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REMEDIAL LAW REVIEWER

Part VI of IX
SPECIAL CIVIL ACTIONS
I. Civil Procedure
A. Special Civil Actions (Rule 62-71)
1. Interpleader
a. Definition
A person who has property in his possession or an obligation to render, wholly o
r partially without claiming any right therein, or an interest in which in whole
or in part is not disputed by the claimants, comes to court and asks that the p
ersons who consider themselves entitled to demand compliance with the obligation
be required to litigate among themselves in order to determine finally who is e
ntitled to the same.
b. Rule 62
General Procedure in Interpleader
1. complaint for interpleader is filed
2. court issues order requiring the claimants to interplead
3. summons served on the claimants
4. claimants may file MtD on the unique ground of impropriety of interpleader ac
tion, MtD tolls period to file answer
5. court resolves MtD; claimant has remaining period to file answer or at least
5 days from notice of denial
6. claimants file answer within 15 days from receipt of summons
7. opposing claimants may file a reply
8. pre-trial
9. court determine(s) their respective rights and adjudicate their several claims
Section 1. When interpleader proper. Whenever conflicting claims upon the sa
me subject matter are or may be made against a person who claims no interest wha
tever in the subject matter, or an interest which in whole or in part is not dis
puted by the claimants, he may bring an action against the conflicting claimants
to compel them to interplead and litigate their several claims among themselves
. (1a, R63)
Note that the plaintiff need not wait for each defendant to make a formal demand
. It is enough that a claim may be made by such defendants.
Sec. 2. Order. Upon the filing of the complaint, the court shall issue an or
der requiring the conflicting claimants to interplead with one another. If the i
nterests of justice so require, the court may direct in such order that the subj
ect matter be paid or delivered to the court. (2a, R63)
Sec. 3. Summons. Summons shall be served upon the conflicting claimants, tog
ether with a copy of the complaint and order. (3, R63)
Note that the plaintiff does not furnish the defendant copies of his complaint.
He need only file his complaint with the court. It is the responsibility of the
court to issue the summons and to serve a copy of the complaint.
Sec. 4. Motion to dismiss. Within the time for filing an answer, each claima
nt may file a motion to dismiss on the ground of impropriety of the interpleader
action or on other appropriate grounds specified in Rule 16 (motion to dismiss)
. The period to file the answer shall be tolled and if the motion is denied, the
movant may file his answer within the remaining period, but which shall not be
less than five (5) days in any event, reckoned from notice of denial. (n)
The defendants must file their answer within the standard 15 days from receipt o
f the summons.
Sec. 5. Answer and other pleadings. Each claimant shall file his answer sett
ing forth his claim within fifteen (15) days from service of the summons upon hi
m, serving a copy thereof upon each of the other conflicting claimants who may f
ile their reply thereto as provided by these Rules. If any claimant fails to ple
ad within the time herein fixed, the court may, on motion, declare him in defaul
t and thereafter render judgment barring him from any claim in respect to the su
bject matter.
The parties in an interpleader action may file counterclaims, cross-claims,
third-party complaints and responsive pleadings thereto, as provided by these Ru
les. (4a, R63)
Sec. 6. Determination. After the pleadings of the conflicting claimants have
been filed, and pre-trial has been conducted in accordance with the Rules, the
court shall proceed to determine their respective rights and adjudicate their se
veral claims. (5a, R63)
Sec. 7. Docket and other lawful fees, costs and litigation expenses as liens
. The docket and other lawful fees paid by the party who filed a complaint under
this Rule, as well as the costs and litigation expenses, shall constitute a lie
n or charge upon the subject matter of the action, unless the court shall order
otherwise. (6a, R63)
c. Cases
Mesina v. IAC, 145 SCRA 497 (1986)
Facts: Go s lost check was presented for payment by Mesina. Check was dishonored.
Mesina now claims from the drawer bank. Bank files action for interpleader namin
g Go and Mesina as respondents. Court orders respondents to file their answers.
Held: Interpleader was a proper remedy. An order to file an answer is proper and
equivalent to an order to interplead. Failure to file an answer results in the
party being declared in default.
2. Declaratory Relief and Similar Remedies
General Procedure in Declaratory Relief
a. Rule 63
Section 1. Who may file petition. Any person interested under a deed, will,
contract or other written instrument, whose rights are affected by a statute, ex
ecutive order or regulation, ordinance, or any other governmental regulation may
, before breach or violation thereof, bring an action in the appropriate Regiona
l Trial Court to determine any question of construction or validity arising, and
for a declaration of his rights or duties, thereunder.
An action for the reformation of an instrument, to quiet title to real prope
rty or remove clouds therefrom, or to consolidate ownership under Article 1607 o
f the Civil Code, may be brought under this Rule. (1a, R64)
Requisites for declaratory relief
1. plaintiff is interested under a deed, will, contract or other written instrum
ent
2. plaintiff s rights are affected by a statute, executive order or regulation, or
dinance, or any other governmental regulation
3. before breach or violation thereof
4. bring an action in the appropriate RTC
5. purpose is
a. to determine any question of construction or validity arising thereunder, and
b. for a declaration of his rights or duties thereunder
An action for declaratory relief may also be brought for the reformation of an i
nstrument, to quiet title to real property or remove clouds therefrom, or to con
solidate ownership.
To register his title to real property bought with a right of redemption, the bu
yer must file an action for declaratory relief. cf Art. 1607 and 1616 NCC
Art. 1607. In case of real property, the consolidation of ownership in the vende
e by virtue of the failure of the vendor to comply with the provisions of articl
e 1616 shall not be recorded in the Registry of Property without a judicial orde
r, after the vendor has been duly heard. (n)
Art. 1616. The vendor cannot avail himself of the right of repurchase without re
turning to the vendee the price of the sale, and in addition:
(1) The expenses of the contract, and any other legitimate payments made by
reason of the sale;
(2) The necessary and useful expenses made on the thing sold. (1518)
Sec. 2. Parties. All persons who have or claim any interest which would be a
ffected by the declaration shall be made parties; and no declaration shall, exce
pt as otherwise provided in these Rules, prejudice the rights of persons not par
ties to the action. (2a, R64)
Sec. 3. Notice on Solicitor General. In any action which involves the validi
ty of a statute, executive order or regulation, or any other governmental regula
tion, the Solicitor General shall be notified by the party assailing the same an
d shall be entitled to be heard upon such question. (3a, R64)
Sec. 4. Local government ordinances. In any action involving the validity of
a local government ordinance, the corresponding prosecutor or attorney of the l
ocal governmental unit involved shall be similarly notified and entitled to be h
eard. If such ordinance is alleged to be unconstitutional, the Solicitor General
shall also be notified and entitled to be heard. (4a, R64)
Sec. 5. Court action discretionary. Except in actions falling under the seco
nd paragraph of section 1 of this Rule, the court, motu proprio or upon motion,
may refuse to exercise the power to declare rights and to construe instruments i
n any case where a decision would not terminate the uncertainty or controversy w
hich gave rise to the action, or in any case where the declaration or constructi
on is not necessary and proper under the circumstances. (5a, R64)
Grounds for the court to refuse to exercise declaratory relief
1. a decision would not terminate the uncertainty or controversy which gave rise
to the action, or
2. the declaration or construction is not necessary and proper under the circums
tances.
Sec. 6. Conversion into ordinary action. If before the final termination of
the case, a breach or violation of an instrument or a statute, executive order o
r regulation, ordinance, or any other governmental regulation should take place,
the action may thereupon be converted into an ordinary action, and the parties
shall be allowed to file such pleadings as may be necessary or proper. (6a, R64)
Ordinary civil action plaintiff alleges that his right has been violated by the
defendant; judgment rendered is coercive in character; a writ of execution may b
e executed against the defeated party
Special civil action of declaratory relief an impending violation is sufficient
to file a declaratory relief; no execution may be issued; the court merely makes
a declaration
b. Cases
Edades v. Edades, 99 Phil 675 (1956) The determination of hereditary rights in t
he estate of a living person is not a proper subject of an action for declarator
y relief. The remedy is declaratory relief for declaration of filiation.
Santos v. Aquino, 94 Phil 65 (1953) Declaratory relief for construction is not a
proper remedy where the terms of the questioned ordinance are are clear and una
mbiguous. The remedy of declaratory relief for invalidity is precluded by a brea
ch (e.g. the tax imposed by the questioned ordinance is already due when the cas
e was filed). Finally, an action for declaratory relief must also be brought by
a real party in interest.
de Leon: Had the case been filed before the taxes became due, the action would h
ave been converted into an ordinary civil action.
Gomez v. Palomar, 25 SCRA 827 (1968) A requisite for declaratory relief for inva
lidity is that it must have been brought before a breach or violation. Conversio
n into a civil action applies only if the breach occurs after the filing of the
action but before the termination thereof.
Matalin Coconut v. Municipality of Malabang, 143 SCRA 404 (1986) Where a tax imp
osed by the questioned ordinance was paid under protest, there is no breach, and
hence declaratory relief still lies. In any case, declaratory relief is proper
as to future taxes that may be imposed.
de Leon: Could not the plaintiffs in Santos and Gomez claim that their action fo
r declaratory relief claim that their action for declaratory relief is proper fo
r future taxes to be imposed or future stamps to be required?
3. Review of Judgments and Final Orders or Resolutions of the Commission on Elec
tions and the Commission on Audit (Rule 64)
General Procedure in Review of COMELEC and CoA decisions
Section 1. Scope. This Rule shall govern the review of judgments and final o
rders or resolutions of the Commission on Elections and the Commission on Audit.
(n)
Note that despite Sec. 7, Art. IX-A of the 1987 Constitution,
Section 7. xxx Unless otherwise provided by this Constitution or by law, any dec
ision, order, or ruling of each Commission may be brought to the Supreme Court o
n certiorari by the aggrieved party within thirty days from receipt of a copy th
ereof.
appeals from decisions of the Civil Service Commission are now brought to the CA
by law (RA 7902 which took effect on February 1995) via petition for review und
er Rule 43.
Sec. 2. Mode of review. A judgment or final order or resolution of the Commi
ssion on Elections and the Commission on Audit may be brought by the aggrieved p
arty to the Supreme Court on certiorari under Rule 65, except as hereinafter pro
vided. (n)
Sec. 3. Time to file petition. The petition shall be filed within thirty (30
) days from notice of the judgment or final order or resolution sought to be rev
iewed. The filing of a motion for new trial or reconsideration of said judgment
or final order or resolution, if allowed under the procedural rules of the Commi
ssion concerned, shall interrupt the period herein fixed. If the motion is denie
d, the aggrieved party may file the petition within the remaining period, but wh
ich shall not be less than five (5) days in any event, reckoned from notice of d
enial. (n)
Note that petition for review from decisions of quasi-judicial agencies to the C
A should be within 15 days and does not stay the decision appealed.
Petition for review from decisions of the RTC decided in its appellate jurisdict
ion filed to the CA should be filed within 15 days and stays execution, unless t
he case is under the rules of Summary Procedure.
Special civil actions of certiorari, prohibition, and mandamus, from Comelec and
CoA should be filed within 30 days, and does not stay the decision appealed.
Bottomline: Decisions of quasi-judicial bodies are not stayed by appeal alone. D
ecisions of regular courts are stayed on appeal (de Leon: Though in petition for
review on certiorari to the SC via Rule 45, there is no express provision on ef
fect of appeal on execution).
de Leon: The not less than 5 days provision for filing a pleading applies only to
1. filing an answer after a denial of a MtD
2. filing an answer after denial or service of a bill of particulars
3. filing an special civil action for certiorari from a decision of the Comelec
or CoA after denial of a MfR or MNT
It does not apply to filing appeal from decisions of other entities after denial
of a MfR or MNT. In such cases, either the parties have a fresh 15 days, or the
balance.
Sec. 4. Docket and other lawful fees. Upon the filing of the petition, the p
etitioner shall pay to the clerk of court the docket and other lawful fees and d
eposit the amount of P500.00 for costs. (n)
Sec. 5. Form and contents of petition. The petition shall be verified and fi
led in eighteen (18) legible copies. The petition shall name the aggrieved party
as petitioner and shall join as respondents the Commission concerned and the pe
rson or persons interested in sustaining the judgment, final order or resolution
a quo. The petition shall state the facts with certainty, present clearly the i
ssues involved, set forth the grounds and brief arguments relied upon for review
, and pray for judgment annulling or modifying the questioned judgment, final or
der or resolution. Findings of fact of the Commission supported by substantial e
vidence shall be final and non-reviewable.
The petition shall be accompanied by a clearly legible duplicate original or
certified true copy of the judgment, final order or resolution subject thereof,
together with certified true copies of such material portions of the record as
are referred to therein and other documents relevant and pertinent thereto. The
requisite number of copies of the petition shall contain plain copies of all doc
uments attached to the original copy of said petition.
The petition shall state the specific material dates showing that it was fil
ed within the period fixed herein, and shall contain a sworn certification again
st forum shopping as provided in the third paragraph of section 3, Rule 46.
The petition shall further be accompanied by proof of service of a copy ther
eof on the Commission concerned and on the adverse party, and of the timely paym
ent of docket and other lawful fees.
The failure of petitioner to comply with any of the foregoing requirements s
hall be sufficient ground for the dismissal of the petition. (n)
Going to the SC, always 18 copies. Going to the CA, always 7 copies.
The petitioner must also file a certification against forum-shopping.
Sec. 6. Order to comment. If the Supreme Court finds the petition sufficient
in form and substance, it shall order the respondents to file their comments on
the petition within ten (10) days from notice thereof; otherwise, the Court may
dismiss the petition outright. The Court may also dismiss the petition if it wa
s filed manifestly for delay, or the questions raised are too unsubstantial to w
arrant further proceedings. (n)
Sec. 7. Comments of respondents. The comments of the respondents shall be fi
led in eighteen (18) legible copies. The original shall be accompanied by certif
ied true copies of such material portions of the record as are referred to there
in together with other supporting papers. The requisite number of copies of the
comments shall contain plain copies of all documents attached to the original an
d a copy thereof shall be served on the petitioner.
No other pleading may be filed by any party unless required or allowed by th
e Court. (n)
Sec. 8. Effect of filing. The filing of a petition for certiorari shall not
stay the execution of the judgment or final order or resolution sought to be rev
iewed, unless the Supreme Court shall direct otherwise upon such terms as it may
deem just. (n)
Sec. 9. Submission for decision. Unless the Court sets the case for oral arg
ument, or requires the parties to submit memoranda, the case shall be deemed sub
mitted for decision upon the filing of the comments on the petition, or of such
other pleadings or papers as may be required or allowed, or the expiration of th
e period to do so. (n)
4. Certiorari, Prohibition and Mandamus
a. Definitions
without jurisdiction no jurisdiction from the beginning; absolute want of jurisd
iction
in excess of jurisdiction transcended the limits of authority without any statut
ory authority
grave abuse of discretion exercised its power in an arbitrary or despotic manner
by reason of passion or personal hostilities; so patent and gross as to amount
to an evasion or virtual refusal to perform the duty enjoined or to act in conte
mplation of law
b. Purposes of a writ of
Certiorari to correct errors of jurisdiction; refers to only to judicial or quas
i-judicial functions
Prohibition to prevent respondent from usurping a jurisdiction which it is not l
egally vested; refers to judicial, quasi-judicial, or ministerial functions
Mandamus to require or compel the respondent to perform a particular duty, which
duty results from the official station of the respondent, or from operation of
law; refers only to ministerial duties
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General Procedure in CPM
Section 1. Petition for certiorari. When any tribunal, board or officer exer
cising judicial or quasi-judicial functions has acted without or in excess of it
s or his jurisdiction, or with grave abuse of discretion amounting to lack or ex
cess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate
remedy in the ordinary course of law, a person aggrieved thereby may file a ver
ified petition in the proper court, alleging the facts with certainty and prayin
g that judgment be rendered annulling or modifying the proceedings of such tribu
nal, board or officer, and granting such incidental reliefs as law and justice m
ay require.
The petition shall be accompanied by a certified true copy of the judgment,
order or resolution subject thereof, copies of all pleadings and documents relev
ant and pertinent thereto, and a sworn certification of non-forum shopping as pr
ovided in the third paragraph of section 3, Rule 46. (1a)
Memorize!
Note that certiorari is directed only against an entity exercising judicial or q
uasi-judicial functions. The result is proceedings are annulled or modified.
Sec. 2. Petition for prohibition. When the proceedings of any tribunal, corp
oration, board, officer or person, whether exercising judicial, quasi-judicial o
r ministerial functions, are without or in excess of its or his jurisdiction, or
with grave abuse of discretion amounting to lack or excess of jurisdiction, and
there is no appeal or any other plain, speedy, and adequate remedy in the ordin
ary course of law, a person aggrieved thereby may file a verified petition in th
e proper court, alleging the facts with certainty and praying that judgment be r
endered commanding the respondent to desist from further proceedings in the acti
on or matter specified therein, or otherwise granting such incidental reliefs as
law and justice may require.
The petition shall likewise be accompanied by a certified true copy of the j
udgment, order or resolution subject thereof, copies of all pleadings and docume
nts relevant and pertinent thereto, and a sworn certification of non-forum shopp
ing as provided in the third paragraph of section 3, Rule 46. (2a)
Memorize!
