July 20
In interpleader, the plaintiff is not interested in the property
SPECIAL CIVIL ACTION
Special civil action covered by special rules. The following special actions are
commenced by complaints.
1. Interpleader
2. Expropriation
3. Foreclosure of real estate mortgage
4. Partition
5. Forcible entry
6. Unlawful detainer
The rest may be commenced by petition. Declaratory relief and similar remedies,
review of adjudication of constitutional commissions, certiorari, prohibition,
mandamus, quo warranto, habeas corpus, contempt.
Special civil actions are covered by the general rule on venue. But there is a special
venue for quo warranto. There are three special civil actions which can be filed, or
are within the jurisdiction of the first level courts, Municipal Trial Courts.
1. Interpleader, provided the amount is within the jurisdiction of the MTC.
2. Ejectment suits, exclusive, original MTC. Except no action was filed after 1
year reckoned from the date of the last demand.
3. Contempt
The provisions on Rule 16-Motion to dismiss, are applicable in special civil actions.
What are the grounds for dismissal of an action under Rule 16? Lack of jurisdiction
over the person, lack of jurisdiction over the subject matter, res judicata, litis
pendentia.
The SC cannot entertain special civil actions exceptcertiorari, prohibition,
mandamus. But sometimes if the SC entertains special civil actions, it may delegate
the task of finding facts to the lower courts, because the SC as a rule is not a trier
of facts.
RULE 62
INTERPLEADER
Section 1. When interpleader proper.
Whenever conflicting claims upon the same subject matter are or may be made
against a person who claims no interest whatever in the subject matter, or an
interest which in whole or in part is not disputed by the claimants, he may bring an
action against the conflicting claimants to compel them to interplead and litigate
their several claims among themselves.
Complaint in interpleader, when is this proper? Two things:
1. Whenever conflicting claims upon the same subject matter are or maybe
made against a person who claims no interest whatsoever in the subject
matter.
subject of the action.
Example, X leased a building owned by Y, Y died, Y left three sons, A, B and C. All of
them sent collection letters claiming that they owned the building leased. In order
to avoid double or triple liability, the lessee must file an action for interpleader. Let
A, B, and C interplead among themselves.
So first case, there are rival claimants, in the second case, there is none. It says
here—or maybe made against a person who claims no interest whatever in the
subject matter, or an interest which is in whole or in part is not disputed by the
claimants. Same situation Y died, A did not collect, B did not collect, C nag collect.
So A is confused, who is the owner, and so he may file an action interpleader.
So you may bring an action against the conflicting claimants to compel them to
interplead and vindicate their several claims among themselves. Then the court will
issue an order requiring the conflicting claimants to interplead with one another.
The court may also issue an order that the subject matter be paid or delivered to
the court. Then the court will issue summons against the conflicting claimants.
Attached to the summons is the copy of the complaint and the order of the court.
Sec. 2. Order.
Upon the filing of the complaint, the court shall issue an order requiring the
conflicting claimants to interplead with one another. If the interests of justice so
require, the court may direct in such order that the subject matter be paid or
delivered to the court.
Sec. 3. Summons.
Summons shall be served upon the conflicting claimants, together with a copy of
the complaint and order.
Sec. 4. Motion to dismiss.
Within the time for filing an answer, each claimant may file a motion to dismiss on
the ground of impropriety of the interpleader action or on other appropriate grounds
specified in Rule 16. The period to file the answer shall be tolled and if the motion is
denied, the movant may file his answer within the remaining period, but which shall
not be less than five (5) days in any event, reckoned from notice of denial.
Under section 4, any of the rival claimants or all of them may file a motion to
dismiss, either under Rule 16, or on the ground of impropriety of the interpleader.
So venue is improperly laid.
Sec. 5. Answer and other pleadings.
Each claimant shall file his answer setting forth his claim within fifteen (15) days
from service of the summons upon him, serving a copy thereof upon each of the
other conflicting claimants who may file their reply thereto as provided by these
Rules. If any claimant fails to plead within the time herein fixed, the court may, on
motion, declare him in default and thereafter render judgment barring him from any
claim in respect to the subject matter.
The parties in an interpleader action may file counterclaims, cross-claims, third-
party complaints and responsive pleadings thereto, as provided by these Rules.
Res judicata, or litis pendetia, condition precedent not complied with. If there is a
motion to dismiss, the period to file answer is toiled or suspended. The motion to
dismiss is denied, the rival claimants must answer. Period to answer 15 days from
service of summons. They should furnish each other copies of their answers
including of course the plaintiff. They are allowed to file their reply.
What is the effect if one claimant fails to file answer, he may be declared in default.
Can the court declare in default a non-answering rival claimant? The answer is no
because the rule say because the rule says—may on motion. It’s not motu propio.
So if he is declared in default, he will be barred from any claim in respect to the
subject matter. What follows? Pre-trial, then court shall proceed to determine their
respective rights and adjudicate their several claims.
Going back to motion to dismiss, one of the grounds here is impropriety of the
interpleader action. Why file an interpleader action against A, B and C? A, B and C
filed a manifestation, useless because they agreed that the property will be
adjudicated to Mr.A.
Now the (content) of the interpleader is not the property under litigation, he was
constrained to file action because he might be prejudiced in the future, so he has to
recover docket and other lawful fees, from whom? From the losing party.
Menci vs. Casteda
The cost, expenses, attorney’s fees incurred by the plaintiff in the action is
recoverable from the defendant who losses in the action and is found by the court to
have caused the unnecessary litigation.
Where there are no conflicting claims among the defendants, the interpleader may
be dismissed.
Sec. 6. Determination.
After the pleadings of the conflicting claimants have been filed, and pre-trial has
been conducted in accordance with the Rules, the court shall proceed to determine
their respective rights and adjudicate their several claims.
Sec. 7. Docket and other lawful fees, costs and litigation expenses as liens.
The docket and other lawful fees paid by the party who filed a complaint under this
Rule, as well as the costs and litigation expenses, shall constitute a lien or charge
upon the subject matter of the action, unless the court shall order otherwise.
RULE 63
DECLARATORY RELIEF AND SIMILAR REMEDIES
Section 1. Who may file petition.
Any person interested under a deed, will, contract or other written instrument,
whose rights are affected by a statute, executive order or regulation, ordinance, or
any other governmental regulation may, before breach or violation thereof, bring an
action in the appropriate Regional Trial Court to determine any question of
construction or validity arising, and for a declaration of his rights or duties,
thereunder.
An action for the reformation of an instrument, to quiet title to real property or
remove clouds therefrom, or to consolidate ownership under Article 1607 of the Civil
Code, may be brought under this Rule.
Section 1, first paragraph, declaratory relief proper. Paragraph 2, similar remedies.
Who may file a petition for declaratory relief?
1. Any person interested under a deed, will, contract or other written
instrument.
2. A person whose rights are affected by a statute, executive order or
regulation, ordinance or any other governmental regulation.
Is there a period to file the action? None, except that the petition must be filed
before breach or violation. Because of there is already a breach or violation, then
the special civil action for declaratory relief will be converted to an ordinary action
where pleadings will be filed.
If we talk about declaratory relief, we should not talk about cause of action. Forget
Rule 39, execution of judgment. Execution of judgment is not proper in declaratory
relief.
What is the prayer? To determine any question of construction of deed, will,
contract, etc., or validity, and for a declaration of his rights and duties thereunder.
That is the relief or prayer.
Under the first paragraph, the court may refuse to act. But in the second, the court
must act.
The other similar remedies are:
1. Action for reformation of instrument-the instrument does not reflect the
true intent or agreement of the parties. There was meeting of the minds,
there is a contract, but the contract does not reflect the true intention of
the parties.
2. Quieting of title to real property or removal of clouds therefrom. In
quieting of title or removal of clouds, there is an assumption that plaintiff is
 in possession. Because if he is not in possession of the property, the proper
action is recovery of real property.
3. Consolidation of ownership under article 1607 of the Civil Code. There is an
agreement to repurchase, contrato compacto de retro, not redeem. So can
plaintiff recover the property immediately? No, consolidate ownership first.
You have to file a petition or action in court.
I repeat, this special civil action does not need execution to carry the judgment into
effect.
In declaratory relief, subject matter—deed, will, contract, etc., statute, executive
order, etc., what is the main issue? Validity or construction of these documents. The
relief sought is the declaration of petitioner’s rights and duties.
The concept of cause of action in ordinary civil actions does not lie. The relief does
not, or declaratory relief does not essentially entail any executional process. For the
relief to be properly granted is a declaration of rights and duties. //jiji
Requisites of an action for Declaratory Relief
1. Subject matter
2. Terms of documents; validity thereof are doubtful
3. No breach or violation
4. There must be an actual justiciable controversy or the ripening in seeds of
one between of one between whose interests are adverse. This is due to
for judicial determination.
5. Adequate relief is not available thru other means or other forms of action
or proceeding. Not available for declaration of citizenship, not available for
the validity or construction to be placed in the discretion certificate. It must
appear that there is a written litigation in the future which litigation is
imminent and inevitable unless prevented by the declaratory relief sought.
Sec. 2. Parties.
All persons who have or claim any interest which would be affected by the
declaration shall be made parties; and no declaration shall, except as otherwise
provided in these Rules, prejudice the rights of persons not parties to the action
Who are the parties?
 All persons who have or claim an interest which would be affected
by the declaration. No declaration shall prejudice the rights of the
persons not parties to the action.
Sec. 3. Notice on Solicitor General.
In any action which involves the validity of a statute, executive order or regulation,
or any other governmental regulation, the Solicitor General shall be notified by the
party assailing the same and shall be entitled to be heard upon such question.
When shall the court give notice to the SG?
 In an action involving validity, obstruction, executive order or
regulation, etc
Who will notify specifically?
 The party assailing the statute, etc. The solicitor general shall be
heard upon such question.
Sec. 4. Local government ordinances.
In any action involving the validity of a local government ordinance, the
corresponding prosecutor or attorney of the local governmental unit involved shall
be similarly notified and entitled to be heard. If such ordinance is alleged to be
unconstitutional, the Solicitor General shall also be notified and entitled to be heard.
When shall the LGU be notified?
 If the action involves validity of ordinance.
Who will appear for the state?
 Office of the prosecutor.
 If there is an issue on constitutionality, the solicitor general shall
be notified.
Sec. 5. Court action discretionary.
Except in actions falling under the second paragraph of section 1 of this Rule, the
court, motu proprio or upon motion, may refuse to exercise the power to declare
rights and to construe instruments in any case where a decision would not
terminate the uncertainty or controversy which gave rise to the action, or in any
case where the declaration or construction is not necessary and proper under the
circumstances.
Par 1 of Section 1 should be read together with Sec 5.
When, under what circumstances may the court not take actions?
1. Where a decision would not terminate the uncertainty or
controversy which gave rise to the action.
2. In any case where the declaration or construction is not necessary
and proper under the circumstances.
Sec. 6. Conversion into ordinary action.
If before the final termination of the case, a breach or violation of an instrument or
a statute, executive order or regulation, ordinance, or any other governmental
regulation should take place, the action may thereupon be converted into an
ordinary action, and the parties shall be allowed to file such pleadings as may be
necessary or proper.
When shall a petition for declaratory relief be converted into action?
 If before the final termination of the case, a breach or violation of
an instrument or a statute, executive order or regulation,
ordinance, or any other governmental regulation should take place
  So the action may be converted into an ordinary action. If it is
converted into an ordinary action, then the court may allow
pleadings to be filed by counterclaim, cross claim, third party
complain.
 Declaratory relief does not aggrieve third party complaint or third
party complaint can’t be entertained in declaratory relief but a
compulsory counterclaim maybe be set up. The nonjoinder of
persons who claim in the interest which maybe affected by the
declaratory judgment is not a jurisdictional defect because the
rule provides that said shall not prejudice their interest
Can CA or SC entertain a special civil action for declaratory relief?
 No. Exclusive and original with RTC because RTC is a trial of facts. I
repeat this is not within the original jurisdiction of SC. SC will only
resolve questions of law.
RULE 64
REVIEW OF JUDGMENTS AND FINAL ORDERS OF
COMELEC AND COA
Section 1. Scope.
This Rule shall govern the review of judgments and final orders or resolutions of the
Commission on Elections and the Commission on Audit.
Sec. 2. Mode of review.
A judgment or final order or resolution of the Commission on Elections and the
Commission on Audit may be brought by the aggrieved party to the Supreme Court
on certiorari under Rule 65, except as hereinafter provided.
What is the mode of review?
 Rule 65 on Certiorari
Sec. 3. Time to file petition.
The petition shall be filed within thirty (30) days from notice of the judgment or
final order or resolution sought to be reviewed. The filing of a motion for new trial or
reconsideration of said judgment or final order or resolution, if allowed under the
procedural rules of the Commission concerned, shall interrupt the period herein
fixed. If the motion is denied, the aggrieved party may file the petition within the
remaining period, but which shall not be less than five (5) days in any event,
reckoned from notice of denial.
When shall the petition be filed?
 Within thirty (30) days from notice of the judgment or final order or
resolution sought to be reviewed. Never mind the last sentence.
 You apply the latest rule which is the Fresh Period Rule and not the
remaining 5 days. So in Fresh Period Rule, after receipt of the denial of
motion for reconsideration, the petitioners may file a petition under
Rule 64.
Sec. 4. Docket and other lawful fees.
Upon the filing of the petition, the petitioner shall pay to the clerk of court the
docket and other lawful fees and deposit the amount of P500.00 for costs.
 Under sec 4, petitioner must pay docket and other lawful fees.
Sec. 5. Form and contents of petition.
The petition shall be verified and filed in eighteen (18) legible copies. The petition
shall name the aggrieved party as petitioner and shall join as respondents the
Commission concerned and the person or persons interested in sustaining the
judgment, final order or resolution a quo. The petition shall state the facts with
certainty, present clearly the issues involved, set forth the grounds and brief
arguments relied upon for review, and pray for judgment annulling or modifying the
questioned judgment, final order or resolution. Findings of fact of the Commission
supported by substantial evidence shall be final and non-reviewable.
The petition shall be accompanied by a clearly legible duplicate original or certified
true copy of the judgment, final order or resolution subject thereof, together with
certified true copies of such material portions of the record as are referred to
therein and other documents relevant and pertinent thereto. The requisite number
of copies of the petition shall contain plain copies of all documents attached to the
original copy of said petition.
The petition shall state the specific material dates showing that it was filed within
the period fixed herein, and shall contain a sworn certification against forum
shopping as provided in the third paragraph of section 3, Rule 46.
The petition shall further be accompanied by proof of service of a copy thereof on
the Commission concerned and on the adverse party, and of the timely payment of
docket and other lawful fees.
The failure of petitioner to comply with any of the foregoing requirements shall be
sufficient ground for the dismissal of the petition.
1. Verified
2. Eighteen (18) legible
3. State the aggrieved party as petitioner
4. Join as respondents the COMELEC or COA or person or persons interested
in sustaining the judgment, final order or resolution a quo. In fact it is not
the task of the court or the judge to answer.
- Who will answer for the judge or public respondent?
o It is the person who is interested in maintaining the order
of the lower court.
5. State the facts with certainty, present clearly the issues involved, set forth
the grounds and brief arguments relied upon for review, and of course
followed by prayer.
- What is the prayer?
o Annulling or modifying the questioned judgment, final
order or resolution.
6. Don’t forget that the findings of facts of COMELEC and COA supported by
substantial evidence shall be final and non renewable.
- What is substantial evidence?
o It is a kind of evidence which a reasonable mind might
accept as adequate support to a conclusion.
What shall be attached to a petition?
  Clearly legible duplicate original or certified true copy of the judgment,
final order or resolution subject thereof, the rest machine copies or
Xerox copies are sufficient.
Material data Rule
 The specific material dates showing that it was filed within the period
fixed herein. You should attach a sworn certification against forum
shopping.
o State the date of the judgment
o State when you receive a copy with the judgment and
from there, you count 30 days.
o Proof of service in the COMELEC or COA and to the
adverse party
o timely payment of docket and other lawful fees
What are the consequences if the requirements are not complied with?
 Last paragraph says the failure of petitioner to comply with any of the
foregoing requirements shall be sufficient ground for the dismissal of
the petition.
Sec. 6. Order to comment.
If the Supreme Court finds the petition sufficient in form and substance, it shall
order the respondents to file their comments on the petition within ten (10) days
from notice thereof; otherwise, the Court may dismiss the petition outright. The
Court may also dismiss the petition if it was filed manifestly for delay, or the
questions raised are too unsubstantial to warrant further proceedings.
Is there a need to serve summons?
 No. So how will a court acquire jurisdiction over the persons of the
respondents? Section 6 is the answer.
 If the Supreme Court finds the petition sufficient in form and
substance, it shall order the respondents to file their comments on the
petition within ten (10) days from notice thereof.
 The court therefore acquires jurisdiction after the respondent(s)
received a copy of the order to comment.
 So if no petition is filed within the reglamentary period, the court will
dismiss the petition of the outright.
 Other ground for dismissing the petition is when it was filed manifestly
for delay.
Sec. 7. Comments of respondents.
The comments of the respondents shall be filed in eighteen (18) legible copies. The
original shall be accompanied by certified true copies of such material portions of
the record as are referred to therein together with other supporting papers. The
requisite number of copies of the comments shall contain plain copies of all
documents attached to the original and a copy thereof shall be served on the
petitioner.
No other pleading may be filed by any party unless required or allowed by the
Court.
How many copies?
 18 copies, then certified true copies of such material portions of the
record as are referred to therein together with other supporting
papers. No other pleading may be filed by any party unless required or
allowed by the Court.
Sec. 8. Effect of filing.
The filing of a petition for certiorari shall not stay the execution of the judgment or
final order or resolution sought to be reviewed, unless the Supreme Court shall
direct otherwise upon such terms as it may deem just.
What is the effect of the filing of a petition for certiorari?
 It shall not state the execution of the judgment final order or
resolution sought to be reviewed
 Exception is when the Supreme Court shall direct otherwise upon such
terms as it may deem just. /sar
Sec. 9. Submission for decision.
Unless the Court sets the case for oral argument, or requires the parties to submit
memoranda, the case shall be deemed submitted for decision upon the filing of the
comments on the petition, or of such other pleadings or papers as may be required
or allowed, or the expiration of the period to do so.
RULE 65
CERTIORARI, PROHIBITION AND MANDAMUS
There are common requisites, you should know what is the prayer for certiorari, you
should know what is the prayer in prohibition, and you should know what is the
prayer on mandamus.
Section 1. Petition for certiorari.
When any tribunal, board or officer exercising judicial or quasi-judicial functions has
acted without or in excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal, or any plain,
speedy, and adequate remedy in the ordinary course of law, a person aggrieved
thereby may file a verified petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered annulling or modifying the
proceedings of such tribunal, board or officer, and granting such incidental reliefs as
law and justice may require.
The petition shall be accompanied by a certified true copy of the judgment, order or
resolution subject thereof, copies of all pleadings and documents relevant and
pertinent thereto, and a sworn certification of non-forum shopping as provided in
the third paragraph of section 3, Rule 46.
Certiorari
1. Any tribunal, board or officer exercising judicial or quasi-judicial functions,
so the most important phrase here is—exercising judicial or quasi-judicial
functions, not executive functions and not legislative functions, only any
 tribunal etc., exercising judicial or quasi-judicial functions—regular courts,
NLRC, Securities and Exchange Commission, and other quasi-judicial
bodies.
2. It has acted without or in excess of jurisdiction. There is a definition of
without jurisdiction. By the way there is a judicial definition of what is a
quasi-judicial function. There is also a judicial definition of without
jurisdiction. Again, another definition of excess of jurisdiction, another
definition of grave abuse of discretion. So to better understand what is
certiorari, you should know the meaning of each word.
3. No appeal, or any plain, speedy, and adequate remedy in the ordinary
course of law. There is also a judicial definition (we cannot invent our own
definition) what is the meaning of plain, speedy and adequate remedy.
Compile them in our jurisprudence.
4. The petition must be verified, meaning under oath.
Now, who may file the petition? (this is another important phrase) Person
aggrieved thereby. I’ll give an example of a person aggrieved by an order of the
court. A criminal action was filed, People vs. X, Y and Z, the judge dropped Y and Z
from the information, the prosecutor did not object, so the offended party, the
mother, filed a petition for certiorari questioning the order of the judge, why did you
drop Y and Z? The Solicitor General answered, the aggrieved party here is the
Republic of the Philippines, why are you not joining the Republic of the Philippines?
You should join the people, meaning, the Office of the Solicitor General, the
prosecution must be consulted also. SC said, no that is not correct, because the
mother is an aggrieved party, she sought to annul an order which she believed was
issued with grave abuse of discretion amounting to lack or excess of jurisdiction,
that is settled jurisprudence.
So what is the prayer? (again this is another important phrase) the prayer is
judgment be rendered annulling or modifying the proceedings of such tribunal,
board or officer and granting such incidental reliefs as law and justice may require.
So annulling, modifying the proceeding. If the RTC for example issued an order of
attachment when it is very clear that there is no ground therefor, so what is the
remedy of the aggrieved party? Petition for certiorari under Rule 65 to annul the
order of attachment.
It’s true that the judge will (sic) as discretion to issue an order of attachment but
said discretion must not be gravely abused. Abuse of discretion is not a ground for
certiorari, it must be grave abuse of discretion, whimsical, capricious exercise of
judgment.
What shall be attached? Certified true copy of the judgment, order or resolution
subject thereof, copies of pleadings or documents, relevant and pertinent thereto,
also certification against forum shopping.
Certiorari is a writ issued by a superior court to an inferior court, board, etc.,
exercising judicial or quasi-judicial function. Whereby a record for a particular case
is brought up for review or order to be elevated for review and corrections in
matters of law.
It is discretionary for a court to issue a writ of injunction but if there is no legal
ground, there is no clear legal right, the judge committed grave abuse of discretion
amounting to lack or excess of jurisdiction.
Nganong judicial man ug quasi-judicial? Kay kaning judicial ug quasi-judicial
exercises discretion, mao nang e-certiorari. Now, following the definition.//jiji
A writ for certiorari is:
 Superintendi/superintendent (not sure which of the 2) or supervisory writ -
Because the higher court superintends the lower court, if the lower court
commits grave abuse of discretion, the higher court will annul or modify
the judgment or order of a lower court. So the lower court, its acts must be
within the law, must be in consonance with the procedure.
 Prerogative writ -Because it is never demandable as a matter of right,
never issued except in the exercise of judicial discretion.
Requisites:
 A tribunal, board or officer exercising judicial or quasi-judicial functions has
acted without or in excess its or his jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction
 there is no appeal, or any plain, speedy, and adequate remedy in the
ordinary course of law
So what is the meaning of judicial?
Judicial presupposes the use of mental processes in the determination of
facts and law. It adjudicates rights and duties of parties. Generally, the
exercise of judicial function is to determine what the law is, what are the
rights of the parties with respect to a matter in controversy, and whenever
an officer is clothed with the authority and undertakes to determine those
questions, he acts judicially.
Meaning of without jurisdiction?
This is not jurisdiction over the subject matter. This is error in the exercise
of jurisdiction. Suppose there is an action, recovery of possession of real
property, there is no doubt RTC has jurisdiction because the value of the
property is 1M. It is clear that court has jurisdiction over the subject
matter. But suppose the court issues an order of injunction without factual
and material basis, who will correct the court? It is the higher court. So the
issuance of an order of injunction is an error in the exercise of jurisdiction
over the subject matter. Di pasabot na way jurisdiction adto mo sa RA
7691. Jurisdiction over the subject matter is defined by law, BP 180, RA
7691 (Expanding jurisdiction of MTC) So jurisdiction of the subject matter
of a particular case is something more than the general power conferred by
law to a court to take cognizance of a case of a general class to which a
particular case belongs.
We should distinguish certiorari and prohibition because of the court has no
jurisdiction over the subject matter, do not file petition for certiorari but for
prohibition because the court has no jurisdiction over the subject matter.
What is the meaning of excess of jurisdiction?
Although the court has acquired jurisdiction over a subject matter, and a
particular case has been submitted, properly instituted for hearing and
decision, it will overstep its jurisdiction if it renders a judgment which it
has no power under the law to render. This not judgment on the merits, it’s
actually order in the course of trial. So excess of jurisdiction signifies that
the court has jurisdiction over the case but transcended the same or acted
w/o any authority
What is the meaning of grave abuse of discretion?
It is the capricious, whimsical exercise of judgment which is equivalent to
lack of jurisdiction. It must be so patent and gross as to amount to an
invasion of positive duty or a virtual refusal to perform a duty enjoined by
law.
When is there no appeal?
There is no appeal when appeal does not lie.
Ex: interlocutory order. Bisag order not included in the final judgment on
the merits. Pero kung final order gni, you can appeal. If there is a defect in
the interlocutory order, or you question the interlocutory order, your
remedy is certiorari, not appeal.
But there are laws which do not allow appeal. If you remember in criminal
law, probation, an order denying or granting probation is not appealable.
Remedy? Certiorari.
The right to appeal having be lost with or without the appellant’s
negligence, the court has no jurisdiction to issue the order of decision
which is the subject matter of the remedy. Remember that if appeal would
have been an adequate remedy but counsel was negligent, you can no
longer avail of certiorari. Certiorari and appeal are mutually
exclusive.//angge
Where appeal is lost
When the time to appeal has expired, certiorari lies to set aside the judgment which
is null and void for lack or excess of jurisdiction.
What is the meaning of adequate remedy?
Adequate remedy means equally beneficial, speedy and sufficient; not merely a
remedy at some time in the future will bring about revival of judgment of the lower
court complained of in the certiorari proceeding.
Interlocutory orders cannot be appealed
Prof—I discussed this already.
What is the prayer in a petition for certiorari?
Prof—I already mentioned this.
What should accompany a petition for certiorari?
Prof—We already discussed this.
Distinguish petition for certiorari from appeal by certiorari.
Petition for certiorari is a special civil action, cognizable by the RPC, Court of
Appeals, Sandiganbayan, Supreme Court. It is an original action. How about appeal
from certiorari or petition for review on certiorari? It is a mode of appeal which can
only be filed with the Supreme Court. So RTC, to CA then Supreme Court. You
cannot jump from RTC direct to the Supreme Court in a petition for review on
certiorari.
2 Exceptions; Judgment sa RTC—dili na mu-agi sa CA, direcho sa Supreme
Court. Unsa man?
 Writ of amparo, and
 Writ of habeas data
Kung appeal by certiorari, there is only one question—question of law. Never forget
that. In petition for review on certiorari, or appeal by certiorari—only question of
law is allowed. Again—exceptions—writ of amparo and writ of habeas data.
Petition for certiorari—what is the issue?
Whether or not respondent has acted without or in excess of jurisdiction or with
grave abuse of discretion.
Purpose?
Correction. So writ of certiorari issues for the correction of errors of jurisdiction; or
better still—error in the exercise of jurisdiction.
Functions?
In terms of its functions, the writ of certiorari serves to keep an inferior court within
the bounds of its jurisdiction; or to prevent it from committing grave abuse of
discretion amounting to lack or excess of jurisdiction.
How about appeal by certiorari?
Only questions or errors of law shall be decided upon.
Ang petition for certiorari—error in the issuance of an order ang subject. Whereas in
petition for review on certiorari—error of law or judgment committed by the court
with jurisdiction over the subject of the suit and the person of the parties.
I-trace nato ang certiorari and petition for review on certiorari.
The court issued an order granting injunction—no factual and legal basis—so the
aggrieved party will file a petition for certiorari in the CA. Kung adverse and
decision, ngadto na sa Supreme Court, this time petition for review on certiorari. It
is already a mode of appeal. I repeat—the only question is question of law.//nina
July 27
Rule 62 Interpleader, here’s a review:
Which court has jurisdiction?
 It depends upon the value of the property
Nature of Interpleader
 To protect a person not against double liability but against double ___
When are you going to file Interpleader?
 There is no period but file it within a reasonable period of time. Before the
plaintiff is sued by the rival (?)
X Y Z are claiming the same property. A is the lessee. One of them X files a claim
against A for payment of rentals. A may set up a counter claim of Interpleader so
that the three claimants will interplead against each other.
9. When the case has become moot and academic, the court may dismiss the case
10. No advisory opinion, there must be case and controversy
Purpose of Declaratory Relief
 To ask the court to make proper interpretation of contracts. Not to as for
injunction, execution or other reliefs beyond the adjudication.which is
subject of controversy

