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LEX LEONUM FRATERNITAS

Provisional Remedies / Special Civil Actions / Summary Procedure

DEAN WILLARD RIANO

PROVISIONAL REMEDIES
Provisional Remedies are temporary,
auxiliary, and ancillary remedies available to
a litigant for the protection and preservation
of his rights while the main action is pending.
They are not main actions.
They presuppose the existence of a
principal action.
Court which grants provisional remedies
The court grants or issues a
provisional remedy is the court which has
jurisdiction over the main action.
When the main action is for support
the provisional remedy of support pendente
lite may not be granted by a MTC because
the main action which is incapable of
pecuniary estimation is within the jurisdiction
of the RTC or the Family Court.
Kinds of provisional remedies
1.
2.
3.
4.
5.

Preliminary attachment
Preliminary injunction
Receivership
Replevin
Support pendent elite

The enumeration is not exclusive. Ex.


Temporary custody of the child, deposit.

I. Preliminary attachment
Preliminary attachment - is a provisional
remedy issued upon order of the court where
an action is pending to be levied upon the
property of the defendant so the property
may be held by the sheriff as security for the
satisfaction of whatever judgment may be
rendered in the case.
There is no separate action called
preliminary attachment.
Attachment places the property
under custodia legis.
A defendant who asserts a
counterclaim, a cross-claim or a third-party
claim may also avail of the remedy.

By Nikko G. Lagmay
San Sebastian Law

The attachment is preliminary only


when resorted to before the finality of the
judgment to secure the property of the
adverse party and to prevent its
dissipation.
Once the judgment has become
final and executory, the attachment
becomes a final one and is issued in order
to satisfy the judgment.
Purpose of preliminary attachment
1.

2.

seize the property of the debtor


before final judgment and put the
same in cusodia legis even while
the action is pending for the
satisfaction of a later judgment; or
to enable the court to acquire
jurisdiction over the res or the
property subject of the action in
cases where service in person or
any other service to acquire
jurisdiction over the defendant
cannot be effected.

Garnishment a kind of attachment in


which the plaintiff seeks to subject either
the property of the defendant in the hands
of a third person called the garnishee, tho
his claim or the money which said person
owes the defendant.
Garnishment does not involve the
actual seizure of the property which
remains in the hands of the garnishee.
Garnishment simply impounds the
property in the garnishees possession and
maintains the status quo until the main
action is finally decided.
Jurisdiction over the garnishee is
acquired by the mere service upon him of
the copy of the writ of garnishment with a
notice that his debt to the defendant or
other personal property of the defendant
under his control or possession is attached
pursuant to the writ.
Levy on execution is the writ issued by
the court after judgment by which the
property of the judgment obligor is taken
into the custody of the court before the
sale of the property on execution for the
satisfaction of a final judgment.
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LEX LEONUM FRATERNITAS


Provisional Remedies / Special Civil Actions / Summary Procedure

DEAN WILLARD RIANO


Cases in which preliminary attachment
is proper
See sec 1 Rule 57.
The enumeration should be deemed
exclusive.
A mere action to collect a sum of
money is not one of those cases
enumerated.
A writ of attachment cannot be
issued for moral and exemplary damages
and other unliquidated and contingent
claims.
The application for preliminary
attachment should show that the defendants
departure from the Philippines must be with
the corresponding intent to defraud the
creditors.
When to apply for a preliminary
attachment
a.
b.

at the commencement of the action,


or
at any time before entry of
judgment.

Ex parte issuance of writ


It may be issued upon notice and
hearing.
It may be issued ex parte and even
before summons is served upon the
defendant.
However, it may not be enforced and
may not be validly implemented unless
preceded by a service of summons upon the
defendant, or simultaneously accompanied
by service of summons, a copy f the
complaint, the application for attachment,
the order of attachment and the attachment
bond.
Implementation of the writ without
the required jurisdiction over his person is
null and void.
The writ is improperly implemented if
is was served prior to the service of
summons.

By Nikko G. Lagmay
San Sebastian Law

Requisites for the issuance of an


order/writ of preliminary attachment
1.
2.
3.

4.

the case must be any of those


where preliminary attachment is
proper;
the applicant must file a motion
(ex parte or with notice and
hearing)
the applicant must show by
affidavit that there is not sufficient
security for the claim sought to be
enforced
the applicant must post a bond
(attachment bond) executed to the
adverse party.

Grant of preliminary attachment,


discretionary
How to prevent the attachment
If the attachment has not yet been
effected, the party whose property is
sought to be attached, may prevent the
attachment by doing either two things:
1. by depositing with the court from
which the writ was issued an
amount equal to the value of the
bond fixed by the court in the
order of attachment or an amount
equal to the value of the property
to be attached, exclusive of costs,
or
2. by giving a counter-bond
How to have the attachment
discharger
If the attachment has already been
enforced, the party whose property has
been attached may file a motion to
discharge the attachment, with notice and
hearing, and after making a cash deposit
or files a counter-bond.
Attachment may be discharged
without the need of a filing of a counterbond. This is possible when the party
whose property has been attached files a
motion to set aside or discharge the
attachment and during the hearing of the
motion, he proves that:
1. the attachment was improperly or
irregularly issued or enforced, or
2. that the bond of the attaching
creditor is insufficient, or
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LEX LEONUM FRATERNITAS


Provisional Remedies / Special Civil Actions / Summary Procedure

DEAN WILLARD RIANO


3.
4.

that the attachment is excessive and


must be discharged as to the excess,
or
that the property is exempt from
execution.

Damages for wrongful attachment


Damages may be awarded on
account of improper irregular or excessive
attachment.
Even the party who loses in the main
case but is able to establish a right to
damages by reason of improper, irregular or
excessive attachment may be entitled to
damages.
An improper, irregular or excessive
attachment is not validated by the fact that
the attaching party prevailed in the main
action.
Attachment or property under custodia
legis
Property in custodial egis may be
subject to a writ of preliminary attachment.
The attachment on a property
already in custodial egis merely operates as
a lien and does not mean that the attaching
court will wrest custody of the property from
another court.
There is no rule which prohibits the
attachment of a property previously
attached.
What will arise will be a priority in
the liens which means that the first
attachment will have priority over
subsequent attachments.
Proceedings where property attached is
claimed by a third person
He may avail of the remedy called
terceria by making an affidavit of his title
thereto or his right to possession thereof,
stating the grounds of such right or title.
The third party claimant is not
precluded by the rules from vindicating his
claim to the property in the same or in a
separate action.

By Nikko G. Lagmay
San Sebastian Law

II. Preliminary Injunction


Preliminary injunction is an ancillary or
preventive remedy where a court requires
a person, a party or even a court or
tribunal either to refrain (prohibitory) from
or to perform (mandatory) particular acts
during the pendency of the action.
Its sole objective is to preserve the
status quo until the merits of the case can
be heard fully.
See sec 3 Rule 58
The evidence to be submitted by
the plaintiff need not be conclusive and
complete. The plaintiffs are only required
to show that they have an ostensible right
to the final relief prayed for in their
complaint.
Findings of the trial court granting
or denying a petition for a writ of
preliminary injunction based on the
evidence on record are merely provisional
until after the trial on the merits of the
case shall have been concluded.
Main action for injunction
distinguished from preliminary
injunction
The former is an independent
action. The latter can only exist as an
incident to a principal action.
The main action seeks a judgment
embodying a final injunction. A preliminary
injunction seeks to preserve the status quo
until the merits are heard.
Purpose of preliminary injunction
To preserve the status quo or to
prevent future wrongs in order to preserve
and protect certain interests or rights
during the pendency of the action.
When the injunction sought is
mandatory, a writ of preliminary injunction
tends to do more than to maintain the
status quo because it commands the
performance of specific acts and is issued
only in cases of extreme urgency and
where the right of the applicant is clear.

