only be allowed only after a hearing is heard, and the applicant and

respondent are given the chance to explain. The reason why this is required
in the Rules is that a court cannot conceivably issue an order granting
support pendente lite unless the court is able to determine first that the
petitioner needs support, and even if the petitioner does need support, to
determine that the respondent is capable of grant such support. This is
because if the court simply grants an application for support pendente lite
without examining the financial ability of the respondent, that provisional
remedy will be useless. If the respondent cannot comply, as he had no
means to give support, he could be jailed. This is one action where the court
can imprison a respondent who does not comply with its order to give
support, although the respondent really may not have the ability to really
do so.
Remedies in case of violation against giving of support under
substantive law: (Dean Jara: This probably violates the equal protection
clause as they are relatively unfavorable to us men.)
1. Imprisonment for commission of a crime
2. Citation for contempt and imprisonment
3. Issuance of an order of execution against violator under Rule 39
In the Rules of Court on Support Pendente Lite, you will notice that the
principle in Section 20 Rule 57 is not followed at all. A remedy to recover
damages in wrongful issuance of provisional remedies should be in the
same case. There must be no separate action to recover damages. But if you
read the provisions for Support Pendente Lite, it is expressly provided that
there could be an independent action for recovery of money given as
support in compliance with an order of the court. There is no need for
respondent to file a claim for damages in the same action.
If you are asked why a Family Court can order spousal support without a
hearing, just state that there is no need for a Family Court to determine the
needs of the spouse or of the minor children, there is no need for the court
to determine the financial ability of the defendant. This is because in familyrelated cases, there is a need for an inventory of properties submitted to the
Family Court by the petitioner. Based on the inventory, the court can
conclude how much the spouse is entitled and how much the minors are
entitled to support.
Also, with respect to the Provisional Orders granted by a Family Court in
marriage-related cases, although the provisional orders are called by some
other name, these partake in the nature of an injunction.
TPO in a marriage-related case is actually a prohibitory injunction and a
mandatory injunction at the same time. This is because in the protection
order, the Family Court prohibits respondent from certain acts,, which is a
prohibitory injunction. Also, the Family Court can tell the respondent not to
enter the former conjugal dwelling and to remove his personal properties
from the house. Thus, it partakes of a mandatory injunction.
RECEIVERSHIP IN MARRIAGE-RELATED CASES
We also have receivership in marriage-related cases where the court may
appoint an administrator of the properties. He is effectively a receiver of
properties owned in common.
With respect to interim reliefs in Amparo, there is nothing mentioned in the
circular about filing of a bond.
With respect to Kalikasan circular, the applicant is not required to post a
bond. It is the adverse party who will have to post a bond in order to lift or
dissolve the writ of Kalikasan as security to protect the interest of the
applicant.
Read the Circulars on the Writs.
Center your attention on the procedures required in civil and criminal cases
given in the Writs:
Kalikasan cases
Commenced in RTC, MTC, CA, SC
Continuing mandamus is only cognizable only in SC and CA
Party complaining/answering must have attached documentary
and/or object evidence available
If the defendant does not file an answer, there is no need for a
motion do declare defendant in default, it being a prohibited
pleading.
If the defendant does not answer, it is the duty of the court to
declare the defendant in default, no motion need be had, and
the plaintiffs evidence can be received ex parte.
Compromise of the civil action is encouraged. The judgment is
not called a judgment based upon a compromise but is called a
Consent Decree.
Rules on Evidence are not necessarily followed. Quantum of
evidence in civil cases is mere preponderance of evidence.
However, there are several instances in Kalikasan cases that
mere substantial evidence is enough, which is also now followed
in Amparo cases. In Amparo cases, only substantial evidence is

required, which is the same quantum of evidence in quasijudicial proceedings. In Amparo cases, the rule on quantum of
evidence is exclusively determined by the SC. If substantial
evidence is required in Amparo cases, then that is the quantum
required. An administrative body cannot change the quantum of
evidence required.
Special Civil Actions
1. Interpleader (Rule 62)
2. Declaratory relief and similar remedies (Rule 63)
3. Review of judgments and final orders of the COMELEC and the
Commission on Audit (Rule 64)
4. Certiorari, prohibition and mandamus (Rule 65)
5. Quo warranto(Rule 66)
6. Expropriation (Rule 67)
7. Foreclosure of real estate mortgage(Rule 68)
8. Partition (Rule 69)
9. Forcible entry and unlawful detainer (Rule 70)
10. Contempt (Rule 71)
11. Petition for Writ of Kalikasan
12. Petition for Continuing Mandamus
Q: What special civil actions are initiated by complaints and initiated
by petitions?
A:
1. by complaint
a. interpleader
b. expropriation
c. foreclosure of real estate mortgage
d. partition
e. forcible entry and unlawful detainer
2. by petition
a. declaratory relief
b. review of judgments and final orders or resolutions of the
COMELEC / COA
c. Certiorari
d. Prohibition
e. Mandamus
f. Quo Warranto
g. Contempt
h. Petition for Writ of Kalikasan
i. Petition for Continuing Mandamus
To properly appreciate why a civil action is further classified into a special
civil action, all that we have to do is to check Rule 1. In Rule 1, a special civil
action is inherently a civil action. What makes it special is that the Rules
require additional procedure for each and every special civil action that is
not followed in ordinary civil proceedings. Unless there is a special rule
specifically devoted to a certain special civil action, we will still apply
ordinary rules of civil procedure.
RULE 62 INTERPLEADER
What is so special about interpleader?
In ordinary civil cases, an action is commenced by the filing of a complaint,
petition or something equivalent to a complaint.
In an interpleader, it can be commenced by the filing of an answer with a
counterclaim for interpleader.
Since we are following the rules in ordinary civil action, there is need of a
plaintiff and a defendant. In an interpleader, there is a plaintiff and there
can two or more defendants.
One of the features of interpleader which is not possessed by ordinary civil
actions is the absence of a cause of action. In ordinary civil actions, if there
is no cause of action, the complaint will be dismissed. In a complaint for
interpleader or a counterclaim for interpleader, the plaintiff does not aver a
cause of action. The plaintiff in interpleader cannot say that he has a cause
of action because it is an essential requirements in an action for
interpleader that the plaintiff does not allege a right at all; or if he alleges a
right, nobody has violated the right, the defendants agree he has a right or
does not contest the right.
Since we are going to follow the rules of ordinary civil actions unless
otherwise provided in the Rules, does it mean to say that we should
submit a controversy of interpleader involving at least two or more
defendants, should there be prior barangay conciliation before we go
to court?
Yes. Generally, that is a rule that is applicable to all civil actions, and thus
will include special civil actions, so long as the parties are natural persons
residing in the same city or municipality.
Since we are going to follow the rules of ordinary civil actions unless
otherwise provided in the Rules, does it mean to say that we should
wait for the court to issue summons?
Yes. That is the means by which the court will acquire jurisdiction over the
defendant.

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In interpleader, a summoned defendant who failed to file an answer shall be

declared in default.
In Rule 9, when there is a complaint against several defendants, and one or
two of these defendants failed to file an answer while the others filed an
answer, Rule 9 says that the non-answering defendant will be declared in
default, but the non-answering defendant will be tried based on the answer
filed by the other answering defendants. Hence, if the answering defendant
wins, the defaulting defendant automatically wins. This is because both
answering and non-answering defendants are sued under a common cause
of action.
We do not apply Rule 9 to an interpleader. In interpleader, when one
defendant files an answer and the other did not file an answer and was
declared in default, the defaulting defendant automatically loses the case.
This is because the Rules provide, that in addition to being declared in
default, the non-answering defendant will lose his claim. Although in reality
the defaulting defendant has a claim, his being declared in default will make
him lose his right to the claim. Thus, if there are only two defendants and
one of them was declared in default, since the defaulting defendant has
already lost the case, the remaining defendant will have a great chance of
being declared as the one with the right to the subject of the interpleader.
This is because the plaintiff in the interpleader does not have any right or
interest to the claim of either defendants. The remaining defendant will be
declared as the one with the right to the claim that is the subject of the
interpleader.
Q: What are the three special civil actions which are within the
jurisdiction of MTCs?
A:
1. Interpleader, provided that the amount is within the jurisdiction of such
MTC
2. Ejectment suits
3. Contempt
Q: What is an interpleader?
A: It is a special civil action filed by a person against whom two conflicting
claims are made upon the same subject matter and over which he claims no
interest, to compel the claimants to interplead and to litigate their
conflicting claims among themselves. (Sec. 1, Rule 62).
Q: What are the requisites in order that the remedy of interpleader
may be availed of?
A:
1. Plaintiff claims no interest in the subject matter or his claim is not
disputed
2. Two or more claimants asserting conflicting claims
3. The subject matter must be one and the same
4. Person in possession or obliged files a complaint.
5. The parties to be interpleaded must make effective claims.
6. Payment of docket and other lawful fees.
Note: Upon filing of complaint, the court shall issue an order requiring
conflicting claimants to interplead. (Sec. 2, Rule 62)
Rule 63 Enumerates 4 special civil actions
~Declaratory Relief
and other similar remedies:
~Reformation of instrument
~Quieting of title
~Consolidation of title
Although in the same Rule, they are governed by different procedures.
DECLARATORY RELIEF RULE 63
The obvious nature of declaratory relief, which makes it a special civil
action, is that the petition must be filed before a breach or violation of a
right. (If we would follow ordinary rules of procedure, the complaint would
have been dismissed outright because of lack of a cause of action.) There is
no allegation that there is a right violated by another. If there is such an
allegation, then the action ceases to be a special civil action for declaratory
relief, it becomes an ordinary action.
Declarative relief is a preventive mechanism to prevent parties from getting
involved in an ordinary civil case. In Declarative relief , the petitioner does
not allege he has a right, or if he has, it has not been violated, and therefore,
there is really no cause of action. The petitioner seeks from the court a
determination of what his rights are. Petitioner is not absolutely certain if
he has rights under a certain instrument, so he asks the court to declare
what his rights are. The actual remedy is that the court declares what his
rights are.
If the remedy is the declaration of the rights of the petitioner, then a
prayer for damages in declaratory relief negates the nature of such
special civil action. Damages connote the fact that a breach or violation of
a right has occurred.

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There is an enumeration under Rule 63 (Section 1) as to the instruments

which could be subjects of a petition for declaratory relief; deed, will,
contract or other written instrument, whose rights are affected by a statute,
executive order or regulation, ordinance, or any other governmental
regulation.
With respect to statute or ordinance, the same principle applies, we cannot
apply for a petition for declaratory relief if there is already a violation. If
there is a violation already, the petition will not be proper. Declaratory
relief must be had before such ordinance or statute has become effective.
This is one of the reasons of the 30 day period (date of effectivity; after
publication) before a law that has been enacted by Congress has effect. The
said time before such statute or ordinance takes effect is the time for it to be
subject to petition for declaratory relief, determining whether that statute
or ordinance is constitutional or unconstitutional.
You will meet decisions of the SC concerning declaratory relief to the effect
that you cannot file a motion for execution in order to carry out the
declaratory judgment (the judgment in a case for declaratory relief), in
order to differentiate it from what the court usually renders after a
judgment has been entered in order to clarify the judgment. The latter is
what we a clarificatory judgment. In a clarificatory judgment, that is where
a judgment that has become final and executory but has certain ambiguities
with that judgment. The remedy of the interested party is to file a motion
for the rendition of a clarificatory judgment. This clarificatory judgment is
different from a declaratory judgment. In declaratory judgment the court
will only tell the petitioner what his rights and duties are under a certain
will or contract. But in the case of a statute or ordinance, the court will tell
the petitioner whether or not the statute or ordinance is unconstitutional or
not. So after the court has done its duty, there is no more need for the
prevailing party to return to the court in order to move for the execution.
We do not apply Rule 39 to a petition for declaratory relief.
So, that is the nature of a declaratory relief that makes it a special civil
action. There is really no cause of action as contemplated in ordinary civil
actions where there is a right violated by the defendant.
Distinguish declaratory judgment from ordinary judgment.
A:
DECLARATORY JUDGMENT
ORDINARY JUDGMENT
Declaratory judgment stands by Ordinary
judgment
involves
itself and no executory process executor or coercive relief
follows
Intended to determine any question Intended to remedy or compensate
of construction or validity prior to injuries already suffered
breach or violation
What are the requisites of an action for declaratory relief?
A:
1. Filing of Petition before there is a breach or violation
2. Subject matter is a deed, will, contract, written instrument, statute,
executive order, regulation or ordinance
Note: The enumeration of the subject matter is exclusive, hence,
an action not based on any of the enumerated subject matters
cannot be the proper subject of declaratory relief. (Riano, Civil
Procedure: A Restatement for the Bar, p. 613, 2009 ed.)
3. There is justiciable controversy
4. Issue is ripe for judicial determination (Republic v. Orbecido III, G.R. No.
154380, October 5, 2005), i.e. litigation is imminent and inevitable
(Tolentino v. Board of Accountancy, G.R. No. L-3062, September 28, 1951)
5. Adequate relief is not available through other means or other forms of
action or proceedings (Ollada v. Central Bank, G.R. No. L-11357, May 31,
1962)
6. The controversy is between persons whose interests are adverse.
Q: When may an action for declaratory relief be converted into an
ordinary action?
A: After filing of petition for declaratory relief but before the final
termination of the case or rendition of judgment, a breach or violation of an
instrument, statute, executive order, regulation or ordinance takes place.
(Sec. 6, Rule 63)
Q: Distinguish Ordinary Civil Action from Special Civil Action for
Declaratory Relief.
A:
1. Ordinary civil action plaintiff alleges that his right has been violated by
the defendant; judgment rendered is coercive in character; a writ of
execution may be executed against the defeated party.
2. Special civil action of declaratory relief an impending violation is
sufficient to file a declaratory relief; no execution may be issued; the court
merely makes a declaration.
The second procedural rule that we apply to declaratory relief which is not
followed in other special civil actions or in other ordinary civil actions is the

authority of the court not to entertain a petition for declaratory relief. The
court can refuse to make a declaration of the rights of petitioner and
respondents on a deed or a contract on the ground that the judgment will
not bind the parties not impleaded in the petition for declaratory relief. This
shows that declaratory relief is not in rem. It is purely a petition in
personam. It cannot bind other parties who had not been impleaded,
although these parties not so impleaded may be parties to the contract or
matter under litigation.
When may a court refuse to make a judicial declaration?
A: Court may motu propio or upon motion refuse based on the following
grounds:
1. A decision will not terminate the uncertainty or controversy which gave
rise to the action
2. Declaration or construction is not necessary and proper under the
circumstances
Note: Discretion to refuse does not extend to actions for reformation of an
instrument quiet title or remove clouds or to consolidated ownership in a
pacto de retro sale. (Regalado, Remedial Law Compendium, Vol. I, p. 769,
2005 ed.)
Q: Can the court exercise discretion in application for declaratory
relief?
A:
1. In declaratory relief, the court is given the discretion to act or not to act
on the petition. It may therefore choose not to construe the instrument
sought to be construed or could refrain from declaring the rights of the
petitioner under the deed or the law. A refusal of the court to declare rights
or construe an instrument is actually the functional equivalent of the
dismissal of the petition.
2. On the other hand, the court does not have the discretion to refuse to act
with respect to actions described as similar remedies. Thus, in an action for
reformation of an instrument, to quiet or to consolidate ownership, the
court cannot refuse to render a judgment (Sec. 5, Rule 63).
Q: Is a third-party complaint proper in an action for declaratory relief?
A: No. Because in a third-party complaint, such person seeks to obtain
contribution, indemnity, subrogation or other reliefs and a declaratory
relief is confined merely to the interpretation of the terms of a contract.
(Commission of Customs v. Cloribel, G.R. No. 21036, June 30, 1977).
Q: What are the instances wherein a declaratory relief is unavailable?
A:
1. To obtain judicial declaration of citizenship;
2. To establish illegitimate filiation and determine hereditary rights;
3. The subject of the action is a court decision;
4. Actions to resolve political questions;
5. Those determinative of the issues rather than a construction of definite
status, rights and relations;
6. Terms of assailed ordinances are not ambiguous or of doubtful meaning;
7. In a petition to seek relief from a moot and academic question;
8. Where the contract or statute on which action is based has been
breached;
9. When the petition is based on the happening of a contingent event;
10. When the petitioner is not the real party in interest; and
11. Where the administrative remedies have not yet been exhausted.
What is the competent court in a petition for declaratory relief?
Petition for declaratory relief is an action incapable of pecuniary
estimation; hence RTC is the proper venue. However, as to who is the
competent court in other similar remedies, take into account the
provisions under BP 129:
~Reformation of instrument is cognizable solely by RTC as it is incapable of
pecuniary estimation.
~Quieting of Title is not necessarily under the RTC. Actions involving title
to property will depend on the value of the property. Under BP 129, actions
involving title to or possession of the property may be cognizable by an RTC
or MTC depending upon the assessed value of the property involved.
~Consolidation of title involves real property, hence, assessed value must
be alleged to vest jurisdiction.
Q: What is an action for quieting title to real property?
A: This action is brought to remove a cloud on title to real property or any
interest therein. The action contemplates a situation where the instrument
or a record is apparently valid or effective but is in truth and in fact invalid,
ineffective, voidable or unenforceable, and may be prejudicial to said title to
real property. This action is then brought to remove a cloud on title to real
property or any interest therein. It may also be brought as a preventive
remedy to prevent a cloud from being cast upon title to real property or any
interest therein (Art. 476, Civil Code).
Q: Is it required that the plaintiff be in the possession of the property
before an action is brought?

A: The plaintiff need not be in possession of the real property before he may
bring the action as long as he can show that he has a legal or an equitable
title to the property which is the subject matter of the action (Art. 477, Civil
Code).
Why do we need to file a special civil action for consolidation of title?
In execution of judgment under Rule 39, if a real property is sold at public
auction by virtue of a levy on execution, the highest bidder will not
automatically get a title in his own name, merely a certificate of sale from
the sheriff, which bidder must register such encumbrance in the RoD for
annotation to the title of the property. He must wait one year. If there is no
redemption after one year from registration in the RoD, the sheriff will
issue a final deed of sale to the highest bidder and the highest bidder will
have the final deed of sale recorded in the RoD. The RoD will determine
whether the 1-year period has been met, and if there is no redemption, the
highest bidder will naturally be interested in securing the title to the
property in his name. The old title (still in the name of the judgment debtor)
will be cancelled, and a new title will be issued in the name of the highest
bidder. The highest bidder does not have to file an action for consolidation
of title. The highest bidder will only secure from the sheriff the final deed of
sale. The RoD will simply cancel the old title and issue a new title in the
name of the highest bidder. So, in Rule 39, there is no such thing as
consolidation of title as a special civil action.
This is also the procedure that is followed when a mortgage is foreclosed.
Once the mortgage is foreclosed, the property is sold under auction to the
highest bidder. The sheriff will issue a certificate of sale to be registered in
the RoD, and then wait for the 1-year redemption period to expire. If there
is no redemption, the sheriff will again issue a final deed of sale. And on the
basis of that final deed of sale, the RoD will cancel the title of the judgment
mortgagor and issue a new title in the name of the highest bidder.
So you will notice that under Rule 39 and even in the Mortgage Law, in
order to consolidate title, we do not require a special civil action to
consolidate title to be filed in court. The only public officer who is going to
deal with the interested party is the RoD, who has the ministerial duty to
issue a title if the papers are in order, in this case a final deed of sale.
Why do we require an action to consolidate under Article 1607 of the
NCC?
NCC Art. 1607. 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.
NCC Art. 1616. The vendor cannot avail himself of the right of
repurchase without returning to the vendee the price of the sale,
and in addition:
(1) The expenses of the contract, and any other legitimate
payments made by reason of the sale;
(2) The necessary and useful expenses made on the thing sold.
This is to obtain an order from the court for the RoD to consolidate the title
of a property subject to sale with right to redeem, although the factual
antecedents are the same. In the NCC Art. 1607, if there is a right to
redemption, it is called conventional redemption, not a legal redemption as
that in Rule 39 and in foreclosure of mortgage. It is that classification of
redemption to conventional that makes the difference.
A conventional redemption has also a period for 1 year. When the 1-year
period expires, the buyer of the property cannot deal directly with the RoD.
The reason why there is a need to go to court in conventional redemption is
that there is a provision in the NCC requiring it. It is explicitly stated in
the NCC that sale with the right to redeem is not a sale but an equitable
mortgage. So, insofar as the courts are concerned, if the contract entered
by the parties is a sale with right to redeem by way of conventional
redemption, the NCC assumes (a disputable presumption) that the real
agreement between the parties is not really a sale but an equitable
mortgage. Insofar as the NCC is concerned, the seller is not a genuine seller,
only a mortgagor, and the buyer is the mortgagee of the property,
notwithstanding the clear tone of the deed of sale with right of redemption.
Even the RoD will have to observe the disputable presumption given by the
NCC that the deed of sale with right of redemption is one of an equitable
mortgage. So if we go to the RoD for consolidation of title, the RoD will
simply tell the buyer of the property that the contract is one of equitable
mortgage, not of sale, so there is a need to get a decision from the court
declaring that contract is really a genuine contract of sale with right of
redemption. That is the only purpose of this special civil action of
consolidating of title under Art. 1607 NCC, to give to the buyer in sale with
right of redemption a chance to present evidence to defeat that disputable
presumption contained in the NCC. If he is able to convince the court that
the sale is a genuine sale, the court will issue an order directing the RoD to
cancel the title of the seller and issue a new title in the name of the buyer.
But if the petitioner/buyer fails to defeat the disputable presumption that
the contract is one of equitable mortgage, he can still obtain a title, but he

Page 63 of 103

must file another special civil action. This time, the buyer must file an action
for judicial foreclosure of mortgage. Even if he is not able to obtain a
decision under Rule 63 in order to consolidate title under Article 1607 NCC,
that is not the end insofar as the buyer is concerned since he is an equitable
mortgagee, so he still has the right to foreclose the property. The only
means where he can foreclose the property is by availing of another special
civil action, which is called foreclosure of real estate mortgage under Rule
68. But the procedure for judicial foreclosure of mortgage is quite lengthy,
requiring 3 final orders of the foreclosure court, a sale via public auction for
the property, and even if we assume that the mortgagee will become the
highest bidder, he will get the title in his own name only after the
confirmation by the foreclosure court of the sale in his favor is duly entered.
As we will see later, judicial foreclosure of mortgage, as a complement to a
special civil action for consolidation of title, is a 3-stage special civil action.
Meaning to say, that the foreclosure court is expected to make three
decisions/orders before the mortgagee can obtain a title in his name.
Q: What is the purpose of an action brought to consolidate ownership?
A: The action brought to consolidate ownership is not for the purpose of
consolidating the ownership of the property in the person of the vendee or
buyer but for the registration of the property. The lapse of the
redemption period without the seller a retro exercising his right of
redemption consolidates ownership or title upon the person of the vendee
by operation of law. Art. 1607 requires the filing of the petition to
consolidate ownership because the law precludes the registration of the
consolidated title without judicial order (Cruz vs. Leis, 327 SCRA 570).
Note: The concept of consolidation of ownership under Art. 1607, Civil
Code, has its origin in the substantive provisions of the law on sales. Under
the law, a contract of sale may be extinguished either by legal redemption
(Art. 1619) or conventional redemption (Art. 1601). Legal redemption
(retracto legal) is a statutory mandated redemption of a property
previously sold. For instance, a co-owner of a property may exercise the
right of redemption in case the shares of all the other co-owners or any of
them are sold to a third person (Art. 1620). The owners of adjoining lands
shall have the right of redemption when a piece of rural land with a size of
one hectare or less is alienated (Art. 1621). Conventional redemption
(pacto de retro) sale is one that is not mandated by the statute but one
which takes place because of the stipulation of the parties to the sale. The
period of redemption may be fixed by the parties in which case the period
cannot exceed ten (10) years from the date of the contract. In the absence of
any agreement, the redemption period shall be four (4) years from the date
of the contract (Art. 1606). When the redemption is not made within the
period agreed upon, in case the subject matter of the sale is a real property,
Art. 1607 provides that the consolidation of ownership in the vendee shall
not be recorded in the Registry of Property without a judicial order, after
the vendor has been duly heard.
If we compare this procedure governing the other similar remedies in Rule
63, you will notice right away that while the court can outrightly refuse to
entertain a petition for declaratory relief, the court cannot outrightly refuse
a petition for consolidation of title, reformation of instrument or quieting of
title. This is expressly provided in Rule 63. So, if the complaint is for the
consolidation of title, the court will have to follow the procedure outlined in
ordinary civil cases, which is not followed in declaratory relief. In
declaratory relief, if the court notices that not all contracting parties are
impleaded in the case, it can refuse to entertain the petition as the judgment
will not resolve the lawsuits which may be filed as a result of this mistake.
If the court decides to entertain a petition for declaratory relief, and during
the pendency of the petition, the law took effect or there is a violation
committed as to the terms of the contract, the court shall order the
conversion of declaratory relief into an ordinary civil action. Petitioner will
have to amend his complaint, as he will now allege that he has a right and
that right has been violated. The declaratory relief will cease to be a special
civil action. An ordinary civil action takes its place, which is not possible in
the actions covered by other similar remedies. The court does not enjoy
discretion to outrightly dismiss a petition for consolidation of title,
reformation of instrument or quieting of title.
It is settled when a person doubts his citizenship, he cannot file a petition
for declaratory relief. He can decide for himself right away. He needs not go
to court. He can register as a voter, which then shall be tantamount to his
recognition as a Filipino. Or, he may opt to go through naturalization. If he
files a petition for declaratory relief as to his citizenship, the court will
dismiss outrightly the petition. This is because declaratory relief is
interested only in declaration of rights and duties under a deed, will,
contract or any other instrument. There is no deed, contract or other
instrument which will be involved in determining whether a person is a
Filipino or not. If he is not a Filipino citizen, then he may need to go through
naturalization or administrative way of acquiring citizenship, not through a
petition for declaratory relief to be filed before the RTC.
RULE 64 VS. 65 AND SPECIAL CIVIL ACTIONS IN WRIT OF KALIKASAN

Page 64 of 103

Rule 64 is always related to Rule 65. Although Rule 64 is a mode of review,

and the period to file for Rule 64 is different from that in Rule 65, Rule 64
itself provides that in availing of the mode of review provided in Rule 64,
the petitioner should adopt the pleading in Rule 65, a special civil action for
certiorari, prohibition and mandamus. We have a review process from the
COMELEC and COA, it is not strictly a special civil action that will be filed, it
is still a mode of review, but using the pleadings outlined in Rule 65.
Rule 64 speaks of a mode of appeal from a judgment or final order of
COMELEC and CoA. Although a mode of review, Rule 64 provides that
petitioner should adopt the pleading in Rule 65. Rule 65 is about a
special civil action for certiorari, prohibition and mandamus.
Q: What is the mode of review for judgments and final orders of the
COMELEC and COA?
A: The petition may be brought by the aggrieved party to the Supreme
Court on Certiorari under Rule 65, except otherwise provided.
Note: Rule 65 applies to the mode of review under Rule 64.Said mode of
review is based on Article IX-A of the 1987 Constitution providing that the
proper mode of review is certiorari under Rule 65 to be filed before the
Supreme Court. Under R.A. 7902 the Court of Appeals has jurisdiction over
all adjudications of the Civil Service Commission.
Note: The order to comment under Sec. 6, Rule 64 in case the Supreme
Court finds the petition sufficient in form and substance is equivalent to
summons in ordinary civil action.
Q: What is the period for filing certiorari as referred to in Rule 64?
A: The petition for certiorari referred to in Rule 64 shall be filed within 30
days from notice of the judgment, final order or resolution of the
COMELEC and the COA sought to be reviewed (Sec. 3, Rule 64).
Note: While Rule 64 makes reference to the certiorari under Rule 65, the
period for the filing of the petition for certiorari assailing the
judgment of the COMELEC and COA is shorter than that provided
under Rule 65
Petitioner should not move for an extension for a petition under Rule
65. It is inextensible.
Cite some distinctions between certiorari in Rule 45, 64 and 65.
Rule 45 is appeal by certiorari
Rule 64 is appeal to SC with reference to Rule 65 pertaining to final orders,
resolutions or decisions rendered by CoA or COMELEC acting as quasijudicial bodies.
Rule 65 is a special civil action of certiorari, prohibition and mandamus.
Rule 65 competent court is RTC, CA or SC
Under COMELEC CODE, COMELEC has certiorari jurisdiction under Rule 65.
Sandiganbayan has certiorari jurisdiction under Rule 65.
Q: Distinguish Rule 64 from Rule 65.
A:
Rule 64
Directed only to the judgments,
final orders or resolutions of the
COMELEC and COA;
Must be filed within 30 days from
notice of judgment or resolution
If MR is denied, the aggrieved party
may file the petition within the
remaining period, but which shall
not be less than 5 days.

Rule 65
Directed to any tribunal, board or
officers exercising judicial or quasijudicial functions;
Must be filed within 60 days from
notice of judgment or resolution
If MR is denied, the aggrieved party
will have another 60 days within
which to file the petition counted
from the notice of denial.

Distinguish certiorari under Rule 65 and certiorari under Rule 45.

A:
Rule 65
Rule 45
Findings of fact of Court of Appeals GR: Findings of fact of CA are
are not conclusive or binding upon conclusive
SC
Involves question of jurisdiction
Involves question of law
Mode of appeal
Mode of review
Directed against an interlocutory Involves the review of the judgment
order of a court or where there is final orders or resolutions of the CA,
no appeal or any other plain, speedy Sandiganbayan, CTA, RTC or other
or adequate remedy
courts
Filed not later than 60 days from Filed within 15 days from notice of
notice of judgment, order or judgment, final order or resolution
resolution appealed from
appealed from
Unless a writ of preliminary Stays the judgment or order
injunction or temporary restraining appealed from
order is issued, it does not stay the
challenged proceeding

The judge, court, quasi-judicial

agency,
tribunal,
corporation,
board, officer or person shall be
public respondents who are
impleaded in the action
Motion for reconsideration or for
new trial is required.
If a motion for reconsideration or
new trial is filed, another 60 days
shall be given to the petitioner (A.M.
No. 02-03-SC)
Court exercises original jurisdiction
Filed
with
the
RTC,
Sandiganbayan or COMELEC

CA,

The appellant and the appellee are

the original parties to the action,
and the lower court or quasijudicial agency is not impleaded
Motion for reconsideration is not
required

The court is in the exercise of its

appellate jurisdiction and power of
review.
Filed with the SC

Note: The remedies of appeal and certiorari are mutually exclusive and not
alternative or successive. The antithetic character of appeal and certiorari
has been generally recognized and observed save only on those rare
instances when appeal is satisfactorily shown to be an inadequate remedy.
Thus, a petitioner must show valid reasons why the issues raised in his
petition for certiorari could not have been raised on appeal (Banco Filipino
Savings and Mortgage Bank vs. CA, 334 SCRA 305).
Certiorari as a Mode of Appeal
(Rule 45)
Called petition for review on
certiorari, is a mode of appeal,
which is but a continuation of the
appellate process over the original
case;
Seeks to review final judgments or
final orders;

Certiorari as a Special Civil Action

(Rule 65)
A special civil action that is an
original action and not a mode of
appeal, and not a part of the
appellate
process
but
an
independent action.
May be directed against an
interlocutory order of the court or
where not appeal or plain or speedy
remedy available in the ordinary
course of law

DISTINCTIONS BETWEEN CERTIORARI UNDER RULES 45, 64, AND 65

Rule 65
Rule 64 for COMELEC Review of judgment,
Certiorari,
and COA
final
orders
or
Prohibition
and
resolutions of other
Mandamus
tribunals,
persons
and officer (Rule 45)
Special civil action for Appeal to the SC using Petition for Review or
certiorari, prohibition Rule 65 from the Appeal by Certiorari;
and mandamus;
COMELEC En Banc
Called petition for
A special civil action
review on certiorari, is
that is an original
a mode of appeal,
action and not a mode
which
is
but
a
of appeal, and not a
continuation of the
part of the appellate
appellate process over
process
but
an
the original case;
independent action.
May
be
directed Directed only to the Review of judgment,
against
an judgments,
final final
orders
or
interlocutory order of orders or resolutions resolutions of the CA,
the court or where not of the COMELEC and Sandiganbayan, CTA,
appeal or plain or COA;
RTC or other courts
speedy
remedy
available
in
the Rules of the COMELEC
ordinary course of law
states
that
only
decisions of the En
Banc
shall
be
appealable in the SC)
and CoA acting as
quasi-judicial bodies
(final
orders
or
judgments
Under BP 129: RTC, CA SC
CA, SC
or SC has concurrent
and
original
jurisdiction;
under special laws:
COMELEC
and
Sandiganbayan
has
special
certiorari
jurisdiction
BP 129: Original and Appellate
Appellate
Concurrent
Jurisdiction (RTC, CA
and SC)
The petitioner has a Failure of petitioner to SC may deny the
choice to file in the comply
with
the decision motu propio

RTC, and if an adverse

decision is given, he
can elevate it to the
CA, and then the SC. If
directly filed in the SC,
SC has the discretion
whether
to
outrightly
dismiss
the
petition
or
remand it to the CA
because
of
insufficiency in form
and/or substance in
accordance with the
principle of hierarchy
of courts.
Raises questions of
jurisdiction because a
tribunal, board or
officer
exercising
judicial
or
quasijudicial functions has
acted
without
jurisdiction
or
in
excess of jurisdiction
or with grave abuse of
discretion amounting
to lack of jurisdiction;
Filed not later than 60
days from notice of
judgment, order or
resolution
appealed
from
Extension no longer
allowed; (Motion for
extension of period to
file is not allowed)
Motion
for
reconsideration or for
new trial is required.
If a motion for
reconsideration
or
new trial is filed,
another 60 days shall
be given to the
petitioner
(Fresh
Period Rule/Neypes
Doctrine) (A.M. No. 0203-SC)
Unless a writ of
preliminary injunction
or
temporary
restraining order is
issued, it does not stay
the
challenged
proceeding
The
judge,
court,
quasi-judicial agency,
tribunal, corporation,
board,
officer
or
person shall be public
respondents who are
impleaded
in
the
action
Court
exercises
original jurisdiction

formal requirements
under Sec. 5 Rule 64
will cause the petition
to be dismissed.

on the ground that the

appeal is without
merit, or is prosecuted
manifestly for delay,
or that the questions
raised therein are too
unsubstantial
to
require consideration.

Petition is based on
questions of law

Petition is based on
questions of law

Filed within 30 days

from
notice
of
judgment, final order
or resolution sought to
be reviewed
No extension of period
mentioned in Rule 64

Filed within 15 days

from
notice
of
judgment, final order
or resolution appealed
from
Extension of 30 days
may be granted for
justifiable reasons

The filing of Motion for

reconsideration or for
new trial, if allowed
under the procedural
rules
of
the
Commission,
shall
interrupt period fixed

Motion
for
reconsideration is not
required

Does not stay the

execution unless SC
shall direct otherwise
upon such terms as it
may deem just

Stays the judgment or

order appealed from

The COMELEC and

COA shall be public
respondents who are
impleaded
in
the
action

The appellant and the

appellee
are
the
original parties to the
action, and the lower
court or quasi-judicial
agency
is
not
impleaded

The court is in the

exercise
of
its
appellate jurisdiction
and power of review

The court is in the

exercise
of
its
appellate jurisdiction
and power of review

SC, CA and RTC have original jurisdiction over petitions under Rule 65.
Thus, there is concurrence of jurisdiction among these three courts.
Theoretically, petitioner has a choice as to where to file. The law does not
compel him to file a petition first in the RTC, then the CA, and finally in the
SC. There is no such provision in BP 129 and the Constitution.
However, SC had sought to prevent being swamped by petitions under Rule
65. To remedy the abuse by petitioners, SC devised the principle of
hierarchy of courts under Section 4 of Rule 65. This will limit the choice that
theoretically a petitioner has. Effectively, petitioners are prohibited from
going directly to the SC under Rule 65. Petitioner must file first in the RTC
or in the CA. If a petition was filed directly in SC, it will outrightly dismiss a
petition if such petition is insufficient in form or substance. Even if the
petition is well-crafted, a single omission, such as the PTR number, shall
dismiss it for being insufficient in form.
Q: What are the grounds for the outright dismissal of the petition?

