By a petition By a filing of a complaint

SPE CI AL CI VIL ACT IO N NOT ES

a. Declaratory relief and other similar a. Interpleader
I. BASIC PRINCIPLES
remedies

1. Definition of “Special Civil Action”

b. Review of adjudication of COMELEC B. Expropriation
A special civil action is a civil action which aside from being governed by the rules for and COA
ordinary action is subject to special rule provide by it.
c. Certiorari , prohibition and c. Foreclosure of real estate mortgage
2. Distinction between “Ordinary Civil Action” and “Special Civil
mandamus
Action”

d. quo warranto d. Partition

1. Ordinary Civil Action 2. Special Civil Action

e. Contempt e. Forcible Entry and Unlawful detainer

Governed by rules for ordinary civil Governed by the rules for ordinary civil
action. action by special rules
Joinder and Misjoinder of Action : The Joinder shall not include SCA or an action that
is governed by special rules.
Cased on cause of action Not every special civil action must be
based on cause of action as for instance Q: The first case filed is an action for partition , Rita, Florante and Panfila did not
declaratory relief. object to the action of partition. Rita then conveyed the land to Florante who later
died when the case is pending. The petitioner then filed a supplemental pleading
praying that the donation is favor of Florante be declared as rescinded as Rita was
already sick. The issue here is whether the action for rescission can be joined with
Special Civil Action in the Rules of Court : the action for partition?

1. Interpleader A: No. There is a misjoinder of action. As a rule , a joinder must not include special
2.Declaratory relief and similar remedies civil action governed by special rules. In the case at bar, the action for partition filed
3. Review of judgment and final orders or resolution of the COMELEC and COA by the petitioner could not be joined with the action for rescission of donation inter
4. Certiorari , Prohibition and Mandamus
vivos in favor of Florante. An action for partition is a special civil action while an
5. Quo Wararanto
6. Expropriation action for rescission is an ordinary action governed by the rules on civil procedure
7 Foreclosure and real estate mortgage
8. Partition
9. Forcible Entry and Unlawful detainer
10. Contempt Q: Whether an action for reimbursement or for recovery of damages may not be
properly joined with an action for ejectment.

1
A: No. The action for ejectment is a special civil action while an action for recovery of brought into action complainant in
damage is an ordinary action requiring a full blown trial. because they are sued intervention is filed the
and impleaded as such in defendants are already
I. INTERPLEADER the complaint parties to the existing suit
not because of
Definition: A SCA whereby a person who claims no interest whatsoever in a property intervention but because
or in a right or an interest which in whole or in part is not disputed by the claimant of a original suit
brings an action against conflicting claimant to compel them to interplead and litigate
among themselves. PERSONAL PROPERTY: Venue
RTC MTC
If the value of the person property If the value of the personal property
Purpose: To avoid double vexation for one liability. exceeds P300000 outside of metro does not exceed P300,000 outside metro
Manila or P400,000 within Metro Manila or P400,000 within Metro
Intepleader Intervention Manila Manila
Nature An interpleader is a SCA An intervention is not an
independent and original original action but REAL PROPERTY
merely an ancillairy and
depends upon the
RTC MTC
existence of a pending
If the assessed value of the real If the assessed value of the real
action
property exceeds P20,000 outside metro property does not exceed P20,000
Commencement An interpleader is An intervention is
Manila or P50,000 within Metro Manila outside of Metro Manila or P50,000
commenced by the filing commenced by motion
within Metro Manila
of the complaint, it being for leave to intervene
an original action filed in a pending case
attaching thereto the  Note That in the case of Unlawful Detainer : Regardless of the amount it is to be
pleading in intervention filed with the MTC.
Filing An interpleader is filed An intervention is filed
by a person who has no by someone who has
In case the Subject matter is a personal In case the subject matter of the action
interest in the subject legal interest any of the ff
property of the action is a real property
atter of the action or if he 1. The Subject matter of
The venue lies within the residence of The venue lies where the property is
has an interest the same litigation
the plaintiff or the residence of the located or any portion thereof situated
is not disputed by the 2. The success of either of
defendant at the election of the plaintiff
claimant the parties
Test: Regardless of the 3. An interest against
decision it will not affect both Procedure for interpleader:
the plaintiff adversely1
whether you decide any
1. The stakeholder files a complaint against conflicting claimant
which way the plaintiff
2. Upon the filing of the complaint the court issues an order requiring the
will not be adversely
conflicting claimant to interplead with each other
with the decision
3. Summons are to be served upon the conflicting claimant
Defendant The defendant are In intervention, if the
4. Within the time to file an answer each claimant files a motion to dismiss on
the ground of impropriety of an interpleader or other grounds un Section
1
16.

2
 5. Each claimant shall file his answer setting forth his claim within fifteen days Q: Lessee Zuellig Pharma filed an action for interpleader against the petitioner and
from the service of summons serving a copy upon each of the conflicting the Philippine bank of Communication to determine who between them is entitled
claimant who may file their reply thereto to rental payment. The petitioner failed to file its answer and was declared in
6. The court shall proceed to determine the respective rights of the conflicting
default upon the motion of Zuelig. Petitioner argued that Zuelig file d the
claimant and to adjudicate their several claims.
interpleader case to compel the petitioner and the respondent to litigate amog
themselves and declaring a claimant in default defeats the very purpose of the
Requisite: interpleader suit is this correct
1. There must be two or more claimant with adverse or conflicting interest
upon the same subject matter
2. The conflicting claim involve the same subject matter A: No .Zuelig filed the interpleader suit to exitinguish the obligation to pay rent. The
3. The conflicting claims are made on the same person interpleader case was not defeated when Makati trial court declared the petitioner in
4. The plaintiff has no claim upon the subject matter of the adverse claims or if default. At any rate, an adverse claimant in an interpleader case who fails to answer
he has an interest such interest is not disputed by the claimant. within the time prescribed are to be declared in default. The consequence of such is
that the court may render judgment barring the defaulted claimant form any claim
Q: Pacific Banking was placed under receivership by the CBP, a liquidator was with respect to the subject matter.
appointed. PCIB filed a complaint for intervention seeking for the payment of
claimant of claims. The second claimant on the other hand filed for investment of
Q: Who pays the docket fee
the PABC in the form of shares. The issue here is whether the liquidation proceeding
is a special civil action?
A: The conflicting claimant themselves since ther defendant in interpleader are
A: Yes . A liquidation case can be a compared to an SCA as it merely seeks for the actually the one who makes the claim only that it was done through the procedural
declaration of the trial court of the corporation insolvency so that the creditors are able device called the interpleader.
to file their claim in the settlement of corporation debt and obligation. This is similar
to an interpleader which provides that no person who claims no interest thereon may
D ECL ARAT ORY REL IE F:
file an action for interpleader to compel the claimant to implead and litigate their
claims among themselves. Definition: An action by person interested in deed, will or contract or other written
instrument, executive order or resolution to determine the question of 1. Construction
Q: What is the essence of an interpleader? 2. Validity arising form the instrument, executive order, regulation or statute and for
A: Aside from the disavowal of interest in the property in litigation is the deposit of declaration of his right and duties thereunder. The only issue that may be raised in
the property or funds in the controversy with the court so that the plaintiff may not such a petition is the question of construction of the provision in an instrument or
continue to benefit from property or funds in litigation during pending of the suit at statute.
expense of whoever will be decided entitled thereto. The rationale for consignation is
prevent performance of an obligation from being onerous to the debtor for cases not
his fault. Other Similar Remedies:
1. Action for reformation of instrument
A stakeholder must use reasonable diligence to hale the contending claims to court. 2. Action to quiet title
He need not wait for the actual institution of independent suit against him prior to the 3. Action to consolidate ownership over real property by vendee a retro
filing of the interpleader. Hence, he must file an action for reasonable time otherwise
he is barred by laches. An action for interpleader is a remedy whereby a person who Who may file a petition? Any person interested in the deed, will or contract or other
has personal property in his possession or obligation to render wholly or partially written instrument or whose rights are affected by the statute, executive order or
without claiming any right to either come to court and ask the person who claim the regulation ordinance or any other government regulation
said property or who considered themselves entitled to demand compliance with the
ordinance to litigate among themselves to determine who is entitled to the thing due. Jurisdiction? RTC as the case is incapable of pecuniary estimation. However, if the
petition has a far reaching implication and raises questions that must be resolved the

3
Supreme Court may treat the petition as one for prohibition and mandamus and take 1. Writ of execution is available 1. Writ of execution is not available
cognizance of the case at bar. Ratio: Since the objective is merely for
Scope: 1. Will 2. Deed 3. Contract or other written instrument, statute and executive the interpretation or a definitive
order or resolution. pronouncement of the rights under the
law, rule or order thus , there is nothing
Notes: to execute.
1. A declaratory relief is an equitable remedy and thus it can be resorted to 2. There is a breach of violation of right 2. There is no violation of a right
only when there is no adequate relief under the circumstance 3. Motion to dismiss 3. Additional ground for motion to
2. A court decision is not subject to a declaratory relief since it is predicated dismiss
upon the principle of res judicata which means that the case is decided in its a. Where a decision would not
finality. terminate the uncertainty or controversy
OR
Requisite of declaratory relief b. Where the declaration is not
1. The subject matter of the controversy must be a deed , will contract or other necessary and proper under the
written instrument ,executive order or regulation circumstance
Q: Is the enumeration of the subject matter of the declaratory relief exclusive?
Yes. The sufficiency and probative value of evidence, declaration of Philippine
Citizenship, determination of hereditary rights and status , a court decision, and Clarificatory Judgment Declaratory Relief 2
orders and resolution of quasi judicial bodies may not be subject to a declaratory To remove ambiguity in a judgment To secure an authoritative statement of
relief. enlightenment as to the true import of the rights and obligation of the parties
the judgment under a statute, deed , contract etc for
2. The terms of the said document are doubtful and requires judicial their guidance in its enforcement or
construction compliance and not to settle issues
3. There must be no breach of document in question. arising from the alleged breach
Supersedes the original judgement Terminate uncertainties in an instrument
Q: If a law or a contract has already been violated prior to the filing of an action for or statute and the judgment oof the
declaratory relief can the court assume jurisdiction? court cannot extend beyond a
A: No. because the action had already accrued before one party hence there is nothing declaration of the rights and duties of
more for the other party to do. An action for declaratory relief by a person interested the parties to the action and cannot provide
under a deed, written instrument must e filed before a breach or violation of the deed. corrective relief
4. There must be actual justiciable controversy between persons whose interest Executed according to the rules of court No executory process
is adverse
Notes: The expaned concept of cause of action in proceeding for declaratory relief. The
concept of cause of action in declaratory relief is not as in the ordinary civil action as
Parties
the wrong or delict by which the Plaintiff rights are violated but is extended to a mere
denial, refusal or challenge raising at least an uncertainty or insecurity which is injurious to
1. A PERSON
the right of the plainitff.
A .Who is interested under a deed, will contract or other written instrument
5. The issue must be ripe for judicial declaration.
or
6. Adequate relief is not available through other modes or forms of action or
b. Whose rights will be affected by a statute , executive order or regulation,
proceeding.
ordinance or other government regulation and
affected by the declaration.