The third party complain is improper when the main case is a special civil action.
Rule 63 Declaratory Relief and Similar Remedies is already discussed. But,
here’s a review: Review of Judgment Comelec and COA
Certiorari, Prohibition, Mandamus
Declaratory Relief and Similar Remedies
 This is within the exclusive jurisdiction of the RTC. An action not capable of Certiorari
pecuniary estimation. CA and SC has no jurisdiction to try and decide
declaratory relief. To make proper interpretation of contract not to ask for injunction, execution or
other relief beyond the adjudication and legal rights. This will be subject of
Last meeting we discussed the procedural distinction between Sec 1, par 1 and par controversy.
2.
 (par1) Any person interested under a deed, will, contract or other written The third party compliant is improper when the main case is a special civil action.
instrument, whose rights are affected by a statute, executive order or
regulation, ordinance, or any other governmental regulation may, before Rule 64 Review of judgments and final orders of COMELEC and COA, we have
breach or violation thereof, bring an action in the appropriate Regional Trial already discussed that.
Court to determine any question of construction or validity arising, and for
a declaration of his rights or duties, thereunder. RULE 65
 (par2) An action for the reformation of an instrument, to quiet title to real
CERTIORARI, PROHIBITION AND MANDAMUS
property or remove clouds therefrom, or to consolidate ownership under
Article 1607 of the Civil Code, may be brought under this Rule.
 In par 2, the court is bound to render judgment. In par 1, the court may
What is a writ?
refuse to exercise its power to declare the rights and to construe
 It is an order of the court in the name of the state addressed to , to do or
instruments.
refrain from doing specified acts.
Rule 64 Declaratory Relief from other Judgments; we’ve already discussed
What is a process?
this.
 It is a summon or order to appear in court like subpoena.
There is no execution in declaratory relief.
Section 1. Petition for certiorari.
Declaratory relief will not prosper in the following cases:
When any tribunal, board or officer exercising judicial or quasi-judicial functions has
1. Where action is to obtain declaration citizenship because the discretion is not a
acted without or in excess of its or his jurisdiction, or with grave abuse of discretion
written instrument on which the action for declaratory relief is instituted
amounting to lack or excess of jurisdiction, and there is no appeal, or any plain,
2. When the action is to establish illegitimate foliation and to determine hereditary
speedy, and adequate remedy in the ordinary course of law, a person aggrieved
rights because it does not concern with the wills, contracts or written
thereby may file a verified petition in the proper court, alleging the facts with
instruments
certainty and praying that judgment be rendered annulling or modifying the
3. Where a court decision is the subject of an action because only the court which
proceedings of such tribunal, board or officer, and granting such incidental reliefs as
has rendered the decision has the power to review, revise, and reverse its
law and justice may require.
decision
The petition shall be accompanied by a certified true copy of the judgment, order or
4. Where the action is to resolve a political concern or person ?
resolution subject thereof, copies of all pleadings and documents relevant and
5. Where the action is to try or determine an issue
pertinent thereto, and a sworn certification of non-forum shopping as provided in
6. Where the assailed ordinance is not ambiguous or doubtful
the third paragraph of section 3, Rule 46.
7. Where the contract or statute on which action is based has been breached
because if there’s breach there must be an ordinary action
1st Element: Tribunal, board or officer exercising judicial or quasi-judicial functions
8. Where the action is merely and advisory opinion from the court
  They use discretion. If the tribunal, board or officers exercising judicial or
quasi-judicial functions gravely abuse their discretion, the remedy is
certiorari. Abuse of discretion is not a ground for filing a petition for
certiorari. Ground is grave abuse of discretion.
There are common elements among certiorari, prohibition and mandamus.
2nd Element: Has acted without or in excess of its or his jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction
3rd Element: no appeal, or any plain, speedy, and adequate remedy in the ordinary
course of law
Who may file?
 Aggrieved Party
What is the form?
 Verified petition, meaning under oath.
What must be alleged?
 The facts with certainty
What is the prayer?
 judgment be rendered annulling or modifying the proceedings of such
tribunal, board or officer, and granting such incidental reliefs as law and
justice may require
What shall be attached to the petition?
1. Judgment, order or resolution which is the subject of the petition
2. copies of all pleadings and documents relevant and pertinent
3. a sworn certification of non-forum shopping
What is a writ of certiorari?
 It is a writ issued by the superior court directed to an inferior court, board
or officer exercising judicial or quasi-judicial functions to elevate the
records of a case, so that an order or act of the lower court may be
reviewed, annulled or modified by the higher court.
 It is a prerogative writ.
Distinguish Certiorari from Appeal by Certiorari
 Special Civil Action on Certiorari under Rule 65
o The only question raised is whether or not the respondent has
acted without or in excess of jurisdiction or with grave abuse of
discretion
o The court cant correct errors of fact and law, meaning courts cant
go into the merits of the case
 Appeal by certiorari-
o The appellate court can only review questions or errors of law
o Appeal brings up to review errors of judgment committed by a
court with jurisdiction over the subject of the suit
 Writ of certiorari issues are about the correction of errors of the
jurisdiction. Better still, error committed in the exercise of jurisdiction
 Appeal by certiorari or petition or certiorari is a mode of appeal
In terms of function:
 Writ of certiorari serves to kill an inferior court within the bounds of each
jurisdiction or to prevent it from committing such grave abuse of discretion
amounting to lack or excess of jurisdiction. So certiorari is sometimes
known as supervisory or superintending writ.
Certiorari vs. Prohibition
 Certiorari is a corrective remedy. Superior court modifies or annuls an
order of a lower court.
 Prohibition is preventive, that is the court has no jurisdiction on the sublet
matter. You have to strike at the very jurisdiction of the court.
Judicial/Quasi-judicial council
 Judicial presupposes the use of mental processes in the determination of
law or fact and at times involves discretion as to how their power should be
used
Meaning of “without jurisdiction”.
 Actually means error in the exercise of jurisdiction.
Meaning of “excess of jurisdiction”
 If the lower court oversteps its discretion by rendering a judgment by
which it has the power under the law to render.
 Excess of jurisdiction certifies that the court has jurisdiction over the
subject matter but has transcended the same or acted without any
authority. Like, the Court has jurisdiction over the subject matter because
the amount involved is 1M in RTC and there’s a prayer for the issuance of
an order for attachment and the court granted but the court has no factual
and legal basis in granting the attachment. So such error of the court will
be corrected by certiorari under Rule 65. It’s not questioning the
jurisdiction of the court over the subject matter but the order of
attachment. It is error in the exercise of jurisdiction.
Distinguish jurisdiction from exercise of jurisdiction
o Jurisdiction is the authority to decide a case
o Where there is jurisdiction of the person and subject matter, the decision
and all other questions arising from the case is but an exercise of that
jurisdiction.
Meaning of the “grave abuse of discretion”
 Capricious, whimsical exercise of judgment which is equivalent to lack of
jurisdiction.
Remedy of certiorari may be successfully invoked both in cases where an appeal
does not lie. Remember Criminal Law, Probation Law (an order granting probation is
not appealable – certiorari is the remedy)
When the right having been lost with or without the appellant’s negligence, the
court has no jurisdiction to issue order the decision which is the subject matter of
the remedy.
Petitioner cannot avail of the remedy of certiorari if he is guilty of negligence.
When the time to appeal has expired, certiorari lies to set aside the judgment which
is null and void for lack or excess of jurisdiction. It is prohibition if no judgment has
yet been rendered. It is certiorari if judgment has been rendered.
What is adequate remedy?
 It is a remedy which is equally beneficial, speedy and sufficient and not
merely a remedy which at some time in the future will bring revival of
judgment in the lower court
Special Civil Action for Certiorari is not and cannot made subject for appeal. General
Rule: Certiorari and Appeal are mutually exclusive. Certiorari cannot be made as
substitute for an appeal where the latter remedy is available. Certiorari is available
when a motion for new trial is wrongly denied. But there are cases where the filing
of petition for certiorari cannot be considered as abandonment of appeal.
Certiorari lies against an order granting execution pending appeal so review Civil
Procedure.
If there’s already final and executory judgment, execution follows as a matter of
course
If the case is still on appeal, there is no execution of judgment. One exception is
execution pending appeal. If you file a motion for execution pending appeal, the
indispensable requisite is that there must be a good reason. If the court granted the
motion for execution pending appeal despite the absence of good reason, the
remedy is certiorari. If still the court proceeds despite the absence of good reason,
avail of the remedy of preliminary prohibitory injunction. Certiorari is useless
without a provisional remedy. Certiorari, Prohibition and Mandamus are useless
without a provisional remedy.
Remedy of certiorari is proper where order complained of is a patent nullity.
General rule is that before a petition for certiorari will be entertained by the superior
or higher court, you have to file a motion for reconsideration so that the court can
correct itself or so that the court has given the chance to correct itself because the
court may yet correct or change its mind by lifting the order or setting it aside.
But the while there is GR, there are several exceptions like exhaustion of
administrative remedies, when the issue raised is one purely of question of law,
when public interest is involved in case of urgency and other grounds.//sarah
Sec. 2. Petition for prohibition.
When the proceedings of any tribunal, corporation, board, officer or person, whether
exercising judicial, quasi-judicial or ministerial functions, are without or in excess of
its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess
of jurisdiction, and there is no appeal or any other plain, speedy, and adequate
remedy in the ordinary course of law, a person aggrieved thereby may file a verified
petition in the proper court, alleging the facts with certainty and praying that
judgment be rendered commanding the respondent to desist from further
proceedings in the action or matter specified therein, or otherwise granting such
incidental reliefs as law and justice may require.
The petition shall likewise be accompanied by a certified true copy of the judgment,
order or resolution subject thereof, copies of all pleadings and documents relevant
and pertinent thereto, and a sworn certification of non-forum shopping as provided
in the third paragraph of section 3, Rule 46.
You strike at the very jurisdiction of the court, because it has no jurisdiction over
the subject matter.
Example, if an MTC tries an action for annulment of marriage, you strike at the very
jurisdiction of the court. So file a petition for prohibition, not certiorari, you are not
correcting the court, you are preventing the court from exercising a power not
conferred by law.
Another example, recovery of possession of real property located in Tagbilaran City,
filed here in Cebu City, defendant filed a motion to dismiss. So what is the remedy?
Prohibition, lack of territorial jurisdiction. Recovery of possession is a local action, it
can only be acted upon only by the court where the property is located.
Proceedings of any tribunal, corporation, board, officer or person, whether
exercising judicial, quasi-judicial or ministerial functions. Again, the common
element, without or in excess of its or his jurisdiction, where no appeal or other
remedy that is speedy, adequate, etc. are available.
Who will file the petition?
 The person aggrieved.
What is the form?
 Verified. It should allege facts with certainty.
Now what is the prayer?
 Prayer is judgment be rendered commanding the respondent to desist from
further proceedings. In the action or matter specified therein, or granting
such incidental reliefs as law and justice may require.
Second paragraph of section 1.
Prohibition is a legal remedy. Extraordinary in the sense that it is available only
when the usual and ordinary proceedings in law and equity are inadequate or (sic).
What is the purpose?
 Purpose is to stop usurping or exercising a jurisdiction in which they have
not been vested by law. Prohibition is to prevent the unlawful and
oppressive exercise of legal authority, and to provide for a fair and
adequate administration of justice. Essentially prohibition is a remedy to
prevent the court, corporations, etc. from usurping or exercising a
jurisdiction or power of which they are not vested by law.
Prohibition vs. Injunction
 Prohibition Injunction
Special civil action Provisional remedy
Directed only against the acts Directed to the court itself
Prohibit the court from exercising
Enjoin a person
jurisdiction over the subject matter
Prohibition vs. Mandamus
Prohibition Mandamus
Preventive, prevent an inferior tribunal
Object is to compel an inferior court or
from exercising jurisdiction
tribunal
Jurisdiction or scope of prohibition, refers only to proceedings of court, corporation
or person, exercising judicial, quasi-judicial, ministerial functions. If the respondents
do not exercise judicial, quasi-judicial or ministerial functions, like the Sangguniang
Panlungsod and Sangguniang Panlalawigan, they are exercising legislative functions,
so no prohibition against those that are exercising legislative functions.
The objective of prohibition is not to correct errors of judgment, but to prevent or
stain usurpation by inferior tribunals and to compel them to observe the limitation
of their jurisdictions. Prohibition therefore is a preventive remedy. Its function is to
restrain the doing of some act.
General rule, prohibition will not lie to determine title to office. Prohibition is not the
proper remedy.
Prohibition may be issued enjoining the court for improper venue for taking
cognizance of a case. Prohibition will not lie when appeal is a speedy and adequate
remedy.
Question of constitutionality may be raised in prohibition proceedings, provided that
the issue is the very lis mota of the case.//jiji
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.
Tribunal, corporation, board, officer, person, unlawfully neglects the performance of
an act which the law specifically enjoins its performance. So there must be a law
compelling or enjoining a public officer from doing. Then resulting from an office or
station that are _____ or unlawfully excluding another person from the use or
enjoyment of the right to office. To which such other is entitled. Again, the common
elements, complaint, no adequate remedies, etc.
What is the prayer in mandamus?
The judgment be rendered commanding the respondent immediately or to a time
specified by the court to do the act required to be done to protect the rights of the
plaintiff plus damages by reason of the wrongful acts of the respondent. Then attach
the certification against forum shopping. Mandamus is a command issuing from a
court of law in the name of the state requiring the performance of a particular duty
which duty results from official station of the party. Mandamus is used to compel
the performance when refused of a ministerial duty. Mandamus d jud pwde sa
discretionary duty. Kung discretionary, certiorari, kung ministerial, compellable by
mandamus.
Mandamus is likewise available to compel action when refused but not to direct the
exercise of judgment or discretion in a particular way. Mandamus commands the
person to act but not to act in one way or the other. The court will be ordered to
proceed to judgment; we have 90 days to render decision, that is our duty. Suppose
we fail in our duties, then we can be compelled by mandamus to decide, but not to
decide in one way or the other. We cannot be compelled to decide for the plaintiff or
the defendant. We can only be compelled to act.
What is discretion?
It is part of judicial functions which decides questions arising in a trial as to which
judgment of the court is uncontrolled by fixed rules of law. The power of courts to
determine questions which no strict law is applicable. A discretion when applied to
public functionaries is defined as the right or power conferred to them by law acting
officially under certain circumstances according to the dictates of their judgments
ore conscience, not controlled by the judgment or conscience of others.
What is a ministerial duty?
Here the officer or tribunal performs in a given state of facts, in a prescribed
manner, in obedience to the mandate of legal authority. A ministerial duty is one as
to which nothing is left in the discretion of the person who must perform. The duty
is ministerial only when the discharge of the same requires neither the exercise of
official discretion nor judgment. Mandamus does not lie in the absence of showing of
a clear legal right. It does not issue in doubtful cases.
How do you distinguish mandamus from injunction?
Injunction vs Mandamus
Injunction Mandamus
Preventive Remedial
Usually employed to prevent future To redress past grievances
injury
To retrain motion or to enforce an action To set in motion and to compel and
if it is a preliminary mandatory injunction action
Conservative remedy to preserve status An active one
quo
** There is a USC case. Mandamus cannot lie to compel a university to confer a
degree with honors. For a school has academic freedom and besides it’s the
discretion of the university. A university has no duty to confer honors.
GR: Mandamus will not issue when admin remedies are available
Exception: rule of exhaustion cannot be invoked if the party is in estoppel or when
questions of law are raised.
Mandamus vs quo warranto
Mandamus is the proper remedy when respondent unlawfully excludes the petitioner
from an office to which the latter is entitled without usurping, intruding into or
unlawfully holding office. On the other hand, if the respondent claims a right to the
office, and usurps or unlawfully holds it against petitioner, quo warranto is the
remedy.
** So in the latest rule in environmental cases, there is a writ of continuing
mandamus. This is lifted from the concerned citizens in Manila Bay vs MMDA.
Section 4. When and where petition filed. — The petition shall be filed not later than
sixty (60) days from notice of the judgment
The petition shall be filed in the Supreme Court or if it relates to the acts or
omissions of a lower court or of a corporation, board, officer or person, in the
Regional Trial Court exercising jurisdiction over the territorial area as defined by the
Supreme Court. It may also be filed in the Court of Appeals whether or not the same
is in aid of its appellate jurisdiction, or in the Sandiganbayan if it is in aid of its
appellate jurisdiction. If it involves the acts or omissions of a quasi-judicial agency,
unless otherwise provided by law or these Rules, the petition shall be filed in and
cognizable only by the Court of Appeals.
No extension of time to file the petition shall be granted except for compelling
reason and in no case exceeding fifteen (15) days. (4a) (Bar Matter No. 803
When to file the petition for certiorari, prohibition, mandamus?
Not later than 60 days from notice of judgment or the order of resolution. If there is
a motion for reconsideration or new trial, then apply the rest?? period rule.
Where?
SC, CA, Sandiganbayan, RTC. Sadiganbayan if it is in aid of its appellate
jurisdiction.
Is extension of time allowed?
GR: NO.
Exception: for compelling reason but in no case to exceed 15 days.
Section 5. Respondents and costs in certain cases. — When the petition filed relates
to the acts or omissions of a judg,e court, quasi-judicial agency, tribunal,
corporation, board, officer or person, the petitioner shall join, as private respondent
or respondents with such public respondent or respondents, the person or persons
interested in sustaining the proceedings in the court; and it shall be the duty of such
private respondents to appear and defend, both in his or their own behalf and in
behalf of the public respondent or respondents affected by the proceedings, and the
costs awarded in such proceedings in favor of the petitioner shall be against the
private respondents only, and not against the judge, court, quasi-judicial agency,
tribunal, corporation, board, officer or person impleaded as public respondent or
respondents
Unless otherwise specifically directed by the court where the petition is pending, the
public respondents shall not appear in or file an answer or comment to the petition
or any pleading therein. If the case is elevated to a higher court by either party, the
public respondents shall be included therein as nominal parties. However, unless
otherwise specifically directed by the court, they shall not appear or participate in
the proceedings therein. (5a)
There are 2 respondents: public & private respondents.
Public: judge, court, etc.
Private: person/s interested in sustaining the proceedings in court.
Who will answer?
Private respondent or the person interested in maintaining the action of the court.
Private respondent because the rule says that it is the duty of the private
respondent to appear and defend for himself and for the public respondent.
How about the cost awarded in favour of petitioner?
It shall be against the private respondent only.
Now public officers (Judges, etc.) shall not appear in or file an answer or comment
or any pleading. Kami man gi certiorari, grave abuse of discretion, we are not duty
bound to answer, ang motubag kto na paboran sa amo order. Because the primary
duty of the judge is to decide cases, not to defend cases filed against them. When
elevated to higher court, judge, court etc, will be included as nominal parties only.
Unless directed by the court, public respondents shall not appear or participate in
the proceedings. I-certiorari ang judge for grave abuse of discretion, kung motubag
ang judge kailangan with consent, mananghid jud ka na ikaw motubag. The primary
function of judges is adjudicating cases not taking part active part in a proceeding
relating to his official actuations.
Section 6. Order to comment. — If the petition is sufficient in form and substance to
justify such process, the court shall issue an order requiring the respondent or
respondents to comment on the petition within ten (10) days from receipt of a copy
thereof. Such order shall be served on the respondents in such manner as the court
may direct together with a copy of the petition and any annexes thereto.
In petitions for certiorari before the Supreme Court and the Court of Appeals, the
provisions of section 2, Rule 56, shall be observed. Before giving due course thereto,
the court may require the respondents to file their comment to, and not a motion to
dismiss, the petition. Thereafter, the court may require the filing of a reply and such
other responsive or other pleadings as it may deem necessary and proper. (6a)
How will the court acquire jurisdiction over the person of the respondent?
Shall the court issue summons?
No. 1st, the higher court will examine the petition, if it is sufficient in form and
substance, then court will issue order for the respondent/s to comment, once the
respondent/s receive the order to comment, then the court has acquired jurisdiction
over his person.
When shall the comment be filed?
Within 10 days from receipt of copy thereof.
Petitions for certiorari before the SC and CA, use Sec 2 Rule 56. Before given due
course, the court may require the respondent to file comment, not a motion to
dismiss. Court may require filing of replyand other responsive or pleadings. The
order requiring the respondent to comment is equivalent to summons.
Section 7. Expediting proceedings; injunctive relief. — The court in which the
petition is filed may issue orders expediting the proceedings, and it may also grant a
temporary restraining order or a writ of preliminary injunction for the preservation of
the rights of the parties pending such proceedings. The petition shall not interrupt
the course of the principal case unless a temporary restraining order or a writ of
preliminary injunction has been issued against the public respondent from further
proceeding in the case. (7a)
Court may issue TRO or writ of preliminary injunction. Purpose?
To preserve the rights of the parties pending the proceedings.
Never forget that if you file petition for certiorari, prohibition or mandamus, the
filing thereof does not stop the lower court from proceeding with trial. Because
certiorari is an independent action, when the petition for certiorari is filed, then
lower court may proceed with proceeding except of course if there is a TRO or writ
of preliminary injunction
This is an amendment to rule. Dec 2007. The petition shall not interrupt the course
of the principal case, kung gi question ang order sa judge ngano gi grant ang
induction, ipadayon ang main case, if order granting attachment is questioned, and
wants to annul order, it will not stop the main case from proceeding, except when
there is a TRO against judge.
Before amendment, we had this principle of judicial courtesy. I certiorari gani, in
deference to the higher court, while they’re still considering the granting or denial of
the order, mohunong ang lower court. Karon di na pwde, Mohunong n gni ang judge
without injunction from the higher court, delikado ang judge.
The public respondent shall proceed with the principal case within 10 days from
filing of a petition for certiorari in the higher court or tribunal absent any TRO or
injunction. Failure to proceed may be a ground for administrative action.
Section 8. Proceedings after comment is filed. — After the comment or other
pleadings required by the court are filed, or the time for the filing thereof has
expired, the court may hear the case or require the parties to submit memoranda. If
after such hearing or submission of memoranda or the expiration of the period for
the filing thereof the court finds that the allegations of the petition are true, it shall
render judgment for the relief prayed for or to which the petitioner is entitled.
The court, however, may dismiss the petition if it finds the same to be patently
without merit, prosecuted manifestly for delay, or that the questions raised therein
are too unsubstantial to require consideration. (8a)
Court may hear the case or ask the parties to submit memoranda. So oral argument
or written memorandum. If the court finds the allegations of the petition true, then
it shall render judgment for such relief to which the petitioner is entitled.
What are the grounds for dismissal of a petition for certiorari, prohibition,
mandamus?
1. If it is patently without merit.
2. If it is prosecuted manifestly for delay
3. If the questions raised therein are too unsubstantial to require
consideration.
In such event, the court may award in favor of the respondent treble costs solidarily
against the petitioner and counsel, in addition to subjecting counsel to
administrative sanctions under Rules 139 and 139-B of the Rules of Court
Naa practice s mga lawyers na cge nlng file certiorari, gi abuse. So karon, hasta
abogado pabayron.
Relief petitioner entitled to in CPM
1. Certiorari:
To nullify, set aside, modify proceeding.
The merits not being before the court in the proceeding in the issuance of a
writ of certiorari, so no damages. By the way, if a petition for certiorari is
filed, never touch the merits of the main case, otherwise, ma resolve na
daan sa certiorari ang main action.
2. Prohibition:
Judgment commanding the defendant to desist from further proceeding
3. Mandamus
 Judgment commanding the defendant to do the act required to be done
and to pay damages: moral & exemplary damages will be awarded.
Section 9. Service and enforcement of order or judgment. — A certified copy of the
judgment rendered in accordance with the last preceding section shall be served
upon the court, quasi-judicial agency, tribunal, corporation, board, officer or person
concerned in such manner as the court may direct, and disobedience thereto shall be
punished as contempt. An execution may issue for any damages or costs awarded in
accordance with section 1 of Rule 39. (9a)
Suppose there is a petition the title is certiorari but in fact it is prohibition?
Between title and the body, body prevails. A judgment of the court must be certified
and served upon respondent in such manner as the court may direct. If you
disobey, judgment, the remedy is contempt plus damages. //angge
Rule 66
Quo Warranto
Section 1. Action by Government against individuals.
An action for the usurpation of a public office, position or franchise may be
commenced by a verified petition brought in the name of the Republic of the
Philippines against:
(a) A person who usurps, intrudes into, or unlawfully holds or exercises a public
office, position or franchise;
(b) A public officer who does or suffers an act which, by the provision of law,
constitutes a ground for the forfeiture of his office; or
(c) An association which acts as a corporation within the Philippines without being
legally incorporated or without lawful authority so to act.
Usurpation of public office, position or franchise.
Who will commence action?
Office of the Solicitor General
What is the form?
Verified petition
In whose name?
In the name of the republic of the Philippines
Against whom?
Against the following—
 A person who usurps, intrudes into, or unlawfully holds or exercises a
public office, position or franchise;
 A public officer who does or suffers an act which, by the provision of law,
constitutes a ground for the forfeiture of his office; or
 An association which acts as a corporation within the Philippines without
being legally incorporated or without lawful authority so to act
You should distinguish quo warranto referring to offices filled by election and quo
warranto filled by appointment:
Quo warranto—elective
What is to be determined is the illegibility of the candidate
Quo warranto in proceedings referring to appointment
What is the issue?—Legality of the appointment
Quo warranto—elective
The court cannot declare that the candidate occupying the second place
has been elected.
Example. 2 persons who are candidates for mayors, X and Y. Nakadaog si
X, gi question ang illegibility ni Y. Will the petitioner now become mayor?
The answer is NO.
Quo warranto—appointed
Pwede mu-assume ang mu-petition
Quo warranto does not lie to remove duly-appointed officers and duly-qualified.
Sec. 2. When Solicitor General or public prosecutor must commence action.
The Solicitor General or a public prosecutor, when directed by the President of the
Philippines, or when upon complaint or otherwise he has good reason to believe that
any case specified in the preceding section can be established by proof, must
commence such action.
When will SolGen commence action?
In the following cases—
 When directed by the president
 When upon complaint or otherwise he has good reason to believe that any
case specified in the preceding section can be established by proof, must
commence such action.
Determination of sufficiency of evidence depends upon the discretion of the SolGen.
SolGen should not represent respondent.
Sec. 3. When Solicitor General or public prosecutor may commence action
with permission of court.
The Solicitor General or a public prosecutor may, with the permission of the court in
which the action is to be commenced, bring such an action at the request and upon
the relation of another person; but in such case the officer bringing it may first
require an indemnity for the expenses and costs of the action in an amount
approved by and to be deposited in the court by the person at whose request and
upon whose relation the same is brought.
The words “another person”
Is known as the ―relator‖
What may the SolGen demand from the relator?
He may require indemnity for expenses and cost of the action to be deposited in
court.
Sec. 4. When hearing had on application for permission to commence
action.
Upon application for permission to commence such action in accordance with the
next preceding section, the court shall direct that notice be given to the respondent
so that he may be heard in opposition thereto; and if permission is granted, the
court shall issue an order to that effect, copies of which shall be served on all
interested parties, and the petition shall then be filed within the period ordered by
the court.
Sec. 5. When an individual may commence such an action.
A person claiming to be entitled to a public office or position usurped or unlawfully
held or exercised by another may bring an action therefor in his own name.
So the individual brings action not under the name of the Republic of the Philippines
but under his name.
He must prove that he is entitled to the office held by the respondent. If there are 2
respondents then he must prove that he is entitled to both offices.
Sec. 6. Parties and contents of petition against usurpation.
When the action is against a person for usurping a public office, position or
franchise, the petition shall set forth the name of the person who claims to be
entitled thereto, if any, with an averment of his right to the same and that the
respondent is unlawfully in possession thereof. All persons who claim to be entitled
to the public office, position or franchise may be made parties, and their respective
rights to such public office, position or franchise determined, in the same action.
Sec. 7. Venue.
An action under the preceding six sections can be brought only in the Supreme
Court, the Court of Appeals, or in the Regional Trial Court exercising jurisdiction
over the territorial area where the respondent or any of the respondents resides,
but when the Solicitor General commences the action, it may be brought in a
Regional Trial Court in the City of Manila, in the Court of Appeals, or in the Supreme
Court.
Sec. 8. Period for pleadings and proceedings may be reduced; action given
precedence.
The court may reduce the period provided by these Rules for filing pleadings and for
all other proceedings in the action in order to secure the most expeditious
determination of the matters involved therein consistent with the rights of the
parties. Such action may be given precedence over any other civil matter pending in
the court.
Suppose the court finds usurpation? What will the judgment be?
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.
Well-known is the principle that the plaintiff will succeed only when he proves his
right to the office.
Court may not need to pass upon the rights of the defendant if plaintiff’s right is not
proven.
Court may pass upon rights of defendant if action is brought by the office of the
SolGen.
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
respondent’s custody or control appertaining to the office to which the judgment
relates. If the respondent refuses or neglects to deliver any book or paper pursuant
to such demand, he may be punished for contempt as having disobeyed a lawful
order of the court. The person adjudged entitled to the office may also bring action
against the respondent to recover the damages sustained by such person by reason
of the usurpation.
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
petitioner’s right to the office in question.
Exception
There is an exception to this 1-year period via jurisprudence. A petitioner
immediately takes steps, wa siya matulog, then he may file a petition even beyond
five years. He does not lost his right by abandonment
Resort to administrative remedy does not abate the 1-year period to file quo
warranto proceedings.
Complaint for backwages and damages is also subject to the 1-year prescriptive
period.
Sec. 12. Judgment for costs.
In an action brought in accordance with the provisions of this Rule, the court may
render judgment for costs against either the petitioner, the relator, or the
respondent, or the person or persons claiming to be a corporation, or may apportion
the costs, as justice requires.
Rule 67
Expropriation
Section 1. The complaint.
The right of eminent domain shall be exercised by the filing of a verified complaint
which shall state with certainty the right and purpose of expropriation, describe the
real or personal property sought to be expropriated, and join as defendants all
persons owning or claiming to own, or occupying, any part thereof or interest
therein, showing, so far as practicable, the separate interest of each defendant. If
the title to any property sought to be expropriated appears to be in the Republic of
the Philippines, although occupied by private individuals, or if the title is otherwise
obscure or doubtful so that the plaintiff cannot with accuracy or certainty specify
who are the real owners, averment to that effect shall be made in the complaint.
Eminent domain is the right; expropriation is the remedy.
How is expropriation commenced?
File a verified complaint stating with certainty the right and purpose of
expropriation.
So state the right, state the purpose. Is it for public purpose? Is it for private
purpose?
State also the property sought to be expropriated.
Who shall be joined as defendants?
All persons owning or claiming to own, or occupying, any part thereof or interest
therein, showing, so far as practicable, the separate interest of each defendant
Kadaghanan sayop usahay sa pagtuo sa publiko—di gani ka ka-kiha, aw, wa kay
labot. That is wrong.
Maski di pa ka ka-kiha, kinahanglan, isa gyud ka sa defendants. Which is the
present decision of the SC regarding the matter. Because what does the rule say? It
is very clear—ALL persons owning or claiming to own, all occupants (a mere
occupant!) is entitled to just compensation.
Pareho ra gud na sa ejectment. Nag tuo ang mga tao na kung squatter ka, you can’t
file an ejectment. Wrong! Kay ang issue sa ejectment is position only, not
ownership. Nagtuo ang uban na ang squatter occupying a public property is not a
real party in interest. Wrong! Ang aquatter sa public land, pwede siya maka-file ug
ejectment even if he is not the owner.
If the title to any property sought to be expropriated appears to be in the Republic
of the Philippines although occupied by private individuals—meaning squatter—if the
title is otherwise obscure or doubtful so that the plaintiff cannot with accuracy or
certainty specify who are the real owners, averment to that effect shall be made in
the complaint.
Action for expropriation is incapable of pecuniary estimation
This is a Cebu case. Barangay San Roque Talisay vs Heirs of Pastor
(GR138896). An expropriation suit is incapable of pecuniary estimation.
Accordingly, it falls within the jurisdiction of the regional trial courts, regardless of
the value of the subject property. Di na nato hisgutan ang eminent domain kay
ngilngig na mo ana. 
2 Stages in every action for expropriation
Pareho ra ni sa 2 stages in partition.
First stage
Determine the authority of the plaintiff and the propriety of its exercise
Remember Political Law—Kung mu-expropriate gani ang lungsod, kailangan
there must be an ordinance. Before the ordinance, kailangan, you
negotiate with the owner. Kung wa gani na—no expropriation. So no right
to expropriate. Mao na i-una i-determine—right and propriety of exercise.
Second stage
Determination by the court of the value of the just compensation. Duna
gani right, next stage is determine the just compensation.
Tag-iya ka sa yuta, gusto kang mu tukod ug building. Di ka katukod. What
is that? Deprivation of ownership? That is equivalent or tantamount to
expropriation. So you are entitled to just compensation.
The case is xxx vs City of Manila which is an old case.
Meaning of necessity
Ah, champion na mo ana in political law.
Sec. 2. Entry of plaintiff upon depositing value with authorized government
depositary
Upon the filing of the complaint or at any time thereafter and after due notice to the
defendant, the plaintiff shall have the right to take or enter upon the possession of
the real property involved if he deposits with the authorized government depositary
an amount equivalent to the assessed value of the property for purposes of taxation
to be held by such bank subject to the orders of the court. Such deposit shall be in
money, unless in lieu thereof the court authorizes the deposit of a certificate of
deposit of a government bank of the Republic of the Philippines payable on demand
to the authorized government depositary.
If personal property is involved, its value shall be provisionally ascertained and the
amount to be deposited shall be promptly fixed by the court.
After such deposit is made the court shall order the sheriff or other proper officer to
forthwith place the plaintiff in possession of the property involved and promptly
submit a report thereof to the court with service of copies to the parties.
Section 2 and the BOT law
I warn you! There is a another law, parallel to Section 2 which is the Build-Operate-
Transfer Law, BOT. Republic vs Gingoyon (GR 166429) is the leading case. This
involves the PIATCO cases, kaning NAIA 3.
The plaintiff, under Section 2, may enter the property even before answer. How?
Just deposit the assessed value of the property. After payment of assessed value,
the plaintiff may file a motion for the issuance of the writ of possession.
You remember that provision in Civil Procedure? Dismissal by notice? Ato
na i-connect sa Section 2.
Upon the filing of the complaint or at any time thereafter and after due notice to the
defendant, the plaintiff shall have the right to take or enter upon the possession of
the real property involved if he deposits with the authorized government depositary
an amount equivalent to the assessed value of the property for purposes of taxation
to be held by such bank subject to the orders of the court.
Kaning assessed value, gamay ra ni kaayo kay sa real value kay taxation ra man.
Ang uban gani, pagamyan pa gani. Unya kung naa na ang writ of possession, maka-
intra na ang plaintiff even before answer. Ingun-ana ka harsh ang expropriation.
Naa kay yuta unya himoong road—expansion sa road. Basta mu deposit na ug
assessed value, they can enter the property; they can destroy the property.
Going back to the dismissal by notice rule. Kani na rule, mu-file ang plaintiff ug
kaso. Before answer is served, he may file a Notice of Dismissal. Ug i-apply nimo sa
expropriation, what will happen? So ni file ang plaintiff, ni deposit, ni sulod sa
property, giguba ang balay, gi putol ang kahoy unya wala pa’y answer. Wa pa
katubag. Kay wa pa ma’y answer, ni file dayon ang plaintiff ug Notice of Dismissal.
Guba na. So SC said that the xxx Dismissal Rule does not apply to expropriation—
ayaw gyud na ninyo kalimti.
Government depositary bank. Unsa man?
Landbank of the Philippines. Deposits shall be in money unless in lieu thereof the
court authorizes the deposit of a certificate of deposit of a government bank of the
Republic of the Philippines payable on demand to the authorized government
depositary.
Suppose personal property is involved?
If personal property is involved, its value shall be provisionally ascertained and the
amount to be deposited shall be promptly fixed by the court.
Ang personal property wala man na’y assessed value. So what is the basis? Court
shall determine the value provisionally and the amount to be deposited shall be
promptly fixed.
After deposit, what is the duty of the sheriff?
After such deposit is made the court shall order the sheriff or other proper officer to
forthwith place the plaintiff in possession of the property involved and promptly
submit a report thereof to the court with service of copies to the parties.
San Diego vs Hon. Valdeleon (GR L-45673)
Please take note of this. No prior hearing is necessary before immediate possession
can be granted to the Republic of the Philippines.
2 Purposes of preliminary deposit
 As pre-payment
 As indemnity
Sec. 3. Defenses and objections.
If a defendant has no objection or defense to the action or the taking of his
property, he may file and serve a notice of appearance and a manifestation to that
effect, specifically designating or identifying the property in which he claims to be
interested, within the time stated in the summons. Thereafter, he shall be entitled
to notice of all proceedings affecting the same.
If a defendant has any objection to the filing of or the allegations in the complaint,
or any objection or defense to the taking of his property, he shall serve his answer
within the time stated in the summons. The answer shall specifically designate or
identify the property in which he claims to have an interest, state the nature and
extent of the interest claimed, and adduce all his objections and defenses to the
taking of his property. No counterclaim, cross-claim or third-party complaint shall
be alleged or allowed in the answer or any subsequent pleading.
A defendant waives all defenses and objections not so alleged but the court, in the
interest of justice, may permit amendments to the answer to be made not later
than ten (10) days from the filing thereof. However, at the trial of the issue of just
compensation, whether or not a defendant has previously appeared or answered, he
may present evidence as to the amount of the compensation to be paid for his
property, and he may share in the distribution of the award.
Posible nga ang defendant di mu-object. Laliman ka, imong yuta, gibutangan ug
kalsada, di ba mutaas ang value? Ug ikaw mugasto imo kalsada, mugasto ka
Php1M. Pa-agi-on nalang nimo, bayaran pa ka. So you may not object.
What is the rule?
If a defendant has no objection or defense to the action or the taking of his
property, he may file and serve a notice of appearance and a manifestation to that
effect.