Page 65 of 103

A: (Sec. 6, Rule 64)

1. Petition is not sufficient in form and substance (Sec. 5, Rule 64)
2. Petition was filed for purpose of delay
3. Issue is unsubstantial
Q: What are the grounds for the filing of a petition for certiorari?
A: That a tribunal, board or officer exercising judicial or quasi-judicial
functions acted:
1. Without or in excess of jurisdiction
2. In grave abuse of discretion amounting to lack or excess of jurisdiction
Note: It is commenced by the filing of a verified petition accompanied by
certified true copy of the judgment, order or resolution subject thereof,
copies of all pleadings and documents relevant and pertinent thereto and a
sworn certification of non-forum shopping. (Sec. 1, Rule 65).
Q: When is certiorari under Rule 65 unavailable?
A:
1. Summary procedure
2. Writ of Amparo
3. Writ of Habeas Data
4. Small claims cases (Riano, Civil Procedure: A Restatement for the Bar, p.
629, 2009 ed.)
Q: When is prohibition issued?
A:
GR: Prohibition does not ordinarily lie to restrain an act which is already
fait accompli.
XPN: It will lie to prevent the creation of a new province by those in the
corridors of power who could avoid judicial intervention and review by
merely speedily and stealthily completing the commission of such illegality.
(Tan v. COMELEC, G.R. No. 73155, July 11, 1986)
Note: Prohibition and not mandamus, is the remedy where a motion to
dismiss is wrongfully denied (Enriquez v. Macadaeg, G.R. No. L-2422, Sept.
30, 1949)
Is it fatal for a petitioner to file a petition for certiorari, although the
true remedy is a petition for prohibition?
For instance, where a motion to dismiss is filed by the defendant on the
ground of absence of jurisdiction over the subject matter of the case. Said
motion was denied. The defendant could appeal to the higher court via a
petition under Rule 65.
We do not follow Rule 16 which tells the defendant that when his motion to
dismiss is denied, he has to file an answer within the remaining period. The
SC has recognized the propriety of filing a petition for certiorari, prohibition
or mandamus if a motion to dismiss founded on lack of jurisdiction over the
subject matter has been denied.
The petitioner files a petition for certiorari in the CA or SC. The true
remedy, according to the SC, is a petition for prohibition, not a certiorari.
From the facts stated above, a prohibition is the correct remedy. As the
petitioner/defendant had filed a petition for certiorari, can CA/SC
outrightly deny the petition because it is the wrong remedy? SC said no. The
petition for certiorari should instead be treated as a petition for prohibition.
So it seems under this attitude of liberal interpretation of statutes, it is not
fatal for a petitioner to choose the remedy provided under Rule 65.
Remember that certiorari is different from prohibition and mandamus,
although they are all contained in one Rule. The SC will simply treat the
petition for certiorari as a petition for prohibition. If you will analyze the
requisites of a petition for certiorari and prohibition, they are practically
the same. There is not much difference between the concept given in
Section 1 Rule 65 (Certiorari) and Section 2 Rule 65 (Prohibition). The only
differences is that in certiorari, the petitioner asks that the judgment or
interlocutory order be annulled or set aside; in prohibition, the petitioner
simply asks the prohibition court to prevent the respondent court from
going ahead with the proceedings, and in prohibiting the respondent court,
the prohibition court will be effectively telling the respondent court that the
denial, the interlocutory order or the judgment rendered therein should be
set aside and annulled because it is a wrong final order or wrong
interlocutory order.
CERTIORARI
That the petition is
directed against a
tribunal, board or
officer
exercising
judicial
or
quasijudicial functions;

Page 66 of 103

PROHIBITION
The
petition
is
directed against a
tribunal, corporation,
board
or
person
exercising
judicial,
quasi-judicial,
or
ministerial functions;

MANDAMUS
The plaintiff has a
clear legal right to the
act demanded;

The tribunal, board or

officer
has
acted
without, or in excess of
jurisdiction or with
abuse of discretion
amounting to lack or
excess or jurisdiction
There is no appeal or
any plain, speedy and
adequate remedy in
the ordinary course of
law.
Accompanied by a
certified true copy of
the judgment or order
subject of the petition,
copies of all pleadings
and
documents
relevant and pertinent
thereto, and sworn
certification of nonforum shopping under
Rule 46.
Prohibition
is
an
extraordinary
writ
commanding
a
tribunal, corporation,
board
or
person,
whether
exercising
judicial, quasi-judicial
or
ministerial
functions, to desist
from
further
proceedings when said
proceedings
are
without or in excess of
its jurisdiction, or with
abuse of its discretion,
there being no appeal
or any other plain,
speedy and adequate
remedy
in
the
ordinary course of law
(Sec. 2, Rule 65).

Special civil action

To
prevent
an
encroachment, excess,
usurpation
or
assumption
of
jurisdiction;
May
be
directed
against
entities
exercising judicial or
quasi-judicial,
or
ministerial functions
Extends
to
discretionary
functions
Always
action

the

main

May be brought in the

Supreme Court, Court
of
Appeals,
Sandiganbayan, or in
the Regional Trial
Court
which
has
jurisdiction over the
territorial area where
respondent resides.

The
tribunal,
corporation, board or
person must have
acted without or in
excess of jurisdiction
or with grave abuse of
discretion amounting
to lack of jurisdiction;
There is no appeal or
any plain, speedy and
adequate remedy in
the ordinary course of
law.
Accompanied by a
certified true copy of
the judgment or order
subject of the petition,
copies of all pleadings
and
documents
relevant and pertinent
thereto, and sworn
certification of nonforum shopping under
Rule 46.
Mandamus
is
an
extraordinary
writ
commanding
a
tribunal, corporation,
board or person, to do
an act required to be
done:
(a)
When
he
unlawfully
neglects
the performance of an
act which the law
specifically enjoins as
a duty, and there is no
other plain, speedy
and adequate remedy
in the ordinary course
of law; or
(b)
When
one
unlawfully
excludes
another from the use
and enjoyment of a
right or office to which
the other is entitled
(Sec. 3, Rule 65).
Special civil action
To
compel
the
performance of a
ministerial and legal
duty;
May
be
directed
against judicial and
non-judicial entities
Extends
only
to
ministerial functions
Always
action

the

main

May be brought in the

Supreme Court, Court
of
Appeals,
Sandiganbayan, or in
the Regional Trial
Court
which
has
jurisdiction over the
territorial area where
respondent resides.

It must be the duty of

the
defendant
to
perform the act, which
is ministerial and not
discretionary, because
the same is mandated
by law;
The
defendant
unlawfully
neglects
the performance of the
duty enjoined by law;
There is no appeal or
any plain, speedy and
adequate remedy in
the ordinary course of
law.

Main
action
for
injunction seeks to
enjoin the defendant
from the commission
or continuance of a
specific act, or to
compel a particular act
in violation of the
rights of the applicant.
Preliminary injunction
is
a
provisional
remedy to preserve
the status quo and
prevent future wrongs
in order to preserve
and protect certain
interests or rights
during the pendency
of an action.

Ordinary civil action

For the defendant
either to refrain from
an act or to perform
not necessarily a legal
and ministerial duty;
Directed against a
party

Does not necessarily

extend to ministerial,
discretionary or legal
functions;
May be the main
action or just a
provisional remedy
May be brought in the
Regional Trial Court
which has jurisdiction
over the territorial
area
where
respondent resides.

But in our example, when a motion to dismiss founded on lack of

jurisdiction is denied, it is also correct for the petitioner to make use right
away of Rule 65. If he immediately files a petition for certiorari either in the
CA or SC, that petition for certiorari will not be denied because it is not
compliant with the requirements of Sections 1 and 2 Rule 65, that there is
no appeal, or any plain, speedy, and adequate remedy in the ordinary
course of law. This phrase serves as an essential requisite before we can
properly file a petition under Rule 65. In fact, it is this phrase which is the
source of the principle that we learned that in Rule 65, a motion for
reconsideration is a MUST. This is not expressly mentioned in Rule 65.

Motion for reconsideration is not even mentioned in Rule 65. A motion for
reconsideration is always a plain, speedy and adequate remedy in the
ordinary course of law.

(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.

Note: General Rule: Motion for reconsideration is a condition

precedent in the filing of a petition for certiorari under Rule 65.
Motion for reconsideration is a plain and speedy remedy available
prior to petition under Rule 65.

No, if the case does not fall under the above-mentioned cases under Rule 57
Section 1. Thus, the court would have acted in grave abuse of its discretion
amounting to lack or excess of jurisdiction.

In Rule 65, if we examine the caption of a petition under Rule 65, we will
discover that there are at least 2 respondents, one is the private
respondent, the other is the public respondent. The public respondent is the
agency, court or officer/person who exercises judicial or quasi-judicial
functions (in case of prohibition, public respondent is the agency, court or
officer/person who exercises judicial , quasi-judicial or ministerial
functions). In other words, we always involve a public officer or agency or
court on or officer/person who exercises judicial , quasi-judicial or
ministerial functions under Rule 65. We cannot get a petition for certiorari
under Rule 65 with only the private respondent. We must implead the
public respondent.
Although the rules describe the public respondent as a nominal party, it is
in fact an indispensible party under Rule 65, because it is the final order or
judgment that it had issued that is being assailed or challenged. The reason
why Rule 65 calls the public respondent only as a nominal party is because
in Rule 65 itself, it is provided that the public respondent is not authorized
to enter his appearance and to defend himself before the certiorari court.
The fate of the public respondent lies in the hands of the private
respondent. It is the private respondent who will argue before the higher
court and explain the correctness of the interlocutory order or judgment
that is being assailed under Rule 65. It is only in rare instances where the
higher court will allow the public respondent to argue on his own behalf or
submit his own papers in the certiorari court. He should always rely on the
papers and pleadings that are submitted by the private respondent.
Because of the inherent nature of the petition under Rule 65, that there is
always a public respondent, the petition under Rule 65 does not have to
comply with that condition precedent of prior barangay conciliation. This is
one of the exceptions given in the LGC, where the action involves a
government officer or employee in the performance of his duty.
And the grounds of course are very strictly interpreted. In Rule 65 Sections
1 and 2, the ground is that the public respondent has acted without
jurisdiction, in excess of jurisdiction or with grave abuse of discretion
amounting to lack of jurisdiction.
The definition of Grave abuse of discretion amounting to lack or excess of
jurisdiction is a very simple definition given by the SC, when the public
respondent acts whimsically, despotic and/or arbitrarily. The SC did not
elaborate on whimsical, despotic or arbitrary, so it would have to be
resolved on a case-to-case basis.
For instance, a case is pending in the RTC for the collection of an
indebtedness. The plaintiff applies for the issuance of a writ of
preliminary attachment. The court grants and issues the writ. Does
the RTC act arbitrarily, acting gravely in abuse of its discretion if it
grants and issues the writ of preliminary attachment?
Yes, if that complaint does not fall any one of the cases mentioned in Rule
57:
(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

Hence, in the issuance of provisionary remedies or orders, it could happen

that a court will gravely abuse its discretion amounting to lack or excess of
jurisdiction, a very despotic and arbitrary act of a court.
For instance, the defendant files an answer containing a negative defense
properly crafted. Then the court grants a summary judgment or rendered a
judgment on the pleadings. That is an arbitrary act of the court. But if the
decision rendered is a summary judgment or judgment on the pleadings,
Rule 65 may not be a correct remedy. This is because under our Rules,
because from a judgment, the remedy is to appeal from the judgment.
Whenever there is an appeal available, you better forget Rule 65, because it
is available only when there is no appeal or other plain, speedy and
adequate remedy available in the ordinary course of law. This is the rule
that we must always follow. Although, there are rare instances that the SC
allowed a petition for Rule 65 although appeal is still available. If you will
remember, there are certain exceptions to the general rule that a motion for
reconsideration is a must before making use of Rule 65. There are also rare
instances where the court allowed a petition under Rule 65 even if appeal
was still available, the reason being that in certain instances, appeal is not a
plain, speedy and adequate remedy available in the ordinary course of law.
Q: Is it an absolute rule that before recourse to certiorari is taken a
motion for reconsideration must be filed?
A:
GR: Petition for certiorari will not be entertained unless the public
respondent has been given first the opportunity through a motion for
reconsideration to correct the error being imputed to him.
XPNs: A prior motion for reconsideration is not necessary to entertain
a petition for certiorari where:
1. Order is a patent nullity, as where the court a quo has no
jurisdiction;
2. Questions raised in the certiorari proceedings have been
duly raised and
passed upon by the lower court, or are the same as those
raised and passed upon in the lower court;
3. Urgent necessity for the resolution of the question, and
any further delay would prejudice the interests of the
Government or of the petitioner, or the subject matter of
the action is perishable;
4. Under the circumstances, a motion for reconsideration
would be useless;
5. Petitioner was deprived of due process and there is
extreme urgency for relief;
6. In a criminal case, relief from an order of arrest is urgent
and the granting of such relief by the trial court is
improbable;
7. Proceedings in the lower court are a nullity for lack of
due process;
8. Proceedings were ex parte or in which the petitioner had
no opportunity to object; and
9. Issue raised is one purely of law or where public interest
is involved.
Can a petition under Rule 65 that is filed to challenge an interlocutory
order or judgment be enough to suspend all proceedings in the lower
court and await the decision of the certiorari court on the petition for
certiorari?
If the litigant is aggrieved by an order or judgment that is
inappealable, it is not allowed under Rule 65 for the trial court to
suspend proceedings in the case pending before it. Proceedings will
only be suspended if the higher court issues TRO or writ of PI. Thus, it
is practical to ask along with the petition for an issuance of TRO or
writ of PI.
Take note of the modifications in Rule 65 concerning the abuse of parties
and lawyers in using petition for certiorari, prohibition or mandamus. It is
under the principle of res ipsa loquitur. In the past, lawyers usually file
such petitions whenever motions are denied, citing abuse of discretion
whereas under Rule 65, the required ground is GRAVE ABUSE of
discretion. In order to prevent this practice, SC incorporated in Rule
65 the application of the civil law principle of res ipsa loquitur. If a
lawyer and his client will go up to CA or SC under Rule 65, and the
court resolves that the petition was manifestly without merit or for
purposes of delay, the lawyer and client will be held in contempt of
court for filing such manifestly unmeritorious petition or to pay a
solidary debtor treble costs, and there may be administrative
sanctions against the lawyer.

Page 67 of 103

If the writ of mandamus is issued as requested, there is propriety of

awarding damages in favor of the petitioner, so it is automatically
awarded under Section 3 of Rule 65.In petitions for certiorari,
petitioner may include petition for award of damages. If proven, SC
may award such damages.
SEC. 3. Petition for mandamus.When any
tribunal, corporation, board, officer or person
unlawfully neglects the performance of an act which
the law specifically enjoins as a duty resulting from
an office, trust, or station, or unlawfully excludes
another from the use and enjoyment of a right or
office to which such other is entitled, and there is no
other plain, speedy and adequate remedy in the
ordinary course of law, the person aggrieved thereby
may file a verified petition in the proper court,
alleging the facts with certainty and praying that
judgment be rendered commanding the respondent,
immediately or at some other time to be specified by
the court, to do the act required to be done to protect
the rights of the petitioner, and to pay the damages
sustained by the petitioner by reason of the
wrongful acts of the respondent.
The petition shall also contain a sworn certification
of non-forum shopping as provided in the third
paragraph of section 3, Rule 46.

Rule 102
Description
Writ directed to
the
person
detaining
another,
commanding
him to produce
the body of the
prisoner at a
designated time
and place, with
the day and
cause of his
capture
and
detention, to do,
submit to, and
receive
whatsoever the
court or judge
awarding
the
writ
shall
consider in that
behalf.

A.M. No. 07-912-SC

A.M. No. 08-116-SC

A.M. No. 09-6-8SC

Remedy
available to any
person whose
right to life,
liberty,
and
security
is
violated
or
threatened with
violation by an
unlawful act or
omission of a
public official or
employee, or of
a
private
individual
or
entity.

Remedy
available to any
person whose
right to privacy
in life, liberty or
security
is
violated
or
threatened by
an unlawful act
or omission of a
public official or
employee, or of
a
private
individual
or
entity engaged
in the gathering,
collecting,
or
storing of data
or information
regarding the
person, family,
home
and
correspondence
of the aggrieved
party.

Special remedy
available
to a natural or
juridical person,
entity
authorized by
law,
peoples
organization,
nongovernmental
organization, or
any
public
interest group
accredited by or
registered with
any government
agency,
on
behalf
of
persons whose
constitutional
right
to
a
balanced
and
healthful
ecology
is
violated,
or
threatened with
violation by an
unlawful act or
omission of a
public official or
employee,
or
private
individual
or
entity, involving
environmental
damage of such
magnitude as to
prejudice
the
life, health or
property
of
inhabitants in
two or more
cities
or
provinces.

Involves
the
right to life,
liberty,
and
security of the
aggrieved party
and
covers
extralegal
killings
and
enforced
disappearances.

Involves
the
right to privacy
in life, liberty,
and security of
the aggrieved
party
and
covers
extralegal
killings
and
enforced
disappearances.

Constitutional
right
to
a
balanced
and
healthful
ecology.

There is an
actual
or
threatened
violation of the
aggrieved
partys right.

There is an
actual
or
threatened
violation of the
aggrieved
partys right.

There is an
actual
or
threatened
violation
of
ones right to a
healthful
and
balanced
ecology
involving
environmental
damage.

RTC of the place

where
the
threat, act or
omission was
committed or
any
of
its
elements
occurred; SB or
any
justice
thereof; CA or
any
justice
thereof; SC or
any
justice
thereof.

RTC where the

petitioner
or
respondent
resides, or that
which
has
jurisdiction
over the place
where the data
or information
is
gathered,
collected
or
stored, at the
option of the
petitioner;
or

In SC or any
stations of the
CA.

Rule 65 does not specifically provide for award of damages under Sections
1 and 2 (Certiorari and Prohibition respectively). But the SC resolved that in
proper instances, if there is a prayer for damages incorporated in a petition
for certiorari or prohibition, there is nothing wrong if the court grants the
writ of certiorari or mandamus and award damages in favor of the
petitioner, although none is provided for it in Sections 1 and 2.The
justification given by the SC is that in a petition for certiorari or
prohibition, there is always that prayer for any additional relief which
the court will deem just and equitable. SC said that is enough
justification for the award of damages, so long as the petitioner is able to
present proof of damages.
Why do we consider Rule 65 as a special civil action?
1. Procedurally, the court can dismiss the petition for insufficiency in
form and substance, which has a very broad in interpretation. So even if
the SC has jurisdiction, it can outrightly dismiss the petition.
2.If the court did not dismiss the petition outrightly, the court may not
issue summons. It may instead issue an order to comment. Once a
comment is submitted, the court acquires jurisdiction over that party.
(Similarly, no summons is issued in cases of interpleader and declaratory
relief and other similar remedies.)
3. Since the court does not issue summons, issuing instead a plain order to
comment within a fixed period, if no comment is submitted, the court
cannot declare respondent in default.
4. Under Rule 65, the court will not conduct a pre-trial or a trial. The
issue is a very limited issue. It is not only a mere question of law raised in
Rule 65. That question of law is one of law that it is limited to the issue
of jurisdiction (without or in excess with grave abuse of discretion). There
could be several questions of law that could be raised. But, that question of
law may not involve jurisdiction at all. But in Rule 65, the issue is one of law
and it is limited to the issue of jurisdiction, whether or not the respondent
committed grave abuse of discretion amounting to lack or excess of
jurisdiction.

Coverage
Involves
the
right to liberty
of and rightful
custody by the
aggrieved party.

Rights violated
There is an
actual violation
of the aggrieved
partys right.

Also , the submission of the petition or Order to comment requires parties

to submit the pleadings already submitted in the lower courts. So, the court
will just analyze the documents presented before it via the documents
attached to the petition or the comment, and thus there is no need for a
trial.
What is the remedy of the aggrieved party in a petition for certiorari?
The remedy is appeal, either by petition for review or petition on certiorari
(Rule 45).
TABLE OF COMPARISON FOR THE WRITS OF HABEAS CORPUS,
AMPARO, HABEAS DATA AND KALIKASAN
HABEAS
AMPARO
HABEAS DATA
KALIKASAN
CORPUS
Literal interpretation
You have the To protect
You have the It is a Filipino
body
data
word
which
means nature
in English
Governing Rule

Page 68 of 103

Where to file
RTC or any
judge thereof,
CA
or
any
member thereof
in
instances
authorized by
law; or SC or
any
member
thereof.

with SC, CA or
SB when the
action concerns
public data files
or government
offices.
Who may file a petition
In the following
1. Party for order:
whose relief it is 1. Any member
intended; or
of
the
immediate
2. Any person family
on his behalf
2.
Any
ascendant,
descendant, or
collateral
relative of the
aggrieved party
within the 4th
civil degree of
consanguinity
or affinity
3.
Any
concerned
citizen,
organization,
association or
institution
Respondent
May or may not
be an officer.

Public official or
employee or a
private
individual
or
entity.

In the following
order:
1.
Any
aggrieved party;
2. However, in
cases
of
extralegal
killings
and
enforced
disappearances:
a. Any member
of
the
immediate
family
b.
Any
ascendant,
descendant, or
collateral
relative of the
aggrieved party
within the 4th
civil degree of
consanguinity
or affinity

A natural or
juridical person,
entity
authorized by
law,
peoples
organization,
nongovernmental
organization, or
any
public
interest
group
accredited by or
registered with
any government
agency.

Public official or
employee or a
private
individual
or
entity engaged
in the gathering,
collecting
or
storing of data
or information
regarding the
person, family,
home
and
correspondence
of the aggrieved
party.
HABEAS DATA

Public official or
employee,
private
individual
or
entity.

HABEAS
AMPARO
CORPUS
Enforceability of the writ
If granted by SC Enforceable anywhere in the
or
CA: Philippines regardless of who
enforceable
issued the same
anywhere In the
Philippines;
If granted by
RTC:
enforceable
only within the
judicial district
Docket fees
Payment
is Petitioner
is Payment
is
required
exempted from required.
Note: Rule on payment
Note: Rule on
indigent
indigent
petitioner
petitioner
applies.
applies.
Service of writ
Served upon the Served upon the Served upon the
person to whom respondent
respondent
it is directed, personally; or personally; or
and if not found substituted
substituted
or has not the service
service
prisoner in his
custody, to the
other
person
having
or
exercising such
custody
Person who makes the return
Officer
by Respondent
Respondent
whom
the
prisoner
is
imprisoned or
the person in
whose custody

KALIKASAN
Enforceable
anywhere in the
Philippines

Petitioner
is
exempted from
payment

Served upon the

respondent
personally; or
substituted
service.

Respondent

the prisoner is
found
When to file a return
On the day Within
5
specified in the working days
writ
after service of
the writ, the
respondent
shall
file
a
verified written
return together
with supporting
affidavits.

Return
If granted by
the SC or CA:
returnable
before the court
or any member
or before RTC
or any judge
thereof;
If granted by
RTC: returnable
before
such
court

If issued by
RTC: returnable
before
such
court;
If issued by SB
or CA or any of
their justices:
returnable
before
such
court or to any
RTC of the place
where
the
threat, act or
omission was
committed or
any
of
its
elements
occurred;
If issued by SC
or any of its
justices:
returnable
before
such
court, or before
SB,
CA, or to any
RTC of the place
where
the
threat, act or
omission was
committed or
any
of
its
elements
occurred

The respondent
shall
file
a
verified written
return together
with supporting
affidavits within
5 working days
from service of
the writ, which
period may be
reasonably
extended by the
Court
for
justifiable
reasons.

Within
nonextendible
period of 10
days after the
service of writ.

If issued by
RTC: returnable
before
such
court;
If issued by SB
or CA or any of
their justices:
returnable
before
such
court or to any
RTC of the place
where
the
petitioner
or
respondent
resides or that
which
has
jurisdiction
over the place
where the data
or information
is
gathered,
collected
or
stored;
If issued by SC
or any of its
justices:
returnable
before
such
court, or before
SB, CA, or to any
RTC of the place
where
the
petitioner
or
respondent
resides or that
which
has
jurisdiction
over the place
where the data
or information
is
gathered,
collected
or
stored

If issued by SC,
returnable
before
such
court or CA.

General denial
Not prohibited.
Not allowed.
Not allowed.
Not allowed.
HABEAS
AMPARO
HABEAS DATA
KALIKASAN
CORPUS
Liability of the person to whom the writ is directed if he refuses to make
a return
Forfeit to the Imprisonment
Imprisonment
Indirect
aggrieved party or
fine
for or
fine
for contempt.
the sum of committing
committing
P1000, and may contempt.
contempt.
also
be
punished
for
contempt.
Hearing
Date and time of Summary
Summary
The
hearing
hearing
is hearing shall be hearing shall be including
the
specified in the conducted not conducted not preliminary
writ.
later than 7 later than 10 conference shall
days from the working days not
extend
date of issuance from the date of beyond
sixty
of the writ.
issuance of the (60) days and
writ.
shall be given
the
same
priority
as

Page 69 of 103

petitions for the

writs of habeas
corpus, amparo
and
habeas
data.
Period of appeal
Within 48 hours
from notice of
the judgment or
final
order
appealed from.

5 working days
from the date of
notice of the
adverse
judgment.

5 working days
from the date of
notice of the
judgment
or
final order.

Prohibited pleadings
None
1. Motion to dismiss;
2. Motion for extension of time to
file opposition, affidavit, position
paper and other pleadings;
3.
Dilatory
motion
for
postponement;
4. Motion for a bill of particulars;
5. Counterclaim or cross - claim;
6. Third - party complaint;
7. Reply;
8. Motion to declare respondent in
default;
9. Intervention;
10. Memorandum;
11. Motion for reconsideration of
interlocutory orders or interim
relief orders; and
12.
Petition
for
certiorari,
mandamus or prohibition against
any interlocutory order.

Within fifteen
(15) days from
the date of
notice of the
adverse
judgment
or
denial of motion
for
reconsideration.
1. Motion to
dismiss;
2. Motion for
extension
of
time to file
return;
3. Motion for
postponement;
4. Motion for a
bill
of
particulars;
5. Counterclaim
or cross-claim;
6. Third-party
complaint;
7. Reply; and
8. Motion to
declare
respondent in
default.

SPECIAL CIVIL ACTIONS IN THE KALIKASAN CIRCULAR

The Writ of Kalikasan is a mini RoC for environmental cases. By itself, the
circular appears to contain all rules pertaining to civil cases arising out of
Kalikasan laws as well as criminal procedures.
2 special civil actions:
~Writ of Kalikasan
~Petition for Continuing Mandamus
Why does the Kalikasan circular consider a petition for a writ of
kalikasan and continuing mandamus as a special civil action?
It is because of the fact that although these are governed by ordinary rules
of procedure, there are instances where there is a special procedure which
has to be followed in hearing said special proceeding.
A Petition of a Writ of Kalikasan as a special civil action is entirely different
from ordinary civil cases. The sheer number of parties, as well as the
magnitude of the prejudice that could be suffered by the petitioners (the
threat to their life, liberty and property),is such that they are the
inhabitants of at least 2 or more provinces or cities. If we talk about
numbers, the actual number of inhabitants in a typical province could
number in the hundreds of thousands. This is a perfect example of a class
suit. They stand to be prejudiced in their right to their life, liberty and
property by a violation or a threat to violate environmental laws by a
natural person or juridical entity. Even if there is just a petitioner, a
juridical entity, an NGO or an accredited public interest group, they can file
a petition on behalf of two or more provinces or cities. The parties are so
numerous that it will be impractical for all of them to be brought before the
court.
To make matters simple procedurally, take note that the procedures in
Habeas Corpus and Amparo as special proceedings are practically the same
procedures followed in Kalikasan cases.
Upon the filing of the petition, and the court analyzes the petition, and the
court is convinced of the need for the writ to be issued, the writ will be
immediately issued without need of hearing the side of the respondents.
The writ can be issued right away by the court as long as the allegations in
the petition are complete, that petition is meritorious by itself. The court
may issue also an order requiring respondents to file a VERIFIED RETURN
(not an answer). In writ of HC and Amparo, return is also required to be
filed by respondents. The Return must contain the respondents
explanation as to his side. The writ is a special civil action in this contest
because the writ is issued right away, even before the respondent is given
the chance to give his side, even before the respondent can file his return.

Page 70 of 103

The Kalikasan circular has lots of sections as to the use of discovery

measures. But, they are treated not as discovery measures, but as
provisional orders in the Kalikasan circular.
After the issuance of the writ of Kalikasan, even without hearing the
respondent, the Kalikasan court can issue a provisional remedy called cease
and desist order, which is similar to a TRO in civil cases. But, it does not
have an expiration date, unlike a TRO in ordinary procedure, the duration
depends upon the discretion of the Kalikasan court.
Also, there are only 2 courts that can take cognizance of a petition for a writ
of Kalikasan, the SC and the CA.
Since there is no answer that is required to be filed by the respondent,
failure by the respondent to file a verified return does not result in default.
In ordinary civil actions involving environmental laws, we follow a different
procedure.
If the defendant in an ordinary civil procedure does not file an answer, the
defendant will be declared in default even if there is no motion initiated by
a plaintiff. That is in an ordinary civil action involving environmental laws
which is not a special civil action of Kalikasan filed only in the CA or SC. So if
the respondents do not submit a verified return, the court will go ahead
with analyzing the merit of the petition for a writ of Kalikasan.
A decision of the Kalikasan court in a special civil action of Kalikasan is
immediately executory, although there could be an appeal. If the Circular
says that the decision is immediately executory, it does not mean that
appeal is no longer available. A decision could be executed as a matter of
right even if the aggrieved party still has the right to appeal. This is an
example of a judgment that is immediately executory, but the aggrieved
party enjoys the right of appeal.
In a special civil action for a writ of kalikasan, an appeal under Rule 45
is filed in the SC. Questions of fact could be raised therein, as an
exception to the general rule in Rule 45 that only questions of law
could be raised before the SC.
Judgment in favor of petitioner, aside from being immediately executory,
partakes of a permanent prohibitory mandatory injunction and at the same
time a permanent mandatory injunction. That is the tenor of a judgment in
Kalikasan cases. The judgment will always contain a provision in which
respondent is permanently prohibited from violating or from doing an act
that will violate environmental laws, and the permanently mandatory part
is that the LGU is given a mandate to enforce environmental laws.
Writ of Continuing Mandamus in Kalikasan Cases
It is patterned after the mandamus contained in Rule 65. If you will
compare the definition of mandamus in Rule 65 to the definition of
continuing mandamus in the Kalikasan Circular, there is only the inclusion
in continuing mandamus of the clause pertaining to the enforcement of
environmental laws (in connection with the enforcement or violation of
an
environmental law rule or regulation or a right therein, Section 1 Rule 8
Rules of Procedure on Environmental Cases).
MCQ
The idea or concept of continuing mandamus. What is the source of
this writ of continuing mandamus?
1. an invention of the SC
2. it was taken from India
3. It was taken from USA
4. it is adopted from Latin American Countries just like Amparo.
Answer 2. it came from the SC of India, which seems to have a good
experience in enforcing environmental laws.
Why do we have a writ of continuing mandamus when we already
have mandamus under Rule 65? Cannot the writ of Mandamus under
Rule 65 satisfy the requirements of a continuing mandamus?
Mandamus under Rule 65 under Sec. 3 cannot satisfy the requirement
of a continuing mandamus. It will negate the state policy of enforcing
strictly environmental laws. A final and executory judgment under
Rule 39 can only be enforced through a motion in the first five years.
After that, the next five years, a case for revival of judgment must be
had. In continuing mandamus, it is designed to avoid the process of
motion and then filing a case for revival of judgment. The continuing
mandamus requires continuous enforcement of the judgment. Via the
continuing mandamus, the government is given a duty until the
objective sought in achieved.
MMDA vs. Concerned Citizens Writ of Kalikasan and Continuing
Mandamus petition to clean Manila Bay 2011
MMDA and various agencies were ordered by SC to clean Manila Bay until it
is returned to its pristine condition. (Without Continuing Mandamus,
MMDA will not be compelled to execute the judgment.)

MMDA v. Concerned Residents of Manila Bay

The Cleaning or Rehabilitation of Manila Bay Can be
Compelled by Mandamus
Generally, the writ of mandamus lies to require the
execution of a ministerial duty. A ministerial duty is one
that requires neither the exercise of official discretion
nor judgment. It connotes an act in which nothing is left
to the discretion of the person executing it. It is a simple,
definite duty arising under conditions admitted or
proved to exist and imposed by law.Mandamus is
available to compel action, when refused, on matters
involving discretion, but not to direct the exercise of
judgment or discretion one way or the other.
***
Respondents, on the other hand, counter that the statutory
command is clear and that petitioners duty to comply with
and act according to the clear mandate of the law does not
require the exercise of discretion. According to
respondents, petitioners, the MMDA in particular, are
without discretion, for example, to choose which bodies
of water they are to clean up, or which discharge or spill
they are to contain. By the same token, respondents
maintain that petitioners are bereft of discretion on
whether or not to alleviate the problem of solid and
liquid waste disposal; in other words, it is the MMDAs
ministerial duty to attend to such services.
We agree with respondents.
First off, we wish to state that petitioners
obligation to perform their duties as defined by law, on one
hand, and how they are to carry out such duties, on the other,
are two different concepts. While the implementation of
the MMDAs mandated tasks may entail a decisionmaking process, the enforcement of the law or the very
act of doing what the law exacts to be done is ministerial
in nature and may be compelled by mandamus. We said
so in Social Justice Society v. Atienza in which the Court
directed the City of Manila to enforce, as a matter of
ministerial duty, its Ordinance No. 8027 directing the
three big local oil players to cease and desist from
operating their business in the so-called Pandacan
Terminals within six months from the effectivity of the
ordinance. But to illustrate with respect to the instant
case, the MMDAs duty to put up an adequate and appropriate
sanitary landfill and solid waste and liquid disposal as well as
other alternative garbage disposal systems is ministerial, its
duty being a statutory imposition. The MMDAs duty in this
regard is spelled out in Sec. 3(c) of Republic Act No. (RA)
7924 creating the MMDA. This section defines and delineates
the scope of the MMDAs waste disposal services to include:
Solid waste disposal and management which
include formulation and implementation of policies,
standards, programs and projects for proper and sanitary
waste disposal. It shall likewise include the establishment
and operation of sanitary land fill and related
facilities and the implementation of other alternative
programs intended to reduce, reuse and recycle solid waste.
(Emphasis added.)
The MMDA is duty-bound to comply with Sec.
41 of the Ecological Solid Waste Management Act (RA
9003) which prescribes the minimum criteria for the
establishment of sanitary landfills and Sec. 42 which
provides the minimum operating requirements that each
site operator shall maintain in the operation of a sanitary
landfill. Complementing Sec. 41 are Secs. 36 and 37 of RA
9003, enjoining the MMDA and local government units,
among others, after the effectivity of the law on February 15,
2001, from using and operating open dumps for solid waste
and disallowing, five years after such effectivity, the use of
controlled dumps.
The MMDAs duty in the area of solid waste
disposal, as may be noted, is set forth not only in the
Environment Code (PD 1152) and RA 9003, but in its
charter as well. This duty of putting up a proper waste
disposal
system
cannot
be
characterized
as
discretionary, for, as earlier stated, discretion
presupposes the power or right given by law to public
functionaries to act officially according to their judgment
or conscience. A discretionary duty is one that allows a
person to exercise judgment and choose to perform or not to
perform. Any suggestion that the MMDA has the option

whether or not to perform its solid waste disposal-related

duties ought to be dismissed for want of legal basis.
A perusal of other petitioners respective charters
or like enabling statutes and pertinent laws would yield
this conclusion: these government agencies are enjoined,
as a matter of statutory obligation, to perform certain
functions relating directly or indirectly to the cleanup,
rehabilitation, protection, and preservation of the Manila
Bay. They are precluded from choosing not to perform
these duties. ****
****
All told, the aforementioned enabling laws and
issuances are in themselves clear, categorical, and
complete as to what are the obligations and mandate of
each agency/petitioner under the law. We need not
belabor the issue that their tasks include the cleanup of
the Manila Bay.
Secs. 17 and 20 of the Environment Code Include
Cleaning in General
****
Respondents are correct. For one thing, said Sec.
17 does not in any way state that the government agencies
concerned ought to confine themselves to the containment,
removal, and cleaning operations when a specific pollution
incident occurs. On the contrary, Sec. 17 requires them to
act even in the absence of a specific pollution incident, as
long as water quality has deteriorated to a degree where
its state will adversely affect its best usage. This section,
to stress, commands concerned government agencies,
when appropriate, to take such measures as may be
necessary to meet the prescribed water quality
standards. In fine, the underlying duty to upgrade the
quality of water is not conditional on the occurrence of
any pollution incident.
For another, a perusal of Sec. 20 of the
Environment Code, as couched, indicates that it is
properly applicable to a specific situation in which the
pollution is caused by polluters who fail to clean up the
mess they left behind. In such instance, the concerned
government agencies shall undertake the cleanup work
for the polluters account.**** As earlier discussed, the
complementary Sec. 17 of the Environment Code comes into
play and the specific duties of the agencies to clean up come
in even if there are no pollution incidents staring at
them. Petitioners, thus, cannot plausibly invoke and hide
behind Sec. 20 of PD 1152 or Sec. 16 of RA 9275 on the
pretext that their cleanup mandate depends on the
happening of a specific pollution incident. In this regard,
what the CA said with respect to the impasse over Secs.
17 and 20 of PD 1152 is at once valid as it is practical.
The appellate court wrote: PD 1152 aims to introduce a
comprehensive program of environmental protection
and management. This is better served by making Secs.
17 & 20 of general application rather than limiting them
to specific pollution incidents.
Granting arguendo that petitioners position thus
described vis--vis the implementation of Sec. 20 is correct,
they seem to have overlooked the fact that the pollution
of the Manila Bay is of such magnitude and scope that it is
well-nigh impossible to draw the line between a specific
and a general pollution incident. And such impossibility
extends to pinpointing with reasonable certainty who the
polluters are. We note that Sec. 20 of PD 1152 mentions
water pollution incidents which may be caused by polluters
in the waters of the Manila Bay itself or by polluters in
adjoining lands and in water bodies or waterways that empty
into the bay. Sec. 16 of RA 9275, on the other hand,
specifically adverts to any person who causes pollution in or
pollutes water bodies, which may refer to an individual or an
establishment that pollutes the land mass near
the Manila Bay or the waterways, such that the contaminants
eventually end up in the bay. In this situation, the water
pollution incidents are so numerous and involve
nameless and faceless polluters that they can validly be
categorized as beyond the specific pollution incident
level.
Not to be ignored of course is the reality that the
government agencies concerned are so undermanned that it
would be almost impossible to apprehend the numerous
polluters of the Manila Bay. It may perhaps not be amiss to
say that the apprehension, if any, of the Manila Bay polluters