LEX LEONUM FRATERNITAS


Provisional Remedies / Special Civil Actions / Summary Procedure

DEAN WILLARD RIANO


Preliminary injunction distinguished
from final injunction
An injunction is preliminary when it
refers to the writ secured before the finality
of the judgment.
It is final when it is issued as a
judgment making the injunction permanent.
It perpetually restrains a person form the
continuance or commission of an act and
confirms the previous preliminary injunction.
Prohibitory and mandatory injunctions
Prohibitory injunction when its purpose
is to prevent person from the performance
of a particular act. Here, the acts has not yet
been performed.
Mandatory injunction when its purpose
is to require a person to perform a particular
act. Here, the act has already been
performed and this act has violated the
rights of another.

4.

acts and if not enjoined would work


injustice to the applicant
the applicant must post a bond,
unless exempted

Quantum of evidence required


The evidence to be submitted by
the plaintiff need not be conclusive and
complete.
The plaintiffs are only required to
show that they have an ostensible right to
the final relief prayed for in their
complaint.
Mere prima facie evidence is
needed.
Notice and hearing
A writ of preliminary injunction
cannot be issued without prior notice and
hearing.

Stage of proceedings when granted

Subject to the rules governing


matters of extreme urgency, it cannot be
issued ex parte.

It is granted at any stage of the


proceedings prior to the judgment or final
order.

Temporary Restraining Order

Court who issues preliminary injunction


It must be applied for and issued by
the court where the action is pending.
If the action is pending in the CA or
SC, it may be applied for and issued by such
courts or any member thereof. This is a
situation where a member of the court may
issue a writ of preliminary injunction without
the participation of other members of the
court.
Requisites for the issuance of a writ of
preliminary injunction or temporary
restraining order
1.
2.

3.

there must be a verified application


the applicant must establish that he
has a right to relief, or a right to be
protected, and the act against which
the injunction is directed is violative
of such right
the applicant must establish that
there is a need to restrain the
commission or continuance of the

By Nikko G. Lagmay
San Sebastian Law

It if shall appear from facts shown


by affidavits or by verified application that
great or irreparable injury would result to
the applicant before the matter can be
heard on notice, the court in which the
application for preliminary injunction was
made ma issue a TRO ex parte for a period
not exceeding 20 days from service to the
party sought to be enjoined.
Within said 20 days, the court shall
determine whether or not the preliminary
injunction shall be granted and then shall
issued the corresponding order.
The applicant shall file a bond,
unless exempted by the court.
If the matter is of extreme
urgency, the executive judge of a multisala court or the presiding judge of a
single-sala court may issue a TRO effective
for only 72 hours from issuance, not
service.
When the court is a multi-sala
court, the TRO is not to be issued by any
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LEX LEONUM FRATERNITAS


Provisional Remedies / Special Civil Actions / Summary Procedure

DEAN WILLARD RIANO


other judge than the executive judge of said
court.
The rule against non-extendibility of
the 20 day effectivity of the TRO is absolute
if issued by the RTC.
What is a TRO and how does it differ
from a writ of preliminary injunction?

2.

3.

A TRO is an order to maintain the


status quo between or among the parties
until the determination of the prayer for a
writ of preliminary injunction.
A writ of preliminary injunction
cannot be granted without notice and
hearing. A TRO may be granted ex parte.
Issuance of TRO by CA and SC
A TRO may be issued by the CA or
any member thereof. It shall be effective for
60 days from notice to the party sought to
be enjoined.
60 day lifetime of the TRO is not
extendible and automatically expires. No
judicial declaration that it has expired is
necessary.

Examples in which
injunction/preliminary injunction will
not be issued
1.
2.

3.

A second TRO by the CA after the


expiration of the 60 day period is a patent
nullity.
Nature of an order granting a
preliminary injunction
The issuance of a writ of preliminary
in junction rests entirely within the discretion
of the trial court and is generally not
interfered with except in cases of manifest
abuse.
An order granting a writ of
preliminary injunction is an interlocutory
order, hence, not appealable. The remedy is
certiorari.

4.

5.

6.
7.

Examples of cases justifying the


issuance of a writ of preliminary
injunction
1.

when a petition for certiorari under


Rule 65 is filed. The filing of a
petition does not interrupt the
principal action unless a TRO or a
writ of preliminary injunction has

By Nikko G. Lagmay
San Sebastian Law

been issued against the respondent


tribunal or officer.
when a petition for relief under
Rule 38 is filed. Assuming that the
prevailing party has not yet filed a
motion for an order of execution,
the pendency of a petition for relief
will not prevent the execution of
judgment.
a preliminary mandatory injunction
may be availed of to restore the
plaintiff on his possession in a
complaint for forcible entry or
unlawful detainer.

8.

cases growing out of a labor


dispute. It is the NLRC that issues
an injunction.
RA no. 8735 and PD 1818
regarding execution or
implementation of government
infrastructure projects, essential
government projects, including
arrastre and stevedoring
operations
against the Presidential Agrarian
Reform Council or any of its
agencies in any case connected
with the application,
implementation or enforcement of
the CARP.
a court may not interfere by
injunction with the orders of
another court of co-equal rank or
decrees of a court with concurrent
or coordinate jurisdiction.
RTC may not issue injunction
against quasi-judicial bodies of
equal rank such as the Social
Security Commission, and SEC.
RTC may not issue injunction
against IPO, COMELEC, Workmens
Compensation Commission.
no court shall have authority to
grant an injunction to restrain the
collection of any national internal
revenue tax, fee or charge imposed
by the code.
injunction will not lie to restrain a
criminal prosecution except:
a. to afford protection to the
constitutional rights of the
accused;
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LEX LEONUM FRATERNITAS


Provisional Remedies / Special Civil Actions / Summary Procedure

DEAN WILLARD RIANO


b.

c.
d.

e.

when necessary for the


orderly administration of
justice or to avoid oppression
or multiplicity of actions;
when double jeopardy is
clearly apparent;
where the charges are
manifestly false and
motivated by lust for
vengeance; or
there is no prima facie case
against the accused and a
motion to quash on that
ground has been denied.

How to dissolve a writ of preliminary


injunction or a restraining order
The party may file a motion to
dissolve the injunction or TRO with notice
and hearing of the motion upon showing of
affidavits that the person enjoined would
suffer irreparable damage while the applicant
can be fully compensated for such damages
he may suffer.
The movant must also file a bond
conditioned upon the payment of all
damages which the applicant may suffer by
the dissolution of the injunction or
restraining order.

Rule 59 presupposes that there is


an action and that property subject of the
action requires its preservation.
In an action for the foreclosure of a
mortgage, the court may appoint a
receiver if it can be shown that the
property mortgaged is in danger of being
wasted and dissipated or materially
injured, and that its value is probably
insufficient to discharge the mortgage
debt.
Receivership is not available in a
mere suit for collection of a sum of money.
It is available when the property or fund
that is the subject of the litigation is in
danger of being lost, removed or materially
injured.
Court that can grant receivership
By the court where the action is
pending, by the CA, SC, or any member of
the CA or SC.
Procedure for appointment or receiver
1.
2.

If it appears that the extent of the


preliminary injunction or restraining order is
too great, it may be modified.

3.

III. RECEIVERSHIP

4.

Nature

5.

The purpose of receivership as a


provisional remedy is to protect and
preserve the rights of the parties during the
pendency of the main action, during the
pendency of an appeal or as an aid in the
execution of a judgment when the writ of
execution has been returned unsatisfied.
The receivership in Rule 59 is
directed to the property which is the subject
of the action and does not refer to the
receivership authorized under the banking
laws and other rules or laws.

By Nikko G. Lagmay
San Sebastian Law

6.
7.

A verified application must be filed


by the party applying for the
appointment of a receiver;
the applicant must have an interest
in the property or funds subject of
the action;
the applicant must show that the
property or funds is in danger of
being lost, wasted or dissipated;
the application must be with notice
and must be set for hearing;
before issuing the appointment of a
receiver, the court shall require the
applicant to post a bond in favor of
the adverse party;
the receiver shall also file a bond;
before entering his duties, the
receiver must be sworn to perform
his duties faithfully.

