Institution of Special Civil Actions
Since special civil actions are generally governed by ordinary rules, unless
the specific rule otherwise provides, the initiatory pleadings should comply
with the requirements under the ordinary rules. It should allege the claiming
party’s cause of action, with the exception of actions for interpleader and
declaratory relief.
Additionally, when applicable, parties to special civil actions must first
submit their controversy to barangay conciliation prior to resort to court,
provided that the parties involved are natural persons residing in the same
city or municipality and the dispute may be the subject matter of amicable
settlement in said barangay proceedings.
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RULE 62
INTERPLEADER
Jurisdiction
RTC, MTC have original jurisdiction over actions for interpleader, depending
on the nature and the value of the subject or property in dispute.
The nature of the action or the subject matter in interpleader is not
automatically incapable of pecuniary estimation. It would depend on the
subject of dispute or the conflicting claims. Thus, if the subject involves an
interest over real property, then it is a real action, and the determination of
which court may exercise jurisdiction over the case, as a rule, would depend
on the assessed value of the real property subject of the conflicting claims.
Interpleader
An action for interpleader is afforded to protect a person against double
vexation in respect to one’s liability and not against double liability.
A stakeholder, meaning a person entrusted with the custody of property or
money that is the subject of litigation or of contention between rival
claimants in which the holder claims no right or property interest, should
use reasonable diligence to hale the contending claimants to court. He need
not await the actual institution of independent suit against him before filing
an interpleader. He should file an interpleader action within a reasonable
time after a dispute has arisen without waiting to be sued by either of the
contending claimants. Otherwise, he may be barred by laches or undue
fdelay.
An action for interpleader requires, as an indispensable requisite, or a
condition sine qua non, that conflicting claims upon the same subject matter
are or may be made against the plaintiff-in-interpleader who claims no
interest whatever in the subject matter or has an interest which in whole or
in part is not disputed by the claimants. The claims must be adverse before
relief can be granted. The fund, thing or duty over which the parties assert
adverse claims must be one and the same and derived from the same
source.
An action for interpleader may also be instituted by the filing of an answer
with a counterclaim or a cross-claim for interpleader. While Rule 62 did not
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expressly authorize the filling of a complaint-in-interpleader as part of,
although separate and independent of the answer, this is not prohibited by
the rules.
The ordinary civil action rule that requires every action to be based on a
cause of action does not exactly apply to interpleader.
The plaintiff-in-interpleader claims no interest in the subject matter of the
case or may have an interest in the subject matter provided that said
interest, in whole or in part, is not disputed by the conflicting claimants or
the defendants. The plaintiff only files the interpleader case so that the
conflicting claimants will interplead with each other to finally resolve their
conflicting claims, and to prevent the risk of being exposed to double
vexation.
While a cause of action as defined under ordinary civil action rules does not
apply to interpleader, still, the complainant for interpleader should have a
cause of action, but based on a different standard or meaning, i.e. the
existence of conflicting claims among the defendants, where the plaintiff
does not have any claim or interest in the subject matter of the case, or the
plaintiff asserts a right or claim but the defendants agree that the plaintiff
has such right and nobody violated such right since the defendant agree to
the same or do not dispute or contest such right or claim.
Consignation and interpleader
Compliance with the requisite of a valid consignation is mandatory and the
failure to comply strictly with any of the requisites of consignation will
render the consignation void.
Art 1256 of the NCC, however, provides the instances when prior tender of
payment in consignation is excused:
1. When the creditor is absent or unknown, or does not appear at the
place of payment
2. When the creditor is incapacitated to receive the payment at the
time it is due
3. When, without just cause, the creditor refuses to give a receipt;
4. When two or more persons claim the same right to collect; and
5. When the title of the obligation has been lost.
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Thus, in case of dispute as to whom payment should be made, either
consignation or an action for interpleader may be availed of, at the option
of the plaintiff.
Docket and other lawful fees, cost and litigation expenses
By constituting a lien on the subject matter of the action, Sec. 7, Rule 62
aims to be the stakeholder unfortunate enough to get caught in a legal
crossfire between 2 or more conflicting claimants, for the faultless trouble
it found itself into.
Order to implead, provisional remedy of deposit; order and and summons
Upon the filing of the complaint for interpleader, the court shall issue an
order requiring the conflicting claimants to interplead with one another.
The remedy of interpleader, when proper, merely provides an avenue for
the conflicting claims on the same subject matter to be threshed out in an
action.
If the interest of justice so requires, the court may direct in the order to
interplead that the subject matter be paid or delivered to the court.
After the complaint for interpleader is files and provided the complaints is
not dismissible on its face on the grounds of lack of jurisdiction over the
subject matter, litis pendentia, res judicata or statute of limitations, the
court shall, within 5 calendar days from receipt of the initiatory pleading and
proof of payment of the requisite legal fees, direct the clerk of court to issue
the corresponding summons to the defendants.
Summons, together with the order to interplead and the complaint, shall
then be served on the defendants. The summons in interpleader shall direct
the defendant to answer within 15 days from service of summons, unless a
different period is fixed by the court.
Motion to dismiss, answer, declaration of default, and other pleadings
The defendant-in-interpleader may file an answer within 15 days from
service of summon or a motion to dismiss within the time for, but before the
filing of the answer.
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The grounds for a motion to dismiss are those allowed under the ordinary
rules, which are lack of jurisdiction over the subject matter, litis pendentia,
res judicata and statutes of limitations, in addition to the ground of
impropriety of the interpleader action.
For the bar of litis pendentia to be invoked, the following requisites must
concur:
1. Identity of parties, or at least such parties as represent the same
interest in both actions
2. Identity of rights asserted, and relief prayed for, the relief being
founded on the same facts; and
3. Identity of the two preceding particulars is such that any judgement
rendered in the pending case, regardless of which party is
successful, would amount to res judicata in the other.
An action for interpleader may also be dismissed on the ground of
impropriety, as when the essential element of conflicting claims on the same
subject is absent or it is no longer a proper remedy to be availed of.
In Wack Wack Golf and Country Club, the SC ruled that it. Was too late to
invoke the said remedy because it was filed after judgement was rendered
against the stakeholder in favor of one of the contending parties.
To be entitled to the remedy of interpleader, the applicant must be able to
show that he has not been made independently liable to any of the
claimants.
The dismissal of a complaint for interpleader, may have the effect of likewise
dismissing the compulsory counterclaim of the defendant against the
plaintiff, provided that the counterclaim arose out of or was necessarily
connected with the recourse to the remedy of interpleader.
A motion to dismiss may be filed by the conflicting claimants within the time
for filing an answer. The defendant may, on motion, be declared in default
and thus, be barred from any claim in respect to the subject of the
interpleader. The timely filing of a motion to dismiss will toll the period for
filing an answer. Upon denial of the motion to dismiss, the movant-
defendant may file his answer within the remaining period, but in no case
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should it be less than 5 days, reckoned from the notice of the denial of the
motion to dismiss.
Applying the rules on ordinary civil actions, the defendant may move for
extension of time to file their answer, for an additional period of not more
than 30 calendar days, provided that there are meritorious reasons and the
defendant may only be allowed to file 1 motion for extension of time to file
an answer.
Parties in an interpleader case may file permissive or compulsory
counterclaims in their respective pleadings. Third-party complaints and
responsive pleadings are likewise allowed in an interpleader case.
Compulsory counterclaims, if any, should be set up in the interpleader case,
otherwise, the same may be barred from being raised in subsequent
litigation, by reason of res judicata.
Nothing also prevents a person or entity from intervening in an interpleader
case, provided that the requirements warranting the said intervention are
present.
Conflicting claimants, who received the answer of the other, may file their
respective replies thereto within 15 calendar days from the service of the
said answer, provided that the answer attached an actionable document,
and the reply would only serve the purpose of specifically denying or alleging
facts in denial or avoidance of new matters alleged in, or in relation to the
actionable document attached to the answer. If no actionable document is
attached to the answer, no reply may be filed and all new matters alleged in
the answer shall be deemed controverted.
A defendant in an interpleader case who fails to file an answer within the
time to do so may, on motion, be declared in default.
If the second defendant is declared in default, then the court may thereafter
render judgement in favor of the first defendant who filed an answer,
barring the second defendant from any claims as to the rentals. The first
defendant would have set up his entitlement to the rental payment in his
answer.
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Pre-trial and trial
Rule 18 may be applied to interpleader. Hence, after the pre-trial, should
there be no more controverted facts, or no more genuine issues as to any
material fact, or an absences of any issue, or should the answer fail to tender
an issue, the court may without prejudice to a party moving for judgement
on the pleadings under Rule 34 or summary judgement under Rule 34, motu
proprio submit the case for summary judgement or judgement on the
pleadings, without need of position paper or memoranda.
After the pre-trial, the court shall refer the parties to mandatory court-
annexed mediation for an inextendible period of 30 calendar days. Judicial
dispute resolution may thereafter proceed in another court after the court-
annexed mediation, if the court to which the case was originally raffled is
convinced that settlement is still possible, to be conducted within a non-
extendible period of 15 calendar days from notice of failure of the court-
annexed mediation.
Judgement
As with ordinary rules, a judgement on a compromise may be allowed in
interpleader. However, the compromise agreement should include all the
conflicting claimants. A judgement on a compromise that does not include
all the conflicting claimants may also expose the opposing claimants to
further protracted litigation among themselves.
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RULE 63
DECLARATORY RELIEF AND SIMILAR REMEDIES
Jurisdiction
The RTC has exclusive original jurisdiction over action for declaratory relief.
An action for declaratory relief in incapable of pecuniary estimation and thus
falls under the exclusive original jurisdiction of the RTC.
In an action for reformation of instrument, the court determines whether
the parties’ written agreement reflects their true intention, which is likewise
an action incapable of pecuniary estimation.
The RTC, MTC may exercise original jurisdiction over quieting of title and
consolidation of ownership, depending on the assessed value of the real
property in question because these actions involve title to or possession of
real property, or any interest therein. The chapter on quieting the title
provides that when there is a cloud on title to real property or any interest
therein, the action may be brought to remove such cloud or to quiet the
title. Art 1607 of the NCC pertains to consolidation of ownership of real
property.
Declaratory relief
Declaratory relief is an action by any person interested under a deed, will,
contract or other written instruments, or whose rights are affected by a
statute, executive order or regulation, ordinance, or any other
governmental regulation, to determine any question of construction or
validity arising, and for a declaration of his rights or duties, thereunder,
before breach or violation thereof.
A petition for declaratory relief gives a practical remedy for ending
controversies that have not reached the state where another relief is
immediately available.
An action for declaratory relief does not allege the requirements of a cause
of action as defined under the rules on ordinary civil actions.
If the petition for declaratory relief alleges that there is a right violated by
another, or a breach took place prior to the institution of the case, then the
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action is not properly one for declaratory relief, and the case shall be
dismissed. In other words, a court can no longer assume jurisdiction over an
action for declaratory relief if its subject, i.e., the deed, will, contract, or
other written instrument, statute, executive order or regulation, ordinance
or any other governmental regulation, had already been infringed or
transgressed before the institution of the action.
In order to prevent a breach from being committed during the pendency of
the petition for declaratory relief, the provisional remedy of a writ of
preliminary injunction, if the requisites are present, may be availed of to
preserve the status quo until the merits of the case can be fully heard.
A compulsory counterclaim may be set up in the responsive pleading in an
action for declaratory relief.
The respondent may set up in his responsive pleadings a counterclaim
against the petitioner or in an amended responsive pleading before
judgement, provided that the failure to include the counterclaim in the
original responsive pleading was due to oversight, inadvertence, or
excusable neglect, or when justice requires. A supplemental counterclaim
may also be allowed if the counterclaim matured or was acquired by a party
after serving his pleading, provided that it is done with the permission of the
court and before judgement.
A petition for declaratory relief must satisfy 6 requisites:
1. The subject matter of the controversy must be a deed, will,
contract, or other written instrument, statute, executive order or
regulation, or ordinance;
2. The terms of the said documents and the validity thereof are
doubtful and require judicial construction
3. There must have been no breach of the documents in questions;
4. There must be an actual justiciable controversy or the “ripening
seeds” of one between persons whose interests are adverse;
5. The issue must be ripe for judicial determination; and
6. Adequate relief is not available through other means or other
forms of actions or proceedings.
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Sec. 1 with respect to the subject of declaratory relief – deed, will, contract
or other written instrument, statute, executive order or regulation,
ordinance, or any other governmental regulation – is exclusive.
The fundamental reason why court decisions cannot be the subject of
declaratory relief is predicated upon the principle of res judicata, which
stamps the mark of finality in case which has been fully and definitely
litigated in court.
Another reason why judicial and quasi-judicial orders or decisions cannot be
the subject matter of declaratory relief is the doctrine of judicial stability or
non-interference because courts and tribunals with the same or equal
authority – even those exercising concurrent or coordinate jurisdiction – are
not permitted to interfere with each other’s respective cases, much less
their orders or judgements.
The judicial determination of citizenship cannot be the subject of a petition
for declaratory relief. Instead, an appropriate proceeding for naturalization
should be instituted. A special civil action for declaratory relief if interested
only in declaration of rights and duties under a deed, will, contract or any
other instrument.
The constitutionality of an executive issuance, such as implementing rules
or revenue memorandum circulars, cannot be the subject of a declaratory
relief, because the proper remedy is to invoke the expanded certiorari
jurisdiction of the court under Sec. 1, Art VIII of the Constitution, or to bring
an action for prohibition.
A petition for declaratory relief may be treated as one for prohibition if the
case has far-reaching implications and raises questions that need to be
resolved for the public good; or if the assailed act or acts of executive
officials are alleged to have usurped legislative authority.
If a breach takes place prior to the institution of the petition for declaratory
relief, the action shall be dismissed, without prejudice to the petitioner’s
right to seek relief in an appropriate ordinary civil action or proceeding.
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If after the filing of a petition for declaratory relief but before the final
termination of the case or rendition of judgement, a breach of violation
takes place, the declaratory relief may be converted into an ordinary action,
and the parties shall be allowed to file such pleadings as may be necessary
or proper, such as the filing of an amended complaint that alleges the cause
of action as contemplated under the rules on ordinary civil actions.
For an action for declaratory relief to prosper, the issue must be ripe for
judicial determination. This means that litigation in inevitable or there is no
adequate means that litigation is inevitable or there is no adequate relief
available in any other form or proceeding. An action for declaratory relief
based on theoretical or hypothetical questions cannot be filed for our courts
are not advisory courts.
The court can refuse to entertain a petition for declaratory relief because
court action in declaring the rights and construing an instrument is
discretionary. Where a decision would not terminate the uncertainty or
controversy which gave rise to the action, or in any case where the
declaration or construction is not necessary and proper under the
circumstances.
For example, a court may refuse to exercise the power to declare rights and
to construe instruments when:
1. Indispensable parties are not impleaded and
2. Adequate relief is available through another form of action or
proceeding
The court’s discretion to refuse to exercise its power does not extend to the
other similar special civil actions falling under Rule 63. Thus, in an action for
reformation of an instrument, quieting of title or consolidation of
ownership, the court cannot refuse to render judgement if there are no
grounds warranting the dismissal of the action.
A court may render summary judgement motu proprio or upon motion in
declaratory relief, at any time after the pleading in answer to said petition
had been served, when there is no genuine issue as to the existence of a
material fact, to expedite or promptly dispose of cases where the facts
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appear undisputed and certain from the pleadings, depositions, admission
and affidavits on record.
Execution in the manner provided under Rule 39 will not lie because there
is nothing to execute in the said judgement.
No execution of judgements in declaratory relief, and the judgment – the
declaration itself of the rights of the parties – is sufficient to start on its own
and to serve the purpose for which the action was filed in the first place.
A petition for declaratory relief does not essentially entail an executory
process because the relief sought and the relief to be granted only involve
the declaration of rights and duties of the parties under the instrument.
(however, there are exceptions)
The SC ruled in PDIC that while a declaratory relief does not essentially entail
an executory process, there is nothing in its nature that would prohibit a
counterclaim based on the same transaction, deed or contract subject of the
complaint.
The SC in Matalin Coconut Co., held that payments made under protest did
not affect the case. It was found that the declaratory relief action was still
proper because the applicability of the ordinance to future transactions still
remained to be resolved, although the matter of refund could also be
threshed out in an ordinary suit for recovery of the taxed paid. The SC also
noted that the prayer for refund the payments made under protest was not
objected to by the respondents in their answer.
In Matalin Coconut Co., it appears that there was already a breach insofar
as the taxes paid under protest. However, the declaratory relief pertained
to future transactions, and the recovery of payment pertained to past
transactions, where there was payment under protest. Thus, what was
executory here was not the declaration of rights but the payments made
previously. The SC sustained such recovery in the declaratory relief case to
avoid multiplicity of suits and because the answer praying for the refund and
the evidence presented on the payments sought to be refunded were not
objected to in the trail court.
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The SC ruled that the execution of judgements in a petition for declaratory
relief was not necessarily indefensible. The SC further ruled that the INP
retirees pleaded for the immediate adjustment of their retirement benefits
which the respondents-agencies, despite notice of the said prayer, did not
object to. The SC further added that the trail court’s grant of immediate
adjustment forestalled multiplicity of suits, which would entail a long and
arduous process. Considering the INP retirees’ advanced years, they could
hardly afford another protracted proceeding.
The SC in DBM considered the policy against multiplicity of suits and the
failure to object the prayer for immediate adjustments of benefits in the
answer, despite notice thereof.
Reformation of instrument
As a rule, when the terms of an agreement have been reduced to writing, it
is considered as containing all the terms agreed upon and there can be,
between the parties and their successor in interest, no evidence of such
terms other than the contents of the written agreement. However, among
several exceptions, a party may bring an action for reformation and present
evidence to modify, explain or to add to the terms of a written agreement if
he puts in issue in his pleadings the failure of the written agreement to
express the true intent and agreement of the parties thereto.
Thus, reformation of an instrument may be allowed if subsequent and
contemporaneous acts of the parties show that their true intention was not
accurately reflected in the instrument.
In reformation of instrument, what is reformed is not the agreement itself,
but the instrument embodying the said agreement. No new contract is
created for the parties, rather, the reformed instrument establishes the real
agreement between the parties, as intended, but for some reason, was not
embodied in the original instrument.
Reformation of instrument is that remedy in equity by means of which a
written instrument is made or construed so as to express or conform to the
real intention of the parties, when through mistake, fraud, inequitable
conduct or accident, the instrument failed to express the real agreement or
intention of the parties. If the mistake, fraud, inequitable conduct or
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accident actually prevented the meeting of the minds of the parties, the
proper remedy is not reformation of the instrument but annulment of the
contract. Reformation of instrument presupposes that: 1) there was a
meeting of the minds of the parties to the contract; 2) the instrument does
not express the true ntention of the parties; and 3) the failure of the
instrument to express the true intention of the parties due to the mistake,
fraud, inequitable conduct or accident. An action for reformation of the
instrument presupposes a valid, existing contract, in which there has been a
meeting of the minds of the parties but the document, which embodies the
agreement, fails to reflect their true intent.
The SC, in several cases, recognized that there may be a mistake in
identifying the exact location of the land causing a failure of the instrument
to disclose the parties’ real agreement.
Because reformation is a recognized remedy afforded by courts of equity, it
may not be applied if it is contrary to well-settled principles of rules because
equity follows the law and is only applied in the absence of and never against
statutory law.
The rationale of the rule of reformation is that it would be unjust and
inequitable to allow the enforcement of a written instrument which does
not reflect or disclose the real meeting of the minds of the parties.
An action for reformation is in personam, even when real estate is involved.
One has a right of action to file an action for reformation of an instrument
when his legal right is denied, challenged or refused by another; or when
there is an antagonistic assertion of his legal right and the denial thereof by
another concerning a real question or issue; or when there is a real,
definitive and substantive controversy between the parties touching on
their legal relations having adverse legal interest.
The statute of limitation does not begin to run against an equitable cause of
action for reformation of an instrument because of mistake until the mistake
has been discovered or ought to have been discovered.
Quieting title to real property
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Quieting of title is a common law remedy grounded of equity for the removal
of any cloud of doubt or uncertainty with respect to real property. The court
is tasked to determine the respective rights of the complainant and other
claimants, not only to place things in their proper place, and to make the
one who has no right to said immovable, respect and not disturb the other,
but also for the benefit of both, so that he who has the right would see every
cloud of doubt over the property dissipated, and he could afterwards
without fear introduce the improvements he may desire, to use, and even
to abuse the property as he deems best.
Suit to quiet title is characterized as a proceeding quasi in rem. In an action
quasi in rem, an individual is names as defendant and the judgement therein
is conclusive only between or among the parties to the case.
The action contemplates a situation where the instrument or a record is
apparently valid or effective but is in truth and in fact invalid, ineffective,
voidable or unenforceable, and may be prejudicial to the said title to real
property. It may also be brought as a preventive remedy to prevent a cloud
from being cast upon the title to real property. It may also be brought as a
preventive remedy to prevent a cloud from being cast upon the title to real
property or any interest therein.
A cloud on a title exist when:
1. There is an instrument (deed or contract)) or record or claim or
encumbrance or proceedings;
2. Which is apparently valid or effective;
3. But is, in truth and in fact, invalid, ineffective, voidable or
unenforceable, or extinguished or terminated or barred by
extinctive prescription; and
4. May be prejudicial to the title.
To avail of the remedy of quieting of title, 2 indispensable requisite must
concur, namely:
1. Plaintiff has a legal or an equitable title or interest in the real
property subject of the action; and
2. The deed, claim, encumbrance or proceeding claimed to be casting
a cloud on his title must be shown to be in fact invalid or
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inoperative despite its prima facie appearance of validity or legal
efficacy.
an action to quiet title in relation to property in the possession of the
plaintiff is imprescriptible. Impressibility is accorded to cases for quieting of
title since the plaintiff has the right to wait until his possession is disturbed
or his title is questioned before initiating an action to vindicate his right.
Consolidation of ownership under Art 1607 in relation to Art 1616 of the
NCC
The consolidation of ownership prescribed in Art. 1607 of the NCC is merely
for the purpose of registering and consolidating title to the property in case
a vendor a retro’s failure to redeem.
The right to redeem under Art. 1607 in relation to Art 1616 pertains to ta
conventional redemption and not a legal redemption as that under Rule 39,
and Act No. 3135, which pertains to the right to redeem a property sold at
an execution or foreclosure sale, respectively, within 1 year from the
registration of the certificate of sale.
A conventional redemption takes place when the vendor reserves the right
to repurchase the thing sold, with the obligation to comply with the
provisions of Art 1616 of the NCVC and other stipulations which may be
agreed upon.
Failure to comply with the provisions of Art 1616 shall not be recorded in
the Registry Property without a judicial order, after the vendor has been
duly heard. Thus, after the lapse of the conventional redemption period, the
vendee a retro should institute an action for consolidation of ownership,
praying that the court direct the consolidation of title in the vendee a ret
retro’s name.
Art. 1602 and 1603 provides that in case of a contract of sale with a right to
repurchase or conventional redemption, there is a disputable presumption
that the same is an equitable mortgage because sale with rights to
repurchase are not favored. (Art. 1602 provides that a contract shall be
presumed to be equitable mortgage, in the following cases – see codal)
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RULE 64
REVIEW OF JUDGEMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE
COMMISSION ON AELECTIONS AND THE COMMISSION ON AUDIT
Rule 64 refers to a mode or review or an appeal from judgements, final order
or resolution of COMELEC and COA, acting as quasi-judicial bodies. It may be
brought only to the SC
Jurisdiction
Decisions of COMELEC and COA, Sec. 2, Rule 64 clarifies that the certiorari
which the aggrieved party may file with the SC.
BP 129, as amended by RA 7902, expanded the jurisdiction of CA, vesting it
with appellate jurisdiction over case decided and resolved by the CSC in the
exercise of its quasi-judicial functions may be taken to the CA within 15 days
from notice of the award, judgment, final order or resolution or from the
date of its lasty publication, if publication is required by law for its
effectivity, or of the denial of petitioner’s motion for new trial or
reconsideration duly filed in accordance with the governing law of the CSC.
The appeal shall be by petition for review under Rule 43.
Timeliness of filing the petition
Period for filing the petition under Rule 64 is 30 days from notice of
judgement, final order or resolution sought to be reviewed, and not the 60
days period under Rule 65.
The fresh-period rule applicable under Rule 65 is not available under Rule 64
as per Sec. 4. Under Rule 63, the filing of a motion for new trial or motion
for reconsideration of the said judgment, final order or resolution, if allowed
under the rules of the COMELEC or COA, shall interrupt the 30-day period of
filling the petition. If the motion for new trial or reconsideration is denied,
the aggrieved party may file the petition within the remaining period, but
which shall not be less than 5 days in any event, counted from the notice of
denial.
In the absence of grave abuse of discretion, questions of fact cannot be
raised in a petition for certiorari under Rule 64. The office of the petition for
certiorari is not to correct simple errors of judgement; any resort to a
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petition under Rule 64 in relation Rule 65 is limited to resolution of
jurisdictional issues.
The 30-day period is inextendible. The 30 day period is counted form notice
of the judgement or resolution sought to be reviewed. However, the SC, in
case of exceptional circumstances, may allow exceptions to the rule.
The petition
The petition shall be verified and filed in 1 original, properly marked, and 4
copies, unless the case is referred to the SC en banc, in which event the
parties shall file 10 additional copies. While Sec. 5, Rule 64 mentions 18
legible copies, this was already amended by the Efficient Use of Paper Rule,
which applies to all courts and quasi-judicial bodies under the administrative
supervision of the SC.
For the en banc, the parties need to submit only 2 sets of annexes, 1
attached to the original and an extra copy; for the division, the parties need
to also submit 2 sets of annexes, 1 attached to the original and an extra copy.
All members of the SC shall share the extra copies of annexes in the interest
of economy of paper.
The filing of a petition for certiorari shall not stay the execution of
judgement or final order or resolution sought to be reviewed, unless the SC
shall direct otherwise upon such terms as it may deem just. In order to stay
the execution, the petitioner should apply for and obtain injunctive relief.
Thus, the petitioner may be accompanied by an application for the issuance
of temporary restraining order and or writ of preliminary injunction, so that
the injunctive relief may be issue to restrain or stay the execution of the
judgment or final order or resolution sought to be reviewed during the
pendency of the petition.
Outright dismissal of the petition and order to comment
The petition was dismissed as the case became moot and non-justiciable.
Such order to comment is equivalent to summons in ordinary civil actions.
Rule 64 and Rule 65
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In the absence of grave abuse of discretion, question of facts cannot be RULE 65
raised in a petition for certiorari under Rule 64 and Rule 65. These are limited CERTIORARI, PROHIBITION AND MANDAMUS
to the resolution of jurisdictional issued. Questions of fact cannot be raised
in petitioner filed under Rule 64 except to determine whether the COMELEC Jurisdiction
or the COA were guilty of grave abuse of discretion amounting to lack or The following have jurisdiction to issue writs of certiorari, prohibition and
excess of jurisdiction. mandamus:
1. RTC
A review of facts and evidence is not the province of the extraordinary 2. CA
remedy of certiorari. 3. SC
4. Sandiganbayan
5. COMELEC

RTC, CA and SC have original and concurrent jurisdiction. Follow the doctrine
of hierarchy of courts.

Sec. 2, RA 10660 provides that Sandiganbayan shall have exclusive original

jurisdiction over petitions for the issuance of the writs of mandamus,
prohibition, certiorari, habeas corpus, injunctions, and other ancillary writ
and processes in aid of its appellate jurisdiction and over petitions of similar
nature, including quo warranto, arising or that may arise in cases files or
which may be filed under EO. No. 1, 2, 14 and 14-A, provided that the
jurisdiction over these petitions shall not be exclusive of the SC.

In election cases involving an act or an omission of a municipal or a regional

trail court, the petition shall be filed exclusively with COMELEC, in aid of its
appellate jurisdiction.

Scope of enforceability of the writ

BP 129 provides that the writs issued by the RTC are enforceable in any part
of their respective regions.

The court of first instance of Manila has no authority to issue writs of

injunction, certiorari, and prohibition affecting persons outside the juridical
region it formed part of. (Metro Manila is counted as one judicial region)

It may be commenced and tried where the plaintiff or any of the principal
plaintiff resides, or where the defendant or any of principal defendants