Note that prohibition is directed anybody. The result is the respondent is order
ed to desist from further proceedings.
Sec. 3. Petition for mandamus. When any tribunal, corporation, board, office
r or person unlawfully neglects the performance of an act which the law specific
ally enjoins as a duty resulting from an office, trust, or station, or unlawfull
y excludes another from the use and enjoyment of a right or office to which such
other is entitled, and there is no other plain, speedy and adequate remedy in t
he ordinary course of law, the person aggrieved thereby may file a verified peti
tion in the proper court, alleging the facts with certainty and praying that jud
gment be rendered commanding the respondent, immediately or at some other time t
o be specified by the court, to do the act required to be done to protect the ri
ghts of the petitioner, and to pay the damages sustained by the petitioner by re
ason of the wrongful acts of the respondent.
The petition shall also contain a sworn certification of non-forum shopping
as provided in the third paragraph of section 3, Rule 46. (3a)
Memorize!
Note that mandamus is directed against entities exercising only ministerial func
tions. The result is the respondent is ordered to desist from further proceeding
s.
Sec 4. When and where petition filed. - The petition shall be filed not late
r than sixty (60) days from notice of the judgment, order or resolution. In case
a motion for reconsideration or new trial is timely filed, whether such motion
is required or not, the sixty (60) day period shall be counted from notice of th
e denial of the said motion.
The petition shall be filed in the Supreme Court or, if it relates to the ac
ts or omissions of a lower court or of a corporation, board, officer or person,
in the Regional Trial Court exercising jurisdiction over the territorial area as
defined by the Supreme Court. It may also be filed in the Court of Appeals whet
her or not the same is in the aid of its appellate jurisdiction, or in the Sandi
ganbayan if it is in aid of its appellate jurisdiction. If it involves the acts
or omissions of a quasi-judicial agency, unless otherwise provided by law or the
se rules, the petition shall be filed in and cognizable only by the Court of App
eals.
No extension of time to file the petition shall be granted except for compel
ling reason and in no case exceeding fifteen (15) days. (4a)
Like petitions for review to the CA and petition for review on certiorari to the
SC, the period to file a special civil action for certiorari is counter from no
tice of the judgment or denial of a MNT or MfR, unlike in ordinary appeals where
an MfR or MNT only tolls the period and the appellant has only remainder of the
original 15 day period to appeal.
Sec. 5. Respondents and costs in certain cases. When the petition filed rela
tes to the acts or omissions of a judge, court, quasi-judicial agency, tribunal,
corporation, board, officer or person, the petitioner shall join, as private re
spondent or respondents with such public respondent or respondents, the person o
r persons interested in sustaining the proceedings in the court; and it shall be
the duty of such private respondents to appear and defend, both in his or their
own behalf and in behalf of the public respondent or respondents affected by th
e proceedings, and the costs awarded in such proceedings in favor of the petitio
ner shall be against the private respondents only, and not against the judge, co
urt, quasi-judicial agency, tribunal, corporation, board, officer or person impl
eaded as public respondent or respondents.
Unless otherwise specifically directed by the court where the petition is pe
nding, the public respondents shall not appear in or file an answer or comment t
o the petition or any pleading therein. If the case is elevated to a higher cour
t by either party, the public respondents shall be included therein as nominal p
arties. However, unless otherwise specifically directed by the court, they shall
not appear or participate in the proceedings therein. (5a)
Sec. 6. Order to comment. If the petition is sufficient in form and substanc
e to justify such process, the court shall issue an order requiring the responde
nt or respondents to comment on the petition within ten (10) days from receipt o
f a copy thereof. Such order shall be served on the respondents in such manner a
s the court may direct, together with a copy of the petition and any annexes the
reto.
In petitions for certiorari before the Supreme Court and the Court of Appeal
s, the provisions of section 2, Rule 56, shall be observed. Before giving due co
urse thereto, the court may require the respondents to file their comment to, an
d not a motion to dismiss, the petition. Thereafter, the court may require the f
iling of a reply and such other responsive or other pleadings as it may deem nec
essary and proper. (6a)
Sec. 7. Expediting proceedings; injunctive relief. The court in which the pe
tition is filed may issue orders expediting the proceedings, and it may also gra
nt a temporary restraining order or a writ of preliminary injunction for the pre
servation of the rights of the parties pending such proceedings. The petition sh
all not interrupt the course of the principal case unless a temporary restrainin
g order or a writ of preliminary injunction has been issued against the public r
espondent from further proceeding in the case. (7a)
A special civil action for certiorari, prohibition, and mandamus does not stay e
xecution, unless a TRO or PI is issued.
Sec. 8. Proceedings after comment is filed. After the comment or other plead
ings required by the court are filed, or the time for the filing thereof has exp
ired, the court may hear the case or require the parties to submit memoranda. If
after such hearing or submission of memoranda or the expiration of the period f
or the filing thereof the court finds that the allegations of the petition are t
rue, it shall render judgment for the relief prayed for or to which the petition
er is entitled.
The court, however, may dismiss the petition if it finds the same to be pate
ntly without merit, prosecuted manifestly for delay, or that the questions raise
d therein are too unsubstantial to require consideration. (8a)
Grounds for the court to motu propio dismiss the special civil action for CPM
1. patently without merit
2. prosecuted manifestly for delay, or
3. the questions raised therein are too unsubstantial to require consideration.
Sec. 9. Service and enforcement of order or judgment. A certified copy of th
e judgment rendered in accordance with the last preceding section shall be serve
d upon the court, quasi-judicial agency, tribunal, corporation, board, officer o
r person concerned in such manner as the court may direct, and disobedience ther
eto shall be punished as contempt. An execution may issue for any damages or cos
ts awarded in accordance with section 1 of Rule 39. (9a)
e. Cases
Fortich v. Corona, 289 SCRA An error of judgment is one which the court may comm
it in the exercise of its jurisdiction, and which error is reviewable only by an
appeal. Error of jurisdiction is one where the act complained of was issued by
the court, officer or a quasi-judicial body without or in excess of jurisdiction
, or with grave abuse of discretion which is tantamount to lack or in excess of
jurisdiction. This error is correctable only by the extraordinary writ of certio
rari.
Dela Cruz v. IAC, 134 SCRA 417 (1985) The remedy from a dismissal of a case is a
ppeal. Special Civil Action of Certiorari is precluded where the remedy of appea
l was available but has been lost. Special Civil Action of Certiorari can not ta
ke the place of a lost appeal.
Dauz v. Eleosida, 1 SCRA 990 (1961)
Facts: Dauz was charged for non-payment of municipal license fees for the 2nd, 3
rd, and 4th quarters of 1958. Dauz moved to quash on the ground that the facts d
id not constitute an offense because he had paid municipal license fees for the
1st quarter and therefore the remedy of the government was to collect by civil
action. Denied by the justice of the peace. Dauz files a petition for certorari
with the CFI. Again denied.
Held: The act complained of was clearly in violation of an ordinance which provi
des for a penalty therefore. Whether or not he paid for the 1st quarter constitu
tes a defense which he may prove during the trial. If such defense fails, appeal
is available. Where appeal is available, certiorari and prohibition do not lie.
People v. Ramos, 83 SCRA 1 (1978) Where an information or complaint been allowed
despite a patent defect (e.g. prescription), appeal is not an adequate remedy.
However, mandamus is not a proper remedy to quash an information because the lat
ter is not a ministerial function. The proper remedies are certiorari and prohib
ition.
Bautista v. Sarmiento, 128 SCRA 587 (1985) Special civil action for certiorari i
s not the proper remedy from a denial of a demurrer to evidence. Denial of a dem
urrer to evidence is merely an interlocutory order which can not be the subject
of a petition for certiorari. The remedy is to continue with the trial of the ca
se and had the decision been adverse, to raise the issue on appeal.
de Leon: What happened to the principle that interlocutory orders are not appeala
ble, but may be subject to certiorari? Special civil action for certiorari is pre
cisely the only remedy from interlocutory orders. I think what the SC was trying
to say was interlocutory orders are not appealable, and the only remedy is a sp
ecial civil action for certiorari. But this remedy is available only as an excep
tion rather than the rule.
Vda. de Bacang v. CA, 125 SCRA 137 (1983)
Facts: Petitioners filed action to recover their hereditary shares in land that
was awarded 43 years ago in a cadastral case. Respondents moved to dismiss on re
s judicata and prescription. Denied.
Held: Petitioners' action is clearly barred by valid prior judgments and prescri
ption. Private respondents' Torrens titles over the hacienda have long become in
defeasible. Since the grounds for dismissal are indubitable, the defendants had
the right to resort to the more speedy and adequate remedies of certiorari and p
rohibition to correct a grave abuse of discretion, amounting to lack of jurisdic
tion, committed by the trial court in not dismissing the case. Where the lower c
ourt refuses to dismiss the on a ground shown to be indubitable (e.g. res judica
ta and prescription), certiorari and prohibition is allowed.
Escolin: In these cases, the SC could have decided either way.
Santiago v. CA, 184 SCRA 590 (1990)
Facts: Judge disapproves agreement of parties as to just compensation in an expr
opriation proceedings. On special civil action for certiorari to the CA, CA reve
rses. Contending that since he was impleaded in the certiorari case before the C
A, he now files a petition for review on certiorari before the SC.
Held: Only a party is allowed to appeal to the SC by petition for review on cert
iorari. The judge who rendered the questioned decision is not a party. The fact
that he was named a party respondent before the SC does not give him capacity to
appeal. His being named a respondent is only for the purpose of questioning the
jurisdiction of the court itself. The judge is merely a nominal party. Respect
for judicial hierarchy bars a judge from suing against an adverse opinion of an
appellate court.
Calderon v. Solicitor-General, 215 SCRA 876 (1992)
Facts: Judge increases bail to an amount beyond that prescribed. On special civi
l action for certiorari, CA annuls judge s order. Judge files MfR in which the Sol
icitor General refuses to represent him. Judge goes to SC on special civil actio
n for certiorari and mandamus to compel the Solicitor General to represent him.
Held: A judge can not seek a reversal of a decision reversing his own decision.
The judge has not standing to file the certiorari proceeding. He is merely a nom
inal party in the certiorari proceeding before the CA. Furthermore, the Solicito
r General has discretion to decide when and how to prosecute a case. His duty is
therefore discretionary, not ministerial, and therefore can not be compelled by
mandamus.
de Leon: Note that in these last 2 decisions (Santos and Calderon), the judges
were invoking the fact that they were impleaded before the CA. It is only in spe
cial civil actions for certiorari that the lower courts are impleaded. In all mo
des of appeal (special civil action is, strictly speaking, not an appeal), the l
ower court is not impleaded.
Municipality of Bian, Laguna v. CA, 219 SCRA 69 (1993)
Facts: Municipality files an ejectment case against a lessee of its property. MT
C rules for municipality. Execution pending appeal was granted. Lessee questions
the execution pending appeal in a petition for certiorari before the CA. The CA
not only annulled execution pending appeal, but also reversed the main decision
.
Held: The only issue in the certiorari proceedings was the propriety of the exec
ution pending appeal. Even if the error in the main decision was raised the in t
he certiorari proceedings, such issue is improper because the remedy of appeal i
s still available and was in fact availed of.
5. Quo Warranto
Quo Warranto a demand made by the state upon some individual or corporation to s
how by what right they exercise some franchise or privilege appertaining to the
State which according to the Constitution or the laws of the land, they can not
legally exercise by virtue of a grant or authority from the State
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a. Rule 66
General procedure in quo warranto
Section 1. Action by Government against individuals. An action for the usurp
ation of a public office, position or franchise may be commenced by a verified p
etition brought in the name of the Republic of the Philippines against:
(a) A person who usurps, intrudes into, or unlawfully holds or exercises a p
ublic office, position or franchise;
(b) A public officer who does or suffers an act which, by the provision of l
aw, constitutes a ground for the forfeiture of his office; or
(c) An association which acts as a corporation within the Philippines withou
t being legally incorporated or without lawful authority so to act. (1a)
Grounds for quo warranto filed by the government
1. a person usurps, intrudes into, or unlawfully holds or exercises a public off
ice, position or franchise;
2. a public officer who does or suffers an act which, by the provision of law, c
onstitutes a ground for the forfeiture of his office; or
3. an association which acts as a corporation within the Philippines without bei
ng legally incorporated or without lawful authority so to act.
Sec. 2. When Solicitor General or public prosecutor must commence action. Th
e Solicitor General or a public prosecutor, when directed by the President of th
e Philippines, or when upon complaint or otherwise he has good reason to believe
that any case specified in the preceding section can be established by proof, m
ust commence such action. (3a)
Sec. 3. When Solicitor General or public prosecutor may commence action with
permission of court. The Solicitor General or a public prosecutor may, with the
permission of the court in which the action is to be commenced, bring such an a
ction at the request and upon the relation of another person; but in such case t
he officer bringing it may first require an indemnity for the expenses and costs
of the action in an amount approved by and to be deposited in the court by the
person at whose request and upon whose relation the same is brought. (4a)
Sec. 4. When hearing had on application for permission to commence action. U
pon application for permission to commence such action in accordance with the ne
xt preceding section, the court shall direct that notice be given to the respond
ent so that he may be heard in opposition thereto; and if permission is granted,
the court shall issue an order to that effect, copies of which shall be served
on all interested parties, and the petition shall then be filed within the perio
d ordered by the court. (5a)
Requisites for Quo Warranto by Government against individuals
1. verified petition
2. commenced by the Solicitor General or public prosecutor, in the name of the R
epublic of the Philippines after either
a. being directed by the President
b. upon complaint or otherwise, he has good reason to believe the grounds can be
established by proof, or
c. with the permission of the court
1) at the request and upon the relation of another person
2) after requiring an indemnity for the expenses and costs of the action in an a
mount approved by and to be deposited in the court
3) court directs that notice be given to the respondent
Sec. 5. When an individual may commence such an action. A person claiming to
be entitled to a public office or position usurped or unlawfully held or exerci
sed by another may bring an action therefor in his own name. (6)
Only grounds for quo warranto filed by an individual respondent is usurping, un
lawfully holding, or is exercising a public office or position being claimed by
the petitioner
Sec. 6. Parties and contents of petition against usurpation. When the action
is against a person for usurping a public office, position or franchise, the pe
tition shall set forth the name of the person who claims to be entitled thereto,
if any, with an averment of his right to the same and that the respondent is un
lawfully in possession thereof. All persons who claim to be entitled to the publ
ic office, position or franchise may be made parties, and their respective right
s to such public office, position or franchise determined, in the same action. (
7a)
When the action is against a person for usurping a public office, position or f
ranchise, the petition shall set forth
1. the name of the person who claims to be entitled thereto, if any
2. averment
a. of petitioner s right to the same and
b. that the respondent is unlawfully in possession thereof
All persons who claim to be entitled to the public office, position or franchise
may be made parties, and their respective rights to such public office, positio
n or franchise determined, in the same action.
Sec. 7. Venue. An action under the preceding six sections can be brought onl
y in the Supreme Court, the Court of Appeals, or in the Regional Trial Court exe
rcising jurisdiction over the territorial area where the respondent or any of th
e respondents resides, but when the Solicitor General commences the action, it m
ay be brought in a Regional Trial Court in the City of Manila, in the Court of A
ppeals, or in the Supreme Court. (8a)
Venue for quo warranto
1. SC, CA or RTC exercising jurisdiction over the territorial area where the res
pondent or any of the respondents resides, or
2. SC, CA or RTC of Manila if commenced by the Solicitor General
Sec. 8. Period for pleadings and proceedings may be reduced; action given pr
ecedence. The court may reduce the period provided by these Rules for filing ple
adings and for all other proceedings in the action in order to secure the most e
xpeditious determination of the matters involved therein consistent with the rig
hts of the parties. Such action may be given precedence over any other civil mat
ter pending in the court. (9a)
Sec. 9. Judgment where usurpation found. When the respondent is found guilty
of usurping, intruding into, or unlawfully holding or exercising a public offic
e, position or franchise, judgment shall be rendered that such respondent be ous
ted and altogether excluded therefrom, and that the petitioner or relator, as th
e case may be, recover his costs. Such further judgment may be rendered determin
ing the respective rights in and to the public office, position or franchise of
all the parties to the action as justice requires. (10a)
When the respondent is found guilty of usurping, intruding into, or unlawfully
holding or exercising a public office, position or franchise, judgment shall be
rendered that
1. such respondent be ousted and altogether excluded therefrom, and
2. the petitioner or relator, recover his costs
3. further judgment determining the respective rights in and to the public offic
e, position or franchise of all the parties to the action as justice requires.
Sec. 10. Rights of persons adjudged entitled to public office; delivery of b
ooks and papers; damages. If judgment be rendered in favor of the person averred
in the complaint to be entitled to the public office he may, after taking the o
ath of office and executing any official bond required by law, take upon himself
the execution of the office, and may immediately thereafter demand of the respo
ndent all the books and papers in the respondent s custody or control appertaining
to the office to which the judgment relates. If the respondent refuses or negle
cts to deliver any book or paper pursuant to such demand, he may be punished for
contempt as having disobeyed a lawful order of the court. The person adjudged e
ntitled to the office may also bring action against the respondent to recover th
e damages sustained by such person by reason of the usurpation. (15a)
After taking the oath of office and executing any required bond, rights of pers
ons adjudged entitled to public office
1. To take upon himself the execution of the office
2. to demand of the respondent all the books and papers in the respondent s custod
y or control appertaining to the office to which the judgment relates, failure o
f which is punishable by contempt
3. to bring action against the respondent to recover the damages sustained by su
ch person by reason of the usurpation.