Powers of receiver
See sec 6 Rule 59.
Investment of funds by receiver
A receiver may not invest funds
without an order from the court and
without the written consent of the parties
to the action.
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LEX LEONUM FRATERNITAS


Provisional Remedies / Special Civil Actions / Summary Procedure

DEAN WILLARD RIANO


Suits against a receiver
No action may be filed against a
receiver without leave of the court which
appointed him.
Appointment of a party as receiver
A party to a litigation is supposed to
he a disinterested person hence, neither
party to the litigation should be appointed as
a receiver without the consent of the other.

IV. REPLEVIN
Replevin may be a main action or a
provisional remedy.
As a principal action, its ultimate goal
is to recover personal property capable of
manual delivery wrongfully detained by a
person.
The main action for replevin is
primarily possessory in nature and generally
determines nothing more than the right of
possession.
Seeking to have possession of the
property prior to the determination of the
action is the provisional remedy of replevin
and not the main action for replevin.
Procedure for the application for
replevin
1.

2.

3.

4.

a party praying for the provisional


remedy of replevin must file an
application for a writ of replevin. His
application for the writ must be filed
at the commencement of the action
or at any time before the defendant
answers.
the application must contain an
affidavit where the applicant
particularly describes the property
that he is the owner of the property
or that he is entitled to the
possession.
the affidavit must state that the
property is wrongfully detained by
the adverse party, alleging therein
the cause of the detention.
the affidavit must state that the
property has not been distrained or

By Nikko G. Lagmay
San Sebastian Law

5.
6.

taken for tax assessment, or


otherwise in custodia legis.
the affidavit must state the actual
market value of the property
the applicant must give a bond,
executed to the adverse party and
double the value of the property.

Replevin cannot be available when


the property is in custodia legis or has
been seized pursuant to law.
How adverse party can seek the return
of the property
If within 5 days from the taking of
the property by the sheriff, the adverse
party decides to have the property back,
he may require the return thereof by:
a. filing with the court where
the action is pending a
redelivery bond, executed
to the applicant, in double
value of the property
conditioned upon the
payment of such sum as
may be recovered against
the adverse party, and
b. by serving a copy of such
bond on the applicant.
V. Support Pendente Lite
Support pendent elite is an amount
of support provisionally fixed by the court
in favor of the person or persons entitled
thereto during the pendency of an action
for support.
It may be granted in either two
instances:
1. action for support; or
2. in a criminal action where civil
liability includes support for the
offspring provided the civil aspect
has not been waived, reserved or
instituted prior to its filing.
It may be filed at the
commencement of the action or at any
time prior to the judgment or final order.
The application requires a hearing.
The adverse party must comply
with the order to give support pendente
lite, if he does not, an order of execution
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LEX LEONUM FRATERNITAS


Provisional Remedies / Special Civil Actions / Summary Procedure

DEAN WILLARD RIANO


shall be issued by the court either motu
proprio or upon motion. He may also be
liable for contempt.

It is filed by the person against


whom the conflicting claims are made. He
shall pay the docket fees.

When the judgment finds that the


person giving support is not liable therefore,
the court shall order the recipient to make a
restitution of what has been received with
legal interest from the date of actual
payment. Should the recipient fail to do so,
the person who gave the support may file an
action against the person legally obliged to
give support.

The petitioner need not have a


cause of action. The petition cannot be
dismissed on the ground that there is
failure to state a cause of action.

SPECIAL CIVIL ACTIONS


Preliminaries
Although a SCA and an ordinary civil
action are governed by the rules of ordinary
civil actions, there are certain rules that are
applicable only to SCA.
An ordinary civil action must be
based on a cause of action.
The cause of action as required and
defined in an ordinary civil action finds no
application to the SCA of declaratory relief.

I. INTERPLEADER
An interpleader is a SCA filed by a
person against whom two conflicting claims
are made upon the same subject matter and
over which he claims no interest, to compel
the claimants to interplead and to litigate
their conflicting claims against themselves.
1.

2.

3.

Requisites:
there must be 2 or more claimants
with adverse or conflicting interests
to a property in the custody or
possession of the plaintiff;
the plaintiff in an action for
interpleader has no claim upon the
subject matter of the adverse claims
or if he has an interest at all, such
interest is not disputed by the
claimants;
the subject matter of the adverse
claims must be one and the same.

By Nikko G. Lagmay
San Sebastian Law

Upon filing of the complaint and


the payment of the docket feds, the court
shall issue an order requiring the
conflicting claimants to interplead with one
another.
In that same order, the court may
include an order directing that the subject
matter of the action be paid or delivered to
the court.
Within the time for filing an
answer, each claimant may file a motion to
dismiss. The ground relied upon may be
any of the grounds in Rule 16 or, as
provided in Rule 62, impropriety of the
action for interpleader.
Court with jurisdiction
If the subject matter is personal
property, valued not more than 300k or
400k, the MTC has jurisdiction.
If the subject matter is real
property with an assessed value not more
than 20k or 50k, the MTC has jurisdiction.

II. DECLARATORY RELIEF AND


OTHER SIMILAR REMEDIES
Preliminaries
Rule 63 covers 2 types of actions;
a. petition for declaratory relief,
b. similar remedies.
1.
2.
3.

The similar remedies are:


action for reformation of
instrument;
action to quiet title;
action to consolidate ownership
under Art 1607

subject matter in a petition for


declaratory relief;
1. deed
2. will
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Provisional Remedies / Special Civil Actions / Summary Procedure

DEAN WILLARD RIANO


3.
4.
5.
6.
7.

contract or other written instrument


statute
executive order or regulation
ordinance
any other governmental regulation.

The enumeration of the subject


matter is exclusive. An action not based on
any of the enumerated subject matters
cannot be the proper subject of declaratory
relief.
Even if the subject is one
enumerated under the Rules, where the
contract or statute is clear in its terms and
there is no doubt as to its meaning and
validity, a petition for declaratory relief is
improper. There would be no need for
construction or a declaration of rights
thereunder.
Whether or not the student is to be
conferred with Latin honors is not a proper
subject of the petition.
Court with jurisdiction
RTC. It is incapable of pecuniary
estimation.
It would be an error to file the
petition with the SC which has no original
jurisdiction to entertain a petition for
declaratory relief.
Purpose of petition
To secure an authorative statement
of the rights and obligations of the parties
under a contract or a statute for their
guidance in the enforcement or compliance
with the same.
To seek for a judicial interpretation of
an instrument of\r for a judicial declaration
of a persons rights under a statute and not
to ask for affirmative reliefs like injunction,
damages or any other relief beyond the
purpose of the petition as declared under the
rules.
It is not brought to settle issues
arising from a breach because after the
breach of the contract or statute, the petition
can no longer be brought.

By Nikko G. Lagmay
San Sebastian Law

The question raised is a question of


construction or validity arising under an
instrument or statute.
The judgment in a declaratory
relief is said o stand by itself and no
executory process follows as of course.
Petitioner and other parties
If the subject matter is a deed,
will, contract or other written instrument,
the petitioner is the person interested in
the same. Ex. Parties, assignees, heirs.
If it be a statute, executive order,
regulation or ordinance, the petitioner is
one whose rights are affected by the same.
Where the action involves the
validity of a local government ordinance,
the corresponding prosecutor or attorney
of the LGU involved shall be similarly
notified and entitled to be heard.
If such ordinance is alleged to be
unconstitutional, the sol-gen shall also be
notified and entitled to be heard.
Filing before any breach or violation;
justiciable controversy
The petition for declaratory relief is
filed before there occurs any breach or
violation of the deed, contract, statute,
ordinance or executive order or regulation.
It will not prosper when brought after a
contract or a statute has already been
breached or violated.
If there has already been a breach,
the appropriate civil action, not declaratory
relief, should be filed.
When the breach however occurs
not before the filing of the petition for
declaratory relief but after the action has
been constituted and during its pendency,
the action is not to be dismissed but may
be converted into an ordinary action and
the parties shall be allowed to file such
pleadings as may be necessary or proper.
Summary of requisites for the petition
a.

thee must be a justiciable


controversy;
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Provisional Remedies / Special Civil Actions / Summary Procedure

DEAN WILLARD RIANO


b.
c.
d.

the controversy must be


between persons whose
interests are adverse;
the party seeking the relief
must have a legal interest in
the controversy; and
that the issue is ripe for
judicial determination.

