RULE 39 ANS: Attach the certified true copies of the judgment of the appellate court in
EXECUTION, SATISFACTION, AND EFFECT OF JUDGMENTS support of the motion.
JS: When judgement is already final and executory, the next thing for the
court to do upon motion will be the issuance of writ of execution. Take note of
that. In the writ of execution, can be filed by mere motion within how many
years?
ANS: within 5 years
JS: When would you start counting the five year period? That is very
important.
ANS: five years from the date of entry.
JS: Correct! That’s not from the receipt ha of the decision but 5 years from the
date entry of that particular decision with the book of entries of the court
concerned. So if that is within 5 years from entry, according to the law you
just file the motion for execution. In fact, I was telling you as early as we
started the semester in motion for execution actually is one of the so called
non-litigated motion. Because even an ex parte motion for the issuance of writ
of execution can be entertain by the court, because the court can just depend
on the entry whether the decision is already final and executory. Now, if the
case was on appeal, let us say from the RTC to CA Cebu City, and the CA has
rendered a decision tapos affirming the decision of the RTC, no motion for new
trial, no motion for reconsideration was filed, not a petition for certiorari under
rule 45 was filed noh before the SC, the CA has issued already an entry of
judgment but it will take time actually to send back the records to the court of
origin. What can be done there? If you want to a motion for execution before
the RTC while the records I repeat of the case are not yet transmitted because
I have to be honest with you, in actual application tlaga, it will take years
before the records of the appealed case are actually sent back to the court of
origin. If in case the entry of judgment has long been issued but unfortunately
the records of the appealed case were not yet transmitted by the appellate
court to the court of origin, can you still file a motion for execution in the court
of origin?
ANS: Yes
JS: What you gonna do to support your motion for execution?
JS: Correct. In fact, the last paragraph of that section likewise mentioned that
the appellate court may also direct of course my dear students the court of
origin to issue now the corresponding writ of execution because remember the
CA cannot unless powered to issue a writ of execution. The writ of execution
can only be issued by the court which rendered that particular judgment. So
that like what I have said it will take time for the records of the appealed case
to be brought back to the court of origin. You are in hurry, you could still file a
motion for execution but what you will do there is to attach certified true copy
or duplicate original copy of the decision of the appellate court affirming the
decicision of the court of origin. It becomes ministerial for the court to issue a
writ of execution once it is found out that the judgement is already final and
executory. But there can be instances where the writ of execution can be
denied by the court of origin?
ANS: Yes! There are.
JS: That’s why kami, even if the issuance of writ of execution is an ex party
motion meaning to say it is a non-litigated motion because we can just look at
the entry. If there’s already a decision, no appeal, no motion for
reconsideration, no certiorari to the SC, then we have no power but to play
safe, still we ha ve to notify. Notify parin the other party kasi a situation might
fall on any of the following exceptions where the issuance of the writ of
execution may be deny by the court.
ANS: (a) When subsequent facts and circumstances transpire which render
such execution unjust or impossible.
(b) On equitable grounds when there has been a change of situation
of the parties which makes the execution inequitable.
(c) When the judgement has been novated by the parties.
(d) When a petition for relief or an action to enjoin the judgment is
filed and a preliminary injunction is prayed for and granted.
(e) Where the judgment has become dormant.
(f) Where the judgment turn out to be incomplete.
JS: In a petition for relief from judgment diba the decision is not stayed, not
unless and until the petitioner was able to get a preliminary injunction. So that
in particular instance if there’s a petition for relief from judgment, the
petitioner was able to get a writ of preliminary injunction definitely the decision
subject for the petition for relief from judgment could not be a subject of the
issuance of a writ of execution. Putting emphasize on the most common one
there noh, when there is a change of situation of the parties tapos when
decision has been novated by the parties. When we say novated, there is a
change by the parties then that would definitely grounds for the court to
refuse to issue a writ of execution. And if in case the writ of execution is
denied by the court, what is the appropriate remedy?
ANS: Appeal
JS: Correct! That’s why dba remember, it can be a subject a petition for relief
from judgment, because the law says xxx or in any other proceedings xxx that
would mean I repeat a denial of a motion for the issuance of a writ of
execution by the court. Your remedy there would be to file an appeal. But in
the grant, of course of the writ of execution is not appealable, and the
appropriate remedy there is file a petition dba for certiorari under Rule 65 on
the ground of grave abuse of discretion amounting to lack or excess of
jurisdiction. While denial I repeat of a motion for the issuance of writ of
execution is appealable, a grant of the same is not appealable but there’s an
appropriate remedy, if you feel that there was grave abuse of discretion
amounting to lack or excess of jurisdiction in granting the issuance of writ of
execution you always anchor your remedy pursuant to Rule 65 of 1997 Rules
of Civil Procedure.
JS: Diba, we can only file a motion for the issuance of writ of execution within
5 years from the date of entry. Beyond five years, can we still do something
for that particular decision which has long been final and executory?
ANS: Yes.
JS: Yes, but not by motion. Not by motion anymore because a motion should
be filed only within 5 years from the date of entry. Beyond 5 years but within
10 years you can still do something to file an action for revival of judgment,
beyond 10 years no more.
I repeat, within 5 years from the date of entry you can file a motion for the
issuance of writ of execution, beyond 5 years but should be within 10 years
from the date of entry, you can still do that by filing an action, you call that
revival of judgment. Beyond 10 years no more, you have to file a newly case
from the start. I told you earlier, that the issuance of the writ of execution can
only be issued once the decision is already final and executory. Can there be
instances that even if the decision is not yet final and executory, the writ of
execution can be issued by the court?
ANS: Yes
JS: Yes, this is what we called discretionary issuance of writ of execution. But,
when should it be done?
ANS: During the reglementary period of taking an appeal as long as the court
of origin is still in possession of the records, you can file a motion for the
issuance of writ of execution pending appeal. But once the case on appeal is
perfected, and the records of the case are already transmitted to the appellate
court, you can still file a motion for the execution pending appeal, no longer
with the court of origin but with the appellate court. Can you tell me some
good cause, kasi nga in the motion you have to show good cause to warrant
the issuance of the writ of execution pending appeal. This is what we called
discretionary issuance of writ of execution by way of exception to the rule that
issuance of writ execution will only happen when the decision is already final
and executory. But on motion and while within the reglementary period of
perfecting an appeal and while the records are still in the possession of the
trial court, you can file that but you have to show a good cause. What are
some of these good causes which may warrant the issuance of writ of
execution pending appeal?
ANS: 1. Where the appeal is clearly dilatory;
JS: Yes, when the appeal is dilatory. This is somehow discretionary talaga
whether it is dilatory it’s up to the court to determine. Next?
ANS: 2. Where the object subject of the case is perishable;
3. Where the judgment is for support and the beneficiary is in need
thereof;
4. Where the lapse of time would make the ultimate judgment
ineffective;
5. Where the judgment debtor is in imminent danger of insolvency;
6. Where defendants are exhausting their income and have no other
property aside from the proceeds from the subdivision lots subject of
the action;
 7. Where the prevailing party is of advanced age and in a precarious
state of health and the obligation in the judgment is non-transmissible
being for support;
8. Where there is uncontradicted evidence showing that, in order to
house machineries which they were forced to place on a public street,
movants were in extreme need of the premises subject of the suit and
the possession whereof was adjudged to them in the trial court’s
decision and the corresponding bond to answer for damaged in case
of reversal on appeal had been posted by them; or
9. Where the case involved escrow deposits and the prevailing party
posts sufficient bond to answer for damages in case of reversal of the
judgment.
JS: I repeat, you file a motion and you must show good cause with trial court
within the reglementary period for perfecting an appeal and as long as the
records are still in possession of the trial court. Because once the appeal
period has already lapsed and the records of the case were already
transmitted to the court of origin, under our rule 39 you can still pray for the
issuance of writ of execution pending appeal but it is no longer filed with the
court of origin but you file that already with the appellate court. Of course,
including these are the one which can be executed anytime even pending
appeal; injunction, accounting, receivership and support my dear students.
In fact, in support I have to be honest with you there is no finality there.
Because support can be always increase anytime by the court when the
situation of the person who is ordered by the court to give support increases
as the years go on, what will you do is to file motion to increase support
because there is no finality as far as actions for support are concerned. That
is why this part of the other three enumerated by the law which can executed
my dear students even if the case are pending appeal including good causes
which are enumerated in the book of Regalado.
The only problem, however, is how about the decision was executed pending
appeal, oooh my goodness, while the case is on appeal the judgement was
reversed totally by the appellate court, what will happen?
ANS: Rule 39 Sec. 5. Effect of reversal of executed judgment--- Where the
executed judgment is reversed totally or partially, or annulled, on appeal or
otherwise, the trial court may, on motion issue such orders of restitution or
reparation of damages as equity and justice may warrant under the
circumstances.
On reversal, the property itself must be returned to the judgment debtor, if the
same is still in the possession of the judgment creditor, plus compensation to
the former for the deprivation and the use of the property. This can be
effected by motion to the trial court.
If restitution is not possible, then compensation should be made as follows:
a. If the purchaser at the public auction was the judgment
creditor, he must pay the full value of the property at the time
of its seizure, plus interest thereon;
b. If the purchaser at the public auction was a third person, the
judgment creditor must pay the judgment debtor the amount
realized from the sale of said property at the sheriff’s sale,
with interest thereon; and
c. If the judgment award was reduced on appeal, the judgment
creditor must return to the judgment debtor only the excess
which he received over and above that to which he is entitled
under the final judgment, with interest on such excess.
JS: The property should be return, of course with be a payment for the use
and occupation of the property but if restitution is not possible, you have no
choice but to memorize that because you cannot make tapal tapal lng. Okay, I
repeat when the court issues motion for execution pending appeal and
unfortunately the appealed decision you want here, the decision was reversed
that will be the legal consequence of what will happen in case of motion for
execution pending appeal or the judgment executed was actually reversed by
the appellate court. I remember there’s one question last week and I’m telling
you no problem because there are proper restitutions which are actually
enumerated by our law.
Okay, clear tayo? Including ha injunction, receivership, accounting and
support. These are also I repeat decisions which can be appealed , which can
be a subject of a writ of execution even if the case is pending appeal, including
others as long as you can show I repeat good cause and what is good cause
are all enumerated in the book of Regalado.
Q: Now, can there be certain instances where a motion for execution was
granted by the court but you felt aggrieved with that, you want to quash the
writ of execution issued which is also a remedy. Can there be certain grounds
which were enumerated in our rules? Which may be use as a ground to motion
to quash. You can also quash it every time the execution was issued na,
actually you can still a file a motion to quash. Instead of certiorari because it
will take a long time, you can file a motion to quash the writ of execution on
the following grounds:
ANS:
1. When the controversy was never submitted to the court;
2. Change in the situation of parties renders execution
inequitable;
3. Defective in substance;
4. Judgment is already satisfied;
5. Issued against the wrong party; or
6. Issued without authority; or
7. When improvidently issued.
The dispositive portion of the decision is that part that becomes the subject of
execution.
JS: Instead of filing a petition for certiorari, which will take time talaga, you
better file a motion to quash the writ of execution anchored on the
enumerated grounds.
In terms of execution of judgment for money, what is the procedure there?
ANS: (SEE Rule 39 Sec. 9)
JS: The losing party has given the choice as to what property shall be
executed. In case the losing party does not make a choice, personal property
shall first be executed. If in spite of the execution of the personal properties is
insufficient they can go to the real property. The real properties would be the
last subject for execution. Note, those properties which are exempted from
execution.
Note: in cases when the court grants an execution pending appeal, the
remedy there of the other party to prevent the execution pending appeal is to
file a supersedeas bond in an amount to be fixed by the court and that is
conditioned for whatever damages will be caused later to the applicant.
Q: Levy of the Sheriff?
A: It is the appropriating of the property of the judgment debtor by the sheriff.
Ok when the sheriff Is now executing, he has to levy certain properties to pay
off the liabilities pursuant to the judgment, when the sheriff sets part of the
property as payment of this particular judgment that is in simple explanation
what is levy kasi usually naman in cases of execution the sheriff has always
have to levy kasi diba the sheriff has to pay certain properties which belong to
the losing party to satisfy the decision rendered by that particular court
whose decision is subject of the writ of execution. Now, if the decision cause
yesterday we were talking about money judgment and now a money judgment
claim diba demand muna then choice of the part of the losing party, if no
choice personal property then next will be real property now what about if the
judgment is for title, or delivery of deeds, mga judgment which requires
specific acts and where lies the difference to this what we call special
judgment.
Villasi v Garcia
G.R. no. 190106 January 15 2014
(Make sure to read this one kay ginmention ni Sir na magawas daw ini exam.
May authority an iya pagyakan so please take note of that! hehe)
Q: What is the difference between a judgment which compels or orders the
losing party to surrender titles, deeds or to do specific acts to that special
judgment in point of view to that particular, where lies the difference between
the two?
Ans: From special judgment cause in a special judgment this is a
special judgment which requires the performance of an act but here
it should only be done by the losing party because the court cannot
order another party to perform that particular act. That’s the difference
between delivery of title and deeds or doing specific acts to that of a special
judgment where practically in terms of application the same cause you are
required to perform an act as mandated in the decision, the basis likewise is
the specific act if in case the party obliged to perform does not do it, the court
can order another person to do it but in a special judgment, no, it is only the
person diba who should perform, the losing party pursuant to the judgment,
failure to comply would mean contempt of court so please take not of that.
Q: What is the concept of terceria?
Ans: This is the procedure if the property subject of the execution is claimed
by a third person. This will apply in an instance when the property levied
subject of the execution is claimed by a third person.
Note: (VERY, VERY IMPORTANT DAW INI, AS IN MAKADAMU GIN-
EMPHASIZE. Better memorize and internalize and put this in your
heart. RULE 39, Sec 16).
Section 16. Proceedings where property claimed by third person. — If
the property levied on is claimed by any person other than the
judgment obligor or his agent, and such person makes an affidavit of
his title thereto or right to the possession thereof, stating the grounds
of such right or title, and serves the same upon the officer making the
levy and copy thereof, stating the grounds of such right or tittle, and a
serves the same upon the officer making the levy and a copy thereof
upon the judgment obligee, the officer shall not be bound to keep the
property, unless such judgment obligee, on demand of the officer,
files a bond approved by the court to indemnity the third-party
claimant in a sum not less than the value of the property levied on. In
case of disagreement as to such value, the same shall be determined
by the court issuing the writ of execution. No claim for damages for
the taking or keeping of the property may be enforced against the
bond unless the action therefor is filed within one hundred twenty
(120) days from the date of the filing of the bond.
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. Nothing
herein contained shall prevent such claimant or any third person from
vindicating his claim to the property in a separate action, or prevent
the judgment obligee from claiming damages in the same or a
separate action against a third-party claimant who filed a frivolous or
plainly spurious claim.
When the writ of execution 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 therefor, the actual damages
adjudged by the court shall be paid by the National Treasurer out of
such funds as may be appropriated for the purpose. (17a)
Q: When in the process of the execution or levy of the properties it was found
out that this particular property was actually claimed by a third person in that
instance what should the sheriff do?
Ans: The winning party there would file a bond and indemnify the third party.
Remember the terceria thing here is also granted another option to file a case
the parties involved if it turns out that the property being levied by the sheriff
is claimed by a third person he is not bound to keep the property. Meaning to
say the property might be given to the third party claimant not unless the
judgment obligee for example would actually post a bond conditioned upon
payment of whatever damages which may turn out later my dear students if
the third party claimant turns out to have a rightful claim as far as this
particular property is concerned in fact he is not even liable for whatever
damages as a consequence of not keeping the property because there is my
dear students a bond posted by the judgment oblige pursuant to section 16 of
this particular law.
Q: Actually what the third person must do is what? If he has a claim over the
property subject of that particular execution, what should you do?
Ans: The sheriff is not bound to keep the property not unless the judgment
obligee would actually post a bond but if a third person claim what should you
