XX.

SPECIAL CIVIL ACTIONS (Rules 62 – 71)

Nature of special civil actions

(1) Special civil actions are basically ordinary civil proceedings; what makes them special
are the distinct peculiarities inherent in their very nature not found in ordinary civil
actions. In De Fiesta vs. Llorente, 25 Phil. 544, the Supreme Court observed that
partition of real estate , quo warranto, certiorari, prohibition and mandamus, eminent
domain (expropriation) and foreclosure of mortgage are actions in themselves, but
possessing special matters that required special procedures. For this reason, these
proceedings are classified as special civil actions.
(2) Sec. 1, Rule 62 provides that rules provided for ordinary civil actions are applicable in
special civil proceedings, which are not inconsistent with or may serve to supplement
the provisions of the rules relating to such special civil actions.

Ordinary civil actions versus special civil actions

(1) Although both types of actions are governed by the rules for ordinary civil actions, there
are certain rules that are applicable only to specific special civil actions (Sec. 3[a], Rule
1). The fact that an action is subject to special rules other than those applicable to
ordinary civil actions is what makes a civil action special.
(2) An ordinary civil action must be based on a cause of action (Sec. 1, Rule 2). This means
that the defendant must have performed an act or omitted to do an act in violation of the
rights of another (Sec. 2, Rule 2). These definitions do not fit the requirements of a
cause of action in certain special civil actions. The cause of action as defined and
required of an ordinary civil action finds no application to the special civil action of
declaratory relief. It finds no application also in a complaint for interpleader. In this
action, the plaintiff may file a complaint even if he has sustained no actual transgression
of his rights. In fact, he actually has no interest in the subject matter of the action. This is
not so in an ordinary civil action.
(3) Ordinary civil actions may be filed initially in either the MTC or the RTC depending upon
the jurisdictional amount or the nature of the action involved. On the other hand, there
are special civil actions which can only be filed in an MTC like the actions for forcible
entry and unlawful detainer. There are also special civil actions which cannot be
commenced in the MTC, foremost of which are the petitions for certiorari, prohibition,
and mandamus.
(4) The venue in ordinary civil actions is determined by either the residence of the parties
where the action is personal or by the location of the property where the action is real.
This dichotomy does not always apply to a special civil action. For instance, the venue
in a petition for quo warranto is where the Supreme Court or the Court of Appeals sits if
the petition is commenced in any of these courts and without taking into consideration
where the parties reside. It is only when the petition is lodged with the RTC that the
residence is considered in venue analysis. While in ordinary civil actions the residences
of both the plaintiff and the defendant are factored in the determination, a petition for
quo warranto filed with the RTC merely looks into the residence of the respondent, not
that of the petitioner. But if it is the Solicitor General who commences the action,
another special rule is followed because the petition may only be commenced in the
RTC in Manila, in the Court of Appeals or in the Supreme Court.
(5) While ordinary civil actions when filed are denominated as ―complaints‖, some special
civil actions are not denominated as such but ―petitions‖.

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 (a) Special civil actions initiated by filing of a Petition:
1. Declaratory relief other than similar remedies (R63);
2. Review of adjudication of the COMELEC and COA (R64);
3. Certiorari, prohibition and mandamus (R65);
4. Quo warranto (R6); and
5. Contempt (R71)
(b) Special civil actions initiated by filing of a Complaint:
1. Interpleader (R62);
2. Expropriation (R61);
3. Foreclosure of real estate mortgage (R68);
4. Partition (R69); and
5. Forcible entry and unlawful detainer (R70).

Jurisdiction and venue

(1) The subject matter of a petition for declaratory relief raises issues which are not
capable of pecuniary estimation and must be filed with the Regional Trial Court
(Sec. 19[1], BP 129; Sec. 1, Rule 63). It would be error to file the petition with the
Supreme Court which has no original jurisdiction to entertain a petition for
declaratory relief (Untied Residents of Dominican Hill vs. Commission on the
Settlement of Land Problems, 353 SCRA 782; Ortega vs. Quezon City Government,
469 SCRA 388).

Interpleader (Rule 62)

(1) Interpleader is a person who has property in his possession or an obligation to render,
wholly or partially without claiming any right therein, or an interest in which in whole or in
part is not disputed by the claimants, comes to court and asks that the persons who
consider themselves entitled to demand compliance with the obligation be required to
litigate among themselves in order to determine finally who is entitled to the same.
(2) Interpleader is a special civil action filed by a person against whom two conflicting
claims are made upon the same subject matter and over which he claims no interest, to
compel the claimants to interplead and to litigate their conflicting claims among
themselves (Sec. 1).

Requisites for interpleader

(1) There must be two or more claimants with adverse or conflicting interests to a property
in the custody or possession of the plaintiff;
(2) The plaintiff in an action for interpleader has no claim upon the subject matter of the
adverse claims or if he has an interest at all, such interest is not disputed by the
claimants;
(3) The subject matter of the adverse claims must be one and the same; and
(4) The parties impleaded must make effective claims.

When to file

(1) Whenever conflicting claims upon the same subject matter are or may be made against
a person who claims no interest whatever in the subject matter, or an interest which in
whole or in part is not disputed by the claimants, he may bring an action against the

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 conflicting claimants to compel them to interplead and litigate their several claims
among themselves (Sec. 1).

Declaratory Reliefs and Similar Remedies (Rule 63)

(1) An action for declaratory relief is brought to secure an authoritative statement of the
rights and obligations of the parties under a contract or a statute for their guidance in the
enforcement or compliance with the same (Meralco vs. Philippine Consumers
Foundation, 374 SCRA 262). Thus, the purpose is to seek for a judicial interpretation of
an instrument or for a judicial declaration of a person‘s rights under a statute and not to
ask for affirmative reliefs like injunction, damages or any other relief beyond the purpose
of the petition as declared under the Rules.
(2) The subject matter in a petition for declaratory relief is any of the following:
(a) Deed;
(b) Will;
(c) Contract or other written instrument;
(d) Statute;
(e) Executive order or regulation;
(f) Ordinance; or
(g) Any other governmental regulation (Sec. 1).
(3) The petition for declaratory relief is filed before there occurs any breach or violation of
the deed, contract, statute, ordinance or executive order or regulation. It will not prosper
when brought after a contract or a statute has already been breached or violated. If
there has already been a breach, the appropriate ordinary civil action and not
declaratory relief should be filed.
(4) Declaratory relief is not proper in following cases:
(a) Citizenship
(b) Abstract, hypothetical question
(c) Hereditary rights
(d) Based on contingent event
(e) No administrative remedy has been exhausted
(f) Pretends to be declaratory relief
(g) Third-party complaint
(5) Declaratory relief is defined as an action by any person interested in a deed, will,
contract or other written instrument, executive order or resolution, to determine any
question of construction or validity arising from the instrument, executive order or
regulation, or statute; and for a declaration of his rights and duties thereunder. The only
issue that may be raised in such a petition is the question of construction or validity of
provisions in an instrument or statute. As such, in the same manner that court decisions
cannot be the proper subjects of such petition, decisions of quasi-judicial agencies
cannot also be its subject for the simple reason that if a party is not agreeable to a
decision either on questions of law or of fact, it may avail of the various remedies
provided by the Rules of Court. In view of the foregoing, the decision of the BSP
Monetary Board, in the exercise of its quasi-judicial powers or functions, cannot be a
proper subject matter for such petition. (Monetary Board v. Philippine Veterans Bank,
GR No. 189571, 01/21/2015).

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Who may file the action

(1) Any person interested under a deed, will, contract or other written instrument or whose
rights are affected by a statute, executive order or regulation, ordinance or other
governmental regulation may before breach or violation thereof, bring an action in the
RTC to determine any question of construction or validity arising and for a declaration of
his rights or duties, thereunder (Sec. 1).
(2) Those who may sue under the contract should be those with interest under the contract
like the parties, the assignees and the heirs as required by substantive law (Art. 1311,
Civil Code).
(3) If it be a statute, executive order, regulation or ordinance, the petitioner is one whose
rights are affected by the same (Sec. 1, Rule 63). The other parties are all persons who
have or claim any interest which would be affected by the declaration. The rights of
person not made parties to the action do not stand to be prejudiced by the declaration
(Sec. 2).

Requisites of action for declaratory relief

(1) The subject matter must be a deed, will, contract or other written instrument, statute,
executive order or regulation or ordinance;
(2) The terms of said document or the validity thereof are doubtful and require judicial
construction;
(3) There must have been no breach of said document;
(4) There must be actual justiciable controversy or the ripening seeds of one( there is
threatened litigation the immediate future); there must be allegation of any threatened,
imminent and inevitable violation of petitioner‘s right sought to be prevented by the
declaratory relief sought;
(5) The controversy is between persons whose interests are adverse;
(6) The issue must be ripe for judicial determination e.g. administrative remedies already
exhausted;
(7) The party seeking the relief has legal interest in the controversy; and
(8) Adequate relief is not available thru other means.
Stated otherwise, the requisites are:
(a) There must be a justiciable controversy;
(b) The controversy must be between persons whose interests are adverse;
(c) The party seeking the relief must have legal interest in the controversy; and
(d) The issue is ripe for judicial determination (Republic vs. Orbecido III, 472 SCRA
114).

When court may refuse to make judicial declaration

(1) Grounds for the court to refuse to exercise declaratory relief;

(a) A decision would not terminate the uncertainty or controversy which gave rise to the
action; or
(b) The declaration or construction is not necessary and proper under the
circumstances as when the instrument or the statute has already been breached
(Sec. 5).
(2) In declaratory relief, the court is given the discretion to act or not to act on the petition. It
may therefore choose not to construe the instrument sought to be construed or could
refrain from declaring the rights of the petitioner under the deed or the law. A refusal of
the court to declare rights or construe an instrument is actually the functional equivalent
of the dismissal of the petition.

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 (3) On the other hand, the court does not have the discretion to refuse to act with respect to
actions described as similar remedies. Thus, in an action for reformation of an
instrument, to quiet or to consolidate ownership, the court cannot refuse to render a
judgment (Sec. 5).

Conversion to ordinary action

(1) If before final termination of the case, a breach should take place, the action may be
converted into ordinary action to avoid multiplicity of suits (Republic vs. Orbecido, G.R.
No. 154380, Oct. 5, 2005).
(2) Ordinary civil action – plaintiff alleges that his right has been violated by the defendant;
judgment rendered is coercive in character; a writ of execution may be executed against
the defeated party.
(3) Special civil action of declaratory relief – an impending violation is sufficient to file a
declaratory relief; no execution may be issued; the court merely makes a declaration.

Proceedings considered as similar remedies

(1) Similar remedies are:

(a) Action for reformation of an instrument;
(b) Action for quieting of title; and
(c) Action to consolidate ownership (Art. 1607, Civil Code).

Reformation of an instrument

(1) It is not an action brought to reform a contract but to reform the instrument evidencing
the contract. It presupposes that there is nothing wrong with the contract itself because
there is a meeting of minds between the parties. The contract is to be reformed because
despite the meeting of minds of the parties as to the object and cause of the contract,
the instrument which is supposed to embody the agreement of the parties does not
reflect their true agreement by reason of mistake, inequitable conduct or accident. The
action is brought so the true intention of the parties may be expressed in the instrument
(Art. 1359, CC).
(2) The instrument may be reformed if it does not express the true intention of the parties
because of lack of skill of the person drafting the instrument (Art. 1363, CC). If the
parties agree upon the mortgage or pledge of property, but the instrument states that
the property is sold absolutely or with a right of repurchase, reformation of the
instrument is proper (Art. 1365, CC).
(3) Where the consent of a party to a contract has been procured by fraud, inequitable
conduct or accident, and an instrument was executed by the parties in accordance with
the contract, what is defective is the contract itself because of vitiation of consent. The
remedy is not to bring an action for reformation of the instrument but to file an action for
annulment of the contract (Art. 1359, CC).
(4) Reformation of the instrument cannot be brought to reform any of the following:
(a) Simple donation inter vivos wherein no condition is imposed;
(b) Wills; or
(c) When the agreement is void (Art. 1666, CC).

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Consolidation of ownership

(1) The concept of consolidation of ownership under Art. 1607, Civil Code, has its origin in
the substantive provisions of the law on sales. Under the law, a contract of sale may be
extinguished either by legal redemption (Art. 1619) or conventional redemption (Art.
1601). Legal redemption (retracto legal) is a statutorily mandated redemption of a
property previously sold. For instance, a co-owner of a property may exercise the right
of redemption in case the shares of all the other co-owners or any of them are sold to a
third person (Art. 1620). The owners of adjoining lands shall have the right of
redemption when a piece of rural land with a size of one hectare or less is alienated
(Art. 1621). Conventional redemption (pacto de retro) sale is one that is not mandated
by the statute but one which takes place because of the stipulation of the parties to the
sale. The period of redemption may be fixed by the parties in which case the period
cannot exceed ten (10) years from the date of the contract. In the absence of any
agreement, the redemption period shall be four (4) years from the date of the contract
(Art. 1606). When the redemption is not made within the period agreed upon, in case
the subject matter of the sale is a real property, Art. 1607 provides that the consolidation
of ownership in the vendee shall not be recorded in the Registry of Property without a
judicial order, after the vendor has been duly heard.
(2) The action brought to consolidate ownership is not for the purpose of consolidating the
ownership of the property in the person of the vendee or buyer but for the registration of
the property. The lapse of the redemption period without the seller a retro exercising his
right of redemption, consolidates ownership or title upon the person of the vendee by
operation of law. Art. 1607 requires the filing of the petition to consolidate ownership
because the law precludes the registration of the consolidated title without judicial order
(Cruz vs. Leis, 327 SCRA 570).