Reformation of an instrument
An action for reformation is not an
action brought to reform a contract but to
reform the instrument evidencing the
contract.

ownership of the property in the person of


the vendee or buyer but for the
registration of the property.
The lapse of the redemption period
without the seller a retro exercising his
right of redemption, consolidated
ownership or title upon the person of the
vendee by operation of law. Art 1607
requires the filing of the petition to
consolidate ownership because the law
precludes registration of the consolidated
title without a judicial order.
Quieting of title

The action for reformation


presupposes that there is nothing wrong in
the contract.

The action is brought to remove a


cloud on title to real property or any
interest therein.

The contract is to be reformed


because despite the meeting of minds, the
instrument which is supposed to embody the
agreement of the parties does not reflect
their true agreement by reason of mistake,
fraud, inequitable conduct or accident.

The plaintiff need not be in possession of


the real peal property before he may bring
the action as long as he can show that he
has a legal or an equitable title to the
property which is the subject matter of the
action.

Where the consent of a party has


been vitiated, the remedy is not to bring an
action for reformation of the instrument but
to file an action for annulment of the
contract.
Reformation of the instrument
cannot be brought to reform any of the
following:
1. unconditional simple donations inter
vivos;
2. wills; or
3. when the agreement is void.
Consolidation of ownership
Under the law, a contract of sale may
be extinguished either by legal redemption or
conventional redemption.
Where redemption is not made within
the period agreed upon, in case the subject
matter of the sale is real property, art 1607
of the CC provides that consolidation of
ownership in the vendee shall not be
recorded in the Registry of Property without
a judicial order, after the vendor has been
duly heard.
The action to consolidate ownership
is not for the purpose of consolidating the

By Nikko G. Lagmay
San Sebastian Law

III. REVIEW OF JUDGMENTS


AND FINAL ORDERS OR
RESOLUTIONS OF THE
COMELEC AND THE COMISSION
ON AUDIT
Remedy
A party aggrieved by the
judgment, final order or resolution of the
COMELEC or Commission on Audit may file
a petition for certiorari under Rule 65 with
the SC.
The petition cannot question the
findings of fact of the commission involved
where such finding are supported by
substantial evidence. Such findings when
so supported are final and non-reviewable.
The petitioner must anchor the
petition on jurisdictional grounds since the
mode of review is under Rule 65.
The period for filing of the petition
for certiorari assailing the judgment of the
COMELEC and COA is shorter. Under 64,

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the petition shall be filed within 30 days from
notice of judgment. Under 65, 60 days.
The petition shall contain a sworn
certification against forum shopping.
While the filing of a MR or a MNT
shall interrupt the period for the filing of the
petition, the filing of the petition itself shall
not have the effect of staying the judgment,
final order or resolution of the COMELEC or
the COA, unless the SC shall declare
otherwise.
A TRO or writ of preliminary
injunction must be obtained to prevent the
execution of the judgment.

IV CERTIORARI, PROHIBITION
AND MANDAMUS (65)
A. CERTIORARI

Certiorari is an extraordinary
remedy available only when there
is no appeal, nor any plain, speedy or
adequate remedy in the ordinary course of
law.
Purpose and function of certiorari
A petition for certiorari under Rule
65 is intended to rectify errors of
jurisdiction but not errors of judgment.
Only jurisdictional questions may
be raised including matters of grave abuse
of discretion which are equivalent to lack of
jurisdiction.
It is designed to correct errors of
jurisdiction.
The function of a writ of certiorari
is to keep inferior courts within the bounds
of their jurisdictions or to prevent them
from committing such a grave abuse of
discretion amounting to excess of
jurisdiction.

Nature of the remedy


A petition for certiorari under Rule 65
is a special civil action.

Certiorari not substitute for lost


appeal

It is an original action independent


from the principal action.

It is a remedy of last recourse and


is limited form of review.

It is not part or continuation of the


trial which resulted in the rendition of the
judgment complained of.

Certiorari cannot be allowed when


a party to a cse fails to appeal a judgment
desptie the availability of that remedy,
certiorari not being a substitute for lost
appeal.

It is not a mode of appeal where the


appellate court reviews the errors of fact or
law committed by the lower court.
The issue under Rule 65 is whether
or not the lower ocurt acted without or in
excess of jurisdiction or with grave abuse of
discretion.

When certiorari is available despite


the loss of appeal
1.

when public welfare and the


advancement of public policy dictates;

This remedy is extraordinary and its


use is restricted to truly extraordinary cases.

2.

when the broader interest of justice so


requires;

The filing of a petition for certiorari


does not interrupt the course of the principal
action nor the running of the reglementart
periods involved in the proceeding, unless an
application for a restraining order or a writ of
preliminary injunction to the appellate court
is granted.

3.

when the writs issued are null and


void;

4.

when the questioned order amounts to


an oppressive exercise of judicial
authority.

It does not interrupt the


reglementary period for the filing of an
answer.

Requisites for a petition for certiorari

It does not interrupt the courts of the


case where there is no writ of injunction.

By Nikko G. Lagmay
San Sebastian Law

1.

that the petition is directed against a


tribunal, board or officer exercising
judicial or quasi0judicial functions;

2.

that such tribunal, board or officer has


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acted without or in excess of jurisdiction
or with grave abuse of discretion;
3.

that there is no appeal nor any plain,


speedy and adequate remedy in the
ordinary cours of law;

4.

that petition shall be accompanied by a


certified true copy of the judgment,
order or resolution subject thereof,
copies of all pleadings and documents
relevant and pertinent thereto, and a
sworn certification of non-forum
shopping;

5.

that the petition must be verified and


filed in the proper court within the
reglementary period;

6.

that the petitioner must, as a general


rule, file the petition after a prior motion
for reconsideration.

Judicial and quasi-judicial functions


A petition for certiorari is directed
against a tribunal, borad or officer exercising
judicial or quasi-judicial functions.
If the board, tribunal or officer dose
not exercise either a judicial or quasi-judicial
functions. Certiorari will not lie against its
acts.
A petition for certiorari is availanle
against administrative agencies.
Jurisdictional Issue
A petition for certiorari must be
based on jurisdictional grounds because as
long as the respondent acted with
jurisdiction, any erroe committed by him or it
in the exedrcvise thereof will amount to
nothing more than an error of judgment
which may be reviewed or corrected by
appeal.
In a petition for certiorari, the SC
does not sit as an arbiter of facts. It is not its
function to re-examine every appreciation of
facts made by the trial and appellate courts
unless the evidence on record does not
support their findings or the judgment is
based on a misappreciation of facts.
A petition for certiorari does not
include an inquiry as to the correctness of
the evaluation of the evidence.
Factual issues are not proper
subjects of a petition for certiorari.

