RULE 65

CERTIORARI, PROHIBITION, AND MANDAMUS

v
CERTIORARI
Requisites:
1.
there must be a controversy
2.
the respondent is a tribunal, board or an
officer exercising judicial or quasi-judicial
functions [discretionary acts].
3.
the respondents acted:
a.
without jurisdiction
b.
in excess of jurisdiction
c.
with grave abuse of discretion amounting
to lack or excess of jurisdiction
4.
there must be no appeal or other plain,
speedy and adequate remedy.
EXCLUSIVE REMEDY OF APPEAL AND CERTIORARI
GENERAL RULE: If after judgment and the petition for
certiorari is availed of instead of the remedy of appeal,
the certiorari must fail because it may not be resorted to
as a substitute to appeal; in such a case appeal is
deemed abandoned.
EXCEPTIONS: Even when appeal is available, a writ for
execution may be allowed;
1.
When the appeal does not constitute a speedy
and adequate remedy.
2.
When judgment were issued either in excess of
or without jurisdiction.
3.
When for certain special considerations as public
policy or public welfare.
4.
When the judgment is patently void.
5.
When the decision in the certiorari case will avoid
future actions.
PROHIBITION
Requisites
1.
there must be a controversy
2.
the respondent is a tribunal, board or an
officer
exercising
judicial,
quasi-judicial
[discretionary acts] or ministerial functions.
3.
the respondent acted:
a.
without jurisdiction
b.
in excess of jurisdiction
c.
with grave abuse of discretion amounting
to lack or excess of jurisdiction
4.
there must be no appeal or other plain,
speedy and adequate remedy.
MANDAMUS
Requisites
1.
there must be a clear legal right or duty.
2.
the act performed must be practical- within
the powers of the respondent to perform such if
issued and he can comply with it or else the
essence will be defeated.
3.
the
respondent
must
be
exercising
a ministerial duty.
4.
the duty or act to be performed must
be existing a correlative right will be denied if
not performed by the respondents.

5.

there must be no appeal or other plain,

speedy and adequate remedy.

NOTE: An ordinary action for certiorari, prohibition and

mandamus are independent action thus:
1.
does not interrupt the course of the principal
action.
2.
does not affect the running of the prescriptive
period involved in the case.
3.
does not stay the execution of the judgment,
unless a TRO or a PI is issued.
EXHAUSTION OF ADMINISTRATIVE REMEDY
GENERAL RULE: a motion for reconsideration is a
prerequisite before the filing of a petition for certiorari,
prohibition or mandamus. Its purpose is to give the court
a quo the opportunity to correct itself.
EXCEPTIONS:
1.
If the judgment or order is patently void.
2.
If there is extreme urgency.
3.
If the issue has been raised and promptly passed
by the court.
4.
If the issue is purely a question of law.
5.
If for public purpose.

RULE 66
QUO WARRANTO
What is Quo Warranto?

It is a special civil action to determine the right to

the use or exercise of an office or a franchise, and to
oust the holder from its enjoyment if his claim is not
well founded or if he has forfeited his right to enjoy
the privilege.
Classification of a Quo Warranto proceedings.
1.
Mandatory- brought by the Solicitor General or a
public prosecutor when:
a.
directed by the president, and
b.
upon complaint or when he has reason to
believe that it can be established by proof.
2.
Discretionary- brought by the Solicitor General
or a public prosecutor upon the request a person but
there must be:
a.
leave of court, and
b.
indemnity bond
NOTE: The period for the filing of Quo Warranto
proceedings is within one(1) year from the date the
cause of action arose.
DISTINCTIONS
QUO WARRANTO
1. There
is
a
usurpation of public
office by another
and
assumes
office.

MANDAMUS
There is an ousting from
office by another but
does not assume the
office.

The right or legal duty is

2. The right to office clear, so the purpose of

of the occupant is the action is to enforce

not clear so this the right.
right becomes the
subject
of
the
action.
QUO WARRANTO
1. As to the basis:
The occupant of the
office is disqualified
from holding the
office because of
ineligibility or
disloyalty to the
republic.
2. As to the effect:
If the petitioner
succeeds, the
respondent will be
ousted and the
petitioner will assume
the office.

ELECTION CONTEST
The person holding the
office is not entitled to it
because of irregularity in
the conduct of election.

If the protestant
succeeds, he will
assume office if he had
obtained a plurality of
the valid vote.

RULE 67
EXPROPRIATION
q

EMINENT DOMAIN is the right of the state to

acquire private property for public use upon payment
of just compensation.
q
EXPROPRIATION is the procedure to be observed
in the exercise of the right of eminent domain in
instances such as:
1.
When the owner refuses to sell his property.
2.
When he agrees to sell but an agreement as
to the price cannot be reached.
NOTE: All properties can be expropriated except money
and chooses in action.
Two Stages in Expropriation
1.
Determine first if the property taken is for public
purpose.
2.
If it was determined that it is for public purpose,
resolve the issue on the amount to be paid or the
just compensation
Just Compensation is determined at the time of the
taking of the property or at the filing of the complaint
which ever comes first. It is the fair and full equivalent for
the loss sustained by the defendant.
NOTE: The conflict in the payment of just compensation
or an appeal does not delay the right of the plaintiff to
enter into the property and appropriate the same for
public use.

