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LEX LEONUM FRATERNITAS

Provisional Remedies / Special Civil Actions / Summary Procedure

DEAN WILLARD RIANO

PROVISIONAL REMEDIES
Provisional Remedies are temporary, auxiliary, and ancillary remedies available to a litigant for the protection and preservation of his rights while the main action is pending. They are not main actions. They presuppose the existence of a principal action. Court which grants provisional remedies The court grants or issues a provisional remedy is the court which has jurisdiction over the main action. When the main action is for support the provisional remedy of support pendente lite may not be granted by a MTC because the main action which is incapable of pecuniary estimation is within the jurisdiction of the RTC or the Family Court. Kinds of provisional remedies 1. 2. 3. 4. 5. Preliminary attachment Preliminary injunction Receivership Replevin Support pendent elite

The attachment is preliminary only when resorted to before the finality of the judgment to secure the property of the adverse party and to prevent its dissipation. Once the judgment has become final and executory, the attachment becomes a final one and is issued in order to satisfy the judgment. Purpose of preliminary attachment 1. seize the property of the debtor before final judgment and put the same in cusodia legis even while the action is pending for the satisfaction of a later judgment; or to enable the court to acquire jurisdiction over the res or the property subject of the action in cases where service in person or any other service to acquire jurisdiction over the defendant cannot be effected.

2.

Garnishment a kind of attachment in which the plaintiff seeks to subject either the property of the defendant in the hands of a third person called the garnishee, tho his claim or the money which said person owes the defendant. Garnishment does not involve the actual seizure of the property which remains in the hands of the garnishee. Garnishment simply impounds the property in the garnishees possession and maintains the status quo until the main action is finally decided. Jurisdiction over the garnishee is acquired by the mere service upon him of the copy of the writ of garnishment with a notice that his debt to the defendant or other personal property of the defendant under his control or possession is attached pursuant to the writ. Levy on execution is the writ issued by the court after judgment by which the property of the judgment obligor is taken into the custody of the court before the sale of the property on execution for the satisfaction of a final judgment. 1

The enumeration is not exclusive. Ex. Temporary custody of the child, deposit.

I. Preliminary attachment
Preliminary attachment - is a provisional remedy issued upon order of the court where an action is pending to be levied upon the property of the defendant so the property may be held by the sheriff as security for the satisfaction of whatever judgment may be rendered in the case. There is no separate action called preliminary attachment. Attachment places the property under custodia legis. A defendant who asserts a counterclaim, a cross-claim or a third-party claim may also avail of the remedy.

By Nikko G. Lagmay San Sebastian Law

LEX LEONUM FRATERNITAS


Provisional Remedies / Special Civil Actions / Summary Procedure

DEAN WILLARD RIANO


Cases in which preliminary attachment is proper See sec 1 Rule 57. The enumeration should be deemed exclusive. A mere action to collect a sum of money is not one of those cases enumerated. A writ of attachment cannot be issued for moral and exemplary damages and other unliquidated and contingent claims. The application for preliminary attachment should show that the defendants departure from the Philippines must be with the corresponding intent to defraud the creditors. When to apply for a preliminary attachment a. b. at the commencement of the action, or at any time before entry of judgment. Requisites for the issuance of an order/writ of preliminary attachment 1. 2. 3. the case must be any of those where preliminary attachment is proper; the applicant must file a motion (ex parte or with notice and hearing) the applicant must show by affidavit that there is not sufficient security for the claim sought to be enforced the applicant must post a bond (attachment bond) executed to the adverse party.

4.

Grant of preliminary attachment, discretionary How to prevent the attachment If the attachment has not yet been effected, the party whose property is sought to be attached, may prevent the attachment by doing either two things: 1. by depositing with the court from which the writ was issued an amount equal to the value of the bond fixed by the court in the order of attachment or an amount equal to the value of the property to be attached, exclusive of costs, or 2. by giving a counter-bond How to have the attachment discharger If the attachment has already been enforced, the party whose property has been attached may file a motion to discharge the attachment, with notice and hearing, and after making a cash deposit or files a counter-bond. Attachment may be discharged without the need of a filing of a counterbond. This is possible when the party whose property has been attached files a motion to set aside or discharge the attachment and during the hearing of the motion, he proves that: 1. the attachment was improperly or irregularly issued or enforced, or 2. that the bond of the attaching creditor is insufficient, or 2

Ex parte issuance of writ It may be issued upon notice and hearing. It may be issued ex parte and even before summons is served upon the defendant. However, it may not be enforced and may not be validly implemented unless preceded by a service of summons upon the defendant, or simultaneously accompanied by service of summons, a copy f the complaint, the application for attachment, the order of attachment and the attachment bond. Implementation of the writ without the required jurisdiction over his person is null and void. The writ is improperly implemented if is was served prior to the service of summons.

By Nikko G. Lagmay San Sebastian Law

LEX LEONUM FRATERNITAS


Provisional Remedies / Special Civil Actions / Summary Procedure

DEAN WILLARD RIANO


3. 4. that the attachment is excessive and must be discharged as to the excess, or that the property is exempt from execution.

II. Preliminary Injunction


Preliminary injunction is an ancillary or preventive remedy where a court requires a person, a party or even a court or tribunal either to refrain (prohibitory) from or to perform (mandatory) particular acts during the pendency of the action. Its sole objective is to preserve the status quo until the merits of the case can be heard fully. See sec 3 Rule 58 The evidence to be submitted by the plaintiff need not be conclusive and complete. The plaintiffs are only required to show that they have an ostensible right to the final relief prayed for in their complaint. Findings of the trial court granting or denying a petition for a writ of preliminary injunction based on the evidence on record are merely provisional until after the trial on the merits of the case shall have been concluded. Main action for injunction distinguished from preliminary injunction The former is an independent action. The latter can only exist as an incident to a principal action. The main action seeks a judgment embodying a final injunction. A preliminary injunction seeks to preserve the status quo until the merits are heard. Purpose of preliminary injunction To preserve the status quo or to prevent future wrongs in order to preserve and protect certain interests or rights during the pendency of the action. When the injunction sought is mandatory, a writ of preliminary injunction tends to do more than to maintain the status quo because it commands the performance of specific acts and is issued only in cases of extreme urgency and where the right of the applicant is clear.

Damages for wrongful attachment Damages may be awarded on account of improper irregular or excessive attachment. Even the party who loses in the main case but is able to establish a right to damages by reason of improper, irregular or excessive attachment may be entitled to damages. An improper, irregular or excessive attachment is not validated by the fact that the attaching party prevailed in the main action. Attachment or property under custodia legis Property in custodial egis may be subject to a writ of preliminary attachment. The attachment on a property already in custodial egis merely operates as a lien and does not mean that the attaching court will wrest custody of the property from another court. There is no rule which prohibits the attachment of a property previously attached. What will arise will be a priority in the liens which means that the first attachment will have priority over subsequent attachments. Proceedings where property attached is claimed by a third person He may avail of the remedy called terceria by making an affidavit of his title thereto or his right to possession thereof, stating the grounds of such right or title. The third party claimant is not precluded by the rules from vindicating his claim to the property in the same or in a separate action.