Quieting of title to real property

(1) This action is brought to remove a cloud on title to real property or any interest therein.
The action contemplates a situation where the instrument or a record is apparently valid
or effective but is in truth and in fact invalid, ineffective, voidable or unenforceable, and
may be prejudicial to said title to real property. This action is then brought to remove a
cloud on title to real property or any interest therein. It may also be brought as a
preventive remedy to prevent a cloud from being cast upon title to real property or any
interest therein (Art. 476).
(2) The plaintiff need not be in possession of the real property before he may bring the
action as long as he can show that he has a legal or an equitable title to the property
which is the subject matter of the action (Art. 477).

Review of Judgments and Final Orders or Resolution of the COMELEC and COA
(Rule 64)

(1) A judgment or final order or resolution of the Commission on Elections and the
Commission on Audit may be brought by the aggrieved party to the Supreme Court on
certiorari under Rule 65 (Sec. 2). The filing of a petition for certiorari shall not stay the
execution of the judgment or final order or resolution sought to be reviewed, unless the
SC directs otherwise upon such terms as it may deem just (Sec. 8). To prevent the
execution of the judgment, the petitioner should obtain a temporary restraining order or
a writ of preliminary injunction because the mere filing of a petition does not interrupt the
course of the principal case.

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 (2) Decisions of the Civil Service Commission shall be appealed to the Court of Appeals
which has exclusive appellate jurisdiction over all judgments or final orders of such
Commission (RA 7902).
(3) The petition shall be filed within thirty (30) days from notice of the judgment or final
order or resolution sought to be reviewed. The filing of a motion for new trial or
reconsideration of said judgment or final order or resolution, if allowed under the
procedural rules of the Commission concerned, shall interrupt the period herein fixed. If
the motion is denied, the aggrieved party may file the petition within the remaining
period, but which shall not be less than five (5) days in any event, reckoned from notice
of denial (Sec. 3).
(4) Note that petition for review from decisions of quasi-judicial agencies to the CA should
be within 15 days and does not stay the decision appealed. Petition for review from
decisions of the RTC decided in its appellate jurisdiction filed to the CA should be filed
within 15 days and stays execution, unless the case is under the rules of Summary
Procedure. Special civil actions of certiorari, prohibition, and mandamus, from Comelec
and COA should be filed within 30 days, and does not stay the decision appealed. The
bottomline is that decisions of quasi-judicial bodies are not stayed by appeal alone.
Decisions of regular courts are stayed on appeal. Although in petition for review on
certiorari to the SC via Rule 45, there is no express provision on effect of appeal on
execution.
(5) The ―not less than 5 days‖ provision for filing a pleading applies only to:
(a) filing an answer after a denial of a Motion to Dismiss (R12);
(b) filing an answer after denial or service of a Bill of Particulars (R12);
(c) filing an special civil action for Certiorari from a decision of the COMELEC or COA
after denial of a Motion for Reconsideration or Motion for New Trial (R64). It does
not apply to filing appeal from decisions of other entities after denial of a Motion for
Reconsideration or Motion for New Trial. In such cases, either the parties have a
fresh 15 days, or the balance.

Application of Rule 65 under Rule 64

(1) Sec. 7, Art. IX-A of the Constitution reads, ―unless otherwise provided by the
Constitution or by law, any decision, order or ruling of each commission may be brought
to the Supreme Court on certiorari by the aggrieved party within 30 days from receipt of
a copy thereof.‖ The provision was interpreted by the Supreme Court to refer to
certiorari under Rule 65 and not appeal by certiorari under Rule 45 (Aratuc vs.
COMELEC, 88 SCRA 251; Dario vs. Mison, 176 SCRA 84). To implement the above
constitutional provision, the SC promulgated Rule 64.

Distinction in the application of Rule 65 to judgments of the COMELEC and COA

and the application of Rule 65 to other tribunals, persons and officers

Rule 64 Rule 65
Directed only to the judgments, final orders or Directed to any tribunal, board or officers
resolutions of the COMELEC and COA; exercising judicial or quasi-judicial functions;
Filed within 30 days from notice of the Filed within 60 days from notice of the
judgment; judgment;
The filing of a motion for reconsideration or a The period within which to filed the petition if
motion for new trial if allowed, interrupts the the motion for reconsideration or new trial is
period for the filing of the petition for certiorari. denied, is another 60 days from notice of the

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If the motion is denied, the aggrieved party denial of the motion.
may file the petition within the remaining
period, but which shall not be less than 5 days
reckoned from the notice of denial.

Certiorari, Prohibition and Mandamus (Rule 65)

(1) Certiorari is a remedy for the correction of errors of jurisdiction, not errors of judgment. It
is an original and independent action that was not part of the trial that had resulted in
the rendition of the judgment or order complained of. More importantly, 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 Corp.
vs. RTC of Iloilo, GR 165001, 01/31/2007).
(2) Where the error is not one of jurisdiction, but of law or fact which is a mistake of
judgment, the proper remedy should be appeal. Hence, if there was no question of
jurisdiction involved in the decision and what was being questioned was merely the
findings in the decision of whether or not the practice of the other party constitutes a
violation of the agreement, the matter is a proper subject of appeal, not certiorari
(Centro Escolar University Faculty and Allied Workers Union vs. CA, GR 165486,
05/31/2006).
(3) Filing of petition for certiorari does not interrupt the course of the principal action nor the
running of the reglementary periods involved in the proceeding, unless an application
for a restraining order or a writ of preliminary injunction to the appellate court is granted
(Sec. 7). Neither does it interrupt the reglementary period for the filing of an answer nor
the course of the case where there is no writ of injunction (People vs. Almendras, 401
SCRA 555).
(4) In a summary proceeding, petitions for certiorari, prohibition or mandamus against an
interlocutory order of the court are not allowed (Sec. 19, RRSP).
(5) Certiorari is not and cannot be made a substitute for an appeal where the latter remedy
is available but was lost through fault or negligence. The remedy to obtain a reversal of
judgment on the merits is appeal. This holds true even if the error ascribed to the lower
court is its lack of jurisdiction over the subject matter, or the exercise of power in excess
thereof, or grave abuse of discretion. The existence and availability of the right to
appeal prohibits the resort to certiorari because one of the requirements for certiorari is
that there is no appeal (Bugarin vs. Palisoc, GR 157985, Dec. 5, 2005).
(6) Exceptions to the rule that certiorari is not available when the period for appeal has
lapsed and certiorari may still be invoked when appeal is lost are the following:
(a) Appeal was lost without the appellant‘s negligence;
(b) When public welfare and the advancement of public policy dictates;
(c) When the broader interest of justice so requires;
(d) When the writs issued are null and void; and
(e) When the questioned order amounts to an oppressive exercise of judicial authority
(Chua vs. CA, 344 SCRA 136).
(7) The trial court‘s denial of the motion to dismiss is not a license to file a Rule 65 petition
before the CA. An order denying a motion to dismiss cannot be the subject of a petition
for certiorari as defendant still has an adequate remedy before the trial court – i.e., to file
an answer and to subsequently appeal the case if he loses the case. As exceptions, it
may avail of a petition for certiorari if the ground raised in the motion to dismiss is lack of
jurisdiction over the person of the defendant or over the subject matter. Under the Rules
of Court, entry of judgment may only be made if no appeal or motion for reconsideration

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 was timely filed. In the proceedings before the CA, if a motion for reconsideration is
timely filed by the proper party, execution of the CA‘s judgment or final resolution shall
be stayed. This rule is applicable even to proceedings before the Supreme Court, as
provided in Section 4, Rule 56 of the Rules of Court. In the present case, Tung Ho
timely filed its motion for reconsideration with the CA and seasonably appealed the CA‘s
rulings with the Court through the present petition (G.R. No. 182153). To now recognize
the finality of the Resolution of Ting Guan petition (G.R. No. 176110) based on its entry
of judgment and to allow it to foreclose the present meritorious petition of Tung Ho,
would of course cause unfair and unjustified injury to Tung Ho. (Tung Ho Steel
Enterprises Corp. v. Ting Guan Trading Corp., GR No. 182153, 04/07/2014) .
(8) 2008 Bar: Compare the certiorari jurisdiction of the Supreme Court under the
Constitution with that under Rule 65 of the Rules of Civil Procedure. (4%)
Answer: The certiorari jurisdiction of the Supreme Court under the Constitution is the
mode by which the Court exercises its expanded jurisdiction, allowing it to take
corrective action through the exercise of its judicial power. Constitutional certiorari
jurisdiction applied even if the decision was not rendered by a judicial or quasi-judicial
body; hence, it is broader than the writ of certiorari under Rule 65, which is limited to
cases involving a grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the government and there is no other
plain and speedy remedy available to a party in the ordinary course of law.
(9) 2007 Bar: L was charged with illegal possession of shabu before the RTC. Although
bail was allowable under his indictment, he could not afford to post bal, and so he
remained in detention at the City Jail. For various reasons ranging from the promotion
of the Presiding Judge, to the absence of the trial prosecutor, and to the lack of notice to
the City Jail Warden, the arraignment of L was postponed nineteen times over a period
of two years. Twice during that period, L‘s counsel filed motions to dismiss, invoking the
right of the accused to a speedy trial. Both motions were denied by the RTC. Can L file
a petition for mandamus? Reason briefly.
Answer: Yes, L can file a petition for mandamus, invoking the right to speedy trial (Rule
65, Section 3). The numerous and unreasonable postponements displayed an abusive
exercise of discretion (Lumanlaw v. Peralta, GR No. 164953, 02/13/2005).
(10) 2006 Bar: In 1996, Congress passed RA 8189, otherwise known as the Voter‘s
Registration Act of 1996, providing for computerization of elections. Pursuant thereto,
the COMELEC approved the Voter‘s Registration and Identification System (VRIS)
Project. It issued invitations to pre-qualify and bid for the project. After the public
bidding, Fotokina was declared and was issued a Notice of Award. But COMELEC
Chairman Gener Go objected to the award on the ground that under the Appropriations
Act, the budget for the COMELEC‘s modernization is only P1 billion. He announced to
the public that the VRIS project has been set aside. Two Commissioners sided with
Chairman Go, but the majority voted to uphold the contract.
Meanwhile, Fotokina filed with the RTC a petition for mandamus to compel the
COMELEC to implement the contract. The Office of the Solicitor General (OSG),
representing Chairman Go, opposed the petition on the ground that mandamus does
not lie to enforce contractual obligations. During the proceedings, the majority of
Commissioners filed a manifestation that Chairman Go was not authorized by the
COMELEC En Banc to oppose the petition.
Is a petition for mandamus an appropriate remedy to enforce contractual obligations?
Answer: No, the petition for mandamus is not an appropriate remedy because it is not
available to enforce a contractual obligation. Mandamus is directed only to ministerial
acts, directing or commanding a person to do a legal duty (COMELECv. Quijano-Ladlla,
GR No. 151992, 09/18/2002).

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Definitions and distinctions

Certiorari Prohibition Mandamus

Certiorari is an extraordinary Prohibition is an extraordinary Mandamus is an extraordinary

writ annulling or modifying the writ commanding a tribunal, writ commanding a tribunal,
proceedings of a tribunal, corporation, board or person, corporation, board or person,
board or officer exercising whether exercising judicial, to do an act required to be
judicial or quasi-judicial quasi-judicial or ministerial done:
functions when such tribunal, functions, to desist from (a) When he unlawfully
board or officer has acted further proceedings when said neglects the performance
without or in excess of its or proceedings are without or in of an act which the law
his jurisdiction, or with grave excess of its jurisdiction, or specifically enjoins as a
abuse of discretion amounting with abuse of its discretion, duty, and there is no other
to lack or excess of there being no appeal or any plain, speedy and
jurisdiction, there being no other plain, speedy and adequate remedy in the
appeal or any other plain, adequate remedy in the ordinary course of law; or
speedy and adequate remedy ordinary course of law (Sec. (b) When one unlawfully
in the ordinary course of law 2, Rule 65). excludes another from the
(Sec. 1, Rule 65). use and enjoyment of a
right or office to which the
other is entitled (Sec. 3,
Rule 65).
Directed against a person Directed against a person Directed against a person
exercising to judicial or quasi- exercising judicial or quasi- exercising ministerial duties
judicial functions judicial functions, or
ministerial functions

Object is to correct Object is to prevent Object is to compel

Purpose is to annul or modify Purpose is to stop the Purpose is to compel
the proceedings proceedings performance of the act
required and to collect
damages
Person or entity must have Person or entity must have Person must have neglected
acted without or in excess of acted without or in excess of a ministerial duty or excluded
jurisdiction, or with grave jurisdiction, or with grave another from a right or office
abuse of discretion abuse of discretion

Prohibition Injunction
Always the main action May be the main action or just a provisional
remedy
Directed against a court, a tribunal exercising Directed against a party
judicial or quasi-judicial functions
Ground must be the court acted without or in Does not involve a question of jurisdiction
excess of jurisdiction
Prohibition Mandamus
To prevent an act to be done by a respondent To compel to do an act desired
May be directed against entities exercising May be directed against judicial and non-
judicial or quasi-judicial, or ministerial judicial entities

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functions

Extends to discretionary functions Extends only to ministerial functions

Mandamus Quo warranto
Clarifies legal duties, not legal titles Clarifies who has legal title to the office, or
franchise
Respondent, without claiming any right to the Respondent usurps the office
office, excludes the petitioner

Requisites

Certiorari Prohibition Mandamus

That the petition is directed The petition is directed The plaintiff has a clear legal
against a tribunal, board or against a tribunal, corporation, right to the act demanded;
officer exercising judicial or board or person exercising
quasi-judicial functions; judicial, quasi-judicial, or
ministerial functions;
The tribunal, board or officer The tribunal, corporation, It must be the duty of the
has acted without, or in board or person must have defendant to perform the act,
excess of jurisdiction or with acted without or in excess of which is ministerial and not
abuse of discretion amounting jurisdiction or with grave discretionary, because the
to lack or excess of abuse of discretion amounting same is mandated by law;
jurisdiction to lack of jurisdiction;
There is no appeal or any There is no appeal or any There is no appeal or any
plain, speedy and adequate plain, speedy and adequate plain, speedy and adequate
remedy in the ordinary course remedy in the ordinary course remedy in the ordinary course
of law. of law. of law.
Accompanied by a certified Accompanied by a certified The defendant unlawfully
true copy of the judgment or true copy of the judgment or neglects the performance of
order subject of the petition, order subject of the petition, the duty enjoined by law;
copies of all pleadings and copies of all pleadings and
documents relevant and documents relevant and
pertinent thereto, and sworn pertinent thereto, and sworn
certification of non-forum certification of non-forum
shopping under Rule 46. shopping under Rule 46.

