Beruflich Dokumente
Kultur Dokumente
PROVISIONAL REMEDIES
AND SPECIAL CIVIL
ACTIONS
Rules 57-71
R. Provisional Remedies
PROVISIONAL REMEDIES UNDER THE RULES OF COURT:
a. Attachment (Rule 57)
b. Preliminary Injunction (Rule 58)
c. Receivership (Rule 59)
d. Replevin or delivery of private property (Rule 60)
e. Support Pendente Lite (Rule 61)
f. Criminal Cases (Rule 127 – in connection with the civil action deemed instituted with the
criminal action)
COMMON REQUIREMENTS
a. Affidavits are required to support the issuance of these remedies, except injunction and
receivership.
b. Bond is also required to answer for damages by reason of the improvident issuance of the
writ. Exceptions: temporary restraining order, support pendente lite, inspection of accounts and
freeze order (Human Security Act), inspection and production orders (rule on the writ of
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amparo), seizure and sequestration of accounts and assets (Human Security Act), restriction of
travel (Human Security Act) and hold departure order (Circular 39-97 and AM 02-11-12).
Recovery of damages from the bond is governed by Rule 57, Section 20.
They are provisional because they constitute temporary measures availed of during the
pendency of the action. They are ancillary because they are mere incidents in and are
dependent upon the result of the main action. (Regalado 2008 ed.)
2. Preliminary Injunction (Rule 58) - at ANY STAGE of the action prior to the judgment or
final order
a Action for injunction, whether or not coupled with other prayers
b Forcible entry and unlawful detainer
3. Receivership (Rule 59) – at ANY STAGE of the proceedings and even up to the stage
after the judgment has become final and executory as a means of enforcing the
judgment
a. Receivership action
b. Real action involving title to or possession of realty
c. Foreclosure of mortgage
d. Dissolution of corporation
4. Replevin (Rule 60) - at the COMMENCEMENT of the action OR at ANY TIME before
answer
a. Recovery of possession of personal property
b. Recovery of personal property subject of chattel mortgage as a preliminary step to
extrajudicial foreclosure
5. Support Pendente Lite (Rule 61) – at the COMMENCEMENT of the proper action or
proceeding, or at ANY TIME prior to the judgment or final order
a. Support, whether as the main case or as one of several causes of action.
b. Criminal actions where the civil liability includes support of the offspring as a
consequence of the crime ( rape, seduction).
The court which grants or issues a provisional remedy is the court which has jurisdiction
over the main action. Even a municipal trial court may grant a provisonal remedy in action
pending with it and within its jurisdiction. Exs. writ of preliminary mandatory action, ancillary to
the main action of ejectment (Rule 70, Sec. 15). But where the main action is for support,
provisional remedy of support pendente lite may not be granted by a municipal trial court
because the main action is within the jurisdiction of the family court.
3. Preliminary Attachment
Preliminary attachment defined -
a. a provisional remedy
b. issued upon order of the court where the action is pending,
c. to be levied upon the property of the defendant therein,
d. the same to be held thereafter by the sheriff
e. as SECURITY for the satisfaction of a judgment in said action
f. in favor of the attaching creditor against the defendant.
(Virata vs. Aquino, September 10, 1973)
NOTES:
DEFINITION AND NATURE
1. The provisional remedy of preliminary attachment is harsh and rigorous for it exposes
the debtor to humiliation and annoyance. The rules governing its issuance are, therefore,
strictly construed against the applicant (Wee vs. Tankiansee, G.R. No.171124,
February 13, 2008). If the requisites for its grant are not shown to be all present, the court
shall refrain from issuing it, for, otherwise, the court which issues it acts in excess of its
jurisdiction (See Philippine Bank of Communications v. Court of Appeals, G.R. No. 115678,
February 23, 2001, 352 SCRA 616). Likewise, the writ should not be abused to cause
unnecessary prejudice. If it is wrongfully issued on the basis of false or insufficient
allegations, it should at once be corrected (Wee vs. Tankiansee, supra, citing Benitez v.
Intermediate Appellate Court, No. L-71535, September 15, 1987, 154 SCRA 41, 46).
.
4. A writ of preliminary attachment is a provisional remedy issued upon the order of the
court where an action is pending. Through the writ, the property or properties of the
defendant may be levied upon and held thereafter by the sheriff as security for the
satisfaction of whatever judgment might be secured by the attaching creditor
against the defendant. The provisional remedy of attachment is available in order that
the defendant may not dispose of the property attached, and thus prevent the satisfaction
of any judgment that may be secured by the plaintiff from the former. (Security Bank
Corporation vs. Great Wall Commercial Press Company, Inc., G.R. No.219345, January
30, 2017)
When the main action is appealed the attachment is also considered appealed, It
cannot be the subject of an independent action (Olib vs. Pastoral, 188 SCRA 692 [1990]).
An order of attachment may be issued either ex parte or upon notice and hearing by
the court in which the action is pending, or by the Court of Appeals or Supreme Court (Rule
57, Sec. 2).
It may be issued ex parte because to require notice to the adverse party would defeat
the purpose of attachment and enable the adverse party to abscond or dispose of the
property before the issuance of the writ (Mindanao Savings and Loan Association, Inc. vs.
CA, 172 SCRA 480).
1. Depart - Action (a) for RECOVERY of a specified amount of MONEY OR DAMAGES, other
than moral and exemplary,
(b) on a cause of action arising from law, contract, quasi-contract, delict or quasi-delict
(c) against a party who is ABOUT TO DEPART from the Philippines with INTENT TO
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In short:
1. Action for recovery of money or damages
2. Action involving embezzled money or property
3. Action to recover property fraudulently taken
4. Action involving fraud in contracting or performing obligation
5. Action against party who has removed or disposed of property to defraud creditors
6. Action against non-resident defendant who is not found in the Philippines
For a writ of preliminary attachment to issue under the above-quoted rule, the applicant must
sufficiently show the factual circumstances of the alleged fraud. It is settled that fraudulent intent
cannot be inferred from the debtor's mere non-payment of the debt or failure to comply with his
obligation. After a judicious study of the records, the Court finds that Security Bank was able
to substantiate its factual allegation of fraud, particularly, the violation of the trust receipt
agreements by respondent, to warrant the issuance of the writ of preliminary attachment.
(Security Bank Corporation vs. Great Wall Commercial Press Company, Inc., G.R. No. 219345,
January 30, 2017)
The basis of petitioner’s application for the issuance of the writ of preliminary
attachment against the properties of respondent is Section 1(d) of Rule 57. For a writ of
attachment to issue under this rule, the applicant must sufficiently show the factual
circumstances of the alleged fraud because fraudulent intent cannot be inferred from the
debtor’s mere non-payment of the debt or failure to comply with his obligation (See
Philippine National Construction Corporation vs. Dy, G.R. No. 156887, October 3, 2005,
472 SCRA 1, 9-12). The applicant must then be able to demonstrate that the debtor has
intended to defraud the creditor (Spouses Godinez vs. Hon. Alano, A.M. RTJ-98-1409,
February 18, 1999, 362 Phil. 597). The affidavit, being the foundation of the writ, must
contain such particulars as to how the fraud imputed to respondent was committed
for the court to decide whether or not to issue the writ (Wee vs. Tankiansee, G.R.
No.171124, February 13, 2008).
b. Requisites
Attachment bond (Rule 57, Sec.3)
An attachment bond is a pre-requisite to the issuance of a writ of attachment. Until the
attachment is discharged or lifted in accordance with law, the bond continues to be valid even
when the PREMIUM IS NOT PAID.
EXCEPT if such party makes a DEPOSIT or gives a BOND in an amount equal to that
fixed in the order. Amount may be (a) sufficient to satisfy the applicant's demand or (b)
the value of the property to be attached as stated by the applicant, exclusive of costs.
1. Summons could not be served personally or by substituted service despite diligent efforts;
2. Defendant is a resident of the Philippines temporarily absent therefrom;
3. Defendant is a non-resident of the Philippines; or
4. The action is in rem or quasi in rem.
Rule 57, Sec. 7. Attachment of real and personal property; recording thereof.
The sheriff executing the writ shall attach real and personal property in the following manner:
4. Debts and credits, including bank deposits, financial interest, royalties, commissions,
and other personal property not capable of manual delivery
a. By leaving with the person owing such debts, or having in his possession or under his
control, such credits or other personal property, or with his agent, a copy of the writ, and
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notice that the debts owing by him to the party against whom the attachment is issued,
and the credits and other personal property in his possession, or under his control,
belonging to said party, are attached in pursuance of such writ
5. The interest of the party against whom attachment is issued in property belonging to
the estate of the decedent, whether as heir, legatee, or devisee
a. By serving the executor or administrator or other personal representative of the
decedent with a copy of the writ and notice, that said interest is attached
b. A copy of said writ of attachment and of said notice shall also be filed in the office of the
clerk of the court in which said estate is being settled and served upon the heir, legatee,
or devisee concerned.
Effects of attachment
• All persons (1) having in their possession or under their control any credits or other
similar personal property belonging to the adverse party, or (2) owing any debts to him,
at the time of service upon them of the copy of the writ of attachment and notice as
provided in the last preceding section, shall be LIABLE TO THE APPLICANT for the
amount of such credits, debts or other similar personal property, until the attachment is
discharged, or any judgment recovered by him is satisfied, unless such property is
delivered or transferred, or such debts are paid, to the clerk, sheriff, or other proper
officer of the court issuing the attachment.
Attachment Garnishment
Property is usually in the possession Property is in the possession of a third
of the party litigant. party.
Subject is real or personal property Subject is personal property, usually
debts or security.
Public funds are exempt from garnishment – any judgment against the government
cannot be enforced by execution against its public funds because disbursement of public
funds must be covered by a corresponding appropriation passed by the legislature.
When garnishment order lifted. – A garnishment order shall be lifted if it is established
that: (a) the party whose accounts have been garnished has posted a counterbond or has
made the requisite cash deposit; (b) the order was improperly or irregularly issued as where
there is no ground for garnishment or the affidavit and/or bond filed therefor are defective or
insufficient; (c) the property attached is exempt from execution, hence exempt from
preliminary attachment; or (d) the judgment is rendered against the attaching or garnishing
creditor.
In order that the trial court may validly acquire jurisdiction to bind the person of the garnishee,
it is not necessary that summons be served upon him. The garnishee need not be impleaded as
a party to the case. All that is necessary for the trial court lawfully to bind the person of the
garnishee or any person who has in his possession credits belonging to the judgment debtor is
service upon him of the writ of garnishment. The garnishee becomes a virtual party to
or a forced intervenor in the case. A separate action needs to be commenced only when
the garnishee "claims an interest in the property adverse to him (judgment debtor) or denies the
debt." (Perla Compania de Seguros, Inc. vs. Ramolete, G.R. No. L-60887 November 13, 1991)
Garnishment has been defined as a specie of attachment for reaching credits belonging to the
judgment debtor and owing to him from a stranger to the litigation. A writ of attachment is
substantially a writ of execution except that it emanates at the beginning, instead of at the
termination, of a suit. It places the attached properties in custodia legis, obtaining pendente lite
a lien until the judgment of the proper tribunal on the plaintiff’s claim is established, when the
lien becomes effective as of the date of the levy. By virtue of the writ of garnishment, the
deposits of the defendants with Citytrust were placed in custodia legis of the court. From
that time onwards, their deposits were under the sole control of the RTC and Citytrust
holds them subject to its orders until such time that the attachment or garnishment is
discharged, or the judgment in favor of Lee is satisfied or the credit or deposit is
delivered to the proper officer of the court. ( Bank of the Philippine Islands vs. Lee, G.R.
No. 190144, August 1, 2012)
• The attachment of the interest of an heir, legatee, or devisee in the property belonging to
the estate of a decedent, shall not impair the powers of the executor, administrator, or
other personal representative of the decedent over such property for the purpose of
administration.
• When any petition for distribution is filed, such personal representative shall report the
attachment to the court and in the order made upon such petition, distribution may be
awarded to such heir, legatee, or devisee, but the property attached shall be ordered
12
delivered to the sheriff making the levy, subject to the claim of such heir, legatee, or
devisee, or any person claiming under him.
The sheriff is bound to keep the property when the attaching party, on demand of the
sheriff, files a BOND approved by the court to INDEMNIFY the third-party claimant in a
sum not less than the value of the property levied upon. (indemnity bond)
In case of disagreement as to such value, the same shall be decided by the court issuing
the writ of attachment.
No claim for damages for the taking or keeping of the property may be enforced against
the bond unless the action therefor is filed within one hundred twenty (120) days from
the date of the filing of the bond.
The sheriff shall not be liable for damages for the taking or keeping of such property, to
any such third-party claimant, if such bond is filed.
The proceedings set forth above shall not prevent such claimant or any third person from
vindicating his claim to the property in the same or separate action.
or prevent the attaching party from claiming damages against a third-party claimant who
filed a frivolous or plainly spurious claim, in the same or a separate action.
When the writ of attachment is issued in favor of the Republic of the Philippines, or any
officer duly representing it, the filing of such bond shall not be required, and in case the
sheriff is sued for damages as a result of the attachment, he shall be represented by the
Solicitor General, and if held liable therefor, the actual damages adjudged by the court
shall be paid by the National Treasurer out of the funds to be appropriated for the
purpose.
Aside from Rule 57, Sec. 14, the other provisions of the Rules of Court dealing with
terceria or third party claims are Rule 39, Sec. 16 (execution) and Rule 60, Sec. 7
(replevin).
In case of a third party claim in attachment (Rule 57, Sec. 14) and replevin (Rule 60,
Sec. 7), the third party claimant MAY STILL INTERVENE because there is still no
judgment. That is why said provisions state that the third party claimant may vindicate
his claim to the property in the same or separate action.
The timing of the filing of the third party claim is important because the timing determines
the remedies that a third party is allowed to file. A third party claimant under Section 16
of Rule 39 may vindicate his claim to the property in a separate action, because
intervention is no longer allowed as judgment has already been rendered. A third
party claimant under Section 14 of Rule 57, on the other hand, may vindicate his claim to
the property by intervention because he has a legal interest in the matter in litigation.
(Fort Bonifacio Development Corporation vs. Yllas Lending Corporation., G.R. No.
158997, October 6, 2008)
NOTES:
Property to be attached only so much as to satisfy demand
The sheriff is required to attach only so much of the property of the party against whom
the order is issued as may be sufficient to satisfy the applicant’s demand, the amount of
which is stated in the order, unless a deposit is made or a counter bond is given equal to
said amount. However, if the value of the property to be attached is less than the amount
of the demand, the amount of the applicant’s bond may be equal to the value of said
property, and the amount of the adverse party’s deposit or counter bond may be equal to
the applicant’s bond. The writ of preliminary attachament is issued upon the approval of the
requisite bond (Insular Savings Bank vs. Court of Appeals, G.R. No. 123638, June 15,
2005).
Such a proceeding, in effect, means that the property attached is an indebted thing
and a virtual condemnation of it to pay the owner’s debt. The lien continues until the
debt is paid, or sale is had under execution issued on the judgment, or until the judgment is
satisfied, or the attachment discharged or vacated in some manner provided by law. Thus,
in the registry, the attachment in favor of respondents appeared in the nature of a real lien
when petitioner had his purchase recorded. The effect of the notation of said lien was to
subject and subordinate the right of petitioner, as purchaser, to the lien (Valdevieso vs.
Damalerio, G.R. No. 133303, February 17, 2005, 451 SCRA 664, 670; See also Lavides vs.
Pre, G.R. No. 127830, October 21, 2001 and Biñan Steel Corporation vs. Court of Appeals,
October 15, 2002, 391 SCRA 90).
Merits of the action in which a writ of preliminary attachment has been issued not
triable on a motion for dissolution of the attachment. When the preliminary attachment
is issued upon a ground which is at the same time the applicant’s cause of action, the
defendant is not allowed to file a motion to dissolve the attachment under Section 13 of
Rule 57 by offering to show the falsity of the factual averments in the plaintiff’s application
and affidavits on which the writ was based – and consequently that the writ based thereon
had been improperly or irregularly issued – the reason being that the hearing on such a
motion for dissolution of the writ would be tantamount to a trial of the merits of the action.
In other words, the merits of the action would be ventilated at a mere hearing of a motion,
instead of at the regular trial (Chuidian vs. Sandiganbayan, G.R. No. 139941, January 19,
2001).
Rule 57, Sec. 15. Satisfaction of judgment out of property attached; return of sheriff.
If judgment be recovered by the attaching party and execution issue thereon, the sheriff
may cause the judgment to be satisfied out of the property attached, if it be sufficient for that
purpose in the following manner:
(a) By paying to the judgment obligee the proceeds of all sales of perishable or other
property sold in pursuance of the order of the court, or so much as shall be necessary to
satisfy the judgment;
(b) If any balance remains due, by selling so much of the property, real or personal, as
may be necessary to satisfy the balance, if enough for that purpose remain in the sheriff's
hands, or in those of the clerk of the court;
(c) By collecting from all persons having in their possession credits belonging to the
judgment obligor, or owing debts to the latter at the time of the attachment of such credits or
debts, the amount of such credits and debts as determined by the court in the action, and
stated in the judgment, and paying the proceeds of such collection over to the judgment
obligee.
The sheriff shall forthwith make a return in writing to the court of his proceedings under
this section and furnish the parties with copies thereof.