By Nikko G. Lagmay San Sebastian Law

LEX LEONUM FRATERNITAS


Provisional Remedies / Special Civil Actions / Summary Procedure

DEAN WILLARD RIANO


Preliminary injunction distinguished from final injunction An injunction is preliminary when it refers to the writ secured before the finality of the judgment. It is final when it is issued as a judgment making the injunction permanent. It perpetually restrains a person form the continuance or commission of an act and confirms the previous preliminary injunction. Prohibitory and mandatory injunctions Prohibitory injunction when its purpose is to prevent person from the performance of a particular act. Here, the acts has not yet been performed. Mandatory injunction when its purpose is to require a person to perform a particular act. Here, the act has already been performed and this act has violated the rights of another. Stage of proceedings when granted It is granted at any stage of the proceedings prior to the judgment or final order. Court who issues preliminary injunction It must be applied for and issued by the court where the action is pending. If the action is pending in the CA or SC, it may be applied for and issued by such courts or any member thereof. This is a situation where a member of the court may issue a writ of preliminary injunction without the participation of other members of the court. Requisites for the issuance of a writ of preliminary injunction or temporary restraining order 1. 2. there must be a verified application the applicant must establish that he has a right to relief, or a right to be protected, and the act against which the injunction is directed is violative of such right the applicant must establish that there is a need to restrain the commission or continuance of the 4. acts and if not enjoined would work injustice to the applicant the applicant must post a bond, unless exempted

Quantum of evidence required The evidence to be submitted by the plaintiff need not be conclusive and complete. The plaintiffs are only required to show that they have an ostensible right to the final relief prayed for in their complaint. Mere prima facie evidence is needed. Notice and hearing A writ of preliminary injunction cannot be issued without prior notice and hearing. Subject to the rules governing matters of extreme urgency, it cannot be issued ex parte. Temporary Restraining Order It if shall appear from facts shown by affidavits or by verified application that great or irreparable injury would result to the applicant before the matter can be heard on notice, the court in which the application for preliminary injunction was made ma issue a TRO ex parte for a period not exceeding 20 days from service to the party sought to be enjoined. Within said 20 days, the court shall determine whether or not the preliminary injunction shall be granted and then shall issued the corresponding order. The applicant shall file a bond, unless exempted by the court. If the matter is of extreme urgency, the executive judge of a multisala court or the presiding judge of a single-sala court may issue a TRO effective for only 72 hours from issuance, not service. When the court is a multi-sala court, the TRO is not to be issued by any 4

3.

By Nikko G. Lagmay San Sebastian Law

LEX LEONUM FRATERNITAS


Provisional Remedies / Special Civil Actions / Summary Procedure

DEAN WILLARD RIANO


other judge than the executive judge of said court. The rule against non-extendibility of the 20 day effectivity of the TRO is absolute if issued by the RTC. What is a TRO and how does it differ from a writ of preliminary injunction? A TRO is an order to maintain the status quo between or among the parties until the determination of the prayer for a writ of preliminary injunction. A writ of preliminary injunction cannot be granted without notice and hearing. A TRO may be granted ex parte. Issuance of TRO by CA and SC A TRO may be issued by the CA or any member thereof. It shall be effective for 60 days from notice to the party sought to be enjoined. 60 day lifetime of the TRO is not extendible and automatically expires. No judicial declaration that it has expired is necessary. A second TRO by the CA after the expiration of the 60 day period is a patent nullity. Nature of an order granting a preliminary injunction The issuance of a writ of preliminary in junction rests entirely within the discretion of the trial court and is generally not interfered with except in cases of manifest abuse. An order granting a writ of preliminary injunction is an interlocutory order, hence, not appealable. The remedy is certiorari. Examples of cases justifying the issuance of a writ of preliminary injunction 1. when a petition for certiorari under Rule 65 is filed. The filing of a petition does not interrupt the principal action unless a TRO or a writ of preliminary injunction has 8. 4. 2. been issued against the respondent tribunal or officer. when a petition for relief under Rule 38 is filed. Assuming that the prevailing party has not yet filed a motion for an order of execution, the pendency of a petition for relief will not prevent the execution of judgment. a preliminary mandatory injunction may be availed of to restore the plaintiff on his possession in a complaint for forcible entry or unlawful detainer.

3.

Examples in which injunction/preliminary injunction will not be issued 1. 2. cases growing out of a labor dispute. It is the NLRC that issues an injunction. RA no. 8735 and PD 1818 regarding execution or implementation of government infrastructure projects, essential government projects, including arrastre and stevedoring operations against the Presidential Agrarian Reform Council or any of its agencies in any case connected with the application, implementation or enforcement of the CARP. a court may not interfere by injunction with the orders of another court of co-equal rank or decrees of a court with concurrent or coordinate jurisdiction. RTC may not issue injunction against quasi-judicial bodies of equal rank such as the Social Security Commission, and SEC. RTC may not issue injunction against IPO, COMELEC, Workmens Compensation Commission. no court shall have authority to grant an injunction to restrain the collection of any national internal revenue tax, fee or charge imposed by the code. injunction will not lie to restrain a criminal prosecution except: a. to afford protection to the constitutional rights of the accused; 5

3.

5.

6. 7.

By Nikko G. Lagmay San Sebastian Law

LEX LEONUM FRATERNITAS


Provisional Remedies / Special Civil Actions / Summary Procedure

DEAN WILLARD RIANO


b. when necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions; when double jeopardy is clearly apparent; where the charges are manifestly false and motivated by lust for vengeance; or there is no prima facie case against the accused and a motion to quash on that ground has been denied. Rule 59 presupposes that there is an action and that property subject of the action requires its preservation. In an action for the foreclosure of a mortgage, the court may appoint a receiver if it can be shown that the property mortgaged is in danger of being wasted and dissipated or materially injured, and that its value is probably insufficient to discharge the mortgage debt. Receivership is not available in a mere suit for collection of a sum of money. It is available when the property or fund that is the subject of the litigation is in danger of being lost, removed or materially injured. Court that can grant receivership By the court where the action is pending, by the CA, SC, or any member of the CA or SC. Procedure for appointment or receiver 1. 2. 3. 4. 5. A verified application must be filed by the party applying for the appointment of a receiver; the applicant must have an interest in the property or funds subject of the action; the applicant must show that the property or funds is in danger of being lost, wasted or dissipated; the application must be with notice and must be set for hearing; before issuing the appointment of a receiver, the court shall require the applicant to post a bond in favor of the adverse party; the receiver shall also file a bond; before entering his duties, the receiver must be sworn to perform his duties faithfully.

c. d.

e.

How to dissolve a writ of preliminary injunction or a restraining order The party may file a motion to dissolve the injunction or TRO with notice and hearing of the motion upon showing of affidavits that the person enjoined would suffer irreparable damage while the applicant can be fully compensated for such damages he may suffer. The movant must also file a bond conditioned upon the payment of all damages which the applicant may suffer by the dissolution of the injunction or restraining order. If it appears that the extent of the preliminary injunction or restraining order is too great, it may be modified.

III. RECEIVERSHIP
Nature The purpose of receivership as a provisional remedy is to protect and preserve the rights of the parties during the pendency of the main action, during the pendency of an appeal or as an aid in the execution of a judgment when the writ of execution has been returned unsatisfied. The receivership in Rule 59 is directed to the property which is the subject of the action and does not refer to the receivership authorized under the banking laws and other rules or laws.

6. 7.

