LASALLIAN COMMISSION ON
BAR OPERATIONS
PRE-WEEK Q&A
REMEDIAL LAW
ACADEMICS COMMITTEE 2015-2016
Committee Head for Academics:
OLIVE GRACE MA. P. CACHAPERO
Deputy Head:
ANA KATRINA O. CONSTANTINO
Remedial Law Team
Subject Chair for Criminal Law:
GRACE VETUS
Assistant: PATRICIA CAALITA
Venue is determined by
either the residence of the
parties where the action is
personal or by the location
of the property where the
action is real.
when filed, denominated as
complaint
c)
the
Sandiganbayan, or Appeals,
over the territorial
in the Regional Trial Sandiganbayan, or area
where
Court which has in the Regional respondent resides.
jurisdiction over the Trial Court which
territorial
area has
jurisdiction
where
respondent over the territorial
resides.
area
where
respondent
resides.
Q: What is an injunctive relief?
A: The court in which the petition is filed may issue orders
expediting the proceedings, and it may also grant a temporary
restraining order or a writ of preliminary injunction for the
preservation of the rights of the parties pending such
proceedings (Sec. 7, Rule65 of ROC).
Q: What are the exceptions to filing of motion for
reconsideration before filing petition for certiorari?
A:
1) When the issue is one purely of law;
2) When there is urgency to decide upon the question and
any further delay would prejudice the interests of the
government or of the petitioner;
3) Where the subject matter of the action is perishable;
4) When order is a patent nullity, as where the court a quo
has no jurisdiction or there was no due process;
5) When questions have been duly raised and passed upon by
the lower court;
6) When there is urgent necessity for the resolution of the
question;
7) When Motion for Reconsideration would be useless, e.g.
the court already indicated it would deny any Motion for
Reconsideration;
8) In a criminal case, where relief from order of arrest is
urgent and the granting of such relief by the trial court is
improbable;
9) Where the proceeding was ex parte or in which the
petitioner had no opportunity to object;
10) When petitioner is deprived of due process and there is
extreme urgency for urgent relief; and
11) When issue raised is one purely of law or public interest is
involved
Q: What are the reliefs petitioner is entitled to in a
petition for certiorari?
A:
1) The primary relief will be annulment or modification of
the judgment, order or resolution or proceeding subject of
the petition (Sec.1 Rule65 of ROC).
2) may also include such other incidental reliefs as law and
justice may require (Sec. 1, Rule65 of ROC). The court, in
its judgment may also award damages and the execution of
the award for damages or costs shall follow the procedure
in Sec. 1, Rule 39 (Sec. 9, Rule65 of ROC).
Q: Where should a party file certiorari against an
action of Regional Trial Court in election cases
involving elective municipal officials?
2)
3)
4)
5)
Forcible Entry
Unlawful Detainer
The
possession
of
the The possession of the defendant
defendant is unlawful from is lawful from the beginning
the beginning; issue is which becomes illegal by reason of the
party has prior de facto expiration or termination of his
possession;
right to the possession of the
property;
The law does not require Plaintiff must first make such
previous demand for the demand which is jurisdictional
defendant to vacate;
in nature;
The plaintiff must prove that The plaintiff need not have been
he was in prior physical in prior physical possession;
possession of the premises
until he was deprived by the
defendant; and
The one year period is The one-year period is counted
generally counted from the from the date of last demand.
date of actual entry on the
property.
such order and render such judgment as shall effectuate a fair
and just partition of the real estate, or of its value, if assigned
or sold as above provided, between the several owners thereof
(Sec.7, Rule 69 of ROC).
Q: What are the effects of judgments in action for
partition?
A: If actual partition of property is made, the judgment shall
state definitely, by metes and bounds and adequate
description, the particular portion of the real estate assigned to
each party, and the effect of the judgment shall be to vest in
each party to the action in severalty the portion of the real
estate assigned to him. If the whole property is assigned to one
of the parties upon his paying to the others the sum or sums
ordered by the court, the judgment shall state the fact of such
payment and of the assignment of the real estate to the party
making the payment, and the effect of the judgment shall be to
vest in the party making the payment the whole of the real
estate free from any interest on the part of the other parties to
the action. If the property is sold and the sale confirmed by the
court, the judgment shall state the name of the purchaser or
purchasers and a definite description of the parcels of real
estate sold to each purchaser, and the effect of the judgment
shall be to vest the real estate in the purchaser or purchasers
making the payment or payments, free from the claims of any
of the parties to the action. A certified copy of the judgment
shall in either case be recorded in the registry of deeds of the
place in which the real estate is situated, and the expenses of
such recording shall be taxed as part of the costs of the action
(Sec.11, Rule 69 of ROC).
Q: Do the Rules on Partition apply to personal
property?
A: YES. The provisions of Rule69 shall apply to partitions of
estates composed of personal property, or of both real and
personal property, in so far as the same may be applicable (Sec.
13, Rule69 of ROC).
accion
publiciana
from
accion
Accion
Accion Publiciana
Accion
interdictal
Reinvindicatoria
(forcible entry
and Unlawful
Detainer)
The actions for A plenary ordinary An action for the
forcible entry and civil action for the recovery
of
the
unlawful detainer recovery
of
the exercise
of
belong to the class better
right
of ownership,
of actions known by possession (juridical particularly recovery
the generic name possession), must be of possession as an
accion interdictal filed
after
the attribute or incident
(ejectment) where expiration of one of ownership;
the issue is the year
from
the
right of physical or accrual of the cause
material possession of action or from the
of the subject real unlawful
property
withholding
of
independent of any possession of the
claim of ownership realty.