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resides, at the election of the plaintiff. One of the plaintiffs before the trial
court was a resident of Manila. It was held that the petition could properly
be filed in the City of Manila because the choice of venue was sanctioned by
Sec. 2, Rule 4. Also, the SC held that pursuant to Sec. 21(1) of BP 129, a writ
of prohibition issued by the RTC sitting in the City of Manila, was enforceable
in Pasay City since both Manila and Pasay fall within the National Capital
Judicial Region.
Petition for certiorari under Rule 65 and petition for review on certiorari
under Rule 45
A special civil action for certiorari is a remedy of last resort, available only to
raise jurisdictional issue when there is no appeal or any other plain, speedy,
and adequate remedy in the ordinary course of law. It is an independent or
original action based on grave abuse of discretion amounting to lack or
excess of jurisdiction. It cannot be a substitute for an appeal or a lost appeal.
By way of exception, the SC allowed the resort to a petition for certiorari
despite the existence of or prior availability of an appeal, such as:
1. Where the appeal does not constitute a speedy and adequate
remedy
2. Where the orders were also issued either in excess of or without
jurisdiction
3. For certain special consideration, as public welfare or public policy
4. Where in criminal actions, the court rejects rebuttal evidence for
the prosecution and, in case of acquittal, there could be no remedy;
5. Where the order is a patent nullity; and
6. Where the decision in the certiorari case will avoid future
litigations.
The essential requisite for a petition for certiorari under Rule 65 are:
1. The writ is directed against a tribunal, a board, or an officer
exercising judicial or quasi-judicial function;
2. Such tribunal, board or officer has acted without or in excess of
jurisdiction, or with grave abuse of discretion amounting to lack or
excess of jurisdiction; and
3. There is no appeal or any plain, speedy, and adequate remedy in
the ordinary course of law.
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While Rule 65 limits the issuance of writ of certiorari against a tribunal, a
board, or an officer exercising judicial or quasi-judicial function, the
expanded certiorari jurisdiction of courts under Sec. 1, Art VIII of the
Constitution provides, among others, that the judicial power includes the
duty of the courts of justice to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on th4e
part of any branch or instrumentality of the government. The exercise of
the court’s expanded jurisdiction to determine whether grave abuse of
discretion amounting to lack of or excess of jurisdiction has been committed
by the government is triggered by a prima facie showing of grave abuse of
discretion in the course of governmental action.
A petition for review on certiorari under Rule 46 is an appeal to the SC that
generally raises questions of law. The findings of fact of the CA are generally
deemed conclusive and the SC is not duty-bound to analyze and weigh all
over again the evidence already considered in the proceedings below,
subject to the following exceptions:
1. When the factual findings of the CA and the trial court are
contradictory
2. When the findings are grounded entirely on speculations, surmises,
or conjectures
3. When the inference made by the CA from its findings of fact is
manifestly mistaken, absurd, or impossible;
4. When there is grave abuse of discretion in the appreciation of facts;
5. When the appellate court, in making its findings, does beyond the
issue of the case, and such findings are contrary to the admission
of both appellant and appellee;
6. When the judgement of the CA is premised on a misapprehension
of facts
7. When the CA fails to notice certain relevant facts which, if properly
considered, will justify a different conclusion
8. When the findings of facts are themselves conflicting
9. When the findings of facts are conclusions without citation of the
specific evidence on which they are based;
10. When the findings of fact of the CA are premised on the absence of
evidence but such findings are contradicted by the evidence on
record
11. In petition for issuance of writ of amparo
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 12. Petitions for issuance of writ of habeas data
13. Petition for issuance of writ of kalikasan
14. Petitions for issuance of writ of continuing mandamus
Questions of fact cannot be raised except to determine whether the public
respondent was guilty of grave abuse of discretion amounting to lack or
excess of jurisdiction.
A petition for certiorari seeks to correct errors of jurisdiction while a
petition for review on certiorari seeks to correct errors of judgement
committed by the court.
An error of jurisdiction is one where the act complained of was issued by
the court without or in excess of jurisdiction, or with grave abuse of
discretion, which is tantamount to lack or in excess of jurisdiction and
which error is correctible only by the extraordinary writ of certiorari.
An error of judgement is one which the court may commit in the exercise
of its jurisdiction and which error is reviewable only by appeal. errors of
judgement include errors of procedural or mistake in the court’s findings.
Any error committed in the evaluation of evidence is merely an error of
judgement that cannot be remedied by certiorari; the writ of certiorari
cannot be issued to cure error of the trial court in its appreciation of
evidence of the parties or its conclusions anchored on the said findings and
its conclusions of law.
Where the court has jurisdiction over the person and the subject matter, the
decision on all other quest5ions arising in the case is an exercise of that
jurisdiction; consequently, all errors committed in the exercise of such
jurisdiction are merely errors of judgement. In other words, when the court
has jurisdiction over the case and person of the defendant, any mistake in
the application of the law and the appreciation of evidence committed by
the court may be corrected only by appeal. rulings of the trial court ion
procedural questions and on the admissibility of evidence during the course
of a trail are interlocutory in nature and may not be subject of a separate
appeal or review on certiorari; they must be assigned as errors and reviewed
in the appeal properly taken form the decision rendered by the trial court
on the merits of the case.
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A special civil action for certiorari lies only when there is no appeal nor any
plain, speedy and adequate remedy in the ordinary course of law. Thus,
Sec.1, Rule 41 provides that the aggrieved party, in any of the following
circumstances where no appeal is available, may file a special civil action
under Rule 65 as a remedy:
1. An order denying a motion for new trail or reconsideration
2. An order denying a petition for relief of any similar motion seeking
relief from judgement
3. An interlocutory order
4. An order disallowing or dismissing an appeal
5. An order denying a motion to set aside a judgment by consent,
confession or compromise on the ground of fraud, mistake or
duress, or any other ground vitiating consent
6. An order of execution
7. A judgement or final order for or against one or more of several
parties or in a separate claim, counterclaims, cross-claims and
third-party complaints, while the main case is pending, unless the
court allows an appeal therefrom; and
8. An order dismissing an action without prejudice.
Certiorari is not allowed when a party to case fails to appeal a judgement
despite the availability of that remedy. The remedies of appeal and certiorari
are mutually exclusive and not alternative or successive. The availability of
the remedy of a petition for review or an appeal effectively forecloses the
right of a party to resort to a petition for certiorari, except when an appeal
is satisfactorily shown to be an inadequate remedy.
The remedy against a decision rendered by the RTC is an action filed under
Rule 65 is ordinary appeal under Rule 41, by filling a notice of appeal with
the RTC, since the action under Rule 65 is an original action. However,
instead of filing with the CA an appellant’s brief within 45 days from receipt
of notice of the transmittal of records to the CA, a memorandum shall be
filed, within a non-extendible period of 30 days from the receipt of the said
notice.
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If the action under Rule 65 was filed with the CA, the remedy against the
decision rendered therein is by petition for review on certiorari under Rule
45 with the SC.
Supreme Court may treat a petition for certiorari as a petition for review on
certiorari and vice versa
The SC has, on appropriate occasions, treated a petition for certiorari as a
petition for review on certiorari, particularly when:
1. The petition for certiorari was filed within the reglementary period
to file a petition for review on certiorari
2. The petition avers errors of judgement; and
3. When there is sufficient reason to justify the relaxation of the rules
The SC in Navares noted that the petitioner used the wrong remedy to
challenge the CA’s decision. A petition for certiorari under Rule 65 was filed
with the CA. The remedy against the decision therein should have been a
petition for review on certiorari under Rule 45. Nevertheless, the SC deemed
it proper to treat the petition for certiorari as a petition for review on
certiorari since the petition: 1) averred errors of judgement; 2) weas filed
within the period to file a petition for review on certiorari; and 3) there was
sufficient reason to justify the relaxation of the rules and to do so would
serve the higher ends of justice.
The SC held in Delsan Transport Lines Inc vs CA, that it cannot be claimed
that the petition for certiorari was used as a substitute for appeal after that
remedy was lost through the fault of the petitioner because it was filed
within the reglementary period for filing the said appeal.
In Cathay Pacific Steel Corporation vs CA, the SC found no compelling reason
to treat the petition for certiorari as a petition for review on certiorari
considering that the petitioner did not file the petition within the
reglementary period for filing a petition for review on certiorari under Rule
45. Petitioners filed a petition for certiorari, alleging grave abuse of
discretion on the part of the CA, on the 61st day from the receipt of the
resolution of the CA denying their motion for reconsideration. (The proper
remedy was to file a petition for review on certiorari under Rule 45)
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In Tom vs Rodriguez, the petitioner filed a petition for review on certiorari
under Rule 45, assailing the CA’s resolution denying his prayer for injunctive
relief. The SC found that the resolutions denying the prayer for issuance of
a temporary restraining order and or writ of preliminary injunction were
interlocutory orders and as such, the proper remedy should have been to
file a petition for certiorari under Rule 65, and not a petition for review on
certiorari under Rule 45. While the petition was thus dismissible outright, in
accordance with the liberal spirit pervading the ROC and in this interest of
substantial justice, as justified by the merits of the petition, which was filed
within the 60-day reglementary period under Rule 65, and since petitioner
alleged that the CA departed from the accepted and usual course of judicial
proceedings, the SC deemed it proper to treat petitioner’s petition for
review on certiorari as a petition for certiorari.
Note, however, that while a petition for certiorari under Rule 65 may be
treated as having been filed under Rule 45 to serve the higher interest of
justice, the same cannot be done when the petition is filed beyond the
reglementary period for filing a petition for review and without offering any
reason therefor.
The period for filing a petition for certiorari is 60 days from notice of the
assailed decision or order, while a petition for review on certiorari should be
filed within 15 days, subject to an extension of 30 days provided that docket
and lawful fees are paid upon filing the said motion. If the petition for
certiorari, which is being sked to be treated as a petition for review is filed
on the 60th day from notice of the assailed decision or final order, the
reglementary period for filing an appeal under Rule 45 would have already
lapsed, and as such, the petition for certiorari can no longer be entertained
as a petition for review.
The bare invocation of “interest of substantial justice” line is not some magic
wand that will automatically compel the SC to suspend procedural rules.
When petition under Rule 65 are considered as prohibited pleadings
Petitions for certiorari, mandamus or prohibition against any interlocutory
order issued by the court are prohibited pleadings under:
1. Rules of procedure is small claims cases
2. Rules of summary procedure
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 3. Rule on writ of amparo
4. Rule on the writ of habeas data
While it is prohibited to avail of a petition for certiorari against any
interlocutory order issued by the court in small claims cases, the SC ruled
that the remedy of an aggrieved party against a final and unappealable
judgement in a small claims case is a petition for certiorari under Rule 65.
Under the rule on ordinary civil actions, petitions under Rule 65 are also
prohibited in the following instances:
1. To assail the denial of affirmative defenses, instead, the denial
should bee among the matter raised on appeal after judgement on
the merits
2. To assail the motu prorio order of the court to submit the case for
judgement on the pleadings or summary judgement after pre-trial
3. To assail the order denying the demurrer to evidence before the
judgement
4. To assail any action of the court on a motion for judgement on the
pleadings, and
5. To assail any action of the court on a motion for summary
judgement
The denial of a demurrer to evidence, which is actually in the nature of a
motion to dismiss (or to acquit) filed after the plaintiff or the prosecution
presented its evidence and rested its case, is not appealable, it being
interlocutory; nevertheless, while being interlocutory, certiorari will not lie
to assail the said denial for the following reasons: 1) the proper remedy,
whether the case involved is an ordinary civil action or a criminal case, is to
proceed with trail and to appeal the decision rendered in the entire case in
due time, and 2) It is expressly prohibited under the rule for ordinary civil
actions. However, by exception, if the denial of the demurrer to evidence in
a criminal case is attended by grave abuse of discretion amounting to lack
or excess of jurisdiction, the denial may be assailed through a petition for
certiorari.
Remedy when any tribunal, board or officer exercising judicial or quasi-
judicial functions acted with grave abuse of discretion amounting to lack or
excess of jurisdiction
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Sec. 1, Art VIII of the Constitution provides, among others that the judicial
power includes the duty of the courts of justice to determine whether or not
there has been grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the government.
This is the expanded certiorari jurisdiction of courts, and it does not limit the
review to acts performed in the exercise of judicial or quasi-judicial functions
only. Even when an administrative agency, for instance, does not perform a
judicial, quasi-judicial or ministerial function, the constitution mandates the
exercise of judicial review when there is an allegation of grace abuse of
discretion.
For the extraordinary remedy of certiorari and prohibition to lie by reason
of grave abuse of discretion, the abuse of discretion must be so patent and
gross as to amount to an evasion of positive duty, or a virtual refusal to
perform the duty enjoined or to act in contemplation of law, or where the
power is exercised in an arbitrary or despotic manner by reason of passion
and personal hostility. These grounds under Sec. 1 and 2 of Rule 65 are
strictly interpreted.
It falls upon the petitioner to discharge the burden of proving there was
grave abuse of discretion on the part of the respondent, in accordance with
the definition and standards set by law and jurisprudence.
The SC, as a general rule, does not interfere with the Ombudsman’s
determination of the existence or absence of probable cause. Only when
there is a clear case of grave abuse of discretion will the court interfere with
the findings of the Office of the Ombudsman.
Petition for certiorari, prohibition and mandamus should not be resorted to
when there are other plain, speedy and adequate remedies; exceptions
A remedy is plain, speedy and adequate if it will promptly relieve the
petitioner from the injurious effects of the judgement, order, or resolution
of the lower court or agency. It is the inadequacy, and not the mere absence
of all other legal remedies and the danger of failure of justice without the
writ, that must usually determine the propriety of certiorari or prohibition.
The determination of what constitutes a plain, speedy and adequate remedy
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rest on judicial discretion and depends on the particular circumstances of
each case.
RA 6770 or the Ombudsman Act of 1989, does not provide for the remedy
of appeal from the decisions of the Ombudsman in criminal or non-
administrative cases. The remedy against decision of the Ombudsman in
administrative charges, where the penalty is not light or does not absolve
the respondent of the charge, is by appeal to the CA under Rule 43. If the
decision of the Ombudsman in an administrative charge imposes light
penalties (public censure, reprimand, suspension of not more than 1 month
or fine equivalent to one month salary) or absolves the respondent of the
charge, such decision under Sec. 27 of the Ombudsman Act is considered
finals and unappealable. As such, these decisions, if tainted with grave abuse
of discretion amounting to lack or excess of jurisdiction, may only be assailed
by means of a petition for certiorari with the CA.
It is incumbent upon an applicant for a writ of certiorari to allege with
certainty in his verified petition, facts showing that there is no appeal, not
any plain, speedy and adequate remedy in the ordinary course of law,
because this is an indispensable ingredient of a valid petition for certiorari.
The SC, however, may grant an exception to the strict application of the
rules, if the application thereof would tend to frustrate rather than promote
justice; it is always within the power of the SC to suspend the rules, or except
a particular case from their operation because it is always conscientiously
guided by the norm that on ethe balance, technicalities take a backseat
against substantive right, and not the other way around.
As a general rule, a motion for reconsideration must first be filed with the
lower court, agency, tribunal, board, officer, corporation or person prior to
resorting to the extraordinary remedies of certiorari prohibition or
mandamus, since a motion for reconsideration may still be considered as a
plain, speedy, and adequate remedy in the ordinary course of law.
The rule that a motion for reconsideration of the assailed order or resolution
is generally required before resorting to a petition for certiorari, prohibition
or mandamus is subject to exceptions:
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1. Where the order is a patent nullity, as where the court a quo has
no jurisdiction;
2. Where the question raised in the certiorari proceedings have been
duly raised and passed upon by the lower court, or are the same as
those raised and passed upon in the lower court
3. Where there is an urgent necessity for the resolution of the
question and any further delay would prejudice the interest of the
government or of the petitioner, or the subject matter of the action
is perishable
4. Where, under the circumstance, a motion for reconsideration
would be useless
5. Where petitioner was deprived of due process and there is extreme
urgency of relief
6. Where, in a criminal case, relief from an order of arrest is urgent
and thew granting of such relief by the trial court is improbable
7. Where the proceedings in the lower court are a nullity for lack of
due process
8. Where the proceedings were ex parte or in which the petitioner
had no opportunity to object; and
9. Where the issue raised in one purely of law or where public interest
in involved.
A petition for certiorari cannot be allowed when the same is filed after a
party to a case fails to appeal a judgement to the proper forum, especially if
one’s own negligence or error in one’s choice of remedy occasioned such
loss or lapse. Thus, when an appeal is available to the aggrieved party, the
action for certiorari would not be entertained, even if the ground is grave
abuse of discretion. The remedies of appeal and certiorari are mutually
exclusive, not alternative or successive.
In Hi-Yield Realty Inc vs CA, the SC denied the petition for certiorari filed 58
days after the petitioner received the assailed resolution, which belated
action was construed as the petitioner’s effort to substitute for a lost appeal
the petition for certiorari filed.
Where the error sought to be corrected neither related to the court’s
jurisdiction nor involves grave abuse of discretion, review of the error
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through certiorari will not be allowed. This rule, however, admits exceptions
such as when:
1. It is necessary to prevent irreparable damage and injury to a party;
2. The trial judge capriciously and whimsically exercise his/her
judgement
3. There may be danger of failure of justice
4. An appeal would be slow, inadequate, and insufficient;
5. The issue raised is one purely of law
6. Public interest is involved; and
7. In case of urgency
The SC in Luna, held that while an appeal was previously available to the
petitioners, who opted instead to file a petition for certiorari under Rule 65
with the CA. the SC ruled that where a rigid application of the rule that
certiorari cannot be substituted for a lapsed appeal will result in a manifest
failure or miscarriage of justice, the rule may be relaxed. The SC concluded
that considering the broader and primordial interest of justice, particularly
when there is grave abuse of discretion, thus impelling occasional departure
from the general rule that the extraordinary writ of certiorari cannot
substitute for a lost appeal, the CA may legally entertain the special civil
action for certiorari.
Petition for certiorari will not automatically suspend proceedings in the
court a quo
when a party assails an unappealable judgement or interlocutory order by
certiorari under Rule 65, the pendency of such petition shall not warrant the
suspension of the proceedings in the principal case below unless a
temporary restraining order or a writ of preliminary injunction has been
issued, enjoining the public respondent from proceeding with the principal
case.
As an exception to the rule that the proceedings below will continue unless
restrained by a temporary restraining order or a writ of preliminary
injunction, the SC in Go vs Abogar, ruled that the to maintain the efficacy of
Sec. 7, Rule 65, the principle of judicial courtesy may be applied only if there
is a strong probability that the issues before the higher court would be
rendered moot and moribund as a result of the continuation of the
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proceedings in the lower court. The SC in Go clarified that the principle of
judicial courtesy remains to be the exception rather than the rule.
A person aggrieved by the grave abuse of discretion amounting to lack or
excess of jurisdiction must have legal standing to file the petition
The person aggrieved who can avail of the special civil action of certiorari
pertains to one who was a party in the proceedings before the lower court.
Private and public respondents under Rule 65
When the petition filed related to the acts or omissions of a judge, court,
quasi-judicial agency, tribunal, corporation, board, officer or person, the
petitioner shall join as private respondent with such public respondent, the
person/s interested in sustaining the proceeding in the court. For example,
the party in whose favor the interlocutory order was issued would be the
private respondent in the certiorari or prohibition action filed by the
aggrieved part, and the public respondent would be the court that allegedly
issued that interlocutory order with grave abuse of discretion amounting to
lack or excess of jurisdiction.
Inextendible period for filing the petition under Rule 65 and its exception
The 60-day period ought to be considered inextendiuble and further,
because the general rule is that rules of procedure must be faithfully
complied with and should not be discarded with the mere expediency of
claiming substantial merit.
Under the exceptional cases, the 60-day period may be extended subject to
the court’s sound discretion. While the deletion of the provision for
extension of time to file a petition under Rule 65 means that the period of
filling is inextendible, it is only for the general rule and such deletion of
provision still does not make the extension of time to file the petition
absolutely prohibited; had it been the intention to prohibit the extension of
time to file a petition, then the deleted provision could have just been simply
reworded to state that no extension of time shall be granted. Absent such a
prohibition, then by exception, motions for extension of time may be
allowed, subject to the court’s discretion.
An exception to the strict application of the 60-day period to file petitions
under Rule 65 may be allowed when:
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 1. There is most persuasive and weighty reasons therefore
2. It is necessary to relieve a litigant from an injustice not In prohibition, the petition prays that judgement be rendered commanding
commensurate with his failure to comply with the prescribed the respondent to desist from further proceedings in the action or matter
procedure specified therein, or other granting such incidental reliefs as law and justice
3. There is good faith of the defaulting party by immediately paying may require.
within a reasonable time from the time of the default
4. There exists special or compelling circumstances In mandamus, the petition should allege the facts with certainty, praying
5. The merits of the case warrant the same that the judgement be rendered commanding the respondent, immediately
6. There is cause not entirely attributable to the fault or negligence of or at some other time to be specified by the court, to do the act required to
the party favored by the suspension of the rules be done to protect the rights of the petitioner, and to pay damages
7. There is a lack of any showing that the review sought is merely sustained by the petitioner by reason of the wrongful acts of the
frivolous and dilatory respondent.
8. The other party will not be unjustly prejudiced thereby
9. There is fraud, accident, mistake or excusable negligence without Thus, in all cases under Rule 65, damages may be prayed for an awarded.
appellant’s fault For certiorari and prohibition, the court has competence to award damages
10. Peculiar legal and equitable circumstances attendant to each case pursuant to the prayer in the petition that it grants such incidental relief as
warrant the same law and justice ma require. In mandamus, Sec. 3 categorically provides that
11. It is in the name of substantial justice and fair play the petitioner may ask that the respondent be directed to pay the damages
12. The importance of the issues involved warrants the same; and sustained by the petitioner by reason of the wrongful acts of the
13. It is granted by the exercise of sound discretion buy the judge respondent.
guided by all the attendant circumstance.
While Rule 65 involves original actions, there will not be any service of
In all the foregoing instances, there should be an effort on the part of the summons. The equivalent thereof under this special civil action is the
party invoking liberality to advance a reasonable or meritorious explanation issuance of the order to comment, to be served on the respondents. The
for his failure to comply with the rules. manner of service of the order to comment shall depend on the manner that
the court shall direct.
Petition, comment and proceedings
In certiorari and prohibition, the petitioners therein shall be accompanied A comment is not, in all cases, imperative and the respondent’s failure to
by: file a comment is not necessarily fatal to its cause since Sec. 6, Rule 65
1. A certified true copy of the judgement, order or resolution subject establishes that the need for a comment rests on the sound discretion of the
of the petition; and court. A respondent’s non-compliance neither automatically entails its
2. Copies of all pleadings and documents relevant and pertinent admission of all the averments made in the petition nor the rendition of the
thereto. decision adverse to it because Sec. 8, Rule 65 allows the case to proceed
even after the period for filing of a comment has lapsed without the
In certiorari, the petition prays that judgement be rendered annulling or respondent having filed a comment. Even after the lapse of such period, the
modifying the proceedings of the public respondent tribunal, board or court may still entertain the parties’ memoranda or set the case for hearing
officer, and that the court grant such incidental reliefs as law and justice may and, thereafter, render its decision, since Sec. 8, Rule 65 provides that after
require. the ceomment or other pleadings required by the court are filed, or the time

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for the filling thereof has expired, the court may hear the case or require the
parties to submit their respective memoranda. If, after such hearing or filing
of memoranda or upon the expiration of the period for filing, the court finds
that the allegations of the petition are true, it shall render judgment for such
relief to which the petitioner is entitled.
The court may dismiss the petition if it finds the same to be patently without
merit or prosecuted manifestly for delay, or if the questions raised therein
are too unsubstantial to require consideration. In such event, the court may
award in favor of the respondent treble cost solitarily against the peti3tioner
and counsel, in addition to subjecting the counsel to administrative
sanctions under Rule 1390 and 139-B of the ROC.
Although the court is afforded judicial discretion in imposing treble cost,
there remains a need to show that it is sound and with basis, in that all
pertinent circumstances are taken into due consideration, the reason
therefor must be clearly explained.
Petition for prohibition
Prohibition is a preventive remedy seeking a judgement ordering the
respondent tr to desist from continuing with the commission of an act
perceived to be illegal. It lies against the exercise of judicial, quasi-judicial or
ministerial functions, not against the exercise of legislative or quasi-
legislative functions.
The requisite of a petition for prohibition are:
1. The impugned act must be that of a tribunal, corporation, board,
officer, or person, whether exercising judicial, quasi-judicial or
ministerial functions;
2. The respondent judge or tribunal issued the order without or in
excess of jurisdiction or with grave abuse of discretion, or the
assailed interlocutory order is patently erroneous; and
3. There is no plain, speedy, and adequate remedy in the ordinary
course of law.
The purpose of the writ of prohibition is to keep a lower court within the
limits of its jurisdiction in order to maintain the administration of justice in
orderly channels. Prohibition is proper remedy to afford relief against
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usurpation of jurisdiction or power by an inferior court, or when, in the
exercise of jurisdiction in handling matters clearly within its cognizance, the
inferior court transgresses the bounds prescribed to it by the law, or where
there is no adequate remedy available in the ordinary course of law by which
such relief can be obtained. e
A petition for prohibition is proper to assail an order of execution. As a rule,
parties are not allowed to object to the execution of a final judgment. One
exception is when the terms of the judgment are not clear enough and there
remains room for its interpretation. If the execution applies, the respondent
may seek the stay of execution or the quashed of the writ. Of execution.
Although an order of execution is not appealable, an aggrieved party may
challenge the order of execution via an appropriate special civil action under
Rule 65 of the ROC.
Venue for filing petition for prohibition
In Landbank bs Atlanta Industries Inc., the SC clarified that if the petition
related to an act ort an omission of a municipal trial court or a corporation,
a board, an officer or a person, it shall be filed with the RTC exercising
jurisdiction over the territorial area as defined by the SC. It may also be filed
with the CA. if the petition involved an act or omission of a quasi-judicial
agency, unless otherwise provided by law or the rules, the petition shall be
filed with the cognizable by the CA.
Prohibition cannot restrain acts that are fait accompli
Prohibition will not lie when there are no further proceedings to be enjoined
or when the matter is fair accompli. Its proper function is to prevent the
doing of an act, which is about to be done. When, however, under the
circumstances, the act sought to be restrained can no longer be committed,
resort to such recourse is rendered futile for prohibition is not intended to
provide a remedy for acts already accomplished.
The SC in Tan ruled that although the plebiscite has been held a new
province proclaimed and its official appointed, the case before it cannot
truly be viewed as already moot and academic since the legality of the
plebiscite itself was challenged for non-compliance with constitutional
requisite. The SC found unacceptable the respondent's argument that the
controversy was already fait accompli and as such, the plebiscite in its effect
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should be passively acceded. A dismissal of the instant petition, as the
respondents so propose, was a proposition fraught with mischief.
Thus, in the light of the facts and circumstances alluded by the petitioners
as attending to the unusual rapid creation of the province after a swiftly
scheduled plebicit, it was founded in Tan that the Supreme Court had the
duty to repudiate and discourage the Commission of acts which run counter
to the mandate of the fundamental law, done with whatever branch of the
government. The Supreme Court will not look with favor upon those who
may be hereafter inclined to ram through all sorts of legislative measure and
then implement the same with indecent haste, even if such app would
violate the constitution and the prevailing statutes of the land. It was ruled
that it was illogical to ask the Supreme Court to be blind and deaf to protests
on the ground that what is already done is done.
Petition for mandamus
the peremptory writ of mandamus is an extraordinary remedy that is issued
only in extreme necessity, and the ordinary course of procedure is powerless
to offer than adequate and speedy relief to one who has a clear right to the
performance of the act to be compelled. The writ Is a properly course for
citizens who seek to enforce a public right and to compel the performance
of a public duty, most specially when the public right involves a mandate by
the constitution.
Before mandamus is issued, the following requisite should be satisfied:
1. petitioner must show a clear legal right to the act demanded;
2. respondent must have the duty to perform the act because the
same is mandated by law;
3. respondent unlawfully neglects the performance of the duty
enjoined by law;
4. the act to be performed in ministerial, not discretionary; and
5. there is no other plain, speedy, and adequate remedy in the
ordinary course of law.
The writ of mandamus, however, will not issue to compel and official to do
anything which is not his duty to do or which it this is duty not to do, or to
give to the applicant anything to which he is not entitled by law. Mandamus
may be resorted to only when once right is founded clearly in law and not
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when it is doubtful. The principal function of the writ of mandamus is to
command and to expedite, not to inquire and to adjudicate.
Manamus cannot be used to enforce contractual obligations.
The remedy of mandamus is available only to compel the performance of a
ministerial duty. If the law imposes a duty upon a public officer and gives
him the right to decide how or when the duty shall be performed, such duty
is discretionary and not ministerial. Their duty is ministerial only when the
discharge of the same requires neither the exercise of official discretion or
judgment.
When the act ought to be performed involves the exercise of discretion, the
respondent may only be directed by mandamus to act but not to act in one
way or the other period thus, mandamus will not lie to compel a court to
grant a new trial on the ground of newly discovered evidence.
Mandamus is available to compare the performance by public prosecutor of
an ostensibly discretionary function, where by reason of grave abuse of
discretion on his part, he willfully refuses to perform a duty mandated by
law. Thus, mandamus may issue to compel a prosecutor to file an
information when he refuses to do so in spite of the finding of prima facie
evidence of guilt or the sufficiency of the evidence. If it was already found
by the prosecutor that there exists probable cause, the exercise of discretion
is done, and the next step to be done after a finding of probable cause is to
file an information, which filing is no longer discretionary, after the finding
of probable cause. The filing of the information after a finding of probable
cause becomes mandatory, and the refusal to do so is tantamount to a
deliberate refusal to perform a duty enjoined by law.
Judgment under Rule 65 and execution of judgment
if the petition for certiorari is granted, the court, in the judgment, may annul
or modify the proceedings of the public respondent tribunal, board or
officer, and grant such incidental reliefs as law and justice may require, such
as and award for damages in favor of the petitioner, at the cost of the private
respondent.
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If the petition for prohibition is granted, the court, in the judgment, may For damages or costs awarded under Rule 65, the same may be executed in
command the public respondent to desist from further proceeding in the accordance with Sec. 1, Rule 39, by filing a motion for execution.
action or matter specified in the petition, or otherwise grants such incident
and reliefs as law and justice may require, such as an award for damage in
favor of the petitioner, at the cost of the private responded.

If the petition for mandamus is granted, the court, shall command the
respondent , immediately or at some other time to be specified by the court,
to do the act required to be done to protect the rights of the petitioner, and
to pay the damages sustained by the petitioner by reason of the wrongful
acts of the respondent.

In all instances, the public respondent nominal party will not answer for the
cost awarded in favor of the petitioner; it will be the private respondent who
shall be liable for the same.

In case of dismissal of the petition on the ground that it is patently without

merit, prosecuted manifestly for delay or the question raised there in are
too unsubstantial to require consideration, the court may, and its discretion,
also award in favor of the respondent treble costs solidarily against the
pretensioner end counsel, in addition to subjecting the said counsel to
administrative sanctions on their Rule 139 and 139-B.

The rules on service of judgment under Rule 13 for ordinary civil action will
not always apply, as the manner of the service of their judgment will depend
on the directive of the court.

Any disobedience to the judgment rendered in favor of the petitioner under

Rule 65 shall be punished as contempt; this is in consonance with Sec. 11,
Rule 39, which provides for the execution of special judgments. Judgment
under Rule 65 are in the nature of special judgments because they do not
involve judgments for money, conveyance or delivery of deeds, or the sale
or delivery of real or personal property. A special judgment directs the
performance of a specific act to be personally done only by the party held
responsible to do so because of his personal qualifications and
circumstances.

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 RULE 68
FORECLOSURE OF REAL ESTATE MORTGAGE
A real estate mortgage it's a contract in which the obligor guarantees to the
obligee the fulfillment of a principle obligation, subjecting for the faithful
compliance there with a real property in case of non fulfilment of said
obligation at the time stipulated.
The essence of a contract of mortgage indebtedness is that a property has
been identified or set apart from the mass of the property of the debtor-
mortgagor as security for the payment of money or the fulfillment of an
obligation to answer the amount of indebtedness, in case of default in
payment. As provided under Art 2126 of the NCC, the mortgage directly and
immediately subjects the property upon which it is imposed, whoever the
processor may be, to the fulfillment of the obligation for those whose
security it was constituted.
The mortgage creates a real right, which: 1) follows the property; and 2) is
enforceable against the whole world. Thus, even if the mortgage property is
sold or its possession transferred to another, the property remains objective
the fulfillment of the obligation for whose security it was constituted.
Upon default of the mortgagor, foreclosure becomes a necessary
consequence of non-payment of the mortgage indebtedness.
In BPI vs Hontanosas, the Supreme Court ruled that a writ of preliminary
injunction will not lie to prevent a mortgagee from foreclosing on mortgage
on the ground that the debtor-mortgagor will lose his right to said property
mortgage. Foreclosure of mortgage is a remedy under low. The fear of loss
of property does not constitute irreparable injury as would warrant the
issuance of a writ of preliminary injunction.
Foreclosure of real estate mortgage may be done:
1. judicially, under Rule 68; or
2. extrajudicially, to be carried out pursuant to the provisions of Art
No. 3135 or the General Banking Laws of 2000, as the case may be.
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An action to enforce a right arising from a mortgage, such as a judicial
foreclosure of mortgage, should be enforced within 10 years from the time
the right of action accrues, i.e., when the mortgagor defaults in the payment
of his obligation to the mortgagee; otherwise, it will be barred by
prescription and the mortgage will lose his right under the mortgage. In
other words, prescription commences from the time the obligation becomes
due and demandable, or upon demand by the credit or go master case
maybe.
Jurisdiction and venue
B.P. 129, RTC or MTC based on assessed value.
While it may be said that the first stage in an action of real estate mortgage
deals with the issue of whether foreclosure is proper and hence, incapable
of pecuniary estimation, the Supreme Court has affirmed that still, the
court’s jurisdiction will be determined by the assessed value of the property
involved.
The complaint should allege the assessed value of the mortgage property
and the failure to do so shall be fatal to the plaintiffs cause.
The venue shall be where the area of the mortgage property or a portion
thereof is situated. Where a mortgage covers several parcels of land located
in different cities, such as in Marikina and Pasig, the action may be filed in a
city where any one of the mortgage property may be found, and the court
where the action is filed, for instance, in Marikina, would have jurisdiction
to enter a decree of foreclosure of mortgage covering the lands in the said
different cities of Marikina and Pasig.
foreclosure of mortgage is waiver of other remedies to collect the unpaid
debt
to recover over the debt, through the filing of a personal action for collection
of sum of money or the institution of a real action to foreclose on the
mortgage security. The creditor-mortgagee may pursue either of the 2
remedies, but not both. The two remedies are alternative, not communitive
or successive, and each remedy is complete by itself.
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For nonpayment of a loan secured by mortgage, the creditor has a single
cause of action against the debtor. This single cause of action consists in the
recovery of the credit with execution of the security. A single cause of action
may give rise to several reliefs, but only one action can be filed.
In a loan secured by a real estate mortgage, the creditor may ask for: 1) the
payment of the debt, or 2) the foreclosure of his mortgage. While the first is
a personal action and the second is a real action, these are just different
reliefs that arise from a single cause of action because ultimately, the end
goal of either case is for the creditor to be paid the loan. The money debt is
the principal thing; the foreclosure of the property is only the result, or an
incident of the failure to pay the indebtedness.
There exists only one cause of action for a single breach of that obligation.
If the creditor is allowed to file two separate complaints simultaneously or
successively, one to recover his credit and the other to foreclose his
mortgage, he will, in effect, be authorized to have plural redress for a single
breach of contract at so much cost to the court and with so much vexation
and oppression to the debtor. This should not be allowed.
Thus, if the creditor-mortgagee opts to foreclose the real estate mortgage,
he waives the action for the collection of the unpaid debt; however, the
creditor-mortgagee may still be entitled to recover whatever deficiency may
remain in the outstanding obligation of the debtor-mortgagor after
deducting the bid price and the public auction sale of the mortgage
properties. An unsatisfied judgment in a foreclosure of mortgage would still
give the creditor-mortgagee the right to a deficiency judgment, in which
case, all the properties of the debtor-mortgagor, other than the mortgage
property, would be open for him in the satisfaction of the deficiency. In case
of deficiency judgment, there is no violation of the rule against splitting of
course of action since the deficiency judgment will be obtained in the same
action for judicial foreclosure of real estate mortgage, in its third stage. No
separate and independent action will be filed to recover the deficiency. If
after the foreclosure sale there remains an unpaid balance of the
outstanding obligation and the creditor proceeds to institute a separate
action for collection of sum of money for the same, there will be a violation
of the rule against splitting of course of action. The remedy of the creditor-
mortgagee is to ask, by motion, for deficiency judgment and thereafter
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obtaining execution thereof in the same judicial foreclosure of real estate
mortgage action.
Conversely, the creditor-mortgagee may elect to waive his security and
brain, instead, and ordinary action to recover the indebtedness with the
right to execute a judgment there on all the properties of the debtor,
including the subject matter off the mortgage, subject to the qualification
that if the mortgagee fails in the remedy elected by him, he cannot pursue
further the remedy he has waived. When the mortgagee elects to file a suit
for collection and not for foreclosure, he abandons the mortgage as basis
for relief.
During he pendency of the collection of sum of money case filed by the
mortgagee, a writ of attachment may be obtained to attach the debtor-
mortgagor’s property, including the mortgaged property, should there be
grounds existing that warrant the issue once of the said writ, pursuant to
Sec.1, Rule 57.
If the loan was secured by a real estate mortgage and postdated checks, and
subsequently, and information for violation of BP 22 was filed against the
debt or due to the said check being dishonoured, the creditor can no longer
find a separate civil action for collection of sum of money or an action for
judicial foreclosure of mortgage because they said criminal case was also in
effect collection suit for the recovery of the mortgage-debt.
Three stages in judicial foreclosure of real estate mortgage and multiple
appeals
There are three stages involved in an action for judicial foreclosure of
mortgage. The first stage starts with the filing of the complaint. In the first
stage, the court determines first whether the foreclosure is proper. The
court determines if there is a due and demandable loan supported by a real
estate mortgage that would warrant the foreclosure of the mortgage. The
creditor-mortgagee has the legitimate right to foreclose the mortgage
where the obligation is already past due.
The first stage ends, after trial , when the court shall render judgment on
the amount due and order the same to be paid to the court or to the
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judgment obligee within the equity of redemption period or the period said final deficiency judgment and to prevent the loss or dissipation of the
provided in the said judgment. property through fraud or other means.

The second stage begins after the period stipulated in their judgment lapse
and there is still failure to pay the sum adjudged in the first stage. A motion
shall then be filed, praying for the foreclosure sale of the mortgage property.
After the court orders the property be sold at a public auction, the proceeds
of the sales shall be paid in satisfaction of the outstanding obligation. The
second stage ends with the courts issue once of an order confirming the sale.
The third stage is for the purpose of obtaining a deficiency judgment or for
the satisfaction of the deficiency in the amount due as adjudged in the first
stage.
The deficiency judgment in the third stage may be satisfied by execution
pursuant to Rule 39, meaning that if the debtor-mortgagor is unable to pay
the deficiency, the property of the debtor-mortgagor, other than the
mortgaged property, may be attached, levied on or garnished and sold at a
public auction, with the proceeds therefore to be applied for the satisfaction
of the said deficiency.
In all three stages, the respective judgments or orders of the court may be
subject of appeal. Multiple appeals are allowed in the same case to cast the
rest of the case to proceed. In the event that a separate and distinct issue is
resolved by the court and held to be final. In such a case, the filing of a record
on appeal becomes indispensable since only a particular incident of the case
is brought to the appellate court for resolution with the rest of the
proceedings remaining with the jurisdiction of the trial court.
The same procedure for judicial foreclosure of real estate mortgage or so
applies to foreclosure of equitable mortgages. An equitable mortgage is one
which although lacking in some formality, or form or words, or other
requisites demanded by the statute, nevertheless reveals the intention of
the parties to charge real property as security for the debt and contains
nothing impossible or contrary to law.
Parties

To prevent the debtor-mortgagor from fraudulently disposing of the said

property during the pendency of the case, the creditor-mortgagee may avail
of the provisional remedy of a writ of preliminary attachment.