do under the circumstances because you said no, that property belongs to me,
I have a claim to that particular property when there is this sheriff who wants
to execute under the circumstances prior to that concept that the sheriff is not
bound to keep the property not unless there is the posting of a bond on the
part of the judgment obligee he should just submit an affidavit stating his right
or title for possession of that particular property served that particular affidavit
to the sheriff and that already complies with what section 16 requires. So
please take note this is a very very important my dear students section in rule
39.
Although the damages for keeping or taking the property maybe enforced
against the bond as long as it is filed within the period of 120 days from the
date of filing of the bond so please take note of that, in fact he is not liable for
damages for not keeping the property as clearly found in this particular
provision but this will not also prevent the third party as ordered in this
particular section to file a separate action against the judgment oblige.
Q: can there be instances when the law allows the issuance of the writ of
possession? And this will happen when?
Ans: In land registration cases, extrajudicial foreclosure of mortgage, judicial
foreclosure.
Q: Is there no qualification as to that particular part, judicial foreclosure of
mortgage where the court under our law can actually issue a writ of
possession as part of the execution of that particular judgment, is there no
qualification there? Simply because it is a judicial foreclosure of mortgage,
automatically the court is allowed to issue a writ of possession to actually
install the winning party to the possession of that particular property,
I repeat writ of possession can be issued in the ff cases: land registration
proceedings kasi diba land registration proceedings are proceedings in rem
then extrajudicial foreclosure under act 3135 then judicial foreclosure of
mortgage but there is a qualification there, provided that the mortgagor is in
possession of the mortgage property and that no third person is actually
claiming that particular property no person intervened in the execution and
third in cases of execution, sales, like where I repeat real properties are
actually sold by the sheriff to pay off the liability of the judgment obligor, there
are procedures on how the sales shall be effected if in case what is involved is
real property or a real property is involved to satisfy a judgment in court.
Q: how is execution sale done in execution involving real properties?
Ans: It is done by public auction/bidding, it must be done with notice sent by
way of summary but there is redepmtion there, is there a redemption? It
depends if it is personal property, there is no redemption because remember
once a property diba is taken by the sheriff by way of satisfaction , these
particular properties are actually sold in public auction, and that means to say
sold to the highest bidder.
Q: Ok, now apart from that there must be notice because failure to send
notices will affect the validity of that particular sale if I make a summary but in
case a personal property is sold in a public bidding, the law allows redemption
and the redemption would be when?
Ans: Within 1 year, this is what we call legal redemption in execution sale so
we are not talking here equity of redemption , we are talking here about a
legal redemption in execution sale but this is only I repeat if what is sold in
public auction is a real property because there is no redemption if what is sold
is personal property.
Q: when would you count the 1 year period?
Ans: From the time the sheriff certificate of sale, I repeat if there is a public
bidding and there is a highest bidder, the sheriff issues a certificate of sale,
and what would you do with that sheriff certificate of sale? Otherwise the 1
year period of redemption would not commence or would not start. It should
be registered in the office of registry of deeds in the city or province where the
property is located and you count the 1 year period of redemption from the
date that particular sheriff certificate was registered meaning to say.
Q: If no redemption is made, what will happen? can the winning party in a
case claim already ownership and possession of that particular property if the
sheriff issues certificate of sale?
Ans: Not yet, you can have no right yet to claim because that right would only
come in after the redemption period has expired and no redemption was made
by the persons enumerated in the law
Q: after that since there was no redemption by the persons enumerated in the
law then what should the sheriff do there?
Judge: That is where the right of ownership and title to the property would
now come in the winning party to that particular case subject of execution,
issue a final certificate of sale and once the same is issued he can now claim
ownership and title of the property but that final certificate of sale must also
be registered because that is the basis for the issuance of a new title in favor
of the winning party hence after the issuance of the title in favor of the
winning party because the final certificate of sale was already made and it is
found out that the losing party refuses to vacate the property the court now
can issue a writ of possession on mere motion, that is why I told you in
execution sale there can be issuance of a writ of possession, you did not file a
petition there, what you will do is just file a motion for issuance a writ of
execution because in reality more often than not, the losing party will never
vacate the property so how can the winning party step into the property now,
the best thing to do is file a motion in that court for the issuance of a writ of
possession to place the winning party in possession of that property subject of
the execution sale, so that is the process as far as our rules.
Take note of Sec 47 that talks about Res Judicata and Effect of
Foreign Judgment by Final Orders.
Section 47. Effect of judgments or final orders. — The effect of a
judgment or final order rendered by a court of the Philippines, having
jurisdiction to pronounce the judgment or final order, may be as
follows:
(a) In case of a judgment or final order against a specific thing, or in
respect to the probate of a will, or the administration of the estate of
a deceased person, or in respect to the personal, political, or legal
condition or status of a particular person or his relationship to another,
the judgment or final order is conclusive upon the title to the thing,
the will or administration or the condition, status or relationship of the
person, however, the probate of a will or granting of letters of
administration shall only be  prima facie evidence of the death of the
testator or intestate;
(b) In other cases, the judgment or final order is, with respect to the
matter directly adjudged or as to any other matter that could have
been missed in relation thereto, conclusive between the parties and
their successors in interest, by title subsequent to the commencement
of the action or special proceeding, litigating for the same thing and
under the same title and in the same capacity; and
(c) In any other litigation between the same parties or their
successors in interest, that only is deemed to have been adjudged in a
former judgment or final order which appears upon its face to have
been so adjudged, or which was actually and necessarily included
therein or necessary thereto. (49a)
I will just emphasize that res judicata has two forms: bar by prior judgment
and conclusiveness of judgment. Res judicata should be a decision based
on the merits of the case say this is a decision which was rendered by the
court after consideration the evidences presented by the parties or stipulations
submitted by the parties, there must be a trial on the merits of the case so
that if a case is dismissed because the plaintiff did not appear during the pre-
trial conference therefore the plaintiff was non suited which is a ground for
dismissal of that particular civil complaint following sec 47 we cannot therefore
make a conclusion that that dismissal constitute a res judicata because that
dismissal is actually not a dismissal based on the merits of the case meaning to
say there was no trial conducted where the parties were given an opportunity
to present their respective evidence.
Almeda vs. Cruz
The doctrine of res judicata does not apply where the second action is
precisely to annul judgment because there are remedies, one of which is
petition for review from judgment, you have annulment of judgment so if you
file a civil case later to annul the judgment because there was extrinsic fraud
that would not constitute as res judicata because the second action is precisely
to annul the first case where the court rendered a decision.
Q: What is the effect of foreign judgments?
Ans: It depends if it is in rem or in personam.
Q: Can it be enforced in the Philippines?
Ans: If specific thing, conclusive upon the title of the thing but if it is not in
reference to specific thing it is only a presumptive evidence of a right as
between the party under successors in interest in the second title
Q: can u do something to repel that particular foreign judgment? Can u
question that particular foreign judgment in Philippine courts?
Ans: Yes. it can be repealed by evidence of want of jurisdiction, want of
notice to the party, collusion, fraud or clear mistake of law or fact so
meaning to say a foreign judgment against a person in our local courts, that
person is allowed to interpose these particular defenses as provided for in the
last paragraph of section 48 but be that as it may the judgment of a foreign
court is only a presumptive evidence of a right on the part of the prevailing
party and if suit thereon is brought in the Philippines, the same may be
repealed by evidence of clear mistake of law so meaning to say, simply put it
cannot be subject for motion for execution what you will do is file a civil case
and use that as a basis for civil case thats why the other party who may be
aggrieved of that foreign judgment is allowed to raise these particular
defenses
 RULE 40
APPEAL FROM THE MUNICIPAL TRIAL COURTS TO THE REGIONAL
TRIAL COURTS
Appeal from MTC to the RTC An appeal from the first level court to the RTC is
by filing a NOTICE OF APPEAL in the court which rendered its judgment within
15 days from receipt of the judgment of the court , except in cases when the
law allows multiple appeals and in special proceedings where the law requires
not only notice of appeal but also record on appeal within 30 days. Including
the payment of the appeal fees.
Q: When appellant does not pay the appeal fees required upon filing the
notice of appeal, the court will issue an order requiring the appellant to pay
the appeal fees within a certain period, and upon failure of which the court can
now dismiss the appeal. Q: What are cases where the law allows the filing of
multiple appeals?
A: Partition, Expropriation then Judicial Foreclosure of Mortgage including
Settlement of Estate of the Diseased Person. Therefore notice of appeal,
payment of filing fee and record on appeal is required, and it must be done
within 30 days.
Note: A timely filing of a motion for reconsideration or new trial interrupts the
running. Also apply the FRESH PERIOD RULE of Neypes Vs. CA. Appeal
period should be strictly construed but, in some cases, the SC allowed the
filing of an appeal even on the 16th day, in the greater interest of substantial
justice. Motion for extension of time to file appeal is DEFINITELY NOT
ALLOWED.
1. Upon receipt of the NOTICE OF APPEAL, the first level court shall transmit
all the records of the case to the RTC, and upon receipt of the entire
records by the RTC, the Clerk of Court shall issue a notice to the parties
and counsel, informing the parties that the records of the case were already
received by the RTC and order the appellant to file the Appeal
Memorandum within 15 days from receipt of that order, furnishing a copy
thereof to the appellee who is given the same time upon receipt of the
appellant’s memorandum, to file the appellee’s memorandum.
2. Failure to file the appeal memorandum on the part of the appellant within
15 days from receipt of the order, it shall be a ground for the dismissal of
the appeal.
3. The appellant’s memorandum shall contain among others mentioned in the
book, the so called Assignment of Errors, because this is where the court
will focus when the court renders its decision in connection with the appeal
of the appellant.
4. Upon receipt of the Appellee’s memorandum, the case is now deemed
submitted for the decision of the Appellate Court. SECTION 8: Appeal from
orders dismissing the case without trial; lack of jurisdiction. If an appeal is
taken from an order of the lower court, dismissing the case without a trial
on the merits, the RTC may affirm or reverse it as the case may be. In case
of the affirmance and the ground of dismissal is lack of Jurisdiction over the
subject matter, the RTC if it has jurisdiction thereover , shall try the case on
the merits as if the case was originally filed with it. In case of reversal, the
case shall be remanded (to the first level court) for further proceedings. -If
the ground for dismissing from the first level court is lack of jurisdiction
over the subject matter, and the court RTC finds out that indeed it has
jurisdiction, it will decide the case on the merits, as if the case was
originally filed before said court. However, in case of reversal, it will remand
the case to the first level court for further proceedings. (from first level
court to the RTC) If the case was tried on the merits by the lower court
without jurisdiction over the subject matter, the RTC on appeal shall not
dismiss the case if it has original jurisdiction thereof, but shall decide the
case in accordance with the preceding section, without prejudice to the
admission of amended pleadings and additional evidence in the interest of
justice. -even if the case is tried on the merits or not on the merits, in cases
of dismissal, on the ground of lack of jurisdiction over the subject matter,
the RTC will acquire jurisdiction and try the case on the merits as if the
case was originally filed in said court, however if it is a dismissal based on
the merits of the case, the court may require the parties to submit
amended pleadings and additional evidences which will guide the court in
rendering its decision as far as that case is concerned.
 RULE 41:
APPEAL FROM REGIONAL TRIAL COURT TO COURT OF APPEALS
Modes to be considered: 1. Determine whether this case was decided by the
RTC in its original jurisdiction, or the case was decided by the RTC in its
appellate jurisdiction (from MTC-RTC).
a. If decision was decided by the RTC in the exercise of its
ORIGINAL jurisdiction, appeal is done, by means of filing a
NOTICE OF APPEAL, (15 days) payment of appeal fees, except in
cases where it is a case which is special proceedings or when the
law allows multiple appeals, because aside from notice of appeal,
you also have to file a Record on Appeal (30 days). Since you are
in Tacloban City, our appeal to the CA is in Cebu City, Mindanao is
in Mindanao Coart of Appeals in Cagayan, Manila is in Manila. You
file the appeal in the court which rendered the decision.
b. If decision was decided by the RTC in the exercise of its APPELLATE
jurisdiction (MTC->RTC->CA), appeal is done, by means of filing a
PETITION FOR REVIEW under RULE 42, (15 days) payment of appeal
fees, except if your appeal is purely on question of law, where you can
go to the SC by way of a PETITION FOR REVIEW ON CERTIORARI
under RULE 45. You file the appeal with the CA not in the RTC.
2. You notice in SEC 1, APPEAL IS NOT ALLOWED, of rule 41, it
enumerated 7 cases where appeal is not the proper remedy. Denial of a
motion for execution where in one decision by the SC, the proper remedy is
actually appeal. In any of the 7 instances, if you feel aggrieved the remedy
there is Petition for Certiorari under Rule 65 on the ground of Grave Abuse of
Discretion amounting to lack or excess of jurisdiction either by certiorari,
mandamus or prohibition. The 7 instances in section 1 are actually merely
Interlocutory Order because in such case the best remedy is RULE 65. Because
what can be appealed are actually final judgements or orders.
3. Final Order-finally disposes of the case, like motion to dismiss is
GRANTED.
4. Interlocutory Order-something is still to be done by the court. Like
motion to dismiss when DENIED.
5. GR: File a petition for certiorari, mandamus or prohibition based on
rule 65 , dapat you have to file a motion for reconsideration, in order for the
court to correct his mistake, otherwise if you will not, the petition for certiorari
may be dismissed by the court on a minute resolution. XPN: Even without
Motion For Recon, you can still go to the SC but we will discuss that when we
reach 65.
6. Since you are in Tacloban City, our appeal to the CA is in Cebu City,
Mindanao is in Mindanao Court of Appeals in Cagayan, Manila is in Manila.
7. If you notice that the subject of the case is actually an Interlocutory
order, your remedy there is actually. Petition for Certiorari under Rule 65 and
anchor that on the ground of Grave Abuse of Discretion amounting to lack or
excess of jurisdiction. Because the subject of appeal are judgment or final
orders. Don’t forget that for your brain damaging final exam which is more
difficult that midterm
8. In connection with this particular concept, like what I said ha? I just
forgot, it is 15 and 30 days lang ha except for habeas corpus cases where the
appeal there must be filed within 48 hours from notice of final order appeared
from.
9. When you avail of either Ordinary Appeal, or Petition for Review
under Rule 42, Petition for Review on Certiorari under Rule 45, or Petition for
Certiorari under Rule 65, we apply the so called MATERIAL DATA Rule—you
have to specify when you have received the decision as an added requirement
by virtue of one SC Circular. Otherwise the petition might be dismissed.
10. you know what, making Record on Appeal is so tedious and so
tiring, because you have to enumerate from the start of the proceedings down
to the last. It must comply with certain forms, that’s why the lawyer can ask
for more attorney’s fees, in fact the record on appeal if it is sufficient in form
and substance, upon receipt by the appellate court, it has to be approved,
even if it is not set for hearing (as one particular decision by the court) it
should be approved. If no objection is filed, it would be approved within 10
days as presented, if there is objection or a need for amendments the court
may order for the amendments of the record on appeal.
11. Section 9—perfection of Appeal – as to the appellant, upon the
filing of notice of appeal in due time but the court does not lose jurisdiction
simply because it has already approved the notice of appeal. Because the court
only loses jurisdiction over the case upon the expiration of the period to file an
appeal. Take note of that. For example: On the 5th day you file a Notice of
Appeal, on the 6th day, it was approved by the court, on the 7th day you file a
motion to withdraw the appeal, can the court still act on the withdrawal> YES.
Because the court only loses jurisdiction of the case upon the expiration of the
15 or 30 day period to appeal. In fact, if the 15 or 30 day period to file appeal
is already expired, when the records of the case are not yet transmitted to the
CA, the court can still exercise what we call RESIDUAL JURISDICTION (last
paragraph of SECTION 9). (I always ask this in the FINALS). This will cover an
instance where the appeal period has expired na but the records on appeal has
not yet transmitted pa to the CA, the court may still exercise what we call
residual jurisdiction for example to issue mga execution pending appeal,
approved compromise agreement, permit of indigent litigants or even allow
withdrawal of the appeal. These are what we call Residual Jurisdiction of the
RTC while the records of the case are still within the court. (last paragraph of
Section 9 memorize!! Para perfect)
12. As far as Record on Appeal is concerned it is also deemed
perfected upon the approval of the record on appeal filed in Due time.
13. Upon perfection of the appeal with the RTC, the clerk of court has
30 days to verify the correctness of the record, the completeness of the record
on appeal and after that transmit the records to the CA together with the
transcript of stenographic notes of all of the witnesses presented, in 5 legible
copies.
14.Section 13, part of the residual powers of the RTC. Prior to the
transmittal o Notice of Appeal and Record on Appeal to the Court of Appeals,
