PROVISIONAL REMEDIES AND SPECIAL CIVIL ACTIONS

PART II
3.18. Provisional remedies

Provisional remedies are writs and processes available during the pendency of the action
which may be resorted to by a litigant to preserve and protect certain rights and interests
therein pending rendition, and for purposes of the ultimate effects, of a final judgment in the
case. They are provisional because they constitute temporary measures availed of during the
pendency of the action, and they are ancillary because they are mere incidents in and are
dependent upon the result of the main action. The subject orders on the matter of support
pendente lite are but an incident to the main action for declaration of nullity of marriage. (Ma.
Carminia C. Calderon (formerly Ma. Carminia Calderon-Roxas), represented by her attorney-in-
fact, Marycris V. Baldevia Vs. Jose Antonio F. Roxas, G.R. No. 185595. January 9, 2013)

Nature of provisional remedies

Provisional remedies are not causes of action in themselves but merely adjuncts to a
main suit. They are temporary measures availed of during the pendency of the action and
ancillary because they are mere incidents. [Estares v. Court of Appeals, 459 SCRA 604]

Purpose of provisional remedies

The provisional remedies denominated attachment, preliminary injunction, receivership,
and delivery of personal property, provided in Rules 59, 60, 61, and 62 of the Rules of Court,
respectively, are remedies to which parties litigant may resort for the preservation or protection
of their rights or interest, and for no other purpose, during the pendency of the principal action.
If an action, by its nature, does not require such protection or preservation, said remedies can
not be applied for and granted. [Calo v. Roldan, G.R. No. L-252, March 30, 1946]

Jurisdiction over provisional remedies

MTC has exclusive original jurisdiction over civil actions and probate proceedings, testate
and intestate, including the grant of provisional remedies in proper cases, where the value of
the personal property, estate, or amount of the demand does not exceed One hundred
thousand pesos (P100,000.00) or, in Metro Manila where such personal property, estate, or
amount of the demand does not exceed Two hundred thousand pesos (P200,000.00) exclusive
of interest damages of whatever kind, attorney's fees, litigation expenses, and costs. [B.P. 129,
Sec. 33]

3.18.3. Preliminary attachment

A preliminary attachment may be defined, paraphrasing the Rules of Court, as the
provisional remedy in virtue of which a plaintiff or other party may, at the commencement of
the action or at any time thereafter, have the property of the adverse party taken into the
custody of the court as security for the satisfaction of any judgment that may be
recovered. [Davao Light v. Court of Appeals, 204 SCRA 343]
Grounds for issuance of writ of attachment

(a) In an action for the recovery of a specified amount of money or damages, other than
moral and exemplary, on a cause of action arising from law, contract, quasi-contract, delict or
quasi-delict against a party who is about to depart from the Philippines with intent to defraud
his creditors;
(b) In an action for money or property embezzled or fraudulently misapplied or
converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor,
broker, agent, or clerk, in the course of his employment as such, or by any other person in a
fiduciary capacity, or for a willful violation of duty;
(c) In an action to recover the possession of property unjustly or fraudulently taken,
detained or converted, when the property, or any part thereof, has been concealed, removed,
or disposed of to prevent its being found or taken by the applicant or an authorized person;
(d) In an action against a party who has been guilty of a fraud in contracting the debt or
incurring the obligation upon which the action is brought, or in the performance thereof;
(e) In an action against a party who has removed or disposed of his property, or is about
to do so, with intent to defraud his creditors; or
(f) In an action against a party who does not reside and is not found in the Philippines, or
on whom summons may be served by publication. [Rule 57, Sec. 1]

Requisites

1) The case must be any of those where preliminary attachment is proper
2) The applicant must file a motion
3) The applicant must show by affidavit that there is of sufficient security for the claim
sought to be enforced; that the amount claimed in the action is as much as the sum of which
the order is granted above all counterclaims
4) The applicant must post a bond executed to the adverse party (attachment bond)
(Section 3, Rule 57 of the Rules of Court)

Attachment will not lie if there is an existing real estate mortgage

The writ will not be issued if a real estate mortgage exists to secure the obligation even if
instead of filing an action for foreclosure, an action for a sum of money was instead filed.
[Salgado v. Court of Appeals, G.R. No. 55381, March 26, 1984]

Fraud as a ground for issuance of writ of attachment: Requisites:

A writ of preliminary attachment is too harsh a provisional remedy to be issued based on
mere abstractions of fraud. Rather, the rules require that for the writ to issue, there must be a
recitation of clear and concrete factual circumstances manifesting that the debtor practiced
fraud upon the creditor at the time of the execution of their agreement in that said debtor had
a preconceived plan or intention not to pay the creditor. [Equitable v. Special Steel, G.R. No.
175350, June 13, 2012]

Attachment is dependent on the main suit

The remedy of attachment is adjunct to the main suit, therefore, it can have no
independent existence apart from a suit on a claim of the plaintiff against the defendant. When
Aboitiz and Company, Inc. withdrew its complaint, the attachment ceased to have a leg to stand
on. [Adlawan v. Tomol, G.R. No. L-63225, April 3, 1990]

Issuance and contents of order of attachment; affidavit and bond

An order of attachment may be issued either ex parte or upon motion with notice and
hearing by the court in which the action is pending, or by the Court of Appeals or the Supreme
Court, and must require the sheriff of the court to attach so much of the property in the
Philippines of the party against whom it is issued, not exempt from execution, as may be
sufficient to satisfy the applicant's demand, unless such party makes deposit or gives a bond as
hereinafter provided in an amount equal to that fixed in the order, which may be the amount
sufficient to satisfy the applicant's demand or the value of the property to be attached as stated
by the applicant, exclusive of costs. Several writs may be issued at the same time to the sheriffs
of the courts of different judicial regions. [Rule 57, Sec. 2]

Requirements for the issuance of the writ:

An order of attachment shall be granted only when it appears by the affidavit of the
applicant, or of some other person who personally knows the facts, that a sufficient cause of
action exists, that the case is one of those mentioned in section 1 hereof, that there is no other
sufficient security for the claim sought to be enforced by the action, and that the amount due
to the applicant, or the value of the property the possession of which he is entitled to recover, is
as much as the sum for which the order is granted above all legal counterclaims. The affidavit,
and the bond required by the next succeeding section, must be duly filed with the court before
the order issues. [Rule 57, Sec. 3]

The party applying for the order must thereafter give a bond executed to the adverse
party in the amount fixed by the court in its order granting the issuance of the writ,
conditioned that the latter will pay all the costs which may be adjudged to the adverse party
and all damages which he may sustain by reason of the attachment, if the court shall finally
adjudge that the applicant was not entitled thereto. [Rule 57, Sec. 4]

Purpose of ex-parte issuance of writ of attachment

Ex parte grant of the writ is allowed because it is possible that during the course of the
hearing, the part against whom the writ is sought may dispose of his property or abscond
before the writ is issued. [Filinvest v. Relova, G.R. No. L-50378, September 30, 1982]

Rule on prior or contemporaneous service of summons

The sheriff enforcing the writ shall without delay and with all reasonable diligence
attach, to await judgment and execution in the action, only so much of the property in the
Philippines of the party against whom the writ is issued, not exempt from execution, as may be
sufficient to satisfy the applicant's demand, unless the former makes a deposit with the court
from which the writ is issued, or gives a counter-bond executed to the applicant, in an amount
equal to the bond fixed by the court in the order of attachment or to the value of the property
to be attached, exclusive of costs. No levy on attachment pursuant to the writ issued under
section 2 hereof shall be enforced unless it is preceded, or contemporaneously accompanied, by
service of summons, together with a copy of the complaint, the application for attachment the
applicant's affidavit and bond, and the order and writ of attachment, on the defendant within
the Philippines. [Rule 57, Sec. 5 (1)]

Exceptions

The requirement of prior or contemporaneous service of summons shall not apply
where the summons could not be served personally or by substituted service despite diligent
efforts, or the defendant is a resident of the Philippines temporarily absent therefrom, or the
defendant is a non-resident of the Philippines, or the action is one in rem or quasi in rem. [Rule
57, Sec. 5 (2)]

Manner of attaching real and personal property; when property attached is claimed by third
person

Real and personal property shall be attached by the sheriff executing the writ in the
following manner:

(a) Real property, or growing crops thereon, or any interest therein, standing upon the
record of the registry of deeds of the province in the name of the party against whom
attachment is issued, or not appearing at all upon such records, or belonging to the party
against whom attachment is issued and held by any other person, or standing on the records of
the registry of deeds in the name of any other person, by filing with the registry of deeds a copy
of the order, together with a description of the property attached, and a notice that it is
attached, or that such real property and any interest therein held by or standing in the name of
such other person are attached, and by leaving a copy of such order, description, and notice
with the occupant of the property, if any, or with such other person or his agent if found within
the province. Where the property has been brought under the operation of either the Land
Registration Act or the Property Registration Decree, the notice shall contain a reference to the
number of the certificate of title, the volume and page in the registration book where the
certificate is registered, and the registered owner or owners thereof.

The registrar of deeds must index attachments filed under this section in the names of
the applicant, the adverse party, or the person by whom the property is held or in whose name
it stands in the records. If the attachment is not claimed on the entire area of the land covered
by the certificate of title, a description sufficiently accurate for the identification of the land or
interest to be affected shall be included in the registration of such attachment;

(b) Personal property capable of manual delivery, by taking and safely keeping it in his
custody, after issuing the corresponding receipt therefor.

(c) Stocks or shares, or an interest in stocks or shares, of any corporation or company, by
leaving with the president or managing agent thereof, a copy of the writ, and a notice stating
that the stock or interest of the party against whom the attachment is issued is attached in
pursuance of such writ;

(d) Debts and credits, including bank deposits, financial interest, royalties, commissions
and other personal property not capable of manual delivery, by leaving with the person owing
such debts, or having in his possession or under his control, such credits or other personal
property, or with his agent, a copy of the writ, and notice that the debts owing by him to the
party against whom attachment is issued, and the credits and other personal property in his
possession, or under his control, belonging to said party, are attached in pursuance of such writ;

(e) The interest of the party against whom attachment is issued in property belonging to
the estate of the decedent, whether as heir, legatee, or devisee, by serving the executor or
administrator or other personal representative of the decedent with a copy of the writ and
notice that said interest is attached. A copy of said writ of attachment and of said notice shall
also be filed in the office of the clerk of the court in which said estate is being settled and
served upon the heir, legatee or devisee concerned.