By Nikko G. Lagmay
San Sebastian Law

Grave abuse of discretion


Certiorari will not lie when there is
a mere abuse of discretion by the tribunal,
board or officer exercising judicial or quasijudicial functions.
Such kind of abuse does not
amount to lack or excess of jurisdiction.
For certiorari to lie, the abuse must
be "grave".
By GRAVE ABUSE of discretion is
meant by capricious and whimsical
exercise of judgment as is equivalent to
lack of jurisdiction.
It means such capricious and
whimsical exercise of judgment by the
tribunal exercising judicial or quasi-judicial
functions as to amount to lack of power.
Absence of appeal or any plain, speedy
and adequate remedy
although the extraordinary remedy
of certiorari is not proper when an appeal
is available, by way of execption, it may be
allowed when it can be shown that appeal
would be inadequate, slow, insufficient,
and will not promptly relieve a party from
the injurious effects of the order
complained of.
Certiorari cannot co-exist with an
appeal, these remedies being mutually
exclusive.
Exception: Although the
extraordinary remedy of certiorari is not
proper when an appeal is available, it may
be allowed when it can be shown that
appeal would be inadequate, slow,
insufficient, and will not prompltly relieve a
party from the injurious effects of the
order compained of.
Excess of jurisdiction
There is excess of jurisdiction
where the respondent, having clothed with
the power to determine the case,
oversteps his authority as determined by
law.
Necessity for a motion for
reconsideration

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The filing of a motion for
reconsideration is a condition sine qua non to
the filing of a petition for certiorari
The rule requiring a prior MR is
intender to allow the tribunal, board or
officer to rectify the errors it may have
lapsed into.
Filing a petition for certiorari without
first moving for reconsideration of the
assailed resolution generally warrants the
outright dismissal of the petition.
Exceptions:

The person aggrieved may file a


verified petition in the proper court alleging
the facts with certainty and praying that
judgment be rendered annulling or
modifying the proceedings of the tribunal,
board or officer, and granting such
incidental reliefs as law and justice may
require.
The petition shall be accompanied
by a certified true copy of the judgment,
order or resolution subject of the petition,
copies of all relevant pleadings and
documents, and a sworn certification of
non-forum shopping.

1.

where the order is a patent nullity, as


where the court a quo has no
jurisdiction;

The petition is to be filed within 60


days from notice of the judgment, order or
resolution.

2.

where the questions raised in the


certiorari proceeding have been duly
raised and passed by the lower court, or
are the same as those raised and passed
upon in the lower court;

In case a MR or a motion for NT is timely


filed, whether such motion is required or
not, the 60 day period shall be counted
from notice of the denial of said motion.

3.

where there is an urgent necessity for


the resolution of the questions and any
further delay would prejudice the
interests of the government or the
petitioner;

4.

where the subject matter of the action is


perishable;

5.

where under the circumstances, a MR


would be useless;

6.

where petitioner was deprived of due


process and there is extreme urgency for
relief;

If the petition relates to the acts or


omissions of a lower court or a corporation,
board, or officer of person, then the
petition shall be filed with the RTC
exercising jurisdiction over the territorial
area as defined by the SC.

7.

where, in a criminal case, relief from


order of arrest is urgent and the granting
of such relief by the court is improbable;

The petition may also be filed in


the CA whether or not the same is in aid of
its appellate jurisdiction.

8.

where the proceedings in the lower court


are a nullity for lack of due process;

9.

where the proceedings was ex parte or in


which the petitioner had not opportunity
to object;

If it involves the acts or omissions


of a quasi-judicial agency, the petition shall
be filed in and cognizable only by the CA,
unless otherwise provided by law or by the
Rules.

10. Where the issue raised is one purely of


law or when public interest is involved.
The exceptions to the rule in a
certiorari proceeding, dispensing with a
motion for reconsideration prior to the filing
of a MR, do not apply to election cases,
where a MR is mandatory to elevate the case
to the COMELEC en banc.
How to avail of the remedy

By Nikko G. Lagmay
San Sebastian Law

No extension of time to file the


petition shall be granted except for
compelling reason and in no case
exceeding 15 days.
Where to file the petition
RTC, CA, Sandiganbayan, Sc.

The petition may be filed in the


Sandiganbayan if it is in aid of its appellate
jurisdiction.
Parties to the petition
The petition shall be filed by the
aggrieved person.
It pertains to the person who was a
party in the proceeding before the lower
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court and not any person who feels injured
by the lower courts order.
Where the petition relates to the acts
or omissions of a judge, court, quasi-judicial
agency, tribunal, corporation, board, officer
or person, the petitioner shall join as private
respondent/s, the persons interested in
sustaining the proceedings in the court.
The private respondent/s should
appear and defend not only in his or their
own behalf but also in behalf of the public
respondent/s affected by the proceedings.
If costs are awarder in favor of the
petitioner, such costs shall be against the
private respondent/s only and not against
the public respondent/s.
The public respondent/s shall not
appear in or file an answer or comment to
the petition or any pleading therein, unless
specifically directed by the court where the
action is pending.

manifestly for delay, or that the questions


raised therein are too unsubstantial to
require consideration, the court may
dismiss the petition.
Necessity for a writ of injunction;
certiorari not sufficient
The filing of a petition for certiorari
does not interrupt the course of the
principal action nor the running of the
reglamentary periods involved in the
proceeding, unless an application for a
restraining order or a writ of preliminary
injunction to the appellate court is granted.
No petition for certiorari in a summary
proceeding
In a summary proceeding, petitions
for certiorari, prohibition or mandamus
against an interlocutory order of the court
are not allowed.

Order to comment
If the petition is sufficient in form
and substance to justify such process, the
court shall issue an order requiring the
respondents to comment on the petition
within 10 days from receipt of a copy
thereof.
In petitions for certiorari before the
SC and the CA, the respondent may also be
required to file a comment to the petition
and not a motion to dismiss.
Thereafter, the court may require the
filing of a reply and such other responsive or
other pleadings as it may deem necessary
and proper.
Proceedings after comment; Relief
After the comment or other pleadings
are filed, the court may hear the case or
require the parties to submit memoranda.
If after such hearing or submission of
memoranda, the court finds the allegations
of the petition are true, it shall render
judgment for the relief prayed for or to which
the petitioner is entitled.
The relief means that the judgment,
order or resolution subject of the petition is
annulled or modified.
If the court finds the petition to be
patently without merit, prosecuted

By Nikko G. Lagmay
San Sebastian Law

B. PROHIBITION
Prohibition is an extraordinary writ
commanding a tribunal, corporation, board
or person, whether exercising function that
are judicial, quasi-judicial or ministerial to
desist from further proceedings when said
proceedings are without or in excess of its
jurisdiction, or with grave abuse of its
discretion, there being no appeal or any
other plain, speedy and adequate remedy
in the ordinary course of law.
The purpose of prohibition is to
secure an order to command the
respondent tribunal, board or corporation
or officer to desist from further
proceedings in the action.
Stated in another way, the purpose
of prohibition is to prevent an
encroachment, excess usurpation or
assumption of jurisdiction on the part of
the tribunal, corporation, board or officer.
It bears in stressing that an action
for prohibition or certiorari, for that matter,
does not divest the inferior or trial court of
its jurisdiction validly acquired over the
case pending before it; it is merely an
invocation for the exercise of its
supervisory power over the lower court to
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insure that the lower court acts within its
jurisdiction.

resolution or proceedings of the


public respondent. The purpose of
prohibition is to command the
respondent to desist from further
proceedings.

Prohibition, not mandamus is the


proper remedy when a motion to dismiss is
wrongfully denied.

B. MANDAMUS

Requisites
a.

b.

c.

d.

the petition must be directed


against a tribunal, corporation, or
board or person exercising
judicial, quasi-judicial, or
ministerial functions;
the tribunal, corporation, board
or person must have acted
without or in excess of
jurisdiction or with grave abuse
of discretion amounting to lack of
jurisdiction;
there is no appeal or any other
plain, speedy, and adequate
remedy in the ordinary course of
law;
the petition for prohibition shall
be accompanied by a certified
true cop of the judgment or
order subject of the petition,
copies of all pleadings and
documents relevant and
pertinent thereto, and a sworn
certification of non-forum
shopping.

Mandamus is an extraordinary writ


commanding a tribunal, corporation, board
or person, to an act required to be done;
a. when it or he unlawfully neglects
the performance of an act which
the law specifically enjoins as a
duty, and there is no other plain,
speedy and adequate remedy on
the ordinary course of law.
b. It is also available when one
unlawfully excludes another form
the use and enjoyment of a right or
office to which the other is entitled.
The principal function of
mandamus is to command, not to inquire,
expedite or adjudicate.
Mandamus does not establish a
legal right, but merely enforces one that is
already clearly established.
Requisites
1.

Prohibition vs. Injunction

2.

