PROVISIONAL REMEDIES AND SPECIAL CIVIL ACTIONS

PART II
3.18. Provisional remedies
Provisional remedies are writs and processes available during
the pendency of the action which may be resorted to by a litigant to preserve
and protect certain rights and interests therein pending rendition, and for
purposes of the ultimate effects, of a final judgment in the case. They are
provisional because they constitute temporary measures availed of during
the pendency of the action, and they are ancillary because they are mere
incidents in and are dependent upon the result of the main action. The
subject orders on the matter of support pendente lite are but an incident to
the main action for declaration of nullity of marriage. (Ma. Carminia C.
Calderon (formerly Ma. Carminia Calderon-Roxas), represented by her
attorney-in-fact, Marycris V. Baldevia Vs. Jose Antonio F. Roxas, G.R. No.
185595. January 9, 2013)
Nature of provisional remedies
Provisional remedies are not causes of action in themselves but merely
adjuncts to a main suit. They are temporary measures availed of during
the pendency of the action and ancillary because they are mere incidents.
[Estares v. Court of Appeals, 459 SCRA 604]
Purpose of provisional remedies
The provisional remedies denominated attachment, preliminary
injunction, receivership, and delivery of personal property, provided in Rules
59, 60, 61, and 62 of the Rules of Court, respectively, are remedies to which
parties litigant may resort for the preservation or protection of their rights or
interest, and for no other purpose, during the pendency of the principal
action. If an action, by its nature, does not require such protection or
preservation, said remedies can not be applied for and granted. [Calo v.
Roldan, G.R. No. L-252, March 30, 1946]
Jurisdiction over provisional remedies
MTC has exclusive original jurisdiction over civil actions and probate
proceedings, testate and intestate, including the grant of provisional
remedies in proper cases, where the value of the personal property, estate,
or amount of the demand does not exceed One hundred thousand pesos
(P100,000.00) or, in Metro Manila where such personal property, estate, or
amount of the demand does not exceed Two hundred thousand pesos
(P200,000.00) exclusive of interest damages of whatever kind, attorney's
fees, litigation expenses, and costs. [B.P. 129, Sec. 33]
3.18.3. Preliminary attachment
A preliminary attachment may be defined, paraphrasing the Rules of
Court, as the provisional remedy in virtue of which a plaintiff or other party
may, at the commencement of the action or at any time thereafter, have the

property of the adverse party taken into the custody of the court as security
for the satisfaction of any judgment that may be recovered. [Davao Light v.
Court of Appeals, 204 SCRA 343]
Grounds for issuance of writ of attachment
(a) In an action for the recovery of a specified amount of money or
damages, other than moral and exemplary, on a cause of action arising from
law, contract, quasi-contract, delict or quasi-delict against a party who is
about to depart from the Philippines with intent to defraud his creditors;
(b) In an action for money or property embezzled or fraudulently
misapplied or converted to his own use by a public officer, or an officer of a
corporation, or an attorney, factor, broker, agent, or clerk, in the course of
his employment as such, or by any other person in a fiduciary capacity, or for
a willful violation of duty;
(c) In an action to recover the possession of property unjustly or
fraudulently taken, detained or converted, when the property, or any part
thereof, has been concealed, removed, or disposed of to prevent its being
found or taken by the applicant or an authorized person;
(d) In an action against a party who has been guilty of a fraud in
contracting the debt or incurring the obligation upon which the action is
brought, or in the performance thereof;
(e) In an action against a party who has removed or disposed of his
property, or is about to do so, with intent to defraud his creditors; or
(f) In an action against a party who does not reside and is not found in
the Philippines, or on whom summons may be served by publication. [Rule
57, Sec. 1]
Requisites
1) The case must be any of those where preliminary attachment is
proper
2) The applicant must file a motion
3) The applicant must show by affidavit that there is of sufficient
security for the claim sought to be enforced; that the amount claimed in the
action is as much as the sum of which the order is granted above all
counterclaims
4) The applicant must post a bond executed to the adverse party
(attachment bond) (Section 3, Rule 57 of the Rules of Court)
Attachment will not lie if there is an existing real estate mortgage
The writ will not be issued if a real estate mortgage exists to secure the
obligation even if instead of filing an action for foreclosure, an action for a
sum of money was instead filed. [Salgado v. Court of Appeals, G.R. No.
55381, March 26, 1984]
Fraud as a ground for issuance of writ of attachment: Requisites:
A writ of preliminary attachment is too harsh a provisional remedy to
be issued based on mere abstractions of fraud. Rather, the rules require that
for the writ to issue, there must be a recitation of clear and concrete factual
circumstances manifesting that the debtor practiced fraud upon the creditor
at the time of the execution of their agreement in that said debtor had a

preconceived plan or intention not to pay the creditor. [Equitable v. Special

Steel, G.R. No. 175350, June 13, 2012]
Attachment is dependent on the main suit
The remedy of attachment is adjunct to the main suit, therefore, it can
have no independent existence apart from a suit on a claim of the plaintiff
against the defendant. When Aboitiz and Company, Inc. withdrew its
complaint, the attachment ceased to have a leg to stand on. [Adlawan v.
Tomol, G.R. No. L-63225, April 3, 1990]
Issuance and contents of order of attachment; affidavit and bond
An order of attachment may be issued either ex parte or upon motion
with notice and hearing by the court in which the action is pending, or by the
Court of Appeals or the Supreme Court, and must require the sheriff of the
court to attach so much of the property in the Philippines of the party against
whom it is issued, not exempt from execution, as may be sufficient to satisfy
the applicant's demand, unless such party makes deposit or gives a bond as
hereinafter provided in an amount equal to that fixed in the order, which may
be the amount sufficient to satisfy the applicant's demand or the value of the
property to be attached as stated by the applicant, exclusive of costs.
Several writs may be issued at the same time to the sheriffs of the courts of
different judicial regions. [Rule 57, Sec. 2]
Requirements for the issuance of the writ:
An order of attachment shall be granted only when it appears by the
affidavit of the applicant, or of some other person who personally
knows the facts, that a sufficient cause of action exists, that the case is one
of those mentioned in section 1 hereof, that there is no other sufficient
security for the claim sought to be enforced by the action, and that the
amount due to the applicant, or the value of the property the possession of
which he is entitled to recover, is as much as the sum for which the order is
granted above all legal counterclaims. The affidavit, and the bond required
by the next succeeding section, must be duly filed with the court before the
order issues. [Rule 57, Sec. 3]
The party applying for the order must thereafter give a bond
executed to the adverse party in the amount fixed by the court in its
order granting the issuance of the writ, conditioned that the latter will
pay all the costs which may be adjudged to the adverse party and all
damages which he may sustain by reason of the attachment, if the court
shall finally adjudge that the applicant was not entitled thereto. [Rule 57,
Sec. 4]
Purpose of ex-parte issuance of writ of attachment
Ex parte grant of the writ is allowed because it is possible that during
the course of the hearing, the part against whom the writ is sought may
dispose of his property or abscond before the writ is issued. [Filinvest v.
Relova, G.R. No. L-50378, September 30, 1982]
Rule on prior or contemporaneous service of summons

The sheriff enforcing the writ shall without delay and with all
reasonable diligence attach, to await judgment and execution in the action,
only so much of the property in the Philippines of the party against whom the
writ is issued, not exempt from execution, as may be sufficient to satisfy the
applicant's demand, unless the former makes a deposit with the court from
which the writ is issued, or gives a counter-bond executed to the applicant, in
an amount equal to the bond fixed by the court in the order of attachment or
to the value of the property to be attached, exclusive of costs. No levy on
attachment pursuant to the writ issued under section 2 hereof shall be
enforced unless it is preceded, or contemporaneously accompanied, by
service of summons, together with a copy of the complaint, the application
for attachment the applicant's affidavit and bond, and the order and writ of
attachment, on the defendant within the Philippines. [Rule 57, Sec. 5 (1)]
Exceptions
The requirement of prior or contemporaneous service of summons
shall not apply where the summons could not be served personally or by
substituted service despite diligent efforts, or the defendant is a resident of
the Philippines temporarily absent therefrom, or the defendant is a nonresident of the Philippines, or the action is one in rem or quasi in rem. [Rule
57, Sec. 5 (2)]
Manner of attaching real and personal property; when property
attached is claimed by third person
Real and personal property shall be attached by the sheriff executing
the writ in the following manner:
(a) Real property, or growing crops thereon, or any interest therein,
standing upon the record of the registry of deeds of the province in the name
of the party against whom attachment is issued, or not appearing at all upon
such records, or belonging to the party against whom attachment is issued
and held by any other person, or standing on the records of the registry of
deeds in the name of any other person, by filing with the registry of deeds a
copy of the order, together with a description of the property attached, and a
notice that it is attached, or that such real property and any interest therein
held by or standing in the name of such other person are attached, and by
leaving a copy of such order, description, and notice with the occupant of the
property, if any, or with such other person or his agent if found within the
province. Where the property has been brought under the operation of either
the Land Registration Act or the Property Registration Decree, the notice
shall contain a reference to the number of the certificate of title, the volume
and page in the registration book where the certificate is registered, and the
registered owner or owners thereof.
The registrar of deeds must index attachments filed under this section
in the names of the applicant, the adverse party, or the person by whom the
property is held or in whose name it stands in the records. If the attachment
is not claimed on the entire area of the land covered by the certificate of
title, a description sufficiently accurate for the identification of the land or
interest to be affected shall be included in the registration of such
attachment;

(b) Personal property capable of manual delivery, by taking and safely

keeping it in his custody, after issuing the corresponding receipt therefor.
(c) Stocks or shares, or an interest in stocks or shares, of any
corporation or company, by leaving with the president or managing agent
thereof, a copy of the writ, and a notice stating that the stock or interest of
the party against whom the attachment is issued is attached in pursuance of
such writ;
(d) Debts and credits, including bank deposits, financial interest,
royalties, commissions and other personal property not capable of manual
delivery, by leaving with the person owing such debts, or having in his
possession or under his control, such credits or other personal property, or
with his agent, a copy of the writ, and notice that the debts owing by him to
the party against whom attachment is issued, and the credits and other
personal property in his possession, or under his control, belonging to said
party, are attached in pursuance of such writ;
(e) The interest of the party against whom attachment is issued in
property belonging to the estate of the decedent, whether as heir, legatee,
or devisee, by serving the executor or administrator or other personal
representative of the decedent with a copy of the writ and notice that said
interest is attached. A copy of said writ of attachment and of said notice shall
also be filed in the office of the clerk of the court in which said estate is being
settled and served upon the heir, legatee or devisee concerned.
If the property sought to be attached is in custodia legis, a copy of the
writ of attachment shall be filed with the proper court or quasi-judicial
agency, and notice of the attachment served upon the custodian of such
property. [Rule 57, Sec. 7] (See also Sec. 5)
Discharge of attachment and the counter-bond
Preliminary attachment shall be discharged when it is established that:
1) The debtor has posted a counterbond or has made the requisite
cash bond [Rule 57, Sec. 12];
2) The attachment was improperly or irregularly issued as where there
is no ground for attachment under Section 1 of this Rule [Rule 57, Sec. 13];
3) The bond filed is defective or insufficient [Rule 57, Sec. 13];
4) The attachment is excessive, but the discharge shall be limited to
the excess [Rule 57, Sec. 13];
5) The property attached is exempt from execution, hence exempt
from preliminary attachment [Rule 57, Sec. 2 and 5]; or
6) The judgment is rendered against the attaching creditor [Rule 57,
Sec. 19]
Discharge of the writ of attachment must be made after hearing
A discharge of the attachment must be made only after hearing. Ex
parte discharge is a disservice to the orderly administration of justice.
[Peroxide Philippines Corporation v. Court of Appeals, G.R. No. 92813, July

31, 1991]
Purpose of counter-bond
Jurisprudence adds that counter-bonds are also replacements of the
property formerly attached, and just as the latter, may be levied upon final
judgment. [Security Pacific Assurance Corporation v. Tri-Infante, 468 SCRA
526]
Satisfaction of judgment out of property attached
If judgment be recovered by the attaching party and execution issue
thereon, the sheriff may cause the judgment to be satisfied out of the
property attached, if it be sufficient for that purpose in the following manner:
(a) By paying to the judgment obligee the proceeds of all sales of
perishable or other property sold in pursuance of the order of the court, or so
much as shall be necessary to satisfy the judgment;
(b) If any balance remains due, by selling so much of the property, real
or personal, as may be necessary to satisfy the balance, if enough for that
purpose remain in the sheriff's hands, or in those the clerk of the court;
(c) By collecting from all persons having in their possession credits
belonging to the judgment obligor, or owing debts to the latter at the time of
the attachment of such credits or debts, the amount of such credits and
debts as determined by the court in the action, and stated in the judgment,
and paying the proceeds of such collection over to the judgment obligee.
[Rule 57, Sec. 15]
3.18.4. Preliminary injunction

Preliminary Injunction
A writ of preliminary injunction is an extraordinary event which
must be granted only in the face of actual and existing substantial rights.
The duty of the court taking cognizance of a prayer for a writ of preliminary
injunction is to determine whether the requisites necessary for the grant of
an injunction are present in the case before it. In the absence of the same,
and where facts are shown to be wanting in bringing the matter within the
conditions for its issuance, the ancillary writ must be struck down for having
been rendered in grave abuse of discretion. (Palm Tree Estates, Inc., et al.
Vs. Philippine National Bank, G.R. No. 159370. October 3, 2012)
Preliminary Injunctive Writ
It is a deeply ingrained doctrine in Philippine remedial law that a
preliminary injunctive writ under Rule 58 issues only upon a showing of the
applicants clear legal right being violated or under threat of violation by
the defendant. Clear legal right, within the meaning of Rule 58,
contemplates a right clearly founded in or granted by law. Any hint of
doubt or dispute on the asserted legal right precludes the grant of
preliminary injunctive relief. For suits attacking the validity of laws or
issuances with the force and effect of law, as here, the applicant for
preliminary injunctive relief bears the added burden of overcoming the
presumption of validity inhering in such laws or issuances. These procedural
barriers to the issuance of a preliminary injunctive writ are rooted on the
equitable nature of such relief, preserving the status quo while, at the same
time, restricting the course of action of the defendants even beforeadverse
judgment is rendered against them. (Executive Secretary, et al. Vs.
Forerunner Multi Resources, Inc., G.R. No. 199324. January 7, 2013)
Requirement of clear and legal right
It is a deeply ingrained doctrine in Philippine remedial law that a
preliminary injunctive relief under Rule 58 issues only upon a showing of the
applicants clear legal right being violated or under threat of violation by
the defendant. Clear legal right, within the meaning of Rule 58,
contemplates a right clearly founded in or granted by law. Any hint of doubt
or dispute on the asserted legal right precludes the grant of preliminary
injunctive relief. For suits attacking the validity of laws or issuances with the
force and effect of law, as here, the applicant for preliminary injunctive relief
bears the added burden of overcoming the presumption of validity inhering
in such laws or issuances. These procedural barriers to the issuance of a
preliminary injunctive writ are rooted on the equitable nature of such relief,
preserving the status quo while, at the same time, restricting the course of
action of the defendants even before adverse judgment is rendered against
them. (Executive Secretary, Secretary of Finance, Commissioner of Customs,
District collector of customs, Port of Aparri, Cagayan, District Collector of
Customs, Port of San Fernando La Union, and Head of the Land
Transportation Office v. Forerunner Multi Resources, Inc., G.R. No. 199324.
January 7, 2013)
Existence of a clear legal right required during the pendency of the
action

