Consolidated Remedial Law Review 2 Transcribed Notes: Provisional Remedies To Special Proceedings Provisional Remedies

CONSOLIDATED REMEDIAL LAW REVIEW 2 TRANSCRIBED NOTES:
PROVISIONAL REMEDIES TO SPECIAL PROCEEDINGS
PROVISIONAL REMEDIES
How to secure the judgment?
Provisional Remedies are described or characterized - To secure such judgement satisfied or
as temporary, auxiliary, and ancillary remedies. enforced, if the applicant gets a favorable
judgment
Why are provisional remedies characterized as
temporary remedies? Who can grant a provisional remedy?
- They are available only during a certain - Only the court before which the main action is
period. pending can grant a provisional remedy. This
is because a provisional remedy is an
When are provisional remedies available to party? ancillary remedy.
- Available only during the pendency which
start upon filing of the action.
- Once the action is terminated, provisional RULE 57: PRELIMINARY ATTACHMENT
remedies are no longer available.
When may a writ of preliminary attachment may be
Why are provisional remedies characterized as applied?
auxiliary remedies? - A preliminary attachment may be applied
- They help parties to obtain reliefs that they from the commencement of the action and
are seeking in the main action. any time before and entry of judgment.
- They provide additional support but it is not
the ultimate relief prayed for. How is a civil action commenced?
- By filing of the complaint
In what way provisional remedies help a party in an
action? When may be the earliest time a writ of preliminary
- While provisional remedies are not the attachment be applied for?
ultimate remedy sought by a party they help a - At the time that the plaintiff files the complaint.
party obtain those final and ultimate remedies
he is seeking in the main action. May the application for the writ of preliminary
attachment be incorporated in the complaint?
Why are provisional remedies characterized as - Yes. From the time of the filing of the
ancillary remedy? complaint, the writ of preliminary attachment
- They are dependent or attached to principal may be applied for and at any time before
actions. entry of judgment.
- They are mere incidents of the principal
actions which cannot exist or be separated or What is referred to by entry of judgment?
independent from the main actions before the - It refers to the exact time when the period to
court accord the parties provisional remedies. appeal has expired and no appeal has been
- There must be a pending main action. filed.
What are the purposes of provisional remedies

What happens when the period to appeal for all the
applied for?
parties has expired and no appeal has been
1) To protect and preserve the rights of interest
perfected?
of applicant during pendency of the action.
- The judgment becomes final and executory.
2) To secure the judgement
3) To preserve and maintain the subject matter
Entry of judgment – refers to the exact date when the
of the action pendency of action
judgment becomes final and executory.
4) To preserve the status quo during pendency
of action
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Remedial Law Review 2: Provisional Remedies to Special Proceedings (1st Semester, A.Y. 2020-2021)
Consolidated TSN by: Irish Baula | Imelda Garcia | Neil Garde | Arrah Quevedo-Ignacio | Dana Reyes | Mikee Rualo | Tin Sampang-Bonsol | Zet Trinidad
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Rendition of judgment – refers to judgment rendered in a fiduciary capacity, or for a willful violation
when a written copy of the judgment is directly and of duty;
personally filed by the judge, stating clearly and
distinctively the facts and law on which an action is c) In an action to recover the possession of
based, and signed by the judge and file with clerk of property unjustly or fraudulently taken,
court. (Judgment becomes final) detained or converted, when the property, or
any part thereof, has been concealed,
Which party may apply for a writ of preliminary removed, or disposed of to prevent its being
attachment? found or taken by the applicant or an
- The plaintiff or other proper parties. authorized person;
Who are the “other proper properties” referred to? d) In an action against a party who has been
1) Third party plaintiff (defendant in the main guilty of a fraud in contracting the debt or
action) incurring the obligation upon which the action
2) Counter claimant is brought, or in the performance thereof;
3) Cross claimant
e) In an action against a party who has removed
Can a defendant apply for a writ of preliminary or disposed of his property, or is about to do
attachment? so, with intent to defraud his creditors; or
- Not necessarily. He may apply if he filed a
cross claim against his co-defendant or a f) In an action against a party who does not
counter claim against the plaintiff. reside and is not found in the Philippines, or
on whom summons may be served by
publication.
When is an attachment lien on the property of the
defendant which has been attached in a writ of
preliminary attachment continue to subsist? What is required for the plaintiff for the court to grant
- It will still continue until the execution of the his/her application for a writ of preliminary attachment
judgment. in an action when the defendant either committed
- It will continue to exist until the debt of the fraud in contracting debt or fraud in the performance
defendant or the judgment or the attachment of the obligation?
is satisfied (Lim vs. Lazaro). - The applicant must sufficiently show the
factual circumstances of the alleged fraud
because fraudulent intent cannot be inferred
In what grounds may a writ of preliminary attachment
from the debtor's mere non-payment of the
be applied? (R57, Sec 1)
debt or failure to comply with his obligation.
a) In an action for the recovery of a specified The applicant must then be able to
amount of money or damages, other than demonstrate that the debtor has intended to
moral and exemplary, on a cause of action defraud the creditor (Alejandro Ng Wee vs.
arising from law, contract, quasi-contract, Tankiansee).
delict or quasi-delict against a party who is
about to depart from the Philippines with May a court grant a writ of preliminary attachment
intent to defraud his creditors; without notice and hearing?
- Yes, because the court has yet to acquire
b) In an action for money or property embezzled jurisdiction.
or fraudulently misapplied or converted to his
own use by a public officer, or an officer of a May a writ of preliminary attachment which was issued
corporation, or an attorney, factor, broker, ex parte, before summon is served be enforced and
agent, or clerk, in the course of his served on defendant without a prior or
employment as such, or by any other person contemporaneous service?
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- No, because all applications for provisional equivalent to the claim fixed by the court in
remedies must be verified. the order attachment).
- A writ of preliminary attachment may be 2) Defendant may assert that the attachment
applied upon filing of the complaint and done was improperly or irregularly issued/enforced.
ex parte without the court having no 3) Defendant may show that that the attachment
jurisdiction to the defendant. is excessive (the discharge will only pertain to
the excess of the obligation of the defendant
Procedure: to the plaintiff).
1) Application for a writ of preliminary 4) Defendant may show to the court that his/her
attachment and the court’s issuance of an property that was attached is exempt from
order granting the application of a writ of attachment/execution.
preliminary attachment
2) Issuance of a writ of preliminary attachment What if the writ of preliminary attachment has been
(done ex parte; no need for notice & hearing) issued but the property of the defendant has not been
3) Enforcement of a writ of preliminary attached, may the defendant prevent the attachment
attachment (cannot be done ex parte; needs of his/her property?
a prior and contemporaneous service) - Yes, by making a deposit or counter bond in
an amount equivalent to the claim fixed by the
GR: Enforcement or implementation should be done court in the order attachment.
with prior or contemporaneous service of summons
EXP: Instances a writ of preliminary attachment be

RULE 58: PRELIMINARY INJUNCTION
enforced without summons:
What is writ of preliminary of injunction?
1) When the defendant is a resident of the
- It is an order granted at any stage of an action
Philippines but service of summons cannot be
or proceeding prior to the judgment or final
done personally or by substituted service
order, requiring a party or a court, agency or
despite diligent effort
a person to refrain from a particular act or
2) When the defendant is a resident of the
acts. It may also require the performance of a
Philippines but is temporarily out of the
particular act or acts, in which case it shall be
Philippines
known as a preliminary mandatory
3) When the defendant is not a resident of the
injunction. (R58, Sec 1)
Philippines and is not found in the Philippines
4) When the action is in rem or quasi in rem
What are the 2 types of writs of preliminary of
injunction?
Would the subsequent service of summons cure the
1) Writ of Preliminary Mandatory Injunction –
defect when the defendant was not served a prior
requires the defendant to perform a certain
summons?
act
- No, the rules state that a writ of preliminary
2) Writ of Preliminary Prohibitory Injunction –
attachment may only be enforced against a
refrains the defendant to perform a certain
defendant of the court has acquired
act
jurisdiction over the person (Torres vs.
Satsatin).
In what main action may a writ of preliminary of
injunction be applied for?
What are the remedies available to the defendant to
- In an action for injunction where the principal
discharge the attachment on his/her property?
relief prayed for by the plaintiff is for the court
1) Defendant may cash deposit (same value as
to compel/refrain defendant from doing a
the property) or post a counter bond (amount
certain act or to perform a certain act.
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May the court issue a writ of preliminary of injunction RULE 59: RECEIVERSHIP
without notice and hearing?
- No, because the court cannot issue a writ of When may the court appoint a receiver? (R59, Sec
preliminary of injunction unless it has 1)
acquired jurisdiction over the person of the
defendant. a) When it appears from the verified application,
- Per Atty. Obra, there are no exceptions to the and such other proof as the court may require,
above rule. However, the rule makes it that the party applying for the appointment of
appear that there are exceptions. a receiver has an interest in the property or
What are those remedies accorded to the plaintiff? fund which is the subject of the action or
(R58, Sec 5): proceeding, and that such property or fund is
1) Issuance of a 20-day TRO (requires a in danger of being lost, removed, or materially
summary hearing) - grave and irreparable injured unless a receiver be appointed to
damage administer and preserve it;
2) TRO 72 hours (3 days)
- extreme urgency b) When it appears in an action by the
- upon application (court to issue a TRO) mortgagee for the foreclosure of a mortgage
that the property is in danger of being wasted
During the 72-hour TRO, the application for the 20day or dissipated or materially injured, and that its
TRO may be heard summarily. value is probably insufficient to discharge the
mortgage debt, or that the parties have so
Writ of preliminary of injunction always require hearing stipulated in the contract of mortgage;
after service of summons.
c) After judgment, to preserve the property
Two (2) things present for a court to issue a writ of during the pendency of an appeal, or to
preliminary of injunction: dispose of it according to the judgment, or to
1) Plaintiff must show and prove to the court that aid execution when the execution has been
he/she has a clear and positive right returned unsatisfied or the judgment obligor
protected that deserves protection. refuses to apply his property in satisfaction of
2) Plaintiff must show to the court that right will the judgment, or otherwise to carry the
be violated if the act complained of is not judgment into effect;
prevented
d) Whenever in other cases it appears that the
What must the applicant show in the appointment of a receiver is the most
affidavit/application? (Grounds: R58, Sec 3) convenient and feasible means of preserving,
1) Applicant is entitled prayed for in the main administering, or disposing of the property in
action. litigation.
2) If defendant is allowed to perform such
performance/continuance will cause injustice
to the applicant. In one case which involves a property being disputed
by the parties, the plaintiff applied as a receiver. He
The purpose of a writ of preliminary injunction is to alleged that during the pendency of the action, he
preserve the status quo during the pendency of the needs funds to defray for his medical expenses and
action. If the defendant is not prevented during the other needs. The Supreme Court held that his reason
pendency of the action to perform the act complained for application as receiver is not a valid ground.
of and he performs it during the pendency of the
action, it will render the judgment ineffectual. In another case, plaintiff did not allege in the
application for appointment of receiver that the
property subject of the action is in danger of being
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wasted or dissipated or materially injured. The EXP: Unless the applicant gives a bond in favor of the
Supreme Court ruled that the application should not third party claimant
be granted because the applicant must show a valid
ground to be a receiver of the subject property.
RULE 61: SUPPORT PENDENTE LITE
RULE 60: REPLEVIN In what actions may support pendent lite be applied
for?
In what action may a writ of replevin be applied for? - Action for support (main action)
- In a main action to recover possession of - Action for of marriages - Annulment of
personal property marriage
- May be applied for an action for replevin - Criminal action (rape)
- Declaration for nullity of marriage
When may be applied? - Legal separation
- At the commencement of action; or
- At any time before answer What should be alleged?
- That person is entitled for support
What should plaintiff show/allege in the application?
(R60, Sec 1) Why is a minor entitled to support?
1) Applicant is the owner of the property/entitled - Because the law requires (Family Code)
to the possession of the property involve
2) Property is unlawfully detained by defendant The action for support is filed against the alleged
3) Property is not taken into custody or not seize father of the minor.
by court The mother of the minor applies for support pendente
4) Actual market value of the property lite.
What is the duty of the sheriff once the court has What must be alleged?
issued the writ of replevin? 1) Legal basis for the duty of the defend to give
- Sheriff to deliver the writ to the defendant support to the minor child
- Sheriff to implement the writ by taking into 2) Legal basis for the right of the minor to be
possession of the personal property then he given support by the defendant
shall retain the property within 5 days before 3) Financial capability of the defendant
giving it to plaintiff 4) Needs of the minor child
- Defendant may question the sufficiency of the
bond The court granted the support pendente lite requiring
- Reason for the 5-day period: To wait for defendant to provide a certain amount every month to
defendant to post a counter bond the minor child. During the pendency of the action,
defendant gave monthly support to the minor. Later
Amount of the bond = equivalent or double the amount on, the court determined that the defendant was not
of actual market value as alleged in the the father of the minor child. What are the remedies of
application for replevin the defendant?
1) Defendant may seek reimbursement from the
What is the effect if a third person claims ownership of recipient of the support in another action.
the personal property? 2) If recipient cannot reimburse, defendant may
GR: When a third party makes an affidavit of his right file a separate action with legal interest from
of possession over the personal property and he/she the person legally obliged to give support.
files it with the sheriff, copy furnished the applicant, the 3) Paternity suit
sheriff and relieved of his duty to keep such property
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May minor grandchildren demand support from their against him, provided there are certain
grandparents? GR: No conditions: (1) that either he claims no
EXP: Minor children’s parents are unable to financially interest whatsoever in the subject matter, or
support them (Lim vs. Lim). (2) that an interest in whole or in part is not
disputed by the conflicting claimants.
If the husband is unable to provide support to the wife,
may the wife demand support from her parents-inlaw? So, let’s take the answer completely. A person may
- No because the duty to provide support file a complaint in interpleader, when conflicting claims
applies only to the relatives by blood in the upon the same subject matter are or may be made
ascending line. against him. And he claims no interest in the subject
matter of the claims, or he claims an interest which is
What is Republic Act No. 9262? not disputed by the conflicting claimants.
- The law against Violence Against Women
and Children (VAWC). Okay. I hope you can understand exactly when may a
person file a complaint in interpleader. I said complaint
A woman filed an action against the father of her child in interpleader because the initiatory pleading for this
based on RA 9262. She prayed for a temporary special civil action is a complaint. In other special civil
protection order and for support pendente lite for her actions, the initiatory pleading is a petition. But in an
minor child. action for interpleader, the initiatory pleading is a
- The amount of support that must be given to complaint. That's why it is a complaint in interpleader.
a minor must be proportionate to the capacity
or means of the person who shall give support Now, what relief or reliefs are sought by the person
and the needs of the minor entitled to the when he files a complaint in interpleader? What relief
support. is he seeking?
- The relief sought by the person filing a

RULE 62: INTERPLEADER complaint in interpleader is to compel the
conflicting claimants to interplead and litigate
When may a person file a complaint in their several claims among themselves.
interpleader?
- A complaint for interpleader may be filed So could you explain that to us?
when there are conflicting claims upon…
- Since the complainant is either has no
Wait. My question is, “When may a person file a interest in the subject matter or that although
complaint in interpleader?” (You started your he has an interest in it, it's not disputed by the
answer with, “A complaint in interpleader may be claimants, he will let the conflicting claimants
filed…”. That's not responsive to the question because to litigate their claim or right over the said
my question is “When may a person file a complaint in subject matter to determine who has the
interpleader?” So your answer must be responsive to better right between the two of them.
the question. What you were about to say may be
correct, but it's better to be responsive to the question. So, he will file a complaint in interpleader, so that the
So my question is ““When may a person file a conflicting claimants against him. The conflicting
complaint in interpleader?” Your answer should claims are being made against him by two persons.
start with, “A person may file a Let us say there are two persons, the conflicting
complaint in interpleader…”, then you proceed.) claims of whom are upon the same subject. So, two
persons are claiming against him the same subject.
- A person may file a complaint in interpleader Let us say the subject is a sum of money. So, the
when there are conflicting claims upon the person against whom conflicting claims are made, is
same subject matter is made or may be made willing to pay that sum of money.
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Let us say, this person is a lessee, and there are two - Upon the filing of the complaint in
persons claiming that they are entitled to the monthly interpleader, the court shall issue an order
rentals that he is paying. Let us say the lessor died an directing the conflicting claimants to
later on two persons talk to the lessee both of whom interplead with one another or to litigate their
saying that they are entitled to the payment of the several claims or their conflicting claims.
monthly rentals. The lessee is willing to pay the 11:03
monthly rentals, in fact, when the lessor was still alive,
he was religiously paying the monthly rentals. But the Okay, what else? So the court will issue an order
lessor died, and two persons now told him, each of directing the conflicting claimants. They are now the
whom, claims that he is the one entitled to the monthly defendants. By the way, the persons against whom
rental because he is the sole heir of the lessor. conflicting claims are made, and who files the
complaint in interpleader will be the plaintiff and the
There are two of them. So the lessee now does not conflicting claimants will now be the defendants. So
know which of these two conflicting claimants is there will always be more than one defendants in a
entitled to the monthly rentals. He is willing to pay the complaint in interpleader. There will always be two or
monthly rentals. He has no interest in withholding the more defendants in a complaint in interpleader. So the
monthly rentals. The problem is he does not know plaintiff, files a complaint against the conflicting
which of the two claimants is entitled. If he pays one, claimants who will be impleaded as defendants. Okay.
the other claimant will sue him. So what is his remedy? So the court will, upon the filing of the complaint in
interpleader, will issue an order directing the parties to
- His remedy is to file a complaint in interplead and litigate their conflicting claims. And
interpleader and tell the conflicting claimants then what will the court do?
that since he filed a complaint in interpleader
in court, “Okay you better litigate your - The court will issue summons to the
conflicting claims in court, because I cannot conflicting claimants, Sir.
decide who between the two of you is entitled.
Which of you is entitled to the payment of - Okay. So the court will issue summons and
monthly rentals? I'm willing to pay the monthly serve them on the defendants.
rentals. But I don't know who between you is
entitled. So I'll bring you to court, then you Okay. So what should the defendants do upon being
litigate your conflicting claims in court. you served summons?
interplead, meaning you file your respective
pleadings, so that it's the court which will Upon being served the summons or the
settle your conflicting claims.” defendant should file an answer to the complaint.
That’s the situation in an action for
interpleader. The plaintiff, the person against An answer to the complaint. Anyway, usually, in
whom the conflicting claims are made, is ordinary civil actions, the complaint sets forth the
willing to pay whatever is the claim. It may be claims of the plaintiffs against the defendants. What
a claim for sum of money or a claim to deliver about in the case of a complaint in interpleader? What
property. So the subject of the claim may be will the complaint in interpleader allege? Will it allege
sum of money or property and the plaintiff is the claims of the plaintiffs against the defendants?
willing to deliver the property or pay the sum
of money. The problem is he does not know The complaint in interpleader would allege that the
who between two claimants is entitled to the subject matter is in the possession of the plaintiff, and
claim. that he claims no interest in the subject matter or that
if he has such interest and that it is not disputed by the
So what should the court do upon the filing of a claimants, and that he also alleged that the conflicting
complaint in interpleader?
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claimants litigate their claims as to who has the better In ordinary civil actions, who files a reply? A reply is a
right between the two of them. responsive pleading to an answer. So, who files a
reply if it is a responsive pleading to an answer?
In short, a complaint in interpleader will not allege the
claims of the plaintiffs against the defendants because - In ordinary civil actions, the reply is filed by
the plaintiff has no claims against the defendants. In the plaintiff.
ordinary civil actions, a complaint will set forth the
claims of the plaintiffs against the defendant. In a The Plaintiff, files a reply, because a reply is a
complaint in interpleader, the plaintiff has no claims responsive pleading to the answer. And the answer is
against the defendant. So, the complaint will allege filed by the defendant. But what about in an action in
those that you mentioned, that conflicting claims are interpleader? Who will file the reply now?
made against him, the plaintiff, and that he has no
interest in the subject of the conflicting claims. If it is The Plaintiff, by the way, after filing the complaint has
payment of a sum of money, that means he is willing nothing more to do with regard to the complaint. He
to pay that sum of body and if it is for the delivery of will just file the complaint and he can forget about the
property, then he will allege in the complaint that he is case. He has no more role in that case. He just filed
willing to deliver the property and that he does not the complaint.
know which of the conflicting claimants who are now
the defendants, which of the defendants is entitled to
the delivery of property or to the payment of the sum Who will file the reply in an action in interpleader?
of money. So those will be the allegations in the
complaint in interpleader. Not a normal complaint, as - The one who files a reply and an action for
in ordinary civil actions, because the plaintiff has no interpleader either one of the conflicting
claim against the defendants. Okay. So you said upon claimants or the defendant in the action.
being served summons, the defendants now will file
their respective answers. There will always be two or The reply is to be filed by the defendants. The
more defendants in a complaint in interpreter. So what defendants will reply to what? Because remember, the
will the defendants set forth in their Answers? defendants will set forth in their answer their
respective claims. So, one defendant will allege in his
- The defendants, Sir, shall set forth their answer that he is the entitled to the claim and not the
claims over the subject matter, or their legal other defendant. That is the one that he will allege in
basis for being able to have possession of the his answer. Each of the defendants will make that
said subject matter. allegations in their respective answers. So when a
defendant files a reply, to what pleading is his reply a
Okay, that's correct. In ordinary civil actions, the responsive pleading?
answer will set forth the defenses of a defendant. In
action for interpleader, the answer of the defendants - He replies to the actionable document
will set forth not their defenses but their respective attached to the reply of the defendant or the
claims. respective claimants.
Under Rule 62, after the defendants have filed their So you mentioned an actionable document. So the
answers, a reply may be filed. reply of one defendant is a responsive pleading to the
answer of the other defendant. And the other
In order civil actions, who filed a reply? defendant will also file a reply to the answer of the
other defendant. So, as I mentioned earlier, after filing
- The Defendant. the complaint, the plaintiff has no more role to play in
the action in interpleader. He will just wait for the
termination of the action. He has nothing more to do
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in respect to the action. It's between the two Plaintiff with the expenses that he incurred in filing the
defendants. complaint in interpleader.
Does the plaintiff in action for interpleader has a cause Let us now discuss some of the doctrines.
of action against the defendants? Because every
ordinary civil action is based on a cause of action. Now Let’s call another one.
my question is Does the plaintiff in action for
interpleader has a cause of action against the You are done with Sendin. Thank you!
defendants?
Mr. Valiente.
- Yes sir, the Plaintiff has a cause of action
against the defendants Would you know what was the doctrine established in
the case of Wack-Wack Golf and Country Club versus
Do you remember your definition of a cause of action? Won? What was the doctrine laid down in that case?
How do you define a cause of action? What is a cause
of action?
- In Wack-Wack, the doctrine is, “the remedy of
interpleader is for the protection of a person
- A cause of action pertains to…. against double vexation in respect to one’s
liability.”
Okay. Let me help you. Allow me to help you. A cause
of action is defined as the act or omission by which a That would be part of the ruling in every action for
party violates a right of another. So that's how a Interpleader. You’re just making a general statement
course of action is defined. Now knowing what a regarding an action for Interpleader, not the doctrine
cause of action is, let me repeat my question. Does laid down in the case of Wack-Wack. What is the
the plaintiff in a complaint in interpleader, has a cause important doctrine laid down in that case?
of action against the defendants?
- It state that the action for Interpleader is a
- No, Sir. The Plaintiff has no cause of action remedy whereby a person…
against the defendants.
You are just restating the provision in Rule 2. That’s
The plaintiff has no cause of action that is against the not the doctrine. The Supreme Court ruled in the case
defendants because the defendants did not violate of Wack-Wack. There must be an interpretation made
any like to be plaintiffs. They're just making a claim by the Supreme Court not just the statement of the
against the plaintiff. They're making a claim. They did Rule.
not violate any right of the plaintiffs, so the plaintiff has
no cause of action against them. But since this is a
Doctrine: “A person may no long file a
special civil action, there's no problem because only
Complaint in Interpleader if there
ordinary civil actions must be based on a cause of
is already a final judgment against
action. Special civil actions need not be based on a
him in favor of one of the
cause of action. So in an action for interpleader, the
plaintiff has no cause of action against the defendants. conflicting claimants.”
When the court renders a judgment it will include an So if one of the conflicting claimants has already filed
order to reimburse the Plaintiff of his expenses in filing a case against the Plaintiff and a judgment has
the Complaint in Interpleader. The Plaintiff incurred already been rendered against the plaintiff which has
expenses without his fault. He has to file a Complaint become final an executory, the Plaintiff can no longer
in Interpleader without his fault. The losing file a Complaint in Interpleader against the person who
party/losing defendant will be made to reimburse the filed a case against him and against another claimant
because there is already a final judgment against the
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Plaintiff in favor of one of the conflicting claimants. It’s in interpleader and deposit the month rentals with the
too late for him to file the Complaint in Interpleader. court.
He should satisfy the judgment against him.
What about in the case of Bank of Commerce v.
What about the case of Eternal Gardens v. Planters Development Bank?
Intermediate Appellate Court?
- Rule 62 does not expressly authorized the
- The doctrine in Eternal Gardens v. filing of a Complaint in Interpleader as a
Intermediate Appellate Court is, “the separate and independent action…
subject matter of an interpleader should
be deposite din court upon the filing of the No. In fact Rule 62 expressly provides that when there
complaint. are conflicting claims that are being made against
person, that person may file a complaint in
It is mandatory upon the Plaintiff to deposit with the interpleader. By a complaint in interpleader, he is
court the property or funds subject of the conflicting initiating an action in interpleader.
claims. What was the reason of court?
Normally an action in interpleader is initiated by the
- It was based on justice and equity. filing of a complaint in interpleader under Rule 62.
This case of Bank of Commerce provided for another
The ruling of the Supreme Court is always based on way of initiating an action in interpleader, not by way
justice and equity even if it is based on specific law. of filing a complaint in interpleader but?
That’s a general statement.
- Through Answer, Sir.
It is mandatory upon the Plaintiff to deposit with
the court the property or funds subject of the Not an Answer, but in the Answer a Counterclaim or
conflicting claims because he should not Cross-Claim in Interpleader. So an action in
continue to benefit from the property or funds in interpleader may be initiated not by filing of a
which he has no interest. complaint but by filing a Counterclaim or Cross-Claim
in Interpleader which will be incorporated in the
That property or fund should be given later on to the Answer.
prevailing party in the action for interpleader. So the
Plaintiff should immediately deposit to the court the
property of funds upon the filing of the complaint in Doctrine: An action in interpleader may be
interpleader. initiated either by
filing a Complaint in
What about in the case of Pasricha v. Don Luis Dizon Interpleader or by filing a
Realty? Counterclaim or CrossClaim in
Interpleader.
- The action for Interpleader is proper when the
lessee does not know to whom rental
payments should be made due to the RULE 63: DECALARATORY RELIEF AND OTHER
conflicting claims of the parties? SIMILAR REMEDIES
It appears that the ruling in Parischa is just a straight Who may file a Petition for Declaratory Relief? (For
forward application of Rules 2. When a lessee does
Interpleader – Complaint, For Declaratory Relief -
not know who between the two claimants is entitled to
Petition)
the monthly rentals, then his remedy is not to withhold
payment of the monthly rentals but to file a complaint
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- A Petition for Declaratory Relief may be filed - Because the Rules of Court cannot confer
by any person who has an interest under a jurisdiction. It is only the law, and the law is
deed, will, contract, or other written paragraph 1 of Section 19 of BP 129, as
instruments, or by a person whose rights us amended.
affected by a statute, ordinance or other
governmental regulations. When a person files a Petition for Declaratory Relief,
what reliefs is he seeking?
So a Petition for a Declaratory Relief may be filed by
person who has an interest or interested in deed, will, - The reliefs he is seeking is determine the of
contract, or other written instruments, whose rights us the construction or validity of the deed, will,
affected by a statute, executive order, regulations, contract.
ordinance or other governmental regulations.
What does he want the court to do? He is asking the
What Court has jurisdiction over Petitions for court to determine any question of construction or
Declaratory Relief? validity a deed, will, contract or other written
instruments, or a statute, executive order, regulations,
- The RTC has jurisdiction over a Petition for ordinance or other governmental regulations.
Declaratory Relief because it is incapable of
pecuniary estimation. So when a person files a Petition for Declaratory
Relief, he is simply asking the Court to determine a
What kind of jurisdiction is exercised by A Regional question of construction or interpretation of a contract
Trial Court Over a Petition for Declaratory Relief? or validity of a law or statute. The provisions of the
contract, law or statutes are doubtful. That’s what the
- Original Sir. petitioner is asking the court to do. Although there is
no violation of the contract yet prejudicial to the
Is it exclusive or concurrent? petitioner, the right of the petitioner under the contract
or law has not been violated but he is now going to
- It is exclusive, Sir. court because he wants the court to determine the
correct interpretation of the contract or law. He wants
It is exclusive because it is an action incapable of the Court to determine whether the contract or law is
pecuniary estimation, under paragraph 1, Section 19 valid or not, to determine any question of construction
of BP Bilang 129, as amended. or validity. That’s the nature of the Petition for
Declaratory Relief. Unlike in ordinary Civil Action
Don’t say, that it is the Regional Trial Court as where there has already been a violation of the right
Provided in Section 1 of Rule 63. Why can’t you say of the Plaintiff by the Defendant, the Court may decline
that? to take cognizance of the Petition for Declaratory
Relief. The parties should first interpret the contract.
- Because in the second paragraph… Now if one party believes that his right is violated
under the contract, then he should file an ordinary civil
Don’t mention about the second paragraph, we’re action. The Court may give due course to a Petition
talking about the first paragraph. The 2 nd paragraph for Declaratory relief but all the Court will do is just
talks about other similar reliefs. either to interpret the contract or law or the court will
declare whether the contract or law is valid or not.
Why is it improper to say that the Regional Trial Court
has jurisdiction over a Petition for Declaratory Relief What’s is the rule if during the pendency of a Petition
as Provided in Section 1 of Rule 63? for Relief the right of the Petitioner under the contract
or law has been violated?
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- The rule is to ask the court to determine the

