SPECIAL CIVIL ACTIONS
A. RULE 62: INTERPLEADER
Section 1. When interpleader proper. — Whenever conflicting claims
upon the same subject matter are or may be made against a person who
claims no interest whatever in the subject matter, or an interest which in
whole or in part is not disputed by the claimants, he may bring an action
against the conflicting claimants to compel them to interplead and litigate
their several claims among themselves. (1a, R63)
The action of interpleader is a remedy whereby a person who has personal
property in his possession, or an obligation to render wholly or partially,
without claiming any right to either, comes to court and asks that the persons
who claim the said personal property or who consider themselves entitled to
demand compliance with the obligation, be required to litigate among
themselves in order to determine finally who is entitled to tone or the one
thing. The remedy is afforded to protect a person not against double
liability but against double vexation in respect of one liability
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.
When the court orders that the claimants litigate among themselves,
in reality a new action arises, where the claims of the interpleaders
themselves are brought to the fore, the stakeholder as plaintiff is
relegated merely to the role of initiating the suit. In short, the remedy
of interpleader, when proper, merely provides an avenue for the conflicting
claims on the same subject matter to be threshed out in an action. (Bank of
Commerce vs. Planters Development Bank)
Action for Interpleader must be filed before the stakeholder
becomes independently liable by a decision of a court to one of the
claimants: A stakeholder should use reasonable diligence to hale the
contending claimants to court. He need not await actual institution of
independent suits against him before filing a bill of interpleader. He should
file an action of interpleader within a reasonable time after a dispute has
arisen without waiting to be sued by either of the contending
claimants. Otherwise, he may be barred by laches or undue delay. But where
he acts with reasonable diligence in view of the environmental circumstances,
the remedy is not barred.
A stakeholder's action of interpleader is too late when filed after
judgment has been rendered against him in favor of one of the
contending claimants, especially where he had notice of the conflicting
claims prior to the rendition of the judgment and neglected the opportunity
to implead the adverse claimants in the suit where judgment was entered.
This must be so, because once judgment is obtained against him by one
claimant he becomes liable to the latter.
Besides, a successful litigant cannot later be impleaded by his defeated
adversary in an interpleader suit and compelled to prove his claim anew
against other adverse claimants, as that would in effect be a collateral attack
upon the judgment. (Wack Wack Golf and Country Club, Inc. vs. Lee E. Won)
Deposit of the subject of the interpleader is with the court; The
stakeholder filing an interpleader must not derive any material
benefit from the claim: the essence of an interpleader, aside from the
disavowal of interest in the property in litigation on the part of the petitioner,
is the deposit of the property or funds in controversy with the court. it is a
rule founded on justice and equity: "that the plaintiff may not continue to
benefit from the property or funds in litigation during the pendency of the suit
at the expense of whoever will ultimately be decided as entitled thereto.
The case at bar was elevated to the Court of Appeals on certiorari with
prohibitory and mandatory injunction. Said appellate court found that
more than twenty million pesos are involved; so that on interest
alone for savings or time deposit would be considerable, now
Cesar Nickolai F. Soriano Jr.
1 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
accruing in favor of the Eternal Gardens. Finding that such is violative
of the very essence of the complaint for interpleader as it clearly runs
against the interest of justice in this case. (Eternal Gardens Memorial Parks
Corporation vs. IAC)
As an alternative, the stakeholder may opt to consign the thing in
court, in case of confusion as to who is the proper party to pay:
They should have availed of the provisions of the Civil Code of
the Philippines on the consignation of payment and of the Rules of Court on
interpleader.
Article 1256. If the creditor to whom tender of payment has been
made refuses without just cause to accept it, the debtor shall be
released from responsibility by the consignation of the thing or sum
due.
Consignation alone shall produce the same effect in the following
cases:
xxxx
(4) When two or more persons claim the same right to collect;
x x x x.
Consignation shall be made by depositing the things due at the disposal of a
judicial authority, before whom the tender of payment shall be proved in a
proper case, and the announcement of the consignation in other cases.
Interpleader need not be contained in a complaint, it may be filed
through an Answer: Apart from a pleading, the rules allow a party to
seek an affirmative relief from the court through the procedural
device of a motion. While captioned "Answer with counter complaint/cross-
claim for interpleader," the RTC understood this as in the nature of a
motion, seeking relief which essentially consists in an order for the conflicting
claimants to litigate with each other so that "payment is made to the rightful
or legitimate owner" of the subject CB bills.
Interpleader is a civil action made special by the existence of
particular rules to govern the uniqueness of its application and
operation. Under Section 2, Rule 6 of the Rules of Court, governing ordinary
civil actions, a party’s claim is asserted "in a complaint, counterclaim, cross-
claim, third (fourth, etc.)-party complaint, or complaint-in-intervention." In
an interpleader suit, however, a claim is not required to be contained
in any of these pleadings but in the answer-(of the conflicting
claimants)-in-interpleader. This claim is different from the counter-
claim (or cross-claim, third party-complaint) which is separately
allowed under Section 5, par. 2 of Rule 62. (Bank of Commerce vs.
Planters Development Bank)
Section 2. Order. — Upon the filing of the complaint, the court shall issue
an order requiring the conflicting claimants to interplead with one another.
If the interests of justice so require, the court may direct in such order that
the subject matter be paid or delivered to the court. (2a, R63)
Section 3. Summons. — Summons shall be served upon the conflicting
claimants, together with a copy of the complaint and order. (3, R63)
Section 4. Motion to dismiss. — Within the time for filing an answer,
each claimant may file a motion to dismiss on the ground of impropriety
of the interpleader action or on other appropriate grounds specified in Rule
16. The period to file the answer shall be tolled and if the motion is denied,
the movant may file his answer within the remaining period, but which
shall not be less than five (5) days in any event, reckoned from notice of
denial. (n)
 Section 5. Answer and other pleadings. — Each claimant shall file his
answer setting forth his claim within fifteen (15) days from service of the
summons upon him, serving a copy thereof upon each of the other
conflicting claimants who may file their reply thereto as provided by these
Rules. If any claimant fails to plead within the time herein fixed, the court
may, on motion, declare him in default and thereafter render judgment
barring him from any claim in respect to the subject matter.
The parties in an interpleader action may file counterclaims, cross-claims,
third-party complaints and responsive pleadings thereto, as provided by
these Rules. (4a, R63)
Section 6. Determination. — After the pleadings of the conflicting
claimants have been filed, and pre-trial has been conducted in accordance
with the Rules, the court shall proceed to determine their respective rights
and adjudicate their several claims. (5a, R63)
Section 7. Docket and other lawful fees, costs and litigation
expenses as liens. — The docket and other lawful fees paid by the party
who filed a complaint under this Rule, as well as the costs and litigation
expenses, shall constitute a lien or change upon the subject matter of the
action, unless the court shall order otherwise. (6a, R63)
B. RULE 63: DECLARATORY RELIEF AND SIMILAR REMEDIES
Section 1. Who may file petition. — Any person interested under a
deed, will, contract or other written instrument, or whose rights are
affected by a statute, executive order or regulation, ordinance, or any
other governmental regulation may, before breach or violation thereof
bring an action in the appropriate Regional Trial Court to determine any
question of construction or validity arising, and for a declaration of his
rights or duties, thereunder. (Bar Matter No. 803, 17 February 1998)
An action for the reformation of an instrument, to quiet title to real
property or remove clouds therefrom, or to consolidate ownership under
Article 1607 of the Civil Code, may be brought under this Rule. (1a, R64)
Declaratory relief is defined as an action by any 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.
The only issue that may be raised in such a petition is the question of
construction or validity of provisions in an instrument or statute. Corollary is
the general rule that such an action must be justified, as no other adequate
relief or remedy is available under the circumstances. (Almeda vs. Bathala
Marketing Industries, Inc.)
JURISDICTION: In Malana vs. Tappa, the SC held that Sec. 1 contains two
paragraphs covering different actions which uses the word “may” on where
the action may be filed.
To determine which court has jurisdiction over the actions identified in the
second paragraph of Section 1, Rule 63 of the Rules of Court, said provision
must be read together with those of the Judiciary Reorganization Act of 1980,
as amended.
As such, to determine which court has jurisdiction, the assessed value of the
property covered by the action under the 2nd paragraph is considered. (Malana
vs. Tappa)
However, in Sabitsana, Jr. vs. Muertegui, the SC held that it is clear under
the Rules that an action for quieting of title may be instituted in the RTCs,
regardless of the assessed value of the real property in dispute.
Supreme Court has no original jurisdiction over cases of Declaratory
Relief: The Constitution as the subject matter, and the validity and
construction of Section 8 (1), Article VIII as the issue raised, the petition
should properly be considered as that which would result in the adjudication
of rights sans the execution process because the only relief to be granted is
Cesar Nickolai F. Soriano Jr.
2 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
the very declaration of the rights under the document sought to be construed.
It being so, the original jurisdiction over the petition lies with the appropriate
Regional Trial Court (RTC). Notwithstanding the fact that only questions of
law are raised in the petition, an action for declaratory relief is not among
those within the original jurisdiction of this Court as provided in Section 5,
Article VIII of the Constitution.
Nevertheless, the SC may take cognizance of the same: At any rate, due to
its serious implications, not only to government processes involved but also
to the sanctity of the Constitution, the Court deems it more prudent to take
cognizance of it. After all, the petition is also for prohibition under Rule 65
seeking to enjoin Congress from sending two (2) representatives with one (1)
full vote each to the JBC. (Chavez vs. JBC)
REQUISITES:
1. The subject matter of the controversy must be a deed, will, contract or
other written instrument, statute, executive order or regulation, or
ordinance;
2. The terms of said documents and the validity thereof are doubtful and
require judicial construction;
3. There must have been no breach of the documents in question;
4. There must be an actual justiciable controversy or the ripening seeds of
one between persons whose interests are adverse;
5. The issue must be ripe for judicial determination; and
6. Adequate relief is not available through other means or other forms of
action or proceeding. (Almeda vs. Bathala Marketing Industries, Inc.)
Absence of Breach: is an essential requisite for an action for declaratory
relief. If there has already been a breach, it is converted into an ordinary
action in accordance with Sec. 5, to wit:
Section 6. Conversion into ordinary action. — If before the final
termination of the case, a breach or violation of an instrument or a
statute, executive order or regulation, ordinance, or any other
governmental regulation should take place, the action may
thereupon be converted into an ordinary action, and the parties shall
be allowed to file such pleadings as may be necessary or proper. (6a,
R64)
Breach was already present, no more action for declaratory relief:
Since petitioners averred in the Complaint that they had already been
deprived of the possession of their property, the proper remedy for them is
the filing of an accion publiciana or an accion reivindicatoria, not a case for
declaratory relief.
Where the law or contract has already been contravened prior to the filing of
an action for declaratory relief, the courts can no longer assume jurisdiction
over the action. In other words, a court has no more jurisdiction over an action
for declaratory relief if its subject has already been infringed or transgressed
before the institution of the action. (Malana vs. Tappa)
Judicial Controversy: refers to an existing case or controversy that is
appropriate or ripe for judicial determination, not one that is conjectural or
merely anticipatory. (Republic vs. Roque)
Ripening of Seeds: is meant, not that sufficient accrued facts may be
dispensed with, but that a dispute may be tried at its inception before it has
accumulated the asperity, distemper, animosity, passion, and violence of a
full blown battle that looms ahead. The concept describes a state of facts
indicating imminent and inevitable litigation provided that the issue is not
settled and stabilized by tranquilizing declaration.
A question is ripe for adjudication when the act being challenged has had a
direct adverse effect on the individual challenging it. This private respondents
failed to demonstrate in the case at bar (Republic vs. Roque)
Section 2. Parties. — All persons who have or claim any interest which
would be affected by the declaration shall be made parties; and no
declaration shall, except as otherwise provided in these Rules, prejudice
 the rights of persons not parties to the action. (2a, R64) Rule 46.

Section 3. Notice on Solicitor General. — In any action which involves The petition shall further be accompanied by proof of service of a copy
the validity of a statute, executive order or regulation, or any other thereof on the Commission concerned and on the adverse party, and of
governmental regulation, the Solicitor General shall be notified by the party the timely payment of docket and other lawful fees.
assailing the same and shall be entitled to be heard upon such question.
(3a, R64) The failure of petitioner to comply with any of the foregoing requirements
shall be sufficient ground for the dismissal of the petition. (n)
Section 4. Local government ordinances. — In any action involving
the validity of a local government ordinance, the corresponding prosecutor Section 6. Order to comment. — If the Supreme Court finds the petition
or attorney of the local governmental unit involved shall be similarly sufficient in form and substance, it shall order the respondents to file their
notified and entitled to be heard. If such ordinance is alleged to be comments on the petition within ten (10) days from notice thereof;
unconstitutional, the Solicitor General shall also be notified and entitled to otherwise, the Court may dismiss the petition outright. The Court may also
be heard. (4a, R64) dismiss the petition if it was filed manifestly for delay or the questions
raised are too unsubstantial to warrant further proceedings. (n)
Section 5. Court action discretionary. — Except in actions falling
under the second paragraph of section 1 of this Rule, the court, motu Section 7. Comments of respondents. — The comments of the
proprio or upon motion, may refuse to exercise the power to declare rights respondents shall be filed in eighteen (18) legible copies. The original shall
and to construe instruments in any case where a decision would not be accompanied by certified true copies of such material portions of the
terminate the uncertainty or controversy which gave rise to the action, or record as are referred to therein together with other supporting papers.
in any case where the declaration or construction is not necessary and The requisite number of copies of the comments shall contain plain copies
proper under the circumstances. (5a, R64) of all documents attached to the original and a copy thereof shall be served
on the petitioner.