Upon the commencement of the judicial foreclosure of mortgage action or

at anytime before entry of judgment, a plaintiff may have the property of
the debtor-mortgagor, other than the mortgaged property, attach open
showing by affidavit of:
1. the insufficiency in the value of the mortgaged property to cover
the indebtedness due to the plaintiff; and
2. the existence of the grounds for the issuance of a writ of
preliminary attachment pursuant to Sec.1, Rule 57.
3.
The provisional remedy of a preliminary attachment may be availed of in an
action for judicial foreclosure of mortgage in order to seize upon the
property of the debtor-mortgagor, other than the mortgage property, in
advance of the final deficiently judgment, for the purpose of satisfying the

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 RULES OF PROCEDURE FOR ENVIRONMENTAL CASES
WRIT OF KALIKASAN
The writ is a remedy available to a natural or juridical person, entity
authorized by law, people’s organization, non-governmental organization,
or any public interest group accredited by or registered with any
governmental agency, on behalf of persons whose constitutional right to a
balanced and healthful ecology is violated, or threatened with violation by
an unlawful act or omission of a public official or employee, or private
individual or entity, involving environmental damage of such magnitude as
to prejudice the life, health or property of inhabitants in 2 or more cities or
provinces.
It is designed for a narrow but special purpose: to accord a stronger
protection for environmental rights, aiming, among others, to provide a
speedy and effective resolution of a case involving the violation of one’s
constitutional rights to a healthful and balanced ecology that transcends
political and territorial boundaries, and to address the potentially
exponential nature of large-scale ecological threats.
For a writ of kalikasan to issue, the following requisites must concur:
1. There is an actual or threatened violation of the constitutional
rights to a balanced and healthful ecology;
2. The actual or threatened violation arise from an unlawful act or
omission of a public official or employee or private individual or
entity; and
3. The actual or threatened violation involves or will lead to an
environmental damage of such magnitude as to prejudice the life,
health, or property of inhabitants in 2 or more cities of provinces.
The magnitude of environmental damage is a condition sine qua non in a
petition for the issuance of a writ of kalikasan and must be contained in a
verified petition.
The petition for a writ of kalikasan is in the nature of a citizen suit , which
may be filed by any Filipino citizen, in representation of others, including
minors or generations yet unborn, to enforce rights or obligations under
environmental laws.
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The petition for writ of kalikasan is a separate and distinct action from the
citizen suit under RA 9003 or the Ecological Solid Waste Management Act of
2000 and RA 8749 of the Philippine Clean Air Act of 1999, as held by the SC
in Osmena vs Gargarena. Hence, the SC ruled that the 30-day prior notice
requirement for citizen suits under the Ecological Solid Waste Managament
Act and the Philippine Clear Air Act does not apply to petitions for writ of
kalikasan.
Being extraordinary and equitable remedy, the writ of kalikasan cannot and
should not substitute other remedies that may be available to the parties.
The filling of a petition for the issuance of the wirt of kalikasan shall not
preclude the filling of a separate civil, criminal or administrative action, to
hold the respondent liable for the violation of environmental laws. Sec. 15,
Rule 7 of the Rule of Procedure in Environmental Cases, which provides that
a judgement in a petition for writ of kalikasan shall not include an award of
damages to the individual petitioners, and as such, the said damages should
be claimed in separate ordinary civil actions.
Jurisdiction
SC or with any of the stations of the CA, where the petitioner shall be except
from the payment of docket fees.
The petition, parties and legal standing
The petition shall be verified and shall allege the:
1. Personal circumstances of the petitioner;
2. Name and personal circumstances of the respondent or if the name
and personal circumstances are unknown and uncertain, the
respondent may be described by an assumed appellation;
3. The environmental law, rule or regulation violated or threatened to
be violated, the act or omission complained of, and the
environmental damage of such magnitude as to prejudice the life,
health or property of inhabitants in 2 or more cities or provinces;
4. All relevant and material evidence consisting of the affidavits or
witnesses, documentary evidence, scientific or other expert
studies, and if possible, object evidence;
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 5. The reliefs prayed for, which may include a prayer for the issuance
of Temporary Protection Order (TEPO); and
6. Certification against forum shopping
TEPO is similar to a Temporary Restraining Order. The TEPO may issue if it
appears from the petition with a prayer for the issuance of an Environmental
Protection Order (EPO) that the matter is of extreme urgency and the
applicant will suffer grave injustice and irreparable injury. The difference,
however, is that the temporary restraining order is only effective for a
maximum of 20 day, if issued by the trial court or 60 days if issued by the
CA, whereas the TEPO may be extended until the termination of the case,
regardless of which court issued the same.
In Rule 65 or for writs of certiorari, prohibition or mandamus, the petition
should be filed by a party that is directly injured or will be injured by the act
and omission complained of, but a petition for writ of kalikasan has a
liberalization policy on locus standi in that the petition may be filed on
behalf of those whose right is violated. In other words, the petitioner does
not have to be the one directly injured or affected by the environmental
disaster.
Parties that seek the issuance of the writ of kalikasan, whether on their own
or on others’ behalf, carry the burden of substantiating the writ’s elements,
and as such, before private parties or public interest groups may proceed
with the case, they must be ready with the evidence necessary for the
determination of the writ’s issuance.
Issuance and service of writ of kalikasan; proceedings
Upon the filing of the petition, the court will determine whether the
petition, is sufficient in form and substance. The petition may thus be
dismissed if not sufficient in form and substance.
If it is sufficient in form and substance, the court within 3 days from the date
of the filing of a petition, shall issue the writ of kalikasan and direct the
respondent to file a verified return within a non-extendible period of 10
days. The writ of kalikasan shall be issued under the seal of the court
together with a cease a desist order and other temporary reliefs that will be
effective until further order. In other words, the cease and desist order does
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not automatically have a prescribed period of effectively unlike temporary
restraining order since the effectivity of a cease and desist order will remain
until the court orders otherwise.
The writ of kalikasan shall then be personally served on the respondent by a
court officer or any person deputized by the court, who shall retain a copy
on which to make a return of service. If the writ cannot be served personally,
the rule on substitute service shall apply.
Similar to the omnibus motion rule, the verified return must contain all of
the respondent’s defenses that show that the respondent did not violate,
threaten to violate, allow the violation of any environmental law, rule or
regulation or commit any act resulting to environmental damage of such
magnitude as to prejudice the life, health or property of inhabitants in two
or more cities or province. Otherwise, all defenses not raised in the return
shall be deemed waived. Similar to the petition, the verified return shall
include the affidavits of witnesses, documentary evidence, scientific or
other expert studies, and if possible, object evidence, in support of the
defense of the respondent.
The denial of the allegations in the petition should be specific because a
general denial of the allegations in the petition shall be considered as an
admission thereof. The verified return should be limited to the respondent’s
defenses and should not include any crossclaims, counterclaims or third-
party complaints, as these are prohibited pleadings.
A motion for extension of time to file return is a prohibited motion. In the
event that the respondent fails to file a return, the respondent shall not be
declared in default because a motion to declare the respondent in default is
a prohibited motion. The court shall instead proceed to hear the petition ex
parte.
The respondent cannot file a motion to dismiss in lieu of a verified return,
nor can the respondent move for a bill of particular prior to filling a return
as these are prohibited motion.
Discovery measures
A party may file a verified motion for the issuance of:
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 1. Ocular inspection order; and
2. Production order for the production or inspection of documentary
or things.
(In both instances, there will be a hearing on the motion.)
For the ocular ispection, the motion must:
1. Show that an ocular inspection order is necessary to establish the
magnitude of the violation or the threat as to prejudice the life,
health or property of inhabitants in 2 or more cities or provinces
2. State in detail the place or places to be inspected; and
3. Be supported by affidavits of witnesses having personal knowledge
of the violation or threatened violation of environmental law.
The motion for production or inspection of documents or things must show
that a production order is necessary to establish the magnitude of the
violation or the threat as to prejudice the life, health or property of
inhabitants in 2 or more cities or provinces.
Judgement and prohibition on award of damages
Within 60 days from the time the petition is submitted for decision, the
court shall render judgment granting or denying the privilege of the writ of
kalikasan. The court cannot grant an award of damages to individual
petitioners and instead, may grant any of the following relief under the writ
of kalikasan:
1. Directing the respondents to permanent cease and desist from
committing acts or neglect the performance of a duty in violation
of environmental laws resulting in environmental destruction or
damage;
2. Directing the respondent public official, government agency,
private person or entity to protect, preserve, rehabilitate or restore
the environment;
3. Directing the respondent public official, government agency,
private person or entity to monitor strict compliance with the
decision and orders of the courts;
4. Directing the respondent public official, government agency, or
private person or entity to make periodical reports on the
execution of the final judgement; and
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5. Such other reliefs which relate to the right of the people to a
balanced and healthful ecology or to the protection, preservation,
rehabilitation or restoration of the environment.
A petition for writ of kalikasan partakes of the nature of a permanent
prohibitory and mandatory injunction. The TEPO may thus be converted to
a permanent EPO, which shall be effective until the judgement is fully
satisfied.
This does not include the creation of a trust fund for similar future
contingencies because the limited purpose of a special trust fund is for the
purpose of rehabilitating or restoring the environment that has presumably
already suffered, as provided under Sec. 1, Rule 5.
The judgement directing the performance of acts for the protection,
preservation or rehabilitation of the environment shall be executory
pending appeal unless restraining the appellate court.
Appeal
Within 15 days form the date of notice of the adverse judgement or denial
of motion for reconsideration, any party may appeal to the SC under Rule 45
of the ROC. The appeal may raise question of fact and law. This constitute
an exception to Rule 45 of the ROC because of the extraordinary nature of
the circumstances surrounding the issuance of a writ of kalikasan.
CONTINUING MANDAMUS
The SC then concluded that under continuing mandamus, it may, under
extraordinary circumstances, issue directives with the end in view of
ensuring that its decision would not be set to naught by administrative
inaction or indifference.
Rule 8 of the Rule of Procedure for Environmental Cases, the writ of
continuing mandamus enjoys a distinct procedure than that of ordinary civil
actions for the enforcement/violation of environmental laws.
The writ of continuing mandamus is a special civil action that may be availed
of to compel the performance of an act specifically enjoined by law. It is a
distinct remedy and procedure for allegations of unlawful neglect in the
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enforcement of environmental laws or the unla3wful exclusion of the use or
enjoyment of the environmental right.
The writ of continuing mandamus is a remedy that may be applied for when
agency or instrumentality of the government or officer thereof unlawfully
neglects the performance of an act which the law specifically enjoins as a
duty resulting from an office, trust or station in connection with the
enforcement or violation of an environmental law rule or regulation or a
right wherein, or unlawfully excludes another from the use of enjoyment of
such right and there is no other plain, speedy and adequate remedy in the
ordinary course of law. In other words, a writ of continuing mandamus is
issued by a court in an environmental case directing any agency or
instrumentality of the government or officer thereof to perform an act or
series of acts decreed by final judgement, which shall remain effective until
judgement is fully satisfied.
In writ of mandamus, the petitioner, must move for execution of judgement
in accordance with Rule 39, and, if the respondent refuses to comply with
the judgement, the remedy is to have the respondent punished for
contempt.
The writ of continuing mandamus, on the other hand, requires the
performance of a series of acts until the judgement is fully satisfied and the
respondent shall be directed to submit periodic reports detailing the
progress and execution of the judgement, until the judgement is fully
satisfied. The respondent’s compliance with the judgement shall also be
monitored and evaluated. In other words, the respondent has the burden to
show the faithful compliance with the judgment and its full satisfaction.
For a petition for continuing mandamus to proser, there must be a showing
of unlawful neglect on the part of the respondents to perform any act that
the law of the respondents to perform any act that the law specifically
enjoins as a duty. The writ of continuing mandamus cannot be resorted to
when the respondent is not the person obliged to perform the duty under
the law or when the period for the respondent to perform its legal duty has
not yet expired. The petition will also not prosper if petitioner seeks the
enforcement of a discretionary act, rather than a ministerial act.
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Jurisdiction
The following courts have jurisdiction over petitions for continuing
mandamus:
1. SC
2. CA
3. RTC exercising jurisdiction ion over the territory where the
actionable neglect or omission occurred
Because venue only related to the place of trial, and hence, procedural,
improper venue may be waived. A petition for writ of continuing mandamus
is a special civil action and it is not criminal in nature where venue is an
essential element of jurisdiction. Thus, if the case is filed in the wrong RTC
venue, the court should not motu proprio dismiss outright the petition on
the ground of lack of jurisdiction over the subject matter, especially when
there is waiver of thereof. The court may also transfer the case to the court
with the proper venue.
The petition, parties and legal standing
The verified petition should:
1. Allege the facts with certainty
2. Specific that the petition concerns an environmental law, rule or
regulation;
3. Be substantiated by attached supporting evidence;
4. Pray that judgement be rendered commanding the respondent to
do an act or series of acts until the judgement is fully satisfied, and
to pay damages sustained by the petitioner by reason of the
malicious neglect to perform the duties of the respondent, under
the law, rules or regulations.
5. The petition shall also contain a sworn certification of non-forum
shopping
The petition must contain substantive allegations specifically constituting an
actionable neglect or omission and must establish, at the very least, a prima
facie basis for the issuance of the writ:
1. An agency or instrumentality of government or its officer
unlawfully neglects the performance of an act or unlawfully
excludes another for the use or enjoyment of a right
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 2. The act to be performed by the government agency,
instrumentality or its officer is specifically enjoined by law as a duty
3. Such duty results from an office, trust or station in connection with
the enforcement or violation of an environmental law, rule or
regulation or a right therein; and
4. There is no other plain, speedy and adequate remedy in the course
of law.
Like a petition for issuance of a writ of kalikasan, the petition for writ of
continuing mandamus may also include a prayer for the issuance of a TEPO
for the preservation of the rights of the parties during the pendency of the
proceedings.
The petitioner shall be exempt from the payment of docket fees.
The petitioner should be the one who is aggrieved by an act or omission of
the government agency, instrumentality to its officer concerned. The rule
that the case must be instituted by a real party-in-interest under the
ordinary rules applies to petitions for continuing mandamus. In writ of
kalikasan, it is sufficient that the person filing represents the inhabitants
prejudiced by the environmental damage subject of the writ; a petition for
the issuance of a writ of continuing mandamus is only available to one who
is personally aggrieved by the unlawful act or omission.
The petition should be furnished the respondents but the failure to do so is
not a fatal defect that would warrant the immediate dismissal of the case.
Issuance and service of writ of continuing mandamus, proceedings
The petition filed should be sufficient in form and substance before a court
may take further action; otherwise, the court may dismiss the petition
outright.
If the court finds the petition to be sufficient in form and substance, the
court shall issue the writ of continuing mandamus and require the
respondent to comment on the petition within 10 days from receipt of said
order, which shall be served on the respondent in such manner as the court
may direct, together with a copy of the petition and any annexes thereto.
This service of the writ of continuing mandamus is different from the service
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of the writ of kalikasan, which is done personally on the respondent by a
court officer, or any person deputized by the court, who shall retain a copy
on which to make a return of service. In case the writ of kalikasan cannot be
served personally, the rule on substituted service shall apply.
It is not necessary that there should have first been a previous judgement in
a separate case finding the respondents to have violated an environmental
law before the writ of continuing mandamus may be issued.
After the comment is filed or after the lapse of the period for filling the
comment, the court may hear the case which shall be summary in nature or
require the parties to submit memoranda. In kalikasan, the court will
proceed to hear the petition ex parte if the respondent fails to file a return.
In kalikasan, there are prohibited pleadings and motions specified therein.
These prohibited pleadings and motions are not found under writ of
continuing mandamus.
Judgement and return of the writ of continuing mandamus
If warranted, the court shall grant the privilege of the writ of continuing
mandamus requiring the respondent to perform an act or series of acts until
the judgement is fully satisfied and to grant such other reliefs as may be
warranted resulting from the wrongful or illegal acts of the respondent.
Unlike in writ of kalikasan, the court, in cases involving writ of continuing
mandamus, may render judgement directing the payment of damages
sustained by the petitioner by reason of the malicious neglect to perform
the duties of the respondent udert the law, rules or regulations.
These periodic reports shall be contained in partial returns of the writ.
The petitioner may submit its comments or observations on the execution
of the judgement.
Requiring the periodic submission of compliance reports does not mean that
the court acquires supervisory powers over administrative agencies. This
interpretation would violate the principle of the separation of powers.
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A writ of continuing mandamus is, in essence, a command of continuing
compliance with a final judgment as it permits the court to retain jurisdiction
after judgement in order to ensure the successful implementation of the
reliefs mandated under the court’s decision.
Appeal
The remedy against a decision in a continuing mandamus case appears to
be appeal by Petition for Review on Certiorari under Rule 45 of the ROC.
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RULE 66
QUO WARRANTO
The term quo warranto is Latin for “by what authority”.
Quo warranto is a demand made by the state upon some individual or
corporation to show by what right they exercise some franchise or privilege
appertaining to the state which, according to the constitution and laws of
the land, they cannot legally exercise except by virtue of a grant or authority
from the state. Quo warranto is a writ of inquiry; it determines whether an
individual has the legal right to hold the public office he occupies.
Quo warranto is an action for the usurpation of a public office, position or
franchise.
A petition for quo warranto it's a proceeding to determine the right of a
person to the use or exercise of a franchise or office and to oust the holder
from its enjoyment , if his claim is not well founded, or if he has forfeited his
right to enjoy the privilege.
A quo warranto proceeding in relation to an office may refer to an elective
or appointive office. In quo warranto proceedings referring to offices filled
by election, what is to be determined is the eligibility of the candidate
elected, while in quo warranto proceeding referring to offices filled by
appointment, what is determined is the legality of the appointment.
Rule 66 governs quo warranto proceedings in relation to appointive offices.
For elective offices, the applicable rules are those under the COMELEC rules
of procedure and the rules of the House of Representatives electoral
tribunal (HRET) in the Senate electoral tribunal (SET), as the case may be.
Quo warranto proceedings under Rule 66 may be availed of to determine
whether a franchise is in breach of the legislative franchise specifically
enacted for it by the congress, as would warrant the cancellation of the said
franchise or the prevention of its exercise.
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Quo warranto Is specifically available as a remedy if it is thought that a
government corporation has offended against its corporate charter or
misused its franchise.
By law, the NTC is in capacity to frustrate such mandate by unduly
withholding or canceling the rotational authority or CPC for reasons other
than the orderly administration of the frequencies in the radio spectrum.
The remedy is to bring and action for quo warranto for the cancellation of
the respondents provisional authority and the CPC because to cancel the
professional authority or the CPC is, in effect, to cancel the franchise or
otherwise prevent it's exercise.
Sec.1c, Rule 66 also provides that quo warranto proceedings may be brought
against an association which acts as a corporation within the Philippines
without being legally incorporated or without lawful authority so to act.
Actions of quo warranto against corporations, or against person who usurps
and office in a corporation are governed by the Interim Rule on Procedure
Governing Intra-Corporate Controversies and not by Rule 66.
While Sec. 5.2 of the SRC categorically provides that the RTC has jurisdiction
over intra corporate controversies, Rule 66 will not apply there to and
instead, the interim rules will apply to the petitions for quo warranto against
corporations, or against persons who usurps an office in a corporation, such
as a case involving the authority to assume the office and act as the board
of directors and officers of the corporation.
Quo warranto and mandamus
The writ of quo warranto and mandamus appear to be similar remedies.
However, these remedies are distinct from each other, although they may
be availed of as concurrent remedies. The SC has explained the distinction
between the two writs:
1. Quo warranto is the remedy to try the right to an office or franchise
and to oust the holder from its enjoyment, while mandamus only
lies to enforce clear legal duties, not to try disputed titles
2. where there is usurpation or intrusion into an office, quo warranto
is the proper remedy, and on the other hand, where the
respondent,without claiming any right to an office, excludes the
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petitioner therefrom, the remedy is mandamus, not quo warranto;
and
3. quo warranto vests the title to one's office claimed by another and
has as its object the ouster of the holder from its enjoyment, while
mandamus appeals to enforce clear legal duties and not to try
disputed titles.
Thus, a title to a public office may only be contested directly by quo
warranto proceedings.
The SC held that while the petition was denominated as one for certiorari
and prohibition, it partook of the nature of a quo warranto proceeding as it
sought to declare void the respondent appointment as sandiganbayan
associate justice for being unconstitutional. For being a collateral attack on
a public officer’s title, the petition for certiorari and prohibition were
dismissed. The SC ruled that a title to a public office may not be contested
except directly, by quo warranto proceedings. The title to public office
cannot be assailed collaterally, even through mandamus, motion to annul or
set aside an order of appointment, or prohibition; these improper remedies
would not lie to inquire into the validity of the appointment of a public
officer.
According to the SC, the petition was in the nature of a quo warranto and
although as a rule, would not lie to determine the title of a de facto officer,
in this case, however, no one is entitled to the office who may institute the
quo warranto case, and the only other party who may institute the
proceedings, was the respondent (Sol. Gen) and would not proceed against
himself.
Jurisdiction and venue
the following have jurisdiction over quo warranto proceedings:
1. SC
2. CA
3. Sandiganbayan
4. RTC
5. MTC
6. COMELEC
7. SET
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 8. HRET
The rule on hierarchy of courts must still be strictly observed. A direct
invocation of the supreme court's original jurisdiction to issue these writs
should be allowed only when there are special and important reasons
therefore, clearly and specifically set out in the petition.
The Supreme Court has allowed original petitions for certiorari, prohibition,
mandamus and quo warranto assailing acts of the legislative officers like the
Senate President, the speaker of the House and Senate Minority Leader to
be directly filed with it , as recognized exception so the rules on hierarchy of
courts.
In Republic vs Sereno, The Supreme Court allowed the direct filing of a
petition for quo warranto with it, as an exception to the doctrine of
hierarchy of courts, because the actual questioned the qualification of no
less than a member of the Supreme Court. The petition was also considered
of transcendental importance.
The RTC has original jurisdiction over the following quo warranto
proceedings:
1. in relation to appointed officials, concurrent with the SC and CA
2. those contesting the election of any municipal officer and
3. those against corporations or persons who usurp an office in a
corporation, pursuant to the Securities Regulation Code.
Sec. 2 of RA 10660 provides that the Sandiganbayan has exclusive original
jurisdiction over petitions for the issuance of the writs of mandamus,
prohibition, certiorari, habeas corpus, injunction and other ancillary writs
and processes in aid of its appellate jurisdiction and over petitions of similar
nature, including quo warranto, arising or that may arise in cases filed or
which may be filed under EO 1, 2, 14, 14-A, provided, that the jurisdiction
over these petitions shall not be exclusive of the Supreme Court.
The Supreme Court held that the Sandiganbayan me, however, as an
exception, exercise jurisdiction over petitions for quo warranto when it
involves an incident arising from or related to PCGG cases over ill-gotten
wealth within the context of Sec. 2 of EO 14.
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MTC have exclusive original jurisdiction over all election contests involving
elective barangay officials.
COMELEC has exclusive original jurisdiction over quo warranto proceedings
to contest the election of any regional, provincial or city officer and any
member of Congress, before said member of Congress takes his oath of
office after his proclamation. Once the said member takes his oath of office
after his proclamation, the quo warranto petition before the COMELEC can
no longer prosper because Sec. 17, Art IV of the constitution provides that
the HRET or SET shall be the sole judge of all contests relating to the election,
returns, and qualifications of their respective members. Thus, a petition for
quo warranto may instead be filed in the HRET or SET, as the case may be,
and it shall be directed against one who has been duly elected and
proclaimed for having obtained the highest number of votes but whose
eligibility is in question at the time of such proclamation.
The rules on venue in ordinary civil cases under Rule 4 will not apply to quo
warranto. if the case is filed with the RTC, the venue shall be in the court
exercising jurisdiction over the territorial area where the respondent or any
of the respondents reside, unless the solicitor general commences the
action, in which case, the venue shall be in the city of Manila.
Quo warranto -Elective office
Under the Omnibus Election Code, the qualification off a registered
candidate to run for office for which his certificate of candidacy (COC) was
filed may be raised: 1) before election, in a petition to deny due course or to
cancel a COC, filed at anytime not later than 25 days from the time of the
filing of the COC, which shall be decided, after due notice and hearing, not
later than 15 days before the election; and 2) after election, in a quo
warranto proceeding, filed within 10 days after the proclamation of the
results of the election. A petition for quo warranto may be filed on the
ground off ineligibility or disloyalty to the Republic of the Philippines.
Sec. 253 of the OEC provides that a sworn petition for quo warranto may be
filed by any voter with the 1) COMELEC, to contest the election of any
member of the Congress, regional, provincial or city officer; 2) RTC, to
contest the election of any municipal officer; and 3) MTC to contest the
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election of a barangay officer, within 10 days after the proclamation of the
results of the election, on the ground of 1) ineligibility or 2) disloyalty to the
Republic of the Philippines.
The 10 day period within which to file a petition for quo warranto shall be
suspended if there is a pending pre proclamation controversy involving the
validity of the proclamation.
In quo warranto, the party bringing the action shall be designated as the
protestant, and the party against whom the action is brought shall be
designated as the protestee.
The winning party who was declared elected in the judgment in the quo
warranto case shall have the right to assume the office as soon as the
judgment becomes final. The court may adjudicate damages and attorneys
fees as it may deem just and as established by the evidence if the aggrieved
party has included such claims in his pleadings. The decision shall be
promulgated on a date set, of which due notice must be given to the parties;
it shall become final five days after its promulgation and no motion for
reconsideration shall be entertained.
From any decision of the trial court, the aggrieved party may appeal to the
COMELEC within five days after promulgation of the decision, by filing a
notice of appeal with the trial court that ordered the decision, with copy
serve on the adverse counsel or on the adverse party, if not represented by
counsel.
If it is the COMELEC that rendered the decision in a quo warranto case, then
the remedy is to file a petition for certiorari under Rule 64 in relation to Rule
65 with the Supreme Court.
Period within which to institute a petition for quo warranto under Rule 66
A petition for quo warranto affecting titles to public office must be filed
within one year from the date the petitioner is ousted from his position. The
period fixed in the rule for filing a petition for quo warranto it's a condition
precedent to the existence of cause of action, with the result that, if the
action is not filed within one year, it cannot prosper, although the matter is
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not set up in the answer or motion to dismiss; the court may, on its own,
dismissed the action for being filed out of time.
If they do not do so within a period of 1 year, they shall be considered as
having lost their right thereto by abandonment.
The Supreme Court ruled that the pendency of an administrative remedy did
not suspend the period within which a petition for quo warranto should be
filed.
The Supreme Court in Torres, ruled that the pendency of the petitioners
administrative remedies did not to suspend the period within which a
petition for quo warranto should be filed. The Supreme Court ruled that
while it may be desirable that administrative remedies be first resorted to,
no one is compelled or bound to do so; and as said remedies neither are
requisite to, nor bar, the institution of quo warranto proceedings, it follows
that he who claims the right to hold the public office allegedly usurped buy
another and who desires to seek redress in the court, should file the proper
judicial action within the reglementary period. Public interest requires that
the right to a public office should be determined as speedily as practicable.
The one year limitation only applies against private individuals claiming right
to a public office, and not against the state.
The Supreme Court had the opportunity to explain the rule that the one-
year reglementary period does not apply to petitions for quo warranto
where it is the government itself that sues for public interest and seeks relief
for a public wrong in the landmark case of Republic vs Sereno, which
involves a petition for quo warranto filed by the Republic of the Philippines
through the office of the solicitor general for the ouster of then Chief Justice
of the Supreme Court. The Supreme Court gave the following reasons for
the in applicability of the one year prescriptive period to the said case:
First. If it is to be instituted by the state itself, through the solicitor
general, there is no claim of right over a public office. The state files
the petition to question the eligibility of the person holding the
public office. Unlike constitutionally protected rights,
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 constitutionally required qualifications for a public office can never
be waived either deliberately or by mere passage of time.
Second. Sec. 2, Rule 66 categorically provides that the solicitor
general must commence the action for quo warranto When
directed by the president, when upon complaint or otherwise when
the solicitor general has good reason to believe that any case
specified in Sec. 1, Rule 66 on the grounds for filing said action can
be established by proof. The use of the word most shows that the
solicitor general is mandated under the rules to commence the
necessary quo warranto petition when any of the three instances
warranting the filing of the same under Sec/ 1. Rule 66 are present.
Fourth. The state is not bound by the statute of limitations nor by
latches, acquiescence or unreasonable delay on the part of its
officers. The doctrine of laches, furthermore, does not apply when
the cause of action is brought by the state seeking to protect the
public.
5th. The remedy of quo warranto is intended to prevent a
continuing exercise of an authority unlawfully asserted. Because
quo warranto serves to end a continuous usurpation , no statute of
limitations apply to the action.
After giving the foregoing reasons for the inapplicability of the one year
limitation in Sereno, the Supreme Court clarified that it is not abolishing the
limitation set by the rules and instituting a petition for quo warranto. The
one-year prescriptive period under Sec. 11, Rule 66 still stands. When filed
by the state at its own instance, through the solicitor general, prescription
shall not apply. The Supreme Court further clarified that the rule does not
equate to a blanket authority given to the solicitor general to
indiscriminately file baseless quo warranto actions in disregard of the
constitutionally protected rights of individuals. The prescriptive period
applies when: 1) filed by the solicitor general or the public prosecutor at the
request and upon relation of another person, with leave of course; and 2)
when filed by an individual in his or her own name. However, they said
reglementary period will not apply in either case when established
jurisprudential exceptions are present.
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Section 11, Rule 66 also provides that an option for damages after a
judgment in favor of the petitioner may only be filed within one year after
the entry of judgment establishing the petitioner's right to the office in
question.
The damage pertains to that which the petitioner may recover against the
respondent in case judgment is rendered in favor of the petitioner, for the
damage is he sustained by reason of the respondent usurpation. The claim
for damages springs from the complained of in quo warranto proceeding.
Under ordinary rules, the failure to raise the claim for damages in the main
case would bar a subsequent action therefore, on the ground of res judicata
and the prohibition against splitting a single cause of action. However, rule
66 allows such splitting of cause of action, provided that the action for
damages is commenced within one year after the entry of the judgment
establishing the petitioner's right to the office in question.
Commencement of action, legal standing, course of action and proceeding
An action for quo warranto may be brought by a verified petition in the
name of the Republic of the Philippines against: 1) a person who usurps,
intrudes into, or unlawfully holds or exercise or public office, position or
franchise; 2) a public officer who does or suffers an act which, by the
provisions of law, constitute a ground for the forfeiture of his office; or 3)
and association which acts as a corporation within the Philippines without
being legally incorporated or without lawful authority to do so. The action
for quo warranto may also be brought in the name of an individual, if the
said action is instituted by a person claiming to be entitled to a public office
or position usurped or unlawfully held or exercised by another.
An action for quo warranto maybe comments by:
1. the solicitor general
2. a public prosecutor or
3. a person claiming to be entitled to a public office or position
usurped or unlawfully held or exercise by another
The solicitor general or a public prosecutor must bring an action for quo
warranto when:
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 1. directed by the president of the Philippines
2. upon complaint or otherwise he has a good reason to believe that
any of the grounds under Sec.1, Rule 66 can be established by
proofs.
The solicitor general or a public prosecutor may also bring an action for quo
warranto, with the permission of the court in which the action is to be
commenced, at the request and upon the relation of another person, also
known as a relator. The solicitor general or the public prosecutor bringing
this end action May 1st require an indemnity for the expenses and costs of
the action in an amount approved by and to be deposited in the court by the
person at whose request and upon whose relation the same is brought.
A relator or ex relatione (by or on the relation of) is one whose name the
solicitor general brings the action for quo warranto.
In the exercise of sound discretion, the solicitor general may suspend or turn
down the institution of an action for quo warranto where there are just
invalid reasons. The solicitor general is given permissible latitude within his
legal authority in actions for quo warranto, circumscribed only by the
national interest and the government policy on the matter at hand.
However, once evidence is found to sufficiently established the grounds
under Sec. 1, Rule 66, then the solicitor general or public prosecutor cannot
refuse to file the action; he must bring the action for quo warranto.
notably, and individual may, as a relator, make a request to the solicitor
general or the public prosecutor to obtain permission from the court for the
solicitor general or public prosecutor to bring the action for quo warranto.
Alternatively, the person claiming to be entitled to a public office or position
urusped or unlawfully held or exercised by another may also bring an action
for quo warranto in his own name. In such case, there is no need for the
state, through the solicitor general or the public prosecutor to institute the
action since Sec. 5, Rule 66 allows the private party alone, and without the
intervention of the government, to test the right of a person to occupy a
public position; the government, however, may ask permission to intervene
in case or to appear as amicus curiae.
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If a person claiming to be entitled to a public office or position usurped or
unlawfully held or exercised by another bring an action for quo warranto in
his own name, he must: 1) aver in his petition that the respondent is
unlawfully in possession of the subject office or position; and 2) show a clear
right to the contested office.
The petitioner's failure to establish this right warrants the dismissal of the
suit for lack of cause of action; it is not even necessary to pass up on the
right of the respondent who, by virtue of his appointment, continues in the
undisturbed possession of his office.
In Aguinaldo vs Aquino, the petitioners, who we're nominees of the 16th
Sandiganbayan associate justice, were found not to have any clear right to
said position, and therefore, not proper parties to a quo warranto
proceeding. The Supreme Court ruled that being included in the list of
nominees only gave them the possibility, not the certainty, of being
appointed to the position, given the discretionary power of the president in
making judicial appointments.
In General vs Urro, the Supreme Court ruled that an acting appointee has no
cause of action for a quo warranto case against the new appointee. The
essence of an acting appointment is its temporariness and its consequent
revocability at any time by the appointing authority.
The burden of proof depends on how the action is instituted. If the action is
brought by the solicitor general or the public prosecutor, the burden of
proof is on the respondent to show that he has a valid title. When the
Republic of the Philippines brings the action for quo warranto through the
solicitor general or the public prosecutor, the respondent is being called
upon to answer by what right he holds the office or franchise under dispute.
If it is the individual cleaning a right to an office that brings an action for quo
warranto, then the said petitioner has the burden of proof to show that the
respondent is disqualified from holding the position or office.
In quo warranto, the court may reduce the period provided by the rules for
filing pleadings and for all other proceedings in the action at its discretion,
in order to secure the most expeditious determination of the matters
involved therein, consistent with the rights of the parties. The quo warranto
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action may be given precedence over any other civil matters pending in
court.
The court will determine whether the petitioner's claim is well founded or
not.
In Republic vs Sereno, the Supreme Court found the republic's claim that the
respondent was unlawfully holding the office of the Chief Justice of the
Supreme Court was well founded.
Failure to file the SALN is a violation of the law. A public official who
has failed to comply with the requirements of filing the SALN
cannot be said to be of proven integrity and the court may consider
him or her disqualified from holding public office.
Upon a finding that the respondent is in fact ineligible to hold the
position of Chief Justice and is therefore unlawfully holding and
exercising such public office, the consequent judgment under Sec.
9, Rule 66 is the ouster and exclusion of the respondent from
holding and exercising the rights, function and duties of the office
of the Chief Justice.
Quo warranto as a remedy to oust an ineligible public official may be availed
of, provided that the requisites for the commencement thereof are present,
when the subject act or omission was committed prior to or at the time of
appointment or election relating to an official qualification to hold office as
to render such appointment or election invalid. Acts or omissions, even if it
relates to the qualification of integrity being a continuing requirement but
nonetheless committed during the incumbency of a validly appointed and
or validly elected official cannot be the subject of a quo warranto
proceeding, but of impeachment if the public official concern is impeachable
and the act or omission constitute an impeachable offense, or to
disciplinary, administrative or criminal action, if otherwise.
Quo warranto may be filed against an impeachable officer and is not
inconsistent with impeachment proceedings
In Republic vs Sereno, the Supreme Court ruled that a petition for quo
warranto may be filed against an impeachable officer and that the pendency
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of impeachment proceedings against the said impeachable officer was not
inconsistent with and would not borrow the filing of a petition for quo
warranto against the said impeachable officer. The existence of other
remedies against the usurper does not prevent the state from commencing
a quo warranto proceeding. They are not mutually exclusive and they may
proceed simultaneously. In so ruling, the Supreme Court gave the following
reasons:
First. impeachment and quo warranto are materially different here
you're their origin, nature and purpose are different. They are
distinct as to: 1) jurisdiction; 2) grounds; 3) applicable rules
pertaining to initiation, filing and dismissal; and 4) limitations.
Although both may result in the ouster of the public official, they
differ in that impeachment proceedings or political in nature, while
and action for quo warranto its judicial, or preceding traditionally
lodged in the courts.
Secondly. In quo warranto, the cause of action lies on the usurping,
intruding, or unlawfully holding or exercising of a public office,
while in impeachment, it is the commission of an impeachable
offense. Impeachment necessarily presupposes that the
respondent legally holds the public office and thus, is an
impeachable officer, the only issue being whether or not she
committed impeachable offenses to warrant for remove all from
office. In quo warranto case, the respondent it's not being
prosecuted for such impeachable offenses enumerated in the
articles of impeachment. Respondent's title to hold a public office
is the issue in quo warranto proceedings.
The relief sought in the two proceedings are different. The
respondent in quo warranto proceeding shall be adjudged to cease
from holding a public office, which she is ineligible to hold. On the
other hand, in impeachment, conviction for the charges of
impeachable offenses shall result in the removal of the respondent
from the public office that she is legally holding period it is not
legally possible to impeach or remove a person from an office that
she, in the first place, does not and cannot legally hold or occupy.
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Third. There is no forum shopping. Litis pendentia is not present. A
final decision in one will not strictly constitute as res judicata to the
other. A judgment in quo warranto determines the respondent's
constitutional or legal authority to perform any act in, or exercise
any function of the office to which she lays claim; meanwhile, a
judgment in an impeachment proceeding pertains to the
respondent's fitness for public office.
Fourth. Impeachment is not an exclusive remedy by which an
individual appointed or a validly elected impeachable official may
be removed from office.
The plain language of Sec. 2, Art XI of the constitution does not
preclude a quo warranto actually questioning an impeachable
officers qualification (which includes age, citizenship, and
professional experience) to assume office. These qualifications are
outside the purview of impeachment under the constitution.
To construe Sec. 2, Art XI of the constitution as proscribing a quo
warranto petition to deprived state of remedy to correct a public
wrong arising from defective or void appointments. Quo warranto
should be available to question the validity of appointment
especially of impeachable officers since they occupy the upper
echelons of government and are capable of wielding vast power
and influence on matters of law and policy.
While the solicitor general has operative in the institution of an
action for quo warranto, it's exercise of such discretion in subjects
to the court said of you. It should not be forgotten that the solicitor
general is an officer of the court, task to share in the duty and
responsibility of dispensing justice and resolving disputes.
Judgment
If the court finds for the respondent, the judgment should simply state that
the respondent is entitled to the office.
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If the court finds for the petitioner in declares the respondent guilty of
usurping, intruding into, or unlawfully holding or exercising the office, the
court, in the judgment may order:
1. the ouster and exclusion of the defendant from office
2. recovery of cost by the plaintiff or relator; and
3. the determination of their respective rights in and to the office,
position, right, privilege or franchise of all the parties to the action
as justice requires.
The petitioner or the person adjudged entitled to the office, after taking his
oath of office and executing any official bond required by law, may take
upon himself the execution of the office, and may immediately thereafter
demand of the respondent all the books and papers in the respondent's
custody or control appertaining to the office to which the judgment relates.
If the respondent refuses or neglects to deliver any book or paper pursuant
to such demand, he may be punished for contempt as having disobeyed a
lawful order of the court.
The person adjudged may also bring an action against the respondent to
recover the damages sustained by such person by reason of the usurpation,
provided that the same shall be commenced within one year after the entry
of the judgment establishing the petitioner's right to the office in question.
The remedies available in a quo warranto judgment do not include
correction or reversal of acts taken under the ostensible authority of an
office or franchise; judgment is limited to ouster or forfeiture and may not
be imposed retroactively upon prior exercise of official or corporate duties.
In Mendoza vs Allas, the Supreme Court ruled that ordinarily, a judgment
against a public officer in regard to a public right binds his successor in office,
but this rule, however, is not applicable in quo warranto cases. A judgment
in quo warranto does not bind the respondent successor in office, even
though such successor may trace his title to the same source; this follows
from the nature of the writ of quo warranto itself because it is never directed
to an officer as such, but always against the person - to determine whether
he is constitutionally or legally authorized to perform any act in, or exercise
any function of the office to which he lays claim.
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After the respondent was appointed to another office, the vacant position RULE 67
EXPROPRIATION