Rule 57, Sec. 16. Balance due collected upon an execution; excess delivered to
judgment obligor.
If after realizing upon all the property attached, including the proceeds of any debts or
credits collected, and applying the proceeds to the satisfaction of the judgment, less the
expenses of proceedings upon the judgment, any BALANCE shall remain due, the sheriff
must proceed to COLLECT such balance as upon ordinary execution. Whenever the
judgment shall have been paid, the sheriff, upon reasonable demand, must RETURN to the
judgment obligor the attached property remaining in his hands, and any proceeds of the sale
of the property attached not applied to the judgment.
• If the judgment is in favor of the party against whom the attachment was issued
(ATTACHEE), the whole sum deposited must be REFUNDED to him or his
assignee (R57S18), and
• All the proceeds of sales and money collected or received by the sheriff, under the
order of attachment, and all money attached remaining in the sheriff’s hands, shall
be DELIVERED to such party, and the order of attachment DISCHARGED
(R57S19).
NOTES:
There are only two ways of quashing a writ of attachment: (a) by filing a counterbond
immediately; or (b) by moving to quash on the ground of improper and irregular
issuance. These grounds for the dissolution of an attachment are fixed in Rule 57 and the
power of the Court to dissolve an attachment is circumscribed by the grounds specified
therein. Petitioner’s motion to lift attachment failed to demonstrate any infirmity or defect in
the issuance of the writ of attachment; neither did he file a counterbond (Chuidian vs.
Sandiganbayan, G.R. No. 139941, January 19, 2001).
Without evidence of malice, attaching party not liable for moral damages. A wrongful
attachment may give rise to liability for moral damages but evidence must be adduced not
only of the torment and humiliation brought upon the defendant by the attaching party but
also of the latter's bad faith or malice in causing the wrongful attachment, such as evidence
that the latter deliberately made false statements in its application for attachment. Absent
such evidence of malice, the attaching party cannot be held liable for moral damages.
(Spouses Santiago vs. Allied Banking Corporation, G. R. No. 16450, November 25, 2008)
Attachment bond under Sec. 3 is different from the bond under Sec. 14 (proceedings
where property claimed by third person). Sec. 3 refers to the attachment bond to assure
the return of defendant’s property or the payment of damages to the defendant if the
plaintiff’s action to recover possession of the same property fails, in order to protect the
person’s right of possession of said property, or to prevent the defendant from destroying the
same during the pendency of the suit.
Under Sec. 14, the purpose of the bond is to indemnify the sheriff against any claim by the
intervenor to the property seized or for damages arising from such seizure, which the sheriff
was making and for which the sheriff was directly responsible to the third party (Fort
Bonifacio Development Corporationvs. Yllas Lending Corporation, G.R. No. 158997, October
6, 2008).
judgment whenever it shall be made to appear to the court In which the action is pending,
upon hearing with notice to both parties, that (a) the attached property is perishable or that
(b) the interests of all the parties to the action will be subserved by the sale of the attached
property (Rule 57, Sec. 11; China Banking Corporation vs. Asian Corporation and
Development Corporation, G.R. No. 158271, April 8, 2008).
4. Preliminary Injunction
DEFINITION AND NATURE
• A preliminary injunction is an order granted at any stage of an action prior to
judgment of final order, requiring a party, court, agency, or person to refrain from a
particular act or acts. It is a preservative remedy to ensure the protection of a party’s
substantive rights or interests pending the final judgment in the principal action. A plea
for an injunctive writ lies upon the existence of a claimed emergency or extraordinary
situation which should be avoided for otherwise, the outcome of a litigation would be
useless as far as the party applying for the writ is concerned (Phil. Ports Authority v.
Cipres Stevedoring & Arrastre, Inc., G.R. No. 145742, 14 July 2005, 463 SCRA 358,
373-374).
There is no power, the exercise of which, is more delicate which requires greater caution,
deliberation, and sound discretion, or (which is) more dangerous in a doubtful case than the
issuing of an injunction. It is the strong arm of equity that never ought to be extended unless
in cases of great injury, where courts of law cannot afford an adequate or commensurate
remedy in damages. (University of the Philippines v. Catungal, Jr., G.R. No. 121863, May 5,
1997, 272 SCRA 221,236 )
A restraining order is issued to preserve the status quo until the hearing of the
application for preliminary injunction which cannot be issued ex parte (Id, citing Miriam
College Foundation Inc. vs. Court of Appeals, G.R. No. 127930, December 15, 2000, 348
SCRA 265).
Under the Rules of Court, probability is enough basis for injunction to issue as a
provisional remedy, which is different from injunction as a main action where one needs to
establish absolute certainty as basis for a final and permanent injunction.(Hernandez vs.
NAPOCOR, G.R. No. 145328, March 23, 2006).
PURPOSE
2. Its sole aim is to preserve the status quo until the merits of the case can be heard fully
(Cortez-Estrada vs. Samut, G.R. No. 154407, February 14, 2005). Thus, it will be issued only
upon a showing of a clear and unmistakable right that is violated. Moreover, an urgent and
permanent necessity for its issuance must be shown by the applicant (First Global Realty
and Development Corporation vs. San Agustin, G.R. No. 144499, February 19, 2002, 377
SCRA 341).
Issues on jurisdiction
1. Pursuant to the policy of judicial stability, the judgment or order of a court of competent
jurisdiction may not be interfered with by any court of concurrent jurisdiction (Javier vs.
Court of Appeals, February 16, 2004, 423 SCRA 11; See also Chings vs. Court of Appeals,
February 24, 2003, 398 SCRA 88).
2. Injunctions issued by the Regional Trial Courts are limited to acts committed or to be
committed within its territorial jurisdiction. The doctrine is, however, limited to prohibitory
and injunctive writs.
Section 21 of BP 129 reads: “Original jurisdiction in other cases – Regional Trial Courts
shall exercise original jurisdiction (1) in the issuance of writs of certiorari, prohibition,
mandamus, quo warranto, habeas corpus and injunction which may be enforced in any party
of their respective regions.”
4. The authority of a judge to issue a writ of injunction is limited only to and operative only
within his province or district and any such writ issued in contravention of such limitation
is void (Dela Paz vs. Adiong, November 23, 2004, 443 SCRA 480).
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Original action for injunction outside the jurisdiction of the Court of Appeals
What petitioner filed with the appellate court was an original action for preliminary
injunction which is a provisional and extraordinary remedy calculated to preserve or maintain
the status quo of things and is availed of to prevent actual or threatened acts, until the merits
of the case can be heard. An original action for injunction is outside the jurisdiction of the
Court of Appeals, however. Under B.P. 129, the appellate court’s jurisdiction to grant a
writ of preliminary injunction is limited to actions or proceedings pending before it
(Section 2 of Rule 58) or in a petition for certiorari, prohibition or mandamus (Section 7
of Rule 65). In the case at bar, petitioner’s complaint-in-intervention in Civil Case No. 00-196
was pending before Branch 256 of the Muntinlupa RTC, not with the appellate court.
Petitioner’s petition before the appellate court does not show that in issuing the writ of
possession, the Muntinlupa RTC acted without or in excess of its jurisdiction or with grave
abuse of discretion for it to be treated as either one for certiorari or prohibition (Allgemeine-
Bau-Chemie Phils., Inc., vs. Metropolitan Bank & Trust Co., Honorable N. C. Perello, G.R.
No. 159296 , February 10, 2006).
The RTC can take cognizance of the injunction complaint which is “a suit which has for its
purpose the enjoinment of the defendant, perpetually or for a particular time, from the
commission or continuance of a specific act, or his compulsion to continuen performance of a
particular act.” Actions for injunction and damages lie within the exclusive and original
jurisdiction of the RTC pursuant to Section 19 of Batas Pambansa Blg. 129, otherwise known as
the Judiciary Reorganization Act of 1980, as amended by RA 7691. (Republic vs.Principalia
Management, G.R.No. 198426, September 2, 2015)
next session of the Court (Heirs of the Late Justice Jose B.L. Reyes vs. Court of Appeals,
August 2005, 338 SCRA 282; Rule VI, Section 5 of the Internal Rules of the Court of
Appeals)
1. Release of articles under seizure and forfeiture proceedings by the Bureau of Customs
(Commissioner of Customs vs. Court of Appeals, G.R. Nos. 111202-05, January 31,
2006; Zuno vs. Cabredo, A.M. No. RTJ-03-1779, April 30, 2003; Administrative Circular
No. 7-99).
2. Injunction orders in labor cases (Art. 255, Labor Code, as amended by BP 227)
3. Injunction to enjoin or restrain criminal prosecution (Borlongan vs. Pena, G.R. No.
143591, November 23, 2007; Samson vs. Guingona, Jr., G.R. No. 123504, December
14, 2000)
4. Injunction to prevent the foreclosure of real estate mortgages by government financing
institutions (OCA Circular 93-2004 in relation to Sec. 1, Rule 141 of the Rules of Court,
Sec. 3, PD 385 and Administrative Circular No. 07-99)
5. Injunction to prevent the Anti Money Laundering Council from issuing and /or
implementing freeze orders, with the exception of writs issued by the Court of Appeals
and the Supreme Court (RA 9160 as amended by RA 9194)
6. Injunction to restrain the Presidential Agrarian Reform Council from performing its tasks
(Sec. 55, RA 6657)
7. Injunction against public administrative officers in the issuance of public grants for the
exploitation of natural resources (PD 605)
R.A. No. 8975, which took effect on November 26, 2000, is the present law that
proscribes lower courts from issuing restraining orders and preliminary injunctions
against government infrastructure projects. In ensuring the expeditious and
efficient implementation and completion of government infrastructure projects, its
twin objectives are: (1) to avoid unnecessary increase in construction,
maintenance and/or repair costs; and (2) to allow the immediate enjoyment of the
social and economic benefits of the project. R.A. No. 8975 exclusively reserves to
the Supreme Court the power to issue injunctive writs on government
infrastructure projects. A judge who violates the prohibition shall suffer the penalty
of suspension of at least sixty (60) days without pay, in addition to any civil and
criminal liabilities that he or she may incur under existing laws. Through
Administrative Circular No. 11-2000, the Supreme Court has instructed all judges
and justices of the lower courts to comply with and respect the prohibition.
(Republic vs. Sps. Lazo, G.R. No. 195594, September 29, 2014)
b. Requisites
Requisites for issuance of preliminary injunction
1. The right to be protected exists prima facie and
2. The acts sought to be enjoined are violative of that right (Los Baños Rural Bank, Inc. vs.
Africa, July 11, 2002, 384 SCRA 535; Zamboanga Barter Goods Retailers Association,
Inc. vs. Lobregat, July 7, 2004, 433 SCRA 624; European Resources and Technologies,
Inc. vs. Ingenieuburo Birkhahn + Nolte Ingeniurgesellscahft mbh, July 26, 2004, 435
SCRA 246).
.
In the absence of a clear legal right, the issuance of the injunctive relief constitutes grave abuse
of discretion. Injunction is not designed to protect contingent or future rights. Where the
complainant’s right is doubtful or disputed, injunction is not proper. The possibility of
irreparable damage without proof of actual existing right is not a ground for an injunction.( BP
Philippines, Inc. (Formerly Burmah Castrol Philippines, Inc.) vs. Clark Trading Corporation, G.R.
No. 175284, September 19, 2012)
In order that an injunctive relief may be issued, the applicant must show that: "(1) the right of
the complainant is clear and unmistakable; (2) the invasion of the right sought to be protected
is material and substantial; and (3) there is an urgent and paramount necessity for the writ to
prevent serious damage." (Compania General de Tabacos de Filipinas vs. Sebandal,
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As the lower courts correctly found, Tuazon had no ownership to confer to the petitioners
despite the latter’s reimbursement of Tuazon’s purchase expenses. Because they were never
owners of the property, the petitioners failed to establish entitlement to the writ of preliminary
injunction. "[T]o be entitled to an injunctive writ, the right to be protected and the violation
against that right must be shown. A writ of preliminary injunction may be issued only upon clear
showing of an actual existing right to be protected during the pendency of the principal action.
When the complainant’s right or title is doubtful or disputed, he does not have a clear
legal right and, therefore, the issuance of injunctive relief is not proper." (Plaza vs. Lustiva,
G.R. No. 172909, March 5, 2014)
For a Writ of Preliminary Injunction to issue, the following requisites must be present: (1) the
existence of a clear and unmistakable right that must be protected, and (2) an urgent and
paramount necessity for the writ to prevent serious damage, (3) the probability of
irreparable injury, inadequacy of pecuniary compensation, and the prevention of
multiplicity of suits. (Cahambing vs. Espinosa, G.R. No. 215807, January 25, 2017)
if the RTC was fully satisfied that the law permitted it and the emergency demanded it. That,
needless to state, was not true herein. (Delos Santos vs.Metropolitan Bank and Trust Company 1
The RTC’s issuance of the writ of preliminary injunction to enjoin the petitioner from
proceeding with the foreclosure of the mortgages was plainly erroneous and unwarranted.
Based on the allegations in the complaint, respondents had admittedly constituted the real
estate and chattel mortgages to secure the performance of their loan obligation to BPI, and, as
such, they were fully aware of the consequences on their rights in the properties given as
collaterals should the loan secured be unpaid.
A writ of preliminary injunction is issued when (1) the right to be protected exists prima facie;
and (2) the acts sought to be enjoined are violative of that right. The applicant must have a
sufficient interest or right to be protected, but it is enough that…the applicant has the ostensible
right to the final relief prayed for in its complaint.” It is also basic that the power to issue a writ of
injunction is to be exercised only where the reason and necessity therefor are clearly
established, and only in cases reasonably free from doubt.
Also, the applicant must prove that the violation sought to be prevented would cause an
irreparable injury. An injury is considered irreparable if it cannot be remedied under any
standard of compensation. But in this case, the respondents principally feared the loss of the
mortgaged properties, and faced the possibility of a criminal prosecution for the post-dated
checks they issued. Such fears did not constitute the requisite irreparable injury, because
ultimately the amount to which the mortgagee-bank shall be entitled will be determined by the
RTC’s disposition of the case. (Bank of the Philippine Islands vs. Hontanosas, G.R. No.
15761325, January 25, 2014)
As a general rule, the courts will not issue writs of prohibition or injunction – whether
preliminary or final – in order to enjoin or restrain any criminal prosecution. But there are
extreme cases in which exceptions to the general rule have been recognized, including: (1)
when the injunction is necessary to afford adequate protection to the constitutional rights of the
accused; (2) when it is necessary for the orderly administration of justice or to avoid oppression
or multiplicity of actions; (3) when there is a prejudicial question that is sub judice; (4) when the
acts of the officer are without or in excess of authority; (5) when the prosecution is under an
invalid law, ordinance or regulation; (6) when double jeopardy is clearly apparent; (7) when the
court has no jurisdiction over the offense; (8) when it is a case of persecution rather than
prosecution; (9) when the charges are manifestly false and motivated by the lust for vengeance;
and (10) when there is clearly no prima facie case against the accused and a motion to quash
on that ground has been denied.
However, the case does not fall under any of the foregoing exceptions. Hence, the issuance
by the RTC of the writ of preliminary injunction to enjoin the petitioner from instituting criminal
complaints for violation of BP No. 22 against the respondents was unwarranted. (Bank of the
Philippine Islands vs. Hontanosas, G.R. No. 15761325, January 25, 2014)
NOTES:
1. A writ of preliminary injunction, as an ancillary or preventive remedy, may only be
resorted to by a litigant to protect or preserve his rights or interests and for no other
purpose during the pendency of the action. (China Banking Corporation v. Court of
Appeals G. R. No.121158, December 5,1996,265 SCRA 327.) It should only be granted
if the party asking for it is clearly entitled thereto. (Climaco vs. Macadaeg, 114 Phil.870
[1962]; Subido v. Gopengco, G.R. No. 25618, March 28,1969, 27 SCRA 455; Police
Commission v. Bello, G.R. Nos. 29959-60, January 30, 1971, 37 SCRA 230; Capitol
Medical Center, Inc. v. Court of Appeals, G.R. No. 82499, Oct. 13,1989, 178 SCRA
493.)
2. An injunction will not issue to protect a right not in esse and which may never arise or to
restrain an act which does not give rise to a cause of action. ( Republic of the
Philippines v. Villarama G.R. No. 117733, September 5, 1997, 278 SCRA 736; Buayan
v. Quintillan, supra, note 315.) There must exist a clear and actual right to be
protected and that the acts against which the writ is to be directed are violative of
the established right. (G & S Transport Corporation vs CA 382 SCRA 262 GR No.
120287, May 28, 2002)
4. In every application for provisional injunctive relief, the applicant must establish the
actual and existing right sought to be protected. The applicant must also establish the
urgency of a writ's issuance to prevent grave and irreparable injury. Failure to do so will
warrant the court's denial of the application. Moreover, the application for the issuance
of a writ of preliminary injunction may be denied in the SAME SUMMARY HEARING
as the application for the issuance of the temporary restraining order if the
applicant fails to establish requisites for the entitlement of the writ. (Evy
Construction and Development Corporation Vs.Valiant Roll Forming Sales Corporation,
G.R. No. 207938, October 11 , 2017)
c. Kinds of Injunction
1. Preliminary prohibitory injunction – order granted at any stage of the action or
proceeding prior to judgment or final order requiring a party or court, agency or person to refrain
from a particular act or acts (Rule 58, Sec. 1)
2. Preliminary mandatory injunction – order granted at any stage of the action or
proceeding prior to the judgment or final order requiring the performance of a particular act or
acts.