the Trial court may dismiss motu proprio or upon motion the appeal made out
of time or for non-payment of the docket and lawful fees within the
reglementary perion. But when the records on appeal were already transmitted
to the CA, can you file a motion to dismiss (because of nonpayment of the
lawful fees within the reglementary period or made out of time) before the CA?
yes. Before the CA.
RULE 42
PETITION FOR REVIEW FROM THE EGIONLA TRIAL COURTS TO THE
COURT OF APPEALS
&
RULE 43
APPEALS FROM THE COURT OF TAX APPEALS AND QUASI-JUDICIAL
AGENCIES TO THE COURT OF APPEALS
What happened in the case of Villasi vs Garcia?
What is that remedy there that can be availed by a third person claiming that
the property actually should not be a subject of execution because the third
party claim that he’s supposed to be the owner of that particular property,
that’s actually part of what we call “Terceria”, but apparently one of the
beautiful part of the case of Villasi vs Garcia is the Supreme Court gave
another remedy. What is it? It need not be a separate action. It is
another remedy; the third party claimant can now just file a Motion
for Summary Hearing so that he will enable to ventilate his claim
over that property subject in that case. So there is an added remedy
here available to a third claimant whose property is subject of
execution by the sheriff. He can file in the same court a motion for
the conduct of a summary hearing for him to be able to ventilate
actually his claim. That’s the first time that the Supreme Court added
another remedy as far as a 3 rd claimant whose property is subject of
a writ of execution. That’s make it a very important 2014 decision of
the Supreme Court.
Q: There was a hanging question which was left last night. What is the effect
if, is it required that basically all the appellees must be notified of the notice of
appeal? What is the effect if one of the appellee is not notified of the notice of
appeal filed by the appellant, and would that affect the validity of the notice of
appeal?
A: All parties must be notified because that might create a defect as far as the
notice of appeal is concern.
Q: If you can recall di ba there is a 15 day period or a 30 day period I’m
referring to appeal to the RTC from the first level court or from the RTC to the
Court of Appeals. Can there be an instance where the application of that 15
day or 30 day period be relax? That even if the appeal is filed in the 16 th day,
can it still be given? Can that be extended? Can that be still granted by the
court?
A: You know what, the recent decision of the Supreme Court says “NO”.
Because this 15 day and 30 day period actually my dear student, are supposed
to be strictly construed. While there is a provision in the Rules of Procedure
wherein there must be liberal interpretation of the rules of procedure except
daw appeal period.
Last night I told you that in case one would appeal and the others will not,
that would not affect those who did not appeal. Except however in Criminal
Procedure when one accuse appeal and the appeal is favorable to him it can
also be given. There is one case (Republic vs Institute for Social Concern G.R.
No. 156306) however which will fall as an exception to that, wherein the
Supreme Court in that particular case actually applied the result of the appeal
to the defendants who actually did not appeal, because in that case the
Supreme Court found out that the claims of the defendants are so interwoven
to each other.
Q: What is one requirement which should be in a record on appeal which is
mandatory daw and jurisdictional? The record on appeal must show what?
A: The record on appeal must show that the appeal was filed on time and that
should form part of what is in the record of appeal. Because the Supreme
Court ruled that, that particular requirement is actually mandatory and
jurisdictional. The record on appeal need not be scheduled for hearing, and if
it is scheduled for hearing and the counsels did not appear, it is not a ground
for dismissal of the appeal.
Q: What should be done upon submission of the record on appeal? What will
happen here under the Rules? Here is a record on appeal filed by the
appealant, It showed on its face that it is filed on time, can the appellee do
something there? Can the appellee file objections to the record on appeal?
A: The appellee is given 5 days to file his objections and after the 5 day
period, the court, may either approve the record on appeal or may order
certain amendments as far as the record on appeal is concern. That is what is
important, it’s not the hearing, but the fact that the appellee is given 5 days
actually to file his objection to the record on appeal. After the lapse of the 5
day period, the court may either approve the record on appeal or actually may
order the amendment because certain portions of the record on appeal are not
in accordance with the form as required by the Rules.
Q: Can you extend the filing of the record on appeal? Is it allowed by the
Rules?
A: As a Rule pwede, at the end of the day anyway, whether the record on
appeal should be granted or not is actually discretionary on the part of the
court. Whereas, settled that the notice of appeal cannot be extended but as
far as the submission of the record on appeal is concern we are not replete
with decisions when the Supreme Court allowed extension of time to file a
record on appeal. But the fact remains that the period to file a notice of appeal
cannot be extended by reasons of public policy as held by the Supreme Court
in GSIS vs Gines G.R. No. 85273.
Q: Now upon the submission of the record on appeal, what should be done by
the clerk of court?
A: The clerk of court will issue an order to the appellant if the record on
appeal needs modification.
Q: What about transmittal of the record of the case to the Court of appeals,
within how many days?
A: 30 days. Within 30 days from the time the appeal is already perfected. The
rule says that the clerk of court of that court must now transmit the records of
the case to the court of appeals.
Q: But can one who filed an appeal still allowed to withdraw his appeal? When
will that happen?
A: Yes. Within 15 days.
Q: What about if the 15 day period has already lapse?
A: No more na.
Q: What about, can the court still issue an order dismissing the appeal? When
will that happened?
A: Yes. Before the records are transmitted to the appellate court.
Q: However if the records on appeal were already transmitted to the Court of
Appeals, Can you still file a motion to withdraw the appeal?
A: Yes. But it should be filed now before the appellate court.
I repeat, according the rules within 30 days after the appeal is perfected, the
clerk of court is ordered to transmit records of the appeal to the appellate
court but prior to the transmittal of the records, the court can still issue an
order dismissing the appeal for failure to comply with the rules and the
payment of the appeal and docket fees. It can even be done on motion or
motu propio by the court but however once the records of the case are already
transmitted to the appellate court, you can still file a motion but don’t do that
on the trial court but to the appellate court. Meaning to say, that is part of
what we call “Residual Power” of the court wherein certain acts can be
exercise by the court prior to the transmittal of the records of the case and
that is one of those including motions for execution pending appeal.
Last night we already have the opportunity to talk about petition for review
under Rule 42, and this petition for review under Rule 42 is the appropriate
remedy if this is a decision issued by the RTC in the exercise of its appellate
jurisdiction. Meaning to say, from the first level court a notice of appeal was
filed to the RTC. The RTC affirm the decision of the first level court, you are
aggrieved you want to further question that, you do that by a petition for
review under Rule 42 of the 1997 Rules of Civil Procedure.
Q: How many days to file a petition for review under Rule 42? Can it be
extended?
A: 30 days from the receipt of the decision or order denying the motion for
reconsideration or motion for new trial. It can be extended not to exceed for
15 days by filing a motion for extension to the Court of appeals accompanied
by payment of the required appeal and docket fees. You can do that in reality
buy postal money order, you attach that to your motion for extension of time
to file your petition, because if you only file an extension, without the
accompanying payment of appeal and docket fees, then definitely your motion
will be denied.
Q: In filing a petition for review what is the content?
A: Material data Rule, Certification of Non forum shopping, Proof of Service,
Assignment of errors, original copy or duplicate original copy or certified true
copy certified by the clerk of court (see Rule 42 Section 2. Form and contents).
Because noncompliance with these would mean that it would be a ground for
your petition to be dismissed right away in a minute resolution.
Q: How many copies?
A: 7 copies.
Q: if the court finds merit to the petition, what would the court do?
A: It will give due course. The court will require the respondent to file his
comment to the petition within a period of 10 days. It must be in 7 copies.
Q: Can the court dismiss right away the petition? What are the grounds for
dismissal of the petition?
A: Yes. The Court of Appeals may require the respondent to file a comment on
the petition, not a motion to dismiss, within ten (10) days from notice, or
dismiss the petition if it finds the same to be patently without merit,
prosecuted manifestly for delay, or that the questions raised therein are too
insubstantial to require consideration.
Q: Is the filing of the petition for review stay the award or decision.
A: Yes. Unless otherwise ordered by the court itself it will stay. Meaning to
say, the decision subject of the petition will not yet be executed not unless this
will cover cases covered by the Rules on Summary Procedure.
That is why in forcible entry and unlawful detainer cases even if there is a
pending petition for review in the Court of Appeals, under Rule 42 that will not
prevent the execution of the questioned decision, because the rule is very
clear it will stay the decision except lang for cases covered by the Rules on
Summary Procedure. If you want to play safe talaga, because there is a
qualification there, “unless the rules provide otherwise”. In your petition for
review, you always claim for the issuance of the writ of preliminary injunction
or writ of temporary restraining order kasi if that is issued by the Court of
Appeals then definitely even if these are cases covered by the Rules on
Summary Procedure that will not be the subject of the execution, but in the
absence of the writ of preliminary injunction or writ of temporary restraining
order and the case is a case covered by the Rules on Summary Procedure,
even if your petition for review is pending before the Court of Appeals, that
cannot be stayed. Meaning to say, it can be the subject of execution. But all
other, the rule says it will stay even if the petition for review is pending.
Q: Now we go to Rule 43, what will Rule 43 cover?
A: No more na Court of Tax Appeals because CTA is now appealable to the
Supreme Court via petition for review on certiorari under Rule 45, although the
rule still mention that, you take that out there. It will also cover quasi-judicial
agencies, see na lang Section 1. Rule 43 for the enumeration.
Q: If you’re aggrieved of the decision of the voluntary arbitrator, what is the
remedy? Is it covered by Rule 43?
A: Yes. Decisions of the Voluntary Arbitrators, as mandated by the Labor Code
of the Philippines are also via petition for review under Rules 43.
Q: How about decisions of the National Labor Relations Commission (NLRC)?
Is it covered by Rule 43? What is the remedy?
A: No. The appropriate remedy is petition for certiorari under Rule 65 but not
with the Supreme Court but to the Court of Appeals. This is a case where 65 is
not filed before the Supreme Court, but it is filed in the Court of Appeals.
Whether it is pure question of law or mixed question of law and question of
facts, the remedy for NLRC decision is not 43 but rather, Court of Appeals pa
rin but you anchor that on Rule 65, petition for certiorari on the ground of
grave abuse of discretion amounting to lack or in excess of jurisdiction.
Q: Will 43 also covered decision of the Office of Ombudsman in Administrative
Disciplinary cases?
A: Yes it is covered likewise.
Q: What about decisions of the prosecutor’s office finding the existence of
probable cause? Can it be a subject of a petition for review under Rules 43?
A: No. The remedy is Rule 65 petition for certiorari, on the ground of grave
abuse of discretion amounting to lack or in excess of jurisdiction.
Q: When would you file the petition under Rule 43?
A: Within 15 days. The same with 42, basically the requirements are the same
with 42. All rules and procedure are the same with 42 and 43.
Q: Where lies the major difference of Rule 43 from Rule 42? One difference
worth remembering and that will spell out the difference between 42 and 43?
A: In terms of whether the judgment would be stayed or not. In Rule 42
judgment is stayed except if covered by Rules on Summary Procedure. In Rule
43 judgment is not stayed not unless the Court of Appeals or the law provide
otherwise.
So here if you file a petition for review under Rule 43, and you want that the
decision subject of the petition will be stayed, dapat your petition must always
be with a prayer for the issuance of a temporary restraining order or writ of
preliminary injunction because unlike in 42 where the filing of the petition for
review stays the award of the decision in 43 no. The rule is clear, the filing of
the petition for review under Rule 43 will not stay the award decision unless
the Court of Appeals or the law provides otherwise. Actually what you do is,
when you file a petition for review under Rule 43 your petition must always
contain a prayer for the issuance of a temporary restraining order or writ of
preliminary injunction because that is the only ground upon which the quasi-
judicial agency concerned which rendered the decision will not execute the
decision yet pero if there is none, that will not prevent the execution of the
decision because the law is very clear that it will not stay the award the
decision subject of the petition for review under Rule 43.
By the way, in multiple appeals di ba there are cases where multiple appeals
are allowed, of course the case will be retained by the trial court, what is only
appealed my dear students is the subject of the order subject of the appeal.
Unlike diba in cases where there is no multiple appeals because diba the court
loses jurisdiction upon the perfection of the appeal and upon the lapse of
period to appeal, as far as other parties are concern, that is what will happen,
because in multiple appeals, there are only orders which can be appealed and
the case itself remains with the court di ba I told you, partition, settlement of
estate, expropriation proceedings, judicial foreclosure of mortgage, these are
some of the cases where the law allows multiple appeal.
The Court of Appeals by the way, will also issue an order requiring the RTC or
the Quasi-judicial Agency to transmit all available records pertaining to the
case if there is a pending petition for review filed.
Sir Sabarre: In connection with periods for appeal, are there cases where the
appeal period is shorter n the usual 15 to 30 days? What will be the cases?
Answer: In cases of Habeas Corpus appeals because under the law the period
will be 48 hours from the receipt of the decision of that particular case, I
repeat not 15 nor 30 days but 48 hours only.
RULE 44
ORDINARY APPEALED CASES
Sir Sabarre: We are now on the procedure which is not so important to me in
the Court of Appeals, once the case is already on appeal with the Court of
Appeals,what is usually done in the Court of Appeals? Diba remember 30 days
to transmit the records of the case Court of Appeals, for example lang, there’s
some clerk of court who are ActualY, not performing their job and you notice
that 30 days had already lapsed after the appeal was approved, the record on
appeal for other cases have been submitted na to the court but yet on the 30
day the clerk of court did not transmit the records of the case to the Court of
Appeals, as a counsel of the appellant, because you are in a hurry of your
appeal, what is supposed to be the appropriate remedy under our existing
laws?
Answer Sir Sabarre : If the clerk of court would not act within 30 days by
transmitting the records of the appealed case to the Court of Appeals, the
same likewise with the first level to the Regional Trial Court,y ou can file a
motion to the court to compel the clerk of court now to transmit the records
of the appealed case to the appellate court and is what is supposedly you will
do para your appeal would like be given attention by the clerk of court. In the
Court of Appeals what is usually done there when the record are already on
appeal, there is one, will issue an order for what? But the Court of Appeals can
out rightly but what if it will not? What will it issue to the parties of the case? A
notice for what?
Answer: Notices to submit appellant brief.
Q: How many days would the brief of the appellant be submitted?
Answer:45 days in the submission of appellant’s brief, but there is one very
important aspect of the of appellant’s brief which should be submitted within
45 days from receipt of the notice, absence of which might be fatal as far as
your appeal is concern.
In fact I’ve been emphasizing as we go on our discussion, what is that?
Aside from you have to show proof that you served 2 copies of your of
appellant’s brief to the counsel of the appellee,its mandatory you have to
submit to the appellate court assignment of errors diba, unlike in criminal
cases where I was emphasizing that in appealed cases criminal cases, there’s
no need to allege in your brief assignment of errors, that once criminal cases is
appealed, the entire case is opened for review but not in civil cases because
the appellate court will resort your appeal based on the assignment of errors
which you have alleged in your appellant’s brief ,if you don’t do that it could be
fatal as far as your appeal is concern.
Sir Sabarre: What is the effect if no appellant’s brief is filed within 45 days
upon receipt of the notice from the Court of Appeals?
Answer: It is a ground for dismissal of the appeal
Sir Sabarre: Can there be a motion for extension of time to file the
appellant’s brief, s that allowed by the rules?
Answer: Yes on the grounds which the Court of Appeals may consider.
Sir Sabarre: Upon receipt of the 2 copies,what is mandated to the appellee?
Answer: He is required to submit appellee’s brief.
Sir Sabarre: What do you call the one to be submitted in
Certiorari,Prohibition,Mandamus,Quo Warranto and Habeas Corpus?
Answer: Not appellee’s brief but it is called Memorandum. After which the
case may be submitted for decision. 40,41,42,43 and 45 are always taken
together.
RULE 45
 APPEAL BY CERTIORARI TO THE SUPREME COURT
Sir Sabarre: What do you call the pleading in 45?
Answer: Petition on Review on Certiorari which is different from Petition in
Review on Rule 65.
Sir Sabarre: What is the difference/distinction?
Answer: 45- Mode of an appeal or Review but 65 is more on if the lower court
acted with grave of abuse of discretion amounting to lack or excess of
jurisdiction parang its an independent case itself, it is not a mode of review but
an independent case itself. Remember this distinction because I will not be
repeating this when we touch Rule 65.
*The period in 45 is 15 days in 65 under Civil Procedure is 60 days.
*In 45 Motion for Reconsideration is necessary while in 65 its necessary.
-The rationale for the Motion for Reconsideration is to enable the court
to correct its error but for me I will not reverse my own decision.
*45,you need not implead the court but in 65 the judge together with the
parties become the respondents.
*45-the decision will stay for the meantime but in 65 it will not unless the
court issues a Temporary Restraining Order or Writ of Preliminary Injunction
because its an independent case itself and that’s only the way to prevent the
execution of decision judgment and Certiorari is also a remedy to Interlocutory
Orders of the court and remember an Interlocutory Order has no finality unlike
orders which are final judgment which there is finality order,in Interlocutory
Order there is not.
Sir Sabarre: Petition for Review on Rule 45 covers?
Answer: Sandiganbayan, Court of Appeals, Regional Trial Court in the
exercise of its original jurisdiction and the appeal is on pure question of law