validity of the construction or to interpret, Sir. In the case of Malana v. Tappa the SC said, if before
the filing of the Petition for Declaratory Relief, there
That’s not my question. My question is, What will was already a violation of the right of the Petitioner
happen if the Petition for Declaratory Relief was filed under the deed, contract, law or other written
before the right of the petitioner under the contract instrument, or under the statute, then the Court
was violated but during the pendency of the Petition should no longer assumed jurisdiction over the case
for Declaratory Relief the right of the Petitioner under because there is already a violation of the right of the
the contract or law was violated? Petitioner. The Petition for Declaratory Relief is no
longer proper,
- If it happens that there is violation of his right
during the pendency of the action, it will be What are the three other remedies similar to
converted into an ordinary civil action. Declaratory Relief under the second paragraph of
Rule 63, Section 1?
So, the action for Declaratory which is a special civil
action will be converted into and ordinary civil action - The other remedies similar to Declaratory
because this time the petitioner will have a cause Relief under the second paragraph of Rule
already against the respondent so the action will be 63, Section 1 are an action for the reformation
converted into an ordinary civil action. There is no of an instrument, to quiet title to real property
need to file a new ordinary civil action. or remove clouds therefrom, or to consolidate
ownership under Article 1607 of the Civil
Who should be impleaded as respondents? Code,
- All persons may be affected by the The first similar remedy under the second paragraph
declaration of the court may be impleaded of Section 1 is an action to reform an instrument.
regarding the correct interpretation or validity Can you give us an example where this action is the
of a contract or law, or regarding the proper remedy? Under what situation will an action
declaration of the rights and duties of the for reformation of instrument will be proper?
Petitioner under the contract or law.
- In a contract Sir. In a deed of sale.
Another relief is that the Court may also declare the
rights and duties of the Petitioner under the Let us say a contract is entered into by two parties.
contract or law aside from determining the correct Before the parties execute the contract they will first
interpretation or validity of a contract or law. come to an agreement of the contract. Then they will
set forth what they agreed upon in a written contract.
In the case of Almeda v. Bathala Marketing the SC By the way, when is there an agreement or contract
enumerated the requisites for an action for between the parties. How is an agreement defined?
Declaratory Relief.
- An agreement is defined when there is
1. Subject matter of the controversy must be a meeting of minds between two persons.
deed, will, contract or other written
instruments, or a statute, executive order, So, when there is meeting of the minds between two
regulations, ordinance or other persons there is a contract already, a binding
governmental regulations. agreement between two persons. But, it’s very difficult
to prove later on, if there is a need to prove what were
2. The terms of the contract or law are doubtful agreed upon if they are not embodied in a written
as well as their validity that’s why the Curt instrument. So usually, after the parties have meeting
has interpret the law or contract or determine of the minds, they will no embody the terms agreed
their validity. upon in a written instrument. T hat’s the instrument
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referred to in the action for reformation of instrument, need to quiet title is very noisy, that is why there is a
the written contract. need to quiet it. Or there are dark clouds covering
over the title, that is why there is a need to remove
When there is a need for an action for a reformation the clouds therefrom. Do you agree Ms. Berdan?
of contract
What is similar between an action to quiet title or
- In your example, Sir, in contract if deed of remove clouds therefrom and an action for
sale, both of the parties agreed that it is a Declaratory Relief?
contract if 1000 square meters but in the
instrument there is only 100 square meters. - The relief sought is who has the right over the
property.
So meaning the written instrument or contract does
not express the true intention of the parties or the In both actions there is no violation of the right of the
terms agreed upon by the parties. There’s an error in parties. The petitioner in an action to quiet title - it
the written instrument because it does express refers to title to real property. By the way, to quiet title
accurately the terms agreed upon by the parties. to real property, there’s no violation yet of the right of
There’s something wrong with the instrument. Thre’s the petitioner. He will file a petition to quiet title
nothing wrong with the contract, there was meeting of because there may be some persons also claiming
the minds. But if the written instrument does not ownership. But there is no violation on the right if the
express the true intentions or the terms agreed upon petitioner. He is in possession of the real property.
by the parties, then the remedy of a party is to file an He is claiming title to real property in his possession.
action for reformation. Not an action for annulment of But supposed he heard that some persons are
the contract because there’s nothing wrong with the claiming that they owned that property. That is not a
contract. The defect is in the written instrument so the violation of the right of the petitioner. If the petitioner
proper remedy is an action for reformation of the wants that his ownership be declared by the court so
contract. there would be no doubt anymore on his ownership
of that real property. His proper remedy is to file an
Why is this a similar remedy to a Declaratory Relief? action to quiet title.
- In the reformation of instrument, the relief What Court exercises jurisdiction over a petition to
sought for by the one who filed was to quiet title or remove clouds therefrom?
question construction of the instrument.
- It is still the RTC which has exclusive original
In both actions there is no violation of any right or by jurisdiction because it is incapable of
party against the other. There’s just an error in the pecuniary estimation.
instrument.
In the case v. Malana v. Tappa, the SC also said that
What Court do you think exercises original exclusive a Petition to Quiet Title or Remove Clouds therefrom
jurisdiction over actions for reformation of intrument? is within the jurisdiction of either the RTC or MTC
depending the assessed value of the real property
- The Regional Trial Court because it is involved. Jurisdiction is determined by the assessed
incapable of pecuniary estimation. value of the real property involved.
It is also incapable of pecuniary estimation; hence it Earlier you said that the action Declaratory Relief is
is also the RTC who exercise exclusive original within the exclusive original jurisdiction of the RTC.
jurisdiction over the action. May the SC take cognizance of an action for
Declaratory Relief? What was the doctrine laid down
The second similar remedy is an action to quiet title by the SC in the case of Chavez v. JBC?
or remove clouds therefrom. It appears that there’s a
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Although the case was filed directly with the SC, not filed by Dela Cruz also assails the validity of a law,
as petition for declaratory relief, the SC said that said therefore, this case should be treated as an action for
petition was a Petition for Declaratory Relief. The SC declaratory relief.
determined that the action filed with it, although not
designated as an action for Declaratory Relief, is The case was filed with the RTC by Dela Cruz. So the
actually an action for Declaratory Relief. The Sc said Department of Finance questioned the jurisdiction of
that, initially it has no jurisdiction over Petitions for the Regional Trial Court saying that this case filed by
Declaratory Relief. It is the RTC. But in this case, since Dela Cruz and a government employee should have
the issue involve in the said petition is of been filed with the Civil Service Commission. The
transcendental importance, by way of an exception, regular courts, according to the Department of
then took cognizance of such action for Declaratory Finance has no jurisdiction over a complaint filed by a
Relief. The SC invoke the first paragraph of Section 8 government employee. This case should have been
of Article 8 of the 1987 Constitution where it is filed with the Civil Service Commission. But the Dela
provided that the SC and the other lower court may Cruz filed it in the Regional Trial Court. So later on the
determine whether any agency of the government, issue whether the Regional Trial Court has jurisdiction
belonging to the executive or legislative branches has over that action filed by Dela Cruz or not reached the
committed grave abuse of discretion. The issue here Supreme Court. And the Supreme Court said yes, the
is regarding the application of Chavez for the position Regional Trial Court had jurisdiction over the case
of Chief Justice of the S after Chief Justice Corona because the case went beyond questioning the
was convicted in an impeachment case and was transfer of Mr. Dela Cruz from one post to another,
removed. Chavez who filed an application questioned because it also assail the validity of a law. So
the membership of two members of Congress in the according to the Supreme Court since the action
JBC. Under the 1987 Constitution, only one assails the validity of the law. So it was therefore an
M=member of Congress may sit as a member of the action for declaratory relief, and the Regional Trial
JBC. So one member of Congress, the problem is Court has or exercises exclusive jurisdiction over an
there are two houses, the HRep and the Senate, each action for declaratory relief.
sends a member to sit as members of the JBC.
Because of the transcendental importance of the Now, in the case of Erese v. Sison. What was made
issue involved, the SC take cognizance of the action. the subject of an action for Declaratory was not a
deed, will, contract or other written instrument, or it
If you are asked, May the SC take cognizance of an was not statute, executive order, regulation, ordinance
action for Declaratory Relief? You have to cite this or other governmental regulations. What was made
case because under the law the SC has no jurisdiction the subject of an action for declaratory relief was a
over a Petition for Declaratory Relief. final order or a court. So an action for declaratory relief
was filed with the Regional Trial Court, for the court to
In the case of Department of Finance versus Dela determine, to interpret that final order of record. Okay.
Cruz. Dela Cruz was an employee of the Bureau of So this issue of reached the Supreme Court. The
Customs he was transferred from one post to another Supreme Court said, the final order or judgment of a
in the Bureau of customs So, he filed a case objecting court cannot be the subject of an action for declaratory
to his transfer now. He filed a case in the Regional relief because under the Rules, under Section 1 of
Trial Court objecting to his transfer, but at the same Rule 63, what may be the subject of an action for
time, because the transfer of Mr. Dela Cruz from one declaratory relief, (that's the first requisite), the subject
post to another post in the Bureau of customs was of the action for a declaratory relief, must be a deed,
based on an executive order issued during the time of will, contract, or other written instrument, or a statute,
President Corazon Aquino. So, the executive order executive order, regulation, ordinance or other
was a law. So in that case filed by Dela Cruz, assailing governmental regulations. An order of the court or a
his transfer from one post to another post in the judgment of the court can be the subject of an action
Bureau of customs, he also assails the validity of the for declaratory relief. That was the ruling of the court,
executive order 140. The RTC said since this case the Supreme Court in the case of Erise v. Sison.
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RULE 64: REVIEW OF JUDGMENTS AND FINAL So, what is the mode of review of the judgment, final
ORDERS OR RESOLUTIONS OF THE order or resolution of COMELEC or COA? Petition for
COMMISSION ON ELECTION AND THE Certiorari under Rule 65. It is not a mode of appeal. It
COMMISSSION ON AUDIT is a mode of review, but not a mode of appeal. The
mode of review of judgment, final orders, or resolution
Llet's now discuss Rule 64. Review of judgments, final of COMELEC or COA is petition for review under Rule
orders or resolutions of the COMELEC and COA. You 65 in relation to Rule 64. It must be in relation to Rule
know, the COMELEC and COA are quasi-judicial 64, not just petition for review under Rule 65 because
agencies. They are administrative bodies exercising there are differences between a Petition for Certiorari
quasi-judicial functions. What are judicial functions under Rule 65 and a Petition for Certiorari relation to
judicial functions? rule 64.
A judicial function means that the judicial function of a What are the differences?
court is that it hears, tries and decides cases based on
law. So, that is what is called judicial function. When - Under Rule 65, a Petition for Certiorari shall
an administrative agency performs, hears, tries and be filed within 60 days from notice of
decides cases, it is performing a quasi-judicial judgment or notice of the order denying a
function. Although they are not courts, these motion for new trial or reconsideration. So 60
administrative agencies, they perform functions that days, the Petition for Certiorari under Rule 65
are similar to the function of the court, trying, hearing shall be filed within 60 days from notice of
and deciding cases. Now, you know that under Rule judgment or notice of the order denying the
43, judgments, final orders or resolutions of motion for new trial or reconsideration. Under
quasijudicial agencies are appealable to the court of Rule 64, the Petition for Certiorari shall be
appeals by what mode of appeal? By petition for filed within 30 days not 60 days. That's under
review. Rule 43 which includes one of the qiasijudicial Rule 64. Although it is a petition for Certiorari
agencies included in the list under Section 1 of Rule under Rule 65, but since it is also governed
43 is the Civil Service Commission. A judgment, final by Rule 64, it shall be filed within 30 days from
order or resolution of the Civil Service Commission is notice of the judgment, final order or
appealable to the Court of Appeals by Petition for resolution of the COMELEC or COA. The
Review under Rule 43. The Civil Service Commission petition for certiorari shall be filed with what
is also a constitutional commission like the COMELEC court? With the Supreme Court.
like the Commission on Audit, but by express
provision of the rules, judgments, final orders, the Another difference is that, when a motion for new trial
resolutions of COMELEC or COA are reviewable, not or reconsideration is filed, a Petition for Certiorari
by Petition for Review, under Rule 43, but by Petition under Rule 65 shall be filed within 60 days, meaning
for Certiorari under Rule 65. So, that is the mode of the same period notice of the order denying the motion
review Petition for Certiorari. Petition for Review and for new trial or reconsideration. When a motion for
the Rule 43 is a mode of appeal, but a Petition for new trial is filed, or a motion for reconsideration is filed
Certiori under Rule 65 is not a mode of appeal. It is an of the judgment, the Petition for Certiorari under Rule
original action. It is a special civil action. 65 shall be filed within 60 days from notice of the order
denying the motion for new trial or reconsideration.
So, if you are asked, what court is a judgment or There’s a fresh period of 60 days from notice of the
resolution of the COMELEC or COA appealable? order, denying the motion for new trial or
reconsideration. But in the case of a Petition for
- Your answer should be the judgment, final Certiorari under Rule 64, when a motion for new trial
order or resolution of COMELEC or COA is or reconsideration is filed, the Petition for Certiorari
not appealable. It may be reviewed, but it is shall be filed within the remaining period. Not within 30
not appealable. days from notice of the order denying the motion for
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reconsideration or new trial, but within the remaining grave abuse of discretion amounting to lack or excess
period. Meaning the period to which the petitioner was of jurisdiction.
entitled at the time he filed the motion for
reconsideration or new trial. Take note of the What is meant by great abuse of discretion? Because
differences. First, 60 days to file a petition for certiorari that is the ground, that is principality ground for a
under Rule 65, 30 days within which to file from notice petition for certiorari, either under Rule 65 or under
of judgment, the petition for certiorari under Rule 64. Rule 64. What is great abuse of discretion? When is
there grave abuse of discretion?
On what ground may a petition for certiorari be filed
under Rule 65? It's not just abuse of discretion, but grave abuse of
discretion. It is not just an error or fact, or error of law
- The Petition for Certiorari under Rule 65, the committed by a court or the COMELEC or COA. That
ground is that the respondent, the tribunal, will not be grave abuse of discretion. So what is grave
board or person acted without jurisdiction or abuse of discretion? According to the Supreme Court,
in excess of jurisdiction, or with grave abuse grave abuse of discretion, is the arbitrary, despotic,
of discretion amounting to lack or excess of whimsical or capricious exercise of power due to
jurisdiction. That's the ground for a petition for passion, prejudice, or personal hostility? So that's a
sexually under Rule 65. high bar. That's a very high bar for a ground or a
petition for certiorari, either under Rule 65 or under
What about the petition certiorari under Rule 64? Rule 64. As they said, mere error of fact or error of law
committed by a court committed by COMELEC,
- The same grounds, that the COMELEC or committed by COA is not grave abuse of discretion. A
COA acted without without jurisdiction or in mere error fact or error law cannot be a ground for a
excess of jurisdiction or with grave abuse of petition for certiorari. The proper remedy in case of
discretion amounting to lack or excess of error of judgment, meaning, error fact or error law is
jurisdiction. So that should be the ground in a not a petition for certiorari but appeal. That is the
petition for certiorari seeking to annul or set proper remedy. When a court commits an error fact or
aside a judgment, resolution or final order of an error or law, which is an error of judgment. The
COMELEC or COA under Rule 64. That the proper remedy for an error of jurisdiction is petition for
COMELEC or COA acted without jurisdiction certiorari.
or in excess of jurisdiction with grave abuse
of discretion. When does a court commit an error of judgment?
So, that was the ruling in the case of Anad v. - A Court commits an error of judgment when it
COMELEC, that the only ground under Rule 64 in commits an error or fact or an error law but it
which a petition for certiorari may be filed is that has jurisdiction over the case.
COMELEC or COA committed grave abuse of
discretion amounting to lack or excess of jurisdiction. When does a court commit an error of jurisdiction?
Most of the time it will not be lack of jurisdiction, or
excess of jurisdiction. It will be grave abuse of - A court commits an error of jurisdiction when
discretion because COMELEC or COA knows their having no jurisdiction over a case, it exercises
jurisdiction. It will not take cognizance of the case over jurisdiction. It has no jurisdiction but it
which it has no jurisdiction. exercises jurisdiction. That is an error of
jurisdiction committed by a court.
So what will happen is that COMELEC or COA, has
jurisdiction over the case but in exercising its In what other way may a court commit error of
jurisdiction, it commits grave abuse of discretion jurisdiction?
amounting to lack or excess of jurisdiction. That is
what usually happens, not lack of jurisdiction, but
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- A court may commit error of jurisdiction, the court or tribunals (by the respondent) which was
when, despite having jurisdiction over the done without jurisdiction, in excess of jurisdiction or
case, it commits grave abuse of discretion in with grave abuse of discretion.
the exercise of its jurisdiction. So, even if a On what condition may a petition for certiorari be file?
court has jurisdiction over the case, but if its We know the ground on which the petition may be
exercise it commits grave abuse of discretion, filed. But on what condition? There is a condition
then that court commits an error of before a petition for sensuality may be filed. What is
jurisdiction. The proper remedy for that is a that condition?
petition for certiorari either under Rule 65 or
under Rule 64. The condition is that there is no appeal or any plain
speedy or adequate remedy in the ordinary course of
RULE 65: CERTIORARI, PROHIBITION AND law. Take note of that. That's very important. A petition
MANDAMUS for certiorari may be filed only if there is no appeal or
other plain, speedy, or inexpensive remedy in the
There are three kinds of petitions covered by rule 65. ordinary course of law. So if a judgment or final order
Petition for certiorari, petition for prohibition and is appealable, the aggrieved party cannot file a petition
petition for mandamus. Let's start with a petition for for certiorari, because there is appeal available to the
certiorari. We’ve mentioned earlier that a petition for aggrieved party. He should appeal, not file a petition
certiorari under Rule 65 may be filed on the ground for certiorari. Even if the ground is lack of jurisdiction,
of lack of jurisdiction, in excess of jurisdiction, grave even if the ground is grave abuse of discretion, if
abuse of discretion amounting to lack or excess of appeal is available, then the aggrieved party should
jurisdiction. appeal, not file a petition for certiorari. A petition for
certiorari may only be filed if there is no appeal or any
Against whom may a petition for certiorari be filed? other plain, speedy or adequate remedy in the
ordinary course of law. A motion for reconsideration is
Against a tribunal, board or officer exercising judicial a remedy. It is a plain, speedy adequate remedy for
or quasi-judicial functions. So again, whom may a an aggrieved party. So that before a party can file a
petition for certiorari be filed against a tribunal? Of petition for certiorari, he's required first, to file a motion
course, a tribunal is a court. By the way, only a court for reconsideration because a motion for
may exercise judicial function. An administrative reconsideration is a plain, speedy and adequate
agency may exercise not judicial function, but quasi- remedy. He should avail of that first. He should first file
judicial functions. Functions similar to the functions of a motion for reconsideration, to give the tribunal or to
the court, but not judicial function. Only a court may give the respondent a chance to correct itself or
exercise judicial function. So the petition for certiorari himself.
may be filed against a tribunal, board or officer
exercising judicial or quasi-judicial functions. That is So as a rule, a petition for certiorari will not be given
the respondent in a petition for certiorari. We have due course, if the aggrieved party did not file first, a
already discussed the grounds for which a petition for motion for reconsideration. Although there are
certiorari may be filed. exceptions to that rule, but as a rule, the aggrieved
party must first file a petition motion for
What relief is sought by the petitioner when he files a reconsideration before he can file a petition for
petition for certiorari? What is he asking the court to certiorari. As I mentioned already, the petition shall be
do when he files the petition for certiorari? filed within 60 days from notice of judgment or within
60 days from notice of the order denying the motion
He is asking the court to nullify, to set aside the order for new trial or reconsideration. Within 60 days. So if
or judgment of the court. That's what the petitioner is an aggrieved party wants to buy time, if he is not ready
asking the court to do when he files a petition for to prepare a petition for certiorari within that 60day
certiorari. He is asking the court to nullify or to set period from notice of judgment. He can by time, he
aside whatever order or judgment or action done by may file let us say a motion for reconsideration on the
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59th day from notice of judgment. So when that motion He's asking the court to render a judgment ordering
for reconsideration is denied, he will again have 60 the respondent to desist from, to stop doing what he
days from notice of the order denying the motion for is doing, without or in excess of jurisdiction.
reconsideration. So he can buy time to prepare the
petition for certiorari. Sometimes it's not to prepare the In the case of a petition for certiorari, the relief sought
petition for certiorary. is that the court should nullify or set aside whatever
action was already committed by the respondent. In a
Let's go now to a petition for prohibition. petition for prohibition, the relief sought by the
petitioner is for the court to order the respondent to
Now, against whom may a petition for prohibition be stop what it is doing, without or in excess of
filed? jurisdiction, or with grave abuse of discretion. Do you
see the difference? So you should be aware of the
The petition may be filed against a tribunal, Court, distinction between the two. That's why it's called
corporation, board, officer or person whether petition for prohibition, for the court to prohibit the
exercising judicial, quasi-judicial or ministerial respondent from continuing to do what he is still doing.
function.
Okay, so the petition for prohibition ship should also
Now, on what ground may a petition for prohibition be be filed within 60 days from notice of the action of the
filed? respondent. The same period for filing the petition.
The petition may be filed on the ground that the Okay, before we go to petition for mandamus let’s
respondent who may be a tribunal, corporation, board discuss the case pertaining to petition for certiorari
officer or person that the respondent‘s proceedings and petition for prohibition. In the case of AL Am
are without or in excess of jurisdiction, or with grave Network Incorporated v. Mondejar, the Supreme
abuse of discretion, amounting to lack of jurisdiction. Court said that since the decision of the municipal trial
So here, you may say it's the same as the ground for court in small claims is immediately final and
a petition for certiorari. Here, the respondent is still executory, and inappealable, such judgment of the
doing something without jurisdiction, or in excess of MTC may now be reviewed in a petition for certiorari
jurisdiction or with grave abuse of discretion. It is in under Rule 65. Because in this case, the municipal
the act of committing something without jurisdiction or trial court rendered a decision in a small claim case.
in excess of jurisdiction, or with gave abuse of So under the rules on small claims, a judgment of the
discretion. So that's the difference. Now, that's the MTC in small claims is immediately final and
difference with grounds for a petition for certiorari. In executory and inappealable. So what the aggrieved
a petition for certiorari, the respondent has already party did was to file a petition for certiorari in a superior
acted without jurisdiction, or in excess of jurisdiction, court. The prevailing party in the MTC objected, said
or with grave abuse of discretion. In a petition for that what the aggrieved party is by filing a petition for
prohibition, the ground is that the respondent is still certiorari, is just circumventing the prohibition that a
doing something without or in excess of jurisdiction, or judgment of the municipal trial court in a small claim is
with gave abuse of discretion. inappealable. But the Supreme Court said no,
because under Rule 65, Section 1, if there is no
So what relief is sought by the petitioner when he files appeal, or other plain, speedy or adequate remedy in
a petition for prohibition? What is he asking the court the ordinary course of law, the aggrieved party may
to do? Since the respondent is doing something file a petition for certiorari.
without or in excess of jurisdiction, or with grave
discretion, what is the petitioner asking the court to do Since the decision of the municipal trial court in a small
for him? What is he asking the court to do? So, what claim is inappealable, meaning there is no appeal
relief is sought by the petitioner when he files a petition available for the aggrieved party. Therefore, he may
for prohibition? now file a petition for certiorari under Rule 65. So that
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was the doctrine laid down in the case of AL Am

