not
perfected. Necessarily then, the supersedeas bond should be filed within the period for the perfection of the appeal.

Q. What is the effect of non-filing of supersedeas bond?

A. The requirement for the filing of a supersedeas bond is mandatory and so, if the bond is not filed,
the execution of the judgment is a ministerial duty of the court.

Q. When can execution of judgment a matter of right?

A. Execution will issue as a matter of right when: (a) the judgment has become final and executory;
(b) the judgment debtor has renounced or waived his right of appeal; or (c) the period for appeal has lapsed without
an appeal having been filed.

Q. What stage of the proceedings in ejectment that may be stayed by perfecting an appeal,
posting of supersedeas bond and periodically depositing the monthly rentals?

A. It is only the execution of the MeTC or Municipal Trial Courts’ judgment pending appeal
with the RTC, which may be stayed by compliance with the requisites provided in Section 19, Rule 70 of the
Rules of Court.

Q. If the government is the losing party in an ejectment suit, is it required to post a supersedeas
bond? Explain.

A. No. The government is exempt from posting supersedeas bond. When a case involves provable
rents or damages incurred by a government-owned or controlled corporation, the real party-in-interest is the
Republic of the Philippines. When the State litigates, it is not required to put up a bond for damages or even an
appeal bond either directly or indirectly through its authorized officers because it is presumed to be always solvent.
Thus, in the case of Sps. Badillo vs. Tayag and NHA, the Supreme Court held that: it would be unnecessary to
ask the NHA to file a bond because to do so would be to indirectly require the government to submit the bond.
And the State is not required to file a bond for the obvious reason that it is capable of paying its obligation.

Q. If the case is covered by the rules of summary procedure is hearing required? Explain.
 A. No. In cases governed by the Rules on Summary Procedure, no hearing is conducted; rather, the
parties are required to submit their respective position papers.

Q. How about if the case is on appeal to the RTC, what is required to decide the case? Explain.

A. On appeal to the RTC, the parties are required to submit their memoranda. The RTC should
decide the appeal on the basis of the records elevated by the MTC as well as the memoranda of the parties.

Q. Is partial execution in ejectment case allowed? Explain.

A. Yes. In order to avoid further injustice to a lawful possessor, an immediate execution of a judgment
is mandated and the court's duty to order such execution is practically ministerial. In the case of Liga vs. Allegro
Resources Corp., the Supreme Court sustained the partial execution of the balance of the rentals petitioner is
entitled, even if the case was still on appeal. The Supreme Court has previously sanctioned a similar partial
execution of the trial court's decision awarding damages in an ejectment suit at the instance of the plaintiff. Not only
is such an act procedurally sound, it also serves the ends of justice.

Q. Are good reasons required for the immediate execution of judgment once the RTC affirmed
the decision of the MTC, and even if an appeal has already been filed before the CA?

A. No. Section 19, Rule 70 of the 1997 Rules of Civil Procedure, without any qualification
whatsoever, has decreed the immediately executory nature of decisions of the RTC rendered in the exercise of its
appellate jurisdiction, involving cases falling under the Revised Rules on Summary Procedure. It requires no further
justification or even "good reasons" for the RTC to authorize execution, even if an appeal has already been filed
before the CA. Indeed, the provision does not even require a bond to be filed by the prevailing party to allow
execution to proceed. The rationale for this is the objective of the Revised Rules on Summary Procedure is to
achieve an expeditious and inexpensive determination of cases governed by it.

Q. In what instances do Section 19 and 21 Rule 70 of the 1997 Rules of Civil Procedure applies?

A. The applications are as follows: (1) Rule 70, Section 19 of the Rules of Court applies only when
the judgment of a Municipal Trial Court (and any same level court such as the MTCC) in an ejectment case is
pending appeal before the RTC. (2) When the RTC had already resolved the appeal and its judgment, in turn, is
pending appeal before the Court of Appeals, then Rule 70, Section 21 of the Rules of Court governs. (3) The Court
already pointed out in Northcastle Properties and Estate Corporation vs. Paas, that Section 19 applies only to
ejectment cases pending appeal with the RTC, and Section 21 to those already decided by the RTC. (4) According
to Rule 70, Section 21 of the Rules of 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." It no
longer provides for the stay of execution at such stage.