State also in the manifestation the designation or identification of the property he
claims to be interested.
Suppose defendant eccepts. He may object to the right or purpose. He may object
to the compensation. He may not object relative to the right, but just the
compensation.
What is the rule if the defendant has any objection?
Defendant shall serve his answer within the time stated the summons.
Contents of answer
Designation or identity of the property; nature and extent of interest claimed
(owner ba sya, lessee ba…); then adduce all objections and defenses.
Remember, follow the Omnibus Motion Rule
Defenses and objections not pleaded in the answer are deemed waived.
Do not forget also—no counterclaim, no cross-claim, no third-party claim in
expropriation.
One other thing—this is the only action where even if the defendant failed and
refused to answer, he is given a chance to present evidence as if there was an
answer.
A defendant waives all defenses and objections not so alleged but the court, in the
interest of justice, may permit amendments to the answer to be made not later
than ten (10) days from the filing thereof.
However, at the trial of the issue of just compensation, whether or not a defendant
has previously appeared or answered, he may present evidence as to the amount of
the compensation to be paid for his property, and he may share in the distribution
of the award.
Sec. 4. Order of expropriation.
If the objections to and the defenses against the right of the plaintiff to expropriate
the property are overruled, or when no party appears to defend as required by this
Rule, the court may issue an order of expropriation declaring that the plaintiff has a
lawful right to take the property sought to be expropriated, for the public use or
purpose described in the complaint, upon the payment of just compensation to be
determined as of the date of the taking of the property or the filing of the
complaint, whichever came first.
A final order sustaining the right to expropriate the property may be appealed by
any party aggrieved thereby. Such appeal, however, shall not prevent the court
from determining the just compensation to be paid.
After the rendition of such an order, the plaintiff shall not be permitted to dismiss or
discontinue the proceeding except on such terms as the court deems just and
equitable.
When shall the court issue an order of expropriation?
 If objections are overruled
 When no party appears to defend
The court may issue an order of expropriation declaring that the plaintiff has a
lawful right to take the property sought to be expropriated, for the public use or
purpose described in the complaint.
So mao na ang 1st stage—determination of the right of the plaintiff.
Xxx upon the payment of just compensation to be determined as of the date of the
taking of the property or the filing of the complaint, whichever came first.
Double appeal
So there is double appeal here. The appeal as be by Record on Appeal. Kay pwede
man ta mu-supak sa right; but pwede ra pud ka mu dawat sa compensation. So
double appeal.
A final order sustaining the right to expropriate the property may be
appealed by any party aggrieved thereby
So this is one aspect of the appeal—gi question nimo ang right of the plaintiff to
expropriate.
What is the effect of the appeal?
It shall not prevent the Court from determining the just compensation to be paid.
After the rendition of such an order, the plaintiff shall not be permitted to
dismiss or discontinue the proceeding except on such terms as the court
deems just and equitable.
So jurisprudence on this matter—kung mu file na gani ang plaintiff ug expropriation,
there is already an order of expropriation, dili na ka maka-back-out, except kung
musugot ang defendant. Di na ka ka back-out. Na hitabo ni sa Cebu City and other
parts of the coutry.
The first case is NHA vs Heirs of Guivelondo (GR 154411). Ni file ang city ug
expropriation. Gi fix ang amount sa just compensation. Ni atras ang city—ka-dako
gud ani?! Mahal ra! So ni withdraw siya. Gi kasab-an sa Supreme Court. Ngano man
patuga-tuga man mo ug expropriation? Di na mo ka atras.
Suppose there is already a decision that the plaintiff should pay so much.
Di kabayad ang plaintiff. Maka bawi ba ang defendant sa property?
General rule—the answer is NO. Why? Because the judgment has already become
final and executory.
Exceptions
Just compensation also means prompt compensation. In the case Republic
vs Lim (GR161656). Wala gibayaran si Mr. Lim in 7 years. So he was
allowed to recover the property. So if wala’y prompt comensation—maka
bawi.
Period to appeal
Period to appeal is 30 days. Why? Because the appellant is required to file a Record
on Appeal. There must be a hearing before order of compensation.