Sec. 11. Limitations. Nothing contained in this Rule shall be construed to a
uthorize an action against a public officer or employee for his ouster from offi
ce unless the same be commenced within one (1) year after the cause of such oust
er, or the right of the petitioner to hold such office or position, arose; nor t
o authorize an action for damages in accordance with the provisions of the next
preceding section unless the same be commenced within one (1) year after the ent
ry of the judgment establishing the petitioner s right to the office in question.
(16a)
Prescription for quo warranto 1 year after
1. cause of such ouster, or
2. the right of the petitioner to hold such office or position arose
Prescription for an action for damages after quo warranto 1 year after the entry
of the judgment establishing the petitioner s right to the office in question
Sec. 12. Judgment for costs. In an action brought in accordance with the pro
visions of this Rule, the court may render judgment for costs against either the
petitioner, the relator, or the respondent, or the person or persons claiming t
o be a corporation, or may apportion the costs, as justice requires. (17a)
b. Cases
Campos v. Degamo, 6 SCRA 235 (1962)
Facts: Councilors # 1 Campos and # 2 Oroc files a quo warranto against the Mayor
Degamo and Vice-Mayor Palarca on the ground that there was no valid canvass for
the offices of Mayor and Vice Mayor effected and the respondents could not lega
lly occupy the said positions because the Board of Canvassers used in their canv
ass for election the election return coming from the Provincial Treasurer's Offi
ce, inspite of the fact that the copy of the election return in the hands of the
municipal treasurer was available. They prayed that Degamo and Palarca be exclu
ded from their offices and that Campos and Oroc be declared entitled thereto.
Held: Where the quo warranto complaint involves an elective office, it must be s
hown that the plaintiff was duly elected thereto. Campos being candidates for co
uncilors and not for mayor and vice-mayor, could not have been elected to the of
fices in question, and therefore are not proper parties to the quo warranto case
. Moreover, there being a pending case for quo warranto filed by other candidate
s for mayor and vice-mayor, the filing of the case at bar was premature and the
cause of action had not as yet accrued.
Sison v. Pangramuyen, 84 SCRA 364 (1978)
Facts: Sison files a petition for quo warranto questioning the appointment of Ma
liwanag by the CSC as assistant city assessor on November 1973. He claims that h
e should be the one appointed as per the next-in rank-rule. The petition was fil
ed on March 1975, more than a year after the appointment of Maliwanag.
Held: The action has prescribed because quo warranto prescribes after 1 year fro
m the time the cause of action accrues (i.e. questioned appointment). Resort to
administrative remedy does not abate the period for judicial action.
Municipality of San Narciso v. Mendez, 239 SCRA 11 (1994)
Facts: President Garcia created the Municipality of San Andres by an EO in 1959.
In 1965, the case of Pelaez v. Auditor-General was promulgated declaring the cr
eation of LGUs to be a legislative, not an executive function. Municipality of S
an Narciso files a petition for quo warranto against the LG officials of San And
res in 1989.
Held: The quo warranto is focused on the legal existence of a body politic, the
action is reserved to the State. It must be brought "in the name of the Republic
of the Philippines" and commenced by the Solicitor General or the fiscal "when
directed by the President of the Philippines." Such officers may, under certain
circumstances, bring such an action "at the request and upon the relation of ano
ther person" with the permission of the court. When an individual seeks to comme
nce an action for quo warranto in his own name, this can only be done if he clai
ms to be "entitled to a public office or position usurped or unlawfully held or
exercised by another." While the quo warranto proceedings filed below by petitio
ner municipality has so named only the officials of the Municipality of San Andr
es as respondents, it is virtually, however, a denunciation of the authority of
the Municipality or Municipal District of San Andres to exist and to act in that
capacity. Besides, the cause of action has prescribed because it was filed near
ly 30 years after the cause of action accrued, way beyond the 1 year provided by
the RoC.
Escolin: Sec. 1. includes usurpation of franchise as among the ground for quo wa
rranto being filed by the government. In the Municipality of San Narciso case, t
he court interpreted franchise loosely.
6. Expropriation
Eminent domain/expropriation power of the sovereign state to take or authorize t
he taking of any property within jurisdiction for the public use and without the
owner s consent
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General Procedure in Expropriation
1. verified complaint
2. plaintiff may immediately enter upon deposit, with a government depositary ba
nk, of the assessed value of the property
3. defendant files either
a. notice of appearance and manifestation, or
b. answer
4. order of expropriation, may be appealed which does not suspend proceedings
5. court appoints 3 commissioners
6. commissioners report filed within 60 days from notification of appointment
7. parties have 10 days to file their objections to the report
8. court accepts or rejects the commissioners report, or recommits to the commiss
ioners, or appoint another set of commissioners
9. plaintiff enters or retains possession upon payment of just compensation
10. Entry not delayed by appeal; reversal entitles defendant to recover possessi
on
Section 1. The complaint. The right of eminent domain shall be exercised by
the filing of a verified complaint which shall state with certainty the right an
d purpose of expropriation, describe the real or personal property sought to be
expropriated, and join as defendants all persons owning or claiming to own, or o
ccupying, any part thereof or interest therein, showing, so far as practicable,
the separate interest of each defendant. If the title to any property sought to
be expropriated appears to be in the Republic of the Philippines, although occup
ied by private individuals, or if the title is otherwise obscure or doubtful so
that the plaintiff cannot with accuracy or certainty specify who are the real ow
ners, averment to that effect shall be made in the complaint. (1a)
Contents of a complaint for expropriation
1. verified
2. state with certainty the right and purpose of expropriation
3. describe the real or personal property sought to be expropriated
4. join as defendants all persons owning or claiming to own, or occupying, any p
art thereof or interest therein, showing, so far as practicable, the separate in
terest of each defendant.
5. averment of the following if it so appears
a. title to the property is in the Republic of the Philippines, although occupie
d by private individuals, or
b. title is otherwise obscure or doubtful so that the plaintiff cannot with accu
racy or certainty specify who are the real owners
Sec. 2. Entry of plaintiff upon depositing value with authorized government
depositary. Upon the filing of the complaint or at any time thereafter and after
due notice to the defendant, the plaintiff shall have the right to take or ente
r upon the possession of the real property involved if he deposits with the auth
orized government depositary an amount equivalent to the assessed value of the p
roperty for purposes of taxation to be held by such bank subject to the orders o
f the court. Such deposit shall be in money, unless in lieu thereof the court au
thorizes the deposit of a certificate of deposit of a government bank of the Rep
ublic of the Philippines payable on demand to the authorized government deposita
ry.
If personal property is involved, its value shall be provisionally ascertain
ed and the amount to be deposited shall be promptly fixed by the court.
After such deposit is made the court shall order the sheriff or other proper
officer to forthwith place the plaintiff in possession of the property involved
and promptly submit a report thereof to the court with service of copies to the
parties. (2a)
Requisites for plaintiff to enter upon the possession of the real property invo
lved
1. upon filing of the complaint, or at any time thereafter
2. with due notice to the defendant
3. deposits with the authorized government depositary an amount equivalent to th
e
a. real property assessed value of the property for purposes of taxation
b. personal property value provisionally ascertained and the amount to be deposi
ted as fixed by the court
4. Deposit must be
a. in money, or
b. if the court so authorizes, the deposit of a certificate of deposit of a gove
rnment bank of the Republic of the Philippines payable on demand to the authoriz
ed government depositary.
5. court ordering the sheriff or other proper officer to
a. place the plaintiff in possession of the property involved and
b. submit a report thereof to the court with service of copies to the parties
Sec. 3. Defenses and objections. If a defendant has no objection or defense
to the action or the taking of his property, he may file and serve a notice of a
ppearance and a manifestation to that effect, specifically designating or identi
fying the property in which he claims to be interested, within the time stated i
n the summons. Thereafter, he shall be entitled to notice of all proceedings aff
ecting the same.
If a defendant has any objection to the filing of or the allegations in the
complaint, or any objection or defense to the taking of his property, he shall s
erve his answer within the time stated in the summons. The answer shall specific
ally designate or identify the property in which he claims to have an interest,
state the nature and extent of the interest claimed, and adduce all his objectio
ns and defenses to the taking of his property. No counterclaim, cross-claim or t
hird-party complaint shall be alleged or allowed in the answer or any subsequent
pleading.
A defendant waives all defenses and objections not so alleged but the court,
in the interest of justice, may permit amendments to the answer to be made not
later than ten (10) days from the filing thereof. However, at the trial of the i
ssue of just compensation, whether or not a defendant has previously appeared or
answered, he may present evidence as to the amount of the compensation to be pa
id for his property, and he may share in the distribution of the award. (n)
If a defendant has
1. no objection or defense to the action or the taking of his property he may fi
le and serve
a. a notice of appearance
b. a manifestation to that effect
c. specifically designating or identifying the property in which he claims to be
interested
d. within the time stated in the summons
e. thereafter, he shall be entitled to notice of all proceedings affecting the s
ame.
2. any objection to the filing of or the allegations in the complaint, or any ob
jection or defense to the taking of his property he shall
a. serve his answer within the time stated in the summons
b. answer shall specifically designate or identify the property in which he clai
ms to have an interest
c. state the nature and extent of the interest claimed
d. adduce all his objections and defenses to the taking of his property
e. No counterclaim, cross-claim or third-party complaint shall be alleged or all
owed in the answer or any subsequent pleading.
f. A defendant waives all defenses and objections not so alleged
g. the court, in the interest of justice, may permit amendments to the answer to
be made not later than 10 days from the filing
However, at the trial of the issue of just compensation, whether or not a defend
ant has previously appeared or answered, he may present evidence as to the amoun
t of the compensation to be paid for his property, and he may share in the distr
ibution of the award.
Sec. 4. Order of expropriation. If the objections to and the defenses agains
t the right of the plaintiff to expropriate the property are overruled, or when
no party appears to defend as required by this Rule, the court may issue an orde
r of expropriation declaring that the plaintiff has a lawful right to take the p
roperty sought to be expropriated, for the public use or purpose described in th
e complaint, upon the payment of just compensation to be determined as of the da
te of the taking of the property or the filing of the complaint, whichever came
first.
A final order sustaining the right to expropriate the property may be appeal
ed by any party aggrieved thereby. Such appeal, however, shall not prevent the c
ourt from determining the just compensation to be paid.
After the rendition of such an order, the plaintiff shall not be permitted t
o dismiss or discontinue the proceeding except on such terms as the court deems
just and equitable. (4a)
If the objections to and the defenses against the right of the plaintiff to exp
ropriate the property are overruled, or when no party appears to defend as requi
red by this Rule, the court may issue an order of expropriation
1. declaring that the plaintiff has a lawful right to take the property sought t
o be expropriated
2. for the public use or purpose described in the complaint
3. upon the payment of just compensation to be determined as of the date of the
taking of the property or the filing of the complaint, whichever came first.
A final order sustaining the right to expropriate the property may be appealed b
y any party aggrieved thereby. Such appeal, however, shall not prevent the court
from determining the just compensation to be paid.
After the rendition of such an order, the plaintiff shall not be permitted to di
smiss or discontinue the proceeding except on such terms as the court deems just
and equitable.
Sec. 5. Ascertainment of compensation. Upon the rendition of the order of ex
propriation, the court shall appoint not more than three (3) competent and disin
terested persons as commissioners to ascertain and report to the court the just
compensation for the property sought to be taken. The order of appointment shall
designate the time and place of the first session of the hearing to be held by
the commissioners and specify the time within which their report shall be submit
ted to the court.
Copies of the order shall be served on the parties. Objections to the appoin
tment of any of the commissioners shall be filed with the court within ten (10)
days from service, and shall be resolved within thirty (30) days after all the c
ommissioners shall have received copies of the objections. (5a)
Commissioners are appointed only if the parties can not agree as to the just com
pensation for the property
Upon the rendition of the order of expropriation
1. the court shall appoint not more than 3 competent and disinterested persons a
s commissioners to ascertain and report to the court the just compensation for t
he property sought to be taken.
2. The order of appointment shall designate the time and place of the first sess
ion of the hearing to be held by the commissioners and specify the time within w
hich their report shall be submitted to the court.
3. Copies of the order shall be served on the parties.
4. Objections to the appointment of any of the commissioners shall be filed with
the court within 10 days from service, and shall be resolved within 30 days aft
er all the commissioners shall have received copies of the objections.
Sec. 6. Proceedings by commissioners. Before entering upon the performance o
f their duties, the commissioners shall take and subscribe an oath that they wil
l faithfully perform their duties as commissioners, which oath shall be filed in
court with the other proceedings in the case. Evidence may be introduced by eit
her party before the commissioners who are authorized to administer oaths on hea
rings before them, and the commissioners shall, unless the parties consent to th
e contrary, after due notice to the parties to attend, view and examine the prop
erty sought to be expropriated and its surroundings, and may measure the same, a
fter which either party may, by himself or counsel, argue the case. The commissi
oners shall assess the consequential damages to the property not taken and deduc
t from such consequential damages the consequential benefits to be derived by th
e owner from the public use or purpose of the property taken, the operation of i
ts franchise by the corporation or the carrying on of the business of the corpor
ation or person taking the property. But in no case shall the consequential bene
fits assessed exceed the consequential damages assessed, or the owner be deprive
d of the actual value of his property so taken. (6a)
Before entering upon the performance of their duties
1. the commissioners shall take and subscribe an oath that they will faithfully
perform their duties as commissioners
2. such oath shall be filed in court with the other proceedings in the case.
Evidence may be introduced by either party before the commissioners who are auth
orized to administer oaths on hearings before them, and the commissioners shall,
unless the parties consent to the contrary, after due notice to the parties to
attend, view and examine the property sought to be expropriated and its surround
ings, and may measure the same, after which either party may, by himself or coun
sel, argue the case.
The commissioners shall assess the consequential damages to the property not tak
en and deduct from such consequential damages the consequential benefits to be d
erived by the owner from the public use or purpose of the property taken, the op
eration of its franchise by the corporation or the carrying on of the business o
f the corporation or person taking the property. But in no case shall the conseq
uential benefits assessed exceed the consequential damages assessed, or the owne
r be deprived of the actual value of his property so taken.
Sec. 7. Report by commissioners and judgment thereupon. The court may order
the commissioners to report when any particular portion of the real estate shall
have been passed upon by them, and may render judgment upon such partial report
, and direct the commissioners to proceed with their work as to subsequent porti
ons of the property sought to be expropriated, and may from time to time so deal
with such property. The commissioners shall make a full and accurate report to
the court of all their proceedings, and such proceedings shall not be effectual
until the court shall have accepted their report and rendered judgment in accord
ance with their recommendations. Except as otherwise expressly ordered by the co
urt, such report shall be filed within sixty (60) days from the date the commiss
ioners were notified of their appointment, which time may be extended in the dis
cretion of the court. Upon the filing of such report, the clerk of the court sha
ll serve copies thereof on all interested parties, with notice that they are all
owed ten (10) days within which to file objections to the findings of the report
, if they so desire. (7a)
Sec. 8. Action upon commissioners report. Upon the expiration of the period o
f ten (10) days referred to in the preceding section, or even before the expirat
ion of such period but after all the interested parties have filed their objecti
ons to the report or their statement of agreement therewith, the court may, afte
r hearing, accept the report and render judgment in accordance therewith; or, fo
r cause shown, it may recommit the same to the commissioners for further report
of facts; or it may set aside the report and appoint new commissioners; or it ma
y accept the report in part and reject it in part; and it may make such order or
render such judgment as shall secure to the plaintiff the property essential to
the exercise of his right of expropriation, and to the defendant just compensat
ion for the property so taken. (8a)
Sec. 9. Uncertain ownership; conflicting claims. If the ownership of the pro
perty taken is uncertain, or there are conflicting claims to any part thereof, t
he court may order any sum or sums awarded as compensation for the property to b
e paid to the court for the benefit of the person adjudged in the same proceedin
g to be entitled thereto. But the judgment shall require the payment of the sum
or sums awarded to either the defendant or the court before the plaintiff can en
ter upon the property, or retain it for the public use or purpose if entry has a
lready been made. (9a)
Sec. 10. Rights of plaintiff after judgment and payment. Upon payment by the
plaintiff to the defendant of the compensation fixed by the judgment, with lega
l interest thereon from the taking of the possession of the property, or after t
ender to him of the amount so fixed and payment of the costs, the plaintiff shal
l have the right to enter upon the property expropriated and to appropriate it f
or the public use or purpose defined in the judgment, or to retain it should he
have taken immediate possession thereof under the provisions of section 2 hereof
. If the defendant and his counsel absent themselves from the court, or decline
to receive the amount tendered, the same shall be ordered to be deposited in cou
rt and such deposit shall have the same effect as actual payment thereof to the
defendant or the person ultimately adjudged entitled thereto. (10a)
Sec. 11. Entry not delayed by appeal; effect of reversal. The right of the p
laintiff to enter upon the property of the defendant and appropriate the same fo
r public use or purpose shall not be delayed by an appeal from the judgment. But
if the appellate court determines that plaintiff has no right of expropriation,
judgment shall be rendered ordering the Regional Trial Court to forthwith enfor
ce the restoration to the defendant of the possession of the property, and to de
termine the damages which the defendant sustained and may recover by reason of t
he possession taken by the plaintiff. (11a)
Note that entry may not be delayed by appeal. The remedy, in case of reversal on
appeal, is to restore the defendant to possession plus damages.