If the property sought to be attached is in custodia legis, a copy of the writ of
attachment shall be filed with the proper court or quasi-judicial agency, and notice of the
attachment served upon the custodian of such property. [Rule 57, Sec. 7] (See also Sec. 5)

Discharge of attachment and the counter-bond

Preliminary attachment shall be discharged when it is established that:

1) The debtor has posted a counterbond or has made the requisite cash bond [Rule 57,
Sec. 12];
2) The attachment was improperly or irregularly issued as where there is no ground for
attachment under Section 1 of this Rule [Rule 57, Sec. 13];
3) The bond filed is defective or insufficient [Rule 57, Sec. 13];
4) The attachment is excessive, but the discharge shall be limited to the excess [Rule 57,
Sec. 13];
5) The property attached is exempt from execution, hence exempt from preliminary
attachment [Rule 57, Sec. 2 and 5]; or
6) The judgment is rendered against the attaching creditor [Rule 57, Sec. 19]

Discharge of the writ of attachment must be made after hearing

A discharge of the attachment must be made only after hearing. Ex parte discharge is a
disservice to the orderly administration of justice. [Peroxide Philippines Corporation v. Court of
Appeals, G.R. No. 92813, July 31, 1991]

Purpose of counter-bond

Jurisprudence adds that counter-bonds are also replacements of the property formerly
attached, and just as the latter, may be levied upon final judgment. [Security Pacific Assurance
Corporation v. Tri-Infante, 468 SCRA 526]

Satisfaction of judgment out of property attached

If judgment be recovered by the attaching party and execution issue thereon, the sheriff
may cause the judgment to be satisfied out of the property attached, if it be sufficient for that
purpose in the following manner:

(a) By paying to the judgment obligee the proceeds of all sales of perishable or other
property sold in pursuance of the order of the court, or so much as shall be necessary to satisfy
the judgment;

(b) If any balance remains due, by selling so much of the property, real or personal, as
may be necessary to satisfy the balance, if enough for that purpose remain in the sheriff's
hands, or in those the clerk of the court;

(c) By collecting from all persons having in their possession credits belonging to the
judgment obligor, or owing debts to the latter at the time of the attachment of such credits or
debts, the amount of such credits and debts as determined by the court in the action, and
stated in the judgment, and paying the proceeds of such collection over to the judgment
obligee. [Rule 57, Sec. 15]

3.18.4. Preliminary injunction

Preliminary Injunction

A writ of preliminary injunction is an extraordinary event which must be granted only in
the face of actual and existing substantial rights. The duty of the court taking cognizance of a
prayer for a writ of preliminary injunction is to determine whether the requisites necessary for
the grant of an injunction are present in the case before it. In the absence of the same, and
where facts are shown to be wanting in bringing the matter within the conditions for its
issuance, the ancillary writ must be struck down for having been rendered in grave abuse of
discretion. (Palm Tree Estates, Inc., et al. Vs. Philippine National Bank, G.R. No. 159370. October
3, 2012)
Preliminary Injunctive Writ

It is a deeply ingrained doctrine in Philippine remedial law that a preliminary injunctive
writ under Rule 58 issues only upon a showing of the applicants clear legal right being
violated or under threat of violation by the defendant. Clear legal right, within the meaning of
Rule 58, contemplates a right clearly founded in or granted by law. Any hint of doubt or
dispute on the asserted legal right precludes the grant of preliminary injunctive relief. For suits
attacking the validity of laws or issuances with the force and effect of law, as here, the
applicant for preliminary injunctive relief bears the added burden of overcoming the
presumption of validity inhering in such laws or issuances. These procedural barriers to the
issuance of a preliminary injunctive writ are rooted on the equitable nature of such relief,
preserving the status quo while, at the same time, restricting the course of action of the
defendants even beforeadverse judgment is rendered against them. (Executive Secretary, et al.
Vs. Forerunner Multi Resources, Inc., G.R. No. 199324. January 7, 2013)

Requirement of clear and legal right

It is a deeply ingrained doctrine in Philippine remedial law that a preliminary injunctive
relief under Rule 58 issues only upon a showing of the applicants clear legal right being
violated or under threat of violation by the defendant. Clear legal right, within the meaning of
Rule 58, contemplates a right clearly founded in or granted by law. Any hint of doubt or dispute
on the asserted legal right precludes the grant of preliminary injunctive relief. For suits
attacking the validity of laws or issuances with the force and effect of law, as here, the
applicant for preliminary injunctive relief bears the added burden of overcoming the
presumption of validity inhering in such laws or issuances. These procedural barriers to the
issuance of a preliminary injunctive writ are rooted on the equitable nature of such relief,
preserving the status quo while, at the same time, restricting the course of action of the
defendants even before adverse judgment is rendered against them. (Executive Secretary,
Secretary of Finance, Commissioner of Customs, District collector of customs, Port of Aparri,
Cagayan, District Collector of Customs, Port of San Fernando La Union, and Head of the Land
Transportation Office v. Forerunner Multi Resources, Inc., G.R. No. 199324. January 7, 2013)

Existence of a clear legal right required during the pendency of the action

As such, a writ of preliminary injunction may be issued only upon clear showing of an
existing legal right to be protected during the pendency of the principal action. The requisites of
a valid injunction are the existence of a right and its actual or threatened violations. Thus, to be
entitled to an injunctive writ, the right to be protected and the violation against that right must
be shown. TML Gasket Industries, Inc. v. BPI Family Savings Bank, Inc., G.R. No. 188768. January
7, 2013)

What are the grounds for the issuance of writ of injunction?

Section 3, Rule 58 of the Rules of Court lists the grounds for the issuance of a writ of
preliminary injunction:

Sec.3. Grounds for the issuance of preliminary injunction. A preliminary injunction may
be granted when it is established:

(a) that the applicant is entitled to the relief demanded, and the whole or part of such
relief consists un restraining the commission or continuance of the act or acts complained of, or
in requiring the performance of an act or acts, either for a limited period or perpetually;

(b) that the commission, continuance or non-performance of the act or acts complained
of during the litigation would probably work injustice to the applicant; or

(c) that a party, court, agency, or a person doing, threatening, or is attempting to do, or
is procuring or suffering to be done, some act or acts probably in violation of the right of the
applicant respecting the subject of the action or proceeding, and tending to render the
judgment ineffectual


Definitions and differences: preliminary injunction and temporary restraining order; status
quo ante order

Generally, injunction is a preservative remedy for the protection of substantive rights or
interests. It is not a cause of action in itself but merely a provisional remedy, an adjunct to a
main suit. The controlling reason for the existence of the judicial power to issue the writ is that
the court may thereby prevent a threatened or continuous irremediable injury to some of the
parties before their claims can be thoroughly investigated and advisedly adjudicated. [Estares v.
Court of Appeals, supra]

Doctrine of strong arm of equity

It is the strong arm of equity, an extraordinary preemptory remedy that must be used
with extreme caution, affecting as it does the respective rights of the parties. [China Banking
Corporation v. Sps. Ciriaco, G.R. No. 170038, July 11, 2012]

Purpose of injunction

It is issued by the court to prevent threatened or continuous irreparable injury to parties
before their claims can be thoroughly studied and adjudicated. [Manila International Airport
Authority v. Rivera Village, 471 SCRA 358]

Requirements for the issuance of the writ

For an injunctive writ to issue, a clear showing of extreme urgency to prevent irreparable
injury and a clear and unmistakable right to it must be proven by the party seeking it. The
primary objective of a preliminary injunction, whether prohibitory or mandatory, is to preserve
the status quo until the merits of the case can be heard.

When can a writ of injunction be issued?

A preliminary injunction is granted at any stage of an action or proceeding prior to the
judgment or final order. It persists until it is dissolved or until the termination of the action
without the court issuing a final injunction. [Miriam College Foundation, Inc. v. CA, G.R. No.
127930, December 15, 2000]

When can a temporary restraining order be issued? Purpose:

A restraining order, on the other hand, is issued to preserve the status quo until the
hearing of the application for preliminary injunction which cannot be issued ex parte. Under
Rule 58

of the Rules of Court, a judge may issue a temporary restraining order with a limited life
of twenty (20) days from date of issue. If before the expiration of the twenty (20)-day period the
application for preliminary injunction is denied, the temporary restraining order would be
deemed automatically vacated. [Bacolod City Water District v. Labayen, G.R. No. 157494,
December 10, 2004]

Requisites of TRO and Injunction

The following elements must concur for the issuance of a writ of preliminary injunction:

1. The invasion of the right is material and substantial;
2. The right of the complainant is clear and unmistakable;
3. There is urgent and paramount necessity for the writ to prevent serious damage
[Strategic Alliance Development Corp. v. Star Infrastructure Development Corp., G.R. No.
187872, April 11, 2011]; and
4. Its effect would not be to create a new relation between the parties which was
arbitrarily interrupted by the defendant.

Kinds of injunction

Preliminary injunction

- An order granted at any stage of an action or proceeding prior to the judgment or final
order:

a) Requiring a party or a court, agency or a person to refrain from a performance of a
particular act or acts (preventive or prohibitive injunction); or
b) Also requiring the performance of a particular act or acts (mandatory injunction).
(Section 1, Rule 58, Rules of Court; Regalado 2008 ed.)

Final injunction:

a) Granted if, after the trial of the action, it appears that the applicant is entitled to have
the act or acts complained of permanently enjoined

b) May perpetually restrain the party or person enjoined from the commission or
continuance of the act or acts or confirming the preliminary mandatory injunction. (Section 9,
Rule 58 of the Rules of Court)

Preliminary injunction; improper where act sought to be enjoined is already consummated

Case law instructs that injunction would not lie where the acts sought to be enjoined
had already become fait accompli (meaning, an accomplished or consummated act). Hence,
since the consummation of the act sought to be restrained had rendered Sps. Alindogs
injunction petition moot, the issuance of the said injunctive writ was altogether
improper. (Spouses Nicasio C. Marquez and Anita J. Marquez v. Spouses Carlito Alindog and
Carmen Alindog, G.R. No. 184045. January 22, 2014)

Grounds for objection to, or for the dissolution of injunction or restraining order

The application for injunction or restraining order may be denied, upon a showing of its
insufficiency. The injunction or restraining order may also be denied, or, if granted, may be
dissolved, on other grounds upon affidavits of the party or person enjoined, which may be
opposed by the applicant also by affidavits. It may further be denied, or if granted, may be
dissolved, if it appears after hearing that although the applicant is entitled to the injunction or
restraining order, the issuance or continuance thereof, as the case may be, would cause
irreparable damage to the party or person enjoined while the applicant can be fully
compensated for such damages as he may suffer, and the former files a bond in an amount fixed
by the court conditioned that he will pay all damages which the applicant may suffer by the
denial or the dissolution of the injunction or restraining order. If it appears that the extent of
the preliminary injunction or restraining order granted is too great, it may be modified. [Rule 58,
Sec. 6]

Temporary Restraining Order (TRO)

When can it be issued? Period of effectivity?

If it shall appear from facts shown by affidavits or by the verified application that great
or irreparable injury would result to the applicant before the matter can be heard on notice, the
court to which the application for preliminary injunction was made, may issue a temporary
restraining order to be effective only for a period of twenty (20) days from service on the party
or person sought to be enjoined, except as herein provided. Within the said twenty-day period,
the court must order said party or person to show cause, at a specified time and place, why the
injunction should not be granted, determine within the same period whether or not the
preliminary injunction shall be granted, and accordingly issue the corresponding order.

Period of effectivity of TRO issued by the Court of Appeals; Supreme Court:

However, if issued by the Court of Appeals or a member thereof, the temporary
restraining order shall be effective for sixty (60) days from service on the party or person sought
to be enjoined. A restraining, order issued by the Supreme Court or a member thereof shall be
effective until further orders. [Rule 58, Sec. 5]

Duty of the court within the twenty (20) day period

Within the said 20 day period, the court must order said party or person to show cause
why the injunction should not be granted. Also, within the same period, the court shall
determine whether or not the preliminary injunction shall be granted and then issue the
corresponding order. [Australian Professional, Inc. v. Municipality of Padre Garcia, 668 SCRA
253]

Period of TRO if based on extreme urgency: Extension of 17 days:

However, and subject to the provisions of the preceding sections, if the matter is of
extreme urgency and the applicant will suffer grave injustice and irreparable injury, the
executive judge of a multiple-sala court or the presiding judge of a single sala court may issue ex
parte a temporary restraining order effective for only seventy-two (72) hours from issuance but
he shall immediately comply with the provisions of the next preceding section as to service of
summons and the documents to be served therewith. Thereafter, within the aforesaid seventy-
two (72) hours, the judge before whom the case is pending shall conduct a summary hearing to
determine whether the temporary restraining order shall be extended until the application for
preliminary injunction can be heard. In no case shall the total period of effectivity of the
temporary restraining order exceed twenty (20) days, including the original seventy-two hours
provided herein. [Rule 58, Sec. 5 (2)]


Period of twenty days non-extendible

The rule against the non-extendibility of the 20 day effectivity of a TRO is absolute if
issued by the RTC. The failure of the trial court to fix the period in the TRO does not convert it to
a preliminary injunction. [Bacolod City Water District v. Labayen, supra]

Limitations on the issuance of a TRO or injunction

In relation to R.A. No. 8975, ban on issuance of TRO or writ of injunction in cases
involving government infrastructure projects

No court, except the Supreme Court, shall issue any temporary restraining order,
preliminary injunction or preliminary mandatory injunction against the government, or any of
its subdivisions, officials or any person or entity, whether public or private acting under the
government direction, to restrain, prohibit or compel the following acts:

(a) Acquisition, clearance and development of the right-of-way and/or site or location of
any national government project;
(b) Bidding or awarding of contract/ project of the national government as defined
under Section 2 hereof;
(c) Commencement prosecution, execution, implementation, operation of any such
contract or project;
(d) Termination or rescission of any such contract/project; and
(e) The undertaking or authorization of any other lawful activity necessary for such
contract/project.