C. RULE 64: REVIEW OF JUDGMENTS AND FINAL ORDERS OF THE
COMELEC AND COA No other pleading may be filed by any party unless required or allowed by
the Court. (n)
Section 1. Scope. — This Rule shall govern the review of judgments and
final orders or resolutions of the Commission on Elections and the Section 8. Effect of filing. — The filing of a petition for certiorari shall
Commission on Audit. (n) not stay the execution of the judgment or final order or resolution sought
to be reviewed, unless the Supreme Court shall direct otherwise upon such
Section 2. Mode of review. — A judgment or final order or resolution of terms as it may deem just. (n)
the Commission on Elections and the Commission on Audit may be brought
by the aggrieved party to the Supreme Court on certiorari under Rule 65, Section 9. Submission for decision. — Unless the Court sets the case
except as hereinafter provided. (n; Bar Matter No. 803, 17 February 1998) for oral argument, or requires the parties to submit memoranda, the case
shall be deemed submitted for decision upon the filing of the comments
Section 3. Time to file petition. — The petition shall be filed within on the petition, or of such other pleadings or papers as may be required
thirty (30) days from notice of the judgment or final order or resolution or allowed, or the expiration of the period to do so. (n)
sought to be reviewed. The filing of a motion for new trial or
reconsideration of said judgment or final order or resolution, if allowed D. RULE 65: CERTIORARI, PROHIBITION AND MANDAMUS
under the procedural rules of the Commission concerned, shall interrupt
the period herein fixed. If the motion is denied, the aggrieved party may SUMMARY:
file the petition within the remaining period, but which shall not be less
than five (5) days in any event, reckoned from notice of denial. (n)
CERTIORARI PROHIBITION MANDAMUS
Section 4. Docket and other lawful fees. — Upon the filing of the
petition, the petitioner shall pay to the clerk of court the docket and other Petitioner Aggrieved party
lawful fees and deposit the amount of P500.00 for costs. (n) Court, Tribunal Court, Tribunal, Court, Tribunal,
Respondent or Officer Officer, Person Officer, Person or
Section 5. Form and contents of petition. — The petition shall be or Corporation Corporation
verified and filed in eighteen (18) legible copies. The petition shall name 1. Lack of 1. Lack of 1. Unlawful neglect
the aggrieved party as petitioner and shall join as respondents the Jurisdiction Jurisdiction in the performance
Commission concerned and the person or persons interested in sustaining 2. Excess of 2. Excess of of an act which the
the judgment, final order or resolution a quo. The petition shall state the Grounds
Jurisdiction Jurisdiction law specifically
facts with certainty, present clearly the issues involved, set forth the 3. Grave abuse 3. Grave abuse enjoins as a duty;
grounds and brief arguments relied upon for review, and pray for judgment of discretion of discretion 2. Unlawful
annulling or modifying the questioned judgment, final order or resolution. exclusion of
Findings of fact of the Commission supported by substantial evidence shall another from the
be final and non-reviewable. use and enjoyment
of a right or office
The petition shall be accompanied by a clearly legible duplicate original or to which such other
certified true copy of the judgment, final order or resolution subject is entitled
thereof, together with certified true copies of such material portions of the That the That judgment be
record as are referred to therein and other documents relevant and judgment or That judgment rendered
pertinent thereto. The requisite number of copies of the petition shall order be be rendered commanding and
contain plain copies of all documents attached to the original copy of said annulled or commanding the praying the
petition. Prayer modified. respondent to respondent,
desist from immediately or at
The petition shall state the specific material dates showing that it was filed further some other time to
within the period fixed herein, and shall contain a sworn certification proceedings in be specified by the
against forum shopping as provided in the third paragraph of section 3, the action or court, to do the act
Cesar Nickolai F. Soriano Jr.
3 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
 matter specified required to be done
therein. to protect the
rights of the
petitioner, and to
pay damages
sustained by the
petitioner by
reason of the
wrongful act of the
respondent.
Discretionary Discretionary or Ministerial
ministerial
Functions
No appeal or No appeal or any No appeal or any
any plain, plain, speedy or plain, speedy or
speedy or adequate adequate remedy
Common adequate remedy in the in the ordinary
Requirement
remedy in the ordinary course course of law
ordinary course of law
of law
PETITION FOR CERTIORARI
Section 1. Petition for certiorari. — When any tribunal, board or officer
exercising judicial or quasi-judicial functions has acted without or in excess
its or his jurisdiction, or with grave abuse of discretion amounting to lack
or excess of jurisdiction, and there is no appeal, or any plain, speedy, and
adequate remedy in the ordinary course of law, a person aggrieved thereby
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 such 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 thereof, copies of all pleadings and documents
relevant and pertinent thereto, and a sworn certification of non-forum
shopping as provided in the third paragraph of section 3, Rule 46. (1a)
Subject: is only grave abuse of discretion amounting to lack or excess of
jurisdiction. The Supreme Court is not a trier of facts, more so in the
consideration of the extraordinary writ of certiorari where neither questions
of fact nor law are entertained, but only questions of lack or excess of
jurisdiction or grave abuse of discretion. (Ampil vs. Ombudsman)
Grave abuse of discretion: is defined as capricious or whimsical exercise
of judgment as is equivalent to lack of jurisdiction. The abuse of discretion
must be patent and gross as to amount to an evasion of a positive duty or a
virtual refusal to perform a duty enjoined by law, or to act at all in
contemplation of law, as where the power is exercised in an arbitrary and
despotic manner by reason of passion and hostility. (People vs. Castaneda)
Jurisdiction: Hierarchy of Courts: The Supreme Court, the Court of
Appeals and the Regional Trial Courts have concurrent jurisdiction to issue a
writ of certiorari. Such concurrence of jurisdiction, however, does not give a
party unbridled freedom to choose the venue of his action lest he ran afoul of
the doctrine of hierarchy of courts. Instead, a becoming regard for judicial
hierarchy dictates that petitions for the issuance of writs of certiorari against
first level courts should be filed with the Regional Trial Court, and those
against the latter, with the Court of Appeals, before resort may be had before
the Court. This procedure is also in consonance with Section 4, Rule 65 of the
Rules of Court. (A. L. Ang Network, inc. vs. Mondejar)
Certiorari is an original action: a petition for certiorari, unlike an appeal,
is an original action designed to correct only errors of jurisdiction and not of
judgment. (A. L. Ang Network, inc. vs. Mondejar)
Appeal and Certiorari are distinct and mutually exclusive; certiorari
cannot be availed of for lost appeal: an appeal and a special civil action
such as certiorari under Rule 65 are entirely distinct and separate from each
Cesar Nickolai F. Soriano Jr.
4 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
other. One cannot file petition for certiorari under Rule 65 of the Rules where
appeal is available, even if the ground availed of is grave abuse of discretion.
A special civil action for certiorari under Rule 65 lies only when there is no
appeal, or plain, speedy and adequate remedy in the ordinary course of
law. Certiorari cannot be allowed when a party to a case fails to appeal a
judgment despite the availability of that remedy, as the same should not be
a substitute for the lost remedy of appeal. The remedies of appeal and
certiorari are mutually exclusive and not alternative or successive. (Maglalang
vs. PAGCOR)
Availability of appeal will not necessarily preclude the special civil
action for certiorari: The availability of the ordinary course of appeal does
not constitute sufficient ground to prevent a party from making use of the
extraordinary remedy of certiorari where appeal is not an adequate remedy
or equally beneficial, speedy and sufficient. It is the inadequacy – not the
mere absence – of all other legal remedies and the danger of failure of justice
without the writ that usually determines the propriety of certiorari.
Truly, an essential requisite for the availability of the extraordinary remedies
under the Rules is an absence of an appeal nor any "plain, speedy and
adequate remedy" in the ordinary course of law, one which has been so
defined as a "remedy which (would) equally (be) beneficial, speedy and
sufficient not merely a remedy which at some time in the future will bring
about a revival of the judgment x x x complained of in the certiorari
proceeding, but a remedy which will promptly relieve the petitioner from the
injurious effects of that judgment and the acts of the inferior court or tribunal"
concerned (A. L. Ang Network, inc. vs. Mondejar, citing Okada vs. Security
Pacific Assurance Corporation and Conti vs. CA)
Criminal actions, certiorari may lie, however, there must be grave
abuse of discretion: While a judgment of acquittal in a criminal case may
be assailed in a petition for certiorari under Rule 65 of the Rules of Court,it
must be shown that there was grave abuse of discretion amounting to lack or
excess of jurisdiction or a denial of due process. In this case, a perusal of the
challenged resolutions ofthe CTA does not disclose any indication of grave
abuse of discretion on its partor denial of due process. The records are replete
with indicators that the petitioner actively participated during the trial and, in
fact, presented its offer of evidence and opposed the demurrer. (People vs.
Castaneda)
Decisions in small claims suit: Section 23 of the Rule of Procedure for
Small Claims Cases states that “[t]he decision shall be final and
unappealable.”
Considering the final nature of a small claims case decision under the above-
stated rule, the remedy of appeal is not allowed, and the prevailing party may,
thus, immediately move for its execution. Nevertheless, the proscription on
appeals in small claims cases, similar to other proceedings where appeal is
not an available remedy, does not preclude the aggrieved party from filing a
petition for certiorari under Rule 65 of the Rules of Court. (A.L. Ang Network,
Inc. vs. Mondejar)
Decisions of quasi-judicial or administrative agencies which are final
and unappealable may be the subject of certiorari: Decisions of
administrative or quasi-administrative agencies which are declared by law
final and unappealable are subject to judicial review if they fail the test of
arbitrariness, or upon proof of gross abuse of discretion, fraud or error of
law. When such administrative or quasi-judicial bodies grossly misappreciate
evidence of such nature as to compel a contrary conclusion, the Court will not
hesitate to reverse the factual findings. (Maglalang vs. PAGCOR citing
Republic vs. Francisco)
Petition for certiorari may be treated as one for prohibition: President
Marcos, during Martial Law issued Presidential Decree No. 293 with immediate
effect, declaring the land of the petitioners as owned by the government and
open for disposition.
The decree reveals that Mr. Marcos exercised an obviously judicial function.
He made a determination of facts, and applied the law to those facts, declaring
what the legal rights of the parties were in the premises. These acts essentially
constitute a judicial function, or an exercise of jurisdiction — which is the
power and authority to hear or try and decide or determine a cause.
He adjudged it to be an established fact that neither the original purchasers
nor their subsequent transferees have made full payment of all installments
of the purchase money and interest on the lots claimed by Carmel Farms,
Inc., including those on which the dwellings of the members of ... (the)
Association (of homeowners) stand." And applying the law to that situation,
he made the adjudication that "title to said land has remained with the
Government, and the land now occupied by the members of said association
has never ceased to form part of the property of the Republic of the
Philippines," and that 'any and all acts affecting said land and purporting to
segregate it from the said property of the Republic ... (were) null and void ab
initio as against the law and public policy.
These acts may thus be properly struck down by the writ of certiorari, because
done by an officer in the performance of what in essence is a judicial function,
if it be shown that the acts were done without or in excess of jurisdiction, or
with grave abuse of discretion. Since Mr. Marcos was never vested with
judicial power, such power, as everyone knows, being vested in the Supreme
Court and such inferior courts as may be established by law — the judicial
acts done by him were in the circumstances indisputably perpetrated without
jurisdiction. The acts were completely alien to his office as chief executive,
and utterly beyond the permissible scope of the legislative power that he had
assumed as head of the martial law regime. (Tuason vs. Register of Deeds,
Caloocan City)
The extraordinary remedy of certiorari or prohibition is not a
substitute for a lost appeal: the arguments raised in their petition for
prohibition ineluctably shows that petitioners are principally questioning the
factual and legal bases of the finding of probable cause against them. This is
but a veiled attempt to litigate issues which should have been timely appealed
to the Secretary of Justice via a petition for review. However, petitioners,
through their own fault, failed to avail themselves of this remedy. Countless
times we have ruled that the extraordinary remedy of certiorari or prohibition
is not a substitute for a lost appeal. This case is no different. (Tan vs. CA)
PETITION FOR PROHIBITION
Section 2. Petition for prohibition. — When the proceedings of any
tribunal, corporation, board, officer or person, whether exercising judicial,
quasi-judicial or ministerial functions, are without or in excess of its or his
jurisdiction, or with grave abuse of discretion amounting to lack or excess
of jurisdiction, and there is no appeal or any other plain, speedy, and
adequate remedy in the ordinary course of law, a person aggrieved thereby
may file a verified petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered commanding the
respondent to desist from further proceedings in the action or matter
specified therein, or otherwise granting such incidental reliefs as law and
justice may require.