As such, a writ of preliminary injunction may be issued only upon

clear showing of an existing legal right to be protected during the pendency
of the principal action. The requisites of a valid injunction are the existence
of a right and its actual or threatened violations. Thus, to be entitled to an
injunctive writ, the right to be protected and the violation against that right
must be shown. TML Gasket Industries, Inc. v. BPI Family Savings Bank, Inc.,
G.R. No. 188768. January 7, 2013)
What are the grounds for the issuance of writ of injunction?
Section 3, Rule 58 of the Rules of Court lists the grounds for the
issuance of a writ of preliminary injunction:
Sec.3. Grounds for the issuance of preliminary injunction. A
preliminary injunction may be granted when it is established:
(a) that the applicant is entitled to the relief demanded, and the
whole or part of such relief consists un restraining the commission or
continuance of the act or acts complained of, or in requiring the performance
of an act or acts, either for a limited period or perpetually;
(b) that the commission, continuance or non-performance of the act or
acts complained of during the litigation would probably work injustice to the
applicant; or
(c) that a party, court, agency, or a person doing, threatening, or
is attempting to do, or is procuring or suffering to be done, some act or acts
probably in violation of the right of the applicant respecting the subject of
the action or proceeding, and tending to render the judgment ineffectual
Definitions and differences: preliminary injunction and temporary
restraining order; status quo ante order
Generally, injunction is a preservative remedy for the protection of
substantive rights or interests. It is not a cause of action in itself but merely
a provisional remedy, an adjunct to a main suit. The controlling reason for
the existence of the judicial power to issue the writ is that the court may
thereby prevent a threatened or continuous irremediable injury to some of
the parties before their claims can be thoroughly investigated and advisedly
adjudicated. [Estares v. Court of Appeals, supra]
Doctrine of strong arm of equity
It is the strong arm of equity, an extraordinary preemptory remedy that
must be used with extreme caution, affecting as it does the respective rights
of the parties. [China Banking Corporation v. Sps. Ciriaco, G.R. No. 170038,
July 11, 2012]
Purpose of injunction

It is issued by the court to prevent threatened or continuous

irreparable injury to parties before their claims can be thoroughly studied
and adjudicated. [Manila International Airport Authority v. Rivera Village, 471
SCRA 358]
Requirements for the issuance of the writ
For an injunctive writ to issue, a clear showing of extreme urgency to
prevent irreparable injury and a clear and unmistakable right to it must be
proven by the party seeking it. The primary objective of a preliminary
injunction, whether prohibitory or mandatory, is to preserve the status quo
until the merits of the case can be heard.
When can a writ of injunction be issued?
A preliminary injunction is granted at any stage of an action or
proceeding prior to the judgment or final order. It persists until it is dissolved
or until the termination of the action without the court issuing a final
injunction. [Miriam College Foundation, Inc. v. CA, G.R. No. 127930,
December 15, 2000]
When can a temporary restraining order be issued? Purpose:
A restraining order, on the other hand, is issued to preserve the status
quo until the hearing of the application for preliminary injunction which
cannot be issued ex parte. Under Rule 58of the Rules of Court, a judge may
issue a temporary restraining order with a limited life of twenty (20) days
from date of issue. If before the expiration of the twenty (20)-day period the
application for preliminary injunction is denied, the temporary restraining
order would be deemed automatically vacated. [Bacolod City Water District
v. Labayen,G.R. No. 157494, December 10, 2004]
Requisites of TRO and Injunction
The following elements must concur for the issuance of a writ of
preliminary injunction:
1. The invasion of the right is material and substantial;
2. The right of the complainant is clear and unmistakable;
3. There is urgent and paramount necessity for the writ to prevent
serious damage [Strategic Alliance Development Corp. v. Star Infrastructure
Development Corp., G.R. No. 187872, April 11, 2011]; and
4. Its effect would not be to create a new relation between the parties
which was arbitrarily interrupted by the defendant.
Kinds of injunction
Preliminary injunction
- An order granted at any stage of an action or proceeding prior to the
judgment or final order:

a) Requiring a party or a court, agency or a person to refrain from a

performance of a particular act or acts (preventive or prohibitive injunction);
or
b) Also requiring the performance of a particular act or acts
(mandatory injunction). (Section 1, Rule 58, Rules of Court; Regalado 2008
ed.)
Final injunction:
a) Granted if, after the trial of the action, it appears that the applicant
is entitled to have the act or acts complained of permanently enjoined
b) May perpetually restrain the party or person enjoined from the
commission or continuance of the act or acts or confirming the preliminary
mandatory injunction. (Section 9, Rule 58 of the Rules of Court)
Preliminary injunction; improper where act sought to be enjoined is
already consummated
Case law instructs that injunction would not lie where the acts sought
to be enjoined had already become fait accompli (meaning, an accomplished
or consummated act). Hence, since the consummation of the act sought to
be restrained had rendered Sps. Alindogs injunction petition moot, the
issuance of the said injunctive writ was altogether improper. (Spouses
Nicasio C. Marquez and Anita J. Marquez v. Spouses Carlito Alindog and
Carmen Alindog, G.R. No. 184045. January 22, 2014)
Grounds for objection to, or for the dissolution of injunction or
restraining order
The application for injunction or restraining order may be denied, upon
a showing of its insufficiency. The injunction or restraining order may also be
denied, or, if granted, may be dissolved, on other grounds upon affidavits of
the party or person enjoined, which may be opposed by the applicant also by
affidavits. It may further be denied, or if granted, may be dissolved, if it
appears after hearing that although the applicant is entitled to the injunction
or restraining order, the issuance or continuance thereof, as the case may
be, would cause irreparable damage to the party or person enjoined while
the applicant can be fully compensated for such damages as he may suffer,
and the former files a bond in an amount fixed by the court conditioned that
he will pay all damages which the applicant may suffer by the denial or the
dissolution of the injunction or restraining order. If it appears that the extent
of the preliminary injunction or restraining order granted is too great, it may
be modified. [Rule 58, Sec. 6]
Temporary Restraining Order (TRO)
When can it be issued? Period of effectivity?
If it shall appear from facts shown by affidavits or by the verified
application that great or irreparable injury would result to the applicant
before the matter can be heard on notice, the court to which the application
for preliminary injunction was made, may issue a temporary restraining order

to be effective only for a period of twenty (20) days from service on the party
or person sought to be enjoined, except as herein provided. Within the said
twenty-day period, the court must order said party or person to show cause,
at a specified time and place, why the injunction should not be granted,
determine within the same period whether or not the preliminary injunction
shall be granted, and accordingly issue the corresponding order.
Period of effectivity of TRO issued by the Court of Appeals; Supreme
Court:
However, if issued by the Court of Appeals or a member thereof, the
temporary restraining order shall be effective for sixty (60) days from service
on the party or person sought to be enjoined. A restraining, order issued by
the Supreme Court or a member thereof shall be effective until further
orders. [Rule 58, Sec. 5]
Duty of the court within the twenty (20) day period
Within the said 20 day period, the court must order said party or
person to show cause why the injunction should not be granted. Also, within
the same period, the court shall determine whether or not the preliminary
injunction shall be granted and then issue the corresponding order.
[Australian Professional, Inc. v. Municipality of Padre Garcia, 668 SCRA 253]
Period of TRO if based on extreme urgency: Extension of 17 days:
However, and subject to the provisions of the preceding sections, if the
matter is of extreme urgency and the applicant will suffer grave injustice and
irreparable injury, the executive judge of a multiple-sala court or the
presiding judge of a single sala court may issue ex parte a temporary
restraining order effective for only seventy-two (72) hours from issuance but
he shall immediately comply with the provisions of the next preceding
section as to service of summons and the documents to be served therewith.
Thereafter, within the aforesaid seventy-two (72) hours, the judge before
whom the case is pending shall conduct a summary hearing to determine
whether the temporary restraining order shall be extended until the
application for preliminary injunction can be heard. In no case shall the total
period of effectivity of the temporary restraining order exceed twenty (20)
days, including the original seventy-two hours provided herein. [Rule 58,
Sec. 5 (2)]
Period of twenty days non-extendible
The rule against the non-extendibility of the 20 day effectivity of a TRO
is absolute if issued by the RTC. The failure of the trial court to fix the period
in the TRO does not convert it to a preliminary injunction. [Bacolod City
Water District v. Labayen, supra]
Limitations on the issuance of a TRO or injunction
In relation to R.A. No. 8975, ban on issuance of TRO or writ of
injunction in cases involving government infrastructure projects

No court, except the Supreme Court, shall issue any temporary

restraining order, preliminary injunction or preliminary mandatory injunction
against the government, or any of its subdivisions, officials or any person or
entity, whether public or private acting under the government direction, to
restrain, prohibit or compel the following acts:
(a) Acquisition, clearance and development of the right-of-way and/or
site or location of any national government project;
(b) Bidding or awarding of contract/ project of the national government
as defined under Section 2 hereof;
(c) Commencement prosecution, execution, implementation, operation
of any such contract or project;
(d) Termination or rescission of any such contract/project; and
(e) The undertaking or authorization of any other lawful activity
necessary for such contract/project.
Prohibition applicable in all cases
This prohibition shall apply in all cases, disputes or controversies
instituted by a private party, including but not limited to cases filed by
bidders or those claiming to have rights through such bidders involving such
contract/project. This prohibition shall not apply when the matter is of
extreme urgency involving a constitutional issue, such that unless a
temporary restraining order is issued, grave injustice and irreparable injury
will arise. The applicant shall file a bond, in an amount to be fixed by the
court, which bond shall accrue in favor of the government if the court should
finally decide that the applicant was not entitled to the relief sought.
Duty of the court if the contract is declared null and void
In after due hearing the court finds that the award of the contract is
null and void, the court may, if appropriate under the circumstances, award
the contract to the qualified and winning bidder or order a rebidding of the
same, without prejudice to any liability that the guilty party may incur under
existing laws. [R.A. 8975, Sec. 3]
Rule on prior or contemporaneous service of summons and other
requirements necessary
When an application for a writ of preliminary injunction or a temporary
restraining order is included in a complaint or any initiatory pleading, the
case, if filed in a multiple-sala court, shall be raffled only after notice to and
in the presence of the adverse party or the person to be enjoined. In any
event, such notice shall be preceded, or contemporaneously accompanied,
by service of summons, together with a copy of the complaint or initiatory
pleading and the applicant's affidavit and bond, upon the adverse party in
the Philippines. [Rule 58, Sec. 4 (c)]
When contemporaneous service of summons not applicable
However, where the summons could not be served personally or by
substituted service despite diligent efforts, or the adverse party is a resident
of the Philippines temporarily absent therefrom or is a non-resident thereof,
the requirement of prior or contemporaneous service of summons shall not

apply. [Rule 58, Sec. 4 (c) (2)]

3.18.5. Receivership
Purpose of receivership
Receivership is aimed at the preservation of, and at making more
secure, existing rights. It cannot be used as an instrument for the destruction
of those rights. [Arranza v. B.F. Homes, Inc., 33 SCRA 799]
Who is a receiver?
A receiver is a person appointed by the court in behalf of all the parties
to the action for the purpose of preserving and conserving the property in
litigation and prevent its possible destruction or dissipation, if it were left in
the possession of any of the parties. The appointment of a receiver is not a
matter of absolute right. [Commodities Storage v. Court of Appeals, 274
SCRA 439]
Cases when receiver may be appointed
Upon a verified application, one or more receivers of the property
subject of the action or proceeding may be appointed by the court where the
action is pending or by the Court of Appeals or by the Supreme Court, or a
member thereof, in the following cases:
(a) When it appears from the verified application, and such other proof
as the court may require, that the party applying for the appointment of a
receiver has an interest in the property or fund which is the subject of the
action or proceeding, and that such property or fund is in danger of being
lost, removed, or materially injured unless a receiver be appointed to
administer and preserve it;
(b) When it appears in an action by the mortgagee for the foreclosure
of a mortgage that the property is in danger of being wasted or dissipated or
materially injured, and that its value is probably insufficient to discharge the
mortgage debt, or that the parties have so stipulated in the contract of
mortgage;
(c) After judgment, to preserve the property during the pendency of an
appeal, or to dispose of it according to the judgment, or to aid execution
when the execution has been returned unsatisfied or the judgment obligor
refuses to apply his property in satisfaction of the judgment, or otherwise to
carry the judgment into effect;
(d) Whenever in other cases it appears that the appointment of a
receiver is the most convenient and feasible means of preserving,
administering, or disposing of the property in litigation.
During the pendency of an appeal, the appellate court may allow an
application for the appointment of a receiver to be filed in and decided by
the court of origin and the receiver appointed to be subject to the control of
said court. [Rule 59, Sec. 1]
Nature of the duty of the receiver
A receiver is not an agent or representative of any party to the action.