network Incorporated, v. Mondejar. Double jeopardy will not apply, because if the court
which rendered the judgment of acquittal committed
In the case of Maglalang v. PAGCOR, The respondent grave abuse of discretion, then it is as if that court had
in a petition for certiorari move for the dismissal of the no jurisdiction. Because great abuse of discretion is
petition on the ground that the petitioner did not equivalent to lack of jurisdiction, or excess of
comply with rule on exhaustion of administrative jurisdiction. So, if it is shown in the petition for
remedy. The trial court denied it, and it reached the certiorari, that the court which rendered the judgment
Supreme Court. The Supreme Court said the doctrine of acquittal acted with grave abuse of discretion,
exhaustion of administrative remedy, before seeking therefore, it is as if the court which render judgment of
judicial intervention does not apply if the law itself acquittal had no jurisdiction over the case. You know
does not provide for administrative review in the that one of the elements of double jeopardy is that the
administrative case. If the law itself does not provide court which rendered the judgment or acquitted the
for administrative review, then a petition for certiorari accused in a previous case, must have jurisdiction for
may be filed immediately. The rule on exhaustion of double for double jeopardy to apply. But if the court
administrative remedy will not apply, because there is which rendered the judgment of acquittal committed
no further administrative remedy available. The law garve abuse of discretion, it is as if it had no
itself provides that, so the aggrieved party may jurisdiction and therefore, double jeopardy will not
immediately file a petition for certiorari. That was the apply.
ruling in the case of Maglalang v. PAGCOR.
In the case of UP Board of Regents v. Ligot Telan, the
In the case of People v. Castaneda….so this must be Supreme Court said the Regional Trial Court to admit
a criminal case. In this case, the Supreme Court ruled or to allow a students to enroll when such students
that a judgment of acquittal in a criminal case may be have been shown to have committed
a assailed. Normally, a judgment of acquittal is misrepresentation in his enrollment papers. So in this
inappealable. If it is appealed, then it violates the case, the Regional Trial Court issued a writ of
rights of the accused against double jeopardy. If a mandamus to admit Ligot Telan who was earlier
judgment of acquittal is appealed by the prosecution, shown to have committed misrepresentation in his
then right of the abuse against double jeopardy is enrolment papers. So the Supreme said that the
violated, so that's not allowed. Appeal of a judgment Regional Trial Court committed a grave abuse of
of acquittal by the prosecution is not allowed. But discretion in issuing the writ of mandamus. Although
according to the Supreme Court, in the case of People the RTC has jurisdiction in issuing a writ of
v. Castaneda, a judgment of acquittal may be assailed mandamus, it committed grave abuse of discretion
through a petition for certiorari provided it is shown and therefore the writ of mandamus was nullified.
that the court which rendered the judgment of acquittal
committed grave abuse of discretion. Since a Now, under Section 1 of Rule 65, a petition for
judgment of acquittal is inappealable. Therefore, the certiorari is intended to nullify only judicial or
judgment of acquittal may be assailed in a petition for quasijudicial acts of the respondent. But in the case of
certiorari. Remember, a petition for certiorari may be Tuazon v. Register of Deeds of Caloocan City, the
filed, if there is no appeal available. Since a judgment Supreme Court said, while a writ of certiorari may
of acquittal cannot be appealed, it may be reviewed in nullify only judicial or quasi-judicial acts of respondent,
a petition for certiorari provided the ground for a the writ of certiorari may also nullify the unlawful
petition for certiorari is present, which is that the court exercise of judicial power by an executive officer. So
which render the judgment of acquittal committed under Section 1, a petition for certiorari may be filed
grave abuse of discretion. only against a tribunal, board or officer exercise even
judicial or quasi-judicial functions. In this case, it was
You may ask, sir, but double jeopardy will now apply an executive officer which committed grave abuse of
if a judgment of acquittal is assailed in a petition for discretion when it performed unlawfully a judicial
certiorari? function. So according to the Supreme Court, a
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petition for a writ of certiorari may also nullify the This is a continuation of the recorded class discussion
executive officers’ unlawful exercise of judicial power. in Remedial law review 2, or last Saturday and
So here the respondent is not a tribunal, board officer Sunday. We ended our discussion last Sunday with
exercising judicial or quasijudicial function. It is prohibition under Rule 65. And so we will start our
Executive Officer, that executive officer does not discussion now with Mandamus under Section of Rule
exercise, judicial or quasi-judicial functions. But the 45.
action of that executive officer which unlawfully
performed a judicial function. It has no jurisdiction to The first question that we should ask is: Against
perform a judicial function may be nullified through a whom may an aggrieved party file a petition for
writ of certiorari. mandamus?
In the case of GSIS v. Court of Appeals, the Supreme Section 3 provides that a petition for mandamus may
Court said a petition for certiorari is not a cure for a be filed against a tribunal, corporation, board, officer
lost appeal. What does this mean? or person exercising ministerial functions. While the
entities mentioned earlier, may also exercise judicial
Let me repeat, in the case of GSIS v. Court of or quasi-judicial functions. A petition for mandamus
Appeals, the Supreme Court said that a petition for may only be filed against them if they perform a
certiorari is not a cure for a lost appeal due to the ministerial function. Mandamus cannot compel any of
negligence of the aggrieved party. So, if appeal was these entities, how to exercise its judicial or
available to the aggrieved party, but through his quasijudicial functions, which by its very nature,
negligence failed to avail of that remedy, appeal. He require the exercise of discretion or judgment.
cannot later on file a petition for certiorari saying that
there is no appeal available to me. Because he lost his The next question is: On what grounds may a
right to appeal. petition for mandamus be filed?
There are two grounds.
So, in the case of GSIS v. Court of Appeals, the
Supreme Court said you cannot cure your failure to • The first ground is when the respondent
appeal due to your negligence by later on filing a unlawfully neglects the performance of an act,
petition for certiorari, saying there is no more appeal, which the law specifically enjoins as a duty.
there is no appeal. So I can now file a petition for What I just said, is the classic definition of a
certiorari. ministerial duty or function. It is an act
specifically enjoined by law as a duty. In
Now, in the case of Reyes v. Sandiganbayan, the performing a ministerial act, a person is not
Supreme Court said that a petition for certiorari is allowed to exercise his discretion or
intended only to correct errors of jurisdiction not error judgment.
or judgment. You know of course the distinction • The second ground is that the respondent
between errors of judgment and errors of jurisdiction. unlawfully excludes another from the use or
We discussed that already earlier. So, a petition for enjoyment of a right or office, to which such
certiorari is a cure only or is intended only to correct other person is entitled.
errors of jurisdiction and not errors of judgment.
Take note, there are two grounds for which a petition
What is the remedy for errors of judgment? for mandamus may be filed.
The remedy is appeal. First, that the respondent unlawfully neglects the
performance of an act, which is specifically enjoined
by law as a duty. The second ground is that the
RULE 45 (SEC. 3): MANDAMUS respondent unlawfully excludes another from the use
or enjoyment of a right or an office.
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On what conditions may a petition for mandamus mandamus may not compel a respondent exercising
be filed. discretionary power, how to exercise his power, it may
compel him to exercise his power. Thus, while a judge
The condition is the same as in certiorari and may be compelled to act on a motion, long pending
prohibition. The filing of a petition for mandamus may before it, the judge may not be compelled, either to
be allowed only if there is no appeal, or any plain grant or to deny the motion.
speedy or adequate remedy in the ordinary course of
law. By now, you would have realized that the three Also, in this case of Hipos,Jr. versus Bay, the
petitions and the Rule 65 are remedies of last resort, Supreme Court said that in order for a writ of
which means that they cannot be availed off, if other mandamus, to properly issue two requisites must
remedies are still available. concur:
• First, the petitioner must have a clear legal
Let's go now to the next question. right to the action sought.
• Second, the respondent must have an
When the aggrieved party files a petition for imperative duty to perform said action without
mandamus. What relief is he asking from the the power to exercise discretion.
court?
Let's discuss now the case of Social Justice Society
What does he want the court to do for him? Of course, vs. Atienza. In this case, the Supreme Court said that
the relief sought would depend on the ground for since a city mayor is mandated by the local
which the petition was filed. If the ground was that the government code to enforce all laws and ordinances
respondent unlawfully neglected the performance of relative to the governance of the city, he may be
an act, which the law enjoins us a duty, the relief compelled to enforce an existing ordinance.
sought would be for the court to issue a writ of
mandamus to compel the respondent to perform the Let's go to another case, this case of Cudia vs.
act sought to be performed. Superintendent of the PMA. According to the
Supreme Court, the PMA, or the Philippine Military
If the ground was that the respondent unlawfully Academy, cannot be compelled by mandamus to
excluded the petitioner from the use or enjoyment of restore the rights and entitlements of a full-fledged
the right or office, the relief sought would be for the cadet to his graduation, after he has shown to have
court to issue a writ of mandamus to compel the violated the school's honor code as this would violate
respondent to allow the petitioner the use or the PMA's academic freedom.
enjoyment of his right or office.
In this last case of Villanueva vs. JBC. The Supreme
Let's go to the next question. Court ruled that the JBC cannot be compelled by
mandamus to include an applicant in the list of
What court exercises jurisdiction over petitions candidates for the Regional Trial Court. So this was
for mandamus. By express provision of law, the the ruling of the Supreme Court in this case of
Regional Trial Court, Court of Appeals and the Villanueva vs. JBC. You might have noticed that the
Supreme Court exercise concurrent original doctrines of the cases that I stated were in one or two
jurisdiction over petitions for mandamus. Since there sentences. so, but this are all that you have to
is concurrent original jurisdiction among these three remember in these cases, all you have to remember
courts of different levels, the rule on hierarchy of these doctrines.
courts must be complied with.
Let us now discuss certain doctrines on Mandamus RULE 66: QUO WARRANTO
laid down by the Supreme Court in some cases.
Let's start with a case of Hipos,Jr. versus Bay. In this Let us now discuss Rule 66, Quo warranto.
case, the Supreme Court said that while a writ of
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Quo warranto is a Latin phrase, which means by what If the filing of a petition for quo warranto is requested
authority. So, a person against whom a petition for quo by a party, other than the President of the Philippines,
warranto is filed is therefore asked the question, by the Solicitor General or public prosecutor has the
what authority do you hold public office? Or by what discretion whether to file or not to file the petition for
authority do you exercise a franchise? quo warranto. I mentioned earlier that a private
individual may also file a petition for quo warranto.
Knowing what quo warranto literally means? Let me
now ask the first question: When may a private individual file a petition for
quo warranto?
Against whom may a petition for quo warranto be Independent of the Solicitor General or public
filed. prosecutor, a private individual may, in his own name,
A petition for quo warranto may be filed against: file a petition for quo warranto if he claims to be legally
entitled to the public office being usurped, or
• First, a person who unlawfully holds a public unlawfully held by another take note. Before a private
office or exercise a franchise. individual may properly file a petition for quo warranto
• Second, a petition for quo warranto may also in his own name. He must clearly allege in the
be filed against a public officer who while petition, that he is the one who is by law entitled to
validly holding office performs an act which by the public office being usurped by the respondent. If
law constitutes a ground for the forfeiture of it is the Solicitor General or public prosecutor who is
his office. filing the petition for quo warranto it is not necessary,
• Lastly, a petition for quo warranto may also be that someone should claim that he is entitled to the
filed against an organized group of persons public office being usurped. It is enough if it is shown
who acts as a corporation within the in the petition, that the person actually holding the
Philippines without being legally incorporated public office is a usurper. that he is holding the public
or without authority to act as a corporation. office unlawfully.
Please note, that when I mentioned the persons Going now to the next question,
against whom a petition for quo warranto may be filed,
the grounds for which the petition may be filed against When should the petition for quo warranto be
them were also specified. filed?
The answer to this question should be qualified. If the
Let me therefore go to the next question. quo warranto proceeding is to be initiated by the
Solicitor General or the public prosecutor, the petition
By whom may a petition for quo warranto be filed? shall be filed within one year from the cause of the
A quo warranto proceeding may be initiated by the ouster.
Solicitor General or public prosecutor on the one
hand, or by a private individual. But if the petition is to be filed by a private individual,
then he should file it within one year from the time he
On the other hand, it is either mandatory or became entitled to the public office being usurped by
discretionary on the part of the Solicitor General or another.
public prosecutor to file a petition for quo warranto.
The Solicitor General or public prosecutor must, take What does the phrase within one year from the
note must file a petition for quo warranto, if so directed cause of the ouster mean?
by the President of the Philippines, or if the Solicitor If the respondent is to be ousted, what would be the
General or public prosecutor are convinced that there cause or ground of his ouster? Of course, it would be
is sufficient evidence to successfully prosecute a the usurpation of the public office or the intrusion into
petition for quo warranto against a person. the public office or the unlawful holding of the public
office. So the one year period should therefore be
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counted from the time the usurpation, intrusion, or So, this is one instance when a specific rule or law
unlawful holding of the public office started. provides otherwise, meaning the provisions of rule
four will not apply in determining proper venue. It is
What about the phrase within one year, from the this rule under Rule 66, that will apply. So, if the
time the petitioner acquired the right to the public petition for quo warranto is to be filed with a Regional
office being usurped? Trial Court, it shall be filed in the Regional Trial Court
This simply means within one year, from the time the of the place where the respondent resides. There is,
petitioner was validly appointed, or elected to the however, an exception to this rule. If it is the Solicitor
public office being usurped. General, who is filing the petition for quo warranto. He
may file it in the Regional Trial Court of Manila,
Take note, this time the one-year period is not counted regardless of the place of residence of the respondent,
from the time the usurpation started. But from the time let me repeat so if the petition for quo warranto is
the petitioner, a private individual, became entitled to to be filed by the Solicitor General, in a Regional
the public office being usurped. Trial Court, he may finally in the Regional Trial
Court, or Manila, even if the respondent is not a
Finally, in what court may an action for quo resident of Manila, but in some other place.
warranto be commenced?
Subject to the rule on hierarchy of courts a petition for Let us now discuss some important doctrines on quo
quo warranto may be filed either with a Regional Trial warranto enunciated by the Supreme Court in recent
Court, the Court of Appeals or the Supreme Court. cases.
This means that these three courts of different levels,
exercise concurrent original jurisdiction over petitions Let's start with the famous case of Republic of the
for quo warranto Philippines versus Sereno. I'm sure you are familiar
with this case, Republic of the Philippines versus Chief
How about venue? Justice Sereno.
What is the rule in determining proper venue in In this case, the Supreme Court ruled that an
petitions for quo warranto? impeachable officer under the 1987 constitution may
be removed from office or ousted by a petition for quo
If the petition is filed with the Court of Appeals, or the warranto. If it can be shown that the respondent was
Supreme Court, venue is, of course, not an issue. not lawfully or validly appointed. You know that under
There is only one Supreme Court and only one Court the 1987 constitution, I paraphrase an impeachable
of Appeals. But if the petition is to be filed with the public officer may be removed only by impeachment.
Regional Trial Court, it should be filed in the Regional That's it's a clear provision in the 1987 constitution.
Trial Court of the place where the respondent resides. But in this case of Republic of the Philippines versus
Take note, this is different from the provisions of Rule Sereno, the Supreme Court laid down a landmark
4. So if the petition for quo warranto is to be filed in the doctrine. a landmark doctrine that an impeachable
Regional Trial Court, it should be filed in the Regional officer, under the 1987 constitution may be removed
Trial Court of the place where the respondent resides. not only by impeachment, which is provided by the
Constitution, but also by petition for quo warranto
If you remember, under Rule 4, the provisions of Rule provided it is shown that the impeachable officer was
4 will not apply in two instances: not validly or lawfully appointed. Now, does that
contravene or contradict the provision in the 1987
• First, when there is a specific rule or law that constitution that a public an impeachable public officer
provides otherwise. may only be removed from office by impeachment?
• Second is when the parties have agreed in According to the Supreme Court in this case of
writing before the filing of the action on the Republic versus Sereno, No, it does not contradict the
exclusive venue of their action. 1987 Constitution, because when an impeachable
officer is removed by a petition for quo warranto, it
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must be shown that the impeachable officer was not could not have been filed with the Regional Trial
by validly or lawfully appointed. So if the impeachable Court. Imagine if it will be a Regional Trial Court judge
officer was not validly appointed or was not lawfully who will decide whether to oust a sitting Chief Justice
appointed, then there's no impeachable officer to of the Supreme Court? That's absurd. A Regional Trial
speak of. So that was the reasoning of the Supreme Court Judge deciding to oust a sitting Chief Justice of
Court. While an impeachable officer may only be the Supreme Court. Or imagine if the petition for quo
removed by impeachment, if there is no impeachable warranto against Chief justice Sereno was filed with
officer in the first place, because he or she was not the Court of Appeals? It will be a division of the Court
validly appointed. So in effect, the officer being of Appeals, which will decide whether to oust a sitting
removed by petition for quo warranto is, in fact, not Chief Justice of the Supreme Court.
even a public officer. It's not even because it will be
shown that the respondent was not validly or lawfully Similarly, it would be absurd, that's why that petition
appointed. against Chief Justice Sereno could have only been
filed with the Supreme Court. Okay, so there, take
The next doctrine that was established, in this case, note there are exceptions to the rule on hierarchy of
landmark case of Republic vs. Sereno. In this case, courts, and this one is clearly an exception to the rule
the Supreme Court also ruled that quo warranto on hierarchy of courts. Another important doctrine that
and impeachment may proceed independently of was laid down in the case of Republic versus Sereno
each other, as they are distinct as to their is that, the one-year period for filing the petition for quo
jurisdiction, as to their grounds, as to the warranto. Remember, he mentioned that one-year
applicable rules, and as to their limitations. period. So, the one-year period for filing the petition
for quo warranto does not apply to the government.
The Supreme Court said an impeachment proceeding So, when the petition is filed by the Republic of the
and a petition for quo warranto against the same Philippines, through let us say, through the Solicitor
public officer may go hand in hand. They may proceed General, then the one-year reglementary period for
independently of each other because they have filing the petition for quo warranto will not apply.
different jurisdiction. Impeachment starts with the
lower house, Congress. And after the public officer is Prescription does not apply to the government.
impeached, the Senate will try the public officer who So, the one-year reglementary period for filing the
was impeached. a petition for a petition for quo petition would not apply to the government. The
warranto is cognizable by the Regional Trial Court, the petitioner here, although it was filed by the Solicitor
Court of Appeals and or the supreme court. Now, you General Calida, the petitioner, as you might have
may ask, since if there is concurrent original noticed, is the Republic of the Philippines. So, the rule
jurisdiction among several courts of different levels, as on prescription does not apply to the government or to
I mentioned earlier, the rule on hierarchy of courts the state. Okay, so that's another, although this is not
must be complied with. In this case of Sereno, the a new doctrine, laid down in the case of Sereno.
petition was for quo warranto was filed directly with the This is not a new doctrine.
Supreme Court. Was that not a violation of the rule on
hierarchy of courts should the petition have been filed Another doctrine that was established in the case of
in The Regional Trial Court could the petition had been Republic versus Sereno is that the one-year
filed in the Regional Trial Court, or should a petition reglementary period for filing a petition for quo
have been filed in the Court of Appeals? warranto may be counted not only from the cause of
the ouster but also from knowledge of the cause of the
Based on the rule on hierarchy of courts, the petition ouster. Okay, going now, to the case of Sereno, going
for quo warranto against the former Chief Justice back to the case of Sereno. Sereno, had been Chief
could not have been filed in the Regional Trial Court, Justice for about five years when the petition was filed,
although the Regional Trial Court exercises regional so If you apply the rule that the petition for quo
jurisdiction over petitions for quo warranto. But that warranto should be filed within one year from the
particular petition against the former Chief Justice cause of the ouster that that period has long expired.
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How does a petition for quo warranto differ from

But the Supreme Court said that the one-year period an election protest?
may be counted not only from the cause of the ouster,
but from knowledge of the cause of the ouster. The A petition for quo warranto may be filed by any voter
question is, when did the petitioner acquire not necessarily the losing candidate. So, a petition for
knowledge of the cause of the ouster? If you quo warranto may be filed by any voter, for what
remember, the fact that the former Chief Justice failed purpose? To oust an unqualified, ineligible person
to submit the required SALNs with the JBC came out from his elective office without the petitioner seeking
only during the impeachment hearings in Congress. to be installed in lieu of the oust of that official. Okay,
So if that was the time, when the petitioner, through so that's the distinction between an election protests
Solicitor General Calida came to know about the and a petition for quo warranto in the case of Lokin vs
cause of the ouster, then the petition was filed within COMELEC.
that one year period, counted not from the cause of
the ouster, but from the time knowledge of the cause Now, in the case of De Castro vs Carlos, the Supreme
of the ouster was acquired by the petitioner. Court said that the private person who files a petition
for quo warranto in his own name must prove that he
Okay, so we are done with Republic versus Sereno. is entitled to the controverted public office. Now, this
Take note of those doctrines. Except for one or the is an instance when it is a private individual who files
other doctrines established in that case, our landmark the petition for quo warranto because he is claiming
doctrine, so remember them. that he is the one entitled to that public office being
usurped by another. So, the petitioner, a private
So let's go now to the case of Calleja vs. Panday. In individual is claiming that he is the one who is entitled
this case, of Calleja vs. Panday, the Supreme Court to that public office being usurped.
said, a petition for quo warranto may not be filed
against a person who usurped an office in a So what should that petitioner prove? What
private corporation. So, a petition for quo warranto should he allege petition?
may not be filed against a person who is usurping not
a public office, but an office in a private corporation. What should he prove if he is a private individual who
The remedy is not a petition for quo warranto if the filed the petition for quo warranto because he claims
office being usurped is not a public office, but an office to be entitled to the public office being usurped by
in a private corporation. Let me repeat now, a petition another, he should allege in his petition, and later on
for quo warranto may not be filed against a person prove he has the right to that public office he should
who usurps an office in a private corporation. explain how did he acquire the right to the public office
and he must prove it. He must prove that how he
Let's go on up to the next case of Lokin vs COMELEC. acquired that right to that public have is in question.
Okay. So we are done with quo warranto.
So what doctrines were established in this case of
Lokin vs COMELEC. The Supreme Court said that RULE 67: EXPRORIATION
while an election protest is filed by the losing
candidate, to oust the winning candidate so he can be What power does the state exercise when it takes
installed. So, this is an election protest, by the way, private prop for public purpose?
the Supreme Court made a distinction between an - Power of eminent domain.
election protest and a petition for quo warranto. So, a
petition for an election protest is filed by a losing What kind of power is eminent domain?
candidate in an election for what purpose? To oust the - Inherent power of the state
winning and proclaimed candidate, so he can be
installed. What do you mean by inherent power of the state?
Does it need to be conferred by the constitution?
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- No. It is inherent one it is established; the

state has that power. How does the senate/ LGU exercise power of
eminent domain? Suppose there’s an offer to the
How does the state exercise power of eminent owner and owner refuse? What may the do?
domain? - The LGU or the state may file a verified
- State = juridical fiction complaint w/ the RTC (pecuniary estimation)
Who will file/ act to exercise power of eminent Suppose defendant objected to the taking of the
domain? property? Who should be impleaded as defendants?
- The Office of the Solicitor General - Occupants, owners, one who claims
ownership or interest; persons who has an
*executive branch headed by pres. chief executive interest a right to passes the prop. (Entitled /
will exercise power of eminent domain in possession of the prop)
Can power of eminent domain be delegated by the Suppose defendant does not object and accept the
state to other entities? offer of the (object to just compensation) What
- Yes should defendant do?
- File a notice of appearance and
Who are the alter egos? manifestation and state that his objection to
- Department Secretary the just compensation. Then the court will
then issue an order of expropriation.
May PED be delegated by the government to other
entities? Two (2) stages:
- Yes. To LGUs/public utilities and private
corporations 1) WON expropriation is proper or taking is
proper
How is power of eminent domain delegates to LGU?
- It is exercised by Exeutive Branch thru In reference to Petitioner:
congress who will make a law to exercise When would the taking of prop not be proper?
power of eminent domain (conferring) -WON authority to take the property?
- LGU WON there is an ordinance?
Is there a law?
- Yes. Local Government Code (RA7160, Sec Court determines that it has the authority:
19): LGU are given the power to exercise *Constitutional provision on power of eminent
power of eminent domain. “for the benefit of domain = Limitation of LGU: takings are for
the poor and the landless public use
*state exercise power of eminent domain. 2) Determination of Just Compensation
How will LGU exercise power of eminent domain? Suppose defendant objects:
- Expropriation proceedings will be filed thru its There need to be a hearing then court to
agents (Mayor/Governor) resolve
Condition: There must be an ordinance – specify the If court determines that it is for public use and
prop to be expropriated) and payment of 15 % which petitioner has power of eminent domain:
is offered to owner and owner rejects such offer. Court to issue an order of expropriation and
petitioner will make a deposit.
*mere resolution would not suffice to exercise power
of eminent domain
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*order of expropriation – interlocutory order

but ROC order is interlocutory and b) If petitioner is an LGU
unappealable. aggrieved party may appeal - Deposit of 15% FMV w/ the court. Indicated in
the latest tax declaration.
Who is the defendant: the aggrieved party
c) If petitioner is the national government purpose
Mode of appeal: record on appeal national (For infrastructure per RA 8974)
- Payment of the 100% zonal value passed to the
*appeal by D will not stop the court from owner.
determining J. Com.
In Republic vs. Andaya, "Taking," in the exercise of
How court determine just compensation? the power of eminent domain, occurs not only when
- Court to appoint 3 commissioners who will the government actually deprives or dispossesses the
assist in determining just compensation owner of his property or of its ordinary use, but also
when there is a practical destruction or material
Formula: impairment of the value of his property the
enforcement of the legal easement on a portion of the
Fair market value owner’s property prevented ingress and egress to his
remaining property and turn it into a catch basin for
Assessed value and real market value. Selling piece; the floodwaters.
Open and free market.
In Asia’s Emerging Dragon Corp. vs. DOTC, the
Current market value at time of taking/upon filing right of eminent domain extends to personal and real
which came first. property, and the NAIA 3 structures, adhered as they
are to the soil, are considered as real property. The
Current value at time of taking and (based on selling public purpose for the expropriation is also beyond
piece and in an open and free market value) dispute. It should also be noted that Section 1 of Rule
- Price that property can be bought in the open 67 recognizes the possibility that the property sought
market. to be expropriated may be titled in the name of the
- Loss of owner should be measured by just Republic of the Philippines, although occupied by
Compensation private individuals, and in such case an averment to
- Formula: Consequential damage less that effect should be made in the complaint. The
consequent benefit instant expropriation complaint did aver that the NAIA
3 complex "stands on a parcel of land owned by the
When may petitioner take possession of the property? Bases Conversion Development Authority, another
- Upon filing of complaint P may take agency of the Republic of the Philippines
possession. Provided:
Conditions (upon filing):

In Abad vs. Fil-Homes Realty, the mere issuance of
a writ of possession in favor of the plaintiff does not
Deposit depends on the assessed value:
transfer ownership of the lot in favor of the plaintiff.
a) If petitioner is the national government (For
Such issuance is only the first stage in expropriation.
road construction)
In the present case, the fact that a writ of possession
- Deposit to an assessed value of the prop
had already been issued in favor of the plaintiff in an
indicated in the tax declaration. and deposit in
expropriation proceeding would not render moot a
an authorized gov. depository
pending action for unlawful detainer between private
- Deposit should be in money but ROC cert of
parties involving the same lot.
deposit allowed by court
- Court order sheriff to take the prop.
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Expropriation of lands consists of two stages: The first

is concerned with the determination of the authority of • Fault of mortgagor/debtor – extrajudicial
the plaintiff to exercise the power of eminent domain foreclosure
and the propriety of its exercise in the context of the • Judicial foreclosure – Rule 68
facts involved in the suit. It ends with an order, if not • Extrajudicial foreclosure – Act 3135
of dismissal of the action, "of condemnation declaring • Judicial foreclosure of real
that the plaintiff has a lawful right to take the property estate mortgage
sought to be condemned, for the public use or purpose
described in the complaint, upon the payment of just Mortgage CR – File only if debtor is in default
compensation to be determined as of the date of the - Obligation became due and creditor demands
filing of the complaint. unless there’s a stipulation that demand is not
necessary.
The second phase of the eminent domain action is - Pleading: Complaint
concerned with the determination by the court of "the
just compensation for the property sought to be Court: It depends
taken." This is done by the court with the assistance - If real estate mortgage is considered as
of not more than three (3) commissioners. incapable of pecuniary estimation, then it is
RTC.
It is only upon the completion of these two stages that - If real estate mortgage is considered as real
expropriation is said to have been completed. The action: depends on the assessed value.
process is not complete until payment of just (latest jurisprudence)
compensation.
Action for real estate mortgage Stages:
Department of Agrarian Reform Adjudication 1) Court will resolve:
Board (DARAB) - WON the debtor is in default and the amount
- A quasi-judicial agency which has the primary of the of debt
jurisdiction to determine just compensation - If court that debtor is in default and the exact
- An order of DARAB fixing just compensation amount = Court will render a judgement.
becomes final and executory within 15 days
from receipt of landowner of the said order The tenor of judgement: Court will not order the forem.
But it will order D to pay the with not less than 90 but
RULE 68: FORCLOSURE OF REAL ESTATE note than 120 days from entry of judgement that
MORTGAGE should D fail the w/n the prescribed period, then the
prop will be sold at public auction and proceed will be
A deed of real estate mortgage – accessory contract used to pay the of mortgage.
co loan
If debtor is able to pay – no foreclosure
Purpose: To secure a loan
Initiatory: Complaint 2) If debtor fails to pay – period prescribe
- Plaintiff file motion with notice but hearing is
Who will file the complaint real estate mortgage? not required for the sale of prop at public
- Mortgagor/creditor auction.
When? After the sale, plaintiff will file a motion and order
- if mortgagor fails to pay mortgagee. confirm the sale.
Two (2) Kinds:

1) Judicial RULE 69: PARTITION
2) Extra judicial
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Who may file partition?

- Person who is entitled or has the right to Actual date of dispossession must be alleged in the
compel the partition. complaint.
Who has the right to compel partition? Is demand to vacate required?

- Co-owner of a property who has the right to - No
partition.
What kind of action is forcible entry?
*If one co-owner wants to determine his share then he - REAL ACTION – affects title/ possession or
may compel co-owners for partition interest therein.
When partition is filed, what will the court resolve? Alleged that plaintiff was in prior possession of
property.
1) WON plaintiff has the right to compel partition.
If court determines that plaintiff has the right What court has jurisdiction?
to compel partition, court will grant the - MTC has exclusive jurisdiction regardless of
complaint the assessed value/ value of damages prayed
for.
2) Court will issue an order directing the parties
to partition the prop among themselves.
Unlawful Detainer
If able to do so – Submit to court the
instrument of conveyance, convey each Who may file?
respective share. - Lessor, vendor, vendee, other person against
whom possession is unlawfully withheld after
If they do not agree – Court will appoint not the expiration
more than 3 commissioners to assist in the
partition. When to file?
- Within 1 year from expiration of the right to
What court has jurisdiction? withhold the property
- Considered as a real action so it depends on
the assessed value of the real property
Forcible Entry vs. Unlawful Detainer
RULE 70: FORCIBLE ENTRY AND UNLAWFUL In Unlawful Detainer – Defendant has initial right of
DETAINER possession.
In Forcible Entry – Defendant has the no right of
Forcible Entry possession.
Who may file? In Unlawful Detainer – Defendant is in lawfully

- One who is deprived of the real property by possession of property due to some contract
force, intimidation, threat, strategies or
strength (FITSS) When does at became unlawful?
- When right to possess express
When to file? - When it became unlawful (contract of lease)
- At any time within 1 year from such unlawful Not upon expiration but if after demand by P to vacate
deprivation (dispossession) and refuse to vacate, from there he unlawfully
possessed the property.
How was plaintiff deprived? By what means (FITSS)
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In Forcible Entry – FISST Period to file answer:

In Unlawful Detainer – Upon expiration of the right to 15 days – OCA
withhold and upon refusal to vacate upon demand 10 days – Summary Procedure
Motion to Dismiss / Reply
- Within 1 yearr from demand that after GR: Prohibited
demand it became unlawful. EXP: Lack of jurisdiction or failure to comply with
condition precedent
Demand is date of last demand must be alleged.
Where to file
What kind of action is Unlawful Detainer? - MTC where the real property is situated
REAL ACTION
If defendant fails to file answers, upon motion,
Why real action? defendant may be in default (OCA) but in summary
- It affects possession of real property. procedure (forcible entry/unlawful detainer) fails to file
an answer. Plaintiff may upon motion to court to
Ownership is not an issue for forcible entry/unlawful render judgment on the compliant (and court may
detainer. even motu proprio).
Court has no juris over the ownership of real property. No presentation of witness in summary procedure. But
it will be based on JAR nor cross examination in court.
May the court resolve the issue of ownership?
- No
RULE 71: CONTEMPT
GR: Court cannot resolve ownership.
Who may be penalized for contempt?
When may MTC can resolve the issue of ownership? - A person guilty of misbehavior in the
presence of or so near a court as to obstruct
EXP: Only when defendant raise the defense that he or interrupt the proceedings before the same,
is entitled to the possession because he is owner of including disrespect toward the court,
the prop. offensive personalities toward others, or
refusal to be sworn or to answer as a witness,
Resolution of the court as to the ownership is not or to subscribe an affidavit or deposition
conclusive. when lawfully required to do so (Sec 1)
Action for forcible entry/unlawful detainer – covered by What is the penalty?

Rules on Summary Procedure
- If committed against RTC – Fine not
exceeding P2,000 or imprisonment of 10 days
What are the features on Rules on Summary
- If MTC – Fine not exceeding P200 or
Procedure?
imprisonment of 1 day
- All pleadings must be verified.
Contempt is in the nature of both civil and criminal
Only compulsory counter claim can be filed.
action (Both fine and imprisonment)
May defendant file a cross claim?