Sec. 12. Costs, by whom paid. The fees of the commissioners shall be taxed a
s a part of the costs of the proceedings. All costs, except those of rival claim
ants litigating their claims, shall be paid by the plaintiff, unless an appeal i
s taken by the owner of the property and the judgment is affirmed, in which even
t the costs of the appeal shall be paid by the owner. (12a)
Sec. 13. Recording judgment, and its effect. The judgment entered in expropr
iation proceedings shall state definitely, by an adequate description, the parti
cular property or interest therein expropriated, and the nature of the public us
e or purpose for which it is expropriated. When real estate is expropriated, a c
ertified copy of such judgment shall be recorded in the registry of deeds of the
place in which the property is situated, and its effect shall be to vest in the
plaintiff the title to the real estate so described for such public use or purp
ose. (13a)
Sec. 14. Power of guardian in such proceedings. The guardian or guardian ad
litem of a minor or of a person judicially declared to be incompetent may, with
the approval of the court first had, do and perform on behalf of his ward any ac
t, matter, or thing respecting the expropriation for public use or purpose of pr
operty belonging to such minor or person judicially declared to be incompetent,
which such minor or person judicially declared to be incompetent could do in suc
h proceedings if he were of age or competent. (14a)
b. Cases
City of Manila v. Arellano Law Colleges, 85 SCRA 663 (1950)
Facts: City of Manila seeks to expropriate land of Arellano University for the p
urpose of reselling it to the poor.
Held: In expropriation, necessity for taking does not mean an absolute but only
a reasonable or practical necessity, such as would combine the greatest benefit
to the public with the least inconvenience and expense to the condemning party a
nd property owner consistent with such benefit. In this case, necessity for the
condemnation has not been shown. The land in question has cost the owner P140,00
0. The people for whose benefit the condemnation is being undertaken are so poor
they could ill afford to meet this high price, unless they intend to borrow the
money with a view to disposing of the property later for a profit. Cheaper land
s not dedicated to a purpose so worthy as a school and more suited to the occupa
nts' needs and means, if really they only want to own their own homes, are aplen
ty elsewhere. On the other hand, the defendant not only has invested a considera
ble amount for its property but had the plans for construction ready and would h
ave completed the project a long time ago had it not been stopped by the city au
thorities. While a handful of people stand to profit by the expropriation, the d
evelopment of a university that has a present enrollment of 9,000 students would
be sacrificed. Any good that would accrue to the public from providing homes to
a few families fades into insignificance in comparison with the preparation of
young men and young women for useful citizenship and for service to the governme
nt and the community, a task which the government alone is not in a position to
undertake.
de Leon: This case is authority for saying that public purpose alone is not enou
gh to authorize expropriation.
EPZA v. Dulay, 149 SCRA 305 (1987) Just compensation is the value of the propert
y at the time of the taking of the property, or the fair and full equivalent of
the loss sustained. Determination of just compensation is a judicial function. E
xecutive and legislative departments may make the initial determination, but it
can not be deemed final. Statutes that seek to impose otherwise, or seek to limi
t judicial discretion to determining which is lower between to set values is uncon
stitutional.
Manila Electric Company v. Pineda, 206 SCRA 196 (1992) Appointment of 3 commissi
oners to ascertain just compensation is a mandatory requirement in expropriation
. Though its findings may be disregarded by the court, it may only do so for val
id reason. Trial with the aid of commissioners is a substantial right that may n
ot be done away with capriciously. Moreover, where the commissioner s report is di
sregarded, the court must make its own estimate of value from the competent evid
ence on record.
7. Foreclosure of Real Estate Mortgage
Extra-judicial
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General Procedure in Extra-Judicial Foreclosure
Sec. 1. When a sale is made under a special power inserted in or attache
d to any real-estate mortgage hereafter made as security for the payment of mone
y or the fulfillment of any other obligation, the provisions of the following el
ection shall govern as to the manner in which the sale and redemption shall be e
ffected, whether or not provision for the same is made in the power.
Escolin: The contract of mortgage should contain a stipulation where the mortgag
or gives the mortgagee a special power of attorney to foreclose the property in
case of default.
Sec. 2. Said sale cannot be made legally outside of the province in whic
h the property sold is situated; and in case the place within said province in w
hich the sale is to be made is subject to stipulation, such sale shall be made i
n said place or in the municipal building of the municipality in which the prope
rty or part thereof is situated.
Venue of extrajudicial foreclosure
1. in province in which the mortgaged property is situated, and
2. in a place within the province
a. by stipulation
b. municipal building in which the property is situated
Sec. 3. Notice shall be given by posting notices of the sale for not les
s than twenty days in at least three public places of the municipality or city w
here the property is situated, and if such property is worth more than four hund
red pesos, such notice shall also be published once a week for at least three co
nsecutive weeks in a newspaper of general circulation in the municipality or cit
y.
Notice in extrajudicial foreclosure
1. posting for not less than 20 days in 3 public places of the municipality or c
ity where the property is situated
2. if property is worth more than P400, published once a week for at least 3 con
secutive weeks in a newspaper of general circulation in the municipality or city
Sec. 4. The sale shall be made at public auction, between the hours or n
ine in the morning and four in the afternoon; and shall be under the direction o
f the sheriff of the province, the justice or auxiliary justice of the peace of
the municipality in which such sale has to be made, or a notary public of said m
unicipality, who shall be entitled to collect a fee of five pesos each day of ac
tual work performed, in addition to his expenses.
Sec. 5. At any sale, the creditor, trustee, or other persons authorized
to act for the creditor, may participate in the bidding and purchase under the s
ame conditions as any other bidder, unless the contrary has been expressly provi
ded in the mortgage or trust deed under which the sale is made.
Manner of sale in extrajudicial foreclosure
1. at public auction
2. between 9 a.m. to 4 p.m.
3. under the direction of
a. the sheriff of the province
b. the justice or auxiliary justice of the peace of the municipality in which su
ch sale has to be made, or
c. a notary public of said municipality
4. Selling officer entitled to a fee of P5 each day of actual work performed, in
addition to his expenses.
5. creditor, trustee, or other persons authorized to act for the creditor, may p
articipate in the bidding and purchase, unless the contrary is stipulated
Sec. 6. In all cases in which an extrajudicial sale is made under the sp
ecial power hereinbefore referred to, the debtor, his successors in interest or
any judicial creditor or judgment creditor of said debtor, or any person having
a lien on the property subsequent to the mortgage or deed of trust under which t
he property is sold, may redeem the same at any time within the term of one year
from and after the date of the sale; and such redemption shall be governed by t
he provisions of sections four hundred and sixty-four to four hundred and sixty-
six, inclusive, of the Code of Civil Procedure, in so far as these are not incon
sistent with the provisions of this Act.
Redemption period is 1 year from date of sale.
If the 1 year redemption period has expired and the buyer has not asked for writ
of possession, with more reason the buyer can still ask for issuance of a writ
of possession after the lapse of the redemption period.
Any rent collected will be deducted from the redemption price.
Sec. 7. In any sale made under the provisions of this Act, the purchaser may
petition the Court of First Instance of the province or place where the propert
y or any part thereof is situated, to give him possession thereof during the red
emption period, furnishing bond in an amount equivalent to the use of the proper
ty for a period of twelve months, to indemnify the debtor in case it be shown th
at the sale was made without violating the mortgage or without complying with th
e requirements of this Act. Such petition shall be made under oath and filed in
form of an ex parte motion in the registration or cadastral proceedings if the p
roperty is registered, or in special proceedings in the case of property registe
red under the Mortgage Law or under section one hundred and ninety-four of the A
dministrative Code, or of any other real property encumbered with a mortgage dul
y registered in the office of any register of deeds in accordance with any exist
ing law, and in each case the clerk of the court shall, upon the filing of such
petition, collect the fees specified in paragraph eleven of section one hundred
and fourteen of Act Numbered Four hundred and ninety-six, as amended by Act Numb
ered Twenty-eight hundred and sixty-six, and the court shall, upon approval of t
he bond, order that a writ of possession issue, addressed to the sheriff of the
province in which the property is situated, who shall execute said order immedia
tely.
For purchaser to gain possession of the property during the redemption period
1. file petition to the RTC of the province or place where the property or any p
art thereof is situated
a. under oath and
b. filed in form of an ex parte motion
1) in the registration or cadastral proceedings if the property is registered, o
r
2) in special proceedings in the case of
a) property registered under the Mortgage Law or
b) property registered under Sec. 194 of the Administrative Code, or of
c) any other real property encumbered with a mortgage duly registered in the off
ice of any RoD in accordance with any existing law
c. clerk of the court collect the fees
2. furnish a bond in an amount equivalent to the use of the property for a perio
d of 12 months, to indemnify the debtor in case it be shown that the sale was ma
de without violating the mortgage or without complying with the requirements of
this Act.
The issuance of writ of possession to the auction buyer is ministerial even if t
he mortgagor is questioning the auction sale.
Writ of possession may be enforced against successors-in-interest, or even tenan
ts of the mortgagor. The buyer may dispossess the tenant by express provision of
the law.
Sec. 8. The debtor may, in the proceedings in which possession was reque
sted, but not later than thirty days after the purchaser was given possession, p
etition that the sale be set aside and the writ of possession cancelled, specify
ing the damages suffered by him, because the mortgage was not violated or the sa
le was not made in accordance with the provisions hereof, and the court shall ta
ke cognizance of this petition in accordance with the summary procedure provided
for in section one hundred and twelve of Act Numbered Four hundred and ninety-s
ix; and if it finds the complaint of the debtor justified, it shall dispose in h
is favor of all or part of the bond furnished by the person who obtained possess
ion. Either of the parties may appeal from the order of the judge in accordance
with section fourteen of Act Numbered Four hundred and ninety-six; but the order
of possession shall continue in effect during the pendency of the appeal.
Petition to set aside sale and writ of possession
1. debtor files it in in the proceedings in which possession was requested
2. within 30 days after the purchaser was given possession
3. specifying the damages suffered by him
4. because the mortgage was not violated or the sale was not made in accordance
with the provisions hereof
5. governed by summary procedure
6. if the court finds the complaint of the debtor justified, it shall dispose in
his favor of all or part of the bond furnished by the person who obtained posse
ssion
7. Either of the parties may appeal, but the order of possession shall continue
in effect during the pendency of the appeal.
Sec. 9. When the property is redeemed after the purchaser has been given
possession, the redeemer shall be entitled to deduct from the price of redempti
on any rentals that said purchaser may have collected in case the property or an
y part thereof was rented; if the purchaser occupied the property as his own dwe
lling, it being town property, or used it gainfully, it being rural property, th
e redeemer may deduct from the price the interest of one per centum per month pr
ovided for in section four hundred and sixty-five of the Code of Civil Procedure
.
When the property is redeemed after the purchaser has been given possession
1. the redeemer shall be entitled to deduct from the price of redemption any ren
tals that said purchaser may have collected in case the property or any part the
reof was rented
2. the redeemer may deduct from the price the interest of one per centum per mon
th if the purchaser
a. occupied the property as his own dwelling, it being town property, or
b. used it gainfully, it being rural property
b. Rule 68
General Procedure in Judicial Foreclosure
Section 1. Complaint in action for foreclosure. In an action for the foreclo
sure of a mortgage or other encumbrance upon real estate, the complaint shall se
t forth the date and due execution of the mortgage; its assignments, if any; the
names and residences of the mortgagor and the mortgagee; a description of the m
ortgaged property; a statement of the date of the note or other documentary evid
ence of the obligation secured by the mortgage, the amount claimed to be unpaid
thereon; and the names and residences of all persons having or claiming an inter
est in the property subordinate in right to that of the holder of the mortgage,
all of whom shall be made defendants in the action. (1a)
Contents of Complaint in action for foreclosure
1. date and due execution of the mortgage, its assignments, if any
2. the names and residences of the mortgagor and the mortgagee
3. a description of the mortgaged property
4. a statement of the date of the note or other documentary evidence of the obli
gation secured by the mortgage
5. the amount claimed to be unpaid thereon; and
6. the names and residences of all persons having or claiming an interest in the
property subordinate in right to that of the holder of the mortgage, all of who
m shall be made defendants in the action.
Sec. 2. Judgment on foreclosure for payment or sale. If upon the trial in su
ch action the court shall find the facts set forth in the complaint to be true,
it shall ascertain the amount due to the plaintiff upon the mortgage debt or obl
igation, including interest and other charges as approved by the court, and cost
s, and shall render judgment for the sum so found due and order that the same be
paid to the court or to the judgment obligee within a period of not less than n
inety (90) days nor more than one hundred twenty (120) days from the entry of ju
dgment, and that in default of such payment the property shall be sold at public
auction to satisfy the judgment. (2a)
If upon the trial in such action the court shall find the facts set forth in th
e complaint to be true, it shall
1. ascertain the amount due to the plaintiff upon the mortgage debt or obligatio
n, including interest and other charges as approved by the court, and costs,
2. render judgment for the sum so found due and
3. order that
a. the due amount to be paid to the court or to the judgment obligee within a pe
riod of not less than 90 days nor more than 120 days from the entry of judgment,
and
b. in default of such payment the property shall be sold at public auction to sa
tisfy the judgment
Sec. 3. Sale of mortgaged property; effect. When the defendant, after being
directed to do so as provided in the next preceding section, fails to pay the am
ount of the judgment within the period specified therein, the court, upon motion
, shall order the property to be sold in the manner and under the provisions of
Rule 39 and other regulations governing sales of real estate under execution. Su
ch sale shall not affect the rights of persons holding prior encumbrances upon t
he property or a part thereof, and when confirmed by an order of the court, also
upon motion, it shall operate to divest the rights in the property of all the p
arties to the action and to vest their rights in the purchaser, subject to such
rights of redemption as may be allowed by law.
Upon the finality of the order of confirmation or upon the expiration of the
period of redemption when allowed by law, the purchaser at the auction sale or
last redemptioner, if any, shall be entitled to the possession of the property u
nless a third party is actually holding the same adversely to the judgment oblig
or. The said purchaser or last redemptioner may secure a writ of possession, upo
n motion, from the court which ordered the foreclosure. (3a)
The plaintiff need not serve the motion to order foreclosure sale.
When the defendant fails to pay the amount of the judgment
1. the court, upon motion, shall order the property to be sold on execution
2. such sale shall not affect the rights of persons holding prior encumbrances u
pon the property or a part thereof
3. when confirmed by an order of the court, also upon motion (by the purchaser),
it shall operate to divest the rights in the property of all the parties to the
action and to vest their rights in the purchaser, subject to such rights of red
emption as may be allowed by law.
4. Upon the finality of the order of confirmation or upon the expiration of the
period of redemption when allowed by law, unless a 3rd party is actually holding
the same adversely to the judgment obligor
a. the purchaser at the auction sale or last redemptioner, if any, shall be enti
tled to the possession of the property
b. the said purchaser or last redemptioner may secure a writ of possession, upon
motion, from the court which ordered the foreclosure.
Sec. 4. Disposition of proceeds of sale. The amount realized from the forecl
osure sale of the mortgaged property shall, after deducting the costs of the sal
e, be paid to the person foreclosing the mortgage, and when there shall be any b
alance or residue, after paying off the mortgage debt due, the same shall be pai
d to junior encumbrancers in the order of their priority, to be ascertained by t
he court, or if there be no such encumbrancers or there be a balance or residue
after payment to them, then to the mortgagor or his duly authorized agent, or to
the person entitled to it. (4a)
Disposition of proceeds of sale after deducting the costs of the sale
1. paid to the mortgagee
2. any balance or residue is paid to junior encumbrancers in the order of their
priority, to be ascertained by the court,
3. if there be no such encumbrancers or there be a balance or residue after paym
ent to them, then to the mortgagor or his duly authorized agent, or to the perso
n entitled to it
Sec. 5. How sale to proceed in case the debt is not all due. If the debt for
which the mortgage or encumbrance was held is not all due as provided in the ju
dgment, as soon as a sufficient portion of the property has been sold to pay the
total amount and the costs due, the sale shall terminate; and afterwards, as of
ten as more becomes due for principal or interest and other valid charges, the c
ourt may, on motion, order more to be sold. But if the property cannot be sold i
n portions without prejudice to the parties, the whole shall be ordered to be so
ld in the first instance, and the entire debt and costs shall be paid, if the pr
oceeds of the sale be sufficient therefor, there being a rebate of interest wher
e such rebate is proper. (5a)
If the debt for which the mortgage or encumbrance was held is not all due as pr
ovided in the judgment
1. as soon as a sufficient portion of the property has been sold to pay the tota
l amount and the costs due, the sale shall terminate; and
2. afterwards, as often as more becomes due for principal or interest and other
valid charges, the court may, on motion, order more to be sold
3. if the property cannot be sold in portions without prejudice to the parties
a. the whole shall be ordered to be sold in the first instance
b. the entire debt and costs shall be paid, if the proceeds of the sale be suffi
cient therefore
c. there being a rebate of interest where such rebate is proper
Sec. 6. Deficiency judgment. If upon the sale of any real property as provid
ed in the next preceding section there be a balance due to the plaintiff after a
pplying the proceeds of the sale, the court, upon motion, shall render judgment
against the defendant for any such balance for which, by the record of the case,
he may be personally liable to the plaintiff, upon which execution may issue im
mediately if the balance is all due at the time of the rendition of the judgment
; otherwise, the plaintiff shall be entitled to execution at such time as the ba
lance remaining becomes due under the terms of the original contract, which time
shall be stated in the judgment. (6a)
If upon the sale of any real property there be a balance due to the plaintiff a
fter applying the proceeds of the sale
1. the court, upon motion, shall render judgment against the defendant for any s
uch balance for which, by the record of the case, he may be personally liable to
the plaintiff
2. if the balance is
a. all due at the time of the rendition of the judgment execution may issue imme
diately
b. not all due at the time of the rendition of the judgment the plaintiff shall
be entitled to execution at such time as the balance remaining becomes due, whic
h time shall be stated in the judgment
Sec. 7. Registration. A certified copy of the final order of the court confi
rming the sale shall be registered in the registry of deeds. If no right of rede
mption exists, the certificate of title in the name of the mortgagor shall be ca
ncelled, and a new one issued in the name of the purchaser.