Sec. 5. Ascertainment of compensation.
Upon the rendition of the order of expropriation, the court shall appoint not more
than three (3) competent and disinterested persons as commissioners to ascertain
and report to the court the just compensation for the property sought to be taken.
The order of appointment shall designate the time and place of the first session of
the hearing to be held by the commissioners and specify the time within which their
report shall be submitted to the court.
Copies of the order shall be served on the parties. Objections to the appointment of
any of the commissioners shall be filed with the court within ten (10) days from
service, and shall be resolved within thirty (30) days after all the commissioners
shall have received copies of the objections.
The case of IT Park. The whole stretch from Waterfront to UC, mao na ang old
Lahug Airport, kadtong wala pa ni balhin sa MCIAA. Gi hulga man ang mga tao. CAB
pa to—Civil Aeronotics Boad. Gi hulga ang mga tao. Di gani mu musugot, i-
expropriate namo. You either deal with us nga naa ta’y Memorandum of Agreement;
or we will expropriate. Nahaldlok ang uban tao. Ang uban wala.
So duna’y MOA. Unsa ma’y gibutang? Kung dili gani gamiton ang property for the
expansion of the airport, they will be returned to the owners. Kung unsa’y gi bayad,
mao sa’y ibalik.
Unsa’y nahitabo? Gibalhin ang old Lahug Airport ngadto sa Mactan. So nag file ug
mga kaso ang mga landowners.
Ni flip-flop ang mga Supreme Court.
Firs decision: kay duna ma’y MOA—unsa ma’y provision sa obligations and
contracts? Obligations arising from contracts shall be the law between the
contracting parties. Mao man na’y sabot. So kung dili i-expand, i-uli. Gi-uli.
Singkwenta centavos ni adto per square meter karon millions na. Except of course
kung naa’y improvements…xxx
Now how about the owners na nisukol sa expropriation? I handled one case—ingon
ko, unsa ma’y dipirinsya? Nga gi expropriate to para sa expansion sa airport. Wa na
ma’y expansion di i-uli sa tag-iya. First decision. Na appeal ko sa Court of Appeals.
Pag-abot sa Supreme Court, reversed. Ngano? Fery vs Municipality of
Cabanatuan (GR 17540). Basta ma-transfer ang title in fee simple, kung ang
public use, lahi ang original public use, din a nimo mabawi. Kanang Fery gi totally
reverse.
So…gi-reverse ang first decision nila. Nga ang expropriation di na mabawi.
Mabawi gihapon, in the case of MCIAA and ATO vs Lozada, et al (GR 176625).
So ang ruling karon (naa ni sa Political Law ninyo), mu-file gani ka’g expropriation—
you state the public purpose. In Fery, pirmirong gi file mao ni—school. Sus,
pagkahuman na di man school, na public market man. Unsa ma’y first ruling? A, di
na mabawi, kay na transfer naman ang title.
Supreme Court said in the case of Lozada (which is the latest), if the government or
the plaintiff files for an action of expropriation, state the purpose, the specific
purpose. Gamiton gani ug la-in na purpose, mabawi sa tag-iya. Unless another
expropriation will be filed by the plaintiff.
Who wants to be a millionaire? :)))))
So this ruling will open the floodgates sa mga nabawi-an nag u yuta tungod sa
expropriation. Pag-file ninyo sa kaso, lahi ang public purpose. O, karon, ngano la-in
naman gi gamitan? Expect na if ma-abogado na mo ma inherit ninyo ning mga
kasuha. Pangita mo’g mga ingon-ani na kasuha kay dinhi na milyonaryo si Papa P.
(Di lang million..millionS.) Kadto sila Moreno, Chiongbian—nabawi nila. Pero
kadtong mga building, gipasagdan nalang nila.//nina
August 3
RULE 67
EXPROPRIATION
Going back to the case handled by Atty. Pascual, there was a Lahug airport before,
under the Civil Aeronautics Board (CAB) which used to be named Civil Aeronautics
Aviation?(CAA). Since the airport needs to be expanded, the CAB negotiated with
the owners. It extends from Waterfront to (sic) in front of UC. CAB said that if
owners will not negotiate their properties with the government, then their properties
will be expropriated; so many negotiated with the government. The agreement was
if the parcels of land will no longer be needed for airport expansion, the land will be
returned back to the owners. Others refused to negotiate with the government, so
their properties were expropriated.
When the airport was transferred to Mactan, it was already under Mactan Cebu
International Airport (MCIAA) and no longer under CAB. So owners filed a case
versus MCIAA. First case was MCIAA vs CA, because CA sustained the stand of the
previous land owners that the lands shall be returned to them. But then there was a
problem because the properties were taken by expropriation. Judge Paredes’ ruling
and other court’s ruling was that the properties shall be returned because the
purpose of taking them was the very same purpose when some owners negotiated
to the government. Then, it was reversed by CA but was upheld by SC.
The last case was MCIAA vs Lozada. That all properties taken by the MCIAA should
be returned to its owners at the price it were acquired, except of course that they
have to reimburse any improvements introduced in good faith.
In Lozada, SC said that if you file an action for expropriation, you state the public
purpose. If the property be used for another purpose, then the property
expropriated should be returned to the owners.
Section 1. The complaint.
The right of eminent domain shall be exercised by the filing of a verified complaint
which shall state with certainty the right and purpose of expropriation, describe the
real or personal property sought to be expropriated, and join as defendants all
persons owning or claiming to own, or occupying, any part thereof or interest
therein, showing, so far as practicable, the separate interest of each defendant. If
the title to any property sought to be expropriated appears to be in the Republic of
the Philippines, although occupied by private individuals, or if the title is otherwise
obscure or doubtful so that the plaintiff cannot with accuracy or certainty specify
who are the real owners, averment to that effect shall be made in the complaint.
Who has a right of Eminent Domain? How shall it be exercised?
 File a verified complaint stating the following, with certainty:
1. The right and purpose of expropriation (must be for public
purpose)
2. Describe the real or personal property sought to be expropriated
Who shall be joined as defendants?
 All persons owning or claiming to own, or occupying, any part thereof or
interest therein, showing, so far as practicable, the separate interest of
each defendant
It is not true that only the owner can be compensated. In several decisions of
SC recently, it said that owners, persons claiming to own, and even occupants
claiming to own may be compensated.
If the title to any property sought to be expropriated appears to be in the
Republic of the Philippines, although occupied by private individuals, or if the
title is otherwise obscure or doubtful so that the plaintiff cannot with accuracy
or certainty specify who are the real owners, that fact must be alleged in the
complaint.
Eminent domain is the right; expropriation is the proceeding. You know the
proceeding for the local government unit to expropriate. There must be an
ordinance and not a resolution. You have to negotiate with the owner first
before filing the action. The ordinance must authorize the Mayor to initiate the
expropriation proceeding, that’s in LGC.
What court has the exclusive original jurisdiction over expropriation cases?
 RTC. Because it’s an action not capable of pecuniary estimation. You do not
know how much will be the amount to be given to the owner or occupant.
Like partition, there are two stages in expropriation.
1. First Stage: Determine the authority of the plaintiff to exercise the
power of eminent domain/ right to expropriate and the propriety of its
exercise. Plaintiff must have lawful right to take property sought to be
condemned for the public purpose or use described in the complaint.
2. Second Stage: Determination of the Just compensation. If there is
disagreement relative to determination of just compensation, the court
will appoint three independent and competent commissioners.
If you have a parcel of lot (300 sq. m) and you want to build a residential
house and you have been refused by the government without good reason/ you
are not given a building permit, that’s tantamount to expropriation because you
are deprived of the use of the land.
What is the meaning of Necessity?
 It does not mean absolute but only reasonable or practical necessity.
Property already devoted to public use is not subject to public use.
Sec. 2. Entry of plaintiff upon depositing value with authorized government
depositary.
Upon the filing of the complaint or at any time thereafter and after due notice to the
defendant, the plaintiff shall have the right to take or enter upon the possession of
the real property involved if he deposits with the authorized government depositary
an amount equivalent to the assessed value of the property for purposes of taxation
to be held by such bank subject to the orders of the court. Such deposit shall be in
money, unless in lieu thereof the court authorizes the deposit of a certificate of
deposit of a government bank of the Republic of the Philippines payable on demand
to the authorized government depositary.
If personal property is involved, its value shall be provisionally ascertained and the
amount to be deposited shall be promptly fixed by the court.
After such deposit is made the court shall order the sheriff or other proper officer to
forthwith place the plaintiff in possession of the property involved and promptly
submit a report thereof to the court with service of copies to the parties.
After the complaint is filed or even before the defendant has filed and served his
answer, the plaintiff or expropriator may enter the property, remove the
improvements, whether there are houses, barns or whatever.
Just deposit with the authorized govt depositary, LBP, an amount equal to the
assessed value of the property. That is only for the purpose of entering. The
expropriator cannot still enter immediately because he must secure a writ of
possession. If court issues a writ of possession, the sheriff will oust the owner or
occupant from the premises and place the plaintiff in peaceful possession of the
premises.//sara
Such deposit shall be in money unless the court authorizes the deposit of a
certificate of deposit of a government bank of the Republic of the Philippines like
Landbank banks payable on demand to the authorized government depositary. That
is the procedure if the property involved is real property.
Supposed the property involved is real property, there is no assessed value. So
what’s the basis or interest? The value shall be provisionally ascertained and the
amount involved will be deposited with the court. So after deposit the sheriff or
other proper officer forthwith places the plaintiff in possession of the property. What
is the duty of the plaintiff? Report to the court with service of copies to the parties.
So this is section 2, you can enter and take possession of the property if you deposit
the assessed value.
But there is a new law, the Build Operate Transfer Law, leading case is Republic vs.
Judge Henric Guingoyon Jr, this is the case of PIATCO, NAIA 3. Ang nag build
German, the government wanted to possess the property, NAIA 3, but the court
said, no, you have to deposit the whole amount. So that’s the law, but this law
applies only to government-funded infrastructure project like the airports.
Before taking possession, is there a need to hear the incident? No, no need, once
you deposit you can enter if there is a writ of possession.
The [sic] deposit has two-fold purpose:
1. Pre-payment (that is not the whole payment)
2. Indemnity against damage
Now there is a provision under civil procedure known as Dismissal by Notice.
Plaintiff files a case, before answer is served, plaintiff may withdraw the case, so
notice of dismissal. That is allowed. I repeat before answer is filed plaintiff may
withdraw the case by filing a notice of dismissal, not motion to dismiss.
That rule does not apply to expropriation. What is the reason? I’ll give you an
example. Plaintiff City of Cebu filed an action for expropriation, deposited the
amount, then entered the property, removed the houses, removed the
improvements, trees, etc. Since defendant has not yet filed his answer, can the
government say, let us apply the notice of dismissal rule, withdraw dayon, guba na,
diba, unfair. Supreme Court said not applicable.
Sec. 3. Defenses and objections.
If a defendant has no objection or defense to the action or the taking of his
property, he may file and serve a notice of appearance and a manifestation to that
effect, specifically designating or identifying the property in which he claims to be
interested, within the time stated in the summons. Thereafter, he shall be entitled
to notice of all proceedings affecting the same.
If a defendant has any objection to the filing of or the allegations in the complaint,
or any objection or defense to the taking of his property, he shall serve his answer
within the time stated in the summons. The answer shall specifically designate or
identify the property in which he claims to have an interest, state the nature and
extent of the interest claimed, and adduce all his objections and defenses to the
taking of his property. No counterclaim, cross-claim or third-party complaint shall
be alleged or allowed in the answer or any subsequent pleading.
A defendant waives all defenses and objections not so alleged but the court, in the
interest of justice, may permit amendments to the answer to be made not later
than ten (10) days from the filing thereof. However, at the trial of the issue of just
compensation, whether or not a defendant has previously appeared or answered, he
may present evidence as to the amount of the compensation to be paid for his
property, and he may share in the distribution of the award.
The defendant may agree, I’ll be benefited if a road will be constructed in the
middle of my property, the value of the land will appreciate, so no objection. If he
has no objection or no defense, he will simply file a manifestation to the court.
Manifestation—defendant through counsel respectfully manifests that he has no
objection to the expropriation of this property, but he must describe the property, if
it is titled then you state the title, you state also the area. So the rule says, he may
file and serve a notice of appearance and a manifestation specifically designating or
identifying the property in which he claims to be interested, within the time stated
in the summons. Thereafter, he shall be entitled to notice of all proceedings
affecting the same.
If you are only an occupant of a government land, you build a house, you agreed,
but you said—you pay me the value of my house.
Suppose the defendant will resist or oppose the expropriation, what is the
proceeding? He should file his answer. So file and serve answer within the time
stated in the summons.
What must be alleged in the answer? Specifically designate or identify the property
in which he claims to have an interest. The rule did not even say he claims to be his
own, ni ingon ra nga claims to have an interest, so he may not be the owner.
The nature and extent of the interest claimed, then his objections and defenses.
Usually the objection is—it’s not for public purpose. Like in Masikip vs. City of Pasig,
gi-expropriate sa City of Pasig ang iyang property para sa mga sports activities, so
he opposed, and he was sustained by the supreme court. Ang City of Pasig naa na
sila daa’y sports complex, nganong kuhaon paman gyud ang kang Masikip nga
masikip naman daan iyang property. 
Now do not also forget that just like criminal procedure, there is no counter claim,
cross-claim, or third-party complaint.
Then apply the Omnibus Motion Rule. You interpose all the grounds for objections.
So defenses and objections not alleged in the answer are deemed waived.
Amendments to the answer may be allowed not later than 10 days from the filing
thereof.
And don’t forget also, this is the only action where if you if fail or refuse to file your
answer, you are allowed to present evidence. Repeat, you are allowed to present
evidence relative to the value or just compensation, it’s found in the last sentence:
“However, at the trial of the issue of just compensation, whether or not a defendant
has previously appeared or answered, he may present evidence as to the amount of
the compensation to be paid for his property, and he may share in the distribution
of the award”.
Sec. 4. Order of expropriation.
If the objections to and the defenses against the right of the plaintiff to expropriate
the property are overruled, or when no party appears to defend as required by this
Rule, the court may issue an order of expropriation declaring that the plaintiff has a
lawful right to take the property sought to be expropriated, for the public use or
purpose described in the complaint, upon the payment of just compensation to be
determined as of the date of the taking of the property or the filing of the
complaint, whichever came first.
A final order sustaining the right to expropriate the property may be appealed by
any party aggrieved thereby. Such appeal, however, shall not prevent the court
from determining the just compensation to be paid.
After the rendition of such an order, the plaintiff shall not be permitted to dismiss or
discontinue the proceeding except on such terms as the court deems just and
equitable.
If the objections and defenses are overruled, or when no party appears to defend as
required by the rule, the court may issue an order of expropriation declaring that
the plaintiff has a lawful right to take the property, for the public use or purpose
described in the complaint, of course, upon the payment of just compensation to be
determined as of the date of the taking of the property or the filing of the
complaint, whichever came first.
So section 4 settles the question of [sic]
A final order sustaining the right to expropriate the property may be appealed by
any party aggrieved thereby. Such appeal, however, shall not prevent the court
from determining the just compensation to be paid.
After the rendition of such an order, the plaintiff shall not be permitted to dismiss or
discontinue the proceeding except on such terms as the court deems just and
equitable.
There is here multiple appeal. The defendant may question the right of the plaintiff
to expropriate, and he may also disagree with the just compensation awarded by he
court. He may not question the right of the plaintiff to expropriate, ok ra, but he
may agree with the just compensation awarded by the court. So this is a case
involving multiple appeals. So since this is a case of multiple appeals, the mode of
appeal is Record on Appeal. Basta multiple appeal gani, Record on Appeal, within
how many days? Not 15 days but 30 days kay mag prepare pa man ka sa record on
appeal. Kung ang mode of appeal kay notice of appeal, you simply file notice of
appeal—defendant is not satisfied with the decision of the court, on question of act
and law hereby appeals the judgment to the honorable Court of Appeals Cebu. //jiji
File clag action for expropriation, bayad sila sa assess value, giguba nila tnan balay,
pg fix nila sa just compensation, ana si Tomas, ―mahal man, atras mi.‖ D na pwde,
ngano tugatuga! That is not not allowed except of course if there is an agreement
between the parties. Ingon ang mga tagiya, giguba nnu amo bai, pwde bah ilisan
mansion, nya kung mosugot, aw ok ra toh. Mao ni pasabot sa except on such terms
as the court deems just and equitable, kung I restore ila houses, bag-o pjud, kinsa
man di mosugot ana.
Also in connection with Sec. 4, after the court renders judgment, plaintiff can’t
withdraw, cannot dismiss, except when defendant agrees. Suppose after
expropriation, wa ka produce ug money, like for example, the City of Cebu, wa man
kwarta, pwde bah bawion sa defendant, can the defendant recover possession and
ownership? No, because the judgment has become final and executor and we have
to apply the doctrine of immutability of judgment.
Once judgment has become final and executory and the court has jurisdiction over
the subject matter, that decision can no longer be changed.
Exceptions are:
1) Nunc pro tunc judgment;
2) Corrections of clerical or typographical error.
3) If an indispensable party is not impleaded even for first time on appeal, even if
there’s already a decision in the SC, the indispensable party may intervene,
otherwise the judgment will be considered null and void.
But there is an exception, Republic vs Lim and other cases. Paghuman sa decision
wa mobayad for a period of 7 years, in other cases 20 years, pwde mabawi sa
defendant. Why? Because according to SC just compensation also means prompt
compensation.
Section 5. Ascertainment of compensation. — Upon the rendition of the order of
expropriation, the court shall appoint not more than three (3) competent and disinterested
persons as commissioners to ascertain and report to the court the just compensation for the
property sought to be taken. The order of appointment shall designate the time and place of
the first session of the hearing to be held by the commissioners and specify the time within
which their report shall be submitted to the court.
Copies of the order shall be served on the parties. Objections to the appointment of any of
the commissioners shall be filed with the court within ten (10) days from service, and shall
be resolved within thirty (30) days after all the commissioners shall have received copies of
the objections. (5a)
Sec. 5. Necessity of hearing before order of expropriation. In the ascertainment of
compensation, the court shall appoint not more than 3 competent and disinterested
persons as commissioners. What is their task? To ascertain and report to the court
the just compensation of the property sought to be taken.
The order of appointment shall designate the time and place of 1 st session. The
court should furnish the parties copies of the order. There may be objections in the
appointment of commissioners, but objections should be within 10 days from
service, and conflict shall be resolved within 30 days.
Section 6. Proceedings by commissioners. — Before entering upon the performance of
their duties, the commissioners shall take and subscribe an oath that they will faithfully
perform their duties as commissioners, which oath shall be filed in court with the other
proceedings in the case. Evidence may be introduced by either party before the
commissioners who are authorized to administer oaths on hearings before them, and the
commissioners shall, unless the parties consent to the contrary, after due notice to the
parties, to attend, view and examine the property sought to be expropriated and its
surroundings, and may measure the same, after which either party may, by himself or
counsel, argue the case. The commissioners shall assess the consequential damages to
the property not taken and deduct from such consequential damages the consequential
benefits to be derived by the owner from the public use or purpose of the property taken,
the operation of its franchise by the corporation or the carrying on of the business of the
corporation or person taking the property. But in no case shall the consequential benefits
assessed exceed the consequential damages assessed, or the owner be deprived of the
actual value of his property so taken. (6a
Commissioners shall take and subscribe an oath.
Purpose?
So they will faithfully perform their duties as commissioners.
Parties may present evidence before the commissioners.
One important task of commissioners is to view and examine the property sought to
be expropriated and its surroundings, adtuon jd na tanawon jd na nla, knsa mga
silingan. After which either party may by himself or counsel argue the case.
Another important task is to assess the consequential damages, and deduct the
consequential benefits. In no case shall the consequential benefits assessed exceed
the consequential damages assessed or the owner will be deprived of the actual
value of his property so taken. //angge//
What is the purpose of commissioners view of property?
For the purpose of better understanding the evidence presented by the parties.
Section 7. Report by commissioners and judgment thereupon. — The court may order the
commissioners to report when any particular portion of the real estate shall have been
passed upon by them, and may render judgment upon such partial report, and direct the
commissioners to proceed with their work as to subsequent portions of the property sought
to be expropriated, and may from time to time so deal with such property. The
commissioners shall make a full and accurate report to the court of all their proceedings,
and such proceedings shall not be effectual until the court shall have accepted their report
and rendered judgment in accordance with their recommendations. Except as otherwise
expressly ordered by the court, such report shall be filed within sixty (60) days from the date
the commissioners were notified of their appointment, which time may be extended in the
discretion of the court. Upon the filing of such report, the clerk of the court shall serve copies
thereof on all interested parties, with notice that they are allowed ten (10) days within which
to file objections to the findings of the report, if they so desire. (7a)
Sec. 7 Reports by commissioners. So they will submit a report through the court.
Now the court must hear the report for there may be objections to the report. The
defendant may say, ―baratoha ra ani oi‖, or ang plaintiff mo question ―mahala ra
ana oi‖, so the court will hear the report. if court is satisfied with the report, then
the court may render judgment in accordance therewith, it may quote the report in
toto. Now the commissioner must make a full and accurate report to the court for it
may be the basis of judgment.
When shall the parties raise their objection?
10 days within which to file objections to the findings in the report.
Section 8. Action upon commissioners' report. — Upon the expiration of the
period of ten (10) days referred to in the preceding section, or even before the
expiration of such period but after all the interested parties have filed their
objections to the report or their statement of agreement therewith, the court
may, after hearing, accept the report and render judgment in accordance
therewith, or, for cause shown, it may recommit the same to the commissioners
for further report of facts, or it may set aside the report and appoint new
commissioners; or it may accept the report in part and reject it in part and it
may make such order or render such judgment as shall secure to the plaintiff
the property essential to the exercise of his right of expropriation, and to the
defendant just compensation for the property so taken. (8a)
What action shall the court do after the commissioner’s report is
submitted?
This is of course after parties have filed their objections.
There are many options:
1. The court may accept the report and render judgment in accordance
therewith.
2. It may recommit the same to the commissioners for further report of facts.
Labo man ni ang report of facts, unsa man nu basis sa JC, ningutana mo
silingan, niadto bah sa RD.
3. Set aside report and appoint new commissioners. Another option, court
may accept report in part and reject it in part.
Section 9. Uncertain ownership; conflicting claims. — If the ownership of the property
taken is uncertain, or there are conflicting claims to any part thereof, the court may order
any sum or sums awarded as compensation for the property to be paid to the court for the
benefit of the person adjudged in the same proceeding to be entitled thereto. But the
judgment shall require the payment of the sum or sums awarded to either the defendant or
the court before the plaintiff can enter upon the property, or retain it for the public use or
purpose if entry has already been made. (9a)
This is a situation where the ownership of the property taken is uncertain or there
are conflicting claims. So under the circumstances, the court may order any sum or
sums awarded as compensation to be paid to the court for the benefit of the person
adjudged in the same proceeding. So the court in expropriation proceedings may
resolve the conflicting claims of the parties. If court says X is the owner, then
compensation will be delivered to X. If the judgment shall require a payment of sum
or sums awarded to either the defendant or the court, before the plaintiff can enter
into the property or retain it for the public use or purpose if entry has already been
made.
Sec. 10. Rights of plaintiff after judgment and payment.
Upon payment by the plaintiff to the defendant of the compensation fixed by the
judgment, with legal interest thereon from the taking of the possession of the
property, or after tender to him of the amount so fixed and payment of the costs,
the plaintiff shall have the right to enter upon the property expropriated and to
appropriate it for the public use or purpose defined in the judgment, or to retain it
should he have taken immediate possession thereof under the provisions of section
2 hereof. If the defendant and his counsel absent themselves from the court, or
decline to receive the amount tendered, the same shall be ordered to be deposited
in court and such deposit shall have the same effect as actual payment thereof to
the defendant or the person ultimately adjudged entitled thereto.
So what are the rights of the plaintiff (example City Government) after
judgment?
Plaintiff shall have the right to enter upon the property expropriated if he has not
yet entered and to appropriate it for the public purpose or use defined in the
judgment.
So the case is Lozada Jr. involving the properties in IT Park Lahug. Kung mu file ang
city ug expropriation proceeding, i-state ang public purpose unsa—ie, public
schools. Paghuman sa judgment, public market diay to. Pwede? NO. Because you
told the court it was for this public purpose, you cannot devote it to any other
purpose other than the one stated in the complaint.
If the defendant and his counsel absent themselves from the court or decline to
receive the amount, then deposit it to the court//angge
Sec. 11. Entry not delayed by appeal; effect of reversal.
The right of the plaintiff to enter upon the property of the defendant and
appropriate the same for public use or purpose shall not be delayed by an appeal
from the judgment. But if the appellate court determines that plaintiff has no right
of expropriation, judgment shall be rendered ordering the Regional Trial Court to
forthwith enforce the restoration to the defendant of the possession of the property,
and to determine the damages which the defendant sustained and may recover by
reason of the possession taken by the plaintiff.
Entry is not delayed by appeal. Kaning expropriation is harsh. The right of the
plaintiff to enter upon the property of the defendant and appropriate the same for
public use or purpose shall not be delayed by an appeal from the judgment.
Suppose gi-reverse sa appellate court. Ni-ingon ang appellate court: You
have no right to expropriate. What should be done under the
circumstances?
The rule says—restore to the defendant the possession of the property plus
damages.
Damages that may be recovered
 The loss resulting from the disposition of the lot
 The loss resulting from the deprivation of the use and application of the lot
 The expenses incurred during the pendency of the action including
attorney’s fees
 Destruction of buildings, canals, etc.
 And other damages
Sec. 12. Costsby whom paid.
The fees of the commissioners shall be taxed as a part of the costs of the
proceedings. All costs except those of rival claimants litigating their claims shall be
paid by the plaintiff unless an appeal is taken by the owner of the property and the
judgment is affirmed
in which event the costs of the appeal shall be paid by the owner.
Kaning commissioners, tagaan sad ug compensation. The fees of the commissioners
shall be taxed as a part of the costs of the proceedings.
Sec. 13. Recording judgment and its effect.
The judgment entered in expropriation proceedings shall state definitely by an
adequate description the particular property or interest therein expropriated and the
nature of the public use or purpose for which it is expropriated. When real estate is
expropriated a certified copy of such judgment shall be recorded in the registry of
deeds of the place in which the property is situated
and its effect shall be to vest in the plaintiff the title to the real estate so described
for such public use or purpose.
Last act is recording. Adequate description of property, interest, nature of the public
use or purpose.
If the land is titled
Then record it in the Registry of Deeds of the place in which the property is
situated.
If the land is already registered in the name of the plaintiff It’s effect shall be
to vest in the plaintiff the title to the real property described for such public use or
purpose.
Sec. 14. Power of guardian in such proceedings.
The guardian or guardian ad litem of a minor or of a person judicially declared to be
incompetent may, with the approval of the court first had, do and perform on behalf
of his ward any act, matter, or thing respecting the expropriation for public use or
purpose of property belonging to such minor or person judicially declared to be
incompetent, which such minor or person judicially declared to be incompetent
could do in such proceedings if he were of age or competent.
Not really important.
RULE 68
FORECLOSURE OF REAL ESTATE MORTAGE
Maayo naman mo sa Credit and Transaction. Maayo na pud mo sa Civil Law.
Peanuts ninyo ni. :D
Section 1. Complaint in action for foreclosure.
In an action for the foreclosure of a mortgage or other encumbrance upon real
estate, the complaint shall set forth the date and due execution of the mortgage; its
assignments, if any; the names and residences of the mortgagor and the
mortgagee; a description of the mortgaged property; a statement of the date of the
note or other documentary evidence of the obligation secured by the mortgage, the
amount claimed to be unpaid thereon; and the names and residences of all persons
having or claiming an interest in the property subordinate in right to that of the
holder of the mortgage, all of whom shall be made defendants in the action.
What shall be stated in the complaint?
 Date and due execution of the mortgage
 Its assignments, if any
 The names and residences of the mortgagor and the mortgagee
 A description of the mortgaged property
 A statement of the date of the note or other documentary evidence of the
obligation secured by the mortgage
 The amount claimed to be unpaid thereon
 The names and residences of all persons having or claiming an interest in
the property subordinate in right to that of the holder of the mortgage, all
of whom shall be made defendants in the action

Aside from the mortgage debtor, the complaint shall join as proper parties or
necessary parties the following:
 Second mortgagee
 Subsequent attaching creditor
 Subsequent purchaser
Ang gi-baligya, dako kaayo’g amount; ang-ang man ug ihatag tanan didto sa
creditor. Pananglitan Php500,000 ang iyang claim and then pagbaligya, Php1million.
Unya before nahuman ang kaso nangutang nasad ang defendant. So asa man na
nimo ihatag? Ngadto sa junior encumbrancer.
MTC may have jurisdiction in judicial or closure proceedings, depending sa assess
value or the amount of the property involved.
Mortgage property cannot appropriate the mortgaged property. Wa man kaha ka
kabayad, ako na na imong property. Sayop na. I-foreclose muna. Wala’y pactum
commisorium.
Mu direcho lang bira sa property, walay expropriation, impacto na sila!
Provisional remedies available to mortgagee in case of foreclosure
1. Preliminary attachment of the properties of the debtor not covered by the
mortgage. Ang utang Php1M secured by real property worth Php500K. So
there is an unsecured portion of Php500K. Kay naa ma’y unsecured
portion, the plaintiff may attach. Remember General Rule—you cannot
attach a property which is xxx.
2. Receivership of mortgaged property. Mahadlok ang plaintiff na ang
property under litigation will be wasted, destroyed, etc., so nagkinahanglan
ug receivership. A receiver is appointed by the court to preserve the
property.//nina
August 10
RULE 68
FORECLOSURE OF REAL ESTATE MORTGAGE
Section 1. Complaint in action for foreclosure.
In an action for the foreclosure of a mortgage or other encumbrance upon real
estate, the complaint shall set forth the date and due execution of the mortgage; its
assignments, if any; the names and residences of the mortgagor and the
mortgagee; a description of the mortgaged property; a statement of the date of the
note or other documentary evidence of the obligation secured by the mortgage, the
amount claimed to be unpaid thereon; and the names and residences of all persons
having or claiming an interest in the property subordinate in right to that of the
holder of the mortgage, all of whom shall be made defendants in the action.
Sec. 2. Judgment on foreclosure for payment or sale.
If upon the trial in such action the court shall find the facts set forth in the
complaint to be true, it shall ascertain the amount due to the plaintiff upon the
mortgage debt or obligation, including interest and other charges as approved by
the court, and costs, and shall render judgment for the sum so found due and order
that the same be paid to the court or to the judgment obligee within a period of not
less than ninety (90) days nor more than one hundred twenty (120) days from the
entry of judgment, and that in default of such payment the property shall be sold at
public auction to satisfy the judgment.
Sec. 3. Sale of mortgaged property; effect.
When the defendant, after being directed to do so as provided in the next preceding
section, fails to pay the amount of the judgment within the period specified therein,
the court, upon motion, shall order the property to be sold in the manner and under
the provisions of Rule 39 and other regulations governing sales of real estate under
execution. Such sale shall not affect the rights of persons holding prior
encumbrances upon the property or a part thereof, and when confirmed by an order
of the court, also upon motion, it shall operate to divest the rights in the property of
all the parties to the action and to vest their rights in the purchaser, subject to such
rights of redemption as may be allowed by law.
Upon the finality of the order of confirmation or upon the expiration of the period of
redemption when allowed by law, the purchaser at the auction sale or last
redemptioner, if any, shall be entitled to the possession of the property unless a
third party is actually holding the same adversely to the judgment obligor. The said
purchaser or last redemptioner may secure a writ of possession, upon motion, from
the court which ordered the foreclosure.
If the defendant fails to pay the amount, then the property mortgaged shall be sold
at public auction. The proceeds of which shall be applied to the judgment amount.
The sale does not affect the junior encumbrancers or persons holding prior
encumbrances upon the property or part thereof.
There’s one thing you shouldn’t forget in foreclosure. There must be confirmation of
sale. Under Rule 39 on Execution, there is no confirmation of sale. Rule says ―when
confirmed by an order of the court‖, so there must be motion for confirmation.
What is the effect if there is already confirmation?
 It shall operate to divest the rights in the property of all the parties to the
action and to vest their rights in the purchaser, subject to such rights of
redemption as may be allowed by law.
Upon the finality of the order of confirmation or upon the expiration of the period of
redemption, the purchaser or the or last redemptioner shall be entitled to the
possession of the property except if a third party is actually holding the same
adversely to the judgment obligor.
The purchaser or last redemptioner may file a motion for the issuance of a writ of
possession, placing him in peaceful possession of the premises and ousting of the
occupants.
Relative to the motion for confirmation of sale, there must be notice and hearing.
Without them, the confirmation is void and may be set aside. The confirmation
catches all interests of the mortgagor in the property sold and vests them in the
purchaser.