Ordinary action Declaratory Relief 2

4
The Solicitor General shall be notified by the party assailing the validity of and shall B. Compulsory Counterclaim ALLOWED: There is nothing in the nature of the
be entitled to be heard upon such question n any action that involves SCA prohibiting the filing of the compulsory counterclaim.
1. The statute
2. Executive order or regulation
No writ of execution
c. Any other governmental regulation

This cannot be issued, the judgment does not essentially entail an executory process
If an action involves the validity of a 1. Corresponding prosecutor or attorney of since generally other than a declaration of such rights and duties as these are
local governmental ordinance the LGU shall be notified and entitled to be understood in ordinary civil action are not sought by the proponent. However, the
heard court can grant such other relief as may be warranted by evidence if the complaint is
If the ordinance is alleged to be 1. Solicitor General shall be notified and sufficient to make out a case of specific performance or recovery of property with
unconstitutional entitled to be heard with the prosecutor claims or damages and the defendant did not raise such issue in the trial court to
attorney and local government unit challenge the remedy availed of .
If the action involves the validity of 1. Solicitor General shall be notified and
the statute, EO and other governmental entitled to be heard. Q: May the petitioner move for summary judgment? Yes
regulation

DISCRETIONARY: The court motu proprio or upon motion may refuse to exercise Q: What is the effect of failure to include the defendant party who would be
the power to declarre the right and construe instrument in any case adversely affected? The Non Joinder is not a jurisdictional defect as the declaration
shall not prejudice their interest. Since a judgment in a declaratory relief is merely
The discretion to grant the declaratory relief is discretionary when declaratory and not executory the rule on compulsory joinder is not applicable
1. The decision will not terminate the controversy or uncertainty
2. When the declaration or construction is not necessary and proper under the Cases:
circumstance.
Q: Resources Unlimited a well financed foreign corporation would like to engage
Exemption: Action for reformation, quieting of title and consolidation of ownership, in a tax exempt business venture in the Philippines , Its management however
the court is obliged to render a decision. entertain some doubt as to whether it could or could not in light of the provision of
the Investment incentive act. To resolve all doubts it obtained a declaration of the
Q: Can a declaratory relief be converted to ordinary action? rights and duties under the said law. It filed the declaratory relief with the SC is
this proper?
1. If before the final termination of the case a breach occurs: Conversion is
proper the action may be converted to an ordinary action and the parties A: No. It is the RTC ad not the Supreme Court which has jurisdiction since the action
shall be allowed to file, the pleadings as may be necessary or proper. is one incapable of pecuniary estimation. Even if the petition be filed with the RTC it
must still be dismissed. In declaratory relief there must be a justiciable controversy or
Q: What are the pleadings allowed? interest that are adverse. A petition for judicial relief must not be used to get advisory
opinion from the court.
A. Third party complaint NOT ALLOWED: In a third party complaint , a third
party seeks contribution, indemnity and other reliefs.This relief cannot be 1. The general purpose of a declaratory relief is to provide for adjudication of
granted because a declaratory proceeding is confined merely to the legal rights and duties. In this case, if the action for declaratory relief is
interpretation of the terms of the contract. allowed in this case, after the breach of the statute the decision of the court

5
 in the same action for declaratory relief would prejudice the action for The petition shall be filed within 30 days from the notice of judgment or final order or
violation of the main case. resolution sought to be reviewed.
2. An action for declaratory relief is not available in citizenship cases. In this
The 30 day period refers to a petition directed against the final order or judgment of
case there was already a decision by the Secretary of Justice hence the
the commission concerned. As such if a petition for certiorari is directed against an
declaratory relief would in effect be a determination of issues rather than
interlocutory order, the 60 day period in Rule 65 applies.
the construction of rights. In this case the appellant claim for the exemption
of the requirement of alien registration law based on illegitimacy. However Filing of the Motion for New Trial or Reconsideration : whether the party may file a
both the Secretary of Justice and the lower court found that the allegation is motion for trial or a motion for reconsideration judgment , final order or resolution of
not substantiated hence the issues were still subject to dispute and the commission involved is dependent upon the procedural rules of the commission
controversy/ concerned

1. If MNT/MRT is allowed: The filing of either interrupts the period of the filing of
the petition for certiorari
2. If the MOTION is denied: The aggrieved party files a petition with the remaining
II. REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS period but which shall not be less than 5 days in ay event reconned from the notice of
OF THE COMELEC AND COA denial

1. 1987 CONSTITUTION, Article IX, Section 7 Note: The fresh period or ( Neypes Rule) is not applicable.
Unless otherwise provided by the Constitution or by law ay decision order or ruling of each
commission may be brought to the Supreme Court on Certiorari by the aggrieved party within Q: Will the filing of the petition for certiorari under Rule 64 stay the execution of
thirty days from the receipt of copy thereof. judgment or final order sought to be reviewed?
A: No. Unless the Supreme Court shall direct otherwise upon such terms as it may
2. RULES OF COURT, Rule 64 deem just.
Rule 64 is a remedy available to a party who seeks review by the Supreme Court of
Judgment, final order or resolution of the COMELEC and COA. As a mode of review, Rule on Motion for Reconsideration as Pre-Requisite
Rule 64 provides that it is governed by Rule 65 on certiorari except as provided under Gen Rule: The pre-requisite filing of the motion for reconsideration with the
Rule 64. As compared to Rule 65, Rule 64 is a continuation of the action as it is a mode COMELEC en banc is mandatory before the final order en banc decision may be
of review. brought to the SC on certiorari

Scope: The Rule governs the review of judgment and final orders or resolution of the Failure to file a motion for reconsideration results in the dismissal of the action
COMELEC En Banc and the COA acting as Quasi Judicial bodies. 3
Q: Is the Civil Service included in Rule 64? Exemption:
A: No. RA 7902 provides that appeal from the CSC is to e made to the CA under rule 1. To prevent a miscarriage of justice
43. 2. Need for relief is extremely urgent and certiorari is the only adequate remedy
Scope: 3. The decision or resolution is a nullity
1. Judgment , final orders : The judgment must be final 4. When the issue involves the principle of social justice and the protection of labor
2. Rendered pursuant to its adjudicatory powers of the Comelec.
Filing of the Petition does not stay execution
Reglementary Period The filing of the motion for reconsideration or motion for new trial interrupts the
period to file a petition, the filing of the petition itself does not have the effect of
staying the execution unless the SC provides otherwise.
a. TO stay the execution: Section 7 Rule 65 must be availed suppletory
3
Quasi Judicial Bodies , rendered in banc

6
 b. To interrupt the course of the principal case, the petitioner must obtain a resolution of the COMELEC and the officer exercising judicial or quasi
TRO or a writ of preliminary injunction. COA judicial function
Filed within 30 days from the notice of Filed within 60 days from the notice of
Payment of Docket and Lawful Fees: Upon the filing of the petition , the petitioner judgment judgment
pays the clerk of court the docket and lawful fees. The denial of a prior motion for The denial of the motion for
The petitioner shall in addition to the docket fees also deposit the amount of reconsideration or new trial gives the filing reconsideration of new trial gives the
P500 for cost. part time to file within the remainder of the filing party a fresh period of 60 days
30 day period but nevertheless than 5 for the filing of the Rule 65 petition
days reckoned from the notice of for certiorari
Options of the Court upon the receipt of the petition denial
The filing of the motion for new trial or In case a motion for reconsideration or
Order To comment reconsideration if allowed under the new trial is filed or denied, the petition
If the petition is sufficient in form or substance the respondent shall be ordered to file procedural rules of the commission may nevertheless be filed not later than
their comments within 10 days from the notice thereof . interrupts the period 60 days counted from the notice of
Hence, should the motion be denied, denial of the motion
Outright Dismissal of the petition the aggrieved party may file a petition  The motion for
1. If the complaint is insufficient In form or substance within the remaining period which shall reconsideration is mandatory
2. If the complaint was filed manifestly for delay not be less than 5 days in any event
3. If the questions raised are too unsubstantial to warrant further proceeding reckoned from the notice of denial In effect” the fresh period rule applies
Filed exclusively within the Supreme May be filed in the appropriate court
Section 7. Comments of respondents. — The comments of the respondents shall be
Court having jurisdiction over the lower court
filed in eighteen (18) legible copies. The original shall be accompanied by certified
etc
true copies of such material portions of the record as are referred to therein
together with other supporting papers. The requisite number of copies of the
comments shall contain plain copies of all documents attached to the original and a
Cases:
copy thereof shall be served on the petitioner.
1. Rule 64 applies only to judgment or final orders of the COMELEC in
exercise of quasi judicial function. This does not apply to interlocutory order
No other pleading may be filed by any party unless required or allowed by the of the COMELEC in quasi judicial function or to administrative orders.
Court. (n) 2. Rule 64 and Rule 65 are different. One of the patent difference between the
two exception hat Section 2 Rule 64 refers to a special period of filing
FORM of the Comment of the Respondent: Filed In 18 legible copies and the original petition for certiorari from decision or ruling of the COMELEC en banc. The
shall be accompanied by the Certified true copies of material portion of the record period is thirty days from notice of the decision of ruling instead of 60 in
referred together with other supporting papers. In most of the initiatory pleading are rule 65.
required to be verified. Anything that question the jurisdiction of the lower court is an 3. Rule 42 and Rule 64 are different. In the former aggrieved party is allowed
original action. 15 days to file a petition for review from the receipt of the assailed decision
The copy is served to the petitioner or final order or for receipt of denial of the motion for reconsideration. In
rule 64, the petition is filed within thirty days from the notice of final
Rule 64 ( only grave abuse of Rule 65- Interlocutory orders judgment or final order or resolution sought to be reviewed.
discretion – Jurisdictional issue lang)4 4. In administrative disciplinary cases decided by the COA, the proper remedy
Directed to judgments, final orders or Directed to any tribunal , board or in case of the adverse decision is to appeal the CSC and not a rule 64
petition. Rule 64 governs the judgment or final order of the COA and the
4 COMELEC it refers to Rule 65 as a mode of review. A petition under Rule
Why should this be verified: the petitioner should attest to the contents 65 requires that the tribunal board or officer exercising judicial or quasi
of the petition
7
 judicial action has acted without excess jurisdiction and grave abuse of
discretion
executive agreement, law, presidential decree, proclamation, order, instruction,
Notes: ordinance, or regulation is in question.

1. Under the Constitution an aggrieved party must first file an motion for (b) All cases involving the legality of any tax, impost, assessment, or toll, or any
reconsideration of a resolution of a Division to the COMELEC en banc. This penalty imposed in relation thereto.
requirement of motion for reconsideration is mandated and jurisdictional in
invoking the power of review of the high court. The failure to abide this (c) All cases in which the jurisdiction of any lower court is in issue.
requirement constitutes a good ground for dismissal
III. CERTIORARI
(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher.

1. 1987 CONSTITUTION, Article VIII, Sections 1

(e) All cases in which only an error or question of law is involved.
Section 1. The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law. (3) Assign temporarily judges of lower courts to other stations as public interest
may require. Such temporary assignment shall not exceed six months without the
Judicial power includes the duty of the courts of justice to settle actual consent of the judge concerned.
controversies involving rights which are legally demandable and enforceable, and
to determine whether or not there has been a grave abuse of discretion amounting (4) Order a change of venue or place of trial to avoid a miscarriage of justice.
to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.
(5) Promulgate rules concerning the protection and enforcement of constitutional
rights, pleading, practice, and procedure in all courts, the admission to the practice
The remedies of certiorari and prohibition are necessary broader in scope and reach
of law, the integrated bar, and legal assistance to the underprivileged. Such rules
and the writ of certiorari or prohibition to issued to correct errors of jurisdiction
shall provide a simplified and inexpensive procedure for the speedy disposition of
committed not only by a tribunal , corporation , board or officer exercising judicial or
cases, shall be uniform for all courts of the same grade, and shall not diminish,
ministerial functions but also to set aside what has been issued in grave abuse of
increase, or modify substantive rights. Rules of procedure of special courts and
discretion and lack of excess jurisdiction by any branch of the government even if the
quasi-judicial bodies shall remain effective unless disapproved by the Supreme
latter does not exercise judicial ,quasi and ministerial function.
Court.