Powers of receiver See sec 6 Rule 59. Investment of funds by receiver A receiver may not invest funds without an order from the court and without the written consent of the parties to the action. 6

By Nikko G. Lagmay San Sebastian Law

LEX LEONUM FRATERNITAS


Provisional Remedies / Special Civil Actions / Summary Procedure

DEAN WILLARD RIANO


Suits against a receiver No action may be filed against a receiver without leave of the court which appointed him. Appointment of a party as receiver A party to a litigation is supposed to he a disinterested person hence, neither party to the litigation should be appointed as a receiver without the consent of the other. 5. 6. taken for tax assessment, or otherwise in custodia legis. the affidavit must state the actual market value of the property the applicant must give a bond, executed to the adverse party and double the value of the property.

Replevin cannot be available when the property is in custodia legis or has been seized pursuant to law. How adverse party can seek the return of the property If within 5 days from the taking of the property by the sheriff, the adverse party decides to have the property back, he may require the return thereof by: a. filing with the court where the action is pending a redelivery bond, executed to the applicant, in double value of the property conditioned upon the payment of such sum as may be recovered against the adverse party, and b. by serving a copy of such bond on the applicant. V. Support Pendente Lite Support pendent elite is an amount of support provisionally fixed by the court in favor of the person or persons entitled thereto during the pendency of an action for support. It may be granted in either two instances: 1. action for support; or 2. in a criminal action where civil liability includes support for the offspring provided the civil aspect has not been waived, reserved or instituted prior to its filing. It may be filed at the commencement of the action or at any time prior to the judgment or final order. The application requires a hearing. The adverse party must comply with the order to give support pendente lite, if he does not, an order of execution 7

IV. REPLEVIN
Replevin may be a main action or a provisional remedy. As a principal action, its ultimate goal is to recover personal property capable of manual delivery wrongfully detained by a person. The main action for replevin is primarily possessory in nature and generally determines nothing more than the right of possession. Seeking to have possession of the property prior to the determination of the action is the provisional remedy of replevin and not the main action for replevin. Procedure for the application for replevin 1. a party praying for the provisional remedy of replevin must file an application for a writ of replevin. His application for the writ must be filed at the commencement of the action or at any time before the defendant answers. the application must contain an affidavit where the applicant particularly describes the property that he is the owner of the property or that he is entitled to the possession. the affidavit must state that the property is wrongfully detained by the adverse party, alleging therein the cause of the detention. the affidavit must state that the property has not been distrained or

2.

3.

4.

By Nikko G. Lagmay San Sebastian Law

LEX LEONUM FRATERNITAS


Provisional Remedies / Special Civil Actions / Summary Procedure

DEAN WILLARD RIANO


shall be issued by the court either motu proprio or upon motion. He may also be liable for contempt. When the judgment finds that the person giving support is not liable therefore, the court shall order the recipient to make a restitution of what has been received with legal interest from the date of actual payment. Should the recipient fail to do so, the person who gave the support may file an action against the person legally obliged to give support. It is filed by the person against whom the conflicting claims are made. He shall pay the docket fees. The petitioner need not have a cause of action. The petition cannot be dismissed on the ground that there is failure to state a cause of action. Upon filing of the complaint and the payment of the docket feds, the court shall issue an order requiring the conflicting claimants to interplead with one another. In that same order, the court may include an order directing that the subject matter of the action be paid or delivered to the court. Within the time for filing an answer, each claimant may file a motion to dismiss. The ground relied upon may be any of the grounds in Rule 16 or, as provided in Rule 62, impropriety of the action for interpleader. Court with jurisdiction If the subject matter is personal property, valued not more than 300k or 400k, the MTC has jurisdiction. If the subject matter is real property with an assessed value not more than 20k or 50k, the MTC has jurisdiction.

SPECIAL CIVIL ACTIONS


Preliminaries Although a SCA and an ordinary civil action are governed by the rules of ordinary civil actions, there are certain rules that are applicable only to SCA. An ordinary civil action must be based on a cause of action. The cause of action as required and defined in an ordinary civil action finds no application to the SCA of declaratory relief.

I. INTERPLEADER
An interpleader is a SCA filed by a person against whom two conflicting claims are made upon the same subject matter and over which he claims no interest, to compel the claimants to interplead and to litigate their conflicting claims against themselves. 1. Requisites: there must be 2 or more claimants with adverse or conflicting interests to a property in the custody or possession of the plaintiff; the plaintiff in an action for interpleader has no claim upon the subject matter of the adverse claims or if he has an interest at all, such interest is not disputed by the claimants; the subject matter of the adverse claims must be one and the same.

II. DECLARATORY RELIEF AND OTHER SIMILAR REMEDIES


Preliminaries Rule 63 covers 2 types of actions; a. petition for declaratory relief, b. similar remedies. 1. 2. 3. The similar remedies are: action for reformation of instrument; action to quiet title; action to consolidate ownership under Art 1607

2.

3.

subject matter in a petition for declaratory relief; 1. deed 2. will 8

By Nikko G. Lagmay San Sebastian Law

LEX LEONUM FRATERNITAS


Provisional Remedies / Special Civil Actions / Summary Procedure

DEAN WILLARD RIANO


3. 4. 5. 6. 7. contract or other written instrument statute executive order or regulation ordinance any other governmental regulation. The question raised is a question of construction or validity arising under an instrument or statute. The judgment in a declaratory relief is said o stand by itself and no executory process follows as of course. Petitioner and other parties If the subject matter is a deed, will, contract or other written instrument, the petitioner is the person interested in the same. Ex. Parties, assignees, heirs. If it be a statute, executive order, regulation or ordinance, the petitioner is one whose rights are affected by the same. Where the action involves the validity of a local government ordinance, the corresponding prosecutor or attorney of the LGU involved shall be similarly notified and entitled to be heard. If such ordinance is alleged to be unconstitutional, the sol-gen shall also be notified and entitled to be heard. Filing before any breach or violation; justiciable controversy The petition for declaratory relief is filed before there occurs any breach or violation of the deed, contract, statute, ordinance or executive order or regulation. It will not prosper when brought after a contract or a statute has already been breached or violated. If there has already been a breach, the appropriate civil action, not declaratory relief, should be filed. When the breach however occurs not before the filing of the petition for declaratory relief but after the action has been constituted and during its pendency, the action is not to be dismissed but may be converted into an ordinary action and the parties shall be allowed to file such pleadings as may be necessary or proper. Summary of requisites for the petition a. thee must be a justiciable controversy; 9

The enumeration of the subject matter is exclusive. An action not based on any of the enumerated subject matters cannot be the proper subject of declaratory relief. Even if the subject is one enumerated under the Rules, where the contract or statute is clear in its terms and there is no doubt as to its meaning and validity, a petition for declaratory relief is improper. There would be no need for construction or a declaration of rights thereunder. Whether or not the student is to be conferred with Latin honors is not a proper subject of the petition. Court with jurisdiction RTC. It is incapable of pecuniary estimation. It would be an error to file the petition with the SC which has no original jurisdiction to entertain a petition for declaratory relief. Purpose of petition To secure an authorative statement of the rights and obligations of the parties under a contract or a statute for their guidance in the enforcement or compliance with the same. To seek for a judicial interpretation of an instrument of\r for a judicial declaration of a persons rights under a statute and not to ask for affirmative reliefs like injunction, damages or any other relief beyond the purpose of the petition as declared under the rules. It is not brought to settle issues arising from a breach because after the breach of the contract or statute, the petition can no longer be brought.