Before the finality of the order of confirmation, the mortgage-debtor, second
mortgagee, etc may exercise what known as equity of redemption.
Right of redemption is allowed by law:
 RA 8791 (formerly, General Banking Act)
 Mortgagor or debtor has the right within one year after the sale of the real
estate to redeem the property. The period of 1 year after the sale has been
construed as one year from the registration of the sale of the registered
land.
The order of confirmation is appealable.
Equity of redemption
 May be exercised before confirmation of sale. Before judicial confirmation
of sale, the title of the land sold does not vest in the purchaser. Therefore
after the sale and before confirmation, the court may still grant the
judgment debtor an opportunity to pay the proceeds of the sale and thus
abstain from confirming it. After confirmation, there's no right of
redemption.
Right of redemption
General rule: There is of right of redemption.
Exception: In case of judicial foreclosure of any mortgage on real property in favor
of the bank, quasi-bank or trust entity.
The redemption price is the amount due under the mortgage debt plus interest at
the rate specified plus the cost and expenses incurred by the bank.
 Act 3135, as amended
 Is still applicable and the non juridical mortgagors retain the right of
redemption of one year from the date of registration of the sale of
registered land.
Mere inadequacy of price is not a ground for setting aside the price of sale.
Exception is when the price is shocking to the conscience of the court.
Sec. 4. Disposition of proceeds of sale.
The amount realized from the foreclosure sale of the mortgaged property shall, after
deducting the costs of the sale, be paid to the person foreclosing the mortgage, and
when there shall be any balance or residue, after paying off the mortgage debt due,
the same shall be paid to junior encumbrancers in the order of their priority, to be
ascertained by the court, or if there be no such encumbrancers or there be a
balance or residue after payment to them, then to the mortgagor or his duly
authorized agent, or to the person entitled to it.
After deducting the costs of the sale, the same shall be paid to the person
foreclosing the mortgage.
Is recovery of the balance allowed?
 Yes, recovery of the balance is allowed. When there shall be a balance or
residue, the same shall be paid to the junior encumbrancers.
Sec. 5. How sale to proceed in case the debt is not all due.
If the debt for which the mortgage or encumbrance was held is not all due as
provided in the judgment, as soon as a sufficient portion of the property has been
sold to pay the total amount and the costs due, the sale shall terminate; and
afterwards, as often as more becomes due for principal or interest and other valid
charges, the court may, on motion, order more to be sold. But if the property
cannot be sold in portions without prejudice to the parties, the whole shall be
ordered to be sold in the first instance, and the entire debt and costs shall be paid,
if the proceeds of the sale be sufficient therefore, there being a rebate of interest
where such rebate is proper.
If the debt is not all due as provided in the judgment as soon as a sufficient portion
of the property has been sold to pay the total amount and the costs due, the sale
shall terminate. If the property cannot be sold in portions without prejudice to the
parties, the whole shall be ordered to be sold.
Sec. 6. Deficiency judgment.
If upon the sale of any real property as provided in the next preceding section there
be a balance due to the plaintiff after applying the proceeds of the sale, the court,
upon motion, shall render judgment against the defendant for any such balance for
which, by the record of the case, he may be personally liable to the plaintiff, upon
which execution may issue immediately if the balance is all due at the time of the
rendition of the judgment; otherwise, the plaintiff shall be entitled to execution at
such time as the balance remaining becomes due under the terms of the original
contract, which time shall be stated in the judgment.
The deficiency judgment is allowed. That is if there is balance due to the plaintiff
after applying the proceeds of the sale. There must be a motion to recover the
balance. The court shall render judgment against the defendant for any such
balance.
There are cases where such deficiency judgment cannot be decreed:
1. Person who mortgages his property to secure the debt of another is not
required to pay the balance of deficiency
2. Action to foreclosure a mortgage against a non resident not found in the
Philippines
Right to deficiency of foreclosure of chattel mortgage
If in the case of extrajudicial foreclosure of a chattel mortgage and a deficiency
exists, an independent action may be instituted.
Sec. 7. Registration.
A certified copy of the final order of the court confirming the sale shall be registered
in the registry of deeds. If no right of redemption exists, the certificate of title in the
name of the mortgagor shall be cancelled, and a new one issued in the name of the
purchaser.
Where a right of redemption exists, the certificate of title in the name of the
mortgagor shall not be cancelled, but the certificate of sale and the order confirming
the sale shall be registered and a brief memorandum thereof made by the registrar
of deeds upon the certificate of title. In the event the property is redeemed, the
deed of redemption shall be registered with the registry of deeds, and a brief
memorandum thereof shall be made by the registrar of deeds on said certificate of
title.
If the property is not redeemed, the final deed of sale executed by the sheriff in
favor of the purchaser at the foreclosure sale shall be registered with the registry of
deeds; whereupon the certificate of title in the name of the mortgagor shall be
cancelled and a new one issued in the name of the purchaser.
Sec 7 is the registration of the order of the court confirming the sale registered in
the Registry of Deeds. If no right of redemption exists, the certificate of title in the
name of the mortgagor shall be cancelled, and a new one issued in the name of the
purchaser.
If a right of redemption exists, the certificate of title in the name of the mortgagor
shall not be cancelled, but the certificate of sale and the order confirming the sale
shall be registered
If the property is not redeemed, the final deed of sale executed by the sheriff in
favor of the purchaser shall be registered with the Registry of Deeds.
Sec. 8. Applicability of other provisions.
The provisions of sections 31, 32 and 34 of Rule 39 shall be applicable to the judicial
foreclosure of real estate mortgages under this Rule insofar as the former are not
inconsistent with or may serve to supplement the provisions of the latter.
RULE 69
PARTITION
This is similar to expropriation.
Section 1. Complaint in action for partition of real estate.
A person having the right to compel the partition of real estate may do so as
provided in this Rule, setting forth in his complaint the nature and extent of his title
and an adequate description of the real estate of which partition is demanded and
joining as defendants all other persons interested in the property.
Who is the plaintiff?
 A person having the right to compel the partition of real estate, meaning a
co-owner or a co-parceler, co-proprietor.
How?
 By stating the nature and extent of his title and an adequate description of
the real estate of which partition is demanded
Who shall be joined as defendant?
 All other persons interested in the property – the co-owners, co-parcelers
Which court has jurisdiction?
 It depends upon the value of the property sought to be partitioned
If the title or possession of real property in an action or partition depends on the
annulment deed of declaration of heirs, RTC not MTC has jurisdiction.
Who may file?
 Co-proprietors, co-owners or co-parcelers. All co-owners are indispensable
parties. If an indispensable party is not impleaded, do not dismiss the case
but file a motion to implead the indispensable party. If despite the order to
implead the indispensable party and the latter is not impleaded, the
complaint may be dismissed not because of the exclusion of the
indispensable party but for the failure to comply with the orders of the
court.
Inadequate description may be cured by evidence introduced at the trial without
objection.
There are several provisions in the Civil Code on Partition:
1. Article 494
2. Article 495
3. Article 496
4. Article 498
5. Article 1083
6. Article 1084
Sec. 2. Order for partition, and partition by agreement thereunder.
If after the trial the court finds that the plaintiff has the right thereto, it shall order
the partition of the real estate among all the parties in interest. Thereupon the
parties may, if they are able to agree, make the partition among themselves by
proper instruments of conveyance, and the court shall confirm the partition so
agreed upon by all the parties, and such partition, together with the order of the
court confirming the same, shall be recorded in the registry of deeds of the place in
which the property is situated.
A final order decreeing partition and accounting may be appealed by any party
aggrieved thereby.
After filing of the responsive pleading, the court will conduct trial. If it finds that the
plaintiff has a right thereto, meaning he is a co-owner, it shall order the partition of
the real estate among all the parties-in-interest. This is the first Stage in an action
for partition.
Since court has already ruled that the plaintiff has the right, then it will allow the
parties to agree among themselves to make the partition by proper instruments of
conveyance. Leave the parties alone; let them agree on how to partition their
properties. If they agree, they should execute an instrument of conveyance called
the Deed of Partition.
After a Deed of Partition is submitted, the court should confirm the partition
together with the order of the court confirming the same shall be recorded in the
Registry of Deeds of the place where property is situated. A final order decreeing
partition and accounting may be appealed by any party aggrieved thereby.
Period to appeal is not 15 days but 30 days because a record on appeal is
required.
2 Stages in every action for Partition:
1. Determine whether or not a co-ownership exists and a partition is proper.
The court may either declare that the plaintiff is not entitled to have a
partition either because a co-ownership does not exist or a partition is
prohibited. Another option is for the court to render a decision or order that
the co-ownership be ceased.
2. For the parties to agree among themselves how to partition the property. If
the parties fail to agree then the court will appoint not more than three (3)
competent and disinterested persons as commissioners who will partition
the property.
Sec. 3. Commissioners to make partition when parties fail to agree.
If the parties are unable to agree upon the partition, the court shall appoint not
more than three (3) competent and disinterested persons as commissioners to
make the partition, commanding them to set off to the plaintiff and to each party in
interest such part and proportion of the property as the court shall direct.
Sec. 4. Oath and duties of commissioners.
Before making such partition, the commissioners shall take and subscribe an oath
that they will faithfully perform their duties as commissioners, which oath shall be
filed in court with the other proceedings in the case. In making the partition, the
commissioners shall view and examine the real estate, after due notice to the
parties to attend at such view and examination, and shall hear the parties as to
their preference in the portion of the property to be set apart to them and the
comparative value thereof, and shall set apart the same to the parties in lots or
parcels as will be most advantageous and equitable, having due regard to the
improvements, situation and quality of the different parts thereof.
Under Section 4, they shall take an oath so that they will faithfully their duties ▬
view and examine the real estate and hear the parties.
Sec. 5. Assignment or sale of real estate by commissioners.
When it is made to appear to the commissioners that the real estate, or a portion
thereof, cannot be divided without prejudice to the interests of the parties, the court
may order it assigned to one of the parties willing to take the same, provided he
pays to the other parties such amounts as the commissioners deem equitable,
unless one of the interested parties asks that the property be sold instead of being
so assigned, in which case the court shall order the commissioners to sell the real
estate at public sale under such conditions and within such time as the court may
determine.
If the real property sought to be partitioned cannot be divided without prejudice to
the interest of the parties, there are two options.
1. Assign the property to one of the parties willing to take it or
2. Sell the property then divide the proceeds among themselves
Example: There are 10 heirs and one house with 100 sq m floor area. 10 sila, it is
impractical to divide the single house. So, they may agree that one of them will buy
the house and others be paid. If they cant agree, so just sell the house.
Sec. 6. Report of commissioners; proceedings not binding until confirmed.
The commissioners shall make a full and accurate report to the court of all their
proceedings as to the partition, or the assignment of real estate to one of the
parties, or the sale of the same. Upon the filing of such report, the clerk of court
shall serve copies thereof on all the interested parties with notice that they are
allowed ten (10) days within which to file objections to the findings of the report, if
they so desire. No proceeding had before or conducted by the commissioners shall
pass the title to the property or bind the parties until the court shall have accepted
the report of the commissioners and rendered judgment thereon.
Commissioners should render a full and accurate report then file the report with the
clerk of court and furnish the interested parties with copies thereof. Interested
parties may file their objections. No proceeding had before or conducted by the
commissioners shall pass the title to the property or bind the parties until the court
has accepted the report and rendered judgment thereof.
Sec. 7. Action of the court upon commissioners’ report.
Upon the expiration of the period of ten (10) days referred to in the preceding
section, or even before the expiration of such period but after the interested parties
have filed their objections to the report or their statement of agreement therewith,
the court may, upon hearing, accept the report and render judgment in accordance
therewith; or, for cause shown, recommit the same to the commissioners for further
report of facts; or set aside the report and appoint new commissioners; or accept
the report in part and reject it in part; and may make such order and render such
judgment as shall effectuate a fair and just partition of the real estate, or of its
value, if assigned or sold as above provided, between the several owners thereof.
What action may the court take upon Commissioners’ report?
1. Court may accept the report and render judgment in accordance
therewith or
2. Recommit the report to the commissioners for further report or
3. Set aside the report and appoint new commissioners or
4. Accept the report in part and reject it in part
5.
Sec. 8. Accounting for rent and profits in action for partition.
In an action for partition in accordance with this Rule, a party shall recover from
another his just share of rents and profits received by such other party from the
real estate in question, and the judgment shall include an allowance for such rents
and profits.
There shall be accounting for rent and profits in action for partition. You cannot file
a separate action to divide the rents and profits because that is splitting a single
cause of action. A party shall recover from another his just share of rents and
profits received by such other party from the real estate in question, and the
judgment shall include an allowance for such rents and profits. It is possible that
one of the co-owners was in possession of the properties for 10 years, he collected
the rents and gathered the natural fruits so they should account for the rental and
the fruits.
Sec. 9. Power of guardian in such proceedings.
The guardian or guardian ad litem of a minor or person judicially declared to be
incompetent may, with the approval of the court first had, do and perform on behalf
of his ward any act, matter, or thing respecting the partition of real estate, which
the minor or person judicially declared to be incompetent could do in partition
proceedings if he were of age or competent.
He can do and perform on behalf of his ward any act, matter or thing respecting the
partition.