Section 5. The Supreme Court shall have the following powers:  (6) Appoint all officials and employees of the Judiciary in accordance with the
Civil Service Law.
(1) Exercise original jurisdiction over cases affecting ambassadors, other public
ministers and consuls, and over petitions for  certiorari, prohibition, mandamus,  quo
warranto, and habeas corpus.
Petition for certiorari : Rule 65
(2) Review, revise, reverse, modify, or affirm on appeal or  certiorari, as the law or Section 1. Petition for certiorari. — When any tribunal, board5 or officer exercising
the Rules of Court may provide, final judgments and orders of lower courts in: judicial or quasi-judicial functions has acted without or in excess its or his
jurisdiction, or with grave abuse of discretion amounting to lack or excess of
(a) All cases in which the constitutionality or validity of any treaty, international or
5

8
 jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in
the ordinary course of law, a person aggrieved6 thereby may file a verified petition
provided in the third paragraph of section 3, Rule 46. (3a)
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. Section 4. When and where petition filed. — The petition shall be filed not later than
sixty (60) days from notice of the judgment, order or resolution. In case a motion
for reconsideration or new trial is timely filed, whether such motion is required or
The petition shall be accompanied by a certified true copy of the judgment, order
not, the sixty (60) day period shall be counted from notice of the denial of said
or resolution subject thereof, copies of all pleadings and documents relevant and
motion.
pertinent thereto, and a sworn certification of non-forum shopping as provided in
the third paragraph of section 3, Rule 46. (1a)
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
Section 2. Petition for prohibition. — When the proceedings of any tribunal,
Regional Trial Court exercising jurisdiction over the territorial area as defined by
corporation, board, officer or person, whether exercising judicial, quasi-judicial or
the Supreme Court. It may also be filed in the Court of Appeals whether or not
ministerial functions, are without or in excess of its or his jurisdiction, or with
the same is in aid of its appellate jurisdiction, or in the Sandiganbayan if it is in aid
grave abuse of discretion amounting to lack or excess of jurisdiction, and there is
of its appellate jurisdiction. If it involves the acts or omissions of a quasi-judicial
no appeal or any other plain, speedy, and adequate remedy in the ordinary course
agency, unless otherwise provided by law or these Rules, the petition shall be filed
of law, a person aggrieved thereby may file a verified petition in the proper court,
in and cognizable only by the Court of Appeals.
alleging the facts with certainty and praying that judgment be rendered
commanding the respondent to desist from further proceedings in the action or
matter specified therein, or otherwise granting such incidental reliefs as law and No extension of time to file the petition shall be granted except for compelling
justice may require. reason and in no case exceeding fifteen (15) days. (4a) (Bar Matter No. 803, 21 July
1998; A.M. No. 00-2-03-SC)
The petition shall likewise be accompanied by a certified true copy of the
judgment, order or resolution subject thereof, copies of all pleadings and Section 5. Respondents and costs in certain cases. — When the petition filed relates to
documents relevant and pertinent thereto, and a sworn certification of non-forum the acts or omissions of a judge, court, quasi-judicial agency, tribunal, corporation,
shopping as provided in the third paragraph of section 3, Rule 46. (2a) board, officer or person, the petitioner shall join, as private respondent or
respondents with such public respondent or respondents, the person or persons
interested in sustaining the proceedings in the court; and it shall be the duty of
Section 3. Petition for mandamus. — When any tribunal, corporation, board, officer
such private respondents to appear and defend, both in his or their own behalf and
or person unlawfully neglects the performance of an act which the law specifically
in behalf of the public respondent or respondents affected by the proceedings, and
enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes
the costs awarded in such proceedings in favor of the petitioner shall be against the
another from the use and enjoyment of a right or office to which such other is
private respondents only, and not against the judge, court, quasi-judicial agency,
entitled, and there is no other plain, speedy and adequate remedy in the ordinary
tribunal, corporation, board, officer or person impleaded as public respondent or
course of law, the person aggrieved thereby may file a verified petition in the
respondents.
proper court, alleging the facts with certainty and praying that judgment be
rendered commanding the respondent, immediately or at some other time to be
specified by the court, to do the act required to be done to protect the rights of the Unless otherwise specifically directed by the court where the petition is pending,
petitioner, and to pay the damages sustained by the petitioner by reason of the the public respondents shall not appear in or file an answer or comment to the
wrongful acts of the respondent. petition or any pleading therein. If the case is elevated to a higher court by either
party, the public respondents shall be included therein as nominal parties.
However, unless otherwise specifically directed by the court, they shall not appear
The petition shall also contain a sworn certification of non-forum shopping as
or participate in the proceedings therein. (5a)
6

9
 1. Concurrent Jurisdiction among the Supreme Court, Court of Appeals
and the Regional Trial Court, Sandiganbayan and COMELEC
Section 6. Order to comment. — If the petition is sufficient in form and substance to
2. CTA: Jurisdiction over special civil action on certiorari for assailing
justify such process, the court shall issue an order requiring the respondent or
grave abuse of discretion amounting to lack of excess jurisdiction.
respondents to comment on the petition within ten (10) days from receipt of a copy
thereof. Such order shall be served on the respondents in such manner as the court
may direct together with a copy of the petition and any annexes thereto. Hierarchy of Court MUST still be respected: There is an ordained sequence of recourse
to the courts vested with concurrent jurisdiction beginning from the highest to the
lowest. A direct invocation to the Supreme Court is not warranted unless there is
In petitions for certiorari before the Supreme Court and the Court of Appeals, the
special and important reason specifically set out in the petition.
provisions of section 2, Rule 56, shall be observed. Before giving due course
thereto, the court may require the respondents to file their comment to, and not a
motion to dismiss, the petition. Thereafter, the court may require the filing of a Function of a petition for certiorari : To ascertain whether the court acted with grave
reply and such other responsive or other pleadings as it may deem necessary and abuse of discretion amounting to lack of jurisdiction in exercise of its jurisdiction.
proper. (6a)

Section 7. Expediting proceedings;  injunctive relief. — The court in which the petition Section 1:Petition for certiorari
is filed may issue orders expediting the proceedings, and it may also grant a A writ that emanates from a superior court directed against an inferior court, tribunal
temporary restraining order or a writ of preliminary injunction for the preservation board or officer exercising judicial or quasi-judicial function on the ground that there
of the rights of the parties pending such proceedings. The petition shall not is grave abuse of discretion amounting to lack of excess jurisdiction on the part of any
interrupt the course of the principal case unless a temporary restraining order or a branch of the government
writ of preliminary injunction has been issued against the public respondent from
further proceeding in the case. (7a) Q: May an administrative agency have certiorari powers?
A: No. Administrative agencies are not courts of law which exercises judicial power.
The power to issue writs of certiorari is an incident of judicial review.
Section 8. Proceedings after comment is filed. — After the comment or other pleadings
required by the court are filed, or the time for the filing thereof has expired, the
Q: May the petition for writs for certiorari and prohibition are directed only to
court may hear the case or require the parties to submit memoranda. If after such
tribunals that exercise quasi judicial and judicial fuction?
hearing or submission of memoranda or the expiration of the period for the filing
A: Yes. The petition for writs of certiorari and prohibition are directed only to
thereof the court finds that the allegations of the petition are true, it shall render
tribunals that exercise judicial and quasi-Judicial function.
judgment for the relief prayed for or to which the petitioner is entitled.
Requisites of Certiorari
The court, however, may dismiss the petition if it finds the same to be patently 1. The writ is directed against a tribunal board or officer exercising judicial
without merit, prosecuted manifestly for delay, or that the questions raised therein and quasi judicial function
are too unsubstantial to require consideration. (8a) a. Judicial: Power to determine what the law is and what legal rights
of the parties undertake to determine these question. It also
Section 9. Service and enforcement of order or judgment. — A certified copy of the includes the power to adjudicate and determine the rights of the
judgment rendered in accordance with the last preceding section shall be served parties.
upon the court, quasi-judicial agency, tribunal, corporation, board, officer or b. Quasi-Judicial Function: Applies to action or discretion of public
person concerned in such manner as the court may direct, and disobedience administrative officers which are required to ascertain facts, hold
thereto shall be punished as contempt. An execution may issue for any damages or hearing and draw conclusion as basis of official function
costs awarded in accordance with section 1 of Rule 39. (9a) EXPANDED SCOPE OF CERTIORARI: Includes the raising of constitutional issue that
reviews and nullifies the act of the legislature and executive.

Jurisdiction :

10
Note: WITH RESPECT TO THE SC: The power is broader in scope and in breach and original jurisdiction in exercise its appellate
the writ of certiorari or prohibition may be issued to correct errors of jurisdiction accordance with its jurisdiction and power of
committed not only by the tribunal, corporation , board or officer exercising quasi power to control and review
judicial function or ministerial function but to set aside a right or to restrain any act of supervision over the
grave abuse of discretion amounting to lack of excess jurisdiction on the part of any proceeding of the lower
branch of the government even if the latter does not exercise quasi judicial or courts
ministerial function. Parties Parties include the lower Original parties to the
A direct recourse to the SC is also proper when there are special or important reason court or quasi judicial action
set forth in the petition or when the constitutionality of the law is of paramount agency that issued the
importance assailed order
Motion for No need for motion for
2. Such tribunal board or officer has acted without or in excess jurisdiction or reconsideration for there reconsideration why is
with grave abuse of discretion amounting to excess or lack of jurisdiction is no other speedy an MR no longer needed.
a. Without jurisdiction: When the respondent does not have legal remedy
power to determine the case Error of jurisdiction Pure question of law
b. Grave abuse of discretion: When the respondent acts in a Quasi Judicial ( not
capricious, whimsical and arbitrary exercise of power included Ministerial
c. Excess Jurisdiction : When the respondent being clothed with the ministerial can be
power to determine the case oversteps his authority as corrected through
determined by law. mandamus)
3. There must be no appeal or other plain, speedy and adequate remedy in the
ordinary course of law.
a. When appeal is available to the aggrieved party the action for
certiorari will not prosper even if there is grave abuse of A petition for review on certiorari A rule 45 petition for certiorari under
discretion amounting to lack of excess jurisdiction. under Rule 45 may be treated as Rule 65 if the subject of the recourse
petition on certiorari under Rule 65 was one of jurisdiction or the act
complained of is one where it was
Petition for Certiorari Appeal on certiorari( 45)
perpetrated with the court with GADALEJ
(65)
Nature 1. Remedy designed for 1. Where the error is not
the corrections of error of one of jurisdiction but of A Petition on certiorari under Rule 65 1. The petition for certiorari was filed
jurisdiction and not an error of law or fact may be treated as a petition for within the reglementary period within
errors of judgment which is a mistake or an certiorari for review on certiorari under which to file a petition for certiorari
error of judgment appeal Rule 45 2. Errors of judgment are averred
is the remedy
Action An original and Merely a continuation of Appeal 7 Certiorari
independent action that the original suit
is not a part of the trial
that had resulted in the This is a remedy used to correct error in This is a remedy used to correct the
rendition of the judgment judgment error of jurisdiction
or order complained of
Role of The higher court The higher court uses its The higher courts
The CA exercises its appellate The higher court uses its original
7

11
 jurisdiction and power of review jurisdiction in accordance with its
power to control and supervision over Certiorari will not lie against a loss Appeal
the proceeding of the lower court General Rule: Certiorari is only available when there is no appeal or other plain or
speedy and adequate remedy in the ordinary course of law.
Exception:
A continuation of the original suit An original and independent action that 1. When public policy and the advancement of public welfare so dictate
is not a part of the trial that had resulted 2. When the broader interest of justice so require
in the rendition of the judgment or 3. When the writs issued where null and void
order complained of. 4. When the questioned order amounts to an excessive oppressive exercise of
judicial authority
5. When the appeal is not a plain and speedy and adequate remedy.
Original parties to an action Aggrieved party ( who thereby becomes General Rule: before filing a SCA on certiorari should first have moved for the
the petitioner) reconsideration of the court or quasi judicial body decision.
Exception:
1. When the challenged order is a public nullity
Only judgments or final orders and An original action for certiorari may be 2. When the case involves matters of extreme urgency
those that the Rules of court so declare directed against an interlocutory order 3. When the issue raised is one purely of law
are appealable. of the lower court prior to an appeal 4. Where the public interest is involved
from the judgment or where there is no 5. When the question raised in the certiorari petition had been promptly raised
plain and speedy and adequate remedy argued , substituted to the respondent court or body and passed by it

Filed within fifteen days from the notice Filed within fifteen days from the notice P filed a collection case against D before the RTC.P won the case and D filed a
of judgment or final order appealed of judgment or final order or of the notice of appeal. P then filed with the RTC a motion for execution pending appeal
from ( this must be filed within thirty denial of the petitioner’s motion for new on the ground that he was posting a bond to indemnify D for any damages that may
be caused due to the execution and on the ground that the appeal of D was flimsy
days from the said notice of judgment trial or motion for reconsideration
and dilatory. After due notice and hearing the RTC granted the petition
or final order)
a. Was the granting of the motion for execution pending appeal proper?
The period shall be counted from the Must be filed not later than sixty days b. What is the remedy against D against the execution?
Answer:
denial of the motion from the notice of judgment order or
1. The mere posting of the bond is not a ground for the issuance of the
resolution discretionary execution otherwise execution pending appeal would issue as
a matter of course. Likewise the ground that appeal is dilatory is not a good
A motion for reconsideration is not A motion for reconsideration is ground otherwise the court would be virtually pre-empting the appellate
court decision on appeal.
required prior to the filing of the required prior to the filing of the
2. D may file an SCA for certiorari to set aside the order granting execution
petition for certiorari in order to afford petition for certiorari in order to afford pending appeal . The order was issued with grave abuse of discretion
the tribunal an opportunity to correct the tribunal an opportunity to correct amounting to lack of excess jurisdiction. Appeal although available to D is
the alleged error. the alleged error. no the adequate remedy as the writ was already issued.