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has been few and far between. Hence, practically nobody

has been required to contain, remove, or clean up a given
water pollution incident. In this kind of setting, it
behooves the Government to step in and undertake
cleanup operations. Thus, Sec. 16 of RA 9275, previously
Sec. 20 of PD 1152, covers for all intents and purposes a
general cleanup situation.
The cleanup and/or restoration of the Manila Bay is
only an aspect and the initial stage of the long-term
solution. The preservation of the water quality of the bay
after the rehabilitation process is as important as the
cleaning phase. It is imperative then that the wastes and
contaminants found in the rivers, inland bays, and other
bodies of water be stopped from reaching the Manila
Bay. Otherwise, any cleanup effort would just be a futile,
cosmetic exercise, for, in no time at all,
the Manila Bay water quality would again deteriorate
below the ideal minimum standards set by PD 1152, RA
9275, and other relevant laws. It thus behooves the Court
to put the heads of the petitioner-department-agencies and
the bureaus and offices under them on continuing notice
about, and to enjoin them to perform, their mandates and
duties towards cleaning up the Manila Bay and preserving the
quality of its water to the ideal level. Under what other
judicial
discipline
describes
as
continuing
mandamus, the Court may, under extraordinary
circumstances, issue directives with the end in view of
ensuring that its decision would not be set to naught by
administrative inaction or indifference. In India, the
doctrine of continuing mandamus was used to enforce
directives of the court to clean up the length of
the Ganges River from industrial and municipal pollution.
*****
In the light of the ongoing environmental
degradation, the Court wishes to emphasize the extreme
necessity for all concerned executive departments and
agencies to immediately act and discharge their respective
official duties and obligations. Indeed, time is of the essence;
hence, there is a need to set timetables for the
performance and completion of the tasks, some of them
as defined for them by law and the nature of their
respective offices and mandates.
The importance of the Manila Bay as a sea
resource, playground, and as a historical landmark cannot be
over-emphasized. It is not yet too late in the day to restore
the Manila Bay to its former splendor and bring back the
plants and sea life that once thrived in its blue waters. But the
tasks ahead, daunting as they may be, could only be
accomplished if those mandated, with the help and
cooperation of all civic-minded individuals, would put their
minds to these tasks and take responsibility. This means
that the State, through petitioners, has to take the lead in
the preservation and protection of the Manila Bay.
The era of delays, procrastination, and ad
hoc measures is over. Petitioners must transcend their
limitations, real or imaginary, and buckle down to work
before the problem at hand becomes unmanageable.
Thus, we must reiterate that different government
agencies and instrumentalities cannot shirk from their
mandates; they must perform their basic functions in
cleaning up and rehabilitating the Manila Bay. We are
disturbed by petitioners hiding behind two untenable claims:
(1) that there ought to be a specific pollution incident before
they are required to act; and (2) that the cleanup of the bay is
a discretionary duty.
RA 9003 is a sweeping piece of legislation
enacted to radically transform and improve waste
management. It implements Sec. 16, Art. II of the 1987
Constitution, which explicitly provides that the State
shall protect and advance the right of the people to a
balanced and healthful ecology in accord with the rhythm
and harmony of nature.
So it was that in Oposa v. Factoran, Jr. the Court
stated that the right to a balanced and healthful ecology
need not even be written in the Constitution for it is
assumed, like other civil and political rights guaranteed
in the Bill of Rights, to exist from the inception of
mankind and it is an issue of transcendental importance
with intergenerational implications. Even assuming the
absence of a categorical legal provision specifically
prodding petitioners to clean up the bay, they and the

Page 72 of 103

men and women representing them cannot escape their

obligation to future generations of Filipinos to keep the
waters of the Manila Bay clean and clear as humanly as
possible. Anything less would be a betrayal of the trust
reposed in them.
How do we execute that judgment in the Kalikasan court?
Theoretically, SC said that the execution of the judgment requires a
periodic report from the agencies concerned on the extent of progress the
government agencies concerned had achieved until the objective of the
writ has been achieved. If the SC is understaffed to monitor the
progress, it can appoint commissioners in charge of accepting periodic
reports and in submitting the progress reports to the SC in order to
satisfy this judgment requirement. Thus, dormancy and prescription
of judgment under Rule 39 and NCC shall not apply in Writ of
Kalikasan.
A continuing mandamus is another special civil action, but this time it is
cognizable by the RTC, CA and the SC. Just like in Rule 65 or the Writ of
Kalikasan as a special civil action, the respondent is required to file a
verified return, and if no return is filed by respondent, court continues with
the process of analyzing the merit of the petition for continuing mandamus.
A provisional remedy that could be issued by the court handling the
petition for continuing mandamus is the issuance of a Temporary
Environmental Protection Order (TEPO) or a cease and desist order, just
like in the writ of Kalikasan. There could also be an award of damages.
You will also notice that unlike in Kalikasan, there is no provision
concerning appeals in continuing mandamus.. In the writ of Kalikasan as a
special civil action, appeal under Rule 45 is a remedy, raising only questions
of law and questions of fact. . It would seem that the appeals provided in
ordinary civil procedure will govern. If the trial court is the RTC, the appeal
could be by notice of appeal provided in the Rules, or it could be an appeal
directed to the SC. In ordinary civil cases, we allow an appeal from the RTC
to the SC under Rule 45, but the appeal should only contain questions of
law.
What is the precautionary principle in Kalikasan Cases?
Precautionary principle states that when human activities may lead to
threats of serious and irreversible damage to the environment that is
scientifically plausible but uncertain, actions shall be taken to avoid or
diminish that threat.
What is Strategic Lawsuit Against Public Performance (SLAPP) ?
It could be in the form of a civil or criminal action. Plaintiffs intent from
SLAPP is to discourage enforcement officers from enforcing or
attempting to enforce environmental laws. This is filed usually against
DENR or MMDA by a private individual.
Strategic lawsuit against public participation (SLAPP)refers
to an action whether civil, criminal or administrative,
brought against any person, institution or any government
agency or local government unit or its officials and
employees, with the intent to harass, vex, exert undue
pressure or stifle any legal recourse that such person,
institution or government agency has taken or may take in
the enforcement of environmental laws, protection of the
environment or assertion of environmental rights.
In such case, the government officer can file a motion to dismiss such case.
The public officer/defendant/accused need only to present substantial
evidence (the same standard in administrative cases) to prove that the
case filed was a SLAPP. The plaintiff must present preponderance of
evidence/proof beyond reasonable doubt to sustain his challenge.
In criminal procedure in SLAPP, there is a substantial change in the manner
by which a criminal case is governed when compared to a criminal action
which follows criminal procedure.
In ordinary criminal procedure, if the court grants bail, one of the
conditions in the bail is that if the accused does not appear in court for trial,
then the court is authorized to conduct a trial in absentia. But in criminal
procedure, if the accused is granted bail, and then during the arraignment
he does not appear, the criminal court will be forced to suspend
proceedings until the accused is rearrested. What the court will do is to
postpone the arraignment, issue another arrest warrant and probably order
the cancellation of the bail bond. But, the arraignment will not be pushed
through. If there is no arraignment, there can be no trial in the ordinary
criminal case. There must be an arraignment first before the court can
conduct a trial in absentia.
This is not followed in the Kalikasan criminal cases. In the Kalikasan
criminal cases, the crimes are usually bailable. If the accused is granted bail,
the condition of the bail bond will contain similar provisions to that found
in bail under ordinary criminal proceedings. There is modification in

arraignment. If accused does not appear in the scheduled arraignment, the

court is authorized enter a plea of not guilty, so that if there is a plea of not
guilty, the arraignment is completed, a trial can then be scheduled. If the
accused still failed to appear on trial, there can be a trial in absentia.
There is no more need for the accused to be present personally during the
arraignment in the Kalikasan criminal cases. If he does not appear, then it is
the court who will enter a plea of not guilty for him so the court can
continue with the trial in absentia of the accused.
Other Terms(Rules of Procedure on Environmental Cases):
By-product or derivatives means any part taken or substance
extracted from wildlife, in raw or in processed form including
stuffed animals and herbarium specimens.
Consent decree refers to a judicially-approved settlement
between concerned parties based on public interest and
public policy to protect and preserve the environment.
Mineral refers to all naturally occurring inorganic substance
in solid, gas, liquid, or any intermediate state excluding
energy materials such as coal, petroleum, natural gas,
radioactive materials and geothermal energy.
Wildlife means wild forms and varieties of flora and fauna, in
all developmental stages including those which are in
captivity or are being bred or propagated.
Some Important provisions (Rules of Procedure on
Environmental Cases):
Rule 2 SEC. 13. Service of summons, orders and other court
processes.The summons, orders and other court processes
may be served by the sheriff, his deputy or other proper court
officer or for justifiable reasons, by the counsel or
representative of the plaintiff or any suitable person
authorized or deputized by the court issuing the summons.
Any private person who is authorized or deputized by the
court to serve summons, orders and other court
processes shall for that purpose be considered an officer
of the court.
The summons shall be served on the defendant, together with
a copy of an order informing all parties that they have fifteen
(15) days from the filing of an answer, within which to avail
of interrogatories to parties under Rule 25 of the Rules of
Court and request for admission by adverse party under Rule
26, or at their discretion, make use of depositions under Rule
23 or other measures under Rules 27 and 28.
Should personal and substituted service fail, summons by
publication shall be allowed. In the case of juridical entities,
summons by publication shall be done by indicating the
names of the officers or their duly authorized
representatives.
Rule 3 SEC. 3. Referral to mediation.At the start of the pretrial conference, the court shall inquire from the parties if
they have settled the dispute; otherwise, the court shall
immediately refer the parties or their counsel, if authorized
by their clients, to the Philippine Mediation Center (PMC) unit
for purposes of mediation. If not available, the court shall
refer the case to the clerk of court or legal researcher for
mediation.
Mediation must be conducted within a non-extendible
period of thirty (30) days from receipt of notice of
referral to mediation. The mediation report must be
submitted within ten (10) days from the expiration of the
30-day period.
Rule 3 SEC. 5. Pre-trial conference; consent decree.The
judge shall put the parties and their counsels under oath,
and they shall remain under oath in all pre-trial
conferences.
The judge shall exert best efforts to persuade the parties to
arrive at a settlement of the dispute. The judge may issue a
consent decree approving the agreement between the
parties in accordance with law, morals, public order and
public policy to protect the right of the people to a
balanced and healthful ecology.
Evidence not presented during the pre-trial, except
newly discovered evidence, shall be deemed waived.

Rule 4 SEC. 2. Affidavits in lieu of direct examination.In lieu

of direct examination, affidavits marked during the pretrial shall be presented as direct examination of affiants
subject to cross-examination by the adverse party.
Rule 4 SEC. 3. One-day examination of witness rule.The
court shall strictly adhere to the rule that a witness has to be
fully examined in one (1) day, subject to the courts
discretion of extending the examination for justifiable
reason. After the presentation of the last witness, only
oral offer of evidence shall be allowed, and the opposing
party shall immediately interpose his objections. The
judge shall forthwith rule on the offer of evidence in open
court.
Rule 4 SEC. 4. Submission of case for decision; filing of
memoranda. After the last party has rested its case, the
court shall issue an order submitting the case for decision.
The court may require the parties to submit their
respective memoranda, if possible in electronic form,
within a non-extendible period of thirty (30) days from the
date the case is submitted for decision.
The court shall have a period of sixty (60) days to decide the
case from the date the case is submitted for decision.
Rule 4 SEC. 5. Period to try and decide.The court shall have
a period of one (1) year from the filing of the complaint
to try and decide the case. Before the expiration of the
one-year period, the court may petition the Supreme
Court for the extension of the period for justifiable cause.
The court shall prioritize the adjudication of environmental
cases.
Rule 5 SECTION 1. Reliefs in a citizen suit.If warranted, the
court may grant to the plaintiff proper reliefs which shall
include the protection, preservation or rehabilitation of
the environment and the payment of attorneys fees,
costs of suit and other litigation expenses.
It may also require the violator to submit a program of
rehabilitation or restoration of the environment, the
costs of which shall be borne by the violator, or to
contribute to a special trust fund for that purpose subject
to the control of the court.
Rule 5 SEC. 2. Judgment not stayed by appeal. Any
judgment directing the performance of acts for the
protection, preservation or rehabilitation of the
environment shall be executory pending appeal unless
restrained by the appellate court.
Rule 7 SEC. 6. How the writ is served.The writ shall be
served upon the respondent by a court officer or any
person deputized by the court, who shall retain a copy on
which to make a return of service.
In case the writ cannot be served personally, the rule on
substituted service shall apply.
Rule 7 SEC. 7. Penalty for refusing to issue or serve the writ.A
clerk of court who unduly delays or refuses to issue the
writ after its allowance or a court officer or deputized
person who unduly delays or refuses to serve the same
shall be punished by the court for contempt without
prejudice to other civil, criminal or administrative
actions.
Rule 10 SECTION 1. Institution of criminal and civil actions.
When a criminal action is instituted, the civil action for the
recovery of civil liability arising from the offense charged,
shall be deemed instituted with the criminal action unless the
complainant waives the civil action, reserves the right to
institute it separately or institutes the civil action prior to the
criminal action.
Unless the civil action has been instituted prior to the
criminal action, the reservation of the right to institute
separately the civil action shall be made during arraignment.
In case civil liability is imposed or damages are awarded, the
filing and other legal fees shall be imposed on said award in
accordance with Rule 141 of the Rules of Court, and the fees

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shall constitute a first lien on the judgment award. The

damages awarded in cases where there is no private
offended party, less the filing fees, shall accrue to the
funds of the agency charged with the implementation of
the environmental law violated. The award shall be used
for the restoration and rehabilitation of the environment
adversely affected.
Rule 14 SECTION 1. Bail, where filed.Bail in the amount
fixed may be filed with the court where the case is pending, or
in the absence or unavailability of the judge thereof, with any
regional trial judge, metropolitan trial judge, municipal trial
judge or municipal circuit trial judge in the province, city or
municipality. If the accused is arrested in a province, city or
municipality other than where the case is pending, bail may
also be filed with any Regional Trial Court of said place, or if
no judge thereof is available, with any metropolitan trial
judge, municipal trial judge or municipal circuit trial judge
therein. If the court grants bail, the court may issue a
hold-departure order in appropriate cases.
Rule 16 SEC. 4. Manner of questioning.All questions or
statements must be directed to the court.
Rule 16 SEC. 5. Agreements or admissions.All agreements
or admissions made or entered during the pre-trial
conference shall be reduced in writing and signed by the
accused and counsel; otherwise, they cannot be used
against the accused. The agreements covering the matters
referred to in Section 1, Rule 118 of the Rules of Court shall
be approved by the court.
Rule 20 PRECAUTIONARY PRINCIPLE
SECTION 1. Applicability.When there is a lack of full
scientific certainty in establishing a causal link between
human activity and environmental effect, the court shall
apply the precautionary principle in resolving the case
before it.
The constitutional right of the people to a balanced and
healthful ecology shall be given the benefit of the doubt.
SEC. 2. Standards for application.In applying the
precautionary principle, the following factors, among others,
may be considered:
(1) threats to human life or health;
(2) inequity to present or future generations; or
(3) prejudice to the environment without legal
consideration of the environmental rights of those
affected.
RULE 66 QUO WARRANTO
~One of the cases under the concurrent original jurisdiction of the SC, CA
and RTC under BP 129 and also the COMELEC under the Omnibus Election
Code. MTC has limited quo warranto jurisdiction as to proceedings at the
barangay level.
Q: What is quo warranto?
A: A proceeding or writ issued by the court to determine the right to use an
office, position or franchise and to oust the person holding or exercising
such office, position or franchise if his right is unfounded or if a person
performed acts considered as grounds for forfeiture of said exercise of
position, office or franchise.
Note: It is commenced by a verified petition brought in the name of the
Republic of the Philippines or in the name of the person claiming to be
entitled to a public office or position usurped or unlawfully held or
exercised by another. (Sec. 1)
Q: What are the classifications of quo warranto proceedings?
A:
1. Mandatory brought by the Solicitor General or Public prosecutor when:
a. directed by the President;
b. upon complaint or when he has reason to believe that the
cases for quo warranto can be established by proof (Sec. 2)
c. at the request and upon the relation if another person (ex
relatione), but leave of court must first be obtained. (Sec. 3)
2. Discretionary brought by the Solicitor General or a public prosecutor at
the request and upon the relation of another person, provided there must
be:
a. leave of court
b. at the request and upon the relation of another person
c. indemnity bond (Sec. 3)

Page 74 of 103

Who commences the action?

A:
1. The solicitor general or 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 proceeding section can
be established by proof. (mandatory quo warranto)
2. The Solicitor General or a public prosecutor may, with the permission of
court, bring an action at the request and upon the relation of another
person. (discretionary quo warranto)
3. A person claiming to be entitled to a public office or position or
unlawfully held or exercised by another may also bring action, in his own
name. (Relator)
Q: Against whom a quo warranto may be filed?
A: The action must be filed against:
1. A person who usurps, intrudes into, or unlawfully holds or
exercises a public office, position or franchise;
2. A public officer who does or suffers an act which, by the
provision of law, constitutes a ground for the forfeiture of his
office; and
3. An association which acts as a corporation within the
Philippines without being legally incorporated or without lawful
authority so to act (Sec. 1, Rule 66).
Note: Actions of quo warranto against corporations now fall under the
jurisdiction of the RTC (Sec. 5.2, Securities Regulations Code).
Usually, the petitioner has the right of choice. But under Rule 65, although
nothing is mentioned in Rule 66 about hierarchy of courts in quo warranto
proceedings, we follow hierarchy of courts. As much as possible, we do not
file a petition for quo warranto in the SC. It should be filed in the RTC which
has territorial jurisdiction over the case where the public office in question
is placed.
If we compare quo warranto to mandamus, if you go back to Rule 65 Section
3, the second part of that section has a phrase or clause which seems to
overlap with the concept of quo warranto. Quo warranto refers to the
usurpation, holding an office without title. In mandamus, the second part of
the section on mandamus speaks about a respondent who unlawfully
excludes another from the use or enjoyment of a right or office to which he
is entitled. So there seems to be an overlap between the second part of
mandamus and quo warranto.
Rule 65 SEC. 3. Petition for mandamus.When any tribunal,
corporation, board, officer or person unlawfully neglects the
performance of an act which the law specifically enjoins as a
duty resulting from an office, trust, or station, or unlawfully
excludes another from the use and enjoyment of a right or
office to which such other is entitled, and there is no other
plain, speedy and adequate remedy in the ordinary course of
law, the person aggrieved thereby may file a verified petition in
the proper court, alleging the facts with certainty and praying
that judgment be rendered commanding the respondent,
immediately or at some other time to be specified by the court,
to do the act required to be done to protect the rights of the
petitioner, and to pay the damages sustained by the petitioner
by reason of the wrongful acts of the respondent.
The petition shall also contain a sworn certification of nonforum shopping as provided in the third paragraph of section 3,
Rule 46.
Because of this seemingly overlap between mandamus and quo warranto,
the SC has also resolved that there is nothing wrong when a petitioner files
a petition for mandamus or in the alternative a petition for quo warranto.
The petitioner is not very certain whether the right proceeding is
mandamus or quo warranto, because these actions would involve really the
intrusion or usurpation of a public office or title.
But there is a great difference procedurally between mandamus and quo
warranto although these petitions could be used alternatively. This is
because in a quo warranto proceeding, the petitioner could be the Solicitor
General, although he is not interested in the public office in question. Upon
the instruction of the President, the SolGen is authorized to file a petition
for quo warranto. Or, if the instructions does not come from the President,
the request comes from a relator. A relator is a term associated with quo
warranto, he is the petitioner, a person who believes he is entitled to the
public office held by another, and he is asking the SolGen to file a petition
for quo warranto on his behalf. The SolGen, upon the request of a relator,
shall commence a petition for quo warranto. But the person interested in
the office could himself file a petition for quo warranto. That is what usually
happens. The person who alleges he is entitled to a position can file a
petition for quo warranto in a competent court.
Quo warranto is a special civil action because of numerous changes in the
procedure which modify the rules we apply to ordinary civil actions.

Procedural changes:
1. Rule on venue
Usually in ordinary civil cases, in the absence of an express agreement,
venue is governed by Rule 4. We do not follow this in quo warranto. It is
specifically provided that for quo warranto, the venue is where the officer
sought to be ejected is residing. We do not take into account the
residence of the petitioner.
Q: A group of businessmen formed an association in Cebu
City calling itself Cars Co. to distribute/sell cars in said city.
It did not incorporate itself under the law nor did it have
any government permit or license to conduct its business as
such. The Solicitor General filed before the RTC in Manila a
verified petition for quo warranto questioning and seeking
to stop the operations of Cars Co. The latter filed a motion to
dismiss the petition on the ground of improper venue
claiming that its main office and operations are in Cebu City
and not in Manila. Is the contention of Cars Co. correct?
Why?
A: No. As expressly provided in the Rules, when the Solicitor
General commences the action for quo warranto, it may be
brought in a Regional Trial Court in the City of Manila, as in the
case, in the CA or in the SC (Sec. 7, Rule 66). (2001 Bar
Question)
2. Period for submission of pleadings
In ordinary civil actions, the period to file pleadings is fixed in the Rules,
and the court has discretion to grant extension thereof. But if we read Rule
66, the quo warranto court can reduce the period at its discretion. The
quo warranto court can issue a summons instructing the recipient thereof
to file a responsive pleading with 5 days. That discretion of a quo warranto
court is not enjoyed by other courts under ordinary civil procedure, as
courts under ordinary procedure can grant extensions only.
3. The most significant change in quo warranto is that we do not apply the
rule against splitting a cause of action. It is expressly allowed in quo
warranto under Sections 9, 10 and 11 of Rule 66.
SEC. 9. Judgment where usurpation found.When the
respondent is found guilty of usurping, 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.
SEC. 10. Rights of persons adjudged entitled to public
office; delivery of books and papers; damages.If
judgment be rendered in favor of the person averred in the
complaint to be entitled to the public office he may, after
taking the oath of office and executing any official bond
required by law, take upon himself the execution of the
office, and may immediately thereafter demand of the
respondent all the books and papers in the
respondents 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.
SEC. 11. Limitations.Nothing contained in this Rule shall
be construed to authorize an action against a public
officer or employee for his ouster from office unless the
same be commenced within one (1) year after the cause
of such ouster, or the right of the petitioner to hold such
office or position, arose; nor to authorize an action for
damages in accordance with the provisions of the next
preceding section unless the same be commenced
within one (1) year after the entry of the judgment
establishing the petitioners right to the office in
question.
You will note that in these 3 sections, there is a rule derived from these
sections, which says that if the quo warranto court decides in favor of
the petitioner, the quo warranto court will oust the respondent and
direct that the office and the records of that office be turned over to
the prevailing party. In the succeeding sections, it is also provided that the
prevailing party has a right, within 1 year after taking over, can claim
damages incurred as a result of usurpation by ousted respondent
public officer. Although a favorable decision in a quo warranto proceeding

could lead the court to award damages against the respondent public
officer, the quo warranto need not award damages in the quo warranto
petition itself. There could be a separate complaint for recovery of damages
arising from the usurpation of a public office. This is splitting a cause of
action. In other words, the prevailing party can recover the office, and after
he has assumed office, within one year from entry of judgment, he can file a
separate complaint for the recovery of damages suffered as a result of the
intrusion or usurpation made by the defendant.
Claim for damages arising from principal cause of action is not barred if
split from quo warranto action. But prescriptive period is 1 year from entry
of the main action. Whereas in the case of mandamus, a special civil action,
lets say the petitioner files a petition for mandamus without a claim for
damages. He later on wins the case. When court directs the defendant to
turn over the office to the prevailing party, the prevailing party will be
barred from claiming damages from the plaintiff. Mandamus does not
authorize splitting a cause of action. A claim of damages could be awarded if
claimed in the same petition for mandamus. In quo warranto, there is a
different procedure that we follow when it comes to recovery of damages.
There could be a separate complaint for recovery of damages arising from
the intrusion or usurpation of public office. But the prescriptive period is
one year from entry of judgment of the quo warranto proceeding.
Distinguish mandamus from quo warranto.
A:
Mandamus
Quo Warranto
Available when one is unlawfully Available against the holder of an
excluded from the use or enjoyment office, who is the person claiming
of an office against a person who is the office as against petitioner, not
responsible for excluding the necessarily the one who excludes
petitioner
the petitioner
No splitting of a cause of action.
Recovery of damages is allowed
within 1 year from the entry of
judgment of the petition for quo
warranto
Distinguish quo warranto in elective office from an appointive office.
A:
Elective Office
Appointive Office
Issue: eligibility of the respondent
Issue: validity of the appointment
Occupant
declared Court will oust the person illegally
ineligible/disloyal will be unseated appointed and will order the
but petitioner will not be declared seating of the person who was
the rightful occupant of the office.
legally appointed and entitled to the
office.
Distinguish quo warranto under Rule 66 from quo warranto under
Omnibus Election Code.
A:
Quo Warranto Under Rule 66
Quo Warranto In Electoral
Proceedings
Prerogative writ by which the To contest the right of an elected
government can call upon any public officer to hold public office.
person to show by what title he
holds a public office or exercises a
public franchise.
Grounds: 1. usurpation
Grounds:
2. forfeiture
ineligibility or disqualification to
3. illegal association
hold the office
Presupposes that the respondent is Petition must be filed within 10
already actually holding office and days from the proclamation of the
action must be commenced within 1 candidate.
year from cause of ouster or from
the time the right of petitioner to
hold office arose.
The petitioner must be the May be filed by any voter even if he
government or the person entitled is not entitled to the office.
to the office and who would assume
the same if his action succeeds.
Person adjudged entitled to the Actual or compensatory damages
office may bring a separate action are recoverable in quo warranto
against the respondent to recover proceedings under the Omnibus
damages.
Election Code.
Note: If the dispute is as to the counting of votes or on matters connected
with the conduct of the election, quo warranto is not the proper remedy but
an election protest (Cesar v. Garrido, G.R. No. 30705, Mar. 25, 1929)
Is the claim of damages in quo warranto cases considered a separate
special civil action?
No, it is an ordinary action for a claim of damages.
Supposing that the petitioner filed a case for quo warranto against
respondent. His petition for quo warranto was granted. The
respondent was ousted from the office. When the prevailing party
filed a case for damages, 1 year after the entry of the judgment of the

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quo warranto court, the respondent interposed a defense that he

cannot be held liable for damages as the judgment of the quo warranto
court was an invalid judgment. Is his defense succeed in this ordinary
complaint for damages?
No. It cannot be set up. It is a collateral attack on a judgment, which we do
not allow. Collateral attack on judgment rendered by the court is not
allowed when the judgment appears on its face to be valid under Rule 39.
Practically, in that separate complaint for the recovery of damages, no
meritorious defense could be set up by the respondent because the award
of damages necessarily arises from the fact that there is already a final and
executory judgment rendered in the principal case of quo warranto.
RULE 67 EXPROPRIATION
Q: What is expropriation?
A: The procedure for enforcing the right of eminent domain.
Q: What are the requisites of a valid expropriation?
A:
1. Due process of law
2. Payment of just compensation
3. Taking must be for public use
Q: What is the power of eminent domain?
A: It is the right of the State to acquire private property for public use upon
the payment of just compensation.
Q: When is expropriation proper?
A: It is proper only when the owner refuses to sell or, if the latter
agrees, agreement as to the price cannot be reached.
Jurisdiction exclusively cognizable by RTC. The test in BP 129 as to
assessed value of the property is not applied here.
The nature of the action as a real action has nothing to do with the
jurisdiction of the court, but it has something to do only with respect
to the venue. The nature of the property is not determinative of
jurisdiction in expropriation proceedings because expropriation is one
not capable of pecuniary estimation.
Why is this so when state is required to pay just compensation?
This is because the issue to be resolved first by the court is the right of
the plaintiff to expropriate. Only in the second stage is the fixing of just
compensation resolved. A court cannot simply decide the issue of just
compensation first, as it should assess first the right to expropriate,
which is incapable of pecuniary estimation. SC held that since the first
issue to be resolved is one incapable of pecuniary estimation, under BP 129,
then it should be the RTC which should have jurisdiction.
In expropriation proceedings, if there is a complaint filed yesterday, and
the plaintiff deposits an amount equivalent to assessed value today,
even if the defending party has not been notified yet, the plaintiff can
proceed to possess the property subject of expropriation. Let us say
that the DPWH is interested in getting a property of land for the purpose of
expanding a national highway. What it will do is to simply file a complaint in
the RTC where the land is located. The deposit is made the next day.
Immediately, the DPWH will take over the said property, and the owner
thereof can do nothing about it. Once deposit is made as required by the
Rules or as required by substantive law, the court issues a writ of
possession as its ministerial duty. In ordinary civil actions, issuance of a
writ of possession can be done only after the court has rendered a decision
and such decision has been entered.
In case of reversion, when will the owner recover the expropriated
property?
After a judgment in favor of owner has become final and executory. If there
is an appeal, possession is not returned, except when execution pending
appeal is granted. Otherwise, a writ of possession shall be issued upon
finality.
Suppose there is a lien over the property? What if there were informal
settlers in the property?
They will all be driven out as a result of the writ of possession issued even
before the expropriation court has determined whether or not the state has
a right to expropriate.
There are now new laws providing for fixing the amount of deposit to be
made, not the one that is always provided for under Rule 67. The new laws
say that deposit should be 100% of the assessed value. Rule 67 shall govern
in cases where the special laws are not applicable.
WHEN PLAINTIFF CAN IMMEDIATELY ENTER INTO POSSESSION OF
THE REAL PROPERTY
Q: What is the new system of immediate payment of initial
compensation?
A: RA 8974 provides a modification of sec 2, Rule 67 where the Government
is required to make immediate and direct payment to the property owner
upon the filing of the complaint to be entitled to a writ of possession. As a

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relevant standard for initial compensation, the market value for the
property as stated in the tax declaration or the current relevant zonal
valuation of the Bureau of internal Revenue (BIR), whichever is higher
and the value of the improvements and/or structures using the
replacement cost method.
Note: RA 8974 applies in instances when the national government
expropriates property for national government infrastructure
projects. Thus, if expropriation is engaged by the national government
for purposes other than national infrastructure projects, the assessed
value standard and the deposit mode prescribed in Rule 67 continues
to apply.
The intent of RA 8974 to supersede the system of deposit under Rule 67
with the scheme of immediate payment in cases involving national
government infrastructure projects is indeed very clear (MCWD v. J. King
and Sons, GR 175983, April 16, 2009)
NEW SYSTEM OF IMMEDIATE PAYMENT OF INITIAL JUST
COMPENSATION
Q: What is the new system of immediate payment of initial just
compensation?
A: For the acquisition of right-of-way, site or location for any national
government infrastructure project through expropriation, upon the filing of
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) 100 percent of the value of the
property based on the current relevant zonal valuation of the BIR; and (2)
the value of the improvements and/or structures as determined under Sec.
7 of RA 8974 (Sec. 4, RA 8974).
Expropriation by LGUs, under the LGC, it must be alleged in the complaint
that there is an ordinance authorizing the filing expropriation
complaint and a further allegation that LGU offered to buy the
property from the owner, but the owner refused (there was an
attempt by the LGU to buy the property).
What are the two (2) stages in expropriation proceedings?
A:
1. Determination of the authority of the plaintiff to exercise the power of
eminent domain and the propriety of the exercise in the context of the facts
involved.
2. Determination of just compensation.
FIRST STAGE
The first stage of the expropriation proceeding is for purposes of
determining the plaintiffs right to expropriate. The first decision in
resolving this issue is called an order of condemnation or expropriation,
which is a final decision on the merits. This is appealable.
Certain pleadings are not allowed: Counterclaim, cross-claim and 3rd party
complaint. If defendant believes the filing of expropriation by the Republic
is arbitrary, he cannot sue the Republic. He cannot file a counterclaim
against the Republic.
Is there a way the defendant protect himself in case the court decides
in his favor?
Under Rule 67, even if without a counterclaim, if the court resolves the
expropriation is not meritorious, the court will award damages in favor of
defendant. If there is a dispute among several defendants as to who is
entitled to just compensation, even if no cross-claim is filed, the court itself
will resolve this issue, even if there are no pleadings relating thereto. The
expropriation court has a very wide discretion in the matter of payment, or
even distribution, of just compensation that will be fixed during the 2nd
stage where the court will appoint commissioners, who will then tell the
court the amount of just compensation to be paid to the various defendants.
POSSESSORS WITH JUST TITLE
SC also ruled that if the Republic has a Torrens title over certain properties,
but the said properties were in the possession of private individuals
claiming possession under a just title, the Republic cannot simply cause
their ejection, but Republic can simply file an expropriation proceeding
against them. There is nothing wrong if the Republic will file a complaint for
expropriation to oust the possessors from the property, although these
properties are already in the title of the government.
DEFAULT
Supposing the defendant does not answer within the period of default, the
court, upon motion of the plaintiff, may declare the defendant in default. But
in the default order issued in expropriation proceedings, the defendant is in
default only during the first stage of the proceedings, and is lifted
automatically in the 2nd stage. The defendant, if declared in default, will not
be able to participate during the first stage of the proceedings where the
right of the plaintiff to expropriate will be determined by the court. The first
stage ends, if favorable to plaintiff, with the court issuing an order for
condemnation or order of expropriation. Once that order is entered, or even

if there is an appeal from that order, the expropriation court will now go to
the second stage, the fixing of just compensation. During the 2nd stage, the
defendant is allowed again to participate in the proceedings the fixing of
just compensation. Unlike in ordinary civil actions, if the defendant is in
default, the defendant will not be able to participate during the entire
proceedings, unless the order of default is lifted or the order of default is set
aside.
SECOND STAGE
The fixing of just compensation is not solely the discretion of the court.
Court MUST appoint commissioners to determine such compensation. If the
court has not followed this procedure, there is ground to question the
decision of just compensation by said court. Commissioners must be
appointed in order to help the court in fixing the just compensation to be
paid. This is another deviation from ordinary procedures. Note in ordinary
procedure, trial by commissioners is discretionary; unlike in expropriation,
the appointment of commissioners in the second stage is mandatory. The
judgment rendered by the expropriation court will be void if the court does
not follow the mandatory requirement of appointing of commissioners.
Q: May the court dispense with the assistance of commissioners in the
determination of just compensation in expropriation proceedings?
A: No. The appointment of commissioners in expropriation proceedings is
indispensable. In such cases, trial with the aid of commissioners is a
substantial right that may not be done away with capriciously or for no
reason at all (MERALCO v. Pineda, G.R. No. L-59791, Feb. 13, 1992).
Note: Objections to the order of appointment must be filed within 10 days
from service of the order and shall be resolved within 30 days after all the
commissioners received the copies of the objections (Sec. 5)
Q: What is just compensation?
A: Just compensation is equivalent to the fair market value of the property
at the time of its taking or filing of complaint whichever comes first. It is the
fair and full equivalent for the loss sustained by the defendant.
Q: What is the formula for the determination of just compensation?
JC = FMV + CD CB
If CB is more than CD then,
JC = FMV
Where:
JC Just compensation
FMV Fair market value
CD Consequential damages
CB Consequential benefits

the improvements increase the value of his property, changed his mind and
sought to recover the donated property by filing a case for unlawful
detainer against the government.SC held that unlawful detainer is not the
remedy. There was a de facto expropriation that happened when the
government took over the property. What the owner can do is to file an
ordinary action for the recovery of just compensation.
In other words, if we follow the reasoning of the SC, expropriation could be
de jure expropriation, it could also be de facto expropriation. If the
government actually occupies a piece of land and introduces improvements
therein, with the tolerance of the owner of the property, that is effectively
an expropriation of the property. And the only remedy of the land owner is
to file an ordinary case for the recovery of just compensation. There will
still be a need to fix the amount of just compensation.
We follow the same procedure if the subject of expropriation is personal
property. But there are laws fixing the amount to be deposited if the
government wants to take possession of the personal property right away.
APPEAL
Supposed defendant appealed the first final order, may the court
proceed with the 2nd stage?
Yes. An appeal from the first final order will not prevent the court from
proceeding to the 2nd stage to fix the amount of just compensation.
If the defendant during appeal asks the court to withdraw the deposit
made, will that mean he is withdrawing his appeal or shall the appeal
continue?
The appeal shall continue. SC held that defendant is allowed to withdraw
the money since technically it is his as it is intended to pay partly his just
compensation, this will not mean that the appeal is being withdrawn.
Thus, immediately, you can see why expropriation is a special civil action. It
consists of 2 stages. And for each stage, there is a final order of judgment.
Thus, for each final order of judgment, an appeal can be had, meaning there
can be 2 appeals in an expropriation case. Thus, it is possible that there can
be multiplicity of appeals in expropriation cases, which is not allowed in
ordinary civil actions.
Because of the possibility of multiple of appeals in expropriation
proceedings, the requirements of appeal are changed. In ordinary civil
proceedings, the period to appeal is 15 days, and what needs to be filed is
just a notice to appeal. In expropriation proceedings, since there could be
multiple appeals, the period to appeal is extended to 30 days, and together
with notice of appeal, appellant is also required to file a record on appeal.
Failure to file record to appeal means the appeal is not perfected.

Note: Sentimental value is not computed.