because if it is not a pure question of law, go to the Court of Appeals via an
ordinary appeal if it is in the original jurisdiction and Petition on Review on
Rule 42 if it is in the appellate jurisdiction and also Court of Tax Appeals, this
only center on pure question of law but has exception. MEMORIZE the eight
instances enumerated in the book of Regalado.
Sir Sabarre: What is the difference between questions of law and questions
of fact?
Answer: In questions of fact there is a need for the presentation of factual
evidence while questions of law the only question is if the law or statute
applicable in that particular case.
Sir Sabarre: When will you file or period? Don’t forget the period ha its very
important you forget nalang everything but not the period.
Answer: 15 days upon receipt of the order or decision or notice denying your
Motion for Reconsideration if you file such but if the denial of you Motion for
Reconsideration is proforma it will not toll the running of the reglementary
period to appeal except in Criminal Cases but only applicable to Civil Cases and
as I was telling you proforma is the mere reiteration or repetitions from those
that wer4e already considered by the court when it rendered the decision.
Don’t do that because the court might make your motion proforma and this
you could no longer file a Petition for Review because it will not toll the
running of the reglementary period.
Sir Sabarre: Can you extend that?
Answer: Yes by filing a motion to the Supreme Court within the reglementary
period of 15 days but you have to attach also the proof of payment, appeal
fees as required by the motion, it is done through a postal money order, its in
the Supreme Court not in the court that render the decision.
Sir Sabarre: In 45 how many days can you ask for your extension?
Answer: In 42,43, its 15 days and no further extension except for compelling
reasons,here its 30 days and you have to submit 18 copies of the petition.
 Requirements of These Rule
 Documents which are legible copies of the decision, original,
duplicate original or certified true copy certified by the clerk of
court which render the decision, the same with 42 and 43 with its
contents.
 Proof of service to the respondents and also to the court copy
furnished.
 Payment of docket fees
 Material data rule
  Certification of Non-Forum Shopping
This is required for non-compliance of this means dismissal of the appeal.
Same throughout as 42,43,45 and 65 as for the contents.
The court will issue an order on the elevation of the record on the court that
rendered the decision. But before that the court will order the respondent to
file his comment in 15 days same as 42 and 43 but wait for the order of the
court requiring to file a respondent’s comment not a Motion to Dismiss.
RULE 46
ORIGINAL CASES
Sir Sabarre: This rule applies to what?
Answer: Original action for Certiorari,Mandamus,,Prohibition and Quo
Warranto.
Sir Sabarre: Remember before when we started with jurisdiction of each of
the courts tapos we had discussed before mga exclusive original jurisdiction of
the Court of Appeals, this is the one being referred to although you notice this
applies to Certiorari, Mandamus, Prohibition, there is however corresponding
rules so that this will be a little suppletory to this particular rules because
Certiorari, Mandamus, Prohibition is actually governed by Rule 65 and then
ther is another rule for Quo Warranto for example but be that as it may if you
want to file anyone of this cases before the Court of Appeals then the rules lay
down in Rule 46 will actually apply and there abcourse the parties are called
petitioners and respondents now the more important thing that you have to
remember there is when will the court acquire jurisdiction over the person of
the respondent?
Answer: When the respondent receives summon of the order of the court
indicating the initial action.
Sir Sabarre: So when the Court of Appeals issues because the Court of
Appeals finds the petition is sufficient in form and substance, it therefore
issues an order to the respondent for the respondent for example to comment,
that’s where the court now acquire jurisdiction over the person of the
respondent, you can’t also deny the fact that since this are filed originally in
the Court of Appeals, there are certain factual issues which are important but
in the process of entertaining this petition, the factual issues have to be
resolved by the Court of Appeals, what will you do?
Answer: The Court of Appeals may conduct hearing or it may delegate to a
member of a division in the Court of Appeals where the petition is raffled or to
any appropriate court, usually it’s the Regional Trial Court in cases when there
are factual issues have to be resolved as far as this petition are concern which
are originally filed in the Court of Appeals and also remember in 7 copies.
Rule 47 - Annulment Judgment
(My recording only starts at this point.)
Q: Now, in so far annulment of judgment from the RTC to the CA. Same
likewise, from the 1st level court to the RTC what are the only 2 grounds
allowed by the rules?
A: 1. Extrinsic or collateral fraud
2. Lack of jurisdiction over the subject matter or over the person of the
defendant.
Q: In so far as the extrinsic fraud is concerned, is there a requirement here?
A: Annulment of judgment is an extraordinary remedy. This will not be
entertained if this could have been raised in an appeal or motion for a new
trial or petition for relief of judgment. Pero if the party annulling the
judgment was not able to avail of this remedy through no fault of his
own, (i.e. a fault not attributable to him), then, definitely, according to
the provision of the law, he is allowed to file a petition for annulment of
judgment. Otherwise, if the fault is attributable to him, then he is not allowed
file such a petition.
The same applies with 1st level court to RTC.
TAKE NOTE: Here review the concept of extrinsic fraud.
Q: Does it necessarily follow that the person who can file a petition for
annulment of judgment be a party to the case?
A: There is one decision cited in the book of Regalado that it is NOT ONLY a
party to the case which is allowed by the rules to file a petition for
annulment of judgment. Even third party can do so as long as he can prove
to the court that he was adversely affected as a consequence of that
particular judgment subject of his petition of annulment of judgment. The
court says in one decision he is allowed to file a petition for annulment of
judgment.
Q: How many copies if you go to the CA?
A: 7 copies.
Q: Upon the submission of this petition to the CA in 7 copies tapos the CA
finds that there is merit in the petition, what is the next step which the CA has
to do?
A: Because in Annulment of Judgment, whether it is RTC or CA, whether it is
1st level courts to the RTC, it is treated as if it is an ordinary civil case. That’s
why if the CA or RTC will find out that there is merit in the petition filed before
it, the rule is very clear it will issue summons on the respondent because
what I said this is governed by the ordinary civil case.
Q: No problem when it is before the RTC, what about if this is before CA and
there is a need for reception evidence, what should be done according to the
rules? In this case, since CA is not a trier of facts, then what should be done?
A: It may delegate it to a member of the CA or it may delegate the
reception of evidence to a particular RTC.
Q: What is the effect if it turns out that after both parties have rested their
respective cases, there is merit in the petition. What is the effect of that as far
as the judgment subject matter of that particular case is concerned?
A: The original judgment is vacated. It is set aside without prejudice of
refiling of that particular case in the court proper jurisdiction.
Q: Period to file the petition for annulment of judgment?
A: Extrinsic fraud - within 4 years from its discovery thereof
Lack of jurisdiction - before it is barred by laches or estoppel.
TAKE NOTE: Definition of:
Laches - it such inexcusable delay in the assertion of rights or a failure to
prosecute a claim, within a reasonable and proper period, which warrants the
presumption that a party has waived his right.
Estoppel (or estoppel by laches) - is that failure to do something which should
be done or to claim or enforce a right at a proper time or a neglect to do
something which one should do or to seek or enforce a right at a proper time.
Q: Now you will notice that most often than not, since this is 4 years from
discovery or since this is before it is barred by laches, the judgment subject of
that particular petition is already executed by the court. What will happen if it
turns out that the petitioner won in the case? What particular rule and section
would you quote?
A: The corresponding restitutions can be done by the court making reference
to Section 5 of Rule 39.
If this a property and the property is still in the possession of the winning
party, what should be the proper restitution?
The property must be returned, plus compensation to the former for the
deprivation and use of the property.
If restitution is not possible, the property will be sold at a public auction.
The compensation should be made as follows:
a. If the purchaser at the public auction was the judgment creditor, he must
pay the full value of the property at the time of its seizure, plus interest
thereon;
b. If the purchaser at the public auction was a third person, the judgment
creditor must pay the judgment debtor the amount realized from the sale of
the said property at the sheriff’s sale, with interest thereon; and
c. If the judgment award was reduced on appeal, the judgment creditor must
return to the judgment debtor only the excess which he received over and
above that to which he is entitled under the final judgment with interest on
such excess.
Rule 48 - Preliminary Conference
Q: This presupposes that this will happen in which court?
A: This is with the appellate court. So if this is CA, then that is CA. The CA may
likewise conduct preliminary conference. Parang the same with what we have
been discussing before where there can be a conduct of preliminary
conference, and pre-trial.
Q: What is the effect, during the preliminary conference everything is reduced
into writing, in so far as the proceedings is concerned?
A: This will govern the subsequent proceedings.
Q: Can this order after the preliminary conference, can this be modified by the
court even after the same has already been issued by the court?
A: Yes, the CA (or appellate court) can modify the order.
Q: What is the ground which will merit that little modification of that
preliminary conference order as mandated of one of the sections of Rule 48?
A: To prevent manifest injustice. That is the same in civil cases. Although
in civil cases, once we issue a pre-trial order we always place there a period
for the parties to file appropriate amendments upon receipt of the pre-trial
order. We give them 10 days or 15 days. If there are certain amendments, you
have to file the amendments to the pre-trial within the period given to you.
Otherwise, if you do not do so then you are forever barred from doing so. Be
that as it may, just same of the preliminary conference order of the appellate
court, we can still somewhat modify the order if to do so would actually
prevent manifest injustice. Because we always anchor our order granting the
same in the interest of substantial justice.
Rule 49 - Oral argument
Q: Can the CA schedule a case for Oral arguments?
A: Yes. Although, it is rare. If you can recall, in petitions what you are told to
do is to submit your respective appellant’s brief or memorandum, in other
cases. But there are instances when the CA may set your case for oral
arguments. This is definitely allowed there. The same with the Supreme Court.
It can schedule a case for such.
Q: If you file motions before the CA and/or before the SC, does it have to
comply with our rules on motions before the RTC and 1st level courts where
there has to be a notice of hearing. Otherwise, if your motion does not contain
a notice of hearing, your motion is considered as a mere scrap of piece of
paper. Failure of the party to include a notice of hearing, is this fatal to your
motion filed before the CA and SC?
A: No. Motions which are filed before the CA and SC need not be with
notice of hearing. But even if there is a notice of hearing the said courts will
simply disregard the same. Anyway, if the said courts want that a motion be
scheduled for hearing, it will just notify the parties by issuing an order that the
motion is to be set for hearing. So this is one major distinction between
hearings in the 1st level court, in the RTC where it has to comply with the rule
that there must be a notice of hearing in your motion, otherwise, it will be
considered as a mere scrap of paper. That requirement is not needed in cases
of motions file before the CA and SC.
Rule 50 - Dismissal of Appeal
MEMORIZE: Grounds for dismissal of appeal (Section 1) - An appeal may
be dismissed by the Court of Appeals, on its own motion or on that of the
appellee, on the following grounds:
(a) Failure of the record on appeal to show on its face that the appeal was
taken within the period fixed by these Rules;
(b) Failure to file the notice of appeal or the record on appeal within the period
prescribed by these Rules;
(c) Failure of the appellant to pay the docket and the other lawful fees as
provided in section 5 of Rule 40 and section 4 of Rule 41;
(d) Unauthorized alterations, omissions or additions in the approved record on
appeal as provided in section of Rule 44;
(e) Failure of the appellant to serve and file the required number of copies of
his brief or memorandum within the time provided by these Rules;
(f) Absence of specific assignment of errors in the appellant’s brief, or of page
references to the record as required in section13, paragraphs (1), (c), (d) and
(f) of Rule 44;
(g) Failure of the appellant to take the necessary steps for the correction or
completion of the record within the time limited by the court in its order;
(h) Failure of the appellant to appear at the preliminary conference or to
compy with orders, circulars, or directives of the court without justifiable
cause; and
(i) The fact that the order or judgment appealed from is not appealable.
Q: Can one withdraw his appeal?
A: It depends. An appeal may be withdrawn as a matter of right at any time
before the filing of the appellee’s brief. Thereafter, the withdrawal may be
allowed in the discretion of the court.
CASES:
CASE #(1) If there are several defendants or plaintiffs, one or two did not
appeal but the others appealed. If the judgment favorable it will not affect
those who did not appeal except if however, in criminal cases. even if the
other accused did not appeal but the decision of the appellate court is
favorable, i.e. acquitted that particular decision of acquittal does not only
affect those that appealed but likewise those who did not appeal.
In a civil case the result of the decision of the appellate which is favorable also
affects the those who did not appeal. (see Republic vs Institute for Social
Concern, et. al)
The reason for such ruling is: The defenses are so interwoven with each.
And that is why it is that since that these are interwoven with each other that
the decision was applied not only to those who appealed but likewise to those
who did not appeal.
CASE #(2) This is related to our rule that period of appeals are strictly
construed. What is the reason? This means that we have to follow the 15-day
or 30-day period to appeal. Failure will cause for the appeal to be dismissed
outright. (see GSIS vs Jines).
The SC held that the period for appeal shall not be extended because it is not
only mandatory but also it is jurisdictional.
Rule 51 - Judgment
Rule 52 - Motion for Reconsideration
Rule 53 - New Trial
(Not discussed Rule 54 - Internal Business and 55 - Publication of
Judgments and Final Resolutions)
Q: When is a case deemed submitted for decision? How do you qualify that?
A: Determine first whether this is based on ordinary appeal or whether this is
based on original actions and petitions for review filed. After you determine
this particular qualifications, you further qualify whether there was hearing or
no hearing on the merits of the case. Therefore:
I. Ordinary appeals
a. No hearing => upon the filing of the last pleading, brief, or memorandum
required by the Rules or by the court itself, or the expiration of the period for
its filing.
b. Hearing is held => upon its termination or upon the filing of the last
pleading or memorandum as may be required or permitted to be filed by the
court, or the expiration of the period for its filing.
II. Original actions and petitions for review
a. No comment filed => upon the expiration of the period
b. No hearing => upon the filing of the last pleading required or permitted to
be filed by the court, or the expiration of the period for its filing.
c. Hearing is held => upon its termination or upon the filing of the last
pleading or memorandum as may be required or permitted to be filed by the
court, or the expiration of the period for its filing.
Q: How will members of the CA resolve a particular case submitted for
decision?
Take note: You’ve already have taken up this already, because there is a
portion in Article VIII of 1987 Constitution, as to when courts will actually
decide cases. If you can recall SC 24 months, other collegiate courts 18
months, and for other courts 3 months only.
A: Unanimous vote is needed in order to reach a decision if this is heard in
division.
Q: If the 3 votes could not be reached by the 3 justices, what will happen?
A: 1. The clerk shall enter the votes of the dissenting Justice in the record.
2. Then, the Chairman of the division shall refer the case, together with the
minutes of the deliberation, to the Presiding Justice who shall designate two
Justices chosen by raffle to sit temporarily with them, forming a special
division of 5 Justices.
3. The concurrence of a majority of such division shall be required for the
pronouncement of a judgment or final resolution.
Q: I told you time and again, particularly when we were talking about the
submission of the appellant’s brief. That in the appellant’s brief, unlike in
criminal cases, the appellant MUST ALWAYS raise or allege assignment of
errors because in its resolution the CA will only center on your assignment of
errors. In fact, in Rule 50 dismissal of appeals, failure to allege assignment of
errors in the appellant’s brief is one of the grounds for dismissing the case.
Are there exceptions that even when these errors are not included or raised in
the assignment of errors, yet these can still be treated by the appellate court
when it renders its decision?
A: There are 3 exceptions:
1. Errors affecting the validity of jurisdiction of the court over the subject
matter;
2. Errors affecting the validity of the judgment appealed from or the
proceedings therein; and
3. Errors which are closely related to or dependent on the assigned error and
these were properly argued in the appellant’s brief.
Meaning to say that these 3 exceptions even if these were not raised as an
error in the appellant’s brief the court resolving the appeal can entertain these
as far as when it renders its decision.
Take note: Clerical errors are perfect examples of what we call harmless
errors. It will not affect in any way the decision of the appellate court on
appeal.
Q: Once the CA renders a decision, the losing party can avail of the following
remedies. These are? File a -
1. Motion for Reconsideration; or
2. Motion for New trial; or
3. Petition for Review on Certiorari under Rule 45 (or appeal by certiorari) on
pure question/s of law.
The Motion for Reconsideration, this is in reference to a final judgment or
resolution, must be filed within 15 days from the receipt of the notice.
Q: Can one file a second Motion for Reconsideration?
A: It depends. If the Motion for Reconsideration is in reference to a final
judgment or resolution, then second Motion of Reconsideration is NOT
allowed. This is provided for by the rules. However, if this is in reference to an
interlocutory order, there might be certain consideration taken into account
allowing a party to file a second Motion for Reconsideration.
 A: When a Motion for New Trial is filed, the decision will be vacated and
Q: What is the effect if one filed a Motion for Reconsideration in so far as the the CA will try the case. The CA will also consider the evidences which were
decision is concerned? considered when it rendered the decision prior to the filing of the Motion for
New Trial.
A: The decision will be STAYED not unless the law or order provides
otherwise. So meaning to say if the decision is stayed it cannot yet be the
subject of an execution.