He is an officer of the court exercising his functions in the interest of neither

plaintiff nor defendant, but for the common benefit of all parties in interest.
[Pacific Merchandising Corporation v. Consolacion Insurance, 73 SCRA 564]
Requirements before issuance of an order
1) Verified application for the appointment of a receiver based on any
of the grounds enumerated in Section 1, Rule 59; and
2) Bond filed by the applicant and executed to the party against whom
the application is presented, in an amount to be fixed by the court, to the
effect that the applicant will pay such party all damages the latter may
sustain by reason of the appointment of such receiver in case the applicant
should have procured the same without sufficient cause.
Posting of additional bond
The court may, in its discretion, at any time after the appointment,
require an additional bond as further security for such damages
General powers of a receiver
Subject to the control of the court in which the action or proceeding is
pending a receiver shall have the power to bring and defend, in such
capacity, actions in his own name; to take and keep possession of the
property in controversy; to receive rents; to collect debts due to himself as
receiver or to the fund, property, estate, person, or corporation of which he is
the receiver; to compound for and compromise the same; to make transfers;
to pay outstanding debts; to divide the money and other property that shall
remain among the persons legally entitled to receive the same; and
generally to do such acts respecting the property as the court may authorize.
However, funds in the hands of a receiver may be invested only by order of
the court upon the written consent of all the parties to the action. [Rule 59,
Sec. 6]
Two kinds of bonds
There are two main types of bonds, namely:
1. The bond required before appointment of a receiver; and
2. The bond required of a receiver before entering upon his duties.
Another bond is the one which the court may require, at any time after the
appointment of the receiver as further security for damages. [Riano, supra]
Termination of receivership
Whenever the court, motu proprio or on motion of either party, shall
determine that the necessity for a receiver no longer exists, it shall, after due
notice to all interested parties and hearing, settle the accounts of the
receiver, direct the delivery of the funds and other property in his possession
to the person adjudged to be entitled to receive them and order the
discharge of the receiver from further duty as such. The court shall allow the
receiver such reasonable compensation as the circumstances of the case

warrant, to be taxed as costs against the defeated party, or apportioned, as

justice requires. [Rule 59, Sec. 8]
3.18.6. Replevin
Nature of replevin
Replevin, broadly understood, is both a form of principal remedy and
of a provisional relief. It may refer either to the action itself, i.e., to regain
the possession of personal chattels being wrongfully detained from the
plaintiff by another, or to the provisional remedy that would allow the
plaintiff to retain the thing during the pendency of the action and hold
it pendente lite. [Tillson vs. Court of Appeals, 197 SCRA 587]
Nature of an action for replevin
The action is primarily possessory in nature and generally determines
nothing more than the right of possession. Replevin is so usually described
as a mixed action, being partly in rem and partly in personam-in rem insofar
as the recovery of specific property is concerned, and in personam as
regards to damages involved. As an "action in rem," the gist of the replevin
action is the right of the plaintiff to obtain possession of specific personal
property by reason of his being the owner or of his having a special interest
therein. [BA Finance Corporation v. Court of Appeals, 258 SCRA 102]
When may writ be issued?/Requisites
A party praying for the recovery of possession of personal property
may, at the commencement of the action or at any time before answer,
apply for an order for the delivery of such property to him, in the manner
hereinafter provided.
Applicant need not be the owner of the property subject of replevin
The applicant need not be the owner of the property. It is enough that
he has a right to its possession. [Yang v. Valdez, G.R. No. 73317, August 31,
1989]
Affidavit and bond; redelivery bond
The applicant must show by his own affidavit or that of some other
person who personally knows the facts:
(a) That the applicant is the owner of the property claimed, particularly
describing it, or is entitled to the possession thereof;
(b) That the property is wrongfully detained by the adverse party,
alleging the cause of detention thereof according to the best of his
knowledge, information, and belief ;
(c) That the property has not been distrained or taken for a tax
assessment or a fine pursuant to law, or seized under a writ of execution or
preliminary attachment, or otherwise placed under custodia legis, or if so
seized, that it is exempt from such seizure or custody; and
(d) The actual market value of the property. [Rule 60, Sec. 2]

Remedy of the adverse party

If the adverse party objects to the sufficiency of the applicant's bond,
or of the surety or sureties thereon, he cannot immediately require the return
of the property, but if he does not so object, he may, at any time before the
delivery of the property to the applicant, require the return thereof, by filing
with the court where the action is pending a bond executed to the applicant,
in double the value of the property as stated in the applicant's affidavit for
the delivery thereof to the applicant, if such delivery be adjudged, and for
the payment of such sum, to him as may be recovered against the adverse
party, and by serving a copy of such bond on the applicant. [Rule 60, Sec. 5]
Sheriffs duty in the implementation of the writ; when property is
claimed by third party
Upon receiving such order, the sheriff must serve a copy thereof on the
adverse party, together with a copy of the application, affidavit and bond,
and must forthwith take the property, if it be in the possession of the adverse
party, or his agent, and retain it in his custody. If the property or any part
thereof be concealed in a building or enclosure, the sheriff must demand its
delivery, and if it be not delivered, he must cause the building or enclosure
to be broken open and take the property into his possession. After the sheriff
has take possession of the property as herein provided, he must keep it in a
secure place and shall be responsible for its delivery to the party entitled
thereto upon receiving his fees and necessary expenses for taking and
keeping the same. [Rule 60, Sec. 4]
Duty of the sheriff upon seizure of property under replevin
The rules provide that property seized under a writ of replevin is not to
be delivered immediately to the plaintiff. Under Section 6, Rule 60, the
Sheriff should have waited no less than 5 days in order to give the
complainant an opportunity to object to the sufficiency of the bond.[Hao v.
Andres, A.M. No. P-07-2384, June 18, 2008]
When to make an objection? Requirements;
If within five (5) days after the taking of the property by the sheriff, the
adverse party does not object to the sufficiency of the bond, or of the surety
or sureties thereon; or if the adverse party so objects and the court affirms
its approval of the applicant's bond or approves a new bond, or if the adverse
party requires the return of the property but his bond is objected to and
found insufficient and he does not forthwith file an approved bond, the
property shall be delivered to the applicant. If for any reason the property is
not delivered to the applicant, the sheriff must return it to the adverse
party. [Rule 60, Sec. 6]
Third party- claim: Duty of the sheriff
If the property taken is claimed by any person other than the party
against whom the writ of replevin had been issued or his agent, and such
person makes an affidavit of his title thereto, or right to the possession
thereof, stating the grounds therefor, and serves such affidavit upon the
sheriff while the latter has possession of the property and a copy thereof

upon the applicant, the sheriff shall not be bound to keep the property under
replevin or deliver it to the applicant unless the applicant or his agent, on
demand of said sheriff, shall file a bond approved by the court to indemnify
the third-party claimant in a sum not less than the value of the property
under replevin as provided in section 2 hereof. In case of disagreement as to
such value, the court shall determine the same. No claim for damages for the
taking or keeping, of the property may be enforced against the bond unless
the action therefor is filed within one hundred twenty (120) days from the
date of the filing of the bond.
Non-liability of the sheriff
The sheriff shall not be liable for damages, for the taking or keeping of
such property, to any such third-party claimant if such bond shall be filed.
Nothing herein contained shall prevent such claimant or any third person
from vindicating his claim to the property, or prevent the applicant from
claiming damages against a third-party claimant who filed a frivolous or
plainly spurious claim, in the same or a separate action.
Rule in case writ was issued in favour of the Republic: Bond not
required
When the writ of replevin is issued in favor of the Republic of the
Philippines, or any officer duly representing it, the filing of such bond shall
not be required, and in case the sheriff is sued for damages as a result of the
replevin, he shall be represented by the Solicitor General, and if held liable
therefor, the actual damages adjudged by the court shall be paid by the
National Treasurer out of the funds to be appropriated for the purpose. [Rule
60, Sec. 7]
Support pendent lite
Interlocutory and Final orders; application to provisional remedies
especially to support pendente lite.
Order of support pendent lite an interlocutory order
The assailed orders relative to the incident of support pendent lite and
support in arrears, as the term suggests, were issued pending the rendition
of the decision on the main action for declaration of nullity of marriage and
are therefore interlocutory. They did not finally dispose of the case nor did
they consist of a final adjudication of the merits of petitioners claims as to
the ground of psychological incapacity and other incidents as child custody,
support, and conjugal assets. (Ma. Carmina Calderon represented by her
Attorney-in-fact, Marycris V. Baldevia v. Jose Antonio Roxas and Court of
Appeals, G.R. No. 185595. January 9, 2013)
3.19. Special civil actions

Burden of Proof
We stress that in a special civil action for certiorari, the
petitionercarries the burden of proving not merely reversible error, but grave
abuse ofdiscretion amounting to lack or excess of jurisdiction, on the part of
thepublic respondent for his issuance of the impugned order. Grave abuse
ofdiscretion is present when there is a capricious and whimsical exercise of
Meaning of lack of jurisdiction
judgment as is equivalent to lack of jurisdiction, such as where the
power isexercised in an arbitrary or despotic manner by reason of passion or
personal hostility, and it must be so patent and gross as to amount to an
evasion of positive duty or to a virtual refusal to perform the duty enjoined or
to act at all in contemplation of law. In other words, the tribunal or
administrative body must have issued the assailed decision, order or
resolution in a capricious or despotic manner. Petitioner failed to discharge
that burden and perforce the petition must fail. (Isabelita P. Gravides Vs.
Commission on Elections and Pedro C. Borjal, G.R. No. 199433. November
13, 2012)
3.19.1. Nature of special civil actions
Rule 65 not a Remedy for lost Appeal
At the outset, it must be pointed out that petitioners resort to a
Petition for Certiorari under Rule 65 of the Rules of Court is inappropriate.
Petitioners remedy from the adverse Decision of the CA lies in Rule 45 which
is a Petition for Review on Certiorari. As such, this petition should have been
dismissed outright for being a wrong mode of appeal. Even if the petition is
to be treated as filed under Rule 45, the same must still be denied for late
filing and there being no reversible error on the part of the CA. Records show
that petitioners received a copy of the CA Resolution denying their Motion for
Reconsideration on October 30, 2006.42 They therefore had 15 days or until
November 14, 2006 within which to file their Petition for Review on Certiorari
before this Court. However, they filed their Petition for Certiorari on
December 29, 2006,43 after the period to file a Petition for Review on
Certiorari under Rule 45 had expired. Hence, this Petition for Certiorari under
Rule 65 was resorted to as a substitute for a lost appeal which is not allowed.
(Ruben C. Magtoto and Artemia Magtoto Vs. Court of Appeals and Leonila M.
Dela CruzG.R. No. 175792. November 21, 2012)
3.19.2. Ordinary civil actions versus special civil actions
An ordinary civil actionis when a party sues another for the
enforcement or protection of a right, or the prevention or redress of a wrong.
[Reyes v. Enriquez, G.R. No. 162956, April 10, 2008] A special civil action
contains special features not found in ordinary civil actions. It is also
governed by ordinary rules but subject to specific rules prescribed. [Rule 1,
Sec. 3 (a), Paragraph 2]
3.19.3. Jurisdiction and venue

Rule on venue in special civil action

Unlike ordinary civil actions which is determined by either the
residences of the parties if personal, or location of the property if real,
special civil actions need not be based on this. For instance for quo warranto,
venue is fixed without regard to the residences of the parties. [Riano, Civil
Procedure II, 2012] Venue should still follow the rule on venue, except in
instances where the special civil action specifies.
Jurisdiction of the lower court to hear interpleader
In view of defendants subsequent failure to settle his issue with the
supplier, plaintiff instituted an action for interpleader against the defendant
and the supplier, before the Court of First Instance. The Court held that the
Special Civil Action may be tried by the lower court if it falls within its
jurisdiction, here the amount was less than 10,000, hence, the petition was
proper. [Makati Development v. Tanjuatco, G.R. No. L-26443, March 25, 1969]
Jurisdiction in ejectment
Petitioners contend that since the MTC acted without jurisdiction, the
RTC can only decide the case on appeal if it has original jurisdiction. The SC
held that the MTC had jurisdiction over this ejectment case even if the
question of possession could be resolved without passing upon the issue of
ownership. [Serrano v. Gutierrez, G.R. No. 162366, November 10, 2006]
3.19.4. Interpleader
A remedy whereby a person who has property whether personal or
real, in his possession, or an obligation to render wholly or partially, without
claiming any right in both, or claims an interest which in whole or in part is
not disputed by the conflicting claimants, comes to court and asks that the
persons who claim the said property or who consider themselves entitled to
demand compliance with the obligation, be required to litigate among
themselves, in order to determine finally who is entitled to one or the other
thing. The remedy is afforded not to protect a person against a double
liability but to protect him against a double vexation in respect of one
liability. [Ocampo v. Tirona, G.R. No. 147382, April 6, 2005]
Requisites for interpleader
It is indispensable that there be conflicting claims upon the same
subject matter are or may be made against the plaintiff-in-interpleader who
claims no interest whatever in the subject matter or an interest which in
whole or in part is not disputed by the claimants. [Rizal Commercial Banking
Corporation v. Metro Container Corp., G.R. No. 127913, September 13, 2001]
The requisites are: a.) There must be two or more claimants with
adverse or conflicting interests upon a subject matter; b.) The conflicting
claims involve the same subject matter; c.) The conflicting claims are made
against the same person; d.) The plaintiff has no claim upon the subject
matter of the adverse claims or if he has an interest at all, such interest is
not disputed by the claimants. [Riano, supra]

When to file?
Whenever conflicting claims upon the same subject matter are or may
be made against a person who claims no interest whatever in the subject
matter, or an interest which in whole or in part is not disputed by the
claimants. [Rule 62, Sec. 1]
Instance when interpleader is proper
Interpleader is proper when the lessee does not know the person who
is entitled to the payment of the rentals due because of conflicting claims on
the property. The remedy passes the legal problem to the court which will
have to adjudicate upon the adverse claims. [Pasrischa v. Don Luis Dizon
Realty, Inc., 548 SCRA 273, 292]
Limitations in the filing of interpleader: Diligence is required
It must be noted, however, that a stakeholder should use reasonable
diligencethat is, by filing the interpleader suit within a reasonable time after
a dispute has arisen without waiting to be sued by either of the contending
claimants. Otherwise, he may be barred by laches or undue delay. [WackWack Golf v. Won, 70 SCRA 165]
Instance when interpleader is no longer necessary
When the decision of a case has become final and executory, the party
has no other alternative but to pay rentals. The move for dismissal of
interpleader was not an indication that it is no longer interested, rather there
is no more need for it. [Rizal Commercial Banking Corporation v. Metro
Container Corp., supra]
Inchoate right not a basis for interpleader
In a case where petitioners father, aunt and uncles co-owned the land,
and thereafter sold the land, petitioners aver that there is a conflict among
the heirs of the co-owner. Petitioners were not the registered owners of the
land, but represented merely an inchoate interest thereto as heirs, hence
they have no personality to file such case. [Ramos v. Ramos, 399 SCRA 43
(2005)]
3.19.5. Declaratory reliefs and similar remedies
When declarqatory relief is proper?
Any person interested under a deed, will, contract or other written
instrument, or whose rights are affected by a statute, executive order or
regulation, ordinance, or any other governmental regulation may, before
breach or violation thereof bring an action in the appropriate Regional Trial
Court to determine any question of construction or validity arising, and for a
declaration of his rights or duties, thereunder. [Rule 63, Sec. 1]
Only issue of construction and validity proper in declaratory relief
In a case which interpreted R.A. 305, which converted the municipality
of Naga to a city, in order to determine the rightful possessor of Plaza Rizal.