Prohibition applicable in all cases

This prohibition shall apply in all cases, disputes or controversies instituted by a private
party, including but not limited to cases filed by bidders or those claiming to have rights through
such bidders involving such contract/project. This prohibition shall not apply when the matter is
of extreme urgency involving a constitutional issue, such that unless a temporary restraining
order is issued, grave injustice and irreparable injury will arise. The applicant shall file a bond, in
an amount to be fixed by the court, which bond shall accrue in favor of the government if the
court should finally decide that the applicant was not entitled to the relief sought.

Duty of the court if the contract is declared null and void

In after due hearing the court finds that the award of the contract is null and void, the
court may, if appropriate under the circumstances, award the contract to the qualified and
winning bidder or order a rebidding of the same, without prejudice to any liability that the
guilty party may incur under existing laws. [R.A. 8975, Sec. 3]

Rule on prior or contemporaneous service of summons and other requirements necessary

When an application for a writ of preliminary injunction or a temporary restraining order
is included in a complaint or any initiatory pleading, the case, if filed in a multiple-sala court,
shall be raffled only after notice to and in the presence of the adverse party or the person to be
enjoined. In any event, such notice shall be preceded, or contemporaneously accompanied, by
service of summons, together with a copy of the complaint or initiatory pleading and the
applicant's affidavit and bond, upon the adverse party in the Philippines. [Rule 58, Sec. 4 (c)]

When contemporaneous service of summons not applicable

However, where the summons could not be served personally or by substituted service
despite diligent efforts, or the adverse party is a resident of the Philippines temporarily absent
therefrom or is a non-resident thereof, the requirement of prior or contemporaneous service of
summons shall not apply. [Rule 58, Sec. 4 (c) (2)]

3.18.5. Receivership

Purpose of receivership

Receivership is aimed at the preservation of, and at making more secure, existing rights.
It cannot be used as an instrument for the destruction of those rights. [Arranza v. B.F. Homes,
Inc., 33 SCRA 799]

Who is a receiver?

A receiver is a person appointed by the court in behalf of all the parties to the action for
the purpose of preserving and conserving the property in litigation and prevent its possible
destruction or dissipation, if it were left in the possession of any of the parties. The
appointment of a receiver is not a matter of absolute right. [Commodities Storage v. Court of
Appeals, 274 SCRA 439]

Cases when receiver may be appointed

Upon a verified application, one or more receivers of the property subject of the action
or proceeding may be appointed by the court where the action is pending or by the Court of
Appeals or by the Supreme Court, or a member thereof, in the following cases:

(a) When it appears from the verified application, and such other proof as the court may
require, that the party applying for the appointment of a receiver has an interest in the property
or fund which is the subject of the action or proceeding, and that such property or fund is in
danger of being lost, removed, or materially injured unless a receiver be appointed to
administer and preserve it;
(b) When it appears in an action by the mortgagee for the foreclosure of a mortgage that
the property is in danger of being wasted or dissipated or materially injured, and that its value is
probably insufficient to discharge the mortgage debt, or that the parties have so stipulated in
the contract of mortgage;
(c) After judgment, to preserve the property during the pendency of an appeal, or to
dispose of it according to the judgment, or to aid execution when the execution has been
returned unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the
judgment, or otherwise to carry the judgment into effect;
(d) Whenever in other cases it appears that the appointment of a receiver is the most
convenient and feasible means of preserving, administering, or disposing of the property in
litigation.

During the pendency of an appeal, the appellate court may allow an application for the
appointment of a receiver to be filed in and decided by the court of origin and the receiver
appointed to be subject to the control of said court. [Rule 59, Sec. 1]

Nature of the duty of the receiver

A receiver is not an agent or representative of any party to the action. He is an officer of
the court exercising his functions in the interest of neither plaintiff nor defendant, but for the
common benefit of all parties in interest. [Pacific Merchandising Corporation v. Consolacion
Insurance, 73 SCRA 564]

Requirements before issuance of an order

1) Verified application for the appointment of a receiver based on any of the grounds
enumerated in Section 1, Rule 59; and
2) Bond filed by the applicant and executed to the party against whom the application is
presented, in an amount to be fixed by the court, to the effect that the applicant will pay such
party all damages the latter may sustain by reason of the appointment of such receiver in case
the applicant should have procured the same without sufficient cause.

Posting of additional bond

The court may, in its discretion, at any time after the appointment, require an additional
bond as further security for such damages

General powers of a receiver

Subject to the control of the court in which the action or proceeding is pending a
receiver shall have the power to bring and defend, in such capacity, actions in his own name; to
take and keep possession of the property in controversy; to receive rents; to collect debts due
to himself as receiver or to the fund, property, estate, person, or corporation of which he is the
receiver; to compound for and compromise the same; to make transfers; to pay outstanding
debts; to divide the money and other property that shall remain among the persons legally
entitled to receive the same; and generally to do such acts respecting the property as the court
may authorize. However, funds in the hands of a receiver may be invested only by order of the
court upon the written consent of all the parties to the action. [Rule 59, Sec. 6]

Two kinds of bonds

There are two main types of bonds, namely:

1. The bond required before appointment of a receiver; and
2. The bond required of a receiver before entering upon his duties.

Another bond is the one which the court may require, at any time after the appointment of the
receiver as further security for damages. [Riano, supra]

Termination of receivership

Whenever the court, motu proprio or on motion of either party, shall determine that the
necessity for a receiver no longer exists, it shall, after due notice to all interested parties and
hearing, settle the accounts of the receiver, direct the delivery of the funds and other property
in his possession to the person adjudged to be entitled to receive them and order the discharge
of the receiver from further duty as such. The court shall allow the receiver such reasonable
compensation as the circumstances of the case warrant, to be taxed as costs against the
defeated party, or apportioned, as justice requires. [Rule 59, Sec. 8]

3.18.6. Replevin

Nature of replevin

Replevin, broadly understood, is both a form of principal remedy and of a provisional
relief. It may refer either to the action itself, i.e., to regain the possession of personal chattels
being wrongfully detained from the plaintiff by another, or to the provisional remedy that would
allow the plaintiff to retain the thing during the pendency of the action and hold it pendente
lite. [Tillson vs. Court of Appeals, 197 SCRA 587]

Nature of an action for replevin

The action is primarily possessory in nature and generally determines nothing more than
the right of possession. Replevin is so usually described as a mixed action, being partly in
rem and partly in personam-in rem insofar as the recovery of specific property is concerned,
and in personam as regards to damages involved. As an "action in rem," the gist of the replevin
action is the right of the plaintiff to obtain possession of specific personal property by reason of
his being the owner or of his having a special interest therein. [BA Finance Corporation v. Court
of Appeals, 258 SCRA 102]

When may writ be issued?/Requisites

A party praying for the recovery of possession of personal property may, at the
commencement of the action or at any time before answer, apply for an order for the delivery
of such property to him, in the manner hereinafter provided.

Applicant need not be the owner of the property subject of replevin

The applicant need not be the owner of the property. It is enough that he has a right to
its possession. [Yang v. Valdez, G.R. No. 73317, August 31, 1989]

Affidavit and bond; redelivery bond

The applicant must show by his own affidavit or that of some other person who
personally knows the facts:

(a) That the applicant is the owner of the property claimed, particularly describing it, or
is entitled to the possession thereof;
(b) That the property is wrongfully detained by the adverse party, alleging the cause of
detention thereof according to the best of his knowledge, information, and belief ;
(c) That the property has not been distrained or taken for a tax assessment or a fine
pursuant to law, or seized under a writ of execution or preliminary attachment, or otherwise
placed under custodia legis, or if so seized, that it is exempt from such seizure or custody; and
(d) The actual market value of the property. [Rule 60, Sec. 2]

Remedy of the adverse party

If the adverse party objects to the sufficiency of the applicant's bond, or of the surety or
sureties thereon, he cannot immediately require the return of the property, but if he does not
so object, he may, at any time before the delivery of the property to the applicant, require the
return thereof, by filing with the court where the action is pending a bond executed to the
applicant, in double the value of the property as stated in the applicant's affidavit for the
delivery thereof to the applicant, if such delivery be adjudged, and for the payment of such
sum, to him as may be recovered against the adverse party, and by serving a copy of such bond
on the applicant. [Rule 60, Sec. 5]

Sheriffs duty in the implementation of the writ; when property is claimed by third party

Upon receiving such order, the sheriff must serve a copy thereof on the adverse party,
together with a copy of the application, affidavit and bond, and must forthwith take the
property, if it be in the possession of the adverse party, or his agent, and retain it in his custody.
If the property or any part thereof be concealed in a building or enclosure, the sheriff must
demand its delivery, and if it be not delivered, he must cause the building or enclosure to be
broken open and take the property into his possession. After the sheriff has take possession of
the property as herein provided, he must keep it in a secure place and shall be responsible for
its delivery to the party entitled thereto upon receiving his fees and necessary expenses for
taking and keeping the same. [Rule 60, Sec. 4]

Duty of the sheriff upon seizure of property under replevin

The rules provide that property seized under a writ of replevin is not to be delivered
immediately to the plaintiff. Under Section 6, Rule 60, the Sheriff should have waited no less
than 5 days in order to give the complainant an opportunity to object to the sufficiency of the
bond. [Hao v. Andres, A.M. No. P-07-2384, June 18, 2008]

When to make an objection? Requirements;

If within five (5) days after the taking of the property by the sheriff, the adverse party
does not object to the sufficiency of the bond, or of the surety or sureties thereon; or if the
adverse party so objects and the court affirms its approval of the applicant's bond or approves a
new bond, or if the adverse party requires the return of the property but his bond is objected to
and found insufficient and he does not forthwith file an approved bond, the property shall be
delivered to the applicant. If for any reason the property is not delivered to the applicant, the
sheriff must return it to the adverse party. [Rule 60, Sec. 6]

Third party- claim: Duty of the sheriff

If the property taken is claimed by any person other than the party against whom the
writ of replevin had been issued or his agent, and such person makes an affidavit of his title
thereto, or right to the possession thereof, stating the grounds therefor, and serves such
affidavit upon the sheriff while the latter has possession of the property and a copy thereof
upon the applicant, the sheriff shall not be bound to keep the property under replevin or deliver
it to the applicant unless the applicant or his agent, on demand of said sheriff, shall file a bond
approved by the court to indemnify the third-party claimant in a sum not less than the value of
the property under replevin as provided in section 2 hereof. In case of disagreement as to such
value, the court shall determine the same. No claim for damages for the taking or keeping, of
the property may be enforced against the bond unless the action therefor is filed within one
hundred twenty (120) days from the date of the filing of the bond.

Non-liability of the sheriff

The sheriff shall not be liable for damages, for the taking or keeping of such property, to
any such third-party claimant if such bond shall be filed. Nothing herein contained shall prevent
such claimant or any third person from vindicating his claim to the property, or prevent the
applicant from claiming damages against a third-party claimant who filed a frivolous or plainly
spurious claim, in the same or a separate action.