What is the remedy for direct contempt?
- Yes, because all cross claims are compulsory
- Prohibition/Certiorari (Rule 65)
it arise from same transaction.
Where would the aggrieved party file the petition if the
Cross claim is always compulsory
order of contempt was issued with the RTC?
- File with CA.
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Order/written charge, respondent to show

Remedy of aggrieved party imposed penalty of cause why he should not be cited for I
imprisonment for 10 days contempt.
- File a bond in an amount fixed by the court. - Direct contempt – No opportunity to answer
charge unlike in indirect contempt –
Who may be penalized for indirect contempt? (Sec 3) Respondent given opportunity to answer and
(a) Misbehavior of an officer of a court in the be heard.
performance of his official duties or in his official
transactions; Who else can initiate indirect contempt?
- Independent action by a verified petition (any
(b) Disobedience of or resistance to a lawful writ, person who is aggrieved by the respondents)
process, order, or judgment of a court, – SCA
including the act of a person who, after being
dispossessed or ejected from any real Where should petition for contempt be filed?
property by the judgment or process of any - If indirect contempt – RTC / higher court
court of competent jurisdiction, enters or
attempts or induces another to enter into or - If against MTC – File with the RTC where
upon such real property, for the purpose of MTC is.
executing acts of ownership or possession, or - It may be instituted with the MTC subject –
in any manner disturbs the possession given Appeal to RTC.
to the
person adjudged to be entitled thereto;
What is the penalty for indirect contempt? (Sec 7) If
(c) Any abuse of or any unlawful interference RTC – fine not exceed P30K or imprisonment of 6
with the processes or proceedings of a court months
not constituting direct contempt under section If LC – P5K or imprisonment of 1 month
1 of
this Rule; What is the remedy of a person who is held guilty for
indirect contempt? (judgement has been rendered)
(d) Any improper conduct tending, directly or - Ordinary appeal (CA/RTC)
indirectly, to impede, obstruct, or degrade the
administration of justice; Remedy of respondent to stay the execution? -
File a bond fixed by court
(e) Assuming to be an attorney or an officer of a - Court may allow execution pending appeal
court, and acting as such without authority; exception
(f) Failure to obey a subpoena duly served; Judgment in contempt is immediately executory
unless respondent gave a counter bond.
(g) The rescue, or attempted rescue, of a person
or property in the custody of an officer by Contempt is committed in connection with pending
virtue of an order or process of a court held case. It should be alleged in the petition, so that it may
by him. be consolidated with the court to the case where it is
pending.
How may court penalized for indirect contempt?
- As a rule, there must be a written charge and
such will be given an opportunity to answer RULE 72-90: SPECIAL PROCEEDINGS
and hear and defend himself. (SETTLEMENT OF ESTATE)
- If court wants to initiate the proceeding for
indirect contempt, what should court do?
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Q: What court has jurisdiction over petitions for So, what would be the basis of jurisdiction? Since we
settlement of estate, whether testate or intestate? cannot yet determine that the gross value of the estate
of the deceased spouse when the petition for
A: Under Section 33, paragraph 1 of BP 129, the settlement filed. Q: What would be the basis of the
municipal trial court shall exercise exclusive original jurisdiction? A: Under the rules under existing
jurisdiction over petitions for settlement of estate jurisprudence, the basis of the jurisdiction would be
where the gross value of the estate does not exceed the gross value of the common properties of the
300,000 pesos outside Metro Manila, or does not spouses. Let us say, the gross value of the common
exceed 400,000 pesos in Metro Manila. Under properties of the spouses is let us say, just to give an
paragraph 4 section 19 of BP 129, the Regional Trial example, it's 600,000 pesos, that's the gross value of
Court shall exercise exclusive original jurisdiction over the common properties of the spouses. So, you
all matters of probate, meaning over petitions for cannot liquidate that yet. You have to file the petition
settlement of estate, whether testate or intestate, for settlement of the estate of the deceased spouse.
where the gross value of the estate exceeds 300,000 Now that will be the basis of the jurisdiction of the
pesos outside Metro Manila or exceeds 400,000 court.
pesos in Metro Manila.
So, where do you file the petition for the settlement of
So, either the municipal trial court or the Regional the estate of the deceased spouse since the gross
Trial Court exercises exclusive take note not value, the common properties of the spouses are
concurrent but exclusive original jurisdiction over 600,000 pesos? You will file the petition for the
petitions for settlement of estate whether testate or settlement of estate in the Regional Trial Court. So
intestate depending on the gross value of the estate. later, after the filing of the petition for settlement of the
Under the rules, when one of the spouses dies, the estate of the deceased spouse, you liquidate now, the
liquidation of the common properties of the spouses common properties be spouses. So most probably,
meaning the surviving spouse and the deceased the gross value of the estate of the deceased spouse
spouse shall be done in the settlement of the estate of is 300,000 pesos, half the value of the common
the deceased spouse. Okay, let me repeat, so, when properties of the spouses. So, you finally determine
one of the spouses dies, the liquidation of the common that the gross value of the estate of the deceased
properties of the spouses shall be done in the spouse is 300,000, even if it is outside Metro Manila.
settlement of the estate of the deceased spouse. So,
before the common properties of the deceased Q: What court exercises jurisdiction over a
spouse, and the surviving spouse can be liquidated a petition for settlement of the estate of a person if
petition for settlement of estate of the deceased the gross value of the estate is not exceeding
spouse must first be filed. 300,000 pesos? A: It's the municipal trial court, but
the petition is the already filed in the Regional Trial
The question is, what would be the gross value of the Court. Q: So, what should be done? The gross
estate of the deceased spouse? it cannot yet be value of the estate of the deceased spouse has been
determined because half of the common properties of determined to be not exceeding 300,000 pesos but
the spouses would be the estate of the deceased the petition has already been filed in the Regional
spouse. But that could not yet be determined, until the Trial Court. A: Under existing jurisprudence, the
common properties of the spouses are liquidated and Regional Trial Court shall continue to exercise
the liquidation will be done in the settlement jurisdiction over the petition for settlement of estate,
proceedings. So, a petition for settlement must be the petition will not be dismissed, according to
filed first, before the common properties of the jurisprudence, the Regional Trial Court where the
spouses can be liquidated and the gross value of petition is filed should continue exercising
the estate of the deceased spouse can be jurisdiction.
determined.
Now let's now discuss proper venue.
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Q: What is the rule in determining proper venue left another parcel of land in Cebu City. He also left
in petitions for settlement of estate of deceased another parcel of land in Davao City. So, let us
persons, whether testate or intestate? assume that the estate of the decedent is 10 million
pesos so that there's no question as to what court has
A: So, the first rule is, if the decedent was a resident jurisdiction. The question is, where may the petition of
of the Philippines, regardless of his nationality, at the the settlement of the estate be filed? let's call the
time of his death, the petition for the settlement of his decedent Mr. Lopez. He left an estate worth 10
estate shall be filed in the proper court of the place million, but located at different places Las Pinas,
where he was a resident at the time of his death. Cebu, and Davao.
Let me repeat. So, if the decedent was a resident of Q: Where do you file? in what Regional Trial Court
the Philippines, regardless of his nationality, at the of what place may the petition for the settlement
time of his death, the petition for the settlement of his of the estate of Mr. Lopez may be filed? A: Proper
estate shall be filed in the proper court. Why in the court is the Regional Trial Court, proper venue, is the
proper court? because it may be a Regional Trial Regional Trial Court in Las Pinas, it is a proper venue
Court, it may be a municipal trial court of the place because, a portion of his estate is situated in Las
where the decedent was a resident at the time of his Pinas and when he died, he was not a resident of the
death, take note, at the time, resident at the time of Philippines.
his death, not the place of his death, but where the
decedent was a resident at the time of his death, that Q: What about the Regional Trial Court of Cebu
determines proper venue. City, may the petition be filed in Regional Trial
Court of Cebu City? Is Cebu City a proper venue?
Q: So, what happens now, if the decedent was not A: Yes, because a portion of the state of Mr. Lopez, is
a resident of the Philippines at the time, now, how it also situated in Cebu City.
do we determine proper venue?
Q: May the petition be filed in Davao City? A: Yes,
A: The first rule applies when the decedent was a of course that Davao city is also a proper venue.
resident of the Philippines at the time of his death. We
apply another rule, which says, when the decedent Suppose one of the heirs of Mr. Lopez filed a petition
was not a resident of the Philippines, at the time of his for the settlement of the state of Mr. Lopez. First in Las
death, the petition for the settlement of his estate shall Pinas City. So, there was a petition for the settlement
be file in the proper court of the place where his estate of estate filed in Las Pinas City. After that, another heir
or a portion thereof is situated. So, if the decedent was of Mr. Lopez filed another petition for the settlement of
not a resident of the Philippines, what will determine the estate of Mr. Lopez in Cebu City, then a third heir
the proper venue of the settlement of his estate would who is residing in Davao City filed a third petition for
not be his residence in the Philippines because he the settlement of estate.
was not a resident of the Philippines at the time of his
death, but where his estate or a portion of this state is All these three petitions were filed in proper venues
situated. where the estate or a portion thereof is situated if the
decedent was not a resident of the Philippines at the
So, we covered all situations, the situation when the time of his death. So, all proper venues, all proper
decedent was a resident of the Philippines at the time courts. The question now is which one of them
of his death, and the situation where the decedent was should prevail? the three petitions cannot proceed,
not a resident of the Philippines at the time of his only one of these petitions can proceed.
death.
Q: How do we determine which one of the three
Now, suppose the decedent was not a resident of the petitions should prevail?
Philippines at the time of his death and when he died, A: We have to apply what is known as the
he left a parcel of land in Las Pinas City but he also exclusionary rule, we applied this rule, this
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exclusionary rule, only in this kind of situation when of that is let us say, a court has jurisdiction over the
the decedent died, he was not a resident of the subject matter of a case. But the rule says when an
Philippines and have properties in the Philippines; the indispensable party whether a plaintiff, or a defendant
properties of his estate are located in different places is not impleaded in the action, the court which has
and several petitions for the settlement estate were jurisdiction over the subject matter of the case, cannot
filed. What is this exclusionary rule? It provides that tried the case and render a judgment in the case
the first court first taking cognizance of the petition for meaning the court, although it has jurisdiction over the
settlement of the estate of the decedent shall exercise subject matter of the case, cannot exercise its
jurisdiction to the exclusion of the other courts. The jurisdiction. Why? Because an indispensable party
first petition that was filed is in Las Pinas City so the was not impleaded in the action. Okay, so that's one
court that first took cognizance of the petition was the example. So, we have to make a distinction between
RTC in last Las Pinas City. So based on the jurisdiction of the court over the subject matter of the
exclusionary rule, the petition filed in the Regional case, which is conferred by law and the exercise of
Trial Court of Las Pinas City will prevail over the that jurisdiction.
petition filed in Cebu and Davao, the RTC in Las Pinas
City will exercise jurisdiction to the exclusion of the Now, given the same facts that I gave earlier, suppose
RTC in Cebu and Davao City. the petition filed in Davao City is a petition for the
allowance of the last will and testament of Mr. Lopez.
But the question is, from what are RTCs in Cebu and So, that the heir living in Davao is in possession of the
Davao being excluded from what are they being last will and testament of Mr. Lopez., but that petition
excluded? Because the rule says to the exclusion of was filed last. So, given that modification, which
the other courts, meaning the RTC in Cebu, the RTC petition now should prevail? should it still be the
in Davao. The question is from what are they being petition filed in Las Pinas because it was filed first and
excluded? Are they being excluded from their the RTC in Las Pinas first took cognizance of the
jurisdiction over that petition for settlement of a estate petition? The answer is, the petition filed in Davao City
where the gross value is 10 million, are they being for the allowance of the will of Mr.
excluded from their jurisdiction? That can't happen, Lopez will now prevail, because probate
you cannot exclude a Regional Trial Court from its proceedings shall always be given precedence
jurisdiction over a petition for settlement where the over interstate settlement of estate. If Mr. Lopez left
gross value of the estate is 10 million, because under a last will and testament, that should be given
the law, a Regional Trial Court exercises exclusive preference because it was wishes of the testator, Mr.
regional jurisdiction. They could not be the RTC in Lopez, as embodied in his last will and testament
Cebu and Davao City could not be excluded from their should prevail. It should be given preference even
jurisdiction. They could not be deprived of their over the provisions the of law in the Civil Code on
jurisdiction, because jurisdiction over the subject succession.
matter of a case is conferred by law. So, from what are
they being excluded, because the RPC in Las Pinas Q: Now, when is a missing person presumed dead
will exercise its jurisdiction to the exclusion of the other for purposes of the filing of the petition for the
courts. They are being excluded, not from their settlement of his estate, or for the purpose of
jurisdiction, but from the exercise of their succession, how long should he be missing so
jurisdiction. So, you have to make a distinction that his death can be presumed, and that a petition
between jurisdiction which is conferred by law and the for the settlement of his estate be filed?
exercise of that jurisdiction, which is conferred by law,
a court may have jurisdiction over the subject matter A: Under the Civil Code, for purposes of succession a
of the case. But that court, which has jurisdiction over person should have been missing for at least 10 years,
the subject matter of the case, may be prevented from before a petition for the settlement of his estate,
exercising its jurisdiction, that's what happens. That's maybe filed, he will be presumed dead for purposes of
from what the two other courts are being excluded the filing of a petition for the settlement of his estate,
from the exercise of their jurisdiction. A good example but if that person disappeared, when he was 75 years
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old or above, then he will be presumed dead after five