The court explained that the only issue that may be raised in such a petition
is the question of construction or validity of provisions in an instrument or
statute, hence it complies with requirement of the rules. [Province of
Camarines Sur v. Court of Appeals, 600 SCRA 569]
Interpretation of the contract proper for declaratory relief
Respondent instituted an action for declaratory relief for purposes of
determining the correct interpretation of condition Nos. 6 and 7 of the lease
contract to prevent damage and prejudice. The court took cognizance on the
case, despite the fact that a separate action was pending in another court
because in the instant case no breach was committed. [Almeda v. Bathala
Marketing Industries, 542 SCRA 470]
Declaratory relief not within the original jurisdiction of the Supreme
Court
Petitioner is a radio station which was granted to operate under R.A.
3001, subsequently, President Marcos issued P.D. 576-A which restricted
radio station ownership. The Supreme Court dismissed the petition, ruling
that a petition for declaratory relief is not among the petitions within the
original jurisdiction of the Supreme Court even if only questions of law are
involved. [Allied Broadcasting Corporation v. Republic of the Philippines, G.R.
No. 91500, October 18, 1990] Note that this rule is subject to the Supreme
Courts discretion.
Declaratory relief treated as mandamus
In one instance the court took cognizance of a case, wherein a 12 year
old was raped by a foreigner, and in order to garnish the foreign deposit of
the accused, which was exempt by reason of a law. The Supreme Court
treated the petition for declaratory relief as mandamus to require the banks
to honor the decision of the lower court, and added that, where the petition
has far-reaching implications and raises questions that should be resolved.
[Salvacion v. Central Bank, G.R. No. 94723 August ,21, 1997]
Who may file the action
All persons who have e claim any interest which would be affected by
the declaration shall be made parties. [Rule 63, Sec. 2]
When Solicitor General should be notified?
In any action which involves the validity of a statute, executive order or
regulation, or any other governmental regulation, the Solicitor General shall
be notified by the party assailing the same. [Rule 63, Sec. 3]
Who shall be notified in case of an ordinance?
In any action involving the validity of a local government ordinance,
the corresponding prosecutor or attorney of the local governmental unit
involved shall be similarly notified and entitled to be heard. [Rule 63, Sec. 4]
Requisites of action for declaratory relief

The requisites of an action for declaratory relief are:1) the subject matter of
the controversy must be a deed, will, contract or other written instrument,
statute, executive order or regulation, or ordinance; 2) the terms of said
documents and the validity thereof are doubtful and require judicial
construction; 3) there must have been no breach of the documents in
question; 4) there must be an actual justiciable controversy or the ripening
seeds of one between persons whose interests are adverse; 5) the issue
must be ripe for judicial determination; and 6) adequate relief is not
available through other means or other forms of action or proceeding.
[Jumamil v. Caf, G.R. No. 144570, September 21, 2005]
What is a justiciable question?
A justiciable controversy is a definite and concrete dispute touching on
the legal relations of parties having adverse legal interests, which may be
resolved by a court of law through the application of a law. Hence, a mere
apprehension of an administrative sanction does not give rise to a justiciable
controversy. [Bayan Telecommunications v. Republic of the Philippines, 513
SCRA 560]
Issue of status prior to marriage can be a subject of declaratory
relief
Petitioner filed a case to clarify her status prior to their marriage, after
the death of her Chinese husband. As a consequence, her petition is, in
effect, one for a declaratory relief, which this Court has repeatedly held to be
inapplicable to the political status of natural persons. [Lim v. Republic, G.R.
No. L-29535. February 27, 1971]
Issues in filiation and hereditary rights not subject of declaratory
relief
Petitioner filed a declaratory relief to determine his filiation and
hereditary rights. The Court held that, the action is improper because it is not
based on a deed, will, statute or any of those as subject matter of the
petition. [Edades v. Edades, 99 Phil. 675]
When court may refuse to make judicial declaration
Except in actions falling under the second paragraph of section 1 of
this Rule, the court, motu proprio or upon motion, may refuse to exercise the
power to declare rights and to construe instruments in any case where a
decision would not terminate the uncertainty or controversy which gave rise
to the action, or in any case where the declaration or construction is not
necessary and proper under the circumstances. [Rule 63, Sec. 5]
Action for reformation of
consolidation of ownership

instrument,

quieting

of

title

and

An action for the reformation of an instrument, to quiet title to real

property or remove clouds therefrom, or to consolidate ownership under
Article 1607 of the Civil Code, may be brought under this Rule. [Rule 63, Sec.
1, Paragraph 2]

Effect is necessary party is not impleaded

The petition for declaratory relief only included the administrator and
trustees under the will, it failed to include the Roman Catholic Church of
Nueva Segovia. The non-joinder of necessary parties would deprive the
declaration of that final and pacifying function it is calculated to subserve, as
they would not be bound by the declaration and may raise the identical
issue. [Degala v. Reyes, G.R. No. L-2402, November 29, 1950]
The non-inclusion of the squatters mentioned in the Ordinance in
question as party defendants in this case cannot defeat the jurisdiction of the
Court of First Instance of Baguio. The reason for the law requiring the joinder
of all necessary parties is that failure to do so would deprive the declaration
of the final and pacifying function the action for declaratory relief is
calculated to subserve, as they would not be bound by the declaration and
may raise the Identical issue. [Baguio Citizens Action v. City Council, G.R.
No. L-27247, April 20, 1983]
Conversion to ordinary action
If before the final termination of the case, a breach or violation of an
instrument or a statute, executive order or regulation, ordinance, or any
other governmental regulation should take place, the action may thereupon
be converted into an ordinary action, and the parties shall be allowed to file
such pleadings as may be necessary or proper. [Rule 63, Sec. 6]
Prior breach of law or contract not proper for declaratory relief
Where the law or contract has already been contravened prior to the
filing of an action for declaratory relief, the court can no longer assume
jurisdiction over the action. Under such circumstances, inasmuch as a cause
of action has already accrued in favor of one or the other party, there is
nothing more for the court to explain or clarify short of a judgment or final
order. [Tambunting, Jr. v. Sumabat, G.R. No. 144101, September 16, 2005]
Failure to state the law subject of petition is fatal
Petitioners filed a declaratory relief without stating the law which
pertained to the case. The Supreme Court held that, although Section 6, Rule
63 might allow such course of action, the respondents did not argue the
point, and we note petitioners failure to specify the ordinary action they
desired. [Martelino v. National Home Mortgage Finance Corporation, G.R. No.
160208, June 30, 2008]
Proceedings considered as similar remedies
Reformation of an instrument
When, there having been a meeting of the minds of the parties to a
contract, their true intention is not expressed in the instrument purporting to
embody the agreement, by reason of mistake, fraud, inequitable conduct or
accident, one of the parties may ask for the reformation of the instrument to
the end that such true intention may be expressed.

If mistake, fraud, inequitable conduct, or accident has prevented a meeting

of the minds of the parties, the proper remedy is not reformation of the
instrument but annulment of the contract. [Art. 1359, Civil Code of the
Philippines]
Note that this remedy is governed by Art. 1359-1369 of the civil code.
Prescription bars reformation of instrument
In one case, Respondent Corporation filed an action for reformation 24
years after the issue arose, hence it is barred by prescription. The Court
added that the purpose of an action for declaratory relief is to secure an
authoritative statement of the rights and obligations of the parties for their
guidance in the enforcement thereof, or compliance therewith, and not to
settle issues arising from an alleged breach thereof, it may be entertained
only before the breach or violation of the law or contract to which it refers.
[Bentir v. Leanda, G.R. No. 128991, April 12, 2000]
Consolidation of ownership
In case of real property, the consolidation of ownership in the vendee
by virtue of the failure of the vendor to comply with the provisions of article
1616 shall not be recorded in the Registry of Property without a judicial
order, after the vendor has been duly heard. [Art. 1607, Civil Code of the
Philippines]i
Quieting of title to real property
Nature and purpose of quieting of title
An action for quieting of title is essentially a common law remedy
grounded on equity. The competent court is tasked to determine the
respective rights of the complainant and other claimants, not only to place
things in their proper place, to make the one who has no rights to said
immovable respect and not disturb the other, but also for the benefit of both,
so that he who has the right would see every cloud of doubt over the
property dissipated, and he could afterwards without fear introduce the
improvements he may desire, to use, and even to abuse the property as he
deems best. But for an action to quiet title to prosper, two indispensable
requisites must concur, namely: (1) the plaintiff or complainant has a legal or
an equitable title to or interest in the real property subject of the action; and
(2) the deed, claim, encumbrance, or proceeding claimed to be casting cloud
on his title must be shown to be in fact invalid or inoperative despite its
prima facie appearance of validity or legal efficacy.(Dionisio Manaquil, et al.
Vs. Roberto Moico, G.R. No. 80076, November 20, 2012)
When is the remedy of quieting of title proper?
Whenever there is a cloud on title to real property or any interest
therein, by reason of any instrument, record, claim, encumbrance or
proceeding which is apparently valid or effective but is in truth and in fact
invalid, ineffective, voidable, or unenforceable, and may be prejudicial to
said title, an action may be brought to remove such cloud or to quiet the

title.
An action may also be brought to prevent a cloud from being cast upon
title to real property or any interest therein. [Art. 476, Civil Code of the
Philippines]
Procedure to be followed
The procedure for the quieting of title or the removal of a cloud
therefrom shall be governed by such rules of court as the Supreme Court
shall promulgated. [Art. 481, Civil Code of the Philippines]
Purpose of the remedy
Quieting of title is a common law remedy for the removal of any cloud,
doubt or uncertainty affecting title to real property. The plaintiffs must show
not only that there is a cloud or contrary interest over the subject real
property, but that they have a valid title to it. [Spouses Santiago v. Villamor,
G.R. No. 168499, November 26, 2012]
Requisites
In order that an action for quieting of title may prosper, two requisites must
concur: (1) the plaintiff or complainant has a legal or equitable title or
interest in the real property subject of the action; and (2) the deed, claim,
encumbrance, or proceeding claimed to be casting cloud on his title must be
shown to be in fact invalid or inoperative despite its prima facie appearance
of validity or legal efficacy. [Phil-Ville Development and Housing Corporation
v. Bonifacio, 651 SCRA 327]
3.19.6. Review of judgments and final orders or resolution of the
Comelec and COA
This Rule shall govern the review of judgments and final orders or
resolutions of the Commission on Elections and the Commission on Audit.
[Rule 64, Sec. 1]
Decisions of the Civil Service Commission is now reviewable by the
Court of Appeals. [R.A. No. 7902, Sec. 1]
Petition for review under Rule 43 an available remedy on the
decision of the Civil Service Commission
Petitioner is a school principal and was charged of sexual harassment,
the remedy of an aggrieved party from a resolution issued by the CSC is to
file a petition for review thereof under Rule 43 of the Rules of Court within
fifteen days from notice of the resolution. However, it admits exceptions, like
the instant case, such as invalid writs, in this case Cuanan was denied of due
process for failure to serve him a copy of the pleadings. [Cuanan v. DepEd,
G.R. No. 169013, December 16, 2008]
Application of Rule 65 under Rule 64
A judgment or final order or resolution of the Commission on Elections

and the Commission on Audit may be brought by the aggrieved party to the
Supreme Court on certiorari under Rule 65. [Rule 64, Sec. 2]
Petition for certiorari available in case of COMELEC decision
A review includes digging into the merits and unearthing errors of
judgment, while certiorari deals exclusively with grave abuse of discretion,
which may not exist even when the decision is otherwise erroneous.
certiorari implies an indifferent disregard of the law, arbitrariness and
caprice, an omission to weight pertinent considerations, a decision arrived at
without rational deliberation. [Aratuc v. COMELEC,621 SCRA 385]
Lokin has correctly brought this special civil action for certiorari against
the COMELEC to seek the review of the resolution of the COMELEC in
approving the withdrawal of his nomination. The constitutional mandate is
now implemented by Rule 64 of the 1997 Rules of Civil Procedure, which
provides for the review of the judgments, final orders or resolutions of the
COMELEC and the Commission on Audit. [Lokin v. COMELEC, 621 SCA 385]
Error of jurisdiction subject of Rule 64
A complaint was filed against petitioners for violation of rules of COA
and for violation of R.A. 3019. The office of the petition for certiorari is not to
correct simple errors of judgment; any resort to the said petition under Rule
64, in relation to Rule 65, of the 1997 Rules of Civil Procedure is limited to
the resolution of jurisdictional issues. [Reyna v. COA, 642 SCRA 210]
3.19.7. Certiorari, prohibition and mandamus
Function of writ of certiorari
Certiorari under Rule 65, as its principal function is to keep an inferior
tribunal within its jurisdiction. It can be invoked only for an error of
jurisdiction, that is, one where the act complained of was issued by the court,
officer or a quasi-judicial body without or in excess of jurisdiction, or with
grave abuse of discretion which is tantamount to lack or in excess of
jurisdiction. [Angara v. Fedman, G.R. No. 156822, October 18, 2004]
Function of prohibition
The function of prohibition is to prevent the unlawful and oppressive
exercise of legal authority and to provide for a fair and orderly administration
of justice. It is directed against proceedings that are done without or in
excess of jurisdiction, or with grave abuse of discretion, there being no
appeal or other plain, speedy and adequate remedy in the ordinary course of
law. [Vergara v. Rugue, G.R. No. L-32984, August 25, 1977]
What is Mandamus?
Mandamus is a writ commanding a tribunal, corporation, board, or
person to do the act required to be done when it or he unlawfully neglects
the performance of an act which the law specifically enjoins as a duty
resulting from an office, trust, or station, or unlawfully excludes another from
the use and enjoyment of a right or office to which such other is entitled,