Rule in case writ was issued in favour of the Republic: Bond not required

When the writ of replevin is issued in favor of the Republic of the Philippines, or any
officer duly representing it, the filing of such bond shall not be required, and in case the sheriff
is sued for damages as a result of the replevin, he shall be represented by the Solicitor General,
and if held liable therefor, the actual damages adjudged by the court shall be paid by the
National Treasurer out of the funds to be appropriated for the purpose. [Rule 60, Sec. 7]


Support pendent lite

Interlocutory and Final orders; application to provisional remedies especially to support
pendente lite.

Order of support pendent lite an interlocutory order

The assailed orders relative to the incident of support pendent lite and support in
arrears, as the term suggests, were issued pending the rendition of the decision on the main
action for declaration of nullity of marriage and are therefore interlocutory. They did not finally
dispose of the case nor did they consist of a final adjudication of the merits of petitioners
claims as to the ground of psychological incapacity and other incidents as child custody,
support, and conjugal assets. (Ma. Carmina Calderon represented by her Attorney-in-fact,
Marycris V. Baldevia v. Jose Antonio Roxas and Court of Appeals, G.R. No. 185595. January 9,
2013)

3.19. Special civil actions

Burden of Proof

We stress that in a special civil action for certiorari, the petitioner carries the burden of
proving not merely reversible error, but grave abuse of discretion amounting to lack or excess
of jurisdiction, on the part of the public respondent for his issuance of the impugned order.
Grave abuse of discretion is present when there is a capricious and whimsical exercise of

Meaning of lack of jurisdiction

judgment as is equivalent to lack of jurisdiction, such as where the power is exercised in
an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so
patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform
the duty enjoined or to act at all in contemplation of law. In other words, the tribunal or
administrative body must have issued the assailed decision, order or resolution in a capricious
or despotic manner. Petitioner failed to discharge that burden and perforce the petition must
fail. (Isabelita P. Gravides Vs. Commission on Elections and Pedro C. Borjal, G.R. No.
199433. November 13, 2012)


3.19.1. Nature of special civil actions

Rule 65 not a Remedy for lost Appeal

At the outset, it must be pointed out that petitioners resort to a Petition for Certiorari
under Rule 65 of the Rules of Court is inappropriate. Petitioners remedy from the adverse
Decision of the CA lies in Rule 45 which is a Petition for Review on Certiorari. As such, this
petition should have been dismissed outright for being a wrong mode of appeal. Even if the
petition is to be treated as filed under Rule 45, the same must still be denied for late filing and
there being no reversible error on the part of the CA. Records show that petitioners received a
copy of the CA Resolution denying their Motion for Reconsideration on October 30, 2006.42
They therefore had 15 days or until November 14, 2006 within which to file their Petition for
Review on Certiorari before this Court. However, they filed their Petition for Certiorari on
December 29, 2006,43 after the period to file a Petition for Review on Certiorari under Rule 45
had expired. Hence, this Petition for Certiorari under Rule 65 was resorted to as a substitute for
a lost appeal which is not allowed. (Ruben C. Magtoto and Artemia Magtoto Vs. Court of
Appeals and Leonila M. Dela CruzG.R. No. 175792. November 21, 2012)

3.19.2. Ordinary civil actions versus special civil actions

An ordinary civil action is when a party sues another for the enforcement or protection
of a right, or the prevention or redress of a wrong. [Reyes v. Enriquez, G.R. No. 162956, April 10,
2008] A special civil action contains special features not found in ordinary civil actions. It is also
governed by ordinary rules but subject to specific rules prescribed. [Rule 1, Sec. 3 (a), Paragraph
2]
3.19.3. Jurisdiction and venue

Rule on venue in special civil action

Unlike ordinary civil actions which is determined by either the residences of the parties
if personal, or location of the property if real, special civil actions need not be based on this. For
instance for quo warranto, venue is fixed without regard to the residences of the parties.
[Riano, Civil Procedure II, 2012] Venue should still follow the rule on venue, except in instances
where the special civil action specifies.

Jurisdiction of the lower court to hear interpleader

In view of defendants subsequent failure to settle his issue with the supplier, plaintiff
instituted an action for interpleader against the defendant and the supplier, before the Court of
First Instance. The Court held that the Special Civil Action may be tried by the lower court if it
falls within its jurisdiction, here the amount was less than 10,000, hence, the petition was
proper. [Makati Development v. Tanjuatco, G.R. No. L-26443, March 25, 1969]

Jurisdiction in ejectment

Petitioners contend that since the MTC acted without jurisdiction, the RTC can only
decide the case on appeal if it has original jurisdiction. The SC held that the MTC had
jurisdiction over this ejectment case even if the question of possession could be resolved
without passing upon the issue of ownership. [Serrano v. Gutierrez, G.R. No. 162366, November
10, 2006]

3.19.4. Interpleader

A remedy whereby a person who has property whether personal or real, in his
possession, or an obligation to render wholly or partially, without claiming any right in both, or
claims an interest which in whole or in part is not disputed by the conflicting claimants, comes
to court and asks that the persons who claim the said 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 one or the other thing. The remedy is afforded not
to protect a person against a double liability but to protect him against a double vexation in
respect of one liability. [Ocampo v. Tirona, G.R. No. 147382, April 6, 2005]

Requisites for interpleader

It is indispensable that there be conflicting claims upon the same subject matter are or
may be made against the plaintiff-in-interpleader who claims no interest whatever in the
subject matter or an interest which in whole or in part is not disputed by the claimants. [Rizal
Commercial Banking Corporation v. Metro Container Corp., G.R. No. 127913, September 13,
2001]

The requisites are: a.) There must be two or more claimants with adverse or conflicting
interests upon a subject matter; b.) The conflicting claims involve the same subject matter; c.)
The conflicting claims are made against the same person; d.) The plaintiff has no claim upon the
subject matter of the adverse claims or if he has an interest at all, such interest is not disputed
by the claimants. [Riano, supra]

When to file?

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. [Rule 62, Sec. 1]

Instance when interpleader is proper

Interpleader is proper when the lessee does not know the person who is entitled to the
payment of the rentals due because of conflicting claims on the property. The remedy passes
the legal problem to the court which will have to adjudicate upon the adverse claims. [Pasrischa
v. Don Luis Dizon Realty, Inc., 548 SCRA 273, 292]

Limitations in the filing of interpleader: Diligence is required

It must be noted, however, that a stakeholder should use reasonable diligencethat is,
by filing the interpleader suit within a reasonable time after a dispute has arisen without
waiting to be sued by either of the contending claimants. Otherwise, he may be barred by
laches or undue delay. [Wack-Wack Golf v. Won, 70 SCRA 165]
Instance when interpleader is no longer necessary

When the decision of a case has become final and executory, the party has no other
alternative but to pay rentals. The move for dismissal of interpleader was not an indication that
it is no longer interested, rather there is no more need for it. [Rizal Commercial Banking
Corporation v. Metro Container Corp., supra]

Inchoate right not a basis for interpleader

In a case where petitioners father, aunt and uncles co-owned the land, and thereafter
sold the land, petitioners aver that there is a conflict among the heirs of the co-owner.
Petitioners were not the registered owners of the land, but represented merely an inchoate
interest thereto as heirs, hence they have no personality to file such case. [Ramos v. Ramos, 399
SCRA 43 (2005)]

3.19.5. Declaratory reliefs and similar remedies

When declarqatory relief is proper?

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. [Rule 63, Sec. 1]

Only issue of construction and validity proper in declaratory relief

In a case which interpreted R.A. 305, which converted the municipality of Naga to a city,
in order to determine the rightful possessor of Plaza Rizal. The court explained that 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, hence it complies with requirement of the rules.
[Province of Camarines Sur v. Court of Appeals, 600 SCRA 569]

Interpretation of the contract proper for declaratory relief

Respondent instituted an action for declaratory relief for purposes of determining the
correct interpretation of condition Nos. 6 and 7 of the lease contract to prevent damage and
prejudice. The court took cognizance on the case, despite the fact that a separate action was
pending in another court because in the instant case no breach was committed. [Almeda v.
Bathala Marketing Industries, 542 SCRA 470]

Declaratory relief not within the original jurisdiction of the Supreme Court

Petitioner is a radio station which was granted to operate under R.A. 3001,
subsequently, President Marcos issued P.D. 576-A which restricted radio station ownership. The
Supreme Court dismissed the petition, ruling that a petition for declaratory relief is not among
the petitions within the original jurisdiction of the Supreme Court even if only questions of law
are involved. [Allied Broadcasting Corporation v. Republic of the Philippines, G.R. No. 91500,
October 18, 1990] Note that this rule is subject to the Supreme Courts discretion.

Declaratory relief treated as mandamus

In one instance the court took cognizance of a case, wherein a 12 year old was raped by
a foreigner, and in order to garnish the foreign deposit of the accused, which was exempt by
reason of a law. The Supreme Court treated the petition for declaratory relief as mandamus to
require the banks to honor the decision of the lower court, and added that, where the petition
has far-reaching implications and raises questions that should be resolved. [Salvacion v. Central
Bank, G.R. No. 94723 August ,21, 1997]

Who may file the action

All persons who have e claim any interest which would be affected by the declaration
shall be made parties. [Rule 63, Sec. 2]

When Solicitor General should be notified?

In any action which involves the validity of a statute, executive order or regulation, or
any other governmental regulation, the Solicitor General shall be notified by the party assailing
the same. [Rule 63, Sec. 3]

Who shall be notified in case of an ordinance?

In any action involving the validity of a local government ordinance, the corresponding
prosecutor or attorney of the local governmental unit involved shall be similarly notified and
entitled to be heard. [Rule 63, Sec. 4]

Requisites of action for declaratory relief

The requisites of an action for declaratory relief are: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. [Jumamil v. Caf, G.R. No. 144570, September 21, 2005]

What is a justiciable question?
A justiciable controversy is a definite and concrete dispute touching on the legal
relations of parties having adverse legal interests, which may be resolved by a court of law
through the application of a law. Hence, a mere apprehension of an administrative sanction
does not give rise to a justiciable controversy. [Bayan Telecommunications v. Republic of the
Philippines, 513 SCRA 560]

Issue of status prior to marriage can be a subject of declaratory relief

Petitioner filed a case to clarify her status prior to their marriage, after the death of her
Chinese husband. As a consequence, her petition is, in effect, one for a declaratory relief, which
this Court has repeatedly held to be inapplicable to the political status of natural persons. [Lim
v. Republic, G.R. No. L-29535. February 27, 1971]

Issues in filiation and hereditary rights not subject of declaratory relief

Petitioner filed a declaratory relief to determine his filiation and hereditary rights. The
Court held that, the action is improper because it is not based on a deed, will, statute or any of
those as subject matter of the petition. [Edades v. Edades, 99 Phil. 675]

When court may refuse to make judicial declaration

Except in actions falling under the second paragraph of section 1 of this Rule, the
court, motu proprio or upon motion, may refuse to exercise the power to declare rights and to
construe instruments in any case where a decision would not terminate the uncertainty or
controversy which gave rise to the action, or in any case where the declaration or construction
is not necessary and proper under the circumstances. [Rule 63, Sec. 5]

Action for reformation of instrument, quieting of title and consolidation of ownership

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. [Rule 63, Sec. 1, Paragraph 2]

Effect is necessary party is not impleaded

The petition for declaratory relief only included the administrator and trustees under the
will, it failed to include the Roman Catholic Church of Nueva Segovia. The non-joinder of
necessary parties would deprive the declaration of that final and pacifying function it is
calculated to subserve, as they would not be bound by the declaration and may raise the
identical issue. [Degala v. Reyes, G.R. No. L-2402, November 29, 1950]

The non-inclusion of the squatters mentioned in the Ordinance in question as party
defendants in this case cannot defeat the jurisdiction of the Court of First Instance of Baguio.
The reason for the law requiring the joinder of all necessary parties is that failure to do so
would deprive the declaration of the final and pacifying function the action for declaratory relief
is calculated to subserve, as they would not be bound by the declaration and may raise the
Identical issue. [Baguio Citizens Action v. City Council, G.R. No. L-27247, April 20, 1983]

Conversion to 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. [Rule 63, Sec. 6]

Prior breach of law or contract not proper for declaratory relief

Where the law or contract has already been contravened prior to the filing of an action
for declaratory relief, the court can no longer assume jurisdiction over the action. Under such
circumstances, inasmuch as a cause of action has already accrued in favor of one or the other
party, there is nothing more for the court to explain or clarify short of a judgment or final order.
[Tambunting, Jr. v. Sumabat, G.R. No. 144101, September 16, 2005]

Failure to state the law subject of petition is fatal

Petitioners filed a declaratory relief without stating the law which pertained to the case.
The Supreme Court held that, although Section 6, Rule 63 might allow such course of action, the
respondents did not argue the point, and we note petitioners failure to specify the ordinary
action they desired. [Martelino v. National Home Mortgage Finance Corporation, G.R. No.
160208, June 30, 2008]

Proceedings considered as similar remedies

Reformation of an instrument

When, there having been a meeting of the minds of the parties to a contract, their true
intention is not expressed in the instrument purporting to embody the agreement, by reason of
mistake, fraud, inequitable conduct or accident, one of the parties may ask for the reformation
of the instrument to the end that such true intention may be expressed.