By Nikko G. Lagmay San Sebastian Law

LEX LEONUM FRATERNITAS


Provisional Remedies / Special Civil Actions / Summary Procedure

DEAN WILLARD RIANO


b. c. d. the controversy must be between persons whose interests are adverse; the party seeking the relief must have a legal interest in the controversy; and that the issue is ripe for judicial determination. ownership of the property in the person of the vendee or buyer but for the registration of the property. The lapse of the redemption period without the seller a retro exercising his right of redemption, consolidated ownership or title upon the person of the vendee by operation of law. Art 1607 requires the filing of the petition to consolidate ownership because the law precludes registration of the consolidated title without a judicial order. Quieting of title The action is brought to remove a cloud on title to real property or any interest therein. The plaintiff need not be in possession of the real peal property before he may bring the action as long as he can show that he has a legal or an equitable title to the property which is the subject matter of the action.

Reformation of an instrument An action for reformation is not an action brought to reform a contract but to reform the instrument evidencing the contract. The action for reformation presupposes that there is nothing wrong in the contract. The contract is to be reformed because despite the meeting of minds, the instrument which is supposed to embody the agreement of the parties does not reflect their true agreement by reason of mistake, fraud, inequitable conduct or accident. Where the consent of a party has been vitiated, the remedy is not to bring an action for reformation of the instrument but to file an action for annulment of the contract. Reformation of the instrument cannot be brought to reform any of the following: 1. unconditional simple donations inter vivos; 2. wills; or 3. when the agreement is void. Consolidation of ownership Under the law, a contract of sale may be extinguished either by legal redemption or conventional redemption. Where redemption is not made within the period agreed upon, in case the subject matter of the sale is real property, art 1607 of the CC provides that consolidation of ownership in the vendee shall not be recorded in the Registry of Property without a judicial order, after the vendor has been duly heard. The action to consolidate ownership is not for the purpose of consolidating the

III. REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE COMELEC AND THE COMISSION ON AUDIT
Remedy A party aggrieved by the judgment, final order or resolution of the COMELEC or Commission on Audit may file a petition for certiorari under Rule 65 with the SC. The petition cannot question the findings of fact of the commission involved where such finding are supported by substantial evidence. Such findings when so supported are final and non-reviewable. The petitioner must anchor the petition on jurisdictional grounds since the mode of review is under Rule 65. The period for filing of the petition for certiorari assailing the judgment of the COMELEC and COA is shorter. Under 64,

By Nikko G. Lagmay San Sebastian Law

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LEX LEONUM FRATERNITAS


Provisional Remedies / Special Civil Actions / Summary Procedure

DEAN WILLARD RIANO


the petition shall be filed within 30 days from notice of judgment. Under 65, 60 days. The petition shall contain a sworn certification against forum shopping. While the filing of a MR or a MNT shall interrupt the period for the filing of the petition, the filing of the petition itself shall not have the effect of staying the judgment, final order or resolution of the COMELEC or the COA, unless the SC shall declare otherwise. A TRO or writ of preliminary injunction must be obtained to prevent the execution of the judgment. Certiorari is an extraordinary remedy available only when there is no appeal, nor any plain, speedy or adequate remedy in the ordinary course of law. Purpose and function of certiorari A petition for certiorari under Rule 65 is intended to rectify errors of jurisdiction but not errors of judgment. Only jurisdictional questions may be raised including matters of grave abuse of discretion which are equivalent to lack of jurisdiction. It is designed to correct errors of jurisdiction. The function of a writ of certiorari is to keep inferior courts within the bounds of their jurisdictions or to prevent them from committing such a grave abuse of discretion amounting to excess of jurisdiction. Certiorari not substitute for lost appeal It is a remedy of last recourse and is limited form of review. Certiorari cannot be allowed when a party to a cse fails to appeal a judgment desptie the availability of that remedy, certiorari not being a substitute for lost appeal. When certiorari is available despite the loss of appeal 1. 2. 3. 4. when public welfare and the advancement of public policy dictates; when the broader interest of justice so requires; when the writs issued are null and void; when the questioned order amounts to an oppressive exercise of judicial authority.

IV CERTIORARI, PROHIBITION AND MANDAMUS (65)


A. CERTIORARI Nature of the remedy A petition for certiorari under Rule 65 is a special civil action. It is an original action independent from the principal action. It is not part or continuation of the trial which resulted in the rendition of the judgment complained of. It is not a mode of appeal where the appellate court reviews the errors of fact or law committed by the lower court. The issue under Rule 65 is whether or not the lower ocurt acted without or in excess of jurisdiction or with grave abuse of discretion. This remedy is extraordinary and its use is restricted to truly extraordinary cases. The filing of a petition for certiorari does not interrupt the course of the principal action nor the running of the reglementart periods involved in the proceeding, unless an application for a restraining order or a writ of preliminary injunction to the appellate court is granted. It does not interrupt the reglementary period for the filing of an answer. It does not interrupt the courts of the case where there is no writ of injunction.

Requisites for a petition for certiorari 1. that the petition is directed against a tribunal, board or officer exercising judicial or quasi0judicial functions; that such tribunal, board or officer has 11

2.

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LEX LEONUM FRATERNITAS


Provisional Remedies / Special Civil Actions / Summary Procedure

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acted without or in excess of jurisdiction or with grave abuse of discretion; 3. that there is no appeal nor any plain, speedy and adequate remedy in the ordinary cours of law; that petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping; that the petition must be verified and filed in the proper court within the reglementary period; that the petitioner must, as a general rule, file the petition after a prior motion for reconsideration. Grave abuse of discretion Certiorari will not lie when there is a mere abuse of discretion by the tribunal, board or officer exercising judicial or quasijudicial functions. Such kind of abuse does not amount to lack or excess of jurisdiction. For certiorari to lie, the abuse must be "grave". By GRAVE ABUSE of discretion is meant by capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. It means such capricious and whimsical exercise of judgment by the tribunal exercising judicial or quasi-judicial functions as to amount to lack of power. Absence of appeal or any plain, speedy and adequate remedy although the extraordinary remedy of certiorari is not proper when an appeal is available, by way of execption, it may be allowed when it can be shown that appeal would be inadequate, slow, insufficient, and will not promptly relieve a party from the injurious effects of the order complained of. Certiorari cannot co-exist with an appeal, these remedies being mutually exclusive. Exception: Although the extraordinary remedy of certiorari is not proper when an appeal is available, it may be allowed when it can be shown that appeal would be inadequate, slow, insufficient, and will not prompltly relieve a party from the injurious effects of the order compained of. Excess of jurisdiction There is excess of jurisdiction where the respondent, having clothed with the power to determine the case, oversteps his authority as determined by law. Necessity for a motion for reconsideration

4.

5.

6.