Parties:
1.
2.
3.

mortgagee and mortgagor

successor in interest
junior encumbrancer/s

Nature and purpose:

The remedy used for the satisfaction of any

monetary obligation, which a person owes to
another, by proceeding against the property used
to secure the obligation.

It purpose is to cut off the rights of the owner of

the property mortgaged used to secure the
obligation and all rights acquired thereto.
NOTE:

Within the one(1) year period given to the

mortgagor to redeem, the buyer may take
possession of the property but must pay a bond
equivalent to the amount of a rent.

If there is deficiency judgment, the action may

continue in the same proceedings except to nonresident defendants.
Effect if the Junior Encumbrancer is not pleaded:
1.
his right is not affected because he is merely a
necessary party not an indispensable party.
2.
the remedy of the senior encumbrancer is to file
independent actions to foreclose the right to
redeem by requiring the junior encumbrancer to
pay the amount stated in the order of execution.
JUDICIAL
FORECLOSURE
Requires court
intervention
There is only
an Equity of
Redemption is the
right of the defendant
mortgagor to
extinguish the
mortgage and retain
ownership of the
property by paying the
debt within 90-120
days after the entry of
judgment or even after
the sale but before
confirmation.

Governed by Rule 68

EXTRAJUDICIAL
FORECLOSURE
No court intervention
necessary
There exist a Right of
Redemption is the right
of the debtor, his
successor in interest or
any judicial creditor or
judgment creditor of the
debtor or any person
having a lien on the
property subsequent to
the mortgage or deed of
trust under which the
property is sold to
redeem the property
within one(1) year from
the registration of the of
the sheriffs certificate of
foreclosure sale.
Governed by sec.29-31
of Rule 39

RULE 69
PARTITION
RULE 68
FORECLOSURE OF REAL ESTATE MARTGAGE

What is Partition?

It is the process of dividing and assigning

property owned in common among the various

co-owners in proportion to their respective

interests in said property.
When can Partition be made?
GENERAL RULE: It can be made anytime and the right
to demand partition is imprescriptible.
EXCEPTION: If the co-owner asserts adverse title to the
property in which case the period of prescription runs
from such time of assertion of the adverse claim.
TWO(2) STAGES:
1.
Determination of the Propriety of the
Partition. Includes the question whether or not the
property is owned in common or whether or not all
the co-owners are made parties. If the court find that
there must be partition, the aggrieved party may
appeal the decision.
2.
Actual Partitioning of the Subject Property.

The parties may agree on the partition by

executing a Deed of Partition, where it will
become final after the court approves it. The
aggrieved party may appeal the decision.

If the parties does come into an agreement as

to how to partition the property, the case will be
heard through trial by commissioner.
NOTE: No partition of personal property.
RULE 70
FORCIBLE ENTRY AND UNLAWFUL DETAINER
FORCIBLE ENTRY
UNLAWFUL DETAINER
Possession of the Possession is lawful but
land
by
the it
becomes
illegal
defendant
is because
of
the
unlawful from the termination of the right to
beginning as he the possession of the
acquires it by Force, property
under
his
Intimidation,
contract w/ the plaintiff.
Strategy, Threat or
Stealth [FISTS]
No
previous Formal
Demand is
Demand
is mandatory if the ground
necessary.
is non-payment of rentals
or failure to comply with
the lease contract
The plaintiff must The plaintiff need not
prove that he was in have been in prior
prior
physical physical possession.
possession of the
premises until he
was deprived.
The 1 year period Period is counted from
is generally counted the date of last demand
from the date of or last letter of demand.
actual entry on the
land.
NOTE: Demand under this section is jurisdictional. It is a
two-fold demand:
a.
to pay and vacate; or
b.
to comply with the conditions of the lease and
vacate.

How is Demand Made?

1.
personally
2.
by posting it at the premises, possible only if
there no person found in the premises
3.
substituted service
4.
registered mail
GENERAL RULE: Judgment of the MTC in ejectment
proceedings is immediately executory when:
1)
The defendant perfects his appeal.
2)
He files sufficient supersedeas bond to pay the
rents, damages and cost accruing down to the time
of judgment appealed from.[NOTE: supersedeas
bond is required only if arrearages in the rentals is
awarded in the judgment by the court]
3)
He deposits with the appellate court the amount of
rent due from time to time under a contract or
reasonable amount for the use and occupation of the
property in the absence of a contract.