Where a right of redemption exists, the certificate of title in the name of
the mortgagor shall not be cancelled, but the certificate of sale and the order
confirming the sale shall be registered and a brief memorandum thereof made by t
he registrar of deeds upon the certificate of title. In the event the property i
s redeemed, the deed of redemption shall be registered with the registry of deed
s, and a brief memorandum thereof shall be made by the registrar of deeds on sai
d certificate of title.
If the property is not redeemed, the final deed of sale executed by the sher
iff in favor of the purchaser at the foreclosure sale shall be registered with t
he registry of deeds; whereupon the certificate of title in the name of the mort
gagor shall be cancelled and a new one issued in the name of the purchaser. (n)
A certified copy of the final order of the court confirming the sale shall be r
egistered in the registry of deeds.
1. If no right of redemption exists - the title of the mortgagor is cancelled, a
nd a new one for the purchaser is issued
2. Where a right of redemption exists
a. the title of the mortgagor shall not be cancelled, but the certificate of sal
e and the order confirming the sale shall be registered and a brief memorandum t
hereof made by the registrar of deeds upon the certificate of title.
b. Where the property is
1) Redeemed the deed of redemption shall be registered with the RoD, and a brief
memorandum thereof shall be made by the RoD on said certificate of title.
2) not redeemed the final deed of sale executed by the sheriff in favor of the p
urchaser at the foreclosure sale shall be registered with the RoD; whereupon the
title of the mortgagor is cancelled and a new one for the purchaser is issued
Sec. 8. Applicability of other provisions. The provisions of sections 31, 32
and 34 of Rule 39 shall be applicable to the judicial foreclosure of real estat
e mortgages under this Rule insofar as the former are not inconsistent with or m
ay serve to supplement the provisions of the latter. (8a)
cf Rule 39, Secs 31, 32, and 34
Sec. 31. Manner of using premises pending redemption; waste restrained. Until th
e expiration of the time allowed for redemption, the court may, as in other prop
er cases, restrain the commission of waste on the property by injunction, on the
application of the purchaser or the judgment obligee, with or without notice; b
ut it is not waste for a person in possession of the property at the time of the
sale, or entitled to possession afterwards, during the period allowed for redem
ption, to continue to use it in the same manner in which it was previously used;
or to use it in the ordinary course of husbandry; or to make the necessary repa
irs to buildings thereon while he occupies the property. (33a)
Sec. 32. Rents, earnings and income of property pending redemption. The purchase
r or a redemptioner shall not be entitled to receive the rents, earnings and inc
ome of the property sold on execution, or the value of the use and occupation th
ereof when such property is in the possession of a tenant. All rents, earnings a
nd income derived from the property pending redemption shall belong to the judgm
ent obligor until the expiration of his period of redemption. (34a)
Sec. 34. Recovery of price if sale not effective; revival of judgment. If the pu
rchaser of real property sold on execution, or his successor in interest, fails
to recover the possession thereof, or is evicted therefrom, in consequence of ir
regularities in the proceedings concerning the sale, or because the judgment has
been reversed or set aside, or because the property sold was exempt from execut
ion, or because a third person has vindicated his claim to the property, he may
on motion in the same action or in a separate action recover from the judgment o
bligee the price paid, with interest, or so much thereof as has not been deliver
ed to the judgment obligor; or he may, on motion, have the original judgment rev
ived in his name for the whole price with interest, or so much thereof as has be
en delivered to the judgment obligor. The judgment so revived shall have the sam
e force and effect as an original judgment would have as of the date of the revi
val and no more. (36a)
During the redemption period, the court may restrain the commission of waste on
the property by injunction, on the application of the purchaser or the judgment
obligee.
All rents, earnings and income derived from the property pending redemption shal
l belong to the judgment obligor.
Purchaser may on motion recover from the judgment obligee the price paid, with
interest, or so much thereof as has not been delivered to the judgment obligor,
or have the original judgment revived, if he
1. fails to recover the possession
2. is evicted, because of
a. irregularities in the proceedings concerning the sale, or
b. the judgment has been reversed or set aside, or
c. the property sold was exempt from execution, or
d. a third person has vindicated his claim to the property
c. Cases
Rehabilitation Finance Corporation v. Alto Surety, 107 Phil 387 (1960)
Facts: Palma mortgaged his land in favor of RFC. Thereafter with the consent of
RFC, Palma mortgaged the same property to Alto. Both mortgages were duly registe
red. RFC foreclosed without notifying Alto and was the highest bidder. RFC conso
lidates ownership but the mortgage of Alto was carried over the new title. RFC n
ow seeks to have Alto s mortgage cancelled.
Held: If the junior mortgagor was not notified of the foreclosure of the 1st mor
tgage, he can not be considered to have terminated or extinguished the rights of
said junior encumbrancer over the property.
Escolin: Other mortgagees who have superior lien need not be impleaded. The righ
t of junior mortgagees who have not been impleaded is not lost by the foreclosur
e of the property. The junior mortgagee may redeem the property by paying the ob
ligation of the mortagor to the foreclosing mortgagee. Junior mortgagees are not
indispensable parties, but it is advisable to implead them.
Tiglao v. Batones, 90 Phil 275 (1951) Prior to confirmation of the sale, a purch
aser in a foreclosure sale has no right to possession. Neither can the mortgagor
s compel the puchaser to pay prior to the confirmation of the foreclosure sale.
Hearing is required before confirmation can take place. After foreclosure and pr
ior to confirmation, the mortgagor can still exercise his equity of redemption.
Notice and hearing of motion for confirmation are essential to the validity of a
n order of confirmation of the foreclosure sale.
Escolin: Motion for foreclosure sale need not be served on the other party. It i
s an ex-parte motion. However, a motion for confirmation of title must be served
on the other party.
GSIS v. CFI of Iloilo, 175 SCRA 19 (1989) There is no right of redemption from a
judicial foreclosure after confirmation, except those granted in case of mortga
gees who are banks or banking institutions. In judicial foreclosure, there is on
ly an equity of redemption where the morgagor can redeem within 90 days from fin
ality of judgment, and any time before confirmation of foreclosure sale. Only ju
dicial foreclosure of mortgages to banking institutions, and those made extrajud
icially are subject to legal redemption. Since GSIS is not a bank or banking ins
titution, its judicial foreclosure of the mortgage is not subject to redemption
after the foreclosure sale has been confirmed.
Cruz v. IAC, 169 SCRA 9 (1989) In the absence of agreement, the 90 day period (a
nd any time prior to confirmation of foreclosure sale) to exercise the equity of
redemption has to be respected. Equity of redemption may be waived through a co
mpromise agreement.
Kho v. CA, 203 SCRA 160 (1991) Both during and after the redemption period, the
purchaser is entitled to a writ of possession, regardless whether there is a pen
ding suit for annulment of the mortgage or the foreclosure itself.
Roxas v. CA, 224 SCRA (1993)
Facts: Roxas is the owner of a parcel of land. The land was mortgaged in favor o
f Rural Bank of Dumalag. The mortgage was foreclosed and sold to Rural bank of D
umalag as the highest bidder, who was able to consolidate ownership after expira
tion of the redemption period. Roxas files a complaint for cancellation of forec
losure of mortgage and annulment of auction sale on the ground that the foreclos
ure did not comply with the requirement of giving written notices to all possibl
e redemptioners. The Certificate of Posting executed by the sheriff states that
he posted 3 copies of the notice of public auction sale in 3 conspicuous public
places in the municipality of Panay, where the subject land was situated and in
like manner in Roxas City, where the public auction sale took place. Furthermore
, the notice was posted only in the Municipality, but not in the barrio where th
e property was located.
Held: Publication of notice of mortgage foreclosure sales must be strictly compl
ied with, and that a slight deviation therefrom will invalidate the notice and r
ender the sale voidable. Failure to publish notice of auction sale as required b
y the statute constitutes a jurisdictional defect which invalidates the sale. Th
ere was a failure to publish the notices of auction sale. Proof of publication s
hall be accomplished by an affidavit of the sheriff or officer conducting the fo
reclosure sale. In this case, the sheriff executed a certificate of posting, whi
ch is not the affidavit required by law. An affidavit is a sworn statement in wr
iting whereas a certificate is merely a statement in writing. Strict compliance
with the aforementioned provision is mandated. Substantial compliance is not eno
ugh.
San Jose v. CA, 225 SCRA 450 (1993) Failure to state the correct TCT number is f
atal to the notice and the resulting foreclosure sale of mortgaged land. Correct
technical description does not cure the defect.
8. Partition
Define Partition
a. Rule 69
General Procedure in Partition
Section 1. Complaint in action for partition of real estate. A person having
the right to compel the partition of real estate may do so as provided in this
Rule, setting forth in his complaint the nature and extent of his title and an a
dequate description of the real estate of which partition is demanded and joinin
g as defendants all other persons interested in the property. (1a)
Contents of the Complaint for partition of real estate
1. nature and extent of his title
2. an adequate description of the real estate of which partition is demanded
3. joining as defendants all other persons interested in the property.
Sec. 2. Order for partition, and partition by agreement thereunder. If after
the trial the court finds that the plaintiff has the right thereto, it shall or
der the partition of the real estate among all the parties in interest. Thereupo
n the parties may, if they are able to agree, make the partition among themselve
s by proper instruments of conveyance, and the court shall confirm the partition
so agreed upon by all the parties, and such partition, together with the order
of the court confirming the same, shall be recorded in the registry of deeds of
the place in which the property is situated. (2a)
A final order decreeing partition and accounting may be appealed by any part
y aggrieved thereby. (n)
cf Special Proceedings on extra-judicial partition of the estate
If after the trial the court finds that the plaintiff has the right thereto, it
shall order the partition of the real estate among all the parties in interest.
A final order decreeing partition and accounting may be appealed by any party ag
grieved thereby.
Voluntary partition
1. parties agree to make the partition among themselves by proper instruments of
conveyance
2. the court confirms the partition so agreed
3. partition, together with the order of the court confirming the same, recorded
in the RoD of the place in which the property is situated
Sec. 3. Commissioners to make partition when parties fail to agree. If the p
arties are unable to agree upon the partition, the court shall appoint not more
than three (3) competent and disinterested persons as commissioners to make the
partition, commanding them to set off to the plaintiff and to each party in inte
rest such part and proportion of the property as the court shall direct. (3a)
Sec. 4. Oath and duties of commissioners. Before making such partition, the
commissioners shall take and subscribe an oath that they will faithfully perform
their duties as commissioners, which oath shall be filed in court with the othe
r proceedings in the case. In making the partition, the commissioners shall view
and examine the real estate, after due notice to the parties to attend at such
view and examination, and shall hear the parties as to their preference in the p
ortion of the property to be set apart to them and the comparative value thereof
, and shall set apart the same to the parties in lots or parcels as will be most
advantageous and equitable, having due regard to the improvements, situation an
d quality of the different parts thereof. (4a)
Sec. 5. Assignment or sale of real estate by commissioners. When it is made
to appear to the commissioners that the real estate, or a portion thereof, canno
t be divided without prejudice to the interests of the parties, the court may or
der it assigned to one of the parties willing to take the same, provided he pays
to the other parties such amounts as the commissioners deem equitable, unless o
ne of the interested parties asks that the property be sold instead of being so
assigned, in which case the court shall order the commissioners to sell the real
estate at public sale under such conditions and within such time as the court m
ay determine. (5a)
Sec. 6. Report of commissioners; proceedings not binding until confirmed. Th
e commissioners shall make a full and accurate report to the court of all their
proceedings as to the partition, or the assignment of real estate to one of the
parties, or the sale of the same. Upon the filing of such report, the clerk of c
ourt shall serve copies thereof on all the interested parties with notice that t
hey are allowed ten (10) days within which to file objections to the findings of
the report, if they so desire. No proceeding had before or conducted by the com
missioners shall pass the title to the property or bind the parties until the co
urt shall have accepted the report of the commissioners and rendered judgment th
ereon. (6a)
Sec. 7. Action of the court upon commissioners report. Upon the expiration of
the period of ten (10) days referred to in the preceding section, or even befor
e the expiration of such period but after the interested parties have filed thei
r objections to the report or their statement of agreement therewith, the court
may, upon hearing, accept the report and render judgment in accordance therewith
; or, for cause shown, recommit the same to the commissioners for further report
of facts; or set aside the report and appoint new commissioners; or accept the
report in part and reject it in part; and may make such order and render such ju
dgment as shall effectuate a fair and just partition of the real estate, or of i
ts value, if assigned or sold as above provided, between the several owners ther
eof. (7)
If the parties are unable to agree upon the partition
1. the court shall appoint not more than 3 competent and disinterested persons a
s commissioners to make the partition
2. commanding them to set off to the plaintiff and to each party in interest suc
h part and proportion of the property as the court shall direct
3. commissioners shall take and subscribe an oath that they will faithfully perf
orm their duties as commissioners. The oath shall be filed in court.
4. The commissioners shall
a. view and examine the real estate, after due notice to the parties to attend a
t such view and examination, and
b. hear the parties as to their preference in the portion of the property to be
set apart to them and the comparative value thereof
c. set apart the same to the parties in lots or parcels as will be most advantag
eous and equitable, having due regard to
1) the improvements
2) situation and
3) quality of the different parts
5. When the real estate, or a portion thereof, cannot be divided without prejudi
ce to the interests of the parties, the court may order it
a. assigned to one of the parties willing to take the same, provided he pays to
the other parties such amounts as the commissioners deem equitable
b. sold at public sale by the commissioners, if one of the interested parties so
asks
6. The commissioners shall make a full and accurate report to the court of all t
heir proceedings as to the partition, or the assignment of real estate to one of
the parties, or the sale of the same.
7. Upon the filing of such report, the clerk of court shall serve copies thereof
on all the interested parties with notice that they are allowed 10 days within
which to file objections to the findings of the report, if they so desire.
8. Upon the expiration of the period of 10 days, or even before the expiration o
f such period but after the interested parties have filed their objections to th
e report or their statement of agreement therewith, the court may, upon hearing
a. accept the report and render judgment in accordance therewith; or
b. for cause shown, recommit the same to the commissioners for further report of
facts; or
c. set aside the report and appoint new commissioners; or
d. accept the report in part and reject it in part; and
e. may make such order and render such judgment as shall effectuate a fair and j
ust partition of the real estate, or of its value
9. No proceeding had before or conducted by the commissioners shall pass the tit
le to the property or bind the parties until the court shall have accepted the r
eport of the commissioners and rendered judgment thereon.
Sec. 8. Accounting for rent and profits in action for partition. In an actio
n for partition in accordance with this Rule, a party shall recover from another
his just share of rents and profits received by such other party from the real
estate in question, and the judgment shall include an allowance for such rents a
nd profits. (8a)
Sec. 9. Power of guardian in such proceedings. The guardian or guardian ad l
item of a minor or person judicially declared to be incompetent may, with the ap
proval of the court first had, do and perform on behalf of his ward any act, mat
ter, or thing respecting the partition of real estate, which the minor or person
judicially declared to be incompetent could do in partition proceedings if he w
ere of age or competent. (9a)
Sec. 10. Costs and expenses to be taxed and collected. The court shall equit
ably tax and apportion between or among the parties the costs and expenses which
accrue in the action, including the compensation of the commissioners, having r
egard to the interests of the parties, and execution may issue therefor as in ot
her cases. (10a)
Sec. 11. The judgment and its effect; copy to be recorded in registry of dee
ds. If actual partition of property is made, the judgment shall state definitely
, by metes and bounds and adequate description, the particular portion of the re
al estate assigned to each party, and the effect of the judgment shall be to ves
t in each party to the action in severalty the portion of the real estate assign
ed to him. If the whole property is assigned to one of the parties upon his payi
ng 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 m
aking 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 pa
rt of the other parties to the action. If the property is sold and the sale conf
irmed by the court, the judgment shall state the name of the purchaser or purcha
sers and a definite description of the parcels of real estate sold to each purch
aser, and the effect of the judgment shall be to vest the real estate in the pur
chaser 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 co
sts of the action. (11a)
If actual partition of property is made
1. the judgment shall state definitely, by metes and bounds and adequate descrip
tion, the particular portion of the real estate assigned to each party, the effe
ct of the judgment shall be to vest in each party to the action in severalty the
portion of the real estate assigned to him.