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3. Final or permanent injunction - one issued in the judgment in the case permanently
restraining the defendant or making the preliminary injunction permanent.
(a) That the applicant is ENTITLED TO THE RELIEF DEMANDED, and the whole or part of
such relief consists in restraining the commission or continuance of the act or acts
complained of, or in requiring the performance of an act or acts, either for a limited period or
perpetually;
(b) That the commission, continuance or non-performance of the act or acts complained of
during the litigation would PROBABLY WORK INJUSTICE TO THE APPLICANT; or
(c) That a party, court, agency or a person is doing, threatening, or is attempting to do, or is
procuring or suffering to be done, some act or acts PROBABLY IN VIOLATION OF THE
RIGHTS OF THE APPLICANT respecting the subject of the action or proceeding, and
tending to render the judgment ineffectual.
NOTES:
Injunctions not issued where act sought to be prevented had been committed /
consummated acts (fait accompli)
1. The remedy of injunction could no longer be availed of where the act to be prevented
had long been consummated. Where a span of seven years has intervened from the
time the award of the lot has already been accomplished to the time petitioners’
complaint for injunction was filed, injunction would just be an exercise in futility
(Zabat vs. CA, August 23, 2000, 338 SCRA 551).
2. A writ of preliminary injunction will not issue if the act sought to be enjoined is a fait
accompli or an accomplished or consummated act (Transfield Philippines, Inc., vs.
Luzon Hydro Corporation, November 22, 2004, 443 SCRA 307). By issuing a
temporary restraining order and writ of preliminary injunction enjoining the eviction of
the respondents, the Court of Appeals allowed the respondents to stay in the property
despite the mandatory provision of Section 19, Rule 70 of the Rules of Court. The
appellate court, in effect, granted the same injunctive relief which the respondents
failed to secure from the Regional Trial Court due to their procedural lapse (David vs.
Navarro, February 11, 2004, 422 SCRA 499).
Exception: When the party praying for an injunction alleged not only acts that were
already committed or consummated, but also those acts that the defendant could still
continue to execute unless restrained. In Dayrit, the acts sought to be restrained in that
case (i.e., making excavations, opening a ditch, and construction of a dam) are capable of
being continued or repeated. In other words, the defendant's questioned acts, even if partly
or initially executed, are capable of continuation, as these acts consist of several stages
that are not consummated by a mere single act. The ruling is that "not only the
commission or execution of such acts, but also their continuation can be prevented or
prohibited by an injunction." (Co, Sr. vs. The Philippine Canine Club, G.R. No. 190112,
April 22, 2015)
Purpose of preliminary injunction – to preserve the status quo ante litem motam (status
before the suit) until the trial court hears fully the merits of the case. Its primary purpose is not to
correct a wrong already consummated or to redress an injury already sustained, or to punish
wrongful acts already committed, but to preserve and protect the rights of the litigant during the
pendency of the case (Bustamante vs. CA, 4/17/2002).
Status quo sought to be preserved – the last actual, peaceable and uncontested situation
which precedes a controversy. The status quo should be existing ante litem motam, or at the
time of the filing of the case. For this reason, a preliminary injunction should not establish
new relations between the parties, but merely maintain or re-establish the pre-existing
relationship between them (Bustamante vs. CA, supra).
stations. The loss of its listenership and the damage to its image and
reputation would not be quantifiable, and thus, would be irreparable. (Evy
Construction and Development Corporation Vs.Valiant Roll Forming Sales
Corporation, G.R. No. 207938, October 11 , 2017)
5. Injunction not designed to protect contingent or future rights. Injunction will not
issue to protect a right not in esse and which may never arise, or to restrain an act
which does not give rise to a cause of action.
The complainant’s right or title must be CLEAR AND UNQUESTIONED, for equity, as a
rule, will not take cognizance of suits to establish title, and will not lend its preventive aid
where the complainant’s title or right is doubtful or disputed. The possibility of irreparable
damage, without proof of violation of an actual existing right, is no ground for an
injunction, being mere damnum absque injuria (Ulang vs. CA, 225 SCRA 637 [1993]).
• If it appears that the extent of the preliminary injunction or restraining order granted is
too great, it may be modified (R57S6).
decision of the ERB in an injunction suit is to brazenly disregard the rule on finality of
judgments (Philippine Sinter Corporation and PHIVIDEC Industrial Authority vs. Cagayan
Electric Power and Light Co., Inc., G.R. No. 127371, 381 SCRA 582, April 25, 2002).
While Rule 58, Section 4(d) requires that the trial court conduct a summary hearing in
every application for temporary restraining order regardless of a grant or denial, Rule 58,
Section 5 requires a hearing only if an application for preliminary injunction is granted. Thus,
Section 5 states that "[n]o preliminary injunction shall be granted without hearing and prior
notice to the party or person sought to be enjoined." Inversely stated, an application for
preliminary injunction may be denied even without the conduct of a hearing separate from
that of the summary hearing of an application for the issuance of a temporary restraining
order. (Evy Construction and Development Corporation Vs.Valiant Roll Forming Sales
Corporation, G.R. No. 207938, October 11 , 2017)
g. Duration of TRO
RTC - 20 days
CA - 60 days
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4 To restrain a mayor proclaimed as duly elected from assuming his office. ( Cereno v.
Dictado, No. L-81550, April 15, 1988, 160 SCRA 759.)
5 To restrain consummated or ministerial acts:
a. Not proper to restrain against disposing a case on the merits. (Government
Service Insurance System (GSIS) v. Florendo, G.R. NO. 48603, September 29,
1989, 178 SCRA 76; Ortigas and Company Limited Partnership v. Court of
Appeals, No. L-79128, June 16, 1988, 162 SCRA 165.)
b. Not proper to stop the execution of judgment where the judgment was already
executed. (Meneses v. Dinglasan, 81 Phil. 470 [1948])
c. The Regional Trial Court has no power to issue a writ of injunction against the
Register of Deeds if its effect is to render nugatory a writ of execution issued by
the National Labor Relations Commission. (Ambrosio v. Salvador, No. L-47651,
December 11, 1978, 87 SCRA 217.)
d. But where the lower court enforced its judgment before a party against whom the
execution was enforced could elevate his or her appeal in an injunction suit,
which was instituted to prevent said execution, an independent petition for
injunction in the Court of Appeals is justified. (Manila Surety and Fidelity v.
Teodoro, G.R. No. 20530, June 29, 1967, 20 SCRA 463)
e. A writ of injunction should never issue when an action for damages would
adequately compensate the injuries caused. The very foundation of the
jurisdiction to issue the writ of injunction rests in the possibility of irreparable
injury, inadequacy of pecuniary compensation and the prevention of the
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multiplicity of suits. Where facts are not shown to bring the case within these
conditions, the reliefs of injunction should be refused. (Golding vs. Balabat, 36
Phil. 941)
c. The respondent is the registered owner of the property; hence, he is entitled to the
possession thereof. As a rule, a writ of preliminary mandatory injunction is not granted to
take property out of the possession or control of one party to be placed into that of another
whose title has not been clearly established by law. (Almeida vs. Court of Appeals, G.R. No.
159124, January 17, 2005, 448 SCRA 681).
Exceptions
1. Forcible entry in which the Court may issue preliminary mandatory injunction (Rules of
Court, Rule 70, Sec. 15) and by Section 20 thereof involving leases in which the court
may, on appeal, grant similar mandatory injunctive relief. The exception applies only to
ejectment cases exclusively cognizable by the municipal trial court. (Ramos v. Court of
appeals, G.R. 81354, July 26, 1988, 163 SCRA 583 ) Article 539, Civil Code: A
possessor deprived of his possession through forcible entry may within 10 days from the
filing of the complaint present a motion to secure from the competent court, in the action
for forcible entry, a writ of preliminary mandatory injunction to restore him in his
possession. The court shall decide the motion within 30 days from filing thereof.
2. Property covered by Torrens Title when there is a clear finding of ownership and
possession of the land or unless the subject property is covered by a Torrens Title
pointing to one of the parties as the undisputed owner. (GSIS v. Florendo, supra, note
329; Cagayan de Oro City Landless Residents Association, Inc. v. Court of Appeals, G.R.
No. 106043, March 4, 1996, 254 SCRA 229)
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When to decide main case after a higher court issues a writ of preliminary injunction
against a lower court, board or tribunal :
The trial court, the Court of Appeals, the Sandiganbayan or the Court of Tax Appeals that
issued a writ of preliminary injunction against a lower court, board, officer or quasi-judicial
agency shall decide the main case or the petition within SIX MONTHS from the issuance of
the writ,. (Section 5, Rule 58, as amended by A.M. No. 07-7-12-SC which took effect on
December 27, 2007) Purpose: in order not to unduly delay the main case lodged in a lower
court.
This law expressly repealed Presidential Decree No. 605 (prohibiting injunction involving
concessions, licenses and other permits issued by public administrative office or bodies for
the exploitation of natural resources) and Presidential Decree No. 1818 (prohibiting
injunction in cases involving infrastructures and natural resources development and public
utilities.
RA 8975 expressly prohibits any court, except the Supreme Court from issuing a TRO or
a writ of preliminary injunction or preliminary mandatory injunction against a government
contract or project acts. (Nerwin Industries v PNOC-Energy Dev't Corp, G.R. No. 167057,
(a) The application in the action or proceeding is verified, and shows facts entitling the
applicant to the relief demanded; and
(b) Unless exempted by the court, the applicant files with the court where the action or
proceeding is pending, a bond executed to the party or person enjoined, in an amount to be
fixed by the court, to the effect that the applicant will pay to such party or person all damages
which he may sustain by reason of the injunction or temporary restraining order if the court
should finally decide that the applicant was not entitled thereto. Upon approval of the
requisite bond, a writ of preliminary injunction shall be issued.
(c) When an application for a writ of preliminary injunction or a temporary restraining order is
included in a complaint or any initiatory pleading, the case, if filed in a multiple-sala court,
shall be raffled only after notice to and in the presence of the adverse party or the person to
be enjoined. In any event, such notice shall be preceded, or contemporaneously
accompanied, by service of summons, together with a copy of the complaint or
initiatory pleading and the applicant’s affidavit and bond, upon the adverse party in
the Philippines.
However, where the summons could not be served personally or by substituted service
despite diligent efforts, or the adverse party is a resident of the Philippines temporarily
absent therefrom or is a nonresident thereof, the requirement of prior or contemporaneous
service of summons shall not apply.
(d) The application for a temporary restraining order shall thereafter be acted upon only after
all parties are heard in a summary hearing which shall be conducted within twenty-four (24)
hours after the sheriff’s return of service and/or the records are received by the branch
selected by raffle and to which the records shall be transmitted immediately.
No power exists whose exercise is more delicate, which requires greater caution
and deliberation, or is more dangerous in a doubtful case, than the issuance of an
injunction. The respondents’ right to injunctive relief has not been clearly and unmistakably
demonstrated. The respondents have not presented evidence, testimonial or documentary,
other than the bare allegations contained in their pleadings, to support their claim of fraud
that brings about the irreparable injury sought to be avoided by their application for injunctive
relief. Thus, the RTC’s grant of the writ of preliminary injunction in favor of the respondents,
despite the lack of any evidence of a clear and unmistakable right on their part, constitutes
grave abuse of discretion amounting to lack of jurisdiction. (China Banking Corporation vs.
Sps. Ciriaco, G.R. No. 170038, July 11, 2012)
petitioners could not rightfully claim a vested right to an injunctive writ (Yu and Yuhico vs.
The Orchard Golf and Country Club, Inc. et.al, G.R. No. 150335, March 1, 2007). The
matter of the issuance of a writ of preliminary injunction is addressed to the sound
discretion of the trial court unless the court committed a grave abuse of discretion (Toyota
Motors Phil., Corporation Workers Association (TMPCWA) vs. Court of Appeals, September
24, 2003, 412 SCRA 69; Landbank of the Philippines vs. Continental Watchman Agency,
Inc., January 22, 2004, 420 SCRA 624; Carlos A. Gothong Lines, Inc.vs. Court of Appeals,
July 1, 2004, 433 SCRA 348). However, while generally the grant of a writ of preliminary
injunction rests on the sound discretion of the trial court taking cognizance of the case,
extreme caution must be observed in the exercise of such discretion (Tayag vs. Lacson,
March 25, 2004, 426 SCRA 282).
An injunction duly issued must be obeyed however erroneous the action of the court may
be until a higher court overrules such decision (Rosario Textile Mills, Inc. vs. Court of
Appeals, August 25, 2003, 409 SCRA 515).
MANDATORY INJUNCTION
Strict requisites for mandatory injunction. Since it commands the performance of an
act, a mandatory injunction does not preserve the status quo and is thus more cautiously
regarded than a mere prohibitive injunction (Gateway Electronics Corporation vs. Land Bank
of the Philippines, July 30, 2003, 407 SCRA 454,).
Forum Shopping
Where a party filed complaints in another Regional Trial Court for injunctive relief after
another RTC had set aside the writ of preliminary injunction issued by it, he is guilty of forum
shopping (Philippine Commercial International Bank vs. Court of Appeals, July 17, 2003, 406
SCRA 575).
5. Receivership
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Receiver defined
Receiver is a representative of the court appointed for the purpose of PRESERVING AND
CONSERVING the property in litigation and prevent its possible destruction or dissipation, if it
were left in the possession of any of the parties. He is not the representative of any or the
parties but by all of them to the end that their interests may be equally protected with the least
possible inconvenience and expense.
b. Requisites
Rule 59, Section 1. Appointment of receiver.
Upon a verified application, one or more receivers of the property subject of the action or
proceeding may be appointed by the court where the action is pending, or by the Court of
Appeals or by the Supreme Court, or a member thereof, in the following cases:
(a) When it appears from the verified application, and such other proof as the court may
require, that the party applying for the appointment of a receiver has an interest in the
property or fund which is the subject of the action or proceeding, and that such property or
fund is in danger of being lost, removed, or materially injured unless a receiver be appointed
to administer and preserve it;
(b) When it appears in an action by the mortgagee for the foreclosure of a mortgage that
the property is in danger of being wasted or dissipated or materially injured, and that its value
is probably insufficient to discharge the mortgage debt, or that the parties have so stipulated
in the contract of mortgage;
(c) After judgment, to preserve the property during the pendency of an appeal, or to dispose
of it according to the judgment, or to aid execution when the execution has been returned
unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the
judgment, or otherwise to carry the judgment into effect;
(d) Whenever in other cases it appears that the appointment of a receiver is the most
convenient and feasible means of preserving, administering, or disposing of the property in
litigation.
During the pendency of an appeal, the appellate court may allow an application for the
appointment of a receiver to be filed in and decided by the court of origin and the receiver
appointed to be subject to the control of said court.
Before issuing the order appointing a receiver the court shall require the applicant to file a
bond executed to the party against whom the application is presented, in an amount to be
fixed by the court, to the effect that the applicant will pay such party all damages he may
sustain by reason of the appointment of such receiver in case the applicant shall have
procured such appointment without sufficient cause; and the court may, in its discretion, at
any time after the appointment, require an additional bond as further security for such
damages.
Appointment of a Receiver
The general rule is that neither party to the litigation should be appointed as a receiver
without the consent of the other because a receiver is supposed to be an impartial and
disinterested person. (Alcantara v. Abbas, No. L-14890, September 30, 1963, 9 SCRA 54 ).
A clerk of court should not be appointed as a receiver as he is already burdened with his
official duties. (Abrigo v. Kayanan, No. L-28601, March 18, 1983, 121 SCRA 20)
Subject to the control of the court in which the action or proceeding is pending, a receiver
shall have the power to bring and defend, in such capacity, actions in his own name; to take
and keep possession of the property in controversy; to receive rents; to collect debts due to
himself as receiver or to the fund, property, estate, person, or corporation of which he is the
receiver; to compound for and compromise the same; to make transfers; to pay outstanding
debts; to divide the money and other property that shall remain among the persons legally
entitled to receive the same; and generally to do such acts respecting the property as the
court may authorize. However, funds in the hands of a receiver may be invested only by
order of the court upon the written consent of all the parties to the action.
No action may be filed by or against a receiver without leave of the court which appointed
him.
it should not be considered included, however, in the acts prohibited whenever banks
are “prohibited from doing business” during receivership and liquidation proceedings.
This is consistent with the purpose of receivership proceedings, i.e., to receive collectibles
and preserve the assets of the bank in substitution of its former management, and prevent
the dissipation of its assets to the detriment of the creditors of the bank. In both receivership
and liquidation proceedings, the bank retains its juridical personality notwithstanding the
closure of its business and may even be sued as its corporate existence is assumed by the
receiver or liquidator. The receiver or liquidator meanwhile acts not only for the benefit of the
bank, but for its creditors as well (Sps. Larrobis vs. Philippine Veterans Bank, G.R. No.
135706, October 12, 2004).
… all the acts of the receiver and liquidator pertain to petitioner, both
having assumed petitioner’s corporate existence. Petitioner cannot
disclaim liability by arguing that the non-payment of MOLINA’s just
wages was committed by the liquidators during the liquidation period.
However, the bank may go after the receiver who is liable to it for any culpable or
negligent failure to collect the assets of such bank and to safeguard its assets (Sps. Larrobis
vs. Philippine Veterans Bank, October 12, 2004, G.R. No. 135706 ).