years from his disappearance for purposes of the filing Q: Why is it required? Why is it a requirement
of the petition for the settlement of his estate. If the before the heir could extrajudicially settle the
person who disappeared, while on board, an airplane, estate that the decedent left no will? A: That is
which disappeared, nothing was heard of the airplane required because if the decedent left a will then the
anymore, when the person disappeared, he was on provisions of the last will and testament should govern
board that airplane, which disappeared, the bodies of in the distribution of the estate to the heirs not the
the passengers were never recovered, so he was agreement of the parties, but the provisions of the will.
missing then that person will be presumed dead after That's why when the decedent left a will, the heirs
four years, from the time he boarded that plane, or could not agree, extra judicially settle the estate,
when a person went to war, he was a soldier, he went because what will govern the persons to whom the
to war and from the time he went to war, nothing was estate shall be given would be the provisions of the
heard all about him, he just vanished from the face of last will and testament. As I mentioned earlier, the
the earth, then he will be presumed dead after 4 years wishes of the testator as embodied in the last will and
from the time he went to war. And in other similar testament shall prevail even over the provisions of the
instances, if a person boarded a ship and that ship Civil Code on succession. So, if the decedent left a will
sank to the bottom of the sea the bodies of the the heirs cannot extra judicially settle the estate.
passengers were never recovered, including the
person it will be presumed that after for purposes of Q: Why is it required that the decedent left no
succession after 4 years from the time he boarded that debts? Why can’t the heirs extra judicially settle
ship. the estate? A: The reason is, that the creditors of the
decedent can only recover the claims against the
So, let's discuss a situation where some of the heirs decedent when there is a pending settlement of estate
of the decedent, where they do not want to file a proceedings that's the only way that the creditors can
petition for settlement of estate. Judicial settlement of recover their claim against the decedent, now against
estate is very expensive and it takes a long time. So, the estate if there is a pending settlement of estate
there's a good reason for heirs not to want to file a proceedings. So, if there are creditors, if the decedent
petition for settlement of the estate. Now, what is their left debts, then the heirs could not extra judicially settle
option? What can they do? They don't have the money the estate, because the creditors will be prevented
to spend to pay a lawyer, especially if that lawyer from recovering declaims.
graduated from Arellano because a lawyer graduated
from Arellano usually charges exorbitant fees now, so Between the creditors and the heirs, the creditors
they can't afford to pay a lawyer. have a superior right in the estate over the heirs,
because what happens in the judicial settlement of
Their option is to settle the estate of the decedent estate is, that before the court will order distribution of
extra judicially. But of course, they can do that only if the estate to the heirs, all the creditors must first be
they could agree among themselves how to partition paid. So, when nothing is left after the creditors have
the estate of the decedent. They should agree been paid, then the heirs will be left with an empty bag,
because they can’t extra judicially settle the estate if they will receive nothing, because the creditor should
they don't agree. But there are conditions before the be paid first before the heirs could receive anything.
heirs may extrajudicially settle the estate of the Okay. So that's why the decedent must have left no
decedent. The first condition, is that the decedent left debts.
no will, the decedent died intestate without leaving a
will, The second requisite is that the decedent left no Q: The 3rd requirement is, that all the heirs must
debts and, the third requisite is that all the heirs must be of legal age or if there are minors, they should
be of legal age or if there are minor or if there are heirs be represented by their authorized representative,
who are minor/s, then those minor/s should be why is that required for extra judicial settlement of
represented by their guardians or authorized estate? A: The reason is simple, when the heirs
representatives. decide to extra judicially settled the estate, they are in
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effect entering into a contract. That deed of private document is notarized by acknowledgement,
extrajudicial settlement of estate which the heirs or once the parties to a private document,
signed is actually a contract. So, you know, the acknowledge the document before a notary public,
requirement before a person can enter into a contract, that private document becomes a public instrument or
he must be of legal age, so that minors by themselves document. Why? Because the notary public is
cannot enter into a contract unless they are required to submit a copy of that notarized document
represented by their guardians, whether legal or to the office of the clerk of court. We commissioned
judicial guardians. him as a notary public, they are required to submit all
the documents acknowledged before them to the
So, those are the requisites. office of the Clerk of Court. The Office of Clerk of Court
is a public office and all these documents
Q: Suppose the decedent died intestate, all the acknowledged before notaries public are kept there in
heirs are of legal age but the decedent left debts, the Office of Clerk of Court. So, anything that is kept
may the heirs still extra judicially settle the estate in a public office and is available to any person who
of the decedent. Is there a way for the heirs to still may be interested, is a public document. So, it
extra judicially settle the estate when the decedent becomes a public document.
left debts?
A: Yes, they should first pay all the debts of the But there's another requirement before they can
decedent. And so, after paying all the debts, then the consummate the extrajudicial settlement of estate,
heirs could now extra judicially settle the estate it they should publish the fact of extrajudicial settlement
would be as if the decedent left no debts the heirs of estate, in short, the heirs should cost the publication
could now, extra judicially settle the estate of the of the deed of extrajudicial settlement of estate.
decedent.
Q: How many times? in what publication? A: Once
Q: So, let's assume that all the requisites have a week for three consecutive weeks in a newspaper of
been satisfied, what should the heirs do, they general circulation in the province. Then, later on the
should still do some things to do effect the deed of extra judicial settlement of estate that's been
extrajudicial settlement of their state? A: Under the published once a week for three consecutive weeks,
rules, the agreement of the parties should be in a they should request the publisher or the editor in chief
public instrument, so the parties will agree on how to of that newspaper to issue a certification or an affidavit
partition the estate among themselves. So, they will that such deed of extrajudicial settlement has been
embody that in a written agreement. published three times, once a week for three
consecutive weeks.
But the rules say the agreement of the heirs should be
in a public instrument. What do the heirs do when they Is that all? Not yet, if the estate of the decedent
extra judicially settle the estate? they execute a deed includes personal properties, then the heirs are
of extra judicial settlement of estate. That's the required to post a bond in an amount equivalent to the
contract, the agreement, deed of extrajudicial value of the personal properties. Only if there are
settlement of estate They sign it, all the heirs sign it, if personal properties included in their estate, most of
there are minors, their authorized representatives will the time, there are no personal properties class, they
sign it on their behalf. But that would be a private usually when there is cash, left by the decedent, there
instrument, that would not be a public instrument. So are jewelries they will just distribute it among
how do they satisfy that requirement, that the themselves, they will not include it in the estate. But if
agreement must be in a public instrument? They there are personal properties included in the estate,
should go to a notary public and acknowledge the they have to give a bond in an amount equivalent to
deed of extra judicial settlement before the notary the value of the personal properties.
public or have the deed of extrajudicial settlement of
estate notarized by acknowledgement. That's what I Is there any more requirement? Yes, the last
meant by acknowledge before a notary public, once a requirement would be since they are inheriting
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property from the decedent, they should pay estate tax should that lone heir do? That heir should execute
to the BIR, bureau of internal revenue. Then, after they an affidavit – an affidavit of self- adjudication, that sole
paid the estate tax, the BIR will issue, what we call a heir shall execute an ordinary affidavit to be notarized
certificate authorizing registration or CAR. So after by jurat, and in that affidavit he will just state that the
that, the heirs will now attach to the deed of extra decedent died leaving this properties, that he is the
judicial settlement of estate, the certification of the only heir and so I am adjudicating to myself, the entire
publisher that was published three times and if they estate of the decedent, that's what he will stated in his
posted a bond, the bond and then the certificate affidavit of self-adjudication, it's like a selfie, you do
authorizing registration, then they are now ready to something to yourself, self-adjudication, have it
submit those documents to the register of deeds and notarized just not acknowledgement, but by jurat, and
that will consummate the extra judicial settlement of then he has to comply with the other requirements, if
the estate. the estate includes personal properties, he will also
have to post a bond; to cost the publication of the
But there's maybe a problem, so, let us say, all the affidavit; he has to pay estate tax and then submit the
heirs agreed that they don't want to file a petition for documents to the register of deeds and that ends the
settlement of estate. They can't afford it. They don't extra judicial settlement of estate if there is only one
have the money to pay the lawyer. But the problem is heir.
that they could not agree on how to partition the estate
among themselves, you know, human nature being So those are the different ways of extrajudicial
what it is, each one of them would want the lion's settlement of estate.
share of the estate, the best part, the best location, the
location along the road. So, everyone wants that. I'll We will no longer discuss summary settlement of
tell them, okay, since you cannot agree, and you don't estate because somebody's settlement of estate will
want to file a petition for settlement, which is apply only when the gross value of the state does not
expensive and it takes a long time let's just file an exceed 10,000 pesos, what do you do with an estate?
ordinary action for partition, under Rule 69, So that's That is not more than 10,000 pesos? That's not even
not efficient settlement. That's just an ordinary action one pot of soil, that is not even one square meter of
for partition, there will be no appointment of an land in in the province.
administrator, which is expensive. So that solves the
problem, that still, although a petition for partition is
filed in court, the settlement of the estate is still Let's now discuss production and allowance of will.
extrajudicial settlement. So that's another way of
effecting extra judicial settlement, the first is by a deed The rule says, no last will and testament shall pass
of extrajudicial settlement if the heirs could agree, but property whether real property or personal property
if they could not agree, they could just file an ordinary from the testator to his heirs unless it is proved and
action for partition, and let the court partition the estate allowed in a competent court. So, before a last will and
for them. testament can pass or transfer property from the
testator to the heirs, that last will and testament must
be first proved and then allowed in a competent court.
Suppose there's only one heir and the decedent left
several parcels of land, all in the name of the Who will prove the last will and testament? Of course,
decedent. Of course, once that the title to all those it's the petitioner. Who will allow the last will and
lands left by the decedent should be transferred to his testament of course? The court, but the petitioner
name, but he can’t just do that. He may be in must first prove the last will and testament.
possession of the lands, but the titles of those lands
cannot be transferred to his name, because it will be Q: What should the petitioner prove, so that the
the register of deeds, which will do that and the court the proper court, well, it may be a Regional
register of deeds will not just transfer the name of a Trial Court or a municipal trial court, depending on
title from the decedent to the lone heir. So, what
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the gross value of the estate will allow the will or should know what he is doing. So, the testator when
approve the will, what should be proved? he executes the last will and testament should
understand that by executing that last will and
A: What should be proved is the extrinsic validity and testament, he is transferring his properties to his heirs
not the intrinsic validity of the will. or to some persons of his choice. That's the first thing
that he should understand. But he should also
The intrinsic validity of the will pertains to the validity understand which is more important that he's
of the contents of the will, but the extrinsic validity of transferring his properties to his heirs or to some
the will pertains to two matters. persons of his choice, that transfer of property will take
effect not during his lifetime, but after his death. So
Q: What are those two matters to which extrinsic that's what is important, because a person may
validity pertain? transfer property during his lifetime, but the transfer of
property will take effect during his lifetime let’s say a
A: First, the testator, must have testamentary capacity person executes a deed of absolute sale is the seller.
at the time he executed the last will and testament. So, he knows that he is transferring his property to the
The second, is that the last will and testament was buyer that will take effect immediately upon the
executed in conformity with the formal requirements signing of the absolute sale during his life. But when
prescribed by law. at the testator executes a deed a last will and
testament, he should understand that he is
We will discuss these two matters. transferring his properties to his heirs and that will take
effect after his death that's what is meant by the
Let's start with the first matter. What does testator understanding the significance of the
testamentary capacity mean? Does it simply mean execution of a last will and testament.
that the testator was of sound mind at the time he
executed a will, so if it can be proved that the The second, the testator should know the nature and
testator was of sound mind at the time the extent of his bounty. What does that mean? that the
executed the will, does it mean that he had state should know the nature and extent of his bounty?
testamentary capacity? No, even if it can be shown What's that bounty? That simply means, that the
that the testator is of sound mind at the time, he testator should know exactly what are his properties,
executed the will, it does not necessarily mean that he what are the properties that he is transferring to his
had testamentary capacity. Why? Because heirs he should know those properties. That is what is
testamentary capacity requires more than being of meant by knowing the nature and extent of his bounty.
sound mind. Even if a person is of sound mind, he may
not have testamentary capacity. But a person cannot The third is that the testator should know exactly the
have testamentary capacity unless he is of sound persons to whom he is transferring his properties.
mind, but it's not enough that a person be a sound
mind so that we can say he has testamentary And if the testator understands all these three, then
capacity. and it takes a sound mind to understand all this , then
we can say he has testamentary capacity. That's the
Q: So, when do we say that a person has first matter to which extrinsic validity of the will
testamentary capacity? pertains, which must be proved in court. So, in courts,
A: The testator must understand several things before petitioner must prove all those three things to prove
we can say he has testamentary capacity, of course, that the testator has testamentary capacity at the time
he needs to be of sound mind to understand those he executed the will.
things. Let's assume that now that the testator is of
sound mind. So, but he must understand three things Let us go now on the second matter, which is that the
before we can say that he has testamentary capacity. last will and testament was executed in accordance
What are those? First, that the testator understood the with the formalities prescribed by law. What are these
significance of executing a last will and testament, he formalities prescribed by law? It depends what kind of
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last will and testament was executed by the testator, it’s very strict, the formalities prescribed for notarial will
was it a notarial will? then there will be formalities is very stringent, all of them must be strictly complied
prescribed by law for a notarial will. Was it a with. So that's what the petitioner must do to prove that
holographic will? Then there are different formalities the last will and testament was executed that in
prescribed by law for holographic will, so it depends. accordance with the formalities prescribed by law.
Let’s give some example of formalities prescribed by
law for a notarial will, one formality required by law for What about the last will and testament is a holographic
a notarial will is that there must be at least three will, what are the formalities prescribed by law? There
subscribing witnesses. Why do we call these is only one formality prescribed by law for a
subscribing witnesses? because they also required to holographic will. The only formality prescribed by law
sign the last will and testament. That notarial will is that the holographic will must be must be dated,
should be acknowledge before a notary public by at written and signed by the hand of the testator, take
least three subscribing witnesses and the testator. note, by the hand of testator. If that can be proven,
After the witnesses and the testator have signed the then that means the holographic will was executed in
last will and testament, they will acknowledge it before accordance with the formalities prescribed by law, that
a notary public and will also sign the last will and should be proved. Suppose that the testator was born
testament. Another requirement prescribed by law for without arms class, there are persons who are born
a notarial will is, that when each of them at least three without arms now. So early in life, they learn to write
subscribing witnesses must sign the last will and with their foot. And so that person who was born
testament, so the testator will have to sign all the without arms and learn to write and even paint with his
pages of the last will and testament. And finally, when foot executive, a holographic will with his foot he dated
the last will and testament is acknowledged before a wrote and sign the holographic will not with the hand,
notary public, the notary public will also sign the last but with his foot, will that satisfy before morality
will and testament in all the pages, so one of the prescribed by law or a holographic will? Because it's
important formality prescribed by law for notarial will is very clear under the rules, the holographic wheel must
that when each of them the three subscribing be dated, written and signed by the hand of the
witnesses, the testator and the notary public, when testator. That phrase by the hand of the testator
each of them signed the will, in all the pages, all the should not be understood literally, just for emphasis,
others must be present and they should be able to that it should be the testator who dated, wrote and
observe the signing by one of them. So, when each of signed the last will and that is what this meant. But for
them signs, the last will and testament and all the emphasis, that's why it's by the hand it could be the
others must be present, and must be able to observe foot as long as it is the foot of the testator which dated,
the signing, that's a very important formality wrote and signed the holographic will
prescribed by law for a notarial will, so that should be
proved. Those two matters are what is referred to us extrinsic
validity of the will, all of them must be proved by the
In one case, during the trial, it was shown that when petitioner so that the last will and testament will be
one of the subscribing witnesses sign, the last will and allowed by the court. What about the intrinsic validity?
testament, it just so happened that one of the before the court will even look into the intrinsic validity
witnesses stepped out of the room just outside the of the will, the court should first allow it because if the
room and went to the bathroom, only for a moment. extrinsic validity was not prove and it disallow the will,
But it just so happened that it was shown during the the court would not even look into the intrinsic validity
trial, that when one of the witnesses sign the will, the of the will. So, the court must first allow the will after
other witness was outside the room where the witness the extrinsic validity is proved by the petitioner before
was signing the will. So, do you know what happened? it will look into the intrinsic validity of the will.
Do you know what the Supreme Court said? That fact
invalidates the last will and testament. So, is it as if if Who may file the petition for the allowance of a
the decedent died intestate because the last will and will? By the way, the jurisdiction would still depend on
testament was invalidated because of that alone, so, the gross value of the estate, even if the petition is for
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the allowance of a last will and testament, the given by the testator in his last will and testament
jurisdiction will still depend on the gross value of the
estate, the same as in petition for settlement of Q: Who is a legatee?
intestate, without a will. A: A legatee is a person to whom personal property
is given by the testator in his last will and testament
Q: Who may file a petition for the allowance of a
last will and testament? Q: Who are the persons who may have an interest
A: First is the executor; second, the devisee or the in the estate aside from the executor, devisee or
legatee or any person interested in the estate or the legatee, and therefore may file the petition for
during his lifetime the testator himself may petition the the allowance of a will?
court for the allowance of his last will and testament.
A: As I said earlier, the rights of the creditors over the
Q: Who is an executor? estate is even superior than the rights of the heirs
A: An executor is a person named by the testator because all creditors must first be paid before
himself in his last will and testament to administer his distribution will take place. So, a creditor may file the
estate after his death. petition.
So, if that the testator named somebody or designated Why would they creditor file a petition? Suppose
somebody in his last will and testament to administer nobody files the petition. If there is no executor named
his estate after its death, that person is the executor. in the will, the e devisee, the legatee, nobody takes
So that person named by testator in his last will and the initiative of filing the petition for the allowance of
testament may file the petition. In fact, he's the best the will. Why would a creditor spend money to file the
person to file the petition for the allowance of the will petition for the allowance of the will? The reason for
because most probably, you will be the one who is in that is simple last, because that's the only way he can
possession of the last will and testament. Usually the recover his claim against the estate. If there is a
testator will designate a lawyer to be an executor pending petition for the allowance of a will, that's the
because the executor or the lawyer, an executor, who reason why a creditor may file a petition, he has an
is a lawyer would know what he will do after the death interest in the estate because that is only way, he can
of the testator. recover his claim is if there is a pending petition for the
allowance of the will.
Q: Why can't an administrator filed a petition for
allowance? he testator, as we mentioned earlier, during his
A: Because an administrator does not exist yet. lifetime, not after, during his lifetime, may file the
Before the filing of the petition, an administrator is petition for the allowance of his will. That's the best
appointed by the court during the pendency of the way of effecting the allowance. Testator himself during
petition for allowance of the will. So, how can the his lifetime, petition the court for the allowance of a will
administrator who does not exist yet before the filing in fact, every time I have a client who consults what to
of the petition filed the petition? He cannot because he do, if he got lots of property, and he does not want to
will be appointed later on, after the petition for the leave these properties to his heirs and later on it turn
allowance of the will has been filed and in the course out that they could not agree on how to divide or
of the proceedings of that, then an administrator may distribute the state among themselves. So, if I'm
be appointed. consulted, I advise my client, you execute a
holographic we'll because it's simple. All you have to
do is to put a date, write there your properties, indicate
Q: Who else may file a petition for the allowance to whom you are giving your properties, and then sign
of the will? A: The devisee. it. That's all. You don't need a lawyer to do that,
although some guidance may be needed by a lawyer.
Q: Who is the devisee? So, and then I advise my client, you have the second
A: A devisee is a person to whom real property is that the holographic will, don't wait until you die, you
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file a petition for the allowance of your will while you're the petition must also be given notice of the
still alive, because it's so easy to prove the extrinsic petition, either by personal service or by
validity of the will, if the testator on himself. He only registered mail. Is this requirement, also a
has to say is Yes, Your Honor, I signed this, the court jurisdictional requirement like publication? Under the
itself can observe the testator when he testifies. So, old jurisprudence, this requirement of notice to the
it's easy to prove the will if it is the testator himself who person's name in the petition, either by personnel
is testifying in court. service or registered mail is just a procedural
convenience, it is not a jurisdictional requirement.
Q: What should the court do upon the filing of a Under the present jurisprudence, this requirement
petition for allowance of the will? A: Upon the filing is also jurisdictional. Aside from publication, the
of the petition of the allowance of a last will and persons named in the petition must also be given
testament and after determining that the petition is notice of the petition either by personal service or by
sufficient in form and substance the court will issue an registered mail.
order fixing the date of the hearing of the petition and
ordering the petitioner to cause the publication of the But if the petitioner is testator himself meaning during
petition once a week for three for three successive the lifetime, he filed the petition, publication is not
weeks, in a newspaper of general circulation in the required. So, if it was the testator himself, who filed
province where the court sits. the petition, and is the petitioner, publication is not
required. What about notice to the person's name
in the petition, either by personal service or by
So, the court will issue an order fixing the date of the registered mail? it is not also required, what is
hearing of the petition and directing the petitioner to required is only notice to the compulsory heirs of the
cost the publication of the petition once a week for testator, only the compulsory heirs of the testator must
three successive weeks in a newspaper of general be given notice, either by personnel service, or by
circulation in the province where the court stands, registered mail.
that's better know, where the court stands now, the
court is standing. Publication is a jurisdictional requirement, notice
to the person's named in the petition is also a
Now what is required aside from the publication? jurisdictional requirement.
by the way, the publication is a jurisdictional
requirement. It's a jurisdictional requirement. The Q: How is the last will and testament prove? What
court may have jurisdiction over the subject matter of evidence is required to prove a last will and
the case based on the gross value of the state, the testament?
court may have jurisdiction over the subject matter of
the case. But if there is no publication of the petition, A: It depends, if the will is a notarial will, and there is
in accordance with the rule, the court cannot exercise no oppositor after the filing of the petition, there's
its jurisdiction over the case. publication notice the person's name in the petition. If
there is no person who files an opposition to the
The court may have jurisdiction over the subject petition, then the petition is uncontested. So what
matter of the case but sometimes the court cannot evidence is required for the petitioner to prove that the
exercise its jurisdiction. But application of the petition extrinsic validity of the will? if it is a notarial will, if the
plus is a jurisdictional requirement. Without the petition is uncontested, it is sufficient that one of the
publication the court cannot exercise jurisdiction and subscribing witnesses testify as to the extrinsic validity
if the court exercised jurisdiction, all the proceedings, of the will. So. that that that subscribing witness just
including the judgment are null and void. So, one is sufficient, will testify that when he signed the
jurisdiction is a jurisdictional requirement. But aside last will and testament in the presence of the other
from publication class, it is also required that all the witnesses, the presence of the notary public, in the
all the person’s name in the petition, the devisees, presence of the testator, that he observed, that all the
the executor, the legatee, all the person's name in formalities prescribed by law for a notarial. And that he
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also observed that testator when he signed at the time class when you discuss the exceptions to the opinion
that he signed the last will and testament was it rule, opinion as evidence as a rule, the opinion of a
appears that he had testamentary capacity, he was of witness is not admissible except when except the
sound mind. So that that lone witness, or at least one opinion of an expert or the opinion of an ordinary
subscribing witness will testify on that and that is witness when proper basis is given on the handwriting
sufficient to prove an uncontested notarial will. of a person. Of course, a handwriting is always of a
Suppose it is contested, then all the subscribing person with which he has sufficient familiarity. So
witnesses must testify, including the notary public that's an exception to the rule on opinion as evidence.
before whom the will was acknowledge. If there are no So, the ordinary witness, who is familiar, who has who
subscribing witnesses, the petitioner may present an is sufficiently familiar with the handwriting and
expert witness. signature of the testator may not testify on his opinion,
can testify and on his opinion and that will be
Suppose the will is a holographic wheel. If the sufficient.
holographic will is uncontested, it is sufficient for the
petitioner to present at least one witness who knows Suppose the holographic will is contested there is an
the handwriting and signature of the testator and can oppositor who filed a written opposition against the
swear that the last will and testament is in the petition. What evidence to the petitioner present to
handwriting of that of the testator. So, if the last will prove the holographic will? He will have to present at
and testament is a holographic will, but it is least three witnesses who will testify that they are
uncontested, it is sufficient for the petitioner to present sufficiently familiar with the handwriting and signature
at least one witness who will testify that he knew very of the testator and that in their opinion, the holographic
well, the handwriting and signature of the testator. will is dated, written and signed by the testator himself.
Perhaps she can testify, Your Honor, I've been a If there are no witnesses who can testify, who are
personal secretary of the testator during the time that sufficiently familiar with the handwriting and signature
he executed the will and before the execution of the of the testator, the petitioner may present a
will, I'd been the secretary of the testator for 10 years handwriting expert.
already and during that time I was the secretary and I
saw documents containing his handwriting containing How will a handwriting expert testify? How can the
his signature so I'm so familiar with the handwriting handwriting expert testify that the holographic will is
and signature of the testator. dated, written and signed by the hand of the testator?
So, first what the petitioner will do is to produce at
So, that witness may have not seen that the testator least five sample documents containing handwritings
executes the will, usually there would be no eye and signatures of that the testator and he will present
witnesses in the execution of a holographic will it in court and show it to the oppositor and if the
because usually it is executed by person in the privacy oppositor admit that those documents contain the
of his room, he is alone and nobody is there to witness genuine handwriting and signatures of the testator.
the execution. So, that witness will testify that he is And then the expert witness will now compare the
familiar with the handwriting and signature of the handwriting in the holographic will and the handwriting
testator and when he is shown a copy of the and signature appearing in the sample documents.
holographic will, and by examining the handwriting Then, the expert will then testify. “Your Honor. I've
and signature in the holographic will, then he will been handwriting expert for so many years and
testify, since I'm so familiar with the handwriting and testified in so many cases. So, after comparing the
signature of the testator in my opinion, take note, signature and handwriting in the five sample
opinion, the handwriting and signature in this documents and the handwriting and signature in this
holographic will are those of us that the testator that's holographic will Your Honor, in my expert opinion
how he will testify because he did not see the behind the writing in the holographic will and the
execution of the holographic, he cannot say I was signature in the hand in the holographic will and the
there I saw the executor sign or write the holographic handwriting and signatures appearing in the sample
will what he will testify on is his opinion. Remember
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documents or made by one and the same person.” left a will and named an executor, but the executor is
That’s how a handwriting expert will testify. disqualified or incompetent or if he refuses the
appointment then the court has to appoint an
As I say mentioned earlier when a petition for administrator. So, in those instances, the court will
settlement of estate or allowance of a last will and have to be to appoint an administrator.
testament is filed the court will either appoint an
administrator or if somebody is named as an executor In the appointment of an administrator there is an
in a last will and testament, then the court will have to order of preference. What is that order of
appoint an executor. preference?
Q: Who are disqualified or who may not be Q: On what other grounds may the appointment of
appointed as executors or administrators? the administrator be opposed? On the ground that
A: There are certain disqualifications in the appoint the oppositor has the better right to be appointed as
as executor or administrator. Minors are disqualified administrator under the order of preference.
from being appointed as administrator or executor; a Suppose it is a creditor who seeks appointment as
person who is not a resident of the Philippines is administrator, a surviving spouse may oppose, the
disqualified from being appointed an executor or appointment of that creditor as administrator on the
administrator who else may not be appointed as ground that the surviving spouse, the oppositor has
executor or administrator; third, a person who, in the a better right to be appointed under the order of
opinion of the court is unfit to serve the duties of trust preference. So, on those two grounds, the
by reason of drunkenness, improvidence lack of in appointment of an administrator or maybe opposed.
lack of integrity and knowledge or by reason of his So, after the court has issued letters testamentary,
conviction for an offense involving moral turpitude which means the court has appointed an executor or
has issued letters of administration, which means the
So, if the testator named a person in his last will and court has appointed an administrator, then it is the
testament us to be the executor, that person named duty of the court to issue an order, giving notice to all
as executor class is still need to be appointed by the the creditors who have money claims against the
court although he is named by the testator himself in estate to file their claims with the probate court.
the last will and testament he needs to be appointed Probate court means the court before which the
by the court, does not mean that it is named by the settlement proceeding is pending within a period of
state or he will be the executor he will have to be not less than two years.
appointed by the court.
What happens if a creditor was a money claim and
So, suppose a person is named as executor by the that notice, by the way, notice to creditors should be
testator in his last will and testament and somebody published to give notice to the creditors, so if a
proposed the appointment of that person as executor creditor fails to file his claim within the period
on the ground on the ground is a minority, he is not a prescribed by the court, then his claim is deemed
resident of the Philippines or in the opinion of the court waived, it is lost forever. Unless the estate through
he is unfit to serve the duties of an executor or the administrator or executor files a case against him
administrator then the court may not appoint him now, then he may still set up as a counterclaim his claim
so that the appointment of that executor named in the against the estate that he failed to file with the
last will and testament maybe opposed. In the probate court in the settlement proceedings within
appointment of an administrator, by the way, when the period prescribed by the court.
should the court appoint an administrator? If the
decedent died intestate, then there could be no He may still set that up as counterclaim against the
executor name so the court will have to appoint an estate if the estate files a claim against him, that he
administrator. If the decedent left a will, but did not may set it up as a counterclaim. Otherwise, that claim
name a person as executor in his will, then the court is lost forever.
will have to appoint an administrator. If the decedent
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What money claims may be filed with the probate executor or by the administrator. Actually, the
court in the settlement proceedings? Because action the case against the estate shall be filed against
only those claims may be filed with the probate court the administrator or executor as a representative of
in the settlement proceedings, other creditors whose the estate so the administrator or executor will be the
claim whose claims are not money claims, they defendant for other claims other than money claims.
should file a separate action not file a claim with the
probate court in the settle settlement proceedings. Q: What will the court do if money claims have
Only money claims class may be filed with the been filed? What will the probate court do? A: The
probate court in the settlement for proceedings. But court will hear each of those money claims and
what are these money claims that should be filed decide, issue on order either approving the claim or
with the probate court in the settlement denying it but the court will hear each claim that is filed
proceedings within the period prescribed by the with the probate court, the administrator or executor
court otherwise, it's lost forever? First, claims for will be given the chance to oppose the money claim.
money arising from contract whether expressed or The aggrieved party may appeal that order of the court
implied, whether due, not due or contingent shall be denying or approving a claim. So, this is one instance
filed in the probate court in the settlement when multiple appeals may be filed in one case, while
proceedings within the period prescribed by the the case is pending, in the proper court, orders of the
court. court denying or approving a claim may already be
Otherwise, they will be lost forever. appealed. So, what will be the mode of appeal? If
multiple appeals are allowed in one case? What is the
What else? what other money claims may be filed proper mode of appeal?
in the probate court in the settlement proceeding? Record on appeal.
Expenses incurred due to the last illness of the
decedent or expenses incurred for the funeral of the After the court has to resolve all the money claims,
decedent, so, even in death, the decedent will pay for then what's the next step for the court? Will it be
his for the expenses of his funeral because the distribution of the properties to the heirs? NO. By
expenses for the funeral of the decedent will be the way, if one money claim is resolved ahead of the
charged against his estate his own properties. It will others, that money claim will not yet be paid, it will be
be charged against the estate as money claims set aside. After all the money claims against the
perhaps, the hospital where the decedent died of his estate have been resolved by the court, then the
last illness then the hospital now may file a claim for court will order the administrator to pay all those
the expenses incurred in the hospital for the last money claims. Most probably the estate will have no
illness of the decedent, those money claims may be cash, they will have real properties. How will the
filed with the probate court in the settlement administrator pay those money claims, they are all
proceedings. What else? Any judgment for money, money claims? So, the administrator has to sell the
so, if there is already a judgment for money against properties of the estate. First the personal properties
the decedent, then that judgment for money, maybe which are not assigned to anybody to a legatee in a
executed, but it should be filed with the probate court last will and testament. If they are not enough to pay
in the settlement proceedings as money claim, so the creditors then the administrator will have to sell
those money claims shall be filed with the probate real properties which are not assigned to a devisee
court in the settlement proceedings within the period and if they are not yet enough, the proceeds are not
prescribed by the court, otherwise, they will be enough to pay all the money claims, then the
deemed waived they could no longer be collected by administrator will have to sell personal properties that
the creditors. As I said earlier, if a creditor has a are assigned to legatees. Now, if yet they are not
claim other than a money claim, his claim may be enough, then the administrator will have to sell real
to recover property from the estate, he cannot file properties that are assigned to devisees. If all the
it in the probate court in the settlement properties of the state have been sold to pay the
proceedings, he has to file a separate action creditors then nothing is left.
against the estate represented by either the
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Q: But suppose the properties of the estate are If the debts that the decedent left are bigger than the
not enough to pay all the money claims against properties, there's nothing actually for the heirs to
the estate. How will the administrator or executor inherit. The heirs will inherit if there are properties left
pay the creditors if the properties of the estate by the decedent, but if the decedent left debts and the
are not enough to pay all the creditors, some properties that the decedent left is not even enough to
creditors may be paid, but not all creditors? pay his debts, then in effect, the decedent did not
leave any properties for his heirs.
A: First, the order of the preference of credit in the
Civil Code will have to be observed. There's a
preference of credit, some claims are preferred over CASES IN SETTLEMENT PROCEEDINGS
others. Now, there is a preference of credit in the
Civil Code, I think the first in the preference of credit in the case of Edgar San Luis vs. Felicidad San
are taxes and claims, debts owing to the Luis, the Supreme Court made a distinction between
government. So, they are the first so all of them must residence which is synonymous with domicile and
be paid first. So that's how the administrator will pay residents referring to the physical personal or actual
be the claims against the estate. First, the residence of a person.
administrator must observe the preference of credits.
Okay. So, for purposes of election cases, residence
So, the administrator will pay first all the claims of the
is synonymous with domicile. For purposes of election
government against the estate in terms of taxes,
cases, residence, if that word is used is residence,
whatever dues or whatever, so, let's assume that all
that's synonymous with domicile, what is domicile?
those claims in the first level in the preference of
Domicile is the legal, fixed, permanent residence to
credit have been paid, all the creditors belonging to
which when a person is absent, he intends to return.
the first level have been paid. If there are still
He has the intention of returning, okay let me repeat.
properties left then the administrator will pay those
So residence, which is synonymous with domicile as
claims belonging to the second level, if all of them
used in election cases, refers to the legal, fixed,
have been paid, then the administrator will go to the
permanent residence of a person to which when he is
third level. So, it may happen that the properties of
absent, he has the intention of returning. Okay did you
the estate are not enough to pay the creditors
get it, class? That's domicile or residence as
belonging or the claims belonging to one level. So,
understood in election cases. Okay, what about
there are still properties, but they are not enough to
residence for purposes of determining venue in
pay all the claims in one level, the higher levels have
settlement proceedings, what is that residence? How
all been paid already in full, but in one level, it may
do we understand the word residence? Residence for
happen that properties of the estate may not be
purposes of determining venue is the personal,
enough to pay all the claims. So, what should the
physical or actual residence of a person. It is the
administrator do? then the rules provide that the
personal, physical and actual residence of a person at
administrator should pay all the claims pro rata to the
any one time. So, that's how you should understand
amount of the claims, all of them will be paid but not
residence for purposes of determining venue. That's
in full but only prorated to their claims. If not, all
how you should understand residence for purposes of
claims belonging in one level can be paid, they will
determining venue in settlement of estate proceedings
be paid pro rata.
which is different from residents which is synonymous
with domicile, which is used in election cases which is
So, if there are properties left after all the claims have
the legal, fix and permanent residence to which when
been paid, after the expenses of the settlement have
a person is absent, he has the intention of returning.
been paid, the compensation for the administrator
Okay. Okay, so that was the doctrine in the case of
have been paid, if there are properties left then the
Edgar San Luis vs. Felicidad San Luis.
court will issue an order of distribution then whatever
properties are left will be distributed to the heirs if there Now, let's go to the case of Agtarap vs. Agtarap.
are still properties left. Now, in this case of Agtarap vs. Agtarap, the
Supreme Court ruled that the probate court meaning
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the court before which a settlement of estate ownership, if all the parties involved are heirs. Let us
proceeding is pending, whether testate or intestate say, the third party claimant is also one of the heirs,
has no jurisdiction to resolve the issue of ownership. but that he is claiming that he is the sole owner of the
Let me repeat. So according to the Supreme Court in property and therefore, that property should no longer
the case of Agtarap versus Agtarap the probate court, be included in the inventory. So the claimant is also an
meaning the court before which a settlement heir. So all the parties involved are heirs. And if all the
proceeding is pending, whether testate or intestate parties who are heirs agreed to submit to the probate
has no jurisdiction has no power to resolve the issue court, the resolution of the issue of ownership and the
of ownership. Okay, let us discuss that. Suppose in rights of third parties will not be prejudiced, then the
the course of the settlement proceedings, a third party probate court now may resolve conclusively the issue
claims ownership of a property that is included in the of ownership. Okay, so that is an exception to the
inventory of properties of the estate. You know that general rule. The general rule is that the probate court
the administrator or successor, after being appointed, has no power to resolve the issue or ownership. But if
makes an inventory of all the properties of the estate. all the parties involved are heirs, meaning even the
Now, sometimes it may happen that a property which claimant is an heir, but he is claiming sole ownership
was included in the inventory of the properties of the of the property, it does not want that the property be
estate of the decedent is the subject of a claim by a included in the inventory because he's claiming that
third party. So a third party is claiming ownership over he is the owner of that property. And since all the
a property, which is included in the inventory of parties are heirs, including the claimant, they may
properties of the estate. Now, the question is made agree to submit the issue of ownership to the probate
the probate court now resolved the issue of court and if the rights of third parties will not be
ownership, which party? Should that property be prejudiced, then the probate court may resolve the
included in the inventory of the properties of the estate issue of ownership now, conclusively. That's the
because it belonged to the dissident? Or should the exception to the general rule. Okay. Do you
court decide that property belongs to the third party understand class? Okay. Do you understand? So that
claimant, according to this case of Agtarap vs. was the doctrine laid down in the case of Agtarap vs.
Agtarap, the probate court has no power or has no Agtarap.
jurisdiction to resolve the issue of ownership as a
probate court. As a probate court, the court has no Now, what is now the extent of the power of the
power or jurisdiction to resolve the issue of ownership. probate court? What issues may a probate court
resolve? It cannot resolve the issue of ownership. So,
Now, the court may resolve the issue of ownership but what are the issues that as a probate court may now
only for purposes of determining whether to include resolve the probate court has the power and
the subject property in the inventory or to exclude it jurisdiction to resolve or to determine the status of
from the inventory. The resolution of the probate court, each of the heirs and whether the property in the
in respect to the issue of ownership is not conclusive. inventory is conjugal or exclusive. So, the probate
It is provisional, only to determine whether to include court as a probate court, has the jurisdiction to resolve
the property in the inventory or to exclude it. But if the the status of its heir. Is a person claiming to be an heir
resolution of the probate court is provisional, it's not be illegitimate or illegitimate child of the decedent? So
conclusive, the parties may still resolve the issue of the court, the probate court, has the power to resolve
ownership in a separate action, not in the settlement that issue. Is he really an illegitimate child of the
proceedings before the probate court, because the decedent so that if so, then he is entitled to a share in
probate court has no jurisdiction or power to resolve the estate. So the probate court has the power to
the issue of ownership, although it may resolve the resolve that issue.
issue of ownership, but only to determine whether the
property should be included in the inventory or not. But Now. It may also, the issue may also arise, whether
such resolution of the probate court is only provisional, or not a particular property is the sole property of the
not conclusive. Okay. Now, there is an exception to decedent or it is a conjugal property of the decedent
that rule. The probate court may resolve the issue of and his or her spouse. That issue may be resolved by
the probate court. Another example of when the
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probate court may resolve the status of an heir -- A administrator? who is a next of kin, does next of kin
woman who claims to be the legal wife of the refer to all the relatives of the decedent, the answer is
decedent, if there is opposition from other heirs, that no. Although it refers to relatives, next of kin does not
would now be an issue. Now, the question is made the refer to all relatives, it refers only to relatives, who,
court determine whether that woman was claiming to under the law are entitled to a share in the estate of
be the legal wife of the decedent and therefore, a legal the decedent. What law under the provisions of the
heir is really the legal wife of the decedent. So the Civil Code on succession, the legal heirs -- who are
probate court has the power to resolve whether that the legal heirs? So these are the persons referred to
woman claiming to be the legal wife of the decedent is as next of kin. Now, between one next to kin and
really the legal wife of the decision. Okay. You know, another next of kin, who has the better right to be
sometimes when a man dies, there's so many women appointed? Who has the better right to be appointed
claiming to be the legal wife of the man, especially if as administrator? It depends -- the one having the
the man is rich. So when he dies, there's so many greater share in the estate of the decedent has a
women claiming, “I’m the legal wife of that man so I'm better right to be appointed as administrator. Do you
entitled to a share -- a big share in his estate, I'm understand class? So, that is the main factor that the
entitled to one half of the conjugal properties.” Okay. court should consider in deciding whom to appoint as
administrator, okay. Okay.
Now, in the case of Suntay III vs. CojuangcoSuntay,
the Supreme Court discussed the basis for the So, if there are several persons applying to be
appointment of an administrator. What should the appointed as administrator, each one of them must
court consider in appointing an administrator? Several prove that he has a greater interest than the others to
persons may want to be appointed to be an be appointed as the administrator.
administrator -- several persons Now, what factor
should the court consider? Or what factors should the Okay, let's go to another case. Jose Lee vs. RTC of
court consider in deciding which of several persons to Quezon City. Do you have this in your list/syllabus?
appoint as administrator? According to the Supreme So when is the property of the decedent deemed
Court, it should be the interest, the extent of the transmitted to his heirs? So the Supreme Court
interest of the person in the estate, the bigger the answered that question in this case of Jose Lee vs.
interest of the person in the estate, the better right, he RTC of Quezon City. So when is the property or when
has to be appointed as administrator. So it is the are the properties of the decedent transmitted to his
“interest.” You remember when we discuss the order heirs? Is it when the court issues an order of
of preference in the appointment of an administrator? distribution to the heirs after the settlement
Who is, well, who belongs to the first level in the order proceedings? The answer is no. It is at the moment of
of preference? Who are the persons who belong to the death of the decedent, that his properties are
first level of preference in the appointment of transmitted to his heirs. No, at the moment of death -
administrator? The surviving spouse - so it's the upon death of the decedent, his properties are
surviving spouse. Why is it the surviving spouse? Why automatically/immediately transmitted to his heirs. So
does he or she belong to the first level in the order of you have to determine when at the moment of death,
preference? It's because the surviving spouse is not that's when he acquires ownership of his share in the
only an heir of the deceased spouse, he or she also estate of the decedent. That's why when a decedent
owns half of the conjugal property of the spouses dies, an heir may already sell his aliquot share --
which will be liquidated in the settlement proceedings aliquot meaning undetermined -- he may already sell.
of the deceased spouse. So remember? Where the Now, of course, the buyer would not know – the buyer
common properties of the spouses are to be settled in of that aliquot share in the estate would not know the
the settlement proceedings of the deceased spouse? exact area or if it is a parcel of land. But legally, upon
So that's why the surviving spouse is number one in the death of the decedent, an heir may already sell his
the list. Now, who is a next of kin, we recall, I undetermined or aliquot share in the estate. That was
mentioned that, who is a next of kin in the context of what was resolved in this case of Lee v. RTC of QC
the order of preference in the appointment of an because an heir sold his share even before there was
distribution. Okay, so the issue was whether that sale
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was valid. According to the Supreme Court, that sale administration and the allowance of the widow. Why
was valid because ownership of the properties are only widow? Why not allowance of the widower?
transmitted to the heirs at the moment of death of the Suppose the surviving spouse is the husband. Is he
decedent at the moment of death class, okay. Any entitled to allowance? Because what is mentioned
questions? here is the allowance of the widow. The widow refers
Estate of Hilario Ruiz v. Edmond Ruiz to the surviving wife. Do you agree? If the surviving
spouse is the husband – it is called a widower. But the
Now, during the pendency of the settlement allowance seems to pertain only to the widow. Unfair,
proceedings, who are entitled to an allowance? Who it's unfair to men. The law that we have are unfair to
among the heirs are entitled to an allowance men, there is gender discrimination plus against men.
according to the case of Estate of Hilario Ruiz vs. Do you agree, class, our laws are biased against men
Court of Appeals, the Supreme Court said that under and biased in favor of women.
Article 188 of the Civil Code, the decedent, legitimate
spouse, okay, so, the legitimate spouse of the Okay. Since you are not saying anything that means
decedent. His children -- the children of the decedent you agree? No, you agree. So take note class, before
-- are entitled to the allowance regardless of their age, any distribution could be ordered by the probate court,
take note class, the children of the decedent are all the debts must have been paid, all the expenses of
entitled to the allowance regardless of their age, civil administration must have been paid, the allowances
status or even if they have gainful employment. Okay. to the surviving spouse should have been paid. And
So take note of that. Not only the minor children are all others, before distribution could be ordered by the
entitled to the allowance during the pendency of the probate court.
settlement proceedings. First, the surviving spouse
and all the children have the discipline, regardless of In the case of Union Bank vs. Santibanez, the
their age, civil status -- they may be married, or Supreme Court discussed what should be proved by
regardless of their -- whether they are gainfully the petitioner for the court to allow a last will and
employed or not, even if they are gainfully employed, testament. We discussed that, if you remember. So, I
they have their own income, they are still entitled to remember discussing with you that what the petitioner
allowance during the pendency of the settlement should should prove is the extrinsic validity of the will,
proceeding. That's according to the Supreme Court. which pertains either to both two matters: first, is that
That's not according to me. If it’s according to me, I the testator had testamentary capacity at the time he
won't give anything to the surviving spouse. You executive the will, and [second] that the last will and
should take care of himself. He did not take care of me testament was executive in accordance with the
during my lifetime, why should she be entitled to allow formalities prescribed by law. Do you remember,
once during the pendency of the settlement of my class? Those two matters pertain to extrinsic validity.
estate? I would even disinherit her, given the chance. So, according to the Supreme Court in the case of
My wife, class, is not listening. That's why I'm saying Union Bank vs. Santibanez, before the last will and
that. She is in the other room. That's why I'm saying testament can transfer properties of the testator to his
that, but she's listening in. She has her own laptop, heirs, the last will and testament must be true and then
see, she might be listening. You'll see a name, which allowed and what is to be proved? It is the extrinsic
is unfamiliar to you. She might be that one. validity of the last will and testament, which pertains to
two matters: first, whether the testator had
Now, also, in this case of Estate of Hilario Ruiz vs. testamentary capacity when he executed the last will
Court of Appeals, the Supreme Court said before any and testament, and second that the last will and
distribution would be ordered by the court, all the testament was executed in accordance with the
debts -- including funeral charges, expenses of formalities prescribed by law. I hope you still
administration, allowance to the widow, and estate tax remember that class.
-- should be paid first. So, all the debts should be paid
before any distribution would be ordered by the In this same case of Union Bank vs. Santibanez, the
probate court. All the debts of the estate must be paid, Supreme Court also discussed the mandatory nature
including funeral charges, and the expenses of the of the filing of all money claims with the probate court
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in the settlement proceedings, you remember? We dead. How will he seek the foreclosure of the
discussed what claims should be filed with the probate mortgaged property? The decedent is already dead,
court in the settlement proceedings. Otherwise, they the mortgagor-debtor is already dead. So what is the
will be deemed lost forever. What are these claims? remedy of the mortgagee-creditor? He has different
All money claims arising from contract expressed or options. Actually three options, Class. The
implied, whether due, not due or contingent should be mortgagee-creditor, if he wants he can forego the
filed with the probate court in the settlement mortgaged property. If he wants, he can just file a
proceedings. What other money claims should be simple money claim with the probate court in the
filed? Expenses for the last funeral? I'm sorry. There's settlement proceedings. He will waive the mortgage,
no first funeral then last funeral. There's only one he will just file his money claim with the probate court
funeral for every person. So expenses for the funeral in the settlement proceedings. But if he does that, he
of the decedent and expenses for the last illness of the cannot and he fails in his money claim with the probate
decedent. Claims for expenses for the funeral and last court, he can no longer resort to the foreclosure of the
illness of the decedent shall be filed. These are of mortgage property. Because these options are
course, money claims — shall be filed with the probate alternative. The mortgagee-creditor has to choose
court in the settlement proceedings. And lastly, one. If he chooses one, he foregoes the other
judgment for money. So if there is already a judgment remedies. Okay. So that's one option of the creditor-
for money against the decedent when he died, that mortgagee, he forgets about the mortgage and then
judgment for money should be filed with the probate he files a simple money claim with the probate court in
court in the settlement proceedings. Okay, so those the settlement proceedings OR he can foreclose the
are the claims that should be filed with the probate mortgaged property against whom will file the action
court in the settlement proceedings. for foreclosure or mortgage? The mortgagor-debtor is
already dead. So if he chooses this option — to
What about actual claims to recover property from the foreclose the mortgage, against whom will he file the
decedent? Let us say, claims to recover a parcel of action for foreclosure of mortgage? Against the
land from the decedent, you cannot file that with the administrator or executor. Okay Class, is that clear?
probate court in the settlement proceedings because So, the mortgagee-creditor may opt to file an action
it is not a money claim, only money claims may be filed for foreclosure against the administrator or executor of
with the probate court in the settlement proceedings, the estate.
okay? So, what is the remedy of the creditor if his
claim is not a money claim, but to recover property, And if there is a deficiency, Class — after the sale of
like a parcel of land or even personal property, what is the mortgaged property, if there is a deficiency, the
his remedy? His remedy is to file a separate action mortgagee-creditor can file the deficiency as an
against the estate represented by the administrator or ordinary money claim with the probate court in the
the executor. So he has to file a separate action, settlement proceedings. Okay. So the
Class. He cannot file the claim to recover property with mortgageecreditor may foreclose on the mortgaged
the probate court in the settlement proceedings property against the administrator or executor of the
because only money claims may be filed with the estate, and if there is a deficiency, he can file the
probate court in deciding settlement proceedings. So deficiency with the probate court in the settlement
the filing of money claims with the probate court is proceedings. The third option for the mortgagee-
mandatory. Why is it mandatory? Because if the creditor is to actually extrajudicially foreclose the
creditor fails to file his claim with the probate court in mortgaged property. The risk in that option Class is
the settlement proceedings within the period that if there is a deficiency, the mortgagee-creditor can
prescribed by the court, then that money claim is lost no longer recover the deficiency. Okay. So those are
forever. Although nothing is forever, but that money the three options of a creditor-mortgagee against the
claim is lost forever. Only money claims are lost decedent — who is a deceased mortgagor-debtor.
forever. Okay, Class. So that was discussed in the case of
Heirs of Maglasang vs. MBC. What's MBC? Do you
Now, what is the remedy of a creditor-mortgagee if the
mortgagor-debtor is the decedent who is already
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know? Heirs of Maglasang vs. MBC? Manila but the person designated as executor is either
Banking Corporation. Okay. Okay, so Manila Banking incompetent or he refused the appointment for the
Corporation. designation or even if he's competent, he accepts the
appointment but if it does not give a bond as required,
The ruling in the case of Aranas vs. Mercado is the then the court has to appoint an administrator. So
same as that other case where the Supreme Court those are the instances when the probate court has to
discussed the power of the probate court to resolve appoint an administrator. Let me repeat. The first
the issue of ownership. We already discussed that the instance is when the decedent died intestate; the
probate court has no jurisdiction or power to resolve second instance is when the decedent left a will, but
the issue of ownership. So that was also discussed in did not designate any person as executor or the
the case of Aranas vs. Mercado, so we don't have to decedent left a will, has designated an executor, but
discuss this again. the person designated as executor is either
In the case of Silverio, Sr. Vs. Silverio, Jr., the incompetent — meaning is a minor or not a resident
Supreme Court said that the probate court may of the Philippines or in the opinion of the court, he is
declare any disposition of property under unfit to serve the duties of an administrator, okay? Or
administration by the administrator or executor if the even if the person designated as executor is
same was effected without the authority of the probate competent, he accepted the trust but if he does not
court. So meaning an administrator or executor give a bond, then the probate court has to appoint an
cannot dispose of any property belonging to the administrator. That's the ruling in the case of Spouses
estate. So if the administrator disposes of a property Butiong vs. Plazo. So we are done with the cases
belonging to the estate, without the authority of the regarding settlement of estate. Any questions, Class?
probate court, the probate court may declare that
disposition null and void. Okay, that was the ruling in
the case of Silverio, Sr. vs. Silverio, Jr. RULE 91: ESCHEATS
And the probate court may declare the disposition null What is Escheat?
and void at any time during the pendency of the - Escheat is what you do when you take an
settlement proceedings. Only during that time, after exam? Escheat. Do you do that class? You
the termination of the settlement proceedings, the know, there's so many complaints from
aggrieved party may have to file a separate action to professors. We have a group chat - the
have the disposition declared null and void, but during professors have a group chat and we
the pendency of the settlement proceedings, if there exchange notes regarding our experiences.
is any unauthorized disposition of a property And I read a lot of complaints from professors
belonging to the estate, the probate court can declare that when students are calling for recitation,
it in the same proceedings — declare it null and void. they read their answer. That's a common
complaint among professors. So I thought I
In the case of Spouses Butiong v. Plazo, the never posted a complaint myself. I have no
Supreme Court discussed the instances when the complaints. No, because I see to it that when
court has to appoint an administrator. I formulate my questions for recitation, even if
Of course, the first instance is when the decedent died you look at your notes, you won’t find your
intestate. So an executor could not not have been answer there so that solves the problem.
designated because the decedent died intestate or left Okay. Although you may be able to answer
no will. Then the probate court has to appoint an some of my questions by looking at your
administrator or even if the decedent left a will, but if notes, but you cannot answer all the
he did not designate any person in his last will and questions. Okay, so let's discuss Escheat.
testament as executor, then the probate court has to Now what is the literal meaning of the word Escheat?
appoint an administrator. Okay? The third instance is
when the decedent left a last will and testament, has - As a noun, it means a reversal, a returning of
designated an executor in his last will and testament, property to where the property previously
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belonged. So, that is the literal meaning of (Exclusive Original Jurisdiction). (Par. 1, Sec.
Escheat, the concept of Escheat originated 33 of B.P. 129)
during the Middle Ages — during the feudal - If the gross value of the estate exceeds
times when the king in a kingdom distributes P300,000 outside Metro Manila or exceeds
vast tracts of land to his Lords. So, the Lords P400,000 within Metro Manila, it should be
in turn, distributes parcels of land to his filed with the RTC (Exclusive Original
vassals, a Lord distributes parcels of land to Jurisdiction). (Par. 4, Sec. 19 of B.P. 129)
his vassals. So, originally these lands belong
in the kingdom — belong to the king. The How do you determine the proper venue in
King, to maintain the loyalty of the feudal escheat proceedings?
lords, the king distributes vast tracts of lands - In the proper court where the decedent was a
to these feudal lords who in turn distribute resident at the time of his death.
small parcels of lands to his vassals. So, - If the decedent was a resident of the
when a vassal dies without leaving any heir, Philippines at the time of his death, the
then the the properties — the lands of the escheat proceedings of his estate shall be
vassal who died without any heir, done in the proper court of the place where he
returns/reverses to the feudal lord who gave was resident at the time of his death.
him that land. So, that is the concept of
- If the decedent was not a resident of the
Escheat, Class. At present, since we don't
Philippines at the time of his death, the
have kings or feudal lords, the principle is that
escheat proceedings of his estate shall be
all lands belong to the State. So, if a person
done in the proper court of the place where
dies without leaving any heir or any person
the properties or any portion thereof were
entitled to his estate, then all the properties of
located or situated.
the person will go back to the State to which
it originally belonged, at least that's the *In the case of escheat proceedings, there is only one
concept of Escheat. petition that may be filed. There is only one petitioner.
The exclusionary rule is not applicable.
So, in short, an escheat proceeding simply means a
settlement of estate proceedings where the Republic By whom may a petition for escheat be filed?
of the Philippines is the sole heir. A settlement
proceeding is a settlement of estate proceeding but - By the Republic of the Philippines,
the Republic of the Philippines is the sole heir represented by the Office of the Solicitor
because the decedent left no heirs. So, the sole heir General or his representative.
of the decedent is the Republic of the Philippines.
What should the court do upon the filing of a
So, you should understand an Escheat proceeding is petition for escheat?
the same as a settlement proceeding. Okay. So,
knowing that an Escheat proceeding is similar to or - If the petition is sufficient in form and
the same as a settlement proceeding — only that in substance, the Court shall issue an order
an Escheat proceeding, the Republic of the fixing the time and date of the hearing of the
Philippines is the sole heir. petition and the order shall be directed to the
petitioner to cause the publication before the
Now, what court exercises jurisdiction over a
hearing at least once a week for six (6)
Petition for Escheat?
successive weeks in some newspaper of
- It depends on the gross value of the estate general circulation published in the province.
(RTC/MTC).
When should the court fix the hearing of the
- If the gross value of the estate does not
petition?
exceed P300,000 outside Metro Manila or
does not exceed P400,000 within Metro - Not more than 6 months from the entry of the
Manila, it should be filed with the MTC order.
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What matters should the petitioner (Rep. of the CASES ON RULES 91 AND 92:
PH) prove so that the court will grant the petition?
Rule 91: Escheat
- The petitioner shall prove all the requisites
that: ALVARICO v. SOLA
In this case the Supreme Court just said that all
1. The decedent died intestate. actions for escheats shall be filed or may be filed only
2. The decedent left personal or real by the Republic of the Philippines, represented by the
properties. Solicitor General; and there is a basis in law for that,
3. The decedent left no heirs or any person the Supreme Court cite that section 101 of the public
who is entitled to his estate (creditors). plan Act, which provides that all actions for escheats
or reversion to the government of lands of the public
Suppose all the requisites were proven, for whose domain or improvements, thereon, shall be instituted
benefit these personal or real properties be given? by the Solicitor General acting in the name of the
Republic of the Philippines. So, that's the basis in law
- Personal Property of the rule that an action for escheats or a petition for
A. if living in the Philippines - an escheat; may be filed only by the Republic of the
city/municipality where he last Philippines represented by the Solicitor General. A
resided; private person cannot file a petition or escape for
B. if not living in the Philippines - obvious reasons that the action is for properties left by
city/municipality where the properties a decedent to guide without heirs to be reversed to
may be found. return to a government. So why should a private
Real Property - whether living in the Philippines or not, person file an action for escheat? So, and there is, as
it shall be given to the city/municipality where the I said, a basis in law for that which is section 101 of
properties are situated. the public land act.
For what purpose will these properties be used? Maltos v Heirs of Eusebio Borromeo
Now, in this case, the Supreme Court cited that one
- It will be used for public schools, public instance when an action for escheat is proper. in this
charitable institutions and centers in the said case, a land covered by a free patent was sold during
municipalities or cities the five-year prohibitory period under the public land
What is the remedy of an heir or a person who is act. According to the Supreme Court, in a sale of a
entitled to a share in estate whether as an heir who free patent within a five-year period, where the sale of
was excluded from the estate or creditor if an a land covered by a free patent is prohibited, any sale
estate was escheated in favor of the Republic of occurring within that five year period is null and void.
the Philippines? Within what period? So, what is the remedy? If a land covered by a free
patent is sold within that five-year period, where any
- He may file his claim in the court before which disposition of the land is prohibited under the law, the
the escheat proceeding was tried and remedies for the government through the Solicitor
decided within five (5) years from the date of General to file a petition for petition of escheats. So
the judgment of the escheat proceeding. this is one instance when an action for escheats filed
by the Republic of the Philippines is proper to recover
Other actions for escheat? a parcel of land covered by a free patent, sold within
- Section 5, Rule 91. If there is transfer of the prohibited five year period.
property seized in violation of the Constitution
(an alien may not own a real property in the Rule 92: Guardianship
Philippines) or any statute. Example, Parcel
of land sold to an Australian Citizen. CANIZA v. COURT OF APPEALS
The Supreme Court discuss the different duties and
powers of a guardian. So according to the Supreme
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Court, the Guardian over the person and estate of the one person called a guardian acts for another, called
ward are appointed by a competent court has full a ward, whom the law regards as incapable of
authority to take possession of ward’s the property managing his own affairs, or taking care of himself. A
and to perform all other acts necessary for the guardianship is designed to further care of the ward’s
management of such estate. It is also the duty of the well being Not the well being of The Guardian. so
guardian to take care of the ward’s person and to guardianship is for the benefit of the ward, not for the
attend to his or her physical as well as spiritual needs benefit of the guardian. Okay, let's so that's how the
to assure the ward to assure the wards well-being. A Supreme Court define or describe the nature of the
guardian also has the right to the custody of the ward; relationship between a guardian and his or her ward.
in preference even to the relatives and friends of the
ward. So, the guardian has the right to the custody of ABAD v. BIAZON
the ward even in preference of the relatives of the Supreme Court said that the relationship between a
ward or the friends of the ward. guardian and a ward is necessarily terminated by the
death of either of them. Of course, when, when the
NERI v. HEIRS OF HACHI USOP UY according to the Guardian dies, the guardianship is terminated. When
Supreme Court, a sale entered into by the father of a the work dies, the guardianship is terminated. Here,
minor acting as a legal guardian in behalf of this minor there was a petition for review on certiorari filed with
child without the proper authority of the court is the Supreme Court assailing the appointment of The
unenforceable in accordance with articles 1317 and Guardian. So there was a petition for review on
1403 of the Civil Code. So according to the Supreme certiorari, under rule 45, filed with the Supreme Court,
Court, a sale entered into by the father acting as a assailing the appointment of The Guardian and then
legal guardian, in behalf of his minor child, without the the Guardian died during the pendency of that appeal
proper authority of a competent court is unenforceable before the Supreme Court. So what is the effect of
under the provisions of the Civil Code. Unless, such the death of the guardian to the pending appeal?
sale is ratified by the minor when he reached the age We the supreme court where the appointment of The
of majority. Guardian is being a sale. So according to the
Supreme Court, since the relationship between a
Okay. So take note, a legal guardian, is one who guardian and a ward is terminated by the death of
becomes a guardian, by operation of law, a parent of either of them, the pending appeal is rendered moot
a parent of a minor, by being a parent, automatically and academic. there's no need to proceed with the
or by operation of law becomes a guardian of the appeal because there's no relationship anymore of
minor. He does not need any judicial appointment. So guardianship between the Guardian who died and the
you need not or she may not be appointed by the ward, there is no more guardianship. The appeal has
court. But if the parent is the legal guardian of this become moot and academic.
minor child, or a her minor child would want to sell any
property belonging to the minor he needs judicial
approval. So what should he do? He should file a RULES 92-97: GUARDIANS AND GUARDIANSHIP
petition for the petition with the court, to ask There are two kinds of Guardians. What are these
permission from the court to sell the property of the kinds of Guardians?
ward, otherwise such sale entered into by his parents 1. Legal Guardians - by operation of law
on behalf of his minor child without judicial authority is a. Biological Parents of a
unenforceable unless it is ratified by the minority when minor/incompetent person
he reaches the age of majority. 2. Judicial Guardians - by appointment of a
competent court
NILO OROPESA v. OROPESA a. Guardian ad litem - a person
In this case, the Supreme Court just define the nature appointed by the court to represent a
of the relationship between a guardian and a ward. minor or a competent person who is
According to the Supreme Court, guardianship is a a party in a pending case before the
trust relation of the most sacred character in which court.
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What rules govern petitions for guardianship? Therefore, a guardian may be appointed
regardless of their mental capacity or ability,
- It depends. For incompetent persons, Rules to manage their properties.
92-97 of the Rules of Court will govern. If over
minors, Administrative Circular 03-02-05-SC Why are hospitalized lepers considered
governs which took effect on May 1, 2003. incompent? Lepers who are not hospitalized are
not considered incompetents.
What court exercises jurisdiction over petitions of
guardianship? - Hospitalized Lepers cannot be confined in an
ordinary hospital. There is a leper colony in
- It depends. For Petition for guardianship of Palawan. They are hospitalized in that place.
incompetent persons are cognizable by the They are confined to one place that is why a
regional trial court - being incapable of hospitalized leper — being confined cannot
pecuniary estimation (Par. 1 of Sec. 19, B.P. manage their properties. That is why a
Blg. 129). For Petition for guardianship of guardian may be appointed to manage their
minors, family court. properties while they are hospitalized.
What is the proper venue for petitions of Who are prodigals?
guardianship of incompetent persons?
- A person who spends his money recklessly
- The Regional Trial Court of the place where and irresponsibly so that he can’t manage his
the incompetent person resides. properties that’s why he needs a guardian to
What court exercises exclusive and original manage his properties for him.
jurisdiction over petitions for guardianship over Who may file for a petition of guardianship of an
minors? incompetent person?
- Family court (Sec. 5 par. B of Family Court - Any relative, friend or any other person may
Act of 1997 or Republic Act No. 8369). file in behalf of the incompetent person?
For purposes of guardianship, who are May the petition of guardianship of an
considered incompetent persons? incompetent person be opposed?
1. Person suffering the penalty of - Yes, on the following grounds (Sec. 4, Rule
civil interdiction 93 of the Rules of Court):
2. Hospitalized Lepers
3. Prodigals 1. Competency of the alleged incompetent;
4. Deaf and mute who are unable to read and 2. Unsuitability of the person seeking to be
write appointed as guardian.
5. Persons of unsound mind
6. Who are of sound mind but for reason of age,
Order of preference in the appointment of a
illness, weak mind, and other similar causes
guardian of a minor:
are unable to/cannot or without outside aid
cannot take care of themselves or manage 1. Surviving grandparent (in case there are
their properties, thereby becoming easy prey several, the court must select taking into
to deceit or exploitation. account all relevant considerations);
2. Oldest sibling (brothers or sisters over 21
years old unless disqualified)
What is it that a person suffering the penalty of
civil interdiction? 3. Actual custodian of the minor over 21 years
old unless unfit or disqualified
- They cannot dispose of their properties if they 4. Any other person in the sound discretion of
are suffering the penalty of civil interdiction. the court would serve the best interest of the
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minor - Trust is a fiduciary relationship, that is created