Judicial and quasi-judicial functions A petition for certiorari is directed against a tribunal, borad or officer exercising judicial or quasi-judicial functions. If the board, tribunal or officer dose not exercise either a judicial or quasi-judicial functions. Certiorari will not lie against its acts. A petition for certiorari is availanle against administrative agencies. Jurisdictional Issue A petition for certiorari must be based on jurisdictional grounds because as long as the respondent acted with jurisdiction, any erroe committed by him or it in the exedrcvise thereof will amount to nothing more than an error of judgment which may be reviewed or corrected by appeal. In a petition for certiorari, the SC does not sit as an arbiter of facts. It is not its function to re-examine every appreciation of facts made by the trial and appellate courts unless the evidence on record does not support their findings or the judgment is based on a misappreciation of facts. A petition for certiorari does not include an inquiry as to the correctness of the evaluation of the evidence. Factual issues are not proper subjects of a petition for certiorari.

By Nikko G. Lagmay San Sebastian Law

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LEX LEONUM FRATERNITAS


Provisional Remedies / Special Civil Actions / Summary Procedure

DEAN WILLARD RIANO


The filing of a motion for reconsideration is a condition sine qua non to the filing of a petition for certiorari The rule requiring a prior MR is intender to allow the tribunal, board or officer to rectify the errors it may have lapsed into. Filing a petition for certiorari without first moving for reconsideration of the assailed resolution generally warrants the outright dismissal of the petition. Exceptions: 1. where the order is a patent nullity, as where the court a quo has no jurisdiction; where the questions raised in the certiorari proceeding have been duly raised and passed by the lower court, or are the same as those raised and passed upon in the lower court; where there is an urgent necessity for the resolution of the questions and any further delay would prejudice the interests of the government or the petitioner; where the subject matter of the action is perishable; where under the circumstances, a MR would be useless; where petitioner was deprived of due process and there is extreme urgency for relief; where, in a criminal case, relief from order of arrest is urgent and the granting of such relief by the court is improbable; where the proceedings in the lower court are a nullity for lack of due process; where the proceedings was ex parte or in which the petitioner had not opportunity to object; The person aggrieved may file a verified petition in the proper court alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of the tribunal, board or officer, and granting such incidental reliefs as law and justice may require. The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject of the petition, copies of all relevant pleadings and documents, and a sworn certification of non-forum shopping. The petition is to be filed within 60 days from notice of the judgment, order or resolution. In case a MR or a motion for NT is timely filed, whether such motion is required or not, the 60 day period shall be counted from notice of the denial of said motion. No extension of time to file the petition shall be granted except for compelling reason and in no case exceeding 15 days. Where to file the petition RTC, CA, Sandiganbayan, Sc. If the petition relates to the acts or omissions of a lower court or a corporation, board, or officer of person, then the petition shall be filed with the RTC exercising jurisdiction over the territorial area as defined by the SC. The petition may also be filed in the CA whether or not the same is in aid of its appellate jurisdiction. If it involves the acts or omissions of a quasi-judicial agency, the petition shall be filed in and cognizable only by the CA, unless otherwise provided by law or by the Rules. The petition may be filed in the Sandiganbayan if it is in aid of its appellate jurisdiction. Parties to the petition The petition shall be filed by the aggrieved person. It pertains to the person who was a party in the proceeding before the lower 13

2.

3.

4. 5. 6.

7.

8. 9.

10. Where the issue raised is one purely of law or when public interest is involved. The exceptions to the rule in a certiorari proceeding, dispensing with a motion for reconsideration prior to the filing of a MR, do not apply to election cases, where a MR is mandatory to elevate the case to the COMELEC en banc. How to avail of the remedy

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court and not any person who feels injured by the lower courts order. Where the petition relates to the acts or omissions of a judge, court, quasi-judicial agency, tribunal, corporation, board, officer or person, the petitioner shall join as private respondent/s, the persons interested in sustaining the proceedings in the court. The private respondent/s should appear and defend not only in his or their own behalf but also in behalf of the public respondent/s affected by the proceedings. If costs are awarder in favor of the petitioner, such costs shall be against the private respondent/s only and not against the public respondent/s. The public respondent/s shall not appear in or file an answer or comment to the petition or any pleading therein, unless specifically directed by the court where the action is pending. Order to comment If the petition is sufficient in form and substance to justify such process, the court shall issue an order requiring the respondents to comment on the petition within 10 days from receipt of a copy thereof. In petitions for certiorari before the SC and the CA, the respondent may also be required to file a comment to the petition and not a motion to dismiss. Thereafter, the court may require the filing of a reply and such other responsive or other pleadings as it may deem necessary and proper. Proceedings after comment; Relief After the comment or other pleadings are filed, the court may hear the case or require the parties to submit memoranda. If after such hearing or submission of memoranda, the court finds the allegations of the petition are true, it shall render judgment for the relief prayed for or to which the petitioner is entitled. The relief means that the judgment, order or resolution subject of the petition is annulled or modified. If the court finds the petition to be patently without merit, prosecuted B. PROHIBITION Prohibition is an extraordinary writ commanding a tribunal, corporation, board or person, whether exercising function that are judicial, quasi-judicial or ministerial to desist from further proceedings when said proceedings are without or in excess of its jurisdiction, or with grave abuse of its discretion, there being no appeal or any other plain, speedy and adequate remedy in the ordinary course of law. The purpose of prohibition is to secure an order to command the respondent tribunal, board or corporation or officer to desist from further proceedings in the action. Stated in another way, the purpose of prohibition is to prevent an encroachment, excess usurpation or assumption of jurisdiction on the part of the tribunal, corporation, board or officer. It bears in stressing that an action for prohibition or certiorari, for that matter, does not divest the inferior or trial court of its jurisdiction validly acquired over the case pending before it; it is merely an invocation for the exercise of its supervisory power over the lower court to 14 manifestly for delay, or that the questions raised therein are too unsubstantial to require consideration, the court may dismiss the petition. Necessity for a writ of injunction; certiorari not sufficient The filing of a petition for certiorari does not interrupt the course of the principal action nor the running of the reglamentary periods involved in the proceeding, unless an application for a restraining order or a writ of preliminary injunction to the appellate court is granted. No petition for certiorari in a summary proceeding In a summary proceeding, petitions for certiorari, prohibition or mandamus against an interlocutory order of the court are not allowed.

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insure that the lower court acts within its jurisdiction. Prohibition, not mandamus is the proper remedy when a motion to dismiss is wrongfully denied. Requisites a. the petition must be directed against a tribunal, corporation, or board or person exercising judicial, quasi-judicial, or ministerial functions; the tribunal, corporation, board or person must have acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction; there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law; the petition for prohibition shall be accompanied by a certified true cop of the judgment or order subject of the petition, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping. resolution or proceedings of the public respondent. The purpose of prohibition is to command the respondent to desist from further proceedings. B. MANDAMUS Mandamus is an extraordinary writ commanding a tribunal, corporation, board or person, to an act required to be done; a. when it or he unlawfully neglects the performance of an act which the law specifically enjoins as a duty, and there is no other plain, speedy and adequate remedy on the ordinary course of law. b. It is also available when one unlawfully excludes another form the use and enjoyment of a right or office to which the other is entitled. The principal function of mandamus is to command, not to inquire, expedite or adjudicate. Mandamus does not establish a legal right, but merely enforces one that is already clearly established. Requisites 1. 2. the plaintiff has a clear legal right to the act demanded. It will never be issued in doubtful cases. it must be the duty of the defendant to perform the act because the same is mandated by law; the defendant unlawfully neglects the performance of the duty enjoined by law; the act to be performed is ministerial, not discretionary; there is no appeal or an other plain, speedy and adequate remedy in the ordinary course of law.

b.

c.

d.