TAKA NOTE: Execution of judgment of CA, it can only be executed one a

judgment is final and executory. In cases executions pending appeal, the trial
courts has already lost jurisdiction and forwarded the records of the case to
the CA, you can file the motion for execution pending appeal before the CA.
And the CA has to issue an order transmitting the order to the trial court. But
if the records is still with the trial court, then the latter can still treat the
execution. The latter is one of the residual powers of the trial courts.
RULE 56
PROCEDURE IN THE SUPREME COURT
Q: What is the effect if the Motion for Reconsideration is granted? Sec. 47. Effect of foreign judgement and final orders.

A: The decision will be MODIFIED, unlike the effect of a Motion for New A. ORIGINAL CASES
Trial. *Sec. 1. Original cases cognizable.
(1) petitions for certiorari
Q: When can you file a Motion for New Trial? (2) prohibition
(3) mandamus
A: It can be filed any time after perfection of an appeal from the RTC but
before CA loses jurisdiction over the case. (4) quo warranto
(5) habeas corpus
Q: What is the only ground for Motion for a New Trial of a decision of a CA? (6) disciplinary proceedings against members of the judiciary and attorneys
(7) cases affecting ambassadors, other public ministers and consuls
A: Newly discovered evidence which upon reasonable diligence it was not
available and if presented it would alter the decision. Sec. 2. Rules applicable.
The procedure in original cases for certiorari, prohibition, mandamus, quo
Q: Before the CA, can you file a second a Motion for New Trial?
warranto and habeas corpus shall be in accordance with the applicable
provisions of the Constitution, laws, and Rules 46 (original actions in the CA),
A: No, because before the CA there is only one ground for Motion for New
Trial and that is newly discovered evidence. 48 (preliminary conference), 49 (oral argument), 51 (judgment), 52 (MR) and
this Rule, subject to the following:
Q: What will happen when a Motion for New Trial is filed and what is the effect (a) all references to the CA shall be understood to also apply to the SC;
thereof? (b) the portions dealing strictly with and specifically intended for appealed
cases in the CA shall not be applicable;
(c) *18 clearly legible copies of the petition shall be filed, together with proof
of service on all adverse parties.
The proceedings for disciplinary action against members of the judiciary shall
be governed by the laws and Rules prescribed therefor, and those against
attorneys by Rule 139-B, as amended.
*Rule 53 (motions for new trial) is not applicable to and cannot be availed of
in the SC in civil cases therein because only questions of fact are involved in
such motions and the SC is not a trier of facts. Besides, the findings of fact of
the CA are generally binding on the SC.
B. APPEALED CASES
Sec. 3. Modes of appeal.
An appeal to the SC may be taken only by a petition for review on certiorari
from the CA (Rule 45), EXCEPT in criminal cases where the penalty imposed is
death (automatic review), reclusion perpetua or life imprisonment (ordinary
appeal).
Sec. 4. Procedure.
The appeal shall be governed by and disposed of in accordance with the
applicable provisions of the Constitution, laws, Rules 45, 48, sections 1, 2, and
5 to 11 of Rule 51, 52 and this Rule.
*Sec. 5. Grounds for dismissal of appeal.
The appeal may be dismissed motu proprio or on motion of the respondent on
the following grounds (NaCPRREL):
(a) Failure to take the appeal within the Reglementary period;
(b) Lack of merit in the petition;
(c) Failure to Pay the requisite docket fee and other lawful fees or to make a
deposit for costs;
(d) Failure to comply with the Requirements regarding proof of service and
contents of and the documents which should accompany the petitions;
(e) Failure to comply with any Circular, directive or order of the SC without
justifiable cause;
(f) Error in the choice or mode of appeal; and
(g) The fact that the case is Not appealable to the SC.
*Sec. 6. Disposition of improper appeal.
An appeal taken to the SC by notice of appeal shall be dismissed.
Exception: in criminal cases where penalty imposed is death, reclusion
perpetua or life imprisonment
An appeal by certiorari taken to the SC from the RTC submitting issues of fact
may be referred to the CA, although SC may also dismiss the appeal. The
determination of the SC on whether or not issues of fact are involved shall be
final.
Sec. 7. Procedure if opinion is equally divided.
Where the court en banc is equally divided in opinion or the necessary majority
cannot be had, the case shall again be deliberated on, and if after such
deliberation no decision is reached, the original action commenced in the
court shall be dismissed.
In appealed cases, the judgment or order appealed from shall stand
affirmed.
On all incidental matters, the petition or motion shall be denied.
The conclusions of the SC in any case submitted to it for decision en banc or in
divisions shall be reached in consultation before the case is assigned to a
Member for the writing of the opinion of the Court. A certification to this
effect signed by the Chief Justice shall be issued and a copy thereof attached
to the record of the case and served upon the parties.
The SC is clothed with ample authority to review matters, even if they are not
assigned as errors on appeal, if it finds that their consideration is necessary in
arriving at a just decision of the case. It may consider an unassigned error
closely related to an error properly assigned or upon which the determination
of the question properly assigned is dependent. Furthermore, where the Court
is in a position to resolve the dispute based on the records before it, it may
resolve the action on the merits in the public interest and for the
expeditious administration of justice.
In People v Jabinal, the SC emphasized that its interpretation upon a law
constitutes, in a way, a part of the law as of the day that law was
originally passed, since its construction merely establishes the
contemporaneous legislative intent which that law intends to effectuate .
It also clarified that when its doctrine is subsequently overruled and a different RULE 57
view is adopted, the new doctrine should be applied prospectively and PRELIMINARY ATTACHMENT
should not apply to parties who had relied on the old doctrine and acted on
the faith thereof. Q: When can this be availed of? (first question to determine the distinctions)

A: This can be resorted to at the commencement of the action. This is usually

incorporated in the complaint which means you have already prayed for the
PROVISIONAL REMEDIES issuance of a preliminary attachment. In other words, it is already part and
parcel of the complaint. However it can also be resorted to before entry after
1. Preliminary Attachment judgment.
2. Preliminary Injunction
3. Replevin Q: In this instance, if this is after judgment but before entry, how do you
4. Receivership usually do this if you want to avail of this particular provisional remedy?
5. Support Pendente Lite
A: By mere motion. Meaning to say, if unfortunately you were not able to
NOTE! Before contempt was in this category but according to 1997 rules of incorporate in your complaint that you are praying for a preliminary
civil procedure this is now a special civil action. So apparently, we have 5 attachment, what you do is you can do that in any stage of the proceeding. 
provisional remedies.
6 grounds upon which attachment may issue:
NOTE! There are certain instances, that this enumaration is not actually
exclusive, because, my dear students, there are instances where the court 1. In an action for the recovery of a specified amount of money or
may grant certain processes while the case is pending and those processes can damages, other than moral and exemplary, on a cause of action
still be considered as provisional remedies like for example in a petition for arising from law, contract, quasi-contract, delict or quasi-delict
custody of minors. And while the case is pending the court may grant a parent against a party who is about to depart from the Philippines with
a visitorial right or temporary custody of the child while the case for custody is intent to defraud his creditors. 
pending. Accorrding to one decision of the supreme court that particular 2. In an action for money or property embezzled or fraudulently
visitorial right or temporary custody given to a parent can be similar to what misapplied or converted to his own use by a public officer, or an
we call a provisional remedy.  officer of a corporation, or an attorney, factor, broker, agent, or
clerk, in the course of his employment as such, or by any other
The following are purposes of these remedies: person in a fiduciary capacity, or for a willful violation of duty.
3. In an action to recover the possession of property unjustly or
1. To preserve or protect the rights or interests of litigants while the fraudulently taken, detained or converted, when the property, or
main case is pending. any part thereof, has been concealed, removed or disposed of to
2. To secure the judgment. prevent its being found or taken by the applicant or an authorized
3. To preserve the status quo. person.
4. To preserve the subject matter of the action. 4. In an action against a party who has been guilty of fraud in
5. contracting the debt or incurring the obligation upon which the
action is brought, or in the performance thereof.
5. In an action against a party who has removed or disposed of his
property, or is about to do so, with intent to defraud his creditors.
 6. In an action against a party who does not reside in the Philippines, Q: What are the requirements for the issuance of writ of preliminary
or on whom summons may be served by publications. REASON FOR attachment?
THIS PARTICULAR GROUND: This is allowed in order for the court A: There are two. The affidavit and bond.
to acquire jurisdiction over the person of the defendant. This is the
instance, when in an action in rem and you cannot serve summons Q: What is one very improtant content of your affidavit? (must comply with all
to the defendant because he is actually residing out of the country those requisites under sec 3 of the rule)
and you resort to what you call summons by publication. That is not
actually for purposes of acquiring jurisdiction per se but more so for A: It must allege that there is no other security. 
complying the due process requirement. 
There is an example case: If the property was also subject of a real estate
Q: When is it in rem and when in personam? mortgage executed between the creditor and the debtor, and then the creditor
A: Proceeding in attachment is in rem where the defendant does not appear, because of non-payment instead of foreclosing the real estate mortgage
and in personam where appears in the action.  resorted to filing a collection of sum of money for the loan, and in the
complaint he also prayed for the issuance of writ of preliminary attachment.
Q: In the context here, procedurally speaking, how is this done when one The question is, can that be granted?
resort to a preliminary attachment? 
A: No. Because there is already a sufficient security precisely I put emphasis
A: Usually it does not require notice and hearing, because it can be issued by on one of the requirements which must be contained in the affidavit in support
the court ex parte.  of the issuance of the writ that there is no other security. And that particular
security is the real estate mortgage executed by the debtor in favor of the
Q: And this will happen when? creditor. 
A: When it is incorporated as part of the allegations in the complaint. As long
as you have complied with the requirements of the rules, the court actually Q: Aside from the affidavit which should contain all those enumaration, there
can issue already the writ of preliminary attachment.  must also be a bond. How much is the bond that is required by the rules here?
A: It is based on the amount fixed by the court or as much as the value of the
First stage: The court issues an order granting your prayer for the issuance of claim in that particular complaint being resorted to by the plaintiff. Although it
writ of preliminary attachment. is discretionary upon the court, the court is still guided depending on the value
of the claim by the plaintiff or other parties alleged therein. 
Second stage: After the order is issued, the court will now issue the writ itself. 
Take note: This is avalaible not only to the plaintiff but to all of the parties as
NOTE! And the while the law says, it did not require notice and hearing, well. 
because unlike other provisional remedies, it can be issued ex parte however it
cannot be implemented without service of summons. Meaning to say, when Q: The writ is about to be served by the sheriff as mandated by the rules, can
the court issues a writ of preliminary attachment, it should be part of the writ cover all properties?
summons already upon the person of the defendant. Together with the writ of A: No. That is now the role of the sheriff to look for available properties. The
preliminary attachment, complaint, affidavit and bond as required by the rules. reason for this, is because there are properties that must be exempted from
As far as service is concerned, it is a diffirent story. But as far a granting the execution such as those of the family home. Because if the property is
writ is concerned, it can be granted by the court without notice and hearing.  exempted from execution, it can't also be covered by writ of preliminary
attachment.
Q: What about if the sheriff resorts to money in the bank? How do you call execute an affidavit and prove his title to the property and give it to the
this? sheriff.