Remedies of Appeal and Certiorari are Mutually exclusive When to file the petition:

12
Gen Rule: This must be filed within 60 days from the notice of judgment, order or
resolution or from notice of the order denying the motion for a new trial ( Neyphes Rule 41 of the Rules of Court . An appeal may e taken from judgment or final order
Rule) that completely disposes of the case as to particular matters when declared by the
XPN: 1. Most persuasive and weighty reason courts to be appealable. Rule 65 on the other hand can only be issued when there is a
2. Good faith of the defaulting party by immediately paying within a reasonable time grave abuse of discretion amounting to lack of excess jurisdiction.
from the time of the default
3. the existence of special or compelling circumstances
Appeal to Ca from RTC Certiorari
4. merits of the case
45. the existence of special or compelling circumstance
6. lack of showing that the review is merely frivolous This is a remedy used to correct error in This is a remedy used to correct the
judgment error of jurisdiction
Parties to a petition

1. General Rule: A person not a party to the proceedings in the trial court The CA exercises its appellate The higher court uses its original
cannot maintain an action for certiorari in the CA or the SC to have the jurisdiction and power of review jurisdiction in accordance with its
ordre or decision of the trial court reviewed.
power to control and supervision over
Exception : Peculiar circumstance
Example: When the SRMO become involved in its own capacity only when the RTC the proceeding of the lower court
ordered it to return the money that it received on behalf of its client. The order of
reimbursement was directed to SRMO in its personal cpaaicty and not as counsel of A continuation of the original suit An original and independent action that
the parties. That SRMO is being required to reimburse its own coffers is sufficient for
is not a part of the trial that had resulted
it to have standing.
in the rendition of the judgment or
Q: Where should the SCA for certiorari seeking to set aside an interlocutory order order complained of.
of the RTC in a local tax cases be filed? With the CA or CTA?
A: The CTA, The power to f the CTA includes the power to determine whether there
Original parties to an action Aggrieved party ( who thereby becomes
is a grave abuse of discretion on the part of the RTC in issuing an interlocutory order
in cases falling within the exclusive appellate jurisdiction of the tax court. the petitioner)

Ordinary appeal ( 41)- Petition for review (45)- Appeal by certiorari Only judgments or final orders and An original action for certiorari may be
law or facts error of Pure question of law those that the Rules of court so declare directed against an interlocutory order
Judgment (65) are appealable. of the lower court prior to an appeal
from the judgment or where there is no
plain and speedy and adequate remedy
The appeal to the CA in The appeal to the CA in In all cases where only
cases decided by the RTC cases decided by the question of law are
in the exercise of its RTC in the exercise of its raised or involved the Filed within fifteen days from the notice Filed within fifteen days from the notice
original jurisdiction appellate jurisdiction appeal must be to the of judgment or final order appealed of judgment or final order or of the
Supreme court by from ( this must be filed within thirty denial of the petitioner’s motion for new
petition for review on days from the said notice of judgment trial or motion for reconsideration
certiorari under Rule 45 or final ordre)

13
The period shall be counted from the Must be filed not later than sixty days original parties to the action and the against the lower court or the quasi
denial of the motion from the notice of judgment order or lower court and the quasi judicial judicial agency
resolution agency cannot be impleaded

A motion for reconsideration is NOT A motion for reconsideration is The purpose of appeal the prior filing of The higher court exercises the power of
required prior to the filing of the required prior to the filing of the the MR is not required control , supervision over the
petition for certiorari in order to afford petition for certiorari in order to afford proceedings of the lower court.
the tribunal an opportunity to correct the tribunal an opportunity to correct
the alleged error.- NOT REQUIRED the alleged error.
Q: When the petitioner filed a motion to lift the order of default and a motion for
new trial to set aside default judgment but before it can be resolved the petitioner
brought this case through a petition for certiorari and injunction without giving the
respondent court opportunity to pass upon the said motion is this correct?
Rule 45 : Petition for review on Rule 65: Petition for certiorari A: No .Not every error of the proceeding constitutes as grave abuse of discretion. Here
certiorari the act is premature and the respondent had no jurisdiction over the case.

1. The petition is based on question of 1. The petition raises the issue on

law whether the lower court committed IV. PROHIBITION
grave abuse of discretion and lack of
excess jurisdiction 1. RULES OF COURT, Rule 65; Section 2
Definition:

A petition for review on judgment May be directed against an

An extra ordinary remedy by which an aggrieved person prays for judgment
award, final order on the merits interlocutory order of the court prior to
commanding a tribunal, corporation board officer or person whether exercising
appeal from judgment or where there is judicial , quasi-judicial or ministerial function to desist from further proceeding in an
no appeal or any other plain ,speedy or action or matter on the ground that such proceeding are without or in excess of its
adequate remedy jurisdiction or with grave abuse of discretion.

Made within the reglementary period May be filed not later than 60 days from Extraordinary Remedy: Because it is only available when there is no appeal, or plain
of appeal the notice of judgment, order or and speedy and adequate remedy in an ordinary course of law.
resolution to be sought
Ex: In the exercise of power to demolish and evict illegal structure pursuant to RA
7279 the respondent are clearly not exercising judicial or quasi-judicial powers. Both
Stays the judgment, award or order Does not stay the challenged judicial ad quasi judicial powers Both the judicial and quasi judicial function involve
proceeding unless a writ of preliminary the determination of what the law is and what the legal rights of the contending
injunction or a TRO is issued parties are with respect to the matters in controversy and o the basi thereof and the
facts obtaining the adjudication of their respective rights.

The petitioner and respondent are The parties are the aggrieved party
Certiorari Prohibition

14
 To annul the proceeding had without Preventive remedy whose fuction is to 3. There is no appeal, or any other speedy and adequate remedy in the ordinary
jurisdiction or in the excess of restrain the doing of some act about to e course of law
jurisdiction or with grave abuse of done. It is not a remedy for acts that are 4. Like a petition for certiorari, the petition for prohibition shall be accompanied by a
discretion. Certiorari operates on acts already accomplished. certified true copy of the judgment or order subject of the petition , copies or all
already consummated pleadings and documents relevant and pertinent thereto and a sworn certification of
Directed only against the judicial or Directed against judicial quasi judicial non forum shopping.
quasi judicial acts or ministerial acts
Availability of other remedies: If the petitioner has other remedies like appeal, such
fact is generally held to be sufficient reason to deny the writ.

Premature Resort to Prohibition: Not available against a mere resolution.

Injunction Prohibition
1. Ministerial act: One where the officer or tribunal performs in a given state
Generally directed against a person not Directed against a tribunal ,corporation
of facts in the prescribed manner in obedience to the mandate of legal
exercising judicial quasi judicial or board officer or person exercising
ministerial function judicial quasi judicial or ministerial authority and without regard to or the exercise of his own judgment upon
function propriety or impropriety
This may be a main action itself or just a Always the main action V. MANDAMUS
provisional remedy in the main action
1. RULES OF COURT, Rule 65, Section 3

Definition: A special civil action wherein the petitioner prays that the judgment be
rendered commanding a tribunal, corporation, board, officer or person to perform an
Prohibition Mandamus
act which the law specifically enjoins as a duty resulting from an office trust station
Has the object of preventing the To compel a tribunal, corporation board
and performance. This is also available against a person who unlawfully excludes
tribunal , corporation board or officer or officer or person to comply with a
another from the use or enjoyment of the right or office to which the other is entitled.
or person from executing an act that is ministerial duty
not within or in excess of its jurisdiction
A purely negative remedy for it Affirmative remedy for it commands Mandamus Quo Warrantoo
commands that something is to be left that something must be done Merely excludes the petitioner from an If the respondent claims any right to
undone officer without usurping intruding into office and usurps, intrudes into or
or unlawfully holding office unlawfully holds it against the
petitioner appropriate remedy is quo
Diaz v. Sec: A petition for prohibition is a proper remedy to prohibit or nullify acts of
warranto.
the executive officials that amount to usurpation of legislative authorities

Requisite: ( prohibition – something left undone)

Requisite:
1. The impugned acts must be that or a tribunal, corporation board of person
exercising judicial quasi judicial, judicial or ministerial function
2. The tribunal , corporation board or person must have been acted without or in 1. The plaintiff has a clear legal right to the act demanded
excess of jurisdiction or with grave abuse of discretion amounting to lack of excess a. Note that the mandamus does not establish a legal right but
jurisdiction merely enforces one that is clearly established

15
 b. The defendant unlawfully neglects the performance of a duty principle of administrative guidelines. Its determination is discretionary demanding
enjoined by law an exercise of independent judgment on the part of certain public officer. The grant of
c. That the act perform is ministerial and not discretionary the informer reward for recovery of tax offense is effectively a quasi judicial function
d. That there is no appeal or other plain and speedy adequate which determines question o fact to which legislative policy is to apply and is decided
remedy in the ordinary course of law.. in accordance with standards laid down by law itself in enforcing and administering
the same.
Ministerial Act Discretionary act
Q: An order of regional trial court that sets aside the case for pre-trial was duly sent
1. One which an officer or tribunal One which the law imposes a duty to
to and received by the plaintiff and defendant and their respective lawyer. On the
performs in a given state of facts in a the public officer and gives him the
date of pre-trial plaintiff and his counsel did not appear and the defendant moved
prescribed manner in obedience to the right to decide how or when the duty is
for the dismissal of the complaint. The court denied the motion and re-set the pre-
mandate of a legal authority without to be performed
trial. Can defendant successfully sue for mandamus before a higher tribual.
regard to or exercise of his judgment
A:
upon the propriety or impropriety of
Gen Rule: Mandamus will not lie to No. The defendant cannot successfully sue for mandamus before a higher tribunal.
the act done
compel Discretionary acts: The Supreme Court held that the trial court has the discretion but not the duty to declare a
respondent may only be directed by party non-suited Under Rule 65 mandamus only lies to compel the performance of
mandamus to act but not to act in one ministerial act but not involving discretion.
way. It is available to compel action
when refused even in matters Q: A filed a complaint against B for recovery of title and possession of land situated
involving judgment and discretion but in Makati with the RTC. B filed a motion to dismiss on the ground of improper
not to direct the exercise of judgment venue. The RTC pasig denies B motion to dismiss which obviously was incorrect.
in a particular matter. Alleging that the RTC judge unlawfully neglected the performance of an act which
the law specicially enjoins as a direct result from an office. B files a petition for
mandamus against the judge . Will the mandamus lie?
Ex to the Ex: Mandamus is the proper
A: Yes. The SC has held that mandamus may not directed against discretionary act.
remedy in cases where there is a gross
Prohibition not mandamus is the proper remedy when a motion to dismiss is
abuse of discretion manifest injustice or
improperly denied.
palable exercise of authority.
Q: May mandamus may lie to compel the performance of contractual duties?
Nb: When the act Is discretionary, the respondent can only be directed by the A: No. Contractual duties are not specifically enjoined by law but by agreement
mandamus to act but not to decide in one way to the other. between the parties.

Q: In a petition for mandamus may the petitioner recover damages from the
Q: May a transferee of shares of stock initiate an action for mandamus to compel
the corporation to record the transfer of shares in its stock and transfer book as well respondent.
A: Yes. Aside from praying for a judgment compelling the respondent to perform the
as to issue new stock certificate in his name?
A: Yes. The registration of the transfer share of stock and the consequent issuance of ministerial duty the petitioner may also pray that the court order the respondent to
pay damages sustained by the petitioner by reason of wrongful acts of the respondent.
the new stock certificate to the transferee is a ministerial duty. Note that the
mandamus does not lie solely against public officer but also private individuals as
When shall the petition shall be filed.
well.
1. The petition may be filed not later than sixty days from notice of judgment,
order or resolution. In case for a motion for reconsideration or new trial is
Q: Does mandamus lie to compel the payment of informer reward?
A: NO. The entitlement of informer’s reward is not a ministerial matter. Its timely filed whether such motion is required or not the sixty day period
shall be counted from notice of denial of said motion.
determination requires a review of evidentiary matters and application of statutory

16
 a. The sixty day period would not apply in case there is no upon its expiration. The failure of the respondent to proceed with the principal case is
judgment, order or resolution to be assailed as for instance in a ground for administrative charge.
mandamus petition where what is being assailed in performance However if a person is adjudged for direct contempt and he avails himself of the
of ministerial duty. remedies of certiorari or prohibition the execution of the judgment becomes
Exception: suspended pending the resolution of the petition provided that a bond has been filed.
1. Petition for certiorari to restrain or set aside action taken by the Monetary
board of the BSP in respect to conservatorship , receivership and Q: Abueva et at are members of independent commission asking for the vouchers
liquidation proceeding should be filed within ten days from receipt by the pertaining to the expenditures and payments made out of the funds appropriate by
board of directors of the institution of the order directing conservatorship , independent commission. Despite the voucher being in Dizon’s custody the later
receivership and liquidation. refused to comply with the request of Abueva.A mandamus was then filed calling
2. The petition for mandamus based on unlawful exclusion of public office for the judicial department of the government to direct the official of the executive
must be filed within one year on such exclusion. to see and examine the voucher. The issue is whether mandamus can be issued?
A: NO. There was no allegation that the there was a neglect in the performance of an
Q : May a motion for extension of time to file a petition under Rule 65 be filed? act which he law enjoins as a duty upon him resulting from his office which excluded
A: Yes. The motion for extension of time can be filed. Absent a petition under Rule 64 the plaintiff from the use and enjoyment of the right and office to which he is entitled .
are allowed subject to the court sound discretion but only under exceptional and Therefore the judicial department may not interfere by mandamus or otherwise for
meritorious cases. Not only the SC but other courts as well may grant the extension purpose of control or direct the action of the official of a coordinate department of the
provided that the matter is exceptional and meritorious cases government

Where should the petition under Rule 65 be filed?