2. If the whole property is assigned to one of the parties upon his paying to th
e 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 th
e payment, and the effect of the judgment shall be to vest in the party making t
he payment the whole of the real estate free from any interest on the part of th
e other parties to the action.
3. If the property is sold and the sale confirmed by the court, the judgment sha
ll state the name of the purchaser or purchasers and a definite description of t
he 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 paym
ent or payments, free from the claims of any of the parties to the action.
4. A certified copy of the judgment shall in either case be recorded in the regi
stry of deeds of the place in which the real estate is situated, and the expense
s of such recording shall be taxed as part of the costs of the action.
Sec. 12. Neither paramount rights nor amicable partition affected by this Ru
le. Nothing in this Rule contained shall be construed so as to prejudice, defeat
, or destroy the right or title of any person claiming the real estate involved
by title under any other person, or by title paramount to the title of the parti
es among whom the partition may have been made; nor so as to restrict or prevent
persons holding real estate jointly or in common from making an amicable partit
ion thereof by agreement and suitable instruments of conveyance without recourse
to an action. (12a)
Sec. 13. Partition of personal property. The provisions of this Rule shall a
pply to partitions of estates composed of personal property, or of both real and
personal property, in so far as the same may be applicable. (13)
b. Cases
Roque v. IAC, 165 SCRA 118 (1988) An action for partition which is typically bro
ught by a person claiming to be co-owner of a specified property against a defen
dant or defendants whom the plaintiff recognizes to be co-owners may be seen to
present simultaneously two principal issues. First, there is the issue of whethe
r the plaintiff is indeed a co-owner of the property sought to be partitioned. S
econd, assuming that the plaintiff successfully hurdles the first issue, there i
s the secondary issue of how the property is to be divided between plaintiff and
defendant(s) i.e., what portion should go to which co-owner.
Should the trial court find that the defendants do not dispute the status of the
plaintiff as co-owner, the court can forthwith proceed to the actual partitioni
ng of the property involved. In case the defendants assert in their Answer exclu
sive title in themselves adversely to the plaintiff, the court should not dismis
s the plaintiff's action for partition but, on the contrary and in the exercise
of its general jurisdiction, resolve the question of whether the plaintiff is co
-owner or not. Should the trial court find that the plaintiff was unable to sust
ain his claimed status as co-owner, or that the defendants are or have become th
e sole and exclusive owners of the property involved, the court will necessarily
have to dismiss the action for partition. This result would be reached, not bec
ause the wrong action was commenced by the plaintiff, but rather because the pla
intiff having been unable to show co-ownership rights in himself, no basis exist
s for requiring the defendants to submit to partition the property at stake. If,
upon the other hand, the court after trial should find the existence of co-owne
rship among the parties litigant, the court may and should order the partition o
f the property in the same action. Judgment for one or the other party being on
the merits, the losing party may then appeal the same. In either case, however,
it is unnecessary to require the plaintiff to file another action, separate and
independent from that for partition originally instituted, just to determine who
are the co-owners. Functionally, an action for partition may be seen to be at o
nce an action for declaration of co-ownership and for segregation and conveyance
of a determinate portion of the property involved.
Furthermore, no matter how long the co-ownership has lasted, a co-owner can alwa
ys opt out of the co-ownership, and provided the defendant co-owners or co-heirs
have theretofore expressly or impliedly recognized the co-ownership, they canno
t set up as a defense the prescription of the action for partition. But if the d
efendants show that they had previously asserted title in themselves adversely t
o the plaintiff and for the requisite period of time, the plaintiff s right to req
uire recognition of his status as a co-owner will have been lost by prescription
and the court cannot issue an order requiring partition.
Fabrica v. CA, 146 SCRA 250 (1986) The records of the case clearly reveal that t
he main purpose of the complaint is to determine who between the parties are the
true owners and entitled to the exclusive use of the disputed properties. While
it is true that the complaint is one for partition, it is one which is premised
on the resolution of the issue on the validity of the oral partition allegedly
made in favor of defendants and the two deeds of conveyance executed in the name
s of the heirs of the deceased spouses. Unless this issue of ownership is defini
tely and finally resolved, it would be premature to effect a partition of the di
sputed properties.
When the trial court rendered its judgment of partition in favor of the plaintif
fs, rejecting defendants' claim of exclusive ownership of the properties by pre
vious oral partition, it rendered a final or definitive judgment on the merits f
rom which the party adversely affected can make an appeal. The decision of the t
rial court declaring null the aforesaid conveyances and granting recovery of the
properties for the purpose of ordering their partition is a definitive judgment
because it decided the rights of the parties upon the issue submitted. It was n
ot, therefore, an interlocutory order. A judgment which grants recovery of the
ownership and possession of property in favor of one party as against the adver
se claim of title of the other is in effect a final judgment which is appealable
. Where the primary purpose of a case is to ascertain and determine who, as betw
een plaintiff and defendant, is the true owner and entitled to the exclusive use
of the disputed property, the judgment rendered by the lower court is a judgmen
t on the merits as to those questions, and that the order for an accounting is m
erely incidental to such judgment.
9. Forcible Entry and Unlawful Detainer
a. Revised Rule on Summary Procedure
cf Revised Rule on Summary Procedure under Ordinary Civil Actions, Rule 5
b. Rule 70
General procedure in ejectment cases
1. Verified complaint filed with the MTC within 1 year from unlawful deprivation
or withholding of possession
2. Answer within 10 days from receipt of summons
3. Preliminary conference within 30 days from answer
4. Court issues preliminary conference order with 5 days.
5. Parties submit affidavits of witnesses, other evidences and position papers w
ithin 10 days from receipt of preliminary conference order
6. Court renders judgment within 30 days from receipt of affidavits and position
papers.
Section 1. Who may institute proceedings, and when. Subject to the provision
s of the next succeeding section, a person deprived of the possession of any lan
d 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 buil
ding 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 rep
resentatives 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 pers
on or persons claiming under them, for the restitution of such possession, toget
her with damages and costs. (1a)
Who may institute proceedings
1. a person deprived of the possession of any land or building by force, intimid
ation, threat, strategy, or stealth, or
2. 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 t
he right to hold possession, by virtue of any contract, or
3. the legal representatives or assigns of any such lessor, vendor, vendee, or o
ther person
When at any time within 1 year after such unlawful deprivation or withholding of
possession
Where before the MTC
Sec. 2. Lessor to proceed against lessee only after demand. Unless otherwise
stipulated, such action by the lessor shall be commenced only after demand to p
ay or comply with the conditions of the lease and to vacate is made upon the les
see, or by serving written notice of such demand upon the person found on the pr
emises, 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. (2a)
Unless otherwise stipulated, an unlawful detained by the lessor shall be commen
ced only after
1. demand
a. to pay or comply with the conditions of the lease and
b. to vacate
2. made either
a. upon the lessee, or
b. by serving written notice of upon the person found on the premises, or
c. by posting such notice on the premises if no person be found thereon
3. and the lessee fails to comply within
a. 15 days in the case of land or
b. 5 days in the case of buildings
Sec. 3. Summary procedure. Except in cases covered by the agricultural tenan
cy laws or when the law otherwise expressly provides, all actions for forcible e
ntry and unlawful detainer, irrespective of the amount of damages or unpaid rent
als sought to be recovered, shall be governed by the summary procedure hereunder
provided. (n)
All ejectment actions, irrespective of the amount of damages or unpaid rentals
sought to be recovered, shall be governed by the summary procedure, except in ca
ses
1. covered by the agricultural tenancy laws or
2. when the law otherwise expressly provides
Sec. 4. Pleadings allowed. The only pleadings allowed to be filed are the co
mplaint, compulsory counterclaim and cross-claim pleaded in the answer, and the
answers thereto. All pleadings shall be verified. (3a, RSP)
Pleadings allowed to be filed
1. complaint
2. compulsory counterclaim
3. answers
4. cross-claim pleaded in the answer
All pleadings shall be verified.
Sec. 5. Action on complaint. The court may, from an examination of the alleg
ations in the complaint and such evidence as may be attached thereto, dismiss th
e case outright on any of the grounds for the dismissal of a civil action which
are apparent therein. If no ground for dismissal is found, it shall forthwith is
sue summons. (n)
The court may, from an examination of the allegations in the complaint and such
evidence as may be attached thereto
1. dismiss the case outright on any of the grounds for the dismissal of a civil
action which are apparent therein, or
2. if no ground for dismissal is found, issue summons
Sec. 6. Answer. Within ten (10) days from service of summons, the defendant
shall file his answer to the complaint and serve a copy thereof on the plaintiff
. Affirmative and negative defenses not pleaded therein shall be deemed waived,
except lack of jurisdiction over the subject matter. Cross-claims and compulsory
counterclaims not asserted in the answer shall be considered barred. The answer
to counterclaims or cross-claims shall be served and filed within ten (10) days
from service of the answer in which they are pleaded. (5, RSP)
Answer
1. Within 10 days from service of summons
2. served a copy on the plaintiff
3. defenses not pleaded are waived, except lack of jurisdiction over the subject
matter
4. Cross-claims and compulsory counterclaims not asserted are barred.
5. The answer to counterclaims or cross-claims shall be served and filed within
10 days from service of the answer in which they are pleaded.
Sec. 7. Effect of failure to answer. Should the defendant fail to answer the
complaint within the period above provided, the court, motu proprio or on motio
n of the plaintiff, shall render judgment as may be warranted by the facts alleg
ed in the complaint and limited to what is prayed for therein. The court may in
its discretion reduce the amount of damages and attorney s fees claimed for being
excessive or otherwise unconscionable, without prejudice to the applicability of
section 3 (c), Rule 9 if there are two or more defendants. (6, RSP)
cf Rule 9, Sec. 3 (c)
(c) Effect of partial default. When a pleading asserting a claim states a common
cause of action against several defending parties, some of whom answer and the o
thers fail to do so, the court shall try the case against all upon the answers t
hus filed and render judgment upon the evidence presented. (4a, R18)
Effect of failure to answer
1. the court, motu proprio or on motion of the plaintiff, shall render judgment
a. as may be warranted by the facts alleged in the complaint and
b. limited to what is prayed for therein
2. The court may in its discretion reduce the amount of damages and attorney s fee
s claimed for being excessive or otherwise unconscionable
Sec. 8. Preliminary conference; appearance of parties. Not later than thirty
(30) days after the last answer is filed, a preliminary conference shall be hel
d. The provisions of Rule 18 on pre-trial shall be applicable to the preliminary
conference unless inconsistent with the provisions of this Rule.
The failure of the plaintiff to appear in the preliminary conference shall b
e cause for the dismissal of his complaint. The defendant who appears in the abs
ence of the plaintiff shall be entitled to judgment on his counterclaim in accor
dance with the next preceding section. All cross-claims shall be dismissed. (7,
RSP)
If a sole defendant shall fail to appear, the plaintiff shall likewise be en
titled to judgment in accordance with the next preceding section. This procedure
shall not apply where one of two or more defendants sued under a common cause o
f action who had pleaded a common defense shall appear at the preliminary confer
ence.
No postponement of the preliminary conference shall be granted except for hi
ghly meritorious grounds and without prejudice to such sanctions as the court in
the exercise of sound discretion may impose on the movant. (n)
Within 30 days after the last answer is filed, a preliminary conference shall be
held.
Effect of failure to appear in the preliminary conference by the
1. plaintiff dismissal of his complaint; appearing defendant entitled to judgmen
t on his counterclaim; all cross-claims shall be dismissed.
2. sole defendant plaintiff entitled to judgment on his complaint
3. one of multiple defendants sued under a common cause of action who had pleade
d a common defense case continues
No postponement of the preliminary conference shall be granted except for highly
meritorious grounds and without prejudice to such sanctions as the court in the
exercise of sound discretion may impose on the movant.
Sec. 9. Record of preliminary conference. Within five (5) days after the ter
mination of the preliminary conference, the court shall issue an order stating t
he matters taken up therein, including but not limited to:
1. Whether the parties have arrived at an amicable settlement, and if so, th
e terms thereof;
2. The stipulations or admissions entered into by the parties;
3. Whether, on the basis of the pleadings and the stipulations and admission
s made by the parties, judgment may be rendered without the need of further proc
eedings, in which event the judgment shall be rendered within thirty (30) days f
rom issuance of the order;
4. A clear specification of material facts which remain controverted; and
5. Such other matters intended to expedite the disposition of the case. (8,
RSP)
Within 5 days after the termination of the preliminary conference, the court sha
ll issue an order stating the matters taken up therein.
Sec. 10. Submission of affidavits and position papers. Within ten (10) days
from receipt of the order mentioned in the next preceding section, the parties s
hall submit the affidavits of their witnesses and other evidence on the factual
issues defined in the order, together with their position papers setting forth t
he law and the facts relied upon by them. (9, RSP)
Within 10 days from receipt of the preliminary conference order, the parties sh
all submit
1. the affidavits of their witnesses
2. other evidence on the factual issues defined in the order
3. their position papers setting forth the law and the facts relied upon by them
.
Sec. 11. Period for rendition of judgment. Within thirty (30) days after rec
eipt of the affidavits and position papers, or the expiration of the period for
filing the same, the court shall render judgment.
However, should the court find it necessary to clarify certain material fact
s, it may, during the said period, issue an order specifying the matters to be c
larified, and require the parties to submit affidavits or other evidence on the
said matters within ten (10) days from receipt of said order. Judgment shall be
rendered within fifteen (15) days after the receipt of the last affidavit or the
expiration of the period for filing the same.
The court shall not resort to the foregoing procedure just to gain time for
the rendition of the judgment. (n)
Within 30 days after receipt of the affidavits and position papers, or the expir
ation of the period for filing the same, the court shall render judgment.
However, should the court find it necessary to clarify certain material facts, i
t may, during the said period, issue an order specifying the matters to be clari
fied, and require the parties to submit affidavits or other evidence on the said
matters within 10 days from receipt of said order. Judgment shall be rendered w
ithin 15 days after the receipt of the last affidavit or the expiration of the p
eriod for filing the same.
The court shall not resort to the foregoing procedure just to gain time for the
rendition of the judgment.
Sec. 12. Referral for conciliation. Cases requiring referral for conciliatio
n, where there is no showing of compliance with such requirement, shall be dismi
ssed without prejudice, and may be revived only after that requirement shall hav
e been complied with. (18a, RSP)
Where there was no KB proceedings when required, the ejectment case shall be dis
missed without prejudice.
Sec. 13. Prohibited pleadings and motions. The following petitions, motions,
or pleadings shall not be allowed:
1. Motion to dismiss the complaint except on the ground of lack of jurisdict
ion over the subject matter, or failure to comply with section 12;
2. Motion for a bill of particulars;
3. Motion for new trial, or for reconsideration of a judgment, or for reopen
ing of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings, affidavits or any other p
aper;
6. Memoranda;
7. Petition for certiorari, mandamus, or prohibition against any interlocuto
ry order issued by the court;
8. Motion to declare the defendant in default;
9. Dilatory motions for postponement;
10. Reply;
11. Third-party complaints;
12. Interventions. (19a, RSP)
Prohibited pleadings and motions
1. MTD
2. Motion for a bill of particulars;
3. MNT, or MfR, or motion for reopening of trial;
4. Petition for relief from judgment;
5. Motion for extension
6. Memoranda;
7. Petition for certiorari, mandamus, or prohibition against any interlocutory o
rder issued by the court;
8. Motion to declare the defendant in default;
9. Dilatory motions for postponement;
10. Reply;
11. 3rd party complaints;
12. Interventions
GR: MtD not allowed.
Exception: On grounds of
1. lack of jurisdiction over subject matter
2. failure to resort to required conciliation proceedings
Sec. 14. Affidavits. The affidavits required to be submitted under this Rule
shall state only facts of direct personal knowledge of the affiants which are a
dmissible in evidence, and shall show their competence to testify to the matters
stated therein.
A violation of this requirement may subject the party or the counsel who sub
mits the same to disciplinary action, and shall be cause to expunge the inadmiss
ible affidavit or portion thereof from the record. (20, RSP)
The affidavits required to be submitted under this Rule shall
1. state only facts of direct personal knowledge of the affiants which are admis
sible in evidence, and
2. show their competence to testify to the matters stated therein.
Sec. 15. Preliminary injunction. The court may grant preliminary injunction,
in accordance with the provisions of Rule 58 hereof, to prevent the defendant f
rom committing further acts of dispossession against the plaintiff.