SEC. 13.–PROHIBITED PLEADINGS AND MOTIONS

Q. What are the prohibited pleadings and motions under Rule 70 of the 1997 Rules of Civil
Procedure?

A. The prohibited pleadings and motions are provided for by Sections 13, Rule 70 of the 1997 Rules
of Civil Procedure and Section 19 of the Rules of Summary Procedure: 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).

Q. Is a motion for Reconsideration a prohibited pleading under Rule 70 in relation to the Rules
of Summary Procedure?
 A. The prohibited Motion for Reconsideration is applicable only to judgment on the merits.
Interlocutory order can be subjected to Motion for Reconsideration. [Lucas vs. Fabros, A.M. No. MTJ-99-1226
(31 January 2000); Joven vs. CA, 212 SCRA 700 (1992)]

Q. Is a motion for extension of time to file Answer or responsive pleading allowed in cases
covered by the Rules of Summary Procedure? Explain.

A. No. It is a prohibited pleading. In the case of Alconera vs. Majaducon, the respondent Judge
granted defendant’s "Motion for Time to File Answer." Thus, respondent, in effect, violated Section 19(e) of the
Rule on Summary Procedure prohibiting motions for extension of time to file pleadings, affidavits or any other
paper. By granting it, he defeated the summary nature of the case. The Supreme Court through Mr. Justice Corona
said: As a member of the judiciary, respondent is supposed to know his law. The Code of Judicial Conduct
provides that "A judge shall be faithful to the law and maintain professional competence." Respondent was
sorely remiss in that obligation in at least one instance. His ignorance of procedure, manifest from the records,
properly fell under Section 8 of the Rule on Discipline of Judges of Regular and Special Courts, specifically
gross ignorance of the law or procedure.

Q. What is an interlocutory order? Explain.

A. An interlocutory order is one that does not finally dispose of the case and does not end the
Court’s task of adjudicating the parties’ contentions and determining their rights and liabilities as regards
each other, but obviously indicates that other things remain to be done by the Court. The word "interlocutory"
refers to something intervening between the commencement and the end of a suit, which decides some point or
matter but is not a final decision of the whole controversy. Interlocutory orders merely rule on an incidental issue
and do not terminate or finally dispose of the case as they leave something to be done before it is finally decided on
the merits.

Q. When can a petition for certiorari be allowed against interlocutory order for cases covered
by the Rules of Summary Procedure? Explain.

A. Where the assailed interlocutory order is patently erroneous and the remedy of appeal would not
afford adequate and expeditious relief, the Court may allow certiorari as a mode of redress.

RULE 71 – CONTEMPT
SEC. 1.–DIRECT CONTEMPT PUNISHED SUMMARILY

Q. Define contempt of court?

A. Contempt of court is defined as a disobedience to the court by acting in opposition to its

authority, justice, and dignity. It signifies not only a willful disregard or disobedience of the court's order, but such
conduct which tends to bring the authority of the court and the administration of law into disrepute or, in some
manner, to impede the due administration of justice. It is a defiance of the authority, justice, or dignity of the court
which tends to bring the authority and administration of the law into disrespect or to interfere with or prejudice
party-litigants or their witnesses during litigation

The power to punish for contempt is inherent in all courts and is essential to the preservation of order in
judicial proceedings and to the enforcement of judgments, orders, and mandates of the court, and consequently, to
the due administration of justice. "However, such power should be exercised on the preservative, not on the
vindictive, principle. Only occasionally should the court invoke its inherent power in order to retain that respect,
without which the administration of justice will falter or fail." Only in cases of clear and contumacious refusal to
obey should the power be exercised. Such power, being drastic and extraordinary in its nature, should not be
resorted to unless necessary in the interest of justice. (Harbour Centre Port Terminal, Inc., vs. La Filipina
Uygongco Corp. et al. (G.R. No. 240984); Romero vs. La Filipina Uygongco Corp, et al. (G.R. NO. 241120)
(September 27, 2021) (Second Division) [Hernando, J.].