Eminent domain and expropriation

Expropriation is the procedure for enforcing the right of eminent domain. In
expropriation, the private owner is deprived of property against his will.

Expropriation is the procedure for the forced taking of private property for
public use and is resorted to when the owner and the expropriating
authority are unable to enter into an agreement for the sale of the property
sought to be taken by the government for public use.

Requisites of a valid expropriation:

1. Taking of private property for public use
2. Payment of just compensation and
3. Due process of law is observed in the taking of the property

Property already owned by the State may still be the subject of

expropriation when it is under the possession of private individuals under a
just title.

A public property already devoted to public use, however, can no longer be

taken for another pubic use.

Two phases involved in expropriation

1. Phase one – determines the propriety of the expropriation
proceedings
2. Phase two – determination of just compensation

The first phase determines the propriety of the action; it determines the
authority of the plaintiff to exercise the power of eminent domain and the
propriety of its exercise in the contest of the facts involved in the suit

It ends with an order, either:

1. Dismissing the action; or
2. Declaring that the plaintiff has a lawful right to take the property
sought to be condemned, for public use or purpose described in the

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 complaint, upon payment of just compensation to be determined
as of the date of the filling of the complaint.
The order of dismissal and of expropriation are both final. The remedy to
assail such order of dismissal or of expropriation is an appeal. if no appeal is
taken to the order of expropriation, it would mean that the authority to
expropriate and the public use of the property can no longer be questioned.
The second phase involves the determination by the court of the just
compensation for the property sought to be taken, with the assistance of
not more than 3 commissioners.
Jurisdiction
The subject of an expropriation suit is the government’s exercise of eminent
domain, a matter that is incapable of pecuniary estimation. (Hence,
jurisdiction is with the RTC)
In Barangay San Roque, the SC ruled that while it is true that the property to
be expropriated is estimated in monetary terms as a consequence of the
court’s duty to determine just compensation, this, however, is merely
incidental to the expropriation suit. The amount of just compensation is
determined only after the court is satisfied with the propriety of the
expropriation, which is incapable of pecuniary estimation. Thus, it may be
argues that an action for expropriation falls within the exclusive original
jurisdiction of the RTC.
The jurisdiction over the expropriation case still remains with the RTTC,
provided that the expropriation case commences in the first phase. In the
first phase, the court determines whether the expropriation is proper, which
is a matter incapable of pecuniary estimation and hence, would fall under
the exclusive original jurisdiction of the RTC.
In inverse condemnation, there is taking of the property by the
expropriating authority but without institution of an expropriation case, and
as a result, the landowner is constrained to file a case (inverse
condemnation), so that the landowner will be paid just compensation for
the property taken. In inverse condemnation, the objective is to recover the
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value of the property taken in fact by the expropriating authority even
though no formal exercise of the power of eminent domain was attempted
by the taking agency.
The second phase, by its nature, is a real action, involving the interest of the
landowner over the property, particularly, the payment of just
compensation.
In summary, it is respectfully submitted that if the expropriation case
commences with the first phase, i.e., the determination of whether the
expropriation is proper, then the RTC has exclusive original jurisdiction over
the same since such subject matter is incapable of pecuniary estimation. If
the case is one for inverse condemnation, meaning that it starts with the
second phase of expropriation, i.e., the determination of just compensation
for the real property involved, then the jurisdiction of the court will depend
of the assessed value of the land, since the second phase or inverse
condemnation involves a real action.
Inverse condemnation; ejectment and injunction not proper remedies to
prevent the exercise of power of eminent domain
When there is taking by the government of private property for public use,
the right to just compensation cannot be barred by prescription.
The SC in Sangkay explained that in inverse condemnation, the objective is
to recover the value of the property taken in fact by the governmental
defendant, even though no formal exercise of the power of eminent domain
has been attempted by the taking agency. On the other hand, the action for
damages seeks to vindicate a legal wrong through damages, which may be
actual, moral, nominal, temperate, liquidated or exemplary. When a right is
exercise in a manner not conformable with the norms enshrined in Art 19 of
the NCC and the exercise results to the damage of another, a legal wrong is
committed and the wrongdoer is held responsible. The action to recover just
compensation is based on the Constitution while the action for damages is
predicated on statutory enactments. The fact that the owner, rather than
he expropriator, bring the action for just compensation does not change the
essential nature of the suit as an inverse condemnation, for the suit is not
based on tort, but on the constitutional prohibition against the taking of the
property without just compensation.
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In inverse condemnation, the action is instituted by the landowner for just
compensation after his property has been taken by the government and
structures were built thereon, without the government filing the
appropriate expropriation case. Since the action is filed for just
compensation, a constitutional right, the same shall not be barred by laches.
However, in most inverse condemnation proceedings, the issue to be solved
would be the amount of just compensation and not whether the
expropriation was proper, considering that there was equitable estoppel on
the part of the landowner, who did not assail the validity of taking at the
earliest opportunity. (NTC vs Bermuda Development Corp.)
In De Ynchausti vs Manila Electric Railroad and Light Co., the SC ruled that
the owner of the land, who stands by, without objection, and sees a public
railroad constructed over his land, cannot, after the road is completed, or
large expenditures have been made thereon upon faith of his apparent
acquiescence, reclaim the land, or enjoin its use by the railroad company. In
such a case, there can only remain to be the owner a right to compensation.
In NTC vs Bermuda, the SC ruled that the ejectment case would not prosper
for reasons of public policy and public necessity as well as equitable
estoppel. The proper recourse, in such a case, was for the ejectment court
to:
1. Dismiss the case without prejudice to the landowner filling the
proper action for recovery of just compensation and consequential
damages; or
2. Dismiss the case and direct the government to institute the proper
expropriation or condemnation proceedings and to pay the just
compensation and consequential damages assessed therein; or
3. Continue with the case as if it were an expropriation case and
determine the just compensation and consequential damages
pursuant to Rule 67, if the ejectment court has jurisdiction over the
value of the subject land.
First phase
Prior to the institution of expropriation proceedings, an offer to purchase
the property shall first be made on the owner of the property sought to be
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expropriated and is case of failure to arrive at a perfected sale, then
expropriation proceedings ay commence.
Expropriation proceedings or court intervention would be unnecessary
should a deed of sale be executed where the parties come to an agreement
as to the price of the property to be sold.
Also, in expropriation, the State’s acquisition of the expropriated property
is subject to the condition that the property will be returned should the
public purpose for which the expropriation was done did not materialize. On
the other hand, a sale contract between the State and private persons is not
subject to his same condition unless the parties stipulate it. Additionally, in
expropriation cases, the payment of interest is related to the computation
of just compensation, which is judicially determined; in voluntary sale, the
parties could freely negotiate the terms and conditions of the contract such
as including or excluding a provision on interest.
Money and choses in action, however, cannot be the subject of
expropriation.
A person claiming a legal interest on the land sought to be expropriated who
was not impleaded as a defendant has the right to intervene and to lay a
claim in the just compensation.
A party who was joined as a defendant but was not served with process and
the proceeding became already closed before he came to know of the
expropriation proceeding may maintain an independent suit for damages.
When the property already appears to belong to the Republic, there is no
sense in the Republic instituting expropriation proceedings against itself. It
can still, however, file a complaint for expropriation against the private
persons occupying the property.
In De Knecht vs CA, the SC ruled that mere possessors without any legal
interest on the land do not have the right to be joined as defendants in the
expropriation case involving the land they were occupying. They had not
right to intervene in the expropriation case. At time the expropriation case
was filed, they had already lost whatever right or colorable title they had
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over the land. (Possessors previously filed a case for reconveyance, which
the complaint was dismissed with finality months before the expropriation
case was filed. Their physical possession is merely tolerated.)
Defenses
If a defendant has no objection or defense to the taking of his property, he
may file and serve a notice of appearance and a manifestation to that effect,
specifically designating or identifying the property in which he claims to be
interested, within the time stated in the summons.
This means that the court will continue with the proceeding in the first phase
without any opposition from the defendant, and as such, the defendant, in
effect, would no longer participate in the proceedings. However, the
defendant would still be entitled to notice of all proceedings. This does not
mean that the defendant would no longer participate in the second phase.
The non-participation will only pertain to the first phase, on the propriety of
the expropriation, which defendant manifest that he is not objecting to.
Once an Order for Expropriation is issued, the second phase would
commence and the defendant would still be entitled to present evidence as
to the amount of the compensation to be paid regarding his property.
Should the defendant have: 1) objections to the filing of the complaint or
any of the allegations therein; or 2) defenses to the taking of his property,
the defendant must allege and raise all defenses and objections in an
answer, to be served and filed within the period stated in the summons for
doing so. The failure to raise all defenses and objections in the answer shall
be deemed a waiver thereof.
The rule expressly prohibits the inclusion of counterclaim, cross-claim or
third-party complaints in the answer or any subsequent pleadings.
The issue raised in the answer will be fully ventilated in a full-blown trial and
hearing during the first phase.
A defendant who fails to file an answer within the time provided for doing
so in the summons may be declared in default, he being considered to have
waived his right to do so. The default, or the waiver due to the failure to
raise all defenses or objections in the answer, is only limited to the first
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phase of the expropriation proceedings. This finds support in Sec. 3, Rule 67,
which provides that at the trial of the issue of the just compensation or the
second phase, whether or nor a defendant has previously appeared or
answered, he may present evidence as to the amount of the compensation
to be paid for his property, and he may share in the distribution of the
award.
In case of a default, the defendant would only be barred from participating
in the first phase, but the default order would not affect the defendant’s
right to present evidence as to the amount of just compensation in the
second phase.
If it appears to the court that the expropriation is not for some public use,
then it becomes the duty if the court to dismiss the action. However, when
the defendant claims that his land suffered damages because of the
expropriation, the dismissal of the action should not foreclose the
defendant’s right to have his damages ascertained either in the same case
or in a separate action.
In other words, while the plaintiff in an expropriation case may move to
withdraw or dismiss the complaint, the dismissal upon the instance of the
plaintiff, would not cause the dismissal of the defendant’s claims against the
plaintiff for just compensation or damages, as the case may be, occasioned
by the institution of the expropriation case.
The SC rules that the dismissal, withdrawal or abandonment of the
expropriation case cannot be made arbitrarily. The expropriation case shall
not be automatically dismissed when the property ceases to be for public
use. The state must first file the appropriate motion to withdraw before the
trial court having jurisdiction over the proceeding, and the grant or denial of
any motion to withdraw in an expropriation proceeding will always be
subject to judicial discretion.
In NPC, the dismissal of the expropriation case was sustained, subject to the
reservation of the landowner’s right to recover damages either in the same
or in another action. The SC rules that in the event of dismissal of the
expropriation case, the claim for damages may be made either in a separate
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or in the same action, for all damages occasioned by the institution of the
expropriation case.
However, in National Housing Authority bs Heirs of Guivelondo, the SC
denied the petitioner’s motion to dismiss the expropriation case filed after
the order of expropriation were already issued by the court because the
defendant had already been prejudiced by the expropriation case. The SC
ruled that the plaintiff cannot be permitted to institute an expropriation
proceedings against ethe defendant only to abandon it later when it finds
the amount of just compensation is unacceptable.
Thus, the rule that expropriation proceedings must be dismissed when it is
determined that it is not for a public purpose, except when:
1. The trial court’s order already became final and executory;
2. The government already took possession of the property; and
3. The expropriation case already caused prejudice to the landowner.
Ordinarily, the dismissal of the expropriation case restores possession of the
expropriated land to the landowner. However, when possession of the land
cannot be turned over to the landowner because it is neither convenient nor
feasible anymore to do so, the only remedy available to the aggrieved
landlord is to demand payment of just compensation.
Right of entry / writ of possession
Any right to immediate possession of the subject property must be firmly
grounded on a valid compliance with Sec. 2, Rule 67, which provides that
upon filing of the complaint or anytime thereafter, and after due notice to
the defendant, the plaintiff shall have the right to take or enter upon the
possession of the real property involved if he deposits with the authorized
government depositary an amount equivalent to the assessed value of the
property for purposes of taxation to be held by such bank subject to the
orders of the court. However, if personal property is involved, its value shall
be provisionally ascertained and the amount to be deposited shall be
promptly fixed by the court.
1 Riano
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The foregoing rule does not apply to the immediate possession of the
premises sin relation to national government projects as a different basis of
amount to be deposited is required in such cases.
Thus, the requisite for authorized immediate entry in the expropriation
proceedings involving real property are:
1. The filling of a complaint for expropriation sufficient in form and
substance; and
2. The making of a deposit equivalent to the assessed value of the
property subject to expropriation.
Upon compliance with the requirements under Sec. 2, Rule 67, the court’s
issuance of a writ of possession becomes ministerial. The court may issue
the writ of possession once the plaintiff deposits an amount equivalent to
the assessed value of the property, without need of a hearing to determine
the provisional sum to be deposited.
How the local government unit may immediately take possession of the
property
Pursuant to Sec. 19 of RA 7160, the local government unit may immediately
take possession of the property when the following requirements are met:
1. Expropriation proceedings are filed; and
2. The local government makes a deposit with the proper court of at
least 15% of the fair market value of the property based on the
current tax declaration of the property to be expropriated. NOTE:
the amount to be paid for the property shall be based on the fair
market value at the time of the taking of the property. 1
Order of expropriation
An order of expropriation puts an end to any ambiguity regarding the right
of the plaintiff to condemn the defendant’s properties. The order of
expropriation will only be issued when:
1. The objections to and the defenses against the right of the plaintiff
to expropriate the property are overruled; or
2. No party appears to oppose the right to expropriate
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Because an order of expropriation merely determined the authority to
exercise the power of eminent domain and the propriety of such exercise,
its issuance does not hinge on the payment of just compensation; there
would be no point in determining just compensation if, in the first place, the
plaintiff’s right to expropriate the property was not first clearly established.
Payment of just compensation is not sine qua non to the issuance of an order
of expropriation.
If it appears to the court that the expropriation is not for some public use,
then it becomes the duty of the court to dismiss the action for expropriation,
without prejudice to the defendant’s right to have his damages ascertained
in same case or in a separate action if the defendant claims that his land
suffered damages because of the expropriation.
Public use which is traditionally understood as strictly limited to actual “use
by the public” has already been abandoned; public use has now been held
to be synonymous with “public interest”, “public benefit,” and “public
convenience.”
An order of expropriation denotes the end of the first phase of
expropriation, and paves the way for the second phase – the determination
of just compensation, and ultimately, payment.
An order of expropriation is considered a final order sustaining the right to
expropriate the property, and thus, may be subject of appeal by the
aggrieved party.
The appeal, however, will not prevent the court from proceeding with the
second phase of the expropriation proceeding for the determination of just
compensation to be paid pursuant to Sec. 4, Rule 67.
In actions for expropriation, since no less than 2 appeals are allowed by law,
the period for appeal from an order of condemnation is 30 days counted
from notice thereof and not the ordinary period of 15 days prescribed for
actions in general because a record on appeal is required to be filed and
served.
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After an order of expropriation is issued, the plaintiff shall not be permitted
to dismiss or discontinue the proceedings, except on such terms as the court
deems just and equitable, as when there will be judgement declaring the
expropriating authority liable for the damages suffered by the landowner as
a consequence of the expropriation proceedings initiated.
Second Phase
Mandatory appointment of commissioners; exceptions
Sec. 5, Rule 67 provides that upon the rendition of the order of
expropriation, the court shall appoint not more than 3 competent and
disinterested persons as commissioners to ascertain and report to the court
the just compensation for the property sought to be taken.
Thus, in determining the amount of just compensation in an expropriation
suit, a trial abefore the commissioner is indispensable. While it is true that
the ascertainment of just compensation is a judicial prerogative and the
findings of commissioners may be disregarded in that the trial court may
substitute its own estimate of the value, the court may only do so for valid
reasons; that is, where the commissioners have applied illegal principles to
the evidence submitted to them, where they have disregarded a clear
preponderance of evidence, or where the amount allowed is either grossly
inadequate or excessive. As such, the appointment of commissioners for
recommending just compensation is a substantial right that may not be
whimsically waived.
The procedure for the mandatory appointment of commissioners is waived
when the government itself initially violates procedural requirements, as in:
1. Actions for damages filed by the landowner where there is taking
without institution of expropriation proceedings; or
2. Inverse condemnation proceedings to recover just compensation.
In Province of Davao Del Norte vs Buenaventura-Navarro, the SC ruled that
the application of the provisions of Rule 67 presupposes a prior filling with
the appropriate court a complaint for eminent domain by the expropriator.
If no such complaint is filed, the expropriator is considered to have violated
procedural requirements, and hence, has waived the usual procedure
prescribed in Rule 67, including the appointment of commissioners to
ascertain just compensation. When there is no action for expropriation and
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the case involves only a complaint for damages or just compensation, the
provisions of the ROC on ascertainment of just compensation are no longer
applicable, and a trial before commissioner is dispensable.
In NPC, the SC rules that the case ceased to be an action for expropriation
when the NOPC dismissed its complaint for expropriation. Since the case
was reduced to be a simple case of recovery of damages, the provisions of
Rule 67 on the ascertainment of the just compensation to be paid were no
longer applicable. A trial before commissioners, for instance, was
dispensable.
In NPC vs Asoque, the SC categorically ruled that when an inverse
condemnation is filed, the provisions for appointment of commissioners
under Rule 32 – not Sec. 5, 6, 7 or 8 of Rule 67 – will be followed. In this case,
the SC sustained the appointment of a commissioner pursuant to Rule 32 of
the ROC for the presentation of evidence ex parte in an inverse
condemnation case. For failing to appear at the pre-trail without any
justifiable reason, the court granted the respondent’s motion to present
their evidence ex parte before the court appointed commissioner, pursuant
to Rule 32.
It is respectfully submitted that the appointment of commissioners under
Rule 32 may not always be applied in inverse condemnation cases
considering that Rule 32 expressly provided that reference to commissioner
may be done by order of the court upon: 1) written consent of the parties;
2) application of either of the parties when both do not consent; 3) the
court’s own motion. The use of word may in Sec. 1 and 2 of Rule 32 shows
that the appointment of commissioner is directory, rather than mandatory.
Also in Spouses Asoque, the NPC did not appear during the pretrial despite
due notice, which prompted the respondent to move for the presentation
of evidence ex parte before a commissioner. An inverse condemnation case
would not always involve an instance where there would be a granted
motion for the presentation of evidence ex parte before a commissioner, as
it may be possible that the expropriating authority would appear and
participate in the pretrial. Thus, it is admitted that what is indubitable in
Spouses Asoque is that the appointment of commissioner under Rule 67 it's
not mandatory and inverse condemnation cases.
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Proceedings by commissioners and the court's determination of just
compensation
Just compensation has been defined as the fair and full equivalent of the
loss that the owner of the thing expropriated has to suffer by design of the
expropriation or of the property taken from its owner by the expropriate or.
The true measure is not the taker’s gain but the owner’s loss.
To prove just compensation, the parties may present evidence before the
commissioners, who shall be authorized to administer oaths on hearings
before then.
The opportunity to present evidence before the commissioner is part of due
process, as held by the Supreme Court in NPC vs Spouses Asoque. Here, the
SC ruled that the commissioner's findings arrived at with no trial or hearing
conducted to afford the parties the opportunity to present their own
evidence should be discarded by the trial court.
In denying the argument that the hearing on the motion for reconsideration
cured the defect of lack of hearing before the commissioners for the
reception of evidence for just compensation, the SC in Spouses Asoque,
distinguished the hearing before the commissioner in the hearing on the
motion for reconsideration. At the hearing of a motion of reconsideration,
the trial court may not be more accommodating with the grant of hearing
dates, even if the movement has many available witnesses. The Supreme
Court concluded that the constitutional guarantee of two process still
requires that a party should be given the fullest end widest opportunity to
adduce evidence during trial, and the availment of a motion for
reconsideration will not satisfy a party strike to procedural due process,
unless his inability to adduce evidence during trial was due to his own fault
or negligence.
In making their report, the commissioner may consider several factors
existing at the time of taking was made by the government to determine the
fair market value of the property, in addition to the proffered documentary
evidence, such as:
1. location of the property;
2. size and prospective users of the property;
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 3. the neighborhood where the property is located, and the nearby
establishments;
4. all the facts as to the conditions of the property and its
surroundings, as well as the improvements and capabilities;
5. tax declarations; and
6. reference the other similar cases of expropriation, provided that
the similar case coincides with the time of taking, such as when the
case relied on was decided in the same year or time the taking of
the property happened, among others.
the commissioner shall then assess the consequential damages to the
property not taken and deduct from such consequential damages the
consequential benefits to be derived by the owner from the public use or
purpose of the property taken, the operations of its franchise by the
corporation or the carrying on of the business of the corporation or person
taking the property. In no case shall the consequential benefits exceed the
consequential damages assessed, or the owner be deprived of the actual
value of his property so taken.
It is not required that the commissioners report be unanimously agreed
upon them. the reports of the commissioners are merely advisory end
recommendatory in character, as far as the courts are concerned.
The court may disregard the findings of commissioners and substitute its
own estimate of the value, for valid reasons, such as when:
1. the commissioners applied illegal principles to the evidence
submitted to them;
2. the commissioners disregarded a clear preponderance of evidence;
and
3. the amount allowed is either grossly inadequate or excessive.
The court may consider the commissioners report but it must take its own
judicial determination in coming up with the just compensation and must
not only blindly adopt the said report. The determination of just
compensation and expropriation proceedings is essentially a judicial
prerogative, where the court is only aided by the appointed commissioners,
whose appointment is mandatory.
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The Supreme Court ruled that it was improper for the trial court to adopt
the values provided by the commissioners, without citing the basis
therefore.
Just compensation is a certainty as of the time of the taking, which usually
coincides with the commencement of the expropriation proceeding, but if
the institution of the actual in precedes entry into the property, then the
just compensation is to be a certain as of the time of the filing of the
complaint. In other words, the value of the time of the filing of the complaint
should be the basis for the determination of the value when the taking of
the property involved coincides with or is subsequent with the
commencement of the proceeding.
The following are the requisites of taking:
1. the expropriator must enter a private property;
2. the entrance into private property must be more than a
momentary period;
3. The entry into the property should be under warranty or color of
legal authority;
4. the property must be devoted to a public use or otherwise
informally appropriated or injuriously affected ; and
5. the utilization of the property for public use must be in such a way
as to oust the owner and deprive him of all beneficial enjoyment of
the property.
In determining just compensation, the market value of the property should
be fixed at the time of taking. The foregoing rule has recognized exceptions.
The initial possession that was not for purpose of expropriation. The NPC
then sought an easement of right of way, but the trial court ruled that
easement of right of way could not be acquired over the property and
instead, the NPC’s remedy was to expropriate the property. Thus, by way of
the exception and due to the peculiar circumstances in the case, the SC
sustained the conclusion that the market value be reckoned from the date
the trial court made its order of expropriation.
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In inverse condemnation, the just compensation may be reckoned from the
time the property owner initiated the inverse condemnation proceeding
even if the taking of the property occurred earlier.
It was found in the Heirs of Sangkay that the expropriating authorities entry
denied elementary due process of law to the owners. There was necessity
to prevent the expropriating authority from unjustly profiting from its
deliberate act of denying due process of law to the owners. As a measure of
simple justice and ordinary fairness to them, reckoning just compensation
on the value at the time the owner commenced this inverse condemnation
proceedings is found to be entirely warranted.
In NPC vs Spouses Saludares, the SC ruled that the reckoning value of just
compensation is that prevailing at the time of the filing of the inverse
condemnation proceeding. To adequately compensate the property owners
from the decades of burden on their property, the Supreme Court ruled that
the expropriating authority should be made to pay the value of the property
at the time of the filing of the complaint for inverse condemnation or when
the property owners made their judicial demand for just compensation.
The Sc, however, emphasized that the ruling in Sangkay and Saludares are
only exceptions to general rule and the same may only apply to similar cases.
The rulings in Sangkay and Saludares Are more in consonance with the rules
of equity than with Rule 67. the practice of construct first, expropriate later
is reprehensible and must not be countenanced. The Supreme Court
emphasized, however, that courts must not lose sight of Sec. 4, Rule 67,
which mandates that just compensation must be determined as of the date
of the taking of the property or the filing of the complaint, whichever comes
first. This provision is, first and foremost, part of the rules which the
Supreme Court itself promulgated for purposes of uniformity, among
others.
To determine just compensation, the trial court should ascertain first the
market value of the property, to which should be added the consequential
damages after the ducting therefrom the consequential benefits which may
arise from the expropriation. If the consequential benefit exceeds the
consequential damages, these items should be disregarded altogether as
the basic value of the property should be paid in every case.
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Where only part of the certain property is expropriated, the owner is not
restricted to compensation for the portion actually taken, he is also entitled
to recover the consequential damages, if any, to the remaining part of the
property.
Thus, if the entire area of the owner’s property is being expropriated, and
not merely a portion thereof, then an award of consequential damages
would not be warranted. Should the subject property be expropriated in its
entirety, there is no more remaining portion which may suffer an
impairment or decrease in value as a result of the expropriation. Hence in
such case, the award of consequential damages would be improper.
In Republic vs Salvador, the SC held that capital gains tax do not fall within
the definition of consequential damages that the plaintiff must pay the
defendant. Since capital gains tax is a tax on passive income, it is the seller
or the defendant, who shall be liable to shoulder the tax.
The SC further explained in Salvador that consequential damages are only
awarded if as a result of the expropriation, the remaining property of the
owner suffers from an impairment or decrease in value. Given that the
payment of capital gains tax on the transfer of the subject property has no
effect on the increase or decrease in value of the remaining property, it can
hardly be considered as consequential damages that may be awarded to the
defendant operating owner.
On the other hand, if the expropriation results in the benefit to the
remaining lot of the owner, these consequential benefits may be the ducted
from the awarded consequential damages, if any, or from the market value
of the expropriated property.
Land swap in lieu of the termination of just compensation in expropriation
proceedings
Some laws allow for the acquisition of private lands through other means.
For instance, RA 7279 or Urban Development Housing Act of 1992, provides,
among others, that land swapping is a mode of acquiring lands for purposes
of the set up.
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The Supreme Court ruled that the law did not preclude parties into agreeing
that the private individual pay an additional amount in case the value of the
private land is lesser compared to the public land involved in the land swap.
Thus, it was held that the petitioner in the city may enter into a modified
land swap in that the former must pay an amount corresponding to the
difference in value between the private and public lands involved. In doing
so, the city government would, in effect, be receiving properties of
commensurate value to the property it would be giving in exchange.
(Regarding RA 7279)
another example of the law authorizing land swap is RA 10752 or Right-of-
way Act, in relation to national government projects. Instead of being paid
the money value of his property, the owner of a property needed for a right
of way of a national project may request the government to exchange or
barter and old abandoned government road or other government property
near the project with his property that is being sought to be taken by the
government.
Remedies against the local government unit expropriating authority that did
not enact an ordinance to satisfy their judgment declaring the amount of
just compensation
SC held that the proper remedy for enforcing final money judgements
against the government or any of its agencies or instrumentalities is to seek
relief with the COA, which must act upon it within 60 days and any rejection
of the claim will authorize the claimant to elevate the matter to the SC on
certiorari and, in effect, sue the state thereby, pursuant to the SC
Administrative Circular 10-2000 dated Oct. 25, 2000.
The trial court should not direct immediate implementation of the wreath
of execution of the funds of the expropriating government authority but
should instead allow the parties recourse to the processes of COA.
In Star Special Watchman and Detective Agency Inc., the SC held that
although the settled rule is that government properties are not subject to
levy and execution unless otherwise provided for by the statute , where
property of the municipal and other public corporation is thought to be
subjected to execution to satisfy judgment recovered against such
corporation, the question as to whether such property is levied or not is to
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be determined by the usage and purposes for which it is held. The rules on
whether the property may be subject of execution are summarized as
follows:
1. Properties held for public uses - and generally everything held for
governmental purposes - are not subject to levy and sale under execution
against such corporation. The same rule applies to funds in the hands of a
public officer and taxes due to a municipal corporation.
2. Where a municipal corporation owns in its proprietary capacity, as
distinguished from its public or governmental capacity, property not used or
used for a public purpose but for quasi-private purposes, it is the general
rule that such property may be seized and sold under execution against the
corporation.
3. Property held for public purposes is not subject to execution merely
because it is temporarily used for private purposes. If the public use is wholly
abandoned, such property becomes subject to execution.
Just compensation may incur legal interest when the expropriator had been
enjoying the use of the property for years without paying full amount of just
compensation
in case of undue delay in the payment of just compensation, an award of
legal interest on the amount due may be proper. Just compensation means
not only the correct determination of the amount due to the property owner
but also payment to him of the amount due within a reasonable time from
the taking. Just compensation in the context of eminent domain or
expropriation proceeding pertains to timely or prompt payment of adequate
value sufficient to recoup the loss suffered by the property owner.
Absent full payment, interest on the balance would necessarily be due on
the amount paid.
Thus, interest in eminent domain cases surrounds as a matter of law and
follows as a matter of course from the right of the landowner to be placed
in as good a position as money can accomplish, as of the date of taking.
With the ruling in Nacar vs Gallery Frames, the SC impose interest at the rate
of 12% per annum from the time of taking until June 30, 2013, and 6% per
annum from July 1, 2013 until full payment of just compensation.
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Exemplary damages and attorney’s fees, commissioner’s fees and costs of
the proceeding
Exemplary damages are appropriate when it is shown that the government
misused its power of eminent domain.
The Supreme Court has awarded attorney’s fees and exemplary damages in
favor of property owners when the government agency concerned occupied
the property for a prolonged period of time, without the benefit of
expropriation proceeding, and without even exerting effort to a certain
ownership of the lot and negotiating with any of the owners of the property
because such acts were considered as wanton and irresponsible which
should be suppressed and corrected.
The fees of the commissioner shall be taxed as part of the cost of the
preceding. All cost, except those of rival claimants litigating their claim, shall
be paid by the plaintiff, unless an appeal is taken by the owner of the
property and the judgment is affirmed, in which event the cost of the appeal
shall be paid by the owner.
Uncertain ownership or conflicting claims over the properties ought to be
expropriated
The court that hears the expropriation case also has jurisdiction to
determine in the same proceeding, the issue of ownership of lands ought to
be expropriated, pursuant to Sec. 9, Rule 67, which provides that if the
ownership of the property taken is uncertain, or there are conflicting themes
on the property, the court may order the just compensation to be paid to
the court for the benefit of the person a judge in the same proceeding to be
entitled thereto.
Party shall be allowed to present evidence to assert ownership over the
subject property, and the court may rule thereon, but only for the sole
purpose of determining who is entitled to just compensation. Such findings
of ownership in an expropriation proceeding should not be construed as
final and binding on the parties, insofar as the issue of ownership is
concerned. By filing an action for expropriation, the plaintiff merely served
notice that it is taking title to end possession of the property, and that the
defendant is asserting title to or interest in the property, not to prove the
right of possession, but to prove the right to compensation for the taking.
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This situation is akin to ejectment cases in which a court is temporarily
authorized to determine ownership, if only to determine who is entitled to
possession. This is not conclusive, and it remains open to challenge through
proper actions.
In other words, the trial court may provisionally determine the owner of the
property, only for the purpose of determining to whom just compensation
shall be paid. Such ruling, is without prejudice to the rights of the parties to
institute the appropriate separate proceeding to assert their claim over the
property.
Judgment and appeal
if the defendant and his counsel absent themselves from the court, or
declined to receive the amount tendered, the same shall be ordered to be
deposited in court and such deposit shall have the same effect as actual
payment thereof to the defendant or the person ultimately adjudged
entitled thereto.
The remedy against the judgment in the second phase is an appeal.
However, appeal shall not delay or prevent the right of the plaintiff to enter
upon the property of the defendant and appropriate the same for public use
or purpose.
If there is no appeal, their judgment becomes final. Their judgment entered
in expropriation proceedings shows state definitely, by an adequate
description, the particular property or interest therein expropriated, and the
nature of the public use or purpose for which it is expropriated.
When property owner may reacquire expropriated property
it is essential that the element of public use of property Ben be maintained