An injunction is directed against a


party in an action. Prohibition is directed to
the court or tribunal directing it to refrain
from performance of acts which it has no
jurisdiction to perform.

3.

Prohibition distinguished from certiorari


1.

2.

3.

A writ of certiorari seeks to annul a


judicial or a quasi-judicial act. A writ
of prohibition is directly not only to a
judicial or a quasi-judicial act but
even to a ministerial act.
a writ of certiorari is directed to the
action of the court which is sought to
be annulled. A writ of prohibition is
directed to the court itself to restrain
it from further proceeding with the
case.
the purpose of certiorari is to annul
or modify the judgment, order,

By Nikko G. Lagmay
San Sebastian Law

4.
5.

the plaintiff has a clear legal right


to the act demanded. It will never
be issued in doubtful cases.
it must be the duty of the
defendant to perform the act
because the same is mandated by
law;
the defendant unlawfully neglects
the performance of the duty
enjoined by law;
the act to be performed is
ministerial, not discretionary;
there is no appeal or an other
plain, speedy and adequate
remedy in the ordinary course of
law.

Ministerial act or duty


For mandamus to lie, the act must
not only be ministerial but must also be a
duty enjoined by law, a duty which the
tribunal or person unlawfully neglects to
perform.
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Mandamus applies only to acts
required by law to be done.
The tenor of the rule excludes from
its operation the performance of a
contractual duty.
Mandamus is proper to compel the
payment of the benefits to which an
employee is entitled under the law such as
holiday pay.
It is not proper against a school or
an official with a duty that involves the
exercise of discretion like on the matters of
admission of students or to complete an
academic institution to allow the graduation
of a student who has failed to comply with
the academic rules of the school.

d.

and legal duty while the


purpose of injunction is for the
defendant to either refrain
from an act or to perform not
necessarily a legal or
ministerial duty; and
the purpose of mandamus is to
perform positive legal duty
and not to undo what has been
done.

Mandamus vs. Quo Warranto

Mandamus will lie to compel


execution of a judgment, because execution
of a final and executory judgment is a matter
of right.

Recall that mandamus also is


available when one is unlawfully excluded
from the use or enjoyment of an office.
This is similar to a quo warranto
proceeding in this respect although in
mandamus, the suit is brought against the
person who is responsible for excluding the
petitioner from office. The respondent does
not have to usurp, intrude into or hold the
office. Quo warranto is brought against the
holder of the office, who is the person
claiming the office as against the
petitioner, not necessarily the one who
excludes the petitioner.

Discretionary acts not compellable by


mandamus

V. QUO WARRANTO

Mandamus does not lie to compel the


performance of a discretionary duty.

Nature and purpose

Mandamus will not lie to compel a


prosecutor to file an information.

Mandamus will not issue to control or


review the exercise of discretion of a public
officer where the law imposes upon said
public officer the right and duty to exercise
his judgment in reference to any matter on
which he is required to act. It is his
judgment that is to be exercised and not that
of the court.
Reconstitution is not a ministerial
act.
Mandamus vs. injunction
a.
b.

c.

mandamus is a special civil


action while injunction is an
ordinary civil action;
mandamus is directed against a
tribunal, corporation, board or
officer while injunction is directed
against a litigant;
the purpose of mandamus is for
the tribunal, corporation , board
or officer to perform a ministerial

By Nikko G. Lagmay
San Sebastian Law

Quo warranto literally means by


what authority and the object is to
determine the right of a person to the use
or exercise of a franchise or office and to
oust the holder from enjoyment, if his
claim is not well-founded, or if he has
forfeited his right to enjoy the office.
It is commenced by a verified
petition against the following:
1. a person who usurps a public
office, position or franchise;
2. a public officer who performs an
act constituting forfeiture of a
public office; or
3. an association which acts as a
corporation within the Philippines
without being legally incorporated
or without lawful authority to do
so.
The petitioner

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As a general rule, the Solicitor
General.
But the petition may be commenced
by a private person in his own name where
he claims to be entitled to the public office or
position alleged to have been usurped or
unlawfully held or exercised by another.
Jurisdiction and venue
SC, CA, Sandigan (in its appellate
jurisdiction) or RTC over the territorial area
where any of the respondents reside.

Quo warranto in an elective office


against quo warranto in appointive
office distinguished
1.

2.

3.

If filed by the SolGen, it may be filed


in the RTC of Manila.
A quo warranto proceeding is one of
the instances where exhaustion of
administrative remedies is not required.

4.

Quo warranto under the Omnibus Election


Code
Under the OEC, a quo warranto
proceeding may be instituted with the
COMELEC by any voter contesting the
election f any member of Congress, regional,
provincial or city officer within 10 days after
the proclamation of the results of the
election.
1.
2.

The ground relied upon shall be:


ineligibility to the positions; or
disloyalty to the Republic of the
Philippines.

If the petition is brought against a


municipal official, the petition for quo
warranto

http://www.yo
utube.com/watc
h?v=IbOSxHLY7c must be brought in

Quo warranto proceedings and


election protests
The cause of action in the first is
based on the eligibility or lack of it of the
candidate or his being loyal or disloyal to
the Republic. The cause of action in an
election protest is the irregularity in the
conduct of the elections.
Quo warranto against corporations
The petition may be brought only
against a de facto corporation, not a de
jure corporation.

VI Expropriation (67)
Exercise by LGUs
1.

the appropriate RTC.


If it is against any barangay official,
the petition must be brought before the
appropriate MTC.

By Nikko G. Lagmay
San Sebastian Law

in the first, the governing law is


the election law; in the second, the
rules that govern are the Rules of
Court.
in the first, the issue is the
eligibility of the person elected; in
the second, the issue is the legality
of the occupancy of the office b
virtue of a legal appointment
in the first, the petition is filed
within 10 days after the
proclamation, in the second, it is
within 1 year from the time the
cause of ouster, or the right of the
petitioner to hold office arose.
in the first, the petitioner ma be
any voter, even if he is not entitled
to the office; in the second, the
petitioner is the person entitled to
the office.

2.

Requisites:
an ordinance is enacted authorizing
the chief executive to exercise the
power of eminent domain or
pursue expropriation proceedings
over a particular property;
the power of eminent domain is
exercised for public use, purpose
or welfare, or for the benefit of the
poor and the landless;

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3.

4.

thee is payment of just


compensation, as required under the
Constitution and other pertinent
laws;
a valid and definite offer has been
previously made to the owner of the
property sought to be expropriated,
buy said offer was not affected.

Stages
1.
2.

determination of the authority of the


plaintiff to expropriate its necessity
and the public purpose;
determination of just compensation
through the court-appointed
commissioners.

Entry upon the property


Under sec. 2 of rule 67, in order to
be entitled to the possession of the property
subject of the complaint for expropriation,
the plaintiff upon the filing of the complaint
or at any time thereafter, must deposit with
the proper government authority an amount
equivalent to the assessed value of the
property for purposes of taxation.
The deposit shall be n money, unless
the court authorizes a deposit in the form of
a certificate of deposit of a government bank
of the Republic payable on demand to the
authorized depository.

appropriate the same for public use or


purpose.
Multiple appeals are permitted and
the reglamentary period is 30 days.
Just compensation
Sec. 4 of Rule 67 provides that the
just compensation shall be determined as
of the date of the taking of the property or
the filing of the complaint, whichever came
first.
Nonpayment of just compensation;
effect
Non payment of just compensation
does not entitle the private landowner to
recover possession of the expropriated
lots.
However in cases where the
government failed to pay just
compensation within 5 years from the
finality of judgment in the expropriation
proceedings, the owners concerned shall
have the right to recover possession of
their property.
Title to the property expropriated
passes from the owner to the expropriator
only upon full payment of just
compensation.