A possessor deprived of his possession through forcible entry or unlawful de
tainer may, within five (5) days from the filing of the complaint, present a mot
ion in the action for forcible entry or unlawful detainer for the issuance of a
writ of preliminary mandatory injunction to restore him in his possession. The c
ourt shall decide the motion within thirty (30) days from the filing thereof. (3
a)
The court may grant preliminary injunction to prevent the defendant from committ
ing further acts of dispossession against the plaintiff.
A possessor deprived of his possession through forcible entry or unlawful detain
er may, within 5 days from the filing of the complaint, ask for preliminary mand
atory injunction in the ejectment action to restore him in his possession. The c
ourt shall decide the motion within 30 days from the filing thereof.
Note that the court may now grant preliminary injunction in all ejectment cases.
Sec. 16. Resolving defense of ownership. When the defendant raises the defen
se of ownership in his pleadings and the question of possession cannot be resolv
ed without deciding the issue of ownership, the issue of ownership shall be reso
lved only to determine the issue of possession. (4a)
The MTC can determine ownership only provisionally.
Sec. 17. Judgment. If after trial the court finds that the allegations of th
e complaint are true, it shall render judgment in favor of the plaintiff for the
restitution of the premises, the sum justly due as arrears of rent or as reason
able compensation for the use and occupation of the premises, attorney s fees and
costs. If it finds that said allegations are not true, it shall render judgment
for the defendant to recover his costs. If a counterclaim is established, the co
urt shall render judgment for the sum found in arrears from either party and awa
rd costs as justice requires. (6a)
If after trial the court finds that the allegations of the complaint are true,
it shall render judgment in favor of the plaintiff for
1. the restitution of the premises
2. the sum justly due as
a. arrears of rent or
b. reasonable compensation for the use and occupation of the premises
3. attorney s fees and costs
If it finds that said allegations are not true, it shall render judgment for th
e defendant to recover his costs.
If a counterclaim is established, the court shall render judgment for the sum f
ound in arrears from either party and award costs as justice requires.
Sec. 18. Judgment conclusive only on possession; not conclusive in actions i
nvolving title or ownership. The judgment rendered in an action for forcible ent
ry or detainer shall be conclusive with respect to the possession only and shall
in no wise bind the title or affect the ownership of the land or building. Such
judgment shall not bar an action between the same parties respecting title to t
he land or building.
The judgment or final order shall be appealable to the appropriate Regional
Trial Court which shall decide the same on the basis of the entire record of the
proceedings had in the court of origin and such memoranda and/or briefs as may
be submitted by the parties or required by the Regional Trial Court. (7a)
Sec. 19. Immediate execution of judgment; how to stay same. If judgment is r
endered against the defendant, execution shall issue immediately upon motion, un
less an appeal has been perfected and the defendant to stay execution files a su
fficient supersedeas bond, approved by the Municipal Trial Court and executed in
favor of the plaintiff to pay the rents, damages, and costs accruing down to th
e time of the judgment appealed from, and unless, during the pendency of the app
eal, he deposits with the appellate court the amount of rent due from time to ti
me under the contract, if any, as determined by the judgment of the Municipal Tr
ial Court. In the absence of a contract, he shall deposit with the Regional Tria
l Court the reasonable value of the use and occupation of the premises for the p
receding month or period at the rate determined by the judgment of the lower cou
rt on or before the tenth day of each succeeding month or period. The supersedea
s bond shall be transmitted by the Municipal Trial Court, with the other papers,
to the clerk of the Regional Trial Court to which the action is appealed.
All amounts so paid to the appellate court shall be deposited with said cour
t or authorized government depositary bank, and shall be held there until the fi
nal disposition of the appeal, unless the court, by agreement of the interested
parties, or in the absence of reasonable grounds of opposition to a motion to wi
thdraw, or for justifiable reasons, shall decree otherwise. Should the defendant
fail to make the payments above prescribed from time to time during the pendenc
y of the appeal, the appellate court, upon motion of the plaintiff, and upon pro
of of such failure, shall order the execution of the judgment appealed from with
respect to the restoration of possession, but such execution shall not be a bar
to the appeal taking its course until the final disposition thereof on the meri
ts.
After the case is decided by the Regional Trial Court, any money paid to the
court by the defendant for purposes of the stay of execution shall be disposed
of in accordance with the provisions of the judgment of the Regional Trial Court
. In any case wherein it appears that the defendant has been deprived of the law
ful possession of land or building pending the appeal by virtue of the execution
of the judgment of the Municipal Trial Court, damages for such deprivation of p
ossession and restoration of possession may be allowed the defendant in the judg
ment of the Regional Trial Court disposing of the appeal. (8a)
Requisites for stay execution (against defendant) pending appeal
1. perfection of appeal
2. filing a supersedeas bond for payments of accrued rents, damages and costs
3. deposit of accruing rent from time to time
Petition for review to the CA does not stay execution, even if the petitioner fi
les a supersedeas bond.
If judgment is rendered granting ejectment, execution shall issue immediately u
pon motion, unless
1. an appeal has been perfected and
2. the defendant to stay execution files a sufficient supersedeas bond
a. approved by the Municipal Trial Court and
b. executed in favor of the plaintiff to pay the rents, damages, and costs accru
ing down to the time of the judgment appealed from
c. The supersedeas bond shall be transmitted by the MTC, with the other papers,
to the clerk of the RTC to which the action is appealed.
3. and, during the pendency of the appeal, he deposits with the appellate court
the amount of rent due from time to time
a. under the contract, if any, as determined by the judgment of the MTC
b. In the absence of a contract, he shall deposit with the RTC the reasonable va
lue of the use and occupation of the premises for the preceding month or period
at the rate determined by the judgment of the lower court on or before the 10th
day of each succeeding month or period.
c. All amounts so paid to the appellate court shall be deposited with said court
or authorized government depositary bank, and shall be held there until the fin
al disposition of the appeal, unless the court shall decree otherwise
1) by agreement of the interested parties, or
2) in the absence of reasonable grounds of opposition to a motion to withdraw, o
r
3) for justifiable reasons
d. Should the defendant fail to make the payments above prescribed from time to
time during the pendency of the appeal, the appellate court shall order the exec
ution of the judgment appealed from with respect to the restoration of possessio
n (but such execution shall not be a bar to the appeal taking its course until t
he final disposition thereof on the merits)
1) upon motion of the plaintiff, and
2) upon proof of such failure
e. After the case is decided by the RTC, any money paid to the court by the defe
ndant for purposes of the stay of execution shall be disposed of in accordance w
ith the provisions of the judgment of the RTC.
f. In any case wherein it appears that the defendant has been deprived of the la
wful possession of land or building pending the appeal by virtue of the executio
n of the judgment of the MTC, damages for such deprivation of possession and res
toration of possession may be allowed the defendant in the judgment of the RTC d
isposing of the appeal.
Sec. 20. Preliminary mandatory injunction in case of appeal. Upon motion of
the plaintiff, within ten (10) days from the perfection of the appeal to the Reg
ional Trial Court, the latter may issue a writ of preliminary mandatory injuncti
on to restore the plaintiff in possession if the court is satisfied that the def
endant s appeal is frivolous or dilatory, or that the appeal of the plaintiff is p
rima facie meritorious. (9a)
Grounds for restoration by the RTC of possession to the plaintiff pending appea
l before the RTC
1. defendant s appeal is frivolous or dilatory, or
2. appeal of the plaintiff is prima facie meritorious.
Sec. 21. Immediate execution on appeal to Court of Appeals or Supreme Court.
The judgment of the Regional Trial Court against the defendant shall be immedia
tely executory, without prejudice to a further appeal that may be taken therefro
m. (10a)
The judgment of the RTC against the defendant shall be immediately executory eve
n pending appeal.
de Leon: I think this is still subject to the power of the appellate court to or
der stay of execution.
c. Cases
Francel Realty v. CA, 252 SCRA 127 (1996) If resolution of an unlawful detainer
case requires determination of rights and obligations under of parties in a sale
of real estate under PD 957, the case is exclusively cognizable by the HLURB, n
ot the MTC.
Javier v. Veridiano II, 237 SCRA 565 (1994) Ejectment has a different cause of a
ction from accion reivindicatoria (recovery of land), or even quieting of title.
Judgment in an ejectment case does into bar a subsequent action for recovery of
land, or an action for quieting of title.
Baens v. CA, 125 SCRA 634 (1983) Damages that may be awarded in ejectment cases
are for rents and reasonable compensation for the use and occupation of the prop
erty. It does not include unrealized or foregone profits, moral or exemplary dam
ages.
de Leon: So how does the plaintiff recover foregone profits, moral and exemplary
damages?
Azcuna Jr. v. CA, 255 SCRA 215 (1996)
Facts: Azcuna leased from Barcelona 3 units in a building. The lease contract pr
ovided for liquidated damages of P1,000 for every day that Azcuna fails to turn
over the property upon expiration of the lease. Azcuna refuses to vacate upon te
rmination of the lease. Barcelona wins in an ejectment case, but Azcuna objects
to the award of damages outside rentals.
Held: A provision for liquidated damages, outside compensation for use of the pr
operty, in the lease contract is valid and may be enforced in an ejectment proce
edings.
de Leon: Note that the court did not discuss the issue of whether the amount of
liquidated damages should be within the jurisdiction of the MTC. I think the amo
unt is irrelevant, because the liquidated damages are in the nature of a pre-arr
anged value of reasonable compensation for use of the leased property beyond the
authorized period. It can therefore be awarded by the MTC, regardless of amount
.
Escolin: The doctrine in Progressive Development Corporation v. CA, 301 SCRA 637
(1999) is wrong. There is no splitting the cause of action if the claim for dam
ages is beyond the jurisdiction of the MTC in the ejectment case.
de Leon: Therefore, if damages other than reasonable compensation for use of pro
perty is claimed, it must be in an amount within the jurisdiction of the MTC. Ot
herwise, the claimant must must file a separate action, or he must . He can not
waive the excess because this principle applies only to compulsory counterclaims
, not to original claims.
Penas, Jr. v. CA, 233 SCRA 744 (1994)
Facts: Lessors sent letter on January 1990 asking lessee to agree to increased r
entals or to vacate upon expiration of the original lease. Lessee refused, but c
ontinued occupying the property beyond the lease period. Lessor sends letter on
August 1992 demanding that lessee vacate. Lessee refused, so lessor filed unlawf
ul detainer case 2 months later. Lessee asserts lessor s action was filed beyond t
he 1 year period prescribed by law.
Held: 1 year period to file complaint for unlawful detainer should be counted fr
om the last demand letter to vacate. Furthermore, an alternative in the letter t
o pay the increased rental is not the demand contemplated by the rules. Ejectmen
t action has not yet prescribed.
Lim Kieh Tong v. CA, 195 SCRA 398 (1991)
Facts: Building owner changes locks of the main door, but refusing to give new k
eys to the lessees. Lessee files an ejectment case with the MTC. Lessor claims t
he action should be for specific performance and hence should be filed with the
RTC.
Held: The MTC has jurisdiction. The building owner deprived the occupant of poss
ession through stealth. The remedy is therefore forcible entry. Forcible entry i
s available to a lessee or tenant even against his landlord.
Clutario v. CA, 216 SCRA 341 (1992) Acceptance of back rentals after written dem
and to vacate having been made, and pending the ejectment case, is not a waiver
of the ground for ejectment for non-payment of rentals.
Cursino v. Bautista, 176 SCRA 65 (1989) Acceptance of back rentals after written
demand to vacate having been made, but before the ejectment case is even filed,
is not a waiver of the ground for ejectment for non-payment of rentals.
de Leon: Note that in Clutario, acceptance of back rentals was pending the eject
ment case. In Cursino, acceptance of back rentals was even before the ejectment
case was filed. In both cases, a written demand to vacate had already been serve
d. Therefore, if written demand to pay and to vacate has already been made, subs
equent acceptance of back rentals, whether before or pending ejectment action, d
oes not waive the ground for ejectment.
Acab v. CA, 241 SCRA 546 (1995) Lease agreements with no specific period are dee
med for the period in which the rents are regularly paid. The lease is therefore
for a definite period. The lease expired at the end of the month and therefore
there was a ground to demand that the lessee vacate at the end of the month. In
case of refusal, there is ground for an ejectment action.
German Management v. CA, 177 SCRA 495 (1989) A mere prior possessor, regardless
of the nature of his possession (de Leon: even squatters?!), can maintain a forc
ible entry action even against the owner if his peaceful possession is disturbed
. A prior possessor may be ejected only by an ejection action. The owner can not
resort to the doctrine of self-help if he is not in possession and in danger of
losing it.
de Leon: The remedy of the owner is to file a separate action for recovery of la
nd in which he can invoke his ownership.
Bandoy v. CA, 175 SCRA 459 (1989) Where the ejectment complaint does not allege
that prior demand to vacate was made, the courts never acquired jurisdiction. Ce
rtification by the barangay captain is not conclusive as to such prior demand, o
nly that there was no settlement reached.
Escolin: If the demand is to pay back rentals only, there is no cause of action
for ejectment, only a cause of action for collection of back rentals. In such a
case, the amount of back rentals demanded is relevant in determining jurisdictio
n because the action is now a simple collection case. Rule 70 Sec. 2 requires de
mand to both pay back rentals and to vacate for a cause of action in an ejectmen
t case to arise.
Sec. 2. Lessor to proceed against lessee only after demand. Unless otherwise sti
pulated, such action by the lessor shall be commenced only after demand to pay o
r comply with the conditions of the lease and to vacate is made upon the lessee,
xxx. (2a)
Hence, if there was prior demand to vacate and pay back rentals, the MTC has exc
lusive jurisdiction over the ejectment case regardless of the amount of incident
al back rentals.
Peran v. Presiding Judge, 125 SCRA 78 (1983) Possession by tolerance becomes ill
egal when the possessor refuses to comply with demand to vacate. Prior physical
possession by the ejectment plaintiff is not necessary.
Once v. Gonzales, 76 SCRA 258 (1977) Supersedeas bond by the ejectment defendant
is not required where no back rentals were adjudged. In such a case, timely dep
osit of accruing rentals is enough to stay the execution pending appeal.
Pharma Industries, Inc., v. Pajarillaga, 100 SCRA 339 (1980) In unlawful detaine
r, prior possession of the plaintiff is not a requisite.
Racaza v. Susana Realty, 18 SCRA 1172 (1966) When the action is to terminate the
lease because of expiration of the term, prior demand to vacate is not necessar
y. Demand is only indicative of intention not to extend the lease. It is require
d only if there was failure to pay rent, or to comply with the conditions of the
lease. After expiration of the lease, the lessor may regain possession of the p
roperty. Refusal of the lessee to vacate allows the lessor to file for unlawful
detainer even before expiration of the 15 or 5 day period.
San Manuel v. Tupas, 249 SCRA 466 (1995) A good reason (as required in execution p
ending appeal in ordinary cases) is not necessary for execution pending appeal i
n ejectment cases because it is expressly made immediately executory by the Rule
s. Failure of an appealing ejectment defendant to make a periodic deposit of ren
tals pending appeal results in execution pending appeal.
Vda. de Ampil v. Alvendia, 10 SCRA 828 (1964)
Facts: MTC grants ejectment and orders defendant to pay accruing rents within th
e first 5 days of each month if he wants to stay execution pending appeal. Defen
dant appeals and pays accruing rents within the first 10 days of each month, but
outside the first 5 days. Plaintiff moves for execution pending appeal.
Held: Decision calling for payment of rentals until defedant vacates is not cont
rolling because there is no pronouncement that the contract calls for such payme
nt. Only payment within the first 10 days of the month is sanctioned by the rule
s.
de Leon: Note that if the MTC orders monthly payment less than the first 10 days
of the month, the appellant need not comply with such period, but he still must
pay within the first 10 days of the month.
City of Manila v. CA, 149 SCRA 183 (1987) Even if the plaintiff appeals a judgme
nt ordering ejectment on the ground that rentals awarded were not enough, the ju
dgment is still executory pending appeal. If the lessee desires to prevent execu
tion pending appeal, he must file a supersedeas bond and deposit in court the ac
cruing rentals.
Buenaventura v. Halili-Uy, 149 SCRA 22 (1987)
Facts: Lessor allows lessee to occupy area in excess of the lease until lessor n
eeds it. Lessee refused to vacate on demand. Lessor files case for unlawful deta
iner and forcible entry.
Held: The suit should be for unlawful detainer. The lessee s possession of the exc
ess area was lawful until demand to vacate was ignored.
Distinction between forcible entry and unlawful detainer (1) As to possession: t
he possession of the intruder or person who deprives another of the possession o
f a land or building in forcible entry is illegal from the beginning because his
entry into or taking possession thereof is made against the will or without the
consent of the former possessor; while in unlawful detainer, the possession of
the detainer is originally legal or lawful, but it becomes illegal after the exp
iration or termination of his right to hold possession of the land or building b
y virtue of a contract; (2) As to demand to vacate: in forcible entry, no previo
us demand to vacate is required by law before the filing of the action; while in
an action for unlawful detainer by a landlord against his tenant, such demand i
s required.
Allegation of prior possession is not required in unlawful detainer, while such
allegation is required in forcible entry.
San Pedro v. CA, 235 SCRA 145 (1994) Failure of the defendant to make periodic d
eposits pending appeal results in execution pending appeal. Execution of an ejec
tment case pending appeal is not stayed by a pending separate action for annulme
nt of title of the prevailing ejectment plaintiff.