Q. Distinguish civil from criminal contempt.

A. Civil and criminal contempt may be distinguished as follows: (a) Civil contempt is committed
when a party fails to comply with an order of a court or judge "for the benefit of the other party." Whereas a
criminal contempt is committed when a party acts against the court's authority and dignity or commits a forbidden
act tending to disrespect the court or judge. (b) In general, civil contempt proceedings should be instituted by an
aggrieved party, or his successor, or someone who has a pecuniary interest in the right to be protected. In criminal
contempt proceedings, it is generally held that the State is the real prosecutor. (c) In proceedings for criminal
contempt, the defendant is presumed innocent and the burden is on the prosecution to prove the charges beyond
reasonable doubt. In proceedings for civil contempt, there is no presumption, although the burden of proof is on
the complainant, and while the proof need not be beyond reasonable doubt, it must amount to more than a mere
preponderance of evidence. It has been said that the burden of proof in a civil contempt proceeding lies somewhere
between the criminal "reasonable doubt" burden and the civil "fair preponderance" burden.

Civil contempt proceedings seek to compel the contemnor to obey a court order, judgment, or decree
which he or she refuses to do for the benefit of another party. It is for the enforcement and the preservation of a
right of a private party, who is the real party in interest in the proceedings. The purpose of the contemner's
punishment is to compel obedience to the order. Thus, civil contempt is not treated like a criminal proceeding and
proof beyond reasonable doubt is not necessary to prove it. (Harbour Centre Port Terminal, Inc., vs. La Filipina
Uygongco Corp. et al. (G.R. No. 240984); Romero vs. La Filipina Uygongco Corp, et al. (G.R. NO. 241120)
(September 27, 2021) (Second Division) [Hernando, J.].

KINDS OF CONTEMPT (SECS. 1 AND 3)

Q. What are the two (2) kinds of contempt? Explain.

A. There are two (2) kinds of contempt punishable by law: (1) Direct contempt is committed when a
person is guilty of misbehavior in the presence of or so near a court as to obstruct or interrupt the proceedings before
the same, including disrespect toward the court, offensive personalities toward others, or refusal to be sworn or to
answer as a witness, or to subscribe an affidavit or deposition when lawfully required to do so. (2) On the other
hand, indirect contempt or constructive contempt is that which is committed out of the presence of the court,
which includes any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the
administration of justice.

Q. What is the nature of the contempt power of the courts?

A. The power of contempt is power assumed by a court or judge to coerce cooperation and punish
disobedience, disrespect or interference with the courts orderly process by exacting summary punishment.

Q. How should the contempt power of the court be exercised? Explain.

A. The power to punish for contempt of court should be exercised on the preservative and not on the
vindictive principle. As an extraordinary remedy of the court, a person may only be held in contempt unless it is
necessary to do so, in the interest of justice. Parties that contend for what they believe is right, in good faith, ought
not to be considered contumacious, regardless of the error in their beliefs.

PURPOSE AND NATURE OF EACH

Q. What is the purpose of court’s power of contempt? Explain.

A. The purpose of court’s power of contempt is in order to preserve order in judicial proceedings,
enforce its judgments, orders, and mandates. Ultimately, they have the power to administer justice. "Respect of the
courts guarantees the stability of their institution; without such guarantee, the institution of the courts would be
resting on a very shaky foundation."

Q. Between the contempt charge and the constitutional right to freedom of expression, which
will prevail?

A. The constitutional right to freedom of expression will prevail. In Roque vs. AFP Chief of
Staff, et al., supra, the High Court ruled: This Court will not freely infringe on the constitutional right to freedom of
expression. It may interfere, on occasion, for the proper administration of justice. However, the power of contempt
should be balanced with the right to freedom of expression, especially when it may have the effect of stifling
comment on public matters. Freedom of expression must always be protected to the fullest extent possible. When a
lawyer chooses to conduct his cases in as public a manner as in this case, it would be an abuse of our contempt
power to stifle the subject of his attention. A lawyer who uses the public fora as his battleground cannot expect to be
protected from public scrutiny. Freedom of speech and press should not be impaired through the exercise of the
power to punish for contempt of court unless there is no doubt that the utterances in question are a serious and
imminent threat to the administration of justice.