The petition shall likewise be accompanied by a certified true copy of the
judgment, order or resolution subject thereof, copies of all pleadings and
documents relevant and pertinent thereto, and a sworn certification of
non-forum shopping as provided in the third paragraph of section 3, Rule
46. (2a)
Prohibition or a "writ of prohibition" is that process by which a superior court
prevents inferior courts, tribunals, officers, or persons from usurping or
exercising a jurisdiction with which they have not been vested by law, and
confines them to the exercise of those powers legally conferred. Its office is
to restrain subordinate courts, tribunals or persons from exercising jurisdiction
over matters not within its cognizance or exceeding its jurisdiction in matters
of which it has cognizance. (Vivas vs. Monetary Board)
The writ of prohibition is an extraordinary remedy to prevent the unlawful and
oppressive exercise of legal authority and to provide for a fair and orderly
administration of justice. It is available only when there is no appeal or any
plain, speedy and adequate remedy in the ordinary course of law, and when
the proceedings are done without or in excess of jurisdiction or with grave
abuse of discretion. (Tan vs. CA)
Cesar Nickolai F. Soriano Jr.
5 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
Covers only errors of discretion and not errors of fact: the writ will not
lie to correct errors of judgment but only errors of jurisdiction. As long as the
tribunal acts within its jurisdiction, any alleged errors committed in the
exercise of its discretion will amount to nothing more than mere errors of
judgment which are correctible by a timely appeal. (Tan vs. CA)
Abuse of discretion must be grave: In determining whether a tribunal
acted in grave abuse of discretion, mere abuse of discretion is not
enough. There must be grave abuse of discretion as where the tribunal
exercised its power in an arbitrary or despotic manner, by reason of passion
or personal hostility, and it must be so patent or gross as would amount to
an evasion, or virtual refusal to perform the duty enjoined, or to act in
contemplation of law. (Tan vs. CA)
The question must be ripe for judicial determination: petitioner Corales
was simply required to submit his comment/reply on the observations stated
in the AOM. The issuance of an AOM is, indeed, an initial step in the conduct
of an investigative audit considering that after its issuance there are still
several steps to be conducted before a final conclusion can be made or before
the proper action can be had against the Auditee.
Viewed in this light, this Court can hardly see any actual case or controversy
to warrant the exercise of its power of judicial review. Settled is the rule that
for the courts to exercise the power of judicial review, the following must be
extant: (1) there must be an actual case calling for the exercise of judicial
power; (2) the question must be ripe for adjudication; and (3) the person
challenging must have the “standing.” An actual case or controversy involves
a conflict of legal rights, an assertion of opposite legal claims, susceptible of
judicial resolution as distinguished from a mere hypothetical or abstract
difference or dispute. There must be a contrariety of legal rights that can be
interpreted and enforced on the basis of existing law and jurisprudence.
Closely related thereto is that the question must be ripe for adjudication.
A question is considered ripe for adjudication when the act being
challenged has had a direct adverse effect on the individual
challenging it.
The requisites of actual case and ripeness are absent in the present case.
(Corales vs. Republic)
Does not apply if the act is has already been accomplished: It is a
preventive remedy seeking that a judgment be rendered which would direct
the defendant to desist from continuing with the commission of an act
perceived to be illegal. As a rule, the proper function of a writ of prohibition
is to prevent the doing of an act which is about to be done. It is not intended
to provide a remedy for acts already accomplished.
Prohibition does not lie to restrain an act that is already a fait accompli. (Vivas
vs. Monetary Board)
Section 3. Petition for mandamus. — When any tribunal, corporation,
board, officer or person unlawfully neglects the performance of an act
which the law specifically enjoins as a duty resulting from an office, trust,
or station, or unlawfully excludes another from the use and enjoyment of
a right or office to which such other is entitled, and there is no other plain,
speedy and adequate remedy in the ordinary course of law, the person
aggrieved thereby may file a verified petition in the proper court, alleging
the facts with certainty and praying that judgment be rendered
commanding the respondent, immediately or at some other time to be
specified by the court, to do the act required to be done to protect the
rights of the petitioner, and to pay the damages sustained by the petitioner
by reason of the wrongful acts of the respondent.
The petition shall also contain a sworn certification of non-forum shopping
as provided in the third paragraph of section 3, Rule 46. (3a)
Mandamus is an extraordinary writ commanding a tribunal, corporation,
board, officer or person, immediately or at some other specified time, to do
the act required to be done, when the respondent unlawfully neglects the
performance of an act which the law specifically enjoins as a duty resulting
from an office, trust, or station; or when the respondent excludes another
from the use and enjoyment of a right or office to which the latter is entitled,
and there is no other plain, speedy and adequate remedy in the ordinary
course of law. (Hipos, Sr. vs. Judge Bay)
Covers only MINISTERIAL acts and will not lie against exercise of
discretion: The remedy of mandamus is employed only to compel the
performance, when refused, of a ministerial duty, but not to require anyone
to fulfill a discretionary one. The issuance of the writ is simply a command to
exercise a power already possessed and to perform a duty already imposed.
(Sanchez vs. Lastimoso)
As an extraordinary writ, the remedy of mandamus lies only to compel
an officer to perform a ministerial duty, not a discretionary
one; mandamus will not issue to control the exercise of discretion by a public
officer where the law imposes upon him the duty to exercise his judgment in
reference to any manner in which he is required to act, because it is his
judgment that is to be exercised and not that of the court. (Hipos, Sr. vs.
Judge Bay)
Requisites: In order that a writ of mandamus may aptly issue, it is essential
that,
1. On the one hand, petitioner has a clear legal right to the claim that
is sought and
2. On the other hand, respondent has an imperative duty to perform
that which is demanded of him. (Sanchez vs. Lastimoso)
Clear and certain right is required: Mandamus is never issued in doubtful
cases, a showing of a clear and certain right on the part of the petitioner being
required. It is of no avail against an official or government agency whose duty
requires the exercise of discretion or judgment. (UP Board of Regents vs.
Ligot-Telan)
The writ can be issued only when the applicant’s legal right to the
performance of a particular act sought to be compelled is clear and complete,
one which is indubitably granted by law or is inferable as a matter of law.
(Manila International Airport Authority v. Rivera Village Lessee Homeowners
Association, Inc.)
Mandamus will not issue to enforce a right, or to compel compliance
with a duty, which is questionable or over which a substantial doubt
exists. The principal function of the writ of mandamus is to command and to
expedite, not to inquire and to adjudicate. Thus, it is neither the office
nor the aim of the writ to secure a legal right but to implement that which is
already established. Unless the right to relief sought is unclouded, mandamus
will not issue. (Sanchez vs. Lastimoso)
Officer’s doubt as to the validity of a law is not a ground to not
enforce it: The Local Government Code imposes upon respondent the duty,
as city mayor, to "enforce all laws and ordinances relative to the governance
of the city.”
Officers cannot refuse to perform their duty on the ground of an alleged
invalidity of the statute imposing the duty. The reason for this is obvious. It
might seriously hinder the transaction of public business if these officers were
to be permitted in all cases to question the constitutionality of statutes and
ordinances imposing duties upon them and which have not judicially been
declared unconstitutional. Officers of the government from the highest to the
lowest are creatures of the law and are bound to obey it. (Social Justice
Society vs. Atienza)
Mandamus against a trial court: mandamus is never available to direct
the exercise of judgment or discretion in a particular way or the retraction or
reversal of an action already taken in the exercise of either. In other words,
while a judge refusing to act on a Motion to Withdraw Informations can be
compelled bymandamus to act on the same, he cannot be compelled to act
in a certain way, i.e., to grant or deny such Motion. (Hipos, Sr. vs. Judge Bay)
Section 4. When and where petition filed. — The petition shall be
filed not later than sixty (60) days from notice of the judgment, order or
resolution. In case a motion for reconsideration or new trial is timely filed,
whether such motion is required or not, the sixty (60) day period shall be
Cesar Nickolai F. Soriano Jr.
6 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
counted from notice of the denial of said motion.
The petition shall be filed in the Supreme Court or, if it relates to the acts
or omissions of a lower court or of a corporation, board, officer or person,
in the Regional Trial Court exercising jurisdiction over the territorial area
as defined by the Supreme Court. It may also be filed in the Court of
Appeals whether or not the same is in aid of its appellate jurisdiction, or in
the Sandiganbayan if it is in aid of its appellate jurisdiction. If it involves
the acts or omissions of a quasi-judicial agency, unless otherwise provided
by law or these Rules, the petition shall be filed in and cognizable only by
the Court of Appeals.
No extension of time to file the petition shall be granted except for
compelling reason and in no case exceeding fifteen (15) days. (4a) (Bar
Matter No. 803, 21 July 1998; A.M. No. 00-2-03-SC)
Section 5. Respondents and costs in certain cases. — When the
petition filed relates to the acts or omissions of a judge, court, quasi-
judicial agency, tribunal, corporation, board, officer or person, the
petitioner shall join, as private respondent or respondents with such public
respondent or respondents, the person or persons interested in sustaining
the proceedings in the court; and it shall be the duty of such private
respondents to appear and defend, both in his or their own behalf and in
behalf of the public respondent or respondents affected by the
proceedings, and the costs awarded in such proceedings in favor of the
petitioner shall be against the private respondents only, and not against
the judge, court, quasi-judicial agency, tribunal, corporation, board, officer
or person impleaded as public respondent or respondents.
Unless otherwise specifically directed by the court where the petition is
pending, the public respondents shall not appear in or file an answer or
comment to the petition or any pleading therein. If the case is elevated to
a higher court by either party, the public respondents shall be included
therein as nominal parties. However, unless otherwise specifically directed
by the court, they shall not appear or participate in the proceedings
therein. (5a)
Section 6. Order to comment. — If the petition is sufficient in form and
substance to justify such process, the court shall issue an order requiring
the respondent or respondents to comment on the petition within ten (10)
days from receipt of a copy thereof. Such order shall be served on the
respondents in such manner as the court may direct together with a copy
of the petition and any annexes thereto.
In petitions for certiorari before the Supreme Court and the Court of
Appeals, the provisions of section 2, Rule 56, shall be observed. Before
giving due course thereto, the court may require the respondents to file
their comment to, and not a motion to dismiss, the petition. Thereafter,
the court may require the filing of a reply and such other responsive or
other pleadings as it may deem necessary and proper. (6a)
Section 7. Expediting proceedings; injunctive relief. — The court in
which the petition is filed may issue orders expediting the proceedings,
and it may also grant a temporary restraining order or a writ of preliminary
injunction for the preservation of the rights of the parties pending such
proceedings. The petition shall not interrupt the course of the principal
case unless a temporary restraining order or a writ of preliminary injunction
has been issued against the public respondent from further proceeding in
the case. (7a)
Section 8. Proceedings after comment is filed. — After the comment
or other pleadings required by the court are filed, or the time for the filing
thereof has expired, the court may hear the case or require the parties to
submit memoranda. If after such hearing or submission of memoranda or
the expiration of the period for the filing thereof the court finds that the
allegations of the petition are true, it shall render judgment for the relief
prayed for or to which the petitioner is entitled.
The court, however, may dismiss the petition if it finds the same to be
patently without merit, prosecuted manifestly for delay, or that the
 questions raised therein are too unsubstantial to require consideration.
(8a)
Section 9. Service and enforcement of order or judgment. — A
certified copy of the judgment rendered in accordance with the last
preceding section shall be served upon the court, quasi-judicial agency,
tribunal, corporation, board, officer or person concerned in such manner
as the court may direct, and disobedience thereto shall be punished as
contempt. An execution may issue for any damages or costs awarded in
accordance with section 1 of Rule 39. (9a)
E. RULE 66: QUO WARRANTO
Section 1. Action by Government against individuals. — An action
for the usurpation of a public office, position or franchise may be
commenced by a verified petition brought in the name of the Republic of
the Philippines against:
(a) A person who usurps, intrudes into, or unlawfully holds or exercises a
public office, position or franchise;
(b) A public officer who does or suffers an act which, by the provision of
law, constitutes a ground for the forfeiture of his office; or
(c) An association which acts as a corporation within the Philippines
without being legally incorporated or without lawful authority so to act.
(1a)
A judgment in quo warranto does not bind the successor in office:
Ordinarily, a judgment against a public officer in regard to a public right binds
his successor in office. This rule, however, is not applicable in quo
warranto cases. A judgment in quo warranto does not bind the
respondent's successor in office, even though such successor may
trace his title to the same source. This follows from the nature of the writ
of quo warranto itself. It is never directed to an officer as such, but always
against the person-- to determine whether he is constitutionally and legally
authorized to perform any act in, or exercise any function of the office to
which he lays claim. (Mendoza vs. Allas)
Usurpers of office in a PRIVATE corporation is not covered by a quo
warranto proceeding: As explained in the Unilongo case, Section 1(a) of
Rule 66 of the present Rules no longer contains the phrase "or an office in a
corporation created by authority of law" which was found in the old Rules.