A: This is what we call, garnishment. Garnishment usually involve money and Q: If a third person executed an affidavit to prove his title to the property
credits in the bank. It is a form of preliminary attachment.  subject to the writ, is the sheriff bound to continue with the implementation of
the writ or he will not continue?
Q: To prevent the attachment, what should the defendant do? (Let us say it is
the plaintiff who was granted the writ of preliminary attachment) A: He will not continue unless the attaching party or his agent put up a bond
A: He may file a remedy and this is to put up a counter-bond. In an amount approved by the court. If it was procedurally done the sheriff will no longer
the same to that of the bond which was posted by the plaintiff for the issuance liable. This is to indemnify the third claimnant in an amount not less than the
of the writ of preliminary attachment.  value of the property levied upon. In case of this agreement the court will
decide for the amount thererof. 
Q: If the bond for the plaintiff is to answer for whatever damages which the
party might lose later, the counter-bond is for what purpose? NOTE! And under our rules, the bond is not required if this is in favor of the
Republic of the Philippines. However there is a qualification, if you want to run
A: To help prevent that attachment by the defendant.  after that bond which was posted by the attaching party or his agent, you are
only given a period of 120 days from the filing of that bond. (section 14 of this
Q: What other remedies can be resorted to? rule)
A: The defendant can file a motion to set aside or discharge the writ. 
NOTE! This is the same with rule 39 when we talk about execution and the
Grounds which can be resorted to by the other party if in case a writ if property subject of the execution is being claimed by a third person. VERY
preliminary attached was issued by the court: (file a motion to discharge based IMPT CONCEPT OF TERCERIA!
on these grounds)
Q: Can there be sale of a property subject of the attachment?
1. Debtor has posted a counter-bond or has made the requisit cash A: Yes. When the property subject of the writ is actually perishable. By filing a
deposit. motion and if it is granted the sale can be done in public auction in a manner
2. Attachment was improperly or irrregularly issued as where there is which is directed by the court. The proceeds thereof will deposited in the court
no ground for attachment, or affidavit and/or bond filed therefore subject to the outcome of the main action.
are defective or insufficient.
3. Judgment is rendered against the attaching creditor.  NOTE! If the judgment is final and executory, the remedy is not for the
4. Attachment is excessive, but the discharge shall be limited to the issuance of the writ of preliminary attachment, your remedy is now to file a
excess. motion for a writ of execution instead. If there was already an entry of
5. Property attached is exempt from the execution.  jugment, it presupposes that the decision is final and executory. 

Q: When the writ was being implemented by the Sheriff and this is claim by a
third person, what will happen?
A: The property upon which the writ of preliminary attachment is supposed to
be issued is claimed by a third person, this is another instance which entails
the principle of Terceria. In this case, the third person who claimed it should
Q: If it turned out that the attachment was excessive and improper, can the
party against whom that writ is issued do or claim something there?
A: Yes. He can claim for damages. This will cover an instance when after
jugdment it turned out to be excessive and improper, and creditor is not
entitled to the property he claimed for. 
Q: How can this be done? And when should you do that?
A: It should be filed before the appeal is perfected and the judgment becomes
executory in the court which the writ is issued. Setting forth his right thereto
but always with notice to the party in whose favor the writ was actually
granted.  or an agency to refrain from doing an act but it may also compel the
NOTE! The rule actually does not allow the party to file an independent civil
action because it should be in the same court where the writ was issued or the
judgment was rendered, however there are two exceptions:
1. Where the principal case was dismissed for lack of jurisdiction by
the trial court without giving an opportunity to the party whose
property was attached to apply for and prove his claim.
2. Where the damages by reason of the attachment was sustained by
a third person who was not a party to the action wherein such writ
was issued.  can definitely issue a writ of preliminary mandatory injunction?
RULE 58
PRELIMINARY INJUNCTION
Judge Sabarre: In terms of the implementation of the writ of preliminary
attachment, it must be served contemporaneously with the summons, affidavit
and the bond which there are certain exceptions which were not able to put
emphasis like if it is an action in rem, or quasi in rem, or if it is an action
against a Flipino who is residing in the Philippines but temporarily outside the
Philippines will if inspite diligent effort, summons will not be served even
substituted service. These are exceptions. I want to emphasize these
because these are also mentioned in the next rule on provisional remedy on
preliminary injunction.
I told you likewise last night that in terms of issuance of a writ of preliminary
attachment is in rem or quasi in rem depends on whether or not the defendant
appears. If the defendant does not appear, it is considered in rem, however if
the defendant appears, that action will be considered in personam.
Judge Sabarre: Let us now go to Rule 58, Preliminary Injunction. By the
way, the other term for preliminary injunction is temporary restraining order.
There are some instances that instead of issuance of a writ of preliminary
injunction, we use the term temporary restraining order. And our rules:
Ans: Preliminary injunction is defined to be a writ or process ordering a person
performance of an act in which case, it becomes a Preliminary Mandatory
Injunction.
Judge Sabarre: In terms of cases or decisions, the law is very strict in terms
of issuing a writ of a preliminary mandatory injunction unlike that of issuances
of a preliminary injunction. We can notice that the court is very strict in issuing
a preliminary mandatory injunction not unless the following elements is proven
in the court in support of the prayer for the issuance of a writ on preliminary
mandatory injunction.
Q: What are these following requisites that must be proven before the court
Ans: MEMORIZE ! Being an extreme remedy, more often than not, we don’t
grant it! It can only be granted if the following elements are present: (1) If the
invasion of the right is material and substantial (2) It must therefore be stated
that the right of the complainant as applicant is clear and unmistakable (3) If
there is a paramount necessity to issue such writ to prevent serious injury (4)
It must not create a new relation between the parties which was interrupted
by one of the parties in the issuance of such writ TAKE NOTE!
Mervel Homeowners Association Incorporated vs. Teles
Judge Sabarre: Let us say in the case of recovery of possession, and the
court orders the issuance of a writ of preliminary mandatory injunction which
will now allow the defendant to enter into possession of the subject of the
case, that should not be done! Definitely, that will change the relation between
the parties. There is really the exercise of caution on the part of the court
being an extreme ready. In fact in reality, courts rarely grant it unlike an
ordinary writ of preliminary injunction.
Q: In terms of effectivity, injunction may be preliminary and final. Where lies
the difference?
 Ans: An injunction is preliminary when it is granted at any stage of the
proceeding of the action but prior to judgment or final order while injunction is
final when after the trial of the case, the applicant is showed to be entitled to
have the act or acts complained of permanently enjoined, the court shall grant
a final injunction perpetually restraining the party or person enjoined from the
commission or continuance of the act or acts or confirming the preliminary
mandatory injunction. Remember however that a preliminary injunction
may be an action in itself or it can also be an incident only to the
main action. Example! You can file case for an injunction as a main action
with a prayer for the issuance of a writ of a preliminary mandatory injunction.
But it can also be an ancillary to an action like recovery of damages and
possession with a prayer for the issuance of a writ of a preliminary injunction.
So now it can be an action in itself. Please take note my dear students of that!
Student: In terms of preliminary injunction, it can only be issued if the acts
are being committed or are about to be committed and that this does not lie
against those acts already committed. It will be futile on the part of the court
to issue a writ of preliminary injunction if such acts were already committed.
This is indeed a logical consequence because if injunction is to prevent a
person from doing an act, if the act is already committed, there is nothing to
be prevent of. It is supposed to be in contemplation of an act being committed
or about to be committed. However by way of exception, such writ may still be
issued even if it has already been committed but such act is continuing in
nature and were in derogation of plaintiff’s rights at the outset, preliminary
mandatory injunction may be availed of to restore the parties to the status
quo.
Like in the case of forcible entry. This falls as an exception to the second
principle that preliminary injunction can only be issued to acts being
committed or about to be committed. Refer to the case of Jun Jun Binay vs.
SC.
Judge Sabarre: There are certain qualifications particularly if the writ of
preliminary injunction is issued by the RTC. However this can also be filed in
MTC because jurisdiction covers cases on forcible entry and unlawful detainer
case.
Q: What are the limitations in the issuance of the writ of preliminary injunction
by the RTC?
Ans: (1) It cannot restrain the proceedings involving unfair labor practices
under the Labor Code
(2) It cannot restrain the acts of another co-equal branch or court. If you
really wanted to, you can go to the CA or SC, because it is not already within
RTC’s jurisdiction.
(3) It cannot likewise restrain the act of the government with respect to
national infrastructures enshrined in RA 8975 because only the SC can do it.
Also it cannot restrain those government-owned corporations in its
infrastructure projects.
(4) It cannot also issue a writ of preliminary injunction to prevent the
extrajudicial foreclosure of mortgage unless there is already full payment of
the property subject of mortgage .
Di ba? In attachment, it can be filed at the commencement of the action or
any time after judgment but before its entry. You can notice in preliminary
injunction only said “at any time”, there is no specific limitation or period but
preliminary injunction can that has given unlike attachment. Because in the
latter, if there is already entry of judgment, the remedy is to file a motion of
execution anymore. However even if the law provided that preliminary
injunction can be filed at any time of the proceeding, it can likewise be
incorporated in the complaint the same as a writ of attachment. If you failed to
incorporate it to the complaint, then you may file a motion.
Q: In terms of the need of notice and hearing, is it synonymous with prelim
attachment?
Ans: NO! We said that in prelim attachment, it can be issued ex parte, without
notice and hearing but in prelim injunction, the court cannot issue such
without notice and hearing. In other words, it cannot be done ex parte. This is
one major difference. But in terms of the requisites for the issuance of the
writ, the same is observed in prelim attachment. The two requisites are (1)
the affidavit to justify injunction/attachment and (2) the bond. In fact
if it is already part of your complaint, the grounds shall be set forth therein as
contemplated under Section 3 of Rule 58. Memorize this section for the 3
requisites are really important for in reality, it is just stated in your complaint.
In terms of the amount of the bond and damages, both writs of attachment
and injunction is determined by the Court.
Q: What will happen if prayer for the issuance of TRO is incorporated in the
complaint, does it mean that the court will automatically issue the TRO or
preliminary injunction?
Judge Sabarre: Remember that injunction cannot be issued ex parte! Now
the court will now take charge. In a multi sala court, the judge shall now raffle
the case to which branch it will go unlike a single sala court. Afterwards, a
notice shall be issued to the defendant and shall likewise be issued
contemporaneously with the summons together with the affidavit and the
bond. Okay my dear students? Not unless if the contemporaneous service of
summons cannot be made because it falls on the exceptions mentioned a
while ago.
Then after the receipt of summons, the court will now conduct a summary
hearing within 24 hours for the purpose of whether or not to grant the writ of
preliminary injunction or TRO.
Q: Can an executive judge issue a TRO before summons are served without
notice and hearing as an exception to the rule? Can an executive judge upon
which the complaint is filed before it is being raffled or me as a judge of a
singe sala cour?
Ans: YES! There are two requisites that you have to memorize!
(1) When there is an extreme urgency
(2) when it can cause an irreparable damage
*This can be issued ex parte but only within 72 hours and within 72 hours if
there is a need to extend it, the hearing must be conducted. But this will only
happen ha because as a general rule, we cannot issue a writ of prelim
injunction without notice and hearing and by way of exception to the rule, if
the court finds out that there is an extreme urgency or it might cause an
irreparable injury, then the court can issue a writ of preliminary injunction
good only for 72 hours. And within 72 hours, a summary hearing must be
conducted whether or not to extend the life of a TRO with the RTC to 20 days
only. If no hearing is made within 72 hours, the effect will be the TRO is
deemed vacated. That is the only exception to the rule that we cannot issue a
prelim injunction without notice and hearing.
Before the court of appeals, the life of a TRO is only good for 60 days.
While in SC, the TRO extends until after it is resolved. There is no life
intended for a TRO. The best talaga ang Supreme Court. The primary
purpose of the issuance of TRO is to preserve the status quo of the parties.
Q: What is status quo?
Ans: Status quo is the last actual, peaceable, uncontested status which
precedes the pending controversy. Memorize this! Para you can pass my brain
damaging exam! (In fact kami as judges, when there is a petition of certiorari
under rule 65 questioning our order, we proceed to hearing of the case unless
the higher court orders a preliminary injunction. Otherwise we will be
administratively charged. )
Q: What are the grounds of dissolution of injunction or grounds that will
warrant the refusal of the judge to grant the injunction?
Ans: (1) If the complaint is irregular, excessive and insufficient
(2) When the party against whom injunction is filed is permitted to post a
counter-bond it appearing that he would sustain great damages while the
plaintiff can be amply compensated
(3) On the other grounds as where the bond posted by the applicant turn
out to be defective and insufficient
REMEMBER! *The filing of a counter bond does not necessarily warrant
dissolution of the injunction as the court has to assess the probable relative
damages. Unlike attachment, when the debtor post a counter bond in an
amount equal to the bond posted by the applicant in attachment, automatic na
yan that attachment will not be served. While in injunction it does not
automatically mean that injunction is dissolved because at the end of the day,
it is still discretionary to the court.
Q: We discussed section 20 of Rule 57 di ba? Is there a bearing on the
judgment?
Ans: In terms for claims of damages, a party can claim for damages by simply
filing a petition in the same case where the writ is issued before the judgment
becomes executory or before the appeal is perfected within 120 days from the
time of the filing of that particular bond as provided under Section 20 Rule 57.
You are not allowed a file a separate action for damages. This procedure is
likewise observed in the claims for damages in preliminary injunction under
Section 8 of Rule 58.