REMEDY AGAINST DIRECT CONTEMPT; PENALTY (SEC. 2 IN REATION TO SECS. 7-8)

Q. Is an order of direct contempt immediately executory? If No, what is is the available remedy?
Explain.

A. No. As may be gleaned from Section 2, Rule 70, an order of direct contempt is not immediately
executory. Squarely applicable is the case of Oclarit vs. Paderanga, when the Supreme Court ruled that— An order
of direct contempt is not immediately executory or enforceable. The contemner must be afforded a reasonable
remedy to extricate or purge himself of the contempt. Thus, in the 1997 Rules of Procedure, as amended, the Court
introduced a new provision granting a remedy to a person adjudged in direct contempt by any court. Such person
may not appeal therefrom, but may avail himself of certiorari or prohibition. In such case, the execution of the
judgment shall be suspended pending resolution of such petition provided the contemner files 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.

ALTERNATIVE ANSWER:

Section 2, Rule 71 of the 1997 Rules of Civil Procedure, provides for the remedy of certiorari or prohibition
since appeal is not available. Contempt proceeding is not a "civil action" but is a separate proceeding of a criminal
nature and of summary character in which the court exercises but limited jurisdiction. A charge for contempt of
court partakes of the nature of a criminal action even when the act complained of is an incident of a civil action. As
such, the mode of procedure and rules of evidence in contempt proceedings are assimilated as far as practicable to
those adapted to criminal prosecutions. Therefore, a judgment in contempt proceedings is subject to review only in
the manner provided for review of judgments in criminal cases. In fact, Section 11 of Rule 71 provides that the
appeal in contempt proceedings may be taken as in criminal cases. Hence, as in criminal proceedings, an appeal
would not lie from the order of dismissal of, or an exoneration from, a charge of contempt of court.

Q. What is the remedy of person cited for indirect contempt?

A. Person adjudge for indirect contempt could file an appeal under Rule 41 of the Rules of Court
on the Decision in the indirect contempt cases.

Q. What is the proper procedure in contempt proceedings? Explain.

A. In contempt proceedings, the respondent must be given the right to defend himself or herself
and have a day in court—a basic requirement of due process. This is especially so in indirect contempt
proceedings, as the court cannot decide them summarily pursuant to the Rules of Court. In Calimlim, it was held
that, in indirect contempt proceedings, the respondent must be given the opportunity to comment on the charge
against him or her, and there must be a hearing, and the court must investigate the charge and consider the
respondent’s answer.

SEC. 7.–PUNISHMENT FOR INDIRECT CONTEMPT

Q. What is the imposable penalty if a person is cited for indirect contempt of court by the RTC
or equivalent court?

A. Under Section 7, Rule 71, if the respondent is adjudged guilty of indirect contempt committed
against a Regional Trial Court or a court of equivalent or higher rank, he may be punished by a fine not exceeding
thirty thousand pesos (₱30,000.00) or imprisonment not exceeding six (6) months, or both.

Q. How about if a person is cited for indirect contempt by an MTC?

 A. If a person is adjudged guilty of contempt committed against a lower court, he may be punished by
a fine not exceeding five thousand pesos (₱5,000.00) or imprisonment not exceeding one (1) month, or both.

Q. How about for violation of writ of injunction, temporary restraining order or status quo
order, what is the imposable penalty?

A. The contemnor may 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.

Q. What are the functions of contempt? Explain.

A. Contempt proceeding has a dual function: (1) vindication of public interest by punishment of
contemptuous conduct; (2) coercion to compel the contemnor to do what the law requires him to uphold the power
of the Court, and also to secure the rights of the parties to a suit awarded by the Court. Contempt proceedings are
neither wholly civil nor altogether criminal. It may not always be easy to classify a particular act as belonging
to one of those two classes. It may partake of the characteristics of both. If it is remedial and coercive in nature,
it is civil; the parties are the individuals whose private rights and remedies they were instituted to protect or enforce.
The absence of wilfulness does not release one from civil contempt. It is civil if it is instituted to preserve and
enforce the rights and administer the remedies of the parties to which the court has to force them to obey.