Clearly, the present Rule 66 only applies to actions of quo
warranto against persons who usurp a public office, position or
franchise; public officers who forfeit their office; and associations
which act as corporations without being legally incorporated despite
the passage of R.A. No. 8799. (Callleja vs. Panday)
Supreme Court has original jurisdiction over mandamus but subject
to the rule on hierarchy of courts: Although Section 5(1) of Article VIII of
the 1987 Constitution explicitly provides that the Supreme Court has original
jurisdiction over petitions for certiorari, prohibition, mandamus, quo warranto,
and habeas corpus, the jurisdiction of this Court is not exclusive but is
concurrent with that of the Court of Appeals and regional trial court and does
not give petitioner unrestricted freedom of choice of court forum. The
hierarchy of courts must be strictly observed.
Settled is the rule that "the Supreme Court is a court of last resort and must
so remain if it is to satisfactorily perform the functions assigned to it by the
fundamental charter and immemorial tradition." A disregard of the doctrine of
hierarchy of courts warrants, as a rule, the outright dismissal of a petition.
A direct invocation of this Court’s jurisdiction is allowed only when there are
special and important reasons that are clearly and specifically set forth in a
petition. The rationale behind this policy arises from the necessity of
preventing (1) inordinate demands upon the time and attention of the Court,
which is better devoted to those matters within its exclusive jurisdiction; and
(2) further overcrowding of the Court’s docket. (De Castro vs. Carlos)
ELECTION LAWS:
Election Protest vs. Quo Warranto: An election protest proposes to
oust the winning candidate from office. It is strictly a contest between the
Cesar Nickolai F. Soriano Jr.
7 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
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.
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.
Nominee of a party-list is not covered by an election protest or quo
warranto; proper remedy is certiorari: Although an election protest may
properly be available to one party-list organization seeking to unseat another
party-list organization to determine which between the defeated and the
winning party-list organizations actually obtained the majority of the legal
votes, Lokin’s case is not one in which a nominee of a particular party-list
organization thereby wants to unseat another nominee of the same party-list
organization. Neither does an action for quo warranto lie, considering that the
case does not involve the ineligibility and disloyalty of Cruz-Gonzales to the
Republic of the Philippines, or some other cause of disqualification for her.
Lokin has correctly brought this special civil action for certiorari against the
COMELEC to seek the review of the resolution. (Lokin, Jr. vs. COMELEC)
Section 2. When Solicitor General or public prosecutor must
commence action. — The Solicitor General or a public prosecutor, when
directed by the President of the Philippines, or when upon complaint or
otherwise he has good reason to believe that any case specified in the
preceding section can be established by proof, must commence such
action. (3a)
Section 3. When Solicitor General or public prosecutor may
commence action with permission of court. — The Solicitor General
or a public prosecutor may, with the permission of the court in which the
action is to be commenced, bring such an action at the request and upon
the relation of another person; but in such case the officer bringing it may
first require an indemnity for the expenses and costs of the action in an
amount approved by and to be deposited in the court by the person at
whose request and upon whose relation the same is brought. (4a)
Section 4. When hearing had on application for permission to
commence action. — Upon application for permission to commence such
action in accordance with the next preceding section, the court shall direct
that notice be given to the respondent so that he may be heard in
opposition thereto; and if permission is granted, the court shall issue an
order to that effect, copies of which shall be served on all interested
parties, and the petition shall then be filed within the period ordered by
the court. (5a)
Section 5. When an individual may commence such an action. —
A person claiming to be entitled to a public office or position usurped or
unlawfully held or exercised by another may bring an action therefor in his
own name. (6)
Section 6. Parties and contents of petition against usurpation. —
When the action is against a person for usurping a public office, position
or franchise, the petition shall set forth the name of the person who claim
to be entitled thereto, if any, with an averment of his right to the same
and that the respondent is unlawfully in possession thereof. All persons
who claim to be entitled to the public office, position or franchise may be
made parties, and their respective rights to such public office, position or
franchise determined, in the same action. (7a)
Section 7. Venue. — An action under the preceding six sections can be
brought only in the Supreme Court, the Court of Appeals, or in the Regional
Trial Court exercising jurisdiction over the territorial area where the
respondent or any of the respondents resides, but when the Solicitor
 General commences the action, it may be brought in a Regional Trial Court
in the City of Manila, in the Court of Appeals, or in the Supreme Court. (8a)
Section 8. Period for pleadings and proceedings may be
reduced; action given precedence. — The court may reduce the period
provided by these Rules for filing pleadings and for all other proceedings
in the action in order to secure the most expeditious determination of the
matters involved therein consistent with the rights of the parties. Such
action may be given precedence over any other civil matter pending in the
court. (9a)
Section 9. Judgment where usurpation found. — When the
respondent is found guilty of usurping into, intruding into, or unlawfully
holding or exercising a public office, position or franchise, judgment shall
be rendered that such respondent be ousted and altogether excluded
therefrom, and that the petitioner or relator, as the case may be, recover
his costs. Such further judgment may be rendered determining the
respective rights in and to the public office, position or franchise of all the
parties to the action as justice requires. (10a)
Section 10. Rights of persons adjudged entitled to public
office; delivery of books and papers; damages. — If judgment be
rendered in favor of the person averred in the complaint to be entitled to
the public office he may, after taking the oath of office and executing any
official bond required by law, take upon himself the execution of the office,
and may immediately thereafter demand of the respondent all the books
and papers in the respondent's custody or control appertaining to the office
to which the judgment relates. If the respondent refuses or neglects to
deliver any book or paper pursuant to such demand, he may be punished
for contempt as having disobeyed a lawful order of the court. The person
adjudged entitled to the office may also bring action against the
respondent to recover the damages sustained by such person by reason
of the usurpation. (15a)
Section 11. Limitations. — Nothing contained in this Rule shall be
construed to authorize an action against a public officer or employee for
his ouster from office unless the same be commenced within one (1) year
after the cause of such ouster, or the right of the petitioner to hold such
office or position, arose, nor to authorize an action for damages in
accordance with the provisions of the next preceding section unless the
same be commenced within one (1) year after the entry of the judgment
establishing the petitioner's right to the office in question. (16a)
Section 12. Judgment for costs. — In an action brought in accordance
with the provisions of this Rule, the court may render judgment for costs
against either the petitioner, the relator, or the respondent, or the person
or persons claiming to be a corporation, or may apportion the costs, as
justice requires. (17a)
F. RULE 67: EXPROPRIATION
Eminent domain is the authority and right of the state, as sovereign, to take
private property for public use upon observance of due process of law and
payment of just compensation.
The power of eminent domain may be validly delegated to the local
governments, other public entities and public utilities, e.g. NPC.
Expropriation is the procedure for enforcing the right of eminent domain.
(National Power Corporation vs. CA)
No dismissal by plaintiff as a matter of right under Rule 17, Sec. 1 in
Expropriation proceedings: In expropriation cases, there is no such thing
as the plaintiff’s matter of right to dismiss the complaint precisely because the
landowner may have already suffered damages at the start of the taking. The
plaintiff’s right in expropriation cases to dismiss the complaint has always been
subject to court approval and to certain conditions.
If the propriety of the taking of private property through eminent domain is
subject to judicial scrutiny, the dismissal of the complaint must also pass
Cesar Nickolai F. Soriano Jr.
8 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
judicial inquiry because private rights may have suffered in the meantime.
The dismissal, withdrawal or abandonment of the expropriation case cannot
be made arbitrarily. If it appears to the court that the expropriation is not for
some public use, then it becomes the duty of the court to dismiss the
action. However, when the defendant claims that his land suffered damage
because of the expropriation, the dismissal of the action should not foreclose
the defendant’s right to have his damages ascertained either in the same case
or in a separate action.
The dismissal of the complaint can be made under certain conditions, such as
the reservation of the defendant’s right to recover damages either in the same
or in another action. (National Power Corporation vs. CA)
Section 1. The complaint. — The right of eminent domain shall be
exercised by the filing of a verified complaint which shall state with
certainty the right and purpose of expropriation, describe the real or
personal property sought to be expropriated, and join as defendants all
persons owning or claiming to own, or occupying, any part thereof or
interest therein, showing, so far as practicable, the separate interest of
each defendant. If the title to any property sought to be expropriated
appears to be in the Republic of the Philippines, although occupied by
private individuals, or if the title is otherwise obscure or doubtful so that
the plaintiff cannot with accuracy or certainty specify who are the real
owners, averment to that effect shall be made in the complaint. (1a)
TWO STAGES OF EXPROPRIATION:
1. Condemnation of the property after it is determined that its acquisition
will be for a public purpose or public use;
This is 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. It ends with an order, if
not of dismissal of the action, "of condemnation declaring that the
plaintiff has a lawful right to take the property sought to be condemned,
for the public use or purpose described in the complaint, upon the
payment of just compensation to be determined as of the date of the
filing of the complaint.
2. The determination of just compensation to be paid for the taking of
private property to be made by the court with the assistance of not more
than three commissioners. (City fo Manila vs. Serrano)
It is only upon the completion of these two stages that expropriation is
said to have been completed. The process is not complete until payment
of just compensation. Accordingly, the issuance of the writ of possession
in this case does not write finis to the expropriation proceedings.
Transfer of ownership is not upon issuance of the writ of possession
but upon payment of just compensation: To effectuate the transfer of
ownership, it is necessary for the NPC to pay the property owners the final
just compensation.
The mere issuance of a writ of possession in the expropriation proceedings
did not transfer ownership of the lots in favor of the City. Such issuance was
only the first stage in expropriation. There is even no evidence that judicial
deposit had been made in favor of respondents prior to the Citys possession
of the lots, contrary to Section 19 of the LGC. (Sps. Abad vs. Fil-Homes Realty
and Development Corporation)
Section 2. Entry of plaintiff upon depositing value with authorized
government depositary. — Upon the filing of the complaint or at any
time thereafter and after due notice to the defendant, the plaintiff shall
have the right to take or enter upon the possession of the real property
involved if he deposits with the authorized government depositary an
amount equivalent to the assessed value of the property for purposes of
taxation to be held by such bank subject to the orders of the court. Such
deposit shall be in money, unless in lieu thereof the court authorizes the
deposit of a certificate of deposit of a government bank of the Republic of
the Philippines payable on demand to the authorized government
depositary.

If personal property is involved, its value shall be provisionally ascertained
and the amount to be deposited shall be promptly fixed by the court.
After such deposit is made the court shall order the sheriff or other proper
officer to forthwith place the plaintiff in possession of the property involved
and promptly submit a report thereof to the court with service of copies to
the parties. (2a)
Amounts of deposit required: to whom paid: In infrastructure projects
of the government – 100% of the zonal valuation of the property as
determined by the BIR and the value of the improvements; and paid directly
to the property owner, before the writ may issue.
Writ of Possession: a writ of execution may be issued by a court upon
1. The filing by the government of a complaint for expropriation sufficient
in form and substance and
2. Upon deposit made by the government of the amount equivalent to the
assessed value of the property subject to expropriation.
Upon compliance with these requirements, the issuance of the writ of
possession becomes ministerial. (City of Manila vs. Serrano)
Remedy against grant of Writ of Possession: is a petition for certiorari,
not a petition for review since the latter is a mode of appeal and the grant of
a writ of possession is an interlocutory order from which no appeal may be
had.
Ejectment cases are suspended upon filing of expropriation
proceedings: When the Government seeks to acquire, through purchase or
expropriation proceedings, any action for ejectment against the tenants
occupying said lands shall be automatically suspended, for such time as may
be required by the expropriation proceedings or the necessary negotiations
for the purchase of the lands, in which latter case, the period of suspension
shall not exceed one year.
To avail himself of the benefits of the suspension, the tenants shall pay to the
landowner the current rents as they become due or deposit the same with the
court where the action for ejectment has been instituted. (Sps. Abad vs. Fil-
Homes Realty and Development Corporation)
Section 3. Defenses and objections. — If a defendant has no objection
or defense to the action or the taking of his property, he may file and serve
a notice of appearance and a manifestation to that effect, specifically
designating or identifying the property in which he claims to be interested,
within the time stated in the summons. Thereafter, he shall be entitled to
notice of all proceedings affecting the same.
If a defendant has any objection to the filing of or the allegations in the
complaint, or any objection or defense to the taking of his property, he
shall serve his answer within the time stated in the summons. The answer
shall specifically designate or identify the property in which he claims to
have an interest, state the nature and extent of the interest claimed, and
adduce all his objections and defenses to the taking of his property. No
counterclaim, cross-claim or third-party complaint shall be alleged or
allowed in the answer or any subsequent pleading.
A defendant waives all defenses and objections not so alleged but the
court, in the interest of justice, may permit amendments to the answer to
be made not later than ten (10) days from the filing thereof. However, at
the trial of the issue of just compensation whether or not a defendant has
previously appeared or answered, he may present evidence as to the
amount of the compensation to be paid for his property, and he may share
in the distribution of the award. (n)
Section 4. Order of expropriation. — If the objections to and the
defenses against the right of the plaintiff to expropriate the property are
overruled, or when no party appears to defend as required by this Rule,
the court may issue an order of expropriation declaring that the plaintiff
has a lawful right to take the property sought to be expropriated, for the
public use or purpose described in the complaint, upon the payment of just
Cesar Nickolai F. Soriano Jr.