1. MTC or corporation a board an officer of person : RTC that exercise
jurisdiction over the territorial area QUO WARRANTO
2. CA or Sandiganbayan even if the same is in aid for court’s appellate
jurisdiction
3. Quasi Judicial agency: the petition is to be cognizable by the CA. 1. 1987 CONSTITUTION, Article III, Section 9
4. Election cases: The act or omission of the MTC or the RTC the petition shall 2. RULES OF COURT, Rule 66;
be filed exclusively with the COMELEC
Respondent and cost in certain cases
Q : Who should be joined as respondent in Rule 65 petition? Requisite Quo Warranto
A: Petitioner shall join as private respondent or respondent with such public
respondent or respondents the person or persons interested in sustaining the Subject Matter: An action for the usurpation of a public office ,position or franchise.
proceeding.
Q: What is the effect when the parties are not joined?
1. Person those who usurps intrudes or unlawfully holds or exercise a public office,
A: Neither misjoinder or non joinder of parties is a ground for dismissal of an action.
position, or franchise
Thus the trial court should have ordered the petitioner to ad private complainant as a
Article XI Section 2: Allows for the institution quo warranto against an impeachment officer.
respondent to the case.
After all a quo warranto petition is predicated on grounds distinct from those impeachment.
The former questions the validity of a public officer’s appointment while the latter indicts him
Q: Will the filing of the petition under Rule 65 interrupt the course of petition in
for so-called impeachable offenses without questioning his title to the office he holds
the principal case?
2. Public Officer: who does not suffers an at which by provision of law constitute as a
A: No. Unless a TRO or writ of preliminary injunction was issued against the
ground for forfeiture of office
respondent from further proceeding in the case. The public respondent shall proceed
3. Association: which acts as a corporation within the Philippines without legally
with the principal case within ten days from the filing of the petition for certiorari
incorporated or without lawful authority so to act.
with a higher court, tribunal or absent a TRO or writ of preliminary injunction or

17
Q: What is the difference between Quo warrant and Mandamus a. He must file a petition claiming that he is entitled to public office
Quo Warranto Mandamus or position which was usurped or unlawfully held of exercised by
If the respondent however claims any If the respondent merely excludes the another person.
right to the office and usurps, intrudes petitioner to the office WITHOUT
into or unlawfully holds it against the ursurping intruding into or unlawfully Jurisdiction: INDIVIDUAL: 1. SC 2. CA 3. RTC where the respondent reside
petitioner holding the office. Exception: Solicitor General : Brought before the Regional Trial Court in Manila.

Against whom may quo warranto be brought? Classifications

1. A person who usurps, intrudes into or unlawfully holds or exercise a 1. Mandatory- Brought by the Solicitor General or public prosecutor when
public office, position of franchise a. Directed by the President
2. A public officer who does or suffers an act which y provision of law b. Upon complaint or otherwise he has good reason to believe that quo
constitutes as ground for the forfeiture of office warranto can be established by proof
3. An association which acts as a corporation within the Philippines without 2. Discretionary: brought by the Solicitor general or a public prosecutor at the
legally incorporated or without lawful authority to do so. requestor upon the relation of another person provided that there must be
a. The QUO Warrant proceeding here is within the exclusive a. Leave of court
jurisdiction of the RTC being intracorporate dispute. b. Indemnity bond
Q: Who may commence the petition Quo Warranto in elective office Quo warranto in appointive office
1. Solicitor General Election law Rules of court
2. Public prosecutor The issue is eligibility or ineligibility of The issue is the legality or illegality of
3. A private individual or a person claiming to be entitled to public office person elected or his loyalty or the occupancy of the office by virtue of
or position usurped or unlawfully held or exercised by another may disloyalty of the republic an appointive
bring an action in his own name. The petition is brought in the The petition is brought in the SC, CA or
Quo Warranto commenced by Quo Warranto Commenced by COMELEC RTC and the MTC as the the Regional Trial Court
PRIVATE INDVIDUAL OFFICE OF THE SOLICITOR case may be
GENERAL AND THE PROSECUTOR. The petitioner may be any voter even if The petitioner is a person claiming to be
The Petitioner must prove his right to It is not necessary that there be a person he is not entitled to office entitled to office
the office in dispute claiming to be entitled to the office The winner is the qualified candidate The court determines who is legally
*Expectant right: Petitioner judges who alleged to have been usurped. with the most number of votes if the appointed and can be ought to declare
have an expectant not clear right to candidate who garnered the highest the person entitled to occupy the office.
Sandiganbayan position are not proper number of vote is actually ineligible for
parties to file a petition for quo warranto office
under Rule 66 ( Aguinaldo vs Aquino).
Commenced by the Government
Judgment in Quo Warranto Proceedings
1. Directed by the president or upon complaint or otherwise he has good
reason to believe that the solicitor must commence the action
2. The Solicitor general or public prosecutor may bring the action at the 1. In case of Usurpation of a public office, the respondent is found guilty, the
request and upon the relation of another person with permission to the judgment must include the ff :
court a. The respondent is ousted from or excluded from office
a. The officer may first require an indemnity for the expenses and b the petitioner or relator shall recover his cost . The damage must be
cost of action sought t in n action to be filed one year after the entry of judgment
b. The court may direct that notice be sent to the respondent and establishing the right of the petitioner to office in question.
that he be given opportunity to be heard on the application. c. Such further judgment determining the respective rights in and to public
Commenced by an Individual position or franchise of all the parties to action as justice requires
1. The petition must be commenced in his own name

18
2. Courts may render judgment for cost against either petitioner, respondent or against the public officer or employee for his ouster from office unless the same be
person claiming to be a corporation commenced within one year after the cause of such ouster or the right of the
a. He may take upon himself the execution of office after taking an oath of petitioner to hold such office or position. May the petition for quo warranto be
office and executing the required bond .
dismissed?
b. Demand from the respondent all the book and papers appertaining to
office to which the judgment relates
c. The person adjudged entitled to office may recover damages by reason of A: No. The one year limitation is not applicable when the quo warranto is filed by the
usurpation state at its own instance through the Solicitor General. Here the petitioner is not a
mere private individual pursuing public interest but the government itself seeking
Period of Filing : Prescriptive period for brining the case for quo warranto relief for a public wrong.
Gen Rule: An action for quo warranto by reason of ouster shall be filed within one
year after the cause of such ouster, the right of the petitioner to hold such office or Q: If the principal of the public high school illegally replaced by another is there a
position arose. requirement that prior to gong to court administrative remedies must first be
considered?
Exception:
1. The one year period DOES NOT APPLY when the quo warranto is filed by the
state at its own instance through the Solicitor General. However the one year period A: No. It is not a requirement that he should first exhaust administrative remedies.
APPLY to a quo warranto even if filed by the Solicitor General but at the request or The SC held that no one is compelled to exhaust administrative remedies since
relation by another person. public interest requires that the right to public office must be determined as
expeditiously as possible.

Impeachment Quo Warranto Final and Executory Judgment

These are political in nature Judicial in nature belonging to the
courts General Rule: The execution of the judgment of the court becomes a matter of right
This is exercised by the legislative as A judicial determination of eligibility upon the expiration of the period to appeal and no appeal was duly perfected
representatives of the sovereign to or validity of election in appointment
vindicate the breach of trust reposed by of pubic official based on Exception: Whenever the circumstance transpire after the judgment rendering the
the people in the hands of the public predetermined rules
execution as unjust or inequitable.
officer
Acts of omission even if it relates to a Act or omission committed prior to or
qualification of integrity being a at the time of appointment or election Q: A quo warranto judgment directing the reinstatement of the respondent as
continuing requirement be nonetheless relating to an official’s qualification to regional director of the NCC became final and executory. However it was later
committed during the incumbency of a hold office as to render succeeding discovered that the respondent falsified his bachelors degree and thus become
valid appointed and or validly elected appointment or election invalid is ineligible may the judgment still be enforced?
official cannot be subject to quo properly the subject of a quo earranto
warranto petition provided the requisite for the A: No General Rule: The execution of the judgment of the court becomes a matter of
commencement thereof is present
right upon the expiration of the period to appeal and no appeal was duly perfected
Exception: Whenever the circumstance transpire after the judgment rendering the
Q: In a quo warranto case filed by the Republic vs Sereno seeking for her ouster execution as unjust or inequitable. Here there was a supervening circumstance that
from the position of Chief Justice of the Philippines the respondent moved to the respondent had falsified his bachelor degree and become ineligible for the
dismiss the petition on the ground of prescription invoking Section 11 Rule 66 that position. To still order the execution of judgment is unjust .
provides that nothing contained in this rule is construed to authorize and action

19
EX: The supervening circumstance that is discovery that the respondent falsified the expropriation case is determination of the government right to private
bachelor’s degree and thus had been ineligible for the position. property for public use.
4. Who May Exercise the Power
VI. EXPROPRIATION
Sec. 19, LGC
1. The state
1. 1987 CONSTITUTION, Article III, Section 9
2. Local government
2. Republic Act No. 10752, Section 6\
3. Public Utilities
3. Definition and Scope
a. Stages
The expropriation of property consists of two stages.
Sec. 9, Art. III; Sec. 18, Art. XII; Secs. 4, Art. XIII; Sec. 22,
Art.
1. DETERMINATION OF AUTHORITY Determination of the plaintiff
authority to expropriate , including the inquiry into the propriety of
Police Power Power of Eminent Domain – this is an
expropriation, its necessity and public purpose of expropriation. The
inherent power of he state, just
court will issue an order declaring that the plaintiff has the right to
compensation is merely a limitation of
expropriate for the public use and purpose.
he exercise of the government to such
2. ASCERTAINMENT BY COURT OF JUST COMPENSATION: Taking
power.
into account the report of the commissioner. The court renders a
The power of the state to promote The inherent power of the state to
judgment in accordance with the action it has taken upon the report.
public welfare by restraining and condemn public property upon the
regulating the use of liberty and payment of just compensation
property
The property taken Is usually noxious The property interest is appropriated
or against public welfare – hence there and applied to some public purpose b. Requisites for Exercise
is no compensation that is paid there is a need to pay for just 1. The filing of a verified complaint which shall
compensation a. State with certainty the right and the purpose of expropriation
The use is merely prohibited, regulated The exercise of eminent domain , b. Describe the real and personal property sought to be expropriated
and restricted in order to promote property are appropriated and applied c. Join as defendant all person owning or claiming to own or
public welfare – there is no in some public purpose and thus there occupying any part thereof or interest therein showing so far as
compensable taking to speak of hence is a need for just compensation. practicable the separate interest of the defendant.
there is no need for payment to be
made Q: What happens if the title to the property is in the name of the Republic may an
action for expropriation lie?
Examples” A: Yes. Here, if the title appears to be in the Republic of the Philippines although
1. Easement of right of way: The acquisition of an easement of right of way falls within occupied by public individual or the title is otherwise doubtful since it cannot be
the purview of eminent domain. determined with accuracy who are the real owners the averment to that effect must
2. Where the right of easement perpetually deprives the defendant of their proprietary be made.
rights then there is taking which entitles the defendant to payment of just
compensation at the time of taking. When shall the plaintiff have the right to enter or take possession of the property?
1. Real Property
Jurisdiction: a. Upon the filing of the complaint : The plaintiff has the right to
take or enter into possession of real property If there is a deposit
1. Jurisdiction over eminent domain cases lies with the RTC. An expropriation of amount equivalent to the ASSESSED value of the property
case is one subject incapable of pecuniary estimation as the subject of Mode of Legal Tender : Money except when the court authorizes Time Deposit