Q: What is the reckoning point for determining just compensation?
A:The value of just compensation shall be determined as of the date of the
taking of the property or the filing of the complaint, whichever came first.
(Sec. 4)
GR: 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 the filing of the
complaint. (City of Iloilo v. Hon. Lolita Contreras-Besana, G.R. No. 168967,
Feb. 12, 2010).
Note: Typically, the time of taking is contemporaneous with the time the
petition is filed. (NAPOCOR v. Co, G.R. No 166973, Feb. 10, 2009)
XPNs:
1. Grave injustice to the property owner
2. The taking did not have color of legal authority
3. The taking of the property was not initially for expropriation
4. The owner will be given undue increment advantages because of the
expropriation
Based on past jurisprudence, if the state has expropriated a piece of land
and had paid just compensation based on the courts decisions, but the state
did not push through with the project alleged in the complaint, there is
nothing we can do about it on ground of res judicata. The case can no longer
be reopened. But that was old jurisprudence. Recently, the decision on
Mactan-Cebu International Airport cases, the last of which was decided in
2010, the SC held that in the case of the public purpose of the
expropriation being unfulfilled, the former owners can rightfully file a
complaint in the RTC for the reversion of the property and
reconveyance of the property expropriated, the amount of payment of
which shall be based on the just compensation paid at the time of
expropriation (the purpose being to return to the government the
amount of just compensation paid to them).
In another case, there was a land owner who donated a tract of land to the
government. The government introduced improvements with tolerance of
the owner, and the value of the property increased. The donor, seeing that

Q: City of Iloilo (petitioner) represented by Mayor Treas filed a

complaint for eminent domain against Javellana seeking to
expropriate two parcels of land. Mayor Treas filed a motion for
issuance of writ of possession alleging that it had deposited 10% of the
amount of compensation of which the court issued. A writ of
possession was subsequently issued, and petitioner was able to take
physical possession of the properties. After which, the expropriation
proceedings remained dormant. 16 years later, Javellana filed an ex
parte motion/manifestation, where he alleged that when he sought to
withdraw the money, he discovered that no deposit was made. Thus,
Javellana filed a complaint for recovery of possession, fixing and
recovery of rental and damages. The City of Iloilo argues that Javellana
could no longer bring an action for recovery since the subject property
was already taken for public use. The trial court in its orders and
amended orders maintained that the assailed orders issued by it were
interlocutory in character and as such are always subject to
modification and revision by the court anytime. Is the order of
expropriation final?
A: Expropriation proceedings have two stages. The first phase ends with an
order of dismissal, or a determination that the property is to be acquired for
a public purpose. The second phase consists of the determination of just
compensation. Both orders, being final, are appealable.
An order of condemnation or dismissal is final, resolving the question of
whether or not the plaintiff has properly and legally exercised its power of
eminent domain. Once the first order becomes final and no appeal thereto is
taken, the authority to expropriate and its public use can no longer be
questioned. Thus, it has become final, and the petitioners right to
expropriate the property for a public use is no longer subject to review.
(City of Iloilo v. Hon. Lolita Contreras-Besana, G.R. No. 168967, Feb. 12, 2010).
May Congress enact a law providing that a 5,000 square meter lot, a
part of the UST compound in Sampaloc, Manila, be expropriated for
the construction of a park in honor of former City Mayor Arsenio
Lacson? As compensation to UST, the City of Manila shall deliver its 5hectare lot in Sta. Rosa, Laguna originally intended as a residential
subdivision for the Manila City Hall employees. Explain.
A: Yes, Congress may enact a law to expropriate property but it cannot limit
just compensation. The determination of just compensation is a judicial

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function and Congress may not supplant or prevent the exercise of judicial
discretion to determine just compensation. Under Sec. 5, Rule 67 of the
Rules of Court, the ascertainment of just compensation requires the
evaluation of 3 commissioners. (2006 Bar Question)
RULE 68 FORECLOSURE OF REAL ESTATE MORTGAGE
Another multi-stage special civil action it has 3 stages
Q: What is foreclosure of Real Estate Mortgage (REM)?
A: It is the remedy used for the satisfaction of any monetary obligation,
which a person owes to another, by proceeding against the property used to
secure said obligation.
Note: It is commenced by a complaint setting forth the date and due
execution of the mortgage; the names and residences of the mortgagor and
the mortgagee; a description of the mortgaged property; date of the note or
other documentary evidence of the obligation secured by the mortgage, the
amount claimed to be unpaid thereon; and the names and residences of all
persons having or claiming an interest in the property subordinate in right
to that of the holder of the mortgage (Sec. 1).
JUDICIAL VS.EXTRA-JUDICIAL FORECLOSURE
Judicial Foreclosure
Extra-judicial Foreclosure
Governed by Rule 68
Governed by Act 3135
There is only an equity of Right of redemption exists
redemption except when the
mortgagee is a bank
Requires court intervention
No court intervention necessary
Mortgagee need not be given a Mortgagee is given a special power
special power of attorney.
of attorney in the mortgage contract
to foreclose the mortgaged property
in case of default
Note: A mortgagee may bring a personal action for the amount due, instead
of a foreclosure suit, in which case, he will be deemed to have waived his
right to proceed against the property in a foreclosure proceeding. (Movido v.
RFC, G.R. No. L-11990, May 29, 1959)
Judicial foreclosure of real estate mortgage. Rule 68 deals only with real
estate mortgage. Here, the court is involved.
Note: There is no judicial foreclosure of a chattel mortgage.
Extra-judicial foreclosure of real mortgage is governed by special law, the
Real Estate Mortgage Law. We deal only with the notary public or the court
sheriff. There is a circular issued by the SC concerning extra-judicial real
estate mortgage, so we follow that SC circular when it comes to extrajudicial foreclosure. In the circulars, the mortgagee will not need to file a
complaint, but instead will be dealing with notary public or sheriff. There
will also be public auction, period of redemption, and consolidation of title
by RoD. The only time when the purchaser in this foreclosure needs to go to
court is when the purchaser needs to recover possession of the property.
He will have to go to court in order to petition for the issuance of a writ of
possession.
In extra-judicial foreclosure of mortgage, the period of redemption is
similar to Rule 39, 1 year from registration of the certificate of sale. This
period of redemption is one of the distinctions of judicial under Rule 68 and
extra-judicial foreclosure of mortgage.
Redemption in judicial foreclosure is called equity of redemption. It is
redemption just the same. Period of redemption is between 90 to 120 days
from entry of judgment. Such short period is actually misleading, as it can
be without a definite end. The counting must be commenced from
ENTRY of judgment or final order. There are 3 judgments or final
orders to be rendered in judicial foreclosure. For each stage, there
could be an appeal in each final order. The counting starts upon entry
of all three judgments or final orders. Thus, if one or two judgments
were appealed in the CA up to the SC, then such period is extended until the
finality of the said judgments, which could take many years. If an appeal is
perfected on time, there can be no entry of judgment. This is the reason why
mortgagees are discouraged from engaging in judicial foreclosures.
Q: Distinguish equity of redemption from right of redemption.
A:
Equity of Redemption
Right of Redemption
Right of the defendant mortgagor Right of the debtor, his successor in
to extinguish the mortgage and interest or any judicial creditor or
retain ownership of the property judgment creditor of said debtor or
by paying the debt within 90-120 any person having a lien on the
days after the entry of judgment property subsequent to the
or even after the foreclosure sale mortgage or deed of trust under
but prior to confirmation
which the property is sold to
redeem the property within 1
year from the registration of the
Sheriffs certificate of foreclosure
sale
Governed by Rule 68
Governed by Secs. 29-31, Rule 39

Page 78 of 103

Note: There is no right of redemption in judicial foreclosure sale after the

confirmation of sale except those granted by banks or banking institutions
in favor of non-judicial persons as provided by the General Banking Act
(Government Insurance System v. CFI of Iloilo, G.R. No. 45322, July 5, 1989).
In extra-judicial foreclosure, the mortgagor has the right to redeem the
property within one year from the registration of the deed of sale. However,
Sec. 47 of the General Banking Act provides that in case of extra-judicial
foreclosure, juridical persons shall have the right to redeem the property
until, but not after, the registration of the certificate of foreclosure sale
which in no case shall be more than 3 months after foreclosure, whichever
is earlier.
The pendency of the action stops the running of the right of redemption.
Said right continues after perfection of an appeal until the decision of the
appeal. (Consolidated Bank and Trust Corp. v. IAC, G.R. No. 73341, Aug. 21,
1987)
A mortgagee can only foreclose extra-judicially under the Real
Mortgage Law if he is given an SPA to do so by the mortgagor.
Otherwise, he must make use of judicial foreclosure of mortgage. If
mortgagee files a complaint for judicial foreclosure, the first problem is
jurisdiction.
SC held that foreclosure of REM is always cognizable under the RTC. It is not
capable of pecuniary estimation. Notwithstanding the nature of foreclosure
of a real estate, the SC used the reasons in expropriation. SC held that a
judicial foreclosure of a real estate mortgage is incapable of pecuniary
estimation since in the first stage, the court determines the right of plaintiff
to foreclose, which is incapable of pecuniary estimation.
Rule 68 already tells who should be the plaintiff as well as who to implead
defendant. The defendants should be the debtor and the mortgagor. The
debtor is different from mortgagor. And debtor must also implead as codefendants persons who might have interests or liens subsequent to the
mortgagee. By implication, the owner of a piece of land can validly
mortgage his land more than once. He can mortgage the land to A, then to B,
and then C.
If the mortgage loans are all defaulted, the defendant, if he has not given
any authority to foreclose the mortgage, is sure to be impleaded as a
defendant in the complaint for judicial foreclosure of a real estate mortgage.
It is the first mortgagee who judicially forecloses the mortgage and if he
follows the Rules, the first mortgagee should implead the debtor, the
mortgagor and the subsequent mortgagees.
Does it mean to say that the debtor is an indispensible party?
Yes. The mortgagor is an indispensable party, whose property is sought to
be foreclosed. Remember that a mortgage is a collateral contract. There
must always be a principal contract coupled with a contract of real estate
mortgage. Thus, we should always implead the mortgagor, who is an
indispensable party in the recovery of the indebtedness.
How about the mortgagor, is he an indispensible party?
Yes. He is also an indispensible party as it is his property that will be
foreclosed. He might lose his property if it is foreclosed to satisfy the
obligation incurred by the debtor.
Supposing the mortgagor files an answer and sets up the defense that
the mortgage insofar as he is concerned is void due to lack of
consideration thereto, is this a valid argument against the
foreclosure?
It is untenable. In civil law, where there is a collateral under an accessory
contract, the consideration under the principal contract serves
automatically as the consideration for the accessory contract. The
mortgagor only has himself to blame, setting up his property as security for
the benefit of the debtor without compensation.
Subsequent lien holders are necessary parties, so they will lose their equity
of redemption incase the plaintiff wins the case.
The only reason why subsequent mortgagees should be impleaded under
the Rules is to protect the 1st mortgagee, assuming that he wins the case,
from these subsequent lien holders (subsequent mortgagees) from
exercising their equity of redemption. If the subsequent mortgagees are not
impleaded, and there is a decision in favor of the 1st mortgagee, the
subsequent mortgagees will not lose their equity of redemption. Meaning,
they do not start to count the 90 to 120 days period from entry of judgment
so as to bar these subsequent lien holders from exercising their right to
equity of redemption. That is the only reason why Rule 68 says that
subsequent lien holders should be impleaded, because they are necessary
parties, so that they will lose their equity of redemption if ever the 1st
mortgagee will win the case.
In an indispensible party is not impleaded, the court will order plaintiff to
amend his complaint and include said party. Failure to implead an

indispensible party despite order of the court will result in the dismissal of
the case.
STAGES OF JUDICIAL FORECLOSURE
FIRST STAGE
In the first stage, the court determines the liability of the debtor, and the
court will order the debtor to pay his indebtedness within a 90- to 120-day
period from entry of judgment. The mortgagor is not the one ordered to pay
the secured indebtedness, it is the debtor who must pay.
But inn our given facts, we do not expect the debtor to pay, because the
property anyway does not belong to him. He will leave the problem to the
mortgagor. If there is no payment, and the judgment is not appealed, it will
be entered. The entry will not cut off the equity of redemption. The equity
of redemption shall exist until after the entry of the 2nd judgment.
If the debt is paid, the proceedings become academic. There is no more
reason for the mortgagee continue his complaint if the debt is paid. It is the
obligation of the mortgagee to cancel the mortgage if the obligation is
finally settled. But if the obligation is not paid, the proceedings will go to the
2nd stage.

criminal cases, sought for the dismissal of the foreclosure case,

claiming that the civil aspect of BP 22 should not be separated from
the criminal aspect as it is automatically carried with the criminal
case, and that mortgagee has split his causes of action in filing the
special civil action for judicial foreclosure. Is the mortgagor correct?
In an earlier case, the SC upheld the mortgagor. The special civil action for
judicial foreclosure was dismissed. There was really splitting of causes of
action. The criminal cases stemmed from the issuance of the debtor of the
checks, which were dishonored. In a mortgage relationship, there are
effectively 2 contracts entered into between the mortgagor and mortgagee.
The principal contract, usually a loan, and an accessory contract of
mortgage. If the mortgagee files a separate complaint for the recovery of the
loan without foreclosing the mortgage, he can do so. The filing of a separate
complaint for the purpose of recovering the loan will be considered as a
waiver of the collateral arrangement. The mortgagee, if he does this, is
deemed to have abandoned the mortgage. He is deemed to have converted
his secured loan to an unsecured loan. The ordinary civil action of the loan
will bar a second complaint for the judicial foreclosure of mortgage.

SECOND STAGE
The foreclosure court orders the sale of the mortgaged property at public
auction. The court will issue an order directing the sheriff to sell the
property in a public auction under Rule 39, as well as in the Mortgage Law.

In a 2011 decision, involving the same set of facts, the SC changed its
course. SC held that the existence of a criminal case for violation of BP
22 is not a ground to conclude that the mortgagee has abandoned his
mortgage lien. Notwithstanding the criminal case for violation of BP
22 pending before the MTC, the mortgagee can still institute a judicial
foreclosure of the mortgage.

If the property is sold to the highest bidder, do we now cut off the equity of
redemption?
We do not cut off as of yet the equity of redemption even when the property
has been sold at public auction. What the court will do next after the public
auction is conducted is to resolve the motion for the confirmation of the
validity of the auction sale. This is the second final order of confirmation. It
is appealable. When an appeal is seasonably filed, the final order of
confirmation is not entered, the equity of redemption will still continue to
run. It will not be interrupted until the 2nd judgment is entered. If 2nd final
order is entered, that will not mark the end of the proceedings. That will
only mark the beginning of the 3rd stage.

Q: Arlene borrowed P1 million from GAP Bank (GAP) secured by the

titled land of her friend Gretchen who, however, did not assume
personal liability for the loan. Arlene defaulted and GAP filed an action
for judicial foreclosure of the real estate mortgage impleading Arlene
and Gretchen as defendants. The court rendered judgment directing
Arlene to pay the outstanding account of P1.5 million (principal plus
interest) to GAP. No appeal was taken by Arlene. Arlene failed to pay
the judgment debt within the period specified in the decision. At the
foreclosure sale, the land was sold to GAP for P1.2 million. The sale
was confirmed by the court, and the confirmation of the sale was
registered with the Registry of Deeds on January 5, 2002.

THIRD STAGE
Deficiency Judgment
If the proceeds of the auction sale are not enough to pay off the
indebtedness, the court will be determining if there is any deficiency and
issue another final order authorizing the recovery of the deficiency.

On January 10, 2003, GAP filed an ex-parte motion with the court for
the issuance of a writ of possession to oust Gretchen from the land. It
also filed a deficiency claim for P800,000 against Arlene and Gretchen.
The deficiency claim was opposed by Arlene and Gretchen.

The recovery of the deficiency will be governed by Rule 39, because the
property/collateral has already been sold at public auction. We are going to
apply, for purposes of recovery of deficiency, execution of judgment. The
recovery of deficiency is the third final order. If there is no satisfaction of
the deficiency through voluntary payment, the foreclosing mortgagee will
have to avail of Rule 39. He can move for the issuance of a writ of execution.
But in that 3rd stage, do not forget that the only one who is liable now is the
debtor. The mortgagor will not be liable for any deficiency, because the
mortgagor is not the debtor. The mortgagor is liable only to the extent of
the value of his collateral. He cannot be held personally liable for the value
of the deficiency, unless he makes himself solidarily liable together with the
debtor. So in the recovery of deficiency, only the principal debtor is held
liable, but not the mortgagor of the property.
Since we are going to apply Rule 39, there will be a levy on execution of
properties of the debtor. If these are sold at public auction, there will be
another round of legal redemption, 1 year from registration of the
certificate of sale in the RoD, but not because of the foreclosure, but because
of the issuance of the foreclosure court of a writ of execution.
Q: What is deficiency judgment?
A: It is the judgment rendered by the court holding the defendant liable for
any unpaid balance due to the mortgagee if the proceeds from the
foreclosure sale do not satisfy the entire debt.
Q: What are the instances when the court cannot render deficiency
judgment?
A: where the debtor-mortgagor is a non-resident and who at the time of the
filing of the action for foreclosure and during the pendency of the
proceedings was outside the Philippines, then it is not procedurally feasible.
It is by nature in personam and jurisdiction over the person is mandatory.
In one case decided by the SC, the debtor secured his indebtedness
with a real estate mortgage to his own property. The
lender/mortgagee obligated the debtor to issue post-dated checks for
the payment of the obligation. The mortgagees filed criminal cases
since the checks he got from the mortgagor were dishonored upon
presentation. During the pendency of the criminal cases, since the
principal obligation remained unpaid, the mortgagee availed of the
special civil action for judicial foreclosure of mortgage of the
mortgagors property. The mortgagor, previously summoned in the

1. Resolve the motion for the issuance of a writ of possession.

2. Resolve the deficiency claim of the bank.
A:
1. In judicial foreclosure by banks such as GAP, the mortgagor or debtor
whose real property has been sold on foreclosure has the right to
redeem the property within 1 year after the sale (or registration of the
sale). However, under Sec. 47 of the General Banking Law of 2000, the
purchaser at the auction sale has the right to obtain a writ of
possession after the finality of the order confirming sale. The motion
for writ of possession, however, cannot be filed ex parte. There must
be a notice of hearing.
2. The deficiency claim of the bank may be enforced against the
mortgage debtor Arlene, but it cannot be enforced against Gretchen,
the owner of the mortgaged property, who did not assume personal
liability of the loan. (2003 Bar Question)

INSTANCES WHEN COURT CANNOT RENDER DEFICIENCY JUDGMENT

Q: What are the instances when the courts cannot render deficiency
judgment?
A: When the:
1. Case is covered by the Recto Law (Art. 1484, NCC);
2. Mortgagor is a non-resident and is not found in the Philippines, unless
there is attachment;
3. Mortgagor dies, the mortgagee may file his claim with the probate court
under Sec. 7, Rule 86; and
4. Mortgagee is a third person but not solidarily liable with the debtor.
If the mortgagee holds a chattel mortgage, he will have to foreclose it under
the provisions of the Chattel Mortgage Law via an extra-judicial foreclosure
of chattel mortgage. The problem of the mortgagee in a chattel mortgage is
similar to that of a mortgagee in a real estate mortgage. In mortgage
arrangements, the collateral is usually left to the possession of the
mortgagor. In real estate mortgage, mortgagor continues to be in
possession of the real property. In a chattel mortgage, chattel is retained by
mortgagor. (If mortgagor loses possession of the personal property, the
contract will not remain a contract of mortgage, but one of pledge.) With
respect to real estate mortgage, the possession of the collateral by debtor
does not give much of a problem. Mortgagee, if he is the highest bidder, can
ask for writ of possession after the auction sale. The problem by the

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mortgagee in a chattel mortgage is that the personal property must be

in his possession before he can extra-judicially sell the chattel subject
to the mortgage. Mortgagees in a chattel mortgage usually resort to
court action by filing a complaint for replevin and avail of the
provisional remedy of a warrant of seizure or a writ of replevin. The
court can grant the provisional remedy even before the mortgagor
files an answer. Once the mortgagee gains possession of the chattel, he can
proceed with the process of extra-judicial foreclosure of a chattel mortgage.

Second proceeding the court may appoint commissioners to determine

how the property will be divided among the co-owners.

PARTITION
It is a special civil action which could involve both personal and real
properties unlike judicial foreclosure.

What are the two aspects of partition proceedings?

A:
1. Existence of co-ownership; and
2. Accounting or how to actually partition the property.

A complaint for partition is predicated on the theory that plaintiff and

defendant are co-owners of the properties subject of litigation. The basis of
a complaint of partition is that the plaintiff is allegedly a co-owner of the
property together with other co-owners who are impleaded as defendants.
What is essential in the complaint is that ALL co-owners of the plaintiff
must be impleaded in the case as defendants.
Q: What is partition?
A: It is a process of dividing and assigning property owned in common
among the various co-owners thereof in proportion to their respective
interests in said property. It presupposes the existence of a co-ownership
over a property between two or more persons. The rule allowing partition
originates from a well-known principle embodied in the Civil Code, that no
co-owner shall be obliged to remain the co-ownership. Because of this rule,
he may demand at any time the partition of the property owned in common
(Art. 494).
Note: It is commenced by a complaint. (Sec.1, Rule 69)
Q: What are the requisites of a valid partition?
A:
1. Right to compel the partition;
2. Complaint must state the nature and extent of plaintiff's title and a
description of the real estate of which partition is demanded; and
3. All other persons interested in the property must be joined as defendants
(Sec. 1, Rule 69)
Who may file and who should be made defendants?
A: The action shall be brought by the person who has a right to compel the
partition of real estate (Sec. 1, Rule 69) or of an estate composed of personal
property, or both real and personal property (Sec. 13, Rule 69). The plaintiff
is a person who is supposed to be a co-owner of the property or estate
sought to be partitioned. The defendants are all the co-owners.
SC said that all co-owners are indispensable parties. Even if one is left out,
the judgment of partition will never become final and executory. So, all of
the co-owners MUST be impleaded.
Q: What is the effect of non-inclusion of a co-owner in an action for
partition?
A:
1. Before judgment not a ground for a motion to dismiss. The remedy is to
file a motion to include the party.
2. After judgment makes the judgment therein void because co-owners are
indispensable parties.
Note: Creditors or assignees of co-owners may intervene and object to a
partition affected without their concurrence. But they cannot impugn a
partition already executed unless there has been fraud or in case it was
made notwithstanding a formal opposition presented to prevent it. (Sec. 12,
Rule 69)
Can co-owners agree among themselves to partition without going to
court?
Yes. If they were able to agree among themselves, then they do not need to
go to court anymore. The only time they go to court is the time when they
cannot agree in the partition. But even if they cannot agree at the start, and
therefor there is now a complaint for partition now filed in court, during the
pendency of the case, they can file agree voluntarily on how to partition that
property. And if they want, they can submit the agreement of partition to
the court. If the court approves the agreement of partition, that will be a
decision on the merits by the court. It is a partition in the form of a
compromise agreement duly approved by the court. So even during the
pendency of the case, there nothing to prevent the plaintiff and the
defendants from entering voluntarily into a voluntary partition. They may
not allow the court to decide how the property will be divided.
But if the parties insist in partition to be done by the court, it will involve a
2-stage proceeding.
Partition is a two-stage proceeding.
First proceeding the court will issue an order for partition,

Page 80 of 103

There could be a third stage if there is no agreement on the system of

accounting for the properties; the court will order the co-owner who has
been managing the property to submit his accounting to the court for its
approval, but he furnishes a copy to show how he has spent the income and
how he has kept the income as a fund for the preservation of the property.

Note: During the trial, the court shall determine whether or not the plaintiff
is truly a co-owner and there is co-ownership and that partition is not
legally proscribed, the court will issue an order of partition. It directs the
parties to partition the property by proper instruments of conveyance, if
they agree among themselves.
If they do agree, the court shall then confirm the partition so agreed and
such is to be recorded in the registry of deeds of the place in which the
property is situated (Sec 2, Rule 69). There always exists the possibility that
the parties are unable to agree on the partition. Thus, the next stage is the
appointment of commissioners.
What are the stages in an action for partition which could be the
subject of appeal?
A:
1. Order determining the propriety of the partition
2. Judgment as to the fruits and income of the property
3. Judgment of partition (Riano, Civil Procedure: A Restatement for the Bar, p.
596, 2009 ed.)
ORDER OF PARTITION AND PARTITION BY AGREEMENT
Q: What is an order of partition?
A: The order of partition is one that directs the parties or co-owners to
partition the property
Q: When does the court issue the order of partition?
A: During the trial, the court shall determine whether or not the plaintiff is
truly a co-owner of the property, that there is indeed a co-ownership among
the parties, and that a partition is not legally proscribed thus may be
allowed. If the court so finds that the facts are such that a partition would
be in order, and that the plaintiff has a right to demand partition, the court
will issue an order of partition.
Note: The court shall order the partition of the property among all the
parties in interest, if after trial it finds that the plaintiff has the right to
partition (Sec. 2, Rule 69). It was held that this order of partition including
an order directing an accounting is final and not interlocutory and hence,
appealable; thus, revoking previous contrary rulings on the matter. A final
order decreeing partition and accounting may be appealed by any party
aggrieved thereby.
When is partition by agreement proper?
A: The parties may make the partition among themselves by proper
instruments of conveyance, if they agree among themselves. If they do
agree, the court shall then confirm the partition so agreed upon by all of 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 (Sec. 2, Rule 69).cc
If you happen to read the provisions in the NCC on co-ownership, it would
seem that if there is a complaint for partition filed by one co-owner against
the other co-owners, it seems the other co-owners cannot set up a very
meritorious defense. When one of the co-owners wants to leave, that is a
right given him by substantive law. Nobody can stop him from leaving the
co-ownership.
In one recent case, the SC said that here could be a good defense in a
complaint for partition. Even if the court finds property is co-owned, and
one co-owner decides to leave, the court cannot simply issue a decision in
favor of the plaintiff/co-owner that will lead to the dissolution of the coownership. SC cited the provision in the Family Code citing Article 159,
which substantially says that if there are co-owners of a property by reason
of their right to inheritance from a predecessor in interest, and one of them
is a minor residing in the property, the court cannot subject the property to
partition and the co-ownership cannot be dissolved until the minor shall be
capacitated. That would be a good defense in a complaint for partition.
FC Art. 159. The family home shall continue despite the
death of one or both spouses or of the unmarried head of
the family for a period of ten years or for as long as there is
a minor beneficiary, and the heirs cannot partition the same
unless the court finds compelling reasons therefor. This rule

shall apply regardless of whoever owns the property or

constituted the family home.
I suggest that you read provisions of the NCC on the propriety of a partition
among co-heirs if one of them is a minor who is residing in the property
owned in common. It seems that the co-ownership shall continue to exist
for 10 years if there is a minor residing in that property. That property
cannot be simply be ordered to be divided by the court, even if there is a
complaint for partition.
NCC Articles related to partition among heirs Art. 238. Upon the death of
the person who has set up the family home, the same shall continue, unless
he desired otherwise in his will. The heirs cannot ask for its partition
during the first ten years following the death of the person
constituting the same, unless the court finds powerful reasons
therefor.
Art. 494. No co-owner shall be obliged to remain in the co-ownership. Each
co-owner may demand at any time the partition of the thing owned in
common, insofar as his share is concerned.
Nevertheless, an agreement to keep the thing undivided for a certain
period of time, not exceeding ten years, shall be valid. This term may be
extended by a new agreement.
A donor or testator may prohibit partition for a period which shall not
exceed twenty years.
Neither shall there be any partition when it is prohibited by law.
No prescription shall run in favor of a co-owner or co-heir against his coowners or co-heirs so long as he expressly or impliedly recognizes the coownership.
SECTION 6. - Partition and Distribution of the Estate
SUBSECTION 1. - Partition
Art. 1078. Where there are two or more heirs, the whole estate of the
decedent is, before its partition, owned in common by such heirs, subject to
the payment of debts of the deceased. (n)
Art. 1081. A person may, by an act inter vivos or mortis causa, entrust the
mere power to make the partition after his death to any person who is not
one of the co-heirs.
The provisions of this and of the preceding article shall be observed even
should there be among the co-heirs a minor or a person subject to
guardianship; but the mandatory, in such case, shall make an inventory of
the property of the estate, after notifying the co-heirs, the creditors, and the
legatees or devisees.
Art. 1082. Every act which is intended to put an end to indivision among coheirs and legatees or devisees is deemed to be a partition, although it
should purport to be a sale, and exchange, a compromise, or any other
transaction.
Art. 1083. Every co-heir has a right to demand the division of the estate
unless the testator should have expressly forbidden its partition, in which
case the period of indivision shall not exceed twenty years as provided
in article 494. This power of the testator to prohibit division applies to the
legitime.
Even though forbidden by the testator, the co-ownership terminates when
any of the causes for which partnership is dissolved takes place, or when
the court finds for compelling reasons that division should be ordered,
upon petition of one of the co-heirs.
Art. 1084. Voluntary heirs upon whom some condition has been
imposed cannot demand a partition until the condition has been
fulfilled; but the other co-heirs may demand it by giving sufficient
security for the rights which the former may have in case the
condition should be complied with, and until it is known that the
condition has not been fulfilled or can never be complied with, the
partition shall be understood to be provisional.
FC Art. 159. The family home shall continue despite the death of one or both
spouses or of the unmarried head of the family for a period of ten years or
for as long as there is a minor beneficiary, and the heirs cannot partition
the same unless the court finds compelling reasons therefor. This rule shall
apply regardless of whoever owns the property or constituted the family
home.
Note: Family Code is a subsequent law, hence the limit is 10 years.
Unlawful Detainer and Forcible Entry (Rule 70)
Read NCC articles on lease (especially those relevant to UD)

LEASE
Art. 1669. If the lease was made for a determinate time, it ceases upon the
day fixed, without the need of a demand.
Art. 1670. If at the end of the contract the lessee should continue
enjoying the thing leased for fifteen days with the acquiescence of the
lessor, and unless a notice to the contrary by either party has
previously been given, it is understood that there is an implied new
lease, not for the period of the original contract, but for the time
established in Articles 1682 and 1687. The other terms of the original
contract shall be revived.
Art. 1671. If the lessee continues enjoying the thing after the
expiration of the contract, over the lessor's objection, the former shall
be subject to the responsibilities of a possessor in bad faith.
Art. 1672. In case of an implied new lease, the obligations contracted by a
third person for the security of the principal contract shall cease with
respect to the new lease.
Art. 1673. The lessor may judicially eject the lessee for any of the following
causes:
(1) When the period agreed upon, or that which is fixed for the duration of
leases under Articles 1682 and 1687, has expired;
(2) Lack of payment of the price stipulated;
(3) Violation of any of the conditions agreed upon in the contract;
(4) When the lessee devotes the thing leased to any use or service not
stipulated which causes the deterioration thereof; or if he does not observe
the requirement in No. 2 of Article 1657, as regards the use thereof.
The ejectment of tenants of agricultural lands is governed by special laws.
Art. 1674. In ejectment cases where an appeal is taken the remedy granted
in Article 539, second paragraph, shall also apply, if the higher court is
satisfied that the lessee's appeal is frivolous or dilatory, or that the lessor's
appeal is prima facie meritorious. The period of ten days referred to in said
article shall be counted from the time the appeal is perfected.
Art. 1675. Except in cases stated in Article 1673, the lessee shall have a
right to make use of the periods established in Articles 1682 and 1687.
Art. 1147. The following actions must be filed within one year:
(1) For forcible entry and detainer;
(2) For defamation.
Rule 70 FORCIBLE ENTRY (FE) AND UNLAWFUL DETAINER (UD)
Rule 70 contains 2 special civil actions which are different from one
another, FE and UD.
FE and UD are special civil actions cognizable exclusively in the MTC
following summary procedures. The provisions of Rule 79 are practically a
reproduction of summary procedures. They are initiated by a complaint
filed in the MTC.
Both are real action, but we do not follow BP 129 which uses the assessed
value to determine jurisdiction. Under BP 129, real actions are cognizable
by an MTC or an RTC depending upon the assessed value of the real
property involved. FE and UD are cognizable by an MTC regardless of the
assessed value of the property or other collateral issues that could be raised
like unpaid rentals or recovery of damages. So if there is a complaint for
unlawful detainer with a claim for back rentals amounting to 1M, the case is
still cognizable by the MTC. In certain instances, the landlord/land owner is
interested only in the recovery of the back rentals. And if he decides to file a
complaint solely for recovery of the 1M back rentals, then the case is
cognizable in the RTC, since the case is no longer one for unlawful detainer
UD, just like FE, is for the recovery of physical possession of property. The
recovery of money is only an incident to the principal action.
Q: What is forcible entry?
A: It is entry effected by force, intimidation, threat, strategy, or stealth; the
action is to recover possession founded upon illegal possession from the
beginning.
Note: It is commenced by a verified complaint. (Sec. 1)
Q: What are the requisites of a valid forcible entry?
A:
1. A person is deprived of possession of any land or building by force,
intimidation, threat, strategy, or stealth; and
2. Action is brought within 1 year from the unlawful deprivation. (Sec. 1)
Q: What are the questions to be resolved in an action for forcible
entry?
A:
1. Who has actual possession over the real property;

Page 81 of 103

2. Was the possessor ousted therefrom within one year from the filing of
the complaint by force, intimidation, strategy, threat or stealth; and
3. Does the plaintiff ask for the restoration of his possession (Dizon v.
Concina, G.R. No. 23756, Dec. 27, 1969)

Usually in UD, the contract involved is a contract of lease. There is a land

lord-tenant relationship, the tenant does not pay rental, there is a written
demand to vacate and to pay back rentals, and if tenant fails to pay, then
there could be a complaint for UD.

Q: What is unlawful detainer?

A: It is unlawful detention by a person who has acquired possession
rightfully, but who detains the property after the right to keep possession
has ended.

But, these remedies appear to have been modified by the decisions of the
SC. For instance, in a past case, about 30 years ago, there was a case
involving a contract of lease on a commercial property. There was a
stipulation in the contract which states that if the tenant does not pay
rentals, for instance, 3 months, the land lord will send a letter demanding
that the tenant must vacate the property and pay the back rentals for 3
months. If the tenant still failed to pay, the land lord can extra-judicially
take over the property. Under that stipulation, the land lord does not have
to go to court in order to recover physical possession of the property. What
the land lord will do is to go to the premises, throw out the things of the
tenant, change the locks of the doors of the property, and accept a new
tenant. When the tenant challenged the validity of the stipulation in the SC,
the SC at that time held that the stipulation was valid. The SC held that the
contract was one of lease with a resolutory condition. When the tenant fails
to pay, he loses his right to possess the property.

Note: It is commenced by a verified complaint. (Sec. 1)

Q: What are the requisites of a valid unlawful detainer?
A:
1. Possession of any land or building is unlawfully withheld from a lessor,
vendor, vendee, or other person after the expiration or termination of the
right to hold possession by virtue of any contract express or implied;
2. Action is brought within 1 year after such unlawful deprivation or
withholding of possession; and
3. Demand to pay or comply with the conditions of the lease and to vacate is
made upon the lessee. (Sec. 1)
Q: Is formal contract a prerequisite in unlawful detainer?
A: The existence of a formal contract is not necessary in unlawful detainer.
Even if there is no formal contract between the parties, there can still be an
unlawful detainer because implied contracts are covered by ejectment
proceedings. Possession by tolerance creates an implied promise to vacate
the premises upon the demand of the owner (Peran v. CFI of Sorsogon, G.R.
No. 57259, Oct. 13, 1983).
Q: Does the amount of rents and damages prayed for in an action for
forcible entry and unlawful detainer affect the jurisdiction of the
courts?
A: No. The amount of rents and damages claimed does not affect
jurisdiction of the MTCs because the same are only incidental or accessory
to the main action (Lao SengHian v. Lopez, G.R. No. L-1950, May 16, 1949).
Note: If only rents or damages are claimed in an ordinary action, the action
is personal and the amount claimed determines whether it falls within the
jurisdiction of the RTC or the MTC.
Q: Distinguish forcible entry from unlawful detainer.
A:
Forcible Entry (Detentacion)
Unlawful Detainer (Desahucio)
Possession of the land by the Possession is inceptively lawful but
defendant is unlawful from the it becomes illegal by reason of the
beginning as he acquires possession termination of his right to the
by force, intimidation, strategy, possession of the property under
threat
his contract with the plaintiff.
or stealth.
No previous demand for the Demand is jurisdictional if the
defendant to vacate the premises is ground is non-payment of rentals or
necessary.
failure to comply with the lease
contract.
The plaintiff must prove that he was The plaintiff need not have been in
in prior physical possession of the prior physical possession.
premises until he was deprived
thereof by the defendant.
The 1 year period is generally Period is counted from the date of
counted from the date of actual last demand or last letter of
entry on the land.
demand.
DISTINGUISHED
FROM
ACCION
PUBLICIANA
AND
ACCION
REINVINDICATORIA
Q: What are the possessory actions on real property?
A:
Accion Interdictal
Accion Publiciana
Accion
Reinvindicatoria
Summary action for A plenary action for An action for the
the
recovery
of the recovery of the recovery
of
physical
possession real
right
of ownership,
which
where
the possession when the necessarily includes
dispossession has not dispossession
has the
recovery
of
lasted for more than lasted for more than possession.
1 year.
1 year.
All cases of forcible RTC has jurisdiction if RTC has jurisdiction if
entry and unlawful the value of the the value of the
detainer irrespective property
exceeds property
exceeds
of the amount of P20,000 or P50,000 in P20,000 or P50,000 in
damages or unpaid Metro Manila.
Metro Manila.
rentals sought to be MTC has jurisdiction if MTC has jurisdiction if
recovered should be the value of the the value of the
brought to the MTC.
property does not property does not
exceed the above exceed the above
amounts.
amounts.