there being no other plain, speedy, and adequate remedy in the ordinary
course of law. [Angchangco v. Ombudsman, G.R. No. 122728, February 13,
1997]
Special Civil Action for Mandamus; nature; when available.
Similarly, the petition could not be one for mandamus, which is a
remedy available only when any tribunal, corporation, board, officer or
person unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or station, or
unlawfully excludes another from the use and enjoyment of a right or office
to which such other is entitled, and there is no other plain, speedy, and
adequate remedy in the ordinary course of law, the person aggrieved
thereby may file a verified petition in the proper court. The main objective
of mandamus is to compel the performance of a ministerial duty on the part
of the respondent. Plainly enough, the writ of mandamus does not issue to
control or review the exercise of discretion or to compel a course of conduct,
which, it quickly seems to us, was what petitioners would have the Secretary
of Justice do in their favor. Consequently, their petition has not indicated how
and where the Secretary of Justices assailed issuances excluded them from
the use and enjoyment of a right or office to which they were unquestionably
entitled. Spouses Augusto Dacudao and Ofelia Dacudao v. Secretary of
Justice Raul Gonzales of the Department of Justice, G.R. No. 188056. January
8, 2013
Special Civil Action for Mandamus; nature; compels performance of
ministerial duties.
A key principle to be observed in dealing with petitions for mandamus
is that such extraordinary remedy lies to compel the performance of duties
that are purely ministerial in nature, not those that are discretionary. A purely
ministerial act or duty is one that an officer or tribunal performs in a given
state of facts, in a prescribed manner, in obedience to the mandate of a legal
authority, without regard to or the exercise of its own judgment upon the
propriety or impropriety of the act done. The duty is ministerial only when its
discharge requires neither the exercise of official discretion or judgment.
Special People, Inc. Foundation, represented by its Chairman, Roberti P.
Cericos v. Nestor M. Canda, et al., G.R. No. 160932. January 14, 2013
Certiorari distinguished from appeal by certiorari
The proper recourse of the aggrieved party from a decision of the CA is
a petition for review on certiorari under Rule 45 of the Revised Rules of
Court. On the other hand, if the error subject of the recourse is one of
jurisdiction, or the act complained of was perpetrated by a quasi-judicial
officer or agency with grave abuse of discretion amounting to lack or excess
of jurisdiction, the proper remedy available to the aggrieved party is a
petition for certiorari under Rule 65 of the said Rules. [Land Bank of the
Philippines v. Court of Appeals, 456 Phil. 755]
Requisites for Certiorari under Rule 65 will lie
It may issue only when the following requirements are alleged in and
established by the petition: (1) that the writ is directed against a tribunal, a

board or any officer exercising judicial or quasi-judicial functions; (2) that

such tribunal, board or officer has acted without or in excess of jurisdiction,
or with grave abuse of discretion amounting to lack or excess of jurisdiction;
and (3) that there is no appeal or any plain, speedy and adequate remedy in
the ordinary course of law. [Tan v. Antazo, G.R. No. 187208, February 23,
2011]
Requisites for issuance of writ of prohibition
For a writ of prohibition, the requisites are: (1) the impugned act must
be that of a tribunal, corporation, board, officer, or person, whether
exercising judicial, quasi-judicial or ministerial functions; and (2) there is no
plain, speedy, and adequate remedy in the ordinary course of law.
[Ongsuko v. Malones, G.R. No. 182065, October 27, 2009]
Injunctive relief necessary to stop proceedings below
The pendency of a petition for certiorari does not suspend the
proceedings before the trial court. Rule 65 of the Rules of Court is explicit in
stating that the petition shall not interrupt the court of the principal case
unless a temporary restraining order or a writ of preliminary injunction has
been issued against the public respondent from further proceedings. [JulianoLlave v. Republic, 646 SCRA 637]
Exceptions to filing of motion for reconsideration before filing
petition
Respondents contention that petitioner should have first filed a motion
for reconsideration before resorting to the remedy of certiorari. The Supreme
Court held that while the rule is that before certiorari may be availed of,
petitioner must first file a motion for reconsideration with the lower court of
the act or order complained of, however, such rule is not without exception.
[Barrazona v. RTC of Baguio-Branch 61, 486 SCRA 555]
The rule is, however, circumscribed by well-defined exceptions, such
as:
(a) where the order is a patent nullity, as where the court a quo had no
jurisdiction;
(b) where the questions raised in the certiorari proceeding have been
duly raised and passed upon by the lower court, or are the same as those
raised and passed upon in the lower court;
(c) where there is an urgent necessity for the resolution of the
question and any further delay would prejudice the interests of the
Government or of the petitioner or the subject matter of the action is
perishable;
(d) where, under the circumstances, a motion for reconsideration
would be useless;
(e) where petitioner was deprived of due process and there is extreme
urgency for relief;
(f) where, in a criminal case, relief from an order of arrest is urgent and
the granting of such relief by the trial court is improbable;
(g) where the proceedings in the lower court are a nullity for lack of
due process;

(h) where the proceedings wereex parte, or in which the petitioner had
no opportunity to object; and
(i) where the issue raised is one purely of law or where public interest
is involved. [Tang v. Subic Bay Distribution, G.R. No. 162575, December 15,
2010]
Reliefs petitioner is entitled to
Annulment of the proceedings and grant of relief
A person aggrieved thereby may file a verified petition in the proper
court, alleging the facts with certainty and praying that judgment be
rendered annulling or modifying the proceedings of such tribunal, board or
officer, and granting such incidental reliefs as law and justice may require.
[Rule 65, Sec. 1]
When can judgment be rendered?
If after such hearing or submission of memoranda or the expiration of
the period for the filing thereof the court finds that the allegations of the
petition are true, it shall render judgment for the relief prayed for or to which
the petitioner is entitled. [Rule 65, Sec. 8]
Other reliefs
The court in which the petition is filed may issue orders expediting the
proceedings, and it may also grant a temporary restraining order or a writ of
preliminary injunction for the preservation of the rights of the parties
pending such proceedings. [Rule 65, Sec. 7]
Actions/omissions of MTC/RTC in election cases
In election cases involving an act or an omission of a municipal or a
regional trial court, the petition shall be filed exclusively with the
Commission on Elections, in aid of its appellate jurisdiction. [A.M. No. 07-712-SC Dec. 12, 2007]
A petition for certiorari was filed questioning an interlocutory order of a
trial court in an electoral protest was within the appellate jurisdiction of the
COMELEC. Since it is the COMELEC which has jurisdiction to take cognizance
of an appeal from the decision of the regional trial court in election contests
involving elective municipal officials, then it is also the COMELEC which has
jurisdiction to issue a writ of certiorari in aid of its appellate jurisdiction.
[Galang v. Geronimo, G.R. No. 192793, February 22, 2011]
When and where to file petition?
The petition shall be filed in the Supreme Court or, if it relates to the
acts or omissions of a lower court or of a corporation, board, officer or
person, in the Regional Trial Court exercising jurisdiction over the territorial
area as defined by the Supreme Court. It may also be filed in the Court of
Appeals whether or not the same is in aid of its appellate jurisdiction, or in
the Sandiganbayan if it is in aid of its appellate jurisdiction. If it involves the
acts or omissions of a quasi-judicial agency, unless otherwise provided by
law or these Rules, the petition shall be filed in and cognizable only by the

Court of Appeals. [Rule 65, Sec. 4]

Effects of filing of an unmeritorious petition
The court, however, may dismiss the petition if it finds the same to
be patently without merit, prosecuted manifestly for delay, or that the
questions raised therein are too unsubstantial to require consideration. [Rule
64, Sec. 8]
Grave abuse of discretion; concepts.
When grave abuse of discretion arises?
To be sure, grave abuse of discretion arises when a lower court or
tribunal patently violates the Constitution, the law or existing jurisprudence.
Here, while the RTC had initially issued a writ of possession in favor of Sps.
Marquez, it defied existing jurisprudence when it effectively rescinded the
said writ by subsequently granting Sps. Alindogs prayer for injunctive
relief. Spouses Nicasio C. Marquez and Anita J. Marquez v. Spouses Carlito
Alindog and Carmen Alindog,G.R. No. 184045. January 22, 2014.
It is settled doctrine that there is grave abuse of discretion when there
is a capricious and whimsical exercise of judgment as is equivalent to lack of
jurisdiction, such as where the power is exercised in an arbitrary or despotic
manner by reason of passion or personal hostility, and it must be so patent
and gross so as to amount to an evasion of positive duty or to a virtual
refusal to perform the duty enjoined or to act at all in contemplation of
law. Ralph P. Tua v. Hon. Cesar A. Mangrobang, Presiding Judge, Branch 22,
RTC, Imus, Cavite; and Rossan Honrado-Tua,G.R. No. 170701. January 22,
2014.
3.19.8. Quo warranto
A quo warranto proceeding is generally defined as an action against a
person who usurps, intrudes into, or unlawfully holds or exercises a public
office. [Tecson v. COMELEC, 424 SCRA 277]
Instance when quo warranto is not proper
Petitioners argue that since their prayer involves the cancellation of
the provisional authority and CPCs, and not the legislative franchise, then
quo warranto fails as a remedy. The Court explained that the special civil
action of quo warranto is a prerogative writ by which the Government can
call upon any person to show by what warrant he holds a public office or
exercises a public franchise. [Divinagracia v. Consolidated Broadcasting
System, G.R. No. 162272, April 7, 2009]
Distinguish from quo warranto in the Omnibus Election Code
The Court has already likened a proceeding under Section 78 to a quo
warranto proceeding since they both deal with the eligibility or qualification
of a candidate. The distinction mainly in the fact that a "Section 78" under
Section 253 of the OEC, petition is filed before proclamation, while a petition

for quo warranto is filed after proclamation of the winning candidate. [Fermin
v. COMELEC, G.R. No. 179695, December 18, 2008]
Quo Warranto under
OEC
Governed by election
laws
Issue is the eligibility
or ineligibility of the
person elected or his
loyalty or disloyalty to
the Republic
Petition is filed within
10 days after the
proclamation of the
results of the election

Quo Warranto under

Rule 66
Governed by the rules
of Court
Issue is the legality or
illegality
of
the
occupancy
of
the
office by virtue of an
appointment
Filed within one year
from the time the
cause of ouster, or the
right of the petitioner
to hold office arose
Petition is brought in Petition is brought in
the COMELEC, RTC, or the SC, CA or RTC
MTC
Petitioner may be any Petitioner
is
the
voter even if he is not person claiming to be
entitled to the office
entitled to office
[Riano, Supra]
When government may commence an action against individuals?
An action for the usurpation of a public office, position or franchise
may be commenced by a verified petition brought in the name of the
Republic of the Philippines against:
(a) A person who usurps, intrudes into, or unlawfully holds or exercises
a public office, position or franchise;
(b) A public officer who does or suffers an act which, by the provision of
law, constitutes a ground for the forfeiture of his office; or
(c) An association which acts as a corporation within the Philippines
without being legally incorporated or without lawful authority so to act. [Rule
66, Sec. 1]
Solicitor General can commence the action
The Solicitor General or a public prosecutor, when directed by the
President of the Philippines, or when upon complaint or otherwise he has
good reason to believe that any case specified in the preceding section can
be established by proof, must commence such action. [Rule 66, Sec. 2]
The Solicitor General or a public prosecutor may, with the permission
of the court in which the action is to be commenced, bring such an action at
the request and upon the relation of another person. [Rule 66, Sec. 3]
When individual may commence an action?

A person claiming to be entitled to a public office or position usurped

or unlawfully held or exercised by another may bring an action therefor in his
own name. [Rule 66, Sec. 5]
Judgment in quo warranto action
When the respondent is found guilty of usurping into, intruding into, or
unlawfully holding or exercising a public office, position or franchise,
judgment shall be rendered that such respondent be ousted and altogether
excluded therefrom, and that the petitioner or relator, as the case may be,
recover his costs. Such further judgment may be rendered determining the
respective rights in and to the public office, position or franchise of all the
parties to the action as justice requires. [Rule 66, Sec. 9]
Rights of a person adjudged entitled to public office
If judgment be rendered in favor of the person averred in the complaint
to be entitled to the public office he may, after taking the oath of office and
executing any official bond required by law, take upon himself the execution
of the office, and may immediately thereafter demand of the respondent all
the books and papers in the respondent's custody or control appertaining to
the office to which the judgment relates. If the respondent refuses or
neglects to deliver any book or paper pursuant to such demand, he may be
punished for contempt as having disobeyed a lawful order of the court. The
person adjudged entitled to the office may also bring action against the
respondent to recover the damages sustained by such person by reason of
the usurpation. [Rule 66, Sec. 10]
3.19.9. Expropriation
The power of eminent domain in particular has been described as a
right to take or reassert dominion over property within the state for public
use or meet public exigency. It is also said to be an essential part of
governance even in its most primitive form, and thus, inseparable from
sovereignty. [Air Transportation Office v. Gopuco, Jr., 462 SCRA 544]
Matters to allege in complaint for expropriation
The right of eminent domain shall be exercised by the filing of a
verified complaint which shall state with certainty the right and purpose of
expropriation, describe the real or personal property sought to be
expropriated, and join as defendants all persons owning or claiming to own,
or occupying, any part thereof or interest therein, showing, so far as
practicable, the separate interest of each defendant. If the title to any
property sought to be expropriated appears to be in the Republic of the
Philippines, although occupied by private individuals, or if the title is
otherwise obscure or doubtful so that the plaintiff cannot with accuracy or
certainty specify who are the real owners, averment to that effect shall be
made in the complaint. [Rule 67, Sec. 1]
Two stages in every action for expropriation
The first stage is the determination of authority of the plaintiff to
expropriate, which includes the propriety of the expropriation, its necessity

and public purpose. The second stage is the determination of just

compensation through the court-appointed commissioners. [National Power
Corporation v. Joson, 206 SCRA 520] The first phase ends with either an order
of dismissal or a determination that the property is to be acquired for a
public purpose. [City of Manila v. Alegar Corporation, G.R. No. 187604]
Upon the rendition of the order of expropriation, the court shall appoint
not more than three (3) competent and disinterested persons as
commissioners to ascertain and report to the court the just compensation for
the property sought to be taken. [Rule 67, Sec. 5]
When plaintiff can immediately enter into possession of the real
property, in relation to R.A. No. 8974
(a) Upon the filing of the complaint, and after due notice to the
defendant, the implementing agency shall immediately pay the owner of the
property the amount equivalent to the sum of (1) one hundred percent
(100%) of the value of the property based on the current relevant
zonal valuation of the Bureau of Internal Revenue (BIR); and (2) the
value of the improvements and/or structures as determined under Section 7
hereof;
(b) In provinces, cities, municipalities and other areas where there is no
zonal valuation, the BIR is hereby mandated within the period of sixty (60)
days from the date of the expropriation case, to come up with a zonal
valuation for said area; and
(c) In case the completion of a government infrastructure project is of utmost
urgency and importance, and there is no existing valuation of the area
concerned, the implementing agency shall immediately pay the owner of the
property its proffered value taking into consideration the standards
prescribed in Section 5 hereof.
Upon compliance with the guidelines abovementioned, the court shall
immediately issue to the implementing agency an order to take possession
of the property and start the implementation of the project. [Sec. 4, R.A.
8974]
Order of expropriation
If the objections to and the defenses against the right of the plaintiff to
expropriate the property are overruled, or when no party appears to defend
as required by this Rule, the court may issue an order of expropriation
declaring that the plaintiff has a lawful right to take the property sought to
be expropriated, for the public use or purpose described in the complaint,
upon the payment of just compensation to be determined as of the date of
the taking of the property or the filing of the complaint, whichever came first.
A final order sustaining the right to expropriate the property may be
appealed by any party aggrieved thereby. Such appeal, however, shall not
prevent the court from determining the just compensation to be paid. [Rule
67, Sec. 4]
Ascertainment of just compensation