when a person calls the trustor transfers the
legal title and possession of his property to
PETITION FOR GUARDIANSHIP OF MINORS: another person or the trustee for the benefit
On what ground may the petition for guardianship of a third party called the beneficiary,
of minors be filed?
What is a fiduciary relationship?
1. Death, continued absence or incapacity of - Relationship based on trust. Why? because a
both parents of the minor; person called the trustor transfers the legal
2. Suspension, deprivation or termination of title and possession of his property to another
parental authority of parents; person or the trustee. For benefit of a third
3. Remarriage of the surviving parent if the latter party called the beneficiary.
is found to be unsuitable to exercise parental
authority (What is the ground? The So, a trust always involves three parties; who are
remarriage or the fact of unsuitability? Ground these parties?
has no relation to remarriage, it is the fact of - The trustor which creates the trust. The
unsuitability. Even if parent did not remarry trustee, the person on whom the trustor
but still found to be unsuitable, then the entrusts his property for the benefit of a 3rd
petition may be allowed) party called the beneficiary.
4. When the best interest of the minor so
requires How many kinds of trusts are there?
- there are two kinds: implied and express
Under the general powers of a guardian, may a

What is implied trust?
guardian sell or dispose of real property of his
- is one that is created by law or established by
ward, whether an incompetent person or a minor?
operation of law. When certain conditions are
- Under the general powers of the guardian, no. present, then a trust is created according to
the provisions of law.
However, the guardian may sell provided that he files
a petition with the court seeking permission to sell a What are these provisions of law under which an
specific property. On what ground/reason? If the implied trust may be established?
property or income of the ward is insufficient for his - It is governed by 1443 - 1446 of the Civil
maintenance and his family Code.
On what grounds may the
petition for guardianship of a minor be How is an express trust established?
opposed? - a trust relationship is not an agreement. It is a
unilateral act. An expressed trust is
1. That the alleged minor is no longer a minor; established by a unilateral act of a person.
2. The unsuitability of the person seeking to be Unlike an agreement, it's always an
appointed as guardian; agreement is always the meeting of the minds
3. If there is an order of preference of of at least two persons, but a trust relationship
appointment of guardian (i.e. grandparents is established by the unilateral act of one
vs. oldest siblings) person called the trustor. So an expressed
trust is one that is created or established by
the intention of trustor.
RULE 98: TRUSTEES - So when the trustor transfers the legal title
and possession of his property to another
What is a trust? Define a Trust. called the trustee, for the benefit of a third
party, a trust relationship is created. Of
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course, the trustee has to accept the has to name the beneficiary. So that's how the
appointment. But it is the intention, it is the act trustor will established a trust by transferring
of the trustor of transferring the legal title the the legal title and possession of his property
legal title or possession of his property to the to a trustee, and then naming a beneficiary.
trustee for the benefit of a beneficiary which - But if that that's how it is done, take note,
creates the trust so it's not an agreement there's no need for any special proceeding. If
between two parties. It's a unit the trustor names or designates a specific
unilateral act person as his trustee, and transfers to him the
legal title and possession of his property, then
- So, an expressed trust is one that is there's no need for any special proceeding,
established by a unilateral act of a person because although it may not be clear, under
called a trustor when he transfers the legal Rule 98. The special proceeding here is for
title and possession of his property to the the appointment of the trustee. Although it's
trustee the for the benefit of a beneficiary. not clear, based on the provisions of rule 98,
expressed trusts are governed by articles it is not clear that the special proceeding here
1447- 1457. is for the appointment, a petition for the
appointment of a trustee, that's the special
There's no need for a special proceeding with regard proceeding that we are discussing under Rule
to the creation or establishment of implied trust 98. It's not clear, you won't know that easily
because they are established by operation of law, and immediately by just reading the
there's no need for a special proceeding. So, we are provisions of rule 90.
not interested in implied trust we are interested only - that is the special proceeding, the filing of a
with express interest. So, how is an express trust is petition or the appointment of a trustee, that's
established or created by a trustor? why the title is trustees. But the problem is, if
- Expressed trust is established either in a last the trustor names or designates a trustee,
will and testament or in any other written then that trustee need not be appointed by the
instrument. So, when a testator executes his court. He is the trustee without the need of
last will and testament, he may create a trust judicial appointment. Okay, did not have that
in his last will. So an expressed trust may be class, there's no there's no need for special
created or established by the testator in his proceedings for the appointment of a trustee
last will and testament, or the trustor may because when the trustor appoints a trustee
establish in a written instrument. in a written instrument or in his last will and
- How would he establish a trust? By testament, then there's no need for the court
transferring in that last will and testament or to appoint a trustee, and there's no need for a
in the written instrument, the title and the legal petition for the appointment of a trustee to be
title and possession of this property to filed.
another person to the trustee for the benefit of
a third party called the beneficiary. That's how In what instances is there a need to file a petition for
an express trust is established in a last will the appointment of a trustee in a competent court
and testament or in any other written because as I said, if a trustee is appointed by the court
instrument. So, the trustor will establish he or in a written instrument, there's no need for the court
establish a trust, must transfer the legal title to appoint a trustee for the filing of a petition or trustee
or possession and possession of this property - 1. when the trustor for some reason, fails to
to a trustee. So necessarily the trustor as to designate a trustee in a last will and testament
designate or appoint a trustee, when he where he establishes a trust
establishes a trust, either in his last will and
testament, or in a written instrument, he has - NOTE: the trust must be clearly and positively
to designate a trustee. And then he created established by the trustor. there
should be a clear express intention on the part
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of the trustor to create a trust, it should be trustee. But if the testator himself, named a
clear. So if the testator clearly established a trustee in his last will and testament, then
trust in his last will and testament, but did not there is no need for the court to appoint a
name anybody as trustee. it's not necessarily trustee
that the administrator is the trustee of a trust.
So the testator has to name another person, What court has jurisdiction over a petition for the
a specific person as trustee. So if the testator appointment of a trustee?
fails to name a person, any person as trustee, - RTC because it is incapable of pecuniary
but he clearly established a trust in his last will estimation, because you cannot assign a
and testament, then there's a need for the monetary value on the petition.
court to appoint a trustee. - BASIS: [paragraph one, section 19 129]
which provides that the Regional Trial Court
- 2. let us say, the testator clearly established a shall exercise exclusive original jurisdiction in
trust in his last will and testament, and he all cases where the subject in litigation is
named somebody as a trustee. But that incapable of pecuniary estimation,
person name as trustee of the trust,
establishing the last will and testament Venue. where do you file the petition for the
declined the appointment, or even if he appointment of a trustee?
accepted the appointment, he resigned or he - there's no provision under Rule 98 regarding
died or otherwise, he's terminated as a proper venue,
trustee for some reason, Then there would - Before you can determine the proper venue
now need for the court to appoint a trustee, so or a petition for the appointment of a trustee
the testator may make somebody, as trustee you have to identify whether a petition for the
in his last will and testament, but that trustee appointment of a trustee is a real action or a
declined the appointment or after accepting personal action.
the appointment he resigned, or he accepted - REAL ACTION is one that affects title two, or
the appointment, But later on, he died off possession of your property. a real action
COVID19. So there would now be a need for shall be commenced and tries in the proper
the appointment of a trustee Or if a person record of the place where the real property
was named as trustee, he accepted the involved or a portion thereof off is situated.
appointment and was later on, terminated. - PERSONAL ACTION is any action not a real
Let's say he became incapacitated, so he can action. It shall be commenced and tried in the
no longer perform the duties of a trustee. So proper court of the place where the plaintiffs
there would now be a need for the court to reside, or where the defendant resides at the
appoint a trustee. election of replay.
- So before you will know the proper venue, you
But take note if the testator himself or the should first ask the question. Was the trust
trustor himself provided for a way of that was created, affect Real Action or
substituting the trustee in case he declines personal action? Then apply the rules.
the appointment or in case he resigns or dies
or is terminated, if the testator himself - NOTE: the petition for a trustee is an action
provided for a way for the substitution, then personam hence, there is no a specific
that should govern. And there would be no defendant made
need for a court to appoint a trustee.
What about the beneficiary should the beneficiary
NOTE: Rule 98 is a special proceeding for a accept the benefit expressly? Remember, there
petition for the appointment of a trustee. Even should always be three parties involved in interest.
in the case of an executor or administrator, Without one, the trust will not exist. So, the question is
they have to be appointed by the court as
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the express consent of the beneficiary necessary for parents are legally married. A relationship
the existence of the trust? between his married parents and a child
- it is not essential because the consent of the - what adoption seeks to create between two
beneficiary is presumed. So even if the persons a relationship similar to that of
beneficiary does not give his expressed legitimate filiation not just filiation but
consent, his consent is presumed by law. It's legitimacy.
only when he expressly rejects the benefit - Filiation which is the relationship between a
that the trust will came. If the beneficiary does child and his married parents
not say anything, then his consent is - what is sought to be created by adoption is
presumed. Express consent is not necessary. not filiation alone, but legitimate filiation
It's not needed, because it's always
presumed that the beneficiary accepts the What laws govern adoption in the Philippines?
trust even if it does not say anything. - Domestic Adoption Act [RA 8552]
- ICAD Act [RA 8043]
RULE 99: ADOPTION
What rule or rules govern adoption in the Philippines
What is what is adoption? both domestic adoption and inter country adoption
- adoption is a juridical act which creates what rules or set of rules govern adoption because
between two persons a relationship similar to rule 100 has been repealed
that which results from legitimate filiation - AM-02-06-02-SC [August to 22, 2002]
- it creates a relationship between two persons.
Meaning, that relationship does not yet exist, What court exercises exclusive original jurisdiction
because why create a relationship if it already over petitions for adoption under Republic Act 8552.
exists. So, what is supposed to be create that - The court with exercises original and
does not yet exist between a relationship exclusive jurisdiction is the family court under
between two person. So, what does adoption Paragraph C, Section 5, Family Court Act of
do? it creates a relationship between two 1997, RA 8369; it is provided that the family
persons similar to that, which results from courts shall exercise exclusive original
legitimate affiliation. So, at the start, there is jurisdiction over petitions for adoption of
no relationship similar to legitimate filiation children under RA 8552. how do you
between two persons. determine proper venue of petitions for
- So adoption, which is a juridical act, creates adoption of children?
that kind of relationship, which is similar to - the proper venue for a petition for adoption
that which results from legitimate creation. under RA 8552 is the family court where the
place where the adoptive parents reside [
What is legitimate filiation? Sec. 6, AM 02-06-02- SC].
- There is a legitimate filiation when the
relationship between a father or between a who may adopt under RA 8552?
parent and the son or daughter, has no legal - Under the domestic adoption act the following
impediments are persons who can adopt legally:
Filipino citizen
Is there a filiation between a biological parent, whether Alien
a father or a mother and his or her child?
- Yes, there is filiation by that fact alone What qualifications should a Filipino citizen have to
adopt under domestic adoption?
When is there legitimate filiation? - the qualifications to have a Filipino citizen for
- There is a legitimate relation between a him for him or her to be able to adopt under
parent between parents and a child when the the domestic adoption are the following:
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i. He must be of legal age; the parent, the spouse who is the