Page 82 of 103

The latest decision involving this kind of stipulation in a contract of lease

was last 2009/10, one of the parties was By the Bay, Inc. It also involved a
lease of a commercial property, with essentially the same set of facts
involving the same stipulation, that the land lord can take over the property
extra-judicially if tenant failed to pay upon written demand to pay back
rentals and vacate. The SC affirmed it past decision, that the lease contract
is one with a resolutory condition.
As of now, it seems that if you are lawyering for the land lord, and you want
to protect the land lord without a need to go to court file a case for unlawful
detainer, all you have to do is to incorporate a stipulation in the contract of
lease authorizing the land lord to take over extra-judicially the possession
of the property. SC said this is a valid stipulation, there is nothing wrong
with it. Under our system, a contract is the law between the parties. There is
nothing wrong if the tenant agrees in a contract of lease to be ejected
without a court order by virtue of a written stipulation in the contract of
lease. These contracts have been accepted as valid by the SC. So, such
stipulation is a valid stipulation in a lease contract.
But in the event that the contract of lease does not contain such stipulation,
if the tenant has failed to pay rentals for several months, the only recourse
of the land lord is to file a complaint before the MTC for unlawful detainer.
Supposing the land lord of a contract without that stipulation
physically enters the property, ejects the tenant, throws out the things
of the tenant and starts to occupy the property. The land lord is now in
possession of the property. Can the tenant file a case against the land
lord for forcible entry?
Yes. When the land lord forces his way into the rented property (subject to
a contract of lease without the resolutory condition), and the land lord
acquired the property through force, intimidation, strategy or stealth, that
is forcible entry.
Is there anything improper if the tenant files a case for unlawful
detainer or forcible entry against the owner of the property?
There is nothing wrong from the legal point of view, because what is
involved in unlawful detainer or forcible entry is not ownership, it is
physical possession of the property. So the defendant in a case for FE or UD
may be the owner of the property when he is in unlawful possession of his
own property, depending upon the circumstances of the case.
What makes FA and UD special as a special civil action?
FE and UD are governed by summary procedures. But that fact alone is not
the most significant reason why FE and UD are characterized as special civil
actions. It is due to the provision of immediate enforcement of a decision
in favor of the plaintiff under Sec. 19 Rule 70 that makes FE and UD a
special civil action. The decision is immediately executory, although it is
appealable. But even if appealed, the decision is immediately
executory. The appeal shall not stop the court in performing in its
ministerial duty to execute the decision in a case of FE or UD. The
execution of the decision here is a matter of right on the part of the
plaintiff, and not a matter of discretion of the court.
Why the radical change from the procedural rules that we had in
ordinary civil actions?
This is because of the provision found in Section 4 Rule 39. Under Rule 39,
the general principle is that we cannot execute as a matter of right a
judgment that has not been entered. Generally, what can be executed as a
matter of right is a judgment duly entered.
There is an exception to this general rule in Section 4 Rule 39, rendering the
judgment as executory as a matter of right, although appealable. The first
sentence in Section 4 states: Judgments in actions for injunction,
receivership, accounting and support, and such other judgments as are now or
may hereafter be declared to be immediately executory, shall be enforceable
after their rendition and shall not be stayed by an appeal taken therefrom,
unless otherwise ordered by the trial court. There are very few judgments

that are executory as a matter of right, and the phrase and such other
judgments as are now or may hereafter be declared to be immediately
executory includes FE and UD.
SEC. 4. Judgments not stayed by appeal.Judgments in actions
for injunction, receivership, accounting and support, and
such other judgments as are now or may hereafter be
declared to be immediately executory, shall be enforceable
after their rendition and shall not be stayed by an appeal taken
therefrom, unless otherwise ordered by the trial court. On
appeal therefrom, the appellate court in its discretion may make
an order suspending, modifying, restoring or granting the
injunction, receivership, accounting, or award of support.
The stay of execution shall be upon such terms as to bond or
otherwise as may be considered proper for the security or
protection of the rights of the adverse party.
The fact is that a decision in favor of the plaintiff is immediately
executory as a matter of right, although the aggrieved defendant could
immediately appeal the said decision, is there no contradiction in
terms? Why?
There is no contradiction. This is because the Rules do not say that simply
because the defendant has appealed from the judgment, the MTC cannot go
on with execution of its judgment. Thus, although appealable, the decision is
immediately executed.
If defendant does not want to be evicted right away on appeal, Rule 70
requires the defendant can file supersideas bond duly approved by the MTC
[current rentals earned, referring to the preceding month, according to the
contract of lease or the terms of the decision, plus cost of suit] to the cashier
of the RTC. While the case is on appeal, defendant should keep on
depositing said bond (monthly basis if rent is paid monthly according to the
contract of lease). Failure to do so, he will be evicted, but the appeal
continues.
How is the execution of judgment stayed?
A: Defendant must take the following steps to stay the execution of the
judgment:
1. Perfect an appeal;
2. File a supersideas 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 (Sec. 19,
Rule 70).
Q: When is demand necessary?
A: Unless there exists a stipulation to the contrary, an unlawful detainer
case shall be commenced only after the demand to pay or comply with the
conditions of the lease and to vacate is made upon the lessee (Sec. 2). The
requirement for a demand implies that the mere failure of the occupant to
pay rentals or his failure to comply with the conditions of the lease does not
ipso facto render his possession of the premises unlawful. It is the failure to
comply with the demand that vests upon the lessor a cause of action.
Q: In what form should the demand be made?
A: The demand may be in the form of a written notice served upon the
person found in the premises. The demand may also be made by posting a
written notice on the premises if no person can be found thereon (Sec. 2). It
has been ruled, however, that the demand upon a tenant may be oral
(Jakihaca vs. Aquino, 181 SCRA 67). Sufficient evidence must be adduced to
show that there was indeed a demand like testimonies from disinterested
and unbiased witnesses.
The RTC is the appellate court in FE and UD cases. If the RTC decides
against appellant/tenant and the tenant appealed in the CA, what can
be done to prevent eviction on appeal to the CA under Rule 65?
The filing of a supersideas bond cannot be applicable this time. This process
will apply if the decision appealed upon is a decision of the MTC. If the RTC
decides in favor of the land lord, the judgment will still be executed as a
matter of right, and eviction can be had. The only way to prevent the
immediate eviction of the defendant tenant on appeal to the CA is to
apply for a TRO or writ of preliminary injunction in the CA against the
eviction of the tenant, subject to filing of a bond if required by the CA.
There are mechanisms resorted to by a tenant in order to delay an action to
recover possession of property
What can the tenant file to protect his right to possess?
~In case of UD, the tenant can file a case for reconveyance or reversion of
tenanted property in the RTC
~He can also file a case for Quieting of Title in the RTC
~Complaint for Recovery of Possession in the RTC
The tenant filed a case for reconveyance of the property subject to the
lease in the RTC. During the pendency of the case, the land lord filed a

case for FE or UD to recover of possession of the property subject to

the lease. The tenant asked the RTC to issue a writ of injunction or
TRO against the MTC, in order to prevent it from trying the case for FE
or UD. Is this allowed?
No. This is a settled issue. The tenant shall not be allowed to cause the
injunction of the case in the MTC. Although these 2 cases filed in different
courts involve the same property, they do not involve the same issue. FE
and UD involve the issue of physical possession of the property. In
reconveyance or quieting of title, the issue is also possession, but it is what
is called in the NCC as a real right of possession, not mere physical
possession of the property. The SC had made it very clear that we can have
a case for FE or UD filed by the land lord against the tenant pending in the
MTC, and at the same time, a case for reconveyance to reacquire the same
property subject to the lease pending before the RTC. SC held that there is
no litis pendencia here. Also, RTC cannot enjoin MTC from trying the
complaint for FE or UD, as MTC has exclusive jurisdiction over cases of FE
or UD.
Can the court grant injunction while the case is pending?
A: The court may grant preliminary injunction, in accordance with the
provisions of Rule 58, to prevent the defendant from committing further
acts of dispossession against the plaintiff. A possessor deprived of his
possession through forcible entry or unlawful detainer may, within five (5)
days from the filing of the complaint, present a motion in the action for
forcible entry or unlawful detainer for the issuance of a writ of preliminary
mandatory injunction to restore him in his possession. The court shall
decide the motion within thirty (30) days from the filing thereof (Sec. 15,
Rule 70).
Note: Prior demand to vacate and to pay is jurisdictional in unlawful
detainer, but not in all cases.
If the tenant had failed to pay rents for 3 months, and the land lord
immediately filed a case for UD without a prior demand to vacate and to
pay, the MTC does not acquire jurisdiction over the case. A demand to
vacate and to pay is jurisdictional in FE or UD. But not in all cases.
IMPLIED NEW LEASE
In the NCC there are provisions governing the relationship of land lord
and tenant once the lease has expired. If the tenant had remained in
unlawful possession by tenant was retained after 15 days from the end of
the lease, there is an implied new lease, but such implied new lease will be
on a month-to-month, day-to-day or quarterly basis, depending on the
previous contract of lease as to period of payment.
Art. 1670. If at the end of the contract the lessee should
continue enjoying the thing leased for fifteen days with the
acquiescence of the lessor, and unless a notice to the
contrary by either party has previously been given, it is
understood that there is an implied new lease, not for the
period of the original contract, but for the time established
in Articles 1682 and 1687. The other terms of the original
contract shall be revived.
At the end of the lease contract until the 15th day, the tenant is deemed to
be in unlawful possession of the leased property. There is no need for the
land lord to send a demand to vacate to make the tenant an unlawful
possessor, as he became so from the operation of the NCC. Within the 15day period, the land lord can properly file a case for unlawful detainer
against the tenant by virtue of the termination of the lease. The NCC itself
calls the tenant as an unlawful possessor if he does not surrender the
property after the lease has already terminated. The NCC has a caveat. If the
tenant, after the termination of the lease, remains in possession of the
property for the next 30 days from the termination of the lease, and there is
no action filed by the land lord in court, the unlawful possession by the
tenant will be reconverted to a lawful possession because of the implied
new lease. The implied new lease is not for the same period stipulated in
the old contract of lease. It will be on a month-to-month, day-to-day or
quarterly basis, depending on the previous contract of lease as to period of
payment
Propriety of the awarding of damages in FE and UD.
There is a conflict in jurisprudence as to extent of damages that could be
awarded. The Section 1 of Rule 70 authorizes awarding of damages, but it
does not place a limit on the kind of damages to be awarded. In Sec. 17,
there is a clear statement as to award of damages being a reasonable
amount as compensation for the use of the property if no amount is
stipulated in the lease contract.
SECTION 1. Who may institute proceedings, and when.
Subject to the provisions of the next succeeding section, a
person deprived of the possession of any land or building by
force, intimidation, threat, strategy, or stealth, or a lessor,
vendor, vendee, or other person against whom the possession of
any land or building is unlawfully withheld after the expiration
or termination of the right to hold possession, by virtue of any
contract, express or implied, or the legal representatives or

Page 83 of 103

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 posses-sion, or any person or
persons claiming under them, for the restitution of such
possession, together with damages and costs.
SEC. 17. Judgment.If after trial the court finds that the
allegations of the complaint are true, it shall render judgment in
favor of the plaintiff for the restitution of the premises, the sum
justly due as arrears of rent or as reasonable compensation
for the use and occupation of the premises, attorneys fees
and costs. If it finds that said allegations are not true, it shall
render judgment for the defendant to recover his costs. If a
counterclaim is established, the court shall render judgment for
the sum found in arrears from either party and award costs as
justice requires.
There is a decision by the SC which held that Section 1 should be
implemented if fully proven in court. Moral damages, temperate damages,
as well as other forms of damages may be awarded beside interest and the
actual rent.
The greater number of SC decisions adhere to Section 17 Rule 70. There is a
limit as to the award of damages that could be had in MTC, and the MTC had
always followed strictly the provisions of Section 17. The award of damages
is based on the amount stated in the contract as rentals or if none, a
reasonable amount for the use of the property during the tenantship.
In what instances may the court resolve issue of ownership?
A: When the defendant raises the issue of ownership, the court may resolve
the issue of ownership only under the following conditions:
(a) When the issue of possession cannot be resolved without resolving the
issue of ownership; and
(b) The issue of ownership shall be resolved only to determine the issue of
possession (Sec. 16).
Note: 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 vs.
Dimatulac, 401 SCRA 742; Perez vs. Cruz, 404 SCRA 487).If the defendant
raises the question of ownership and the issue of possession cannot be
resolved without deciding the question of ownership, the issue of
ownership shall be resolved only to determine the issue of possession (Sec.
3, RA 7691).
Rule 71 CONTEMPT
What is contempt?
A: It is a defiance of the authority, justice or dignity of the court; such
conduct as tends to bring the authority and administration of the law into
disrespect or to interfere with, or prejudice litigant or their witnesses
during litigation (Halili v. CIR, G.R. No. L-24864, Nov. 19, 1985)
Note: It is commenced by a verified petition with supporting particulars
and certified true copies of documents or papers involved therein (Sec. 4).
Q: What are the kinds of contempt?
A:
1. Direct or indirect, according to the manner of commission.
2. Civil or Criminal, depending on the nature and effect of the contemptuous
act.
Q: Distinguish direct from indirect contempt?
A:
Direct Contempt
Indirect Contempt
Committed in the presence of or so Not committed in the presence of
near a court.
the court.
Summary in nature
Punished after being charged and
heard
If committed against:
IF COMMITTED AGAINST:
1. RTC fine not exceeding P2,000 1. RTC FINE NOT EXCEEDING
or imprisonment not exceeding 10 P30,000 OR IMPRISONMENT NOT
days or both.
EXCEEDING 6 MONTHS OR BOTH
2. MTC fine not exceeding P200 or 2. MTC fine not exceeding P5,000
imprisonment not exceeding 1 day, or imprisonment not exceeding 1
or both.
month or both.
Remedy: Certiorari or prohibition Remedy: Appeal (by notice of
(or you could follow the old appeal)
jurisprudence, file a petition for
habeas corpus on the ground that
the confinement is illegal. Dean
Jara)
AKA Contempt in facie curiae (in AKA Constructive contempt
front of the judge)

Page 84 of 103

Distinguish criminal contempt from civil contempt.

A:
Criminal Contempt
Civil Contempt
Punitive in nature
Remedial in nature
Purpose is to preserve the courts Purpose is to provide a remedy for
authority
and
to
punish an injured suitor and to coerce
disobedience of its orders
compliance with an order for the
preservation of the rights of private
persons
Intent is necessary
Intent is not necessary
State is the real prosecutor
Instituted by the aggrieved party or
his successor or someone who has
pecuniary interest in the right to be
protected
Proof required is proof beyond Proof required is more than mere
reasonable doubt.
preponderance of evidence
If accused is acquitted, there can be If judgment is for respondent, there
no appeal.
can be an appeal
Q: What is the purpose of the power to contempt?
A: The reason for the power to punish for contempt is that respect of the
courts guarantees the stability of their institution. Without such guarantee,
said institution would be resting on shaky foundation (Cornejovs.Tan, 85
Phil. 772).
Q: What is the nature of contempt power?
A: The power to punish for contempt is inherent in all courts; its existence is
essential to the preservation of order in judicial proceedings and to the
enforcement of judgments, orders and mandates of the courts, and,
consequently, to the due administration of justice.
Q: What are the dual aspects on the power to punish contempt?
A:
1. Primarily, the proper punishment of the guilty party for his disrespect to
the courts; and
2. Secondarily, his compulsory performance of some act or duty required of
him by the court and which he refuses to perform.
Contempt is the one that we can consider as a special civil action for
the following reasons:
Contempt is a special civil action where one can be sent to jail whereas
the case is civil in character.
There is no need to file a case, especially in direct contempt. In
ordinary cases, if there is no complaint, the contender does not know who
the plaintiff is, and he is appearing before a court before a plaintiff can be
identified. But in direct contempt, it is clear that the plaintiff is the court. A
contender would practically have no chance to win in this instance.
The complainant is the court, and the one who will decide the case is
still the complaining court.
What are the acts which are deemed punishable as indirect contempt?
A:After a charge in writing has been filed, and an opportunity given to the
respondent to comment thereon within such period as may be fixed by the
court and to be heard by himself or counsel, a person guilty of any of the
following acts may be punished for indirect contempt:
1. Misbehavior of an officer of a court in the performance of his
official duties or in his official transactions;
2. 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;
3. 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;
4. Any improper conduct tending, directly or indirectly, to
impede, obstruct, or degrade the administration of justice;
5. Assuming to be an attorney or an officer of a court, and acting
as such without authority;
6. Failure to obey a subpoena duly served;

7. 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 (Sec. 3).
Note: Failure by counsel to inform the court of the death of his client
constitutes indirect contempt within the purview of Sec. 3, Rule 71, since it
constitutes an improper conduct tending to impede the administration of
justice.
Q: How may an action for indirect contempt be commenced?
A:
1. By order or other formal charge by the court requiring the respondent to
show cause why he should not be punished for contempt (motu propio); or
(Show cause order)
2. By a verified petition with supporting particulars and certified true
copies of the necessary documents and papers (independent action) (Sec.
4). (Separate petition)
Note: The first procedure applies only when the indirect contempt is
committed against a court or judge possessed and clothed with contempt
powers.
The second mode applies if the contemptuous act was committed not
against a court or a judicial officer with authority to punish contemptuous
acts. (Nazareno v. Barnes, G.R. No. L-59072, Apr. 25, 1984)
The court does not declare the respondent in default since the proceeding
partakes the nature of a criminal prosecution (Fuentes v. Leviste, G.R. No. L47363, Oct. 28, 1982).
Indirect contempt is initiated through:
1. show cause order
2. independent action, which the court may consolidate with the main case
If there is a separate petition for indirect contempt filed, although it arises
out of a pending case or is related to a pending case, the petition is still an
independent case, and what the court usually does is to consolidate the
pending case with the petition to cite respondent in contempt of court.
Penalty in Contempt Cases
The penalty may be payment of fine or imprisonment.
Q: What are the procedural requisites before the accused may be
punished for indirect contempt?
A:
1. A charge in writing to be filed;
2. An opportunity for the person charged to appear and explain his conduct;
and
3. To be heard by himself or counsel. (Regalado v. Go, G.R. No. 167988, Feb. 6,
2007)
NOTE: The rules on contempt under Rule 71 apply to contempt committed
against persons or entities exercising quasi-judicial functions or in case
there are rules for contempt adopted for such bodies or entities pursuant to
law, Rule 71 shall apply suppletorily (Sec 12, Rule 71)
Because of the nature of direct contempt proceedings where there is no
initiatory proceeding filed, the remedy of the contender is different from
the remedy of the contender in indirect proceedings.
Citation for indirect contempt is not immediately executory, according
to current jurisprudence. That is why there is a remedy provided for in the
Rules
Q: Lawyer Mendoza, counsel for the accused in a criminal case, was
cited for direct contempt by Judge Tagle and was sentenced to 10 days
imprisonment. Lawyer Mendoza was placed in prison immediately.
Lawyer Mendoza manifested his readiness to post a bond and to
appeal the order by certiorari to stay its execution but Judge Tagle
said that the order is immediately executory. Is Judge Tagle correct?
A: No. An order of direct contempt is not immediately executory or
enforceable. The contender must be afforded a reasonable remedy to
extricate or purge himself of the contempt. Under Sec. 2, Rule 71, of the
Rules of Court, a person adjudged in direct contempt by any court may not
appeal therefrom, but may avail himself of the remedies of certiorari or
prohibition. The execution of the judgment shall be suspended pending
resolution of such petition, provided such person files a bond fixed by the
court which rendered the judgment and conditioned that he will abide by
and perform the judgment should the petition be decided against him
(Tiongco v. Judge Salao, A.M. No. RTJ-06-2009, July 27, 2006).
Contenders remedy in indirect contempt is an ordinary appeal as in
criminal cases. In indirect contempt, if contender is found guilty, he has
the right to appeal.
In Direct Contempt, the remedy is Rule 65 or Habeas Corpus.

BP 129 has done away with bond in cases of contempt. But, a bond is still
required to be posted in APPEALING the judgment of contempt in order
to suspend the execution thereof.
What is the remedy against direct contempt and its penalty?
A:
1. The penalty for direct contempt depends upon the court which the act
was committed;
a. 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 2,000 pesos or imprisonment not exceeding 10
days, or both;
b. If the act constituting direct contempt was committed against a
lower court, the penalty is a fine not exceeding 200 pesos or
imprisonment not exceeding one (1) day, or both(Sec. 1);
c. 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.
2. A person adjudged in direct contempt may not appeal therefrom. His
remedy is a petition for certiorari or prohibition (Rule 65) directed
against the court which adjudged him in direct contempt(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.
What is the remedy against indirect contempt and its penalty?
A:
1. The punishment for indirect contempt depends upon the level of the
court against which the act was committed;
(a) 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 30,000 pesos or imprisonment not exceeding 6
months, or both;
(b) Where the act was committed against a lower court, he may be
punished by a fine not exceeding 5,000 pesos 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(Sec. 7);
(c) 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.
(2) 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 (Sec. 11).
Quasi-judicial bodies that have the power to cite persons for indirect
contempt pursuant to Rule 71 of the Rules of Court can only do so by
initiating them in the proper RTC. It is not within their jurisdiction and
competence to decide the indirect contempt cases.
Q: May a non-party be held for contempt?
A: No, unless he is guilty of conspiracy with any one of the parties in
violating the courts orders(DesaEnt., Inc. v. SEC, G.R. No. L-45430, Sept. 30,
1982).
Q: Ray, through Atty. Velasco, filed a complaint for quieting of title
against Chiz. Chiz, however, interposed the defense that the
documents relied upon by Ray and Atty. Velasco were forged and
falsified. Finding that the said documents were indeed forged and
falsified, Judge Victoria cited Ray and Atty. Velasco for direct contempt
and ordered them to serve 10 days of detention at the Municipal Jail.
Ray and Atty. Velasco filed a motion for bail and a motion to lift the
order of arrest. But they were denied outright by Judge Victoria. Is
Judge Victoria correct?
A: No. Direct contempt is a contumacious act done facie curiae and may be
punished summarily without hearing. Indirect or constructive contempt, in
turn, is one perpetrated outside of the sitting of the court.
Here the use of falsified and forged documents is a contumacious act.
However, it constitutes indirect contempt not direct contempt. The
imputed use of a falsified document, more so where the falsity of the
document is not apparent on its face, merely constitutes indirect

Page 85 of 103

contempt, and as such is subject to such defenses as the accused may

raise in the proper proceedings. Thus, following Sec. 3, Rule 71, a
contender may be punished only after a charge in writing has been
filed, and an opportunity has been given to the accused to be heard by
himself and counsel.
Moreover, settled is the rule that a contempt proceeding is not a civil
action, but a separate proceeding of a criminal nature in which the
court exercises limited jurisdiction. Thus, the modes of procedure and
the rules of evidence in contempt proceedings are assimilated as far as
practicable to those adapted to criminal prosecutions. Thus, the judge
erred in declaring summarily that Ray and Atty. Velasco are guilty of direct
contempt and ordering their incarceration. He should have conducted a
hearing with notice to Ray and Atty. Velasco (Judge Espanol v. Formoso, G.R.
No. 150949, June 21, 2007).
CONTEMPT AGAINST QUASI-JUDICIAL BODIES
Q: What is the rule on contempt against quasi-judicial bodies?
A: The rules on contempt apply to contempt committed against
persons or entities exercising quasi-judicial functions or in case there
are rules for contempt adopted for such bodies or entities pursuant to
law, Rule 71 shall apply suppletorily. Quasi-judicial bodies that have the
power to cite persons for indirect contempt can only do so by initiating
them in the proper RTC. It is not within their jurisdiction and
competence to decide the indirect contempt cases. The RTC of the
place where contempt has been committed shall have jurisdiction
over the charges for indirect contempt that may be filed(Sec. 12).
If one was found guilty of contempt, it is possible other laws or Rules may
be applicable. For example, a lawyer may be sanctioned under the Code of
Professional Ethics. Other laws may also apply in certain instances although
contender was not found guilty of contempt.
Relate this to the modification under Rule 65. A lawyer may be cited for
indirect contempt, even if there is no show-cause order, at the discretion of
the court. In Rule 65, under the principle of res ipsa loquitur, the lawyer
who files a patently unmeritorious pleading under Rule 65 can be
cited in indirect contempt, even without a show cause order.
In execution of judgment, Contempt is not a usual recourse to execute a
judgment. But, contempt is the only recourse whenever there is a writ or
process (like a writ of mandamus or prohibition) that is issued by the
court that is subsequently disobeyed by the contender/respondent.
We do not use contempt in Rule 39 when it comes to execution of
judgments for money or delivery of property. But when the judgment is
about issues in special civil actions, the only remedy will be a citation for
contempt.
Q: When shall imprisonment be imposed?
A: 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.
Indefinite incarceration may be resorted to where the attendant
circumstances are such that the non-compliance with the court order
is an utter disregard of the authority of the court which has then no
other recourse but to use its coercive power. When a person or party is
legally and validly required by a court to appear before it for a certain
purpose, and when that requirement is disobeyed, the only remedy left for
the court is to use force to bring the person or party before it.
Note: The punishment is imposed for the benefit of a complainant or a
party to a suit who has been injured aside from the need to compel
performance of the orders or decrees of the court, which the contemnor
refuses to obey although able to do so. In effect, it is within the power of
the person adjudged guilty of contempt to set himself free.
Ordinary Action
To protect or enforce a
right or prevent or
redress a wrong
Involve 2 or more
parties plaintiff and
defendant
Governed by ordinary
rules, supplemented
by special rules
Initiated
by
a
complaint, and parties
respond through an
answer
Heard by courts of
general jurisdiction
Issues or disputes are
stated in the pleadings
of the parties

Page 86 of 103

Special Proceeding
Involves
the
establishment of a
right, status, or fact
May involve only one
party only petitioner

Special Civil Action

Civil Action subject to
specific rules.

Governed by special
rules, supplemented
by ordinary rules
Initiated by a petition
and parties respond
through an opposition

Ordinary rules apply

primarily but subject
to specific rules
Some are initiated by
complaint, while some
are
initiated
by
petition

Heard by courts of
limited jurisdiction
Issues are determined
by law

Involves two or more

parties

Adversarial
Based on a cause of
action

Not adversarial
Not based on a cause
of
action
(except
habeas Corpus)

Some special civil

action have no cause
of action

SPECIAL PROCEEDINGS
Do not rely so much in the enumeration of the special proceedings in our
RoC as some of them are no longer applicable. Like constitution of a family
home, there is no such proceeding now, a family home is constituted now
under the NCC by operation of law. There is no more need for a judicial
declaration to consider a home as a family home. There is also no more
judicial recognition of illegitimate children. This concept has been changed
also by the FC, where recognition takes place by operation of law.
Under the present set up, the rules on adoption incorporates two other
special proceedings. Thus presently, we can file a petition for adoption, plus
a petition for change of name, plus a petition for correction of entry. But the
rule is that if there is a petition for adoption which encompasses tw0 other
proceedings, that petition should also comply with jurisdictional
requirements on change of name and correction of entries of the records of
the local civil registrar.
The 3 most important special proceedings which are often the source of bar
questions, which are asked usually, would be settlement of estates of
deceased persons, habeas corpus (inclusive of Amparo and Habeas Data)
and the adoption.
What makes a proceeding a special proceeding or a special action that
is entertained by the court?
The definition given in the rules is a very clear and simple definition. A
special proceeding is one that is commenced for the purpose of establishing
a right, status or a particular fact. Intrinsic in this definition of special
proceedings therefore is the conclusion that special proceedings generally
are not designed to be adversarial. There is no contest between 2
contending parties. All you have to do is to look for the particular fact or
status or right which the petitioner seeks to establish and to be declared by
the court.
SETTLEMENT OF ESTATES OF DECEASED PERSONS
With respect to settlement of estates in the concept of special proceedings,
we have to go back to Rule 1 to appreciate the meaning of a special
proceeding.
At the end, the conclusion that we derive from this special proceeding is
that there is a person who is dead. The principal fact that is sought to be
established in settlement of estates first is that a person is dead. We cannot
settle the estate of a person who is still alive. But because settlement of
estate usually carries with it the concept of probate of a will, there is some
complication because under the NCC, under substantive law, a will can be
submitted for probate during the lifetime of the testator. So, it is not correct
to assume, that when there is a petition for a probate of a will, the testator
is already dead.
Under substantive law, the testator himself, during his lifetime, can file a
petition in the RTC for the probate of the will. The complication arises
because when it is the testator who files a petition for the probate of his
own will during his lifetime, and that will is admitted to probate, it is
allowed by the RTC, that will be the end of the probate proceedings. There
will be no settlement of estates that will follow. That is the only fact that
needs to be established in a probate of a will while the testator is still alive.
What he seeks from the court is a mere declaration that the will has been
executed in accordance with the formalities of the NCC. When the will is
admitted to probate, where the petitioner is the testator himself, the
admission to probate will mark the end of the special proceedings. No
settlement of estate will follow.
Q: What is probate?
A: Probate is the act of proving before a competent court the due execution
of a will by a person possessed of testamentary capacity, as well as the
approval thereof by said court, (also known as Allowance of Will).
Q: Why is probate necessary?
A: To settle all questions concerning the capacity of the testator and the
proper execution of his will, irrespective of whether its provisions are valid
and enforceable. (Fernandez v. Dimagiba, G.R. No. L-23638, Oct. 12, 1967)
Q: What is the nature of a probate proceeding?
A:
1. IN REM- It is binding upon the whole world.
2. MANDATORY- No will shall pass either real or personal property unless
it is proved and allowed in the proper court.
Note: However, a will may be sustained on the basis of Article
1080 of the NCC which states that, if the testator should make a
partition of his property by an act inter vivos or by will, such

partition shall stand in so far as it does not prejudice the

legitime of the forced heir. (Mang- Oy v. CA, L-27421, 1986)
3. IMPRESCRIPTIBLE- because of the public policy to obey the will of the
testator
4. DOCTRINE OF ESTOPPEL DOES NOT APPLY- the probate of the will is
mandatory. The presentation and probate of the will is required by public
policy. It involves public interest. (Fernandez v. Dimagiba, L- 23638, 1967)
Q: Does the probate court look into the intrinsic validity of the will?
A:
GR: The jurisdiction of probate court is limited to the examination and
resolution of the extrinsic validity of a will.
XPNS: Principle of practical considerations wherein the court may pass
upon the intrinsic validity of the will:
1. If the case where to be remanded for probate of the will, it will result to
waste of time, effort, expense, plus added
anxiety; as in the case of absolute preterition (Nuguid v. Nuguid, G.R. No. L23445, June 23, 1966).
2. Where the entire or all testamentary dispositions are void and where the
defect is apparent on its face (Nepomuceno v. CA, G.R. No. L-62952, Oct. 9,
1985).
Note: Principle does not apply where the meat of the controversy is not the
intrinsic validity of the will.
NOTE: The decree of probate is conclusive with respect to the due
execution of the will and it cannot be impugned on any of the grounds
authorized by law, except by fraud, in any separate or independent action
or proceeding.
WHO MAY PETITION FOR PROBATE
Q: Who may file petition for allowance of will?
A:
1. Executor (Sec. 1, Rule 76);
2. Devisee or legatee named in the will (Sec. 1, Rule 76);
3. Person interested in the estate; e.g. heirs
Note: An interested party is one who would be benefited by the estate, such
as an heir, or one who has a claim against the estate such as a creditor.
(Sumilang v. Ramagosa, G.R. No. L-23135, Dec. 26, 1967)
4. Testator himself during his lifetime (Sec. 1, Rule 76); or
5. Any creditor as preparatory step for filing of his claim therein.
Q: Who are the people entitled to notice in a probate hearing?
A:
1. Designated or known heirs, legatees and devisees of the testator resident
in the Philippines at their places of residence, at least 20 days before the
hearing, if such places of residence be known.
2. Person named executor, if he not the petitioner.
3. To any person named as co-executor not petitioning, if their places of
residence be known.
4. If the testator asks for the allowance of his own will, notice shall be sent
only to his compulsory heirs. (Sec. 4, Rule 76)
We compare that to a probate of a will where the testator is already dead.
Since the testator is already dead, the petitioner could be somebody else
interested in his estate, like an heir, devisee, legatee or creditor of the
decedent. In this second kind of probate of a will where the testator has
died, when the will is admitted to probate, that will not be the end of the
proceedings. In fact, that will mark the beginning of the settlement of estate
of the deceased person. That is the time when we apply the rules in special
proceedings in settlement of estate of deceased person.
You should be wary about the differences between probate of a will when
the testator is still alive, and the probate of a will when the testator has
already died. When the testator has already died, the admission to probate
of that will not be the proceedings, it will be the start the settlement of
estate.
We should also relate settlement of estate of decease persons to Rule 107,
the Rule on Absentees. When the law speaks about settlement of estates of
deceased persons, the inference that we derive is that the fact that is sought
to be established is that a person is dead. That is not necessarily true
insofar as probate of will or intestacy is concerned. We have to relate it to
the provisions of the NCC and FC on absentees, and also the provisions of
special proceedings on absentees in Rule 10.
Even if the testator is not in fact dead, even if the problem is that the heirs,
legatees, devisees and creditors are not certain whether or not the testator
is dead, therefore, the court cannot simply issue an order declaring he is
dead. Under our present rules, if there are antecedent facts that are proven
by clear and convincing evidence, we can apply the presumption of death
under the NCC, then we can commence a special proceeding for the
settlement of his estate. If we go through the provisions of Rule 107 on

absentees, the first essential is that a person has left properties without
somebody in charge or without an administrator, and that his whereabouts
are unknown. And then, he has disappeared for at least 2 years. On the
second year of his absence, there could be a petition for the declaration of
his absence. In other words, being absent is a status under our procedural
laws.
This person who has been declared an absentee cannot be an absentee
forever. So there must come a time when the said status as an absentee
could be utilized in order to settle his estate, and this is the situation
contemplated in Rule 107. If there is enough proof of facts that will allow
the court to conclude that the absentee is already dead, although he is not
actually dead, we can commence proceedings. But the court will not issue
an order declaring the absentee as presumptively dead. A court does not
have any authority at all to issue an order declaring a person dead by
presumption. We just capitalize on the presumption given in the NCC, that
under circumstances, a person is presumably dead. Using that presumption,
the remedy of the spouse, heirs, or any interested person is to file a petition
for the settlement of the estate.
So, there could be a petition for the settlement of estates of a person who is
certainly dead. The court will declare that this person is actually dead, and
this can be easily proven by submission of a certificate of death. But if a
certificate of death cannot be issued or the civil registrar is unwilling to
issue a certificate of death because there is no certainty of the persons
death, but the antecedent facts proven before the courts show that we can
now make a disputable presumption that the person is dead, the remedy is
to file a petition for the settlement of his estate.
So it is not always correct to say that in settlement of estates of deceased
persons, that person must be proven to have really died. That is not what
the law requires. What the law requires is simply the demonstration or
proof of certain facts upon which this disputable presumption of death will
be used in order to settle his estate.
Supposing there are certain facts which will lead to the conclusion that
this person is presumably dead. There are proceedings initiated for
the settlement of his estate. While the proceedings are going on, or
even after the closure of the settlement proceedings, the person
suddenly reappears. Will the settlement of his estate be negated?
Not so. He can recover what is left of his properties. Because in settlement
proceedings, we always involve the payment of his indebtedness to his
creditors. If the debts has already been paid, this person is not allowed to
file for the recovery of the money or other properties that may have been
delivered to the creditors or to the heirs of his estate.
But the procedure that is outlined in our Rules is about settlement of estate
of deceased persons. So that is the first particular fact that will be
established in settlement of estate of deceased persons. The court will issue
an order, let us say, in admitting the will to probate, the court will make a
finding that the testator is already dead. Then, there will also be a finding as
to the formal validity of the will.
With respect to the jurisdiction, the RoC is not expected to give us the
standard in determining the jurisdiction of courts in settlement
proceedings. The courts will rely on what BP 129 provides. In BP 129, there
are 2 courts which are given authority to take cognizance of estate
proceedings, the MTC and the RTC, depending upon the gross value of the
estate, the same amount used as a standard in ascertaining the jurisdiction
of MTC or RTC in money claims. But it is the gross value of the estate that
will be the principal factor. Unlike in action reinvindicatoria, the assessed
value of the property will be the standard that will be determining the
jurisdiction of court.
Which court has jurisdiction over the estate of the deceased?
A:
Regional Trial Court
Metropolitan Trial Court
Gross value of the estate exceeds Gross value of the estate does not
500,000 (within Metro Manila) or exceed 500,000/400,00
400,000 (outside Metro Manila)
State the rule on venue in judicial
persons.
A:
Resident
Court of the province/city where
the deceased resided at the time of
death, whether a citizen or alien

settlement of estate of deceased

Non-Resident
Court of the province/city wherein
he had the estate

In special proceedings, one Rule that you should always bear in mind is that
when a court entertains a special proceeding, that court, RTC or MTC, acts
with a very limited jurisdiction. So, if the settlement is in the RTC, although
the RTC is characterized as a court of general jurisdiction under BP 129,
when an RTC tries a proceeding for settlement of the estate, the RTC acts
with a limited jurisdiction. The same is true with the rest of special
proceedings. When the RTC acts as a habeas corpus or amparo or habeas

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data court, the RTC acts with a very limited jurisdiction. In other words,
what can be resolved by the RTC in these special proceedings will only be
the issue that is raised in the petition. It cannot be expanded. For instance,
when the RTC acts as a settlement court, and there is a dispute between a
stranger and the executor, concerning the ownership of a piece of land
which the executor claims to be owned by the estate of the deceased, and
which according to the stranger is owned by him, the settlement court has
no authority to rule on that issue. Title of this real property has to be
resolved in an independent proceeding, an ordinary action of accion
reinvindicatoria.
To illustrate why a habeas corpus, amparo or habeas data court has limited
jurisdiction, in a petition for habeas corpus, if the habeas corpus court
makes a finding that the petitioner has been unlawfully deprived of his
liberty by the respondent, the habeas corpus court cannot award damages
for unlawful deprivation of liberty. It is enough for the habeas corpus court
to say that there was unlawful deprivation of liberty. But the court cannot
go further by awarding damages in favor of the petitioner. That is always
the rule that we follow in special proceedings. Any court in a special
proceeding acts within a limited jurisdiction. The jurisdiction is limited to
the issue that should be resolved by the special proceeding involved.
Q: May probate courts determine issues of ownership in a proceeding
for the settlement of estate of decedent? Explain.
A:
GR: No, because probate courts are courts of limited jurisdiction.
XPNS:
1. Provisionally, for the sole purpose of including the property in the
inventory, without prejudice to its final determination in a separate action;
2. When all the parties are heirs of the decedent and they agreed to submit
the issue of ownership to the probate court, provided that no rights of third
persons are prejudiced;
3. If the question is one of collation or advancement; or
4. If the parties consent to the assumption of jurisdiction by the probate
court and no rights of third parties are prejudiced. (Agpalo, Handbook on
Special Proceedings, pp. 10-12, 2003 ed.)
Q: The probate court ordered the inclusion of a parcel of land
registered in the name of Richard in the inventory of the properties of
the deceased Anna. Richard opposed the inclusion arguing that the
probate court cannot determine the issue of the ownership of the
parcel of land inasmuch as the same was registered in his name. Is
Richard correct?
A: Yes. In probate proceedings, if a property covered by Torrens title is
involved, the presumptive conclusiveness of such title should be given due
weight, and in the absence of strong compelling evidence to the contrary,
the holder thereof should be considered as the owner of the property in
controversy until his title is nullified or modified in an appropriate ordinary
action, particularly, when as in the case at bar, possession of the property
itself is in the persons named in the title (Luy Lim v. CA, G.R. No. 124715, Jan.
24, 2000).
It is not also correct to assume that when a person dies, his estate can be
settled only through this special proceeding of settlement of estate. It is
very clear from the Rules that if a person dies, the heirs can agree among
themselves to settle his estate without going to court through the scheme of
extra-judicial partition. They can agree to divide among themselves what
has been left by the decedent. They can do so voluntarily. But there are
certain essentials like there must be no will that has been left by the
decedent, that there are no creditors, and that all heirs are of age, or if some
are minors or incapacitated, they are properly represented properly by a
guardian.
If a person dies, he has left sizable properties, and the spouse and the
children are in good terms, there is no will, and there are no creditors, then
the surviving spouse and the children can simply execute what is called a
deed of extra-judicial partition. If there is one heir, then he will just institute
a document called an affidavit of self-adjudication. The deed of extrajudicial partition or affidavit of self-adjudication will have to be registered
with the Office of the Registry of Property, especially when there are
properties involved, in order to enable the parties or the only heir to get a
title in their or his own name. By virtue of the presentation of the deed of
extra-judicial partition or affidavit of self-adjudication, if there are titled
properties that have been left, the title of the deceased will be cancelled,
and a new one will be issued in the name of his heirs or only case, as the
case may be.
What protection do we give to the creditors, if there are any, or even to
the Republic of the Philippines?
Insofar as the Republic of the Philippines, the interest of the state will be in
recovering taxes arising from the death of the person if he left sizable
properties. Insofar as creditors are concerned, they are interested in getting
full payment of their respective claims. The protection given by our Rules is
that when it comes to taxes due, the RoD will not accept for registration an
deed of extra-judicial partition or affidavit of self-adjudication unless the
interested parties present to the civil registrar a certification from the BIR

Page 88 of 103

that taxes have been paid. So that solves the problem of the state. It may
always be able to recover the taxes due, because if the BIR does not issue
this certification, the civil registrar also will not accept for registration the
deed of extra-judicial partition or affidavit of self-adjudication.
The situation of the creditors, if there are any, entails a bigger problem,
because the RoD has the ministerial duty to accept a deed of extra-judicial
partition or affidavit of self-adjudication for registration. The RoD simply
cannot compel the parties to that deed of extra-judicial partition or affidavit
of self-adjudication to present proof that there are really no creditors of the
estate. The RoD will have to rely on the say so of the parties who have
signed the deed of extra-judicial partition or affidavit of self-adjudication.
And in that deed or affidavit, the parties are required to state that there is
no will, and that there are no debts. So if these parties are telling a lie, they
know that there are creditors but they state otherwise, then the creditors
will be at the losing end. They need protection for their claims.
What the law provides is that if the estate settled consists of both personal
and real properties, before the RoD will accept these documents for
registration, the interested parties must file a bond equivalent to the value
of the personal properties. Again, the parties can easily avoid this
requirement by simply stating in the deed that there are no personal
properties involved, so they need not pay the bond. If there are no personal
properties of the estate, then there is no requirement for the interested
parties to submit a bond to the RoD.
So if the estate consists purely of real titled properties, the RoD will admit
the documents for the registration, he will cancel the title of the decedent
and issue new ones in the name of the interested parties. But at the back of
the title of the new owners, there is annotated a lien, that the property is
subject to the claims of any creditors within a period of 2 years. The 2-year
period, according to jurisprudence, is really extended by another 2 years.
The SC ruled that if there is a title carrying this annotation, a person
interested in the property, like an heir who has been deprived of his share,
or even a creditor, can file an ordinary civil action for the annulment of the
writ of extra-judicial partition within 4 years from the discovery of fraud. So
that 2-year period, if we apply that decision of the court, will be extended to
another 4 years, and the 4-year period shall be counted from the discovery
of fraud. It is fraudulent for the heirs or interested parties to extra-judicially
partition the estate of a deceased person without including all the heirs. So
an heir so excluded can always contend that there was fraud in the
execution of that document, and he has a period of 4 year within which to
file an ordinary action for the setting aside or annulment of the deed of
extra-judicial partition.
Q: What is the effect of an extra-judicial partition executed without the
knowledge and consent of the other co-heirs?
A: It shall not prejudice the co-heir who had no knowledge nor consented to
the same. He shall have the right to vindicate his inheritance. Such heir or
such other person deprived of his lawful participation payable in money
may compel the settlement of the estate in courts for the purpose of
satisfying such lawful participation. (Sec. 4, Rule 74)
Q: What is the effect of an extra-judicial partition executed without the
knowledge and consent of the other co-heirs?
A: It shall not prejudice the co-heir who had no knowledge nor consented to
the same. He shall have the right to vindicate his inheritance. Such heir or
such other person deprived of his lawful participation payable in money
may compel the settlement of the estate in courts for the purpose of
satisfying such lawful participation. (Sec. 4, Rule 74)
TWO-YEAR PRESCRIPTIVE PERIOD
Q: When does the two year period rule apply?
A: After the expiration of two years from the extra-judicial partition,
distributees or heirs are barred from objecting to an extra- judicial
partition. The two year prescriptive period applies only:
1. To persons who have participated or taken part or had notice of the
extra-judicial partition; and
2. When all the persons or heirs of the decedent have taken part in the
extra-judicial settlement or are represented by themselves or through
their guardians.
Note: It is only a bar against the parties who had not taken part in the extrajudicial proceedings, but not against third persons not parties thereto.
(Herrera, Remedial Law III-A, 39)
Q: Does the two year period apply for a claim of minor or
incapacitated person?
A: If on the date of the expiration of the period of two years prescribed, the
person authorized to file a claim is a minor or mentally incapacitated, or is
in prison or outside the Philippines, he may present his claim within one
year after such disability is removed. (Sec. 5, Rule 74)
The deed of extra-judicial partition or affidavit of self-adjudication should
also be published, once a week for three consecutive weeks, before the RoD
will admit it for purposes of registration.