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Where a bank, through the PDIC which was earlier designated by the Central Bank of the
Philippines a receiver (conservator), received a copy of a decision of the trial court but did
not bother filing a motion for partial reconsideration, appending thereto the orders of the
Monetary Board or a motion to set aside the earlier order of default, it is barred from relying
on the orders of the Monetary Board placing its assets and affairs under receivership and
ordering its liquidation (Rural Bank of Sta. Catalina, Inc. vs. Land Bank of the Philippines,
July 2004, 435 SCRA 183).
f. Termination of receivership
Rule 59, Sec. 8. Termination of receivership; compensation of receiver.
Whenever the court, motu proprio or on motion of either party, shall determine that the
necessity for a receiver no longer exists, it shall, after due notice to all interested parties and
hearing, settle the accounts of the receiver, direct the delivery of the funds and other property
in his possession to the person adjudged to be entitled to receive them, and order the
discharge of the receiver from further duty as such. The court shall allow the receiver such
reasonable compensation as the circumstances of the case warrant, to be taxed as costs
against the defeated party, or apportioned, as justice requires.
1. If a spouse, without just cause, abandons the other or fails to comply with his or his
obligations to the family, the aggrieved spouse may petition the court for receivership (Family
Code, Article 101).
2. The court may appoint a receiver of the property of the judgment obligor; and it may
also forbid the transfer or other disposition of, or any interference with, the property of the
judgment obligor not exempt from execution (R39S41).
3. After the perfection of an appeal, the trial court retains jurisdiction to appoint a
receiver of the property under litigation since his matter does not touch upon the subject of
the appeal (R41S9; Acuña v. Caluag, 101 Phil. 446 [1957]).
4. After final judgment, a receiver may be appointed as an aid to the execution of
judgment. (Philippine Trust Company v. Santamaria, 53 Phil. 463 [1929])
5. Appointment of a receiver over the property in custodia legis may be allowed
when it is justified by special circumstances as when it is reasonably necessary to secure
and protect the rights of the real owner (Dolar v. Sundiam, No. L-27631, April 30, 1971, 38
SCRA 616).
6. In a petition for corporate rehabilitation, when the court finds the same to be sufficient
in form and substance, the Court shall, within five days from filing of the petition appoint a
Rehabilitation Receive and fix his bond. (Rules of Procedure on Corporate Rehabilitation,
2008)
6. Replevin
What is replevin?
Replevin or delivery of personal property consists in the delivery, by order of the court, of
personal property by the defendant to the plaintiff upon filing of a bond.
1. A party praying for the recovery of possession of a personal property files with the court at
the commencement of the action or before answer an APPLICATION for a writ of replevin.
(R60S1)
3. The applicant must give a BOND, executed to the adverse party in double the value of
the property as stated in the affidavit (R60S2)
NOTES:
1) The applicant for a writ of replevin need not be the owner for it is enough that he has a
right to posses it. (Yang v. Valdez, G.R. No. 73317, August 31, 1989, 177 SCRA 141)
3) The defendant is entitled to the return of the property taken under a writ of replevin if the
following requisites are met:
N.B. In customs cases, the RTC has no jurisdiction to take cognizance of the petition for
replevin by respondents, issue the writ of replevin and order its enforcement. The
Collector of Customs had already seized the vehicles and set the sale thereof at public
auction. The RTC should have dismissed the petition for replevin at the outset. By granting
the plea of respondents (plaintiffs below) for the seizure of the vehicles and the transfer of
custody to the court, the RTC acted without jurisdiction over the action and the vehicles
subject matter thereof. The forfeiture of seized goods in the Bureau of Customs is a
proceeding against the goods and not against the owner. It is in the nature of a proceeding
in rem, i.e., directed against the res or imported articles and entails a determination of the
legality of their importation. In this proceeding, it is, in legal contemplation, the property itself
which commits the violation and is treated as the offender, without reference whatsoever to
the character or conduct of the owner (Asian Terminals, Inc. vs. Bautista-Ricafort, G.R. No.
166901, October 27, 2006).
The applicant must show by his own affidavit or that of some other person who personally
knows the facts:
a) That the applicant is the owner of the property claimed, particularly describing it, or is
entitled to the possession thereof;
b) That the property is wrongfully detained by the adverse party, alleging the cause of
detention thereof according to the best of his knowledge, information, and belief;
c) That the property has not been distrained or taken for a tax assessment or a fine
pursuant to law, or seized under a writ of execution or preliminary attachment, or
otherwise placed under custodia legis, or if so seized, that it is exempt from such seizure
or custody; and
d) The actual market value of the property.
The applicant must also give a bond, executed to the adverse party in DOUBLE THE
VALUE of the property as stated in the affidavit aforementioned, for the return of the property
to the adverse party if such return be adjudged, and for the payment to the adverse party of
such sum as he may recover from the applicant in the action.
Order of Replevin
1) Upon the filing of such affidavit and approval of the bond, the court shall issue an
ORDER and the corresponding WRIT OF REPLEVIN describing the personal property
alleged to be wrongfully detained and requiring the sheriff forthwith to take such property
into his custody. (R60S3)
2) A writ of replevin may be served anywhere in the Philippines
Redelivery bond
If the adverse party objects to the sufficiency of the applicant’s bond, or of the surety or
sureties thereon, he cannot immediately require the return of the property. But if he does not so
object, he may, at any time before the delivery of the property to the applicant, require the return
thereof, by filing with the court where the action is pending a redelivery bond—that is, a bond
executed to the applicant:
1. In DOUBLE THE VALUE of the property as stated in the applicant’s affidavit for the delivery
of the property to the applicant, if such delivery be adjudged; and
2. For the payment of such sum to him as may be recovered against the adverse party; and
3. By serving a copy of such bond on the applicant.(R60S5)
responsible for its delivery to the party entitled thereto upon receiving his fees and necessary
expenses for taking and keeping the same.
The sheriff is bound to keep the property when the applicant, on demand of the sheriff,
files a BOND approved by the court to INDEMNIFY the third-party claimant in a sum not
less than the value of the property under replevin (indemnity bond)
In case of disagreement as to such value, the court shall determine the same
No claim for damages for the taking or keeping of the property may be enforced against
the bond unless the action therefor is filed within one hundred twenty (120) days from
the date of the filing of the bond.
The sheriff shall not be liable for damages for the taking or keeping of such property, to
any such third-party claimant, if such bond is filed.
The proceedings set forth above shall not prevent such claimant or any third person from
vindicating his claim to the property, in the same or a separate action.
or prevent the applicant from claiming damages against a third-party claimant who filed a
frivolous or plainly spurious claim, in the same or a separate action.
When the writ of replevin is issued in favor of the Republic of the Philippines, or any
officer duly representing it, the filing of such bond shall not be required, and in case the
sheriff is sued for damages as a result of the attachment, he shall be represented by the
Solicitor General, and if held liable therefor, the actual damages adjudged by the court
shall be paid by the National Treasurer out of the funds to be appropriated for the
purpose.
• How commenced:
o COMPLAINT – Rules 62, 67, 68, 69, 70
a. interpleader
b. expropriation
c. foreclosure of real estate mortgage
d. partition
e. forcible entry and unlawful detainer
• Writs of injunction, certiorari, mandamus, prohibition, quo warranto and habeas corpus
issued by the RTCs are enforceable within their respective judicial regions (BP 129).
4. Interpleader
Definition
• A remedy whereby a person who has property in his possession or has an obligation to
render wholly or partially,
• without claiming any right in both,
• comes to court and asks that the defendants who have made conflicting claims upon the
same property or who consider themselves entitled to demand compliance with the
obligation
• be required to litigate among themselves in order to determine who is entitled to the
property or payment of the obligation (Beltran vs. PHHC, 1969).
Purpose
• To compel conflicting claimants to interplead and litigate their several claims among
themselves (R62S1)
• To protect a person not against double liability but against a double vexation in respect
of one’s liability (Beltran vs. PHHC)
Procedural Features
1. Upon the filing of the complaint, the court shall issue an order requiring the
conflicting claimants to interplead with one another. (R62S2 )
2. If the interest of justice so require.the court may direct in the same order that the
subject matter of the suit be paid or delivered to the court. (R62S2)
3. The summons shall be accompanied by copies of the complaint and order.(R62S3)
4. The defendants may file a motion to dismiss on the ground of the impropriety of the
interpleader action or on other appropriate grounds specified in Rule 16.(R62S4)
5. If the motion is denied. the movant may file his answer within the remaining period
but which shall not be less than five days in any event reckoned from the notice of
denial (R62S4)
6. Each defendant shall file his answer within 15 days from service of summons and
shall serve a copy of the answer not only on the plaintiff but also on the co-
defendants who may file their reply thereto.(R62S5)
7. The effect of failure to plead within the prescribed period is that, upon motion, the
defendant will be declared in default and thereafter, the court will render judgment
barring him from any claim in respect of the subject matter.(R62S5)
b. When to file
1. Interpleader was found to be a proper action in an action by a lessee who does not know
to whom to pay rentals due to conflicting claims on the property; (Pagkalinawan v.
Rodas, 80 Phil. 281 [1948]) and in an action by a bank where the purchaser of a
cashier’s check claims it was lost and another has presented it for payment. (Mesina v.
Intermediate Apéllate Court, No. L-70145, November 13, 1986, 145 SCRA 497) It was
however found to be improper in an action where defendants had conflicting claims
against the plaintiff (Beltran v. People’s Homesite and Housing Corporation, No. L-
25138, August 28, 1969, 29 SCRA 145), in an action where one of the defendants had
earlier sued the plaintiff and secured a judgment against him which has already become
final, the action being barred by laches or unreasonable delay (Wack Wack Golf and
Country Club, Inc. v. Won, No. L-23851, March 26; 1976, 70 SCRA 165.), and in an
action where there are no conflicting claims among the defendants, their respective
claims being separate and distinct from each other. Hence, the complaint for
interpleader may be dismissed for lack of cause of action (Vda. De Camilo vs. Aranio, L-
15653, September 29, 1961).
2. The parties in an interpleader action may file counterclaims, cross-claims, third party
complaints and responsive pleadings in the same action, as provided in the second
paragraph of Section 5 of Rule 62 in the interest of a complete adjudication of the
controversy and its incidents. (Arreza v. Diaz, Jr. , GR No. 133113, August 30, 2001).
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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.
Procedural Features
1. The petition must be filed before there is a breach of contract or violation of the statute of
ordinance. (Rule 63, Sec. 1)
2. A third-party complaint is not allowed. (Commissioner of Customs v. Cloribel, No. L-
21036, June 30, 1977, 77 SCRA 459))
3. Except in actions for quieting of title, the court’s action in an action for declaratory relief
is discretionary. Thus, 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 under the circumstances.
(Rule 63, Sec. 5)
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While the first, second, and third requirements appear to exist in this case, the fourth, fifth, and
sixth requirements, however, remain wanting.
As to the fourth requisite, there is serious doubt that an actual justiciable controversy or the
"ripening seeds" of one exists in this case.
A justiciable controversy refers to an existing case or controversy that is appropriate or ripe for
judicial determination, not one that is conjectural or merely anticipatory. Corollary thereto, by
"ripening seeds" it is meant that a dispute may be tried at its inception before it has accumulated
the asperity, distemper, animosity, passion, and violence of a full blown battle that looms ahead.
The concept describes a state of facts indicating imminent and inevitable litigation provided that
the issue is not settled and stabilized by tranquilizing declaration.
A perusal of private respondents’ petition for declaratory relief would show that they have failed
to demonstrate how they are left to sustain or are in immediate danger to sustain some direct
injury as a result of the enforcement of the assailed provisions of RA 9372 (Human Security Act
of 2007). As held in Southern Hemisphere Engagement Network, Inc. vs. Anti-Terrorism
Council (G.R. Nos. 178552, 178554, 178581, 178890, 179157 & 179461, October 5, 2010),
1Thus, in the same light that the Court dismissed the SC petitions in the Southern Hemisphere
cases on the basis of, among others, lack of actual justiciable controversy (or the ripening seeds
of one), the RTC should have dismissed private respondents’ petition for declaratory relief all
the same.
Private respondents also lack the required locus standi to mount their constitutional challenge
against the implementation of the above-stated provisions of RA 9372 since they have not
shown any direct and personal interest in the case. As to the fifth requisite for an action for
declaratory relief, neither can it be inferred that the controversy at hand is ripe for adjudication
since the possibility of abuse, based on the above-discussed allegations in private respondents’
petition, remain highly-speculative and merely theorized. A question is ripe for adjudication
when the act being challenged has had a direct adverse effect on the individual challenging it.
Finally, as regards the sixth requisite, the Court finds it irrelevant to proceed with a discussion
on the availability of adequate reliefs since no impending threat or injury to the private
respondents exists in the first place.
(Republic vs. Roque, G.R. No. 204603, September 24, 2013)
Believing that litigation would inevitably arise from this dispute, Citibank and BA each filed a
petition for declaratory relief before the Court of First Instance (now the Regional Trial Court) of
Rizal on July 19, 1979 and December 11, 1979, respectively. In their petitions, Citibank and BA
sought a declaratory judgment stating that the money placements they received from their head
office and other foreign branches were not deposits and did not give rise to insurable deposit
liabilities under Sections 3 and 4 of R.A. No. 3591 (the PDIC Charter) and, as a consequence,
the deficiency assessments made by PDIC were improper and erroneous. On June 29, 1998,
the Regional Trial Court, Branch 163, Pasig City (RTC) promulgated its Decision in favor of
Citibank and BA, ruling that the subject money placements were not deposits and did not give
rise to insurable deposit liabilities, and that the deficiency assessments issued by PDIC were
improper and erroneous. Therefore, Citibank and BA were not liable to pay the same. The Court
of Appeals affirmed the RTC decision, and the Supreme Court, in turn, affirmed the CA
decision. (Philippine Deposit Insurance Corporation vs.Citibank, N.A., G.R. No. 170290, April 11,
2012)
Even when the action is for a declaratory judgment, the court may grant such
affirmative relief as may be warranted by the evidence when the allegations in the
complaint are sufficient to make out a case for specific performance or recovery of
property with claims for damages, and the defendants did not raise an issue in the trial
court to challenge the remedy or the form of the action availed of. (Adlawan v. IAC, G.R.
No. 73022 February 9, 1989 )
A third-party complaint is not proper when the main case is for a declaratory relief.
This is because in a third-party complaint, the defendant or third-party plaintiff is
supposed to seek contribution, indemnity, subrogation or any other relief from the third-
party defendant in respect of the claim of the plaintiff against him. (Customs v. Cloribel,
G.R. No. L-21036 June 30, 1977)
The non-joinder of persons who may claim interest which may be affected by a
declaratory judgment is not a jurisdictional defect, as Section 2 of Rule 63 provides that
said declaration shall not prejudice their interests, unless otherwise provided in the
Rules of Court. (Baguio Citizens Action, Inc. v The City Council, etc. of Baguio City, L-
27247, April 20, 1983)
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B. Consolidation of ownership
It is settled that the buyer in a foreclosure sale becomes the absolute owner of the property
purchased if it is not redeemed during the period of one year after the registration of the sale.
As such, he is entitled to the possession of the said property and can demand it at any time
following the consolidation of ownership in his name and the issuance to him of a new
transfer certificate of title. The buyer can in fact demand possession of the land even during
the redemption period except that he has to post a bond in accordance with Section 7 of Act
No. 3135, as amended. No such bond is required after the redemption period if the property
is not redeemed. Possession of the land then becomes an absolute right of the purchaser as
confirmed owner. Upon proper application and proof of title, the issuance of the writ of
possession becomes a ministerial duty of the court.( BPI Family Savings Bank, Inc. vs.
Golden Power Diesel Sales Center, Inc., G.R. No. 176019, January 12, 2011 citing China
Banking Corporation v. Lozada, G.R. No. 164919, 4 July 2008, 557 SCRA 177, citing IFC
Service Leasing and Acceptance Corporation v. Nera, 125 Phil. 595 [1967].)
An action for declaratory relief presupposes that there has been no actual breach of the
instruments involved or of the rights arising thereunder. Since the purpose of an action for
declaratory relief is to secure an authoritative statement of the rights and obligations of the
parties under a statute, deed, or contract for their guidance in the enforcement thereof, or
compliance therewith, and not to settle issues arising from an alleged breach thereof, it may be
entertained before the breach or violation of the statute, deed or contract to which it refers. A
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petition for declaratory relief gives a practical remedy for ending controversies that have not
reached the state where another relief is immediately available; and supplies the need for a
form of action that will set controversies at rest before they lead to a repudiation of obligations,
an invasion of rights, and a commission of wrongs.
In the present case, petitioner filed a complaint for quieting of title after it was served a notice
to vacate but before it could be dispossessed of the subject properties. Notably, the Court of
Appeals, in CA-G.R. SP No. 43034, had earlier set aside the Order which granted partial
partition in favor of Eleuteria Rivera and the Writ of Possession issued pursuant thereto. And
although petitioner’s complaint is captioned as Quieting of Title and Damages, all that petitioner
prayed for, is for the court to uphold the validity of its titles as against that of respondents’. This
is consistent with the nature of the relief in an action for declaratory relief where the judgment in
the case can be carried into effect without requiring the parties to pay damages or to perform
any act.