ii. he must be a good moral character; parent of the illegitimate child, that
iii. he must be of good moral character; child will acquire all the rights of
iv. has not been committed a crime legitimate child as far as the parents
involving moral turpitude; who adopts him is concerned; he will
v. the Filipino citizen must be at least acquire all the rights of a legitimate
16 years older. child including succession and rights.
vi. the adopters must be in the position Then that child now if adopted by the
to support and care for the child parent, will not compete with the
within the means of the family; other spouse, as far as successional
vii. must have full civil capacity rights are concerned.
viii. must be in possession of the school
civil capacity and legal rights You know that the share of the
surviving spouse in the estate of the
Why is it a requirement or a qualification that a deceased, the spouse is equal to the
Filipino citizen wants to adopt under domestic share of one child of that illegitimate
adoption? be at least 16 years older than this? child and if one illegitimate child is
- Adoption creates legitimate filiation. To adopted by the parent, that child will
approximate legitimate filiation. acquire all the rights of illegitimate
child including succession of rights,
Now what qualifications should an alien have to adopt and he will be competing with the
under the domestic adoption? other spouse. So that gives the other
- the alien must have the qualifications required spouse a reason not to give consent
by law of Filipino citizens to the adoption. And if he does that,
he or she does have a consent, then
Why you would that requirement that spouses should the adoption will not proceed.
adopt jointly approximate legitimate a filiation, which Another thing the feelings of the other
we said earlier, is the relationship of a child and his spouse know one spouse has a child
married parents. outside the marriage wants to
- To approximate legitimate filiation because legitimize the status of that child to
there is no legitimate filiation between one that of legitimacy and give him all the
parent child, there should always be two rights of illegitimate child so that the
parents. So if one spouse will adopt then that other spouse may not want that.
will not approximate legitimate filiation
READ: who may be may be adopted under the
What are those instances with the spouses are not domestic adoption Act. The rules says that minors in
required to adopt jointly? the custody of the Department of Social Welfare and
i. when the adopters wants to adopt Development if declared by the DSW D, as legally
the legitimate child of his or her available for adoption, the legitimate child of one
spouse. Because there is already a spouse or the other, or illegitimate child of one spouse
legitimate filiation for that spouse by the other spouse to elevate the status of his or her
with regards to that child, so there is illegitimate child,
no need for jointly adopting him or
her May a person of legal age be adopted? When?
ii. when the adopter sir seeks to adopt - As a rule, only minors can be adopted. a
his or her illegitimate child. In fact, person of legal age cannot be adopted as a
the adoption cannot proceed without rule. Only by way of an exception may a
the consent of the other spouse. Why person of legal age be adopted. not as a
is that required? Once adopted by general rule, but that's an exception. the only
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instance when a person of legal age may be What is that? who may be adopted under the inter
adopted is when that person has been country adoption
consistently treated and considered by the - only those only those minors who are
adopting parents as their own child since he qualified to be adopted under the domestic
or she was a minor. okay. So a person of legal adoption act, but for one reason or another
age regardless of his marital status, he may cannot be adopted. So, it should be shown
already be married, may be adopted. If he, first before a child of Filipino child may be
been consistently treated, and considered by adopted under ICAD, it must be shown that
the adopting parents, as their own child, since that child that child for some reason cannot be
his or her minority, provided that that adopted under the domestic adoption.
condition is true that he has been persistently
treated and considered by the adapting What court exercises jurisdiction over petitions for
parents as their own child since his or her adoption ICAD?
minority since she or he was a minor. - may be filed either with the family court of the
place where the child is found or where the
If the adoptee is of legal age, because under the family child decides or directly with the inter country
courts act of 1997, the family court shall exercise adoption board. If the petition for adoption
exclusive regional jurisdiction over petitions or under the inter country adoption act is filed
adoption of children, meaning minors, but here the with a family court, it will not decide the case.
adoptee is of legal age. So what court exercises Family Court will just determine whether the
jurisdiction over application for adoption of an adoptee petition is sufficient in form and substance
who is of legal age? once it determines that the petition is
- RTC, are incapable of pecuniary estimation; sufficient in form and substance the Family
Section 19, Par 1 BP 129 Court will refer to case to the inter country
adoption board. So, it's the inter country
Who may adopt under ICAD? adoption board that exercises jurisdiction
- Aliens or Filipinos residing abroad over petitions for adoption under the inter
A Filipino citizen who is a green card holder is country adoption. It’s not these Family Court.
not a permanent residence in the Philippines It's an administrative proceeding, it's not a
anymore, he is a permanent resident of the judicial proceeding, the adoption under the
United States. So, that Filipino citizen under inter country adoption act.
the domestic adoption must be made under
the inter country adoption act, because NOTE: there’s no more special proceedings for
although he simply because he said he is no constitution of family homes, it is done by operation of
longer a permanent resident of the law.
Philippines.
voluntary dissolution – no more special proceeding in
What about an alien? court, it is already transferred to SEC
- an alien was never resided in the Philippines
hence he must adopt base on ICAD, because Judicial Recognition of Natural Child – no more
if he wants to adopt under the domestic special proceedings
adoption, then he should reside in the
Philippines for at least three continuous years
before departure upon filing of the petition. If
he does not want to do that, if the alien does RULE 102: HABEAS CORPUS
not want to do that, then he can adopt under
the intercountry adoption act. There's a Habeas corpus is a Latin phrase, which literally means
problem only to that there's a catch, to have or to produce the body. Corpus means body,
as in Corpus Christi, Body of Christ. Knowing what
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habeas corpus literally means what then is a writ of necessary. As long as there is restraint, that effectively
habeas corpus. A writ of habeas corpus is an order frustrates a person's freedom of action. A person may
issued by a competent court, directing a person not be behind bars, or shackled with change but if he
detaining or having custody of another to present is being effectively deprived of his liberty, by some
before the court at a given time, and date, the person threat or bodily harm, then he may apply for the writ of
he is detaining, and to explain to the court, the legal habeas corpus. Since actual and effective restraint is
basis for the detention or custody. This definition a prerequisite for the issuance of the writ, a person
informs us that when a court issues the writ of habeas who may have been unlawfully detained, but was later
corpus, it does not determine yet the legality or granted bail and accorded, temporary liberty or
illegality of a person's detention. By issuing the writ, otherwise ordered released by the court may no
the court simply orders the person detaining another longer avail himself of the writ of habeas corpus. And
to appear before it together with the person he is if there is alwritsy a pending habeas corpus case, then
detaining and to explain to the court, the legal basis of such proceeding should be dismissed.
detention.
By whom may the writ of habeas corpus be issued? In
It is only after this confrontation between the court, the other words, where may the petition for the writ of
person detaining another and the person detained, habeas corpus be filed Sec 2 of rule 102 ordains, that
that the court will conduct a hearing to determine the the petition may be filed with the (1) Regional Trial
legality or illegality of the detention. If the court finds Court or a judge thereof; (2) It may be filed with the
that detention lacks legal bases, it will order the Court of Appeals or any member thereof and (3) It may
person's release. If the detention is with legal bases, also be filed with the Supreme Court or any member
the court will allow the person's continued detention. thereof. If the petition pertains to the custody of a
minor, it shall be filed with the Family Court. This is
On what grounds may a person properly apply for the provided for by paragraph (B) Sec 5 RA 8369, also
writ of habeas corpus? known as the Family Courts Act of 1997. Based on
Sec 1, Rule 102 gives us two grounds. First, when a existing jurisprudence, however, this law has not
person is illegally detained, or otherwise deprived of deprived the Court of Appeals or the Supreme Court
his liberty, or second, when a person is unlawfully of their jurisdiction over petitions for writ of habeas
deprived of the rightful custody of another. corpus involving minors. What does it mean that the
petition for writ of habeas corpus may be filed with a
A mother was been deprived by his estranged Regional Trial Court or a judge thereof with a Court of
husband of the custody of her five (5) year old Appeals or any member thereof or with the Supreme
daughter has two remedies to choose from: (1) she Court or any member thereof? Let me explain. In all
may file a petition for custody of minors under other instances where the law confers on a court, or
Administrative matter number 03-04-04-SC or (2) the regional jurisdiction over a case, the initiatory pleading
mother may apply for the writ of habeas corpus under is always filed with the court never with a judge or a
Rule 102. member of the court. A petition for writ of habeas
corpus is unique, because it may be filed not only with
In both these remedies, the court may fully resolve the the court, but also with the judge or a member of the
issue as to who between the parties has the better court. Thus, a petition for writ of habeas corpus may
right of custody over the minor. Between the two be filed with the Regional Trial Court as a court of law,
remedies there is no question. The writ of habeas or it may be filed with its judge separate from the
corpus affords a much quicker and more effective Regional Trial Court where he presides. The petition
remedy. may be filed with the Court of Appeals or with the
Supreme Court as a collegiate court or it may be filed
Jurisprudence mandates that for the writ of habeas with any of its justices, separate from the court of
corpus to be available, the restraint on a person's which he is a member.
liberty must be actual and effective, not moral or
nominal. Physical restraint, however, is not always
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To illustrate, a person who wants to file a petition for detaining another to appear before the court and
writ of habeas corpus, may go to the Court of Appeals explain to the court the reason for the detention.
at Padre Faura Street during office hours on a Monday
and file his petition there. Or he may go to the house The officer to whom the writ is directed, is required to
of a justice of the Court of Appeals at 11 o'clock in the submit to the court a written Return of the writ, where
evening on a Sunday and file the petition with him. Of he shall state, among others, the legal basis for the
course, there is no guarantee that he will be allowed detention.
inside the house of the justice.
Take note that the court which issues the writ may not
The rule provides that the court, judge or justice with necessarily be the same court where the return of the
whom the petition is filed, may issue the writ on any writ will be made. This happens because the court
day and at any time. which issues the writ may make the writ returnable not
to itself, but to a lower court.
Assuming a person wants to file the petition for writ of
habeas corpus with the Regional Trial Court or the Let us say that upon the filing of a petition, the third
Family Court, to what province or city should he go to division of the Court of Appeals issues the writ of
file the petition? habeas corpus. The third division, may, however,
make the writ returnable not to itself but let us say to
In the recent case of Tujan Mlitante versus the Regional Trial Court of Pasay City. The person to
CadaDeapera. The Supreme Court ruled that if the whom the rate is directed, will make a return of the rate
petition is to be filed with the Regional Trial Court or not to the third division of the Court of Appeals, which
the family court, it shall be filed in the city or province issued the writ but to the RTC of Pasay City to which
of the judicial region where the writ is intended to be the writ was made returnable.
enforced.
In the 2015 case of Datukan Malang Salibo versus
Let us say that Juan is unlawfully detaining Pedro at Warden. The Supreme Court explained the procedure
the former's house in Las Pinas City where should when the court which issued the writ makes it
Pedro's wife file the petition so that the writ can be returnable to a lower court. Let's listen to the court.
enforced against Juan in Las Pinas City the petition Should the court issuing the writ designate a lower
may be filed with the RTC of any city in the National court to which the writ is made returnable, the lower
Capital Judicial Region court shall proceed to hear and decide the petition. By
virtue of the designation, the lower court acquires the
The rule is that a writ issued by the Regional Trial power and authority to determine the merits of the
Court or the family court may be enforced at any place petition and render judgment therein. The judgment of
within its Judicial Region. On the other hand, a writ the lower court may then be appealed to a higher court
issued by the Court of Appeals or the Supreme Court, having appellate jurisdiction over it.
or any of its members, may be enforced anywhere in
the Philippines. From this we learn that when the court that issued the
writ makes it returnable to a lower court, the lower
To whom shall the writ of habeas corpus be directed? court acquires the power to hear and decide the
It depends. If the person detaining another is an petition as if it was originally filed with it. The judgment
officer, the writ shall be directed to him, and he shall rendered by the lower court in the petition for habeas
be ordered to appear before the court and bring with corpus is appealable as if it was rendered by the lower
him the person he is detaining. If the person detaining court in the exercise of its original jurisdiction.
another is not an officer, the writ shall be directed to
an officer, who shall be ordered to take custody of the In the same case of the Datukan Malang Salibo, the
person being detained and present him to the court. Supreme Court made a distinction between the writ of
The officer will also be directed to summon the person habeas corpus that is issued by the Court upon the
filing of a petition and the judgment rendered by the
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Court after the hearing of the petition. It is the writ that corpus does not lie where the person alleged to be
orders the production before the court of the person restrained of his liberty is in the custody of an officer
allegedly restrained of his liberty. On the other hand, and their process issued by a court, which had the
it is in the judgment, where the court determines the jurisdiction to issue the same. This is especially true
legality or illegality of the detention. when the detainee was put under detention pursuant
to a warrant of arrest issued by the court after the filing
Between the issuance of the writ and the rendition of of an information against him. Moreso, if the detainee
the judgment, the issuance of the writ is of greater voluntarily surrendered to the authorities upon
consequence. The issuance of the writ sets in motion, learning that a warrant for his arrest had been issued.
the speedy judicial inquiry on the legality of a
detention. It is for this reason that the Supreme Court In the case of Sanka vs City Prosecutor of Cebu. The
has enjoined trial courts to issue writs of habeas Supreme Court ruled that although the aggrieved
corpus with liberality. Even if the petition for its party was unlawfully deprived of his liberty if he has
issuance may, on its face, appear to be devoid of alwritsy been released from detention by order of the
merit. It is better for the trial court to err on the side of court, the pending petition for writ of habeas corpus
issuing the writ than to err on the side of denying it. should be dismissed for having been mooted.
Much greater harm is done when the writ is wrongfully
denied than when it is wrongfully granted. In another case, the Supreme Court ruled that even if
a person's detention was, at its inception, illegal but
Let us discuss some of the significant doctrines due to some supervening events, such as the filing of
relative to the writ of habeas corpus that the Supreme an information against him, and the issuance of a
Court has laid down in a number of recent cases. warrant for his arrest, the detention becomes legal. A
petition for the writ of habeas corpus may, therefore,
In the case of Ilusorio versus Bildner, the Supreme no longer be filed or a pending one should be
Court shut down the effort of the wife, using the writ of dismissed.
habeas corpus as a bludgeon to compel her 86 year-
old, but irresistibly rich husband to live with her. The In Mangila vs Pangilinan. The Supreme Court enjoin
Supreme Court said, it is for the husband, who was trial courts to deny the writ of habeas corpus if the
shown to be of sound mind and capacitated, to decide person claiming to be under illegal detention has other
whether to live with his wife or not, no court has the remedies easily available to him. If a person, for
power, even if armed with a writ of habeas corpus to instance, is detained by virtue of a warrant of arrest,
compel an unwilling husband to live with his wife. The which he claims to be invalid, the proper remedy for
husband made it clear to the court that he was not him is not to file a petition for writ of habeas corpus,
being prevented from leaving the house of his own but to file a motion to quash the warrant of arrest or a
choice, and that he was free to see and meet with any motion for investigation of the case. The Supreme
person he wanted. There was simply no restraint on Court went further to say that the writ of habeas
his Liberty as to warrant the granting of the reliefs corpus is not in the nature of a writ of error. Meaning,
prayed for by the wife. I guess the husband just it is not intended to correct errors of fact or errors of
wanted to socially distance himself from his wife. law committed by the court. Neither can it take the
place of an appeal, or certiorari.
The Supreme Court added that the essential object
and purpose of the writ of habeas corpus is to inquire The question in a petition for habeas corpus is
into all manner of involuntary restraint and to relieve a whether the proceedings that led to the issuance of
person there from if such restraint is illegal. If there is the assailed order of arrest are, for any reason, null
no restraint on a person's liberty whatsoever, the writ and void. The writ should be denied with the law or the
of habeas corpus is unavailing. rules provides for other remedies and where
exceptional circumstances do not exist. Moreover, the
In Cirapio vs Sandiganbayan. The Supreme Court writ of habeas corpus should not be granted in
reinstated an old doctrine that the writ of habeas advance of a trial. The orderly course of a trial must
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be pursued and the usual remedies exhausted before

resorting to the writ of habeas corpus. Article 376 of the Civil Code provides that no person
can change his name or surname without judicial
In the case of Tuhan Militante which we have authority. Under this provision, no person by himself
mentioned earlier, the Supreme Court explained that can change his name. He needs to be authorized by
the service of summons on the respondent is not a court to change his name. And the only way to
required in a petition for habeas corpus. The writ of secure judicial authority is to file a petition with the
habeas corpus place a somewhat similar role, a proper court.
summons in ordinary civil actions. When the writ of
habeas corpus is served on the respondent. The court Is there an instance when a person may change his
acquires jurisdiction over his person. name without judicial authority?
Let me repeat in a petition for habeas corpus Yes, Republic Act 9048, which took effect on April
services, summons is not required for the court to 2001 created an exception to the general rule
acquire jurisdiction over the person of the respondent. established by Article 376. Sec 1of RA 9048 provides
It is the service of the writ of habeas corpus that vests that no entry in a civil register shall be changed without
on the court jurisdiction over the person of the judicial order except change of first name or
respondent. nickname, which can be changed by the concerned
city or municipal city register. Under this law,
Datukan Malang Salibo vs Warden is a case of therefore, a person desiring to change his first name
mistaken identity. Speaking through justice Leon, then or nickname need not file a petition with the court. He
the chairman of the aborted bar exams. The Supreme may do so in an administrative proceedings before the
Court said that when the person arrested and detained Local Civil Registrar.
is not the person charged in the information and
named in the warrant of arrest, he was in effect From here on, we will confine our discussion to
arrested without a warrant, and detain without a lawful petitions for change of surname under Rule 103.
process. For all intents and purposes, therefore, he is
entitled to the protection of the writ of habeas corpus. What court exercises exclusive original jurisdiction
over petitions for change of surname?
Let us review some instances when the Supreme
Court ruled that the aggrieved party has properly Since the subject of a petition for change of surname
availed himself or herself of the writ of habeas corpus. is incapable of pecuniary estimation, the Regional
Trial Court exercises exclusive original jurisdiction
First, an accused to a serving sentence in excess of over it as provided by paragraph1, Sec 19 of BP 129
the proper penalty that may be imposed for the crime as amended.
of which he was convicted. Second, an accused
serving sentence under a judgment rendered by a What rule determines proper venue for petitions for
court, which it turns out, had no jurisdiction over the change of surname, Sec 1, R103 provides that the
offense charged. Third, a mother who was deprived of petition for change of name shall be filed in the
the custody of her five (5) year old daughter by her Regional Trial Court of the province or city where the
estranged husband. petitioner resides.
RULE 103: CHANGE OF NAME You should relate this with Sec2, R103, which requires
by implication that the petitioner should have been a
Why is there a need for a person desiring to change bona fide resident of the province or city where the
his name to file a petition with the court? Why can't he petition is filed for at least three (3) years before the
just go to the civil registrar concern and request for a filing of the petition. This fact of residence for at least
change of name? The reason is that the law requires three (3) years is deemed so important that it is
it.
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required to be alleged in the petition as one of the grounds for a change of name that the Supreme Court
jurisdictional facts. considered proper and valid.
What name may be changed in a petition for change (1) when the name is ridiculous, dishonorable or
of name under Rule 103? extremely difficult to write or pronounce, (2) when they
change results as a legal consequence, as in
Only a person’s surname appearing in his certificate legitimation, or adoption; (3) when the change will
the birth. A person's name appearing in his baptismal avoid confusion; (4) when one has continuously used
certificate, or school records, or the name by which he and be known since childhood by a Filipino name, and
is known in the community may not be the subject of was unaware of alien parentage; (5) a sincere desire
a petition for change of name under Rule 103. Of to adopt a Filipino name to erase signs of former
course, all it takes is an affidavit to change all these alienates provided it is done in good faith, and it would
other names. not prejudice anybody; and (6) when the surname
causes embarrassment, and there is no showing that
Who may file the petition for change of name? The the desired change of name was for a fraudulent
person seeking to change his name, or any other purpose, or that the change of name would prejudice
person on his behalf, may file the petition for change public interest.
of name.
Let us briefly discuss some of the more significant
What matters should be alleged in the petition? The rulings on change of name that the Supreme Court
following matters should be alleged, (1) that the has promulgated in recent years.
petitioner has been a bona fide resident of the
province or city, where the petition is filed for at least In the case of In re petition for change of name of
three (3) years prior to the filing of the petition; (1) the Julian Lim Carulasang Wang, the petitioner, a minor
reason why the change of name is sought; (3) the represented by his mother prayed that his middle
name asked for and for all aliases, or nicknames by name been removed from his Certificate of birth. The
which the petitioner is known, must be set forth in the reason he gave was that he and his parents were
title of the petition. about to immigrate to Singapore, where people don't
carry middle names. He said he was asking for the
Upon the filing of a petition for change of name, what change of name to avoid being discriminated against
should the court do? If the court finds the petition to be in Singapore. The Supreme Court shut down the
sufficient in form and substance, the court shall issue petition stating that for a change of name to be
an order fixing the date of the hearing of the petition, granted, the petitioner must show a proper and
which shall not be within 30 days prior to an election, reasonable cause or a compelling reason for the
nor within four (4) months after the last publication of change of name. The petitioner must also convince
the order. the court that his continued use of his name will cause
him prejudice. The Supreme Court said the petitioner
In the same order, the court shall direct the petitioner failed on both counts the Supreme Court went further
to cause the publication of the order before the to expound on the nature of change of name.
hearing at least once a week for three successive
weeks in a newspaper of general circulation in the The court said that the state has an interest in the
province where the court sits. The Solicitor General or name borne by individuals for purposes of
the city or provincial prosecutor, shall be given notice identification. For this reason, a change of name is a
of the hearing, and directed to appear on behalf of the privilege, and not a right before a person can be
government. authorized to change his name, given him, either in his
certificate, the birth or civil registry, he must show
To give us an idea of what grounds for a change of proper and reasonable cause, or any compelling
name may be allowed. Let us look at some of the reason, which may justify sets change. The question
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of proper and reasonable cause is left to the sound what prompted Miss Kagandahan to file the petition.
discretion of the court. In granting Miss Kagandahan’s petition, the Supreme
Court said that a person with intersex anatomy
To summarize, there are two requisites that a person deserves to be given the choice of what path to make
must satisfy before he can legally change his name or with regards to his sexual development and
his surname: (1) he must show a proper or reasonable maturation. In the absence of evidence that he is an
cause or a compelling reason to justify the change and incompetent or that classifying him as a male or
(2) he must prove that he will be prejudiced by the female will harm other members of society, his petition
continued use of his true and official name. must be granted.
The case of Silverio vs Republic is one for the books.

After undergoing sex reassignment from male to RULE 108: CANCELLATION OR CORRECTION OF
female, petitioner prayed that his first name in his ENTRIES IN THE CIVIL REGISTRY
certificate the birth changed from Rommel to Mely and
his sex from male to female. By the way, you might be Why is it necessary for a person who wants to cancel
interested to know that one of the procedures done in or correct an entry in the Civil Registry to institute a
connection with the sex reassignment was called special proceeding in court? Why can’t he just go to
penectomy which is the surgical removal of the penis. the civil register concern and request for the desired
Going back to Mely the Supreme Court acted as a cancellation or correction of an entry? The answer is
total killjoy. It denied that the law requires it.
Mely’s petition.
Article 412 of the Civil Code provides that no entry in
In denying the petition, the Supreme Court has this to the civil register shall be changed or corrected without
say the statutes define who may file petitions for judicial order.
change of first names, and for correction or change of
entries in the Civil Registry, where they may be filed, Article 412 establishes a general rule. Is there an
what grounds may be invoked, what proof must be exception to this general rule? Yes, it is found in Sec
presented and what procedures shall be observed. 1 of RA 1948, which provides that no entry in a civil
register shall be changed or corrected without a
If Congress intends to confer on a person who has judicial order except for clerical or typographical
undergone sex reassignment, the privilege to change errors, which can be corrected or changed by the
his name, and sex to conform with this reassigned concerned city or municipal civil registrar.
sex, it has to pass a law. Since there is as of now, no
such law, the instant petition must be denied. Since clerical or typographical errors in the civil
register, may now be corrected only in an
Miss Kagandahan, it turned out was a lot luckier than administrative proceeding before the concerned local
Mr. Silverio. In the case of Republic vs Kagandahan, civil register. We have to know exactly when an error
the petitioner prayed that her gender be changed from is merely typographical or clerical, and when is it
female to male, and her first name be changed from substantial?
Jennifer to Jeff. The story was that Miss Kagandahan
had at birth, the very rare condition called congenital Paragraph 3, Sec 2 of Republic 1948 defines clerical
adrenal hyperplasia, or inter sexuality. Simply stated, or typographical error as a mistake committed in the
she was born with the biological characteristics of both performance of clerical work, such as writing, copying,
the male and female sexes. She was registered as transcribing, or typing an entry in the civil register, that
female, and given the name Jennifer. As she grew is harmless and innocuous. A clerical or typographical
older, however, miss Kagandahan male error is one which is visible to the eyes, or obvious to
characteristics became dominant to the point that she the understanding, and can be easily corrected by
developed muscles grew a beard and acquired the referring to other existing record or records. On the
feelings that a man has towards a woman. This was
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other hand, any error that affects the nationality, age, concern refers to the Civil Registry, where the entry
status, or sex of a person is considered substantial. sought to be corrected is found.
Guided by this distinction between clerical or type for We have been talking about correcting entries in the
graphical errors, and substantial errors, we can now civil register. Now, what acts, events, orders or
focus our discussion on correction or cancellation of decrees are entered in the civil register under Sec 2 of
substantial errors in a special proceeding before the Rule 108 they are (1) births, (2) marriages, (3) deaths
court. (Why is it that death always follows marriage), (4) legal
separations, (5) judgments declaring marriages void
But before we proceed, let us make sure we don't ab initio, (6) naturalization, (7) civil interdiction, etc.
commit the common error of mistaking a petition for
change of name and the rule 103. For a petition for Who may file a petition for correction of entry? Any
correction of an entry in the Civil Registry, which may person interested in the act, event, order or decree
be its may be a person's name under rule 108. When contained in the entry sought to be corrected may file
a person files a petition for change of name, there is the petition.
no error in his name to speak of. All he wants is that
his name appearing in the certificate to birth be Let us now discuss the kinds of proceedings that
replaced with another name. On the other hand, when may be conducted under Rule 108. Before the
a person files a petition for correction of letters, say his enactment of Republic Act 9048 on April 2001, two (2)
name, entered in the Civil Registry, there is an error in kinds of proceedings be conducted in a petition for
his name that he wants to be corrected. correction of entry. First is a summary proceeding and
the other one is adversary proceeding.
It is important for us to know one from the other
because its petition has its own specific rules. A summary proceeding is conducted when the errors
sought to be corrected are merely clerical, or
What court exercises exclusive original jurisdiction typographical such as misspelled name or misspelled
over petitions for correction of substantial errors in place of birth. On the other hand, adversary
entries in the Civil Registry. Since the subject of a proceeding is held when the errors sought to be
petition for correction of entry is incapable of corrected, are substantial ones, or those that affect a
pecuniary estimation, the Regional Trial Court person's nationality, marital status, legitimacy, age,
pursuant to paragraph 1 Sec 19 of BP 129, as sex or the like.
amended, exercises exclusive original jurisdiction
over it. Since clerical or typographical errors can no longer be
corrected in a judicial proceeding, but only in an
How do we determine the proper venue in petitions administrative proceeding before the local civil
for correction of entries? Sec 1 of Rule 108 tells us register. By virtue of Republic Act 1948. There is no
that a petition for correction of an entry shall be filed more room for summary proceedings under Rule 108.
in the Regional Trial Court of the city or province
where the Civil Registry concerned is situated. With only adversary proceedings left under Rule 108,
we can now discuss its requirements. A valid
N.B. Take note of the difference between the venue of adversary proceeding requires the concurrence of 2
a petition for change of name and the venue for a requisites: (1) the order of the court fixing the date of
petition for correction of entry. While a petition for the hearing, must be published once a week for three
change of name shall be filed in the Regional Trial consecutive weeks in a newspaper of general
Court of the place where the petitioner resides. A circulation in the province where the court sits; and (2)
petition for correction of entry shall be filed in the all persons who have or claim any interest, which
Regional Trial Court of the place where the Civil would be affected by the court action shall be
Registry concern is situated. The Civil Registry impleaded as respondents.
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The first strike was it is mandated by Sec 4 while the his birth certificate, the change from Filipino to
second requisite is mandated by Sec 3 of Rule 108. Chinese and the word married opposite the phrase,
As a rule, failure to implead, a person whose right or date the marriage of parents be deleted. The petitioner
interest may be prejudice by the intended correction claimed that her mother was Chinese and his parents
is fatal to the validity of the adversary proceeding. were never married. Since the correction sought
They are indispensable parties without whom the would affect the petitioner’s legitimacy, his mother's
court cannot proceed with the trial and render a valid citizenship and his parents’ marital status, the
and binding judgment. The Supreme Court has, Supreme Court ruled that the corrections sought were
however, recognized certain exceptions. all substantial. Such being the case the Supreme
Court said an adversary proceeding should have been
In Republic versus Uy, the Supreme Court held that held in pleading. Both parents are petitioner as
the failure to implead and notify the affected or indispensable parties
interested parties may be cured by the publication of
the notice of hearing. For this exception to apply, In Republic vs. Olaybar, a woman who without her
however, the Supreme Court imposed certain knowledge was made to appear to have married a
conditions, the petitioner must show that (1) he made man whom he did not know, was allowed by the court
earnest efforts to bring to the court all possible to correct the entries in the purported marriage
interested parties, or (2) the interested parties contract pertaining to the wife because it was done in
themselves initiated the corrections proceedings, or an adversary proceeding held in the trial court. She
(3) that the petitioner did not know that there were caused the publication of the notice of hearing as
interested parties or (4) when a party is inadvertently required by Sec 4, Rule 108 as well as impleaded not
excluded. only the Civil Registry concern, but also the man
whom she was supposed to have married.
In a case the Supreme Court described to us how an
adversary proceeding should be conducted. An
appropriate adversary proceeding, the Supreme RULE 107: ABSENTEES
Court explains, is one where the trial court conducts
a trial where all relevant facts are fully and properly I'm sure most of you, by experience and practice are
developed, where opposing parties are given the experts in this absentees.
opportunity to demolish its others case and where the
evidence are thoroughly weighted and considered. There are two (2) kinds of petition that may be filed
under Rule 107:
Let us review some recent cases on correction of entry (1) petition for the appointment of a provisional
and the rule 108. representative; and
(2) petition for the declaration of absence and the
In Eliosida vs Civil Register, the petitioner prayed that appointment of a trustee or administrator.
the surname of her son appearing in his birth
certificate be changed from that of his father to her When may a petition for the appointment of a
maiden name, and his status from legitimate to provisional representative be filed? It may be filed
illegitimate. She alleged that she and the father of her when a person has disappeared. He's worried about
son were never married. The Supreme Court being unknown for a period of not more than two
considered the correction prayed for to be substantial, years, provided the snap left an agent or the power of
which required a full blown adversity hearing. The his agent has expired.
Supreme Court said the father of the child should have
been impleaded because his right may be prejudiced Who may file the petition? Any interested party,
by the correction. relative of or friend may file the petition.
In the case of Republic vs. Kho, the petitioner asked When may a petition for declaration of absence and
the court that the citizenship of her mother indicated in the appointment of a trustee or administrator be filed?
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It shall be filed when a person has disappeared from (1) Upon order of the court, when the absentee
his residence for more than two years, without any appears personally or by means of an agent; (2) when
news about him, or since the receipt of the last news the death of the absentee is proved and his testate or
about him. If the absentee has left a person in charge intestate heirs appear; and
of the administration of his property, the petition may (3) when a third person appears showing by a proper
be filed five years after his disappearance. document, that he has acquired the absentees
property.
Who may file the petition for declaration of absence?
It may be filed by: Let us now discuss prerogative writs.
(1) the spouse present;
(2) the instituted heirs; What are these prerogative or peremptory writs?
(3) the legal heirs; and
(4) by persons who have some right over the property 1. Writ of Amparo
of the absentee that are subordinate to the 2. Writ of Habeas Data; and
condition of the absent this death. 3. Writ of Kalikasan
With what court should the petitions for appointment Prerogative means priviledge. If you have the
of a representative and the declaration of absence be prerogative to do something that means you can do it,
filed? Since the subject of both petitions is incapable but others cannot.
of pecuniary estimation, but petitions shall be filed with
the Regional Trial Court of the province or city where The word peremptory means something that cannot
the missing person was residing at the time he be challenged, refuse or questioned. In another
disappeared. context peremptory means something that requires
immediate obedience without question. A peremptory
Who may be appointed the absentees representative command is an order that you cannot question, but
trustee or administrator? must immediately follow.
(1) the present spouse is the most preferred. But if
there is no legal separation, if for some reason, the Having learned the meaning of the words, prerogative
present spouse cannot be appointed, (2) any and peremptory, which are used to characterize the
competent person may be appointed by the court. three writs, we are about to discuss, I'm sure you've
got an inkling of the real nature of this three writs. By
What should the court do upon the filing of a petition the way, the two other prerogative writs are the writ of
for the appointment of a representative or a petition for habeas corpus and the writ of certiorari.
the declaration of absence? The court shall issue an
order fixing the date of the hearing and directing the Writ of Amparo
petitioner to cause the publication of the order prior to
the date of the hearing once a week for three (3) Let's start with a writ of Amparo. Like so many things,
consecutive weeks in a newspaper of general we borrowed the concept of Amparo from Mexico but
circulation in the province or city where the absentee don't jump into conclusion. Amparo is not the name of
resides. Copies of the order shall likewise be served a Latina. It's a Spanish word, which literally means
on the known heirs, legatees, devices, creditors and protection. The Supreme Court introduced the Writ of
other interested persons at least 10 days prior to the Amparo in the Philippines when it promulgated
date of the hearing. Administrative Matter 07-9-12-SC on September 25,
2007. Two months earlier, the former Chief Justice
Renato Puno, and former Associate Adolfo Ascunia
officially announced the adoption of the writ of Amparo
When shall the trusteeship or administration be on the occasion of the national summit on extrajudicial
deemed terminated? killings and enforced disappearances held at the
Manila Hotel. So much for this trivia.
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criminal action. During the pendency of the petition for