Sec. 10. Costs and expenses to be taxed and collected.
The court shall equitably tax and apportion between or among the parties the costs
and expenses which accrue in the action, including the compensation of the
commissioners, having regard to the interests of the parties, and execution may
issue therefor as in other cases.
Sec. 11. The judgment and its effect; copy to be recorded in registry of deeds.
If actual partition of property is made, the judgment shall state definitely, by metes
and bounds and adequate description, the particular portion of the real estate
assigned to each party, and the effect of the judgment shall be to vest in each party
to the action in severalty the portion of the real estate assigned to him. If the whole
property is assigned to one of the parties upon his paying to the others the sum or
sums ordered by the court, the judgment shall state the fact of such payment and
of the assignment of the real estate to the party making the payment, and the
effect of the judgment shall be to vest in the party making the payment the whole
of the real estate free from any interest on the part of the other parties to the
action. If the property is sold and the sale confirmed by the court, the judgment
shall state the name of the purchaser or purchasers and a definite description of the
parcels of real estate sold to each purchaser, and the effect of the judgment shall be
to vest the real estate in the purchaser or purchasers making the payment or
payments, free from the claims of any of the parties to the action. A certified copy
of the judgment shall in either case be recorded in the registry of deeds of the place
in which the real estate is situated, and the expenses of such recording shall be
taxed as part of the costs of the action.
If the court renders its decision, the decision must be very, very clear. Otherwise its
judgment will spawn other controversies in the future. So klarohay gyud. Metes and
Bounds! Meaning, there must be technical description of the shares assigned to the
co-owners.
Section 11 says the judgment shall state definitely, by metes and bounds and
adequate description, the particular portion of the real estate assigned to each
party.
What is the effect of the judgment of partition?
 It shall be to vest in each party to the action in severalty the potion of the
real estate assigned to him. If the whole property is assigned to one of the
co-owners then it must be stated in the decision. If the property was sold
and the same was confirmed by the court then judgment must state the
name of the purchaser plus the description of the property sold. Copy of
the judgment shall be recorderd in the registry of Deeds.
Sec. 12. Neither paramount rights nor amicable partition affected by this Rule.
Nothing in this Rule contained shall be construed so as to prejudice, defeat, or
destroy the right or title of any person claiming the real estate involved by title
under any other person, or by title paramount to the title of the parties among
whom the partition may have been made; nor so as to restrict or prevent persons
holding real estate jointly or in common from making an amicable partition thereof
by agreement and suitable instruments of conveyance without recourse to an
action.
They may devise means to partition the property. For as long it is not contrary to
law, morals, public order and public policy, it should be approved by the court.
Sec. 13. Partition of personal property.
The provisions of this Rule shall apply to partitions of estates composed of personal
property, or of both real and personal property, in so far as the same may be
applicable.
In so far as it is applicable, follow partition of real property.
RULE 70
FORCIBLE ENTRY AND UNLAWFUL DETAINER
Forcible Entry – entry is illegal from the beginning
Unlawful Detainer – entry is legal from the beginning. It became illegal for failure to
pay or to comply with the terms and conditions of the lease.
Section 1. Who may institute proceedings, and when.
Subject to the provisions of the next succeeding section, a person deprived of the
possession of any land or building by force, intimidation, threat, strategy, or stealth,
or a lessor, vendor, vendee, or other person against whom the possession of any
land or building is unlawfully withheld after the expiration or termination of the right
to hold possession, by virtue of any contract, express or implied, or the legal
representatives or assigns of any such lessor, vendor, vendee, or other person,
may, at any time within one (1) year after such unlawful deprivation or withholding
of possession, bring an action in the proper Municipal Trial Court against the person
or persons unlawfully withholding or depriving of possession, or any person or
persons claiming under them, for the restitution of such possession, together with
damages and costs.
Forcible Entry
 A person is deprived of the possession of any land or building by force,
intimidation, threat, strategy, or stealth.
Unlawful Detainer
 A lessor, vendor, vendee, or other person against whom the possession of
any land or building is unlawfully withheld after the expiration or
termination of the right to hold possession, by virtue of any contract,
express or implied, or the legal representatives or assigns of any such
lessor, vendor, vendee, or other person.
You will notice that the rule uses the word ―possession‖. FE and UD are possessory
actions. You cannot join as one of the defendants a person who is not in possession
even if he is the owner because the issue here is not the ownership but possession
de facto only. The court cannot with finality determine the issue on ownership but it
may provisionally, only to ascertain the character of provion.
When shall it be filed?
 At any time within one (1) year after such unlawful deprivation or
withholding of possession. // sarah
 RULE 70
FORCIBLE ENTRY AND UNLAWFUL DETAINER
Section 1. Who may institute proceedings, and when.
Subject to the provisions of the next succeeding section, a person deprived of the
possession of any land or building by force, intimidation, threat, strategy, or stealth,
or a lessor, vendor, vendee, or other person against whom the possession of any
land or building is unlawfully withheld after the expiration or termination of the right
to hold possession, by virtue of any contract, express or implied, or the legal
representatives or assigns of any such lessor, vendor, vendee, or other person,
may, at any time within one (1) year after such unlawful deprivation or withholding
of possession, bring an action in the proper Municipal Trial Court against the person
or persons unlawfully withholding or depriving of possession, or any person or
persons claiming under them, for the restitution of such possession, together with
damages and costs.
Forcible entry, entry is illegal from the beginning, unlawful detainer entry
is legal from the beginning, it became illegal for failure to pay or to comply
with the terms and conditions of the lease.
First part here is forcible entry. A person is deprived of the possession of
any land or building by force, intimidation, threat, strategy or stealth
(FISTS).
Second part is unlawful detainer, lessor, vendor, vendee, or other person
against whom possession of any land or building is unlawfully withheld
after the expiration or termination of the right to hold possession by virtue
in contract or legal representative or assigns by such lessor, vendor,
vendee or other person. This is unlawful detainer.
You will notice that the rule uses the word possession. Forcible entry and
unlawful detainer are possessory actions. You cannot join as one of the
defendants, a person who is not in possession, even if he is the owner,
because the issue here is not ownership but possession de facto only. The
court cannot, with finality determine the issue of ownership. It may,
provisionally, to ascertain the character of the possession.
When shall it be filed? At anytime within one year after such unlawful
deprivation or withholding of possession.
Exclusive, original—Municipal Trial Court.
After one year, do not file it with the MTC, you file it with the RTC.
Against whom? Against the person or persons unlawfully withholding or
depriving of possession, or any person or persons claiming under them.
What is the prayer? For the restitution of such possession plus the
damages and costs.
Make no mistake about the forcible entry and unlawful detainer. Even if
the plaintiff is not the owner of the property, he may file an action for
ejectment. Repeat, even if the plaintiff is not the owner of the property, he
may file an action under section 1 because the only issue is possession de
facto. In fact if the owner deprives the plaintiff of the possession of the
property, he may file an action under section 1.
How about the character of the land? Private? Not necessarily. It may be a
public land, or land owned by the government, a squatter may file an
action for ejectment against another squatter, that is a well-settled
decision if the SC, not only decision, but decisions of the SC. Why?
because the issue is possession de facto only.
So section one refers to two entirely different causes of action. Can you
join the two—forcible entry and unlawful detainer? The answer is no.
Action to recover possession founded on illegal occupation from the
beginning, that is forcible entry. Action founded on unlawful detention by a
person who originally acquired possession lawfully, unlawful or illegal
detainer.
Distinguish forcible entry and unlawful detainer. Forcible entry, entry
effected by FISTS. The action is to recover possession founded upon illegal
possession from the beginning. Illegal detainer, base on an unlawful
detention by a person who has acquired possession rightfully but who
detains the property after the right to keep possession is ended. Action is
within the exclusive jurisdiction of the MTC, whose judgments are
conclusive only on possession.
In an action of forcible entry and unlawful detainer, the mere filing of an
answer claiming title to the premises involve or raising the question of
ownership will not divest the court of jurisdiction. Defendant answered, I
am the owner, it will not divest the court of jurisdiction. Why? because the
question is not ownership but possession only. However the inferior court
losses its jurisdiction and must dismiss the action where the evidence
shows that the question of ownership is so necessarily involved that it
would be impossible to determine the question of physical possession
without first deciding the question of ownership.
Jurisdiction is based on the allegations of the complaint. All the elements
of forcible entry and unlawful detainer must be stated. Jurisdiction is not
based on the answer. There is one exception where the answer determines
the jurisdiction of the court, if the defendant interposes the defense of
tenancy, the court should not dismiss the case right away, the court
should determine the issue of tenancy. Meaning, there must be
preliminary determination of tenancy. If the court believes from the facts
gathered that it is a question of tenancy, dismiss it, because the DARAB,
the Department of Agrarian Reform Adjudication Board has jurisdiction
over the action.
If defendant, this is another exception, alleges that it is a question of
contract involving subdivision lots or condominium, MTC should dismiss
because it is the HLURB which has jurisdiction over the action. Those are
the two exceptions.
Municipal court could not be divested of its jurisdiction over the case
because it could very well resolve the issue of ownership only
provisionally.
Sec. 2. Lessor to proceed against lessee only after demand.
Unless otherwise stipulated, such action by the lessor shall be commenced only
after demand to pay or comply with the conditions of the lease and to vacate is
made upon the lessee, or by serving written notice of such demand upon the person
found on the premises, or by posting such notice on the premises if no person be
found thereon, and the lessee fails to comply therewith after fifteen (15) days in the
case of land or five (5) days in the case of buildings.
Sec. 3. Summary procedure.
Except in cases covered by the agricultural tenancy laws or when the law otherwise
expressly provides, all actions for forcible entry and unlawful detainer, irrespective
of the amount of damages or unpaid rentals sought to be recovered, shall be
governed by the summary procedure hereunder provided.
Nature of action-summary in nature
Ejectment suits are not suspended or barred by other actions. X filed an
ejectment case against Y with the MTC. Y filed an action for injunction with
injunction in an action filed with the RTC. Will the filing of the injunction
case suspend the ejectment case? No.
X versus Y, X said you have not paid for three consecutive months and
under our contract, you should vacate the premises. So there was a letter
of demand—to pay and vacate. Before the case was filed by X, filed an
action for consignation with the RTC, will that divest the RTC or will the
proceedings before the MTC be suspended on the account of the filing of
the consignation case? The answer is no. The plaintiff filed an ejectment
case, can defendant file an accion publiciana with the RTC? Same rule, if
plaintiff filed an action of ejectment, and defendant filed a writ of
possession with the RTC, same rule. If plaintiff files an ejectment case,
and defendant filed an action for quieting of title with the RTC? Same rule.
Same rule relative to the specific performance with damages, reformation
of instrument, reconveyance of property or accion reinvidicatoria,
annulment of sale of title, etc. filed with the RTC, they will not suspend the
MTC proceedings.
Who may bring action for forcible entry and unlawful detainer?
For forcible entry, a person deprived of possession of any land by FISTS,
force, intimidation, strategy, threat and stealth.
Unlawful detainer, lessor, vendor or vendee or other person against whom
possession of a land or building is unlawfully withheld, legal
representatives or assigns of such lessor, vendor, vendee, etc.
Who are the defendants or against whom the action can be maintained?
The action for forcible entry and unlawful detainer may be maintained only
against one in possession at the commencement of the action, not against
one who does not in fact hold the land. Tenant with right of possession
may bring an action against another tenant. Vendor may bring an action
for ejectment against vendee upon failure to pay installments due.
Forcible entry and unlawful detainer lie even against the very owner of the
property.
Fines of action to recover possession of real property, forcible entry and
unlawful detainer, only issue: POSSESSION DE FACTO.
Accion publiciana-a plenary action for possession which could be brought
in the RTC or MTC after one year or within one year in case it’s not
covered by rule 70, and as for its object, the recovery of a better right to
such possession.
Accion publiciana-to recover ownership and possession which may be
brought in the MTC or RTC depending upon the assessed value of the
property. Action must be brought before the MTC within one year,
otherwise RTC has jurisdiction.
Reckoning date or from one date one year period is counted?
Forcible entry, from the date of the entry or taking of possession by FISTS.
One year period in such case is counted from the demand to vacate, upon
learning of the entry by stealth. So the defendant may have occupied the
property for 3 years already through stealth. So the plaintiff discovered
entry by stealth, he has one year to file the action after discovery of entry
by stealth.
Illegal detainer- from the date of the last demand to vacate in case of non-
payment of rent or non-compliance with the conditions of the lease.
In pacita reconduccion, meaning from the date of the notice to quit in case
of a tacit renewal of the lease, when the acquiescence of the lessor, the
lessee continues the lease for 10 years (Article 16, NCC) (not so sure with
this)
From the date of the revocation of the permit in case of occupancy on
mere tolerance.
Distinction of ownership from action to recover possession
Action of action carries with it action for possession. Possession de facto is
the only issue in forcible entry and unlawful detainer cases, meaning
possession in fact or physical possession.
Why is the procedure summary? Because the purpose is maintenance of
public order.
Court may receive evidence on possession de jure, meaning ownership
only to determine the nature of the possession. Even the tenant unlawfully
and forcibly ejected by landlord may bring an action.
Prior physical possession is not necessary in forcible entry. In an action for
illegal detainer filed by the vendee, an allegation of prior physical
possession is not required, upon the theory that the vendee steps into the
shoes of the vendor and succeeds to his rights and interests. In
contemplation of law, vendee’s possession is that of vendor’s.
To constitute an action for forcible entry, complaint must allege not only
plaintiff’s prior physical possession, but also deprivation through FISTS. If
the dispossession did not take place by FISTS, the action is not for forcible
entry, file it with the RTC or MTC, depending upon the assessed value,
20,000 outside Metro Manila, 50,000 in Manila.
In an ejectment case, the plaintiff may recover rent or reasonable
compensation for the use and occupation of the premises. Supreme Court
has already declared that the only damages recoverable in an illegal
detainer are reasonable compensation for the use and occupation of
premises even in cases of usurpation. Plaintiff cannot therefore claim
payment of damages such as that which plaintiff expects to obtain from his
business relocated in the premises, or for material injury caused to the
premises. Damages which are caused by his loss of the use and occupation
of the property are not to such damages, as he may suffer, which has no
direct relation with such use and occupation cannot be recovered.
Amounts of rents or damages claimed does not affect jurisdiction even if
the amount is 1 million. The amount should not be considered, it’s the
character or nature of the action. This is so because rents or compensation
for the use and occupation of the premises is only incidental to or
accessory to the main action for restitution of possession unlawfully
withheld.
But 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 MTC.
To illustrate—dear occupant, you have not paid five consecutive rentals-
1M, you better pay within 15 days. Is that forcible entry or unlawful
detainer? So if you file it to the court and your action is not unlawful
detainer but sum of money, naningil ka sa wala mobayad, sum of money,
then file it with the RTC because the amount is 1M. if your claim is
300,000, sum of money, file it with the MTC.
But if you alleged that you are deprived of possession because defendant
failed to comply with the terms and conditions of the lease, file it with the
MTC, because it is an action for unlawful detainer.
Lessor to proceed against lessee only after demand, demand to pay or to
comply with the conditions of the lease and to vacate. Demand to pay, the
amount is agreed, or to comply with the conditions of the lease. Never
forget that the two must be alleged in the letter of demand. Demand to
pay or comply with the conditions and to vacate. Lawyer ka, gi sugo ka sa
kliyente, paningli kay atong e-eject. Ingon dayon ka sa occupant, you
have not paid for three consecutive months, pay or else…dismiss ang kaso
ana, dismiss ang kaso, because the demand must be pay and comply AND
to vacate, pakapini gyud nag TO VACATE, not or ―and‖ to vacate.
Is made upon the lessee or made by serving written notice of such
demand upon the person found in the premises or by posting such notice
on the premises if no person be found thereof. So if you will analyze,
service of written notice or posting, they are all in writing. Then lessee fails
to comply after 15 days in the case of land, or 5 days in the case of
buildings.//jiji
When is demand necessary?
A demand is a prerequisite to an action for unlawful detainer when the action is
failure to pay rent or to comply with the conditions of his lease; not for the action to
terminate the lease because of the expiration of the term.
Possession by tolerance.
If there is a demand to vacate and the occupant by tolerance fails to vacate, the
occupant becomes an ...
When neither demand or notice to vacate not necessary?
In forcible entry cases because possession is illegal from the beginning.
What to allege in a complaint for unlawful detainer?
A complaint for unlawful detainer must allege both demand to vacate and to pay.
Demand to pay a new rental or to vacate is not the demand to vacate contemplated
by the rule. Ejectment cannot be barred where the 1st action is based on different
cause.
By the way there is a case, ng abang xa sa yuta nay building, nay fishpond, nay
mga kahoy, nya wa mn kabayad for 3 consecutive months, so the owner filed an
action for unlawful detainer. Pagkahuman he filed another action for damages.
Iyang bangus gi harvest, iyang kahoy gipamutol gihimog lumber. Ingon dayon ang
defendant in a motion to dismiss, ―splitting a single cause of action‖. Right or
wrong? Wrong. There is no splitting. Kay unsa man damages recoverable in
forcible entry and unlawful detainer? Damages only as a result of forcible entry or
unlawful detainer. Ang pag harvest sa fishpond these are a different matter. Ang
pag putol sa kahoy na gihimog lumber is another matter. So the separate action of
recovery of damages is valid. 2 cases, therefore, unlawful detainer to oust the
occupant and for damages. Di man nimo ma recover ang damages sa pagkuha sa
isda, so separate action. That is the latest jurisprudence.
Ejectment action not barred where the 1 st action is based on different cause.
Somebody is renting your building, you allege that he failed to pay, trial, court
decided against you. Nakabayad man ni wa lang nimo makwenta ug ayo. So si
defendant kay nakabayad man diay. Nigara si defendant, he failed to comply with
the conditions of the lease. File nasad si plaintiff ug another action. Res judicata?
No. Because the 1st case was for failure to pay rent, that is the cause of action. The
second case is failure to comply with the conditions of the lease. So another cause
of action.
Sec. 3. Summary procedure.
Except in cases covered by the agricultural tenancy laws or when the law
otherwise expressly provides, all actions for forcible entry and unlawful detainer,
irrespective of the amount of damages or unpaid rentals sought to be recovered,
shall be governed by the summary procedure hereunder provided.
All actions for forcible entry and unlawful detainer irrespective of the amount of
damages or unpaid rental sought to be recovered shall be governed by the
summary procedure under provided. Exception cases covered by the agricultural
tenancy laws or when the law otherwise expressly provides. If the case is already
with the RTC, because the losing party appealed the decision of the MTC, the RTC is
not bound by the rules on summary procedure.
Section 4. Pleadings allowed. — The only pleadings allowed to be filed are the
complaint, compulsory counterclaim and cross-claim pleaded in the answer, and
the answers thereto. All pleadings shall be verified. (3a, RSP)
Only the ff pleadings are allowed:
1. Complaint;
2. Compulsory counter claim, not permissive counter claim;
3. Cross claim pleaded in the answers,
4. Answer to the cross claim.
Meaning no 3rd party claims. All pleadings shall be verified. But lack of verification is
not a jurisdictional but only a formal defect curable by amendment.
Section 5. Action on complaint. — The court may, from an examination of the
allegations in the complaint and such evidence as may be attached thereto,
dismiss the case outright on any of the grounds for the dismissal of a civil action
which are apparent therein. If no ground for dismissal is found, it shall forthwith
issue summons. (n)dismiss the case outright or issue summons.
The court may either
Section 6. Answers. — Within ten (10) days from service of summons, the
defendant shall file his answer to the complaint and serve a copy thereof on the
plaintiff. Affirmative and negative defenses not pleaded therein shall be deemed
waived, except lack of jurisdiction over the subject matter. Cross-claims and
compulsory counterclaims not asserted in the answer shall be considered
barred. The answer to counterclaims or cross-claims shall be served and filed
within ten (10) days from service of the answer in which they are pleaded. (5
RSP)
Answer must not be within 15 days but within 10 days from service of summons.
Affirmative and negative defenses not alleged are deemed waived. This is the
omnibus motion rule.
Exception: lack of jurisdiction over the subject matter.
Failure to file cross claims and compulsory counter claims in the answer shall be
barred.
Answer to counter claims or cross claims shall be served unfiled within 10 Days.
Section 7. Effect of failure to answer. — Should the defendant fail to answer the
complaint within the period above provided, the court, motu proprio or on motion
of the plaintiff, shall render judgment as may be warranted by the facts alleged
in the complaint and limited to what is prayed for therein. The court may in its
discretion reduce the amount of damages and attorney's fees claimed for being
excessive or otherwise unconscionable, without prejudice to the applicability of
section 3 (c), Rule 9 if there are two or more defendants.
(6, RSP)
Should there be a failure to file answer, courtmay motu propio or on motion of the
plaintiff, shall render judgment as maybe warranted by the facts alleged in the
complaint and limited to what is prayed for therein. Should not be more, it may be
less. The demand is 100k, defendant should pay 100k only. Court may in its
discretion reduce damages and attorney fees for being excessive or unconscionable.
 Section 8. Preliminary conference; appearance of parties. — Not later than
thirty (30) days after the last answer is filed, a preliminary conference shall be
held. The provisions of Rule 18 on pre-trial shall be applicable to the preliminary
conference unless inconsistent with the provisions of this Rule. Section 10. Submission of affidavits and position papers. — Within ten (10)
days from receipt of the order mentioned in the next preceding section, the
parties shall submit the affidavits of their witnesses and other evidence on the
The failure of the plaintiff to appear in the preliminary conference shall be cause
factual issues defined in the order, together with their position papers setting
for the dismissal of his complaint. The defendant who appears in the absence of
forth the law and the facts relied upon by them. (9, RSP)
the plaintiff shall be entitled to judgment on his counterclaim in accordance with
the next preceding section. All cross-claims shall be dismissed. (7, RSP)

If a sole defendant shall fail to appear, the plaintiff shall likewise be entitled to
judgment in accordance with the next preceding section. This procedure shall not
apply where one of two or more defendants sued under a common cause of
action defense shall appear at the preliminary conference.
No postponement of the preliminary conference shall be granted except for
highly meritorious grounds and without prejudice to such sanctions as the court
in the exercise of sound discretion may impose on the movant. (n)
When is a preliminary conference conducted?
Not later than 30 days after answer is filed. Failure to appear in the preliminary
conference shall be caused for dismissal of the complaint. If defendant appears, and
in the absence of plaintiff, judgment will be made on the counterclaim.
If a sole defendant shall fail to appear, the plaintiff is likewise entitled to judgment
in accordance to the next preceding section. This procedure shall not apply when
one of 2 or more defendants sued under a common cause of action shall appear in
the preliminary conference. If there are 5 defendants who have a common cause of
action or defense and only one of the 5 appears, the appearance of 1 can benefit
the non appearing defendants.
GR: NO postponement of preliminary conference.
Exception: highly meritorious ground without prejudice to sanctions like contempt
and fine
Section 11. Period for rendition of judgment. — Within thirty (30) days after
receipt of the affidavits and position papers, or the expiration of the period for
filing the same, the court shall render judgment.
However, should the court find it necessary to clarify certain material facts,
during the said period, issue an order specifying the matters to be clarified, and
require the parties to submit affidavits or other evidence on the said matters
within ten (10) days from receipt of said order. Judgment shall be rendered
within fifteen (15) days after the receipt of the last affidavit or the expiration of
the period for filing the same.
The court shall not resort to the foregoing procedure just to gain time for the
rendition of the judgment. (n)
Period for rendition of judgment?
30 days after receipt of affidavits and position papers or the expiration of the period
to file position paper. But if the court finds it necessary to clarify certain material
facts, it may issue an order specifying the matter to be clarified, require the parties
to submit affidavits. Judgment shall be rendered within 15 days after the receipt of
the last affidavit, or the expiration of the period for filing the same. Court shall not
resort to the foregoing procedure just to gain time for the rendition of judgment.
Section 12. Referral for conciliation. — Cases requiring referral for conciliation,
where there is no showing of compliance with such requirement, shall be
dismissed without prejudice, and may be revived only after that requirement shall
have been complied with. (18a, RSP)

Cases not referred to lupon must be referred to it.

Section 9. Record of preliminary conference. — Within five (5) days after the
termination of the preliminary conference, the court shall issue an order stating
the matters taken up therein, including but not limited to:
1. Whether the parties have arrived at an amicable settlement, and if
so, the terms thereof;
2. The stipulations or admissions entered into by the parties;
3. Whether, on the basis of the pleadings and the stipulations and
admission made by the parties, judgment may be rendered without the
need of further proceedings, in which event the judgment shall be
rendered within thirty (30) days from issuance of the order;
4. A clear specification of material facts which remain converted; and
5. Such other matters intended to expedite the disposition of the case.
(8, RSP)
 Affidavits must be base on direct personal knowledge.
Section 13. Prohibited pleadings and motions. — The following petitions, The affiant must be competent to specify. Competent meaning can see and can
motions, or pleadings shall not be allowed: make no misperception to others.
1. Motion to dismiss the complaint except on the ground of lack of
jurisdiction over the subject matter, or failure to comply with section What is the effect of violations of this requirement?
12; Party or counsel may be disciplinarily dealt with it and shall cause the response to
2. Motion for a bill of particulars; be inadmissible affidavits
3. Motion for new trial, or for reconsideration of a judgment, or for
reopening of trial;
Section 15. Preliminary injunction. — The court may grant preliminary
4. Petition for relief from judgment;
injunction, in accordance with the provisions of Rule 58 hereof, to prevent the
5. Motion for extension of time to file pleadings, affidavits or any other
defendant from committing further acts of dispossession against the plaintiff.
paper;
A possessor deprived of his possession through forcible from the filing of the
6. Memoranda;
complaint, present a motion in the action for forcible entry or unlawful detainer
7. Petition for certiorari, mandamus, or prohibition against any
for the issuance of a writ of preliminary mandatory injunction to restore him in
interlocutory order issued by the court;
his possession. The court shall decide the motion within thirty (30) days from
8. Motion to declare the defendant in default;
the filing thereof. (3a)
9. Dilatory motions for postponement;
10. Reply;
11. Third-party complaints;
12. Interventions. (19a, RSP) MTC may issue preliminary injunction.

What is the purpose?

What are the prohibited pleadings? So that defendant may not do acts of dispossession, further acts of dispossession
1. Motion to dismiss complaint. Xpn: lack of jurisdiction and failure to comply against the plaintiff. Preliminary inhibitory and mandatory injunction may be
with sec.12. granted in the forcible entry and unlawful detainer cases.
2. Bill of particulars
3. New trial, reconsideration, reopening. You know what are the grounds for
Section 16. Resolving defense of ownership. — When the defendant raises the
new trial: fraud accident mistake inexcusable negligence. Reconsideration, defense of ownership in his pleadings and the question of possession cannot be
this is just an assessment of evidence in the record. Reopening means resolved without deciding the issue of ownership, the issue of ownership shall
presentation of other witnesses or documents be resolved only to determine the issue of possession. (4a)
4. Petition for relief.
5. Extensions of time. You know what are the periods
6. Memoranda If defendant interposes or raises defense of ownership and the question of
possession cannot be resolved without deciding the issue on ownership, the issue on
7. Certiorari, prohibition, mandamus
ownership is to be resolved only to determine the issue of possession. Where the
8. To declare defendant in default. issue of ownership is the principal question, the action is not one of forcible entry
9. Dilatory motions but one for title to real property. It is for a real action if it will be lodged in the RTC
10. Reply or MTC depending upon the assessed value of the property. Inferior court cannot
11. 3rd party complaints adjudicate on the nature of ownership where the relationship of lessor and lessee
12. Interventions has been subsequently established in the ejectment case.