Appeal from the order of expropriation


The final order sustaining the right to
expropriate the property may be appealed
from by any party aggrieved by such order.
The appeal shall not however, prevent the
court from determining the just
compensation to be paid. This should be
taken to mean that despite the appeal from
the order of expropriation, the court may
proceed to the second stage of the
expropriating process, the determination of
just compensation.
Appeal from the judgment as to
compensation
The judgment rendered by the court
as to the just compensation may be
appealed from but the appeal shall not have
the effect of delaying the right of the plaintiff
to enter upon the property and to

By Nikko G. Lagmay
San Sebastian Law

VII Foreclosure of Real Estate


Mortgage (68)
A creditor cannot file an action
against the debtor for collection of the debt
and subsequently file an action to foreclose
the mortgage. This is an example of
splitting of a single cause of action.
Modes of foreclosure of real estate
mortgage
a.
b.

judicial foreclosure pursuant to


Rule 68;
extra-judicial foreclosure pursuant
to Act. No. 3135 as amended by
Act No. 4118.

Extra-judicial foreclosure is the


mode to be used if there is a special power
inserted or attached to the real estate
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mortgage contract allowing an extra-judicial
foreclosure sale.
Where there is no such special
power, the foreclosure shall be done
judicially following the procedure set under
Rule 68.
Applicability of Rule 68
Rule 68 applies only to judicial
foreclosures of real estate mortgage.
Procedure
A foreclosure suit proceeds like an
ordinary action.

No independent action need be


filed to recover the deficiency from the
mortgagor. The deficiency judgment shall
be rendered upon motion of the
mortgagee.
A deficiency judgment is by nature
in personam and jurisdiction over the
person is mandatory. Having been outside
the country, jurisdiction over his person
could not have been acquired.
Judicial vs. extra-judicial foreclosure
1.
2.

Equity of redemption
It is the right to extinguish the
mortgage and retain ownership of the
property by paying the debt.
The equity of redemption may be
exercised even after the foreclosure sale
provided it is made before the sale is
confirmed by order of the court.
The equity of redemption of the
mortgagor may be exercised prior to the
confirmation of the sale. After its
confirmation no further redemption may be
made.
Right of redemption
It is a right granted to a mortgagor
to repurchase the property even after the
confirmation of the sale and even after the
registration of the certificate of sale.
There is no right of redemption in a
judicial foreclosure of mortgage under Rule
68. This exists only in extrajudicial
foreclosures where there is always a right of
redemption within one year from the date of
sale, but interpreted by the Court to mean
one year from the registration of the sale.
Deficiency judgment
If there be a balance due to the
plaintiff after applying the proceeds of the
sale, the court, upon motion shall render
judgment against the defendant for any such
balance.

By Nikko G. Lagmay
San Sebastian Law

3.

4.

judicial, governed by Rules of


Court; extra-judicial, by Act. No.
3135;
judicial, involves the filing of an
independent action; extra, does
not require filing of an action
judicial, there is equity of
redemption and no right of
redemption except when the
mortgagee is a banking institution;
extra, there is a right of
redemption.
judicial, there could be a deficiency
judgment; extra, no deficiency
judgment because there is no
judicial proceeding, although
recovery of the deficiency is
allowed.

VIII Partition (69)


Partition is the separation, division
and assignment of a thing held in common
among those to whom it may belong.
There must be co-ownership.
A co-owner may demand at any
time the partition of the property owned in
common except:
1. there is an agreement between coowners to keep the property
undivided for a period both
exceeding ten years;
2. partition is prohibited by the donor
or testator for a period not
exceeding 20 years;
3. partition is prohibited by law;
4. property is not subject to physical
division

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5.

condition imposed upon voluntary


heir before they can demand
partition has not yet been fulfilled.

Prescription does not run in favor of


a co-owner or co-heir.
The action for partition cannot be
barred by prescription as long as the coownership exists.
The proceedings had before the
commissioners shall not bind the parties or
pass title to property until the court shall
have accepted the report of the
commissioners and rendered judgment
thereon.

IX Forcible Entry and Unlawful


Detainer
Under existing law and
jurisprudence, there are 3 kinds of actions
available to recover possession of real
property:
a.
b.
c.

accion interdictal;
accion publiciana;
accion revindicatoria

Accion interdictal
The actions of FE and UD belong to
the class of actions known by the generic
name accion interdictal (ejectment) where
the issue is the right of physical or material
possession of the subject real property
independent of any claim of ownership by
the parties involved.
Forcible entry, one is deprived of
physical possession of real property by
means of force, intimidation, strategy,
threats, or stealth.
Unlawful detainer, one illegally
withholds possession after the expiration or
termination of his right to hold possession
under any contract, express or implied.
The jurisdiction of these 2 actions,
which are summary in nature, lies in the
proper MTC.
Both actions must be brought within
one year form the date of actual entry on the
land, in case of forcible entry, and from the

By Nikko G. Lagmay
San Sebastian Law

date of last demand, in case of unlawful


detainer.
The issue in said cases is the right
to physical possession.
Accion publiciana and accion
reivindicatoria
Accion publiciana is the
plenary action to recover the right of
possession which should be brought when
dispossession has lasted for more than one
year.
It is an ordinary civil proceeding to
determine the better right of possession of
realty independent of title.
If at the time of the filing of the
complaint more than 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 the forcible entry or illegal detainer, but
an accion publiciana.
Accion reivindicatoria involves
not only possession, but ownership of the
property.
Real and in personam actions
FEUD actions are actions affecting
possession of real property, hence are real
actions, the venue is the place where the
property subject of the action is situated.
They are actions in personam.
Jurisdiction of the MTC; summary
procedure
Actions of FEUD are within the
exclusive jurisdiction of the MTC and shall
be governed by the rules on summary
procedure irrespective of the amount of
damages or rentals sought to be
recovered.
The decision in an ejectment case
does not bind the title to or ownership of
the land or building. It does not also bar an
action between the same parties respecting
title to the property.

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Effect of the pendency of an action involving
ownership on the action for forcible entry
and unlawful detainer
A pending action involving ownership
of the subject property dose not bar the filing
of an ejectment suit, nor suspend the
proceedings of one already instituted.
The action for specific performance in
the RTC has no effect on the ejectment case
and shall proceed irrespective of the
outcome of the RTC case. The issues in the
ejectment case is mere possession while the
issue in the specific performance case is the
validity as well as the enforceability of the
option to purchase.
When defendant occupies premises by mere
tolerance
If the defendant stays in the
premises by mere tolerance of the owner,
the possession becomes unlawful upon
failure to comply with the demand to vacate
made by the owner. The unlawful
withholding of possession is to be counted
from the date of the demand to vacate.
Demands in unlawful detainer cases
An unlawful detainer case shall be
commenced only after demand to pay or
comply with the conditions of the lease and
to vacate is made upon the lessee, unless
there exists a stipulation to the contrary.
Where the suit is based on the
defendants failure to pay the rentals agreed
upon, the proper demand should be to to
pay and vacate. It should not be to pay or
vacate. The latter demand which I in the
alternative does not make out a case for
unlawful detainer since it is not in
accordance with the required tenor of the
demand prescriber by sec. 2 of Rule 70
Thus, a demand to pay P500,000 by
way of unpaid rentals or to vacate if not paid
within 5 days does not make out an action
for unlawful detainer but one merely for
collection of sum of money and must be filed
with the RTC.
Form of demand
The demand ma be in the form of a
written notice served upon the person found

By Nikko G. Lagmay
San Sebastian Law

in the premises. The demand may also be


made by posting a written notice on the
premises if no person can be found therein.
It may be oral.
Effect of non-compliance with the
demand
If the demand is not complied with
after 15 days in the case of land or 5 days
in the case of buildings, the lessor may
now proceed against the lessee.
When demand is not required in
unlawful detainer case
1.
2.

there is a stipulation dispensing


with demand
when the ground for the suit is
based on the expiration of the
lease because when the lease
expires the cause of action for
unlawful detainer immediately
arises.