When may a person file a petition for writ of Amparo? writ of Amparo the court may upon motion grant some
A person may apply for the Writ of Amparo if his right interim reliefs such as: (1) Temporary Protection
to life, liberty, and security is violated or threatened Order;
with violation by an unlawful act or omission of a public (2) Inspection order;
official or employee or of a private individual or entity. (3) Production order; and (4) Witness
The writs may also be applied for in cases of protection order.
extralegal killings and enforced disappearances.
By what amount or quantum of evidence shall the
Who may file the petition for Writ of Amparo? parties in a petition for Writ of Amparo prove their
respective factual allegations? The rule on Amparo
1. If he is able to, the aggrieved party himself requires both parties to prove their respective factual
may file the petition allegations by substantial evidence.
2. If we can’t as when he is the victim of
extralegal killing, or enforced disappearance. Some You will recall that substantial evidence is the
other specified persons or entities may file in the order quantum of evidence required in administrative cases,
given it is defined as such amount of relevant evidence
which a reasonable mind might accept as adequate to
A. Any member of his immediate family - his support a conclusion. It is more than a mere scintilla
spouse, children and his parents. of evidence. The standard of substantial evidence is
B. If the aggrieved party or the members of his satisfied when there is a reasonable grounds to
immediate family are unable to file the petition, any of believe based on the evidence submitted that a
his ascendance descendants or collateral relatives particular fact in issue is true. Substantial evidence
within the fourth civil degree of consanguinity or need not be overwhelming or preponderant, as is
affinity may file it. required in ordinary civil cases, or evidence beyond
C. If not one of the persons mentioned earlier is reasonable doubt, as is required in criminal cases, but
able to file the petition, then any concerned citizen, the evidence must be enough for a reasonable mind
organization, association or institution may file the to support a conclusion.
petition.
By way of defense, the rule on Amparo fixes a
Where may the petition for Writ of Amparo be filed? standard of diligence that a respondent must observe
The petition may be filed with the Regional Trial Court to escape liability. The standard diligence required
or any Regional Trial Court judge. It may also be filed depends on who the respondent is. A respondent who
with the Sandiganbayan, the Court of Appeals or with is a private individual or entity must prove that he has
a Supreme Court, or any justice of this Courts. A writ observed ordinary diligence as required by law.
issued by any of these courts, including the Regional
Trial Court is enforceable anywhere in the Philippines. A respondent who is a public official or employee must
This is different from a Writ of Habeas Corpus, which prove that in the performance of his duty, he has
when issued by the Regional Trial Court is observed extra ordinary diligence as required by law.
enforceable only within the courts judicial region. A respondent public official or employee cannot
invoke the presumption that the official duty has been
What rule determines proper venue if the petition is regularly performed.
filed with the Regional Trial Court? The petition shall
be filed in the Regional Trial Court of the place where To what court and by what mode of appeal is a
the threat, acts or omission was committed or any of judgment in a petition for Writ of Amparo appealable?
its elements occurred. The judgment of the courts having original jurisdiction
over a petition for writ of Amparo is appealable directly
Please take note that when it comes to venue, a to the Supreme Court by petition for review on
petition for writ of Amparo partakes of the nature of a certiorari under Rule 45 within five (5) working days
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from notice of judgment. They note the appeal may The court explained that the role of the court in a Writ
raise questions of fact or questions of law or both. This of Amparo proceedings is merely (1) to determine
is of course, an exception to the rule that in petitions whether an extra-legal killing or enforced
for review on certiorari only questions of law may be disappearance has taken place; (2) To determine who
raised. is responsible or accountable; and (3) to define and
impose the appropriate remedies to address the
Let us discuss some cases where the Supreme Court disappearance.
laid down important doctrines on the writ of Amparo.
It does not determine guilt, nor pinpoint criminal
Tapus vs Del Rosario, the Supreme Court speaking culpability for the killing or disappearance. The
through Justice Brion said that the writ of Amparo is Amparo court may only determine responsibility, or at
intended to respond to the extraordinary rise in the least accountability for the extra-legal killing or
number of killings and enforced disappearances as enforced disappearance for the purpose of imposing
well as to address violations of or threats to the rights the appropriate remedies to address it. Having
to life, liberty, or security. It is an extra ordinary and determined the person or persons responsible for the
independent remedy beyond those remedies that are killing or disappearance, the Amparo court may
already available under existing rules. Seen another recommend to the proper authorities the filing of
way, the writ of Amparo is a remedy intended to criminal cases against those found to be criminally
supplement those who already existing under the liable.
rules.
The Supreme Court added that while the rule on
The writ of Amparo was never intended to protect Amparo accords the court a wide latitude in crafting
concerns that are purely property or commercial. remedies to address an enforced disappearance, it
Neither is it a lead that will issue on vague and cannot without violating the nature of the writ of
uncertain grounds. Amparo as a summary remedy that provides rapid
judicial relief grant remedies that would complicate
Castillo vs Cruz, the SC declared that the Writ of and prolong rather than expedite the investigations
Amparo is intended to address the intractable problem already ongoing.
of extra-legal killings and enforced disappearances.
Its coverage in its present form is confined to these Roxas versus GMA, the Supreme Court expounded
two instances, or to threats thereof. on what it referred to as evidentiary difficulties in
Amparo proceedings. The court observed that ironic
The Supreme Court companion by defining extralegal as it seems, part and parcel of the reason why a
killings and enforced disappearances. According to petitioner for a Writ of Amparo may find difficulty in
the Supreme Court, extra-legal killings are those producing substantial evidence proving her
committed without due process of law that is, without allegations of government complicity in her abduction
legal safeguards or judicial proceedings. On the other and torture may be attributed to the awkward situation
hand, there is enforced disappearance if a person is we're in the very police or military officers alleged to
arrested, detained or abducted by a government be involved in an enforced disappearance or
official or organized groups, or private individuals extralegal killing are at the same time, the very ones
acting with the direct or indirect acquiescence of the tasks by law to investigate the matter.
government, followed by a refusal of government
authorities to disclose the fate or whereabouts of the This is a unique characteristic of these proceedings,
person concerned or a refusal to acknowledge the and is the main source of the evidentiary difficulties
deprivation of liberty, which places sets persons faced by petitioners in Amparo cases to somehow
outside the protection of law. offset evidentiary difficulties, the court said the
Amparo rule plays a potent safeguard which is to
Burgos vs Esperon, the Supreme Court define the require the respondent who is a public official or
limits to the role of the court in a petition for Amparo. employee to prove that no less than extraordinary
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diligence, as required by applicable laws, rules and D. that the intention for such refusal is to remove
regulations is observed in the performance of duty. the person from the protection of the law for a
Thus, unless and until any of the public respondents prolonged period of time.
is able to show to the satisfaction of the Amparo court,
that extraordinary diligence has been observed in their None of these elements is present in the mother's loss
investigations, they cannot shed the allegations of of the custody of a child.
responsibility for the enforced disappearance and
extralegal killing despite the prevailing scarcity of Canlas vs NAPICO Homeowners Association, a group
evidence to that effect. of persons whose houses were about to be
demolished under a final order which has become
Garam vs Segi. Feeling public dishonor and the ire of executory, which came all the way from the Supreme
her parents, an unwed mother delivered her baby in Court filed a petition for Amparo to prevent the
secret, and then gave it to the care and official custody demolition.
of the DSWD. A couple of years later, when things turn
for the better for the mother, she changed her mind In denying their petition, the Supreme Court said the
and decided to get back her child. When she demolition of a dwelling by virtue of a final judgment of
demanded that her child be given back to her the the court, which in this case was affirm with finality by
DSWD refused saying that the child is about to be the Supreme Court is not included among the
adopted by a well to do couples. The mother filed a enumeration of rights as stated in Sec 1 of the rule on
petition for Amparo to recover custody of her baby. Amparo for which the remedy of a Writ of Amparo is
The Supreme Court rebuffed the mother's misguided made available.
effort. The court explained that the privilege of the writ
of Amparo is a remedy available to victims of Their claim to their dwelling assuming they still have
extrajudicial killings and enforced disappearances or any, despite the final executory judgment adverse to
threats of a similar nature regardless of whether the them does not constitute right to life, liberty and
perpetrator of the unlawful act or omission is a public security. There is therefore no legal basis for the
official, or employee or a private individual. issuance of the writ of Amparo.
It is envisioned basically to protect and guarantee the

right to life, liberty and security of persons, free from PREROGATIVE WRITS:
fears and threats that vitiate the quality of life. Clearly,
they're being not enforced disappearance, the writ of WRIT OF HABEAS DATA
Amparo is not the proper remedy for a mother once to
recover the custody of her biological child from the The Supreme Court brought the Writ of Habeas Data
DSWD, to which she had voluntarily committed the into existence when it promulgated AM-08-1-16-SC
child. on January 22, 2008.
Sec 3 (g) of RA 9851, an enforced disappearance
occurs when the following elements exist:
The writ of habeas data is a tool meant to protect a
A. A person is arrested, detained, abducted or in person's image, privacy, honor information, and
any way deprived of his liberty; freedom of information. It is intended to provide a
B. the Act was carried out by or with the forum to enforce one's right to truth and to information
authorization, support or acquiescence of the privacy. Thus safeguarding the constitutional
government or a political organization; guarantees of a person's right to life, liberty and
C. it is followed by the state or political security against the abuse in this age of information
organizations refusal to acknowledge or give technology. Like the writ of Amparo Habeas Data was
information on the fate or whereabouts of the person conceived as a response given the lack of effective
subject of the Amparo petition; and and available remedies to address the extraordinary
rise in the number of killings and enforced
disappearances. Its intent is to address violations of
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or threats to the rights to life, liberty or security as a

remedy, independently from those provided under What is the effect of the filing of the criminal action to
existing rules. the filing of a petition for writ of habeas data? When a
criminal action has been commenced, no separate
When may a person file a petition for habeas data? He petition for the writ based on the same act remission
may file it when his right to privacy in life, liberty or shall be filed. The relief under the writ may, by motion,
security is violated or threatened by an unlawful act, be granted to an aggrieved party in the criminal case.
or omission of a public official or employee or of a The procedure under the rule on habeas data shall
private individual or entity engaged in the gathering, govern the disposition of the reliefs available under the
collecting or storing of data or information regarding route of habeas data.
him, his family, home and correspondence.
To what court and by what mode of appeal is a
Who may file the petition for writ of habeas data? judgment in a petition for writ of habeas data rendered
a. If he is able to, the aggrieved party himself by any of the courts having original jurisdiction over it
may file the petition appealable? The appeals shall be taken directly to the
b. If he can’t because he is the victim of Supreme Court, by way of rule 45 within five (5)
extralegal killing, or enforced disappearance, the working days from notice of the judgment. The appeal
petition may be filed by any member of his immediate may raise both questions of fact, and law.
family, he spouse, children, and his parents; or
c. If none of those mentioned can file the Let us discuss some recent cases on the writ of
petition, any of his ascendance descendant or habeas data.
collateral relative of the aggrieved party within the
fourth civil degree of consanguinity or affinity in Vivares versus St. Therese College, a group of
default of those mentioned in the preceding scantily clad female students had themselves
paragraph. photographed and naturally, they posted the photos in
the internet with the private setting of for a friend's
With what court may the petition for habeas data be only. A schoolmate was able to access the photos
filed? It may be filed with the Regional Trial Court, from the internet, which he passed on to the school
where the petitioner or respondent resides or where authorities, who tried to impose sanctions against the
the data or information is gathered, collected or stored female students. Feeling aggrieved and exposed, the
at the option of the petitioner. When the action female students file a petition for writ of habeas data
concerns public data files of government offices, the against the school. The Supreme Court denied the
petition shall be filed with the Supreme Court, the petition saying the writ of habeas data is aimed at
Court of Appeals or the Sandiganbayan. protecting an individual's right to informational privacy.
It is a procedure designed to safeguard individual
The filing of a petition for writ of habeas data shall not freedom from abuse in the information age. The writ,
preclude the filing of separate criminal civil or however, will not issue on the basis merely of an
administrative actions based on the same act or alleged unauthorized access to information about the
omission of the respondent. person. Availment of the writs requires the existence
of a nexus between the right to privacy on the one
When a criminal action is filed after the filing of a hand, and the right to life, liberty or security on the
petition for writ of habeas data, the letter shall be other. Without an actionable entitlement to the right to
consolidated with a criminal action. When a criminal informational privacy, habeas data petition will not
action and a separate civil action are filed after the prosper.
filing of the petition for a writ of habeas data, the
petition shall be consolidated with a criminal action Since there was no showing that the female students
despite the consolidation, however, the procedure use a full proof privacy setting when they posted their
under the rule on habeas data shall continue to govern photos on Facebook, they did not have the right to
in the disposition of the reliefs in the petition. information our privacy, which may be protected from
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violation or threatened violation by the writs of the The writ of habeas data will not issue to protect purely
data. property or commercial concerns, nor when the
grounds invoke are vague or doubtful.
The Supreme Court gave a little sermon for
compulsive internet users. It is incumbent upon Employment is a property right under the due process
internet users to exercise due diligence in their own clause of the Constitution. If what prompted the
line dealings and activities and must not be negligent employee to file the petition for habeas data was her
in protecting their rights. Equity serves the vigilant, concerns respecting the terms and conditions of
demanding relief from the courts requires that the employment, the same should be dismissed.
claimants themselves take utmost care in Jurisdiction over such concerns is lodged by law with
safeguarding a right, which they alleged to have been the LRC and the labor Arbiter's not the Regional Trial
violated. These are indispensable. Court.
The respondent school argued that it should not have Lee versus Ilagan. A spurned woman was able to
been impeded because it was not engaged in extract from the camera of her former lover, a police
gathering collecting or storing data or information. The officer, the digital memory, containing a video footage
Supreme Court rejected the school's argument. The showing him having sex with another woman. Feeling
court explained that the phrase engaged in gathering, that the video footage may somehow find its way to
collecting or storing data or information does not his superior officers, or be uploaded in the internet for
necessarily mean that the activity is done in pursuit of public consumption, the policeman filed against the
a business. It is enough that the respondent is shown woman a petition for the writ of habeas data. The
to have gathered, collected or restored data or Supreme Court denied the petition saying that for the
information about the aggrieved party or his or her writ to be granted, the petitioner must show the
family. The respondent will not be in the business of connection between his privacy interest and any
gathering, collecting or storing data. Whether the violation of his right to life, liberty or security. The
activity is done with regularity, as when one pursues a petitioner must also prove that respondent has
business, or just a personal endeavor for any other committed some overt acts towards the end of
reason is immaterial, and such will not prevent them violating his right to privacy in life, liberty or security.
from getting to said person or entity. The petitioner failed to prove any of such overt acts.
Meralco versus Lim, an employee was transferred to

another station by her employee, after an anonymous WRIT OF KALIKASAN
letter was circulated in her office, denouncing her for
lack of loyalty to the company. The company claimed Let us now discuss the writ of kalikasan. The rule on
that the transfer was for the protection of the the writ of kalikasan is Rule 7 of the Rules of
employee, but it refused to investigate the truth of the Procedure for Environmental cases, also known as
allegation in the letter and who circulated it. The Administrative Matter 09-6-8-SC.
employee filed a petition for habeas data against her
employer. In denying the petition, the Supreme Court When may a petition for Writ of Kalikasan be filed? It
said the habeas data rule is designed to protect the may be filed when the constitutional rights of persons
image, privacy, honor, information and freedom of to a balanced and healthful ecology is violated or
information of an individual. It is meant to provide a threatened with violation by an unlawful act or
forum to enforce once right to the truth and to omission of a public official or employee or private
informational privacy. Thus, safeguarding the individual or entity involving environmental damage of
constitutional guarantees of a person's right to life, such magnitude as to prejudice the life, health or
liberty and security against abuse in this age of property of inhabitants in 2 or more cities or provinces.
information technology.
Who may file the petition for writ of kalikasan? The
petition may be filed by a natural or juridical person,
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Page 74 of 76
and they be authorized by law, people's organization, appeal process, the course may then be made to the
nongovernmental organization, or any public interest courts, in accordance with the doctrine of exhaustion
group accredited by or registered with any of administrative remedies. In exceptional cases,
government agency, on behalf of the persons whose however, the rate of kalikasan may be availed of to
constitutional right to a balance and healthful ecology challenge the defects in the ECC provide the two
is violated or threatened with violation. requisites concur. First, the defects are causally link
or reasonably connected to an environmental damage
With what court or courts made a petition for writ of of the nature and magnitude contemplated under the
kalikasan be filed? The petition shall be filed with the rules on writs of kalikasan; and second, the case does
Supreme Court or with any of the stations of the Court not violate or falls under an exception to the doctrine
of Appeals. The filing of a petition for the issuance of of exhaustion of administrative remedies or primary
the writ of kalikasan shall not preclude the filing of jurisdiction. Given the extreme urgency of resolving
separate civil, criminal or administrative actions based the issue of the alleged defect in the ECC due to the
on the same act or omission of the respondents. looming power crisis, the instant case may be
considered as an exception to the doctrine of
During the pendency of the proceeding, a party may, exhaustion of administrative remedies.
upon a verified motion be granted, discovery
measures such as ocular inspection, and production, The rules of procedure may be suspended in order to
or inspection of documents or things. address issues which ordinarily would not be proper in
the writ of kalikasan case. The issue of the alleged
To what court and by what mode of appeal is a defect in the ECC may therefore, be resolved in the
judgment rendered by the Court of Appeals in a instant writ of kalikasan case.
petition for writ of kalikasan appealable? The
judgment is appealable to the Supreme Court by Dolo vs Paje, the Supreme Court merely underline the
petition for review on certiorari and the rule 45 within concept of Continuing Mandamus which is defined
15 days from notice of judgment.Aside from questions as a writ issued by a court in an environmental case
of law, the appeal may raise questions of fact. directing any agency or instrumentality of the
government or officer thereof to perform an act or
Paje vs Casino. This case involved the environmental series of acts decreed by final judgment, which shall
concerns raised by a group of local and national remain effective until the judgment is finally satisfied.
legislators regarding the setting up by a partly
government owned company of a coal fire power plant Arigo vs Swift pertains to the plight of USS Guardian,
in sitio nagla torre mount Redondo Subic Bay Freeport a US military ship, which ran aground at a shoal of the
zone. The group of legislators led by then Tubbataha Reefs, about 80 miles off the coast of
congressman Theodoro Casino filed with the Court of Palawan. The US government immediately
Appeals a petition for writ of kalikasan against the then apologized for the incident and promised to pay
Secretary of Environment and Natural Resources whatever damage was caused to the reef. It then
Ramon Paje and others questioning the validity of the proceeded to conduct salvage operations until the last
environmental compliance certificate (ECC) issued to screw of the grounded ship was removed from the
the power plant builder. Respondent Paje, on their coral reef. Wanting to attract some publicity, a group
part, questioned the propriety of raising the issue of of environmental zealots who impleaded minors and
the alleged defect in the ECC in a petition for writ of generations yet unborn, a scope petitioners, filed a
kalikasan without the petitioners having first petition for writ of kalikasan against the commander of
exhausted all administrative remedies. Speaking the ship and more than a dozen US and Philippine
through Associate Justice Del Castillo the Supreme Officials, including the President Noynoy Aquino.
Court has this to say, in general, the proper procedure Among others, the petitioners prayed that respondent,
to question a defect in an ECC is to follow the appeal US officials be ordered to cease and desist from the
process in accordance with the applicable law and salvaged operations, and that the local officials be
rules. After complying with the proper administrative
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Page 75 of 76
ordered to perform all remedial measures to acting by themselves bring an action in court? The
rehabilitate and prevent further damage to the reefs. Supreme Court answer this intriguing question and
the case of Resident marine mammals versus Reyes.
In its decision, dated September 16 2014, the Even before the rules of procedure for environmental
Supreme Court declared that the petition has become cases became effective, the Supreme Court had
moot in the sense that the salvage operations sought already taken a permissive position on the issue of
to be enjoin, or restrain had already been locus standi in environmental cases. In Oposa, the
accomplished when the petitioners sought the Supreme Court allowed the suit to be brought in the
recourse from the court. But in so far as the directive name of generations yet unborn based on the concept
to the Philippine respondents to protect and of intergenerational responsibility, in so far as the right
rehabilitate the coral reef structure and marine habitat to a balance and helpful ecology is concerned.
adversely affected by the grounding incident, are
concerned, petitioners are entitled to those reliefs, Furthermore, the Supreme Court said that the right to
notwithstanding the completion of the removal of the a balance and healthful ecology a right that does not
USS Guardian from the coral reef. even need to be stated in the Constitution, as it is
assumed to exist from the inception of humankind
However, the court was mindful of the fact that the US carries with it the correlative duty to refrain from
and Philippine Government both expressed readiness impairing the environment.
to negotiate and discuss the matter of compensation
for the damage caused by the USS guardian. The US In light of the foregoing, the need to give the resident
Embassy has also declared it is closely coordinating marine mammals legal standing has been eliminated
with the local scientists and experts in assessing the by the rules. The rules on environmental cases allow
extent of the damage and appropriate methods of any Filipino citizen as a steward of nature, to bring a
rehabilitation. Exploring avenues for settlement of suit to enforce our environmental laws. It is worth
environmental cases is not prescribed by the rules. It noting that, in the instance case, the stewards are
is in fact encouraged. joined as real parties in the petition and not just as
representatives of the marine mammals. The
West Tower condominium vs Philippine Industrial stewards Ramos and Osorio having shown in their
Corporation, is whether or not the court in a petition petition that there may be possible violations of laws
for writ of kalikasan may determine the civil liability of concerning the habitat of the resident marine
the respondents and award damages to the mammals are therefore declared to possess the legal
petitioners. In resolving the issue. The Supreme Court standing to file this petition.
said it will not rule on whether the individual directors
and officers of the respondent corporations are liable
or not. The court is mindful of Paragraph E Sec 15
Rule 7 of the Rules of Procedure for Environmental
Cases, which explicitly prohibits the court from
granting award of damages to individual petitioners in
a petition for a writ of kalikasan. The civil case and
criminal complaint filed by petitioners against the
respondents are the proper proceedings to ventilate
and determine the individualized ability of
respondents for the dire environmental damage
caused by the dumping of petroleum products coming
from the leak in the oil pipelines in Bangkal, Makati
City.
Do marine mammals have locus standi? In other

words, May, the whales, dolphins and porpoises
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Page 76 of 76

Consolidated Remedial Law Review 2 Transcribed Notes: Provisional Remedies To Special Proceedings Provisional Remedies

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Consolidated Remedial Law Review 2 Transcribed Notes: Provisional Remedies To Special Proceedings Provisional Remedies

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CONSOLIDATED REMEDIAL LAW REVIEW 2 TRANSCRIBED NOTES:

PROVISIONAL REMEDIES TO SPECIAL PROCEEDINGS

What are the purposes of provisional remedies

EXP: Instances a writ of preliminary attachment be

- The relief sought by the person filing a

- The rule is to ask the court to determine the

was the doctrine laid down in the case of AL Am

How does a petition for quo warranto differ from

- No. It is inherent one it is established; the

*state exercise power of eminent domain. 2) Determination of Just Compensation

*order of expropriation – interlocutory order

Conditions (upon filing):

Expropriation of lands consists of two stages: The first

Two (2) Kinds:

Who may file partition?

Who has the right to compel partition? Is demand to vacate required?

Who may file? In Unlawful Detainer – Defendant is in lawfully

In Forcible Entry – FISST Period to file answer:

Action for forcible entry/unlawful detainer – covered by What is the penalty?

May defendant file a cross claim?

Order/written charge, respondent to show

old or above, then he will be presumed dead after five

minor - Trust is a fiduciary relationship, that is created

Under the general powers of a guardian, may a

i. He must be of legal age; the parent, the spouse who is the

be pursued and the usual remedies exhausted before

The case of Silverio vs Republic is one for the books.

criminal action. During the pendency of the petition for

It is envisioned basically to protect and guarantee the

or threats to the rights to life, liberty or security as a

Meralco versus Lim, an employee was transferred to

Do marine mammals have locus standi? In other

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