When petition for certiorari, prohibition and mandamus is proper

Certiorari Prohibition Mandamus

when any tribunal, board or When the proceedings of any When any tribunal,
officer exercising judicial or tribunal, corporation, board, corporation, board, officer or
quasi-judicial functions has officer or person, whether person unlawfully neglects the
acted without or in excess of exercising judicial, quasi- performance of an act which
its or his jurisdiction, or with judicial or ministerial the law specifically enjoins as
grave abuse of discretion functions, are without or in a duty resulting from an office,
amounting to lack or excess excess of its or his trust, or station, or unlawfully
of jurisdiction, and there is no jurisdiction, or with grave excludes another from the use
appeal, or any plain, speedy, abuse of discretion amounting and enjoyment of a right or
and adequate remedy in the to lack or excess of office to which such other is
ordinary course of law, a jurisdiction, and there is no entitled, and there is no other
person aggrieved thereby appeal or any other plain, plain, speedy and adequate

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may file a verified petition in speedy, and adequate remedy in the ordinary course
the proper court, alleging the remedy in the ordinary course of law, the person aggrieved
facts with certainty and of law, a person aggrieved thereby may file a verified
praying that judgment be thereby may file a verified petition in the proper court,
rendered annulling or petition in the proper court, alleging the facts with
modifying the proceedings of alleging the facts with certainty and praying that
such tribunal, board or officer, certainty and praying that judgment be rendered
and granting such incidental judgment be rendered commanding the respondent,
reliefs as law and justice may commanding the respondent immediately or at some other
require. to desist from further time to be specified by the
proceedings in the action or court, to do the act required to
The petition shall be
matter specified therein, or be done to protect the rights
accompanied by a certified
otherwise granting such of the petitioner, and to pay
true copy of the judgment,
incidental reliefs as law and the damages sustained by the
order or resolution subject
justice may require. petitioner by reason of the
thereof, copies of all
wrongful acts of the
pleadings and documents
The petition shall likewise be respondent.
relevant and pertinent thereto,
accompanied by a certified
and a sworn certification of The petition shall also contain
true copy of the judgment,
non-forum shopping as a sworn certification of non-
order or resolution subject
provided in the third forum shopping as provided in
thereof, copies of all
paragraph of section 3, Rule the third paragraph of section
pleadings and documents
46 (Sec. 1, Rule 65). 3, Rule 46 (Sec. 3, Rule 65).
relevant and pertinent thereto,
and a sworn certification of
non-forum shopping as
provided in the third
paragraph of section 3, Rule
46. (Sec. 2, Rule 65).

(1) With respect to the Court, however, the remedies of certiorari and prohibition are
necessarily broader in scope and reach, and the writ of certiorari or prohibition may be
issued to correct errors of jurisdiction committed not only by a tribunal, corporation,
board or officer exercising judicial, quasi-judicial or ministerial functions but also to set
right, undo and restrain any act or grave abuse of discretion amounting to lack or
excess of jurisdiction by any branch or instrumentality of the Government, even if the
latter does not exercise judicial, quasi-judicial or ministerial functions. This application is
expressly authorized by the text of the second paragraph of Section 1, Article VII of the
1987 Constitution. Thus, petitions for certiorari and prohibition are appropriate remedies
to raise constitutional issues and to review and/or prohibit or nullify the acts of
legislative and executive officials. Necessarily, in discharging its duty under [the
Constitution] to set right and undo any act of grave abuse of discretion amounting to
lack or excess of jurisdiction by any branch or instrumentality of the Government, the
Court is not at all precluded from making the inquiry provided the challenge was
properly brought by interested or affected parties. The Court has been thereby
entrusted expressly or by necessary implication with both the duty and the obligation of
determining, in appropriate cases, the validity of any assailed legislative or executive
action. This entrustment is consistent with the Republican system of checks and
balances. (Araullo v. Aquino, GR No., 209287, 07/01/2014).
(2) A Petition for Certiorari will prosper if the following rules will be observed: 1) the
applicant must allege with certainty that there is no appeal, nor any plain, speedy and
adequate remedy in the ordinary course of law, or when any of those are present, allege
facts showing that any existing remedy is impossible or unavailing, or that will excuse
him for not having availed himself of such remedy; 2) he must also show that the party
against whom it is being sought acted in grave abuse of discretion as to amount to lack

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 of jurisdiction; and 3) the hierarchy of courts must be respected. However, it cannot be
resorted to when then the lower court acquired jurisdiction over the case and the person
of the petitioners for any perceived error in its interpretation of the law and its
assessment of evidence would only be considered an error of judgment and not of
jurisdiction. Hence, such is correctible by appeal and not by certiorari. (Candelaria v.
RTC-San Fernando Br. 42, GR No. 173861, 07/14/2014).
(3) For certiorari to prosper, the following requisites must concur: (1) the writ is directed
against a tribunal, a board or any officer exercising judicial or quasi-judicial functions;
(2) such tribunal, board or officer has acted without or in excess of jurisdiction, or with
grave abuse of discretion amounting to lack or excess of jurisdiction; and (3) there is no
appeal or any plain, speedy and adequate remedy in the ordinary course of law. In this
case, the Court finds no abuse of discretion, grave or simple in nature, committed by the
CA in dismissing the petitioners‘ certiorari petition for being the wrong mode of appeal.
The CA‘s dismissal of the certiorari petition is, in fact, well- supported by law and
jurisprudence. The Court previously held that Rule 43 of the Rules of Court shall govern
the procedure for judicial review of decisions, orders, or resolutions of the DAR
Secretary, and that an appeal taken to the Supreme Court or the CA by the wrong or
inappropriate mode shall be dismissed. (Heirs of Sobremonte v. Court of Appeals, GR
No. 206234, 10/22/2014).
(4) The RTC issued a writ of execution to which respondent sheriff has reported that it has
been fully implemented. Two years after, petitioner filed for another issuance of writ of
execution which has been denied. Petitioner filed an action for mandamus to compel the
RTC to issue such. The Court dismissed the petition. A writ of mandamus is employed
to compel the performance, when refused, of a ministerial duty which is that which an
officer or tribunal in obedience to the mandate of legal authority, without regard to or the
exercise of his or its own judgment upon the propriety or impropriety of the act done.
The writ of execution has already been implemented. The proper remedy is to cite the
disobedient party in contempt. (Martinez v. Judge Martin, GR No. 203022, 12/03/2014).
(5) When petitioners, a Diocese and its Bishop posted tarpaulins in front of the cathedral
which aimed to dissuade voters from electing candidates who supported the RH Law,
and the COMELEC twice ordered the latter to dismantle the tarpaulin for violation of its
regulation which imposed a size limit on campaign materials, the petitioners may
directly file a Rule 65 Petition with the Supreme Court without need for a ruling from the
COMELEC En Banc, as the petitioners are not candidates in the elections but is
asserting their right to free speech, and the COMELEC acts not in its quasi-judicial
function but in its regulatory function. In addition, the doctrine of hierarchy of courts is
not violated, as the case falls under the exceptions thereto. The petitioners also did not
violate the principle of exhaustion of administrative remedies, as the same yields in
order to protect this fundamental right. Even if it applies, the case falls under the
exceptions to the doctrine; namely: it involves a legal question and the application of the
doctrine would be unreasonable. Finally, the case is about COMELEC‘s breach of the
petitioners‘ fundamental right of expression of matters relating to election. Such a
violation is grave abuse of discretion; thus the constitutionality of COMELEC‘s orders
are within the Supreme Court‘s power to review under Rule 65. (Diocese of Bacolod v.
COMELEC, GR No. 205728, 01/21/2015).
(6) As can be gleaned from both the Rules of Procedure of the Office of the Ombudsman
and the Rules of Court, the respondent is required to be furnished a copy of the
complaint and the supporting affidavits and documents. Clearly, these pertain to
affidavits of the complainant and his witnesses, not the affidavits of the co-respondent.
As such, no grave abuse of discretion can thus be attributed to the Ombudsman for the
issuance of an order denying the request of the respondent to be furnished copies of
counter-affidavits of his co-respondents. Also, as a general rule, a motion for
reconsideration is mandatory before the filing of a petition for certiorari. Absent any

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 compelling reason to justify non-compliance, a petition for certiorari will not lie. All the
more, it will lie only if there is no appeal or any other plain, speedy and adequate
remedy available in the ordinary course of law. Thus, a failure to avail of the opportunity
to be heard due to the respondent‘s own fault cannot in any way be construed as a
violation of due process by the Ombudsman, much less of grave abuse of discretion.
Finally, a respondent‘s claim that his rights were violated cannot be given credence
when he flouts the rules himself by resorting to simultaneous remedies by filing Petition
for Certiorari alleging violation of due process by the Ombudsman even as his Motion
for Reconsideration raising the very same issue remained pending with the
Ombudsman. (Estrada v. Bersamin, GR Nos. 212140-41, 01/21/2015).

Injunctive relief

(1) 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 (Sec. 7).
(2) The public respondent shall proceed with the principal case within ten (10) days from
the filing of a petition for certiorari with a higher court or tribunal, absent a Temporary
Restraining Order (TRO) or a Writ of Preliminary Injunction, or upon its expiration.
Failure of the public respondent to proceed with the principal case may be a ground for
an administrative charge (AM 07-7-12-SC, Dec. 12, 2007).

Certiorari distinguished from Appeal by Certiorari; Prohibition and Mandamus

distinguished from Injunction; when and where to file petition

Certiorari as a Mode of Appeal Certiorari as a Special Civil Action

(Rule 45) (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, not a part of the
the appellate process over the original case; appellate process but an independent action.
May be directed against an interlocutory order
of the court or where no appeal or plain or
Seeks to review final judgments or final orders;
speedy remedy available in the ordinary
course of law
Raises questions of jurisdiction because a
tribunal, board or officer exercising judicial or
quasi-judicial functions has acted without
Raises only questions of law;
jurisdiction or in excess of jurisdiction or with
grave abuse of discretion amounting to lack of
jurisdiction;
Filed not later than 60 days from notice of
judgment, order or resolution sought to be
Filed within 15 days from notice of judgment or
assailed and in case a motion for
final order appealed from, or of the denial of
reconsideration or new trial is timely filed,
petitioner‘s motion for reconsideration or new
whether such motion is required or not, the 60
trial;
day period is counted from notice of denial of
said motion;
Extension of 30 days may be granted for Extension no longer allowed;

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justifiable reasons
Does not require a prior motion for Motion for Reconsideration is a condition
reconsideration; precedent, subject to exceptions
Does not stay the judgment or order subject of
Stays the judgment appealed from;
the petition unless enjoined or restrained;
Parties are the original parties with the
The tribunal, board, officer exercising judicial
appealing party as the petitioner and the
or quasi-judicial functions is impleaded as
adverse party as the respondent without
respondent
impleading the lower court or its judge;
May be filed with the Supreme Court, Court of
Filed only with the Supreme Court Appeals, Sandiganbayan, or Regional Trial
Court
SC may deny the decision motu propio on the
ground that the appeal is (1) without merit, or
is (2) prosecuted manifestly for delay, or that
(3) the questions raised therein are too
unsubstantial to require consideration.

(1) The remedies of appeal and certiorari are mutually exclusive and not alternative or
successive. The antithetic character of appeal and certiorari has been generally
recognized and observed save only on those rare instances when appeal is
satisfactorily shown to be an inadequate remedy. Thus, a petitioner must show valid
reasons why the issues raised in his petition for certiorari could not have been raised on
appeal (Banco Filipino Savings and Mortgage Bank vs. CA, 334 SCRA 305) .

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
writ commanding a tribunal, writ commanding a tribunal, seeks to enjoin the defendant
corporation, board or person, corporation, board or person, from the commission or
whether exercising judicial, to do an act required to be continuance of a specific act,
quasi-judicial or ministerial done: or to compel a particular act
functions, to desist from (a) When he unlawfully in violation of the rights of the
further proceedings when said neglects the performance applicant.
proceedings are without or in of an act which the law
excess of its jurisdiction, or specifically enjoins as a Preliminary injunction is a
with abuse of its discretion, duty, and there is no other provisional remedy to
there being no appeal or any plain, speedy and adequate preserve the status quo and
other plain, speedy and remedy in the ordinary prevent future wrongs in order
adequate remedy in the course of law; or to preserve and protect
ordinary course of law (Sec. 2, (b) When one unlawfully certain interests or rights
Rule 65). excludes another from the during the pendency of an
use and enjoyment of a action.
right or office to which the
other is entitled (Sec. 3,
Rule 65).
Special civil action Special civil action Ordinary civil action
To prevent an encroachment, To compel the performance of For the defendant either to
excess, usurpation or a ministerial and legal duty; refrain from an act or to
assumption of jurisdiction; perform not necessarily a

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 legal and ministerial duty;
May be directed against May be directed against Directed against a party
entities exercising judicial or judicial and non-judicial
quasi-judicial, or ministerial entities
functions
Extends to discretionary Extends only to ministerial Does not necessarily extend
functions functions to ministerial, discretionary or
legal functions;
Always the main action Always the main action May be the main action or just
a provisional remedy
May be brought in the May be brought in the May be brought in the
Supreme Court, Court of Supreme Court, Court of Regional Trial Court which
Appeals, Sandiganbayan, or Appeals, Sandiganbayan, or has jurisdiction over the
in the Regional Trial Court in the Regional Trial Court territorial area where
which has jurisdiction over the which has jurisdiction over the respondent resides.
territorial area where territorial area where
respondent resides. respondent resides.