The payment of just compensation to be determined as of the date of

the taking of the property or the filing of the complaint, whichever came first.
[Rule 67, Sec. 4]
Appointment of commissioner
Upon the rendition of the order of expropriation, the court shall appoint
not more than three (3) competent and disinterested persons as
commissioners to ascertain and report to the court the just compensation for
the property sought to be taken. [Rule 67, Sec. 5]
Duty of the court if there is no hearing conducted by the
commissioner
Where no trial or hearing was conducted to afford parties the
opportunity to present their own evidence, the court should disregard the
commissioners findings. The absence of such trial or h earing constitutes a
violation of the right of due process. [National Power Corporation v. De la
Cruz, 514 SCRA 56]
When to determine just compensation?
When the taking of the property sought to be expropriated coincides
with the commencement of the expropriation proceedings, or takes place
subsequent to the filing of the complaint for eminent domain, the just
compensation should be determined as of the date of filing of the complaint.
[City of Iloilo v. Contreras Besana, 612 SCRA 458]
Meaning of just compensation
The constitutional limitation of just compensation is considered to be a
sum equivalent to the market value of the property, broadly defined as the
price fixed by the seller in open market in the usual and ordinary course of
legal action and competition; or the fair value of the property; as between
one who receives and one who desires to sell it, fixed at the time of the
actual taking by the government. [Republic v. Rural Bank of Kabacan, Inc.,
664 SCRA 233]
When is compensation considered just?
Apart from the requirement that compensation for expropriation must
be fair and reasonable, compensation to be just, must also be paid without
delay if the property is immediately taken as the property owner suffers the
immediate deprivation of both his land and its fruits or income. [Apo Fruits
Corporation v. Land Bank of the Philippines, 632 SCRA 727]
Remedy of unpaid owner
Non-payment of just compensation does not entitle the private
landowner to recover possession of the expropriated lots. However, in cases
where the government failed to pay just compensation within 5 years from
the finality of judgment in the expropriation proceedings, the owners
concerned shall have the right to recover possession of their rights. [Yujuico

v. Atienza, Jr., 472 SCRA 463]

Appointment of commissioners; commissioners report; court action
upon commissioners report
Before entering upon the performance of their duties, the
commissioners shall take and subscribe an oath that they will faithfully
perform their duties as commissioners, which oath shall be filed in court with
the other proceedings in the case. Evidence may be introduced by either
party before the commissioners who are authorized to administer oaths on
hearings before them, and the commissioners shall, unless the parties
consent to the contrary, after due notice to the parties, to attend, view and
examine the property sought to be expropriated and its surroundings, and
may measure the same, after which either party may, by himself or counsel,
argue the case. The commissioners shall assess the consequential damages
to the property not taken and deduct from such consequential damages the
consequential benefits to be derived by the owner from the public use or
purpose of the property taken, the operation of its franchise by the
corporation or the carrying on of the business of the corporation or person
taking the property. But in no case shall the consequential benefits assessed
exceed the consequential damages assessed, or the owner be deprived of
the actual value of his property so taken. [Rule 67, Sec. 6]
The court may order the commissioners to report when any particular
portion of the real estate shall have been passed upon by them, and may
render judgment upon such partial report, and direct the commissioners to
proceed with their work as to subsequent portions of the property sought to
be expropriated, and may from time to time so deal with such property. The
commissioners shall make a full and accurate report to the court of all their
proceedings, and such proceedings shall not be effectual until the court shall
have accepted their report and rendered judgment in accordance with their
recommendations. [Rule 67, Sec. 7]
Upon the expiration of the period of ten (10) days referred to in the
preceding section, or even before the expiration of such period but after all
the interested parties have filed their objections to the report or their
statement of agreement therewith, the court may, after hearing, accept the
report and render judgment in accordance therewith, or, for cause shown, it
may recommit the same to the commissioners for further report of facts, or it
may set aside the report and appoint new commissioners; or it may accept
the report in part and reject it in part and it may make such order or render
such judgment. [Rule 67, Sec.8]
Rights of plaintiff upon judgment and payment
Upon payment by the plaintiff to the defendant of the compensation
fixed by the judgment, with legal interest thereon from the taking of the
possession of the property, or after tender to him of the amount so fixed and
payment of the costs, the plaintiff shall have the right to enter upon the
property expropriated and to appropriate it for the public use or purpose
defined in the judgment, or to retain it should he have taken immediate
possession thereof under the provisions of section 2 hereof. If the defendant
and his counsel absent themselves from the court, or decline to receive the
amount tendered, the same shall be ordered to be deposited in court and

such deposit shall have the same effect as actual payment thereof to the
defendant or the person ultimately adjudged entitled thereto. [Rule 67, Sec.
10]
Effect of recording of judgment
When real estate is expropriated, a certified copy of such judgment
shall be recorded in the registry of deeds of the place in which the property
is situated, and its effect shall be to vest in the plaintiff the title to the real
estate so described for such public use or purpose. [Rule 67, Sec. 13]
3.19.10. Foreclosure of real estate mortgage
Manner of foreclosure
Foreclosure of real estate mortgage may be made extra judicially under Act.
3135, or judicially, under Rule 68 of the revised rules of court.
Judgment on foreclosure for payment or sale
If upon the trial in such action the court shall find the facts set forth in
the complaint to be true, it shall ascertain the amount due to the plaintiff
upon the mortgage debt or obligation, including interest and other charges
as approved by the court, and costs, and shall render judgment for the sum
so found due and order that the same be paid to the court or to the
judgment obligee within a period of not less than ninety (90) days nor more
than one hundred twenty (120) days from the entry of judgment, and that in
default of such payment the property shall be sold at public auction to satisfy
the judgment. [Rule 68, Sec. 2]
The period given in the rule is not merely a procedural requirement; it is a
substantive right granted to the mortgage debtor as the last opportunity to
pay the debt and save his mortgaged property from final disposition at the
foreclosure sale. [De Leon v. Ibanez, 95 Phil. 119]
Sale of mortgaged property; effect
When the defendant, after being directed to do so as provided in the
next preceding section, fails to pay the amount of the judgment within the
period specified therein, the court, upon motion, shall order the property to
be sold in the manner and under the provisions of Rule 39 and other
regulations governing sales of real estate under execution. Such sale shall
not affect the rights of persons holding prior encumbrances upon the
property or a part thereof, and when confirmed by an order of the court, also
upon motion, it shall operate to divest the rights in the property of all the
parties to the action and to vest their rights in the purchaser, subject to such
rights of redemption as may be allowed by law. [Rule 68, Sec. 3]
Equity of redemption
This is the mortgagors equity (not right) of redemption which, as
above stated, may be exercised by him even beyond the 90-day period from
the date of service of the order, and even after the foreclosure sale itself,
provided it be before the order of confirmation of the sale. After such order

of confirmation, no redemption can be effected any longer. [Spouses Rosales

v. Spouses Alfonso, G.R. No. 137792, August 12, 2003]
Ex-parte motion for sale of mortgage property
Jurisprudence suggests that the motion for the sale of the mortgaged
property is non-litigable and may be made ex parte pursuant to the
judgment of forclosure. [Government of P.I. v. De las Lajigas, 55 Phil. 668]
Writ of possession ministerial
At that point, the issuance of a writ of possession, upon proper
application and proof of title becomes merely a ministerial function.
Effectively, the court cannot exercise its discretion. [Edralin v. Philippine
Veteran Bank, G.R. No. 168523, March 9, 2011]
Motion for issuance of writ of possession an exception to three (3)
day notice rule
The motion for issuance of a writ of possession is an exception to the
general 3 day notice rule for motions. Nevertheless, the ex parte nature of
the proceedings does not deny due process to the petitioners because the
issuance of the writ of possession does not bar a separate case for
annulment of the mortgage and foreclosure sale. [Carlos v. Court of Appeals,
537 SCRA 247]
Disposition of proceeds of sale
The amount realized from the foreclosure sale of the mortgaged
property shall, after deducting the costs of the sale, be paid to the person
foreclosing the mortgage, and when there shall be any balance or residue,
after paying off the mortgage debt due, the same shall be paid to junior
encumbrancers in the order of their priority, to be ascertained by the court,
or if there be no such encumbrancers or there be a balance or residue after
payment to them, then to the mortgagor or his duly authorized agent, or to
the person entitled to it. [Rule 68, Sec. 4]
Deficiency judgment
If upon the sale of any real property as provided in the next preceding
section there be a balance due to the plaintiff after applying the proceeds of
the sale, the court, upon motion, shall render judgment against the
defendant for any such balance for which, by the record of the case, he may
be personally liable to the plaintiff, upon which execution may issue
immediately if the balance is all due at the time of the rendition of the
judgment; otherwise; the plaintiff shall be entitled to execution at such time
as the balance remaining becomes due under the terms of the original
contract, which time shall be stated in the judgment. [Rule 68, Sec. 6]
It has been suggested that the mortgagor, who is not the debtor and
who merely executed the mortgage to secure the principal debtors
obligation, is not liable for the deficiency unless he assumed liability for the
same in the contract. [Philippine Trust Company v. Echaus, 52 Phil. 852]

Judicial foreclosure versus extrajudicial foreclosure

There are two accepted modes of foreclosure: (a) Judicial foreclosure
pursuant to Rule 68 of the rules of court; and (b) Extrajudicial foreclosure
pursuant to Act 3135. Extrajudicial foreclosure is the mode to be used if
there is a special power inserted in or attached to the real estate mortgage.
[Riano, supra]
Equity of redemption
The period mentioned in the judgment of the court is the period within
which the mortgagor may start exercising his equity redemption, which is the
right to extinguish the mortgage and retain ownership of the property by
paying the debt. The payment may be made even after the foreclosure saled
provided it is made before the sale is confirmed by the court. [GSIS v. CFI,
175 SCRA 19]
Equity of redemption may be exercised even beyond the 90 day
period or before conformation of sale
This is the mortgagors equity of redemption which may be exercised
by him even beyond the 90-day period and even after the foreclosure itself,
provided it be before the order of confirmation of the sale. After such
confirmation, no redemption can be effected any longer. [Limpin v.
Intermediate Appellate Court, 166 SCRA 87]
Right of redemption only applicable in extra-judicial foreclosure
There is no right of redemption in a judicial foreclosure of mortgage
under Rule 68. This right exists only in extrajudicial foreclosures where there
is always a right of redemption within one year from the date of registration
of the sale. [Santos v. Register of Deeds of Manila, 38 SCRA 42]
3.19.11. Partition
Partition, in general, is the separation, division, and assignment of a
thing held in common by those to whom it may belong. [Cano Vda. De Viray
v. Spouses Usi, G.R. No. 192486, November 21, 2012]
Presumption on partition
Partition presupposes the existence of a co-ownership of a property by
two or more persons. Thus, a division of property cannot be ordered by the
court unless the existence of ownership is first established, and that an
action for partition will not lie if the claimant has no rightful interest in the
property. [Co Guik Lun v. Co, 655 SCRA 131]
Modes
Partition may be made in either of two ways: (a) By agreement of the
parties; or (b) By judicial proceedings under the Rules of Court. [FiguracionGerilla v. Vda. De Figuracion, 499 SCRA 484]
Who may file complain?