Art. 476. Whenever there is a cloud on title to real property or any interest therein, by reason of
any instrument, record, claim, encumbrance or proceeding which is apparently valid or effective
but is in truth and in fact invalid, ineffective, voidable, or unenforceable, and may be prejudicial to
said title, an action may be brought to remove such cloud or to quiet the title.
An action may also be brought to prevent a cloud from being cast upon title to real property or any
interest therein.
Thus, the cloud on title consists of: (1) any instrument, record, claim, encumbrance or proceeding;
(2) which is apparently valid or effective; (3) but is in truth and in fact invalid, ineffective, voidable, or
unenforceable; and (4) may be prejudicial to the title sought to be quieted. The fourth element is not
present in the case at bar.
While it is true that TCT No. C-314537 in the name of Eleuteria Rivera is an instrument that
appeared to be valid but was subsequently shown to be invalid, it does not cover the same parcels
of land that are described in petitioner’s titles. (Phil-Ville Development and Housing Corporation vs.
Bonifacio, G.R. No. 167391, June 8, 2011)
Where the action is for quieting of title which is a similar remedy under the second paragraph
of Sec. 1 of Rule 63, the jurisdiction will depend upon the assessed value of the property.
Petitioners' contention that this case is one that is incapable of pecuniary estimation under the
exclusive original jurisdiction of the RTC pursuant to Section 19(1) of B.P. 129 is erroneous.
Actions for reconveyance of or for cancellation of title to or to quiet title over real
property are actions that fall under the classification of cases that involve "title to, or
possession of, real property, or any interest therein."
Section 19(2) of B.P. 129, as amended by R.A. No. 7691, is clear that the RTC shall exercise
jurisdiction "in all civil actions which involve the title to, or possession of, real property, or any
interest therein, where the assessed value of the property involved exceeds Twenty thousand
pesos (P20,000.00) or for civil actions in Metro Manila, where such value exceeds Fifty
thousand pesos (P50,000.00)." The law is emphatic that in determining which court has
jurisdiction, it is only the assessed value of the realty involved that should be computed.
In this case, there is no dispute that the assessed values of the subject properties as shown by
their tax declarations are less than P20,000.00. Clearly, jurisdiction over the instant cases
belongs not to the RTC but to the MTC. (Concha, Sr. vs. Lumocso, G.R. No. 158121,
December 12, 2007).
While original jurisdiction of the Supreme Court over petitions for certiorari, prohibition,
mandamus, quo warranto, and habeas corpus is shared with the Court of Appeals and the
RTCs, a direct invocation of the Supreme Court’s jurisdiction is allowed only when there are
special and important reasons therefor, clearly and especially set out in the petition. Among the
cases we have considered sufficiently special and important to be exceptions to the rule, are
petitions for certiorari, prohibition, mandamus and quo warranto against our nation’s lawmakers
when the validity of their enactments is assailed. The present petition is of this nature; its
subject matter and the nature of the issues raised – among them, whether legislative
reapportionment involves a division of Cagayan de Oro City as a local government unit – are
reasons enough for considering it an exception to the principle of hierarchy of courts.
Additionally, the petition assails as well a resolution of the COMELEC en banc issued to
implement the legislative apportionment that R.A. No. 9371 decrees. As an action against a
COMELEC en banc resolution, the case falls under Rule 64 of the Rules of Court that in
turn requires a review by this Court via a Rule 65 petition for certiorari. For these reasons,
we do not see the principle of hierarchy of courts to be a stumbling block in our consideration of
the present case. (Bagabuyo vs. Comelec, G.R. No. 176970, December 8, 2008 En Banc)
The fresh period rule does not apply to a petition for certiorari under Rule 64 as it
is not akin to a petition for review brought under Rule 42; hence, the period to file a Rule
64 petition should not be reckoned from the receipt of the order denying the motion for
reconsideration or the motion for new trial. Pursuant to Section 3 of Rule 64, it had only five
days from receipt of the denial of its motion for reconsideration to file the petition. Therefore,
since X received the decision denying its motion on July 14, 2014, it had only until July 19 to
file the petition. (Fortune Life Insurance Company, Inc. v. COA Proper, G.R. No. 213525,
January 27, 2015)
CERTIORARI
Definition:
The latin word “certiorari” literally means “to be informed of, to be made certain in
regard to…” (Black’s Law Dictionary) Certiorari will issue only to correct errors of
jurisdiction and not to correct errors of procedure or mistakes in the court’s findings
and conclusions. (Lee vs. People 393 SCRA 397; Microsoft Corporation vs. Best
Deal Computer Center, 389 SCRA 615)
Terminology
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If the Court intended to retain the authority of the proper courts to grant extensions under
Section 4 of Rule 65, the paragraph providing for such authority would have been preserved.
The removal of the said paragraph under the amendment by A.M. No. 07-7-12-SC of
Section 4, Rule 65 simply meant that there can no longer be any extension of the 60-day
period within which to file a petition for certiorari. (Laguna Metts Corporation vs. Court of
Appeals, G.R. No. 185220, July 27, 2009)
N.B.
Under Section 4, Rule 65 of the Rules of Court and as applied in Laguna Metts Corporation, the
general rule is that a petition for certiorari must be filed within sixty (60) days from notice of the
judgment, order, or resolution sought to be assailed. Under exceptional circumstances,
however, and subject to the sound discretion of the Court, said period may be extended
pursuant to Domdom, Labao and Mid-Islands Power cases The exceptions are: (a) to serve
substantial justice and (b) to safeguard strong public interest. (Republic vs. St. Vincent de
Paul Colleges, Inc., August 22, 2012).
Three (3) essential dates that must be stated in a petition for certiorari under Rule 65 –
First, the date when notice of the judgment, final order or resolution was received,
second, when a motion for new trial or reconsideration was filed, and third, when notice
of the denial thereof was received. This is for the purpose of determining its timeliness..
(Seastar Marine Services, Inc. vs. Bul-an, 444 SCRA 140 [2004]).
♦ To uphold the hierarchy of courts, A.M. No. 07-7-12 has also amended the second
paragraph of Sec. 4:
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Following the hierarchy of courts, no certiorari against the RTC shall be filed with
the Supreme Court. This will help prevent the clogging of the Supreme Court’s dockets as
litigants will be discouraged from filing petitions directly with the Supreme Court.
For election cases involving acts or omissions of a municipal or regional trial court, the
petition shall be filed exclusively with the Comelec (Relampagos vs. Comelec (243 SCRA
690, April 27, 1995).
Although the Supreme Court, the CA and the RTC have concurrence of
jurisdiction to issue writs of certiorari, the petitioner had no unrestrained
freedom to choose which among the several courts might his petition
for certiorari be filed in. In other words, he must observe the hierarchy of courts,
the policy in relation to which has been explicitly defined in Section 4 of Rule 65
concerning the petitions for the extraordinary writs of certiorari, prohibition and
mandamus (Banez, Jr. vs. Concepcion, G.R. No. 159508, August 29, 2012)
Judicial Courtesy
Rule of judicial courtesy, meaning holding in abeyance the execution of a judgment because
of a pending petition for certiorari with the higher court, even without the issuance of a
temporary restraining order.. So construed, in Eternal Garderns Memorial Corp. vs. CA (164
SCRA 421 [1988]), the role of judicial courtesy would apply ONLY if there is a string probability
that the issues before the higher court would be rendered MOOT AND MORIBUND as a result
of the continuation of the proceedings in the lower court. Unfortunately for complainants, this
circumstance is not present in the decision of respondent Judge to issue on April 19, 2000 a
second writ of execution. Clearly, the ill effects of this writ of execution, if any, would have been
remedied by restitution or reparation under Sec. 5, Rule 39
Amendment of Rule 65, Sec. 7 has resulted in the ABANDONMENT of the principle of
judicial courtesy:
However, the court may dismiss the petition if it finds the same
patently without merit or prosecuted manifestly for delay, or 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.
This amendment seeks to discourage litigants and their counsel from filing baseless petitions
for certiorari.
Late filing of petition for certiorari – for being filed one day late, the Court of Appeals;
dismissed petition for certiorari of NLRC decision. The Supreme Court upheld the dismissal.
Deviations from the rule cannot be tolerated. Its observance cannot be left to the whims and
caprices of the parties (LTS Philippines Corp. vs. Maliwat, 448 SCRA 254 [2005]).
♦ Documents to accompany petition: (a) certified true copy of the judgment, order or
resolution subject of the petition. (b) copies of all relevant pleadings and documents and (c)
sworn certification of non-forum shopping (Caingat vs. NLRC, G.R. No. 154308, March 10,
2005). The requirement for certified true copies refers to the judgment, order or resolution
(Air Philippines vs. Zamora, G.R. No. 148247, August 7, 2006). The use of mere
photocopies of certified true copies of judgments or orders subject matter of a petition
renders that petition deficient and subject to dismissal (Pinamakasarap Corporation vs.
NLRC, G.R. No. 155058, September 26, 2006).
If aggrieved, even a non-party may institute a petition for certiorari (Chua vs. CA,
443 SCRA 259 [2004]).
Not available as a remedy for the correction of the acts performed by a sheriff during the
execution process, which acts are neither judicial nor quasi-judicial but are purely
ministerial functions. Prohibition is the proper remedy (Pamana, Inc. vs. CA, 460 SCRA
133 [2005]).
♦ A petition for certiorari must be based on jurisdictional grounds because as long as the
respondent acted with jurisdiction, any error commited by him or it in the exercise thereof will
amount to nothing than an error of judgment which may be reviewed by or corrected by
appeal (Estrera vs. CA, G.R. No. 154235, August 16, 2006).
♦ It is patently clear that petitioners do not question whether the MTC has jurisdiction or authority to
resolve the issue of confidentiality of ITRs. Rather, they assail the wisdom of the MTC’s very
judgment and appreciation of the ITR as not confidential. Specifically, they claim that the ruling
violated the provisions of the NIRC on the alleged rule on confidentiality of ITRs.
Based on the definitions above, we conclude similarly as the RTC that if there is an error to
speak of the error relates only to a mistake in the application of law, and not to an error of
jurisdiction or grave abuse of discretion amounting to excess of jurisdiction. The only error
petitioners raise refers to Judge Clavecilla’s mistake of not applying Section 71, which allegedly
prohibits the production of ITRs because of confidentiality. Certainly, as correctly posited by the
court a quo, if every error committed by the trial court is subject to certiorari, trial would never come
to an end, and the docket will be clogged ad infinitum. (Dipad vs. Olivan G.R. No. 168771, July 25,
2012)
♦ Since the issue is jurisdiction, an original action for certiorari may be directed against an
interlocutory order of the lower court prior to an appeal from the judgment (New Frontier
Sugar Corporation vs. RTC of Iloilo, G.R. No. 165001, January 31, 2007).
♦ Petitions for certiorari, prohibition and mandamus are not available against any interlocutory
order under the Rule on Summary Procedure (Sec. 19 (g)), in a petition for a writ of amparo
(Sec. 11 (l), Rule on the Writ of Amparo), in a petition for a writ of habeas data (Sec. 13 (l),
Rule on the Writ of Habeas Data), and in small claims cases (Sec. 14 (g), Rule of Procedure
for Small Claims Cases).By implication, such remedies are available against the judgment.
execution. Nevertheless, the proscription on appeals in small claims cases, similar to other
proceedings where appeal is not an available remedy, does not preclude the aggrieved party
from filing a petition for certiorari under Rule 65 of the Rules of Court
Owing to its nature, it is therefore incumbent upon petitioner to establish that
jurisdictional errors tainted the MTCC Decision. The RTC, in turn, could either grant or
dismiss the petition based on an evaluation of whether or not the MTCC gravely abused its
discretion by capriciously, whimsically, or arbitrarily disregarding evidence that is material to the
controversy.
In view of the foregoing, the Court thus finds that petitioner correctly availed of the remedy of
certiorari to assail the propriety of the MTCC Decision in the subject small claims case, contrary
to the RTC’s ruling.
Hence, considering that small claims cases are exclusively within the jurisdiction of the
Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts, and Municipal
Circuit Trial Courts, certiorari petitions assailing its dispositions should be filed before their
corresponding Regional Trial Courts. This petitioner complied with when it instituted its petition
for certiorari before the RTC which, as previously mentioned, has jurisdiction over the same. In
fine, the RTC erred in dismissing the said petition on the ground that it was an improper remedy,
and, as such, RTC Case No. 11-13833 must be reinstated and remanded thereto for its proper
disposition.(A.L. Ang Network, Inc. vs. Mondejar, G.R. No. 200804, January 22, 2014)
A mere denial of an application for an ex parte order for the seizure of evidence is not
indicative of grave abuse of discretion where petitioner failed to point out specific
instances where grave abuse of discretion was allegedly commmitted and how the
respondent court supposedly exercised its power in a despotic, capricious or whimsical
manner (Microsoft Corporation vs. Best Deal Computer Center Corporation, 389 SCRA
615 [2002]).
A judge gravely abuses his discretion when he extends by twenty (20) days the 72-hour
restraining order he initially issued because In no case shall the total period of effectivity
of the temporary restraining order exceed 20 days (Beso vs. Aballe, 326 SCRA 100
[2000]).
There is grave abuse of discretion where the trial court fails to determine a factual
controversy before issuing a writ of demolition. Failure to do so is to disregard basic
principles of due process because before demolition could be effected, the parties
concerned must be heard ( Bermudez vs.Gonzales, 347 SCRA 611 [2000]).
The CA is empowered under its certiorari jurisdiction to annul and declare void the
questioned resolutions of the Secretary of Justice, but only on two grounds – lack of
jurisdiction and grave abuse of discretion amounting to lack of jurisdiction. The power to
reverse and set aside partakes of an appellate jurisdiction which the CA does not have
over judgments of the Secretary of Justice exercising quasi-judicial functions (Buan vs.
Matugas, G.R. No. 161179, August 7, 2007).
A judgment or final order of the Court of Appeals on the petition for certiorari against the
Secretary of Justice is reviewable by the Supreme Court by a petition for review under
Rule 45, not the original action for certiorari under Rule 65. It is elementary that a writ of
certiorari under Rule 65 where the remedy of appeal (like Rule 45) is available precludes
certiorari (Spouses Balanguan vs. CA, G. R. No. 174350, August 13, 2008).
♦ Generally, if appeal is available, certiorari cannot be resorted to. Appeal and certiorari
mutually exclusive and not alternative or successive.
Certiorari filed instead of appeal during period of appeal did not toll period or prevent
judgment from becoming final (Del Rosario vs. Galagot, 166 SCRA 429).
Certiorari not substitute for lost appeal. Existence and availability of the right to appeal
prohibits the resort to certiorari even if the error ascribed to the court is lack or excess of
jurisdiction or grave abuse of discretion in the findings of fact or law set out in the
decision (Bugarin vs. Palisoc, G.R. No. 157985, December 2, 2005,476 SCRA 587).
Exceptions:
Availability of appeal does not foreclose recourse to certiorari where appeal not
adequate, or equally beneficial, speedy and sufficient (PNB vs. Sayoc, 292
SCRA 365).
Rule may be relaxed when rigid application will result in manifest failure or
miscarriage of justice (Mejares vs. Reyes, 254 SCRA 425).
Where remedies not incompatible, filing of certiorari not abandonment of
appeal. Appeal is from decision in main case while certiorari is against
order denying motion for new trial (Lansang, Jr. vs. CA, 184 SCRA 230;
St. Peter Memorial Park vs. Campos, 63 SCRA 180).
An appeal from a judgment does not bar a certiorari petition against the order
granting execution pending appeal and the issuance of the writ of execution
(Mañacop vs. Equitable PCIBank, 468 SCRA 256).
However, a party is not allowed to question a decision on the merits and also
invoke certiorari. Filing of a petition for certiorari under Rule 65 and ordinary
appeal under Rule 41 cannot be allowed because one remedy would
necessarily cancel each other (Id.).
It is the danger of failure of justice without the writ, not the mere absence of all
legal remedies, that must determine the propriety of certiorari (Seven Brothers
Shipping Corp. vs. CA, 246 SCRA 33 [1995]).
♦ In many instances, the Supreme Court has treated a petition for review under Rule 45 as a
petition for certiorari under Rule 65, where the subject of the recourse was one of jurisdiction,
or the act complained of was perpetrated by a court with grave abuse or discretion
amounting to lack or excess of jurisdiction but when the petition denominated as a Rule 45
petition neither involves any issue of jurisdiction nor a grave abuse of discretion on the part
of the Court of Appeals, it should be dismissed outright (China Banking Corporation vs. Asian
Construction and Development Corporation, G.R. No. 158271, April 8, 2008).
Although the RTC has the authority to annul final judgments, such authority pertains only to
final judgments rendered by inferior courts and quasi-judicial bodies of equal ranking
with such inferior courts. Given that DARAB decisions are appealable to the CA, the
inevitable conclusion is that the DARAB is a co-equal body with the RTC and its decisions are
beyond the RTC’s control (Springfield Development Corp. vs. Presiding Judge of RTC of
Misamis Oriental, Branch 40, G.R. No. 142628, February 6, 2007).
Requisites:
1. Tribunal, board or officer exercises judicial or quasi-judicial functions
2. Tribunal, board or officer has acted without or in excess of jurisdiction or with grave
abuse of discretion amounting to lack or excess of jurisdiction
3. NO APPEAL or any plain, speedy and adequate remedy in the ordinary course of law
for the purpose of annulling or modifying the proceeding
Certiorari filed instead of appeal during the period of appeal did not toll the period or
prevent judgment from becoming final (Del Rosario vs. Galagot, Galagot, 166 SCRA
429[1998]).