Exceptions to filing of motion for reconsideration before filing petition

(1) The following constitutes the exceptions to the rule:

(a) When the issue is one purely of law;
(b) When there is urgency to decide upon the question and any further delay would
prejudice the interests of the government or of the petitioner;
(c) Where the subject matter of the action is perishable;
(d) When order is a patent nullity, as where the court a quo has no jurisdiction or there
was no due process;
(e) When questions have been duly raised and passed upon by the lower court;
(f) When is urgent necessity for the resolution of the question;
(g) When Motion for Reconsideration would be useless, e.g. the court already indicated
it would deny any Motion for Reconsideration;
(h) In a criminal case, where relief from order of arrest is urgent and the granting of
such relief by the trial court is improbable;
(i) Where the proceedings was ex parte or in which the petitioner had no opportunity to
object;
(j) When the petitioner is deprived of due process and there is extreme urgency for
urgent relief; and
(k) When the issue raised is one purely of law or public interest is involved.
(2) The well-established rule is that the motion for reconsideration is an indispensable
condition before an aggrieved party can resort to the special civil action for certiorari
under Rule 65 of the Rules of Court. The rule is not absolute, however, considering that
jurisprudence has laid down exceptions to the requirement for the filing of a petition for
certiorari without first filing a motion for reconsideration, namely: (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 proceedings have been duly raised and passed upon by the
lower court, or are the same as those raised and passed upon in the lower court; (c)
where there is an urgent necessity for the resolution of the question, and any further
delay would prejudice the interests of the Government, or of the petitioner, or the
subject matter of the petition is perishable; (d) where, under the circumstances, a
motion for reconsideration would be useless; (e) where the 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

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 improbable; (g) where the proceedings in the lower court are a nullity for lack of due
process; (h) where the proceeding 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 public
interest is involved. A perusal of the circumstances of the case shows that none of the
foregoing exceptions was applicable herein. Hence, Causing should have filed the
motion for reconsideration, especially because there was nothing in the COMELEC
Rules of Procedure that precluded the filing of the motion for reconsideration in election
offense cases. (Causing v. COMELEC, GR No. 199139, 09/09/2014).

Reliefs petitioner is entitled to

(1) The primary relief will be annulment or modification of the judgment, order or resolution
or proceeding subject of the petition. It may also include such other incidental reliefs as
law and justice may require (Sec. 1). The court, in its judgment may also award
damages and the execution of the award for damages or costs shall follow the
procedure in Sec. 1, Rule 39 (Sec. 9).

Actions/Omissions of MTC/RTC in election cases

(1) Under Rule 65, the proper party who can file a petition for certiorari, prohibition or
mandamus is the person aggrieved by the action of a trial court or tribunal in a criminal
case pending before it. Ordinarily, the petition is filed in the name of the People of the
Philippines by the Solicitor General. However, there are cases when such petition may
be filed by other parties who have been aggrieved by the order or ruling of the trial
courts. In the prosecution of election cases, the aggrieved party is the Comelec, who
may file the petition in its name through its legal officer or through the Solicitor General
if he agrees with the action of the Comelec (Comelec vs. Silva, Jr., 286 SCRA 177
[1998]).

When and where to file petition

Supreme Court Subject to the doctrine of hierarchy of

courts and only when compelling reasons
exist for not filing the same with the lower
courts
Court of Appeals only If the petition involves an act or an
omission of a quasi-judicial agency, unless
otherwise provided by law or rules
Court of Appeals or the Sandiganbayan Whether or not in aid of appellate
jurisdiction
Commission on Elections In election cases involving an act or an
omission of an MTC or RTC
Regional Trial Court If the petition relates to an act or an
omission of an MTC, corporation, board,
officer or person
As amended by AM No. 07-7-12-SC, Dec. 12, 2007

(1) A petition for certiorari must be based on jurisdictional grounds because as long as the
respondent acted with jurisdiction, any error committed by him or it in the exercise
thereof will amount to nothing more than an error of judgment which may be reviewed or
corrected by appeal (Microsoft Corp. vs. Best Deal Computer Center Corp., GR 148029,
Sept. 24, 2002; Estrera vs. CA, GR 154235, Aug. 16, 2006).

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 (2) The petition for certiorari shall be filed not later than sixty (60) days from notice of the
judgment, order or resolution. In case a motion for reconsideration or new trial is timely
filed, whether such motion is required or not, the petition shall be filed not later than
sixty (60) days counted from the notice of the denial of the motion. However, the 60-day
period may be extended under any of the circumstances. In the instant case, the Order
of RTC was received by private complainants on 14 October 2010. Then the Petition for
Certiorari was filed one day after the 60-day reglementary period for filing the Petition
for Certiorari, since the letter evidencing that the OSG received the documents
erroneously stated that the deadline for filing was 14 December 2010, instead of 13
December 2010. On 30 November 2010, counsel for private complainants submitted to
the Office of the Prosecutor General the draft petition for certiorari, the verification and
certification against forum shopping, the original copies containing the signatures of the
private prosecutors, and the certified copies of the annexes. These documents were
received by the OSG on 3 December 2010 only. Given the circumstances, the Court
holds that the CA-Cebu should have applied the rules liberally and excused the belated
filing. (People v. Espinosa, GR No. 199070, 04/07//2014) .
(3) Under Section 4, Rule 65 of the Rules of Court, an aggrieved party has sixty (60) days
from receipt of the assailed decision, order or resolution within which to file a petition for
certiorari. Well-settled is the rule that if a litigant is represented by counsel, notices of all
kinds, including court orders and decisions, must be served on said counsel, and notice
to him is considered notice to his client. (Pagdanganan v. Sarmiento, GR No. 206555,
09/17/2014).

Effects of filing of an unmeritorious petition

(1) The Court may impose motu propio, based on res ipsa loquitur, other disciplinary
sanctions or measures on erring lawyers for patently dilatory and unmeritorious petition
for certiorari (AM 07-7-12-SC, Dec. 12, 2007). 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.

Quo Warranto (Rule 66)

(1) Quo warranto is a demand made by the state upon some individual or corporation to
show by what right they exercise some franchise or privilege appertaining to the state
which, according to the Constitution and laws they cannot legally exercise by virtue of a
grant and authority from the State (44 Am. Jur. 88-89).

(2) It is a special civil action commenced by a verified petition against (a) a person who
usurps a public office, position or franchise; (b) a public officer who performs an act
constituting forfeiture of a public office; or (c) an association which acts as a corporation
within the Philippines without being legally incorporated or without lawful authority to do
so (Sec. 1).
(3) 2001 Bar: Petitioner Fabian was appointed Election Registrar of the Municipality of
Sevilla supposedly to replace the respondent Election Registrar Pablo who was
transferred to another municipality without his consent and who refused to accept his
aforesaid transfer, much less to vacate his position in Bogo town as election registrar,
as in fact he continued to occupy his aforesaid position and exercise his functions
thereto. Petitioner Fabian then filed a petition for mandamus against Pablo but the trial

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 court dismissed Fabian‘s petition contending that quo warranto is the proper remedy. Is
the court correct in its ruling? Why? (5%)
Answer: Yes, the court is correct in its ruling. Mandamus will not lie. This remedy
applies only not when it is doubtful. Pablo was transferred without his consent which is
tantamount to removal without cause contrary to the fundamental guarantee on non-
removal except for cause. Considering that Pedro continued to occupy the disputed
position and exercise his functions therein, the proper remedy is quo warranto, not
mandamus (Garces v. Court of Appeals, 259 SCRA 99 [1996]).
(4) 2001 Bar: A group of businessmen formed an association in Cebu City clling itself Cars
Co. to distribute/sell cars in said city. It did not incorporate itself under the law nor did it
have any government permit or license to conduct its business as such. The Solicitor
General filed before a Regional Trial Court (RTC) in Manila a verified petition for quo
warranto questioning and seeking to stop the operation of Cars Co. The latter filed a
motion to dismiss the petition on the ground of improper venue claiming that its main
office and operations are in Cebu City and not in Manila. Is the contention of Cars Co.
correct? Why? (5%)
Answer: No. As expressly provided in the Rules, when the Solicitor General
commences the action quo warranto, it may be brought in a Regional Trial Court in the
City of Manila, as in this case, in the Court of Appeals or in the Supreme Court (Rule 66,
Section 7).

Distinguish from Quo Warranto in the Omnibus Election Code

Quo Warranto (Rule 66) Quo Warranto (Election Code)

Subject of the petition is in relation to an Subject of the petition is in relation to an
appointive office; elective office;
The issue is the legality of the occupancy of Grounds relied upon are: (a) ineligibility to the
the office by virtue of a legal appointment; position; or (b) disloyalty to the Republic.
Petition is brought either to the Supreme May be instituted with the COMELEC by any
Court, the Court of Appeals or the Regional voter contesting the election qualification of
Trial Court; any member of Congress, regional, provincial
or city officer; or to the MeTC, MTC or MCTC if
against any barangay official;
Filed within one (1) year from the time the Filed within ten (10) days after the
cause of ouster, or the right of the petitioner to proclamation of the results of the election;
hold the office or position arose;
Petitioner is the person entitled to the office; Petitioner may be any voter even if he is not
entitled to the office;
The court has to declare who the person When the tribunal declares the candidate-elect
entitled to the office is if he is the petitioner. as ineligible, he will be unseated but the
person occupying the second place will not be
declared as the one duly elected because the
law shall consider only the person who, having
duly filed his certificate of candidacy, received
a plurality of votes.

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When government commence an action against individuals

(1) Quo warranto is commenced by a verified petition brought in the name of the
Government of the Republic of the Philippines by the Solicitor General, or in some
instances, by a public prosecutor (Secs. 2 and 3). When the action is commenced by
the Solicitor General, the petition may be brought in the Regional Trial Court of the City
of Manila, the Court of Appeals or the Supreme Court (Sec. 7).
(2) 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 thru the
Solicitor General 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;
(c) An association which acts a corporation within the Philippines without being legally
incorporated or without lawful authority so to act (Sec. 1).

When individual may commence an action

(1) The petition may be commenced by a private person in his own name where he claims
to be entitled to the public office or position alleged to have been usurped or unlawfully
held or exercised by another (Sec. 5). Accordingly, the private person may maintain the
action without the intervention of the Solicitor General and without need for any leave of
court (Navarro vs. Gimenez, 10 Phil. 226; Cui vs. Cui, 60 Phil. 37). In bringing a petition
for quo warranto, he must show that he has a clear right to the office allegedly being
held by another (Cuevas vs. Bacal, 347 SCRA 338). It is not enough that he merely
asserts the right to be appointed to the office.

Judgment in Quo Warranto action

(1) When the respondent is found guilty of usurping, intruding into, or unlawfully holding or
exercising a public office, position or franchise, judgment shall be rendered that such
respondent be ousted and altogether excluded therefrom, and that the petitioner or
relator, as the case may be, recover his costs. Such further judgment may be rendered
determining the respective rights in and to the public office, position or franchise of the
parties to the action as justice requires (Sec. 9).

Rights of a person adjudged entitled to public office

(1) f the petitioner is adjudged to be entitled to the office, he may sue for damages against
the alleged usurper within one (1) year from the entry of judgment establishing his right
to the office in question (Sec. 11).

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 Expropriation (Rule 67)

(1) Expropriation is an exercise of the State‘s power of eminent domain wherein the
government takes a private property for public purpose upon payment of just
compensation.
(2) 2016 Bar (Civil Law): The original landowners may reacquire the subject property
because of the abandonment of the public use for which they were previously
expropriated and pursuant to their original agreement of repurchase.
In expropriation proceedings, public usage of the property being expropriated is an
essential element for the proceedings to be valid. If the genuine public necessity –- the
very reason or condition as it were allowing, at the first instance, the expropriation of a
private land ceases or disappears, then there is no more cogent point for the
government‘s retention of the expropriated land (Vda. De Ouano v. Republic, GR No.
168770, 02/09/2011).
(3) When the National Power Corporation filed an expropriation case and the same was
subsequently dismissed due to failure to prosecute, it is as if no complaint for
expropriation was filed. As a result the NPC is considered to have violated procedural
requirements, and hence, waived the usual procedure prescribed in Rule 67, including
the appointment of commissioners to ascertain just compensation. Thus, the RTC
should have fixed the value of the property for the purposes of just compensation at the
time NPC took possession of the same in 1990, and not at the time of the filing of the
complaint for compensation and damages in 1994 or its fair market value in 1995.
(National Power Corporation v. Samar, GR No. 197329, 09/08/2014).
(4) The determination of just compensation is a judicial function; hence, courts cannot be
unduly restricted in their determination thereof. To do so would deprive the courts of
their judicial prerogatives and reduce them to the bureaucratic function of inputting data
and arriving at the valuation. While the courts should be mindful of the different formulae
created by the DAR in arriving at just compensation, they are not strictly bound to
adhere thereto if the situations before them do not warrant it. Thus, the RTC is advised
that while it should be mindful of the different formulae created by the DAR in arriving at
just compensation, it is not strictly bound to adhere thereto if the situations before it do
not warrant their application. (Land Bank of the Philippines v. Heirs of Jesus Alsua, GR
No. 211351, 02/04/2015).
(5) In the present case, NAPOCOR admits that the expropriation of the land in question is
no longer necessary for public use. Had that admission been made in the trial court the
case should have been dismissed there. It now appearing positively, by resolution of
[NAPOCOR], that the expropriation is not necessary for public use, the action should be
dismissed even without a motion... The moment it appears in whatever stage of the
proceedings that the expro-priation is not for a public use the complaint should be
dismissed and all the parties thereto should be relieved from further annoyance or
litigation. (Republic v. Heirs of Saturnino Borbon,GR No. 165354, 01/12/2015) .
(6) 2006 Bar: May Congress enact a law providing that a 5,000 square meter lot, a part of
the UST compound in Sampaloc Manila, be expropriated for the construction of a park
in honor of former City Mayor Arsenio Lacson? As compensation to UST, the City of
Manila shall deliver its 5-hectare lot in Sta. Rosa, Laguna originally intended as a
residential subdivision for the Manila City Hall employees. Explain. (5%)
Answer: Yes, Congress may enact a law expropriating property provided that it is for
public use and with just compensation. In this case, the construction of a park is for
public use. The planned compensation, however, is not legally tenable as the
determination of just compensation is a judicial function. No statute, decree or
executive order can mandate that the determination of just compensation by the
executive or legislative departments can prevail over the court‘s findings (Rule 67,

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 Section 5 to 8). In addition, compensation must be paid in money (Reyes v. NHA, GR
No. 147511, 03/24/2003).