When is extra judicial settlement by agreement between the heirs

allowed? (Substantial Requisites)
A:
When the decedent:
1. Left no will and no debts; and the heirs are all of age; and
2. Of the minors are represented by their judicial or legal representatives
duly authorized for the purpose.
Q: What are the requisites before an extra-judicial settlement of estate
could be resorted to as evidence of its validity? (Procedural
Requisites)
A:
1. Settlement is made in a public instrument or by affidavit of adjudication
in the case of a sole heir;
Note: In case of disagreement of heirs, they may state their oppositions in
an ordinary action of partition.
2. Filed with the Register of Deeds;
3. Fact of settlement must be published in a newspaper of general
circulation once a week for 3 consecutive weeks; and
4. Bond filed equivalent to the value of personal property. (Sec. 1, Rule 74)
Note: While the Rules of Court provide that the decedent must not have left
any debts, it is sufficient if any debts he may have left have been paid at the
time the extra-judicial settlement is entered into (Guico v. Bautista, G.R. No.
L-14921, Dec. 31, 1960). It is a disputable presumption that the decedent left
no debts if no creditor files a petition for letters of administration within
two years after the death of the decedent.
Q: What is a bond?
A: It is the value of the personal property certified by the parties under oath
and conditioned upon payment of just claims under Section 4, Rule 74.
Note: The amount of bond required under Section 2 is determined by the
COURT whereas in Section 1 the amount is EQUAL TO THE VALUE OF THE
PERSONAL PROPERTY as established by adjudication.
Q: When is a bond required to be filed in extra-judicial settlement of
estate?
A: When personal property is involved, a bond is required. On the other
hand, if it is a real property, it is subject to a lien in favor of a creditor for 2
years from distribution and such lien cannot be substituted by a bond. (Sec.
1, Rule 74)
Note: The same provision on the bond and lien also applies in summary
settlement of estate. (Sec. 2, Rule 74)
Q: Is a public instrument necessary for the validity of the extra-judicial
settlement?
A: No, the requirement of public instrument is not constitutive of the
validity but is merely evidentiary in nature (Hernandez v. Andal, G.R. No. L273, Mar. 23, 1947). Even a private instrument, oral agreement of partition
or compromise agreement entered into without previous authority from
the court is valid. However, reformation of the instrument may be
compelled.
Note: Public instrument is required in transfer and registration of title to
the heirs.
Q: Why is publication of the extra-judicial settlement necessary?
A: To notify and bind the whole world of the extra-judicial settlement and
give the concerned parties a chance to come forward and challenge the
same (Sec. 1, Rule 74).
Note: Publication alone does not suffice to bind the excluded heirs to the
extra-judicial settlement unless he did not participate in the proceedings.
Q: What is the effect if the provisions on notice or participation
requirement under Sec. 1, Rule 74 have been strictly complied with?
A: It bars distributees or heirs from objecting to an extra-judicial partition
after the two-year prescriptive period to question such partition. (Sec. 4,
Rule 74)
But if the parties cannot settle extrajudicially, then the only recourse will be
to go to court, so that the court will decide the manner by which the
properties of the estate should be divided among the heirs. In this situation,
the parties are not required file a case for settlement of the estate. There is
still another option given in these special civil actions. The special civil
action of Partition under Rule 69 is also available as a remedy in order to
divide the estate of the decedent.
If you go back to partition, partition as a special civil action is predicated on
the theory that there are several co-owners of the same property, and one
of the co-owners decide to leave the co-ownership. This is related to
settlement of estates because under substantive law, when a person dies,
the heirs automatically become co-owners of the estate of the decedent. So

if there is a co-ownership created by operation of law, any one of the coowners can decide to leave the co-ownership by simply availing of the
special civil action for partition.
But a special civil action of partition as given in Rule 69 is not in rem. It
cannot prejudice persons who have not participated in these proceedings.
So if there is an heir or creditors who has not been impleaded in this special
civil action for partition, that deed of partition duly approved by the court
will not have the effect of a judgment in rem. That is always the advantage
of a settlement proceeding as a special proceeding, the judgment and final
orders of the court in a settlement proceeding are in rem. They will be
enforceable against any person who might have an interest in the
properties of the estate. That is the only advantage of settling the estate of a
deceased person through a petition for probate of a will, or if there is no
will, through a petition for the issuance of letters of administration.
In settlement proceedings, we have to determine whether there is a will or
none. Under substantive law, whose provisions are practically reproduced
in the RoC, before the will would be a basis for the division or giving of the
properties of the estate to the heirs, devisees or legatees, the will must be
admitted to probate. If not admitted to probate, it could not be the proper
basis for the division, even if the parties will state in their agreement that
they have divided the estate in accordance with the provisions of the last
will and testament.
The SC has repeatedly held that if there is a will, that will must be submitted
to the court for probate, so that it can be a source of a right given to an heir,
a devisee or legatee. Without an order from the court allowing or admitting
the will for probate, a person who benefited from the provisions of that will
cannot enforce his right. There must always be first an order coming from
the court admitting the will or allowing the probate of the will.
In order to appreciate the scope of an order of a court admitting a will to
probate, read Rule 39, that is the effect of a judgment in rem in Section
47(a).
SEC. 47. Effect of judgments or final orders .The effect of a
judgment or final order rendered by a court of the
Philippines, having jurisdiction to pronounce the judgment or
final order, may be as follows:
(a)
In case of a judgment or final order against a
specific thing, or in respect to the probate of a will, or the
administration of the estate of a deceased person, or in
respect to the personal, political, or legal condition or
status of a particular person or his relationship to
another, the judgment or final order is conclusive upon
the title to the thing, the will or administration, or the
condition, status or relationship of the person; however,
the probate of a will or granting of letters of
administration shall only be prima facie evidence of the
death of the testator or intestate;
(b)
In other cases, the judgment or final order is, with
respect to the matter directly adjudged or as to any other
matter that could have been raised in relation thereto,
conclusive between the parties and their successors in
interest by title subsequent to the commencement of the
action or special proceeding, litigating for the same thing and
under the same title and in the same capacity; and
(c)
In any other litigation between the same parties of
their successors in interest, that only is deemed to have been
adjudged in a former judgment or final order which appears
upon its face to have been so adjudged, or which was actually
and necessarily included therein or necessary thereto.
Rule 39 gives us the effect of a judgment in rem. A judgment admitting a will
to probate is a judgment in rem. It is binding upon anybody who might have
interest in the estate. In fact, the NCC says that an order of a court admitting
the will to probate is conclusive insofar as the formal requirements of a will
are concerned.
Supposing that a will is admitted to probate, can the oppositors appeal
from that order?
Yes.
If there is an appeal from an order of the court allowing a will, we cannot
apply the statement in Rule 39 that probate of a will is conclusive insofar as
the formal elements are concerned because that order, if there is an appeal
going on, will not be entered. That provision in Rule 39 presupposes that an
order admitting the will has been entered. It has become final and
executory.
But before it is entered, do we have the presumption that the formal
requisites of the will have been satisfied?
Yes. But the presumption is not a conclusive presumption, merely
disputable. Under our Rules on Evidence, there is a disputable presumption

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that the final order or judgment of a court is presumed to be correct, that is

if it has not yet been entered. Once entered, the period to appeal having
expired without an appeal being perfected, then the disputable
presumption to a conclusive presumption. So once the order admitting the
will to probate is entered, then we are going to apply the provisions of Rule
39 Section 47. The formal requisites of the will are conclusive upon
anybody who might have an interest in the estate.
If there is no will, the settlement proceedings will be called intestate
proceedings. If there is a will, it will be called testacy or probate
proceedings. But in our Rules, whether the special proceeding to settle the
estate is testate or intestate, there should be only one settlement court in
our jurisdiction.
So if there is a petition to settle where the decedent died without a
will, praying for letters of administration, during the pendency
proceedings after the letters had been issued by the court, an heir
suddenly appears in court claiming he has discovered a will of the
decedent. What will happen to the proceedings of intestacy?
The court will change the proceedings from intestacy to testacy, simply
converting from intestate court to testate or probate court.
There should only be one settlement court. A court that takes cognizance of
settlement of the estate of a deceased person does so to the exclusion of all
other courts. There is a clear message that in settlement proceedings, we
should only have one settlement court.
But what always happens, as our culture allows to happen, is when a person
dies and in his lifetime was a very wealthy person, our culture expects that
he was maintaining several different families in different regions. So when
he dies, one family will file settlement proceedings for the estate located,
lets say in Mindanao, and another family would do so also for the property
found in Cebu, and so forth. We cannot allow this to happen where several
courts take cognizance of the properties of one decedent. We still have to
apply the Rule in Rule 73, where a court that takes cognizance of the
settlement of the estate of a decedent will do so in exclusion of other courts.
So, its just a matter of determining which RTC has first acquired
jurisdiction over the case. The jurisdiction over the case can be ascertained
by determining the period when these different petitions were filed. Thus,
we will have one settlement court.
The authority of a settlement court will extend to any part of the country
where the decedent left some properties. A settlement court in Manila will
have jurisdiction over properties left in Cebu or Mindanao. And it is very
simple for the court to acquire jurisdiction over these properties, because
when the court issues letter testamentary or letters of administration, the
administrator is required to submit an inventory of the estate of the
deceased. This inventory must be complete, an inventory of properties
possessed by the administrator or executor or the properties that have
come to the knowledge of the administrator, though not in his physical
possession. So the settlement courts authority will be throughout the
country insofar as the properties left behind by the decedent is concerned.
There is another term used in the Rule aside from letters testamentary or
administration, and it is called letters of administration with a will annexed.
What is this concept of letters of administration with a will annexed?
This is the letter issued by the court where there is a will submitted to
probate, but where the executor nominated in the will has refused to accept
the trust or he is not qualified to accept the trust. So if there is no executor
willing to accept the trust, the court will have to appoint another
administrator. To distinguish an administrator who is usually appointed
where there is no will that is submitted for probate, we call these letters as
letters of administration with a will annexed.
Letters of administration with a will annexed assume that there is a will
submitted to the court for probate, and that the court has admitted or
allowed the will, but the executor nominated in the will has refused to
accept the position.
In a will, aside from the disposition of the properties, the decedent usually
nominates a person who will act as executor of the will. This is the reason
why in RoC, there is an order of preference in appointing an administrator.
But there is no order of preference insofar as the appointment of an
administrator in letters of administration with a will annexed. This is
because the court will appoint an administrator despite the fact that an
executor is nominated by the testator in the will.
You should also note that when a testator names the person as executor of
the estate, that is only a nomination. It is the court that will appoint him as
executor. The proof that he is now an executor is called letters
testamentary; the proof of the authority of an administrator is called letters
of administration.

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We also have the concept of letters of ancillary administration. In ancillary

administration, the antecedent fact is that a will has been admitted to
probate in a foreign country. The testator must have been a resident of that
foreign country. But the testator also left properties in RP. So, there is a
principal testate proceedings going on in a foreign country where an
executor may have been appointed in that foreign country. But the
authority of the appointed executor from a foreign court cannot extend to
properties within Philippine territory. The remedy of that executor from a
foreign country is to initiate a proceeding called ancillary administration
proceedings, which be called a reprobate of the same will of the same will
that has been admitted to probate in a foreign court. That petition for
ancillary administration, if a will has been already admitted to probate in a
foreign country, the same will be submitted to a local court for another
proceeding. The local court will simply rely on the decision of the foreign
court in admitting the will for probate. If there was no will left by this
foreigner, then the ancillary proceedings will also be an intestate
proceeding. It will still be the local court that will issue letters of ancillary
administration to the administrator appointed by the local court to take
care and to manage the properties left within RP territory.
There is also another concept called letters of special administration or a
special administrator. These letters are issued by the court when there is a
delay in the appointment of an administrator or an executor of the estate. If
a court issues letters of administration, and therefore appoints letters of
administration of an intestate estate, or issues letters testamentary, to the
person who will manage the estate, this is always a final order. The
appointment of a regular administrator is always a final order, never
interlocutory. Since it is a final order, it is appealable. In order to appreciate
in settlement proceedings the difference between a final order and an
interlocutory order in settlement proceedings, read Rule 109, Section 2.
SEC. 2. Advance distribution in special proceedings.
Notwithstanding a pending controversy or appeal in
proceedings to settle the estate of a decedent, the court may, in
its discretion and upon such terms as it may deem proper and
just, permit that such part of the estate as may not be affected by
the controversy or appeal be distributed among the heirs or
legatees, upon compliance with the conditions set forth in Rule
90 of these rules.
FINAL ORDERS
If you go through the provisions of Rule 109, Appeals in Special
Proceedings, right away you will notice that if special proceedings were
governed by the rules of ordinary civil actions, some of the final orders in
special proceedings may be interlocutory in ordinary civil actions. For
instance, appointing an administrator or executor, if we use the rules in
ordinary civil actions, this appointment will be interlocutory, because it
does not put an end to the case, unlike final order in ordinary civil actions
which put an end to the case. But in settlement proceedings, what was
interlocutory under ordinary civil proceedings will be a final order in
special
proceedings,
of
which
the
appointment
of
an
administrator/executor is a good example. The appointment of an
administrator/executor will not put an end to the proceedings. In fact, an
appointment of an administrator/executor will mark other proceedings to
be taken by the court in settling the estate. But since special proceedings
are governed by their own rules, and it says that the appointment of an
administrator/executor or admitting of a will to probate are all final orders
and hence appealable. In fact if we go through the whole process of
settlement proceeding, although it is the policy of the RoC to terminate
proceedings speedily, with as much as practicable a period of 2 years from
institution of the settlement proceedings, Rule 109 negates this state policy
because of the Rule in 109 that all final orders are appealable. In the course
of reading special proceedings, there are several final orders that can be
issued by the settlement court, and all these final orders can be appealable.
The settlement proceedings will not be terminated until all these issues
brought on appeal had been resolved by the appellate court and the records
returned to the settlement court.
If the settlement court appoints Juan dela Cruz today as administrator of
the estate, an heir who dislikes him can appeal from that order. And while
that appeal is going on, Juan dela Cruz cannot assume the position as
administrator of the estate until the higher court has ruled on the
qualifications or the validity of the order appointing him as administrator.
In the meantime, nobody will be taking care of the estate. The remedy of
Juan dela Cruz is to ask the court to appoint him as a special administrator.
So if his appointment as administrator is challenged by another heir, he
cannot assume the office as a REGULAR administrator, but the settlement
court can appoint him as SPECIAL administrator. A settlement court has the
authority to appoint a special administrator if there is a delay in the
appointment of a regular administrator. This is necessary because the
estate has to be managed while the appeal is ongoing.
Will it cause any prejudice to the heirs or creditors if Juan dela Cruz is
appointed as special administrator?
There will be no prejudice to anybody. This is because as special
administrator, Juan dela Cruz is not given all the powers of a regular

administrator. All that he can do is to manage the properties of the estate, to

preserve the estate. He will not be able to entertain claims of creditors. That
is the sole prerogative of a regular administrator/executor of an estate.
Can an oppositor also appeal from the order of the court appointing
Juan dela Cruz as special administrator?
We cannot. Under Rule 109, the appointment of a special administrator is
interlocutory, it is not appealable. The remedy will be Rule 65, to challenge
the appointment as special administrator. But it will not give the oppositors
any undue advantage, since we have learned under Rule 65, the assumption
of Juan dela Cruz as special administrator will not be prevented, unless the
higher court issues a writ of preliminary injunction or TRO. Without these
injunctive writs, Juan dela Cruz can start with the performance of the office
of a special administrator.
The great difference between a special administrator and a regular
administrator of an estate is that a regular administrator is empowered to
entertain claims of creditors to be filed against the estate, while a special
administrator cannot. In fact, the statute of non-claims given in Rule 86 will
only come to life after the appointment of a regular administrator/executor.
We cannot talk about statute of non-claims if the court has only appointed a
special administrator.
Let us assume that there is already a regular administrator/executor
appointed by the settlement court. Whether there is an executor or
administrator, their duties are the same. Both should submit to the court
within a period of 3 months a complete inventory of the properties of the
estate that have come to their possession or to their knowledge, and then
they will have to do an accounting within a period of 1 year. They have to
preserve and manage the estate, and they will have to comply with the
orders of the settlement court.
The duties of administrator/executor outlined in the Rules are practically
the duties of any fiduciary given in the RoC, similar any person who
occupies a fiduciary position under the Rules like a trustee of an express
trust, the guardian of an incompetent of a minor. They have all these
common duties like to preserve the estate, to submit an inventory, to
submit an accounting, and to obey the orders issued by the court.
STATUTE OF NON-CLAIMS
Rule 86 SEC. 5. Claims which must be filed under the notice.
If not filed, barred; exceptions.All claims for money against
the decedent, arising from contract, express or implied, whether
the same be due, not due, or contingent, all claims for funeral
expenses and expenses for the last sickness of the decedent, and
judgment for money against the decedent, must be filed within
the time limited in the notice; otherwise they are barred
forever, except that they may be set forth as counterclaims
in any action that the executor or administrator may bring
against the claimants. Where an executor or administrator
commences an action, or prosecutes an action already
commenced by the deceased in his lifetime, the debtor may set
forth by answer the claims he has against the decedent, instead
of presenting them independently to the court as herein
provided, and mutual claims may be set off against each other in
such action; and if final judgment is rendered in favor of the
defendant, the amount so determined shall be considered the
true balance against the estate, as though the claim had been
presented directly before the court in the administration
proceed-ings. Claims not yet due, or contingent, may be
approved at their present value.
Once the administrator/executor has assumed office, the first thing that he
should do under Rule 86 is to ask the court to issue a Notice to Creditors.
This will be published. This is a notice to all the creditors of an estate to
submit their claims within a period of not less than 6 months nor more than
12 months from the first publication of the Notice to Creditors. This period
of not less than 6 months nor more than 12 months within which creditors
should file their claims is called the Statute of Non-Claims. Rule 86 spells
out the concept and the consequences of the Statute of Non-Claims. It is a
very short prescriptive period.
The publication of the Notice to Creditors is jurisdictional insofar as
creditors are concerned, because this notice serves as a prescriptive period.
So if there is a creditor of the estate, like PNB, from whom the
decedent borrowed 2M in a clean loan (unsecured) during his life
time. Can PNB file an ordinary action for the recovery of indebtedness
against the estate of the estate on the theory that under the law, when
a natural person dies, the law creates an artificial person, called the
estate of the deceased, to take the place of his person?
Although it is true that when a natural person dies, under the NCC creates
another person to take his place, an artificial person called estate of the
deceased. But the law does not allow the artificial person to be a defendant
in a suit for recovery of money. What the law requires is for PNB to file a
claim within a period of not less than six months to 12 months from the first
publication of the Notice to Creditors.

So you will not find any ordinary civil action commenced by a creditor
against the estate of a deceased creditor. That simply is not allowed by the
Rules. But you can find a complaint, ordinary civil action, where the action
is Creditor vs. Estate of Deceased Debtor, but the circumstances are
different from one another. When you meet a case captioned thusly, the
debtor must have died after the institution of that action. If the debtor is
already dead, the creditor will not be allowed an ordinary civil action for
the recovery of the indebtedness. The only recourse of the creditor after the
death of the debtor is to file a claim in the settlement court within the
period so provided by law.
Why do we make a distinction as to whether the debtor is dead before
the commencement of the action or during the pendency of an
ordinary civil action for the collection of money?
The answer is found in Rule 3 Section 16 and Section 20.
SEC. 16. Death of party; duty of counsel.Whenever a party
to a pending action dies, and the claim is not thereby
extinguished, it shall be the duty of his counsel to inform the
court within thirty (30) days after such death of the fact thereof,
and to give the name and address of his legal representative or
representatives. Failure of counsel to comply with this duty
shall be a ground for disciplinary action.
The heirs of the deceased may be allowed to be substituted
for the deceased, without requiring the appointment of an
executor or administrator and the court may appoint a
guardian ad litem for the minor heirs.
The court shall forthwith order said legal representative or
representatives to appear and be substituted within a period of
thirty (30) days from notice.
If no legal representative is named by the counsel for the
deceased party or if the one so named shall fail to appear within
the specified period, the court may order the opposing party,
within a specified time, to procure the appointment of an
executor or administrator for the estate of the deceased and the
latter shall immediately appear for and on behalf of the
deceased. The court charges in procuring such appointment, if
defrayed by the opposing party, may be recovered as costs.
SEC. 20. Action on contractual money claims.When the
action is for recovery of money arising from contract, express or
implied, and the defendant dies before entry of final judgment in
the court in which the action was pending at the time of such
death, it shall not be dismissed but shall instead be allowed
to continue until entry of final judgment. A favorable
judgment obtained by the plaintiff therein shall be enforced
in the manner especially provided in these Rules for
prosecuting claims against the estate of a deceased person.
In Rule 3, Section 20, if the debtor in a claim for money dies during the
pendency of the case, RoC provides that the case will be prosecuted until
final judgment. But what Rule 3 requires is that there will be substitution of
parties, and if there are no heirs willing to act as the defendant, it is
ultimately the administrator/executor who will be named as the substitute
defendant. This is the only instance where we can have an ordinary civil
action for the recovery of money where the defendant is the estate of the
deceased debtor represented by the administrator/executor.
Remember the antecedent facts: The debtor died during the pendency of
the case. At the time the action was commenced, the debtor was still alive. If
the debtor is already dead, a creditor cannot file an ordinary civil action for
the recovery of the indebtedness. The creditor must file a claim in the
settlement court within the Statute of Non-claims.
In the same facts of the problem involving PNB with an unsecured 2M loan,
we assume that PNB made a promissory note, which was signed by the now
deceased debtor. So, the unsecured loan of 2M was put into writing. The
obligation is now reduced into writing. Under the NCC, if there is a money
claim supported by a written document, prescription period is 10 years.
The creditor can enforce his claim within 10 years. But suddenly, here is
Rule 86 giving PNB a very short period for which to enforce the claim.
Will it not defeat substantive law? Are we not reducing the
prescriptive period enjoyed by PNB from 10 years to 12 months? Can
RoC defeat substantive law?
There is really a conflict in the RoC and NCC in this instance. What the SC
said is that the provisions of Rule 86 will prevail over the NCC. We reduce
the prescriptive period contained in the NCC which is 4 years, 6 years or 10
years are shortened to 6 months to 12 months from first printing of the
Notice to Creditors. The justification given by the SC is that the statute of
non-claims as contained in the Rule 86 is not a product of the SC. It is just a
copy of the old civil procedure. At that time, the old code of civil procedure
was also a substantive law insofar as prescription was concerned. SC went

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further by saying, even under the NCC on the chapter of prescription, it is

provided that the NCC provisions will be without prejudice to periods of
prescription that are found in special or other laws. In other words, the
period of prescription given in the NCC is the general law on prescription. If
there are other laws on prescription which contravene the NCC, then the
NCC will have to give way over the provisions of the other laws. Rule 86 is
just an exact copy of the period of prescription that was contained in the old
code of civil procedure, which has not been repealed by the provisions of
the NCC. We still maintain this statute of non-claims as a prescriptive
period, not less than six months nor more than 12 months from the date of
first publication of the Notice to Creditors.
If you read Rule 86 on the statute of non-claims, the consequence is that the
claim will be barred forever if it is not submitted within this period to the
settlement court.
But the RoC do not require all creditors to submit their claims within this
statute of non-claims. You have also to take into account the provisions of
Rule 87. If there are creditors but their claims are not for money, and
instead involve recovery of real or personal property, they are not covered
by the statute of non-claims. Or if these creditors claim, although for money,
stem out of a tort committed by decedent during this lifetime, they are not
governed by the statute of non-claims.
So we have to limit the concept of these claims to the provisions of Rule 86.
What are these money claims? All claims for money against the decedent,
arising from contract, express or implied, whether the same be due,
not due, or contingent, all claims for funeral expenses and expenses
for the last sickness of the decedent, and judgment for money against
the decedent, as provided for in Section 5 of Rule 86. So that excludes
claims arising from a crime or delict or tort. These claims must be claimed
within the period of non-claims. Otherwise, they are barred forever.
In our example, where the debtor dies during the pendency of an action for
the recovery of the loan, the administrator/executor has taken his place as a
substitute defendant. If the administrator/executor subsequently loses the
case, the creditor will have an award in his favor for payment of 2M. Even if
that award is supported by a final and executory judgment, the creditor
should still file a claim against the estate within 6 months and 12 months, in
the period for statute of non-claims. Otherwise, the claim will be barred.
If you read Rule 86 on the statute of non-claims, claims for money
supported by a final judgment should still be submitted as a claim before
the settlement court. In short, the judgment creditor cannot make use of
Rule 39. He cannot move for the issuance of a writ of execution. If a trial
court issues a writ of execution, that writ is void. We cannot issue a writ of
execution against an estate that is being settled in a settlement court. It is
the settlement court that has the authority to determine who the creditors
are and what claims will be approved and paid in the settlement
proceeding. And that cannot be interfered with by any other court.
If you will notice, in the Rule on settlement of estates, there is no instance
by which a writ of execution can be enforced against the estate of the
deceased person. That is prohibited under our system. Except the instance
that is contemplated in Rule 39, when there is already a writ of execution
issued against a defendant who is still alive, and there is a levy on execution
on the properties of this defendant, and thereafter, the defendant died. The
levy on execution can continue and the properties can be sold at public
auction. This is the only known instance where there could be a writ of
execution and a levy on execution against the estate of the recently
deceased judgment debtor/defendant in Rule 39. The general rule is we
cannot enforce a judgment against a deceased judgment debtor by using a
writ of execution and levy on the properties of his estate under Rule 39.
Although Rule 86 operate as a period of restriction, Rule 86 recognizes that
certain creditors do not have to submit their claims against the estate. And
even if they do not submit their claims, their claims will not be barred, they
can still enforce their claims. This involves creditors who hold a security, a
mortgage, a pledge or any other security arrangement, contractual in
character, that has been entered into during the life the deceased debtor. So,
a mortgagee, a pledgee or any other creditor who holds a security is not
required to submit a claim against the estate. He does not participate in the
settlement proceeding, but he can still enforce his claim. In fact, under Rule
86, the secured creditors are given 3 options. The first is that they just
abandon their security. So if the creditor is a mortgagee at the same time,
and he uses the first option, he will convert himself from a secured creditor
to an unsecured creditor. He gives up the mortgage, so he will be able to
participate in the proceedings. This does not seem to be very practical. Why
should a secured creditor convert himself into an unsecured creditor when
there is no certainty that he is going to be paid? But that is the first option
given to secured creditors.
The second option relies on the collateral. Foreclose the mortgage. And if
there is any deficiency, with respect to the deficiency, submit a contingent
claim within the statute of non-claims. So in this second option, the

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mortgage is not abandoned, but foreclosed instead, and the creditor is

required to file a contingent claim for any deficiency.
In the third option, the secured creditor will rely entirely on his security. He
can foreclose the mortgage. But if there is a deficiency, he can no longer
recover the deficiency against the estate. He will have to be satisfied with
what he received in the foreclosure of the mortgaged property.
There could be some questions pertaining to this rule on secured creditors
in Rule 86. Remember that the mortgagor/pledger is already dead. And if in
the mortgage, the mortgagee is given a special power of attorney to extrajudicially foreclose the mortgage, the administrator/executor or any one of
the heirs can bring out this issue, if the mortgagor is already dead, does it
not follow that the SPA given to the mortgagee to foreclose extra-judicially
will be extinguished. Because what the mortgagor gives to the mortgagee is
a SPA to extra-judicially foreclose a mortgage, a contract within a contract.
In essence, a contract of agency is created, authorizing the mortgagee to
extra-judicially foreclose the security.
Supposing the administrator challenges the authority of the
mortgagee to extra-judicially foreclose the mortgage, on the ground
that under the NCC the death of the principal extinguishes the agency.
Is the administrator correct?
No. The SC said we do not apply that principle in agency through a case of
secured credit and security consists of a mortgage, pledge or any other form
of contractual security arrangement. And the SC said that the death of the
mortgagor will not extinguish the agency, since the agency falls in the
concept in the civil code called an agency coupled with an interest. So if the
mortgagor dies, the mortgagee still retain the right to extra-judicially
foreclose the security. So, we do not take away the right of the mortgagee to
extra-judicially foreclose the security even if the mortgagor is already dead.
That is the reason why in Rule 86, the mortgagee is given the 3 options: to
abandon the mortgage, foreclose the security and recover the deficiency by
filing a contingency claim within the statute on non-claims or rely solely on
the foreclosure of the security and forget about the deficiency.
We said that a court will not accept even for filing an ordinary complaint for
the recovery of money arising from a contract if the defendant was already
dead, even if we implead as defendant the estate of the deceased defendant.
Even if the court accepts it for filing, it will be subsequently dismissed
because the filing is not the proper filing for the commencement of a
complaint. How do we expect creditors to file a claim? In our example, do
we expect PNB to file an action against the administrator/executor for the
recovery of the loan? So, in filing a claim for money, what do we expect the
creditors to submit if they are not expected to file an ordinary claim in
court?
A claim in settlement proceedings is just in the form of an affidavit where
the creditor asserts his claim and then gives the circumstances surrounding
the claim, and then he presents already together with his affidavit proof of
the existence of his claims. So these claims are not commenced with the
filing of a complaint. Since these claims are commenced by the filing of an
affidavit, the SC ruled that claimants for money do not require a
certification for non-forum shopping. Said certification is not required since
an affidavit can hardly be considered an initiatory pleading. Such
certification is required only in initiatory pleadings.
Supposing that the settlement court is an RTC. Therefore we assume
that the estate is sizable. A creditor files a claim, submits his affidavit,
saying that the decedent owed him money by way of a loan but only
the sum of 200k. Can the RTC as a settlement court entertain that
claim, although it is not within the jurisdictional amount given to an
RTC under BP 129?
Yes. The amount of the claim of the creditor will not determine the
jurisdiction of the settlement court. This is only an incident of the exercise
of the settlement court of its authority to entertain the petition for the
settlement of estate. As long as the settlement court has jurisdiction
because of the GROSS VALUE OF THE ESTATE, the settlement court will
have the authority to resolve ALL incidents that are brought before it in
relation to the liquidation of the estate of the deceased person.
Under the Rules also, if there are 10 claimants for money, and they all have
submitted their claims in the form of an affidavit, the Rules expect the
administrator/executor to respond to the claims, so he can contest or
accept the genuineness or validity of the claims.
If the administrator/executor does not respond at all, can the court
declare the administrator/executor in default?
No. Because, the claim is not in the form of a complaint, only in the form of
an affidavit. So there is no default if the administrator/executor does not
respond to the claim.
If the administrator/executor contests the claim, he is expected to reduce
his contest formally in writing, stating the defenses that the
administrator/executor wishes to set up when that particular claim is filed.
If the administrator/executor admits the claim, he will simply state that he

is not contesting the claim. So it is very likely that the

administrator/executor will collude or conspire with a creditor who has
filed a claim by simply telling the court that he is admitting the genuineness
of a particular claim. There is mechanism given in the Rules for this
situation. If the administrator/executor admits a claim for money, the heirs
can submit their opposition to the admission of the claim, in which case, the
claim will become a contested claim.
If there are contest given by the administrator/executor to the 10 claims
submitted by the creditors, then the court will have to try these 10 claims,
as if there is a full blown trial, to be taken up in the settlement court. The
court can easily avoid conducting a hearing in cases of contested claims by
using another provision in the Rule 86, that is to appoint commissioners in
order to hear the claims of the creditors.
In Rule 109, the order for each and every claim is considered as a final
order. So if the court eventually denies all the 10 claims, and the creditors
feel aggrieved, expect the creditors to appeal to the CA or SC as the case
may be. There will be 10 appeals emanating from the same proceedings.
While these appeals are going on, the settlement court will have to wait
until they are finally adjudicated. So that is why although the policy of the
state is to speedily dispose of settlement proceedings, by providing in the
Rules a clear period within which a settlement proceedings should be
terminated and closed, it is Rule 109 that will necessarily cause a delay in
the closure of settlement proceedings, because of the number of appeals
that can be taken in each and every final order that can be granted by the
settlement court. Under the Rules, the resolution of each money claim is a
final order.
Let us assume that all claims had been resolved and granted by the
court, and the administrator/executor does not appeal. The final
order became final and executory, it will now be entered. Can the
creditors, whose claims have been approved, file in the settlement
court a motion for execution under Rule 39?
No. The settlement court is not bound to issue or to order an execution of
its own final order, even if the final order is favorable to a creditor with a
claim for money.
Does the judgment creditor have any other recourse?
None. He cannot make use of Rule 39.
The only recourse, if we can call it a recourse, available to a judgment
creditor who has filed a claim for money is to wait for the court to issue
another order directing the administrator/executor to pay all these claims.
Until that order is issued, the administrator/executor has no authority to
voluntarily pay off the claims of the judgment creditors, although they have
already been approved.
Insofar as creditors of an estate subject of settlement are concerned, even if
they have won their respective claims, there is guarantee that they are
going to be paid. It is also possible that they will not be paid at all if the
estate is insolvent. There are more liabilities than assets, then the
settlement court will be forced to make use of the provisions in the NCC on
preference and concurrence of credits.
A creditor cannot tell himself that since his claims had been approved by
the court, all that he needs to do is to wait for the full payment. There is no
assurance that a creditor in a settlement proceeding could even be paid. If
he is going to be paid, there is no assurance that he will get the full amount
of his claim, it could only be a part. This is when the court will start to use
the NCC provisions on preference and concurrence of credits.
In preference and concurrence of credits, there are credits that are more
preferred than other credits. There is need to pay these preferred creditors
before the rest of the creditors can be paid. And the Rules are very clear in
saying that when there are more assets that liabilities in the estate, the
estate being insolvent, the settlement court is duty-bound to observe the
preference and concurrence of credits.
So, always have in mind that judgment creditor in a settlement proceeding
cannot make use of Rule 39. No writ of execution, no levy on execution. And,
we cannot say with certainty that a duly approved claim of a creditor will
lead to payment in full. There could be full payment, partial payment or no
payment at all, depending on the financial condition of the estate that is
being settled.
How about the heirs? Can these heirs enter into possession of some of
the properties under liquidation?
They may not. The purpose of a settlement proceeding is primarily to
protect the state and most of the creditors of the deceased. Until the
creditors of the decedent are fully satisfied, the heirs cannot take over
possession and control any of any properties of the estate. The entity that
has full control of the estate of a deceased person is the settlement court,
probate court or intestate court as the case may be.
So how will the surviving spouse and minor children survive?
There are some provisions in the Rules and the NCC that during the
pendency of the settlement proceedings, the surviving spouse and the

children will be entitled to allowances determine by the court. And it is the

duty of the administrator to comply with the order of the court directing
him to give allowances to the surviving spouse and minor children.
What the settlement court is prohibited from doing is to allow the surviving
spouse and the heirs to take over possession and control over properties of
the estate before the creditors are fully paid or the estate has been
exhausted for the payment of these creditors.
Supposing that the statute of non-claims has already expired, and the
court has already resolved the validity of these claims, but the
administrator/executor reports to the court that there are not much
liquid assets of the estate. Can the court authorize the
administrator/executor to pay creditors whose claims had been
approved through the mechanism known as accion en pago (pay using
properties belonging to the estate)?
Generally, dacion en pago is not allowed in settlement cases. A court will
not allow or authorize an administrator/executor to settle a monetary
obligation with properties of the estate. The procedure outlined in the Rules
where assets are enough to pay, but the assets are not in cash is for the
administrator/executor to ask the convert for authority to convert the hard
assets (properties) into liquid assets (cash) by selling the properties of the
estate.
The order of preference is to sell personal properties first. Generally, this is
the rule followed by the settlement courts. If we are going to sell properties
in order to generate cash to pay off creditors, we sell first personal
properties. And then, if the proceeds are not enough still, the court can
authorize the sale, mortgage or encumbrance of real properties. So, the
Rules seem to allow only a sale of personal property, but not mortgage or
encumbrance of personal properties of the estate. But the Rules are very
clear that in the case of real property, there could be a sale, mortgage or
encumbrance, if so directed by the court.
The authority of the administrator/executor to sell properties, whether real
or personal, does not stem from his authority as an administrator/executor.
He should get a special order from the settlement court authorizing him to
sell particular pieces of properties. And it is the court that will determine
under what conditions under which the contract of sale should be had, and
if signed by the administrator/executor.
Can the administrator/executor, after he has obtained an authority to
sell properties of the estate, sell these properties in a private sale or
public auction sale?
Yes to either, as long as the court authorizes the sale in either a private or
public sale of these properties. The settlement court has almost complete
discretion in determining the cognizance for the disposition of the
properties of the estate for the purpose of generating money with which the
administrator/executor can pay the claims of creditors.
If the administrator/executor has already amassed enough cash in
order to pay off the creditors, can the administrator/executor start
paying or liquidating in full the approved claims against the estate?
He cannot still. He needs another order from the court, directing him, the
administrator/executor, to pay creditors whose claims had already been
approved. So, the administrator/executor should always be relying upon
the directive that will be issued from the settlement court.
If the administrator is directed to pay off already his creditors because
there are already enough funds, and the creditor neglects to pay the
creditors, can the creditors this time make use of Rule 39, to file a motion
for execution?
They still cannot. We do not use Rule 39 in settlement proceedings. If the
administrator/executor disregards the order of the court directing him to
pay his creditors, the creditors can move to cite him in contempt of court, or
the court can even remove him as an administrator/executor and appoint
another.
If all the creditors have been paid, and there are enough assets left for
distribution to the surviving heirs, legatees or devisees, if there is a
will, the next problem to be resolved by the court is determining who
the heirs are. We have learned that a settlement court is a court of
very limited jurisdiction. Does it possess authority to determine who
the heirs are?
Yes, that is part of the limited jurisdiction of a settlement court.
So if the settlement court can determine who the heirs are, the court is
likewise authorized to determine the distributive share of each of these
heirs.
What the settlement court cannot do is to resolve contentious issues
concerning title to or possession of real property. In a dispute between the
estate and a 3rd person concerning the property, the settlement court has
no authority to resolve that issue. It has to be resolved in an ordinary civil
action. The only recognized exception that is recognized by the SC, although
not contained in the Rules, is that if all the parties agree to submit this

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matter/dispute concerning title or possession of property to the settlement

court for resolution. If there is such an agreement, that will place these
parties in estoppel from challenging later on the resolution of the court.

probate of a will, or for the filing of letters of administration, it also

jurisdictional for that settlement court to give personal notice to the heirs,
legatees or devisees mentioned in the will.