throughout the proceedings for expropriation. Withal, the mandatory
requirement of due process ought to be strictly followed, such that the state
must show, at the minimum, a genuine need, and exact public purpose to
take private property, the purpose to be specifically alleged or at least
reasonably deducible from the complaint. Thus, the expropriators should
commit to use the property pursuant to the purpose stated in the complaint
for expropriation filed, failing which, it should file another complaint for the
new purpose and if not, it is then incumbent upon the expropriator to turn
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the said property to its private owner, if the latter desire story acquired the
same.
In Ouano vs Republic, The Supreme Court allowed the previous owners of
the property expropriated to reacquire their respective lots since the
expropriation this premised on the condition that the owners would be
entitled to repurchase their respective lots in the event that they are no
longer used for airport purposes and the expansion and development of the
Lahug airport, which was the reason for the expropriation was abandoned.
Since the purpose of the expropriation was not met, then the lot owners can
demand reconveyance off their old property be subject to return off the just
compensation the received plus legal interest to be computed from default,
which in this case were drawn when the expropriating authority complied
with the reconveyance obligation, in addition to payment to the
expropriating authority of necessary expenses it might have incurred in
sustaining their respective lots and the monetary value of its services in
managing the lots to the extent that the private owners were benefited
thereby.
Sc further ruled in Ouano that in accordance to Art. 1187 of the NCC on
mutual compensation, the expropriating authority may keep whatever
income or fruit it may have obtained from the parcel of land expropriated.
In turn, the former owners need not required the accounting of interest
earned by the amounts they receive as just compensation. Following Article
1189 which provides that if the thing is improved by its nature, or by time,
the improvements shall inure to benefit of the creditor, the previous owners
do not have to settle the appreciation of the values of their respective lots
as part of the reconveyance process , since the value increase is merely the
natural effect of nature and time.
In Mactan Cebu International Airport Authority vs Lozada, it was ruled that
the taking of private property, consequently the government exercise of its
power of eminent domain, is always subject to the condition that the
property be devoted to the specific public purpose for which it was taken. If
this particular purpose or intent is not initiated or not at all pursued, and is
peremptorily abandoned, then the former owners, if they so desire, may
seek the reversion of the property, subject to the return of the amount of
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just compensation received. In such a case, the exercise of the power of
eminent domain has become improper for lack of the required factual
justification. The ruling in this case does abandoned the ruling in fairly which
provides that if the degree of expropriation does not provide any condition
or provision that allows our version of property, the non-use their offered
not have the effect of defeating the title acquired by the expropriation
proceeding.
In Fery an expropriation suit was comments upon parcel of land to be used
aside for a public market. Instead of putting up a public market, residential
houses for release on the area were constructed. However, the previous
owners claim was defeated even if the municipality did not pursue it's public
purpose since the municipality acquired the free sample title to the land in
question, meaning that the same did not have any condition allowing for
reversion of property to the owner.
In abandoning Fery, the Supreme Court explain in Mactan that Fery was not
decided pursuant to our now sacredly held constitutional right that private
property shall not be taken for public use without just compensation. The
taking of private property by the government's power of eminent domain is
always subject to two mandatory requirements: 1) that it is for a particular
public purpose; and 2) that just compensation be paid to the property
owner. These requirements partake of the nature of implied conditions that
should be complied with to enable the expropriating authority to keep the
property expropriated.
Thus, there may be recovered by the land owner of an expropriated land if
the expropriation was not for a public purpose, as it would lack a mandatory
requirement, specifically, the taking before a particular public purpose,
which is an implied condition that should be complied with to enable the
expropriating authority to keep the property expropriated.
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 RA 10752
THE RIGHT-OF-WAY ACT
Coverage
RA 10752 increased the scope of coverage of national government projects.
It now refers to national government infrastructure project and its public
service facilities, engineering works and service contracts, including projects
undertaken by government owned and controlled corporation, oil projects
covered by Built-Operate-Transfer Law, and other related unnecessary
activities, such as site acquisition, supply or installation of equipment and
materials, implementation, construction, completion, operation,
maintenance it's, improvement, repair and rehabilitation, regardless of the
source of funding.
Right of way within the meaning of RA 10752 and its implementing rules
means a part or the entirety of a property, site or location, with defined
physical boundaries, use or required by a national government project.
These projects shall include, but not be limited to the following:
Highways, including expressways, roads, bridges, interchanges,
(1)
overpasses, tunnels, viaducts and related facilities;
(2) Railways, and mass transit facilities;
Port Infrastructure, like piers, wharves, quays, storage handling and
(3)
ferry services;
(4) Airports and air navigations facilities;
(5) Power generation, transmission and distribution facilities;
(6) Radio/Television broadcasting and telecommunication infrastructure;
(7) Information technology Infrastructure;
(8) Irrigation, flood control and drainage systems;
(9) Water and debris retention structures and dams;
(10) Water supply, sanitation, sewerage and waste management facilities;
(11) Land reclamation, dredging and development;
(12) Industrial and tourism estates;
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Government school buildings, hospitals, clinics and other buildings
(13)
and housing projects;
(14) Public markets and slaughter houses; and
Other similar or related infrastructure works and services of the
(15)
national government.
Local government units may also adopt the provisions of RA 10752 for use
in the acquisition of right of way for local government infrastructure
projects.
Mode of acquiring real property
there are several modes of acquiring property for government infrastructure
projects, such as by donation, negotiated sale, expropriation or any other
modes of acquisition as provided by law, such as exchange or barter,
easement of right of way, acquisition of subsurface right of way, among
others, and acquisition of land granted through Commonwelath Act No. 141,
as amended, otherwise known as the Public Land Act.
Upon approval of an infrastructure project by the head of the implementing
agency concerned, with funding authorized and the general appropriations
act end with defined right of way, no national government or LGU, within
two years from the date of notice of taking commercial allow any
development or construction, or issue any building, construction,
development, or business permit, which is contrary to the approved plans
and purposes after project within the right of way, unless explicitly
authorized by the head of the implementing agency for justifiable reasons.
For this purpose, the date of notice of taking is the date of the letter issued
by the implementing agency to the concerned land owners, after the
approval of the land acquisition plan and resettlement acquisition plan as
part of the detailed engineering design, informing them of the intent of the
implementing agency to acquire their land for the right of way.
Consequently, once a notice of taking is issued, a new structure or
improvement to an existing one on the land covered by the notice shall be
compensated. Similarly no informal settlers will be eligible for compensation
if their structures are built after the cut-off date for entitlements, which your
first through the first day of census undertaken as part of the land
acquisition plan and resettlement acquisition plan prepared after both the
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projects approved by the implementing agency and the detailed engineering
design.
Acquisition of properties under Commonwealth Act No. 141
Commonwealth Act No. 141 As amended by PD635 provides that lands
granted by patent shall be subject to a right of way strip not exceeding 60
meters in width for public highways, irrigation ditches, aqueducts, and other
similar works of the government or any public enterprise, free of charge,
except only when the value of the improvement existing their own that may
be affected. The right of way strip not exceeding 60 meters in with within
the land acquired under this said law is reserved by the government for
public use with damages to improvements only.
If the government decides to exercise its right to use the right of way strip
reserved for public use within the land acquired under Commonwealth Act
No 141, the owner is required to execute a quitclaim. The implementing
agency shall then take possession of the property affected by the right of
way without any compensation to the owner of the land, but shall pay the
owner the cost of the damages for the improvements within the land
equivalent to their replacement cost. If the owner refuses or is unable to
issue a quitclaim, the concern government officials responsible for the
implementation of projects are authorized to immediately take possession
of the portion of the property subject of the lien, as the need arises and
upon due notice to the owner. This is without prejudice to the implementing
agency resorting to appropriate proceeding to acquire immediate
possession of the property.
In Republic vs Regulto, the SC rules that the failure of the government to
oppose the subdivision of the property covered by the free patent is not a
waiver of the encumbrance imposed by Commonwealth Act No. 141.
PD 1381 also allows the government to utilize the reserve right of way strip
for temporary building for resident and or project engineers needed in the
prosecution of an infrastructure project. Once the infrastructure project is
completed in the temporary buildings used by resident or project engineers
are no longer needed, the possession of the portion of property used for the
building shall revert to the title holder.
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Donation
If the property owner agrees to donate the property to be acquired by the
implementing agency as right of way, a deed of donation shall immediately
be prepared.
The deed of donation shall be simple and unconditional, and shall contain
clauses through the effect that the donation is made not to defraud the
donor’s creditors, and that the donor has, if necessary, reserved for himself
and of property for his families subsistence, substance and support in case
the donor is a private individual.
The donation must be accepted by the implementing agency, which shall be
indicated in the deed of donation. The implementing agency shall then pay
the documentary stamp tax, transfer tax and registration fees, while the
donor shall pay any unpaid real property tax, if any.
Exchange or barter
By the contract of barter or exchange, one of the parties bind himself to give
a thing in consideration of the others promised to give another thing.
Instead of being paid the money value of his property, the owner of the
property needed for a right of way of a national government project may
request the government to exchange or barter and old abandoned
government road or other government property near the project with the
same property. The implementing agency may favourably consider this
mode, subject to the provisions of relevant laws in the following conditions:
a. The exchange shall be done on a “value-for-value” basis, i.e., the
properties being exchanged are equivalent in market value or price;
b. If the government property to be exchanged with the private
property was originally donated by a previous owner, the donation
must be verified to ensure that there is no condition which
prohibits the government from disposing of it to other private
persons. If the said government property was originally acquired
through sale, the previous owner shall have the first priority to re-
acquire the property if required by law or by the contract or deed
of sale;
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 c. Owners of property whose land abut the said abandoned
government road or other property shall not be deprived of access,
i.e., egress or ingress, to the new highway to be built, if any; and
d. The private property owner and the IA which are parties to the
exchange or barter agreement shall be subject to applicable CGT
and DST in accordance with BIR rules and regulations.
Easement of right-of-way
If the portion of a lot needed is minimal, such that the expense for surveying
or segregating that portion from the main lot would be very much more than
the value of the part of the lot needed, the implementing agency may, if the
property owner agrees, resorted the mode of easement of right of way
provided under the Civil Code.
This mode of right of way acquisition refers to a voluntary easement, which
is established by the will of the parties. The property owner will grant the
implementing agency the right to use the affected portion of the lot as right
of way, but the owner retains the ownership of that portion of the lot.
The implementing agency shall pay the owner the value of the portion of the
lot based on the existing zonal valuation declared by the BIR. In addition, the
implementing agency shall compensate the property owner the
replacement cost of any improvements and structures on the land affected
by the right of way.
Acquisition of subsurface right of way
The government or any of its authorized representatives shall not be
prevented from entry into and use of such private and government land
based surface owners or occupants, if such entry and use are made more
than 50 meters from the surface.
If the national government project involves underground works within a
depth of fifty (50) meters from the surface, the IA may undertake the mode
of acquisition in the following order:
a. Negotiate with the property owner a perpetual easement of ROW
for the subterranean portions of his property required by the
project; and
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b. Offer to acquire from the property owner the affected portion of
the land, including the affected structures, improvements, crops
and trees therein in accordance with the provisions of the Act.
To assist the implementing agency in determining the appropriate price
offer, the implementing agency may engage the services of a government
financial institution or an independent property appraiser. For acquisition of
subsurface right of way, the rules for negotiated sales should be followed
and applied.
Negotiated sale
The compensation prize to be offered by the implementing agency to the
land owner shall consist of the sum of the:
1. current market value of the land;
2. replacement costs of structures and improvements therein; and
3. current market value of crops and trees there in.
To expedite the proceeding, the property owner is given 30 days within
which they decide whether or not to accept the price offer. Should the
landowner reject the offer, or should the period lapse without there being
any acceptance, expropriation proceeding shall be comments, through the
appropriate implementing agency, the OSG, the Office of the Government
Corporate Counsel, or their deputies government or private legal counsel.
The landowner agrees to a negotiated sale, deed of absolute sale shall be
executed by the implementing agency and the property owner.
In case the sale pertains to structures and improvements only, the property
owner in the implementing agencies had execute an agreement to demolish
and remove improvement, provided that the property owner has submitted
to the implementing agency the necessary documents to establish proof of
ownership of the said structures and improvements.
Upon execution of the deed of sale, the implementing agency is required to
pay the property owner the following amounts of initial payments:
1. 50% of the negotiated price of the affected land, exclusive of taxes
remitted to the LGU concerned; and
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 2. 70% of the negotiated price of the affected structure,
improvements, crops and trees, exclusive of unpaid taxes remitted
to the LGU concerned.
The balance shall be paid as follows:
1. Where the property owner owns both the land and
structures/improvements, as provided in Section 5(g) of the Act,
the IA shall, at the periods stated below, pay the property owner
the remaining fifty percent (50%) of the negotiated price of the
affected land, and thirty percent (30%) of the affected structures,
improvements, crops and trees, exclusive of unpaid taxes remitted
to the LGU concerned under Section 6.9 of this IRR, provided that
the land is already completely cleared of structures, improvements,
crops and trees, as certified by the IA:
a. At the time of the transfer of title in the name of the Republic of
the Philippines, in cases where the land is wholly affected; and
b. At the time of the annotation of a deed of sale on the title, in cases
where the land is partially affected.
2. Where the property owner owns only the land, as provided in
Section 5(g) of the Act, the IA shall, at the periods stated below, pay
the property owner the remaining fifty percent (50%) of the
negotiated price of the affected land, exclusive of unpaid taxes
remitted to the LGU concerned under Section 6.9 of this IRR:
a. At the time of the transfer of title in the name of the Republic of
the Philippines, in cases where the land is wholly affected; and
b. At the time of the annotation of a deed of sale on the title, in cases
where the land is partially affected.
3. Where the property owner owns only the
structures/improvements, as provided in Section 5(g) of the Act,
the IA shall, at the periods stated below, pay the property owner
the remaining thirty percent (30%) of the affected structures,
improvements, crops and trees, exclusive of unpaid taxes remitted
to the LGU concerned under Section 6.9 of this IRR, immediately
after the IA has certified that the land is already completely cleared
of structures, improvements, crops and trees.
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a. At the time of the transfer of title in the name of the Republic of
the Philippines, in cases where the land is wholly affected; and
b. At the time of the annotation of a deed of sale on the title, in cases
where the land is partially affected.
However, if the land is entitled, as an additional condition to payment, the
landowner should present:
a. a Tax Declaration showing his and his predecessors' open and
continuous possession of the property for at least thirty (30) years;
b. Certification from the Department of Environment and Natural
Resources (DENR) that the land is alienable and disposable; and
c. Other documents that may show proof of ownership.
RA 10752 provides the implementing agency shall pay, for the account of
the seller, the capital gains tax, as well as documentary stamp tax, transfer
tax and registration fees, while the owner shall pay any unpaid real property
tax. The implementing agencies shall pay the capital gains tax to the BIR
based on the actual consideration stated in the deed of sale.
Defendants in the expropriation case
If no negotiated sale takes place, complaint for expropriation may be filed.
RA 10752 contemplate situations where the property owner cannot be
found, is unknown, or is deceased but without his estate having been
settled, or where there are conflicting claims. In such instances, the amount
you shall still be deposited with the court, who will then determine who is
entitled to the same.
Expropriation proceeding and immediate possession of the premises
Should the implementing agency wish to take possession of the premises for
it to start the implementation of the project during the pendency of the
expropriation case, the implementing agency shall immediately be posited
upper in favor of the owner the amount equivalent of:
1. 100% of the value of the land based on the current relevant zonal
valuation of the BIR you should not more than three years prior to
the filing of the expropriation complaint. If there is no zonal
valuation , or where the current zonal valuation has been enforced
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 for more than three years, the BIR it's mandated, within a period of
60 days from the date of filing of the expropriation case, to conduct
a zonal valuation of the area. By exception, if the completion of the
government infrastructure project is off like most urgency and
important, and there is no land classification or existing zonal
valuation of the area concerned, the implementing agency shall use
the BIRs zonal value and land classification of similar lands within
the adjacent vicinity as of the basis for the evaluation.
2. The replacement costs at current market value of the improvement
and structures as determined by: 1) the implementing agency; 2)
government financial institution with adequate experience in
property appraisal; and 3) an independent property appraiser
accredited by the BSP; and
3. The current market value of crops and trees located within the
property as determined by the government financial institution or
an independent property appraiser.
The foregoing deposit shall be made upon the filing of the complaint or at
anytime thereafter and after due notice is given to the defendant period
once add deposit is made, the cultural immediately issue to the
implementing agency edit of possession or in order to take possession of the
property and state the implementation of the project. The court then shall
issue the need of possession ex parte no hearing to be required.
Thus, RA 10752 Is the exception to the general rule in Sec. 2, Rule 67 that
upon the filing of the expropriation complaint, the plaintiff has the right to
take possession of the real property involved if he deposits with the
authorized government depositary an amount equivalent to assessed value
of the real property considering that the deposit under RA 10752 is based
on the sum of: 1) 100% of the current zonal value of the land; 2)
replacement cost; and 3) current market value of crops and trees located
within the property.
Nevertheless, whether the deposit is made under Rule 67 or RA 10752, the
amount serves the double purpose of: 1) pre-payment if the property is fully
expropriated and 2) indemnity for damages if the proceedings are
dismissed.
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Under RA 10752, The property owner sees immediate monetary
recompensation with the same degree of speed as the taking of his property.
Thus the court has the duty to ensure that the provisions of RA 10752 are
complied with, and in case of failure to do so, delete of possession shall not
issue.
The payment of the initial deposit after condition to the issuance of a writ
of possession is different from the payment of just compensation for the
expropriated property. The initial deposit does not substitute for the judicial
determination of just compensation. While the provisional value is based on
the current relevant zonal valuation, just compensation is based on the
prevailing fair market value of the property. The initial deposit refers to the
preliminary or provisional determination of the value of the property. The
payment to the property owner of a preliminary amount is one way to
ensure that the property will not be condemned arbitrarily. It is not a final
determination of just compensation and may not necessarily be equivalent
at the prevailing fair market value of the property period of course, it may
be a factor to consider in the determination of just compensation.
Nevertheless, there is no need for the determination with reasonable
certainty of the final amount of just compensation further it of possession
may be issued.
Just compensation, on the other hand, is the final determination of the fair
market value of the property.
RA 10752 there's not take away from the courts the power tour judicially
determined the amount of just compensation. It merely provides relevant
standards or guidelines in order to facilitate the determination of just
compensation, and sets the minimum price of the property as professional
value, to immediately recompensate their landowner with the same degree
of speed as the taking of property, which reconciles the inherent unease
attending expropriation proceedings with the possession of fundamental
equity. The court still has the power to determine the just compensation,
which RA 10752 recognizes.
Sec. 6 of RA 10752 provides that should the owner of the property contest
the implementing agencies proffered value, the court shall determine their
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just compensation to be paid the owner within 60 days from the filing of the
expropriation case.
Thus, after payment of the initial deposit, the parties may present evidence
in relation to just compensation and the court may proceed to determine
the same.
The court released the amount deposited to the owner upon presentation
of sufficient proof of ownership. This only applies where the issue of
ownership of the expropriate property is not contested.
In case the owner of the property cannot be found, if unknown, or deceased
in case word the estate has not been settled, after exerting due diligence, or
there are conflicting claims over the ownership of the property and
improvement and structures thereon, the implementing agency shall
deposit amount to the court for the benefit of the person to be adjudge in
the same proceeding as entitled thereto.
With regards to the taxes and fees relative to the transfer of title of the
property to the Republic through expropriation proceedings, the
implementing agency shall pay the documentary stamp tax, transfer tax and
registration fees, while the owner shall pay the capital gains tax in unpaid
real property taxes, and all other applicable taxes under the law. The owner
shall pay the capital gains tax to the BIR within 30 days after their judgment
in expropriation case has become final and executory. The implementing
agency shall pay the documentary stamp tax within five days after the close
of the month when the judgment in the expropriation case has become final
and executory.
Payment of interest
The implementing agency shall be liable for interest where there is delay in
full payment of the just compensation, which shall run from the date of
taking.
Under RA 10752, The implementing agency is required to pay at two stages.
The first is upon the filing of the complaint or at anytime thereafter, in order
for the implementing agency to secure the writ of possession to enter the
premises and commence the implementation of the project. The second is
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when the just compensation is determined by the court and the decision
becomes final and executory, in which case, the implementing agency shall
pay the owner the difference between the just compensation as determined
by the court and the amount initially paid.
In Felisa Agricultural Corp, Interest at the legal rate was awarded based on
the difference between the initial deposit and the final just compensation a
judge, counted from the time of taking until the amount was fully paid. The
Supreme Court ruled that the payment of provisional deposit did not
exclude the plaintiff from paying interest of the said difference, particularly
since in that case, the plaintiff refuses to pay just compensation at it did not
even institute expropriation proceedings, and the defended has been
deprived already of the user enjoyment of his property for 29 years.
Relocation of informal settles and writ of demolition
In case the expropriated land is occupied by informal settlers who refuse or
are unable to demolish their structures and other improvements therein,
despite the writ of possession issued by the court, the court shall issue with
the necessary right of demolition for the purposes of dismantling any and all
structures found within the subject property.
Sanctions for violation of RA 10752
The violation of any of the provisions of RA 10752 shall subject the
government official or employee concerned the appropriate administrative,
civil, or criminal sanctions, including suspension or dismissal from the
government service and for feature of benefits in accordance with the
provisions of the law.
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 RULE 68
FORECLOSURE OF REAL ESTATE MORTGAGE
A real estate mortgage is a contract in which the obligor guarantees to the
oblige the fulfillment of a principal obligation, subjecting for the faithful
compliance therewith a real property in case of nonfulfillment of said
obligation at the time stipulated.
The essence of a contract of mortgage indebtedness is that a property has
been identified or set apart from the mass of the property of the debtor-
mortgagor as security for the payment of money or the fulfillment of an
obligation, to answer the amount of indebtedness, in case of default in
payment. As provided under Art 2126 of the NCC, the mortgage directly and
immediately subjects the property upon which it is imposed, whoever the
possessor may be, to the fulfillment of the obligation for whose security it
was constituted.
The mortgage creates a real right, which: 1) follows the property; and 2) is
enforceable against the whole world. Thus, even if the mortgaged property
is sold or its possession transferred to another, the property remains subject
to the fulfillment of the obligation for whose security it was constituted.
Upon default of the mortgagor, foreclosure becomes a necessary
consequence of non-payment of the mortgage indebtedness.
In BPI vs Hontanosas, the SC ruled that the writ of preliminary injunction will
not lie to prevent a mortgagee from foreclosing a mortgage on the ground
that debtor-mortgagor would lose his right to the said property mortgaged.
Foreclosure of mortgage is a remedy under law. The fear of loss of property
does not constitute irreparable injury as would warrant the issuance of a
writ of preliminary injunction.
Foreclosure of real mortage may be done:
1. Judicially, under Rule 68; or
2. Extrajudicially, to be carried out pursuant to the provisions of Act
No. 31356 or the General Banking Laws of 2000, as the case
maybe.
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An action to enforce a right arising from a mortgage, such as a judicial
foreclosure of mortgage, should be enforced within 10 years from the time
the right of action accrue. i.e. when the mortgagor defaults in the payment
of his obligation to the mortgagee; otherwise, it will be barred by
prescription and the mortgagee will lose his right under the mortgage. In
other words, prescription commences from the time the obligation becomes
due and demandable, or upon demand by the creditor, as the case maybe.
Jurisdiction and venue
BP 129, the RTC exercises exclusive original jurisdiction over the action
where the assessed value of the property outside Metro Manila exceed
20,000 or where the assessed value exceeds 50,000 if the property involved
is in Metro Manila and the MTC exercises exclusive original jurisdiction over
the real action when the assessed value is not more than 20,000 or 50,000,
if the property involved is outside or within Metro Manila, respectively.
While it may be said that the first stage in an action of real estate mortgage
reals with the issue of whether foreclosure is proper and hence, incapable
of pecuniary estimation, the SC has affirmed that still, the court’s jurisdiction
will be determined by the assessed value of the property.
The complaint should allege the assessed value of the mortgaged real
property and the failure to do so shall be fatal to the plaintiff’s cause since
it cannot be determined which court would exercise jurisdiction over the
case.
The venue shall be where the area of the mortgaged property or a portion
thereof is situation.
Where a mortgage covers several parcel of land located in different cities,
such as in Marikina and Pasig, the action may be filed in the city where any
one of the mortgaged properties may be found, and the court where the
action is filed, for instance, in Marikina, would have jurisdiction to enter a
decree of foreclosure of mortgagee covering the lands in the said different
cities of Marikina and Pasig.
Foreclosure of mortgage is waiver of other different remedied to collect the
unpaid debt
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For non-payment of a loan secured by mortgage, the creditor has a single
cause of action against the debtor. The single cause of action consists in the
recovery of the credit with execution of the security. A single cause of action
may give rise to several reliefs, but only one action can be filed.
In a loan secured by a real estate mortgage, the creditor may ask for: 1)
payment of the debtor, or 2) the foreclosure of his mortgaged. While the
first is a personal action and the second is a real action, these are just
different reliefs that arise from a single cause of action because ultimately,
the end goal in either case is for the creditor to be paid the load,. The money
debt is the principal things; the foreclosure of the property is only the result
or an incident of the failure to pay the indebtedness.
The 2 remedies are alternative, not cumulative or successive, and each
remedy is complete by itself.
There exist only one cause of action for a single breach of that obligation. If
the creditor is allowed to file 2 separate complaints simultaneously or
successively, one to recover his credit and another to foreclose his
mortgage, he will, in effect, be authorized to have plural redress for a single
breach of contract at so much cost to the courts and with so much vexation
and oppression to the debtor. This should not be allowed.
Thus, if the creditor-mortgagee opts to foreclose the real estate mortgage,
he waives the action for the collection of the unpaid debt; however, the
creditor-mortgagee may still be entitled to recover whatever deficiently may
remain in the outstanding obligation of the debtor-mortgagor after
deducting the bid price in the public action sale of the mortgaged properties.
An unsatisfied judgement in a foreclosure of mortgage would still give the
creditor-mortgagee the right to a deficiency judgement, in which case, all
properties of debtor-mortgagor, other than the mortgaged property, would
be open for him for the satisfaction of the deficiency. In case of deficiency
judgement, there is no violation of the rule against splitting of cause of
action since the deficiency judgement shall be obtained in the same action
for judicial foreclosure of real estate mortgage, in its third stage. No
separate and independent action will be filed to recover the deficiency. If
after the foreclosure sale there remains an unpaid balance of the
outstanding obligation and the creditor proceeds to institute a separate
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action for collection of sum of money for the same, there will be violation of
the rule against splitting of cause of action. The remedy of the creditor-
mortgagee is to ask, by motion, for deficiency judgement and thereafter
obtain execution thereof in the same judicial foreclosure of real estate
mortgage action.
Conversely, the creditor-mortgagee may elect to waive his security and
bring, instead, an ordinary action to recover the indebtedness with the right
to execute a judgement thereon on all the properties of the debtor,
including the subject matter of the mortgage, subject to the qualification
that if the mortgagee fails in the remedy elected by him, he cannot pursue
further the remedy he has waived. When the mortgagee elects to file a suit
for collection and not for foreclosure, he abandons the mortgage as basis
for relief.
During the pendency of the collection of sum of money case filed by the
mortgagee, a writ of attachment may be obtained to attach the debtor-
mortgagor’s property, including the mortgaged property, should there be
grounds existing that warrant the issuance of the said writ, pursuant to Sec.
1, Rule 57.
If the loan was secured by a real estate mortgage and postdated checks, in
subsequently, and information for violation of BP 22 was filed against the
debtor due to the said check being dishonoured, the creditor can no longer
file a separate civil action for collection of sum of money or an action for
judicial foreclosure of mortgage because they said criminal case was also in
effect a collection suit for the recovery of the mortgage-debt.
Three stages in judicial foreclosure of real estate mortgage and multiple
appeals
There are three stages involved in an action for judicial foreclosure of
mortgage.
The first stage starts with the fighting of the complaint. In the first stage, the
court determines first whether their foreclosure is proper. The court
determines if there is a due and demandable loan supported by a real estate
mortgage that would warrant a foreclosure of mortgage. The creditor-
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mortgagee has the legitimate right to foreclose the mortgage where the
obligation is already past due.
The first stage ends, after trial, when the court shall render judgment on the
amount due and order the same to be paid to the court or the judgment
oblige, within the equity of redemption period or the period provided in the
said judgment.
The second stage begins after the period stipulated in their judgment lapses
and there is still failure to pay the sum adjudged in the first stage. A motion
shall be filed, praying for the foreclosure sale of the mortgage property.
After the court orders the property be sold at a public auction, the proceeds
of the sale shall be paid in satisfaction of the outstanding obligation. The
second stage ends with the courts issuance of an order confirming the sale.
The third stage is for the purpose of obtaining a deficiency judgment or for
the satisfaction of the deficiency in the amount due as adjudged in the first
stage.
The deficiency judgment in the third stage may be satisfied by execution
pursuant to Rule 39, meaning that if the debtor-mortgagor is unable to pay
the deficiency, the property of the debtor-mortgage or, other than the
mortgage property, maybe attached, levied on or garnished and sold at a
public auction, with the proceeds therefore to be applied for the satisfaction
of the said deficiency.
To prevent the debtor-mortgagor from fraudulently disposing of the said
property during the pendency of the case, the creditor-mortgagee may avail
of the provisional remedy of a writ of preliminary attachment.
Open the commencement of the judicial foreclosure of mortgage action or
at a time before entry of judgment, a plaintiff may have the property of the
debtor-mortgage or, other than the mortgage property, attached upon
showing by affidavit of: 1) the insufficiency in value of the mortgage
property to cover the indebtedness due to the plaintiff; and 2) existence of
the grounds for the issuance of a writ of preliminary attachment pursuant
to Sec. 1, Rule 57.
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the provisional remedy of a preliminary attachment may be availed of in an
action for judicial foreclosure of mortgage in order to seize upon the
property of the debtor-mortgage or, other than the mortgage property.
In all three stages, their respective judgments or orders of the court may be
subject of appeal. Multiple appeals are allowed in the same case to enable
the rest of the case to proceed in the event that a separate and distinct issue
is resolved by the court and held to be final. in such a case, the filing of a
record and appeal becomes indispensable since only a particular incident of
the case is brought to the appellate court for resolution with the rest of the
proceedings remaining within the jurisdiction of the trial court.
The same procedure for judicial foreclosure of real estate mortgage also
applies to foreclosure of equitable mortgages. And equitable mortgage is
one which although lacking in some formality, or form or words, or other
requisites demanded by the statute, nevertheless reveals the intention of
the parties to charge real property as security for a debt, and contains
nothing impossible or contrary to law.
Parties
Sec. 1, Rule 68 provide, among others, that the following party shall be
implemented in the complaint for judicial foreclosure of real estate
mortgage:
1. mortgagor
2. mortgagee; and
3. all persons having or claiming an interest in the property
subordinate and write to that of the holder of the
mortgage.
While Sec. 1, Rule 68 does not categorically provide so, the debtor who
obtained the loan from which the mortgage was constituted, if the debtor
be different from the mortgagor, should be impeded because the debtor is
an indispensable party.
An accomodation mortgagor is not himself the recipient of the loan but the
accomodation mortgage would not be rendered invalid just because the
accommodation mortgagor did not benefit from the loan since Art 2085
allows a third party to the loan agreement to secure the same principle
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obligation with the third parties own property, even if he did not benefit
from the loan.
Both the debtor and the mortgagor are indispensable parties in an action for
judicial foreclosure of real estate mortgage.
The debtor is an indispensable party since the case involves a personal
obligation of the debtor to the creditor for the payment of the loan, and the
foreclosure of mortgage would effectively satisfy the said outstanding
obligation. In case the proceeds of the foreclosure sale are insufficient, there
may be deficiency judgment rendered against the debtor, and the debtor’s
properties, other than the mortgage property, would be the subject of the
execution in order to satisfy the said deficiency.
A transferee pendente lite of a mortgage property is not an indispensable
party because it transferee pendente lite stands in exactly the same position
as his predecessor in interest. A transferee pendente lite does not have to
be included or impleaded by name in order to be bound by their judgment
because the action or suit may be continued for or against the original party
or the transferor and still be binding to the transferee.
If the debtor-mortgagor is already deceased, then the indispensable party
would be the executor or administrator of the estate of the deceased
debtor-mortgagor, as the case may be, since Sec. 1, Rule 87 provides, among
others, that end action to enforce a lien on property forming part of the