Prohibition vs. Injunction An injunction is directed against a party in an action. Prohibition is directed to the court or tribunal directing it to refrain from performance of acts which it has no jurisdiction to perform. Prohibition distinguished from certiorari 1. A writ of certiorari seeks to annul a judicial or a quasi-judicial act. A writ of prohibition is directly not only to a judicial or a quasi-judicial act but even to a ministerial act. a writ of certiorari is directed to the action of the court which is sought to be annulled. A writ of prohibition is directed to the court itself to restrain it from further proceeding with the case. the purpose of certiorari is to annul or modify the judgment, order,

3. 4. 5.

2.

Ministerial act or duty For mandamus to lie, the act must not only be ministerial but must also be a duty enjoined by law, a duty which the tribunal or person unlawfully neglects to perform. 15

3.

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Mandamus applies only to acts required by law to be done. The tenor of the rule excludes from its operation the performance of a contractual duty. Mandamus is proper to compel the payment of the benefits to which an employee is entitled under the law such as holiday pay. It is not proper against a school or an official with a duty that involves the exercise of discretion like on the matters of admission of students or to complete an academic institution to allow the graduation of a student who has failed to comply with the academic rules of the school. Mandamus will not lie to compel a prosecutor to file an information. Mandamus will lie to compel execution of a judgment, because execution of a final and executory judgment is a matter of right. Discretionary acts not compellable by mandamus Mandamus does not lie to compel the performance of a discretionary duty. Mandamus will not issue to control or review the exercise of discretion of a public officer where the law imposes upon said public officer the right and duty to exercise his judgment in reference to any matter on which he is required to act. It is his judgment that is to be exercised and not that of the court. Reconstitution is not a ministerial act. Mandamus vs. injunction a. b. mandamus is a special civil action while injunction is an ordinary civil action; mandamus is directed against a tribunal, corporation, board or officer while injunction is directed against a litigant; the purpose of mandamus is for the tribunal, corporation , board or officer to perform a ministerial d. and legal duty while the purpose of injunction is for the defendant to either refrain from an act or to perform not necessarily a legal or ministerial duty; and the purpose of mandamus is to perform positive legal duty and not to undo what has been done.

Mandamus vs. Quo Warranto Recall that mandamus also is available when one is unlawfully excluded from the use or enjoyment of an office. This is similar to a quo warranto proceeding in this respect although in mandamus, the suit is brought against the person who is responsible for excluding the petitioner from office. The respondent does not have to usurp, intrude into or hold the office. Quo warranto is brought against the holder of the office, who is the person claiming the office as against the petitioner, not necessarily the one who excludes the petitioner.

V. QUO WARRANTO
Nature and purpose Quo warranto literally means by what authority and the object is to determine the right of a person to the use or exercise of a franchise or office and to oust the holder from enjoyment, if his claim is not well-founded, or if he has forfeited his right to enjoy the office. It is commenced by a verified petition against the following: 1. a person who usurps a public office, position or franchise; 2. a public officer who performs an act constituting forfeiture of a public office; or 3. an association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority to do so. The petitioner

c.

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As a general rule, the Solicitor General. But the petition may be commenced by a private person in his own name where he claims to be entitled to the public office or position alleged to have been usurped or unlawfully held or exercised by another. Jurisdiction and venue SC, CA, Sandigan (in its appellate jurisdiction) or RTC over the territorial area where any of the respondents reside. If filed by the SolGen, it may be filed in the RTC of Manila. A quo warranto proceeding is one of the instances where exhaustion of administrative remedies is not required. Quo warranto under the Omnibus Election Code Under the OEC, a quo warranto proceeding may be instituted with the COMELEC by any voter contesting the election f any member of Congress, regional, provincial or city officer within 10 days after the proclamation of the results of the election. 1. 2. The ground relied upon shall be: ineligibility to the positions; or disloyalty to the Republic of the Philippines. 4. Quo warranto in an elective office against quo warranto in appointive office distinguished 1. in the first, the governing law is the election law; in the second, the rules that govern are the Rules of Court. in the first, the issue is the eligibility of the person elected; in the second, the issue is the legality of the occupancy of the office b virtue of a legal appointment in the first, the petition is filed within 10 days after the proclamation, in the second, it is within 1 year from the time the cause of ouster, or the right of the petitioner to hold office arose. in the first, the petitioner ma be any voter, even if he is not entitled to the office; in the second, the petitioner is the person entitled to the office.

2.

3.

Quo warranto proceedings and election protests The cause of action in the first is based on the eligibility or lack of it of the candidate or his being loyal or disloyal to the Republic. The cause of action in an election protest is the irregularity in the conduct of the elections. Quo warranto against corporations The petition may be brought only against a de facto corporation, not a de jure corporation.

If the petition is brought against a municipal official, the petition for quo warranto

http://www.yo utube.com/watc h?v=IbOSxHLY7c must be brought in


the appropriate RTC. If it is against any barangay official, the petition must be brought before the appropriate MTC.

VI Expropriation (67)
Exercise by LGUs 1. Requisites: an ordinance is enacted authorizing the chief executive to exercise the power of eminent domain or pursue expropriation proceedings over a particular property; the power of eminent domain is exercised for public use, purpose or welfare, or for the benefit of the poor and the landless;

2.

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3. thee is payment of just compensation, as required under the Constitution and other pertinent laws; a valid and definite offer has been previously made to the owner of the property sought to be expropriated, buy said offer was not affected. appropriate the same for public use or purpose. Multiple appeals are permitted and the reglamentary period is 30 days. Just compensation Sec. 4 of Rule 67 provides that the just compensation shall be determined as of the date of the taking of the property or the filing of the complaint, whichever came first. Nonpayment of just compensation; effect Non payment of just compensation does not entitle the private landowner to recover possession of the expropriated lots. However in cases where the government failed to pay just compensation within 5 years from the finality of judgment in the expropriation proceedings, the owners concerned shall have the right to recover possession of their property. Title to the property expropriated passes from the owner to the expropriator only upon full payment of just compensation.

4.

Stages 1. 2. determination of the authority of the plaintiff to expropriate its necessity and the public purpose; determination of just compensation through the court-appointed commissioners.

Entry upon the property Under sec. 2 of rule 67, in order to be entitled to the possession of the property subject of the complaint for expropriation, the plaintiff upon the filing of the complaint or at any time thereafter, must deposit with the proper government authority an amount equivalent to the assessed value of the property for purposes of taxation. The deposit shall be n money, unless the court authorizes a deposit in the form of a certificate of deposit of a government bank of the Republic payable on demand to the authorized depository. Appeal from the order of expropriation The final order sustaining the right to expropriate the property may be appealed from by any party aggrieved by such order. The appeal shall not however, prevent the court from determining the just compensation to be paid. This should be taken to mean that despite the appeal from the order of expropriation, the court may proceed to the second stage of the expropriating process, the determination of just compensation. Appeal from the judgment as to compensation The judgment rendered by the court as to the just compensation may be appealed from but the appeal shall not have the effect of delaying the right of the plaintiff to enter upon the property and to

VII Foreclosure of Real Estate Mortgage (68)


A creditor cannot file an action against the debtor for collection of the debt and subsequently file an action to foreclose the mortgage. This is an example of splitting of a single cause of action. Modes of foreclosure of real estate mortgage a. b. judicial foreclosure pursuant to Rule 68; extra-judicial foreclosure pursuant to Act. No. 3135 as amended by Act No. 4118.