SEC. 11.–REMEDY AGAINST INDIRECT CONTEMPT; PENALTY

Q. Is contempt a criminal offense?

A. No. Contempt is not a criminal offense.However, a charge for contempt of court partakes of the
nature of a criminal action. Rules that govern criminal prosecutions strictly apply to a prosecution for contempt. In
fact, Section 11 of Rule 71 of the Rules of Court provides that the appeal in indirect contempt proceedings may be
taken as in criminal cases. An alleged contemner should be accorded the same rights as that of an accused. Thus, the
dismissal of the indirect contempt charge against respondent amounts to an acquittal, which effectively bars a
second prosecution.

SEC. 4.–HOW CONTEMPT PROCEEDINGS ARE COMMENCED

Q. What are the two ways to initiate indirect contempt proceedings?

A. Indirect contempt proceedings may be initiated only in two (2) ways: (1) motu proprio by the
court; or (2) through a verified petition and upon compliance with the requirements for initiatory pleadings. The
procedural requirements are mandatory considering that contempt proceedings against a person are treated as
criminal in nature. Conviction cannot be had merely on the basis of written pleadings. It must be remembered that
the power to punish for contempt should be used sparingly with caution, restraint, judiciousness, deliberation, and
due regard to the provisions of the law and the constitutional rights of the individual. Based on the provisions of
Sections 3 to 4, Rule 71 of the 1997 Rules of Civil Procedure, indirect contempt can be initiated motu proprio by the
court itself or by filing a verified petition with full compliance with the requirements therefor.

Q. Can a respondent be convicted for indirect contempt based on the pleadings alone? Explain.

A. No. In the case of Silverio, Sr. vs. Silverio, Jr., it was held that therespondent in an indirect
contempt charge may not be convicted on the basis of written pleadings alone. Sections 3 and 4, Rule 71 of the
Rules of Court, specifically outline the procedural requisites before the accused may be punished for indirect
contempt: First, there must be an order requiring the respondent to show cause why he should not be cited for
contempt; Second, the respondent must be given the opportunity to comment on the charge against him; Third,
there must be a hearing and the court must investigate the charge and consider respondent's answer. Finally, only if
found guilty will respondent be punished accordingly. The law requires that there be a charge in writing, duly filed
in court, and an opportunity given to the person charged to be heard by himself or counsel. What is most essential is
that the alleged contemner be granted an opportunity to meet the charges against him and to be heard in his defenses.
This is due process, which must be observed at all times.

Q. Can indirect contempt be initiated orally? Explain.

 A. No. Indirect contempt is only punished after a written petition is filed and an opportunity to be
heard is given to the party charged. Thus, in Britania vs. Gepty (G.R. No. 246995, 22 January 2020)(First
Division)[Lazaro-Javier, J.], the High Court said: Verily, the trial court here should have outrightly dismissed
petitioner's oral charge of indirect contempt for not being compliant with Section 3, Rule 71 of the Rules of Court.
Contempt proceedings are penal in nature, thus, their procedure and rules of evidence adopted are similar to those
used in criminal prosecutions. Consequently, in case of doubt, the contempt proceedings should be liberally
construed in favor of the accused. A charge for indirect contempt, such as disobedience to a court’s lawful order, is
initiated either motu proprio by order of or a formal charge by the offended court, or 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.It cannot be initiated by a
mere motion.

The Supreme Court emphasized that the indirect contempt, not initiated by the court motu proprio, must be
commenced by a verified petition. It ratiocinated that even if the contempt proceedings emanated from a principal
case, still, the governing rules require that a petition be filed and treated independently of the main action. It stressed
that it is beyond doubt that the requirement of a verified petition in initiating an indirect contempt proceeding is a
mandatory requirement quoting the Court's earlier pronouncement in Regalado vs. Go.

Q. Is conviction for a crime of RTC Judge warrants his suspension while the case is on appeal?
Explain.

A. No. A judge’s conviction by the RTC does not necessarily warrant her suspension while her appeal
from such conviction is pending until the judgment has attained finality, she still enjoys the constitutional
presumption of innocence.

SEC. 3.–ACTS DEEMED PUNISHABLE AS INDIRECT CONTEMPT

Q. What are the acts deemed punishable for indirect contempt?

A. The acts deemed punishable for indirect contempt are provided by Section 3, Rule 71, viz: After a
charge in writing has been filed, and an opportunity given to the respondent to comment thereon within such period
as may be fixed by the court and to be heard by himself or counsel, a person guilty of any of the following acts may
be punished for indirect contempt: (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.