A person having the right to compel the partition of real estate may do
so as provided in this Rule, setting forth in his complaint the nature and
extent of his title and an adequate description of the real estate of which
partition is demanded and joining as defendants all other persons interested
in the property. [Rule 69, Sec. 1]
Who should be made defendants?
All the co-owners must be joined. Accordingly, an action will not lie
without the joinder of all co-owners and other persons having interest in the
property. [Garcia de Lara v. Gonzales de Lara, 2 Phil. 294]
All co-heirs are indispensable parties:
Thus, all the co-heirs and persons having an interest in the property
are indispensable parties; as such, an action for partition will not lie without
the joinder of the said parties. The mere fact that Pedro Sepulveda, Sr. has
repudiated the co-ownership between him and the respondent does not
deprive the trial court of jurisdiction to take cognizance of the action for
partition, for, in a complaint for partition, the plaintiff seeks, first, a
declaration that he is a co-owner of the subject property; and, second, the
conveyance of his lawful shares. [Sepulveda v. Pelaez, G.R. No. 152195,
January 31, 2005]
Matters to allege in the complaint for partition
Setting forth his complaint the nature and extent of his title and an
adequate description of the real estate of which partition is demanded and
joining as defendants all other persons interested in the property. [Rule 69,
Sec. 1]
Rights to the fruits and rents
In an action for partition in accordance with this Rule, a party shall
recover from another his just share of rents and profits received by such
other party from the real estate in question, and the judgment shall include
an allowance for such rents and profit [Rule 69, Sec. 8]
Issue of exclusive ownership not proper for partition
When the allegations in the complaint assert the exclusive ownership
of the property to be partition, the nature of the action is not of partition. It is
an action for the recovery of property. [De la Cruz v. Court of Appeals, 412
SCRA 282]
Two stages in every action for partition
The first phase of a partition and/or accounting suit is taken up with the
determination of whether or not a co-ownership in fact exists, and a partition
is proper. The second phase commences when it appears that the parties
are unable to agree upon the partition directed by the court. In that event[,]
partition shall be done for the parties by the [c]ourt with the assistance of
not more than three (3) commissioners. [Lacbayan v. Samoy, 645 SCRA 677]

Order of partition and partition by agreement

If after the trial the court finds that the plaintiff has the right thereto, it
shall order the partition of the real estate among all the parties in interest.
Thereupon the parties may, if they are able to agree, make the partition
among themselves by proper instruments of conveyance, and the court shall
confirm the partition so agreed upon by all the parties, and such partition,
together with the order of the court confirming the same, shall be recorded
in the registry of deeds of the place in which the property is situated. [Rule
69, Sec. 2]
Partition by commissioners; appointment of commissioners,
commissioners report; court action upon commissioners report
Appointment of commissioners
If the parties are unable to agree upon the partition, the court shall
appoint not more than three (3) competent and disinterested persons as
commissioners to make the partition, commanding them to set off to the
plaintiff and to each party in interest such part and proportion of the property
as the court shall direct. [Rule 69, Sec. 3]
Duty of the commissioners
Before making such partition; the commissioners shall take and
subscribe an oath that they will faithfully perform their duties as
commissioners, which oath shall be filed in court with the other proceedings
in the case. In making the partition, the commissioners shall view and
examine the real estate, after due notice to the parties to attend at such
view and examination, and shall hear the parties as to their preference in the
portion of the property to be set apart to them and the comparative value
thereof, and shall set apart the same to the parties in lots or parcels as will
be most advantageous and equitable, having due regard to the
improvements, situation and quality of the different parts thereof. [Rule 69,
Sec. 4]
The commissioners shall make a full and accurate report to the court of
all their proceedings as to the partition, or the assignment of real estate to
one of the parties, or the sale of the same. Upon the filing of such report, the
clerk of court shall serve copies thereof on all the interested parties with
notice that they are allowed ten (10) days within which to file objections to
the findings of the report, if they so desire. No proceeding had before or
conducted by the commissioners and rendered judgment thereon. [Rule 69,
Sec. 6]
Judgment and its effects
If actual partition of property is made, the judgment shall state
definitely, by metes and bounds and adequate description, the particular
portion of the real estate assigned to each party, and the effect of the
judgment shall be to vest in each party to the action in severalty the portion
of the real estate assigned to him. If the whole property is assigned to one of
the parties upon his paying to the others the sum or sums ordered by the
court, the judgment shall state the fact of such payment and of the
assignment of the real estate to the party making the payment, and the

effect of the judgment shall be to vest in the party making the payment the
whole of the real estate free from any interest on the part of the other
parties to the action. If the property is sold and the sale confirmed by the
court, the judgment shall state the name of the purchaser or purchasers and
a definite description of the parcels of real estate sold to each purchaser, and
the effect of the judgment shall be to vest the real estate in the purchaser or
purchasers making the payment or payments, free from the claims of any of
the parties to the action. A certified copy of the judgment shall in either case
be recorded in the registry of deeds of the place in which the real estate is
situated, and the expenses of such recording shall be taxed as part of the
costs of the action. [Rule 69, Sec. 11]
Partition of personal property
The provisions of this Rule shall apply to partitions of estates
composed of personal property, or of both real and personal property, in so
far as the same may be applicable. [Rule 69, Sec. 13]
Prescription of action
Action for partition imprescriptible
Prescription does not run in favor of a co-owner or co-heir against his
co-owner or co-heirs as long as there is a recognition of the co-ownership,
expressly or impliedly. [Art. 494, Civil Code]
Although the action to demand partition of a co-owned land does not
prescribe, a co-owner may acquire ownership thereof by prescription where
there exist a clear repudiation of the co-ownership and the co-owners are
apprised of the claim of adverse and exclusive ownership. [Heirs of Restar v.
Heirs of Cichon, 475 SCRA 731]
Exception
The exception to the non-prescription of the action to partition is where
one of the interested parties openly and adversely occupies the property
without recognizing the co-ownership, in which case, acquisitive prescription
may set it. [Regalado, Remedial Law Compendium, 2010]
3.19.12. Forcible entry and unlawful detainer
Definitions and distinction
In actions for forcible entry, three (3) requisites have to be met for the
municipal trial court to acquire jurisdiction. First, the plaintiffs must allege
their prior physical possession of the property. Second, they must also assert
that they were deprived of possession either by force, intimidation, threat,
strategy, or stealth. Third, the action must be filed within one (1) year from
the time the owners or legal possessors learned of their deprivation of
physical possession of the land or building. [Nunez v. SLTEAS Phoenix
Solutions,G.R. No. 180542, April 12, 2010]
Meaning of strategy

"Strategy" in this regard could only mean machination or artifice and

considering that the parties tangled for weeks to reach an agreement on the
terms and conditions of a contract of lease. Stealth, on the other hand, is
defined as any secret, sly, or clandestine act to avoid discovery and to gain
entrance into or remain within residence of another without permission.
[Sumulong v. Court of Appeals, 232 SCRA 372]
Requisites
The essential requisites of unlawful detainer are: (1) the fact of lease
by virtue of a contract express or implied; (2) the expiration or termination
of the possessors right to hold possession; (3) withholding by the lessee of
the possession of the land or building after expiration or termination of the
right to possession; (4) letter of demand upon lessee to pay the rental or
comply with the terms of the lease and vacate the premises; and (5) the
action must be filed within one (1) year from date of last demand received by
the defendant. [De la Cruz v. Court of Appeals, G.R. No. 139442, December
6, 2006]
Prior physical possession must be alleged and proved
In forcible entry, the plaintiff must allege in the complaint, and prove,
that he was in prior physical possession of the property in dispute until he
was deprived thereof by the defendant by any of the means provided in
Section 1, Rule 70 of the Rules either by force, intimidation, threat, strategy
or stealth. In unlawful detainer, there must be an allegation in the complaint
of how the possession of defendant started or continued, that is, by virtue of
lease or any contract, and that defendant holds possession of the land or
building after the expiration or termination of the right to hold possession
by virtue of any contract, express or implied. [Sarmiento v. Manalite Home
Owners Association, G.R. No. 182953, October 11, 2010]
Distinguished from accion publiciana, accion reivindicatoria and
accion interdictal
There are three kinds of actions for the recovery of possession of real
pro. property, namely, (1) the summary action for forcible entry or detainer
(denominated accion interdictalunder the former law of procedure, Ley de
Enjuiciamiento Civil) which seeks the recovery of physical possession only
and is brought within one year in the justice of the peace court; (2)
the accion publiciana which is for the recovery of the right to possess and is
a plenary action in an ordinary civil proceeding in a Court of First Instance;
and (3) accion de reivindicacion which seeks the recovery of ownership
(which of course includes the jus utendi and the jus fruendi also brought in
the Court of First Instance. [Reyes v. Sta. Maria, G.R. No. L-33213 June 29,
1979]
Two kinds of action to recover possession
Two (2) kinds of action to recover possession of real property which fall
under the jurisdiction of the RTC are: (1) the plenary action for the recovery
of the real right of possession (accion publiciana) when the dispossession has
lasted for more than one year or when the action was filed more than one (1)

year from date of the last demand received by the lessee or defendant; and
(2) an action for the recovery of ownership (accion reivindicatoria) which
includes the recovery of possession.
Who may institute the action and when; against whom the action
may be maintained
Subject to the provisions of the next succeeding section, a person
deprived of the possession of any land or building by force, intimidation,
threat, strategy, or stealth, or a lessor, vendor, vendee, or other person
against whom the possession of any land or building is unlawfully withheld
after the expiration or termination of the right to hold possession, by virtue
of any contract, express or implied, or the legal representatives or assigns of
any such lessor, vendor, vendee, or other person, may, at any time within
one (1) year after such unlawful deprivation or withholding of possession,
bring an action in the proper Municipal Trial Court against the person or
persons unlawfully withholding or depriving of possession, or any person or
persons claiming under them, for the restitution of such possession, together
with damages and costs. [Rule 70, Sec. 1]
Ejectment case cannot be restrained by injunction
An ejectment case is not abated by: Injunction, Accion Publicana, Writ
of Possession where ownership is the principal issue, Action for quieting of
title of property, suits for specific performance and action for reformation of
instrument. The said actions do not involve physical or de facto possession.
[Wilmon Auto Supply v. Court of Appeals, 208 SCRA 108]
No obligation on plaintiff to pay compensation to defendant
There is nothing in existing laws and procedural rules that
obliges a plaintiff in an unlawful detainer or forcible entry case to pay
compensation or financial assistance to defendants whose occupation was
either illegal from the beginning or had become such when they refused to
vacate the subject premises upon demand by the owner or person having
better right to its possession. On the contrary, our Rules of Court expressly
recognizes the right of such plaintiff to claim for damages arising from the
unlawful deprivation of physical possession. (Antioquia Development
Corporation And Jamaica Realty & Marketing Corporation Vs. Benjamin P.
Rahacal, Eulalia Cant Alejo, Teresita Cant Alejo, Rudy Ramos, Domingo
Aguilar, Domingo Cantalejo, Vlrginia Cant Alejo, Dulce Aquino,
Rogelioredondo, Virgilio Cant Alejo, Francisco Lumbres And Rodolfo Dela
Cerna, G.R. No. 148843 September 05, 2012)
Pleadings allowed
The only pleadings allowed to be filed are the complaint, compulsory
counterclaim and cross-claim pleaded in the answer, and the answers
thereto. All pleadings shall be verified. [Rule 70, Sec. 4]
Action on the complaint
The court may, from an examination of the allegations in the complaint

and such evidence as may be attached thereto, dismiss the case outright on
any of the grounds for the dismissal of a civil action which are apparent
therein. If no ground for dismissal is found, it shall forthwith issue summons.
[Rule 70, Sec. 5]
Cases requiring referral for conciliation, where there is no showing of
compliance with such requirement, shall be dismissed without prejudice, and
may be revived only after that requirement shall have been complied with.
[Rule 70, Sec. 12]
When demand is necessary?
Unless otherwise stipulated, such action by the lesser shall be
commenced only after demand to pay or comply with the conditions of the
lease and to vacate is made upon the lessee, or by serving written notice of
such demand upon the person found on the premises if no person be found
thereon, and the lessee fails to comply therewith after fifteen (15) days in
the case of land or five (5) days in the case of buildings. [Rule 70, Sec. 2]
It is apparent from this provision that a demand is a pre-requisite to an
action for unlawful detainer, when the action is "for failure to pay rent due or
to comply with the conditions of his lease," and where the action is to
terminate the lease because of the expiration of its term. [Co Tiamco v. Diaz,
75 Phil. 672]
Rule on oral demand
It has been ruled, however, that the demand upon a tenant may be
oral. Sufficient evidence must be adduced to show that there was indeed a
demand like testimonies from disinterested and unbiased witnesses.
[Jakihaca vs. Aquino, 181 SCRA 67]
Nature of the proceedings
The proceeding is summary in nature, jurisdiction over which lies with
the proper MTC or metropolitan trial court. The action must be brought up
within one year from the date of last demand, and the issue in the case must
be the right to physical possession. [Delos Reyes v. Spouses Odenes,G.R. No.
178096, 23 March 2011]
Exceptions to the rule that demand is necessary:
The action for unlawful detainer was based on the expiration of the
contract of lease, a demand to vacate was not necessary for judicial action
after the expiration of the terms of the lease. There being no need for any
demand or notice, there was likewise no necessity to wait for five (5) days
upon notice or demand before an action for unlawful detainer may be filed.
[Arquelada v. Philippine Veterans Bank, G.R. No. 139137, March 31, 2000]
Month to month lease;
When the parties to an oral lease do not fix a specified period. Since
the rentals were paid monthly, the lease, even if verbal, may be deemed to
be on a monthly basis, expiring at the end of every month. [Heirs of Suico v.

Court of Appeals, G.R. No. 120615, January 21, 1997]

Demand not necessary in case action for unpaid rentals
Demand is also not necessary when the action is filed for a sum of
money, consisting of unpaid rents, liquidated damages, attorney's fees, and
costs. Intruders, not tenants of the owner, cannot use this remedy. [Guanson
v. Ban, G.R. No. L-186, August 6, 1946]
Preliminary injunction and preliminary mandatory injunction
The court may grant preliminary injunction, in accordance with the
provisions of Rule 58 hereof, to prevent the defendant from committing
further acts of dispossession against the plaintiff. [Rule 70, Sec. 15]
Resolving defense of ownership
When the defendant raises the defense of ownership in his pleadings
and the question of possession cannot be resolved without deciding the issue
of ownership, the issue of ownership shall be resolved only to determine the
issue of possession. [Rule 70, Sec. 16]
Effect of judgment in ejectment-conclusive as to possession
The judgment rendered in an action for forcible entry or detainer shall
be conclusive with respect to the possession only and shall in no wise bind
the title or affect the ownership of the land or building. Such judgment shall
not bar an action between the same parties respecting title to the land or
building. [Rule 70, Sec. 18]
Judgment on ownership merely provisional
An adjudication made therein regarding the issue of ownership should
be regarded as merely provisional and, therefore, would not bar or prejudice
an action between the same parties involving title to the land. The foregoing
doctrine is a necessary consequence of the nature of forcible entry and
unlawful detainer cases where the only issue to be settled is the physical or
material possession over the real property, that is, possession de facto and
not possession de jure. [Hilario v. Court of Appeals, G.R. No. 121865, August
7, 1996]
Issue of ownership merely incidental
The assertion by the defendant of ownership over the disputed
property does not serve to divest the inferior court of its jurisdiction. The
defendant cannot deprive the court of jurisdiction by merely claiming
ownership of the property involved. [Rural Bank of Sta. Ignacia v. Dimatulac,
G.R. No. 142015, April 29, 2003]
Ejectment; possession de facto; distinction between forcible entry
and unlawful detainer cases.