Extra-judicial foreclosure is the mode to be used if there is a special power inserted or attached to the real estate 18

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mortgage contract allowing an extra-judicial foreclosure sale. Where there is no such special power, the foreclosure shall be done judicially following the procedure set under Rule 68. Applicability of Rule 68 Rule 68 applies only to judicial foreclosures of real estate mortgage. Procedure A foreclosure suit proceeds like an ordinary action. Equity of redemption It is the right to extinguish the mortgage and retain ownership of the property by paying the debt. The equity of redemption may be exercised even after the foreclosure sale provided it is made before the sale is confirmed by order of the court. The equity of redemption of the mortgagor may be exercised prior to the confirmation of the sale. After its confirmation no further redemption may be made. Right of redemption It is a right granted to a mortgagor to repurchase the property even after the confirmation of the sale and even after the registration of the certificate of sale. There is no right of redemption in a judicial foreclosure of mortgage under Rule 68. This exists only in extrajudicial foreclosures where there is always a right of redemption within one year from the date of sale, but interpreted by the Court to mean one year from the registration of the sale. Deficiency judgment If there be a balance due to the plaintiff after applying the proceeds of the sale, the court, upon motion shall render judgment against the defendant for any such balance. 3. No independent action need be filed to recover the deficiency from the mortgagor. The deficiency judgment shall be rendered upon motion of the mortgagee. A deficiency judgment is by nature in personam and jurisdiction over the person is mandatory. Having been outside the country, jurisdiction over his person could not have been acquired. Judicial vs. extra-judicial foreclosure 1. 2. judicial, governed by Rules of Court; extra-judicial, by Act. No. 3135; judicial, involves the filing of an independent action; extra, does not require filing of an action judicial, there is equity of redemption and no right of redemption except when the mortgagee is a banking institution; extra, there is a right of redemption. judicial, there could be a deficiency judgment; extra, no deficiency judgment because there is no judicial proceeding, although recovery of the deficiency is allowed.

4.

VIII Partition (69)


Partition is the separation, division and assignment of a thing held in common among those to whom it may belong. There must be co-ownership. A co-owner may demand at any time the partition of the property owned in common except: 1. there is an agreement between coowners to keep the property undivided for a period both exceeding ten years; 2. partition is prohibited by the donor or testator for a period not exceeding 20 years; 3. partition is prohibited by law; 4. property is not subject to physical division

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5. condition imposed upon voluntary heir before they can demand partition has not yet been fulfilled. date of last demand, in case of unlawful detainer. The issue in said cases is the right to physical possession. Accion publiciana and accion reivindicatoria Accion publiciana is the plenary action to recover the right of possession which should be brought when dispossession has lasted for more than one year. It is an ordinary civil proceeding to determine the better right of possession of realty independent of title. If at the time of the filing of the complaint more than one year had elapsed since defendant had turned plaintiff out of possession or defendants possession had become illegal, the action will be, not one of the forcible entry or illegal detainer, but an accion publiciana. Accion reivindicatoria involves not only possession, but ownership of the property. Real and in personam actions FEUD actions are actions affecting possession of real property, hence are real actions, the venue is the place where the property subject of the action is situated. They are actions in personam. Jurisdiction of the MTC; summary procedure Actions of FEUD are within the exclusive jurisdiction of the MTC and shall be governed by the rules on summary procedure irrespective of the amount of damages or rentals sought to be recovered. The decision in an ejectment case does not bind the title to or ownership of the land or building. It does not also bar an action between the same parties respecting title to the property.

Prescription does not run in favor of a co-owner or co-heir. The action for partition cannot be barred by prescription as long as the coownership exists. The proceedings had before the commissioners shall not bind the parties or pass title to property until the court shall have accepted the report of the commissioners and rendered judgment thereon.

IX Forcible Entry and Unlawful Detainer


Under existing law and jurisprudence, there are 3 kinds of actions available to recover possession of real property: a. b. c. accion interdictal; accion publiciana; accion revindicatoria

Accion interdictal The actions of FE and UD belong to the class of actions known by the generic name accion interdictal (ejectment) where the issue is the right of physical or material possession of the subject real property independent of any claim of ownership by the parties involved. Forcible entry, one is deprived of physical possession of real property by means of force, intimidation, strategy, threats, or stealth. Unlawful detainer, one illegally withholds possession after the expiration or termination of his right to hold possession under any contract, express or implied. The jurisdiction of these 2 actions, which are summary in nature, lies in the proper MTC. Both actions must be brought within one year form the date of actual entry on the land, in case of forcible entry, and from the

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Effect of the pendency of an action involving ownership on the action for forcible entry and unlawful detainer A pending action involving ownership of the subject property dose not bar the filing of an ejectment suit, nor suspend the proceedings of one already instituted. The action for specific performance in the RTC has no effect on the ejectment case and shall proceed irrespective of the outcome of the RTC case. The issues in the ejectment case is mere possession while the issue in the specific performance case is the validity as well as the enforceability of the option to purchase. When defendant occupies premises by mere tolerance If the defendant stays in the premises by mere tolerance of the owner, the possession becomes unlawful upon failure to comply with the demand to vacate made by the owner. The unlawful withholding of possession is to be counted from the date of the demand to vacate. Demands in unlawful detainer cases An unlawful detainer case shall be commenced only after demand to pay or comply with the conditions of the lease and to vacate is made upon the lessee, unless there exists a stipulation to the contrary. Where the suit is based on the defendants failure to pay the rentals agreed upon, the proper demand should be to to pay and vacate. It should not be to pay or vacate. The latter demand which I in the alternative does not make out a case for unlawful detainer since it is not in accordance with the required tenor of the demand prescriber by sec. 2 of Rule 70 Thus, a demand to pay P500,000 by way of unpaid rentals or to vacate if not paid within 5 days does not make out an action for unlawful detainer but one merely for collection of sum of money and must be filed with the RTC. Form of demand The demand ma be in the form of a written notice served upon the person found in the premises. The demand may also be made by posting a written notice on the premises if no person can be found therein. It may be oral. Effect of non-compliance with the demand If the demand is not complied with after 15 days in the case of land or 5 days in the case of buildings, the lessor may now proceed against the lessee. When demand is not required in unlawful detainer case 1. 2. there is a stipulation dispensing with demand when the ground for the suit is based on the expiration of the lease because when the lease expires the cause of action for unlawful detainer immediately arises.