But nothing in this section shall be so construed as to prevent the court from issuing process to bring the
respondent into court, or from holding him in custody pending such proceedings. (3a) (SEC. 3, Rule 71)

Q. Can a personal letter addressed to the Court Administrator because of a lawyer’s

exasperation and mentioned "level of deceitfulness" of the ponente and that the decision can "poison the
minds of law students, be considered contemptuous? Explain.

A. Yes. The making of contemptuous statements directed against the Court is an abuse of the right to
free speech and degrades the administration of justice. Hence, the defamatory statements in the letter impaired
public confidence in the integrity of the judiciary and not just of the ponente alone. Generally, criticism of a court’s
rulings or decisions is not improper, and may not be restricted after a case has been finally disposed of and has
ceased to be pending. So long as critics confine their criticisms to facts and base them on the decisions of the court,
they commit no contempt no matter how severe the criticism may be; but when they pass beyond that line and
charge that judicial conduct was influenced by improper, corrupt, or selfish motives, or that such conduct was
affected by political prejudice or interest, the tendency is to create distrust and destroy the confidence of the people
in their courts. (Cagas vs. COMELEC, G.R. No. 209185, 25 February 2014)(En Banc)[Carpio, J.].

Q. Can a pleading filed by a lawyer to the court insinuating malicious statements against the
judge, be considered contemptuous?

A. Yes. A pleading containing derogatory, offensive or malicious statements submitted to the court or
judge in which the proceedings are pending is equivalent to “misbehavior committed in the presence of or so near a
court or judge as to interrupt the proceedings before the same” within the meaning of Rule 71, §1 of the Rules of
Court, and therefore, constitutes direct contempt.

Q. Is the malicious and unauthorized publication of administrative complaint against lawyers

constitute a contempt of court? Explain.

A. Yes. Malicious and unauthorized publication or verbatim reproduction of administrative complaints

against lawyers in newspapers by editors and/or reporters may be actionable. Such premature publication constitutes
a contempt of court, punishable by either a fine or imprisonment or both at the discretion of the Court. Contempt is
akin to a case of libel for both constitute limitations upon freedom of the press or freedom of expression guaranteed
by our Constitution. What is considered a privilege in one may likewise be considered in the other. As early as 1918,
the Supreme Court, in the case of United States vs. Cañete, ruled that publications, which are privileged for reasons
of public policy, are protected by the constitutional guaranty of freedom of speech. Therefore, the principle of
privileged communications can also be invoked in contempt charges.

SEC. 8.–WHEN IMPRISONMENT SHALL BE IMPOSED

Q. When can the court impose indefinite imprisonment against a person cited in contempt of
court? Explain.

A. Section 8, Rule 71 of the 1997 Rules of Civil Procedure provides for indefinite incarceration
in civil contempt proceedings to compel a party to comply with the order of the court. This may be resorted to
where the attendant circumstances are such that, the non-compliance with the court order is an utter disregard of
the authority of the court which has then no other recourse but to use its coercive power. The reason for
indefinite incarceration in civil contempt proceedings, in proper cases, is that it is remedial, preservative, or coercive
in nature. The punishment is imposed for the benefit of complainant or a party to a suit who has been injured. Its
object is to compel performance of the orders or decrees of the court, which the contemnor refuses to, obey although
able to do so. Imprisonment for civil contempt proceeding relates to something to be obeyed by the contemnor by
the compliance with which he may discharge himself. Thus, in civil contempt it is aptly said that the contemnor
carries the key of his prison in his pocket.

SEC. 12.–CONTEMPT AGAINST QUASI-JUDICIAL ENTITIES

Q. Which court has jurisdiction of contempt charges committed against quasi judicial agencies?
Explain.

A. The Regional Trial Court of the place wherein the contempt has been committed shall have
jurisdiction over such charges as may be filed therefor. Provided, however, that the quasi-judicial agency has no
specific rule for contempt proceedings. The Rules of Court has suppletory application.

Q. Can contempt charges committed against the HLURB be directly filed with the Supreme
Court?

A. No. Where contempt is committed against quasi-judicial entities, the filing of contempt charges in
court is observed only when there is no law granting contempt powers to these quasi-judicial entities.

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