estate of the deceased shall be commenced against the executor or the
administrator.
The rule requiring to join us defendants all persons having or claiming an
interest in the property subordinate in right that of the holder of the
mortgage is only directory and not mandatory since the subsequent
mortgagees or junior encumbrancers are only necessary parties and the
validity of their judgment in a judicial foreclosure of real estate mortgage
case will not be affected by the failure to join the said junior encumbrancers.
Subordinate lien holders acquire only lien upon the equity of redemption
vested in the mortgagor, and their right are strictly subordinate the
superiorly end of the senior mortgagee.
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It would be prudent to join the junior mortgagees as defendants in order to
foreclose, bar or extinguish any rate of equity of redemption they may have
in the property by virtue of their respective liens. If the subsequent
mortgagees are not joined as parties, their judgment in favor of the superior
or first mortgagee will not divest the subsequent mortgages of their right to
equity of redemption.
This means that the period within which the exercise the equity of
redemption as contained in the judgment in the foreclosure case will not
commence the run as to the junior encumbrancers, as they are not parties
to the said case, and therefore would not be bound by the same. They will
not be barred from exercising the equity of redemption later on. A junior
encumbrancer made those exercises right to equity of redemption so that
the junior encumbrancer may protect his own lien.
If the junior mortgagees are not joined in the action for foreclosure of
mortgage instituted by the senior mortgagee, the remedy of the senior
mortgagee two for close the junior mortgagees’ right to equity of
redemption is to bring an independent foreclosure proceeding against the
said junior mortgagees two secure the foreclosure of their equity of
redemption, which was not covered by the judgment in the first action of
the foreclosure of mortgage.
First Stage
The defendant should file his answer within 30 days (unless a different
period Is fixed by the court) from service of summons and not a motion to
dismiss, unless the grounds of lack of jurisdiction over the subject matter,
litis pendentia, res judicata or statute of limitation or percent.
If the defendant admits the allegations in the complaint or the defendant’s
answer fails to tender an issue as when there are mere general denials
therein, the court may on motion of the plaintiff, direct judgment on the
pleadings.
Pretrial proceedings will take place, followed by court annexed mediation
and judicial dispute resolution, if found to be necessary.
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If there is no genuine issue found to exist after pretrial, such as when there
is a judicial admission of the loan, mortgage, and non-payment of the loan
despite demand, then there may be no need for trial and the plaintiff mean
move for or the court may motu proprio render summary judgment. The
submission of further evidence is not necessary since judgment could be
rendered judiciously on the basis of the said admission.
The court may also motu proprio render judgment on the pleadings after
pretrial.
If there will be no dismissal, judgment on the pleadings or summary
judgment, trial shall then proceed after pretrial. In the same judgment, the
court shall set amount adjudged be paid to the court or the judgment
creditor within a period of not less than 90 days or nor more than 120 days
from the entry of judgment, and that in default of such payment the
property shall be sold at a public auction to satisfy the judgment.
This right to make payment within a period of not less than 90 days nor more
than 120 days from the entry of judgment is the right to equity of
redemption in judicial foreclosure of real estate mortgage. This is simply the
right of the mortgager or junior encumbrancer to extinguish the mortgage
and retain ownership of the property or protect his lien, as the case may be,
by paying the secured debt within the period of not less than 90 days nor
more than 120 days after the judgment becomes final, or even after the
foreclosure sale but prior to its confirmation period after such order of
confirmation of sale, no equity of redemption can be affected any longer
period in other words, the equity of redemption may be exercise even
beyond the period indicated in the judgment and after the foreclosure sale
but before the order of confirmation of the sale.
The counting of the foregoing period to exercise the right of equity of
redemption is from the period of entry of judgment or the finality of
judgment in the first stage. Thus, if the judgment in the first stage is
appealed, they said period to exercise equity of redemption shall all only
commence after the appeal is resolved in the decision attains finality.
the right to exercise equity of redemption is a substantive right. In the
absence of any previous order in the first stage directing the defendant to
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pay the amount due, and order directing the sale of the property would be
void.
To discharge the real estate mortgage, debtor-mortgagor must pay the
creditor-mortgagee:
1. the total amount due as the principal loan with the simulated
interest computed from the filing of the complaint until the finality
of the decision
2. the legal interest on the total amount due from finality until fully
satisfied;
3. the reasonable attorney’s fees, if awarded; and
4. the cost of suit, if adjudged by the court, within the period specified
for the exercise of equity of redemption, or even thereafter as long
as it is done before the confirmation of the foreclosure sale.
In judicial foreclosure of real estate mortgage, the right of redemption,
where the debtor may repurchase property within one year from
registration of the certificate of sale, is not recognized, except where the
mortgagee is the Philippine National Bank or a bank or banking institution
within the purview of the General Banking Law of 2000.
The right of redemption in relation to a mortgage is a prerogative to
reacquire mortgage property after registration of the foreclosure sale which
exists in case of the extrajudicial foreclosure of the mortgage.
No such right of redemption is recognized in a judicial foreclosure of a real
estate mortgage, except only when the redemption may be allowed by law,
as when the mortgagee is the Philippine National Bank or a bank or banking
institution within the purview of the General Banking Law of 2000.
If the foreclosing mortgagee is not a bank within the coverage of the General
Banking Law of 2000 or the Philippine National Bank, then there can be no
right of redemption and there will only be an equity of redemption, which is
the right to pay the amount adjudged in the first phase before the order of
confirmation of the foreclosure sale.
Second stage
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If there is failure to pay the judgment debt then the plaintiff may move for
the court to order the sale of the mortgaged property and the court, acting
favorably on the motion, shall order their property to be sold in the manner
under the provision of Rule 39 and other regulations governing sale of real
estate under execution.
Unlike in extra judicial foreclosure of real estate mortgage, no special power
inserted in or attached to the mortgage contract is necessary in order for
there to be a foreclosure sale , as the judicial foreclosure sale may be had
up on the order of the court.
Prior to the foreclosure sale, there must be a valid insufficient notice of the
same.
The Supreme Court ruled in Suico that notices are given for the purpose of
securing bidders and to prevent a sacrifice of the property. If the objects for
which the notice is made are attained, immaterial errors and mistakes will
not affect the sufficiency of the notice; but if mistake or omissions occur in
the notices of sale, which are calculated to deter or mislead bidders, to
depreciate the value of the property, or to prevent it from bringing a fair
price, such mistakes or omissions will be fatal to the validity of the notice,
and also to the sale made pursuant thereto.
Thus, in Suico, the Supreme Court ruled that the error in the amount of the
obligation due stated in the notice of sale cannot be considered fatal.
If the assessed value of the property is not more than 50,000, notice must
be given before the sale of the real property by posting for 20 days in three
public places, preferably in conspicuous area of the municipality or City Hall,
post office and public market in the municipality or city where the sale to
take place.
If the assessed value of the property exceeds 50,000, notice of the sale shall
be made by publishing a copy of the notice once a week for two consecutive
weeks in a newspaper selected by raffle, weather in English , Filipino, or any
major regional language published, edited and circulated, or, in the absence
thereof, having general circulation in the province or city.
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In all cases, notice of the sale should also be given to the judgment debtor
at least three days before the sale, in the same manner as personal service
of pleadings and other papers as provided in Rule 13.
The notice shall particularly describe the property and state where the
property is to be sold, the date and the exact time of sale which should not
be earlier than nine in the morning and not later than two in the afternoon.
The place of the sale may be agreed upon by the parties and in the absence
of such agreement, the sale shall be held in the office of the clerk of court of
the trial court which issued the order of foreclosure sale, or which was
designated by the appellate court, as the case may be.
If a third party makes a claim on the property, the said third party claimant
may: 1) avail of the remedy known as terceria under Sec. 16, Rule 39, by
serving on the officer making the levy and on the judgment mortgagee a
copy of an affidavit of his title or right to the possession thereof, stating the
grounds of such right or title; or 2) bring an independent separate action to
vindicate his claim of ownership and/or possession over the foreclosed
property. Both remedies are cumulative and maybe availed of
independently of or separately from each other; the availment of the
terceria is not a condition sine qua non to the institution of a separate
action.
By the terceria, the officer shall not be bound to keep the property, unless
such judgment mortgagee, on demand of the officer, files a bond approved
by the court to indemnify the third party claimant in an some not less than
the value of the property levied or as determined by the court issuing the
order of foreclosure sale in case of disagreement as to such value.
When the foreclosure sale order is issued in favor of the Republic of the
Philippines, or any officer duly representing it, the filing of such bond shall
not be required, and in case the sheriff or levying officer is sued for damages
as a result of the levy, he shall be represented by the solicitor general and if
held liable therefore, the actual damages adjudged by the court shall be paid
by the National Treasurer out of the funds as may be appropriated for the
purpose.
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The officer shall not be liable for damages for the taking or keeping of the
property, to any third party claimant if such bond is filed.
The disposition of the proceeds of the sale in foreclosure shall be: first, the
payment of the cost; second, the payment of the mortgage debt; third,
payment of the junior encumbrancers, if any, in the order of priority; end
fourth, the balance, if any , shall be given to the mortgagor, his agent, or the
person entitled thereto.
Such sale shall not affect the rights of the persons holding prior
encumbrances upon the property or a part thereof, and when confirmed by
an order of the court, also upon motion, it shall operate to divest the rights
in the property of all the parties to the action and to vest their rights in the
purchaser, subject to such rights of redemption as may be allowed by law.
If a purchaser refuses to pay the amount paid by him for property struck off
to him at a sale under execution, the officer may again sell the property to
the highest bidder and shall not be responsible for any loss occasioned
thereby. But the court may order the refusing purchaser to pay into the
court the amount of such loss, with cost, and may punish him for contempt
if he disobeys the order.
It is only in judicial foreclosure of real estate mortgage where junior
encumbrances are granted the right to receive the balance of the purchase
price. In extrajudicial foreclosure of real estate mortgage, the only right
given to second mortgagees is the right to redeem the foreclosed property.
The right of a mortgagor to the surplus proceeds is a substantial right which
must prevail over rules of technicality.
The Supreme Court ruled that the failure to turn over the surplus money or
the excess of the proceeds of the sale to the person entitled to it will not
invalidate the foreclosure sale. Rather it gives the person entitled to it a
cause of action to recover it.
In Caparas vs Yatco, the mortgagee, who was ordered to return the surplus
to the mortgagor or the person entitled to it but refused to comply with the
said court order, was cited in contempt.
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After the foreclosure sale, the court, upon motion, shall issue and order of
confirmation of the foreclosure sale.
In Huerta Alba Resort Inc vs CA, the Supreme Court ruled that after the
confirmation of the sale and the issuance of the transfer certificates of title
covering the subject property to the purchaser thereof, the court shall have
the ministerial duty to place the said purchaser in the possession of the
subject property.
If during the period of redemption, when applicable, the judgment
mortgager is in possession of the property sold, he is entitled to retain it and
to receive its fruits, the purchaser not being entitled to its position.
Third stage
There can only be a deficit when the proceeds of the sale are not sufficient
to cover:
1. the cost of foreclosure proceeding; and
2. the amount due to the credit or, inclusive of interest and penalties,
if any, at the time of foreclosure.
Accordingly, a deficiency judgment should only issue after it is established
that the mortgage property was sold at a public auction for an amount less
than the outstanding obligation.
Once a deficiency judgment is obtained, there may be execution their own
and it shall be done in accordance with the rules on enforcement of a money
judgment on there Rule 39: 1) the officer shall enforce and execution of a
judgment for money by demanding from the debtor the immediate payment
of the deficiency judgment; 2) if no payment is made, there may be levy or
garnishment of the debtor’s property, other than the mortgage property;
and 3) the property attached or levied on shall be sold at a public auction,
with the proceeds thereof to be used to satisfy the said deficiency.
In execution of the deficiency judgment, all the properties of the mortgage
or, other than the mortgage property, shall be open to the mortgagee for
the satisfaction of the deficiency.
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The proceedings for the recovery of deficiency judgment shall be in the same
foreclosure case, except when the mortgagor dies, in which case, the claim
shall be made against the estate of the deceased in the proceeding for the
settlement of estate.
If the purchaser of real property sold on execution, or his successor in
interest, fails to recover the possession thereof, or is evicted there from, and
consequences of: 1) irregularities in the proceedings concerning the sale; 2)
the judgment that was reversed or set aside; 3) the property sold being
found to be exempt from execution; or 4) a third person who has been
dictated his claim to the property, the purchaser may, and motion in the
same action or in a separate action recover from the judgment of oblige the
price paid, with interest, or so much thereof has not been delivered to the
judgment obligor. Or, the purchaser may, on motion, have the original
judgment revived in his name for the whole price with interest, or so much
thereof as has been delivered to the judgment obligor. The judgment so
revive shall have the same force and effect as an original judgment would
have as of the date of the revival and no more.
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RULE 69
PARTITION
Partition is the separation or division of a movable or immovable property
(or its value) held in common among those to whom it may belong, giving to
each one of them the part corresponding to him.
An action for partition is brought by a person claiming to be the owner of a
specified property against a defendant or defendants whom the plaintiff
recognizes to be his co-owners, and is premised on the existence of co-
ownership whenever the ownership of an undivided thing or right belongs
to different persons.
The object of partition is to enable those who own property in common to
put an end to the joint ownership so as to vest in each a sole estate in specific
property or an allotment in the lands or tenements.
As a rule, no co-owner shall be obliged to remain in the co-ownership. Thus,
each co-owner may demand at anytime for the partition of the thing owned
in common; an action to demand partition among co-owner is
imprescriptible.
By exception, a co-owner cannot demand partition at anytime when:
1. there is an agreement to keep the thing undivided for a certain
period of time, not exceeding 10 years, unless the terms to keep
the thing undivided is extended by a new agreement;
2. a donor or testator prohibited partition for a period not exceeding
20 years;
3. partition is prohibited by law; and
4. when physical division of the thing would render it unservicable for
the used for which it was intended, in which case, the property shall
be allotted to one of the co-owners who shall indemnify the others,
but if they cannot agree on to whom it will be allotted, the property
should instead be sold and the proceeds distributed among the co-
owners.
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The rule that co-owner cannot demand partition when prohibited by a
donor or testator not a period not exceeding 20 years is subject to further
exception, pursuant to Art. 1083 of the NCC, provides that even though
forbidden by the testator, the co-ownership terminates when any of the
causes for which the partnership is dissolved takes place, or when the court
finds compelling reasons warranting the division, upon petition of 1 of the
co-heirs.
An example of a partition prohibited by law is that of the partition of the
family home. Art 159 of the FC provides that as a rule, the heirs cannot
partition the family home despite the death of one or both spouses or the
unmarries head of the family, and the family home shall continue as such a
period of 10 years or for as long as there is a minor beneficiary, unless the
court finds compelling reason therefor.
3 requisites must concur before a minor beneficiary may be entitled to the
benefit of Art. 159 of the FC:
1. the husband and wife, or an unmarried person who is head of a
family; and
2. their parents, ascendants, descendants, brother and sister,
whether the relationship be legitimate, who are living in the family
home and who depend upon the head of the family home for legal
support.
In Patricio vs. Dario III, the SC ruled that the minor grandson of the
grandfather decedent, who lived with the grandfather in his family home
prior to his death, is not a minor beneficiary within the contemplation of the
law that would prevent the partition of the family home because the
grandson did not depend on this grandfather for support. The liability for
legal support fell on his father, the grandfather’s son, who was not shown
to be without any means to support his son. The grandfather is only liable
for support upon default of the parents, which does not apply in this case.
If the deceased dies without having left a will and without pending
obligation, the heirs may resort to an action of partition of these estate of
the deceased if they disagree as to the exact division of the estate. Here, the
action of partition is meant to take the place of the special proceeding on
the settlement of the estate because there is no necessity for the
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appointment of an administrator to administer the estate for the heirs and
the creditors, much less, the necessity to deprive the real owners of their
possession to which they are immediately entitled. Every act which is
intended to put an end to indivision among co-heirs and legatees or devisees
is deemed to be a partition, although it should purport to be a sale, an
exchange, a compromise, or any other transactions.
However, if there is dispute as to which expenses, such as those related to
the decedent’s illness and funeral expenses, are chargeable to the estate,
then partition is inappropriate.
If the partition pertains to the distribution of the inheritance to the heirs
that do not warrant the filing of settlement proceedings, Art 1061 of the NCC
requires the parties to also collate the properties of the decedent into the
mass of the estate any property or right which they may have received by
way of gratuitous title prior to the decedent’s death, in order that it may be
computed in the determination of the legitime of each heir, and in the
amount of the partition.
An action to compel partition may be filed at any time by any of the co-
owners against the actual possessor, who is understood to be in possession
of the property pro indiviso for himself and in representation of the co-
owners. An action to demand partition among co-owners is imprescriptible,
and each co-owner may demand at any time the partition of the common
property.
However, a co-owner may acquire ownership over the entire property by
prescription where there exists a clear repudiation of the co-ownership, and
the co-owner are apprised of the claim of adverse and exclusive ownership.
Prescription may run against a co-owner if there is adverse, open,
continuous and exclusive possession of the co-owned property by the other
co-owner/s.
In order that the possession of a co-owner be considered adverse to the
cestui que trust amounting to a repudiation of the co-ownership, the
following elements must concur:
1. the trustee or co-owner performed unequivocal acts amounting to
an ouster of the cestui que trust or the co-ownership;
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 2. such positive acts of repudiation has been made known to the
cestui que trust or the other co-owners; and
3. the evidence thereon should be clear and conclusive.
In such a case, an action to demand partition among co-owners prescribes
in 10 years; this 10-year prescriptive period applied if the co-owner
demanding partition is not in possession of the property. But if the co-owner
demanding partition or the plaintiff is in actual possession of the property,
then the right to demand partition does not prescribe.
The registration of the property in the same of the co-owner to the exclusion
of the other co-owners created, by force of law, an implied trust. An action
for reconveyance of real property to enforce an implied trust shall prescribe
after 10 years, since it is an action based upon an obligation created by law.
Partition may be done judicially or extrajudicially by mere agreement
between the parties.
The absolute community of property and conjugal partnership of gains
cannot be extrajudicially partitioned by mere agreement of the spouses
during their marriage.
While Art 134 of the FC provides for the separation of property between the
spouses during the marriage, it is qualified by the rule that the separation or
partition shall not take place except by judicial order. Hence, there cannot
be a mere extrajudicial partition of the absolute community of property or
conjugal partnership of gains during the marriage.
The judicial separation of property may. Either be voluntary or for sufficient
cause, as when the spouse:
1. is sentenced to a penalty carrying civil interdiction;
2. has been judicially declared an absentee;
3. loses parental authority as decreed by the court;
4. abandoned the other spouse or failed to comply with his
obligations to the family;
5. who was granted the power of administration in the marriage
settlements abused that power; and
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6. has been separated in fact with the other spouses for at least 1 year
at the time of the petition and reconciliation is highly improbable.
There may also be only a partial partition of the property owned in common;
it is not prohibited. However, while it is allowed, the SC has cautioned that
it should be exercised sparingly because a partial partition and distribution
does not put to rest the question of the division of the entire property.
Jurisdiction and venue
The RTC and MTC have original jurisdiction over actions for partition,
depending on the nature and the value of the subject or property in dispute.
The venue depends on the nature of the property involved, on whether it is
a real or personal action. The rule on venue for real and personal actions
under Rule 4 shall apply.
Partition of real estate is an action quasi in rem
The partition of real estate is ana action quasi in rem. Quasi in rem actions
are actions involving the statues of a property over which a party has
interest; they are not binding upon the whole world as they affect only the
interest of the particular parties.
For the court to acquire jurisdiction in actions quasi in rem, it is necessary
only that it has jurisdiction over the res that is the subject matter of the
action. However, jurisdiction over the parties is still required regardless of
the type of action, whether the action is in personam, in rem, or quasi in
rem, to satisfy the requirements of due process. A quasi in rem action
subjects a party’s interest over a property to a burden; it threatens a party’s
interest in the property, and as such, parties are entitled to due process with
respect to that interest. Thus, regardless of the nature of the action, proper
service of summons is imperative and a decision rendered without property
service of summons suffers a defect in jurisdiction.
Where the denial of the fundamental right of due process is apparent, a
decision rendered in disregard of that right is void for lack of jurisdiction.
Two phases in partition
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Partition simultaneously presents 2 issues since it is once an action for: 1)
declaration of co-ownership, where it is determined whether the plaintiff is
indeed a co-owner of the property sought to be partitioned; and 2) assuming
that the plaintiff successfully hurdles the first issue, there is a second issue
on how the property is divided between the plaintiff and defendant or
segregation and conveyance of a determinate portion of the properties
involved. Thus, in a complaint for partition, the plaintiff seeks, first, a
declaration that he is a co-owner of the subject properties, and second, the
conveyance of his lawful share.
The first phase starts with the filing of a complaint and may end in a
declaration that the plaintiff in not entitled to the desired partition either
because a co-ownership does not exist, or a partition is legally prohibited. It
may also end, on the other hand, with an adjudgment that a co-ownership
does in truth exist, that partition is proper in the premises, and that an
accounting of rents and profits received from the property is in order. In
either case, whether the action is dismissed or partition and/or accounting
is decreed, the order is a final one and may be appealed by any party
aggrieved thereby.
Unless and until the issue of co-ownership is definitively resolved, it would
be premature to effect a partition of an estate or to proceed to the second
phase of the action for partition.
The second phase commences when the parties are unable to agree upon
the manner of partition. It concerns the physical segregation of each party’s
just share in the property held in common. The second stage need not be
gone into should the parties agree on the physical partition. The parties may,
if they are able to agree, make partition among themselves by proper
instruments of conveyance, and the court shall confirm the partition so
agreed upon by all the parties. In case there is a compromise agreement
between the parties on the manner of partition, which is approved by the
court, the compromise agreement settles the rights of the parties and has
the force of res judicata. It cannot be disturbed except on the ground of vice
of consent, such as fraud, mistake, duress or forgery.
In case of disagreement as to how the property will be divided, the court
shall appoint not more than 3 commissioners to assist it in determining how
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the property will be divided among the co-owners. The second phase may
also deal with the rendition of the accounting itself and its approval by the
court after the parties have been accorded the opportunity to be heard
thereon, and an award for the recovery of their just shares in the rents and
profits of the real estate in question by the party or parties entitled thereto.
Such order is appealable.
Generally, the partition must be in writing. Nevertheless, the SC has
sustained the validity of an oral partition, when it has already been
completely or partially performed, such as where the parol partition has
actually been consummated by the taking of possession in severalty and the
exercise of ownership by the parties of the respective portions set off to
each. Parol partition may be sustained on the ground of estoppel of the
parties, that the parties have acquiesced in and ratified the partition by
taking possession in severalty, exercising acts of ownership with respect
thereto, or otherwise recognizing the existence of partition.
First phase
An action for partition is instituted by the filing of a complaint by a person
claiming to be the owner of a specified property against a defendant or
defendants whom the plaintiff recognizes to be his co-owner, and is
premised on the existence of co-ownership between the parties.
An action for partition will not lie if the claimant has no rightful interest over
the subject property.
All co-owners or co-heirs and persons interested in the property should be
joined as defendants. The indispensable parties are the co-owners and co-
heirs, and those claiming interest in the property as co-heirs or co-owners,
even if not recognized as having the capacity to be such by the plaintiff.
Those claiming ownership over the property but were not impleaded are not
bound to intervene; the burden is on the plaintiff to implead those
interested in the property because:
1. Intervention is not compulsory or mandatory but merely optional
and permissive; and
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 2. persons who are in actual possession of the property legally told,
but were not impeded, may wait until their possession is in fact
disturbed before taking steps to vindicate their rights.
The non-joinder of indispensable parties before a judgment is rendered is
not fatal and shall not result in the dismissal of an action, pursuant to Sec.
11, Rule 3. The remedy is to impede the nonparty claimed to be
indispensable. At any stage of a judicial proceeding and/or at such time as
are justice, parties may be added on the motion of a party or on the initiative
of the tribunal concerned. If the plaintiff refuses to impede and
indispensable party despite the order of the court, that court may dismiss
the complaint for the plaintiff's failure to comply with the order.
Notably, even in an extrajudicial partition, all co-owners must be parties to
the deed of partition for the same to be binding upon them, as held by the
Supreme Court in Reillo vs San Jose. The Supreme Court ruled that a deed of
extrajudicial partition executed without including some of the errors, who
had no knowledge of in consent to the same, is fraudulent and vicious. It is
invalid. A deed of extrajudicial partition executed in violation of the
foregoing rule should be annulled.
However, by exception, the Supreme Court ruled in Maglucot-Aw vs
Maglucot, that even if a co-owner was not a party to the deed, the partition
may be sustained if the co-owner nevertheless accepts the partition allotted
to him and have the same as owner thereof. Parties who have received the
property assigned to them are precluded from subsequently attacking its
validity or any part of it, by reason of estoppel.
The plaintiffs have the burden to establish by preponderance of evidence
that they are co-owners.
If after trial the court finds that the plaintiff has the right to partition, the
court shall issue an order of partition, directing the partition of the property
among all the parties and interest, and an accounting of rents and profits
received by the other party from the real estate in question.
An order of partition is a final determination of the co-ownership by the
parties and the property of the partition. Thus, an order decreeing partition
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and accounting may be appealed by the aggrieved party thereby. If not
appealed, it becomes final and executory and cannot be disturbed.
The final order of partition cannot be changed, even upon by the agreement
of the parties. By exception, in Lucero vs Banaga, the Supreme Court ruled
that although the order of partition has long been final, it may be innovative
with the consent of all co-owners when the partition was void and where no
novation was required in the interests of justice and equity and was
warranted under the prevailing circumstances for the expeditious
settlement of the estate. Here, the alleged co-owners were merely nominal
registered owners, such that they were not the true owners of the property.
Thus, the partition was void, and the agreement of the true owners may
novate the said partition.
Generally, the decision in the first phase which orders partition should not
be executed since there will be further proceeding in the second phase.
However, the Supreme Court has ruled that execution may be resorted to
insofar as the part of their judgment that will not necessitate any further
proceeding, such as enforcement of the obligation of the defendant to
render and accounting, and payment of attorney’s fees and costs of suit,
should such ruling be contained in the decision ordering partition. Sec. 10,
Rule 69 also recognizes execution of the cost and expenses which accrue in
the action. Including compensation of the commissioners, after the court
equitably taxes and apportions the same among the parties.
After the decision finding the partition is proper and accounting of costs and
expenses, the parties may enter into an agreement to make the partition
among themselves, to be submitted for the court's approval. Such partition,
once confirmed by the court, together with the order of the court confirming
the said partition, shall be recorded in the Registry of Deeds of the place and
which the property is situated.
In Dadizon vs Bernadez, the Supreme Court ruled that all the co-owners
must agree to or sign the agreement or project of partition. Even if all the
co-owners manifested in open court that they have agreed on the banner of
the partition of the property but the agreement as submitted to the court
did not contain all the signatures of the co-owners, such agreement cannot
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be approved by the court, which shall instead, proceed with the second
phase for the appointment of commissioners.
In Patricio vs Dario, in case of failure to come into an agreement as to the
manner of partition of the property, and the partition cannot be done
without prejudice to the interest of any of the co-owners (or the property
cannot be partitioned without rendering it unserviceable), the property
should first be assigned to one of the co-owners, who will in turn reimburse
the others. If any one of the co-owners object to such agreement or they
cannot agree as to whom the property shall be assigned, then that is the
only time when the property shall instead be sold to another, with the
proceeds of the sale to be divided among the co-owners.
The failure of one of the co-owners to attend the hearing cannot be deemed
a waiver to object to the proposed project of partition of the other co-
owners.
Second phase
The second phase commences when it appears that the parties are unable
to agree upon the manner of partition.
The second stage may also deal with the rendition of the accounting itself
and its approval by the court after the parties have been afforded the
opportunity to be heard threon, and an award for their recovery by the party
or parties thereto entitled of their just share in the rents and profits of the
real estate and question.
The reference to commissioners is required as a procedural step in the
action and it's not discretionary on the part of the court as per Rule 69, Sec.
3.
All commissioners are appointed by the court such that one cannot merely
assume the duties of a commissioner or the chairmanship thereof, in the
absence of any appointment issued to him by the court.
When it is made to appear to the commissioners that the real estate, or a
portion thereof, cannot be divided without prejudice to the interests of the
parties, the court may order it assigned to one of the parties willing to take
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the same, provided that he pays to the other party such amount as may be
deemed equitable, unless one of the interested parties asks that the
property be sold instead of being so assigned, in which case the court shall
order the commissioners to sell the real estate at public sale under such
conditions and within such time as the court may determine.
Also, when the thing owned in common cannot be physically divided such
that a division thereof would render it unserviceable for the use for which it
is intended or it is essentially indivisible, the co-owners shall agree to allot
the same to one of them, who will, in turn indemnify the others. If one
objects do this or if they do not agree to whom the property should be
assigned, then it should be sold, and the proceeds of the sale shall be
distributed among the co-owners.
In Dominguez vs Dominsguez, there is no law or jurisprudence mandating
that the subject property be assigned to the petitioner simply because he
has been living on the subject property for a long time. On the contrary, the
law provides that if the co-owners cannot agree on the allotment of an
indivisible co-owned property, then the same shall be sold and the proceeds
thereof distributed to the co-owners. In case of the sale of the property at a
public auction, nothing prohibits the petitioner or any of the other co-
owners from participating in the public auction to acquire the subject
property.
No proceeding had before or conducted by the commissioner shall pass the
title to the property or bind the parties until the court shall have accepted
the report and render judgment thereon. However, this rule does not apply
when all the parties themselves have already actualized the unconfirmed
sketch or subdivision plan, as held by the Supreme Court in Maglucot. In
such case, the parties who actualize the subdivision plan are deemed to be
estopped from assailing the absence of court approval on the sketch or
subdivision plan by their acts, through their predecessor in interest, of
implementing the sketch or subdivision plan and occupying as exclusive
owners their respective portions.
The court must identify and segregate by metes and bounds the specific
portion of the lot assigned to the co-owners and effect the physical partition
of the property.
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Registration is merely a species of notice; the act of registering my
document is never this necessary in order to give it legal effect as between
the parties.
In Maglucot-Aw, the Supreme Court ruled that the absence of any
annotation on the certificate of title showing any partition or that the
original title had not been cancelled to reflect the issuance of new titles in
favor of their respective owners does not mean that there was no valid
partition. Registration does not vest title; it is merely evidence of such title
over a particular property. The purpose of registration is to notify and
protect the interests of strangers to a given transaction.
The partition of the thing owned in common shall not prejudice third person,
who shall retain the rights of mortgage, servitude, or any other real rights
belonging to them before the division was made. Personal rights pertaining
to 3rd persons against the co-ownership shall also remain in force,
notwithstanding the partition. After partition, every co-owner shall also be
liable for defects of title and quality of the portion assigned to each of the
other co-owners.
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RULE 70
FORCIBLE ENTRY AND UNLAWFUL DETAINER
An action for ejectment covers all kinds of action for recovery of possession,
which includes forcible entry and unlawful detainer.
Forcible entry and unlawful detainer cases are real actions and in personam,
because the plaintiff therein seeks to enforce a personal obligation or
liability on the defendant for the latter to vacate the real property subject
of the action, restore the physical possession thereafter the plaintiff, and
pay actual damages by way of reasonable compensation for his use or
occupation of the property.
Forcible entry
In forcible entry, possession of the defendant is illegal at the inception,
because it was obtained by means of force, intimidation, threat, strategy or
stealth. The issue centers on who was in prior possession de facto. The
plaintiff must prove that he was in prior physical possession of the premises
until he was deprived thereof by the defendant.
The fact that a demand was made by the plaintiff for the defendant to vacate
the subject premises when the defendant’s possession was illegal at the
inception, cannot change the nature of the defendant's possession of the
property and covert the plaintiff's action from forcible entry to one of
unlawful detainer.
Thus, where a plaintiff claims that the defendant surreptitiously entered the
premises and after discovery, the plaintiff allegedly tolerated the possession
until the plaintiff demanded that the defendant to vacate, the proper action
to file is not one for unlawful detainer since the possession was illegal from
the start. To justify add action for unlawful detainer, it is essential that the
plaintiff supposed acts of tolerance must have been present right from the
start of the possession which is later sought to be recovered. If the position
was unlawful from the start, and action for unlawful detainer would be an
improper remedy. The proper remedy is an action for forcible entry.
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Tolerance must be present from the start of the possession so to be
recovered, to categorize a cause of action for one of unlawful detainer and
not forcible entry.
Unlawful detainer
In unlawful detainer, the possession of the defendant inceptively lawful but
becomes illegal by reason of the termination of his right to the possession