10. Contempt
DIRECT
INDIRECT
Must
Summary
Hearing
Not need
appealable;
have
CONTEMPT
judgment
is
CONTEMPT
toformal
mandatory
haveonly
written
remedy
charge
is special
or verified
civilcomplaint
action for certiorari or prohibitio
nAppealableupbytonotice
Punished P2,000offine
appeal
and/or 10 day imprisonment if committed against super
ior courts;
Punished up to
P200P30,000
and/orfine
1 dayand/or
if committed
6 monthsagainst
imprisonment
lower if
courts
committed against su
perior courts; P5,000 and/or 1 month if committed against lower courts
a. Rule 71
General Procedure in Contempt
Section 1. Direct contempt punished summarily. A person guilty of misbehavio
r in the presence of or so near a court as to obstruct or interrupt the proceedi
ngs before the same, including disrespect toward the court, offensive personalit
ies toward others, or refusal to be sworn or to answer as a witness, or to subsc
ribe an affidavit or deposition when lawfully required to do so, may be summaril
y adjudged in contempt by such court and punished by a fine not exceeding two th
ousand pesos or imprisonment not exceeding ten (10) days, or both, if it be a Re
gional Trial Court or a court of equivalent or higher rank, or by a fine not exc
eeding two hundred pesos or imprisonment not exceeding one (1) day, or both, if
it be a lower court. (1a)
Direct Contempt misbehavior in the presence of or so near a court as to obstruc
t or interrupt the proceedings before the same including
1. disrespect toward the court
2. offensive personalities toward others, or
3. refusal to be sworn or to answer as a witness
4. refusal to subscribe an affidavit or deposition when lawfully required to do
so
Direct contemt may be summarily adjudged and punished by
1. a fine not exceeding P2,000 or imprisonment not exceeding 10 days, or both if
it be a RTC or a court of equivalent or higher rank
2. a fine not exceeding P200 or imprisonment not exceeding 1 day, or both - if i
t be a lower court. (1a)
Sec. 2. Remedy therefrom. The person adjudged in direct contempt by any cour
t may not appeal therefrom, but may avail himself of the remedies of certiorari
or prohibition. The execution of the judgment shall be suspended pending resolut
ion of such petition, provided such person files a bond fixed by the court which
rendered the judgment and conditioned that he will abide by and perform the jud
gment should the petition be decided against him. (2a)
The person adjudged in direct contempt by any court
1. may not appeal therefrom
2. may avail himself of the remedies of certiorari or prohibition (observe rule
on hierarchy of courts)
3. The execution of the judgment shall be suspended pending petition for certior
ari or prohibition, provided such person files a bond
a. fixed by the court which rendered the judgment and
b. conditioned that he will abide by and perform the judgment should the petitio
n be decided against him
de Leon: Note that a conviction for direct contempt is an exception to the gener
al rule that special civil action for certiorari does not stay execution.
Sec. 3. Indirect contempt to be punished after charge and hearing. After a c
harge in writing has been filed, and an opportunity given to the respondent to c
omment thereon within such period as may be fixed by the court and to be heard b
y himself or counsel, a person guilty of any of the following acts may be punish
ed for indirect contempt:
(a) Misbehavior of an officer of a court in the performance of his official
duties or in his official transactions;
(b) Disobedience of or resistance to a lawful writ, process, order, or judgm
ent of a court, including the act of a person who, after being dispossessed or e
jected from any real property by the judgment or process of any court of compete
nt jurisdiction, enters or attempts or induces another to enter into or upon suc
h real property, for the purpose of executing acts of ownership or possession, o
r in any manner disturbs the possession given to the person adjudged to be entit
led thereto;
(c) Any abuse of or any unlawful interference with the processes or proceedi
ngs of a court not constituting direct contempt under section 1 of this Rule;
(d) Any improper conduct tending, directly or indirectly, to impede, obstruc
t, or degrade the administration of justice;
(e) Assuming to be an attorney or an officer of a court, and acting as such
without authority;
(f) Failure to obey a subpoena duly served;
(g) The rescue, or attempted rescue, of a person or property in the custody
of an officer by virtue of an order or process of a court held by him.
But nothing in this section shall be so construed as to prevent the court fr
om issuing process to bring the respondent into court, or from holding him in cu
stody pending such proceedings. (3a)
Note that in indirect contempt, a written charge must be filed, and a hearing co
nducted. But the court may order the arrest of the respondent and to detain him
pending the contempt proceedings.
Instances of Indirect contempt
1. Misbehavior of an officer of a court in the performance of his official dutie
s or in his official transactions;
2. Disobedience of or resistance to a lawful writ, process, order, or judgment o
f a court
3. abuse of or any unlawful interference with the processes or proceedings of a
court not constituting direct contempt
4. improper conduct tending, directly or indirectly, to impede, obstruct, or deg
rade the administration of justice
5. assuming to be an attorney or an officer of a court, and acting as such witho
ut authority;
6. failure to obey a subpoena duly served;
7. the rescue, or attempted rescue, of a person or property in the custody of an
officer by virtue of an order or process of a court held by him.
Note that a losing party in an ejectment case does not commit contempt by mere r
efusal to leave the premises. But if such party had been dispossessed pursuant t
o a court order, but subsequently disturbs the possession of the prevailing part
y, he now commits contempt.
cf Rule 39, Sec. 10 (c)
Sec. 10. Execution of judgments for specific act.
(c) Delivery or restitution of real property. The officer shall demand of the pe
rson against whom the judgment for the delivery or restitution of real property
is rendered and all person claiming rights under him to peaceably vacate the pro
perty within three (3) working days, and restore possession thereof to the judgm
ent obligee; otherwise, the officer shall oust and such persons therefrom with t
he assistance, if necessary of appropriate peace officers, and employing such me
ans as may be reasonably necessary to retake possession, and place the judgment
obligee in possession of such property. Any costs, damages, rents or profits awa
rded by the judgment shall be satisfied in the same manner as a judgment for mon
ey. (13a)
Sec. 4. How proceedings commenced. 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 h
e should not be punished for contempt.
In all other cases, charges for indirect contempt shall be commenced by a ve
rified petition with supporting particulars and certified true copies of documen
ts or papers involved therein, and upon full compliance with the requirements fo
r filing initiatory pleadings for civil actions in the court concerned. If the c
ontempt 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 o
rders the consolidation of the contempt charge and the principal action for join
t hearing and decision. (n)
Proceedings for indirect contempt
1. initiated by
a. the court against which the contempt was committed motu proprio by an order o
r any other formal charge requiring the respondent to show cause why he should n
ot be punished for contempt.
b. verified petition
1) with supporting particulars and certified true copies of documents or papers
involved therein, and
2) upon full compliance with the requirements for filing initiatory pleadings fo
r civil actions in the court concerned.
3) Allegation that the contempt charges arose out of or are related to a princip
al action pending in the court
2. an opportunity given to the respondent to
a. comment thereon within such period as may be fixed by the court and
b. be heard by himself or counsel
3. petition shall be docketed, heard and decided separately, unless the court in
its discretion orders the consolidation of the contempt charge and the principa
l action for joint hearing and decision.
4. the court can issue process to bring the respondent into court, or hold him i
n custody pending the indirect contempt proceedings
SEC. 5. Where charge to be filed. - Where the charge for indirect contempt h
as been committed against a Regional Trial Court or a court of equivalent or hig
her rank, or against an officer appointed by it, the charge may be filed with su
ch court. Where such contempt has been committed against a lower court, the char
ge may be filed with the Regional Trial Court of the place in which the lower co
urt is sitting; but the proceedings may also be instituted in such lower court s
ubject to appeal to the Regional Trial Court of such place in the same manner as
provided in section 11 of this Rule. (4a)
Where charge to be filed if committed against
1. a RTC or a higher court, or against an officer appointed by it the charge may
be filed with such court.
2. a lower court the charge may be filed with
a. such lower court subject to appeal to the RTC
b. the RTC of the place in which the lower court is sitting
Sec. 6. Hearing; release on bail. If the hearing is not ordered to be had fo
rthwith, the respondent may be released from custody upon filing a bond, in an a
mount fixed by the court, for his appearance at the hearing of the charge. On th
e day set therefor, the court shall proceed to investigate the charge and consid
er such comment, testimony or defense as the respondent may make or offer. (5a)
If the hearing is not ordered to be had forthwith, the respondent may be releas
ed from custody upon filing a bond
1. in an amount fixed by the court
2. for his appearance at the hearing of the charge
The court shall proceed to investigate the charge and consider such comment, tes
timony or defense as the respondent may make or offer.
Sec. 7. Punishment for indirect contempt. If the respondent is adjudged guil
ty of indirect contempt committed against a Regional Trial Court or a court of e
quivalent or higher rank, he may be punished by a fine not exceeding thirty thou
sand pesos or imprisonment not exceeding six (6) months, or both. If he is adjud
ged guilty of contempt committed against a lower court, he may be punished by a
fine not exceeding five thousand pesos or imprisonment not exceeding one (1) mon
th, or both. If the contempt consists in the violation of a writ of injunction,
temporary restraining order or status quo order, he may also be ordered to make
complete restitution to the party injured by such violation of the property invo
lved or such amount as may be alleged and proved.
The writ of execution, as in ordinary civil actions, shall issue for the enf
orcement of a judgment imposing a fine unless the court otherwise provides. (6a)
Sec. 8. Imprisonment until order obeyed. When the contempt consists in the r
efusal or omission to do an act which is yet in the power of the respondent to p
erform, he may be imprisoned by order of the court concerned until he performs i
t. (7a)
Punishment for indirect contempt
1. committed against a RTC or a court of equivalent or higher rank a fine not ex
ceeding P30,000 or imprisonment not exceeding 6 months, or both
2. committed against a lower court a fine not exceeding P5,000 or imprisonment n
ot exceeding 1 month, or both.
3. consisting of violation of a writ of injunction, TRO or status quo order comp
lete restitution to the party injured
4. refusal or omission to do an act which is yet in the power of the respondent
to perform imprisonment until he performs it
The writ of execution, as in ordinary civil actions, shall issue for the enforce
ment of a judgment imposing a fine unless the court otherwise provides.
Sec. 9. Proceeding when party released on bail fails to answer. When a respo
ndent released on bail fails to appear on the day fixed for the hearing, the cou
rt may issue another order of arrest or may order the bond for his appearance to
be forfeited and confiscated, or both; and, if the bond be proceeded against, t
he measure of damages shall be the extent of the loss or injury sustained by the
aggrieved party by reason of the misconduct for which the contempt charge was p
rosecuted, with the costs of the proceedings, and such recovery shall be for the
benefit of the party injured. If there is no aggrieved party, the bond shall be
liable and disposed of as in criminal cases. (8a)
When a respondent released on bail fails to appear on the day fixed for the hea
ring, the court may
1. issue another order of arrest and/or
2. may order the bond for his appearance to be forfeited and confiscated
a. the measure of damages shall be the extent of the loss or injury sustained by
the aggrieved party by reason of the misconduct for which the contempt charge w
as prosecuted, with the costs of the proceedings, and such recovery shall be for
the benefit of the party injured.
b. If there is no aggrieved party, the bond shall be liable and disposed of as i
n criminal cases.
Sec. 10. Court may release respondent. The court which issued the order impr
isoning a person for contempt may discharge him from imprisonment when it appear
s that public interest will not be prejudiced by his release. (9a)
The court which issued the order imprisoning a person for contempt may discharge
him from imprisonment when it appears that public interest will not be prejudic
ed by his release.
Sec. 11. Review of judgment or final order; bond for stay. The judgment or f
inal order of a court in a case of indirect contempt may be appealed to the prop
er court as in criminal cases. But execution of the judgment or final order shal
l not be suspended until a bond is filed by the person adjudged in contempt, in
an amount fixed by the court from which the appeal is taken, conditioned that if
the appeal be decided against him he will abide by and perform the judgment or
final order. (10a)
The judgment or final order of a court in a case of indirect contempt
1. may be appealed to the proper court as in criminal cases.
2. execution pending appeal shall not be suspended until a bond is filed by the
person adjudged in contempt
a. in an amount fixed by the court from which the appeal is taken
b. conditioned that if the appeal be decided against him he will abide by and pe
rform the judgment or final order
Note that in both direct and indirect contempts, execution pending appeal is sta
yed only by posting a bond even if the modes of appeal are different.
Sec.12. Contempt against quasi-judicial entities. Unless otherwise provided
by law, this Rule shall apply to contempt committed against persons, entities, b
odies or agencies exercising quasi-judicial functions, or shall have suppletory
effect to such rules as they may have adopted pursuant to authority granted to t
hem by law to punish for contempt. The Regional Trial Court of the place wherein
the contempt has been committed shall have jurisdiction over such charges as ma
y be filed therefor. (n)
RTC has jurisdiction over contempt committed against quasi-judicial entities.
b. Cases
Ang v. Castro, 136 SCRA 453 (1985) The use of disrespectful of contemptuous lang
uage against a particular judge in pleadings presented in another court or proce
eding is indirect, not direct, contempt as it is not tantamount to a misbehavior
in the presence of or so near a court or judge as to interrupt the administrati
on of justice. Stated differently, if the pleading containing derogatory, offens
ive or malicious statements is submitted in the same court or judge in which the
proceedings are pending, it is direct contempt.
People v. Torio, 118 SCRA 17 (1982) Failure to appear in court is not direct con
tempt. It may however constitute indirect contempt.
Cabilan v. Ramolete, 192 SCRA 674 (1990) Even a pleading submitted to the court
may contain derogatory or malicious statements which constitute direct contempt
against such court. It amounts to misbehaviour committed in the presence of or s
o near a court or judge as to interrupt the administration of justice. Direct co
ntempt may be punished summarily, without hearing.
Pascua v. Heirs of Simeon, 161 SCRA 1 (1988) Mere refusal of a litigant to vacat
e the property subject of a writ of possession does not constitute constitute co
ntempt. The writ is directed to the sheriff, not the parties. The remedy is for
the sheriff to dispossess them of the premises and deliver possession to the win
ning party. However, if after being dispossessed, the party re-enters the proper
ty for the purpose of executing acts of ownership or possession, he may then be
charged for contempt.
Santiago v. Anunciacion, Jr., 184 SCRA 118 (1990)
Facts: Santiago was the counsel for the accused in a kidnapping case. The allege
d kidnapping victim, Amylie, subsequently claimed that she was not kidnapped but
was in fact the lover of the accused. On the day Amylie was supposed to testify
that she was not kidnapped, a warrant of arrest was served on her in connection
for a case of disobedience filed by her own mother. Upon Santiago s request, Amyl
ie was arrested only after she had testified. A case for indirect contempt was f
iled against Santiago in the court hearing the disobedience case. On the date of
hearing, a private prosecutor entered his appearance. Santiago objects.
Held: A contempt charge partakes the nature of a penal proceeding. Being so, it
is subject to the rules on criminal procedure and the rules on the intervention
of the offended party in criminal actions. The rule is that unless the offended
party has waived the civil action or expressly reserved the right to institute i
t separately from the criminal action, he may intervene by counsel in the prosec
ution of the offense. The intervention of the offended party is subject to the d
irection and control of the fiscal, and for the sole purpose of enforcing the ci
vil liability of the accused, and as we have held, "not of demanding punishment
of the accused."
In the case at bar, there is no justification for the prosecution of the case by
a private prosecutor. In this instance, the kind of contempt (indirect) for whi
ch the petitioner is sought to be held liable provides for no indemnity because
the alleged "obstruction" committed was an offense against the State, the respon
dent court in particular, which involves no private party.
de Leon: I think this case is illustrative of the distinction between civil (to
enforce rights of litigants) and criminal (to vindicate court authority) contemp
t. The capacity of a private prosecutor to intervene in contempt proceedings is
similar to that in criminal cases. If there is a private offended party, i.e. ci
vil contempt, a private prosecutor may intervene. If there is no private offende
d party (criminal contempt), a private prosecutor may not intervene. The contemp
t that Santiago was alleged to have committed is criminal contempt because he wa
s alleged to have interfered with court processes.
Barrete v. Amila, 230 SCRA 219 (1994) The mere refusal or unwillingness on the p
art of the losing party in an ejectment case to vacate the property did not cons
titute contempt. The writ of possession was directed not to the losing party, bu
t to the Sheriff, who was to deliver the properties to the prevailing party. As
the writ did not command the losing party to do anything, the losing party could
not be held guilty of disobedience of or resistance to a lawful writ, process,
order, judgment or command of a court. Moreover, the losing party could not be
punished for contempt for disobedience of or resistance to the judgment of the tr
ial court because said judgment was not a special judgment. When the judgment req
uires the delivery of real property, any contempt proceeding arising therefrom m
ust be based on act of a person who, after being dispossessed or ejected from any
real property by the judgment or process of any court of competent jurisdiction
, enters or attempts or induces another to enter into or upon such real property
, for the purpose of executing acts of ownership or possession, or in any manner
disturbs the possession given to the person adjudged to be entitled thereto and
not on "the disobedience of or resistance to a lawful writ, process, order, judg
ment, or command of a court, or injunction granted by a court or judge."
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-Remedial
37 - Law Reviewer, Part VI of IX