9 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
compensation to be determined as of the date of the taking of the property
or the filing of the complaint, whichever came first.
A final order sustaining the right to expropriate the property may be
appealed by any party aggrieved thereby. Such appeal, however, shall not
prevent the court from determining the just compensation to be paid.
After the rendition of such an order, the plaintiff shall not be permitted to
dismiss or discontinue the proceeding except on such terms as the court
deems just and equitable. (4a)
Section 5. Ascertainment of compensation. — Upon the rendition of
the order of expropriation, the court shall appoint not more than three (3)
competent and disinterested persons as commissioners to ascertain and
report to the court the just compensation for the property sought to be
taken. The order of appointment shall designate the time and place of the
first session of the hearing to be held by the commissioners and specify
the time within which their report shall be submitted to the court.
Copies of the order shall be served on the parties. Objections to the
appointment of any of the commissioners shall be filed with the court
within ten (10) days from service, and shall be resolved within thirty (30)
days after all the commissioners shall have received copies of the
objections. (5a)
Just compensation is reckoned from the time of taking: the amount of
just compensation is to be ascertained as of the time of the taking, which
usually coincides with the commencement of the expropriation proceedings.
Where the institution of the action precedes entry into the property, the
amount of just compensation is to be ascertained as of the time of the filing
of the complaint. (National Power Corporation vs. YCLA Sugar Development
Corporation)
Section 6. Proceedings by commissioners. — Before entering upon
the performance of their duties, the commissioners shall take and
subscribe an oath that they will faithfully perform their duties as
commissioners, which oath shall be filed in court with the other
proceedings in the case. Evidence may be introduced by either party
before the commissioners who are authorized to administer oaths on
hearings before them, and the commissioners shall, unless the parties
consent to the contrary, after due notice to the parties, to attend, view
and examine the property sought to be expropriated and its surroundings,
and may measure the same, after which either party may, by himself or
counsel, argue the case. The commissioners shall assess the consequential
damages to the property not taken and deduct from such consequential
damages the consequential benefits to be derived by the owner from the
public use or purpose of the property taken, the operation of its franchise
by the corporation or the carrying on of the business of the corporation or
person taking the property. But in no case shall the consequential benefits
assessed exceed the consequential damages assessed, or the owner be
deprived of the actual value of his property so taken. (6a)
Section 7. Report by commissioners and judgment thereupon. —
The court may order the commissioners to report when any particular
portion of the real estate shall have been passed upon by them, and may
render judgment upon such partial report, and direct the commissioners
to proceed with their work as to subsequent portions of the property
sought to be expropriated, and may from time to time so deal with such
property. The commissioners shall make a full and accurate report to the
court of all their proceedings, and such proceedings shall not be effectual
until the court shall have accepted their report and rendered judgment in
accordance with their recommendations. Except as otherwise expressly
ordered by the court, such report shall be filed within sixty (60) days from
the date the commissioners were notified of their appointment, which time
may be extended in the discretion of the court. Upon the filing of such
report, the clerk of the court shall serve copies thereof on all interested
parties, with notice that they are allowed ten (10) days within which to file
objections to the findings of the report, if they so desire. (7a)
Áctions the court may take based on the Commissioners’ Report: The
trial court, in expropriation cases, may accept or reject, whether in whole or
in part, the report submitted by the Board of Commissioners, which is merely
advisory and recommendatory in character. It may also recommit the report
or set aside the same and appoint new commissioners. (National Power
Corporation vs. YCLA Sugar Development Corporation)
Section 8. Action upon commissioners' report. — Upon the
expiration of the period of ten (10) days referred to in the preceding
section, or even before the expiration of such period but after all the
interested parties have filed their objections to the report or their
statement of agreement therewith, the court may, after hearing, accept
the report and render judgment in accordance therewith, or, for cause
shown, it may recommit the same to the commissioners for further report
of facts, or it may set aside the report and appoint new commissioners; or
it may accept the report in part and reject it in part and it may make such
order or render such judgment as shall secure to the plaintiff the property
essential to the exercise of his right of expropriation, and to the defendant
just compensation for the property so taken. (8a)
Section 9. Uncertain ownership; conflicting claims. — If the
ownership of the property taken is uncertain, or there are conflicting claims
to any part thereof, the court may order any sum or sums awarded as
compensation for the property to be paid to the court for the benefit of
the person adjudged in the same proceeding to be entitled thereto. But
the judgment shall require the payment of the sum or sums awarded to
either the defendant or the court before the plaintiff can enter upon the
property, or retain it for the public use or purpose if entry has already been
made. (9a)
Section 10. Rights of plaintiff after judgment and payment. —
Upon payment by the plaintiff to the defendant of the compensation fixed
by the judgment, with legal interest thereon from the taking of the
possession of the property, or after tender to him of the amount so fixed
and payment of the costs, the plaintiff shall have the right to enter upon
the property expropriated and to appropriate it for the public use or
purpose defined in the judgment, or to retain it should he have taken
immediate possession thereof under the provisions of section 2 hereof. If
the defendant and his counsel absent themselves from the court, or decline
to receive the amount tendered, the same shall be ordered to be deposited
in court and such deposit shall have the same effect as actual payment
thereof to the defendant or the person ultimately adjudged entitled
thereto. (10a)
Section 11. Entry not delayed by appeal; effect of reversal. — The
right of the plaintiff to enter upon the property of the defendant and
appropriate the same for public use or purpose shall not be delayed by an
appeal from the judgment. But if the appellate court determines that
plaintiff has no right of expropriation, judgment shall be rendered ordering
the Regional Trial Court to forthwith enforce the restoration to the
defendant of the possession of the property, and to determine the
damages which the defendant sustained and may recover by reason of the
possession taken by the plaintiff. (11a)
Section 12. Costs, by whom paid. — The fees of the commissioners
shall be taxed as a part of the costs of the proceedings. All costs, except
those of rival claimants litigating their claims, shall be paid by the plaintiff,
unless an appeal is taken by the owner of the property and the judgment
is affirmed, in which event the costs of the appeal shall be paid by the
owner. (12a)
Section 13. Recording judgment, and its effect. — The judgment
entered in expropriation proceedings shall state definitely, by an adequate
description, the particular property or interest therein expropriated, and
the nature of the public use or purpose for which it is expropriated. When
real estate is expropriated, a certified copy of such judgment shall be
recorded in the registry of deeds of the place in which the property is
situated, and its effect shall be to vest in the plaintiff the title to the real
estate so described for such public use or purpose. (13a)
Section 14. Power of guardian in such proceedings. — The guardian
or guardian ad litem of a minor or of a person judicially declared to be
incompetent may, with the approval of the court first had, do and perform
on behalf of his ward any act, matter, or thing respecting the expropriation
Cesar Nickolai F. Soriano Jr.
10 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
for public use or purpose of property belonging to such minor or person
judicially declared to be incompetent, which such minor or person judicially
declared to be incompetent could do in such proceedings if he were of age
or competent. (14a)
G. RULE 68: FORECLOSURE OF REAL ESTATE MORTGAGE
Section 1. Complaint in action for foreclosure. — In an action for the
foreclosure of a mortgage or other encumbrance upon real estate, the
complaint shall set forth the date and due execution of the mortgage; its
assignments, if any; the names and residences of the mortgagor and the
mortgagee; a description of the mortgaged property; a statement of the
date of the note or other documentary evidence of the obligation secured
by the mortgage, the amount claimed to be unpaid thereon; and the
names and residences of all persons having or claiming an interest in the
property subordinate in right to that of the holder of the mortgage, all of
whom shall be made defendants in the action. (1a)
Section 2. Judgment on foreclosure for payment or sale. — If upon
the trial in such action the court shall find the facts set forth in the
complaint to be true, it shall ascertain the amount due to the plaintiff upon
the mortgage debt or obligation, including interest and other charges as
approved by the court, and costs, and shall render judgment for the sum
so found due and order that the same be paid to the court or to the
judgment obligee within a period of not less than ninety (90) days nor
more than one hundred twenty (120) days from the entry of judgment,
and that in default of such payment the property shall be sold at public
auction to satisfy the judgment. (2a)
Section 3. Sale of mortgaged property; effect. — When the
defendant, after being directed to do so as provided in the next preceding
section, fails to pay the amount of the judgment within the period specified
therein, the court, upon motion, shall order the property to be sold in the
manner and under the provisions of Rule 39 and other regulations
governing sales of real estate under execution. Such sale shall not affect
the rights of persons holding prior encumbrances upon the property or a
part thereof, and when confirmed by an order of the court, also upon
motion, it shall operate to divest the rights in the property of all the parties
to the action and to vest their rights in the purchaser, subject to such rights
of redemption as may be allowed by law.
Upon the finality of the order of confirmation or upon the expiration of the
period of redemption when allowed by law, the purchaser at the auction
sale or last redemptioner, if any, shall be entitled to the possession of the
property unless a third party is actually holding the same adversely to the
judgment obligor. The said purchaser or last redemptioner may secure a
writ of possession, upon motion, from the court which ordered the
foreclosure. (3a)
Section 4. Disposition of proceeds of sale. — The amount realized
from the foreclosure sale of the mortgaged property shall, after deducting
the costs of the sale, be paid to the person foreclosing the mortgage, and
when there shall be any balance or residue, after paying off the mortgage
debt due, the same shall be paid to junior encumbrancers in the order of
their priority, to be ascertained by the court, or if there be no such
encumbrancers or there be a balance or residue after payment to them,
then to the mortgagor or his duly authorized agent, or to the person
entitled to it. (4a)
Section 5. How sale to proceed in case the debt is not all due. —
If the debt for which the mortgage or encumbrance was held is not all due
as provided in the judgment as soon as a sufficient portion of the property
has been sold to pay the total amount and the costs due, the sale shall
terminate; and afterwards as often as more becomes due for principal or
interest and other valid charges, the court may, on motion, order more to
be sold. But if the property cannot be sold in portions without prejudice to
the parties, the whole shall be ordered to be sold in the first instance, and
the entire debt and costs shall be paid, if the proceeds of the sale be
sufficient therefor, there being a rebate of interest where such rebate is
proper. (5a)

Section 6. Deficiency judgment. — If upon the sale of any real property
as provided in the next preceding section there be a balance due to the
plaintiff after applying the proceeds of the sale, the court, upon motion,
shall render judgment against the defendant for any such balance for
which, by the record of the case, he may be personally liable to the
plaintiff, upon which execution may issue immediately if the balance is all
due at the time of the rendition of the judgment; otherwise; the plaintiff
shall be entitled to execution at such time as the balance remaining
becomes due under the terms of the original contract, which time shall be
stated in the judgment. (6a)
Section 7. Registration. — A certified copy of the final order of the court
confirming the sale shall be registered in the registry of deeds. If no right
of redemption exists, the certificate of title in the name of the mortgagor
shall be cancelled, and a new one issued in the name of the purchaser.
Where a right of redemption exists, the certificate of title in the name of
the mortgagor shall not be cancelled, but the certificate of sale and the
order confirming the sale shall be registered and a brief memorandum
thereof made by the registrar of deeds upon the certificate of title. In the
event the property is redeemed, the deed of redemption shall be registered
with the registry of deeds, and a brief memorandum thereof shall be made
by the registrar of deeds on said certificate of title.
If the property is not redeemed, the final deed of sale executed by the
sheriff in favor of the purchaser at the foreclosure sale shall be registered
with the registry of deeds; whereupon the certificate of title in the name
of the mortgagor shall be cancelled and a new one issued in the name of
the purchaser. (n)
Section 8. Applicability of other provisions. — The provisions of
sections 31, 32 and 34 of Rule 39 shall be applicable to the judicial
foreclosure of real estate mortgages under this Rule insofar as the former
are not inconsistent with or may serve to supplement the provisions of the
latter. (8a)
EXTRA-JUDICIAL FORECLOSURE:
Notice to mortgagor is not necessary if not stipulated: unless the
parties stipulate, personal notice to the mortgagor in extrajudicial foreclosure
proceedings is not necessary because Section 3 of Act No. 3135 only requires
the posting of the notice of sale in three public places and the publication of
that notice in a newspaper of general circulation. (Carlos Lim, et al. v.
Development Bank of the Philippines)
Hence, lack of notice is not a ground to set aside the foreclosure sale.
(Ardiente vs. Provincial Sheriff, Register of Deeds of Quezon)
If stipulated and not complied with, the foreclosure is invalid: the purpose of
the stipulation is to apprise respondent of any action which the mortgagee
might take on the subject property, thus according him the opportunity to
safeguard his rights. When the mortgagee failed to send the notice of
foreclosure sale to the mortgagor, he committed a contractual breach sufficient
to render the foreclosure sale null and void. (Ramirez vs. Manila Banking
Corporation)
Writ of Possession: the purchaser in an extra-judicial foreclosure sale is
entitled to the possession of the property and can demand that he be placed
in possession of the same either:
1. During the period of redemption by filing a bond; or
2. After the expiration of the redemption period even without a bond.
The law expressly authorizes the purchaser to petition for a writ of possession
during the redemption period by filing an ex parte motion under oath for that
purpose in the corresponding registration or cadastral proceeding in the case
of property with Torrens title; and upon the filing of such motion and the
approval of the corresponding bond, the law also in express terms directs the
court to issue the order for a writ of possession.