of the property under his contract with the plaintiff.
Possession by the defendant is legal until demand is made to recover such
possession or until the processor does or fails do an act which makes his
continued possession of the premises illegal. Thus, from the demand to
vacate the premises, the possession that was once legal becomes illegal. For
this reason, the demand to vacate is indispensable for a cause of action
based on unlawful detainto arise. For forcible entry, a man to vacate is not
indispensable since the position was illegal from the very beginning.
However, if the contract provides that the lessee should vacate the premises
without necessity for further demand until failure to comply with the terms
of the agreement or upon termination or expiration thereof, then no
demand is necessary. That is why Sec. 2, Rule 70 provides that unless
otherwise stipulated, the action shall be commenced only after demand to
vacate is made.
When one was allowed to possess the property by mere tolerance and
despite the man to vacate, the said processor refuses to do so, then the
proper action to file would be one for unlawful detainer, since the
possession was legal at the inception, and becomes illegal from the demand
to vacate. For possession to fall within the purview for one for tolerance, the
overt act as to when and how the defendant entered the property and who
specifically allowed him to occupy the same must be established. Without
these allegations and evidence, the bare claim regarding “tolerance” cannot
be upheld.
Under Art 1670 of the NCC, a new lease it's implied if the lessee continues
enjoying the thing least for 15 days after the termination of the original
contract, unless notice to the contrary has been previously given by either
party.
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Requisites of implied new lease or tacita reconduccion:
1. The term of the original contract of lease has expired;
2. the lessor has not given the lessee a notice to vacate; and
3. the lessee continued enjoying the thing leased for 15 days with
acquiescence of the lessor.
The defendant in an action for unlawful detainer may raise the defense of
the existence of an implied or renewed lease. Thus, the issue of whether the
defendant has a right to a renewal of lease or whether there is an existing
implied lease both deal with the right to possession and as such, should be
determined together with unlawful detainer case filed.
A complaint for unlawful detainer should allege the lease contract, whether
express or implied, the circumstances surrounding the expiration or
termination thereof, and the demand to vacate. Otherwise, the complaint
will fail to state a cause of action.
The allegation of prior physical possession is indispensable only in action for
forcible entry, but not for unlawful detainer.
Courts may provisionally determine the issue of ownership in unlawful
detainer or forcible entry cases for the sole purpose of resolving the issue of
physical possession
Just like in forcible entry, the only question that the court must resolve in an
unlawful detainer case is who between the parties is entitled to the physical
or material possession of the property in dispute because the principal issue
must be possession de facto, or actual position, and ownership is mere
ancillary to such issue.
The word possession as used in forcible entry and unlawful detainer means
nothing more than physical possession. It does not even matter if the party's
title to the property is questionable.
An action for recovery of ownership or for annulment of mortgage would
not be a bar to an action for ejectment, since they deal with different causes
of action: the first involving the issue of ownership, and the relief prayed for
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is the recovery of ownership of the subject land; and for the second,
involving the issue of possession and the relief prayed for is the restoration
of the possession over the land.
The ejectment case may be tried and ruled upon while an action for
annulment of title over real property or reconveyance of ownership over
real property is being litigated in another court.
As a rule, it is not proper to resolve the issue of ownership in a summary
proceeding for ejectment. However, where the parties to ejectment case
raises the issue of ownership, the courts may pass up on that issue
determine who between the parties has a better right to process the
property. In this regard, Sec. 16 Rule 70 allows the court to provisionally
determined the issue of ownership for the sole purpose of resolving the
issue of physical possession.
MTC retain jurisdiction over ejectment cases if the question of possession
cannot be resolved without the passing up on the issue of ownership.
The provisional determination of ownership in the ejectment case cannot
be clothed with finality. Thus, the adjudication on ownership, being merely
provisional, would not bar or prejudice an action between the same parties
involving title to the property. Neither shall it be held conclusive of the facts
therein found in a case between the same parties upon the different cause
of action involving possession.
Jurisdiction and summary procedure
MTC have exclusive original jurisdiction over actions for forcible entry and
unlawful detainer.
The vest the court with jurisdiction to effect the ejectment of an occupant,
it is necessary that the complaint should embody such a statement of facts
as brings the party clearly within the class of cases for which the statute
provide a remedy, as these proceedings are summary in nature. The
jurisdictional facts must appear on the face of the complaint. When the
complaint fails to aver facts constitutive of forcible entry or unlawful
detainer, as where it does not state how the entry was made, how and when
dispossession started, or when final demand to vacate was made, as the
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case maybe, the complaint shall be deemed as either one for accion
publiciana or accion reinvidicatoria, depending on the allegations in the
complaint.
Requisites of action for forcible entry for MTC to acquire jurisdiction over
the case:
1. the plaintiff must allege prior physical possession of the property;
2. the plaintiff was deprived of possession by force, intimidation,
threat, strategy or stealth; and
3. the action must be filed within one year from the date of actual
entry on the land, except that when the entry is through stealth,
the one year period is counted from the time the plaintiff-owner or
legal possessor learned of the deprivation of the physical
possession of the property.
A complaint sufficiently alleges a cause of action for unlawful detainer if it
recites the following:
1. The defendant's initial possession of the property was lawful, either
by contract with or by tolerance of the plaintiff;
2. eventually, such possession becomes illegal upon the plaintiff's
notice to the defendant of the termination of the latter's right of
possession;
3. thereafter, the defendant remained in possession and deprive the
plaintiff of the enjoyment of the property; and
4. the plaintiff instituted the complaint or ejectment within one year
from the last demand to vacate the property.
Jurisdiction of the court is an ejectment suit it is determined by the
allegations in the complaint. The answer does not determine the jurisdiction
of the court over the case. The jurisdiction of the court over the nature of
the action and the subject matter thereof cannot be made to depend upon
the defenses set up in court or upon a motion to dismiss for, otherwise, the
question of jurisdiction would depend almost entirely on the defendant.
The court does not lose nor it is deprived of its jurisdiction by a defense of
tenancy but has the authority to hear the evidence for the purpose of
determining whether or not it has jurisdiction. Despite the sufficient
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allegations for jurisdiction in the complaint, the case will be dismissed for
lack of jurisdiction if upon hearing, it is shown the tenancy is the real issue.
MTC have no jurisdiction over and ejectment case where the issue of
possession is inextricably interwoven with an agrarian dispute. (Jurisdiction
is with the Department of Agrarian Reform Adjudication Board).
Under the Revised Rule on Summary Procedure, the adjudication of cases is
done on the basis of affidavits and position papers. The court is no longer
allowed to hold hearings to receive testimonial evidence. Should the court
find it necessary to clarify certain issues, it may require the parties instead
to submit affidavits or other evidence.
Period within which to bring an action for unlawful detainer and forcible
entry
To determine whether the forcible entry complaint was filed within the
period to do so, the complaint should allege the time when the unlawful
depribvation took place or in case of dispossession by means of stealth, the
time of discovery, which would determine the starting point of the one year
prescriptive period for filing the case.
In case of failure to allege when the dispossession started or was discovered
in case of by means of stealth, the action may be treated instead as an accion
publiciana. If the complaint is dominated as one for forcible entry or
unlawful detainer, but the allegations are insufficient to constitute either of
those ejectment cases but sufficient to constitute as one for accion
publiciana, provided that the assessed value of the property is within the
jurisdiction of the inferior court. It will be re-docketed since the court would
still have jurisdiction over the subject matter, but the procedure would no
longer fall under summary procedure but ordinary procedure. However, if
the assessed value is beyond the jurisdiction of the inferior court then the
case, even if constituting as one for accion publiciana would be dismissed
for lack of jurisdiction and it should instead be filed with the proper RTC.
In Sarona vs Villegas, the SC held that if one year from the forcible entry is
allowed to lapse before the suit is filed, then the remedy ceases to be
speedy; the processor is deemed to have waived his right to seek relief in
the inferior court. The Supreme Court ruled that the proper remedy would
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be to bring an action for accion publiciana because the action filed after the
lapse of one year from forcible entry cannot be treated as unlawful detainer
based on tolerance.
In unlawful detainer, the prescriptive period is also one year, but counted
from the date of the last demand to vacate, unless the contract provides
that the defendant must vacate the premises without necessity of further
demand upon failure to comply with the terms of the agreement or upon
termination or expiration thereof, and the one year. Shall be counted from
the termination or expiration of the contract.
The one year requirement within which to file the forcible entry or unlawful
detainer case is provided only by the ROC, rather than by law, and those
pertains to jurisdiction over the remedy. As such, objections to this type of
jurisdiction must be seasonably made.
In PLDT vs Citi Appliances M.C. Corp., the Supreme Court explained that the
jurisdiction over the remedy should not be confused with the relief, that
which the party filing the case wants the court to declare, and which
addresses the breach of the right or obligation. The Supreme Court ruled
that generally, jurisdiction over the remedy is provided by the ROC. It may
also be provided by statute, which provides for a specific procedure for the
recognition of a particular right, i.e., restitution of certificate of title,
registration of title. Jurisdiction over the remedy is mainly a procedural
matter which the Supreme Court - the authority that promulgates the ROC
– may change ad hoc, or clarify the application or interpretation of, in proper
cases.
Parties
The action need not be commenced by the owner of the property, but
rather, by the rightful possessor of the same since the issue in ejectment its
position in the question of ownership is at best, only ancillary thereto.
In forcible entry, the plaintiff is the one in prior physical possession in the
defendant is the one who depraved the said plaintiff of possession of any
land or building by for force, intimidation, threat, strategy, or stealth.
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in unlawful detainer, the plaintiff may be a lesser, vendor, vendee or other
person against whom the possession of any land or building is unlawfully
withheld after the expiration or termination of the right to hold possession,
by virtue of any contract, express or implied, or the legal representatives or
assigns of the said lessor, vendor, vendee or other person. The defendant is
the one unlawfully withholding the possession despite the demand to
vacate. The plaintiff in unlawful detainer need not be in prior physical
possession of the premises.
The proper action is one for unlawful detainer since the possession by
tolerance is lawful and becomes unlawful when the process or by tolerance
refuses to vacate upon demand made by the owner. A person who occupies
the land of another at the latter's tolerance or permission, without any
contract between them, is necessarily bound by an implied promise that he
will vacate upon demand, failing which, a summary action for unlawful
detainer is the proper remedy against him. (But tolerance but be from the
inception)
Duty of the court upon the filing of the ejectment case
the first duty of the court upon the filing of the case is to issue an order
declaring whether the case shall be governed by summary procedure. After
the court determines that the case was under summary procedure, it may,
from an examination of the allegations and such evidence as may be
attached, dismiss the case outright on any of the grounds apparent for the
dismissal of a civil action.
Cases requiring referral to conciliation, where there is no showing of
compliance with such requirement, shall it be dismissed without prejudice,
and may be revived only after the requirement have been complied with,
provided that the revival is done before the finality of the dismissal. The
revival of the case is only allowed when the same is dismissed for failure to
submit the same to conciliation at the barangay level, only after the dispute
subject of the dismissed case is submitted to barangay conciliation as
required under the LGC.
In case of dismissal without prejudice, based on the ground for failure to
refer to barangay conciliation, the ejectment suit, after compliance with
prior resort to barangay consolation, may be revived by motion, before the
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dismissal attains finality or within the 15-day period from notice of the
dismissal. After the lapse of the 15-day period, The case can no longer be
the reinstated or revived by mere motion in the original docketed action.
The party who wishes to reinstate the case has no other remedy but to file
a new complaint, with the payment of the corresponding filing fees
prescribed by law.
If no ground for dismissal is found, the court shall issue summons which shall
also state that the summary procedure shall apply. Summons shall then be
served in accordance with Rule 14.
Pleadings allowed and procedure
The rule expressly provides that only a compulsory and not a permissive
counterclaim is allowed. This may be in keeping with the summary nature of
the proceedings for ejectment, to promote its speedy disposition.
All pleadings under summary procedure should be verified. However, the
failure to verify the pleading filed is not fatal. The requirement is formal,
not jurisdictional. As such, the court may order the correction of the
pleading if verification is lacking or even act on the pleading although it is
not verified, if the attending circumstances are such that strict compliance
with the rules may be dispensed with in order that the ends of justice may
thereby be served.
The prohibited pleadings or motions under Rule 70 are:
1. motion to dismiss the complaint, except on the ground of lack of
jurisdiction over the subject matter or failure to comply with prior
referral to conciliation;
2. motion for bill of particulars;
3. motion for new trial, or for reconsideration of a judgment, or for
reopening of trial;
4. petition for relief from judgment;
5. motion for extension of time to file pleadings, affidavits or any
other papers;
6. memoranda;
7. petition for certiorari, mandamus or prohibition against any
interlocutory order issued by the court;
8. motion to declare the defendant in default;
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 9. dilatory motions for postponement;
10. reply;
11. third party complaints; and
12. interventions
Preliminary injunction and preliminary mandatory injunction
The second paragraph of Art 539 of the NCC provides that a possessor
deprived of his position through forcible entry may, within 10 days from the
filing of the complaint, present motion to secure from the competent court
in the action for forcible entry a writ of preliminary mandatory injunction to
restore him in his possession
The injunction contemplated in Art 539 of the NCC is an exception to the
general rule that the writ of injunction is not proper where its purpose is to
take property out of the possession or control of one person and place it in
the hands of another whose title has not clearly been established by law.
Notably, Art 539 of the NCC expressly provides that the remedy of a
preliminary mandatory injunction is available in forcible entry cases and
does not expressly mention that they said remedy may be availed of in
unlawful detainer cases. However, it is respectfully submitted that the
remedy of a preliminary mandatory injunction applies to both forcible entry
and unlawful detainer cases.
The period within which to file a motion seeking the issue once of a writ of
preliminary mandatory injunction is also shorter under Sec. 16, Rule 70.
Under the second paragraph of Art/ 539 of the NCC, the period is 10 days,
while under Sec. 15, Rule 70, the period is 5 days.
In Ramos vs CA, the Supreme Court ruled that while the function of
injunction is to generally preserve the status quo ante end hands, injunction
does not lie to take property away from one and give it to another, such rule
admits of an exception, which applies to ejectment cases.
The five day reglementary period within which to file the motion for the
issuance of the writ of preliminary mandatory injunction under Sec. 15, Rule
70 prevails over the 10 day period under Art. 539 of the NCC.
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Art. 1674 of the NCC provides for an additional ground for execution before
final judgment. It puts an end to the present state of the law which unjustly
allows the lessee to continue in possession during an appeal. It authorizes
the issuance of writ of preliminary mandatory injunction where the lessor’s
appeal is prima facie meritorious.
In addition to the remedy of a writ of preliminary mandatory injunction in
ejectment cases, a writ of preliminary injunction may also be granted by the
court in accordance with the provisions of Rule 58 to prevent the defendant
from committing further acts of dispossession against the plaintiff.
Thus, where the defendant deprived the plaintiff of possession by means of
force and the defendant further and later commits, threat or is about to
commit a new usurpation by entering by force upon the remainder of the
land in question, a writ of preliminary injunction may be availed of in the
forcible entry case to prevent the defendant from committing further acts
of dispossession.
Pursuant to Sec. 5, Rule 58, the preliminary injunction cannot be granted
without hearing and prior notice to the party sought to be enjoined.
However, courts are authorized to issue ex parte temporary restraining
order if it should appear from facts shown by affidavit or by the verified
petition that great or irreparable injury would result to the applicant before
the motion could be heard on notice. The temporary restraining order shall
be effective only for a period of 20 days from service to the party or persons
ought to be enjoined. During the 20 day period, the judge must conduct a
hearing to consider the propriety of issuing a preliminary injunction.
The preliminary injunction is an extraordinary remedy to save the
dispossessed party from further damage during the pendency of the original
action. It is a provisional remedy in an ejectment case that should lend itself
to the summary nature of the main case, and as such, should be decided
within 30 days from its filing.
Motion to dismiss
As a general rule, motions to dismiss are prohibited in cases falling under
summary procedure. The defendant, rather than filing a motion to dismiss,
should also just allege such grounds for dismissal as defenses and the
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answer period however, the prohibition on motion to dismiss a subject to
two exceptions. It may be allowed on the ground of lack of jurisdiction over
the subject matter and failure to comply with prior resort to barangay
conciliation. All other grounds for dismissal should be alleged in the answer
as affirmative defenses.
Answer
the answer should contain all affirmative and negative defenses available as
well as counterclaims and cross-claims applicable, otherwise, those not
asserted in the answer shall be deemed waived or considered barred.
Unlike in ordinary procedure, the period within which to file and answer in
ejectment cases is lesser, owning to the summary nature of the proceedings.
Defendant has 10 days to file his answer, reckoned from the service of
summons. This period is inextendible considering that a motion for
extension of time to file pleadings, affidavits or any paper is a prohibited
motion.
however, if the answer belatedly filed raises the defense of agricultural
tenancy relationship, the court should not proceed to render judgment on
the basis of the complaint alone. Rather, the court should hear and receive
evidence on such defense, for the purpose of determining whether it
possesses jurisdiction over the case. Such defense in the answer may also
be raised in a motion to dismiss on the lack of judicial coma which is one of
the exceptions to the prohibition on motion to dismiss in summary
procedure.
The defendant who fails to file an answer without a 10 day. Cannot be
declared in default. This is because a motion to declare defendant in default
is a prohibited motion.
The court may only render judgment on the basis of the allegations in the
complaint if:
1. there is only one defendant and they said defendant fails to file the
answer within the 10 day period to do so, and there is no
meritorious defense of lack of jurisdiction raised;
2. there are two or more defendants and all of them failed to find an
answer within their reglementary period to do so; and
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3. there are two or more defendants, some of whom filed an answer
but the complaint does not state a common cause of action against
them.
The Sec. 7, Rule 70 (rendered judgement based on allegations) will not apply
when there are several defendants in different ejectment cases that were
only consolidated or if they are not codefendants in the same case.
In Soriente vs Estate of Concepcion, the Supreme Court ruled that even if a
court consolidated several ejectment cases filed by the same plaintiff
against different defendants, the rule that the court cannot render a default
judgment if there are two or more defendants and only one or several of
them answered will not apply since the ejectment cases, although
consolidated, or distinct from each other.
Preliminary conference
A notice of preliminary conference be issued and the notice shall include the
dates set for the preliminary conference, court-annex mediation, and
judicial dispute resolution, is necessary. The notice shall also be served on
counsel, or on the party, if without counsel. The councsel served with such
notice shall be charged with the duty of notifying the party represented by
him.
The parties respective preliminary conference briefs should be filed with the
court and served on the adverse party in such manner as shall ensure their
receipt thereof at least three calendar days before the date of the
preliminary conference.
It shall be the duty of the parties and their council to appear at the
preliminary conference. The failure of the plaintiff to appear in the
preliminary conference shall because for the dismissal of his complaint and
the defendant who appears in the absence of the plaintiff shall be entitled
to judgment on his counterclaim, as may be warranted by the facts alleged
in the counterclaim and is limited to what is prayed for therein. This rule,
however, shall not apply where one of two or more defendants sued under
a common cause of action who had pleaded common defense shall appear
at the preliminary conference.
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Th non-appearance of a party and counsel may be excused only for acts of
God, force majure, or duly substantiated physical inability. A representative
may appear on behalf of a party, but must be fully authorized in writing to
enter into an amicable settlement, to submit to alternative modes of dispute
resolution, and to enter into stipulations or admissions of facts and
documents. In such a case, the non-appearance of a party maybe excuse and
would not be ground for the dismissal of the complaint or for the court to
render judgment, as the case may be.
It bears stressing that not all motions for postponement or prohibited under
summary procedure. The rule qualifies that dilatory motions for
postponement or prohibited. Hence, if it is meritorious, then it may be filed
and granted by the court.
During the preliminary conference, the parties may enter into an amicable
settlement and stipulations or admissions. The settlement and stipulations
may have the effect of settling or resolving some or all of the issues of the
case.
The Revised ROC seems to have adopted the provisions in summary
procedure on rendition of judgment after preliminary conference. The
revised Sec. 7 of Rule 18 provides, among others, that the pretrial order shall
contain a statement that the court should render judgment on the pleadings
or summary judgment, as the case may be. Thus, Sec. 10, Rule 18, acid base,
provides that should there be no more controverted facts, or no more
genuine issue as to any material fact, or an absence of any issue, or should
the answer fail to tender an issue , the court shall, without prejudice to a
party moving for judgment on the bleeding or summary judgment, motu
proprio include in the pretrial order that the case be submitted for summary
judgment or judgement on the pleadings, without need of position papers
or memoranda; in such cases, judgment shall be rendered within 90
calendar days from termination of the pretrial.
However under ordinary procedure, judgment shall be rendered within 90
calendar days from termination of pretrial. Under summary procedure, it is
30 days from issue ones of the preliminary conference order. The period of
rendition of judgment in cases falling under summary procedure is shorter,
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in keeping with the spirit of the rule which aims to achieve an expeditious
and inexpensive determination of the case falling thereunder.
Any of the parties may file motions for summary judgment or judgment on
the pleadings since these are not prohibited under Rule 70 and ordinary
procedure.
Submission of affidavits and position papers
There is no trial for summary procedure in civil cases. Before the issue once
of the record of preliminary confidence, the parties are not yet required to
present their respective evidence.
The 10 day period for filing affidavits and possession papers should be
complied with. Should a party fail to submit the affidavits within their
reglementary period to do so, and belatedly files the affidavits months later,
without any justifiable reason for such delay, the court should render
judgment without taking the same into consideration in rendering its
judgment.
The affidavits take the place of actual testimony in court and served to
expedite the resolution of cases covered by the Revised Rules on Summary
Procedure.
The affidavits to be attached to the position paper should be in order times
with the Judicial Affidavit Rule because Sec.1 thereof provides that the rule
applies to all actions, proceedings and incidents requiring the reception of
evidence before first level courts, but shall not apply to small claims. Cases
covered by summary procedure fall within their jurisdiction of first level
courts. Sec. 14, Rule 70, which imply that the affidavits to be submitted shall
comply with the rules on evidence. The rules provide that the affidavit shall
only state facts of direct personal knowledge of the affiant which are
admissible in evidence, and shall show their competence to testify to the
matters stated therein. A violation of this requirement may subject the party
or the counsel who submits the same to disciplinary action, and shall be
cause to expunge the inadmissible affidavit or portion thereof from record.
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Thus, document, attached or annex to the position paper, meant to be
submitted as evidence, but without any affidavits supporting it, is hearsay
and thus inadmissible.
While ejectment cases are decided merely on the basis of affidavits and
position papers, the affidavits should prove the claims by sufficient
evidence. The mere submission of affidavits alone will not warrant a
judgment in favor of the party, particularly when the lone affidavit
submitted self-serving. The rule of evidence still apply. Thus, he who alleges
still has the burden of proving such allegation by sufficient and competent
evidence. For instance, the plaintiff claiming their right to possess or the
violation of lease agreement has the burden to prove such allegation.
Likewise, the lessee who claims to have timely paid the lease has the burden
of proving payment.
Judgment
When the defendant fails to file and answer, the recording point of the 30-
day period to render judgment is the expiration of the period within which
to file and answer. It bears stressing that the rendition of judgment in case
of failure to file an answer within the reglementary period to do so is
mandatory because Sec. 7, Rule 70 makes use of the word shall. Thus, if no
motion is filed by the plaintiff, the court should motu proprio render
judgment as may be warranted by the facts alleged in the complaint and
limited to what is prayed for therein.
The exception to the 30-day period within which to render judgment is when
the court finds it necessary to clarify certain material facts. The judgment
shall thereafter be rendered within 15 days after receipt of the last affidavit
or the expiration of the period for filing the same.
In other words, should there be failure to file affidavits and position papers
within the reglementary period to do so, the court should proceed with
entering judgment within 30 days from the expiration of the said
reglementary period.
A court cannot resort to the foregoing clarificatory procedure when the
party fails to submit their affidavit and position papers are required by Sec.
10, Rule 70. It is only after evaluating the affidavits and position papers
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submitted by the parties that the court can determine whether it should
resort to the clarificatory procedure provided in Sec. 11, Rule 70. If any of
the parties failed to submit their evidence and position paper within their
reglementary period, the court cannot set the clarification Tori procedure in
motion. Otherwise, a party can derail the proceeding and defeat the
purpose of the summary procedure by not filing the affidavit of his witnesses
and his position paper, thus forcing the court to resort to said procedure.
If successful, the plaintiff is entitled to the following relief:
1. restitution of the premises;
2. rental arrears or reasonable compensation for the use and
occupation of the premises; and
3. attorney’s fees and cos.
If the facts of the case duly warrant it, the court made in their judgment
awarding actual and compensatory damages for the depriving the plaintiff
of beneficial use and possession of the property. The reasonable
compensation contemplated under Sec. 17, Rule 70 partakes of the nature
of actual damages.
These damages arise from the loss of the use and occupation of the
property, and not to damages which plaintiff may have suffered but which
have no direct relation to their loss of material possession. Damages in the
context of Rule 70 are limited to rent or fair market value for the use and
occupation of the property. Rental value refers to the value as asserted by
proof of what the property would rent or by evidence of other facts which
from the fair rental value may be determined. Parental value is determined
as the amount at which a willing lessee would pay a willingness lessor would
receive for the use of a certain property, neither being under compulsion
and both parties having a reasonable knowledge of all facts, such as the
extent, character and utility of the property, sales and holding prices of
similar land and the highest and best use of the property.
The following factors may be considered in determining the reasonableness
of the rental charged:
1. The prevailing rates in the vicinity;
2. location of the property;
3. use of the property;
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 4. inflation rate; and
5. the testimony of the witness.
There is no basis for the court of origin to award moral and exemplary
damages, and actually damages are not pertaining to use and occupation of
the premises because in ejectment cases, the only issue raised is that of
rightful possession. The only damage that can be recovered in ejectment suit
are those that the plaintiff sustained as a mere possessor, or those costs by
the loss of the use and occupation of the property, and not the damage
which he may have suffered but which have no directly relation to his loss
of material possession. Thus, the rightful possessor is only entitled to
recover damages, which refer during or the reasonable compensation for
the use and occupation of the premises, or fair rental value of the property
and attorney’s fees and costs. Other damages must thus be claimed in an
ordinary action.
The unjustified refusal to surrender possession of the property by the
defendant who was fully aware that he cannot present any competent
evidence to prove his claim to rightful possession as against the plaintiff or
the rightful processor it's a valid legal basis to award attorney’s fees as
damages as well as litigation expenses and costs of suit. Toward the award
of attorney’s fees, the claimant should have been compelled to litigate or to
incur expenses to protect his right and there must be sufficient showing of
bad faith in the case, and not just an erroneous conviction of the
righteousness of the defendant’s costs. The attorney’s fees, when awarded,
shall not exceed 20,000.
as a rule, compulsory counterclaim is barred if not set up. The reason for the
rule relating to the counterclaims is to avoid multiplicity of suits and to
dispose of the whole matter in controversy in one action, and the
adjudgment of the defendant’s demand by counterclaim rather than by
independent suit. This reason, however, does not obtain where the amount
exceeds the jurisdiction of the inferior court.
The rule, when applied to inferior courts, presupposes that the amount
involved is within the said court’s jurisdiction. If the counterclaim in excess
of the amount cognizable by the inferior court is set up, the defendant
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cannot obtain complete positive relief. The defendant still has to institute a
separate action for the remaining balance of his counterclaim.
The remedy against the decision rendered in the ejectment case is to file an
appeal (Rule 40). A motion for reconsideration is not an available remedy
because it is a prohibited motion.
The judgment or final order shall be appealed to the appropriate RTC. The
mode of appeal is an ordinary appeal under Rule 40, perfected by the filing
of a notice of appeal with the court of origin and paying the full amount of
the appeal, docket and other lawful fees, within 15 days from notice of the
decision or final order.
Immediate execution of judgment and stay of execution
As a general rule, a judgment in favor of the plaintiff in an ejectment suit is
immediately executory, in order to prevent further damage to him arising
from the loss of possession of the property in question. Thus, if judgment is
rendered against the defendant, execution shall issue immediately upon
motion.
A party has 15 days to perfect his appeal and stay the execution by filing a
notice of appeal and supersedeas bond and periodically depositing the
rentals. Unless the defendant receives a motion for execution and notice of
the decision, he cannot take these steps to stay execution. Thus, the trial
court cannot issue a writ of execution prior to the defendant’s receipt of the
decision or notice of the motion of writ of execution, as this would go against
all sense of fair play.
To stay the immediate execution of the said judgment while the appeal is
pending before the RTC, the following regulations must concur:
1. the defendant perfects his appeal;
2. he files a sufficient supersedeas bond, within the period for the
perfection of the appeal, approved by the court of origin and
executed in favor of the plaintiff to pay the rents, damages, and
costs accruing down to the time of the judgment appealed from;
and
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 3. he periodically deposits with the appellate court the rentals under
the contract, if any, as determined by the judgment of the court of
origin, which becomes due during the pendency of the appeal.
Insofar as the third requisite, in the absence of a contract, the defendant
shall deposit with the RTC the reasonable value of the use and occupation
of the premises for the preceding month or. At the rate determined by the
judgment of the lower court on or before the 10th day of each preceding
month or period.
The failure of the defendant to comply with any of these conditions is a
ground for the outright execution of the judgment, the duty of the court in
this respect being ministerial and imperative.
Hence, if the defendant-appellant perfected the appeal but failed to file a
supersedeas bond or to make periodical deposits, the immediate execution
of the judgment would automatically follow. Conversely, the filing of a
supersedeas bond will not stay the execution of the judgment if the appeal
is not perfected. Considering that it is the ministerial duty of the court of
origin to issue a writ of execution upon failure of the defendant to find a
supersedeas bond and/or to deposit the approving rentals, a temporary
restraining order cannot be issued by a higher court to enjoin the eviction of
the defendant.
The rule on the mandatory filing of the supersedeas bond to state the
immediate execution admits of an exception. When the court of origin did
not make any findings with respect to any amount in arrears, damages or
costs against the defendant, no bond is necessary to stay the execution of
the judgment. In such case, the perfection of appeal would be sufficient to
stay the execution, and the court cannot order immediate execution
premise on the failure to file a supersedeas bond since no bond is necessary,
there being no back rentals adjudge in the appealed judgment. Thus, in the
absence of an award for rental in arrears or damages and without the fixing
of reasonable rental or compensation for the use of the premises and the
judgment, there is no need to file a supersedeas bond and the defendant is
not obliged to deposit any rental falling due during the pendency of appeal
in order to secure a stay of execution.
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In Azar Brothers Realty Company vs CA, the lower court in the ejectment
case did not award rentals in arrears or damages. The lower court only
awarded attorney’s fees and litigation expenses. The defendant appealed
without filing a supersedeas bond or making periodical deposits as required
under Sec. 19, Rule 70. For this reason, the lower court ordered the
immediate execution of the judgment. The Supreme Court ruled that it was
error for the lower court to order the immediate execution of the judgment.
The attorney’s fees and litigation expenses need not be covered by a bond
as these are not the damages contemplated under Sec. 19, Rule 70. The
damage is referred to under the side rule are the reasonable compensation
for the use and occupation of the property which are generally measured by
its fair rental value and cannot refer to other damages which are for into the
enjoyment or material possession of the property. The Supreme Court also
ruled that the defendant was not obliged to deposit the rentals falling during
the pendency of the appeal in order to secure a stay of execution because
the appealed judgement did not fix the reasonable rent or compensation for
the use of the premises.
In Alconera vs Pallanan, it was ruled that the immediacy of execution in
ejectment cases does not mean instant execution. As provided under Sec.
19, Rule 70, the execution may be had upon motion. Once the writ of
execution is issued, there must be compliance with Sec.10c, Rule 39. the
sheriff must give notice of the writ of execution and make a demand on the
defendant to vacate the property within three days. Only after such. Can the
sheriff enforced the writ by the bodily removal of the defendant in the
ejectment case and his personal belongings, with the assistance, if
necessary, of appropriate police officers. Even in cases wherein decisions
are immediately executory, the required three day notice cannot be
dispensed with.
It is only the execution of the court of origin’s judgment pending with the
RTC which may be staged by a compliance with the requisites provided in
Sec. 19, Rule 70. once the RTC has rendered a decision in its appellate
jurisdiction, such decision shall, under Sec. 21, Rule 70, be immediately
executory. Thus, immediate executory of the judgment becomes a
ministerial duty of the court. The immediate execution is without prejudice
to an appeal, via a petition for review, before the CA by Rule 42 and/or the
Sc by Rule 45.
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 RULE 71
CONTEMPT
Contempt of court is some act or conduct which tends to interfere with the
business of the court, by a refusal to obey some lawful order of the court, or
some of disrespect to the dignity of the court which in some way tends to
interfere with or hamper the orderly proceedings of the court and thus
lessen the general efficiency of the same. It is a defiance of the authority,
justice or dignity of the court. Simply put, it is the spacing of the authority,
justice, or dignity of the court. The phrase “contempt of court” is generic,
embracing within its legal signification of variety of different acts.
For an act to be considered contemptuous, it must be clearly contrary or
prohibited by the order of the court. A person cannot, for disobedience, be
punished for contempt unless the act which is forbidden or required to be
done is clearly and exactly defined, so that there can be no reasonable doubt
or uncertainty as to what specific act or thing is forbidden or required.