If mistake, fraud, inequitable conduct, or accident has prevented a meeting of the minds of the
parties, the proper remedy is not reformation of the instrument but annulment of the contract.
[Art. 1359, Civil Code of the Philippines]

Note that this remedy is governed by Art. 1359-1369 of the civil code.

Prescription bars reformation of instrument

In one case, Respondent Corporation filed an action for reformation 24 years after the
issue arose, hence it is barred by prescription. The Court added that the purpose of an action
for declaratory relief is to secure an authoritative statement of the rights and obligations of the
parties for their guidance in the enforcement thereof, or compliance therewith, and not to
settle issues arising from an alleged breach thereof, it may be entertained only before the
breach or violation of the law or contract to which it refers. [Bentir v. Leanda, G.R. No. 128991,
April 12, 2000]

Consolidation of ownership

In case of real property, the consolidation of ownership in the vendee by virtue of the
failure of the vendor to comply with the provisions of article 1616 shall not be recorded in the
Registry of Property without a judicial order, after the vendor has been duly heard. [Art. 1607,
Civil Code of the Philippines]i

Quieting of title to real property

Nature and purpose of quieting of title

An action for quieting of title is essentially a common law remedy grounded on equity.
The competent court is tasked to determine the respective rights of the complainant and other
claimants, not only to place things in their proper place, to make the one who has no rights to
said immovable respect and not disturb the other, but also for the benefit of both, so that he
who has the right would see every cloud of doubt over the property dissipated, and he could
afterwards without fear introduce the improvements he may desire, to use, and even to abuse
the property as he deems best. But for an action to quiet title to prosper, two indispensable
requisites must concur, namely: (1) the plaintiff or complainant has a legal or an equitable title
to or interest in the real property subject of the action; and (2) the deed, claim, encumbrance,
or proceeding claimed to be casting cloud on his title must be shown to be in fact invalid or
inoperative despite its prima facie appearance of validity or legal efficacy. (Dionisio Manaquil,
et al. Vs. Roberto Moico, G.R. No. 80076, November 20, 2012)

When is the remedy of quieting of title proper?

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

An action may also be brought to prevent a cloud from being cast upon title to real
property or any interest therein. [Art. 476, Civil Code of the Philippines]

Procedure to be followed

The procedure for the quieting of title or the removal of a cloud therefrom shall be
governed by such rules of court as the Supreme Court shall promulgated. [Art. 481, Civil Code of
the Philippines]

Purpose of the remedy

Quieting of title is a common law remedy for the removal of any cloud, doubt or
uncertainty affecting title to real property. The plaintiffs must show not only that there is a
cloud or contrary interest over the subject real property, but that they have a valid title to it.
[Spouses Santiago v. Villamor, G.R. No. 168499, November 26, 2012]

Requisites

In order that an action for quieting of title may prosper, two requisites must concur: (1) the
plaintiff or complainant has a legal or equitable title or interest in the real property subject of
the action; and (2) the deed, claim, encumbrance, or proceeding claimed to be casting cloud on
his title must be shown to be in fact invalid or inoperative despite its prima facie appearance of
validity or legal efficacy. [Phil-Ville Development and Housing Corporation v. Bonifacio, 651 SCRA
327]

3.19.6. Review of judgments and final orders or resolution of the Comelec and COA

This Rule shall govern the review of judgments and final orders or resolutions of the
Commission on Elections and the Commission on Audit. [Rule 64, Sec. 1]

Decisions of the Civil Service Commission is now reviewable by the Court of Appeals.
[R.A. No. 7902, Sec. 1]

Petition for review under Rule 43 an available remedy on the decision of the Civil Service
Commission

Petitioner is a school principal and was charged of sexual harassment, the remedy of an
aggrieved party from a resolution issued by the CSC is to file a petition for review thereof under
Rule 43 of the Rules of Court within fifteen days from notice of the resolution. However, it
admits exceptions, like the instant case, such as invalid writs, in this case Cuanan was denied of
due process for failure to serve him a copy of the pleadings. [Cuanan v. DepEd, G.R. No. 169013,
December 16, 2008]

Application of Rule 65 under Rule 64

A judgment or final order or resolution of the Commission on Elections and the
Commission on Audit may be brought by the aggrieved party to the Supreme Court
on certiorari under Rule 65. [Rule 64, Sec. 2]

Petition for certiorari available in case of COMELEC decision

A review includes digging into the merits and unearthing errors of judgment, while
certiorari deals exclusively with grave abuse of discretion, which may not exist even when the
decision is otherwise erroneous. certiorari implies an indifferent disregard of the law,
arbitrariness and caprice, an omission to weight pertinent considerations, a decision arrived at
without rational deliberation. [Aratuc v. COMELEC,621 SCRA 385]

Lokin has correctly brought this special civil action for certiorari against the COMELEC to
seek the review of the resolution of the COMELEC in approving the withdrawal of his
nomination. The constitutional mandate is now implemented by Rule 64 of the 1997 Rules of
Civil Procedure, which provides for the review of the judgments, final orders or resolutions of
the COMELEC and the Commission on Audit. [Lokin v. COMELEC, 621 SCA 385]

Error of jurisdiction subject of Rule 64

A complaint was filed against petitioners for violation of rules of COA and for violation of
R.A. 3019. The office of the petition for certiorari is not to correct simple errors of judgment;
any resort to the said petition under Rule 64, in relation to Rule 65, of the 1997 Rules of Civil
Procedure is limited to the resolution of jurisdictional issues. [Reyna v. COA, 642 SCRA 210]

3.19.7. Certiorari, prohibition and mandamus

Function of writ of certiorari

Certiorari under Rule 65, as its principal function is to keep an inferior tribunal within its
jurisdiction. It can be invoked only for an error of jurisdiction, that is, one where the act
complained of was issued by the court, officer or a quasi-judicial body without or in excess of
jurisdiction, or with grave abuse of discretion which is tantamount to lack or in excess of
jurisdiction. [Angara v. Fedman, G.R. No. 156822, October 18, 2004]

Function of prohibition

The function of prohibition is to prevent the unlawful and oppressive exercise of legal
authority and to provide for a fair and orderly administration of justice. It is directed against
proceedings that are done without or in excess of jurisdiction, or with grave abuse of discretion,
there being no appeal or other plain, speedy and adequate remedy in the ordinary course of
law. [Vergara v. Rugue, G.R. No. L-32984, August 25, 1977]

What is Mandamus?

Mandamus is a writ commanding a tribunal, corporation, board, or person to do the act
required to be done when it or he 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, there
being no other plain, speedy, and adequate remedy in the ordinary course of law. [Angchangco
v. Ombudsman, G.R. No. 122728, February 13, 1997]

Special Civil Action for Mandamus; nature; when available.

Similarly, the petition could not be one for mandamus, which is a remedy available only
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.
The main objective of mandamus is to compel the performance of a ministerial duty on the part
of the respondent. Plainly enough, the writ of mandamus does not issue to control or review
the exercise of discretion or to compel a course of conduct, which, it quickly seems to us, was
what petitioners would have the Secretary of Justice do in their favor. Consequently, their
petition has not indicated how and where the Secretary of Justices assailed issuances excluded
them from the use and enjoyment of a right or office to which they were unquestionably
entitled. Spouses Augusto Dacudao and Ofelia Dacudao v. Secretary of Justice Raul Gonzales of
the Department of Justice, G.R. No. 188056. January 8, 2013

Special Civil Action for Mandamus; nature; compels performance of ministerial duties.

A key principle to be observed in dealing with petitions for mandamus is that such
extraordinary remedy lies to compel the performance of duties that are purely ministerial in
nature, not those that are discretionary. A purely ministerial act or duty is one that an officer or
tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate
of a legal authority, without regard to or the exercise of its own judgment upon the propriety or
impropriety of the act done. The duty is ministerial only when its discharge requires neither the
exercise of official discretion or judgment. Special People, Inc. Foundation, represented by its
Chairman, Roberti P. Cericos v. Nestor M. Canda, et al., G.R. No. 160932. January 14, 2013

Certiorari distinguished from appeal by certiorari

The proper recourse of the aggrieved party from a decision of the CA is a petition for
review on certiorari under Rule 45 of the Revised Rules of Court. On the other hand, if the error
subject of the recourse is one of jurisdiction, or the act complained of was perpetrated by a
quasi-judicial officer or agency with grave abuse of discretion amounting to lack or excess of
jurisdiction, the proper remedy available to the aggrieved party is a petition
for certiorari under Rule 65 of the said Rules. [Land Bank of the Philippines v. Court of Appeals,
456 Phil. 755]

Requisites for Certiorari under Rule 65 will lie

It may issue only when the following requirements are alleged in and established by the
petition: (1) that the writ is directed against a tribunal, a board or any officer exercising judicial
or quasi-judicial functions; (2) that such tribunal, board or officer has acted without or in excess
of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction; and
(3) that there is no appeal or any plain, speedy and adequate remedy in the ordinary course of
law. [Tan v. Antazo, G.R. No. 187208, February 23, 2011]

Requisites for issuance of writ of prohibition

For a writ of prohibition, the requisites are: (1) the impugned act must be that of a
tribunal, corporation, board, officer, or person, whether exercising judicial, quasi-judicial or
ministerial functions; and (2) there is no plain, speedy, and adequate remedy in the ordinary
course of law. [Ongsuko v. Malones, G.R. No. 182065, October 27, 2009]

Injunctive relief necessary to stop proceedings below

The pendency of a petition for certiorari does not suspend the proceedings before the
trial court. Rule 65 of the Rules of Court is explicit in stating that the petition shall not interrupt
the court of the principal case unless a temporary restraining order or a writ of preliminary
injunction has been issued against the public respondent from further proceedings. [Juliano-
Llave v. Republic, 646 SCRA 637]

Exceptions to filing of motion for reconsideration before filing petition

Respondents contention that petitioner should have first filed a motion for
reconsideration before resorting to the remedy of certiorari. The Supreme Court held that while
the rule is that before certiorari may be availed of, petitioner must first file a motion for
reconsideration with the lower court of the act or order complained of, however, such rule is
not without exception. [Barrazona v. RTC of Baguio-Branch 61, 486 SCRA 555]

The rule is, however, circumscribed by well-defined exceptions, such as:

(a) where the order is a patent nullity, as where the court a quo had no jurisdiction;
(b) where the questions raised in the certiorari proceeding have been duly raised and
passed upon by the lower court, or are the same as those raised and passed upon in the lower
court;
(c) where there is an urgent necessity for the resolution of the question and any further
delay would prejudice the interests of the Government or of the petitioner or the subject
matter of the action is perishable;
(d) where, under the circumstances, a motion for reconsideration would be useless;
(e) where petitioner was deprived of due process and there is extreme urgency for relief;
(f) where, in a criminal case, relief from an order of arrest is urgent and the granting of
such relief by the trial court is improbable;
(g) where the proceedings in the lower court are a nullity for lack of due process;
(h) where the proceedings were ex parte, or in which the petitioner had no opportunity
to object; and
(i) where the issue raised is one purely of law or where public interest is involved. [Tang
v. Subic Bay Distribution, G.R. No. 162575, December 15, 2010]

Reliefs petitioner is entitled to

Annulment of the proceedings and grant of relief
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. [Rule 65, Sec. 1]

When can judgment be rendered?