If remedy of appeal had already been lost by petitioner’s own neglect or error in choice
of remedies, certiorari will not lie as substitute or tool to shield petitioner from adverse
consequences of such neglect of error (Professional Regulations Commission vs. CA, 292
SCRA 155[1998]).
Exceptions:
a. when public welfare and advancement of public policy dictate
b. when broader interest of justice so requires
c. when writs issued are null and void
d. when questioned order amounts to an oppressive exercise of judicial authority
e. where appeal is not adequate, speedy and effective
>Availability of appeal does not foreclose recourse to certiorari where appeal is not
adequate, or equally beneficial, speedy and sufficient (PNB vs. Sayoc, 292 SCRA 365
[1998]).
>While general rule is that special civil action of certiorari may not be used as substitute
for lapsed appeal, rule may be relaxed when rigid application will result in manifest failure or
miscarriage of justice (Mejares vs. Reyes, 254 SCRA 425 [1992]).
> An appeal from the judgment does not bar a certiorari petition against the order
granting execution pending appeal and the concomitant issuance of a writ of execution.
Appeal would not be an adequate remedy from such premature execution when the same is
not founded on good reasons (Manacop vs. Equitable PCIBank, 468 SCRA 256, [2005])
> Simultaneous filing of a petition for certiorari under Rule 65 and an ordinary
appeal under Rule 41 cannot be allowed since one remedy would necessarily cancel each
other. For certiorari to prosper, it is not enough that the trial court committed grave abuse of
discretion amounting to lack or excess of jurisdiction; the requirement that there be no appeal,
or any plain, speedy and adequate remedy in the ordinary course of law must also be satisfied.
This is true even if the error ascribed to the trial court is lack of jurisdiction, etc. While it may be
true that a judgment or final order was rendered under circumstances that would otherwise
justify resort to a special civil action, the latter would be unavailing if there is an appeal, etc. If
the court has jurisdiction over the subject matter and of the persons, its ruling upon all questions
involved are within its jurisdiction and may be corrected only by appeal from the decision
(Manacop vs. Equitable PCIBank, 468 SCRA 256 [2005])
PROHIBITION
The writ of prohibition does not lie against the exercise of a quasi-legislative function.
Since in issuing the questioned IRR of R.A. No. 9207, the National Government Administration
Committee was not exercising judicial, quasi-judicial or ministerial function, which is the scope
of a petition for prohibition under Section 2, Rule 65 of the 1997 Rules of Civil Procedure, the
instant prohibition should be dismissed outright. Where the principal relief sought is to invalidate
an IRR, petitioners’ remedy is an ordinary action for its nullification, an action which properly
falls under the jurisdiction of the Regional Trial Court. (Holy Spirit Homeowners Association vs.
Defensor, G.R. No. 163980, August 3, 2006).
To prevent unlawful and oppressive exercise of legal authority and to provide for a fair
and orderly administration of justice.
It is directed against proceedings that are done by
It is a PREVENTIVE remedy, to restrain the doing of some act to be done. Not intended
to provide a remedy for acts already accomplished.
MANDAMUS
A writ of mandamus commanding the respondents to require PUVs to use CNG is unavailing.
Mandamus is available only to compel the doing of an act specifically enjoined by law as a
duty. Here, there is no law that mandates the respondents LTFRB and the DOTC to order owners
of motor vehicles to use CNG. At most the LTFRB has been tasked by E.O. No. 290 in par. 4.5
(ii), Section 4 “to grant preferential and exclusive Certificates of Public Convenience (CPC) or
franchises to operators of NGVs based on the results of the DOTC surveys” (Henares, Jr. vs.
Land Transportation Franchising and Regulatory Board, G.R. No. 158290, October 23, 2006
A key principle to be observed in dealing with petitions for mandamus is that such
extraordinary remedy lies to compel the performance of duties that are purely ministerial in
nature, not those that are discretionary. A purely ministerial act or duty is one that an officer or
tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate
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of a legal authority, without regard to or the exercise of its own judgment upon the propriety or
impropriety of the act done. The duty is ministerial only when its discharge requires neither
the exercise of official discretion or judgment. ( Special People, Inc. Foundation vs. Canda,
G.R.No. January 14, 2013)
Mandamus applies as a remedy only where petitioner’s right is founded clearly in law
and not when it is doubtful.The writ will not be granted where its issuance would be
unavailing, nugatory, or useless. If the law imposes a duty upon a public officer and gives him
the right to decide how or when the duty shall be performed, such duty is discretionary and not
ministerial.
There is no doubt that under E.O. No. 826, Administrative Order No. 003, Series of 1981,
and Administrative Order No. 002, Series of 1991, petitioner is vested with discretion on
whether or not to grant an application for the establishment of a new plant, the expansion of
capacity, the relocation or upgrading of efficiencies of such desiccated coconut processing
plant. Relative to the renewal of a certificate of registration, petitioner may refuse a registration
unless the applicant has complied with the procedural and substantive requirements for
renewal. However, once the requirements are complied with, the renewal of registration
becomes a ministerial function of petitioner.(Philippine Coconut Authority vs. Primex Coco
Products, Inc., G.R. No. 163088, July 20, 2006 )
where the act sought to be performed involves the exercise of discretion (Sharp International
Marketing vs. CA. 201 SCRA 299 [1991])
When can mandamus issue to compel a discretionary act? – when there is grave abuse
of discretion.
Ordinarily, mandamus will not prosper to compel a discretionary act. But where there is
“gross abuse of discretion, manifest injustice or palpable excess of authority” eguivalent to
denial of a settled right to which petitioner is entitled, and there is no other plain, speedy and
adequate remedy, the writ shall issue ( First Philippine Holdings vs. Sandiganbayan, 253 SCRA
30 [1996]).
Continuing mandamus
The concept of continuing mandamus was first introduced in Metropolitan Manila Development
Authority v. Concerned Residents of Manila Bay (G.R. Nos. 171947-48, December 18, 2008, 574
SCRA 661)..Now cast in stone under Rule 8 of the Rules, the writ of continuing mandamus enjoys a
distinct procedure than that of ordinary civil actions for the enforcement/violation of environmental
laws, which are covered by Part II (Civil Procedure). Similar to the procedure under Rule 65 of the
Rules of Court for special civil actions for certiorari, prohibition and mandamus, Section 4, Rule 8 of
the Rules requires that the petition filed should be sufficient in form and substance before a court
may take further action; otherwise, the court may dismiss the petition outright.
The writ of continuing mandamus is a special civil action that may be availed of "to compel the
performance of an act specifically enjoined by law." (Rules of Procedure for Environmental Cases,
Rule 8, Section 8).The petition should mainly involve an environmental and other related law, rule or
regulation or a right therein. The RTC’s mistaken notion on the need for a final judgment, decree or
order is apparently based on the definition of the writ of continuing mandamus under Section 4, Rule
1 of the Rules.
The final court decree, order or decision erroneously alluded to by the RTC actually pertains to the
judgment or decree that a court would eventually render in an environmental case for continuing
mandamus and which judgment or decree shall subsequently become final
A writ of continuing mandamus is, in essence, a command of continuing compliance with a final
judgment as it "permits the court to retain jurisdiction after judgment in order to ensure the
successful implementation of the reliefs mandated under the court’s decision."
(Dolot vs.Paje, G.R. No. 199199, August 27, 2013)
d. Injunctive relief
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.
Certiorari as a Mode of Appeal (Rule 45) Certiorari as a Special Civil Action (Rule 65)
Called petition for review on certiorari, is a A special civil action that is an original action
mode of appeal, which is but a continuation of and not a mode of appeal, and not a part of the
the appellate process over the original case; appellate process but an independent action.
Seeks to review final judgments or final orders; May be directed against an interlocutory order
of the court or where not appeal or plain or
speedy remedy available in the ordinary course
of law
Raises only questions of law; Raises questions of jurisdiction because a
tribunal, board or officer exercising judicial or
quasi-judicial functions has acted without
jurisdiction or in excess of jurisdiction or with
grave abuse of discretion amounting to lack of
jurisdiction;
Filed within 15 days from notice of judgment or Filed not later than 60 days from notice of
final order appealed from, or of the denial of judgment, order or resolution sought to be
petitioner’s motion for reconsideration or new assailed and in case a motion for
trial; reconsideration or new trial is timely filed,
whether such motion is required or not, the 60
day period is counted from notice of denial of
said motion;
Extension of 30 days may be granted for Extension no longer allowed;
justifiable reasons
Does not require a prior motion for Motion for Reconsideration is a condition
reconsideration; precedent, subject to exceptions
Stays the judgment appealed from; Does not stay the judgment or order subject of
the petition unless enjoined or restrained;
Parties are the original parties with the The tribunal, board, officer exercising judicial or
appealing party as the petitioner and the quasi-judicial functions is impleaded as
adverse party as the respondent without respondent
impleading the lower court or its judge;
Filed with only the Supreme Court May be filed with the Supreme Court, Court of
Appeals, Sandiganbayan, or Regional Trial
Court
(Prohibition and Mandamus distinguished from Injunction; when and where to file
petition)
Prohibition Mandamus Injunction
Prohibition is an extraordinary Mandamus is an extraordinary Main action for injunction seeks
writ commanding a tribunal, writ commanding a tribunal, to enjoin the defendant from
corporation, board or person, corporation, board or person, to the commission or continuance
whether exercising judicial, do an act required to be done: of a specific act, or to compel a
quasi-judicial or ministerial (a) When he unlawfully particular act in violation of the
functions, to desist from further neglects the performance of an rights of the applicant.
proceedings when said act which the law specifically Preliminary injunction is a
proceedings are without or in enjoins as a duty, and there is provisional remedy to preserve
excess of its jurisdiction, or with no other plain, speedy and the status quo and prevent
abuse of its discretion, there adequate remedy in the future wrongs in order to
being no appeal or any other ordinary course of law; or preserve and protect certain
plain, speedy and adequate interests or rights during the
remedy in the ordinary course (b) When one unlawfully pendency of an action.
of law (Sec. 2, Rule 65). excludes another from the use
and enjoyment of a right or
office to which the other is
entitled (Sec. 3, Rule 65).
Prohibition Injunction
Always the main action May be the main action or just a provisional
remedy
Directed against a court, a tribunal Directed against a party
exercising judicial or quasi-judicial functions
Ground must be the court acted without or Does not involve a question of jurisdiction
in excess of jurisdiction
Prohibition Mandamus
Exceptions:
(a) where the order is a patent nullity, as where the court a quo has no jurisdiction;
(b) where the questions raised in the certiorari proceeding have been duly raised and
passed upon by the lower court, or are the same as those raised and passed upon in the
lower court;
(c) where there is an urgent necessity for the resolution of the question and any further
delay would prejudice the interests of the government or the petitioner or the subject
matter of the action is perishable;
(d) where, under the circumstances, a motion for reconsideration would be useless;
(e) where petitioner was deprived of due process and there is extreme urgency for relief;
(f) where, in a criminal case, relief from an order of arrest is urgent and the granting of
such relief by the trial court is improbable;
(g) where the proceedings in the lower court are a nullity for lack of due process;
(h) where the proceedings was ex parte or in which the petitioner had no opportunity to
object; and
(i) where the issue raised is one purely of law or where public interest is
involved.
(j) where judicial intervention is urgent
(k) where its application may cause great and irreparable damage
(l) failure of a high government official from whom relief is sought to act on the matter
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(m) when the issue of non-exhaustion of administrative remedies has been rendered
moot
(n) where special circumstances warrant immediate and more direct action (Novateknika
Land Corporation vs. Philippine National Bank, G.R. No. 194104, March 13, 2013; Republic
vs. Bayao, G.R. No. 179492, June 5, 2013; Tan. Jr. vs. Sandiganbayan, 242 SCRA 452;
Marawi Marantao General Hospital vs. CA, 349 SCRA 321).
Molina was not strictly bound by the rule on exhaustion of administrative remedies. His
failure to file the motion for reconsideration did not justify the immediate dismissal of the
petition for certiorari, for we have recognized certain exceptional circumstances that
excused his non-filing of the motion for reconsideration. Considering that the matter brought
to the CA - whether the act complained against justified the filing of the formal charge for
grave misconduct and the imposition of preventive suspension pending investigation - was a
purely legal question due to the factual antecedents of the case not being in dispute.
Hence, Molina had no need to exhaust the available administrative remedy of filing the
motion for reconsideration. (Garcia v. Molina, G.R. No. 165223, Jan. 11, 2016) - LPB
8. Quo Warranto
What is quo warranto?
A petition for quo warranto is a proceeding to determine the right of a person to the use or
exercise of a franchise or office and to oust the holder from its enjoyment, if his claim is not
well-founded, or if he has forfeited his right to enjoy the privilege (Mendoza vs. Allas, 302
SCRA 623 [1999]).
Actions of quo warranto against persons who usurp an office in a corporation, which were
formerly cognizable by the Securities and Exchange Commission under PD 902-A, have
been transferred to the courts of general jurisdiction. But this does not change the fact that
Rule 66 of the 1997 Rules of Civil Procedure does not apply to quo warranto cases
against persons who usurp an office in a private corporation (Calleja vs. Panday, G.R.
No. 168696. February 28, 2006).
In the instance in which the petition for quo warranto is filed by an individual in his own
name, he must be able to prove that he is entitled to the controverted public office, position,
or franchise; otherwise, the holder of the same has a right to the undisturbed possession
thereof. In actions for quo warranto to determine title to a public office, the complaint, to be
sufficient in form, must show that the plaintiff is entitled to the office. An action for quo
warranto may be dismissed at any stage when it becomes apparent that the plaintiff is
not entitled to the disputed public office, position or franchise. Hence, the RTC is not
compelled to still proceed with the trial when it is already apparent on the face of the petition
for quo warranto that it is insufficient. The RTC may already dismiss said petition at this
point. (Feliciano vs. Villasin, G.R. No. 174929, June 27, 2008 En Banc).
govenrment officials which contributed to the delay in the filing of the complaint for
reinstatement (Cristobal vs. Melchor, 78 SCRA 175 [1977])
Venue
1. Supreme Court;
2. Court of Appeals; or
3. RTC with jurisdiction over area where respondent of any of respondents reside
EXC. When Solicitor General files the action, it may be brought in the RTC of Manila
(Rule 66, Sec. 7)
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.
9. Expropriation
a. Matters to allege in complaint for expropriation
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Contents of Complaint
1. Right and purpose of expropriation;
2. Description of the real or personal property sought to be expropriated;
3. All persons owning or claiming to own or occupying any part or interest therein must be
named as defendants, showing, as far as practicable, the separate interest of each
defendants;
4. If the title of the property to be expropriated is in the name of the Republic of the Philippines,
although occupied by private individuals, or if the title is obscure or doubtful, averment to that
effect shall be made in the complaint. (Rule 67, Section 1)
c. When plaintiff can immediately enter into possession of the real property, in
relation to RA 8974
Expropriation procedures under Republic Act No. 8974 and Rule 67 of the Rules of
Court speak of different procedures, with the former specifically governing expropriation
proceedings for national government infrastructure projects. (Republic Of The Philippines,
Represented By The Toll Regulatory Board vs. Holy Trinity Realty Development Corp., G.R.
No. 172410, April 14, 2008)
The most crucial difference between Rule 67 and Rep. Act No. 8974 concerns the
particular essential step the Government has to undertake to be entitled to a writ of
possession. To be entitled to a writ of possession, Rule 67 merely requires the Government
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to deposit with an authorized government depositary the assessed value of the property for
expropriation. (Sec. 2)
On the other hand, Rep. Act No. 8974 requires that the Government make a direct
payment to the property owner before the writ may issue. Moreover, such payment is based
on the zonal valuation of the BIR in the case of land, the value of the improvements or
structures under the replacement cost method, or if no such valuation is available and in
cases of utmost urgency, the proffered value of the property to be seized. (Republic vs.
Gingoyon, G.R. No. 166429, December 19, 2005)
It is the plain intent of Rep. Act No. 8974 to supersede the system of deposit under Rule
67 with the scheme of "immediate payment" in cases involving national government
infrastructure projects. (Republic vs. Gingoyon, G.R. No. 166429, December 19, 2005 )
At the same time, Section 14 of the Implementing Rules recognizes the continued
applicability of Rule 67 on procedural aspects when it provides "all matters regarding
defenses and objections to the complaint, issues on uncertain ownership and conflicting
claims, effects of appeal on the rights of the parties, and such other incidents affecting the
complaint shall be resolved under the provisions on expropriation of Rule 67 of the Rules of
Court." (Republic vs. Gingoyon, G.R. No. 166429, December 19, 2005)
Under Rule 67, the only requirement for immediate possession is notice to the owner of
the property and deposit of the amount equivalent to the assessed value of the property.
(National Power Corporation v. Jocson, GR Nos. 94193-99, February 25, 1992) The
issuance of the writ of possession becomes a ministerial duty of the court if the preliminary
deposit has already been made by the expropriator. (Biglang-Awa vs. Bacalla, GR Nos.