RULE 59
RECEIVERSHIP
This can be filed even after judgment. It can also be an incident to a main
action. If you are to compare attachment to injunction this can be applied to
before final judgment
Receivership vs. attachment vs. injunction
* Receiver can be applied for even after judgement. While in attachment and
injunction which can only be resorted to before final judgment. In receivership
this can be resorted to even if there is already final judgment.
Q: Purpose of receivership as a provisional remedy:
Ans: To protect and preserve the rights of the parties during the pendency of
the main of the action, during pendency of an appeal or it will be used as an
aid in the execution of a judgment when the writ execution has been returned
unsatisfied.
Q: And under our rules, receivership is available in any these instances. What
have you noticed common characteristic of the four instances enumerated in
section 1 of Rule 59, which will warrant issuance of receivership as a
provisional remedy.
Ans: The property might be in danger of being lost, or materially injured. In
which case you can resort to filing a petition for receivership or it can be an
incident to a main action.
(MEMORIZE THESE 4 INSTANCES):
Section 1. Appointment of receiver. - XXX
(a) When it appears from the verified application, and such other proof as the
court may require, that the party applying for the appointment of a receiver
has an interest in the property or fund which is the subject of the action or
proceeding, and that such property or fund is in danger of being lost,
removed, or materially injured unless a receiver be appointed to administer
and preserve it;
b) When it appears in an action by the mortgagee for foreclosure of a
mortgage that the property is in danger if being dissipated or materially
injured, and that its value is probably insufficient to discharge the mortgage
debt, or that the parties have so stipulated in the contract of mortgage;
(c) After judgment, to preserve the property duing the pendency of an appeal,
or to dispose of it according to the judgment, or to aid execution when the
execution has been returned unsatisfied or the judgment obligor refuses to
apply his property in satisfaction of the judgment, or otherwise to carry the
judgment into effect;
(d) Whenever in other cases it appears that the appointment of a receiver is
the most convenient and feasible means of preserving, administering, or
disposing of the property in litigation.
XXX.)
Q: Examples when one can resort to receivership:
Ans: 1. Complaint is a collection of sum of money and you prayed for the
provisional remedy of receivership. Would this be proper?
ANSWER: There is one decision of the Supreme Court where the SC said that
receivership is NOT available in a mere a suit for collection of sum of money. It
is available when the property or fund that is the subject matter of the
litigation is in danger of being lost, removed, or materially injured.
2. What about if this is a case for foreclosure of mortgage? Would receivership
be proper?
ANSWER: Yes, there is also one decision. This is a perfect of example in a case
for judicial foreclosure of mortgage tapos there is a probably that the property
subject of the foreclosure is in danger of being wasted, or dissipated or in
danger of being materially injured so that there is a danger that the value of
this particular property might not be able to cover the mortgage loan. The SC
in the particular case in Phil Trust Co. vs. Sta Maria 53 Phil 463 allowed the previous 2 provisional remedies, here are actually 2 bonds because the
judgment obligor to avail of the provisional remedy of receivership while the applicant must also always post a bond with his application. And when the
foreclosure mortgage is pending hearing. So far this is the only one I found court issues an order for the appointment of a receiver, the receiver must
out to be a good example. likewise post a bond. So in all in there are 2 bonds here.

TAKE NOTE: But NOT in a mere collection of sum of money. 6. Before entering his duties, the appointed receiver must ALWAYS take oath
that he will perform his duties faithfully pursuant to Section 4 of Rule 59 of the
But it does not necessary mean that this is just limited to an action for 1997 Rules of Civil Procedure.
foreclosure of mortgage. It can apply to all actions as long as it involves a
property which might be a security for whatever judgment that might be Q: What is the extent of the power of a receiver? Without yet enumerating the
rendered by the court. And you feel that the property is in danger of being powers. But if you look at the enumeration there, what is the extent of the
lost, dissipated, materially injured, the best that you can do there is file a power of a receiver.
petition or make it as an incident to your main action so that at least the
property subject of the action may be preserved, which is one of the purposes Q & A: Can he execute a power involving ownership? NO.
of the provisional remedy of receivership.
Q & A: Or more or less his power is limited to powers of administration? YES.
Procedure for the appointment of a receiver:
TAKE NOTE: The power of a receiver is actually limited to the power of an
1. The party applying for the appointment of a receiver must file a administration.
verified application.
 Receivership may be granted by the court of origin or where the case MEMORIZE: General Powers of receiver (Section 6, Rule 59, 1997 Rules of Civil
is pending, Court of Appeals, by the Supreme Court, or any of its Procedure)
member thereof.
 Can be filed through a motion, in case this is an incident to a main
1. Shall have the power to bring and defend actions in his own name, in his
action, but must also be verified in accord with the requirements of
capacity as a receiver;
this rule.
TAKE NOTE: The law here says that he can bring action in his name
2. The applicant must have an interest in the property or funds subject of
not in a representative capacity but as a receiver.
the action.
2. To take and keep possession of the property in controversy;
3. The applicant must prove to the court that the property or fund is in
3. To receive rents;
danger of being lost, dissipated, wasted, or materially injured.
4. To collect debts due to himself as a receiver or to the fund, property, estate,
4. It is ALWAYS must be with notice and the application must ALWAYS be
person or corporation of which he is the receiver;
set for hearing.
5. To compound and compromise the same;
5. Before the appointment as a receiver, he must ALWAYS post a bond in
6. To make transfers;
favor of the adverse, otherwise one will not be appointed.
7. To pay outstanding debts;
8. To divide the money and other property that shall remain among the
Q: How much is the bond? It is fixed by the court. But that is always in favor persons legally entitled to receive the same; and
of the adverse party. 9. To do generally such acts respecting the property as the court may
authorize.
If you look at Section 2, there actually 2 bonds which are mentioned. One is
the applicant’s bond, and the second is the receiver’s bond. Unlike our
Q: With respect to funds, is he allowed to invest these funds which he is
actually in charge of?
Ans: He is not allowed to invest the funds in his possession UNLESS there is
an order from the court and a written consent of all the parties involved.
Q: In the appointment of a receiver, can anyone of the parties be appointed as
a receiver?
Ans: Generally NO. However, if the other party would actually gives his
consent even a party to a case can be appointed as a receiver. And no action
can be filed against the receiver without leave of court which appointed him.
RULE 60
REPLEVIN
Q: What is the main action for replevin?
Ans: The recovery of the possession of a personal property.
TAKE NOTE: When you become lawyers there is some who would file an
action for replevin. WRONG. Your main action is actually for recovery of
possession of personal property with a prayer for an issuance of a writ of
replevin. Because here is no main action which is called as replevin.
Q: What is the purpose why one would resort to a provisional remedy of
replevin?
Ans: To recover personal property capable of manual delivery or wrongfully
detained by a person. This is the primordial purpose of a writ of replevin.
Procedure:
1. Replevin must be filed at the commencement of the action or at any
time before the defendant files his answer.
2. In the application, requirements for the issuance of a writ of replevin
are:
(MEMORIZE: Section 2, Rule 60, 1997 Rules of Civil Procedure)
1. Affidavit, must allege:
a: That the applicant is the owner of the property claimed or even if he is not
the owner, that he is entitled to the possession of the same;
TAKE NOTE: Meaning to say, we can therefore make a conclusion that the
applicant need not be the owner of the property. He can still apply even if he
is not the owner but actually he has a right to the possession of that particular
property.
b: That the property is wrongfully detained by the adverse party, alleging the
cause of detention thereof according to the best of his knowledge, information,
and belief;
c: That the property has not been distrained or taken for a tax assessment or
a fine pursuant to law, or seized under a writ of execution or preliminary
attachment, or otherwise placed under custodia legis, or if so seized, that it is
exempt or should be released from such seizure or custody; and
d: The actual market value of the property.
2. Bond.
How much? Double the value of the property as stated in the affidavit.
Executed always to the adverse party.
That’s why in your affidavit one of those which you must allege is the value of
the property subject of your application for the issuance of a writ of replevin
because that is in accord with the requirement must post a bond double of the
value of that particular property. The affidavit must state the actual market
value of the property, NOT the assessed value.
If these requirements are not complied with, then the court cannot issue the
prayed for writ of replevin.
RULE 61
SUPPORT PENDENTE LITE
Support pendent lite is an amount of support provisionally fixed by the court in
favor of person/s entitled thereto during the pendency of the main action for
support.
Q: What are some instances in our rules when you can file for support
pendente lite aside from filing for a main action for support?
A: 1. actions for habeas corpus
2. in criminal cases of rape
3. an action for violations of RA 9262 anchored on the ground of financial
abuse
Q: In cases filed for rape when the victim bore a child as a consequence,is it
proper that she files a motion to the same court trying the criminal case for
the latter to grant her support pendente lite?
A: IT DEPENDS. If the civil liability has not been expressly waived, reserved or
instituted prior to the criminal action, then the court can grant such motion.
It is the same with attachment, in criminal cases, that the civil liability must be
instituted with the criminal case.
Q: What is the procedure in filing for support pendente lite?
A:
1. Filed at the commencement of the action or at any time prior to the
final judgement or order
2. Verified complaint or motion stating your reasons for asking support
3. Supporting affidavits, depositions or other documents
4. Respondent given 5 days from receipt of the service of a copy of the
application to file his comment and if so desired, with accompanying
affidavits, depositions or other documents to strengthen his comment
5. Upon receipt of the comment, the court shall set it for hearing. The
court is not allowed an ex parte decision in granting the support
pendente lite. (like injunction)
6. If during the hearing, the court is convinced based on arguments
raised, then the court will grant the application and issue the
corresponding support.
Q: Until when is the life of a support pendente lite?
A: Until after there is already a judgement of the court in the main case.
Note: The grant of support pendente lite is only provisional. Thus it can be
modified by the court until after the hearing of the main case is actually
finished.
In our rules, support is an action where there can be no finality. It can be
modified by the court any time when the financial condition of the defendant
would improve. Thus you can file a motion before the same court to modify
the support.
Q: What will happen to the support pendente lite, already given by the
respondent, if the court found out after hearing that the plaintiff applicant is
not entitled?
A: There can be proper restitution
If proper restitution is not possible, the respondent can file a separate action
against the persons who are legally obliged to support the plaintiff
*Rarely would women resort to filing a case for support, they would instead
file for an action for violation of RA 9262 on the ground of financial, economic,
sexual, emotional or physical abuse.
Of the about ten civil actions, from 61 to 71, some of these are commenced by
petitions and some of these are commenced by complaint.
The following are the cases commenced by complaint; others not in the
enumerations are automatically commenced by a petition:
1. Interpleader
2. Expropriation
3. Foreclosure of real estate mortgage
4. Partition
5. Forcible entry and unlawful detainer cases
The others therefore are also commenced not by complaint but by petition.
Automatically, if this is a complaint you term the parties, plaintiff and
defendant. If this is a petition, you term the parties, petitioner and respondent.
RULE 62
INTERPLEADER
We start off with the first special civil action. Interpleader.
Very short but very peculiar in terms of application.
Q: How do you define an interpleader?
Ans: It is a special civil action or remedy whereby a person who has a
property in his possession or has an obligation to render wholly or partially,
without claiming any right or interest in both, comes to court and asks that
defendants who have conflicting claims thereon or who consider themselves
entitled to demand compliance with the obligation, be required to litigate
among themselves to determine who is entitled to the property or payment or
obligation.
JS: simply put, if you are in possession of a particular property and you have
no claim over it, and there are several others claiming that they are entitled to
the property, to play safe you file a complaint for interpleader. The claimants
interplead among themselves before the court and prove who has a better
right to that disputed property.
This is kasi to play safe particularly if you have an obligation, and you want the
obligation extinguished, it might be that you might have delivered that to the
wrong person, in point of view of the law, your obligation is not extinguished.
If you are not sure, the best remedy is always to file an action for interpleader.
Q: Which court has jurisdiction over an action for interpleader?
Ans: it depends on the amount of the assessed value of the property.
JS: This is a special civil action which can be filed either before the first level
courts or the second level courts. If this is a personal property, if the amount
of the value of the property does not exceed 300,000, except in metro manila
which is 400,000, that means to say that first level courts has jurisdiction. But
if it exceeds 300,000 or 400,000 in metro manila, rtc.
If this is real property, you based it on the assessed value if it is not more than
20,000, except metro manila 50,000. If more than 20,000 or 50,000 in metro
manila, then the complaint for interpleader
Q: What are the requisites to file an interpleader?
Ans:
1. That the party initiating the interpleader has no interest or it has
interest but his interest is not disputed by the claimants;
2. There must be two or more claimants with adverse claim over the
property;
3. That the property subject of the interpleader should be one and the
same.
Q: in terms of procedural requirement, what is one characteristic of
interpleader which is not synonymous to other special civil action?
JS: Upon filing of the complaint, immediately the court will issue an order to
the conflicting claimants for them to interplead against each other which order
now will be served together with summons and the complaint.
That is one peculiar characteristic in the special civil action of interpleader.
That before the summons is issued; an order by the court is made to the
conflicting claimants for them to interplead among one another for them to
prove who has a better claim. However, it shall be served together with the
summons and complaint. Similar procedure noh, 15 days to answer, etc. etc.
The grounds for motion to dismiss under rule 16 in the rules of court are the
same grounds for the motion to dismiss in a complaint for interpleader.
Q: Can there be one additional ground for a motion to dismiss here
apart from the grounds enumerated in rule 16?
Ans: Yes.
Q: What is that? actually a deed of absolute sale; vitiated consent on the ground of
mistake; presupposes the contract is valid but did not express true
Ans: Impropriety of the complaint for interpleader. intent of parties)
3. Action to consolidate ownership (sale with right to repurchase/ PACTO
Siguro because the allegations in the complaint will show that the three DE RETRO sale)
requisites for an interpleader to be filed are not complied with. If it appears
therefore, that it is clear that the property actually belongs only to A, not to B Q: What can be the subject matter of a declaratory relief? (Because to be
and C as claimants. The filing therefore of an interpleader is considered in our honest with you the enumeration is exclusive. Meaning to say if the
law as improper. declaratory relief will not be one of those enumerated by the rules upon which
it is proper to file this petition, then you cannot file therefore a petition for
Although I was telling you already that the Supreme Court and the IBP, declaratory relief.)
advises lawyers to observe restraint in filing a motion to dismiss, instead
grounds for motion to dismiss be used as special and affirmative defenses. ANS:
1. deed
2. will
3. contract or any written instrument
4. statute
5. executive order or regulation
6. ordinance

JS: The rationale why we have to give importance to the enumeration is

because a petition for declaratory relief shall only include those he has
enumerated correctly. Therefore, they are exclusive in character. If it is found
out that your declaratory relief does not involve any of these particular
instruments enumerated, then therefore your action shall definitely not
prosper.