Matters to allege in complaint for expropriation

(1) An expropriation proceeding is commenced by the filing of a verified complaint which

shall:
(a) State with certainty the right of the plaintiff to expropriation and the purpose thereof;
(b) Describe the real or personal property sought to be expropriated; and
(c) Join as defendants all persons owning or claiming to own, or occupying, any part of
the property or interest therein showing as far as practicable the interest of each
defendant. If the plaintiff cannot with accuracy identify the real owners, averment to
that effect must be made in the complaint (Sec. 1).

Two stages in every action for expropriation

(1) Determination of the authority of the plaintiff to expropriate – this includes an inquiry into
the propriety of the expropriation, its necessity and the public purpose. This stage will
end in the issuance of an order of expropriation if the court finds for the plaintiff or in the
dismissal of the complaint if it finds otherwise.
(2) Determination of just compensation through the court-appointed commissioners
(National Power Corporation vs. Joson, 206 SCRA 520).

When plaintiff can immediately enter into possession

of the real property, in relation to RA 8974

(1) Except for the acquisition of right-of-way, site or location for any national government
infrastructure project through expropriation, the expropriator shall have the right to take
or enter upon the possession of the real property involved if he deposits with the
authorized government depositary an amount equivalent to the assessed value of the
property for purposes of taxation to be held by such bank subject to the orders of the
court. such deposit shall be in money, unless in lieu thereof the court authorizes the
deposit of a certificate of deposit of a government bank of the Philippines payable on
demand to the authorized government depositary (Sec. 2, Rule 67).

New system of immediate payment of initial just compensation

(1) For the acquisition of right-of-way, site or location for any national government
infrastructure project through expropriation, upon the filing of the filing of the complaint,
and after due notice to the defendant, the implementing agency shall immediately pay
the owner of the property the amount equivalent to the sum of (1) 100 percent of the
value of the property based on the current relevant zonal valuation of the BIR; and (2)
the value of the improvements and/or structures as determined under Sec. 7 of RA 8974
(Sec. 4, RA 8974). Deposit is fifteen percent (15%) of the fair market value (Sec. 19,
LGC).

Defenses and objections

(1) Omnibus Motion Rule — Subject to the provisions of Sec. 1, Rule 9, a motion attacking a
pleading, order, judgment or proceeding shall include all objections then available, and
all objections not so included shall be deemed waived (Sec. 8, Rule 15).

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 (2) If a defendant has no objection or defense to the action or the taking of his property, he
may file and serve a notice of appearance and a manifestation to that effect, specifically
designating or identifying the property in which he claims to be interested, within the
time stated in the summons. Thereafter, he shall be entitled to notice of all proceedings
affecting the same.
If a defendant has any objection to the filing of or the allegations in the complaint, or any
objection or defense to the taking of his property, he shall serve his answer within the
time stated in the summons. The answer shall specifically designate or identify the
property in which he claims to have an interest, state the nature and extent of the
interest claimed, and adduce all his objections and defenses to the taking of his
property. No counterclaim, cross-claim or third-party complaint shall be alleged or
allowed in the answer or any subsequent pleading.
A defendant waives all defenses and objections not so alleged but the court, in the
interest of justice, may permit amendments to the answer to be made not later than ten
(10) days from the filing thereof. However, at the trial of the issue of just compensation,
whether or not a defendant has previously appeared or answered, he may present
evidence as to the amount of the compensation to be paid for his property, and he may
share in the distribution of the award (Sec. 3).

Order of Expropriation

(1) 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
(Sec. 4).

Ascertainment of just compensation

(1) The order of expropriation merely declares that the plaintiff has the lawful right to
expropriate the property but contains no ascertainment of the compensation to be paid
to the owner of the property. So upon the rendition of the order of expropriation, the
court shall appoint not more than three (3) commissioners to ascertain the just
compensation for the property. Objections to the appointment may be made within 10
days from service of the order of appointment (Sec. 5). The commissioners are entitled
to fees and their fees shall be taxed as part of the costs of the proceedings, and all
costs shall be paid by the plaintiff except those costs of rival claimants litigating their
claims (Sec. 12).
(2) Where the principal issue is the determination of just compensation, a hearing before
the commissioners is indispensable to allow the parties to present evidence on the
issue of just compensation. Although the findings of the commissioners may be
disregarded and the trial court may substitute its own estimate of the value, the latter
may do so only for valid reasons, that is where the commissioners have applied illegal
principles to the evidence submitted to them, where they have disregarded a clear

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 preponderance of evidence, or where the amount allowed is either grossly inadequate
or excessive.

Appointment of Commissioners; Commissioner‘s report;

Court action upon commissioner‘s report

(1) Appointment. Upon the rendition of the order of expropriation, the court shall appoint not
more than three (3) competent and disinterested persons as commissioners to ascertain
and report to the court the just compensation for the property sought to be taken. The
order of appointment shall designate the time and place of the first session of the
hearing to be held by the commissioners and specify the time within which their report
shall be submitted to the court.
Copies of the order shall be served on the parties. Objections to the appointment of any
of the commissioners shall be filed with the court within ten (10) days from service, and
shall be resolved within thirty (30) days after all the commissioners shall have received
copies of the objections (Sec. 5).

(2) Proceedings. Before entering upon the performance of their duties, the commissioners
shall take and subscribe an oath that they will faithfully perform their duties as
commissioners, which oath shall be filed in court with the other proceedings in the case.
Evidence may be introduced by either party before the commissioners who are
authorized to administer oaths on hearings before them, and the commissioners shall,
unless the parties consent to the contrary, after due notice to the parties to attend, view
and examine the property sought to be expropriated and its surroundings, and may
measure the same, after which either party may, by himself or counsel, argue the case.
The commissioners shall assess the consequential damages to the property not taken
and deduct from such consequential damages the consequential benefits to be derived
by the owner from the public use or purpose of the property taken, the operation of its
franchise by the corporation or the carrying on of the business of the corporation or
person taking the property. But in no case shall the consequential benefits assessed
exceed the consequential damages assessed, or the owner be deprived of the actual
value of his property so taken (Sec. 6).

(3) Report. The court may order the commissioners to report when any particular portion of
the real estate shall have been passed upon by them, and may render judgment upon
such partial report, and direct the commissioners to proceed with their work as to
subsequent portions of the property sought to be expropriated, and may from time to
time so deal with such property. The commissioners shall make a full and accurate
report to the court of all their proceedings, and such proceedings shall not be effectual
until the court shall have accepted their report and rendered judgment in accordance
with their recommendations. Except as otherwise expressly ordered by the court, such
report shall be filed within sixty (60) days from the date the commissioners were notified
of their appointment, which time may be extended in the discretion of the court. Upon
the filing of such report, the clerk of the court shall serve copies thereof on all interested
parties, with notice that they are allowed ten (10) days within which to file objections to
the findings of the report, if they so desire (Sec. 7).

(4) Action upon the report. Upon the expiration of the period of ten (10) days referred to in
the preceding section, or even before the expiration of such period but after all the
interested parties have filed their objections to the report or their statement of
agreement therewith, the court may, after hearing, accept the report and render
judgment in accordance therewith; or, for cause shown, it may recommit the same to the
commissioners for further report of facts; or it may set aside the report and appoint new

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 commissioners; or it may accept the report in part and reject it in part; and it may make
such order or render such judgment as shall secure to the plaintiff the property essential
to the exercise of his right of expropriation, and to the defendant just compensation for
the property so taken (Sec. 8).

Rights of plaintiff upon judgment and payment

(1) After payment of the just compensation as determined in the judgment, the plaintiff shall
have the right to enter upon the property expropriated and to appropriate the same for
the public use or purpose defined in the judgment or to retain possession already
previously made in accordance with Sec. 2, Rule 67.
(2) Title to the property expropriated passes from the owner to the expropriator upon full
payment of just compensation (Federated Realty Corp. vs. CA, 477 SCRA 707).

Effect of recording of judgment

(1) The judgment entered in expropriation proceedings shall state definitely, by an

adequate description, the particular property or interest therein expropriated, and the
nature of the public use or purpose for which it is expropriated. When real estate is
expropriated, a certified copy of such judgment shall be recorded in the registry of
deeds of the place in which the property is situated, and its effect shall be to vest in the
plaintiff the title to the real estate so described for such public use or purpose (Sec. 13).

Foreclosure of Real Estate Mortgage (Rule 68)

(1) A real estate mortgage is an accessory contract executed by a debtor in favor of a
creditor as security for the principal obligation. This principal obligation is a simple loan
or mutuum described in Art. 1953, Civil Code. To be a real estate mortgage, the
contract must be constituted on either immovables (real property) or inalienable real
rights. If constituted on movables, the contract is a chattel mortgage (Art. 2124, CC).
(2) A mortgage contract may have a provision in which the mortgage is a security for past,
present and future indebtedness. This clause known as a Dragnet Clause or Blanket
Mortgage Clause has its origins in American jurisprudence. The Supreme Court ruled
that mortgages given to secure future advancements are valid and legal contracts
(Prudential Bank vs. Alviar, 464 SCRA 353).
(3) The spouses mortgaged their property to PNB as security for their loan. Since they were
unable to pay, it was foreclosed and PNB was the highest bidder. PNB filed for writ of
possession which was held in abeyance by Judge Venadas, Sr. The Court ruled that the
judge committed grave abuse of discretion. Once the one-year redemption period has
lapsed from the foreclosure sale and once title is consolidated under the name of the
purchaser, the issuance of the writ of possession becomes ministerial on the part of the
court. The alleged invalidity of the sale of PNB to Atty. Garay is not a ground to defer
the issuance of the Writ of Possession. (Sps. Sombilon v. Atty. Garay, AM No. RTJ-06-
200, 01/16/2014).
(4) Under Section 33, Rule 39 of the Rules of Court, which is made applicable to
extrajudicial foreclosures of real estate mortgages, the possession of the property shall
be given to the purchaser or last redemptioner unless a third party is actually holding
the property in a capacity adverse to the judgment obligor. It contemplates a situation in
which a third party holds the property by adverse title or right, such as that of a co-
owner, tenant or usufructuary, who possesses the property in his own right, and is not

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 merely the successor or transferee of the right of possession of another co-owner or the
owner of the property. (Cabling v. Lumapas, GR No. 196950, 06/18/2014).
(5) It is a well-established rule that the issuance of a writ of possession to a purchaser in a
public auction is a ministerial function of the court, which cannot be enjoined or
restrained, even by the filing of a civil case for the declaration of nullity of the
foreclosure and consequent auction sale. Once title to the property has been
consolidated in the buyer‘s name upon failure of the mortgagor to redeem the property
within the one-year redemption period, the writ of possession becomes a matter of right
belonging to the buyer. Its right to possession has then ripened into the right of a
confirmed absolute owner and the issuance of the writ becomes a ministerial function
that does not admit of the exercise of the court‘s discretion. Moreover, a petition for a
writ of possession is ex parte and summary in nature. As one brought for the benefit of
one party only and without notice by the court to any person adverse of interest, it is a
judicial proceeding wherein relief is granted without giving the person against whom the
relief is sought an opportunity to be heard. Since the judge to whom the application for
writ of possession is filed need not look into the validity of the mortgage or the manner
of its foreclosure, it has been ruled that the ministerial duty of the trial court does not
become discretionary upon the filing of a complaint questioning the mortgage. (Gopia v.
Metropolitan Bank and Trust Co., GR No. 188931, 07/28/2014).
(6) Petitioner filed the instant petition questioning the decision of the CA holding that an ex-
parte petition for the issuance of a writ of possession was not the proper remedy for the
petitioner. The SC, though agreed with the CA, held that petitioner is not without
recourse. The remedy of a writ of possession is a remedy that is available to a
mortgagee-purchaser for him to acquire possession of the foreclosed property from the
mortgagor. It is made available to a subsequent purchaser only after hearing and after
determining that the subject property is still in the possession of the mortgagor. Unlike if
the purchaser is the mortgagee or a third party during the redemption period, a writ of
possession may issue ex-parte or without hearing. Thus, petitioner being a third party
who acquired the property after the redemption period, a hearing must be conducted to
determine whether possession over the subject property is still with the mortgagor. If the
property is in the possession of the mortgagor, a writ of possession could thus be
issued. Otherwise, the remedy of a writ of possession is no longer available to
petitioner, but he can wrest possession over the property through an ordinary action of
ejectment. (Okabe v. Saturnino, GR No. 196040, 08/26/2014).
(7) 2000 Bar: AB mortgage his property to CD. AB failed to pay his obligation and CD filed
an action for foreclosure of mortgage. After trial, the court issued an Order granting
CD‘s prayer for foreclosure of mortgage and ordering AB to pay CD the full amount of
the mortgage debt including interest and other charges not later than 120 days from
date of receipt of the order. AB received the order on August 10, 1999. No other
proceeding took place thereafter. On December 20, 1999, AB tendered the full amount
adjudged by the court to CD but the latter refused to accept it on the ground that the
amount was tendered beyond the 120-day period granted by the court. AB filed a
motion in the same court praying that CD be directed to receive the amount tendered by
him on the ground that the order does not comply with the provisions of Section 2, Rule
68 of 6he Rules of Court which gives AB 120 days from entry of judgment, and not from
date of receipt of the Order. The court had already become final and can n longer be
amended to conform with Section 2, Rule 68. Aggrieved, AB files a petition for certiorari
against the Court and CD. Will the petition for certiorari prosper? Explain. (5%)
Answer: Yes. The court erred in issuing an order granting CD‘s prayer for foreclosure
and ordering AB to pay the CD the full amount of mortgage debt including interest and
other charges not later than 120 days from receipt of the order. The court should have
rendered a judgment which is appealable. Since no appeal was taken, the judgment
became final on August 25, 1999, which is the date of entry of judgment (Rule 36,