The power to declare a person in contempt of court and in dealing with him
accordingly is an inherent power lodge in the Court of Justice. It is a means
to protect and preserve the dignity of the court, the solemnity of the
proceedings therein and the administration of justice from callous
misbehavior, offensive personalities, and contumacious refusal to comply
with court orders.
The Supreme Court had consistently ruled that the content power, however
plenary it may seem, must be exercised judiciously and sparingly, so much
so that only in cases of clear and contumacious (stubbornly or willfully
disobedient to authority) refusal to obey should the set power be exercised.
It should not be availed of unless necessary in the interest of justice. The
power to punish for contempt should be exercised on the preservation and
not on the vindictive principle; with the corrective rather than the retaliatory
idea of punishment.
In Baja vs Macadong, the Supreme Court concluded that a judge should ever
allow himself to be moved by pride, prejudice, passion, or pettiness in the
performance of his duties. Judges are enjoined to exercise at most restraint
in the use of their contempt powers. They are expected to avail of the
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content power only as a last resort when all other alternatively courses of
action are exhausted in the pursuit of maintaining respect to the court and
its processes. When a less harsh remedy presents itself to the judge, he
should at all times hesitate to use his contempt power, and instead of for
the less harsh remedy.
There are two types of contempt of court: 1) direct contempt; and 2) indirect
contempt. Direct contempt is committed when a person is guilty of
misbehavior in the presence of or so near a court as to obstruct or interrupt
the proceedings before the same, including disrespect towards the court,
offensive personalities toward others, or refusal to be sworn or to answer
as a witness, or to subscribe and affidavit or deposition when lawfully
required to do so. Indirect contempt or constructive contempt is that which
is committed out of the presence of the court. Any improper conduct
tending, directly or indirectly, to impede, obstruct, or degrade the
administration of justice would constitute indirect contempt.
The exercise of the power to punish for contempt has a dual aspect,
primarily, the proper punishment of the guilty party for his disrespect to the
court, and, secondarily, his compulsory performance of some act or duty
required of him by the court, which he refuses to perform. Due to this
twofold aspect of exercise of the power to punish contemnors, contempts
are classified as civil or criminal.
Civil or criminal contempt
Civil content is the failure to do something ordered by the court to be done
for the benefit of a party. It is an offense against the party in whose behalf
the violated order is made. Civil contempt proceedings are generally held to
be remedial and civil in their nature, meaning that they are proceedings for
the enforcement of some duty, and essentially a remedy for coercing a
person to do the thing required. In general, civil contempt proceedings
should be instituted by the aggrieved party, or his successor, or someone
who has a pecuniary interest in their right to be protected. The proceedings
are to be regarded as civil when the purpose is primarily compensatory or
remedial. Civil contempt is neither a felony or a misdemeanor, but a power
of the court. While the proceeding is auxiliary to the main case in that it
proceeds out of the original case, it is essentially a new independent
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proceeding in that it involves new issues and must be initiated by the issue
once in service of new process.
A criminal contempt is any conduct directed against the authority or dignity
of the court or a judge acting judicially. It is an act obstructing the
administration of justice which tends to bring the court into disrepute or
disrespect. A criminal contempt, being directed against the dignity and
authority of the court, is an offense against organized society and, in
addition, is also hell to be an offense against public justice which raises an
issue between the public and the accused, and the proceedings to punish it
are punitive. The purpose is to preserve the power and vindicate the
authority and dignity of the court, and to punish for disobedience of its
orders. If the content is initiated by the court or tribunal exercising the
power to punish a given contempt, it is criminal or quasi criminal in nature,
and the proceedings are to be conducted in accordance with the principle
and rules applicable to criminal cases. Criminal contempt is not a criminal
proceeding or prosecution, even though the contemptuous act involved is
also a crime. The proceeding has been characterized as sui generis, partaking
of some of the elements of both a civil and criminal proceeding, but really
constituting neither. In general, criminal contempt proceeding should be
conducted in accordance with the principles and rules applicable to criminal
cases, insofar as such procedure is consistent with the summary nature of
contempt proceeding. The strict rules that govern criminal prosecutions
apply to a prosecution for criminal contempt, that the accused is to be
afforded many of the protections provided in criminal cases, that
proceedings under statutes governing them are to be strictly construed.
However, criminal proceedings are not required to take any particular form
so long as the substantial right of the accused are preserved.
In criminal contempt, intent is a necessary element, and no one can be
punished for a criminal contempt unless the evidence makes it's clear that
he intended to commit it. In civil contempt, the defendant’s intent in
committing the content is immaterial since the purpose of civil contempt
proceeding is remedial. As such, good faith or the absence of intent to
violate the court's order is not a defense in civil contempt.
Contempt is not presumed. In proceedings for criminal contempt, the
defendant is presumed innocent and the burden is on the prosecution to
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prove the charges beyond reasonable doubt. In proceedings for civil
contempt, there is no presumption, although the burden of proof is on the
complainant, and while the proof need not be beyond reasonable doubt it
must amount to more than a mere preponderance of evidence; the burden
of proof in a civil contempt proceeding lies somewhere between the criminal
reasonable doubt burden and the civil fair ponderance burden.
The line of demarcation between acts constituting criminal content, as
distinguished from a civil contempt, is quite indistinct. The real character of
the proceedings and contempt cases is to be determined by the relief sought
or by the dominant purpose. The proceedings are to be regarded as criminal
when the purpose is primarily punishment, until when the purpose is
primarily compensatory or remedial. Where the primary purpose is to
preserve the court's authority and to punish for disobedience of its orders,
the content is criminal. Criminal contempt is punitive in nature and the
government, the courts and the people are interested in their prosecution.
Where the primary purpose is to provide a remedy for an injured suitor and
to coerce compliance with an order, the contempt is civil.
A criminal contempt involves no element of personal injury. It is directed
against the power and dignity of the court; private parties have little, if any,
interest in the proceedings for punishment. Conversely, if the contempt
consists in their refusal of a person to do and that the court has ordered him
to do for the benefit or advantage of a party to an action pending before the
court, and the condemnor is committed until he complies with the order,
the commitment is in the nature of an execution to enforce the judgment of
the court; the party in whose favor the judgment was rendered as the real
party in interest in the preceding. Civil contempt proceedings look only to
the future. And it is said that in civil contempt proceedings, the contemnor
must be in a position to purge himself.
The distinction between civil and criminal contempt is for the purpose only
of determining the character of punishment to be administered. When the
contempt is criminal, it partakes of a criminal proceeding in that and
acquittal would be able to second prosecution. A judgment in contempt
proceeding is subject to review only in a matter provided for review of
judgments in criminal cases in that and appeal would not lie from the order
of dismissal or an exoneration from a judge of contempt of court because it
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amounts to a virtual acquittal. Also, any liberal construction of the rules
governing contempt proceedings should favor the person in charge.
If the indirect content is civil in nature, the remedies of motion for
reconsideration and appeal are available against a decision or order
dismissing the petition for indirect contempt.
Jurisdiction
All courts have the power to hold in contempt any person. It is the court
contemned that will have the power to punish a given contempt, partly
because of administrative considerations, and partly to visit the full personal
effect of the punishment on a contemnor. As a general rule, jurisdiction
properly rest in only one tribunal at a time with respect to a given
controversy. The power to punish for contempt exist for the purpose of
enabling a court to compel due decorum and respect in its presence and due
obedience to its judgment, orders and processes. In order that the court may
compel obedience to its orders, it must have the right to inquire whether
there has been any disobedience thereof, for to submit the question of
disobedience to another tribunal would operate through the deprived
proceeding of half its efficiency.
In Barredo-Fuentez vs Albarracin, the Supreme Court ruled that there is no
basis for it to initiate contempt proceeding or to contemn a party to suffer
the penalty of contempt where the contemptuous act was not directed
against the Supreme Court itself but was directed against the lower court.
The rule is subject to exceptions:
1. indirect contact committed against an inferior court may also be
tried by the RTC of the place in which the lower court is sitting,
regardless of the imposable penalty;
2. a court may also punish contempt committed against a court or
judge constituting one of its parts or agencies, as in the case of a
court composed of several coordinate branches or divisions;
3. when the contemptuous act also constitute an act warranting
professional disciplinary proceeding, the proper court such as the
Supreme Court, which is other than the court contemned may
impose the disciplinary measures;
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4. when a judge is dis qualified or disqualified himself on a contempt
hearing or in the main case, that warrants a transfer of the said case
to another court; and
5. when the contemptuous act also constitutes as a crime, it may be
punished in another court having jurisdiction over the crime, other
than the court contemned.
Direct contempt
Direct contempt it's committed by a person guilty of misbehavior in the
presence of o so near a court as to obstruct or interrupt the proceedings
before the same, including disrespect towards the court, offensive
personalities towards others, or refusal to be sworn or to answer as a
witness, or to subscribe and affidavit or deposition when lawfully required
to do so. It is a contumacious act done facie curiae.
A pleading containing derogatory, offensive or malicious statements when
submitted before a court or judge in which the proceedings are pending is
direct contempt because it is equivalent to a misbehavior committed in the
presence of so near a court or judge asked to interrupt the administration
of justice. This is true, even if the derogatory, offensive or malicious
statements are not read in open court.
An imputation in a pleading of gross ignorance against a court or its judge,
in the absence of any evidence, is a serious allegation, and constitutes direct
contempt of court.
In Rulz vs How, the utterance of derogatory words against a judge when
there were no proceedings being held or no showing that the judge was
performing judicial functions at that time does not constitute direct
contempt. Thus, the alleged contumacious outburst overheard by a person
and relayed to the judge was held not to constitute direct contempt as it did
not occur in the presence of or so near a court as to obstruct or interrupt
proceedings before the court. The Supreme Court ruled, however, that it
may amount to indirect content.
The failure to attend a hearing does not constitute direct contempt and at
most, the act can constitute only in direct contempt, which can be
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sanctioned only after the proper charge has been filed and the respondent
was given the opportunity to be heard.
The failure to comply with the requirements against forum shopping may
cause one to be declared in indirect contempt of court. But if the
noncompliance is willful and deliberate, then such person may be declared
guilty of direct contempt of court. Section 5, Rule 7 provides that the
submission of a full certification or non-compliance with any of the
undertakings in the certificate against forum shopping shall constitute
indirect contempt of court, without prejudice to the corresponding
administrative and criminal actions. If the act of the party or is counsel
constitute willful and deliberate forum shopping, the same shall be grounds
for summary dismissal with prejudice and shall constitute direct content, as
well as cause for administrative sanctions.
In Encinas vs National Bookstore, Inc, the lawyer’s act of attaching a fake
judicial decision to a motion for intervention was found to constitute direct
contempt of the Supreme Court, where they said motion was filed.
In Espanol vs Formoso, the Supreme Court found that the use of falsified
documents attached to the complaint constitute indirect contempt of court,
and not direct contempt of court. There is no inconsistency with the Encinas
ruling. In Encinas, it was a judicial decision that was falsified and it was
obvious. In Espanol. the falsified documents were a certificate of title and a
tax declaration, and the falsity was not apparent on its face.
The act or defamatory statement must be contemptuous to constitute direct
contempt. Contempt of court presupposes a contumacious attitude, a
flouting or arrogant belligerence, a virtual defiance of the court. Without the
foregoing, the act cannot be said to be done in contempt of court.
In Tabao vs Gacott, a judge may not hold a party in contempt for expressing
concern on his impartiality even if the judge may have been insulted
thereby.
Proceedings for direct contempt
Direct contempt maybe summarily adjudge by the court without hearing. In
direct contempt, the judge does not have to wait for any complaint before
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he can act. One maybe summarily adjudged indirect contempt at the very
moment or at the very instance of the commission of the act of contumely.
proceedings for direct contempt are summary in nature because the
contumacious acts were committed in the presence of or so near a court or
judge, who may have actually witnessed or perceived the commission of the
punishable act/acts, such that there is no need for another court proceeding
to prove that the acts were actually committed.
It is the court before whom the direct contempt was committed that has
jurisdiction over the proceedings.
Penalties for direct contempt
A respondent summarily adjudged in contempt may be punished for a fine
not exceeding 2,000 or imprisonment not exceeding 10 days, or both, if it
be a RTC or a court of equivalent or higher rank. Or by a fine not exceeding
200 or imprisonment not exceeding one day, or both, if it be a lower court.
The penalties imposed must be within the limitations provided under Sec. 1,
Rule 71.
Remedy and execution - direct contempt
An order of direct content is not immediately executory or enforceable. The
contemnor must be afforded a reasonable remedy to extricate or purge
himself of the contempt. Thus, Sec. 2, Rule 71 provides a remedy to a person
adjudged in direct content by any court. Such person may not appeal
therefrom but may avail himself off certiorari or prohibition. In such case,
the execution of the judgment shall be suspended pending resolution of
such petition provided the contemnor files a bond fixed by the court which
rendered the judgment and condition that he will abide by and performed
the judgment should the petition be decided against him.
An immediate detention prevents the party from availing of the remedies
under Sec. 2, Rule 71, which impropriety cannot be sustained.
Should the person adjudged indirect contempt availed of the remedies of
certiorari and posting of bond, the court cannot deny the right to bail and
the posting of bond on the ground that the warrant of arrest it issued did
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not authorize the posting of bail. By denying the bond, the court effectively
prevented the contemnor from resorting to his right to post a bond as
provided under Sec. 2, Rule 71 and thus, deprived him of his prized and
fundamental right to liberty, a right which is protected and guaranteed by
the constitution.
However, when the contemnor failed to show proof that any petition for
certiorari or prohibition was filed, as in fact, none was filed at the time the
contemnor moved to post bond, it was proper for the court to deny the
same. Without the said petitions, the contemnor was not yet entitled to the
remedy for posting bond as prayed for.
Indirect contempt
Indirect or constructive contempt is one perpetrated outside of the sitting
of the court and may include misbehavior of an officer of a court in the
performance of his official duties or in his official transactions, disobedience
of or resistance to a lawful writ, process, order, judgment, or command of a
court, or injunction granted by a court or a judge, any abuse or any unlawful
interference with the process or proceedings of a court not constituting
direct contempt, or any improper conduct tending directly or indirectly to
impede, obstruct or degrade the administration of justice.
To constitute disobedience of or resistance to a lawful writ, process, order
or judgment of a court, it must be shown that the alleged contemnor
received or was properly served a copy of the said writ, process, order or
judgment of a court. Lawful orders of the court have to be actually received
before the expectation to comply or enforce them attaches.
A defendant who does not comply with the writ of execution issued and
directed to the sheriff cannot be liable for contempt of court, unless the
decision involves a special judgment.
As a rule, the writ of execution is directed against the sheriff to enforce the
writ according to its terms.
A writ of execution issued in a case involving a judgment for sum of money
commands the sheriff to collect from the judgment debt or the amount due,
and should the judgment debtor failed to pay, from the side judgment
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debtor's personal or real properties sufficient to cover the amounts ought
to be collected. It is not addressed to their judgment debtor but pertains the
sheriff to whom the law entrusts the execution of judgment. If a judgment
is not truly enforced, then it is due to the sheriff's failure to do so.
The failure of the payer to comply with the execution judgment for money
should be enforced in accordance with Sec. 9b (satisfaction of levy), Rule 39,
and not by holding the judgment debtor in contempt.
It is improper to imprison a judgment debtor for contempt of court for failing
to pay the judgment award. It is violative of the constitution, which provides
that no person shall be imprisoned for a civil debt, or any liability to pay
arising out of an express or implied contract (not including liability arising
from a criminal offense.
By exception, Sec. 5, Rule 61 provides that if and adverse party fails to
comply with an order granting support pendente lite, the court shall motu
proprio, or upon motion issue and order of execution again said adverse
party, without prejudice to his liability for contempt.
A judgment of a court involving the delivery of possession of a parcel of land
should be executed in accordance with Sec.10c, Rule 39 and the writ of
execution should be directed to the sheriff, and not to the defendants
themselves. Said judgment is not a special judgment enforceable under Sec.
111, Rule 39. The writ should direct the sheriff to place the plaintiff in
possession of the premises. If the writ is directed to the defendants and not
to the sheriff, the same is invalid and the refusal of the defendant to obey
the same will not make them liable for contempt.
However, the losing defendant, who, after being dispossessed of the real
property pursuant to a writ of execution, enters or attempts or induces
another to enter into or upon such real property, for the purpose of
executing acts of ownership or possession, or in any manner disturbs the
possession given to the person adjudged entitled thereto, maybe charged
with or punished for indirect contempt under Sec. 3b, Rule 71.
In Azotez vs Blanco, the Supreme Court ruled that there is no limitation as
to the time within which such re-entry constitute contempt of court. The
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five year period under Sec. 6, Rule 39 only pertains the time within which
execution of judgment may be asked for by motion and does not put a limit
on Sec. 3b, Rule 71.
a special judgment is one which requires the performance of any act other
than the payment of money, sale or delivery of real or personal property.
Under Sec. 11, Rule 39, a person may be punished for contempt if he
disobeys such special judgement.
A judgment granting a petition for mandamus is a special judgment, thus
any disobedience thereto shall be punished as contempt.
The execution of a special judgment by means of contempt under Sec. 11,
Rule 39, should not be confused with Sec. 10a, Rule 39, which involves a
judgment directing a party to execute a conveyance of land or personal
property, or to deliver deeds or other documents, or to perform any specific
act in connection therewith. Under Sec. 10a, Rule 39, if the party fails to
comply with the said judgment within the time specified, the disobedient
party incurs no liability for contempt. Instead, the court may direct the act
be done by some other person appointed by the court, and the act, when so
done, shall have the effect as if done by the party. Additionally, under Sec.
10a, Rule 39, if real or personal property is situated within the Philippines,
the court, in lieu of directing inconvenience thereof, may, by an order, divest
the title of any party and vest it in others, which shall have the force and
effect of a conveyance executed in due form of law.
Under Sec. 11, Rule 39, the court may resort to proceedings for contempt in
order to enforce obedience to a judgement which requires personal
performance of a specific act other than the payment of money, or the sale
or delivery of real or personal property.
The use of a falsified document, more so where the falsity of the document
is not apparent on its face, constitutes indirect contempt, and as such is
subject to such defenses as the accused may raise in the proper proceedings.
The failure to appear in court for trial is not a direct contempt summarily
punishable under Sec. 1, Rule 71, for it is not a misbehavior in the presence
of or so near a court or judge has to interrupt the administration of justice.
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It may, however, constitute indirect contempt punishable only after written
charges and hearing under Sec. 3b, Rule 71, as disobedience of or resistance
to a lawful writ, process, order or judgment of a court.
By jurisprudence, the phrase “improper conduct” refers to acts constituting
gross disrespect to the court that detracts from the dignity and integrity of
a Court of Justice, and maybe in the form of unfair criticisms; the continuing
resistance to the court's final judgement; the employment of delaying
tactics to obstruct the administration of justice or otherwise unduly delaying
the case; and the violation of the sub judice rule.
The phrase “improper conduct tending, directly or indirectly, to impede,
obstruct, or degrade the administration of justice” is so broad and general
that it encompasses a wide spectrum of acts that could constitute indirect
contempt. However, the act of a party in parking his car in a slot allegedly
reserved for a judge does not fall under this category, particularly when
there is no showing that he acted with malice and or bad faith or that he
was improperly motivated to delay the proceedings of the court by making
use of the parking slot supposedly reserved for the judge. It cannot be said
that such act constitutes disrespect to the dignity of the court.
As a general rule, publicly this closing disbarment proceeding may be
punished with content. The rule, however, is not absolute.
In Fortun vs Quinsayas, Atty. Fortun filed a petition for contempt against
Atty. Quisayas and members of the media, who made public the details of
the disbarment case filed against him. Insofar as the dissemination of the
disbarment compliant, the SC ruled in Fortun found Atty. Quisayas liable for
contempt of court.
In Fortun vs Quinsay, the Supreme Court ruled that as a general rule ,
disbarment proceedings are confidential in nature until their final resolution
and the final decision of the Supreme Court. In this case, however, the filing
of a disbarment complaint against Atty. Fortun iss itself a matter of public
concern considering that it arose from the Maguindanao Massacre case.
The interest of the public is not on Atty. Fortun himself but primarily on his
involvement and participation as defense counsel in the Maguinadanao
Massacre case. The allegations in the disbarment complaint related to Atty.
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Fortun’s suppose actions involving the case, which is a very high-profile case.
The Supreme Court ruled that it is understandable that any matter related
to the case is considered a matter of public interest and that the
personalities involved, including Atty. Fortun, are considered as public
figures. But even assuming a person would not qualify as a public figure, it
would not necessarily follow that he could not validly be the subject of a
public comment. For he could, for instance, if and when he would be
involved in a public issue. If a matter is a subject of public or general interest,
it cannot suddenly become less so merely because a private individual is
involved or because in some sense the individual did not voluntarily choose
to become involved. The public's primary interest is in the event; the public
focus is on the conduct of the participants and the content, effect and
significance of the conduct, not the participants prior anonymity or
notoriety. Hence, the media are not liable for contempt of court.
In Palad vs Solis, the complaint for indirect contempt against certain writers
who published stories pertaining to complainant Atty. Palas’s alleged 1-year
suspension from the practice of law was denied considering that Atty. Palad
represented a client, a public figure, who was involved in a video voyeurism
on the interest, a matter that roused the public’s attention and was the
subject of public interest. Since Atty. Palad represented a matter of public
interest, the public was focused on the event, the conduct of the
personalities involved, the content, effect and significance of the conduct,
and nor merely on the personalities. Atty. Palad’s disciplinary proceeding
became a matter of public concern. The interest of the public was not in
himself but primarily in his involvement in the scandal. The disciplinary
proceeding related to his supposed conduct and statement made before the
media involving the controversy, in violation of the Code of Professional
Responsibility. Since Atty. Palad became a public figure for being involved in
a public issue, and because the event itself that led to the filling of the
disciplinary case against Atty. Palad was a matter of public interest, the
media had the right to report the disciplinary case as a legitimate news. The
legitimate media had the right to publish such fact under the constitutional
guarantee of freedom of press.
Even a court may be liable for indirect contempt committed against a higher
court. In Commissioner of Immigration vs Cloribel, the Supreme Court found
the trial court judge liable for indirect content committed by disobedience
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of or resistance to a lawful writ, process, order, judgment, or command of a
court, or injunction granted by a court or judge. The trial court therein defied
and violated the injunction issued by the Supreme Court. The disobedience
which the law punishes as constructive contempt implied willfulness.
Although the respondent in this said case was a judge, his official character
did not insinuate him from punishment for insubordination of an order of
the highest tribunal of the land.
In Alcantara vs Ponce, it was held that the filing of numerous pleadings and
motions that: 1) race the same arguments, after the court has passed upon
the same and after the decision has become final; 2) were remedies not
recognized nor allowed under the rules; 3) were filed in violation off the
court's ruling that no further pleadings would be entertained, constitute
disobedience of or resistance to a lawful writ, process, order or judgment of
the court and abuse of or an unlawful interference with the processes or
proceeding of a court not constituting direct contempt. The Supreme Court
ruled that these are acts that may be punished for indirect contempt.
Person guilty of any improper conduct tending, directly or indirectly, to
impede, obstruct, or degrade the administration of justice may be punished
for Internet content. AM No. 03-10-01-SC provides, among others, that if
upon preliminary inquiry before the office of the court administrator, that
the complainant failed and founded or malicious administrative or criminal
case against a member of the judiciary for the purpose of harassing the
member of the judiciary, they said complainant, after proper proceedings,
may be held liable for indirect contempt of court. Unsubstantiated charges
serve no purpose other than to harass judges and cast doubt on the integrity
of the entire judiciary. The failing of clearly unfounded or malicious
complaints seriously affects the efficiency of the members of the judiciary in
administering fair, speedy and impartial justice.
Proceedings for indirect contempt
In indirect contempt proceedings, the prescribed procedure must be
followed as provided under sections 3 and 4, of Rule 71. Proceedings for
indirect contempt may be initiated by the court motu proprio or by verified
petition.
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The court, in the exercise of its inherited power to control, in furtherance of
justice, the conduct of its ministerial officers and of all other persons in any
manner connected with the case before it, may motu proprio initiate
proceedings therefor.
Thus, there is no need for an offended party to institute the indirect
contempt proceeding since the court may motu proprio start proceedings
of this nature.
For indirect proceedings initiated by the court motu proprio, the following
must be complied with:
1. there must be an order requiring the respondent to show cause
why he should not be cited for contempt;
2. the respondent must give the opportunity to comment on the
charge against him;
3. there must be a hearing and the court must investigate the charge
and consider the respondent's answer; and
4. only if found guilty will the respondent be punished accordingly.
In Felizmena vs Galano, the SC ruled that the written charge is indispensable
and there can be no indirect contempt absent any prior written charge. The
written charge is in the nature of a show cause order directing the person
alleged to have committed indirect contempt to explain why he should not
be cited for indirect contempt.
The Supreme Court in Felizmena held that the court order directing the
party to explain his failure to bring the accused before the court for his
scheduled arraignment is an insufficient written charge as there was no
order specifically requiring said party to show cause why he should not be
punished for contempt. Without the show cause order, the court has no
authority to punish the party concerned.
In “In Re Calimlim”, the Supreme Court ruled that if the answer to the
contempt charge is satisfactory, the contempt proceedings and period only
in cases of clear and contumacious refusal to obey show the power to punish
for content be exercised. Absent any finding that a party contumaciously
refused to comply with the court’s order, the court will have no reason to
punish for indirect contempt.
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The Supreme Court further ruled in Calimlim that there must be a hearing
conducted on the contempt charge, in order to afford the party fill and real
opportunity to be heard. Since a contempt charge partakes of the nature of
a criminal prosecution and follow the preceding similar to criminal
prosecution, judges must extent to the alleged contemnor the same rights
accorded to an accused.
It is not enough that the respondent filed his comment and was given an
opportunity to comment because an indirect contempt charge partakes the
nature of a criminal charge’ conviction cannot be had merely on the basis of
written pleadings.
In Balasbas vs Aquilizan, the SC ruled that there must also be a notice of the
hearing, separate from the notice of the charge. The 2 notices are different,
for they have distinct objects and purposes.
Indirect contempt proceedings, if not initiated by the court motu proprio,
may not be instituted by mere motion, and must be instituted by filing a
verified petition. The requirement of a verified petition is mandatory.
When the court did not grant the motion (for indirect contempt) and
instead, proceeded to conduct indirect contempt proceedings motu proprio,
directing the party to show cause why it should not be held in contempt,
and the court followed the proper procedure for indirect contempt, no
verified petition is required.
Whether the indirect contempt is initiated motu proprio or by a verified
petition, the charge is in writing. Unlike in a case of direct contempt, where
the contemnor may summarily be adjudged in contempt, in indirect
contempt, it is required that a written charge be filed and opportunity be
given to the accused to be heard by himself or counsel before the accused
may be punished for contempt.
When a respondent released on bail fails to appear on the day fixed for the
hearing, the court may issue another order of arrest or may order the bond
for his appearance to be forfeited and confiscated, or both. If the bond be
proceeded against, the measure of damages shall be the extent of the loss
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or injury sustained by the aggrieved party by reason of the misconduct for
which the contempt charge was prosecuted, with costs of the proceedings,
and such recovery shall be for the benefit of the party injured.
If there is no aggrieved party, the bond shall be liable and disposed of as in
criminal cases. Before a bail bond may be forfeited and a judgement on the
bond be rendered against the surety, the procedure under Sec. 21, Rule 114
should be followed. There are two occasion upon which the trial court judge
may rule against the bondsman in cases where the accused failed to appear
in court: 1) then appearance by the accused is cause for the judgment to
summarily declare the bond as forfeited; and 2) the bondsman, after the
summary forfeiture the bond, are given 30 days within which to produce the
principal and to show cause why a judgment should not be rendered against
them for the amount of the bond. It is only after this 30-day period, during
which the bondsmen are afforded the opportunity to be heard by the trial
court, that the trial court may render a judgement on the bond against the
bondsmen. Judgement against the bondsmen cannot be entered unless
such judgement is proceeded by the order of forfeiture and an opportunity
given to the bondsmen to produce the accused or to adduce satisfactory
reason for their inability to do so.
Penalties for indirect contempt
Sec. 7, Rule 71 provides for the penalties.
- RTC or higher court – fine not exceeding 30,000 or imprisonment
not exceeding 6 months, or both
- Lower court – fine not exceeding 5,000 or imprisonment not
exceeding 1 month, or both.
For penalties involving fines, a motion for execution should be filed for the
issuance of writ of execution to enforce the same, as in ordinary actions,
unless the court otherwise provides. Thus, upon issuance of writ of
execution, the sheriff shall enforce the judgement involving a fine by
demanding from the respondent the immediate payment of the amount
stated in the writ of execution. If the respondent cannot pay all or part of
the fine, the sheriff shall levy on the respondent’s property not exempt from
execution, sufficient to satisfy the judgement or levy on debt due the
respondent and other credits. The property levied on shall be sold in a public
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auction or an execution sale, and the proceeds shall be applied for the
satisfaction of the judgement.
The rules do not provide a penalty for reprimand, admonition or warning.
Nevertheless, the court may impose a penalty less than what is provided
under the rules if the circumstances merit it, such a reprimand, with a
warning that a commission of the same act would be drastically dealt with.
There may also be an admonition, which is not really a penalty but a
warning.
When it comes to the failure to obey courts’ order and processes, courts
should be slow in jailing people for noncompliance with their orders. But,
where there exist a clear and contumacious refusal to obey court orders or
processes by the parties, the power to order that a party be incarcerated
can be imposed.
Sec. 8, Rule 71 provides for an indefinite incarceration in civil contempt
proceedings to compel a party to comply with the order of the court.
Imprisonment for civil contempt is ordered where the respondent refused
to do an affirmative act required by the provisions of an order which, either
in form or substance, is mandatory in its character. This may be resorted to
where the attendant circumstances are such that, the non-compliance with
the courts order is an utter disregard of the authority of the court which has
then no other recourse but to use its coercive power.
The reason for indefinite incarceration in civil contempt proceeding, in
proper cases, is that it is remedial, preservatives, or coercive in nature, for
the respondent to do what he had refused to do. The punishment is imposed
for the benefit of complainant or a party to a suit who has been injured. The
respondent can end his imprisonment and discharge himself at any moment
by doing what he has previously refused to do.
A court which issued the order imprisoning a person for contempt may
discharge him from imprisonment when it appears that public interest will
not be prejudiced by his release. It is the court that ordered the confinement
for contempt of court that can issue the order of release of the person
imprisoned.
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In Sandico vs Vergara, the writs of execution issued therein where directed
against the sherrifs. The sheriff in both cases were directed to recover the
real property and money, from the judgment of obligors (Hence, the remedy
cannot be indirect contempt of the judgment obligor, since it is directed to
the sheriff, the remedy of found under Sec. 10e, Rule 39). In Quinio, the trial
court issued an order directing the officers of Toyota and not merely the
sheriff, to return the motor vehicle to the petition within 5 days from receipt
of said order. Since the order was directed against the officers of Toyota and
they disobeyed such order directing execution of the Decision, they may be
liable for indirect contempt and since the contempt involved is civil in
nature, then they may be incarcerated indefinitely, pursuant to Sec. 8, Rule
71, until the trial court’s order is obeyed.
Remedy and execution - indirect contempt
The judgment or final order of a court in a case of indirect contempt that is
criminal in nature may be appealed to the proper court as in criminal cases.
The judgment in criminal contempt proceeding is subject to review of
judgments in criminal cases. Hence, as in criminal proceedings, and appeal
would not lie from the order of dismissal of, or an exoneration from, a
charge of contempt of court. Allowing an appeal of the judgment of acquittal
in criminal contempt would expose the respondent twice in jeopardy for the
same offence, in violation of the constitutional principle against a person
being put twice in jeopardy of punishment for the same crime. Since no
appeal may lie against a judgment or final order dismissing a charge of
criminal indirect contempt on the merits, the judgment or final order
necessarily becomes final and executory upon its promulgation.
On the other hand, a judgment in a civil contempt may be subject of emotion
for reconsideration or appeal. If the RTC issued the contempt judgment,
then the mood of appeal is ordinary appeal by filing a notice of appeal under
Rule 41. in the absence of an appeal, the decision becomes final and
executory, and it can no longer be changed.
During the appeal, execution of the judgment or final order shall not be
suspended until a bond is filed by the person adjudged in contempt, in an
amount fixed by the court from which the appeal is taken, conditioned that
if the appeal be decided against him, he will abide by and perform their
judgment or final order.
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The writ of execution, as in ordinary civil actions, shall issue for the
enforcement of a judgment imposing a fine unless the court otherwise
provides.
Contempt against quasi-judicial entities
Unless otherwise provided by law, Rule 71 shall apply to contempt
committed against persons, entities, bodies or agencies exercising quasi-
judicial functions, or shall have suppletory effect to such rules as they may
have adopted pursuant to the authority granted to them by law to punish
for contempt. The RTC of the place where in the contempt has been
committed shall have jurisdiction over such charges as may be filed.
The filing of contempt in court is observed only where there is no law
granting contempt powers to these quasi-judicial entities.
Exampled of quasi-judicial entities which have the power to cite and declare
any person or entity in direct or indirect contempt (and should not file with
the RTC):
1. Housing Land Use Regulatory Board
2. Labor arbiter or NLRC
3. Civil Service Commission.
Should there be a law providing for the said was a judicial agency’s power of
contempt, then Rule 71 shall have the suppletory effect to such rules as they
may have adopted pursuant to the authority granted to them by the law to
punish contempt.
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