In
other
by
the
parties words, if at the time
involved (Mendoza of the filing of the
vs. CA, 452 SCRA complaint more than
117 [2005]).
one year had elapsed
since defendant had
turned plaintiff out
of possession or
defendants
possession
had
become illegal, the
action will be not
one of forcible entry
or unlawful detainer
but
an
accion
publiciana (Valdez
vs, CA, GR 132424,
May 2, 2006).
The basis of the The basis of the The basis for the
recovery
of recovery
of recovery
of
possession is the possession is the possession
is
plaintiffs real right plaintiffs real right ownership itself.
of possession or jus of possession or jus
possessionis, which possessionis, which
is the right to the is the right to the
possession of the possession of the
real
property real
property
independent
of independent
of
ownership.
ownership.
Q: How to determine jurisdiction in accion publiciana,
accion reivindicatoria and accion interdictal
A: Jurisdiction is determined by the allegations of the
complaint. The mere raising of the issue of tenancy does not
automatically divest the court of jurisdiction because the
jurisdiction of the court is determined by the allegations of the
complaint and is not dependent upon the defenses set up by
the defendant (Marino, Jr. vs. Alamis, 450 SCRA 198 [2005]).
Q: Who and when may institute the action for forcible
entry and unlawful detainer?
A: A person deprived of the possession of any land or building
by force, intimidation, threat, strategy, or stealth, or a lessor,
vendor, vendee, or other person against whom the possession
of any land or building is unlawfully withheld after the
expiration or termination of the right to hold possession, by
virtue of any contract, express or implied, or the legal
representatives or assigns of any such lessor, vendor, vendee,
or other person, may, at any time within one (1) year after such
unlawful deprivation or withholding of possession, bring an
action in the proper Municipal Trial Court against the person
or persons unlawfully withholding or depriving of possession,
or any person or persons claiming under them, for the
restitution of such possession, together with damages and costs
(Sec. 1, Rule70 of ROC).
Unless otherwise stipulated, such action by the lessor shall be
commenced only after demand to pay or comply with the
conditions of the lease and to vacate is made upon the lessee,
or by serving written notice of such demand upon the person
found on the premises, or by posting such notice on the
premises if no person be found thereon, and the lessee fails to
comply therewith after fifteen (15) days in the case of land or
five (5) days in the case of buildings (Sec. 2, Rule70 of ROC).
Q: What are pleadings allowed in action for forcible
entry and unlawful detainer?
A: The only pleadings allowed to be filed are the complaint,
compulsory counterclaim and cross-claim pleaded in the
answer, and the answers thereto. All pleadings shall be verified
(Sec. 4, Rule70 of ROC).
proceedings.
Direct Contempt
Indirect Contempt
In general is committed in the It is not committed in the
presence of or so near the court presence of the court, but
or judge as to obstruct or done at a distance which
interrupt the proceedings before tends to belittle, degrade,
it
obstruct or embarrass the
court and justice
Q: What is the remedy against direct contempt?
A: A person adjudged in direct contempt may not appeal
therefrom. His remedy is a petition for certiorari or
prohibition directed against the court which adjudged him in
direct contempt. Pending the resolution of the petition for
certiorari or prohibition, the execution of the judgment for
direct contempt shall be suspended. The suspension however
shall take place only if the person adjudged in contempt files a
bond fixed by the court which rendered the judgment. This
bond is conditioned upon his performance of the judgment
should the petition be decided against him (Sec. 2, Rule71 of
ROC).
Q: What is the remedy against indirect contempt?
A: The person adjudged in indirect contempt may appeal from
the judgment or final order of the court in the same manner as
in criminal cases. The appeal will not however have the effect of
suspending the judgment if the person adjudged in contempt
does not file a bond in an amount fixed by the court from which
the appeal is taken. This bond is conditioned upon his
performance of the judgment or final order if the appeal is
decided against (Sec. 11, Rule71 of ROC).
Commencement
Q: How are contempt proceedings commenced?
A: Proceedings for indirect contempt may be initiated motu
proprio by the court against which the contempt was
committed by an order or any other formal charge requiring
the respondent to show cause why he should not be punished
for contempt.
In all other cases, charges for indirect contempt shall be
commenced by a verified petition with supporting particulars
and certified true copies of documents or papers involved
therein, and upon full compliance with the requirements for
filing initiatory pleadings for civil actions in the court
concerned. If the contempt charges arose out of or are related
to a principal action pending in the court, the petition for
contempt shall allege that fact but said petition shall be
docketed, heard and decided separately, unless the court in its
discretion orders the consolidation of the contempt charge and
the principal action for joint hearing and decision (Sec. 4,
Rule71 of ROC).
Acts deemed punishable as indirect contempt
Q: What are the acts deemed punishable as indirect
contempt?
A:
a) Misbehavior an officer of a court in the performance of his
official duties or in his official transactions;
b)
c)
d)
e)
f)
g)