Section 14. Affidavits. — The affidavits required to be submitted under this
Rule shall state only facts of direct personal knowledge of the affiants which are
admissible in evidence, and shall show their competence to testify to the
matters stated therein.
A violation of this requirement may subject the party or the counsel who
submits the same to disciplinary action, and shall be cause to expunge the
inadmissible affidavit or portion thereof from the record. (20, RSP)
Section 17. Judgment. — If after trial court finds that the allegations of the
complaint are true, it shall render judgment in favor of the plaintiff for the
restitution of the premises, the sum justly due as arrears of rent or as
reasonable compensation for the use and occupation of the premises,
attorney's fees and costs. If a counterclaim is established, the court shall
render judgment for the sum found in arrears from either party and award
costs as justice requires. (6a)
If the court finds that the allegations in the complaint are true and then decides in
favour of the plaintiff for restitution of the premises, and please take note of this,
the sum justly due as arrears of rents or reasonable compensation for the use and
occupation of the premises plus attorney’s fees and cost.
Why am i emphasizing sec. 17?
Kay mao r jud na ma award sa MTC, restitution and sum justly due as arrears of
rents or as reasonable compensation for the use or occupation of the premises. If
there was no agreed rent, then the court should assess the reasonable
compensation for the use and occupation of the premises. It is the MTC which
should decide relative to reasonable compensation for the use and occupation of the
premises, not the RTC. If the court finds the allegations in the complaint are not
true, it shall render judgment for the defendant to recover his cost. If a
counterclaim is established, the court shall render judgment for the sum found in
arrears. Courts are empowered by law to fix the period of lease and this is
addressed to the sound discretion.
A counterclaim for ejectment may be set up for a complaint for consignation. Ang
mg file ug action for consignation kay ang plaintiff, ng defendant, ang owner of the
land may file a counterclaim for ejectment. Consignation is an action not capable of
pecuniary estimation and thus therefore be filed in the RTC//angge
Sec. 18. Judgment conclusive only on possession; not conclusive in actions
involving title or ownership
The judgment rendered in an action for forcible entry or detainer shall be conclusive
with respect to the possession only and shall in no wise bind the title or affect the
ownership of the land or building. Such judgment shall not bar an action between
the same parties respecting title to the land or building.
The judgment or final order shall be appealable to the appropriate Regional Trial
Court which shall decide the same on the basis of the entire record of the
proceedings had in the court of origin and such memoranda and/or briefs as may be
submitted by the parties or required by the Regional Trial Court.
Appealed to the RTC. It should be by record on appeal.
Judgment binds and may be executed against sub-lessees who have not been
impleaded because of privity.
All persons occupying property with consent of defendant may be ejected.
Naa’y lolo, anak, apo. Gikiha ang lolo. Naa nagpuyo ang anak, ang apo. Napildi ang
lolo. Ingon dayon ―di mi mamahawa kay si lolo ra ang gikiha‖ Unya, file-an na pud
ang anak kay nasayop man ang plaintiff. Pagkahuaman, mu ingon na pud ―Uy ang
apo diay ni lolo wa ninyo gi-apil.‖---aw, di na pwede.
All persons na nag occupy either by tolerance or by consent of the defendant must
be ejected.
But there is a procedure in case possessor, not party to the action, claims
possession in good faith. The court should hear the occupant and if it finds that the
stranger is just but a mere a successor-in-interest, or a guest, or an agent of the
defendant, the order of execution shall be enforced against him.
Judgment for ejectment cannot be forced against a co-owner who was not made a
party to the action.
Action for ejectment survives the death of a party
If the plaintiff or defendant dies, the action must proceed because there is
substitution of party.
Action that survives may involve money or property.
Sec. 19. Immediate execution of judgment; how to stay same.
If judgment is rendered against the defendant, execution shall issue immediately
upon motion, unless an appeal has been perfected and the defendant to stay
execution files a sufficient supersedeas bond, approved by the Municipal Trial Court
and executed in favor of the plaintiff to pay the rents, damages, and costs accruing
down to the time of the judgment appealed from, and unless, during the pendency
of the appeal, he deposits with the appellate court the amount of rent due from time
to time under the contract, if any, as determined by the judgment of the Municipal
Trial Court. In the absence of a contract, he shall deposit with the Regional Trial
Court the reasonable value of the use and occupation of the premises for the
preceding month or period at the rate determined by the judgment of the lower
court on or before the tenth day of each succeeding month or period. The
supersedeas bond shall be transmitted by the Municipal Trial Court, with the other
papers, to the clerk of the Regional Trial Court to which the action is appealed.
All amounts so paid to the appellate court shall be deposited with said court or
authorized government depositary bank, and shall be held there until the final
disposition of the appeal, unless the court, by agreement of the interested parties,
or in the absence of reasonable grounds of opposition to a motion to withdraw, or
for justifiable reasons, shall decree otherwise. Should the defendant fail to make the
payments above prescribed from time to time during the pendency of the appeal,
the appellate court, upon motion of the plaintiff, and upon proof of such failure,
shall order the execution of the judgment appealed from with respect to the
restoration of possession, but such execution shall not be a bar to the appeal taking
its course until the final disposition thereof on the merits.
After the case is decided by the Regional Trial Court, any money paid to the court
by the defendant for purposes of the stay of execution shall be disposed of in
accordance with the provisions of the judgment of the Regional Trial Court. In any
case wherein it appears that the defendant has been deprived of the lawful
possession of land or building pending the appeal by virtue of the execution of the
judgment of the Municipal Trial Court, damages for such deprivation of possession
and restoration of possession may be allowed the defendant in the judgment of the
Regional Trial Court disposing of the appeal.
If there is a decision in the MTC, the general rule is
Execution of judgment
How do you prevent execution?
File a sufficient supersedeas approved by the MTC then executed in favor of the
plaintiff.
What is the purpose?
To pay the rents, damages and costs incurred that were accruing, down to the time
of the judgment appealed from.
Another requirement, aside from supersedeas bond
Deposit with the appellate court the amount of rent due from time-to-time under
contract. In the absence of a contract, deposit with the RTC the reasonable value for
the use and occupation of the premises determined by the MTC, not RTC.
Supersedeas bond shall be transmitted from the MTC to the RTC.
All amounts transmitted to the RTC shall be deposited to authorized government
depository bank.
Should defendant fail to make the payments from time-to-time during the
pendency of the appeal
The appellate court upon motion of the plaintiff and upon proof of such failure shall
order the execution of such judgment appealed from.
Mu sipyat gani’g bayad ngari sa RTC; payment was not on time—the judgment will
be executed.
Can the court motu proprio execute the judgment without motion?
NO. Because the rule says upon motion of the plaintiff and proof of such failure shall
order the execution of the judgment appealed from with respect to the restoration
of possession. But such execution shall not be a bar to the appeal taking its course.
After the case is decided by the RTC
Any amount paid to the court by the defendant for purposes of staying the
execution shall be disposed of in accordance with the judgment of the RTC.
When it appears that defendant has been deprived of the lawful possession of land
or building, the appeal by virtue of the execution of the judgment of the MTC,
damages for the deprivation of possession and restoration of possession may be
allowed the defendant in the judgment of the Regional Trial Court disposing of the
appeal.
Provision on posting of bond and periodic deposit is mandatory
The court has no jurisdiction to extend the time for payment. RTC has no
jurisdiction to extend the time of payment.
When shall the rental be paid?
Deposit of the rental corresponding to the previous month within the 1 st 10 days of
the succeeding month. Mandatory. Musipyat ka ani within the 1 st 10 days of the
succeeding month then judgment will be executed without prejudice to the appeal.
The law has prescribed appeal and these requirements should be complied with
strictly.
Failure of xxx;it’s the duty of the court to execute judgment; it’s duty to do so is
ministerial and imperative.
Pero Rules of Court man ni gud. This is a game of General Rule and
Exceptions
Wa ka kabayad, sipyat ka; ma execute ka dayon. Unya, Rules of Court man ni, ma-
inat murag lastiko. So unsa ma’y buhaton? Justify ngano wa ka nakapayad within
the period. Unsa ma’y justification?
 Fraud
 Accident
 Mistake
 Excusable Negligence
Ihatod na ta ang bayad—naligsan sa pison; ma-ong wala kabayad. So din a i-
excecute kay naa na may rason.
Mistake—mistake is mistake of fact, not of law.
Accident, sickness.
Execution pending appeal for failure to make timely deposits is only for the
restoration of possession, but not payment for back rents which is guaranteed by
the supersedeas bond.
Defendant may apply for Petition for Relief under Rule 38—Fraud, accident,
mistake, excusable negligence. Ang fraud kay extrinsic fraud.
When supersedeas bond is required; not required
No supersedeas bond is required when back rents are not adjudged. Supersedeas
bond covers rents or damages accruing up to the date of the perfection of appeal.
Payment or deposit of damages in arrears will be made in lieu of filing supersedeas
bond.
Damages recoverable are only those incident to possession Attorney’s fees
are not considered as damages.
MTC (not RTC) has original jurisdiction to fix amount of rents
If no rent or damages is fixed in the judgment of the MTC, no payment or deposit
may be required during the pendency of the appeal and the RTC cannot fix the
same. Ang maka fix ra gyud, MTC because MTC has original jurisdiction to fix the
amount of rents. It is mandatory for the RTC to order execution of the appealed
judement upon failure of defendant to make monthly deposits of guaranteed
rentals. But there must be a motion.
Plaintiff may withdraw deposits made in court if defendant agrees or does
not object
Section 20. Preliminary mandatory injunction in case of appeal
Upon motion of the plaintiff, within ten (10) days from the perfection of the appeal
to the Regional Trial Court, the latter may issue a writ of preliminary mandatory
injunction to restore the plaintiff in possession if the court is satisfied that the
defendant's appeal is frivolous or dilatory or that the appeal of the plaintiff is prima
facie meritorious. (9a)
Plaintiff may file an application for preliminary mandatory injunction within 10 days
from the perfection of the appeal to the RTC. RTC may issue a writ of preliminary
mandatory injunction.
What is the purpose?
To restore the plaintiff in possession if the court is satisfied but the defendant’s
appeal is possession if the court is satisfied that the defendant's appeal is frivolous
or dilatory or that the appeal of the plaintiff is prima facie meritorious.
From MTC to RTC. RTC for example decided in favor of the plaintiff. Pildi si
defendant. Binsan pila pa na na supersedeas bond imo gi-post. Basta duna na gani
decision sa RTC—immediate execution. That is Section 21.
Section 21. Immediate execution on appeal to Court of Appeals or
Supreme Court
The judgment of the Regional Trial Court against the defendant shall be immediately
executory, without prejudice to a further appeal that may be taken therefrom. (10a)
From MTC to RTC, kung mubayad ka’g bond plus the deposit, ok ra. Kung mu-
decide na gani ang RTC, dili na pwede. The judgment of the RTC against the
defendant shall be immediately executory without prejudice to a further appeal that
may be taken therefrom.
Prior notice of judgment is required for immediate execution.
RULE 71: CONTEMPT
Section 1. Direct contempt punished summarily
A person guilty of misbehavior in the presence of or so near a court as to obstruct
or interrupt the proceedings before the same, including disrespect toward the court,
offensive personalities toward others, or refusal to be sworn or to answer as a
witness, or to subscribe an affidavit or deposition when lawfully required to do so,
may be summarily adjudged in contempt by such court and punished by a fine not
exceeding two thousand pesos or imprisonment not exceeding ten (10) days, or
both, if it be a Regional Trial Court or a court of equivalent or higher rank, or by a
fine not exceeding two hundred pesos or imprisonment not exceeding one (1) day,
or both, if it be a lower court. (1a)
Direct Contempt Indirect Contempt
Summary in nature There must be a charge in writing; there
must be a hearing
No appeal, only certiorari Appeal is allowed
Please take note of these phrases (Underscored)
A person guilty of misbehavior in the presence of or so near a court as to obstruct
or interrupt the proceedings before the same, including disrespect toward the court,
offensive personalities toward others, or refusal to be sworn or to answer as a
witness, or to subscribe an affidavit or deposition when lawfully required to do so,
may be summarily adjudged in contempt by such court.
Penalty
Fine not exceeding two hundred pesos or imprisonment not exceeding one (1) day,
or both, if it be a lower court (MTC).
Phrase: summarily adjudged in contempt of such court. Question—May
respondent be arrested immediately if the court finds that he is guilty of
direct contempt?
Nanghagad ug sumbagay sa korte, nanghagis. Direcho dayon ug order ang judge:
direct contempt. Summary—sturya-sturya lang; no trial; no presentation of
evidence. Mapriso ba dayon? The answer is a resounding NO.
Purpose and nature of power
Inherent in all courts; essential to the preservation of order in all judicial
proceedings and enforcement of judgments, orders and mandates.
I said that there is no immediate arrest. Reason? Section 2 of Rule 71.
Section 2. Remedy therefrom
The person adjudged in direct contempt by any court may not appeal therefrom, but
may avail himself of the remedies of certiorari or prohibition. The execution of the
judgment shall be suspended pending resolution of such petition, provided such
person files a bond fixed by the court which rendered the judgment and conditioned
that he will abide by and perform the judgment should the petition be decided
against him. (2a)
Appeal is out of the question
The person adjudged in direct contempt by any court may not appeal therefrom, but
may avail himself of the remedies of certiorari or prohibition.
So if you are the respondent, what should you do?
 Pay immediately the bond fixed by the court. Then file a petition for
certiorari. Within what period? 60 days. Grave abuse of discretion
amounting to lack or excess of jurisdiction;
 Or file a petition for prohibition. Strike at the very jurisdiction of the court.
This court has no jurisdiction over the subject matter; hence, this court has
no jurisdiction to issue the order of contempt.
Pananglitan, the case is not capable of pecuniary estimation. Diri gi file sa MTC unya
nagsinggit-singgit ka. Question the jurisdiction of the court. Gi-issue-han kag direct
contempt. ―Wa man ka’y jurisdiction judge kay incapable of pecuniary estimation‖
Another case—panaglitan recovery of possession of real property located in Davao
City. Unya diri gi-try sa Cebu City. Asa man dapat unta? Didto sa Davao, location of
property. Kung diri ka gi-contempt sa Cebu, you question the territorial jurisdiction
of the court. What petition shall you file? Petition for prohibition. Lack of territorial
jurisdiction. So those are the defenses.
Process of contempt
Direct Indirect
May be punished summarily. There must be written charge and
hearing. By the way, the example I gave
you xxx immediate arrest is already
well-settled in our jurisdiction. Di na
pwede mu direcho ug arrest according
to the SC.
without authority;
(f) Failure to obey a subpoena duly served;
(g) The rescue, or attempted rescue, of a person or property in the custody of
an officer by virtue of an order or process of a court held by him.

As to nature But nothing in this section shall be so construed as to prevent the court from issuing
Civil contempt Criminal contempt process to bring the respondent into court, or from holding him in custody pending
Civil case for the benefit of the opposing Directed against the authority or dignity such proceedings. (3a)
party. Good faith or absence of intent to against the court or judge. Intent is a
violate the court’s order is not a defense necessary evidence if the proceedings Indirect contempt
in civil contempt. are criminal in nature. 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
Use of disrespectful language against a judge in a hearing presented in punished for indirect contempt:
another court is indirect contempt
Panganglitan, imong gi-file sa Branch 58. ―Gago ang judge sa Branch 57‖ Direct (a) Misbehavior of an officer of a court in the performance of his official duties or
contempt? NO. Kay didto man sa Branch 58. But if you file it sa Branch 57—―Gago in his official transactions.
man ka judge‖. That is direct contempt. The receiver is an officer of the court. The court issued an order for the
receiver to comply. He failed to comply. There is no justification for non-
Do not take literally the words “in the presence of” compliance. Indirect contempt. Under the Rules of Court, the sheriff should
Mu-file kag pleading, that is in the presence of the court. That is the meaning. Ayaw levy the property of the judgment debtor. Or after writ of execution is issued,
i-literal. Filing a petition, filing a motion, manifestation, etc. is considered personal he should attach the property of the defeated party. He failed and refused.
appearance before the court or judge. That is indirect contempt because the sheriff is an office of the court.

Litigants request that the judge disqualify himself is not direct contempt.
I already discussed the remedy.
Section 3. Indirect contempt to be punished after charge and hearing
After a charge in writing has been filed, and an opportunity given to the respondent
to comment thereon within such period as may be fixed by the court and to be
heard by himself or counsel, a person guilty of any of the following acts may be
punished for indirect contempt;
(a) Misbehavior of an officer of a court in the performance of his official duties
or in his official transactions;
(b) Disobedience of or resistance to a lawful writ, process, order, or judgment
of a court, including the act of a person who, after being dispossessed or ejected
from any real property by the judgment or process of any court of competent
jurisdiction, enters or attempts or induces another to enter into or upon such real
property, for the purpose of executing acts of ownership or possession, or in any
manner disturbs the possession given to the person adjudged to be entitled thereto;
(c) Any abuse of or any unlawful interference with the processes or
proceedings of a court not constituting direct contempt under section 1 of this Rule;
(d) Any improper conduct tending, directly or indirectly, to impede, obstruct,
or degrade the administration of justice;
(b) Disobedience of or resistance to a lawful writ, process, order, or judgment of a
court, including the act of a person who, after being dispossessed or ejected
from any real property by the judgment or process of any court of competent
jurisdiction, enters or attempts or induces another to enter into or upon such
real property, for the purpose of executing acts of ownership or possession, or
in any manner disturbs the possession given to the person adjudged to be
entitled thereto
Resisting for example a TRO or injuction. Refusal to appear despite notice.
Refusal to attend a hearing or a deposition. That is indirect contempt.
Pananglitan there is a writ of execution. And then followed by a writ of
possession. What is a writ of possession? It is a writ commanding the sheriff to
place the prevailing party in possession of the property and to oust the
occumpant. So armed with the writ of possession, ni-adto siya sa property.
Naa ang defendant. ―Vacate your premises.‖ Wa gyud mu-vacate. Is that
indirect contempt of court? NO, it is not indirect contempt. Why? Because the
mandate of the writ of possession is this: Mr. Sheriff, you oust the defendant.
The sheriff was commanded. So, dili ma contempt ang kadtong ni refuse.
But if naa writ of possession and they were ousted from the premises. Mu-
return gani sila after having been ousted, that is already indirect contempt of
court. It is the return after the ouster which constitutes indirect contempt of
court.