The buyer in a foreclosure sale becomes the absolute owner of the property
Cesar Nickolai F. Soriano Jr.
11 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
purchased if it is not redeemed during the period of one year after the
registration of the sale. As such, he is entitled to the possession of the said
property and can demand it at any time following the consolidation of
ownership in his name and the issuance to him of a new transfer certificate of
title. The buyer can in fact demand possession of the land even during the
redemption period except that he has to post a bond in accordance with
Section 7 of Act No. 3135, as amended. (Sps. Marquez vs. Sps. Alindog, citing
Garcia vs. San Jose)
EXCEPTION: The ministerial issuance of a writ of possession in favor of the
purchaser in an extra-judicial foreclosure sale, however, admits of an
exception. Section 33, Rule 39 of the Rules of Court (Rules) pertinently
provides that the possession of the mortgaged property may be awarded to a
purchaser in an extra-judicial foreclosure unless a third party is actually
holding the property by adverse title or right.
In the recent case of Rural Bank of Sta. Barbara (Iloilo), Inc. v. Centeno, citing
the case of China Banking Corp., the Court illumined that "the phrase ‘a third
party who is actually holding the property adversely to the judgment obligor’
contemplates a situation in which a third party holds the property by
adverse title or right, such as that of a co-owner, tenant or
usufructuary. The co-owner, agricultural tenant, and usufructuary possess
the property in their own right, and they are not merely the successor or
transferee of the right of possession of another co-owner or the owner of the
property. Notably, the property should not only be possessed by a third party,
but also held by the third party adversely to the judgment obligor. (Sps.
Marquez vs. Sps. Alindog)
Procedure in the issuance of the writ: No hearing is required prior to
the issuance of a writ of possession. This is clear from the following
disquisitions in Espinoza v. United Overseas Bank Phils. which reiterates the
settled rules on writs of possession, to wit:
The proceeding in a petition for a writ of possession is ex
parte and summary in nature. It is a judicial proceeding
brought for the benefit of one party only and without
notice by the court to any person adverse of interest. It is
a proceeding wherein relief is granted without giving the
person against whom the relief is sought an opportunity to
be heard.
By its very nature, an ex parte petition for issuance of a writ of possession is
a non-litigious proceeding. It is a judicial proceeding for the enforcement of
one's right of possession as purchaser in a foreclosure sale. It is not an ordinary
suit filed in court, by which one party sues another for the enforcement of a
wrong or protection of a right, or the prevention or redress of a wrong. (LKZ
Holdings and Development Corporation vs. Planters Development Bank)
Period of Redemption:
1. Mortgagor is individual – 1 year from the registration of the certificate of
sale;
2. Mortgagor is juridical entity and mortgaee is a bank - 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. (Sec. 47 of RA 8791, General
Banking Law of 2000)
H. RULE 69: PARTITION
Partition calls for the segregation and conveyance of a determinate portion
of the property owned in common. It seeks a severance of the individual
interests of each co-owner, vesting in each of them a sole estate in a specific
property and giving each one a right to enjoy his estate without supervision
or interference from the other. In other words, the purpose of partition is to
put an end to co-ownership. (Balus vs. Balus)
STAGES OF PARTITION:
1. Determination of co-ownership: The first stage in an action for partition
is the settlement of the issue of ownership. Such an action will not lie if
the claimant has no rightful interest in the subject property. In fact, the
parties filing the action are required by the Rules of Court to set forth in
 their complaint the nature and the extent of their title to the property. It
would be premature to effect a partition until and unless the question of
ownership is first definitely resolved. (Vda de Figuracion vs. Giruacion–
Gerilla)
2. Actual termination of co-ownership through the segregation of the
common property. (Arriola vs. Arriola)
Prescription period of annulling an extra-judicial settlement of
estate on the ground of fraud: registration: four (4) years counted from
the discovery of fraud.
Such discovery is deemed to have taken place when the instrument was filed
with the Register of Deeds and new certificates of title were for the
registration of the deed of extra-judicial settlement constitute constructive
notice to the whole world. (Feliciano vs. Canoza)
1. THE COMPLAINT
Section 1. Complaint in action for partition of real estate.
A person having the right to compel the partition of real estate may do so
as provided in this Rule, setting forth in his complaint the nature and extent
of his title and an adequate description of the real estate of which partition
is demanded and joining as defendants all other persons interested in the
property.
2. THE ORDER
Sec. 2. Order for partition, and partition by agreement
thereunder.
If after the trial the court finds that the plaintiff has the right thereto, it
shall order the partition of the real estate among all the parties in interest.
Thereupon the parties may, if they are able to agree, make the partition
among themselves by proper instruments of conveyance, and the court
shall confirm the partition so agreed upon by all the parties, and such
partition, together with the order of the court confirming the same, shall
be recorded in the registry of deeds of the place in which the property is
situated.
A final order decreeing partition and accounting may be appealed by any
party aggrieved thereby.
3. RULE OF COMMISSIONERS (s3 to s7)
Sec. 3. Commissioners to make partition when parties fail to
agree.
If the parties are unable to agree upon the partition, the court shall appoint
not more than three (3) competent and disinterested persons as
commissioners to make the partition, commanding them to set off to the
plaintiff and to each party in interest such part and proportion of the
property as the court shall direct
Sec. 4. Oath and duties of commissioners.
Before making such partition, the commissioners shall take and subscribe
an oath that they will faithfully perform their duties as commissioners,
which oath shall be filed in court with the other proceedings in the case.
In making the partition, the commissioners shall view and examine the real
estate, after due notice to the parties to attend at such view and
examination, and shall hear the parties as to their preference in the portion
of the property to be set apart to them and the comparative value thereof,
and shall set apart the same to the parties in lots or parcels as will be most
advantageous and equitable, having due regard to the improvements,
situation and quality of the different parts thereof.
Sec. 5. Assignment or sale of real estate by commissioners.
When it is made to appear to the commissioners that the real estate, or a
portion thereof, cannot be divided without prejudice to the interests of the
Cesar Nickolai F. Soriano Jr.
12 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
parties, the court may order it assigned to one of the parties willing to take
the same, provided he pays to the other parties such amounts as the
commissioners deem equitable, unless one of the interested parties asks
that the property be sold instead of being so assigned, in which case the
court shall order the commissioners to sell the real estate at public sale
under such conditions and within such time as the court may determine.
Sec. 6. Report of commissioners; proceedings not binding until
confirmed.
The commissioners shall make a full and accurate report to the court of all
their proceedings as to the partition, or the assignment of real estate to
one of the parties, or the sale of the same. Upon the filing of such report,
the clerk of court shall serve copies thereof on all the interested parties
with notice that they are allowed ten (10) days within which to file
objections to the findings of the report, if they so desire. No proceeding
had before or conducted by the commissioners shall pass the title to the
property or bind the parties until the court shall have accepted the report
of the commissioners and rendered judgment thereon
Sec. 7. Action of the court upon commissioners’ report.
Upon the expiration of the period of ten (10) days referred to in the
preceding section, or even before the expiration of such period but after
the interested parties have filed their objections to the report or their
statement of agreement therewith, the court may, upon hearing, accept
the report and render judgment in accordance therewith; or, for cause
shown, recommit the same to the commissioners for further report of
facts; or set aside the report and appoint new commissioners; or accept
the report in part and reject it in part; and may make such order and
render such judgment as shall effectuate a fair and just partition of the
real estate, or of its value, if assigned or sold as above provided, between
the several owners thereof.
4. THE JUDGMENT (s11)
Sec. 11. The judgment and its effect; copy to be recorded in
registry of deeds.
If actual partition of property is made, the judgment shall state definitely,
by metes and bounds and adequate description, the particular portion of
the real estate assigned to each party, and the effect of the judgment shall
be to vest in each party to the action in severalty the portion of the real
estate assigned to him. If the whole property is assigned to one of the
parties upon his paying to the others the sum or sums ordered by the
court, the judgment shall state the fact of such payment and of the
assignment of the real estate to the party making the payment, and the
effect of the judgment shall be to vest in the party making the payment
the whole of the real estate free from any interest on the part of the other
parties to the action. If the property is sold and the sale confirmed by the
court, the judgment shall state the name of the purchaser or purchasers
and a definite description of the parcels of real estate sold to each
purchaser, and the effect of the judgment shall be to vest the real estate
in the purchaser or purchasers making the payment or payments, free
from the claims of any of the parties to the action. A certified copy of the
judgment shall in either case be recorded in the registry of deeds of the
place in which the real estate is situated, and the expenses of such
recording shall be taxed as part of the costs of the action.
I. RULE 70: FORCIBLE ENTRY AND UNLAWFUL DETAINER
Actions to Recover Possession
In Spouses Valdez, Jr., the Court is instructive anent the three kinds of actions
available to recover possession of real property, viz:
(a) accion interdictal;
(b) accion publiciana; and
(c) accion reivindicatoria.
A. Accion interdictal comprises two distinct causes of action, namely,
forcible entry (detentacion) and unlawful detainer (desahuico) [sic].
1. In forcible entry, one is deprived of physical possession of real property
by means of force, intimidation, strategy, threats, or stealth whereas
2. In unlawful detainer, one illegally withholds possession after the
expiration or termination of his right to hold possession under any
contract, express or implied.
DISCTINCTION: in forcible entry, the possession of the defendant is illegal
from the beginning, and that the issue is which party has prior de
facto possession while in unlawful detainer, possession of the defendant is
originally legal but became illegal due to the expiration or termination of the
right to possess.
JURISDICTION: PERIOD OF FILING: [both are] summary in nature,
[jurisdiction] lies in the proper municipal trial court or metropolitan trial
court. Both actions must be brought within one year from the date of actual
entry on the land, in case of forcible entry, and from the date of last demand,
in case of unlawful detainer.
ISSUE: is the right to physical possession.
B. Accion publiciana is the plenary action to recover the right of possession
which should be brought in the proper regional trial court when dispossession
has lasted for more than one year. It is an ordinary civil proceeding to
determine the better right of possession of realty independently of title. In
other words, 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
defendant’s possession had become illegal, the action will be, not one of the
forcible entry or illegal detainer, but an accion publiciana.
C. Accion reivindicatoria is an action to recover ownership also brought in
the proper regional trial court in an ordinary civil proceeding. (Suarez vs.
Emboy, Jr.)
Identity of Property:
1. Jurisdiction: in an action for recovery of possession, the assessed value
of the property sought to be recovered determines the court's
jurisdiction.
In this case, for the RTC to exercise jurisdiction, the assessed value of
the subject property must exceed P20,000.00. (Heirs of Julao vs. De
Jesus)
2. Required by Law: In an action to recover, the property must be
identified.
Article 434 of the Civil Code states that "[i]n an action to recover, the
property must be identified, and the plaintiff must rely on the strength
of his title and not on the weakness of the defendant's claim." The
plaintiff, therefore, is duty-bound to clearly identify the land sought to
be recovered, in accordance with the title on which he anchors his right
of ownership. It bears stressing that the failure of the plaintiff to
establish the identity of the property claimed is fatal to his case.
(Heirs of Julao vs. De Jesus)
When and How dispossession was made relevant to determine
timeliness: 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. (Dela Cruz vs.
Capco)
If no allegations, action should be publiciana or reinvindicatoria: the
jurisdictional facts must appear on the face of the complaint. When the
Cesar Nickolai F. Soriano Jr.
13 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
complaint fails to aver facts constitutive of forcible entry or unlawful detainer,
as where it does not state how entry was effected or how and when
dispossession started, the remedy should either be an accion publiciana or
accion reivindicatoria. (Suarez vs. Emboy, Jr.)
Allegations for unlawful detainer: The complaint must show enough on
its face to give the court jurisdiction without resort to parol testimony. A
complaint, to sufficiently make out a case for unlawful detainer and fall under
the jurisdiction of the MeTC, must allege that:
1. initially, possession of property by the defendant was by contract with or
by tolerance of the plaintiff;
2. eventually, such possession became illegal upon notice by plaintiff to
defendant of the termination of the latter’s right of possession;
3. thereafter, the defendant remained in possession of the property and
deprived the plaintiff of the enjoyment thereof; and;
4. within one year from the last demand on defendant to vacate the
property, the plaintiff instituted the complaint for ejectment. (Dela Cruz
vs. Capco)
Tolerance as a ground for unlawful detainer: The Court has consistently
adopted this position: tolerance or permission must have been present at the
beginning of possession if the possession was unlawful from the start, an
action for unlawful detainer would not be the proper remedy and should be
dismissed. (Jose vs. Alfuerto)
There can be no tolerance as petitioners alleged that respondent’s possession
was illegal at the inception. (Del Rosario vs. GRF, Inc.)