20
 What is the responsive paper or pleading which the defendant may file an
2. Expropriation of right of way site or location for the national government expropriation suit?
infrastructure project. 1. Notice of appearance and manifestation : If there is no objection or defense
a. Upon the filing of the complaint , the implementing agency shall to the action or the taking of his property the defendant may serve a notice
deposit to the court in favor of the owner the amount equivalent of appearance and manifestation to that effect designating or identifying the
to: property in which he claims to be interested within the time stated in the
i. One hundred percent of the value of the land based summons. He shall be entitled to the notice of all proceeding
on the current relevant zonal valuation of the BIR 2. Answer: This is to e filed if the defendant has any objection as to the filing
issued not more than three years prior to the filing of of or allegation in the complaint or objection as to the taking of property this
expropriation complaint must e served within the time specified in the summons
ii. The replacement court at current market value of the 1. No counterclaim ,cross claim or third party complaint are alleged in the
improvement is determined by : answer
1. Implementing agency a. Those defenses and objection not filed in the answer are deemed as
2. Government financial institution waived however the court in the interest of justice permit amendments
3. Independent property appraiser accredited to the answer provided that it is not made later than ten days from the
by the BSP filing of the answer.
4. Current market value of the crops and threes Note : A motion to dismiss need not be filed any objection, defense the defendant may have
located within the property as determined by taken must be set forth in the answer.
the government financial institution.
b. The court issues to the implementing agency an order to take
possession over the property and start the implementation of the
project. Q: The Republic of the Philippines through Department of Public Works and
Highways filed with the RTC a complaint for the expropriation of the parcel of land
3. In expropriation by local government unit owned by Jovito. The land is to be used as an extension of the national highway.
a. The local government unit may immediately take possession: Attached to the complaint is a bank certificate showing that there is on deposit with
Upon the filing of expropriation proceeding and upon the making he Land Bank of the Philippines an amount equivalent to the assessed value of the
of deposit with the proper court at least 15% of the fair market property. Then DPWH filed a motion for the issuance of writ of possession. Jovito
value of the property based on equivalent tax declaration. filed a motion to dismiss the complaint on the ground that there are other
4. In case of personal property properties which better serve the purpose
a. Provisionally ascertained : and the amount to be deposited is a. Will Jovito Motion to dismiss prosper?
fixed by the court b. As judge will you grant the writ of possession prayed for by the DPWH
b. After deposit, the court orders the sheriff or other officer to place Answer:
the plaintiff in possession of the real or personal property and 1. No it will not . The SC held that the motion to dismiss cannot be filed when
submit a report to the court with service to the parties. it cannot be raised in the answer.
If not Provisionally ascertained: The plaintiff shall have a right to enter upon the 2. I will not grant the writ of possession.In case of expropriation the law
property of the defendant upon the payment of the compensation fixed by the requires that the government in order that it will have the right to enter
judgment with legal interest from the time of taking of the possession of property or must pay the owner of the property 100% of the market value of the
after the tender to the defendant the amount fixed property. Here what is done was only to make a deposit of the amount equivalent
to the assessed value
Q: Is prior hearing required before the plaintiff may enter into or take possession of
the property involved?
A: No.What the law requires is a due notice but not a hearing Q: Is hearing required?

21
 1. Yes. If there is an objection or defense to the action of taking of his property taken and deduct therefrom the consequential benefit to be derived y the
or if no party appears to defend. owner of public use or purpose taken.
2. No. If there is no objection or defense to the action or taking of his property 4. A full and accurate report must be made by the commissioner of the
or if no party appears to defend. proceeding and the proceeding is not effectual until the court have
Can the order of expropriation be appealed? accepted their report and rendered judgment
1. Yes. A final order that sustained the right to expropriate can be appealed 5. Upon the filing of the commissioner report , the clerk of court serves
but this does not mean that the court is prevented from determining the just copies on all interested parties with notice that they are allowed 10 days
compensation to be paid to file objection
a. The party taking an appeal shall file a notice of appeal and a Report
record of appeal within thirty days from notice or order of 1. Accept the report and render judgment in accordance therewith
expropriation. 2. Recommit the report to the commissioner
3. Set aside the report and appoint new set of commissioner
Just Compensation: 4. Accept the report in part an reject it in part.
1. This pertains to the market value of the property plus consequential damages to
the property not taken less the consequential benefits to be derived by the owner
from public use or purpose of the property taken. ( The consequential benefit Inverse Condemnation
must not exceed the consequential damages) Here, the recovery of just compensation is filed by the property owner in the situation
COMPENSATION: Market value of the property + damages – Benefits wherein the state, local government unit or public utility seizes or takes the property
CONSEQUENTIAL BENEFITS : Actual benefits derived by the owner on the for public use without the filing of a complaint for expropriation. ( Instead of the
remaining portion of the land which are the direct and proximate result of the state , it is the property owner who is the one that initiated just compensation)
improvement as a result of the expropriation. - Here there can be no appointment of any commissioner this does not apply
When is just compensation determined? to inverse condemnation proceeding. When he government violates its own
1. Determined as of the date of the taking of the property or the filing of the procedural requirement it waives the procedure under Rule 67.
complaint,, whichever comes first. - Note: RA 8974: The payment of 100% Zonal value is applicable to inverse
Exception: condemnation proceeding .
1. Local Government Code: local government : Just compensation is based on - JUST Compensation: Determined at the time of taking even unjust the
the fair market value of the property at the time of taking. landowner will however be compensated by the interest, exemplary
2. Inverse condemnation: Determined at the time of taking damages and atty fee
Interest: Computed from the date of the taking of the property. Legal interest shall run FAIR MARKET VALUE
not from the time the complaint was filed but from the date of the issuance of the writ Definition: Price which the property would bring in a market of willing buyers and
of possession. willing sellers in the ordinary course of trade and neither operating under the
Procedure for the ascertaining just compensation pressure of constrains.
1. The court appoints not more than three competent and disinterested
person as commissioner and report to the court the just compensation for Q: May the right of the plaintiff to enter the property be suspended by an appeal from
the property sought to be taken ( This is mandatory upon the orer of the the judgment ?
expropriation appointment of commissioner A: No. Th right of the plaintiff to enter upon the property and appropriate the same
Note: The court need not consult the parties in expropriation case prior for public use or purpose shall not be delayed by appeal on judgment. However ,if the
to the appointment of the commissioner. appellate court determines that the plaintiff has no right to expropriation, the
Proceeding before the Commissioner judgment shall be rendered ordering the RTC to enforce the possession of the
1. Have the power to receive evidence and are authorized to administer property.
oath and hearing before them
2. The commissioner after due notice to the parties to attend may examine Who pays: All cost, including the commissioner fee are to be paid by the plaintiff .
the subject property and measure the same
3. The commissioner assess the consequential damages to the property not Judgment of Compensation: HOW Appealed?

22
A record on appeal is required in case of multiple or separate appeal. Here the confirmation of the foreclosure sale entity the right to redeem may be
judgment of just compensation still left something to be done by the trial court since it exercised until but not after the
has to determine just compensation with respect to Enriquez. Exception: registration of the certificate of sale or
- A record f appeal is necessary when there is multiple appeals in the same 1. Where the mortgagee is a bank, the foreclosure
case and to enable the rest of the case to proceed in the event that separate right of redemption may be exercised
and distinct issues are to be resolved by the trial court and held to be final within one year after the sale of Which in no case shall be more than three
Q: In an expropriation proceeding , the court rendered judgment awarding just property months after the foreclosure whichever is
compensation to the defendant landowner The government appealed may the earlier
landowner move for the exection pending appeal? 3. Mortgagee can move for the 3. Mortgagee has to file a separate
No. Public funds cannot be seized under writ of execution. deficiency judgment in the same action action for recovery
4. The buyer at public auction becomes 4. Buyer at a pubic auction becomes
absolute owner only after the sale is absolute owner only after the finality of
VII. JUDICIAL FORECLOSURE OF MORTGAGE confirmed an action for consolidation of
ownership
1. RULES OF COURT, Rule 68 5. Mortgagee need not be given SPA Mortgagee is given SPA in the
Foreclosure of Mortgage : A proceeding whereby the property subject to the real mortgage contract.
estate mortgage is sold at a public auction for the payment of principal obligation of
the mortgagee. . Jurisdiction/ Venue
1. Real Action: It involves real property hence it is the assessed value of the
How Is JUDICIAL FORECLOSURE MADE property that determines jurisdiction. The trial court’s order confirming the
1. Judicially foreclosure sale divest the mortgagor or junior lien holder of his rights over
2. Extrajudicially the realty and vest the same in the purchaser.
Ratio: Here in the foreclosure, there is divestment of the mortgagor’s right over the
May the Foreclosure be done extrajudicially? reality by vesting it with the purchaser.
A: Yes. It is required however that a special power of attorney is inserted in or 2. Venue: Where the real property is located
annexed to the deed of mortgage empowering the mortgagee to sell the land in the
public auction.
Note:A mere agreement to hold extrajudicial foreclosure is not enough it is a mere Complaint:
expression of their amenability to extrajudicial foreclosure as the means to foreclose 1. The date and due execution of the mortgage
the mortgage 2. Its assignments if any
3. The names and residences of the mortgagor and the mortgagee
Condominium Act: Unpaid assessment in accordance with duly registered 4. A description of the mortgaged property
declaration of restriction shall be and become a lien upon the condominium to be 5. A statement of the date of the note or other documentary evidence of the
registered with the registry of deeds of the city where the project is located. obligation secured by the mortgage
6. The amount claimed to be unpaid
. 7. The names and residences of all person having or claiming and interest in
Judicial Foreclosure ( Rule 68) Extra Judicial Foreclosure the property subordinate in the right of the holder of the mortgage all of
1. The complaint is filed with the court 1. There is no complaint filed whom shall be made defendant in an action.
2. There is only equity of redemption. 2. There is a right of redemption. Junior Encumbrance
There is no right of redemption except Mortgagor has the right of redemption X mortgaged his real property to C to secure a loan obtained by X to C. The
when the mortgage is a banking for one year from the registration of the mortgage was registered. Subsequently X also mortgaged the same property to D
institution, equity of redemption is 90- sale ( except when the mortgagee is a for another loan and the mortgage was also registered. X failed to pay both loans. C
120 days and any time before the bank and the mortgagor is a judicial then filed a foreclosure complaint against X. C did not implead D . After due trial