The declaration by the settlement court as to who the hers are is another
final order that can be appealed to a higher court. It is not an interlocutory
order.

The notice, which is also jurisdictional together with the publication, refers
to a notice by registered mail that must be strictly adhered to by the
settlement court. Otherwise, if not strictly adhered to insofar as the heir is
concerned, he can always contend that the court has not acquired
jurisdiction over his person. That could be used by this heir deprived of his
share in order to challenge the nature of the order of closure as a judgment
in rem.

Even if the heirs have already been determined by the court, the other
problem now is how to divide the estate and distribute the estate
among the heirs. If they cannot agree on the manner of division, can
they file a special civil action for partition?
They cannot if there is a pending settlement proceeding in court. The
partition of the estate, how they will divide the property, is within the
authority of the settlement court to determine. So if they want the
settlement court to have the ultimate responsibility to divide the property,
they can submit that issue to the settlement court.
If they do not want the settlement court to settle that issue, the compulsory
heirs, the devisees and legatees can agree on what is usually called in
settlement proceedings as a project of partition. A project of partition is
usually agreed upon voluntarily among the heirs. They sign it and then
submit it to the court for approval. Once approved by the court, the court
will issue another order directed to the administrator called an order of
distribution.
If the administrator/executor neglects to distribute, again the remedy is not
Rule 39, it is simply to cite the administrator/executor in contempt or the
court will ask him to resign or be removed by the court from that office.
If all the creditors had been paid, and the heirs have received their
distributive shares according to the project of partition, will the
proceedings now be terminated?
Before termination, there is a final stage before the court will issue an order
of closure, the order which will terminate the proceeding. It is essential that
the court should conduct a hearing and approve the final accounting of the
administrator/executor. Under the Rules, an administrator/executor is
required to submit an accounting once a year. If all these submissions have
been approved in the past, then there is no more need to repeat them
during final accounting. If you also again read Rule 109, each and every
approval by the settlement court of an accounting is a final order. If there is
a final accounting submitted and that is approved by the court, it is a final
order. If that is appealed, the settlement court in the meantime will not
issue an order of closure. When there is already an order of closure, the
period to appeal therefrom has expired, then the order of closure will be
entered. That will mark the end of the proceedings.

The SC has not fixed any period at all within which a motion or petition for
the reopening should be filed. It seems that it is not possible to fix a period
within which a period for reopening could be filed, because if we place a
period of prescription, the only remedy that will be left to the heir will be to
file his own petition for the settlement of the estate, which is not allowed
under these Rules. So, as of now, there is really no fixed period within which
a petition for the reopening of the settlement proceedings could be filed.
Q: What are the remedies of the aggrieved party in summary or
extrajudicial settlement of the estate?
COMPEL
THE Should be brought within 2 years after settlement and
SETTLEMENT
distribution of the estate
OF ESTATE IN GROUNDS: (Section 4, Rule 74)
COURTS
a. If there is undue deprivation of lawful participation
in the estate;
b. Existence of debts against the estate.
ACTION
FOR
RESCISSION
ACTION
FOR
RECONVEYANCE
OF
REAL
PROPERTY

REOPENING BY
INTERVENTION
IN
SUMMARY
SETTLEMENT

Supposing that after the order of closure has been entered and the
proceedings have been terminated, here comes an heir who claims that he
has been deprived of his distributive share in the estate, and here comes a
creditor who claims he is a creditor for money but he was unaware that
there was a settlement proceeding.
Can the heir file his own petition for the settlement of estate for the
same decedent? Can the creditor also commence his own petition for
the settlement of the estate?
No to both remedies. There should be only one settlement court allowed,
and it has already terminated the proceedings.
If there is only one settlement court allowed, but the settlement
proceedings have already been closed, what remedy do the heir and
creditor have, if there is any remedy at all, that is if we want to life to
the principle that there should be only one settlement court?
The remedy of the heir is to look for reopening of the case. A proceeding
that has already been closed can be reopened by the same settlement court.
This is insofar as the heir is concerned, if he can show that he has been
unjustly deprived of his estate.
But insofar as the creditor for money is concerned, he does not have this
privileged for asking for reopening, because his claim for money must have
been filed during the running of the statute of claims. If he has failed to do
so, following the provisions of Rule 86, the creditors claim shall be barred
forever.
So, the person who can ask for reopening will be an heir, not a creditor of
the estate.
Remember that a final order in settlement proceedings is considered a
judgment in rem. It binds anybody who might have an interest upon the
estate. That is the rule we are applying insofar as the creditor is concerned.
The order of closure will be binding upon the creditor, because the
prescriptive period given in the Rules has already lapsed. His claim is
barred forever.
But insofar as the heir is concerned, he can capitalize on a provision in the
Rules which says that aside from publication of the notice of hearing of the

Page 94 of 103

PETITION FOR
RELIEF
(SUMMARY
SETTLEMENT)
ACTION
TO
ANNUL A DEED
OF
EXTRAJUDICIAL
SETTLEMENT
OR JUDGMENT
IN
SUMMARY
SETTLEMENT
ORDINARY
ACTION
BUT
NOT AGAINST
THE BOND

It must be availed of within 5 years from the time the

right of action accrues. (Art. 1149, NCC)
Also applicable in judicial proceedings
GR: It is based on an implied or constructive trust
which prescribes in 10 years from the date of
registration or date of issuance of certificate of title or
from actual discovery of fraud if the registration was
made in bad faith.
XPN: If the plaintiff is in possession of the property
and did not pass to innocent purchaser for value and
good faith, action is imprescriptible. (Marquez v. CA,
G.R. No. 125715, Dec. 29, 1998) Also applicable in
judicial proceedings.
Upon motion of a person who either:
a. Has a legal interest in the matter in litigation;
b. Has such legal interest in the success of either of the
parties, or an interest against both; or
c. Is so situated as to be adversely affected by the
distribution of property in the custody of the court or
of an officer.
Note: May be availed of after judgment but before its
finality or appeal by the aggrieved party.
On grounds of fraud, accident, mistake, and excusable
negligence within 60 days after petitioner learns of the
judgment, final order or other proceeding to be set
aside, and not more than 6 months after such
judgment or final order was entered. (Rule 38.) Also
applicable in judicial proceedings.
On the ground of fraud which should be filed within 4
years from the discovery of fraud.

If the order of closure has already become final and

executory, the heir must file an independent civil
action of accion reinvindicatoria to recover his
deprived share.
Note: It must be brought within 10 years from the
time the right of action accrues. [Art. 1144(c)]
Also applicable in judicial proceedings.
After the lapse of two years an ordinary action may be
instituted against the distributees within the statute of
limitations but not against the bond.

Rule 91 ESCHEAT
The special proceeding after settlement is escheat. Although escheat comes
right after settlement, it does not mean to say that escheat is an integral
part of an estate settlement proceeding. Escheat proceedings are
independent of settlement proceedings, although the nature of escheat
proceedings contemplated in the Rules is also one where a person has died
and there is no will, and then there are no persons who claim to be entitled
to the estate. But if you read the last section of escheat, there is another

proceeding contemplated which could be different from escheat. We call it a

reversion proceeding.
Rule 91 SEC. 5. Other actions for escheat.Until
otherwise provided by law, actions for reversion or
escheat of properties alienated in violation of the
Constitution or of any statute shall be governed by
this rule, except that the action shall be instituted in
the province where the land lies in whole or in part.
The escheat contemplated in the Rules is one where a person has died, left
no will and there are no person who claim to be entitled to the estate as
heirs or any other capacity whatsoever.
In an escheat proceedings under these antecedents, is that the proceeding
will be initiated by the Solicitor-General in his capacity as the lawyer of the
Republic. So, it is also an in rem proceedings. Petition for the escheat of the
properties of Juan dela Cruz. This is also a proceeding in rem because there
is no party impleaded as defendant. It is not also adversarial, theoretically.
The publication requirement is much longer than the publication
requirement in settlement proceedings. If the escheat court finds the
petition sufficient in form and substance, and the jurisdictional
requirements have been met by proof of publication, the escheat court will
declare the properties of the deceased person as escheated in the name of
the Republic of the Philippines. The provisions of the Rules on how the
properties will be distributed are mere reiterations of the provisions found
in the NCC. You will notice then that there seems to be no protection at all
extended by the Rule of Escheat to creditors of the deceased, unlike that
extended in settlement proceedings where parties are notified and they are
required to submit their claims within a certain period of time, or else their
claims are barred. There is no such procedure under escheat proceedings
So if the escheat court has issued an order escheating the properties in
favor of the state, the state will just distribute the properties in accordance
with the provisions of substantive law.
If it turns out that there are creditors of the deceased, do these
creditors have any remedy at all to enforce their claims, although the
estate of the deceased debtor has not been settled in accordance with
settlement proceedings?
The escheat court in fact will give creditors a very long period of 5 years
within which to file their claim. Within that 5 years, the escheat court will
either approve or deny the claims, and then order the payment of these
claims.
Can the settlement court convert itself into an escheat court if in the
settlement proceedings, there are no claimants to the estate under
settlement there being only creditors, but no heirs, devisees or
legatees?
No. It cannot convert itself into an escheat court. In an escheat proceeding
where decedent had left no will, nor are there any heirs or creditors, the
proceeding should be commenced by the solicitor-general via an
independent petition for escheat.
It is also incorrect to assume where escheat is applicable only in situations
where the owner is dead. Even if the owner is still alive, there could be
escheat proceedings under certain special laws, particularly the Law on
Unclaimed Balances Act. This law covers bank deposits that have remained
dormant for a period of at least 10 years. If the depositors of these bank
accounts leave their accounts dormant for a period of 10 years, the Republic
of the Philippines will confiscate these dormant accounts. So, it is not good
to deposit in a bank and keep it dormant. You should keep on depositing
and withdrawing, as the case may be, so that may prevent the Unclaimed
Balances Act from being implemented in your account.
This dormant bank accounts will also be the subject of escheat proceedings.
The Republic of the Philippines will file a petition for the escheat of these
dormant accounts. And once the court has granted the petition, the deposits
will be turned over to the national treasury. These dormant accounts might
be in millions of pesos, because they have been dormant for about 10 years,
and it must have kept on earning interest.
Is this not unconstitutional?
SC said it is not unconstitutional. It is merely an exercise of the Republic of
the Philippines will of its police power. It is not eminent domain since the
state is confiscating money without paying just compensation to the
owners. If it were expropriation or eminent domain, the Republic of the
Philippines will be forced to pay just compensation for these dormant
deposits.
REVERSION
With respect to the reversion, it is also a proceeding in rem according to the
SC. Although, there is a particular individual who is impleaded for the
recovery of properties that are ill-gotten. The SC said these are also
proceedings in rem. And with respect to a reversion filed by the Sol-Gen
involving real properties, the SC recently ruled on the issue as to whether
proceeding for the recovery of a real property is cognizable by an MTC or
RTC, depending upon the assessed value of the property based on the

standards under BP 129, the SC said that it is possible that a reversion

proceeding involving titled property will be cognizable by an MTC if the
assessed value of the property is within the jurisdiction of the MTC as
embodied in BP 129. But even if the assessed value of that property is
within the jurisdictional amount assigned to the MTC, the MTC will have no
jurisdiction if it will involve the setting aside of a judgment or annulment of
a judgment that has already been rendered in the past by the court, more
particularly if that judgment has been a duly entered judgment. SC said MTC
will have no authority over that reversion proceeding because the reversion
will include another aspect, that is annulment of judgment, over which an
MTC does not have any jurisdiction under BP 129.
Rule 102 HABEAS CORPUS, WRIT OF AMPARO, WRIT OF HABEAS DATA
If you are asked whether a writ of habeas corpus issued by a court will
release a detainee from detention, that is if upon issuance of the writ,
will that result to the release of the detainee from detention?
No. A writ of habeas corpus, even if issued by the court, does not mean the
detainee will be released from detention. What the writ of habeas corpus
provides is that the respondent will be required to present to the court the
detainee on a particular day and period before the court. And after the
detainee had been presented on that particular day and period, the
respondent would have complied with the writ of habeas corpus. So a
petition for habeas corpus, once granted, does not mean that the detainee
will be released from detention.
What will release the detainee from detention?
Under Section15, Rule 102, if the writ is issued with a complimentary order
after hearing that will lead to the release of the detainee from detention.
The order in Section 15 is called an order of discharge or an order of
release. So, it is not the writ of habeas corpus itself that will lead to the
release of the detainee.
Rule 102 SEC. 15. When prisoner discharged if no appeal.
When the court or judge has examined into the cause of caption
and restraint of the prisoner, and is satisfied that he is
unlawfully imprisoned or restrained, he shall forthwith order
his discharge from confinement, but such discharge shall not
be effective until a copy of the order has been served on the
officer or person detaining the prisoner. If the officer or person
detaining the prisoner does not desire to appeal, the prisoner
shall be forthwith released.
It is the order of discharge or release that will be issued by the court after
conducting a hearing, which could be a summary hearing, after a return was
submitted by the respondent to the court. So that is a complementary order
issued by the habeas corpus court that will now authorize the detainer to
release the detainee.
With respect to jurisdiction, the provisions of the law creating the Family
Court, the Constitution as well as BP 129 have long been the subject of
discussions, because under the law creating a Family Court, the court has
exclusive original jurisdiction over petitions for custody of children and
habeas corpus in relation to custody of children. The intention of the law is
quite clear by merely reading the substantive law creating the Family Court.
The family court has exclusive original jurisdiction over petitions for habeas
corpus in relation to custody of a minor. And of course, in the Constitution,
the SC has also original jurisdiction over petitions for habeas corpus,
together with certiorari, prohibition, mandamus, etc. And then, under BP
129, the CA is likewise vested with original jurisdiction over the same
petitions. That includes habeas corpus. The RTC likewise has original
jurisdiction over petitions for habeas corpus.
So, there seems to be an inconsistency or conflict between the Constitution,
BP 129 and the law creating a Family Court which assigned to a family court
exclusive original jurisdiction over petitions for habeas corpus in relation to
custody of a minor.
The SC has already settled this issue. The SC has already ruled that
notwithstanding the provisions of the Family Court Law assigning exclusive
original jurisdiction to a family court over petitions for habeas corpus in
relation to custody of a minor, the SC, CA and the RTC still exercise
jurisdiction over petitions for habeas corpus.
From a procedural point of view, habeas corpus is limited to only two
instances. The first is when there is unlawful detention, which deprives a
person of his liberty. And the second situation is when the lawful custody of
the person is withheld.
If there is a detainee who complains that his detention is unlawful, he will
file a petition for habeas corpus. Rule 102 provides that the petition can be
filed by a person on behalf of the detainee. Our problem in habeas corpus is
that jurisprudence is to the effect that when there is another person who
files a petition for habeas corpus on behalf of the detained person, this has
been construed very restrictively by the SC. The SC has ruled several times
in the past that a stranger who files a petition for habeas corpus on behalf of
a detainee should show or demonstrate his personality or his standing as to
why he is interested in the release of the detainee. So there must be a

Page 95 of 103

relationship between the petitioner and the detainee, if the petition is not
filed by the detainee himself.
If the petition is sufficient in form and in substance, the habeas corpus court
can right away issue the writ of habeas corpus. There is no need for the
court to hear the side of the respondent. So if we stop at these principles of
habeas corpus, it would seem that habeas corpus is a prerogative writ of
liberty, it is designed to favor of a detainee who claims that he is being
deprived of his liberty by means of an unlawful detention.
Q: When is habeas corpus not applicable?
A:
1. When detained under a lawful cause.
2. In case of invasion or rebellion or when public safety requires it, under
Art. III, Sec. 15, 1987 Constitution.
3. When in case of invasion or rebellion or when public safety requires it,
for a period not exceeding 60 days, under Art. 7, Sec. 18, 1987
Constitution.
4. If the jurisdiction of the court to try the person detained appears after
the writ is allowed. (Sec. 4, Rule 102).
5. If the person is in custody of an officer under process issued by a court
or by virtue of a judgment or order of a court of record which has
jurisdiction to issue the process, render the judgment, or make the order.
(Sec. 4, Rule 102).
6. If the person is charged or convicted of an offense in the Philippines.
(Sec. 4, Rule 102).
7. If the person is suffering imprisonment under lawful judgment. (Sec. 4,
Rule 102).
8. In case of three-day retention of a suspect for three days without
charge, pursuant to Sec. 18 of the Human Security Act.
9. When person is serving final sentence imposed by court.
10. For asserting or vindicating a denial of right to bail.
11. For correcting errors in appreciation of facts or of law.
Note: Issuance of a writ of habeas corpus may not lie in order to revive a
settled issue of the validity of the writ of preliminary injunction issued in an
agrarian case allegedly on the ground of the existence of a tenancy
relationship between the parties arising from their arrest for having
assaulted persons in authority. (Bernarte v. CA, G.R. No. 107741, Oct. 18,
1996).
Loss of the records of the case after petitioner, by his own admission, was
already convicted by the trial court of the offense charged will bar the
issuance of a writ of habeas corpus. The loss must have occurred prior to
the filing of the information against him. (Feria v. CA, G.R. No. 122954, Feb.
15, 2000).
It has been noted that the ORDER contains a provision enjoining the
prosecution of the Accused in the Criminal Case. That is error. If the
Accused was illegally detained because he was arrested without a
preliminary examination, what should have been done was to set aside the
warrant of arrest and order the discharge of the Accused, but without
enjoining the Municipal Judge from conducting a preliminary examination
and afterwards properly issuing a warrant of arrest. Habeas Corpus
proceedings are not meant to determine criminal responsibility. (Alimpoos
v. CA, G.R. No. L-27331, July 30, 1981).
In case of an illegal arrest, the petition for a writ of habeas corpus will still
not prosper if the detention has become legal by virtue of the filing before
the trial court of the complaint against him and by the issuance of an order
denying bail. (Velasco v. CA, G.R. No. 118644, July 7, 1995).
Habeas Corpus may be had to give retroactive effect to a previous ruling of
the Supreme Court favorable to the accused when the accused has already
served the full term for a crime which the Court has declared non-existent.
(Gumabon v. Director of the Bureau of Prisons, G.R. No. L-30026, Jan. 30,
1971). However, it will not lie if the penalty of imprisonment imposed by
the court is longer than that allowed by law. Such error of judgment may be
corrected by appeal or by the President. (Pomeroy v. Director of Prisons, G.R.
No. L-14284, Feb. 24, 1960).
The writ of habeas corpus cannot be issued in cases in which the Bureau of
Immigration has duly ordered the deportation of undocumented aliens,
specifically those found guilty of illegally entering the Philippines with the
use of tampered and previously cancelled passports. (Tung Chin Hui v.
Rodriguez, G.R. No. 141938, April 2, 2001).
Q: May a wife secure a writ of habeas corpus to compel her husband to
live with her in the conjugal home?
A: No. Marital rights including coverture and living in conjugal dwelling
may not be enforced by the extra-ordinary writ of habeas corpus. In case the
husband refuses to see his wife for private reasons, he is at liberty to do so
without threat of any penalty attached to the exercise of his right. That is a
matter beyond judicial authority and is best left to the man and womans
free choice. (Ilusorio v. Bildner, G.R. No. 139789, May 12, 2000).

Page 96 of 103

But if we reach the last sentence of Section 4, then the problems will now
come out. Because in the last sentence of Section 4, it is provided that if a
person has been convicted or charged of a crime, he is under detention by a
lawful process issued by a court, there is no way that he can be released
from detention through a petition for habeas corpus.
Rule 102 SEC. 4. When writ not allowed or discharge
authorized.If it appears that the person alleged to be
restrained of his liberty is in the custody of an officer under
process issued by a court or judge or by virtue of a judgment or
order of a court of record, and that the court or judge had
jurisdiction to issue the process, render the judgment, or make
the order, the writ shall not be allowed; or if the jurisdiction
appears after the writ is allowed, the person shall not be
discharged by reason of any informality or defect in the process,
judgment, or order. Nor shall anything in this rule be held to
authorize the discharge of a person charged with or
convicted of an offense in the Philippines, or of a person
suffering imprisonment under lawful judgment.
And then, if we relate Section 4 to Section 13 of Rule 102, we will meet very
strict procedural requirements which the
Rule require the petitioner to comply with so that the court will be
convinced in order to issue a writ of habeas corpus or an order of discharge.
Section 13 apples when a return is already submitted by the respondent.
Rule 102 SEC. 13. When the return evidence, and when only
a plea. If it appears that the prisoner is in custody under a
warrant of commitment in pursuance of law, the return
shall be considered prima facie evidence of the cause of
restraint; but if he is restrained of his liberty by any alleged
private authority, the return shall be considered only as a
plea of the facts therein set forth, and the party claiming the
custody must prove such facts.
You will notice that in Rule 102 although the court can issue the writ can be
issued without hearing the other side as long as the petition is sufficient in
form and substance, there is nothing in Rule 102 which fixes a date when a
return should be filed in the habeas corpus. So, we rely on the discretion of
the court as to when a return should be filed by the respondent. So the
court can require the respondent to file the return after 15 days, 20 days or
30 days as the case may be.
If the respondent indeed files a return, Section 13 provides that if the
respondent is a public officer, and he admits that he is detaining the
petitioner, the detainee, but under some process issued by the court, that
return is prima facie presumed to be correct. That means the detention is
correct, if that is the tenor of the return submitted by the respondent. But if
the detainer is not a public officer, a private individual, when the return
says that the detention by the respondent private individual is lawful, it is
not considered as presumably correct. It will only be considered as a plea.
Why is this Rule very prejudicial to the detainee? Let us say the respondent
is the chief of the PNP, he is required to file a return. He submits a verified
return saying that they are detaining petitioner based on court processes
authorizing detention by the PNP. Insofar as the habeas corpus court is
concerned, the detention is presumably lawful. So it is up to the petitioner
to contravene this disputable presumption of regularity in the performance
of service by the PNP. From a purely evidentiary angle, that will make it
hard for the petitioner to disprove the disputable presumption created in
Section 13, that the detention is prima facie presumed to be an orderly and
lawful detention.
Why do we say this? Because if the respondent has in his favor that the
detention is prima facie proper, then, he does not have to present any
evidence at all about the lawfulness of the detention. He enjoys a
presumption created by law. It is the burden of the petitioner to disprove
that presumption, to present the quantum of evidence necessary to dispute
the presumption of regularity given in the Rules and by substantive law.
If the respondent enjoys this disputable presumption that the detention is
lawful, the quantum of evidence required in the RoC to defeat a disputable
presumption is of a much higher level, that is the level of clear and
convincing evidence. But remember that habeas corpus is not a criminal
case. It is a special civil action akin to an ordinary civil action or even a
special civil action, and the quantum of evidence in ordinary or special civil
actions is just preponderance of evidence. But in habeas corpus, because
the respondent enjoys a disputable presumption, that the detention is
lawful and proper, it will create a very big burden on the part of the
petitioner to present evidence that will reach the level of clear and
convincing evidence to disprove that disputable presumption. That has
always been the rule that was followed in habeas corpus cases.
But if the one detaining is not a public officer, a private individual, then we
dont apply this disputable presumption of regularity. For instance, if a
woman gives birth to an infant in a clinic, and when she wants to leave the

clinic, the clinic tells the woman that she is allowed to leave, but the infant
must be left behind and will stay there until the woman has fully paid the
medical bills. That could be the subject of habeas corpus, because the lawful
custody of the mother is being unlawfully withheld from her, as means of
leverage against the woman to enforce payment of hospital bills. And if
there is a return submitted by the owner of the clinic, it is up to him to
prove that the detention is lawful. The quantum will only be preponderant
evidence, which is the same quantum the petitioner will also be required to
submit to court.

In other words, when it comes to habeas corpus, if you look at it solely from
a procedural point of view, the aces are in the hand of the respondent public
officer. He can file a very simple return that is effectively a general denial, if
we are going to apply the rules for ordinary civil actions. The statement of
denial of custody is a general denial as it does not give the circumstances
upon which he relies upon to support that denial. That is allowed in habeas
corpus. This because, habeas corpus is not a civil action, and therefore, the
rules of ordinary civil procedure cannot be applied to a petition for habeas
corpus.

In Section 4 also, if you notice, if there is already a conviction by the court,

and the convict is now in jail, a petition for habeas corpus will not be proper
in order to obtain his release. But, there are several exceptions to this rule.
Even if a person is already convicted of an offense, and the conviction has
become final and executory, and he is now serving sentence, he can still
obtain his release through a petition for habeas corpus if the situation is
covered by the Rule on DNA evidence (A.M. No. 06-11-5-SC). There is a
section on the circular on DNA evidence entitled post-conviction DNA
testing.

There are several procedural defects that a petition of habeas corpus will
have to waive if we rely solely on Rule 102. These defects were pointed out
a while ago. A general denial is allowed. We cannot compel a respondent to
give particulars in support of that denial.

(A.M. No. 06-11-5-SC)SEC. 10. Post-conviction DNA Testing.

Remedy if the Results Are Favorable to
the Convict.The convict or the prosecution may file a petition
for a writ of habeas
corpus in the court of origin if the results of the post-conviction
DNA testing are
favorable to the convict. In case the court, after due hearing, finds
the petition to be
meritorious, it shall reverse or modify the judgment of conviction
and order the release
of the convict, unless continued detention is justified for a lawful
cause.
A similar petition may be filed either in the Court of Appeals or the
Supreme
Court, or with any member of said courts, which may conduct a
hearing thereon or
remand the petition to the court of origin and issue the appropriate
orders.
If a person is convicted of a crime, he is now in jail because the judgment
has become final and executory. While in jail, he can move for DNA
examination. If the DNA examination results are favorable to him, in the
sense that the findings create a doubt as to whether or not he is the one
who committed the crime, he can obtain his release through a petition for
habeas corpus. In other words, the judgment of conviction that has become
final and executory can be overturned by a petition of habeas corpus.
Remember that the judgment is now final and executory, and if we use civil
law, there is now res judicata. But DNA Circular says that in a postconviction DNA testing authorized by the court, if the finding creates a
doubt as to whether the detainees stay in jail is still proper, an RTC can
entertain a petition of habeas corpus and overturn a judgment of conviction
that has become final and executory.
There are other instances where a judgment of conviction although final
and executory can be defeated by a petition for habeas corpus. In one case,
there was a judgment of conviction, serving his sentence. While the convict
was serving sentence, the Congress enacted a law which reduced the
penalty for the crime committed by the convict. Since the convict has served
the sentence as imposed by the new law, he filed a petition for habeas
corpus, saying that he has already served the sentence, and therefore his
stay in jail constitutes deprivation of his liberty, a case of unlawful
detention. And the court issued the writ of habeas corpus and ordered the
release of the convict. (Robin Padilla case)
So simply because there is a final judgment of conviction, it does not mean
to say that petition for habeas corpus is no longer available as what Section
4 intends to say as a message. There are several instances still where a final
judgment of conviction can be overturned, and the convict will be released
from custody.
In habeas corpus also, when it comes to a return filed by a respondent
public officer, if the respondent tells in the return that he has custody
of the detainee a few months ago, but the detainee has already been
released by said officer, with documentation showing that the
detainee has already been release, what is the effect of this return
upon the petition of habeas corpus?
The SC said that if the detainee has already been released, and proven by
preponderance of evidence, then the petition for habeas corpus has become
moot and academic and the petition for habeas corpus is going to be
dismissed.
Or, in other instances when a public officer submits a return consisting of
one sentence, stating that he does not have the petitioner in his custody,
that is a sufficient return according to the SC.

Another procedural defect is that a person, not a detainee, who files a

petition must show to the court why he is interested in the release of the
detainee. If he cannot show any interest in the freedom of the detainee, he
will be considered as not having the standing to file the petition for habeas
corpus.
And then, when it comes to evidentiary rules, Section 13 will always
support the stand of the respondent public officer who is detaining person.
Every time that he asserts that the detention was because of some process
issued by a court, his stand will be presumed, although disputable, to be
correct. Therefore, if the stand of the public respondent is the correct stand,
the habeas corpus court will consider the detention of the detainee as one
that is lawful and proper.
When it comes to appeal, we have a special rule when it comes to habeas
corpus. In spite of the different decisions of the SC in the past as to the
period of appeal in habeas corpus cases, the SC finally resolved that the
period to appeal in habeas corpus cases is the one found in BP 129. The
period of appeal is 48 hours, not 15 days, not 30 days. And the SC relied
solely on provisions of BP 129. If you read the last chapter on general
provision of BP 129, there really is a 48 hour period in which to perfect an
appeal in habeas corpus cases.
Since there is a respondent in habeas corpus cases, do we consider that as
one in personam or is it one in rem?
This another settled matter. SC held that it is a proceeding in rem, although
there is a particular respondent impleaded in the action.
If we analyze the effect of authorizing a petition for habeas corpus in order
to obtain the release of a person in jail or already serving a sentence by
virtue of a judgment of conviction rendered by a competent court, like the
rule on post-conviction DNA testing, we will immediately appreciate that
habeas corpus is a means by which we can attack collaterally a final and
executory judgment. That is why, when we are talking about Rule 47,
annulment of judgments in civil cases, we said that while annulment of
judgment in Rule 47 is not applicable to a criminal case, the remedy
available in a criminal case is more convenient, because the remedy
available in a criminal case to defeat a final and executory judgment is
simply a petition for habeas corpus.
Why is habeas corpus a collateral attack on a judgment?
Because the relief which the petitioner in habeas corpus seeks is for the
court to issue an order saying that the detention is unlawful and there is
deprivation of liberty. The habeas corpus court will not determine directly
whether or not the conviction is proper or should be set aside, and that is
why it is always a collateral attack from a judgment.
If you compare habeas corpus to annulment of judgment, we will readily
conclude that annulment of judgment is really a direct attack against the
final and executory judgment because the relief which the petitioner in
Rule 47 seeks is to declare the judgment null and void, it should be set aside
because of lack of jurisdiction over the subject matter or the person, or
based on extrinsic fraud. That is not what habeas corpus does.
When the habeas corpus court releases a person on a finding that his
confinement or detention is unlawful. But in declaring that his confinement
is unlawful, the court will effectively say that there really is something
wrong with the judgment that has been rendered by the court. But the
habeas corpus court does not say that the court did not have jurisdiction
over the subject matter or the person, or that there was fraud committed
during the pendency of the case.
A habeas corpus court, since it is trying a special proceeding, will also be
acting with a very limited jurisdiction. So if there is a petition for habeas
corpus, and there is an allegation that the petitioner or detainee is being
unlawfully detained, and that he is being deprived of his liberty, the
detainee/petitioner cannot apply for the issuance of preliminary
mandatory injunction in order to compel the immediate release of the
detainee. This is because the court will be acting in a limited jurisdiction in
the sense that what the court will do only is to determine whether or not
there is unlawful deprivation of liberty. That independent action will no
longer be a special proceeding; it will be an ordinary action for the recovery

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of damages. This is to emphasize that a habeas corpus court is acting like a

settlement court, one having a very limited jurisdiction.
Because of the procedural defects that we have always encountered when it
comes to a petition for habeas corpus, the SC issued circulars on amparo
and habeas data.
So one of the purposes of the circulars on amparo and habeas data is to
remedy the governing rules and the procedure we usually apply to petitions
for habeas corpus. And the concept of amparo and even habeas data is of a
much larger scope than in habeas corpus. You will note that in the instances
given in Rule 102 in habeas corpus, it is intended to meet the fact or the
situation that there is an actual deprivation of liberty, actual unlawful
detention or there is an actual unlawful withdrawal of custody.
But in amparo, it is not only limited to an actual violation of a constitutional
right to life, liberty and security. It also covers a threat to violate a right,
which is not possible in habeas corpus. So if the petitioner simply alleges in
habeas corpus that the respondent has threatened him several times to
deprive him of his right to liberty by unlawfully detaining him, that will not
be a proper ground for habeas corpus. What habeas corpus requires is an
actual deprivation liberty because of an actual detention. In amparo, what is
also covered is a threat of the right to life, liberty and security. And of
course, in the second part of the second paragraph of amparo, extralegal
killings and enforced disappearances are also included in the writ of
amparo.
SECTION 1. Petition. The petition for a writ of amparo is a
remedy available to any person whose right to life, liberty
and security is violated or threatened with violation by an
unlawful act or omission of a public official or employee, or of
a private individual or entity.
The writ shall cover extralegal killings and enforced
disappearances or threats thereof.
As late as 2009, there was a criticism hurled at the circular on amparo on
the ground that although amparo appears to favor the respondents because
enforced disappearance and extralegal killings are included, that there is no
meaning given to the term enforced disappearance in the circular for
amparo. That has been remedied. Congress enacted a law last year giving a
definition of enforced disappearance. And under that law, enforced
disappearance is now considered as a criminal act, although there are
predicate offenses enumerated in that law. So, we now have a statute which
considers enforced disappearances as a crime.
Extralegal killings are killings committed without due process
of law, i.e. without legal safeguards or judicial proceedings. As
such, these will include the illegal taking of life regardless of the
motive, summary and arbitrary executions, salvagings even of
suspected criminals, and threats to take the life of persons who
are openly critical of erring government officials and the like. On
the other hand, enforced disappearances are attended by the
following characteristics: an arrest, detention or abduction of a
person by a government official or organized groups or private
individuals acting with the direct or indirect acquiescence of the
government; the refusal of the State to disclose the fate or
whereabouts of the person concerned or a refusal to
acknowledge the deprivation of liberty which places such
persons outside the protection of law. (Annotation to the Writ of
Amparo)
Q: What are extralegal killings?
A: Killings committed without due process of law, legal safeguards or
judicial proceedings. (Secretary of National Defense v. Manalo, G.R. No.
180906, Oct. 7, 2008) These include the illegal taking of life regardless of the
motive, summary and arbitrary executions, salvaging even of suspected
criminals, and threats to take the life of persons who are openly critical of
erring government officials and the like.
Q: What are enforced disappearances?
A: An arrest, detention or abduction of a person by a government official or
organized groups or private individual acting with the direct or indirect
acquiescence of the government; the refusal of the State to disclose the fate
or whereabouts of the person concerned or a refusal to acknowledge the
deprivation of liberty which places such persons outside the protection of
law. (Secretary of National Defense v. Manalo, G.R. No. 180906, Oct. 7, 2008)
You will also notice the improvements in the circulars on amparo and
habeas data practically rectifies the stringent rules that we have always
applied to habeas corpus. For instance, compared to habeas corpus, in a
petition for amparo, there an express acknowledgement in the circular that
anybody can file a petition for a writ of amparo. An NGO or any stranger can
file a petition for a writ of amparo; unlike in habeas corpus where although
the Rules say that the detainee or any person on this behalf can file, we do

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not have that restrictive interpretation that the SC has made in habeas
corpus cases. So, a stranger can file a petition for a writ of amparo, and he
does not have the burden to show why a writ of amparo should be issued,
although the victim is not at all related to him, he will have the proper
standing in court insofar as the filing of amparo is concerned.
You will notice that there is an order of preference.
Q: Who may file the petition?
A: Any aggrieved party may file the petition. It may also be filed by any
qualified person or entity in the following order:
1. Any member of the immediate family, namely: the spouse, children and
parents of the aggrieved party;
2. Any ascendant, descendant or collateral relative of the aggrieved party
within the fourth civil degree of consanguinity or affinity, in default of those
mentioned in the preceding paragraph; or
3. Any concerned citizen, organization, association or institution, if there is
no known member of the immediate family or relative of the aggrieved
party.
NOTE: The filing of a petition by the aggrieved party suspends the right of
all other authorized parties to file similar petitions. Likewise, the filing of
the petition by an authorized party on behalf of the aggrieved party
suspends the right of all others, observing the order established herein.
(Sec. 2).
With respect to the return in amparo, if we compare it to habeas corpus,
there is a very big improvement. In amparo and even in habeas data, there
is a very clear statement that a general denial is not allowed. So if the
respondent submits a return containing a general denial, that will be
disregarded by the court and then the court may cite the respondent in
contempt of court; unlike in habeas corpus wherein a general denial is
allowed.
With respect to the evidentiary rules, what is the quantum of evidence
required in amparo?
You are familiar with the circular which says that although amparo is being
heard by a court, not by a quasi-judicial body, the evidence required on
both parties is merely substantial evidence. And the respondent cannot
capitalize on a disputable presumption of regularity in the performance of
official duty.
So if the respondent is a public officer, which is an essential element in a
petition for amparo, even if the respondent will say that he has in his
custody or is detaining the petitioner, and he submits documents showing
that the detention is supported by orders of another court or another body,
he cannot enjoy the presumption of regularity in the performance of official
duty. So, the amparo court will not look at the detention as a proper and
regular detention. It will still look at the detention as more likely to be an
unlawful detention of the petitioner. And the petitioner in amparo cases
will only be required to reach the quantum of evidence called substantial
evidence, the quantum of evidence applied only in quasi-judicial bodies. In
court proceedings, the usual quantum of evidence is usually proof beyond
reasonable doubt, preponderance of evidence or clear and convincing
evidence, which should normally be applied to a proceeding for amparo.
But the SC has lowered the quantum in amparo, although the court is not a
quasi-judicial body. The respondent cannot set up the defense the theory
should be presumed to be proper and regular due to the disputable
presumption of regularity in the performance of official duty.
Last year, the court decided the case entitled Bambico vs. Nieva (June
2012). The SC clearly spelled out the principle that in a petition for amparo,
there should be an allegation essential to the succession for the prosecution
of the petition that the respondents or the defendants are agents of the
state; or even if the respondents are only private citizens, there should be
an allegation that these respondents have been instructed or they have
been used by government agents in causing the enforced disappearance or
violation of the constitutional right of the petitioner. SC said if there is no
such allegation as to the participation of government agents, the petition for
amparo will fail. It will simply be a criminal act that has been committed by
private individuals. That is not a part of the circular, that when the SC was
given a chance to explain the concept of amparo in relation to conventions
entered into among several states of which the Philippines is a member, the
SC emphasized this essential allegation: that there should be a participation
by the state or by agents of the state in causing the enforced disappearance
of the petitioner.
Also from another procedural angle, in habeas corpus, a habeas corpus
court has the final say in fixing the submission of a return. In amparo, there
is a 72 hour period fixed in the circular. And then, if you will notice in the
circular on amparo, there is a long deliberation of prohibited pleadings and
motions, similar to that in summary procedure, small claims procedure, and
even in habeas date. Whereas there are no prohibited pleadings and
motions in Rule 102 with respect to a petition for habeas corpus.