In unlawful detainer, payment of rentals is from demand to vacate
and not from start ofpossession: While indeed Tormil, as the victor
inthe unlawful detainer suit, is entitled to the fair rental value for the use
and occupation of the unit in the building, such compensation should not be
reckoned from the time Pro-Guard began to occupy the same, but from the
time of the demand to vacate. "In unlawful detainer cases, the defendant is
necessarily in prior lawful possession of the property but his possession
eventually becomes unlawful upon termination or expiration of his right to
possess." (Pro-Guard Security Services Corporation vs. Tormil)
1. PARTIES
Section 1. Who may institute proceedings, and when. Subject to
the provisions of the next succeeding section, a person deprived of the
possession of any land or building by force, intimidation, threat, strategy,
or stealth, or a lessor, vendor, vendee, or other person against whom the
possession of any land or building is unlawfully withheld after the
expiration or termination of the right to hold possession, by virtue of any
contract, express or implied, or the legal representatives or assigns of any
such lessor, vendor, vendee, or other person, may, at any time within one
(1) year after such unlawful deprivation or withholding of possession, bring
an action in the proper Municipal Trial Court against the person or persons
unlawfully withholding or depriving of possession, or any person or persons
claiming under them, for the restitution of such possession, together with
damages and costs.
2. PROCEDURE: SUMMARY (s3 to s15)
Sec. 3. Summary procedure. Except in cases covered by the agricultural
tenancy laws or when the law otherwise expressly provides, all actions for
forcible entry and unlawful detainer, irrespective of the amount of
damages or unpaid rentals sought to be recovered, shall be governed by
the summary procedure hereunder provided.
Sec. 4. Pleadings allowed. The only pleadings allowed to be filed are
the complaint, compulsory counterclaim and cross-claim pleaded in the
answer, and the answers thereto. All pleadings shall be verified.
Section 5. Action on complaint. — The court may, from an examination
of the allegations in the complaint and such evidence as may be attached
thereto, dismiss the case outright on any of the grounds for the dismissal
of a civil action which are apparent therein. If no ground for dismissal is
found, it shall forthwith issue summons. (n)

Section 6. Answers. — Within ten (10) days from service of summons,
the defendant shall file his answer to the complaint and serve a copy
thereof on the plaintiff. Affirmative and negative defenses not pleaded
therein shall be deemed waived, except lack of jurisdiction over the subject
matter. Cross-claims and compulsory counterclaims not asserted in the
answer shall be considered barred. The answer to counterclaims or cross-
claims shall be served and filed within ten (10) days from service of the
answer in which they are pleaded. (5 RSP)
Section 7. Effect of failure to answer. — Should the defendant fail to
answer the complaint within the period above provided, the court, motu
proprio or on motion of the plaintiff, shall render judgment as may be
warranted by the facts alleged in the complaint and limited to what is
prayed for therein. The court may in its discretion reduce the amount of
damages and attorney's fees claimed for being excessive or otherwise
unconscionable, without prejudice to the applicability of section 3 (c), Rule
9 if there are two or more defendants. (6, RSP)
Section 8. Preliminary conference; appearance of parties. — Not
later than thirty (30) days after the last answer is filed, a preliminary
conference shall be held. The provisions of Rule 18 on pre-trial shall be
applicable to the preliminary conference unless inconsistent with the
provisions of this Rule.
The failure of the plaintiff to appear in the preliminary conference shall be
cause for the dismissal of his complaint. The defendant who appears in the
absence of the plaintiff shall be entitled to judgment on his counterclaim
in accordance with the next preceding section. All cross-claims shall be
dismissed. (7, RSP)
If a sole defendant shall fail to appear, the plaintiff shall likewise be entitled
to judgment in accordance with the next preceding section. This procedure
shall not apply where one of two or more defendants sued under a
common cause of action defense shall appear at the preliminary
conference.
No postponement of the preliminary conference shall be granted except
for highly meritorious grounds and without prejudice to such sanctions as
the court in the exercise of sound discretion may impose on the movant.
(n)
Section 9. Record of preliminary conference. — Within five (5) days
after the termination of the preliminary conference, the court shall issue
an order stating the matters taken up therein, including but not limited to:
1. Whether the parties have arrived at an amicable settlement, and if so,
the terms thereof;
2. The stipulations or admissions entered into by the parties;
3. Whether, on the basis of the pleadings and the stipulations and
admission made by the parties, judgment may be rendered without the
need of further proceedings, in which event the judgment shall be
rendered within thirty (30) days from issuance of the order;
4. A clear specification of material facts which remain converted; and
5. Such other matters intended to expedite the disposition of the case. (8,
RSP)
Section 10. Submission of affidavits and position papers. — Within
ten (10) days from receipt of the order mentioned in the next preceding
section, the parties shall submit the affidavits of their witnesses and other
evidence on the factual issues defined in the order, together with their
position papers setting forth the law and the facts relied upon by them. (9,
RSP)
Section 11. Period for rendition of judgment. — Within thirty (30)
days after receipt of the affidavits and position papers, or the expiration of
the period for filing the same, the court shall render judgment.
However, should the court find it necessary to clarify certain material facts,
during the said period, issue an order specifying the matters to be clarified,
and require the parties to submit affidavits or other evidence on the said
Cesar Nickolai F. Soriano Jr.
14 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
matters within ten (10) days from receipt of said order. Judgment shall be
rendered within fifteen (15) days after the receipt of the last affidavit or
the expiration of the period for filing the same.
The court shall not resort to the foregoing procedure just to gain time for
the rendition of the judgment. (n)
Section 12. Referral for conciliation. — Cases requiring referral for
conciliation, where there is no showing of compliance with such
requirement, shall be dismissed without prejudice, and may be revived
only after that requirement shall have been complied with. (18a, RSP)
Section 13. Prohibited pleadings and motions. — 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)
Section 14. Affidavits. — The affidavits required to be submitted under
this Rule shall state only facts of direct personal knowledge of the affiants
which are admissible in evidence, and shall show their competence to
testify to the matters stated therein.
A violation of this requirement may subject the party or the counsel who
submits the same to disciplinary action, and shall be cause to expunge the
inadmissible affidavit or portion thereof from the record. (20, RSP)
Section 15. Preliminary injunction. — The court may grant preliminary
injunction, in accordance with the provisions of Rule 58 hereof, to prevent
the defendant from committing further acts of dispossession against the
plaintiff.
A possessor deprived of his possession through forcible from the filing of
the complaint, present a motion in the action for forcible entry or unlawful
detainer for the issuance of a writ of preliminary mandatory injunction to
restore him in his possession. The court shall decide the motion within
thirty (30) days from the filing thereof. (3a)
Section 16. Resolving defense of ownership. — When the defendant
raises the defense of ownership in his pleadings and the question of
possession cannot be resolved without deciding the issue of ownership,
the issue of ownership shall be resolved only to determine the issue of
possession. (4a)
3. JUDGMENT (s17)
Sec. 17. Judgment.
If after trial the court finds that the allegations of the complaint are true,
it shall render judgment in favor of the plaintiff for the restitution of the
premises, the sum justly due as arrears of rent or as reasonable
compensation for the use and occupation of the premises, attorney’s fees
and costs. If it finds that said allegations are not true, it shall render
judgment for the defendant to recover his costs. If a counterclaim is
established, the court shall render judgment for the sum found in arrears
from either party and award costs as justice requires.
Recoverable damages must only be those arising from the
deprivation of possession, a separate action is proper for recovery
of damages resulting after dispossession: The recoverable damages in
forcible entry and detainer cases thus refer to rents or the reasonable
compensation for the use and occupation of the premises or fair rental value
of the property and attorneys fees and costs.
The 2006 case of Dumo v. Espinas reiterates the long-established rule that
the only form of damages that may be recovered in an action for
forcible entry is the fair rental value or the reasonable compensation
for the use and occupation of the property:
Lastly, we agree with the CA and the RTC that there is no basis for the
MTC to award actual, moral, and exemplary damages in view of the
settled rule that in ejectment cases, the only damage that can be
recovered is the fair rental value or the reasonable
compensation for the use and occupation of the
property. Considering that the only issue raised in ejectment is that of
rightful possession, damages which could be recovered are
those which the plaintiff could have sustained as a mere
possessor, or those caused by the loss of the use and
occupation of the property, and not the damages which he may
have suffered but which have no direct relation to his loss of
material possession. x x x (Emphasis, underscoring and italics
supplied; citations omitted)
Other damages must thus be claimed in an ordinary action.
Petitioners filing of an independent action for damages other than those
sustained as a result of their dispossession or those caused by the loss of their
use and occupation of their properties could not thus be considered as
splitting of a cause of action. (CGR Corporation vs. Treyes)
4. IMMEDIATE EXECUTION (s19 vs. s21)
Sec. 19. Immediate execution of judgment; how to stay same.
If judgment is rendered against the defendant, execution shall issue
immediately upon motion, unless an appeal has been perfected and the
defendant to stay execution files a sufficient supersedeas bond, approved
by the Municipal Trial Court and executed in favor of the plaintiff to pay
the rents, damages, and costs accruing down to the time of the judgment
appealed from, and unless, during the pendency of the appeal, he deposits
with the appellate court the amount of rent due from time to time under
the contract, if any, as determined by the judgment of the Municipal Trial
Court. In the absence of a contract, he shall deposit with the Regional Trial
Court the reasonable value of the use and occupation of the premises for
the preceding month or period at the rate determined by the judgment of
the lower court on or before the tenth day of each succeeding month or
period. The supersedeas bond shall be transmitted by the Municipal Trial
Court, with the other papers, to the clerk of the Regional Trial Court to
which the action is appealed.
All amounts so paid to the appellate court shall be deposited with said
court or authorized government depositary bank, and shall be held there
until the final disposition of the appeal, unless the court, by agreement of
the interested parties, or in the absence of reasonable grounds of
opposition to a motion to withdraw, or for justifiable reasons, shall decree
otherwise. Should the defendant fail to make the payments above
prescribed from time to time during the pendency of the appeal, the
appellate court, upon motion of the plaintiff, and upon proof of such
failure, shall order the execution of the judgment appealed from with
respect to the restoration of possession, but such execution shall not be a
bar to the appeal taking its course until the final disposition thereof on the
merits.
After the case is decided by the Regional Trial Court, any money paid to
the court by the defendant for purposes of the stay of execution shall be
disposed of in accordance with the provisions of the judgment of the
Regional Trial Court. In any case wherein it appears that the defendant
has been deprived of the lawful possession of land or building pending the
Cesar Nickolai F. Soriano Jr.
15 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
appeal by virtue of the execution of the judgment of the Municipal Trial
Court, damages for such deprivation of possession and restoration of
possession may be allowed the defendant in the judgment of the Regional
Trial Court disposing of the appeal.
Sec. 21. Immediate execution on appeal to Court of Appeals or
Supreme 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.
Immediately Executory; Requisites to stay execution: Under Sec. 19,
Rule 70, a judgment on a forcible entry and detainer action is made
immediately executory to avoid further injustice to a lawful possessor. The
defendant in such a case may have such judgment stayed only by:
1. Perfecting an appeal;
2. Filing a supersedeas bond; and
3. Making a periodic deposit of the rental or reasonable compensation for
the use and occupancy of the property during the pendency of the
appeal. (Alconera vs. Pallanan)
It is basic rule in ejectment cases that the execution of judgment in favor of
the plaintiff is a matter of right and mandatory. The purpose underlying the
mandate for an immediate execution, which is to prevent the plaintiffs from
being further deprived of their rightful possession (Ferrer vs. Rabaca)
Effect of non-compliance; exception: The failure 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.
The only exceptions to non-compliance are the existence of fraud, accident,
mistake or excusable negligence which prevented the defendant from posting
the supersedeas bond or making the monthly deposit, or the occurrence of
supervening events which brought about a material change in the situation of
the parties and which would make the execution inequitable. (Alconera vs.
Pallanan)
Civil action on ownership does not justify the suspension of the
ejectment proceedings, as a rule; exception: As a general rule,
therefore, a pending civil action involving ownership of the same
property does not justify the suspension of ejectment
proceedings. “The underlying reasons for the above ruling were that the
actions in the Regional Trial Court did not involve physical or de
facto possession, and, on not a few occasions, that the case in the Regional
Trial Court was merely a ploy to delay disposition of the ejectment
proceeding, or that the issues presented in the former could quite as easily
be set up as defenses in the ejectment action and there resolved.”
Only in rare instances is suspension allowed to await the outcome of the
pending civil action. One such exception is Vda. de Legaspi v. Avendaño,
wherein the Court declared:
“x x x. Where the action, therefore, is one of illegal detainer, as distinguished
from one of forcible entry, and the right of the plaintiff to recover the premises
is seriously placed in issue in a proper judicial proceeding, it is more equitable
and just and less productive of confusion and disturbance of physical
possession, with all its concomitant inconvenience and expenses. For the
Court in which the issue of legal possession, whether involving ownership or
not, is brought to restrain, should a petition for preliminary injunction be filed
with it, the effects of any order or decision in the unlawful detainer case in
order to await the final judgment in the more substantive case involving legal
possession or ownership. It is only where there has been forcible entry
that as a matter of public policy the right to physical possession
should be immediately set at rest in favor of the prior possession
regardless of the fact that the other party might ultimately be found
to have superior claim to the premises involved, thereby to discourage
any attempt to recover possession thru force, strategy or stealth and without
resorting to the courts.” (Suarez vs. Emboy, Jr.)