23
the court rendered judgment in favor of C and confirmed the auction sale of Appeal: Notice of appeal and record on appeal within thirty days from the notice of
property. D filed an action to annul the judgment on the ground that he was the order.
indispensable party that is not impleaded Notice is required but the motion shall no longer be set for hearing an shall be
- If the Junior Encumbrance has been impleaded it would serve to foreclose resolved by the court within five days from the receipt thereof. The court upon
or extinguish the right of redemption as D will only be entitled to the motion shall order the property to be sold in a manner under the provision of Rule
residue 39. Note that the notice of foreclosure must also be given to the defendant
Rights of the Junior Encumbrance: (If he is not impleaded)
1. Right of redemption which must be exercised within one year from the date 6. Writ of possession: The purchaser or last redemptioner can file a court
of the registration of the foreclosure sale as he is a redemptioner. which ordered the foreclosure a writ of possession
General Rule: The Junior Encumbrancer need not be impleaded and is merely a 7. Deficiency Judgment: If the proceed of the foreclosure sale is not sufficient
necessary party . The mortgage may e foreclosed without impleading him and the plaintiff files a motion for the court to render deficiency judgment
prejudicing his rights.
Effects :
1. If impleaded : The junior encumbrancer is NOT entitled to the right of RIGHT OF FORECLOSURE VS EQUITY OF FORECLOSURE
redemption he or she is only entitled to the residue 1. Judicial: The is no right of redemption in judicial foreclosure. After the
2. If not Impleaded: There is a right of redemption one year from the time finality of foreclosure sale the mortgagor has no more right over the
of the registration of foreclosure sale. property
a. Exception: The foreclosure by a bank whether judicial or
extrajudicial the mortgagor has a period of one year from the
1. Judicial FORECLOUSRE registration of the foreclosure sale to redeem the property.
b. A junior mortgagee or junior lienholder who was not
Process impleaded has the right of redemption within one year from
Q: Is notice and hearing required for the motion of foreclosure sale? the registration of the foreclosure sale
A: The motion need not be set for hearing and is resolved within a period of five days 2. Extrajudicial: The period of redemption is one year from the
from the receipt thereof. The court upon motion shall order the property to be sold in registration of the foreclosure sale.
a manner and under the provision of Rule 39. a. Exemption: In case of extrajudicial foreclosure by the bank and
the mortgagor is a judicial person the period of redemption is
1. Filing of the Complaint: The mortgagee or his assignee files the foreclosure until the registration of the foreclosure sale or three months
complaint which set forth the matters after the foreclosure sale whichever comes earlier
2. Judgment on foreclosure : If the court finds that the facts set forth in the
complaint are to be true, it shall determine the amount due to the plaintiff
upon mortgage debt. Including interest and other charges 2.EXTRAJUDICAL FORECLOSURE
3. Equity of Redemption: The court order the sum found due be paid to the General Rule: The extrajudicial foreclosure the purchaser may file an ex parte motion
court or to the judgment obligee within a period of not less than 90 days nor for the issuance of writ of possession.
more than 120 days from the entry of judgment and that in default the Note: In judicial foreclosure the motion is a non litigious motion resolved within five
payment of the property is sold at public auction to satisfy judgment. days from receipt.
4. FORECLOSURE SALE : If there is a failure to pay on the part of the Exception: The transferee can file a motion for the issuance of the writ of possession
defendant the plaintiff files a motion for the foreclosure sale of the property however the right of issuance of writ of possession cannot be made ex parte
the sale is conducted by way of public auction in the manner and provision
of R 39 Deficiency
5. ORDER OF CONFIRMATION: The purchaser shall file a motion for the A judgment rendered by the court in favor of the plaintiff for the balance if
confirmation of the sale. This divest the right of the property of all the the proceed of the foreclosure sale are not sufficient. The plaintiff files with the court
parties to the action and to vest their right to the purchaser. praying that it renders a deficiency judmgnet

24
Appeal: The foreclosure involves multiple and separate appal taken by the filing of ownership of the property by paying having lien on the property.
the notice of appeal and record of appeal the debt within 90 to 120 day period
after the entry of judgment or even after
REAL AND PERSONAL ACTION: the foreclosure sale but prior to
General Rule : The judgment on foreclosure is a valid action for foreclosure is a quasi confirmation
in rem The price that needs to be paid is the The price purchase price differs
Exemption: Deficiency Judgmet : Directed against the mortgagor its is a personam debt amount depending on whether the entiy
action redeeming is a bank or not
 Note: Judicial entity which in 1. Bank
Surplus a. The amount due under the mortgage
no case shall be more than
three months after the deed
1. It is the duty of the mortgagee to return to the mortgage any surplus in the selling b. The interest rate specified in the
foreclosure which ever is
price during the foreclosure sale. mortgage
earlier.
Judicial Foreclosure Extrajudicial foreclosure c. The expenses incurred by the bank
1. Requires intervention of the court 2. No court intervention from the sale of property
2. There is only an equity of redemption 2. Right of redemption exist the
mortgagor has the right to redeem the 2. Non bank redemption
property within one year from the a. Full amount paid by the purchaser
registration b. 1% interest per month on the
3. Governed by rule 68 3. Governed by RA 3135 purchase price
4. There is deficiency 4. No deficiency judgment because c. Taxes assssed that the purchaser paid
there is no judicial proceeding d. 1% of the taxes assessed
5. Deficiency judgment is rendered on 5. Recovery of deficiency is through an
motion independent action there is no VIII. Partition
deficiency judgment Definition: Partition is the co-ownership over real property and terminated by resting
Exception Exception in each co-owner specific property or allotment.
1. Mortgagor may exercise the right of 1. Judicial person shall have the right
redemption within one year after the to redeem until but not after the When Filed: At any time , the action for partition does not prescribe, but if the co-
sale when the loan, credit or registration of the certificate of owner repudiates ownership and claims title over the property the remedial action is
accommodation is granted by the bank foreclosure sale with the register of not one for partition but for reconveyace.
deeds which shall in no case not more
than 3 months after the foreclosure. Jurisdiction: Jurisdiction depends on the assessed value of the property, if the assessed
This involves the filing of an This does not require the filing of an value exceeds P20,000 or P50,000 in Metro Manila then it would be with the RTC
independent action action which would have jurisdiction otherwise it is the MTC.’
Recovery is done by a mere motion for The recovery s done through an Eg: If the main purpose of the action is the annulment of a deed of adjudication and
deficiency judgment independent action . the declaration of plainitff as heirs with the partition being merely incidental to the
main action the action is one of pecuniary estimation and hence within the jurisdiction
of the RTC.
Equity of Redemption( judicial ) Right of redemption
*until the day the court redeems the *time of registration registered Phases of Partition
sale 1. Declaration of co-ownership
Right of the defendant mortgagor to The right of the debtor his successor or 2. The conveyance of his lawful share.
extinguish the mortgage and retain any of the creditor or any person

25
Q: May an action for partition be employed to settle the estate of the decedent? Partition : IN rel to Third person
A: Yes. Co heirs are co owners hence they may settle the estate extrajudicially or 1. Partition cannot prejudice , defeat or destroy the right or title of any person
judicially, the decedent must however died intestate since if he died testate the will claiming real estate involved by title under any other person or by title
must first be probated. paramount to the title of the parties among whom the partition may have
been made.
Outline Co -Owner:
1.Complaint: May file a complaint for partition setting forth the nature and the extent 1. The co-owner has the right tot ask for partition any time provided that there
of title and description of real estate is no actual adjudication of ownership of shares yet.
2.Trial
3.order of partition: Order the partition among themselves
a. Agree: Partition by agreement IX. FORCIBLE ENTRY & UNLAWFUL DETAINER
b.Not agree: Appoint not more than three competent person as 1. RULES OF COURT, Rule 70
commissioner to make the partition
Appeal: The aggrieved party shall file a notice of appeal and the record of appeal
within thirty days from the notice of the order .A record of appeal is required since There are three kinds of action for the recovery of real property
there may be subsequent appeal from judgment of partition and or accounting of rents
and profits. a. Accion interictal: Is an action to recover physical possession or possession de fato.
It refers to the action for ejectment
4.Proceeding before the commissioner: b. Accion publiciana: Plenary action to recover the real right of possession ( more
A. Partition the property than one year)
b.If the real estate cannot be divided without prejudice to the real estate of - If there is a opposition as to possessory rights over certain area, this cannot be
the parties the court may assign it to one of the parties willing to take it resolved in certain areas but threshed out in an accion reinvindicatoria and not before
provided that he pays to the other parties such amount as the commissioner the MTC in summary proceeding of unlawful detainer and forcible entry.
deems equitable unless the interested parties asks that the property be sold c. Accion reinvidicatoria: Is the action to recover not just the right of possession but
instead of being assigned in which case the court shall order the ownership of real property.
commissioner to sell the properties at public sale.
5.Report of the Commissioner : The commissioner shall make a full and accurate Jurisdiction “
report of the court of their proceeding as to the partition or the assignment of real 1. Acction interdictal: Municipal trial court
estate to one of the parties or the sale of the real estate. Upon the filing of the report a. Unlawful detainer and forcible entry: It is within the exclusive
the clerk of court serves copies on all interested parties with notice that they have ten and original jurisdiction of the Mutc and the METC and this is t
days to file objection to the finding of the report be governed by the Rules on Summary procedure irrespective of
the amount of damage
6.Judgment of Partition: Upon the expiration of the ten day period, the court may 2. Accion publiciana and reinvindicatoria: Real action the jurisdiction
upon hearing accept the report ad render judgment therwith, recommit the repot to depends on the assessed value of the property. When the assessed value of
the commissioner for further report of the acts or set aside the report and appoint new the property does not exceed P20,000 or P50,000 it would be the MTC which
commissioner d. Acccept the report and reject it in part and make such order and would have jurisdiction , if the assessed value exceed such among then it
render judgment shall effectual a fair and just partition of the real estate or its value would be the RTC which has jurisdiction.
between several owners thereof. Q: In an action for unlawful detainer in the Municipal Trial Court of Manila,
defendant X raised in his answer the defense that the plaintiff A is not the real
Appeal: The appeal is taken by the filing of the notice of appeal within fifteen days owner of the house subject to the suit. X filed a counterclaim against A for the
from notice of judgment. There is nothing more left for the trial court to do after the collection of a debt of P380,000 plus accrued interest of P15,000 and attorney’s fee of
rendition of judgment for partition, and no reason for it to retain the rcords of appeal P20,000.
is interposed.

26
A: The defense is not tenable. The SC held that in an unlawful detainer suit, the a. STEALTH: One year period from the time plaintiff know of the
issue is not of ownership but physical or material possession of the subject premises. X unlawful deprivation
defense is merely that A is not the real owner did not allege the right of possession.
Demand: Prior demand is not necessary in an action for forcible entry
General Rule: The judgment of ejectment case is binding only on one who has been
impleaded Allegation of Forcible Entry
The ejectment case is an in personam since it merely seeks to enforce personal liability 1. Prior physical possession of the land or building
against the defendant. Hence the judgment in an ejectment case is binding only on one a. This must be alleged and is mandatory for the court to acquire
who has been impleaded and given an opportunity to be heard. jurisdiction
Exception: the ff are the instances that judgment is binding even though not Prior Physical Possession: 1. Possession can be acquired not only by material
impleaded occupation or the exercise of a right but also by the fact that the thing is
1. A trespasser , squatter or agent of the defendant fraudulently occupies the subject to the action of one’s will or by proper acts and legal formalities
property
2. A guest or occupant of the premises with the permission of the defendant b. Possession can be acquired by juridical acts such as donation,
3. A transferee pendente lite succession and execution of public instrument. Possession does
4. Sub lessee not mean that the man must set his feet to every square meter of
5. A co- lessee ground it is enough that he is able to subject the property to the
6. A member of the Family, relative or privy of the defendant. action of his will.

2. Unlawful deprivation of such possession by the defendant through

FISTS.
Forcible Entry Unlawful detainer a. How is FIST to be stated in the complaint? : The allegation need
The possession of the defendant is The possession of the defendant was not be express it must be sufficient if these matters are inferred
unlawful from the start lawful at the start but later become from the other allegation of the complaint.
illegal.
There is no need for prior demand Prior demand is needed in unlawful
before filing detainer where the defendant fails to 2. Unlawful Detainer :
pay the condition of the lease contract. Definition :Summary proceeding ofr the recovery of possession filed by the lessor,
One year prescriptive period in forcible One year prescriptive period is counted vendor , vendee or other person against whom the possession of any land or building
entry is counted from the unlawful from the last demand to pay or comply is unlawfully withheld by the defendant after the termination or expiration of the
deprivation and vacate or from the withholding of right to hold possession by virtue of express or implied contract.
the possession
It is required that the plaintiff has prior This is not required in unlawful PRIOR PHYSICAL POSSESSION
possession detainer 1. Prior physical possession de fact is not required in unlawful detainer as
compared to forcible entry where the plaintiff is deprived of possession
against whom the possession of the land and the building is unlawfully
1. Forcible entry: withheld.
Definition: A summary proceeding for the recovery of possession by a person who The mortgagee buyer is entitled to possession after the expiration of the redemption
has been deprived of possession of a land, or building by force, intimidation , threat , period. In such case the mortgagor right to stay in the premises has been terminated.
strategy and stealth. ( FIST)
Whet if there is an allegation of ownership?
Prescriptive Period: 1. If there is an allegation of ownership it will NOT divest the MTC of its
1. Within one year after the unlawful deprivation. jurisdiction by merely claiming ownership of the property. When the
defendant raises the issue of ownership in his pelading and the case cannot