139927 and 139936, November 22, 2000)
The court has the jurisdiction to determine, in the same expropriation proceedings,
conflicting claims of ownership over the property involved and declare the lawful owner
thereof. (Republic v. CFI of Pampangs, et.al., L-27006, June 30, 1970)
In the event the judgment of expropriation is reversed by the appellate court and the
case is remanded to the lower court with the mandate to determine the damages caused to
the landowner, such landowner has the option of proving such damages either in the same
expropriation case or in a separate action instituted for that purpose (MWV vs. De los
Angeles, 55 Phil. 776), as the judgment denying the right of expropriation is not res judicata
on the issue of damages arising from such illegal expropriation (Republic vs. Baylosis 109
Phil. 580)
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.
f. Order of Expropriation
Rule 67, 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.
Before a LOCAL GOVERNMENT UNIT may enter into the possession of the property
sought to be expropriated, it must (1) file a complaint for expropriation sufficient in form and
substance in the proper court and (2) deposit with the said court at least 15% of the
property's fair market value based on its current tax declaration. The law (RA 7160) does
not make the determination of a public purpose a condition precedent to the issuance
of a writ of possession.( Francia, Jr. vs. Municipality of Meycauayan, G.R. No. 170432,
March 24, 2008).
NOTE: Where the taking preceded the filing of the complaint for expropriation, just
compensation must be determined at the time the expropriating authority takes possession
thereof and not as of the institution of the proceedings (Republic of the Philippines vs. Sarabia,
G.R. No. 157847, August 25, 2005, 468 SCRA 142)..Where the filing of the complaint preceded
the plaintiff’s entry into the property, the just compensation is to be ascertained as of the time of
said fiing (National Power Corporation vs. De la Cruz, G.R. No. 156093, February 2, 2007).
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)
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)
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.
NOTES:
EXPROPRIATION
Distinction between eminent domain and expropriation - Eminent domain is the RIGHT.
Power of the state to take or authorize the taking of any property within its jurisdiction for public
use without the owner’s consent. Inherent in sovereignty and exists in a sovereign state without
any recognition thereof in the Constitution. Possessed by the State. By delegation, may also be
possessed by local govts, other public entities, and public utilities.
Expropriation is the PROCEDURE for enforcing said right.
the fair market value at the time of taking the property.” (The City of Cebu vs. Spouses Degamo,
G. R. No. 142971, May 7, 2002).
Note: An action to invalidate the mortgage or the foreclosure sale is not a valid ground to
oppose issuance of writ of possession.
As a rule, any question regarding the validity of the mortgage or its foreclosure cannot be a
legal ground for refusing the issuance of a writ of possession. Regardless of whether or not
there is a pending suit for annulment of the mortgage or the foreclosure itself, the purchaser is
entitled to a writ of possession, without prejudice of course to the eventual outcome of said
case. (Sps. Arquiza vs. Court of Appeals, G.R. No. 160479, June 8, 2005)
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
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.
d. Deficiency judgment
(1) Instances when court cannot render deficiency judgment
Rule 68, 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 therefor, there being a rebate of
interest where such rebate is proper.
Notes:
A writ of possession is “a writ of execution employed to enforce a judgment to recover
the possession of land. It commands the sheriff to enter the land and give possession of it
to the person entitled under the judgment.”
A writ of possession may be issued under the following instances: (1) in land registration
proceedings under Section 17 of Act 496; (2) in a judicial foreclosure, provided the debtor is
in possession of the mortgaged realty and no third person, not a party to the foreclosure suit,
had intervened; (3) in an extrajudicial foreclosure of a real estate mortgage under Section 7
of Act No. 3135, as amended by Act No. 4118; and (4) in execution sales (last paragraph of
Section 33, Rule 39 of the Rules of Court).
The present case falls under the third instance. Under Section 7 of Act No. 3135, as
amended by Act No. 4118, a writ of possession may be issued either (1) within the one-year
redemption period, upon the filing of a bond, or (2) after the lapse of the redemption period,
without need of a bond. (PNB vs. Sanao Marketing Corporation, G.R. No. 153951, July 29,
2005)
The venue of the action for the NULLIFICATION OF THE FORECLOSURE SALE is
properly laid with the Malolos RTC although two of the properties together with the
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Bulacan properties are situated in Nueva Ecija. The venue of real actions affecting
properties found in different provinces is determined by the SINGULARITY or PLURALITY of
the transactions involving said parcels of land. Where said parcels are the object of one and the
same transaction, the venue is in the court of any of the provinces wherein a parcel of land is
situated (United Overseas Bank Phils. (formerly Westmont Bank) vs. Rosemoor Mining &
Development Corp., G.R. Nos. 159669 & 163521, March 12, 2007).
Unlike Rule 68, which governs judicial foreclosure sales, neither Act No. 3135 as
amended, nor A.M. No. 99-10-05-0 grants to junior encumbrancers the right to receive the
balance of the purchase price. The only right given to second mortgagees in said issuances
is the right to redeem the foreclosed property pursuant to Section 6 of Act No. 3135, as
amended by Act No. 4118 (Monzon vs. Relova, G.R. No. 171827, September 17, 2008).
Unlike a judicial foreclosure of real estate mortgage under Rule 68 of the Rules of Court
where an action for foreclosure is brought before the RTC where the mortgaged property or any
part thereof is situated, any property brought within the ambit of Act 3135 is foreclosed by the
filing of a petition, not with any court of justice, but with the office of the sheriff of the province
where the sale is to be made. As such, a third person in possession of an extrajudicially
foreclosed property, who claims a right superior to that of the original mortgagor, is thus given
no opportunity to be heard in his claim. It stands to reason, therefore, that such third person
may not be dispossessed on the strength of a mere ex-parte possessory writ, since to do
so would be tantamount to his summary ejectment, in violation of the basic tenets of due
process.
Hence, it was not a ministerial duty of the trial court under Act No. 3135 to issue a writ of
possession for the ouster of respondent from the lot subject of this instant case, particularly in
light of the latter's opposition and claim of ownership and rightful possession of the disputed
properties. (Dayot vs. Shell Chemical Company, (Phils.), Inc., G.R. No. 156542, June 26, 2007)
creditor of the suit for collection or upon his filing of the complaint in an action for foreclosure of
mortgage, pursuant to the provisions of Rule 68 of the Rules of Court.
The impliedly instituted civil action in Criminal Cases No. 612-90 to No. 615-90 for violation of
Batas Pambansa Blg. 22 was, in effect, a collection suit or suit for the recovery of the mortgage-
debt since the dishonored checks involved in the said criminal cases were issued by respondent
Eulogio to petitioner for the payment of the same loan secured by the Deed of Real Estate
Mortgage. This precludes the petitioner from subsequently availing himself of the action to
foreclose the mortgaged property (Chieng vs. Spouses Santos, G.R. No. 169647, August 31,
2007).
Where the mortgage creditor chooses the remedy of foreclosure and the proceeds of
the foreclosure sale are insufficient to cover the debt, the mortgagee is entitled to claim
the deficiency from the debtor. The law gives the mortgagee the right to claim for the
deficiency resulting from the price obtained in the sale of the property at public auction and the
outstanding obligation at the time of the foreclosure proceedings. This rule is based on the
principle earlier mentioned that the mortgage is only a security and not a satisfaction of the
mortgagor’s entire obligation. (Suico Rattan & Buri Interiors, Inc. vs. Court of Appeals, G.R. No.
138145, June 15, 2006)
Equity of redemption
Equity of redemption in judicial foreclosure of mortgage is the right to pay the court or the
judgment obligee the amount of the judgment within a period of not less than 90 days nor more
than 120 days from entry of judgment or even before confirmation of sale by the court. After
such order of confirmation, no redemption can be effected. Limpin vs. IAC, 166 SCRA 87 (1988)
In default of such payment, the property shall be sold at public auction to satisfy the judgment
(Rule 68, Sec, 2).
property by paying the debt within 90 to 120 judgment creditor or any person having a lien
days after the entry of judgment or even after on the property subsequent to the mortgage or
the foreclosure sale but prior to confirmation. deed of trust under which the property is sold to
repurchase the property within one year even
after the confirmation of the sale and even after
the registration of the certificate of foreclosure
sale.
May be exercised even after the foreclosure There is no right of redemption in a judicial
sale provided it is made before the sale is foreclosure of mortgage under Rule 68. This
confirmed by order of the court. right of redemption exists only in extrajudicial
foreclosures where there is always a right of
redemption within one year from the date of
sale(Sec. 3, Act 3135), but interpreted by the
Court to mean one year from the registration of
the sale.
May also exist in favor or other encumbrances. General rule: In judicial foreclosures there is
If subsequent lien holders are not impleaded as only an equity of redemption which can be
parties in the foreclosure suit, the judgment in exercised prior to the confirmation of the
favor of the foreclosing mortgagee does not foreclosure sale. This means that after the
bind the other lien holders. In this case, their foreclosure sale but before its confirmation, the
equity of redemption remains unforeclosed. A mortgagor may exercise his right of pay the
separate foreclosure proceeding has to be proceeds of the sale and prevent the
brought against them to require them to redeem confirmation of the sale.
from the first mortgagee or from the party
acquiring the title to the mortgaged property.
If not by banks, the mortgagors merely have an Exception: there is a right of redemption if the
equity of redemption, which is simply their right, foreclosure is in favor of banks as mortgagees,
as mortgagor, to extinguish the mortgage and whether the foreclosure be judicial or
retain ownership of the property by paying the extrajudicial. This right of redemption is
secured debt prior to the confirmation of the explicitly provided in Sec. 47 of the General
foreclosure sale. Banking Law of 2000. While the law mentions
the redemption period to be one year counted
from the date of registration of the certificate in
the Registry of Property
Deficiency judgment
Deficiency judgment may be awarded in favor of the plaintiff against the mortgagor, if the
proceeds of the sale of the property are not sufficient to satisfy the judgment. Motion for
deficiency judgment must be filled after then sale, when the deficiency is known.
What is the prescriptive period to file action for deficiency in extrajudicial foreclosure
of real estate mortgage?
Ten (10) years (Arts. 1144 and 1142, Civil Code)
An ex parte petition for issuance of a possessory writ under Sec. 7 of Act 3135 is not,
strictly speaking, a “judicial process” as contemplated in Art. 433 of the Civil Code – it is a
non-litigious proceeding authorized in an extrajudicial foreclosure of mortgage. It is brought
for the benefit of one party only, and without notice to, or consent by any person adversely
interested. No need to notify the mortgagors since they had already lost all their interests in
the property when they failed to redeem the same.
Even if the mortgagor appeals an order denying a petition assailing the writ of possession
granted to the buyer and the sale at public auction, the buyer remains in possession of the
property pending resolution of the appeal. It is the ministerial duty of the court to issue
writ of possession in favor of the purchaser in a foreclosure sale. The trial court has
no discretion on the matter.
11. Partition
Define partition
Partition is the division between two or more persons of real or personal property which
they own as co-partners, joint tenants or tenants in common, effected by the setting apart of
such interests so that they may enjoy and possess it severally. Purpose is to put an end to
the common tenancy of the land or co-ownership.
Presupposes that the thing to be divided is owned in common. It is immaterial in whose
name the properties were declared for taxation purposes for it is presumed beforehand that
the parties to the partition admit the fact of co-ownership and now want to effect a separation
of interest.
NOTES:
In an action for partition, all other persons interested in the property shall be
joined as defendants. Not only the co-heirs but also all persons claiming interests or rights
in the property subject of partition are indispensable parties. In the instant case, it is the
responsibility of Panfilo as plaintiff in Civil Case No. 15465 to implead all indispensable
parties, that is, not only Faustino and Danilo but also respondents in their capacity as
vendees and donees of the subject fishponds. Without their presence in the suit the
judgment of the court cannot attain real finality against them. Being strangers to the first
case, they are not bound by the decision rendered therein; otherwise, they would be
deprived of their constitutional right to due process.
In a complaint for partition, the plaintiff seeks, first, a declaration that he is a co-
owner of the subject properties; and second, the conveyance of his lawful shares. An
action for partition is at once an action for declaration of co-ownership and for segregation
and conveyance of a determinate portion of the properties involved. (Abalos vs. Bucal, G.R.
No. 156224, February 19, 2008 ).
Partition is the proper remedy for compulsory or legal heirs to get their legitime or
share of the inheritance from the decedent. An action for partition is at once an action for
declaration of co-ownership and for segregation and conveyance of a determinate portion of
the properties involved. Being a compulsory heir of Don Fabian, Tirso has the right to
compel partition of the properties comprising the intestate estate of Don Fabian as a
measure to get his hereditary share. His right as an heir to a share of the inheritance covers
all the properties comprising the intestate estate of Don Fabian at the moment of his death.
Before partition and eventual distribution of Don Fabian’s intestate estate, a regime of co-
ownership among the compulsory heirs existed over the undivided estate of Don Fabian.
Being a co-owner of that intestate estate, Tirso’s right over a share thereof is imprescriptible.
Contrary to petitioners’ stance, reconveyance is not the proper remedy available to Tirso.
Tirso is not asserting total ownership rights over the subject properties, but only insofar as
his legitime from the intestate estate of his father, Don Fabian, is concerned. (Monteroso
vs. Court of Appeals, G.R. No. 105608, April 30, 2008).
However, since the action affects interest in real property, jurisdiction shall be determined by
inquiring into the assessed value of the property (Sec. 19 (2), BP 129, as amended by RA
7691). Hence an action for partition may be filed in the MTC, if the assessed value is not
more than P20,000.00 or P50,000.00. If the subject matter is personal property, where the value
is not more than P300,000.00 or P400,000.00.
Guidance can be obtained from Heirs of Valeriano Concha, Sr. vs. Lumocso (G.R. No.
158121, December 12, 2007) which explains the character of actions for reconveyance of real
property, cancellation of title, quieting of title and other actions involving any interest in real
property.
This involves a determination of whether the subject property is owned in common and
whether all the co-owners are made parties in the case. All co-owners are indispensable
parties. (Rule 3, Section 7. Compulsory joinder of indispensable parties. Parties in interest
without whom no final determination can be had of an action shall be joined either as
plaintiffs or defendants) The order may also require an accounting of rents and profits
recovered by the defendant. This order of partition and accounting is
appealable.(Miranda v. Court of Appeals, No. L-33007, June 18, 1976, 71 SCRA 295).
Appeal period is 30 days, and record on appeal is necessary.
If not appealed, then the parties may partition the common property in the way they want.
If they cannot agree, then the case goes into the second stage. However, the order of
accounting may in the meantime be executed. (De Mesa v. Court of Appeals, G.R. No.
109387, April 25, 1994, 231 SCRA 773)
If the parties are unable to agree upon the partition, the partition shall be done for the
parties with the assistance of not more than three (3) commissioners. (Municipality of Biñan
v. Garcia, GR No. 69260, December 22, 1989) This is also a complete proceeding and the
order or decision is appealable. Appeal period is 15 days. Record on appeal is not
necessary.
N.B. The second stage may include accounting of fruits and income of the property (R69S2).
However, It is possible for a judgment of accounting to be rendered first before the judgment of
partition, which means that there will be three stages. For an appeal from the first and second
stages, appeal period is 30 days and record on appeal is required. The rationale for a record on
appeal in multple appeals is to enable the rest of the case to proceed in the event that a
separate issue is resoved by the court and held to be final (Roman Archbishop of Manila
vs.Court of Appeals, G.R. No. 111324, July 5, 1996)
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.
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.
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
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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.
h. Prescription of action
Prescription of Action
Action for partition is imprescriptible for as long as the co-owners expressly or impliedly
recognize the co-ownership. (Heirs of Bartolome Infante and Juliana Infante vs. Court of
Appeals, G.R. No. 77202 June 22, 1988) However, if a co-owner repudiates the co-
ownership and makes known such repudiation to the other co-owners, then partition is no
longer a proper remedy of the aggrieved co-owner. S/he should filed an accion
reivindicatoria which is prescriptible. (Heirs of Catalino Jardin v. Heirs of Sixto Hallasgo, G.R.
No. L-55225 September 30, 1982)
Possession by tolerance
When there is possession by tolerance, possession or detainer becomes illegal only from
the time that there is a DEMAND to vacate. The year for bringing the action for illegal detainer
should be counted only from such demand (Ballesteros vs. Abion, G. R. No. 143661, Feb. 9,
2006).
the one year period should be counted from the time the plaintiff made the demand to defendant
to vacate the land upon learning of such dispossession (Ballesterso vs. Abion, supra).
Stealth – any secret, sly or clandestine act to avoid discovery and to gain entrance into or
remain within the residence of another without permission
(Ong vs. Parel, 355 SCRA 691 [2001]).
5. Suits for specific performance with damages do not affect ejectment actions (e.g.,
to compel renewal of a lease contract)
6. An action for reformation of instrument (e.g., from deed of absolute sale to one sale
with pacto de retro) does not suspend an ejectment suit between the same parties.
7. An action for reconveyance of property or accion reivindicatoria also has no effect
on ejectment suits regarding the same property.
8. Suits for annulment of sale, or title, or document affecting property operate to abate
ejectment actions respecting the same property.
has authority to file the same, and who actually filed the complaint as the representative of
the plaintiff co-owner, pursuant to a SPA, is a PARTY to the ejectment suit. In fact, Sec. 1,
Rule 70 includes the representative of the owner in an ejectment suit as one of the parties
authorized to institute the proceedings.