Another important difference between habeas corpus and amparo is the

express acknowledgment by the court now of the existence of provisional
remedies. In habeas corpus, we cannot apply for a provisional remedy. But
in the circular for amparo, there are 4 interim reliefs. They are effectively
provisional remedies that could accompany petition for a writ of amparo.
They are Protection Order, Inspection Order (IO), Production Order and
Witness Protection Order (WPO).

known only to the petitioner or to the aggrieved party. So, he is the only one
authorized to file this petition for habeas data.

The IO and Production Order as interim reliefs in amparo are available to

both petitioner and respondent. But the Protection Order and WPO` are
both available only to the petitioner. And in these Production Order and IO
in amparo, the amparo court should conduct a hearing before issuing these
orders. The amparo court cannot simply grant a motion ex-parte for the
issuance of these interim reliefs.

PETITION FOR ADOPTION

Q: What is adoption?
A: It is a juridical act, a proceeding in rem, which creates between two
persons a relationship similar to that which results from legitimate
paternity and filiation.

You will also notice a big difference in amparo and habeas corpus. The
appeal in amparo cases is always to the SC under Rule 45. And the issues
that could be raised, even if it is the SC that will be hearing it, could be both
issues of fact and issues of law, although the mode of appeal is under Rule
45. This is a departure from the usual principle that we apply when we
appeal under Rule 45. The general rule that we apply in an appeal under
Rule 45 to the SC is that we can only raise questions of law. But when it
comes to amparo cases that are appealed to the SC under Rule 45, the
appellant can raise both questions of fact and questions of law.
You will also notice that in the circular on amparo, there is a provision
which says it can co-exist with other criminal, civil or administrative
proceedings that are filed with the competent court or body. So there is
nothing wrong if a petition for a writ of amparo involving enforced
disappearance or extralegal killing filed in an amparo court, and there is a
criminal case is filed before an RTC concerning the enforced disappearance.
The two can stand together, but with several qualifications.
Q: May a separate action be filed after filing a petition for a writ of
amparo?
A: Yes. It does not preclude the filing of separate criminal, civil or
administrative actions. (Sec. 21)
Q: What is the effect if a prior criminal action has been filed?
A: No petition for a writ of amparo shall be filed. The reliefs under the writ
shall be available by motion in the criminal case. (Sec. 22)
The procedure under this Rule shall govern the disposition of the reliefs
available under the writ of amparo.
If the criminal case is filed ahead of a petition for amparo, we can no longer
file a petition for writ of amparo as a special proceeding, but we can ask for
the issuance of a writ of amparo through a motion in that pending case. So
in that sense, amparo now becomes a provisional remedy in that case filed
ahead of a petition for amparo.
Will it not cause prejudice to the movant if we require the movant to
ask for a writ of amparo in the pending criminal case, given that in a
criminal case, in order to prove the guilt of the accused, the
prosecution must meet the quantum of evidence known as proof
beyond reasonable doubt? Do we not make it difficult for the movant
to convince the court to issue a writ of amparo since we are filing a
motion for a writ of amparo in a court trying a criminal case?
That is solved by the provisions of the amparo circular. If there is already an
existing criminal case, the petitioner will no longer be allowed to file a
petition for amparo. Instead, he will be required to file a motion for the
criminal court to issue a writ of amparo, insofar as the criminal court is
concerned, the criminal court will use the quantum of evidence in the
amparo circular, although it is trying a criminal case. In other words, the
criminal court will convict the accused through proof beyond reasonable
doubt, but to convince the court to issue a writ of amparo concerning
enforced disappearance and extrajudicial killing, the quantum of evidence
required of the movant will be substantial evidence. So we find a situation
where there are two different degrees of proof that will be used by the
court in resolving these issues. The criminal case will require proof beyond
reasonable doubt, but the issuance of a writ of amparo will require only
substantial evidence.
But if the criminal case is filed later than the petition for a writ of amparo,
there will only be a consolidation of cases. The petition for the writ of
amparo will retain its existence as a special proceeding but it will only be
consolidated with the criminal case.
With respect to habeas data, we practically follow the procedure that is
given in amparo, except that, this time in habeas data, the circular does not
authorize other persons to file a petition for habeas data. Generally, it is
only the aggrieved party who can file properly a petition for habeas data. It
is only when the records are kept by a government agency where the
immediate family of the relatives of the victim can file a petition for habeas
data. A stranger or an NGO are not authorized to file a petition for habeas
date. And it is easy to understand why we do not follow the order of
preference followed in amparo. Because in habeas data, it is concerned with
records that are supposed to be confidential. They are supposed to be

We follow the same procedure in amparo, there are prohibited pleadings

and motion. And habeas data can also be used as an interim relief and as a
provisional remedy when a criminal case has been filed of the petition for
habeas data.

Q: What is the State policy on adoption?

A: It is the policy of the State to ensure that every child remains under the
care of his or her parent/s and be provided with love, care, understanding
and security towards the full and harmonious development of his
personality.
Q: What is a Child Legally Available for Adoption?
A: A Child Legally Available for Adoption refers to a child in whose favor a
certification was issued by the DSWD that he/she is legally available for
adoption after the fact of abandonment or neglect has been proven through
the submission of pertinent documents, or one who was voluntarily
committed by his/her parent(s) or legal guardian. (Sec. 2(5), R.A. 9523).
Q: What is the requirement in order that the child may be declared
legally available for adoption?
A: There must be a certification which shall be issued by the DSWD in lieu
of a judicial order, thus making the entire process administrative in nature.
The certification, shall be, for all intents and purposes, the primary evidence
that the child is legally available in a domestic adoption and in an intercountry adoption proceeding (Sec. 8, Ibid.).
Q: Can minor children be legally adopted without the written consent
of a natural parent on the ground that the latter has abandoned them?
A: No. Adoption cannot be had without the written consent of a natural
parent who has allegedly abandoned them. Abandonment cannot be merely
presumed, it must be duly proven. Moreover, there should be proof of
emotional abandonment. (Cang v. CA, GR No. 105308, Sept. 25, 1998).
Q: Is publication of the hearing for adoption necessary for the
adoption to be valid?
A: Indeed, publication of the scheduled hearing for the petition for adoption
is necessary for the validity of a decree of adoption but not for the purpose
merely of taking a deposition. In taking a deposition, no substantial rights
are affected since depositions may or may not be presented or may even be
objected to when formally offered as evidence at the trial of the main case
later on. the philosophy behind adoption statutes is to promote the welfare
of the child and every reasonable intendment should be sustained to
promote that objective. (Republic v. Elepano, G.R. No. 92542, Oct. 15, 1991).
Note: The necessary consequence of the failure to implead the civil
registrar as an indispensable party and to give notice by publication of the
petition for correction of entry was to render the proceeding of the trial
court, so far as the correction of entry was concerned, null and void for lack
of jurisdiction both as to party and as to the subject matter. (Republic v. CA,
G.R. No. 103695, Mar. 15, 1996).
Q: What is the effect of adoption created under the law of a foreign
country?
A: It is entitled to registration in the corresponding civil register of the
Philippines. It is to be understood, however, that the effects of such
adoption shall be governed by laws of the Philippines. (Marcaida v. Aglubat,
G.R. No. L-24006, Nov. 25, 1967)
A petition for adoption could carry with it 2 other special proceedings for
change of name and correction of entries in the records of the local civil
registrar, or it can stand by itself without the others. In one petition, we
may have 3 special proceedings. And these 3 special proceedings are
governed by different Rules.
Is this not a violation of the RoC? Does not civil procedure prohibit joinder
of causes of action when these causes of action are governed by different
Rules? Well, it does, that is true. In Rule 2, that is one of the limitations to
joinder of causes of actions. A party may join as many causes of action he
may have, but he should see to it that these causes joined are not governed
by different procedures. If so, there will be misjoinder of causes of action.
The issues misjoined will be dropped, and the party will be forced to file a
separate ordinary civil action.
Why then does the circular on adoption allow a petition for adoption
change of name and correction of entries when they are governed by
different procedures?
If you read the Domestic Adoption Act, Rule 103 on Change of Name and
Rule 108 on Cancellation Or Correction Of Entries In The Civil Registry, you

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will immediately realize that the procedures to be followed are really

different from one another. Their essentials are different, jurisdictional
requirements are different, but we allow joinder because these are special
proceedings, they are not ordinary civil actions, and therefore, they cannot
be governed by Rule 2 on the prohibition concerning misjoinder of action.
In special proceedings, we do not apply generally the rules for ordinary civil
actions. They are governed by their own set of rules. That is why we allow
joinder of several special proceedings, although they are governed by
different rules.
In adoption, in the past, there was a 4th special proceeding which SC
allowed to be included in this petition. This was a declaration of a minor to
be considered as legally available for adoption. The court in the same
proceeding can declare that the child is legally free for purposes of
adoption. We do not have that any more as a special proceeding. A court has
no authority to declare a minor to be legally free for purposes of adoption.
That is now the exclusive authority of the Secretary of the DSWD. So if the
Secretary of Social Welfare issues an order declaring a minor as legally free
for adoption, that declaration will be binding upon all courts. That is the
effect of giving to the secretary the authority to declare a minor legally free
for purposes of adoption.
But if we look only adoption as a special proceeding, then there are 2 laws
governing adoption in the country. The first is Inter-Country Adoption Law,
and the Domestic Adoption Act. The Domestic Adoption Act contains its
own rules under this law, and we do not necessarily follow anymore follow
the rules of adoption in the RoC. We should rely solely on what the
Domestic Adoption Act provides, although in most instances, the provisions
of the RoC would still be applicable because the provisions of the Domestic
Adoption Act are reiterations of the procedures given in the RoC.
What makes it difficult for adopters or proposed adopters to make use of
adoption under the Domestic Adoption Act is the requirement that the
adopter must have resided in the Philippines continuously for 3 years. That
makes it extremely difficult for any person wishing to adopt to make use of
the Domestic Adoption Act. And the law is very strict in saying that the 3year period must be continuous in character. There are some breaks
allowed, but there should be an order by the adoption court. Because of this
difficulty in making adoption convenient to the adopter, we have the InterCountry Adoption Law, which is not judicial in character, purely
administrative in character. Although, we have this inter-country adoption
board (ICAB), this applies only to Filipinos who are minors, unlike in
Domestic Adoption Act, the adoptee could be an alien or a Filipino. Under
the ICAB, this is limited to Filipinos who have not yet reached the age of
majority. Usually, they are the children declared by the Secretary of Social
Welfare to be legally free for purposes of adoption.
Although we call the proceeding as purely administrative, it is not the ICAB
that issues a decree of adoption, unlike in domestic adoption where it is the
family court that issues a decree of adoption. The Inter-Country Adoption
Act does not authorize the board to issue a decree of adoption. The ICAB
will only be responsible for the matching for the adopter in the foreign
country and the adoptee who is in the Philippines. In the process of this
matching, it is the responsibility of the ICAB to determine the qualifications
of the adopter, his financial capability, and also the possibility that the
adopter and adoptee may not like each other once they start living together.
So who will eventually issue the decree of adoption under the ICAB?
It is a foreign court. It is the court of the country where the adopter resides.

for revocation of adoption, or rescission of adoption, the petitioner is the

adoptee, and the relief he seeks for the family court is for the family court to
he seeks for the family court is for the family court to revoke or rescind the
decree of adoption. If you will notice in the Domestic Adoption Act, this
remedy is exclusively available to the adoptee only. If the adoptee and
adopter cannot live together peacefully, the adoptee is given this remedy to
file an independent special for the revocation or rescission of the adoption.
The venue is where the adoptee resides. But when it comes to adoption, the
venue is the place of residence of the adopter. It is only the adoptee who can
avail of the special proceeding for the revocation or rescission of the
adoption. The adopter cannot avail of this remedy. So if it is the adopter
who is the victim of abusive conduct by the adoptee, the adopter cannot go
to court for the rescission or revocation of the decree of adoption. But if it is
the adoptee who is the victim of abusive conduct by the adopter, he can
avail of this remedy.
Is it unfair to the adopter who could a victim of abusive conduct by the
adoptee?
It is not, according the Domestic Adoption Law as the law gives to the
adopter a remedy. The remedy given is for the adopter to disinherit the
adoptee. That is the only recourse given to the adopter given under the law
if he is a victim of abusive conduct from the adoptee.
Why the different treatment when it comes to the availability of
remedies by the adopter and the adoptee?
The reason is because these adoption laws are construed to be in favor of
the adoptee, of the minor.
If the adoptee is given this recourse while the adopter is given remedy
to disinherit adoptee, is it not easier for the adopter to avail of the
remedy because what the law tells us is that what an adopter must do
is very simple if will just disinherit the adoptee?
If you will look at the provisions of the NCC concerning disinheritance, you
will notice that disinheritance must be contained in a last will and
testament. And if that must be contained in a last will and testament, if the
adopter dies, that will must be submitted for probate, it must be
accepted/allowed by the court in a probate proceeding. There must be
proof that the will has complied with the formalities contained in the NCC. If
by chance the will of the adopter is not admitted to probate, then that
remedy of disinheriting becomes ineffective, because if the will is not
admitted to probate, there will be no disinheritance, and the adoptee will
continue to be an heir of the adopter. Unlike a revocation or rescission of a
decree of adoption, in which the decree of adoption will be set aside
altogether, there will be no more relationship between the adopter and
adoptee.
RULE 108 CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL
REGISTRY
Q: What is the nature of proceedings in Rule 108?
A: It is summary if the entries in the civil register sought to be corrected are
clerical or innocuous in nature. However, where such entries sought to be
corrected or changed are substantial, the proceedings are adversarial in
nature. (Republic v. Valencia, G.R. No. L-32181, Mar. 5, 1986)
Q: What is meant by appropriate adversarial proceeding?
A: One which has opposing parties; contested as distinguished from an ex
parte application, one of which the party seeking relief has given legal
warning to the other party, and afforded the latter an opportunity to
contest it. (Republic v. Valencia, Ibid.)

The adopter will come to the Philippines only when he is going to fetch the
adoptee. So throughout the life of this administrative proceeding, it is likely
the adopter has not gone to the Philippines at all. He is an alien residing
abroad. He manifests his intent to adopt a legally free Filipino minor. And
there is an agency that will get in touch with another agency stationed in
the Philippines, and these two agencies will be getting in touch with one
another as to the requirements and as to the possibility of the adopter
adopting the proposed adoptee. So when the ICAB is finally convinced that
the adoption is for the benefit of the adoptee, the ICAB will require the
adopter to come to the Philippines to fetch the adoptee. That is the only
time when we require the adopter to come to the Philippines, only for the
purpose of fetching the adoptee. So that after the two had left for abroad,
the adoptee will necessarily will be at the mercy of the adopter. No one will
be able to protect the adoptee once he is allowed to leave the country.
There are remedies concerning repatriation if the relationship turns out to
be sour, but that will always be to the prejudice of the adoptee.

Note: Rule 108, when all the procedural requirements thereunder are
followed, is the appropriate adversary proceeding to effect substantial
correction and changes in the entries of civil register (Lee v. CA, G.R. No. L118387, Oct. 11, 2001).

It is the foreign court where the adopter resides that will issue the decree of
adoption, because it is with that foreign court where the formal petition for
adoption was filed, not in our family courts nor the ICAB.

The last special proceeding which can be attached to a petition for adoption
is that in Rule 108, correction of entries in the records of the local civil
registrar. For purposes of the Bar, we should be concerned principally with
what entries in the records of the local civil registrar could be changed
administratively or under Rule 108.

Insofar as domestic adoption is concerned, there is also a separate special

proceeding, although related to adoption, it is always separate from a
petition of adoption itself, it is rescission or revocation of adoption, also
governed by the Domestic Adoption Act. In this separate special proceeding

Page 100 of 103

Q: What are the requisites of adversarial proceedings?

A:
1. Proper petition is filed where the Civil Registrar and all parties interested
are impleaded;
2. The order of hearing must be published once a week for three
consecutive weeks;
3. Notice must be given to the Civil Registrar and all parties affected
thereby;
4. The civil registrar and any person interested, may within 15 days from
notice or from the last date of publication, files his opposition thereto; and
5. Full blown trial. (Republic v. Valencia, supra.)

Can there be a change of citizenship?

In the records of civil registry in the certificate, can there be a change of

filiation from legitimate to illegitimate?
Can there be a change of sex or gender?
Can there be a change of name?
In the case of citizenship in the records in the local civil registry, as entered
in the birth certificate of a person, do not forget the case of Republic vs.
Valencia. That is the leading case where the SC said that the entry in the
citizenship from Chinese to Filipino can be allowed. Although, it is
substantial, that is not a mere clerical error. It is not simply innocuous, we
are changing the citizenship from Chinese to a Filipino. SC said that it can be
done under Rule 108 as long as the court will conduct a full-blown hearing,
different than the hearing contemplated in Rule 108, which is a summary
hearing.
When it comes to change or correction of entry involving a substantial
change, it can be done, so long as a full-blown hearing is done under Rule
108. There is a need for respondents the chance to present its own
evidence, to cross-examine the witnesses of the petitioner and they are
notified of everything the court will do in the petition under Rule 108 with
respect to citizenship.
With respect to filiation, in the certificate of birth, there is an item for
filiation, whether legitimate or illegitimate. There was a petition for the
correction of filiation of the children born to a particular woman where the
petitioner filed his petition to correct the entry in that certificate of birth
from legitimate to illegitimate. The petitioner said that she is the lawful
spouse of the person mentioned as the father of the children, but the
children are not hers, but the children of the mistress of her spouse. They
cannot be considered as legitimate children. They should be considered as
illegitimate children. So the issue to be resolved was that could it be done
under Rule 108 as the change that was going to be involved was substantial.
Changing filiation of the children from legitimate to illegitimate will mean
that the hereditary rights of these children will be significantly reduced. As
legitimate children, they are entitled to so much of the estate, whereas as
illegitimate children, each will get of what a legitimate child would get.
SC, applying the principle in Republic vs. Valencia, also said that it could be
done as long as the hearing conducted is not a summary hearing. It is a fullblown hearing where we notify the Solicitor-General or his representative,
we comply with all the requirements given in Rule 108 concerning
publication, where the petition will be filed, to implead the local civil
registrar as a respondent in that petition. The bottom line is it can be done
as long as the hearing conducted is a full-blown hearing. The process is
adversarial, according to SC.
With respect to gender, we have now a new law authorizing an
administrative change of gender from male to female or vice versa, enacted
last year.
It gives to the local civil registrar the authority to change the gender of a
person. But, the limitation in that law authorizing the local civil registrar
the authority to change the gender of a person is by reason only of a clerical
error or innocuous error.
Before this new law was enacted last year, the SC had already established
certain rules concerning sex change. The general rule, according to SC is
that we do not allow under Rule 108 a change of sex if the sex change by
reason of human intervention. For instance, if a man decides to become a
female via a medical procedure, and after such operation, he applies for
change of entry of gender from male to female (Republic vs. Silverio). SC
held that is not allowed. If there is human intervention, that will not be
allowed under Rule 108.
That was the general rule until the SC was confronted by the case of
Cagandahan (a hermaphrodite). In the case of Cagandahan, the SC allowed
the change from male to female because the SC cannot do anything about
the problem really. Even the doctor of the infant could not determine the
gender of the infant. SC called it intersexuality. If the person is intersexual,
and on the birth certificate the infant is made to appear as female, but as
years go by, upon reaching the teenage years, the features suddenly
changes from female to male, there could be sex change, SC said, because of
the reason of absence of human intervention, by reason of the constitution
form birth of the child. So, we have no sex change under Rule 108 based on
the requirements given by the SC in the Cagandahan case.
Now, here comes a new law, which authorizes a local civil registrar, to allow
administratively a correction of entry from male to female, if the entry is
proven really to be clerical or innocuous as the case may be. Under that law,
the local civil registrar or the consul to a foreign country could also use this
prerogative, provided that they are presented with records from the birth
of this individual, which will convince him that the entry made in the
certificate of birth is wrong. In other words, if the school records or
baptismal records of the child invariably indicates that the child is really a
female, but then the record shows that he is male, and then there is the
certification by a government doctor that there was no human intervention

that was made. According to this new law, the local civil registrar has the
authority to administratively change the entry concerning the gender of a
person.
This new law also enlarges the authority of a local civil registrar to change
entries. Under the old law, the local civil registrar was authorized to only
change administratively the first name and the nickname. Now it includes
therein the gender, if it is purely clerical or innocuous error, date of birth,
month of birth, but not the year of birth.
Following the procedure in challenging this exercise of the local civil
registrar of his authority under the old law; and in the new law, which is
amendatory in character, it is also the one followed in the old law. There
could be an appeal to the superior, the Civil Registrar General, there could
be an appeal to the Office of the President, and from there, there could be a
petition for review that could be filed in the CA under the provisions of Rule
43. Under Rule 43, in the enumeration of quasi-judicial bodies whose
decisions may be brought to CA by way of petition for review, the
enumeration includes the Office of the President.
So, from the local civil registrar, we can go up to the Civil Registrar General,
then appeal to the Office of the President following the political law
principle of exhaustion of administrative remedies. So form the Office of the
President, we have nowhere else to go, so the only recourse now is to make
use of Rule 43, file a petition for review in the CA.
ENTRIES SUBJECT TO CANCELLATION OR CORRECTION UNDER RULE
108, IN RELATION TO RA 9048
Q: What are the entries subject to cancellation or correction under
Rule 108?
A:
1. Births;
2. Marriages;
3. Deaths;
4. Legal separations;
5. Judgments of annulments of marriage;
6. Judgments declaring marriages void from the beginning;
7. Legitimations;
8. Adoptions;
9. Acknowledgments of natural children;
10. Naturalization;
11. Election, loss or recovery of citizenship;
12. Civil interdiction;
13. Judicial determination of filiation; and
14. Change of name. (Sec. 2)
15.Gender (in the case of an intersexual or clearly clerical or innocuous
error in the entry).
Q: May the trial court issued an order declaring the nullity of marriage
under Rule 108 and change the status from married to single?
A: No, it is proper only in ordinary adversarial proceedings. (Lim v. Republic,
G.R. No. 8932, May 31, 1957)
Q: Within what period may a petition for correction or cancellation of
entries be filed?
A: The law did not fix a period within which the petition for correction
under Rule 108 in relation to Art. 412 of Civil Code may be filed.
Accordingly, such petition may be filed within 5 years from time the
petitioner discovered the error or mistake in the civil registry, and not from
the date the birth certificate was registered in the civil registry. (Lee v. CA,
supra.)
Q: Celine files a petition for cancellation of the birth certificate of her
daughter Jeanie on the ground of falsified material entries therein
made by Celines husband as the informant. The RTC sets the case for
hearing and directs the publication of the order once a week for 3
consecutive weeks in a newspaper of general circulation. Summons
was served on the Civil Registrar but there was no appearance during
the hearing. The RTC granted the petition. Jeanie filed a petition for
annulment of judgment before the CA, saying that she was not notified
of the petition and hence, the decision was issued in violation of due
process. Celine opposed saying that the publication of the court order
was sufficient compliance with due process. Rule.
A: The petition for annulment of judgment before the CA should be granted.
Jurisdiction of the court over a petition for cancellation of a birth certificate
requires reasonable notice to all interested parties and also publication of
the order once a week for 3 consecutive weeks in a newspaper of general
circulation. In this case, publication of the order is insufficient because
Jeanie, a directly concerned party, was not given reasonable notice, hence,
denied due process. The lower court, therefore, did not acquire jurisdiction.
(Ceruila v. Delantar, G.R. No. 140305, Dec. 9, 2005).
Alternative Answer:
It should not be granted. The publication of an order of hearing under
Section 4 of Rule 108 cured the failure to implead an indispensable party. A
petition for correction is an action in rem, an action against a thing and not
against a person. The decision on the petition binds not only the parties

Page 101 of 103

thereto but the whole world. An in rem proceeding is validated essentially

through publication. Publication is notice to the whole world that the
proceeding has for its object to bar indefinitely all who might be minded to
make an objection of any sort against the right sought to be established. It is
the publication of such notice that brings in the whole as a party in the case
and vests the court with jurisdiction to hear and decide it (Republic v. Kho,
G.R. No. 170340, June 29, 2007; Alba v. CA, G.R. No. 164041, July 29, 2005;
Barco v. CA, G.R. No. 120587, Jan. 20, 2004). (2007 Bar Question)
Q: Helen is the daughter of Eliza, a Filipina, and Tony, a Chinese, who is
married to another woman living in China. Her birth certificate
indicates that Helen is the legitimate child of Tony and Eliza and that
she is a Chinese citizen. Helen wants her birth certificate corrected by
changing her filiation from "legitimate" to "illegitimate" and her
citizenship from Chinese" to "Filipino" because her parents were not
married. What petition should Helen file and what procedural
requirements must be observed? Explain.
A: A petition has to be filed in a proceeding under Rule 108 of the Rules of
Court. A petition to change the record of birth by changing the filiation from
legitimate to illegitimate and petitioners citizenship from Chinese to
Filipino does not involve a simple summary correction which could
otherwise be done under the authority of R.A. 9048. Procedural
requirements include: (a) filing a verified petition; (b) naming as parties all
persons who have or claim any interest which would be affected; (c)
issuance of an order fixing the time and place of hearing; (d) giving
reasonable notice to the parties named in the petition; and (e) publication
of the order once a week for 3 consecutive weeks in a newspaper of general
circulation. (2005 Bar Question)
GUARDIANSHIP
Q: What is guardianship?
A: It is a trust relation in which one person acts for another whom the law
regards as incapable of managing his own affairs.
Note: Guardianship of minors is now governed by the Rule on Guardianship
of Minors (AM No. 03-02-05-SC) which took effect on May 1, 2003. While
guardianship of incompetents who are not minors is still governed by the
provisions of the Rules of Court on Guardianship. (Rule 92- 97)
Q: What is ancillary guardianship?
A: It refers to the guardianship in a state other than that in which
guardianship is originally granted.
Q: To what extent does guardianship extend?
A: Conflicts regarding ownership or title to the property in the hands of the
guardian in his capacity as such should be litigated in a separate
proceeding, the court in guardianship proceeding is concerned solely with
the wards care and custody and proper administration of his properties
(Villoria v. Administrator of Veteran Affairs, L-9620, June 1957)
Q: What are the general powers and duties of guardians?
A:
1. To have the care and custody of the person of the ward, and/or the
management of his estate;
2. Pay the debts of the ward;
3. To settle accounts, collect debts, and appear in actions for the ward;
4. Manage the estate of the ward frugally, and apply the proceeds to the
maintenance of the ward;
5. Render verified inventory within 3 months after his appointment and
annually thereafter, and upon application of interested persons;
6. Render to court for its approval an accounting of the property for 1 year
from his appointment and as often thereafter as may be required, and upon
application of interested persons
7. Consent to a partition of real or personal property owned by ward jointly
or in common with others. (Secs. 1-8, Rule 96; Sec. 17, A.M. No. 03-02-05-SC)
Q: What is the order of liability of the wards property?
A:
1. Personal estate and income of real estate
2. Real estate
Q: What are the requisites to authorize the guardian to join in the
partition proceedings after hearing?
A:
1. Hearing
2. Notice to relatives of the ward; and
3. Careful investigation as to the necessity and propriety of the proposed
action (Section 5)
CONDITIONS OF THE BOND OF THE GUARDIAN
Q: What are the conditions of the bond of the guardian?
A:
1. To make and return to the court, within 3 months, a true and complete
inventory of all the estate of his ward which shall come to his possession or
knowledge or to the possession or knowledge of any other person for him;

Page 102 of 103

2. To faithfully execute the duties of his trust, manage and dispose of the
estate according to the rules for the best interests of the ward, and to
provide for the proper care, custody, and education of the ward;
3. To render a true and just account of all the estate of the ward in his
hands, and of all proceeds or interest derived there from, and of the
management and disposition of the same, at the time designated by the
rules and such other times as the court directs; and at the expiration of his
trust, settle his accounts with the court and deliver and pay over all the
estate, effects, and moneys remaining in his hands, or due from him on such
settlement, to the person lawfully entitled thereto; and
4. To perform all orders required by the court (Sec. 1, Rule 94; Sec.14, A.M.
No. 03-02-05-SC).
Q: What is the purpose of the bond?
A: It is for the protection of the property of the minor or incompetent to the
end that he may be assured of an honest administration of his funds
(Herrera, Vol. III-A, p. 282, 2005 ed.)
Note: The bond of the guardian is a continuing one against the obligors and
their estates until all of its conditions are fulfilled. The mere fact that
defendant was removed as guardian did not relieve her or her bondsmen
from liability during the time she was duly acting as such guardian.
(Guerrero v. Teran, G.R. No. L-4898, Mar. 19, 1909)
Q: Does the requirement of posting a bond extend to parents who are
the legal guardians of their minor children? Explain.
A:
GR: No, if the market value or annual income of the child is P 50,000 or
below.
XPN: If the market value of the property or the annual income of the child
exceeds P50,000, the parent concerned shall furnish a bond in such amount
as the court may determine, but in no case less than 10% of the value of
such property or annual income, to guarantee the performance of the
obligations prescribed for general guardians (Sec. 16, A.M. No. 03-02-05-SC).
Q: Who may petition for appointment of guardian for resident?
A:
1. Any relative;
2. Other person on behalf of the minor;
3. Minor himself is 14 years of age; or
4. Secretary of Social Welfare and Development AND by the Secretary of
Health in case of insane minor who needs to be hospitalized. (Section 2, AM03-02-05-SC)
Q: Is court appointment necessary to enable the father and the mother
to exercise joint legal guardianship over the person and property of
minor?
A: No. The father and the mother shall jointly exercise legal guardianship
over the person and property of their minor without the necessity of a court
appointment. In such case, this Rule shall be suppletory to the provisions of
the Family Code on Guardianship (Section 1, AM -03-02-05-SC)
Q: What would the court do if an issue arises as to who has the better
right or title to the properties conveyed in the guardianship
proceeding?
A:
GR: The issue should be threshed out in a separate ordinary action as it is
beyond the jurisdiction of the guardianship court.
XPN: When the wards right or title to the property is clear and
undisputable, the guardianship court may issue an order directing its
delivery or return.
Q: What are the grounds for the appointment of a guardian over the
person or property, or both, of a minor?
A:
1. Death, continued absence, or incapacity of his parents;
2. Suspension, deprivation or termination of parental authority;
3. Remarriage of surviving parent, if the latter is found unsuitable to
exercise parental authority; or
4. When the best interests of the minor so require (Sec. 4, A.M. No. 03-02-05SC).
Q: What are the factors to be considered for the appointment of
guardian of minors?
A:
1. Moral character;
2. Physical, mental, and psychological condition;
3. Financial status;
4. Relationship of trust with the minor;
5. Availability to exercise the powers and duties of a guardian for the full
period of the guardianship;
6. Lack of conflict of interest with the minor; and
7. Ability to manage the property of the minor (Sec. 5, A.M. No. 03-02-05-SC).
Note: The court shall order a social worker to conduct a case study of the
minor and all the prospective guardians and submit his report and

recommendation to the court for its guidance before the scheduled hearing.
(Sec.9, A.M. No. 03-02-05-SC).
Q: Who may be appointed as guardian of a minor?
A: In default of parents or a court-appointed guardian, the court may
appoint a guardian of the person or property, or both, of a minor, observing,
as far as practicable, the following order of preference:
1. Surviving grandparent and, in case several grandparents survive, the
court shall select any of them taking into account all relevant
considerations;
2. Oldest brother or sister of the minor over 21 years of age, unless unfit or
disqualified;
3. Actual custodian of the minor over 21 years of age, unless unfit or
disqualified;
4. Any other person, who in the sound discretion of the court would serve
the best interests of the minor (Sec. 6, A.M. No. 03-02-05-SC).
Q: What are the grounds for opposition to petition of guardianship of
minors?
A:
1. Majority of the alleged minor; or
2. Unsuitability of the person for whom letters are prayed for (Sec. 10, A.M.
No. 03-02-05-SC).
Q: How may a petition for guardianship of minors or incompetents be
opposed?
A: Any interested person may contest the petition by filing a written
opposition and pray that the petition be denied, or that letters of
guardianship issue to himself, or to any suitable person named in the
opposition (Sec. 10, A.M. No. 03-02-05-SC; Sec. 4, Rule 9).
The rest of the special proceedings like guardianship for instance, the
guardian has the same duties as that of an administrator/executor because
both are fiduciaries. The main difference between a guardian and
administrator/executor is that a guardian has the authority by himself
alone to pay the indebtedness of his ward. The administrator/executor does
not have that authority. In settlement proceedings, we speak about statute
of non-claims. There is no statute of non-claims in guardianship.
The substantive law gives to the guardian the authority whether or not the
claim against the ward is valid and therefore should be paid by him. He does
not need express authority from the court to be able to pay a valid
indebtedness incurred by the ward.
For purposes of jurisdiction in guardianship proceedings, do not be of the
impression that guardianship proceedings are always cognizable by the
family court. If there is a guardianship proceeding involving a minor, that is
exclusively cognizable by a Family Court. But when the guardianship is over
an incompetent who is not a minor, the competent court is an RTC. The
competent court is either a family court or an RTC, depending on who the
ward is. If the ward is a minor, we go to a family court. If the ward is an
incompetent of major age, then we go to the RTC.
If you are asked to explain that this is the rule we follow, why not just
give everything to the family court? After all, that is the expertise of
the family court, a guardianship action. Why do we leave to an RTC the
guardianship of an incompetent who is a minor?
That fault is traceable to the Congress in enacting the law creating the
Family Court. In that law, the family court was given exclusive original
jurisdiction over petitions for guardianship involving a minor. The Congress
failed to notice that there could also be guardianship involving a non-minor,
that is if the ward is an incompetent. So, the SC applied literally this rule of
exclusive original jurisdiction given to a Family Court. It has authority only
when the guardianship involves a minor. But when the guardianship is over
an incompetent who is not a minor, it still an RTC that has jurisdiction
under the provisions of BP 129.
When it comes to termination of guardianship. When the guardianship is
via the family court by reason of minority, and the minor reaches the age of
majority, there is no need for the family court to issue an order directing
that the guardianship has ended. The guardianship automatically ends if the
minor reaches the age of majority. By operation of law, he is no longer a
minor.
But when the guardianship is by reason of incompetency, there is a need for
RTC to issue an order saying that the incompetency has ended, and there
must be a hearing conducted by the court. There must be a finding by the
court that the incompetent person is now competent and therefore, the
guardianship should be terminated.

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