27
 be resolved without deciding the issue of ownership the issue of ownership the filing of the complaint must be lawful from the start
shall be resolved only to determine the issue of possession. before the mtc
Prior Demand
GENERAL Rule : Prior demand is not required in an unlawful detainer case ( If the Implied New Lease
ground of the suit is the termination of the defendant right to possess- expiration of 1. If at the end of the lease contract the lessee should continue enjoying the
contract) thing leased for a period of 15 days with the acquiescence of the lessor and
unless notice to the contrary by either party has previously been given.
EXCEPTION: Allowed pleading : 1. Complaint 2. Compulsory counterclaim 3. Cross claim 4.
1. is where the unlawful detainer suit is brought by the lessor against the Answers
lessee on the ground of failure to comply with the lease Prohibited Pleading
2. Defendant possession through tolerance a demand for the defendant to 1. Motion to dismiss or quash except when the ground is non referral for
vacate conciliation and lack of subject matter jurisdiction
Requirement for Demand 2. Motion for bill of particulars
1. The demand made on the lessee must be to pay or to comply with the 3. Motion for postponement which are dilatory
condition of the lease and to vacate 4. Motion for reconsideration of a judgment , reopening and new trial
a. The jurisdictional demand in unlawful detainer is a demand to pay Prohibited: When one seeks reconsideration of a judgment rendered by the court after
and vacate. the trial on the merits. If the dismissal was not done without a trial on the merits it is
2. If the demand cannot be made upon the lessee himself by serving of the not prohibited.
written notice upon the person found in the premises or by posting 5. Motion for extension of time to file pleading or papers
written notice of such demand on the premises if no person found 6. Motion to declare the defendant in default
3. If there is failure to comply with the demand within 15 days in case of 7. Third party complaint
land and 5 days in case of building the 15 and 5 days are counted from 8. Memoranda
the notice if made upon the lessee or person found in the premises or 9. Petition for relief from judgment
from posting of the notice of demand on the premises if no person is 10. Intervention
found thereon. 11. Reply
Note: 12. Certiorari, prohibition and mandamus against interlocutory order.
1. The lessor letter to the lessee informing him that the lease is unilaterally This is a prohibited pleading the order denying the motion to dismiss is an
rescinded and demanding that the lessee vacate is not a jurisdictional interlocutory order.
demand required.
2. A demand to vacate is sufficient when the possession was by mere Procedur:
tolerance or not on any contract between them 1. The court may from examination of allegation dismiss the case outright on
any of the grounds for the dismissal of the action which are apparent
Prescriptive Period therein. If not dismissed the ff :
Within one year after the unlawful withholding of the possession. a. Within ten days from the service of summons the answer to
a. Expiration of the lease: The lessee is already considered to be unlawfully counterclaims, cross claim shall be served within ten days from
withholding the property. the service of answer.
b. Failure to pay or comply: The action should be brought within one year i. If there is a failure to answer: The court motu proprio or
from the expiration of thr 15 day or 5 day period ( if there is more than one on plaintiff motion shall render judgment as warranted
demand) or from service or posting of written notice. by the facts alleged in the complaint and limited to
Jurisdictional Facts what is prayed for. In short the court renders judgment
Forcible Entry Unlawful Detainer either solely on the facts alleged in the complaint and
1. When and how the entry into 1. Date of the last demand to limited to what is prayed for.
the property was made by vacate Preliminary Conference : Not later than thirty days after the last answer is filed a
the defendant – Timeline of 2. The plaintiff act of tolerance preliminary conference is held .If the plaintiff fails to appear in the preliminary

28
conference the complaint is dismissed. The defendant who appears in the absence of 1. The judgment of the MTC against the plaintiff is not immediately
the plaintiff is entitled to judgment on counterclaim executory pending appeal
2. The judgment of the MTC against the defendant is immediately executory
Preliminary conference order: Within five days after the termination of the
unless :
preliminary conference the court shall issue an order stating the matters taken up
a. An appeal is perfected
therein.
b. SUPERSEADEAS BOND : The defendant to stay the execution
After the termination of preliminary conference: Within ten days from the receipt pf files a supersedes bond approved by the MTC and executed in
the preliminary conference order the parties shall submit the affidavit of their witness favor of the plaintiff to pay the rents, damage and cost accruing
and other evidence on the factual issues together with the position papers setting forth down to the time judgment was appealed from
the law and the facts relied upon them. c. Periodic Deposit: During the pendency of the appeal the
defendant deposit with the appellate court the amount of rent due
Judgment: Within thirty days after the receipt of affidavit and position paper or
expiration of the period the court renders judgment. from the time to time under the contract as determined by the
judgment of the MTC or in the absence of a contrct the defendant
MOTION FOR RECONISDERATION: This is prohibited under the rules of summary deposit with the RTC the reasonable value of the use and
procedure after the trial on the merits. occupation of the premises for the preceding month or period at
the date determined by the lower court on or before the 10th day
Preliminary Injunction of the succeeding month
1. Preliminary Prohibitive: To prevent the defendant from committing further
Failure to pay: The failure to make deposit of rentals within a period fixed by law
act of dispossession against the plaintiff.
2. Preliminary mandatory injunction: A possessor may within five days from however short the delay gives the appellee the right to execution of judgment which
the filing of the complaint present a motion in the action for forcible entry or the court is bound to enforce.
unlawful detainer for the issuance of the writ of preliminary mandatory
injunction to restore him in his possession ( This is to be decided within a Distinguish superseadeas bond vs. Periodic Deposit
period of 30 days) Superseadeas Bond Periodic Deposit
Preliminary Mandatory Injuction in appeal
1. Rent, damage and cost as 1. Covers rent, reasonable cost
1. Upon ten days from the perfection of the appeal to the RTC the latter may
fixed in the MTC judgment for the use and the
issue a writ of preliminary mandatory injunction to restore the plainitff in
possession of the court is satisfied when the appeal is 1. Frivolous 2. occupation of the premises
Dilatory or the defendant appeal is meritorious. that ac cure after the MTC
judgment and until the final
After Trial: If the court finds that the allegation of the complaint are true what is judgment of the appeal
the relief : 2. Render the judgment of the 2. If there is a failure to make
1. Restitution of the premises MTC immediately executory the deposit but with
2. The sum justly due as arrears of rent or as reasonable compensation for only as to the restoration of supersedes bond posted will
occupation and use of premises the right to possession render the MTC judgment
3. Attorney fee immediately executory only
4. 4.Cost as to the restoration of the
plaintiff possession.
Judgment: The judgment of the RTC is immediately executory , against the defendant 3. Necessary to stay the 3. Periodic deposit is not
without prejudice to further appeal execution even if the necessary if the defendant

29
 defendant vacates the vacates the premises. Direct Contempt: Misbehavior so near in the presence of the court as to obstruct or
premises after judgment *Ito bayad mo if ng stay ka sa premises interrupt the proceeding before the same including :
pending appeal a. Disrespect towards the court
b. Offensive personalities towards others
c. Refusal to be sworn to or answer as a witness or to subscribe an affidavit or
Q: While the ejectment case was pending before the MTC, Juan Santos religiously deposition when lawfully required to do so
deposited all current rentals in due time the judge ordered Juan Santos to pay all d. Willful and deliberate forum shopping
the rents until he vacates the premises as well as attorney’s fee in the amount of Punishment:
P5,000. Maria Cruz moves for the immediate execution on the ground that Juan 1. Fine not exceeding P2,000 or imprisonment not exceeding 10 days or both if
Santos did not deposit the attorney’s fee of P5,000 and that he did not post the it be RTC or court of equivalent or higher rank
superseadeas bond for the awards should the court grant immediate execution. 2. Fine not exceeding P200 or imprisonment not exceeding one day or both if
MTC.
Is a charge required before a person is punished for direct contempt?
A: No . The court must not grant immediate execution ,a superseades bond covers No. A person may be summarily adjudged in contempt and punished by the court.
only the rents, damage and cost accruing down to the time of judgment appeal from. The person may not appeal therefrom but may avail of the remedies of certiorari and
It does not accrue after the judgment appealed from. Here Juan had been religiously prohibition.- The resolution of the judgment shall be suspended pending resolution of
depositing all the current rental during the pendency of the case a superseadeas bond such petition provided that such person files a bond fixed by the court that rendered
is not necessary notwithstanding the order of the court to pay rentals. judgment conditioned that he will abide by and perform the judgment

Indirect Contempt
Q: Judgment was rendered against the defendant Japyee in actionfor unlawful 1. Misbehavior of an officer of the court in the performance of his duty or
detainer. The judgment ordered Japyee to vacate and pay the attorney fee in favor official transaction
2. Disobedience of or resistance to a lawful writ, process order of judgment of
of Bart the plainitff, To prevent the immediate execution of judgment would you
a court including the act of a person who after being dispossessed or
advise the posting of superseades bond ?
ejectment from any real property by judgment or process of any court of
A: No. The posting of the superseades bond is necessary to prevent the immediate competent jurisdiction enters or attempts pr induces another to enter upon
execution only if the judgment awards rent, damages and cost in favor of the plaintiff. real property.
Here, the judgment did not award any rent, damage and cost the SC held that A: If the writ was directed to the sheriff who was directed to deliver the property
SUPERSEADEAS BOND cannot be held. to P. As the writ did not command the judgment debtor to do anything he cannot
be guilty of acts described under Rule 71 which is disobedience of or resistance of a
X. CONTEMPT lawful writ.
1. RULES OF COURT, Rule 71
DEFINITION: Disobedience to the court by acting in opposition to its authority, Q: Suppose by virtue of an execution of the judgment in an ejectment case the
justice and dignity. defendant was successfully outsted from the property in litihgation and the
Rule 71: The power of contempt is INHERENT in ALL COURTS The reason behind plaintiff was placed in possession but after seven years the defendant reentered the
this is the power to punish contempt is that respect of courts guarantees the stability property and forcibly took possession thereof can the defendant be declared in
of their institution. contempt?
Quasi Judicial Bodies
1. General Rule: No. The contempt power is essential judicial in nature A: Yes. The defendant was ejectment by a lawful writ yet he entered into the subject
a. Exception: real property and executed acts of possession hence cannot be declared in indirect
i. Quasi Judicial: When it is provided for by law contempt .
3. Any abuse of or any unlawful interference with the process or proceeding
DIRECT CONTEMPT of a court not constituting direct contempt

30
 4. Any improper conduct tending to directly or indirectly impede, obstruct or committed which has jurisdiction.
degrade the administration of justice
5. Assuming to be attorney or an officer of the court and acting as such Punishment:
without authority. 1.RTC: Fine not exceeding P300,000 or imprisonment not exceeding six month or
6. Failure to obey the subpoena duly served more.
7. The rescue or attempted rescue of a person or property in the custody of an -When there is a refusal or omission to do an act which is yet in the power of the
officer by virtue of an officer or process of the court held by him respondent to perform he may be imprisoned by order of the court concerned until he
8. Submission of a false certification against forum shopping or non performs it.
compliance with any undertaking 2.MTC: Fine not exceeding P5,000 or imprisonment not exceeding one month or both.

How is a indirect contempt commenced> Appeal

1. SHOW CAUSE ORDER: Proceeding for indirect contempt are initiated 1. 1. A judgment of the court in case of indirect appeal
Motu Proprio 2. Any other formal charge requiring the respondent to show a. Guilty: Can be appealed in proper court as in criminal case
cause why he must not be cited for contempt b. Not guilty: May not be appealed otherwise double jeopardy
When the indirect petition is initiated due to a show cause order : There is no would result.
petition from any party to be docketed , heard and decided separately from the Note: The appeal does not suspend the execution of judgment unless a bond is field
main case because there is no petition to be heard, a show cause order is the one by a person adjudged in contempt in the amount fixed by the court which the appeal
that initiated the same is taken conditioned that if the appeal is decided against him he will abide and
perform the judgment or final order
Eg: The disobedience to the MTC order to return the vehicle qualifies as indirect
contempt for which the MTC properly issued a show cause order to Union bank.
( Independent to as petition field by the MTC) Direct Contempt Indirect Contempt
1. Summary Adjudged 1. Not summary adjudged there
2. VERIFIED PETITION: A verified petition with supporting particular and must be a charge in writing
certified true copies of the document and papers stated therin. an opportunity given to the
If the contempt charges arose out of or is related to principal action the petition for respondent to comment
contempt must 1. Allege such fact but the said petition is to be heard, decided thereon within such period as
separately unless the court in its discretion orders the consolidation of contempt fixed by the court and heard
charge with the principal action. by himself or counsel

Eg:This must be initiated by the verified pleading or it must comply with the rules
on initiatory pleading. Therefore it is necessary that there must be filing of verified
petition and the absence of such meant that the CA did not acquire jurisdiction.

Where is this filed?

1. RTC or court equivalent: The charge may be filed with such court.
2. MTC: The charge is fled with the RTC of the place in which the MTC sits the
charge may also be field with such MTC subject to the appeal to the RTC of
the place in the same manner as provided.
3. Person or body exercising quasi judicial powers the RTC wherein the
contempt has been committed shall have jurisdiction over the charges.
With respect to contumacious acts committed against the quasi judicial bodies such
as the HLURB it is the regional trial court of the place where the acts are

31