Demand to vacate is, however,


required when the lease is on a month-tomonth basis to terminate the lease upon
the expiration of the month in order to
prevent the application of the rule of tacita
reconduccion or implied new lease.
Tacita reconduccion
If at the end of the lease, the
lessee continues to enjoy the property
leased for 15 days with the consent of the
lessor, and no notice to the contrary has
been given, it is understood that there is
an implied new lease, not for the period in
the original contract, but for the time
established in articles 1682 and 1687 of
the Civil Code.
Defense of tenancy
A tenancy case falls within the
jurisdiction of the Department of Agrarian
Reforms Adjudicatory Board (DARAB).
Where tenancy is raised as a
defense, the court must conduct a
preliminary hearing on the matter to
determine the allegations of tenancy. If
during the hearing, it is shown that
tenancy is the real issue, that is when the
court shall dismiss the case for lack of
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jurisdiction. Jurisdiction is determined by the
allegations of the complaint.
Defense of ownership
The assertion by the defendant of
ownership over the disputed property does
not serve to divest the inferior court of its
jurisdiction.
The defendant cannot deprive the
court of jurisdiction by merely claiming
ownership of the property involved.
When defendant raises the issue of
ownership, the court may resolve the issue
of ownership but only under the ff.
conditions:
a.

b.

when the issue of possession


cannot be resolved without
resolving the issue of
ownership; and
the issue of ownership shall
be resolved only to
determine the issue of
possession.

In letter b., the judgment would not


bar an action between the same parties
respecting title to the land or building. The
resolution of the MTC on the ownership of
the property is merely provisional or
interlocutory. Any question involving the
issue of ownership should be raised and
resolved in a separate action brought
specifically to settle the question with
finality.
How to obtain possession of the
premises during the pendency of the
action
When the action is filed, the plaintiff
in an ejectment case is not tin possession of
the property. To obtain possession, the Rules
permit the plaintiff to present a motion,
within 5 days from the filing of the
complaint, for the issuance of a writ of
preliminary mandatory injunction to restore
him in his possession. This motion shall be
resolved within 30 days from its filing.
Judgment not binding on ownership
If an issue of ownership is raised in
an action for FEUD and the court makes a
determination of ownership, such

By Nikko G. Lagmay
San Sebastian Law

determination is only initial and is made


merely for the purpose of settling the issue
of possession.
Immediate execution of judgment
A judgment on a FEUD action is
immediately executory to avoid injustice to
a lawful possessor, and the courts duty to
order the execution is practically
ministerial.
How to stay immediate execution of
judgment
The defendant must take the
following steps:
1. perfect an appeal;
2. file a supersedeas bond; and
3. deposit periodically with the RTC
during the pendency of the appeal,
the adjudged mount of rent due
under the contract or if there be no
contract, the reasonable value of
the use and occupation of the
premises.
Where to appeal
Appealable to the appropriate RTC.
Mode of appeal is the same as in
ordinary civil actions under Rule 40 where
a notice of appeal is filed with and the
docket fee paid in the court of origin, which
is the MTC.

X. CONTEMPT
Contempt of court is the
disobedience to the court by acting in
opposition to its authority, justice and
dignity.
Functions
1.
2.

vindication of public interest by


punishing of contemptuous
conduct; and
coercion to compel the contemnor
to do what the law requires him to
uphold the power of the Court, and
also the rights of the parties to a
suit awarded by the court.

Kinds of contempt
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According to nature:
Criminal contempt is conduct
directed against the authority and dignity of
the court or a judge acting judicially; it is
obstruction of the administration of justice
which tends to bring the court in to disrepute
or disrespect.
Civil contempt is the failure to do
something ordered to be done by a court or
a judge for the benefit of the opposing party
therein and is therefore, an offense against
the part in whose behalf the violated order
was made.
According to the manner of
commission:
1.

2.

Direct- committed in the


presence of or so near the court
or judge as to obstruct or
interrupt the proceedings before
the same; and
indirect one committed not in
the presence of the court

Direct contempt
1.
2.
3.
4.
5.
6.
7.

Acts constituting direct contempt;


misbehavior in the presence of or so
near the court as to obstruct or
interrupt the proceedings before it;
disrespect toward the court;
offensive personalities towards
others;
refusal to be sworn as a witness or to
answer as a witness;
refusal to subscribe an affidavit or
deposition when lawfully required to
do so;
acts of party or counsel which
constitute willful and deliberate
forum shopping
unfounded accusations or allegations
or words tending to embarrass the
court or to bring it into disrepute.

No formal proceeding required


No formal proceeding is required to
cite a person in direct contempt. The court
ma summarily adjudge one in direct
contempt.

The penalty for direct contempt


depends upon the court against which the
act was committed.
If the act was committed against
the RTC or a court of equivalent or higher
rank, the penalty is a fine not exceeding 2k
or imprisonment not exceeding 10 days or
both.
If the act was committed against a
lower court, a fine not exceeding 1k or
imprisonment not exceeding 1 day or both.
Remedy of a person adjudged in
contempt
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
judgment.
Indirect contempt
Indirect contempt in general is
committed by a person who commits any
of the following acts:
a.
b.

c.

disobedience or resistance to a
lawful writ, process, order or
judgment of a court;
any abuse of or any unlawful
interference with the process or
proceedings of a court not
constituting direct contempt;
any improper conduct tending
directly, or indirectly, to impede,
obstruct or degrade the
administration of justice.

A mere motion under the present


rules is not a mode of initiating indirect
contempt.

Penalty

By Nikko G. Lagmay
San Sebastian Law

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Contempt in relation to execution of
judgment
Generally, Contempt is not a means
of enforcing a judgment.
How a proceeding for indirect contempt
is commenced

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
him.

Unlike direct contempt which is


summary, an act constituting an indirect
contempt is to be punished only after charge
in writing and hearing.
The procedural requisites before the
accused may be punished for direct
contempt:
a.
b.
c.

a charge in writing to be filed;


an opportunity for the person
charged to appear and explain
his conduct;
to be heard by himself or
counsel.

Court where the charge for indirect


contempt is filed
Depends upon the level of the court
against which the contempt was committed.
1.

2.

3.

act committed against the RTC or a


court of equivalent or higher rank, or
against an officer appointed by it, the
charge may be filer with such court.
act committed against a lower court,
the charge may be filed with the
RTC. It may also be filed in the lower
court against which the contempt
was allegedly committed. The
decision of the lower court is
appealable to the RTC.
where the act was committed against
persons or entities exercising quasijudicial junctions, the charge shall be
filed with the RTC of the place
wherein the contempt was
committed.

Remedy of a person adjudged in indirect


contempt
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

By Nikko G. Lagmay
San Sebastian Law

SUMMARY
PROCEDURE
Civil cases subject to summary procedure
1.
2.

FEUD cases;
all other claims where the total
claim does not exceed P100,000
outside MM, or does not exceed
P200,000 in MM, exclusive or
interests and costs.

Probate proceedings are not


covered by the rule on summary procedure
even if the gross value of the estate does
not exceed P100,000 or P200,000.
Basic principles
Not all pleadings ni an ordinary
civil action are allowed in a summary
procedure.
1.
2.
3.
4.

The only pleadings allowed are:


complaint
compulsory counterclaim
cross-claims pleaded in the answer
answers to the pleading.

The court in a summary procedure


may dismiss the case outright on any of
the grounds for the dismissal of a civil
action.
Should the defendant fail to answer
the complaint within a period of 10 days
from service of summons, the court may,
motu proprio, or on motion of the plaintiff,
render judgment (not an order declaring
the defendant in default) as may be
warranted by the facts alleged and limited
to what is prayed for.

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There shall be a preliminary
conference held but there will be no trial.
Instead the parties shall submit
affidavits and position papers.
Within 30 days from receipt of the
last affidavits and position papers, or the
expiration of the period for filing the same,
the court shall render judgment.
As a rule a motion to dismiss is not
allowed except on either 2 grounds:
1. lack of jurisdiction over the subject
matter;
2. failure to comply with the barangay
conciliation proceedings.
See sec 19 of the Rules on Summary
Procedure for prohibited pleadings.

By Nikko G. Lagmay
San Sebastian Law

25