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. [Rule 65, Sec. 8]

Other reliefs

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. [Rule 65, Sec. 7]

Actions/omissions of MTC/RTC in election cases

In election cases involving an act or an omission of a municipal or a regional trial court,
the petition shall be filed exclusively with the Commission on Elections, in aid of its appellate
jurisdiction. [A.M. No. 07-7-12-SC Dec. 12, 2007]

A petition for certiorari was filed questioning an interlocutory order of a trial court in an
electoral protest was within the appellate jurisdiction of the COMELEC. Since it is the COMELEC
which has jurisdiction to take cognizance of an appeal from the decision of the regional trial
court in election contests involving elective municipal officials, then it is also the COMELEC
which has jurisdiction to issue a writ of certiorari in aid of its appellate jurisdiction. [Galang v.
Geronimo, G.R. No. 192793, February 22, 2011]

When and where to file petition?

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. [Rule 65, Sec. 4]

Effects of filing of an unmeritorious petition

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. [Rule 64, Sec. 8]

Grave abuse of discretion; concepts.

When grave abuse of discretion arises?

To be sure, grave abuse of discretion arises when a lower court or tribunal patently
violates the Constitution, the law or existing jurisprudence. Here, while the RTC had initially
issued a writ of possession in favor of Sps. Marquez, it defied existing jurisprudence when it
effectively rescinded the said writ by subsequently granting Sps. Alindogs prayer for injunctive
relief. Spouses Nicasio C. Marquez and Anita J. Marquez v. Spouses Carlito Alindog and Carmen
Alindog,G.R. No. 184045. January 22, 2014.

It is settled doctrine that there is grave abuse of discretion when there is a capricious
and whimsical exercise of judgment as is equivalent to lack of jurisdiction, such as where the
power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility,
and it must be so patent and gross so as to amount to an evasion of positive duty or to a virtual
refusal to perform the duty enjoined or to act at all in contemplation of law. Ralph P. Tua v.
Hon. Cesar A. Mangrobang, Presiding Judge, Branch 22, RTC, Imus, Cavite; and Rossan Honrado-
Tua,G.R. No. 170701. January 22, 2014.

3.19.8. Quo warranto

A quo warranto proceeding is generally defined as an action against a person who
usurps, intrudes into, or unlawfully holds or exercises a public office. [Tecson v. COMELEC, 424
SCRA 277]

Instance when quo warranto is not proper

Petitioners argue that since their prayer involves the cancellation of the provisional
authority and CPCs, and not the legislative franchise, then quo warranto fails as a remedy. The
Court explained that the special civil action of quo warranto is a prerogative writ by which the
Government can call upon any person to show by what warrant he holds a public office or
exercises a public franchise. [Divinagracia v. Consolidated Broadcasting System, G.R. No.
162272, April 7, 2009]

Distinguish from quo warranto in the Omnibus Election Code

The Court has already likened a proceeding under Section 78 to a quo warranto
proceeding since they both deal with the eligibility or qualification of a candidate. The
distinction mainly in the fact that a "Section 78" under Section 253 of the OEC, petition is filed
before proclamation, while a petition for quo warranto is filed after proclamation of the winning
candidate. [Fermin v. COMELEC, G.R. No. 179695, December 18, 2008]


Quo Warranto under OEC Quo Warranto under Rule
66
Governed by election laws Governed by the rules of
Court
Issue is the eligibility or
ineligibility of the person
elected or his loyalty or
disloyalty to the Republic
Issue is the legality or
illegality of the occupancy of
the office by virtue of an
appointment
Petition is filed within 10
days after the proclamation
of the results of the election
Filed within one year from
the time the cause of ouster,
or the right of the petitioner
to hold office arose
Petition is brought in the
COMELEC, RTC, or MTC
Petition is brought in the SC,
CA or RTC
Petitioner may be any voter
even if he is not entitled to
the office
Petitioner is the person
claiming to be entitled to
office
[Riano, Supra]

When government may commence an action 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. [Rule 66, Sec. 1]

Solicitor General can commence the 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.
[Rule 66, Sec. 2]

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. [Rule 66, Sec. 3]

When individual may commence 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. [Rule 66, Sec. 5]

Judgment in quo warranto action

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. [Rule 66, Sec. 9]

Rights of a person adjudged entitled to public office

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. [Rule 66, Sec. 10]

3.19.9. Expropriation

The power of eminent domain in particular has been described as a right to take or
reassert dominion over property within the state for public use or meet public exigency. It is
also said to be an essential part of governance even in its most primitive form, and thus,
inseparable from sovereignty. [Air Transportation Office v. Gopuco, Jr., 462 SCRA 544]

Matters to allege in complaint for expropriation

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. [Rule
67, Sec. 1]

Two stages in every action for expropriation

The first stage is the determination of authority of the plaintiff to expropriate, which
includes the propriety of the expropriation, its necessity and public purpose. The second stage
is the determination of just compensation through the court-appointed commissioners.
[National Power Corporation v. Joson, 206 SCRA 520] The first phase ends with either an order
of dismissal or a determination that the property is to be acquired for a public purpose. [City of
Manila v. Alegar Corporation, G.R. No. 187604]

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. [Rule 67, Sec. 5]

When plaintiff can immediately enter into possession of the real property, in relation to R.A.
No. 8974

(a) Upon the filing of the complaint, and after due notice to the defendant, the
implementing agency shall immediately pay the owner of the property the amount equivalent
to the sum of (1) one hundred percent (100%) of the value of the property based on the
current relevant zonal valuation of the Bureau of Internal Revenue (BIR); and (2) the value of
the improvements and/or structures as determined under Section 7 hereof;

(b) In provinces, cities, municipalities and other areas where there is no zonal valuation,
the BIR is hereby mandated within the period of sixty (60) days from the date of the
expropriation case, to come up with a zonal valuation for said area; and

(c) In case the completion of a government infrastructure project is of utmost urgency and
importance, and there is no existing valuation of the area concerned, the implementing agency
shall immediately pay the owner of the property its proffered value taking into consideration
the standards prescribed in Section 5 hereof.

Upon compliance with the guidelines abovementioned, the court shall immediately
issue to the implementing agency an order to take possession of the property and start the
implementation of the project. [Sec. 4, R.A. 8974]

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 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. [Rule 67, Sec. 4]

Ascertainment of just compensation

The payment of just compensation to be determined as of the date of the taking of the
property or the filing of the complaint, whichever came first. [Rule 67, Sec. 4]

Appointment of commissioner

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. [Rule 67, Sec. 5]

Duty of the court if there is no hearing conducted by the commissioner

Where no trial or hearing was conducted to afford parties the opportunity to present
their own evidence, the court should disregard the commissioners findings. The absence of
such trial or h earing constitutes a violation of the right of due process. [National Power
Corporation v. De la Cruz, 514 SCRA 56]

When to determine just compensation?

When the taking of the property sought to be expropriated coincides with the
commencement of the expropriation proceedings, or takes place subsequent to the filing of the
complaint for eminent domain, the just compensation should be determined as of the date of
filing of the complaint. [City of Iloilo v. Contreras Besana, 612 SCRA 458]

Meaning of just compensation

The constitutional limitation of just compensation is considered to be a sum equivalent
to the market value of the property, broadly defined as the price fixed by the seller in open
market in the usual and ordinary course of legal action and competition; or the fair value of the
property; as between one who receives and one who desires to sell it, fixed at the time of the
actual taking by the government. [Republic v. Rural Bank of Kabacan, Inc., 664 SCRA 233]

When is compensation considered just?

Apart from the requirement that compensation for expropriation must be fair and
reasonable, compensation to be just, must also be paid without delay if the property is
immediately taken as the property owner suffers the immediate deprivation of both his land
and its fruits or income. [Apo Fruits Corporation v. Land Bank of the Philippines, 632 SCRA 727]

Remedy of unpaid owner

Non-payment of just compensation does not entitle the private landowner to recover
possession of the expropriated lots. However, in cases where the government failed to pay just
compensation within 5 years from the finality of judgment in the expropriation proceedings, the
owners concerned shall have the right to recover possession of their rights. [Yujuico v. Atienza,
Jr., 472 SCRA 463]

Appointment of commissioners; commissioners report; court action upon commissioners
report

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. [Rule 67, Sec. 6]

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. [Rule 67, Sec. 7]

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. [Rule 67, Sec.8]

Rights of plaintiff upon 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. [Rule 67, Sec. 10]

Effect of recording of judgment

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. [Rule 67,
Sec. 13]

3.19.10. Foreclosure of real estate mortgage

Manner of foreclosure

Foreclosure of real estate mortgage may be made extra judicially under Act. 3135, or
judicially, under Rule 68 of the revised rules of court.

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. [Rule 68, Sec. 2]

The period given in the rule is not merely a procedural requirement; it is a substantive right
granted to the mortgage debtor as the last opportunity to pay the debt and save his mortgaged
property from final disposition at the foreclosure sale. [De Leon v. Ibanez, 95 Phil. 119]

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. [Rule 68, Sec. 3]

Equity of redemption

This is the mortgagors equity (not right) of redemption which, as above stated, may be
exercised by him even beyond the 90-day period from the date of service of the order, and
even after the foreclosure sale itself, provided it be before the order of confirmation of the
sale. After such order of confirmation, no redemption can be effected any longer. [Spouses
Rosales v. Spouses Alfonso, G.R. No. 137792, August 12, 2003]

Ex-parte motion for sale of mortgage property

Jurisprudence suggests that the motion for the sale of the mortgaged property is non-
litigable and may be made ex parte pursuant to the judgment of forclosure. [Government of P.I.
v. De las Lajigas, 55 Phil. 668]

Writ of possession ministerial

At that point, the issuance of a writ of possession, upon proper application and proof of
title becomes merely a ministerial function. Effectively, the court cannot exercise its discretion.
[Edralin v. Philippine Veteran Bank, G.R. No. 168523, March 9, 2011]

Motion for issuance of writ of possession an exception to three (3) day notice rule

The motion for issuance of a writ of possession is an exception to the general 3 day
notice rule for motions. Nevertheless, the ex parte nature of the proceedings does not deny due
process to the petitioners because the issuance of the writ of possession does not bar a
separate case for annulment of the mortgage and foreclosure sale. [Carlos v. Court of Appeals,
537 SCRA 247]

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. [Rule 68, Sec. 4]

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. [Rule 68,
Sec. 6]

It has been suggested that the mortgagor, who is not the debtor and who merely
executed the mortgage to secure the principal debtors obligation, is not liable for the deficiency
unless he assumed liability for the same in the contract. [Philippine Trust Company v. Echaus, 52
Phil. 852]