(e) Assuming to be an attorney or an officer of a court, and acting as such

 ―Xxx 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‖—king nisulod lang sila para
mangihi—aw, di na pwede. Di na siya contempt. Dapat ang pagsulod to
execute acts of ownership or possession.//nina
Coverage of exam: Special civil actions and provisional remedies. I will also discuss
cases. (Please clarify with Judge!)
August 31
RULE 71
CONTEMPT
Section 1. Direct contempt punished summarily.
A person guilty of misbehavior in the presence of or so near a court as to obstruct
or interrupt the proceedings before the same, including disrespect toward the court,
offensive personalities toward others, or refusal to be sworn or to answer as a
witness, or to subscribe an affidavit or deposition when lawfully required to do so,
may be summarily adjudged in contempt by such court and punished by a fine not
exceeding two thousand pesos or imprisonment not exceeding ten (10) days, or
both, if it be a Regional Trial Court or a court of equivalent or higher rank, or by a
fine not exceeding two hundred pesos or imprisonment not exceeding one (1) day,
or both, if it be a lower court.
Sec. 2. Remedy therefrom.
The person adjudged in direct contempt by any court may not appeal therefrom, but
may avail himself of the remedies of certiorari or prohibition. The execution of the
judgment shall be suspended pending resolution of such petition, provided such
person files a bond fixed by the court which rendered the judgment and conditioned
that he will abide by and perform the judgment should the petition be decided
against him.
Sec. 3. Indirect contempt to be punished after charge and hearing.
After a charge in writing has been filed, and an opportunity given to the respondent
to comment thereon within such period as may be fixed by the court and to be
heard by himself or counsel, a person guilty of any of the following acts may be
punished for indirect contempt:
(a) Misbehavior of an officer of a court in the performance of his official duties or in
his official transactions;
(b) Disobedience of or resistance to a lawful writ, process, order, or judgment of a
court, including the act of a person who, after being dispossessed or ejected from
any real property by the judgment or process of any court of competent jurisdiction,
enters or attempts or induces another to enter into or upon such real property, for
the purpose of executing acts of ownership or possession, or in any manner disturbs
the possession given to the person adjudged to be entitled thereto;
(c) Any abuse of or any unlawful interference with the processes or proceedings of a
court not constituting direct contempt under section 1 of this Rule;
(d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or
degrade the administration of justice;
(e) Assuming to be an attorney or an officer of a court, and acting as such without
authority;
(f) Failure to obey a subpoena duly served;
(g) The rescue, or attempted rescue, of a person or property in the custody of an
officer by virtue of an order or process of a court held by him.
But nothing in this section shall be so construed as to prevent the court from issuing
process to bring the respondent into court, or from holding him in custody pending
such proceedings.
(a) Misbehavior of an officer of a court in the performance of his official duties or in
his official transactions
 Example: The sheriff of the court – He is required to file the return of the
service of summons and the return of the writ of execution.
 Example: The clerk of court is an officer of the court. If he fails or refuses
to file a return then he may be held liable for indirect contempt.
 Example: Receiver is an officer of the court and under the direct control
and supervision of court and if he disobeys the court then he may be liable
for indirect contempt
(b) * Disobedience of or resistance to a lawful writ, process, order, or judgment of a
court
 Lawful writs – like writ of injunction, writ of attachment, writ of habeas
corpus, or judgment of a court that is known as a special judgment ( a
judgment which can only be performed by the defendant that is why its
called special as it cannot be done or performed by any person other than
the defendant . Like you are Garry Valenciano, you committed breach of
contract, you did not do a concert at Cebu Grand Con, and you fail to
perform / sing in the concert so he may be held liable for indirect contempt
(b) * dispossession or ejectment from any real property by the judgment or process
of any court of competent jurisdiction
* entering or attempting or inducing 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
There is a writ of execution commanding the sheriff to place or to oust the
defendant-occupant. He is already out, then it may be followed by a writ of
possession, placing the prevailing party in possession of the property and ousting
the defendant. Sometimes it is followed by a writ of demolition. The defendant is
already out of the premises but his house or structure is still there – so writ of
demolition.
If the sheriff serves a writ of execution and demanded vacation of the premises, the
occupant(s) fail(s) or refuses to vacate the premises. Is the defendant liable for
contempt? The answer is no because the writ says ―Mr. sheriff oust the defendants
and place the plaintiff in peaceful position‖
There is a command in the writ for a sheriff to perform and act but if the
defendants or occupants are already ousted and they returned to the premises to
exercise acts of ownership or possession then they may be held liable for contempt
of court. So it is the act of returning which makes it contemptuous.
Also disturbing position given to the person adjudged to be entitled thereto. The
defendants may return one or two years later after the ousting. It is still indirect
contempt of court. Mere entry should not be considered contempt. The entry must
be coupled with acts of ownership or possession.
(c) Any abuse of or any unlawful interference with the processes or proceedings of a
court not constituting direct contempt under section 1 of this Rule
 Like preventing the policeman from implementing the search warrant or
warrant of arrest. Aside from indirect contempt, you know this in criminal
law, the person who obstructed the policeman from implementing the writ
rather the warrant of arrest or search warrant will be held liable criminally
for violation of PD1829, popularly known as Obstruction of Justice.
(d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or
degrade the administration of justice
 It’s not necessary that actual obstruction is committed because the rule
says ―conduct tending‖, so only tendency.
(e) Assuming to be an attorney or an officer of a court, and acting as such without
authority
 May a lawyer be held liable for indirect contempt under section 3 letter E?
o Yes, with more reason if a person who is not a lawyer appears in court
and misleads a court that he is a member of the bar. It happened in
Cebu before. A certain Mr. Puagin who worked with the former
Governor Tingting Dela Cerna unya wa na man nagovernor si Tingting
nag law office sila daghan sila sa law office so giabsorb nila si Mr.
Puagin. Sigeg koyug hasta mga kaso koyug siya sigeg paminaw unya
pwedi man lage mo-appear sa MTC bisag di abogado, sige siyag
appear didto unya contra niya mga abogado, sus nidako ang ulo
niappear na diri sa RTC naa sad siya didtoy PTR # nga nakacomply
siya sa requirement sa MCLE. Niappear siya ka Judge Herastorsa(?) sa
gipangutana siya sa usa ka lawyer kung abogado ba siya, ug nituubag
nga ―oo, classmate gain mi ni Winston Garcia‖ char. So nahibaw-an
mana, naay nisumbong didto sa IBP, the president then was Justice
Ingles, so gifilan nilag kaso di man sad ma-disbar kay waman maka-
bar so the act of Mr. Puagin may also constitute indirect contempt of
court aside from the his usurpation of authority.
 How about a lawyer?
o Lesson na ni kung mga lawyer na gani mo siguradoha jud nga
mopirma siya ug lawyer-client relationship. Kuhaon ka nga lawyer, asa
mani dapit, unsang orasa..unya kato diay tawhana nakakuha ug lain
lawyer nga maoy niappear nakapirma siya atong lawyer nga niappear .
Na-late siya gamay ingun siya ―appearing for the plaintiff your honor‖
unya naa namay counsel sa plaintiff. Pwede na ma-indirect contempt
under letter E ―assuming to be an attorney or officer of a court and
acting as such without an authorit‖, so there must be an authority
coming from the litigant.
(f) Failure to obey a subpoena duly served
 Subpoena is a process commanding a person to appear and testify either in
court or in their position taking. But the rule says duly served, if you are
living 100 km distant from the place of trial, you cannot be forced to testify
without the kilometrage(?) and transportation fees - that is only true in
civil cases but not in criminal cases. Bisan tua pa ka sa Santander, in
criminal cases, you have to obey.
(g) The rescue, or attempted rescue, of a person or property in the custody of an
officer by virtue of an order or process of a court held by him
 The court issue a writ of habeas corpus commanding the officer to bring
the subject to court and then the neighbors of that person obstructed or
prevented the police officer from bringing him to court that is indirect
contempt. Kung nay writ of attachment and then the property of the
defendant is attached levied and the debtor relatives or neighbors prevent
the levy of the property of the debtor, that is indirect contempt of court.
Last paragraph But nothing in this section shall be so construed as to prevent the
court from issuing process to bring the respondent into court, or from holding him in
custody pending such proceeding. Nay parallel case ani but dili court, kundi
congress you’re very familiar in this case kay ngilngig man mo sa political law
 Arnold vs. Nazareno. Kato si Arnold kabalo siya sa mga anomaly sa
Tambobong Estate, so dunay Congressional investigation. He refused to
answer and cooperate so he stays in jail and will be released only if you
cooperate. But this is not a judicial proceeding. Ari ta sa Court.
 In Probate of Wills. If you are in possession of the will of the decedent, and
you are directed to present the will in court then you have to present it in
court. If you fail or refuse to deliver it in court then you may be imprisoned
and be freed only if you deliver the will in court.
Refusal to vacate does not constitute contempt. It is the re-entry which may
constitute indirect contempt of court. You know the rule on publication of court
decision, proceedings, etc.
Sec. 4. How proceedings commenced.
Proceedings for indirect contempt may be initiated motu proprio by the court
against which the contempt was committed by an order or any other formal charge
requiring the respondent to show cause why he should not be punished for
contempt.
In all other cases, charges for indirect contempt shall be commenced by a verified
petition with supporting particulars and certified true copies of documents or papers
involved therein, and upon full compliance with the requirements for filing initiatory
pleadings for civil actions in the court concerned. If the contempt charges arose out
of or are related to a principal action pending in the court, the petition for contempt
shall allege that fact but said petition shall be docketed, heard and decided
separately, unless the court in its discretion orders the consolidation of the
contempt charge and the principal action for joint hearing and decision.
How to proceed or commence indirect contempt of court? 2 ways:
1. The court may either issue motu proprio to show cause why a person
should not be held in contempt of court. Naa pending case, nay usa ka
columnist iya gidiscuss and merits of the case and he criticized the fiscal
and judge. He disclosed the facts. The judge may issue a show cause
order. In 15 days, you show cause why you should not be held in contempt
of court then the court will state the reasons.
 2. Formal charge requiring the respondent to show cause why he should not
be punished for contempt. This time a party may file a motion to hold the
plaintiff or defendant for indirect contempt of court or motion to show
cause. Under Number 2, this is no longer motu proprio but upon motion or
petition.
In all other cases, charges for indirect contempt shall be commenced by a verified
petition with supporting particulars and certified true copies of documents or papers
involved therein, and upon full compliance with the requirements for filing initiatory
pleadings for civil actions in the court concerned.
 This time, you file a petition to hold somebody in indirect contempt of
court. It is a special civil action. Even if it arises from a main case, the
petition for indirect contempt is considered a separate case. Since it is a
separate case, an original special civil action for contempt, you have to pay
docket and other lawful fees. Since it is an initiatory pleading, you have to
attach certification against forum shopping.
If the contempt charges arose out of or are related to a principal action pending in
the court, the petition for contempt shall allege that fact but said petition shall be
docketed, heard and decided separately, unless the court in its discretion orders the
consolidation of the contempt charge and the principal action for joint hearing and
decision.
 This section is subject of debate between judges. Judge Paredes and
Justice Ingles are of the opinion that since it is a separate action, it should
be heard separately. If it is raffled to, say Branch 58 and main case is in
Branch 57, the Branch 58 should try the indirect contempt case and the
main case should be tried Branch 57. But there was a comprise (?) I’ll give
you an illustration.
o The case is for recovery of possession of ownership of real property.
There is a prayer for the issuance of preliminary injunction. In fact a
writ of injunction was issued against the defendant. That’s the main
case. But the defendant defied the writ of injunction. So the plaintiff
will file a special civil action - Petition for Indirect Contempt but its
an incident which arose from the main case. So the better procedure
is, if that petition if filed, it should be assigned to the court trying
the main case. The better procedure is to consolidate the main case
and the petition for contempt. Why better? Because there might be
conflicting findings. The plaintiff may win in the main case and the
defendant may win in the contempt case. Besides, split jurisdiction
is not favored. So remember the 2 modes of commencing indirect
contempt.
Sec. 5. Where charge to be filed.
Where the charge for indirect contempt has been committed against a Regional Trial
Court or a court of equivalent or higher rank, or against an officer appointed by it,
the charge may be filed with such court. Where such contempt has been committed
against a lower court, the charge may be filed with the Regional Trial Court of the
place in which the lower court is sitting; but the proceedings may also be instituted
in such lower court subject to appeal to the Regional Trial Court of such place in the
same manner as provided in section 2 of this Rule.
Where charge is to be filed? Which court?
 If committed against a Regional Trial Court or a court of equivalent or
higher rank, or against an officer appointed by it, the charge may be filed
with such court
 Where such contempt has been committed against a MTC, the charge may
be filed with the RTC of the place in which the lower court is sitting; but
the proceedings may also be instituted in such MTC subject to appeal to
the RTC of such place in the same manner as provided in section 11 [Wa
ko kahibalo nganung Sec 11 iyang gi-ingon, feel nako Section 2 iyang gi-
mean]
 If it is an order or process issued by RTC defied by plaintiff or defendant.
The indirect contempt case must be filed with the RTC. There were cases
before, already settled, naa sa Agrarian Reform Law nga ang DAR i-defy
nimo ang order sa DAR, contempt of court na kay pareha raman na rank
ang DAR ug RTC. Ang manager sa Land Bank nidefy, ilang gihearing. The
DAR hears the LB manager in contempt case. SC said, contempt lagi kun
idefy nimo but you have no power to hear the petition for contempt. It
must be heard by the RTC, ayaw tawn sa DAR because it is a special civil
action and the DARAB is a quasi judicial agency with limited jurisdiction
Sec. 6. Hearing; release on bail.
If the hearing is not ordered to be had forthwith, the respondent may be released
from custody upon filing a bond, in an amount fixed by the court, for his appearance
at the hearing of the charge. On the day set therefor, the court shall proceed to
investigate the charge and consider such comment, testimony or defense as the
respondent may make or offer.
 If the hearing is not ordered to be had forthwith, the respondent may be
released from custody upon filing a bond. So post a bond. It may be cash
bond, surety bond or property bond. Bond is for the provisional liberty of
the respondent. On the day set therefor, the court shall proceed to
investigate the charge and consider such comment, testimony or defense
as the respondent may make or offer.
 The court has no jurisdiction to punish indirect contempt if there is no
charge and hearing. Court (sic) be motu proprio proceedings for indirect
contempt
 Is formal information prepared and filed by the office of the procsetuopr
necessary? No.
Sec. 7. Punishment for indirect contempt.
If the respondent is adjudged guilty of indirect contempt committed against a
Regional Trial Court or a court of equivalent or higher rank, he may be punished by
a fine not exceeding thirty thousand pesos or imprisonment not exceeding six (6)
months, or both. If he is adjudged guilty of contempt committed against a lower
court, he may be punished by a fine not exceeding five thousand pesos or
imprisonment not exceeding one (1) month, or both. If the contempt consists in the
violation of a writ of injunction, temporary restraining order or status quo order, he
may also be ordered to make complete restitution to the party injured by such
violation of the property involved or such amount as may be alleged and proved.
The writ of execution, as in ordinary civil actions, shall issue for the enforcement of
a judgment imposing a fine unless the court otherwise provides.
 This is indirect contempt. RTC or MTC or a court of equivalent or higher
rank, may punish a person held liable for indirect contempt by a fine not
exceeding 30Tor imprisonment not exceeding six (6) months or fine of 30T
and imprisonment.
  If the person held guilty of contempt committed against MTC, the penalty
is 5T or imprisonment not exceeding one month or imprisonment and fine.
 If the contempt consists in the violation of a writ of injunction, temporary
restraining order or status quo order, he may also be ordered to make
complete restitution to the party injured by such violation//sarah
Sec. 8. Imprisonment until order obeyed.
When the contempt consists in the refusal or omission to do an act which is yet in
the power of the respondent to perform, he may be imprisoned by order of the
court concerned until he performs it.
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. Example, a person in
possession of a will.
Sec. 9. Proceeding when party released on bail fails to answer.
When a respondent released on bail fails to appear on the day fixed for the hearing,
the court may issue another order of arrest or may order the bond for his
appearance to be forfeited and confiscated, or both; and, if the bond be proceeded
against, the measure of damages shall be the extent of the loss or injury sustained
by the aggrieved party by reason of the misconduct for which the contempt charge
was prosecuted, with the costs of the proceedings, and such recovery shall be for
the benefit of the party injured. If there is no aggrieved party, the bond shall be
liable and disposed of as in criminal cases.
Section 9, proceeding when party released on bail, on the assumption that
the respondent posted bail, then the court will proceed with the trial.
What is the purpose of the bail bond here? The purpose is for the
respondent to perform an act or order by the court. If the bondman fails to
produce the body of the contempnor, the bond will be forfeited in favor of
the government, and the court may order that judgment be rendered
against the amount of the bond.
Sec. 10. Court may release respondent.
The court which issued the order imprisoning a person for contempt may discharge
him from imprisonment when it appears that public interest will not be prejudiced
by his release.
Section 10, the court which issued the order imprisoning a person for
contempt may discharge him from imprisonment when it appears that
public interest will not be prejudiced.
Question, kung direct contempt, prisohon by deretso? No, because he may
file a petition for certiorari under Rule 45 within 60 days and he may post
bond for his provisional liberty.
Sec. 11. Review of judgment or final order; bond for stay.
The judgment or final order of a court in a case of indirect contempt may be
appealed to the proper court as in criminal cases. But execution of the judgment or
final order shall not be suspended until a bond is filed by the person adjudged in
contempt, in an amount fixed by the court from which the appeal is taken,
conditioned that if the appeal be decided against him he will abide by and perform
the judgment or final order.
Judgment or final order of a court of indirect contempt may be appealed to
the proper court, so kung RTC and ni decide, CA, kung MTC ang ni decide,
RTC. But the execution of the judgment or final order shall not be
suspended until a bond is filed by the person adjudged in contempt, how
much? What is the amount? Amount fixed by the court. What is the
condition of the bond posted by the contempnor? The rule says condition
that if the appeal be decided against him he will abide by and perform the
judgment or final order.
Sec.12. Contempt against quasi-judicial entities.
Unless otherwise provided by law, this Rule shall apply to contempt committed
against persons, entities, bodies or agencies exercising quasi-judicial functions, or
shall have suppletory effect to such rules as they may have adopted pursuant to
authority granted to them by law to punish for contempt. The Regional Trial Court of
the place wherein the contempt has been committed shall have jurisdiction over
such charges as may be filed therefor.
Section 12 contempt against quasi-judicial entities, like NLRC, SEC,
DARAB, PARAB, they are quasi-judicial bodies. You want to hold a person
liable for indirect contempt, file a petition, not with the NLRC, but with the
RTC. The rule says this rule shall apply to contempt committed against
persons, entities, bodies, etc. exercising quasi-judicial functions. The RTC
of the place where the contempt has been committed shall have
jurisdiction over such charges as may be filed therefor.
We will now study the cases, o think we already studied the cases on
provisional remedies, so karon special civil actions.
*Note: 2011 and 2012 cases for the finals
2010
Ω Gonzales vs. Tolentino AM No. GA9-49-J January 28, 2010 611
SCRA 179
It’s about certiorari, the rule that the petition for certiorari does not
interrupt the course of the principal case, unless a TRO or writ of
preliminary injunction has been issued against a public respondent form
further proceeding, then the case must be strictly adhered to by the
appellate and lower courts.
Ω Antazo vs. Dublada 611 SCRA 586
Even usurpers of land owned by another are entitled to remain on it until
they are lawfully ejected there from, so do not take the law into your own
hands, kinahanglan you seek the assistance of the court for the ouster of
the usurper.
Ω Malleare vs. GSIS 611 SCRA 32 January 25, 2010
Period to file petition for certiorari. Can you extend the 60 day period to
file a petition for certiorari? SC said no, the 60-day period is considered
INEXTENDIBLE.
As defaulting mortgagor, petitioner is not entitled to any prior notice of the
application for the issuance of a writ of possession. Proceedings upon
application for a writ of possession if ex-parte and summary in nature.
Then we have just discussed two alternative ways by which a person may
be charged with indirect contempt.
Cebu cases
Ω MCIAA vs. Bernardo Lozada Sr. at.al 613 SCRA 618 February 25,
2010
Kung naa mo sa inyong political law, Ferry vs. Municipality of Cabanatuan,
forget this, gi-abandon nani siya. Unsa may nahitabo sa Ferry? Gi-
expropriate, let’s say for road expansion, pagka human wa gamita for road
expansion, gi-himong public market, maka bawi ba si Ferry? That time,
no. Ang rason sa SC, the title was already transferred to the Municipality,
so dili na nimo mabawi kay tu-a naman nila ang title. The doctrine is
already abandoned in this case. Simple and more convincing, if you file an
action for expropriation, you state the public purpose is it not? Road
expansion, do not do it for any other purpose other than the purpose
stated in the complaint. Kung himuon nimong public market, ang imong
petition road expansion, so the owner can recover the property, so this is
now the ruling. With respect to the element of public use, the expropriator
should commit to use the property pursuant to the purpose stated in the
petition for expropriation filed. Failing which, it should file another petition
for the new purpose. And if not, it is then incumbent upon the expropriator
to return the said property to its private owner if the latter decides to re-
acquire the same. The court now expressly holds that the taking of private
property consequent to the government’s exercise of its power of eminent
domain is always subject to the condition that the property should be
devoted to the specific public purpose for which it was taken. Corollarily, if
this particular purpose or intent is not initiated or not at all pursued, or
abandoned, then the former owner, if he so desire may seek reversion of
the property subject to the return of the amount of just compensation
received.
Mao nay nahitabo sa IT Park gikan diha sa Waterfront padung didto atbang
sa UC, dunay ni-negotiate, dunay gi-expropriate. So nibalhin man ang
CAB, ang Civil Aeronautics Board ni-adto man sila sa Mactan, unya ang
purpose nganong gi-expropriate ni ingon man didto, for the expansion of
the Lahug airport, na close man ang Lahug Airport, gibalhin man sa
Mactan, so unsa pa man? So they should be returned to the owners. So
daghang namilyonaryo dinha, apil na so Atty. Pascual 
Ang CAB, Civil Aeronautics Board gipulihan sa MCIAA.
Ω Cua Lay Chu vs. Laqui 612 SCRA 227
JOKE time!
The Bugol Bum
Naay bata ni adto sa tindahan,
Bata: palita ragud kog bugol bum
Tigulang: wa na diri dong! Pag ka taod2x, 1 hour later, nibalik.
Bata: Noy, palita lagi kog bugol bum!
Tigulang: wa lagi na dinhi dong! Sus pagka tulong balik,
Bata: noy papalita lagi kog bugol bum! ingon siya,
Tigulang: dong ig sunod nimong balik diri dong pusilon na gyud tika!
Balik bitaw nang bata ka-upat,
Bata: noy naa kay pusil?
Tigulang: Wa!
Bata: Palita ra gud kog bugol bum!  
Lami nga Shit
Bunso: te,te makaon nang shit te?
Ate: dili man dong, diin man ka naka dungog ana?
Bata: kadungog man gud nimo te, ingon ka sa imong uyab: shit! kalami! 
The Second Opinion
Dunay doktor, usa kaadlaw, nag bagulbol siya.
Doktor: ikaw, wa nay kay lami! Bati na ka makig-sex nko! Bati jud ka!
Lakaw dayon ang doctor padung sa iyang clinic. Pag ka hapit na alas once tawagan niya iyang asawa, wa
motubag, tawagan ug usab, wa gihapon mitubag, ka tulo na mitubag,
Doktor: kadugay ba nimong motubag!
Asawa: I was in bed, unya naa koy katupad kay nangita kog second opinion.
Purchaser at an extra-judicial foreclosure sale has a right to the possession
of the property even during the one year redemption period, provided a
purchaser files an indemnity bond.
This one is an important case.
Ω Tecklo vs. Rural Bank of Pamplona (discussed already daw)
This is a consolidated petition.
Ω Republic vs. Mangotara 624 SCRA 360 July 7, 2010
Kining expropriation, ayaw mo pagtuo nga ang bayran sa just
compensation ang owner lang sa property. Even if you are not the owner,
you may be given just compensation.
Defendants in an expropriation case are not limited to the owners of the
property to be expropriated, and just compensation is not due to the
property owner alone, they include all other persons owning, occupying or
claiming to own the property.
Dili ikaw ang tag-iya pero you are occupying the property, the property
will be expropriated, does it necessarily mean or follow that you will not be
awarded just compensation? No. you may have erected already a
residential house or a sari-sari store, or any structure. So you may be
given an amount equivalent to the just compensation of the property
owned. //jiji
The defendants in an expropriation case are not limited to the owners of the
property to be expropriated and JC is not due to the property owner alone. They
include all other persons owning, occupying, or claiming to own the property.
Di ikaw ang tagiya pero you are occupying the property, the property will
be expropriated, does it necessarily follow that you will not be awarded
just compensation? No. You may have erected already a residential house or a
sari sari store or any structure so you maybe given n amount equivalent to the just
compensation of the property you own.
In American jurisdiction the term owner when employed in statutes relating to
eminent domain to designate the persons who are to be made parties to the
proceeding refer as a rule in respect of those entitled to compensation to all those
who have lawful interest in the property to be condemned including mortgagee and
lessee or vendee in possession under an executor contract. (naglibog kos sentence
ni sir! But refer to example below kay mao pasabot nya)
Nangabang kas yuta unya kwaon sa gobyerno ang yuta, as lessee, you may be
awarded just compensation. Ang atoh gud common understanding ang tagiya r jud
bayran, so bisag di ka tagiya. In fact, in Sec. 1, rule 67, expropriation proceedings
maybe instituted even when title to the property sought to be expropriated appears
to be in the RP although occupied by private individuals.
What is the implication? Nagpuyo ka sa yuta pro gobyerno ang tagiya, gi
expropriate, so giguba imo balay, tungod ba lang squatter ka, d ka tagaan ug JC?
No. The same rule provides that the complaint for expropriation shall name as
defendants all persons owning or claiming to own or occupying any part thereof or
interest. Kining word occupying gi bold ang letter meaning even an occupant maybe
compensated bisag ang yuta nga iyang gi-occupy belongs to the government.
The filing of complaint for reversion does not preclude the institution of an action for
expropriation even if the land is reverted back to the state, the same may still be
subject to expropriation against the occupants thereof. Niabang kag titled land,
unya illegal ang pagka title kay public land diay to, public domain, ang OSG will
commence a complaint or petition for reversion of the property so na revert to the
government kay illegal pagka title pero naa ka dnha, nagabang ka are you entitled
to JC? Yes, despite the fact that there is or there was a petition for reversion which
succeeded. Even assuming arguendo that the proscription against making
declaration of heirship in ordinary civil actions also extend to actions of quieting of
title the same is not absolute. The court cited several decisions in the past.
Pursuant to Art. 477 CC, the plaintiff must have legal or equitable title to or interest
in the real property of the action for quieting of title. The plaintiff need not even be
in possession of the property. The regalian doctrine, diba naa man na sa
constitution and lands of the public domain: waters, minerals, petroleum, all
sources of potential energy, etc. belongs to the state, mao na regalian doctrine. So
reversion is an action where the ultimate relief sought is to revert the land back to
the government under the regalian doctrine.
Reversion was defined as an action which seeks to restore public land fraudulent
awarded or disposed of to private individuals or corporations. If original certificate of
title were already issued to a private person’s name, it does not bar the republic
from instituting an action for reversion.
Reyes vs Ortiz, 628 SCRA 2.
The subject matter to be tested in a petition for declaratory relief are exclusive. The
subject matter must refer to a deed, will, contract or other written instrument or
statute, ordinance to warrant declaratory relief and any other matter not mentioned
therein is excluded.
Cebu Automated Motors vs GMC 629 SCRA 9 Aug. 25, 2010.
In a contract of lease, the twin of remedies of rescission and judicial ejectment
become available after either the failure to pay rent or to comply with the conditions
of the lease.
When a mortgagor sells the mortgaged property to a 3rd person, the creditor may
demand from such 3rd person the payment of the principal obligation. The mortgage
credit is a real right which follows the property wherever it goes even if its
ownership changes. Mura dia au ni procedure ari ni sa credit transaction. The well
settled rule is that a mortgage lien is inseparable from the property mortgaged.
Metrobank vs Nico Sources International 604 SCRA 336.
This is about publication of notice of sale of a mortgaged property. Under Act No.
3135, as amended, republication as well as reposting of notice of sale is required if
the foreclosure does not proceed on that date originally intended. So republish jud.
Jan-Dec 2009 cases
Upe jr. Vs Co ?? (i search lang ni nako sa LIB, di jd maklaro) 606 SCRA 211.
Sec. 2 Rule 42 does not require that all the pleadings and documents filed before
the lower court must be attached as annexes to the petition. Aside from clearly
legible duplicate originals or true copies of the judgments or final orders of both
lower courts, it merely requires that if a petition be accompanied by copies of
pleadings and other material portions of the records as would support the
allegations of the petition.
Batas vs Santos. 606 SCRA 101. Nov 2009.
The court laid down 3 requisites in petitions for habeas corpus involving minors:
1. The petitioner has the right of custody over the minor.
2. The respondent is withholding the rightful custody over the minor.
3. The best interest of the minor demands that he or she be in custody of the
petitioner.
Rizal Commercial Banking vs Royal Cargo Corp. 602 SCRA 545.
The right or equity of redemption is an incorporeal and intangible right. The value of
which can neither be quantified nor equated with the actual value of the properties
upon which it maybe exercised.
Fernandez vs Amagna 601 SCRA 330.
The subsequent acceptance by the lessor of rental payments does not absent any
circumstance that meditate a contrary conclusion legitimize the unlawful character
of the possession, hence the lessor acted well within her right to file a complaint for
unlawful detainer. So bisag nidawat pa ang lessor, he can still file an action for
special civil action of unlawful detainer.
There’s this one case. Who can file petition for certiorari? Person aggrieved. The
requirement of personality or interest is sanctioned no less than Sec. 7, Art. 9 of the
Constitution, which provides that a decision order or ruling of a constitutional
commission maybe brought to this court by certiorari by the aggrieved party within
30 days from receipt of a copy.
Republic vs DPWH 596 SCRA 57 Aug. 14, 2009.
Eminent domain is the authority and right of the state as sovereign to take property
for public use upon observance of due process of law and payment of just
compensation. The procedure for determining JC is set forth in Rule 67. Rule 67
presupposes a prior filing of complaint for eminent domain in the appropriate court
by the expropriator.
Bunyi et al vs Factor GR 172547 June 30, 2009.
Kung ikaw landowner nya moingan ka, ―I am in possession of the property‖. Kung
moingon ka ana, klngn bah tanan tiil nmo naa ana? Panlitan 1 hectare, maingon
bah na you are not in possession kay naa ra ka sa tumoy. Dil. SC said the
possession does not mean that a man has to have his feet on every square of the
ground before he is deemed in possession.//angge
Visiting during weekends
Visiting of property on weekends on holidays is evidence of actual possession
Force, intimidation, strategy and stealth
Kinig force, ayaw i-take literally. Basta musulod na gani ka na walay pananghid,
bisa’g wa pa naguba ang koral, that is considered force.
SC said: Taking need not be done by force, intimidation, strategy or stealth.
Presence of unidentified men, stopping one from entering property constitutes force.
Magbasalang ta’g Rules of Court—kung codals lang and wala’y interpretation sa
Supreme Court—ah, magtuo gyud ta nga basta pwersa, naa gyud na’y injury. No.
Indirect contempt of court
Bildner vs Ilusorio et al
G.R. No. 157384
Ang sinugdanan ani, ni file ug habeas corpus ang asawa—ang iya kunong bana tu-a
puyo sa iyang anak laki and di siya maka-access sa iyang bana. So ni file siya ug
habeas corpus para ang bana mupuyo ug mupatong (shikes)niya. Dili na pwede
because that is a purely personal obligation.
CGR Corporation et al vs Ernesto Reyes
GR No. 170916
This is an important case on ejectment. Naay nag-abang sa iyang yuta, then
papahawaon niya so he instituted an action for ejectment. Unya ang kadtong
katabang gi harvest niya ang mga isda; gi putol pa gyud ang mga kahoy. So ni file
siya ug 2 cases—one for ejectment and another for damages. Hasta mga santos gi
putlan ug ulo—kay naa man siya mga images didto. Ni-ingon ang defendant: You
are forum shopping.
SC said NO. But kaning unlawful detainer, the main issue is possession. Kadtong gi
hakot nimong isda, gipamutol nimong kahoy ug ulo sa mga santos—that is another
case.
The only form of damages that may be recovered in an action for forcible entry is
the fair rental value for the use or occupation of the premises of the subject
property. Other damages must be claimed in an ordinary action.
Claims for damages which are based on the forcible taking or forcible take-over of
the property may be filed before the MTC; may not be filed separately and
independently from the claim for the restoration of possession.
In one case the court ruled: No claim for damages arising out of forcible entry or
unlawful detainer may be filed separately and independently of the claim for
restoration or possession.
So petitioner’s claim for damages in this case had no direct relation to the loss of
possession of the premises.

The principles of litis pendencia and res judicata do not apply. Kay unsa ma’y gi
himo sa defendant? Harvesting and carting away several trucks of milkfish and
other marine products in their fishponds, ransacking xxx built by CGR Corporation
and stealing religious icons and even decapitating the heads of some of them. Wala
na’y labot sa forcible entry. That is another case. Di man na possession.
Res judicata may not apply because the court in a forcible entry case has no
jurisdiction over claims for damages other than the use or occupation of the
premises and attorney’s fees. Naa’y forum shopping? NO.
Neither may forum-shopping justify a dismissal of the complaint for damages, the
elements of litis pendentia not being present, or where a final judgment in the
forcible entry case will not amount to res judicata in the former.
Just a reminder on certiorari:
First Corporation vs Former 6th Division of the CA, Branch 218 of the RTC of
Quezon City
G.R. No. 171989
Kining petition for certiorari should not touch on the merits of the main case. Basic
kaayo na siya. A review of facts and elements is not the province of the extra
ordinary remedy of certiorari.
In certiorari proceedings, judicial review shall not go as far as to examine and
assess the evidence of the parties and weigh the probative value thereof. It does
not include an inquiry as to the correctness of the evaluation of evidence.
Example: Ni file ang plaintiff for sum of money—that is the main case. The court
must decide the merits of the complaint. Ni issue ang judge ug writ of attachement.
Ni ingon and defendant: illegal kay there is no ground for attachment. So petition
for certiorari, ari ka sa higher court. Hisgutan ba na nangutang or wala? No,
because that is the merit of the case. Ang hisguan lang WON the judge committed
grave abuse of discretion amounting to lack or excess of jurisdiction. Ang issue
tama ba ang writ of attachment. Wala gi ingon nga utangan ba or di kay that is the
merit of the case.
Forcible entry and unlawful detainer. Similarities and dissimilarities
Di na lang ni nato hisgutan kay kahibaw na mo ani.
Lintab vs NAPOCOR
G.R. No. 158619 July 27, 2004
This is stages of expropriation na makita nato sa basic textbook so never mind.
[besides, we looked it up and can’t find it on lawphil and anywhere else…he may
have read it the wrong GR# ]
Go Ke Chong, Jr vs Mariono Chan
G.R. No. 153791
The Court has already settled that even when the issues of ownership and
possession de facto are intricately interwoven, such fact will not cause the dismissal
of the case for forcible entry and unlawful detainer based on jurisdictional grounds.
Kaning sunod na kaso, about Fresh period rule. Ka-agi mo ana?
Kaning sunod di sad ni siya Special Civil Action.
Diri sa lower court, RTC—General Rule kay before filing a motion for certiorari, you
must file a motion for reconsideration. That rule does not apply to the CA.
Collado vs Heirs of Triunfante
G.R. No. 162874
This is important. If there is already a final judgment—meaning final and
executory—what follows? Execution. If damages are incurred in the course of the
execution of judgment and you want to file a separate action for damages as a
consequence of the writ of execution. Asa man na siya? Sa la-in na court? Or the
same court which implemented the writ of execution? Answer—must be in the same
court. This is a forcible entry case.
Independent action for damages based on the implementation of the writ of
execution: not sustainable. MTC retains jurisdiction over matters arising from
execution of judgment.
There is no question that the court which rendered the judgment has a general
supervisory control over its process of execution, and this power carries with it the
right to determine every question of fact and law which may be involved in the
execution.
Cendana Vs Avila
Vol 543 SCRA, page 294
Researched: G.R. No. 168350
If you file a petition for certiorari, be sure than the address of the respondent is
stated in the petition. Addresses of petitioners and respondents.
The petition shall contain the full names and actual addresses of all the petitioners
and respondents. This rule is mandatory.
Suppose there is a prayer for issuance of a writ of injunction which requires posting
the bond. Unya wala mu pose ug bond. Will the main case be dismissed? Of course
NO. Kay wa man mu post ug bond, no preliminary investigation but the main case is
not dismissed.
Almeda vs Bathala Marketing Industries
Vol 542 SCRA, page 470
Reseached: G.R. No. 150806
A petition for declaratory relief may not be dismissed despite the filing of an action
for rescission.
Arbeso vs Marcelo
(no citation, not clear re: petitioner’s name)
Similar case. In ejectment cases, the word possession means nothing more than
actual, physical possession—not legal possession.
Kanang naa’y words diha—force, intimidation, strategy, etc. kinahanglan ba gyud
you have to institute a state of war against plaintiff? The answer is NO. In order to
constitute force, the trespasser must not have to institute a state of war. The words
force, intimidation, threat, strategy or stealth include every situation or condition
under which one person can wrongfully enter upon real property and exclude
another who has had prior physical possession. Even if no force is used by
trespasser other than as necessarily implied the mere act of planting himself on the
ground and excluding the other party. Basta giapapahawa nimo, di nimo pabalikon
ang tag-iya, that is already force even if no force is used.

Xxx

A decision of the CA dismissing a petition for certiorari under Rule 65 partakes of a

nature of a judgment or final order. The remedy for this is petition for review on
certiorari or appeal by certiorari to the SC.

Suppose ang mu insititute sa ejectment kay corporation unya gi suspend or gi-

suspend or gi-revoke ang Certificate of Registration? Makadayon ba sila? That is the
issue in Paz vs Don Luis Hizon Realty. Gi suspend ang corporation, gi revoke ang
certificate. Unya before that ni institute sil’ag ejectment. Maka padayon ba ang
corporation? YES. The capacity of a corporation to institute an ejectment case is not
affected by the subsequent suspension and revocation of the certificate.

ATO and MCIAA vs Tungoy, et al

Researched: G.R. 174011
Pareho ra gihapon ni sa kaso kadtong sa I.T. Citing Moreno vs MCIAA involving lots
similarly expropriated for the expansion of the same Lahug Airport:

We recognized the right of the previous owners who were able to prove the
commitment of the government to allow them to repurchase their land:

The indisputable certainty in the present case is that there was a prior
promise by the predecessor of the respondent that the expropriated
properties may be recovered by the former owners once the airport is
transferred to Mactan, Cebu. In fact, the witness for the respondent
testified that 15 lots were already reconveyed to their previous owners.

-.End -