Demand to vacate is, however, required when the lease is on a month-tomonth basis to terminate the lease upon the expiration of the month in order to prevent the application of the rule of tacita reconduccion or implied new lease. Tacita reconduccion If at the end of the lease, the lessee continues to enjoy the property leased for 15 days with the consent of the lessor, and no notice to the contrary has been given, it is understood that there is an implied new lease, not for the period in the original contract, but for the time established in articles 1682 and 1687 of the Civil Code. Defense of tenancy A tenancy case falls within the jurisdiction of the Department of Agrarian Reforms Adjudicatory Board (DARAB). Where tenancy is raised as a defense, the court must conduct a preliminary hearing on the matter to determine the allegations of tenancy. If during the hearing, it is shown that tenancy is the real issue, that is when the court shall dismiss the case for lack of 21

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jurisdiction. Jurisdiction is determined by the allegations of the complaint. Defense of ownership The assertion by the defendant of ownership over the disputed property does not serve to divest the inferior court of its jurisdiction. The defendant cannot deprive the court of jurisdiction by merely claiming ownership of the property involved. When defendant raises the issue of ownership, the court may resolve the issue of ownership but only under the ff. conditions: a. when the issue of possession cannot be resolved without resolving the issue of ownership; and the issue of ownership shall be resolved only to determine the issue of possession. determination is only initial and is made merely for the purpose of settling the issue of possession. Immediate execution of judgment A judgment on a FEUD action is immediately executory to avoid injustice to a lawful possessor, and the courts duty to order the execution is practically ministerial. How to stay immediate execution of judgment The defendant must take the following steps: 1. perfect an appeal; 2. file a supersedeas bond; and 3. deposit periodically with the RTC during the pendency of the appeal, the adjudged mount of rent due under the contract or if there be no contract, the reasonable value of the use and occupation of the premises. Where to appeal Appealable to the appropriate RTC. Mode of appeal is the same as in ordinary civil actions under Rule 40 where a notice of appeal is filed with and the docket fee paid in the court of origin, which is the MTC.

b.

In letter b., the judgment would not bar an action between the same parties respecting title to the land or building. The resolution of the MTC on the ownership of the property is merely provisional or interlocutory. Any question involving the issue of ownership should be raised and resolved in a separate action brought specifically to settle the question with finality. How to obtain possession of the premises during the pendency of the action When the action is filed, the plaintiff in an ejectment case is not tin possession of the property. To obtain possession, the Rules permit the plaintiff to present a motion, within 5 days from the filing of the complaint, for the issuance of a writ of preliminary mandatory injunction to restore him in his possession. This motion shall be resolved within 30 days from its filing. Judgment not binding on ownership If an issue of ownership is raised in an action for FEUD and the court makes a determination of ownership, such

X. CONTEMPT
Contempt of court is the disobedience to the court by acting in opposition to its authority, justice and dignity. Functions 1. 2. vindication of public interest by punishing of contemptuous conduct; and coercion to compel the contemnor to do what the law requires him to uphold the power of the Court, and also the rights of the parties to a suit awarded by the court.

Kinds of contempt 22

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According to nature: Criminal contempt is conduct directed against the authority and dignity of the court or a judge acting judicially; it is obstruction of the administration of justice which tends to bring the court in to disrepute or disrespect. Civil contempt is the failure to do something ordered to be done by a court or a judge for the benefit of the opposing party therein and is therefore, an offense against the part in whose behalf the violated order was made. According to the manner of commission: 1. Direct- committed in the presence of or so near the court or judge as to obstruct or interrupt the proceedings before the same; and indirect one committed not in the presence of the court The penalty for direct contempt depends upon the court against which the act was committed. If the act was committed against the RTC or a court of equivalent or higher rank, the penalty is a fine not exceeding 2k or imprisonment not exceeding 10 days or both. If the act was committed against a lower court, a fine not exceeding 1k or imprisonment not exceeding 1 day or both. Remedy of a person adjudged in contempt A person adjudged in direct contempt may not appeal therefrom. His remedy is a petition for certiorari or prohibition directed against the court which adjudged him in direct contempt. Pending the resolution of the petition for certiorari or prohibition, the execution of the judgment for direct contempt shall be suspended. The suspension however, shall take place only if the person adjudged in contempt files a bond fixed by the court which rendered judgment. Indirect contempt Indirect contempt in general is committed by a person who commits any of the following acts: a. b. disobedience or resistance to a lawful writ, process, order or judgment of a court; any abuse of or any unlawful interference with the process or proceedings of a court not constituting direct contempt; any improper conduct tending directly, or indirectly, to impede, obstruct or degrade the administration of justice.

2.

Direct contempt 1. 2. 3. 4. 5. 6. 7. Acts constituting direct contempt; misbehavior in the presence of or so near the court as to obstruct or interrupt the proceedings before it; disrespect toward the court; offensive personalities towards others; refusal to be sworn as a witness or to answer as a witness; refusal to subscribe an affidavit or deposition when lawfully required to do so; acts of party or counsel which constitute willful and deliberate forum shopping unfounded accusations or allegations or words tending to embarrass the court or to bring it into disrepute.

c.

No formal proceeding required No formal proceeding is required to cite a person in direct contempt. The court ma summarily adjudge one in direct contempt. Penalty

A mere motion under the present rules is not a mode of initiating indirect contempt.

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Contempt in relation to execution of judgment Generally, Contempt is not a means of enforcing a judgment. How a proceeding for indirect contempt is commenced Unlike direct contempt which is summary, an act constituting an indirect contempt is to be punished only after charge in writing and hearing. The procedural requisites before the accused may be punished for direct contempt: a. b. c. a charge in writing to be filed; an opportunity for the person charged to appear and explain his conduct; to be heard by himself or counsel. however, have the effect of suspending the judgment if the person adjudged in contempt does not file a bond in an amount fixed by the court from which the appeal is taken. This bond is conditioned upon his performance of the judgment or final order if the appeal is decided against him.

SUMMARY PROCEDURE
Civil cases subject to summary procedure 1. 2. FEUD cases; all other claims where the total claim does not exceed P100,000 outside MM, or does not exceed P200,000 in MM, exclusive or interests and costs.

Court where the charge for indirect contempt is filed Depends upon the level of the court against which the contempt was committed. 1. act committed against the RTC or a court of equivalent or higher rank, or against an officer appointed by it, the charge may be filer with such court. act committed against a lower court, the charge may be filed with the RTC. It may also be filed in the lower court against which the contempt was allegedly committed. The decision of the lower court is appealable to the RTC. where the act was committed against persons or entities exercising quasijudicial junctions, the charge shall be filed with the RTC of the place wherein the contempt was committed.

Probate proceedings are not covered by the rule on summary procedure even if the gross value of the estate does not exceed P100,000 or P200,000. Basic principles Not all pleadings ni an ordinary civil action are allowed in a summary procedure. 1. 2. 3. 4. The only pleadings allowed are: complaint compulsory counterclaim cross-claims pleaded in the answer answers to the pleading.

2.

3.

The court in a summary procedure may dismiss the case outright on any of the grounds for the dismissal of a civil action. Should the defendant fail to answer the complaint within a period of 10 days from service of summons, the court may, motu proprio, or on motion of the plaintiff, render judgment (not an order declaring the defendant in default) as may be warranted by the facts alleged and limited to what is prayed for.

Remedy of a person adjudged in indirect contempt The person adjudged in indirect contempt may appeal from the judgment or final order of the court in the same manner as in criminal cases. The appeal will not

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Provisional Remedies / Special Civil Actions / Summary Procedure

DEAN WILLARD RIANO


There shall be a preliminary conference held but there will be no trial. Instead the parties shall submit affidavits and position papers. Within 30 days from receipt of the last affidavits and position papers, or the expiration of the period for filing the same, the court shall render judgment. As a rule a motion to dismiss is not allowed except on either 2 grounds: 1. lack of jurisdiction over the subject matter; 2. failure to comply with the barangay conciliation proceedings. See sec 19 of the Rules on Summary Procedure for prohibited pleadings.

By Nikko G. Lagmay San Sebastian Law

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