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 Section 2). Hence, AB had up to December 24, 1999, within which to pay the amount
due (Rule 68, Section 2). The Court gravely abused its discretion amounting to lack or
excess of jurisdiction in denying AB‘s motion to direct CS to receive the amount
tendered.
(8) 2003 Bar: A borrowed from the Development Bank of the Philippines (DBP) the amount
of P1 million secured by the titled land of his friend B, who, however, dd not assume
personal liability for the loan. A defaulted and DBP filed an action for judicial
foreclosure of the real estate mortgage impleading A and B as defendants. In due
course, the court rendered judgment directing A to pay the outstanding account of P1.5
million (principal plus interest) to the bank. No appeal was taken by A on the decision
within the reglementary period. A failed to pay the judgment debt within the period
specified in the decision. Consequently, the court ordered the foreclosure sale of the
mortgaged land. In that foreclosure sale, the land was sold to the DBP for P1.2 million.
The sale was subsequently confirmed by the court, and the confirmation of the sale was
registered with the Registry of Deeds on 05 January 2002.
On January 10, 2002, the bank filed an ex parte motion with the court for the issuance
of a writ of possession to oust B from the land. It also filed a deficiency claim for
P800,000 against A and B. the deficiency claim was opposed by A and B.
Resolve the motion for the issuance of a writ of possession.
Answer: In judicial foreclosure by banks such as DBP, the Mortgagor or Debtor whose
real property has been sold on foreclosure has the right to redeem the property sold
within one year after the sale (or registration of the sale). However, the purchaser at the
auction sale has the right to obtain a writ of possession after the finality of the order
confirming the sale (Rule 68, Section3; Section 47, RA 8791, The General Banking
Law). The motion for writ of possession, however, cannot be filed ex parte. There must
be a notice of hearing.

Judgment on foreclosure for payment or sale (stage 1)

(1) If after the trial, the court finds that the matters set forth in the complaint are true, it shall
render a judgment containing the following matters:
(a) An ascertainment of the amount due to the plaintiff upon the mortgage debt or
obligation, including interest and other charges as approved by the court, as well as
costs;
(b) A judgment of the sum found due;
(c) An order that the amount found due be paid to the court or to the judgment obligee
within the period of not less than 90 days nor more than 120 days from the entry of
judgment; and
(d) An admonition that in default of such payment the property shall be sold at public
auction to satisfy the judgment (Sec. 2).
(2) The judgment of the court on the above matters is considered a final adjudication of the
case and hence, is subject to challenge by the aggrieved party by appeal or by other
post-judgment remedies.
(3) The period granted to the mortgagor for the payment of the amount found due by the
court is not just a procedural requirement but a substantive right given by law to the
mortgagee as his first chance to save his property from final disposition at the
foreclosure sale (De Leon vs. Ibañez, 95 Phil. 119).

Sale of mortgaged property; effect (stage 2)

(1) The confirmation of the sale shall divest the rights in the property of all parties to the
action and shall vest their rights in the purchaser, subject to such rights of redemption

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 as may be allowed by law (Sec. 3). The title vests in the purchaser upon a valid
confirmation of the sale and retroacts to the date of sale (Grimalt vs. Vasquez, 36 Phil.
396).
(2) The import of Sec. 3 includes one vital effect: The equity of redemption of the mortgagor
or redemptioner is cut-off and there will be no further redemption, unless allowed by law
(as in the case of banks as mortgagees). The equity of redemption starts from the
ninety-day period set in the judgment of the court up to the time before the sale is
confirmed by an order of the court. Once confirmed, no equity of redemption may further
be exercised.
(3) The order of confirmation is appealable and if not appealed within the period for appeal
becomes final. 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 and he may
secure a writ of possession, upon, motion, from the court which ordered the foreclosure
unless a third party is actually holding the same adversely to the judgment obligor (Sec.
3).

Disposition of proceeds of sale

(1) The proceeds of the sale of the mortgaged property shall, after deducting the costs of
the sale, be paid to the person foreclosing the mortgage, and when there shall be any
balance or residue after paying off the mortgage debt due, the same shall be paid to
junior encumbrancers in the order of their priority. If there be any further balance after
paying them or if there be no junior encumbrancers, the same shall be paid to the
mortgagor or any person entitled thereto (Sec. 4).

Deficiency judgment

(1) If there be a balance due to the plaintiff after applying the proceeds of the sale, the
court, upon motion, shall render judgment against the defendant for any such balance.
Execution may issue immediately if the balance is all due the plaintiff shall be entitled to
execution at such time as the remaining balance shall become due and such due date
shall be stated in the judgment (Sec. 6). Note that the deficiency judgment is in itself a
judgment hence, also appealable.
(2) No independent action need be filed to recover the deficiency from the mortgagor. The
deficiency judgment shall be rendered upon motion of the mortgagee. The motion must
be made only after the sale and after it is known that a deficiency exists. Before that,
any court order to recover the deficiency is void (Govt. of PI vs. Torralba, 61 Phil. 689).
It has been held that the mortgagor who is not the debtor and who merely executed the
mortgage to secure the principal debtor‘s obligation, is not liable for the deficiency
unless he assumed liability for the same in the contract (Philippine Trust Co. vs. Echaus
Tan Siua, 52 Phil. 852). Since a deficiency judgment cannot be obtained against the
mortgagore who is not the debtor in the principal obligation, mortgagee may have to file
a separate suit against the principal debtor.

Instances when court cannot render deficiency judgment

(1) Where the debtor-mortgagor is a non-resident and who at the time of the filing of the
action for foreclosure and during the pendency of the proceedings was outside the
Philippines, it is believed that a deficiency judgment under Sec. 6 would not be
procedurally feasible. A deficiency judgment is by nature in personam and jurisdiction

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 over the person is mandatory. Having been outside the country, jurisdiction over his
person could not have been acquired.

Judicial foreclosure versus extrajudicial foreclosure

Extra-judicial Foreclosure (Act 3135) Judicial foreclosure (Rule 68)

No complaint is filed; Complaint is filed with the courts;
There is a right of redemption. Mortgagor has a No right of redemption except when
right of redemption for 1 year from registration mortgagee is a banking institution; equity of
of the sale; redemption only (90 to 120 days, and any
time before confirmation of foreclosure sale);
Mortgagee has to file a separate action to Mortagee can move for deficiency judgment
recover any deficiency; in the same action
Buyer at public auction becomes absolute Buyer at public auction becomes absolute
owner only after finality of an action for owner only after confirmation of the sale;
consolidation of ownership;
Mortgagee is given a special power of attorney Mortgagee need not be given a special power
in the mortgage contract to foreclose the of attorney.
mortgaged property in case of default.

Equity of redemption versus right of redemption

Equity of Redemption (Rule 68) Right of Redemption (Rule 39, Sec. 29-31)
The right of defendant mortgagor to extinguish A right granted to a debtor mortgagor, his
the mortgage and retain ownership of the successor in interest or any judicial creditor
property by paying the debt within 90 to 120 or judgment creditor or any person having a
days after the entry of judgment or even after lien on the property subsequent to the
the foreclosure sale but prior to confirmation. mortgage or 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 of 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,
equity of redemption remains unforeclosed. A the mortgagor may exercise his right to pay
separate foreclosure proceeding has to be the 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.

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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
as mortgagor, to extinguish the mortgage and mortgagees, whether the foreclosure be
retain ownership of the property by paying the judicial or extrajudicial. This right of
secured debt prior to the confirmation of the redemption is explicitly provided in Sec. 47 of
foreclosure sale. the General 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

Partition (Rule 69)

(1) Partition is the separation, division and assignment of a thing held in common among
those to whom it may belong (Cruz vs. CA, 456 SCRA 165). It presupposes the
existence of a co-ownership over a property between two or more persons. The rule
allowing partition originates from a well-known principle embodied in the Civil Code, that
no co-owner shall be obliged to remain in the co-ownership. Because of this rule, he
may demand at any time the partition of the property owned in common (Art. 494).
(2) Instances when a co-owner may not demand partition at any time:
(a) There is an agreement among the co-owners to keep the property undivided for a
certain period of time but not exceeding ten years (Arft. 494);
(b) When partition is prohibited by the donor or testator for a period not exceeding 20
years (Art. 494);
(c) When partition is prohibited by law (Art. 494);
(d) When the property is not subject to a physical division and to do so would render it
unserviceable for the use for which it is intended (Art. 495);
(e) When the condition imposed upon voluntary heirs before they can demand partition
has not yet been fulfilled (Art. 1084).
(3) 2000 Bar: Linda and spouses Arnulfo Regina Ceres were co-owners of a parcel of land.
Linda died without any issue. Ten (10) persons headed by Jocelyn, claiming to be the
collateral relatives of the deceased Linda, filed an action for partition with the RTC,
praying for the segregation of Linda‘s one half share, submitting in support of their
petition the baptismal certificates of seven of the petitioners, a family bible belonging to
Linda in which the names of the petitioners have been entered, a photocopy of the birth
certificate of Jocelyn and a certification of the local civil registrar that its office had been
completely razed by fire. The spouses Ceres refuse to partition on the following
grounds:
in the partition cases where filiation to the deceased is in dispute, prior and separate
judicial declaration of heirship in a settlement of estate proceedings is necessary.
Answer: Declaration of heirship in a settlement proceeding is not necessary. It can be
made in the ordinary action for partition wherein the heirs are exercising the right
pertaining to the decedent, their predecessors-in-interest, to ask for partition as co-
owners.

Who may file complaint; Who should be made defendants

(1) The action shall be brought by the person who has a right to compel the partition of real
estate (Sec. 1) or of an estate composed of personal property, or both real and personal
property (Sec. 13). The plaintiff is a person who is supposed to be a co-owner of the
property or estate sought to be partitioned. The defendants are all the co-owners. All the

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 co-owners must be joined. Accordingly, an action will not lie without the joinder of all co-
owners and other persons having interest in the property (Reyes vs. Cordero, 46 Phil.
658). All the co-owners, therefore, are indispensable parties.

Matters to allege in the complaint for partition

(1) The plaintiff shall state in his complaint, the nature and extent of his title, an adequate
description of the real estate of which partition is demanded, and shall join as
defendants all other persons interested in the property (Sec. 1). He must also include a
demand for the accounting of the rents, profits and other income from the property
which he may be entitled to (Sec. 8). These cannot be demanded in another action
because they are parts of the cause of action for partition. They will be barred if not set
up in the same action pursuant to the rule against splitting a single cause of action.

Two (2) stages in every action for partition

(1) A reading of the Rules will reveal that there are actually three (3) stages in the action,
each of which could be the subject of appeal: (a) the order of partition where the
property of the partition is determined; (b) the judgment as to the accounting of the fruits
and income of the property; and (c) the judgment of partition (Riano, Civil Procedure (A
Restatement for the Bar), 2007).

Order of partition and partition by agreement

(1) During the trial, the court shall determine whether or not the plaintiff is truly a co-owner
of the property, that there is indeed a co-ownership among the parties, and that a
partition is not legally proscribed thus may be allowed. If the court so finds that the facts
are such that a partition would be in order, and that the plaintiff has a right to demand
partition, the court will issue an order of partition.
(2) The court shall order the partition of the property among all the parties in interest, if after
trial it finds that the plaintiff has the right to partition (Sec. 2). It was held that this order
of partition including an order directing an accounting is final and not interlocutory and
hence, appealable; thus, revoking previous contrary rulings on the matter. A final order
decreeing partition and accounting may be appealed by any party aggrieved thereby.
(3) Partition by agreement. The order of partition is one that directs the parties or co-
owners to partition the property and the parties may make the partition among
themselves by proper instruments of conveyance, if they agree among themselves. If
they do agree, the court shall then confirm the partition so agreed upon by all of the
parties, and such partition, together with the order of the court confirming the same,
shall be recorded in the registry of deeds of the place in which the property is situated
(Sec. 2). There always exists the possibility that the co-owners are unable to agree on
the partition. If they cannot partition the property among themselves, the next stage in
the action will follow, the appointment of commissioners.

Partition by commissioners; Appointment of commissioners, Commissioner‘s report;

Court action upon commissioner‘s report

(1) Commissioners to make partition when parties fail to agree. — If the parties are unable to
agree upon the partition, the court shall appoint not more than three (3) competent and
disinterested persons as commissioners to make the partition, commanding them to set
off to the plaintiff and to each party in interest such part and proportion of the property
as the court shall direct (Sec. 3).