Sec. 22 of BP 129 as amended by R.A. No. 7691 (where the assessed value of the real
property does not exceed P20,000.00 or P50,000.00 in Metro Manila) grants the MTC
exclusive jurisdiction over subject case.The nature of an action is determined not by what is
stated in the caption of the complaint but its allegations and the reliefs prayed for. Where the
ultimate objective of the plaintiff is to obtain title to real property, it should be filed in the
proper court having jurisdiction over the assessed value of the property subject thereof.
(Barangay Piapi vs. Talip, 469 SCRA 409 [2005]; Quinagoran vs. Court of Appeals, G.R.
No. 155179. August 24, 2007)
The actions envisaged in the aforequoted provisions (Secs. 19 and 33. BP 129, as
amended by RA 7691) are accion publiciana and reivindicatoria. To determine which court
has jurisdiction over the action, the complaint must allege the assessed value of the real
property subject of the complaint or the interest thereon (Laresma vs. Abellana, G.R. No.
140973, November 11, 2004, 442 SCRA 156)
1. Forcible entry and unlawful detainer actions are actions affecting possession of real
property and hence are real actions. Venue is the place where the property subject of the
action is situated (Sec. 1, Rule 4).
2. They are also actions in personam because the plaintiff seeks to enforce a personal
obligation on the defendant to vacate the property subject of the action. restore physical
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possession thereof to the plaintiff, and pay actual damages by way of reasonable
compensation for his use or occupation of the property (Domagas vs. Jensen, G.R. No.
158407, January 17, 2005 ).
In forcible entry or unlawful detainer cases, the only damage that can be recovered is the
fair rental value or the reasonable compensation for the use and occupation of the
leased property. The reason for this is that the only issue raised in ejectment cases is that
of rightful possession; hence, the damages which could be recovered are those which the
plaintiff could have sustained as a mere possessor, or those caused by the loss of the use
and occupation of the property, and not the damages which he may have suffered but which
have no direct relation to his loss of material possession. (Dumo vs. Espinas, G.R. No.
141962, January 25, 2006)
• In forcible entry cases, the prescriptive period is counted from the date of
defendant’s actual entry on the land; in unlawful detainer, from the date of the
last demand to vacate. Hence, to determine whether the case was filed on time,
there was a necessity to ascertain whether the complaint was one for forcible entry
or unlawful detainer (Canlas vs. Tubil, G.R. No. 184285, September 25, 2009).
• Does the RTC have jurisdiction over all cases of recovery of possession
regardless of the value of the property involved?
NO. The doctrine that all cases of recovery of possession or accion publiciana lies
with the regional trial courts regardless of the value of the property — no longer holds
true. As things now stand, a distinction must be made between those properties the
assessed value of which is below P20,000.00, if outside Metro Manila; and
P50,000.00, if within (Quinagoran vs. Court of Appeals, G.R. No. 155179. August
24, 2007)
• Specifically, the regional trial court exercises exclusive original jurisdiction "in all civil
actions which involve possession of real property." However, if the assessed value
of the real property involved does not exceed P50,000.00 in Metro Manila, and
P20,000.00 outside of Metro Manila, the municipal trial court exercises
jurisdiction over actions to recover possession of real property (Atuel vs.
Valdez, June 10, 2003, 403 SCRA 517, 528).
• All cases involving title to or possession of real property with an assessed value of
less than P20,000.00 if outside Metro Manila, fall under the original jurisdiction of the
municipal trial court. (Aliabo v. Carampatan, G.R. No. 128922, March 16, 2001, 354
SCRA 548, 552).
• A complaint must allege the assessed value of the real property subject of the
complaint or the interest thereon to determine which court has jurisdiction over
the action. This is because the nature of the action and which court has original and
exclusive jurisdiction over the same is determined by the material allegations of the
complaint, the type of relief prayed for by the plaintiff and the law in effect when the
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action is filed, irrespective of whether the plaintiffs are entitled to some or all of the
claims asserted therein. ( Laresma v. Abellana, G.R. No. 140973, November 11,
2004, 442 SCRA 156; Hilario v. Salvador, G.R. No. 160384, April 29, 2005, 457
SCRA 815).
• Sec. 22 of BP 129 as amended by R.A. No. 7691 (where the assessed value of the
real property does not exceed P20,000.00 or P50,000.00 in Metro Manila) grants the
MTC exclusive jurisdiction over subject case.The nature of an action is determined
not by what is stated in the caption of the complaint but its allegations and the reliefs
prayed for. Where the ultimate objective of the plaintiff is to obtain title to real
property, it should be filed in the proper court having jurisdiction over the assessed
value of the property subject thereof. (Barangay Piapi vs. Talip, 469 SCRA 409
[2005]).
• The actions envisaged in the aforequoted provisions (Secs. 19 and 33. BP 129,
as amended by RA 7691) are accion publiciana and reivindicatoria. To
determine which court has jurisdiction over the action, the complaint must
allege the assessed value of the real property subject of the complaint or the
interest thereon. The complaint does not contain any allegation of the assessed
value of Lot 4-E covered by TCT No. 47171. There is, thus, no showing on the face of
the complaint that the RTC had exclusive jurisdiction over the action of the
respondent. Moreover, as gleaned from the receipt of realty tax payments issued to
the respondent, the assessed value of the property in 1993 was P8,300.00. Patently
then, the Municipal Trial Court of Aloguinsan, Cebu, and not the Regional Trial
Court of Toledo City, had exclusive jurisdiction over the action of the
respondent. Hence, all the proceedings in the RTC, including its decision, are
null and void (Laresma vs. Abellana, G.R. No. 140973, November 11, 2004, 442
SCRA 156; Aliabo vs. Carampatan, G.R. No. 128922, March 16, 2001, 354 SCRA
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548).; Ouano vs. PGTT Int'l. Investment Corporation, ,G.R. No. 134230, July 17,
2002, 384 SCRA 589 ).
• With the modifications introduced by RA No. 7691 in 1994, the jurisdiction of the first
level courts has been expanded to include jurisdiction over other real actions where
the assessed value does not exceed P20,000, 000, and P50,000.00 where the action
is filed in Metro Manila. The first level courts thus have exclusive original jurisdiction
over accion publiciana and accion reinvidicatoria where the assessed value of the
property does not exceed the aforementioned amounts. Accordingly, the
jurisdictional element is the assessed value of the property (Vda. de Barrera vs.
Heirs of Legaspi, G.R. No. 174346, September 12, 2008).
• Accion publiciana is the plenary action to recover the right of possession which
should be brought in the proper regional trial court when dispossession has lasted
for more than one year (Canlas vs. Tubil, G.R. No. 184285, September 25, 2009).
NOTE: This ruling as to where to bring action is contrary to the recent cases holding
that jurisdiction depends on assessed value of the property.
• Mandatory allegations for the municipal trial court to acquire jurisdiction over
forcible entry
First, the plaintiff must allege his prior physical possession of the property. Second,
he must also allege that he was deprived of his possession by force, intimidation,
threat, strategy or stealth. If the alleged dispossession did not occur by any of these
means, the proper recourse is to file not an action for forcible entry but a plenary
action to recover possession with the Regional Trial Court (Benguet Corporation vs.
Cordillera Caraballo Mission, Inc., G.R. No.155343, September 2, 2005). NOTE: This
ruling as to where to bring action is contrary to the recent cases holding that
jurisdiction depends on assessed value of the property.
• In order to constitute force that would justify a forcible entry case, the trespasser
does not have to institute a state of war. The act of going to the property and
excluding the lawful possessor therefrom necessarily implies the exertion of force over
the property which is all that is necessary and sufficient to show that the action is based
on the provisions of Section 1, Rule 70 of the Rules of Court. The words ‘by 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 possession therefrom (Bunyi vs. Factor, G.R. No. 172547, June 30, 2009)
• For one to be considered in possession, one need not have actual or physical
occupation of every square inch of the property at all times. Possession can be
acquired not only by material occupation, but also by the fact that a thing is subject to
the action of one’s will or by the proper acts and legal formalities established for
acquiring such right. Possession can be acquired by juridical acts. These are acts to
which the law gives the force of acts of possession. Examples of these are
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d. Who may institute the action and when; against whom the action may be
maintained
Rule 70, 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.
e. Pleadings allowed
Rule 70, Sec. 4. Pleadings allowed.
The only pleadings allowed to be filed are the complaint, compulsory counterclaim and
cross-claim pleaded in the answer, and the answers thereto. All pleadings shall be verified.
Where the period of the lease has expired and several demands were sent to the
lessee to vacate, when should the one year period to file unlawful detainer be
reckoned? From the date of the original demand or from the date of the last
demand?
• From the date of the original demand if the subsequent demands are merely in the
nature of reminders or reiterations of the original demand.
• Demand or notice to vacate is not a jurisdictional requirement when the action is
based on the expiration of the lease.. The law requires notice to be served only when
the action is due to the lessee’s failure to pay or the failure to comply with the
conditions of the lease. The one-year period is thus counted from the date of first
dispossession. The allegation that the lease was on a month-to-month basis is
tantamount to saying that the lease expired every month. Since the lease already
expired mid-year in 1995, as communicated in petitioners’ letter dated July 1, 1995, it
was at that time that respondent’s occupancy became unlawful. (Racaza vs. Gozum,
June 8, 2006, 490 SCRA 313)
The court may grant preliminary injunction, in accordance with the provisions of Rule 58
hereof, to prevent the defendant from committing further acts of dispossession against the
plaintiff.
A possessor deprived of his possession through forcible entry or unlawful detainer may,
within five (5) days from the filing of the complaint, present a motion in the action for forcible
entry or unlawful detainer for the issuance of a writ of preliminary mandatory injunction to
restore him in his possession. The court shall decide the motion within thirty (30) days from
the filing thereof.
• The judgment rendered in an action for unlawful 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 would not bar an action between
the same parties respecting title to the land or building. Section 18, Rule 70 of the
Rules of Court provides that when the defendant raises the defense of ownership in
his pleadings and the question of possession cannot be resolved without deciding the
issue of ownership, the issue of ownership shall be resolved only to determine the
issue of possession. (Roberts vs. Papio, G.R. No. 166714, February 9, 2007)
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
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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.
As provided by Sec. 18, Rule 70, the RTC in its appellate jurisdiction can only base its
decisions on court proceedings of the MTC, it cannot conduct a trial de novo. Hence, by
ordering the relocation and verification survey, the RTC violated the rule since this was
tantamount to holding a trial de novo. The violation was accented by the fact that the RTC
based its decision on surveyor’s testimony instead of the record of the proceedings (Manalang v
Bacani, GR No. 156995, Jan 12, 2015). - LPB
In line with the summary nature of the action for forcible entry or unlawful detainer, the
filing of the following pleadings is prohibited:
1. Motion to dismiss the complaint except on the ground of lack of jurisdiction over the
subject matter, or failure to comply with Section 12. Section 12 provides that cases
requiring referral to the Lupon for conciliation, whether there is no showing of
compliance with such requirement, shall be dismissed without prejudice, and may
be reviewed only after that requirement shall have been complied with.
2. Motion for bill of particulars.
3. Motion for new trial, or for reconsideration of a judgment, or for reopening of trial.
4. Petition for relief from judgment.
5. Motion for extension of time to file pleadings, affidavits or any other paper.
6. Memoranda.
7. Petition for certiorari, mandamus, or prohibition against any interlocutory order
issued by the court.
8. Motion to declare the defendant in default.
9. Dilatory motions for postponement.
10. Reply.
11. Third party complaints.
12. Intervention.
13. Contempt
a. Kinds of contempt
b. Purpose and nature of each
Definition
Contempt of court is a defiance of the authority, justice or dignity of the court, such
conduct as tends to bring the authority and administration of the law into disrespect of, to
interfere with, or prejudice parties litigant or their witnesses during litigation. It is defined as a
disobedience to the court by setting up an opposition to its authority, justice and dignity. It
signifies not only a willful disregard or disobedience to the court’s order but such conduct as
tends to bring the authority of the court and the administration of law into disrefute or in some
manner to impede the due administration of justice. (Halili v. Court of Industrial Relations,
No. L-24864, April 30, 1985, 136 SCRA 112)
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deposition when lawfully required to do manner disturbs the possession given to the person
so (Sec. 1); adjudged to be entitled thereto;
f) Acts of a party or a counsel which
constitute willful and deliberate forum (c) Any abuse of or any unlawful interference with
shopping (Sec. 1, Rule 7); the processes or proceedings of a court not
g) Unfounded accusations or allegations constituting direct contempt under section 1 of this
or words in a pleading tending to Rule;
embarrass the court or to bring it into
(d) Any improper conduct tending, directly or
disrepute (Re: Letter dated 21 Feb. 2005 of
indirectly, to impede, obstruct, or degrade the
Atty. Noel Sorreda, 464 SCRA 32);
administration of justice;
2. Indirect Contempt - indirect or constructive contempt is one committed away from the court
involving disobedience or resistance to a lawful writ, processs, order, judgment or command of
the court, or tending to belittle, degrade, obstruct, interrupt or embarrass the court (Delima vs.
Gallardo, 77 SCRA 286 [1977]).
3. Civil Contempt - the failure to do something ordered by the court which is for the benefit of
a party.
4. Criminal Contempt - any conduct directed against the authority or dignity of the court.
1) Direct contempt – which may be punished summarily under Section 1 of Rule 71.
(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.)
2) Indirect contempt – which may be punished only after written charge and due
hearing under Section 3 of Rule 71. (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)
The person adjudged in contempt may not appeal from the judgment. The remedy is
certiorari or prohibition under Rule 65 on the ground of grave abuse of discretion or lack of
jurisdiction on the part of the judge.
Execution of the judgment shall be suspended if he files a bond fixed by the court
conditioned that he will abide by and perform the judgment should the petition be decided
against him (Rule 71, Sec. 2)
Rule 71, 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 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.
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.
2. Party litigant or any aggrieved party files a verified petition for that purpose, which
should comply with the requirements for filing initiatory pleadings in civil actions.
If the contempt charge arose out of or is related to a principal action pending in court, the
verified petition shall allege that fact but said petition shall be docketed, heard and decided
separately, unless the court orders the consolidation of the contempt charge and the
principal action for joint hearing and decision (Rule 71, Sec. 4).
Before one may be convicted of indirect contempt, there must be compliance with
the following requisites: (a) a charge in writing to be filed; (b) an opportunity for
respondent to comment thereon within such period as may be fixed by the court; and
(c) an opportunity to be heard by himself or by counsel. (Tokio Marine Malayan
Insurance Company Inc. vs. Valdez, G.R. No. 150107, January 28, 2008).
Respondent Judge’s blunder was compounded when she immediately cited complainant in
contempt of court and issued the bench warrant without requiring the latter to explain the
reason for his non-appearance and non-compliance with a standing order. Under Rule 71 of
the Rules of Court, complainant’s alleged disobedience is an indirect contempt the
punishment for which requires that a respondent should be first asked to show cause
why he should not be punished for contempt.
Respondent also abused her contempt powers. If at all, complainant was guilty of indirect
contempt and not direct contempt. For not affording complainant the opportunity to explain
why he should not be cited in contempt, she blatantly disregarded Rule 71 of the Rules
of Court (Tabujara vs. Judge Asdala, A.M. No. RTJ-08-2126 [Formerly OCA I.P.I. No. 08-
2896-RTJ], January 20, 2009, En Banc)
Note: Use of falsified and forged documents constitutes indirect contempt not direct
contempt ( Judge Dolores Espanol vs. Atty. Benjamin Formoso, G.R. No. 150949, June 21,
2007).
Quasi-judicial agencies that have the power to cite persons for indirect contempt pursuant
to Rule 71 of the Rules of Court can only do so by initiating them in the proper Regional Trial
Court. It is not within their jurisdiction and competence to decide the indirect contempt cases. These
matters are still within the province of the Regional Trial Courts. In the present case, the indirect
contempt charge was filed, not with the Regional Trial Court, but with the PARAD, and it was the
PARAD that cited Mr. Lorayes with indirect contempt.( Land Bank of the Philippines vs.
Listana, G.R. No. 152611, August 5, 2003)
Indirect contempt for insinuating that Supreme Court TRO was founded on an illegal
cause
The instant case stemmed. from an article in Luzon Tribune, a newspaper of general
circulation wherein respondent Manrique is the publisher/editor, which allegedly contained
disparaging statements against the Supreme Court.
There are two kinds of publications relating to court and to court proceedings which can
warrant the exercise of the power to punish for contempt: (1) that which tends to impede,
obstruct, embarrass or influence the courts in administering justice in a pending suit or
proceeding; and (2) that which tends to degrade the courts and to destroy public confidence in
them or that which tends to bring them in any way into disrepute.
We find the subject article illustrative of the second kind of contemptuous publication for
insinuating that this Court’s issuance of TRO in G.R. No. 185132 was founded on an illegal
cause. The glaring innuendos of illegality in the article is denigrating to the dignity of this Court
and the ideals of fairness and justice that it represents. It is demonstrative of disrespect not only
for this Court, but also for the judicial system as a whole, tends to promote distrust and
undermines public confidence in the judiciary by creating the impression that the Court cannot be
trusted to resolve cases impartially.
WHEREFORE, in view of the foregoing disquisitions, respondent Leo Ruben C. Manrique is
hereby adjudged GUILTY of INDIRECT CONTEMPT and is ordered to pay a fine of Twenty
Thousand Pesos (P 20,000.00).(Garcia vs. Manrique, G.R. No. 186592, October 10, 2012)