Judicial foreclosure versus extrajudicial foreclosure

There are two accepted modes of foreclosure: (a) Judicial foreclosure pursuant to Rule
68 of the rules of court; and (b) Extrajudicial foreclosure pursuant to Act 3135. Extrajudicial
foreclosure is the mode to be used if there is a special power inserted in or attached to the real
estate mortgage. [Riano, supra]

Equity of redemption

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

Equity of redemption may be exercised even beyond the 90 day period or before
conformation of sale

This is the mortgagors equity of redemption which may be exercised by him even
beyond the 90-day period and even after the foreclosure itself, provided it be before the order
of confirmation of the sale. After such confirmation, no redemption can be effected any longer.
[Limpin v. Intermediate Appellate Court, 166 SCRA 87]

Right of redemption only applicable in extra-judicial foreclosure

There is no right of redemption in a judicial foreclosure of mortgage under Rule 68. This
right exists only in extrajudicial foreclosures where there is always a right of redemption within
one year from the date of registration of the sale. [Santos v. Register of Deeds of Manila, 38
SCRA 42]

3.19.11. Partition

Partition, in general, is the separation, division, and assignment of a thing held in
common by those to whom it may belong. [Cano Vda. De Viray v. Spouses Usi, G.R. No. 192486,
November 21, 2012]

Presumption on partition

Partition presupposes the existence of a co-ownership of a property by two or more
persons. Thus, a division of property cannot be ordered by the court unless the existence of
ownership is first established, and that an action for partition will not lie if the claimant has no
rightful interest in the property. [Co Guik Lun v. Co, 655 SCRA 131]

Modes

Partition may be made in either of two ways: (a) By agreement of the parties; or (b) By
judicial proceedings under the Rules of Court. [Figuracion-Gerilla v. Vda. De Figuracion, 499
SCRA 484]

Who may file complain?
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. [Rule 69, Sec. 1]

Who should be made defendants?

All the co-owners must be joined. Accordingly, an action will not lie without the joinder
of all co-owners and other persons having interest in the property. [Garcia de Lara v. Gonzales
de Lara, 2 Phil. 294]

All co-heirs are indispensable parties:

Thus, all the co-heirs and persons having an interest in the property are indispensable
parties; as such, an action for partition will not lie without the joinder of the said parties. The
mere fact that Pedro Sepulveda, Sr. has repudiated the co-ownership between him and the
respondent does not deprive the trial court of jurisdiction to take cognizance of the action for
partition, for, in a complaint for partition, the plaintiff seeks, first, a declaration that he is a co-
owner of the subject property; and, second, the conveyance of his lawful shares. [Sepulveda v.
Pelaez, G.R. No. 152195, January 31, 2005]

Matters to allege in the complaint for partition

Setting forth 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. [Rule 69, Sec. 1]

Rights to the fruits and rents

In an action for partition in accordance with this Rule, a party shall recover from another
his just share of rents and profits received by such other party from the real estate in question,
and the judgment shall include an allowance for such rents and profit [Rule 69, Sec. 8]

Issue of exclusive ownership not proper for partition

When the allegations in the complaint assert the exclusive ownership of the property to
be partition, the nature of the action is not of partition. It is an action for the recovery of
property. [De la Cruz v. Court of Appeals, 412 SCRA 282]

Two stages in every action for partition

The first phase of a partition and/or accounting suit is taken up with the determination of
whether or not a co-ownership in fact exists, and a partition is proper. The second phase
commences when it appears that the parties are unable to agree upon the partition directed
by the court. In that event[,] partition shall be done for the parties by the [c]ourt with the
assistance of not more than three (3) commissioners. [Lacbayan v. Samoy, 645 SCRA 677]

Order of partition and partition by agreement

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. [Rule 69, Sec. 2]

Partition by commissioners; appointment of commissioners, commissioners report; court
action upon commissioners report
Appointment of commissioners

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. [Rule 69, Sec. 3]

Duty of the 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. [Rule 69, Sec. 4]

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 and rendered judgment thereon. [Rule 69, Sec. 6]

Judgment and its effects

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. [Rule 69, Sec. 11]


Partition of personal property

The provisions of this Rule shall apply to partitions of estates composed of personal
property, or of both real and personal property, in so far as the same may be applicable. [Rule
69, Sec. 13]

Prescription of action

Action for partition imprescriptible

Prescription does not run in favor of a co-owner or co-heir against his co-owner or co-
heirs as long as there is a recognition of the co-ownership, expressly or impliedly. [Art. 494, Civil
Code]

Although the action to demand partition of a co-owned land does not prescribe, a co-
owner may acquire ownership thereof by prescription where there exist a clear repudiation of
the co-ownership and the co-owners are apprised of the claim of adverse and exclusive
ownership. [Heirs of Restar v. Heirs of Cichon, 475 SCRA 731]

Exception

The exception to the non-prescription of the action to partition is where one of the
interested parties openly and adversely occupies the property without recognizing the co-
ownership, in which case, acquisitive prescription may set it. [Regalado, Remedial Law
Compendium, 2010]

3.19.12. Forcible entry and unlawful detainer

Definitions and distinction

In actions for forcible entry, three (3) requisites have to be met for the municipal trial
court to acquire jurisdiction. First, the plaintiffs must allege their prior physical possession of
the property. Second, they must also assert that they were deprived of possession either by
force, intimidation, threat, strategy, or stealth. Third, the action must be filed within one (1)
year from the time the owners or legal possessors learned of their deprivation of physical
possession of the land or building. [Nunez v. SLTEAS Phoenix Solutions, G.R. No. 180542, April
12, 2010]

Meaning of strategy

"Strategy" in this regard could only mean machination or artifice and considering that
the parties tangled for weeks to reach an agreement on the terms and conditions of a contract
of lease. Stealth, on the other hand, is defined as any secret, sly, or clandestine act to avoid
discovery and to gain entrance into or remain within residence of another without permission.
[Sumulong v. Court of Appeals, 232 SCRA 372]

Requisites

The essential requisites of unlawful detainer are: (1) the fact of lease by virtue of a
contract express or implied; (2) the expiration or termination of the possessors right to hold
possession; (3) withholding by the lessee of the possession of the land or building after
expiration or termination of the right to possession; (4) letter of demand upon lessee to pay the
rental or comply with the terms of the lease and vacate the premises; and (5) the action must
be filed within one (1) year from date of last demand received by the defendant. [De la Cruz v.
Court of Appeals, G.R. No. 139442, December 6, 2006]

Prior physical possession must be alleged and proved

In forcible entry, the plaintiff must allege in the complaint, and prove, that he was in
prior physical possession of the property in dispute until he was deprived thereof by the
defendant by any of the means provided in Section 1, Rule 70 of the Rules either by force,
intimidation, threat, strategy or stealth. In unlawful detainer, there must be an allegation in the
complaint of how the possession of defendant started or continued, that is, by virtue of lease or
any contract, and that defendant holds possession of the land or building after the expiration
or termination of the right to hold possession by virtue of any contract, express or implied.
[Sarmiento v. Manalite Home Owners Association, G.R. No. 182953, October 11, 2010]

Distinguished from accion publiciana, accion reivindicatoria and accion interdictal

There are three kinds of actions for the recovery of possession of real pro. property,
namely, (1) the summary action for forcible entry or detainer (denominated accion
interdictalunder the former law of procedure, Ley de Enjuiciamiento Civil) which seeks the
recovery of physical possession only and is brought within one year in the justice of the peace
court; (2) the accion publiciana which is for the recovery of the right to possess and is a plenary
action in an ordinary civil proceeding in a Court of First Instance; and (3) accion de
reivindicacion which seeks the recovery of ownership (which of course includes the jus utendi
and the jus fruendi also brought in the Court of First Instance. [Reyes v. Sta. Maria, G.R. No. L-
33213 June 29, 1979]

Two kinds of action to recover possession

Two (2) kinds of action to recover possession of real property which fall under the
jurisdiction of the RTC are: (1) the plenary action for the recovery of the real right of possession
(accion publiciana) when the dispossession has lasted for more than one year or when the
action was filed more than one (1) year from date of the last demand received by the lessee or
defendant; and (2) an action for the recovery of ownership (accion reivindicatoria) which
includes the recovery of possession.

Who may institute the action and when; against whom the action may be maintained

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. [Rule 70, Sec. 1]

Ejectment case cannot be restrained by injunction

An ejectment case is not abated by: Injunction, Accion Publicana, Writ of Possession
where ownership is the principal issue, Action for quieting of title of property, suits for specific
performance and action for reformation of instrument. The said actions do not involve physical
or de facto possession. [Wilmon Auto Supply v. Court of Appeals, 208 SCRA 108]

No obligation on plaintiff to pay compensation to defendant

There is nothing in existing laws and procedural rules that obliges a plaintiff in an unlawful
detainer or forcible entry case to pay compensation or financial assistance to defendants whose
occupation was either illegal from the beginning or had become such when they refused to
vacate the subject premises upon demand by the owner or person having better right to its
possession. On the contrary, our Rules of Court expressly recognizes the right of such plaintiff
to claim for damages arising from the unlawful deprivation of physical possession. (Antioquia
Development Corporation And Jamaica Realty & Marketing Corporation Vs. Benjamin P.
Rahacal, Eulalia Cant Alejo, Teresita Cant Alejo, Rudy Ramos, Domingo Aguilar, Domingo
Cantalejo, Vlrginia Cant Alejo, Dulce Aquino, Rogelioredondo, Virgilio Cant Alejo, Francisco
Lumbres And Rodolfo Dela Cerna, G.R. No. 148843 September 05, 2012)

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. [Rule
70, Sec. 4]

Action on the 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. [Rule 70, Sec. 5]

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. [Rule 70, Sec. 12]

When demand is necessary?

Unless otherwise stipulated, such action by the lesser shall be commenced only after
demand to pay or comply with the conditions of the lease and to vacate is made upon the
lessee, or by serving written notice of such demand upon the person found on the premises if
no person be found thereon, and the lessee fails to comply therewith after fifteen (15) days in
the case of land or five (5) days in the case of buildings. [Rule 70, Sec. 2]

It is apparent from this provision that a demand is a pre-requisite to an action for
unlawful detainer, when the action is "for failure to pay rent due or to comply with the
conditions of his lease," and where the action is to terminate the lease because of the
expiration of its term. [Co Tiamco v. Diaz, 75 Phil. 672]

Rule on oral demand

It has been ruled, however, that the demand upon a tenant may be oral. Sufficient
evidence must be adduced to show that there was indeed a demand like testimonies from
disinterested and unbiased witnesses. [Jakihaca vs. Aquino, 181 SCRA 67]

Nature of the proceedings

The proceeding is summary in nature, jurisdiction over which lies with the proper MTC
or metropolitan trial court. The action must be brought up within one year from the date of last
demand, and the issue in the case must be the right to physical possession. [Delos Reyes v.
Spouses Odenes, G.R. No. 178096, 23 March 2011]

Exceptions to the rule that demand is necessary:

The action for unlawful detainer was based on the expiration of the contract of lease, a
demand to vacate was not necessary for judicial action after the expiration of the terms of the
lease. There being no need for any demand or notice, there was likewise no necessity to wait
for five (5) days upon notice or demand before an action for unlawful detainer may be filed.
[Arquelada v. Philippine Veterans Bank, G.R. No. 139137, March 31, 2000]

Month to month lease;

When the parties to an oral lease do not fix a specified period. Since the rentals were
paid monthly, the lease, even if verbal, may be deemed to be on a monthly basis, expiring at the
end of every month. [Heirs of Suico v. Court of Appeals, G.R. No. 120615, January 21, 1997]

Demand not necessary in case action for unpaid rentals

Demand is also not necessary when the action is filed for a sum of money, consisting of
unpaid rents, liquidated damages, attorney's fees, and costs. Intruders, not tenants of the
owner, cannot use this remedy. [Guanson v. Ban, G.R. No. L-186, August 6, 1946]

Preliminary injunction and preliminary mandatory 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. [Rule 70, Sec. 15]

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. [Rule 70, Sec. 16]

Effect of judgment in ejectment-conclusive as to possession

The judgment rendered in an action for forcible entry or detainer shall be conclusive
with respect to the possession only and shall in no wise bind the title or affect the ownership of
the land or building. Such judgment shall not bar an action between the same parties respecting
title to the land or building. [Rule 70, Sec. 18]

Judgment on ownership merely provisional

An adjudication made therein regarding the issue of ownership should be regarded as
merely provisional and, therefore, would not bar or prejudice an action between the same
parties involving title to the land. The foregoing doctrine is a necessary consequence of the
nature of forcible entry and unlawful detainer cases where the only issue to be settled is the
physical or material possession over the real property, that is, possession de facto and not
possession de jure. [Hilario v. Court of Appeals, G.R. No. 121865, August 7, 1996]

Issue of ownership merely incidental

The assertion by the defendant of ownership over the disputed property does not serve
to divest the inferior court of its jurisdiction. The defendant cannot deprive the court of
jurisdiction by merely claiming ownership of the property involved. [Rural Bank of Sta. Ignacia v.
Dimatulac, G.R. No. 142015, April 29, 2003]


Ejectment; possession de facto; distinction between forcible entry and unlawful detainer
cases.