At the outset, it bears to reiterate the settled rule that the only
question that the courts resolve in ejectment proceedings is: who is entitled
to the physical possession of the premises, that is, to the possession de facto
and not to the possession de jure. It does not even matter if a partys title to
the property is questionable. In an unlawful detainer case, the sole issue for
resolution is the physical or material possession of the property involved,
independent of any claim of ownership by any of the party litigants. Where
the issue of ownership is raised by any of the parties, the courts may pass
upon the same in order to determine who has the right to possess the
property. The adjudication is, however, merely provisional and would not bar
or prejudice an action between the same parties involving title to the
property. Juanita Ermitao, represented by her Attorney-in-fact, Isabelo
Ermitao v. Lailanie M. Paglas; G.R. No. 174436. January 23, 2013
Nature of Judgment in Ejection case; requisites for stay.
Requirements for appeal
The ruling in Chua v. Court of Appeals (286 SCRA 437, 444-445 [1998])
is instructive on the means of staying the immediate execution of a
judgment in an ejectment case, to wit:
As a general rule, a judgment in favor of the plaintiff in an ejectment
suit is immediately executory, in order to prevent further damage to him
arising from the loss of possession of the property in question. To stay the
immediate execution of the said judgment while the appeal is pending the
foregoing provision requires that the following requisites must concur: (1) the
defendant perfects his appeal; (2) he files a supersedeas bond; and (3) he
periodically deposits the rentals which become due during the pendency of
the appeal. The failure of the defendant to comply with any of these
conditions is a ground for the outright execution of the judgment, the duty of
the court in this respect being ministerial and imperative. Hence, if the
defendant-appellant
perfected
the
appeal
but
failed
to
file
a supersedeas bond, the immediate execution of the judgment would
automatically follow. Conversely, the filing of a supersedeas bond will not
stay the execution of the judgment if the appeal is not perfected. Necessarily
then, the supersedeas bond should be filed within the period for the
perfection of the appeal. In short, a judgment in favor of the plaintiff in an
ejectment suit is immediately executory, but the defendant, to stay its
immediate
execution,
must:
(1)
perfect
an
appeal;
(2)
file
a supersedeas bond; and (3) periodically deposit the rentals becoming due
during the pendency of the appeal. Herminia Acbang v. Hon. Jimmy Luczon,
Jr., et al.,G.R. No. 164246, January 15, 2014.
How to stay the immediate execution of judgment
Defendant must take the following steps to stay the execution of the
judgment:
1. Perfect an appeal;
2. File a supersedeas bond to pay for the rents, damages and costs
accruing down to the time of the judgment appealed from; and
3. Deposit periodically with the RTC, during the pendency of the

appeal, the adjudged amount of rent due under the contract or if there be no
contract, the reasonable value of the use and occupation of the premises.
[Rule 70, Sec. 19]
Nature of judgment in ejectment
As a general rule, a judgment in an ejectment case is immediately
executory, in order to prevent further damage to him arising from the loss of
possession. To stay the immediate execution of the judgment while the
appeal is pending, Sec. 19 of Rule 70 must be complied with. [Chua v. Court
of Appeals, 286 SCRA 437]
Summary procedure, prohibited pleadings
1. Motion to dismiss the complaint except on the ground of lack of
jurisdiction over the subject matter, or failure to comply with section 12;
2. Motion for a bill of particulars;
3. Motion for new trial, or for reconsideration of a judgment, or for
reopening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings, affidavits or any other
paper;
6. Memoranda;
7. Petition for certiorari, mandamus, or prohibition against any
interlocutory order issued by the court;
8. Motion to declare the defendant in default;
9. Dilatory motions for postponement;
10. Reply;
11. Third-party complaints;
12. Interventions [Rule 70, Sec. 13]
3.19.13. Contempt
Contempt of court has been defined as a willful disregard or
disobedience of a public authority. In its broad sense, contempt is a disregard
of, or disobedience to, the rules or orders of a legislative or judicial body or
an interruption of its proceedings by disorderly behavior or insolent language
in its presence or so near thereto as to disturb its proceedings or to impair
the respect due to such a body. In its restricted and more usual sense,
contempt comprehends a despising of the authority, justice, or dignity of a
court. [Lorenzo Shipping v. Distribution Association, 656 SCRA 331]
It signifies not only a willful disregard or disobedience of the courts
orders but also conduct tending to bring the authority of the court and the
administration of law into disrepute or, in some manner, to impede the due
administration of justice. [Siy v. National Labor Relations Commission, G.R.
No. 158971, August 25, 2005]
Contempt of court is defined as a disobedience to the court by acting
in opposition to its authority, justice and dignity, and signifies not only a
willful disregard of the courts order, but such conduct which tends to bring
the authority of the court and the administration of law into disrepute or, in
some manner, to impede the due administration of justice. To be considered
contemptuous, an act must be clearly contrary to or prohibited by the order

of the court. Thus, a person cannot be punished for contempt for

disobedience of an order of the Court, unless the act which is forbidden or
required to be done is clearly and exactly defined, so that there can be no
reasonable doubt or uncertainty as to what specific act or thing is forbidden
or required. Rivulet Agro-Industrial Corporation v. Anthony Parungao, Narciso
B. Nieto, in their capacity as Undersecretaries of Legal Affairs and Field
Operations of the Department of Agrarian Reform, et al., G.R. No. 197507.
January 14, 2013
Kinds of contempt
Contempt of court is of two kinds, namely: direct contempt, which is
committed in the presence of or so near the judge as to obstruct him in the
administration of justice; and constructive or indirect contempt, which
consists of willful disobedience of the lawful process or order of the court.
[Narcida v. Bowen, 22 Phil. 365]
Purpose and nature of each
Function of contempt
Contempt proceedings has a dual function: (1) vindication of public
interest by punishment of contemptuous conduct; and (2) coercion to compel
the contemnor to do what the law requires him to uphold the power of the
Court, and also to secure the rights of the parties to a suit awarded by the
Court. [Regalado v. Go, 514 SCRA 616]
Direct Contempt
Direct contempt, or contempt in facie curiae, is misbehavior committed
in the presence of or so near a court or judge so as to obstruct or interrupt
the proceedings before the same, including disrespect toward the court, and
can be punished summarily without hearing. It is conduct directed against or
assailing the authority and dignity of the court or a judge, or in the doing of a
forbidden act. [Encinas v. National Bookstore, G.R. No. 162704, July 28,
2005]
When direct proper?
A person guilty of misbehavior in the presence of or so near a court as
to obstruct or interrupt the proceedings before the same, including
disrespect toward the court, offensive personalities toward others, or refusal
to be sworn or to answer as a witness, or to subscribe an affidavit or
deposition when lawfully required to do so, may be summarily adjudged in
contempt by such court and punished by a fine not exceeding two thousand
pesos or imprisonment not exceeding ten (10) days, or both, if it be a
Regional Trial Court or a court of equivalent or higher rank, or by a fine not
exceeding two hundred pesos or imprisonment not exceeding one (1) day, or
both, if it be a lower court. [Rule 71, Sec. 1]
Contemptous language in a pleading
Unfounded accusations or allegations or words in a pleading tending to
embarrass the court or to bring it into disrepute. If a pleading containing
derogatory, offensive and malicious statements is submitted in the same

court or judge, it is direct contempt. [Re: Letter dated 21 Feb. 2005 of Atty.
Noel Sorreda, A.M. No. 05-3-04-SC. July 22, 2005]
Furthermore, assuming that the conclusion of petitioner is justified by
the facts, it is still not a valid defense in cases of contempt. Where the
matter is abusive or insulting, evidence that the language used was justified
by the facts is not admissible as a defense. Respect for the judicial office
should always be observed and enforced. [Cruz v. Gigoyon, 658 SCRA 254]
Indirect Contempt
Indirect contempt or constructive contempt is that which is committed
out of the presence of the court. [Subic Bay Metropolitan Authority v.
Rodriguez, 619 SCRA 176]
A person guilty of any of the following acts may be punished for
indirect contempt;
(a) Misbehavior of an officer of a court in the performance of his official
duties or in his official transactions;
(b) Disobedience of or resistance to a lawful writ, process, order, or
judgment of a court, including the act of a person who, after being
dispossessed or ejected from any real property by the judgment or process
of any court of competent jurisdiction, enters or attempts or induces another
to enter into or upon such real property, for the purpose of executing acts of
ownership or possession, or in any manner disturbs the possession given to
the person adjudged to be entitled thereto;
(c) Any abuse of or any unlawful interference with the processes or
proceedings of a court not constituting direct contempt under section 1 of
this Rule;
(d) Any improper conduct tending, directly or indirectly, to impede,
obstruct, or degrade the administration of justice;
(e) Assuming to be an attorney or an officer of a court, and acting as
such without authority;
(f) Failure to obey a subpoena duly served;
(g) The rescue, or attempted rescue, of a person or property in the
custody of an officer by virtue of an order or process of a court held by him.
[Rule 71, Sec. 3]
Remedy against direct contempt; penalty
1. The penalty for direct contempt depends upon the court which the act
was committed.
2. If the act constituting direct contempt was committed against an RTC
or a court of equivalent or higher rank, the penalty is a fine not
exceeding P2,000 or imprisonment not exceeding 10 days, or both;
3. If the act constituting direct contempt was committed against a lower
court, the penalty is a fine not exceeding P200 or imprisonment not
exceeding one day, or both; [Rule 71, Sec. 1]and
4. If the contempt consists in the refusal or omission to do an act which is
yet within the power of the respondent to perform, he may be
imprisoned by order of the court concerned until he performs it.

5. A person adjudged in direct contempt may not appeal therefrom. His

remedy is a petition for certiorari or prohibition directed against the
court which adjudged him in direct contempt. [Rule 71, Sec. 2] Pending
the resolution of the petition for certiorari or prohibition, the execution
of the judgment for direct contempt shall be suspended. The
suspension however shall take place only if the person adjudged in
contempt files a bond fixed by the court which rendered the judgment.
This bond is conditioned upon his performance of the judgment should
the petition be decided against him.
Remedy against indirect contempt; penalty
1) The punishment for indirect contempt depends upon the level of the
court against which the act was committed;
2) Where the act was committed against an RTC or a court of
equivalent or higher rank, he may be punished by a fine not exceeding
P30,000 or imprisonment not exceeding 6 months, or both;
3) Where the act was committed against a lower court, he may be
punished by a fine not exceeding P5,000 or imprisonment not exceeding one
month, or both. Aside from the applicable penalties, if the contempt consists
in the violation of a writ of injunction, TRO or status quo order, he may also
be ordered to make complete restitution to the party injured by such
violation of the property involved or such amount as may be alleged and
proved; [Rule 71, Sec. 7]and
4) Where the act was committed against a person or entity exercising
quasi-judicial functions, the penalty imposed shall depend upon the
provisions of the law which authorizes a penalty for contempt against such
persons or entities.
5) The person adjudged in indirect contempt may appeal from the
judgment or final order of the court in the same manner as in criminal cases.
The appeal will not however have the effect of suspending the judgment if
the person adjudged in contempt does not file a bond in an amount fixed by
the court from which the appeal is taken. This bond is conditioned upon his
performance of the judgment or final order if the appeal is decided against.
[Rule 71, Sec. 11]
How contempt proceedings are commenced?
Proceedings for indirect contempt may be initiated motu propio by the
court against which the contempt was committed by an order or any other
formal charge requiring the respondent to show cause why he should not be
punished for contempt.
In all other cases, charges for indirect contempt shall be commenced
by a verified petition with supporting particulars and certified true copies of
documents or papers involved therein, and upon full compliance with the
requirements for filing initiatory pleadings for civil actions in the court
concerned. If the contempt charges arose out of or are related to a principal
action pending in the court, the petition for contempt shall allege that fact

but said petition shall be docketed, heard and decided separately, unless the
court in its discretion orders the consolidation of the contempt charge and
the principal action for joint hearing and decision. [Rule 71, Sec. 4]
Where to file?
Where the charge for indirect contempt has been committed against a
Regional Trial Court or a court of equivalent or higher rank, or against an
officer appointed by it, the charge may be filed with such court. Where such
contempt has been committed against a lower court, the charge may be filed
with the Regional Trial Court of the place in which the lower court is sitting;
but the proceedings may also be instituted in such lower court subject to
appeal to the Regional Trial Court of such place in the same manner as
provided in section 11 of this Rule. [Rule 71, Sec. 5]
When imprisonment shall be imposed
When the contempt consists in the refusal or omission to do an act
which is yet in the power of the respondent to perform, he may be
imprisoned by order of the court concerned until he performs it. [Rule 71,
Sec. 8]
Who can order the confinement?
It is only the judge, who orders the confinement of a person for
contempt of court, who can issue the order of release [Inoturan v. Limsiaco,
Jr. 458 SCRA 48]
Contempt against quasi-judicial bodies
Unless otherwise provided by law, this Rule shall apply to contempt
committed against persons, entities, bodies or agencies exercising quasijudicial functions, or shall have suppletory effect to such rules as they may
have adopted pursuant to authority granted to them by law to punish for
contempt. The Regional Trial Court of the place wherein the contempt has
been committed shall have jurisdiction over such charges as may be filed
therefor. [Rule 71, Sec. 12]
Labor arbiter and NLRC has power of contempt
As is clear under the Labor Code, the labor arbiter or the Commission is
empowered or has jurisdiction to hold the offending party or parties in direct
or indirect contempt. The petitioners therefore, have not improperly filed the
charge of indirect contempt in the NLRC. [Robosa v. NLRC, G.R. No. 176085,
February 8, 2012]
How commenced?
Indirect contempt pursuant to Rule 71 of quasi-judicial bodies can only
be done by initiating them in the proper RTC. It is not within their jurisdiction
and competence to decide the indirect contempt cases. [Land Bank of the
Philippines v. Listana, 408 SCRA 328]