Enforcement of Decision: Requirement of Notice: Under Sec. 10(c) of
Rule 39, enforcement in ejectment cases requires the sheriff to give notice of
such writ and to demand from defendant to vacate the property within three
days. Only after such period can the sheriff enforce the writ by the bodily
removal of the defendant in the ejectment case and his personal
belongings. Even in cases wherein decisions are immediately executory, the
required three-day notice cannot be dispensed with. A sheriff who enforces
the writ without the required notice or before the expiry of the three-day
period is running afoul with the Rules. (Alconera vs. Pallanan)
5. APPEALS
PRELIMINARY INJUNCTION (s20)
Sec. 20. Preliminary mandatory injunction in case of appeal.
Upon motion of the plaintiff, within ten (10) days from the perfection of
the appeal to the Regional Trial Court, the latter may issue a writ of
preliminary mandatory injunction to restore the plaintiff in possession if
the court is satisfied that the defendant’s appeal is frivolous or dilatory, or
that the appeal of the plaintiff is prima facie meritorious.
J. RULE 71: CONTEMPT
Contempt of court as "some act or conduct which tends to interfere with
the business of the court, by a refusal to obey some lawful order of the court,
or some act of disrespect to the dignity of the court which in some way tends
to interfere with or hamper the orderly proceedings of the court and thus
lessens the general efficiency of the same."
It has also been described as "a defiance of the authority, justice or dignity
of the court; such conduct as tends to bring the authority and administration
of the law into disrespect or to interfere with or prejudice parties litigants or
their witnesses during litigation." Simply put, it is despising of the authority,
justice, or dignity of the court. (Espanol vs. Formoso)
Inherent in courts: In this jurisdiction, it is now recognized that courts have
the inherent power to punish for contempt on the ground that respect for the
courts guarantees the very stability of the judicial institution. Such stability is
essential to the preservation of order in judicial proceedings, to the
enforcement of judgments, orders, and mandates of the courts, and,
consequently, to the very administration of justice. (Espanol vs. Formoso)
Manner of Exercise: The power to punish for contempt must be exercised
on the preservative, not vindictive principle, and on the corrective
and not retaliatory idea of punishment. The courts and other tribunals
vested with the power of contempt must exercise the power to punish for
contempt for purposes that are impersonal, because that power is intended
as a safeguard not for the judges as persons but for the functions that they
exercise. (Yasay vs. Recto)
The act of a judge in citing a person in contempt of court in a manner
which smacks of retaliation, as in the case at bar, is appalling and
violative of Rule 2.01 of the Code of Judicial Conduct which
mandates that a judge should so behave at all times to promote
public confidence in the integrity and impartiality of the judiciary.
The very delicate function of administering justice demands that a judge
should conduct himself at all times in a manner which would reasonably merit
the respect and confidence of the people, for he is the visible representation
of the law. The irresponsible or improper conduct of judges erodes public
confidence in the judiciary; as such, a judge must avoid all impropriety and
the appearance thereof. (Sison vs. Caiobes, Jr.)
Section 1. Direct contempt punished summarily. — A person 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, may be summarily adjudged in contempt by
such court and punished by a fine not exceeding two thousand pesos or
Cesar Nickolai F. Soriano Jr.
16 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
imprisonment not exceeding ten (10) days, or both, if it be a Regional Trial
Court or a court of equivalent or higher rank, or by a fine not exceeding
two hundred pesos or imprisonment not exceeding one (1) day, or both,
if it be a lower court. (1a)
Direct Contempt: is characterized as one done "in the presence of or so
near the court or judge as to obstruct the administration of justice." It is a
contumacious act done facie curiae and may be punished summarily without
hearing. In other words, one may be summarily adjudged in direct contempt
at the very moment or at the very instance of the commission of the act of
contumely. (Narcida vs. Bowen)
Section 2. Remedy therefrom. — The person adjudged in direct
contempt by any court may not appeal therefrom, but may avail himself
of the remedies of certiorari or prohibition. The execution of the judgment
shall be suspended pending resolution of such petition, provided such
person 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. (2a)
No appeal from acquittal from contempt charges: the charge of
contempt partakes of the nature of a criminal offense. The exoneration of
the contemner from the charge amounts to an acquittal from which
an appeal would not lie.
The real character of the proceedings in contempt cases is to be determined
by the relief sought or by the dominant purpose. The proceedings are to
be regarded as criminal when the purpose is primarily punishment,
and civil when the purpose is primarily compensatory or remedial.
But whether the first or the second, contempt is still a criminal proceeding in
which acquittal, for instance, is a bar to a second prosecution. The distinction
is for the purpose only of determining the character of punishment to be
administered. (Yasay vs. Recto)
Section 3. Indirect contempt to be punished after charge and
hearing. — 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)
Indirect or constructive contempt, is one perpetrated outside of the
sitting of the court and may include misbehavior of an officer of a court in the
performance of his official duties or in his official transactions, disobedience
of or resistance to a lawful writ, process, order, judgment, or command of a
court, or injunction granted by a court or a judge, any abuse or any unlawful
interference with the process or proceedings of a court not constituting direct
contempt, or any improper conduct tending directly or indirectly to impede,
obstruct or degrade the administration of justice. (Espanol vs. Formoso)
Use of falsified documents in court is considered INDIRECT
contempt: the imputed use of a falsified document, more so where the falsity
of the document is not apparent on its face, merely constitutes indirect
contempt, and as such is subject to such defenses as the accused may raise
in the proper proceedings. (Espanol vs. Formoso)
Sub-judice rule: restricts comments and disclosures pertaining to the
judicial proceedings in order to avoid prejudging the issue, influencing the
court, or obstructing the administration of justice. A violation of this rule may
render one liable for indirect contempt under Sec. 3(d), Rule 71 of the Rules
of Court.
As important as the maintenance of freedom of speech, is the maintenance
of the independence of the Judiciary. The "clear and present danger" rule may
serve as an aid in determining the proper constitutional boundary between
these two rights.
The "clear and present danger" rule means that the evil consequence of the
comment must be "extremely serious and the degree of imminence extremely
high" before an utterance can be punished. There must exist a clear and
present danger that the utterance will harm the administration of justice.
Freedom of speech should not be impaired through the exercise of the power
of contempt of court unless there is no doubt that the utterances in question
make a serious and imminent threat to the administration of justice. It must
constitute an imminent, not merely a likely, threat (Marantan vs. Diokno)
Section 4. How proceedings commenced. — Proceedings for indirect
contempt may be initiated motu propio by the court against which the
contempt was committed by an order or any other formal charge requiring
the respondent to show cause why he should not be punished for
contempt.
In all other cases, charges for indirect contempt shall be commenced by a
verified petition with supporting particulars and certified true copies of
documents or papers involved therein, and upon full compliance with the
requirements for filing initiatory pleadings for civil actions in the court
concerned. If the contempt charges arose out of or are related to a
principal action pending in the court, the petition for contempt shall allege
that fact but said petition shall be docketed, heard and decided separately,
unless the court in its discretion orders the consolidation of the contempt
charge and the principal action for joint hearing and decision. (n)
Commencement of Indirect Contempt: Under the Rules of Court, there
are two ways of initiating indirect contempt proceedings:
1. Motu proprio by the court
a. There must be an order requiring the respondent to show cause
why he should not be cited for contempt.
b. The respondent must be given the opportunity to comment on
the charge against him.
c. There must be a hearing and the court must investigate the charge
and consider respondent’s answer.
d. Only if found guilty will respondent be punished accordingly.
(Citations omitted.)
2. Verified petition.
In cases where the court did not initiate the contempt charge, the Rules
prescribe that a verified petition which has complied with the requirements
of initiatory pleadings as outlined in second paragraph, Section 4, Rule 71
of the Rules of Court, must be filed.
The Rules itself is explicit on this point:
In all other cases, charges for indirect contempt shall be commenced by a
verified petition with supporting particulars and certified true copies
of documents or papers involved therein, and upon full compliance
with the requirements for filing initiatory pleadings for civil actions
Cesar Nickolai F. Soriano Jr.
17 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES
in the court concerned. If the contempt charges arose out of or are related
to a principal action pending in the court, the petition for contempt shall allege
that fact but said petition shall be docketed, heard and decided separately,
unless the court in its discretion orders the consolidation of the contempt
charge and the principal action for joint hearing and decision.
These rules are not applicable in indirect contempt proceedings initiated by
the Court: In indirect contempt proceedings initiated motu proprio by the
court, the above rules, as clarified in Regalado, do not necessarily apply. First,
since the court itself motu proprio initiates the proceedings, there can be no
verified petition to speak of. Instead, the court has the duty to inform the
respondent in writing, in accordance with his or her right to due process. This
formal charge is done by the court in the form of an Order requiring the
respondent to explain why he or she should not be cited in contempt of court.
Second, when the court issues motu proprio a show-cause order, the duty of
the court (1) to docket and (2) to hear and decide the case separately
from the main case does not arise, much less to exercise the discretion
to order the consolidation of the cases. There is no petition from any party to
be docketed, heard and decided separately from the main case precisely
because it is the show-cause order that initiated the proceedings. (Capitol Hills
Golf and Country Club, Inc. vs. Sanchez)
Section 5. Where charge to be filed. — Where the charge for indirect
contempt has been committed against a Regional Trial Court or a court of
equivalent or higher rank, or against an officer appointed by it, the charge
may be filed with such court. Where such contempt has been committed
against a lower court, the charge may be filed with the Regional Trial Court
of the place in which the lower court is sitting; but the proceedings may
also be instituted in such lower court subject to appeal to the Regional
Trial Court of such place in the same manner as provided in section 11 of
this Rule. (4a; Bar Matter No. 803, 21 July 1998)
Section 6. Hearing; release on bail. — If the hearing is not ordered to
be had forthwith, the respondent may be released from custody upon filing
a bond, in an amount fixed by the court, for his appearance at the hearing
of the charge. On the day set therefor, the court shall proceed to
investigate the charge and consider such comment, testimony or defense
as the respondent may make or offer. (5a)
Section 7. Punishment for indirect contempt. — 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 or imprisonment not exceeding
six (6) months, or both. If he is adjudged guilty of contempt committed
against a lower court, he may be punished by a fine not exceeding five
thousand pesos or imprisonment not exceeding one (1) month, or both. If
the contempt consists in the violation of a writ of injunction, temporary
restraining order or status quo order, he may also be ordered to make
complete restitution to the party injured by such violation of the property
involved or such amount as may be alleged and proved.
The writ of execution, as in ordinary civil actions, shall issue for the
enforcement of a judgment imposing a fine unless the court otherwise
provides. (6a)
Section 8. Imprisonment until order obeyed. — When the contempt
consists in the refusal or omission to do an act which is yet in the power
of the respondent to perform, he may be imprisoned by order of the court
concerned until he performs it. (7a)
Section 9. Proceeding when party released on bail fails to answer.
— When a respondent released on bail fails to appear on the day fixed for
the hearing, the court may issue another order of arrest or may order the
bond for his appearance to be forfeited and confiscated, or both; and, if
the bond be proceeded against, the measure of damages shall be the
extent of the loss or injury sustained by the aggrieved party by reason of
the misconduct for which the contempt charge was prosecuted, with the
costs of the proceedings, and such recovery shall be for the benefit of the
party injured. If there is no aggrieved party, the bond shall be liable and
 disposed of as in criminal cases. (8a)

Section 10. Court may release respondent. — The court which issued
the order imprisoning a person for contempt may discharge him from
imprisonment when it appears that public interest will not be prejudiced
by his release. (9a)

Section 11. Review of judgment or final order; bond for stay. —

The judgment or final order of a court in a case of indirect contempt may
be appealed to the proper court as in criminal cases. But execution of the
judgment or final order shall not be suspended until a bond is filed by the
person adjudged in contempt, in an amount fixed by the court from which
the appeal is taken, conditioned that if the appeal be decided against him
he will abide by and perform the judgment or final order. (10a)

The recourse provided for in the above-mentioned provision is clear enough:

the person adjudged in indirect contempt must (1) file an appeal
under Rule 41 (Appeal from the Regional Trial Courts) and (2) post
a bond for its suspension pendente lite.

If instead, the above are not done and the contemnor filed a petition for
certiorari under Rule 65 of the Rules and did not post the required bond, the
finding of contempt becomes final and executory. (Capitol Hills Golf and
Country Club, Inc. vs. Sanchez)

Section 12. Contempt against quasi-judicial entities. — Unless

otherwise provided by law, this Rule shall apply to contempt committed
against persons, entities, bodies or agencies exercising quasi-judicial
functions, or shall have suppletory effect to such rules as they may have
adopted pursuant to authority granted to them by law to punish for
contempt. The Regional Trial Court of the place wherein the contempt has
been committed shall have jurisdiction over such charges as may be filed
therefor. (n)

Cesar Nickolai F. Soriano Jr.

18 Arellano University School of Law 2011-0303
REMEDIAL LAW 1: DISCUSSIONS UNDER THE CLASS OF ATTY. BRONDIAL (CIVIL AND CRIMINAL PROCEDURE) and BAR REIVEW LECTURES