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 (2) Oath and duties of commissioners. — Before making such partition, the commissioners
shall take and subscribe an oath that they will faithfully perform their duties as
commissioners, which oath shall be filed in court with the other proceedings in the case.
In making the partition, the commissioners shall view and examine the real estate, after
due notice to the parties to attend at such view and examination, and shall hear the
parties as to their preference in the portion of the property to be set apart to them and
the comparative value thereof, and shall set apart the same to the parties in lots or
parcels as will be most advantageous and equitable, having due regard to the
improvements, situation and quality of the different parts thereof (Sec.4)..
(3) Assignment or sale of real estate by commissioners. — When it is made to appear to the
commissioners that the real estate, or a portion thereof, cannot be divided without
prejudice to the interests of the parties, the court may order it assigned to one of the
parties willing to take the same, provided he pays to the other parties such amounts as
the commissioners deem equitable, unless one of the interested parties asks that the
property be sold instead of being so assigned, in which case the court shall order the
commissioners to sell the real estate at public sale under such conditions and within
such time as the court may determine (Sec. 5).
(4) Report of commissioners; proceedings not binding until confirmed. — The commissioners
shall make a full and accurate report to the court of all their proceedings as to the
partition, or the assignment of real estate to one of the parties, or the sale of the same.
Upon the filing of such report, the clerk of court shall serve copies thereof on all the
interested parties with notice that they are allowed ten (10) days within which to file
objections to the findings of the report, if they so desire. No proceeding had before or
conducted by the commissioners shall pass the title to the property or bind the parties
until the court shall have accepted the report of the commissioners and rendered
judgment thereon (Sec. 6).
(5) Action of the court upon commissioners‘ report. — Upon the expiration of the period of ten
(10) days referred to in the preceding section, or even before the expiration of such
period but after the interested parties have filed their objections to the report or their
statement of agreement therewith, the court may, upon hearing, accept the report and
render judgment in accordance therewith; or, for cause shown, recommit the same to
the commissioners for further report of facts; or set aside the report and appoint new
commissioners; or accept the report in part and reject it in part; and may make such
order and render such judgment as shall effectuate a fair and just partition of the real
estate, or of its value, if assigned or sold as above provided, between the several
owners thereof (Sec. 7).

Judgment and its effects

(1) The judgment shall state definitely, by metes and bounds and adequate description, the
particular portion of the real estate assigned to each party, the effect of the judgment
shall be to vest in each party to the action in severalty the portion of the real estate
assigned to him.
(2) If the whole property is assigned to one of the parties upon his paying to the others the
sum or sums ordered by the court, the judgment shall state the fact of such payment
and of the assignment of the real estate to the party making the payment, and the effect
of the judgment shall be to vest in the party making the payment the whole of the real
estate free from any interest on the part of the other parties to the action.
(3) If the property is sold and the sale confirmed by the court, the judgment shall state the
name of the purchaser or purchasers and a definite description of the parcels of real
estate sold to each purchaser, and the effect of the judgment shall be to vest the real

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 estate in the purchaser or purchasers making the payment or payments, free from the
claims of any of the parties to the action.
(4) A certified copy of the judgment shall in either case be recorded in the registry of deeds
of the place in which the real estate is situated, and the expenses of such recording
shall be taxed as part of the costs of the action (Sec. 11).

Partition of personal property

(1) The provisions of this Rule shall apply to partitions of estates composed of personal
property, or of both real and personal property, insofar as the same may be applicable
(Sec. 13).

Prescription of action

(1) Prescription of action does not run in favor of a co-owner or co-heir against his co-owner
or co-heirs as long as there is a recognition of the co-ownership expressly or impliedly
(Art. 494).
(2) The action for partition cannot be barred by prescription as long as the co-ownership
exists (Aguirre vs. CA, 421 SCRA 310).
(3) But while the action to demand partition of a co-owned property does not prescribe, a
co-owner may acquire ownership thereof by prescription where there exists a clear
repudiation of the co-ownership and the co-owners are apprised of the claim of adverse
and exclusive ownership.

Forcible Entry and Unlawful Detainer (Rule 70)

(1) The actions for forcible entry and unlawful detainer belong to the class of actions known
by the generic name accion interdictal (ejectment) where the issue is the right of
physical or material possession of the subject real property independent of any claim of
ownership by the parties involved (Mendoza vs. CA, 452 SCRA 117 [2005]).
(2) Accion Interdictal comprises two distinct causes of action:
(a) Forcible entry (detentacion), where one is deprived of physical possession of real
property by means of force, intimidation, strategy, threats or stealth;
(b) Unlawful Detainer (desahuico), where one illegally withholds possession after the
expiration or termination of his right to hold possession under any contract, express
or implied.
(3) To justify an action for unlawful detainer, it is essential that the plaintiff‘s supposed acts
of tolerance must have been present right from the start of the possession which is later
sought to be recovered. Otherwise, if the possession was unlawful from the start, an
action for unlawful detainer would be an improper remedy. In the instant case, the
allegations in the complaint do not contain any averment of fact that would substantiate
petitioners‘ claim that they permitted or tolerated the occupation of the property by
respondents. The complaint contains only bare allegations that "respondents without
any color of title whatsoever occupies the land in question by building their house in the
said land thereby depriving petitioners the possession thereof." Nothing has been said
on how respondents‘ entry was effected or how and when dispossession started.
(Zacaria v. Anacay, GR No. 202354, 09/24/2014).
(4) Section 1, Rule 70 of the Rules of Court, requires that in actions for forcible entry, it must
be alleged that the complainant was deprived of the possession of any land or building
by force, intimidation, threat, strategy, or stealth, and that the action was filed anytime

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 within one year from the time the unlawful deprivation of possession took place. As
such, the complainant must allege and prove prior physical possession (in the concept
of possession de facto, or actual or material possession and not one flowing out of
ownership) of the property in litigation until he or she was deprived thereof by the
defendant. In this regard, it has been settled that tax declarations and realty tax
payments are not conclusive proofs of possession. They are merely good indicia of
possession in the concept of owner based on the presumption that no one in one‘s right
mind would be paying taxes for a property that is not in one‘s actual or constructive
possession. (Dela Cruz v. Sps. Antonio and Remedios Hermano, GR No. 160914,
03/25/2015).
(5) 2008 Bar: Ben sold a parcel of land to Del with right to repurchase within one (1) year.
Ben remained in possession of the property. When Ben failed to repurchase the same,
title was consolidated in favor of Del. Despite demand, Ben refused to vacate the land,
constraining Del to file a complaint for unlawful detainer. In his defense, Ben averred
that the case should be dismissed because Bel had never been in possession of the
property. Is Ben correct (4%)
Answer: No. For unlawful detainer, the defendant need not have been in prior
possession of the property. This is upon the theory that the vendee steps into the shoes
of the vendor and succeeds to his rights and interest. In contemplation of law, the
vendee‘s possession is that of vendor‘s (Maninang v. Court of Appeals, GR No. 121719,
09/16/1999).

Definitions and Distinction

Forcible Entry Unlawful Detainer

The possession of the defendant is unlawful The possession of the defendant, lawful from
from the beginning; issue is which party has the beginning, becomes illegal by reason of
prior de facto possession; the expiration or termination of his right to the
possession of the property;
The law does not require previous demand for Plaintiff must first make such demand which is
the defendant to vacate; jurisdictional in nature;
The plaintiff must prove that he was in prior The plaintiff need not have been in prior
physical possession of the premises until he physical possession;
was deprived by the defendant; and
The one year period is generally counted from The one-year period is counted from the date
the date of actual entry on the property. of last demand.

Distinguished from accion publiciana and accion reinvindicatoria

Accion Publiciana Accion Reivindicatoria

A plenary ordinary civil action for the recovery
of the better right of possession (juridical
possession), must be filed after the expiration
of one year from the accrual of the cause of
action or from the unlawful withholding of
An action for the recovery of the exercise of
possession of the realty. In other words, if at
ownership, particularly recovery of possession
the time of the filing of the complaint more
as an attribute or incident of ownership;
than one year had elapsed since defendant
had turned plaintiff out of possession or
defendant‘s possession had become illegal,
the action will be not one of forcible entry or
unlawful detainer but an accion publiciana

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(Valdez vs, CA, GR 132424, May 2, 2006).
The basis of the recovery of possession is the
plaintiff‘s real right of possession or jus
The basis for the recovery of possession is
possessionis, which is the right to the
ownership itself.
possession of the real property independent of
ownership.

(1) A boundary dispute must be resolved in the context of accion reivindicatoria, not an
ejectment case. The boundary dispute is not about possession, but encroachment, that
is, whether the property claimed by the defendant formed part of the plaintiff‘s property.
A boundary dispute cannot be settled summarily under Rule 70 of the Rules of Court,
the proceedings under which are limited to unlawful detainer and forcible entry. In
unlawful detainer, the defendant unlawfully withholds the possession of the premises
upon the expiration or termination of his right to hold such possession under any
contract, express or implied. The defendant‘s possession was lawful at the beginning,
becoming unlawful only because of the expiration or termination of his right of
possession. In forcible entry, the possession of the defendant is illegal from the very
beginning, and the issue centers on which between the plaintiff and the defendant had
the prior possession de facto. (Manalang v. Sps. Bacani, GR No. 156995, 01/12/2015) .

How to determine jurisdiction in accion publiciana and accion reinvindicatoria

(1) The actions of forcible entry and unlawful detainer are within the exclusive and original
jurisdiction of the MTC, MeTC and MCTC (Sec. 33[2], BP 129; RA 7691) and shall be
governed by the rules on summary procedure irrespective of the amount of damages or
rental sought to be recovered (Sec. 3, Rule 70).
(2) In actions for forcible entry, two allegations are mandatory for the MTC to acquire
jurisdiction: (a) plaintiff must allege his prior physical possession of the property; and (b)
he must also allege that he was deprived of his possession by force, intimidation,
strategy, threat 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 (Benguet Corp. Cordillera Caraballo Mission, GR 155343, Sept.
2, 2005).
(3) Both actions must be brought within one year from the date of actual entry on the land,
in case of forcible entry, and from the date of last demand, in case of unlawful detainer
(Valdez vs. CA, GR 132424, May 2, 2006).
(4) Jurisdiction is determined by the allegations of the complaint. The mere raising of the
issue of tenancy does not automatically divest the court of jurisdiction because the
jurisdiction of the court is determined by the allegations of the complaint and is not
dependent upon the defenses set up by the defendant (Marino, Jr. vs. Alamis, 450
SCRA 198 [2005]).
(5) An allegation of tenancy before the MTC does not automatically deprive the court of its
jurisdiction. The material averments in the complaint determine the jurisdiction of a
court. A court does not lose jurisdiction over an ejectment suit by the simple expedient
of a party raising as a defense therein the alleged existence of a tenancy relationship
between the parties. The court continues to have the authority to hear and evaluate the
evidence, precisely to determine whether or not it has jurisdiction, and, if, after hearing,
tenancy is shown to exist, it shall dismiss the case for lack of jurisdiction. (Ofilada v.
Sps. Ruben and Miraflor Andal, GR No. 192270, 01/26/2015).
(6) The subject of the action is for unlawful detainer, thus cognizable by a first level court or
the Municipal Trial Court (MTC). Since the case was filed with the RTC, a second level
court, the RTC‘s decision is void for lack of jurisdiction over the case. The proceedings

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 before a court without jurisdiction, including its decision, are null and void. It then follows
that the appeal brought before the appellate court, as well as the decisions or
resolutions promulgated in accordance with said appeal, is without force and effect.
(Tagalog v. Vda. De Gonzales, GR No. 201286, 07/18/2014).

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

(1) 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 (Sec. 1).
(2) Unless otherwise stipulated, such action by the lessor shall be commenced only after
demand to pay or comply with the conditions of the lease and to vacate is made upon
the lessee, or by serving written notice of such demand upon the person found on the
premises, or by posting such notice on the premises if no person be found thereon, and
the lessee fails to comply therewith after fifteen (15) days in the case of land or five (5)
days in the case of buildings (Sec. 2).

Pleadings allowed

(1) 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 (Sec. 4).

Action on the complaint

(1) The court may, from an examination of the allegations in the complaint and such
evidence as may be attached thereto, dismiss the case outright on any of the grounds
for the dismissal of a civil action which are apparent therein. If no ground for dismissal is
found, it shall forthwith issue summons (Sec. 5).

When demand is necessary

(1) Unless there exists a stipulation to the contrary, an unlawful detainer case shall
be commenced only after the demand to pay or comply with the conditions of the lease
and to vacate is made upon the lessee (Sec. 2). The requirement for a demand implies
that the mere failure of the occupant to pay rentals or his failure to comply with the
conditions of the lease does not ipso facto render his possession of the premises
unlawful. It is the failure to comply with the demand that vests upon the lessor a cause
of action.
(2) The demand may be in the form of a written notice served upon the person found in the
premises. The demand may also be made by posting a written notice on the premises if
no person can be found thereon (Sec. 2). It has been ruled, however, that the demand
upon a tenant may be oral (Jakihaca vs. Aquino, 181 SCRA 67). Sufficient evidence

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 must be adduced to show that there was indeed a demand like testimonies from
disinterested and unbiased witnesses.
(3) The date of unlawful deprivation or withholding of possession is to be counted from the
date of the demand to vacate. (Pro-Guard Security Services Corp. v. Tormil Relaty and
Development Corp., GR No. 176341, 07/07/2014).
(4) Failure to pay the rent must precede termination of the contract due to nonpayment of
rent. It therefore follows that the cause of action for unlawful detainer must necessarily
arise before the termination of the contract and not the other way around. (Sps.
Alejandro and Remedios Manzanilla v. Waterfields Industries Corp., GR No. 177484,
07/18/2014).

Preliminary injunction and preliminary mandatory injunction

(1) The court may grant preliminary injunction, in accordance with the provisions of Rule
58, to prevent the defendant from committing further acts of dispossession against the
plaintiff. A possessor deprived of his possession through forcible entry or unlawful
detainer may, within five (5) days from the filing of the complaint, present a motion in the
action for forcible entry or unlawful detainer for the issuance of a writ of preliminary
mandatory injunction to restore him in his possession. The court shall decide the motion
within thirty (30) days from the filing thereof (Sec. 15).