At the outset, it bears to reiterate the settled rule that the only question that the courts
resolve in ejectment proceedings is: who is entitled to the physical possession of the premises,
that is, to the possession de facto and not to the possession de jure. It does not even matter if a
partys title to the property is questionable. In an unlawful detainer case, the sole issue for
resolution is the physical or material possession of the property involved, independent of any
claim of ownership by any of the party litigants. Where the issue of ownership is raised by any
of the parties, the courts may pass upon the same in order to determine who has the right to
possess the property. The adjudication is, however, merely provisional and would not bar or
prejudice an action between the same parties involving title to the property. Juanita Ermitao,
represented by her Attorney-in-fact, Isabelo Ermitao v. Lailanie M. Paglas; G.R. No. 174436.
January 23, 2013

Nature of Judgment in Ejection case; requisites for stay.

Requirements for appeal

The ruling in Chua v. Court of Appeals (286 SCRA 437, 444-445 [1998]) is instructive on
the means of staying the immediate execution of a judgment in an ejectment case, to wit:

As a general rule, a judgment in favor of the plaintiff in an ejectment suit is immediately
executory, in order to prevent further damage to him arising from the loss of possession of the
property in question. To stay the immediate execution of the said judgment while the appeal is
pending the foregoing provision requires that the following requisites must concur: (1) the
defendant perfects his appeal; (2) he files a supersedeas bond; and (3) he periodically deposits
the rentals which become due during the pendency of the appeal. The failure of the defendant
to comply with any of these conditions is a ground for the outright execution of the judgment,
the duty of the court in this respect being ministerial and imperative. Hence, if the defendant-
appellant perfected the appeal but failed to file a supersedeas bond, the immediate execution
of the judgment would automatically follow. Conversely, the filing of a supersedeas bond will
not stay the execution of the judgment if the appeal is not perfected. Necessarily then,
the supersedeas bond should be filed within the period for the perfection of the appeal. In
short, a judgment in favor of the plaintiff in an ejectment suit is immediately executory, but the
defendant, to stay its immediate execution, must: (1) perfect an appeal; (2) file
a supersedeas bond; and (3) periodically deposit the rentals becoming due during the pendency
of the appeal. Herminia Acbang v. Hon. Jimmy Luczon, Jr., et al.,G.R. No. 164246, January 15,
2014.

How to stay the immediate execution of judgment

Defendant must take the following steps to stay the execution of the judgment:
1. Perfect an appeal;
2. File a supersedeas bond to pay for the rents, damages and costs accruing down to the
time of the judgment appealed from; and
3. Deposit periodically with the RTC, during the pendency of the appeal, the adjudged
amount of rent due under the contract or if there be no contract, the reasonable value of the
use and occupation of the premises. [Rule 70, Sec. 19]

Nature of judgment in ejectment

As a general rule, a judgment in an ejectment case is immediately executory, in order to
prevent further damage to him arising from the loss of possession. To stay the immediate
execution of the judgment while the appeal is pending, Sec. 19 of Rule 70 must be complied
with. [Chua v. Court of Appeals, 286 SCRA 437]

Summary procedure, prohibited pleadings

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 [Rule 70, Sec. 13]

3.19.13. Contempt

Contempt of court has been defined as a willful disregard or disobedience of a public
authority. In its broad sense, contempt is a disregard of, or disobedience to, the rules or orders
of a legislative or judicial body or an interruption of its proceedings by disorderly behavior or
insolent language in its presence or so near thereto as to disturb its proceedings or to impair
the respect due to such a body. In its restricted and more usual sense, contempt comprehends a
despising of the authority, justice, or dignity of a court. [Lorenzo Shipping v. Distribution
Association, 656 SCRA 331]

It signifies not only a willful disregard or disobedience of the courts orders but also
conduct tending to bring the authority of the court and the administration of law into disrepute
or, in some manner, to impede the due administration of justice. [Siy v. National Labor Relations
Commission, G.R. No. 158971, August 25, 2005]

Contempt of court is defined as a disobedience to the court by acting in opposition to its
authority, justice and dignity, and signifies not only a willful disregard of the courts order, but
such conduct which tends to bring the authority of the court and the administration of law into
disrepute or, in some manner, to impede the due administration of justice. To be considered
contemptuous, an act must be clearly contrary to or prohibited by the order of the court. Thus,
a person cannot be punished for contempt for disobedience of an order of the Court, unless the
act which is forbidden or required to be done is clearly and exactly defined, so that there can be
no reasonable doubt or uncertainty as to what specific act or thing is forbidden or required.
Rivulet Agro-Industrial Corporation v. Anthony Parungao, Narciso B. Nieto, in their capacity as
Undersecretaries of Legal Affairs and Field Operations of the Department of Agrarian Reform, et
al., G.R. No. 197507. January 14, 2013

Kinds of contempt

Contempt of court is of two kinds, namely: direct contempt, which is committed in the
presence of or so near the judge as to obstruct him in the administration of justice; and
constructive or indirect contempt, which consists of willful disobedience of the lawful process
or order of the court. [Narcida v. Bowen, 22 Phil. 365]
Purpose and nature of each

Function of contempt

Contempt proceedings has a dual function: (1) vindication of public interest by
punishment of contemptuous conduct; and (2) coercion to compel the contemnor to do what
the law requires him to uphold the power of the Court, and also to secure the rights of the
parties to a suit awarded by the Court. [Regalado v. Go, 514 SCRA 616]

Direct Contempt

Direct contempt, or contempt in facie curiae, is misbehavior committed in the presence
of or so near a court or judge so as to obstruct or interrupt the proceedings before the same,
including disrespect toward the court, and can be punished summarily without hearing. It is
conduct directed against or assailing the authority and dignity of the court or a judge, or in the
doing of a forbidden act. [Encinas v. National Bookstore, G.R. No. 162704, July 28, 2005]

When direct proper?

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
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. [Rule 71, Sec. 1]

Contemptous language in a pleading

Unfounded accusations or allegations or words in a pleading tending to embarrass the
court or to bring it into disrepute. If a pleading containing derogatory, offensive and malicious
statements is submitted in the same court or judge, it is direct contempt. [Re: Letter dated 21
Feb. 2005 of Atty. Noel Sorreda, A.M. No. 05-3-04-SC. July 22, 2005]

Furthermore, assuming that the conclusion of petitioner is justified by the facts, it is still
not a valid defense in cases of contempt. Where the matter is abusive or insulting, evidence
that the language used was justified by the facts is not admissible as a defense. Respect for the
judicial office should always be observed and enforced. [Cruz v. Gigoyon, 658 SCRA 254]

Indirect Contempt

Indirect contempt or constructive contempt is that which is committed out of the
presence of the court. [Subic Bay Metropolitan Authority v. Rodriguez, 619 SCRA 176]

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. [Rule 71, Sec. 3]

Remedy against direct contempt; penalty

1. The penalty for direct contempt depends upon the court which the act was committed.
2. If the act constituting direct contempt was committed against an RTC or a court of
equivalent or higher rank, the penalty is a fine not exceeding P2,000 or imprisonment
not exceeding 10 days, or both;
3. If the act constituting direct contempt was committed against a lower court, the penalty
is a fine not exceeding P200 or imprisonment not exceeding one day, or both; [Rule 71,
Sec. 1] and
4. If the contempt consists in the refusal or omission to do an act which is yet within the
power of the respondent to perform, he may be imprisoned by order of the court
concerned until he performs it.
5. A person adjudged in direct contempt may not appeal therefrom. His remedy is a
petition for certiorari or prohibition directed against the court which adjudged him in
direct contempt. [Rule 71, Sec. 2] Pending the resolution of the petition for certiorari or
prohibition, the execution of the judgment for direct contempt shall be suspended. The
suspension however shall take place only if the person adjudged in contempt files a
bond fixed by the court which rendered the judgment. This bond is conditioned upon his
performance of the judgment should the petition be decided against him.

Remedy against indirect contempt; penalty

1) The punishment for indirect contempt depends upon the level of the court against
which the act was committed;

2) Where the act was committed against an RTC or a court of equivalent or higher rank,
he may be punished by a fine not exceeding P30,000 or imprisonment not exceeding 6 months,
or both;

3) Where the act was committed against a lower court, he may be punished by a fine not
exceeding P5,000 or imprisonment not exceeding one month, or both. Aside from the
applicable penalties, if the contempt consists in the violation of a writ of injunction, TRO 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; [Rule 71,
Sec. 7] and

4) Where the act was committed against a person or entity exercising quasi-judicial
functions, the penalty imposed shall depend upon the provisions of the law which authorizes a
penalty for contempt against such persons or entities.

5) The person adjudged in indirect contempt may appeal from the judgment or final
order of the court in the same manner as in criminal cases. The appeal will not however have
the effect of suspending the judgment if the person adjudged in contempt does not file a bond
in an amount fixed by the court from which the appeal is taken. This bond is conditioned upon
his performance of the judgment or final order if the appeal is decided against. [Rule 71, Sec.
11]

How contempt proceedings are 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.
[Rule 71, Sec. 4]

Where to file?

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.
[Rule 71, Sec. 5]

When imprisonment shall be imposed

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. [Rule 71, Sec. 8]

Who can order the confinement?

It is only the judge, who orders the confinement of a person for contempt of court, who
can issue the order of release [Inoturan v. Limsiaco, Jr. 458 SCRA 48]

Contempt against quasi-judicial bodies

Unless otherwise provided by law, this Rule shall apply to contempt committed against
persons, entities, bodies or agencies exercising quasi-judicial functions, or shall have suppletory
effect to such rules as they may have adopted pursuant to authority granted to them by law to
punish for contempt. The Regional Trial Court of the place wherein the contempt has been
committed shall have jurisdiction over such charges as may be filed therefor. [Rule 71, Sec. 12]

Labor arbiter and NLRC has power of contempt

As is clear under the Labor Code, the labor arbiter or the Commission is empowered or
has jurisdiction to hold the offending party or parties in direct or indirect contempt. The
petitioners therefore, have not improperly filed the charge of indirect contempt in the NLRC.
[Robosa v. NLRC, G.R. No. 176085, February 8, 2012]

How commenced?

Indirect contempt pursuant to Rule 71 of quasi-judicial bodies can only be done by
initiating them in the proper RTC. It is not within their jurisdiction and competence to decide
the indirect contempt cases. [Land Bank of the Philippines v. Listana, 408 SCRA 328]