Resolving defense of ownership

(1) The assertion by the defendant of ownership over the disputed property does not serve
to divest the inferior court of its jurisdiction. The defendant cannot deprive the court of
jurisdiction by merely claiming ownership of the property involved (Rural Bank of Sta.
Ignacia vs. Dimatulac, 401 SCRA 742; Perez vs. Cruz, 404 SCRA 487) . If the defendant
raises the question of ownership and the issue of possession cannot be resolved
without deciding the question of ownership, the issue of ownership shall be resolved
only to determine the issue of possession (Sec. 3, RA 7691).
(2) When the defendant raises the issue of ownership, the court may resolve the issue of
ownership only under the following conditions:
(a) When the issue of possession cannot be resolved without resolving the issue of
ownership; and
(b) The issue of ownership shall be resolved only to determine the issue of possession
(Sec. 16).
(3) Such judgment would not bar an action between the same parties respecting title to the
land or building. The resolution of the MeTC on the ownership of the property is merely
provisional or interlocutory. Any question involving the issue of ownership should be
raised and resolved in a separate action brought specifically to settle the question with
finality (Roberts vs. Papio, GR 166714, Feb. 9, 2007).

How to stay the immediate execution of judgment

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

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 (a) Where delay in the deposit is due to fraud, accident, mistake, or excusable
negligence;
(b) Where supervening events occur subsequent to the judgment bringing about a
material change in the situation of the parties which makes execution inequitable;
and
(c) Where there is no compelling urgency for the execution because it is not justified by
the circumstances.

Summary procedure, prohibited pleadings

(1) Forcible entry and unlawful detainer actions are summary in nature designed to provide
for an expeditious means of protecting actual possession or the right to possession of
the property involved (Tubiano vs. Riazo, 335 SCRA 531). These action shall both fall
under the coverage of the Rules of Summary Procedure irrespective of the amount of
damages or unpaid rental sought to be recovered (Sec. 3).
(2) Prohibited pleadings and motions:
(a) Motion to dismiss the complaint except on the ground of lack of jurisdiction over the
subject matter, or failure to comply with section 12;
(b) Motion for a bill of particulars;
(c) Motion for new trial, or for reconsideration of a judgment, or for reopening of trial;
(d) Petition for relief from judgment;
(e) Motion for extension of time to file pleadings, affidavits or any other paper;
(f) Memoranda;
(g) Petition for certiorari, mandamus, or prohibition against any interlocutory order
issued by the court;
(h) Motion to declare the defendant in default;
(i) Dilatory motions for postponement;
(j) Reply;
(k) Third-party complaints;
(l) Interventions

Contempt (Rule 71)

(1) Contempt is a disregard of, or disobedience to the rules or orders of a judicial body, or
an interruption of its proceedings by disorderly behavior or insolent language, in its
presence or so near thereto as to disturb the proceedings or to impair the respect due to
such body (17 C.J.S. 4).
(2) Contempt of court is disobedience to the court by acting in opposition to its authority,
justice and dignity. It signifies not only a willful disregard or disobedience of the court‘s
orders but also conduct tending to bring the authority of the court and the administration
of law into disrepute or, in some manner to impede the due administration of justice (Siy
vs. NLRC, GR 158971, 08/25/2005).
(3) The reason for the power to punish for contempt is that respect of the courts guarantees
the stability of their institution. Without such guarantee, said institution would be resting
on shaky foundation (Cornejo vs.Tan, 85 Phil. 772).
(4) It is inherent in all courts; its existence is essential to the preservation of order in judicial
proceedings and to the enforcement of judgments, orders and mandates of the courts,
and consequently, to the due administration of justice (Perkins vs. Director of Prisons,
58 Phil. 271).
(5) Contempt proceedings has dual function:
(a) Vindication of public interest by punishment of contemptuous conduct; and

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(b) Coercion to compel the contemnor to do what the law requires him to uphold the power of
the Court, and also to secure the rights of the parties to a suit awarded by the Court
(Regalado vs. Go, GR 167988, 02/06/2007).
(6) 1998 Bar: A filed a complaint for the recovery of ownership of land against B who was
represented by her counsel X. in the course of the trial, B died. However, X failed to notify
the court of B‘s death. The court proceeded to hear the case and rendered judgment
against B, after the judgment became final, a writ of execution was issued against C, who
being B‘s sole heir, acquire the property.
Did the failure of counsel X to inform the court of B‘s death constitute direct contempt? (2%)
Answer: No, it is not direct contempt under Section 11 of Rule 71, but it is indirect contempt
within the purview of Section 3 of Rule 71. The lawyer can also be the subject of disciplinary
action (Rule 3, Section 3).

Kinds of contempt; Purpose and nature of each

(1) Civil or Criminal, depending on the nature and effect of the contemptuous act.
(2) Direct or indirect, according to the manner of commission.

Civil Contempt Criminal Contempt

It is the failure to do something ordered to be It is a conduct directed against the authority
done by a court or a judge for the benefit of and dignity of the court or a judge acting
the opposing party therein and is therefore an judicially; it is an obstructing the administration
offense against the party in whose behalf the of justice which tends to bring the court into
violated order was made; disrepute or disrespect;
The purpose is to compensate for the benefit The purpose is to punish, to vindicate the
of a party; authority of the court and protect its outraged
dignity;
The rules of procedure governing contempt Should be conducted in accordance with the
proceedings or criminal prosecutions ordinarily principles and rules applicable to criminal
are inapplicable to civil contempt proceedings. cases, insofar as such procedure is consistent
with the summary nature of contempt
proceedings.

Direct Contempt Indirect Contempt

In general is committed in the It is not committed in the presence of the court, but
presence of or so near the court or done at a distance which tends to belittle, degrade,
judge as to obstruct or interrupt the obstruct or embarrass the court and justice;
proceedings before it;
Summary; motu propio Adversarial; with a written charge
Acts constituting direct contempt are: Acts constituting indirect contempt are:
b) Misbehavior in the presence of or (a) Misbehavior of an officer of a court in the
so near the court as to obstruct or performance of his official duties or in his official
interrupt the proceedings before it; transactions;
c) Disrespect toward the court; (b) Disobedience of or resistance to a lawful writ,
d) Offensive personalities towards process, order, or judgment of a court, including the
others; act of a person who, after being dispossessed or
e) Refusal to be sworn as a witness ejected from any real property by the judgment or
or to answer as a witness; process of any court of competent jurisdiction, enters
f) Refusal to subscribe an affidavit or attempts or induces another to enter into or upon
or deposition when lawfully such real property, for the purpose of executing acts
required to do so (Sec. 1); of ownership or possession, or in any manner
g) Acts of a party or a counsel which disturbs the possession given to the person

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 constitute willful and deliberate adjudged to be entitled thereto;
forum shopping (Sec. 1, Rule 7); (c) Any abuse of or any unlawful interference with the
h) Unfounded accusations or processes or proceedings of a court not constituting
allegations or words in a pleading direct contempt under section 1 of this Rule;
tending to embarrass the court or (d) Any improper conduct tending, directly or indirectly,
to bring it into disrepute (Re: to impede, obstruct, or degrade the administration of
Letter dated 21 Feb. 2005 of Atty. justice;
Noel Sorreda, 464 SCRA 32); (e) Assuming to be an attorney or an officer of a court,
and acting as such without authority;
(f) Failure to obey a subpoena duly served;
(g) The rescue, or attempted rescue, of a person or
property in the custody of an officer by virtue of an
order or process of a court held by him (Sec. 3);

(3) A criminal contempt involves a conduct that is directed against the dignity and authority
of the court or a judge acting judicially; it is an act obstructing the administration of
justice which tends to bring the court into disrepute or disrespect. Civil contempt on the
other hand, consists in failing to do something ordered to be done by a court in a civil
action for the benefit of the opposing party therein and is, therefore, an offense against
the party in whose behalf the violated order is made. (Castillejos Consumers
Association, Inc. v. Dominguez, GR No. 189949, 03/25/2015).

Remedy against direct contempt; penalty

(1) The penalty for direct contempt depends upon the court which the act was committed;
(a) If the act constituting direct contempt was committed against an RTC or a court of
equivalent or higher rank, the penalty is a fine not exceeding 2,000 pesos or
imprisonment not exceeding 10 days, or both;
(b) If the act constituting direct contempt was committed against a lower court, the
penalty is a fine not exceeding 200 pesos or imprisonment not exceeding one (1)
day, or both (Sec. 1)‘;
(c) If the contempt consists in the refusal or omission to do an act which is yet within
the power of the respondent to perform, he may be imprisoned by order of the court
concerned until he performs it (Sec. 8).
(2) A person adjudged in direct contempt may not appeal therefrom. His remedy is a
petition for certiorari or prohibition directed against the court which adjudged him in
direct contempt (Sec. 2). Pending the resolution of the petition for certiorari or
prohibition, the execution of the judgment for direct contempt shall be suspended. The
suspension however shall take place only if the person adjudged in contempt files a
bond fixed by the court which rendered the judgment. This bond is conditioned upon his
performance of the judgment should the petition be decided against him.

Remedy against indirect contempt; penalty

(1) The punishment for indirect contempt depends upon the level of the court against which
the act was committed;
(a) Where the act was committed against an RTC or a court of equivalent or higher
rank, he may be punished by a fine not exceeding 30,000 pesos or imprisonment
not exceeding 6 months, or both;
(b) Where the act was committed against a lower court, he may be punished by a fine
not exceeding 5,000 pesos or imprisonment not exceeding one month, or both.
Aside from the applicable penalties, if the contempt consists in the violation of a writ
of injunction, TRO or status quo order, he may also be ordered to make complete

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 restitution to the party injured by such violation of the property involved or such
amount as may be alleged and proved (Sec. 7);
(c) Where the act was committed against a person or entity exercising quasi-judicial
functions, the penalty imposed shall depend upon the provisions of the law which
authorizes a penalty for contempt against such persons or entities.
(2) The person adjudged in indirect contempt may appeal from the judgment or final order
of the court in the same manner as in criminal cases. The appeal will not however have
the effect of suspending the judgment if the person adjudged in contempt does not file a
bond in an amount fixed by the court from which the appeal is taken. This bond is
conditioned upon his performance of the judgment or final order if the appeal is decided
against (Sec. 11).

How contempt proceedings are commenced

(1) Proceedings for indirect contempt may be initiated motu proprio by the court against
which the contempt was committed by an order or any other formal charge requiring the
respondent to show cause why he should not be punished for contempt.
In all other cases, charges for indirect contempt shall be commenced by a verified
petition with supporting particulars and certified true copies of documents or papers
involved therein, and upon full compliance with the requirements for filing initiatory
pleadings for civil actions in the court concerned. If the contempt charges arose out of or
are related to a principal action pending in the court, the petition for contempt shall
allege that fact but said petition shall be docketed, heard and decided separately,
unless the court in its discretion orders the consolidation of the contempt charge and the
principal action for joint hearing and decision (Sec. 4).

Acts deemed punishable as indirect contempt

(1) After a charge in writing has been filed, and an opportunity given to the respondent to
comment thereon within such period as may be fixed by the court and to be heard by
himself or counsel, a person guilty of any of the following acts may be punished for
indirect contempt:
(l) Misbehavior of an officer of a court in the performance of his official duties or in his
official transactions;
(b) Disobedience of or resistance to a lawful writ, process, order, or judgment of a
court, including the act of a person who, after being dispossessed or ejected from
any real property by the judgment or process of any court of competent jurisdiction,
enters or attempts or induces another to enter into or upon such real property, for
the purpose of executing acts of ownership or possession, or in any manner
disturbs the possession given to the person adjudged to be entitled thereto;
(c) Any abuse of or any unlawful interference with the processes or proceedings of a
court not constituting direct contempt under section 1 of this Rule;
(d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade
the administration of justice;
(e) Assuming to be an attorney or an officer of a court, and acting as such without
authority;
(f) Failure to obey a subpoena duly served;
(g) The rescue, or attempted rescue, of a person or property in the custody of an officer
by virtue of an order or process of a court held by him (Sec. 3).
(2) Failure by counsel to inform the court of the death of his client constitutes indirect
contempt within the purview of Sec. 3, Rule 71, since it constitutes an improper conduct
tending to impede the administration of justice.

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When imprisonment shall be imposed

(1) When the contempt consists in the refusal or omission to do an act which is yet in the
power of the respondent to perform, he may be imprisoned by order of the court
concerned until he performs it (Sec. 8). Indefinite incarceration may be resorted to
where the attendant circumstances are such that the non-compliance with the court
order is an utter disregard of the authority of the court which has then no other recourse
but to use its coercive power. When a person or party is legally and validly required by a
court to appear before it for a certain purpose, and when that requirement is disobeyed,
the only remedy left for the court is to use force to bring the person or party before it.
(2) The punishment is imposed for the benefit of a complainant or a party to a suit who has
been injured aside from the need to compel performance of the orders or decrees of the
court, which the contemnor refuses to obey although able to do so. In effect, it is within
the power of the person adjudged guilty of contempt to set himself free.

Contempt against quasi-judicial bodies

(1) The rules on contempt apply to contempt committed against persons or entities
exercising quasi-judicial functions or in case there are rules for contempt adopted for
such bodies or entities pursuant to law, Rule 71 shall apply suppletorily (Sec. 12).
(2) Quasi-judicial bodies that have the power to cite persons for indirect contempt can only
do so by initiating them in the proper RTC. It is not within their jurisdiction and
competence to decide the indirect contempt cases. The RTC of the place where
contempt has been committed shall have jurisdiction over the charges for indirect
contempt that may be filed (Sec. 12).

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