RULE 63 Q: What are the requisites for a petition for declaratory relief?
DECLARATORY RELIEF AND SIMILAR REMEDIES
Ans:
Apparently by the name of the rule itself, it gives you the conclusion that there
are actually two types of actions. One is declaratory relief and the other is 1. There must be an actual justiciable controversy,
other similar remedies. 2. That the issue there is ripe for judicial determination,
3. That the party seeking the relief must have a legal interest in the
Q: What are cases covered by other similar remedies? controversy,
Ans: 4. The controversy must be between persons whose interests are
adverse.
1. Action to quiet title
2. Action for the reformation of an instrument (remedy when one of the In a decided case, it is required that there must be a justiciable controversy
parties was led to believe that he was signing a mortgage, but was because the court in a petition for a declaratory relief is not called upon to
render a mere advisory opinion. But the court I repeat has to conduct a
proceeding and whatever will be the result of the proceeding will give rise to
what we call res judicata. And that is the reason why the first requisite is that
it must be a justiciable controversy.
JS: Apart from knowing these four requisites, what is one ndispensable
principle that we have to remember insofar as filing of a petition for
declaratory relief is concerned?
Otherwise, if that is violated, then the petition is definitely will not prosper
instead you file an ordinary civil action.
And in fact when the petition is pending and that was proven to be violated, it
will not be dismissed but the case will be converted into an ordinary civil
action. Then the court will allow the parties to submit their respective
pleadings.
What is that?
Ans: there must be no breach or violation.
Correct. So that if prior to the filing of the petition for declaratory relief, there
was already a breach or violation of that particular ordinance or of that
particular statute, governmental regulation, you can not file a petition for
declaratory relief. Under the rules you instead file an ordinary civil action.
Or if there is no violation yet, and you were able to file already the petition for
declaratory relief and while the case is pending, and it was proved that there
was already a violation or breach of that particular ordinance, statute, etc., it
will not be dismissed but is converted to an ordinary civil action. Then the
court will allow the parties to submit their respective pleadings.
MOST IMPORTANT CONCEPT YOU HAVE TO REMEMBER insofar as the concept
of petition for declaratory relief is concerned.
So, that is the petition for declaratory relief.
Other Similar Remedies
a. Reformation Of An Instrument
Q: What is usually the kind of contract which is always distinguished with that
of an action of reformation of an instrument?
A: Annulment of Contract.
Q: In reformation, compared to the annulment of contract, where lies the
difference?
A: In reformation, there is consent. But what was agreed upon was not
reflected correctly that is why you have to reform the instrument to express
the true intention of the parties. Because if the others’ consent were vitiated
by VIMFU (violence, intimidation, mistake, fraud, undue influence), the remedy
is not to reform but the remedy is actually to file an action for annulment of
contract.
In reformation, the contract in itself is valid. Meaning to say, all the elements
for a valid contract, like consent, subject matter and capacity of the parties to
contract. However what was written was not the true intent of the parties.
That’s why you have to reform the instrument.
And that is the difference of reformation and annulment of contract.
Q: Now, you will agree with me, that all contracts which do not express the
true intention of the parties may be reformed, EXCEPT:
Ans:
1. Wills
2. Simple donation inter vivos where no condition is imposed
3. When the document is actually void
b. Consolidation Of Contract
Q: In consolidation of contract, what part of your law on sales was this
discussed?
A: Pacto de Retro sale with a right to repurchase.
We talked about legal redemption and conventional redemption as a ground
for extinguishment of a Pacto de Retro Sale. In pacto de retro sale, we talked
MORE about conventional redemption.
Q: How many years to have the so called conventional redemption?
A: 10 years. If the redemption was agreed upon by the parties.
Q: if there was no period agreed upon by the parties on a pacto de retro sale?
A: 4 years.
Q: When will you start counting the 4 year period?
A: 4 years from the date of the contract or the pacto de retro sale was actually
entered into.
Q: so why is there a need to file a petition for consolidation? What will happen
in ten years, or 4 years if no redemption was made by the vendor a retro?
A: Consolidation kaagad noh of ownership.
Q: If this a real property, can you register that without a judicial order?
A: No, there is a need to file a petition for consolidation after the lapse of the
ten or four years respectively. Kasi the consolidation of ownership will not be
registered not unless there is a judicial order. Meaning to say that is only
needed for registration particularly if this is a real property. Kasi, how can you
trAnsfer na the title in your name now as vendee a retro if you were not able I
repeat to register the consolidation before the office of the registry of deeds of
the city or province were the property is located. And under our rules, you can
only register the consolidation if there is a judicial order.
That’s why my dear students, in cases when there is a petition for
consolidation of ownership, one of the defences if you are the vendor a retro,
when what was actually entered into was not a pacto de retro sale but was
actually a real estate mortgage. That is one important defences that should be
considered. Kasi if apparently the court will rule that if originally it was actually
a real estate mortgage, there can be an additional redemption of 30 days (JS:
I hope I am correct) after finality of the judgement. That is if it was proven
that what was actually entered into by the parties is not a pacto de retro sale
but was actually a real estate mortgage.
c. Action To Quiet Title
Q: Action to quiet title. The same ito with recovery of ownership, recovey of
possession, reconveyance, you want to what?
A: You want to remove a cloud or a doubt on the title of a property. At the
end of the day, it is actually an action where one claims for ownership of the
property.
In an action for quieting of title, the jurisdiction depends upon the assessed
value of the property.
RULE 64
PETITION FOR CERTIORARI
Q: How many copies?
Ans: 18 copies including the all original copy of the decision or the certified
true copy certified by the clerk of court of the court where the decision was
rendered.
If the court finds merit in the petition, the respondent shall require to
submit its comment within 10 days as provided for the rules and also
within 18 copies.
Q: Effect?
Ans: the filing of the petition shall not stay the execution not unless the
appellant court issue a writ of temporary restraining order or a temporary
restraining order
Q: Difference between rule 65 and 45?
Ans: in 45 the filing of the petition shall stay the execution.
 3. When there is a certain special consideration for public welfare, for
RULE 65 public policy
PETITION FOR CERTIORARI 4. When the interest of the government would be prejudice
5. –
If aggrieved in the decision of the COMELEC or Commission on Audit go 6. –
directly to the Supreme Court.
Q: Certiorari involves usually what kind of issue or error?
Ground: grave abuse of discretion amounting to lack or excessive use of Ans: errors of jurisdiction when the court or quasi-judicial agency commits
jurisdiction. grave abuse of discretion amounting to lack or excess of jurisdiction

Distinction Q: What is the common procedure in filing certiorari, prohibition and

mandamus?
Certiorari Prohibition Mandamus Ans: period (within 60 days from the receipt of the judgement order, subject
Purpose An to correct an To prevent the To compel the to such petition)
act perform of commission or performance of
the respondent carrying out of the act desire Q: Where to file
an act Ans: concurrent ( SC, CA, Sandigangbayan, RTC)

With respect to Only Discretionary and Only ministerial Q: Can it be extended?

the act sought Discretionary act ministerial act act Ans: yes, but just for most compelling reasons but not more than 15 days
to be control
As to the Court, tribunal Court or tribunal Court or tribunal Q: Is there a difference in terms of procedure of certiorari, prohibition and
respondent etc. (exercising exercising exercising mandamus are filed in the Supreme Court, court of appeals to that filed to the
judicial or quasi- Judicial or non- Judicial and non- RTC?
judicial power) judicial function judicial function Ans: in RTC, it is not needed to copy furnish the respondent but necessary in
SC and CA. RTC will issue an order for comment and summon the defendant

Discretionary act is the power to determine the law (ex. You cannot compel
the college of law to allow you to graduate)
Ministerial act are acts done which requires neither exercise of official
discretion of judgement
Common element/ requisite
-there is no plain, speedy and adequate remedy (for example, if appeal is the
adequate remedy, you cannot resort to this actions)
Q: Who shall be included as a respondent?
A: public respondent (like judges of the court who rendered judgement but
the court cannot compel the judge to file a comment unless ordered by the
CA) and private respondent
Q: What is the purpose of filing Motion for Reconsideration before filing
petition for certiorari under rule 65?
Ans: in order for the court of quasi-judicial agency to correct its error (it is
mandatory to file MR) pro forma rule only apply in rule 45

Exception: Exception:
1. When the order is a patent nullity 1. When the order is patent nullity
2. When the appeal is not the speedy or adequate remedy 2. When it is shown that the petitioner is deprive of due process
3. When there is an extreme urgency
 4. – As far as quo warranto against Corporation are concerned, this is basically
5. – under the provision of the Corporation Code of the Philippines.
6. –
7. – There are kinds of private corporation, quo warranto here refers to private
8. – corporation organized under Philippine laws. Major classifications: de jure, de
9. – facto and corporation null and void from the beginning.

The order of the court will not stay unless a court orders a writ of preliminary A de jure corporation is a corporation without defect; a corporation is null and
injunction of temporary restraining order void if the corporation failed to comply with the mandatory requirements for
the formation of a corporation, meaning to no corporation exists at all; a de
facto corporation is not void but it exists but failed to comply with the
provisions of the Corporation Code but these provisions are not mandatory
RULE 66 requirements for the formation of a corporation.
QUO-WARRANTO
How To Question?
Q: Meaning? Under the provision of the Corporation Code of the Philippines, you
cannot attack a de facto corporation collaterally; the law does not
Ans: The literal meaning of quo warranto meAns, “By what authority” siya,
allow the attack of a de facto corporation collaterally. If you want to
that is basically the concept my dear students. In the object of quo warranto is
attack the validity of a private corporation you do that by meAns of
to determine the right of a person to the use or exercise of a franchise or
quo warranto proceedings. That’s why this will be third against whom
office and to oust the holder from its enjoyment viz a viz if his claim is not well
the verified petition is filed. A de facto corporation actually exist as
founded or if his forfeited his right to enjoy the office, that is the definition of
such however, it failed to comply with certain requirements as
what is a quo warranto.
provided for by the Corporation Code of the Philippines to make it a de
Q: How commenced? jure corporation. It exist as such, it is not a null and void corporation,
it exist as such but there are certain problems in the formation of the
Ans: Now under the 1997 Rules of Procedures, it is commenced by filing a corporation so that you can attack it but not by meAns of a collateral
verified petition. attack but you attack it by meAns of filing a quo warranto proceedings.
Q: Against whom it is filed? That’s why it is covered also by this concept of quo warranto under
Rule 66 of the 1997 Rules of Civil Procedure.
I repeat you commence the filing of a quo warranto petition under rule 66
against the following persons, so meaning to say these persons will be the Q: Who Are The Petitioners?
respondents: The petitioner here, can be the Republic of the Philippines represented by the
1. Persons who usurps a public office, position or franchise, Office of the Solicitor General or in some instances maybe represented by a
2. A public officer who performs an act constituting forfeiture of a public Public Prosecutor or a private person may also be a petitioner.
office, Example:
3. De facto corporation.
If that private person is actually entitled rightfully to that particular public
QUO WARRANTO Under The CORPORATION CODE office or office so to speak but he was deprived of his right to hold that
particular public office or position because allegedly this was unlawfully
usurped by the person against whom he files the petition, then definitely he
can file quo warranto proceedings.
Q: Who May Represent?
I repeat, this can be filed by the Republic of the Philippines and once this is
filed by the Republic of the Philippines this one is always represented by the
Solicitor General. In all Government cases, against or for the Government, the
Government is always represented by the Office of the Solicitor General.
Although under Rule 66, that the Government can also be represented by a
Public Prosecutor. Again, the petition can also be commenced by a private
person who claims to have a better right to that particular public office or
position which is unlawfully usurped by another.
Venue, Difference Thereof As To Who Filed The Petition
Although, that if this is a quo warranto petition which is when filed by the
Solicitor General, that the venue can be the RTC of the City of Manila lang, the
Court of Appeals or the Supreme Court.
I repeat, as far as venue is concerned, because remember a quo warranto
petition can be filed before the Supreme Court, it can be filed before the Court
of Appeals, it can be filed before the Sandiganbayan in the exercise of its
appellate jurisdiction, it can be filed before the Regional Trial Court.
However, if it is the Solicitor General which will file the quo warranto
proceedings in behalf of the Republic of the Philippines, the law is very clear,
that it can only be filed in the RTC of the City of Manila or it can be filed before
the Court of Appeals or it can be filed before the Supreme Court.
Take note of that because it entails a little difference in terms of who, in terms
of the venue where to file the quo warranto proceedings, depending on who
would be the petitioner.
Although as a general rule, this quo warranto proceedings is filed in the place
where the petitioner resides, like what I said, depends lang siya if this is the
Solicitor General, because it can be filed before the RTC of Manila, the Court of
Appeals, and the Supreme Court.
As To The Need For Leave Of Court
Now, another thing that you have to determine and remember in connection
as to the petitioner or the person who would file the quo warranto petition,
one decision of the Supreme Court said that, a private person is allowed to file
a quo warranto proceeding without the intervention of the Solicitor General.
In which case, according to one decision of the Supreme Court, if this is a
private person who files a quo warranto proceeding, he can file it without need
of leave of court. However, it can also be filed by the Solicitor General’s Office
or by the Public Prosecutor in behalf of that person, but if this is what happens
there has to be a leave of court. So that is one thing that you have to closely
consider.
In several decisions of the Supreme Court, the honourable Supreme Court
ruled that a private person is allowed to file a quo warranto petition without
the intervention of the Office of the Solicitor General.
In fact, if it is a private person who files a quo warranto petition, he can do so
without need of leave of court. However, he may also be represented by the
Office of the Solicitor General or the Public Prosecutor, which will file in his
behalf, however, in this particular instance there is a need for a leave of court.
So please take note of that particular, well a qualification, as far as the filing of
a quo warranto petition depending on who the petitioner will be.
Prescriptive Period
Prescriptive period, very important, in quo warranto in relation to a public
office because remember later we will also be discussing quo warranto under
the Omnibus Election Code of the Philippines.
The prescriptive period, I repeat, is one year after the cause of the ouster or
the right of the petitioner to hold such office or position arose. Take note, the
person aggrieved because he is the one rightfully entitled to hold that public
office, should file the same within a period of one year only, counted from the
time the ouster or the right of the petitioner to hold such office or position
arose. So if you fail to file that, forever barred because that is the prescriptive
period.
However, if you’re able to prove in court and you eventually were able to seek
a favorable judgment, you are also allowed to file an action for damages and
the action for damages should also be filed within one year from the entry of
judgment, so please take note of that.
I repeat, once you file a petition, you were successful because the petition was
granted you won in the petition, you can I repeat, file an action for damages
against the respondent and the prescriptive period for filing of an action for
damages is also one year but you count the one year period from the entry of
judgment in that particular petition for quo warranto. I was telling you in Rule
39, if the court finds out that the judgment is already final and executor, then
the court now will issue an entry of judgment and once the court issued an
entry of judgment, it is already indubitable, without doubt that the decision is
already final and executory. Now you can already file a corresponding motion
for execution, under Rule 39 of the 1997 Rules of Civil Procedure.
Quo Warranto Under The Omnibus Election Code
Now we are now moving to quo warranto under the Omnibus Election code,
that the concept of quo warranto is always distinguished to election protest,
this two will always go together. Diba, you have two ways to question the
winnings of a candidate, it is either a quo warranto or an election protest.
Q: which court has jurisdiction for election protests of the following,
1. Municipal - RTC
2. Barangay - first level courts
Difference:
The major difference between quo warranto under the Omnibus
Election Code and that of an election protest is the cause of action, in
quo warranto the grounds would be ineligibility to the position or
disloyalty to the Republic of the Philippines. Another, in election
protest it is the irregularity in the conduct of elections.
Major Distinction of Quo Warranto; As To Elective Or Appointive
Office.
Quo warranto can be on an elective office or an appointive office, and these
are the major distinction:
1. In quo warranto regarding the elective office the governing law is the
Omnibus Election Code while in appointive office is Rule 66 of the 1997
Rules of Civil Procedure.
2. In elective office the issue is always the eligibility of the person elected, in
appointive is the legality of the occupancy of the office by virtue of a legal
appointment.
3. In the first, in elective office you file it within a period of 10 days after the
proclamation of the results of the election. In appointive office, is 1 year
from the time of the ouster or the time the right to hold the office arose.
4. Quo warranto in relation to elective office is brought to the COMELEC
depending on whom, RTC or the first level courts. For quo warranto in
appointive office, Supreme court, Court of Appeals, RTC.
5. In elective office, the quo warranto maybe filed by any voter. In appointive
office, the petitioner is always the person entitled to the office.
6. In elective office, the person not entitled to the office will be unseated. In
appointive, if the one who filed is actually entitled to the position, he is
placed in that particular position.
RULE 67
EXPROPRIATION
When it comes to expropriation you have to distinguish if it is a local
government or the national government, because if it is the LGU you have to
follow the provisions of the Local Government Code particularly section 19 of
RA 7160, if it is the National Government and other entities it is the provisions
of Rule 67 that governs, but if it is the National government for infrastructure
projects it is governed by RA 8974.
Eminent Domain
The power which gives rise to expropriation is the power of eminent domain.
Even if there is no enabling law, it can still be exercised by the Government
being an inherent power. The power is eminent domain the right is
expropriation.
Expropriation By Local Government Units
Expropriation to be valid otherwise it can be dismissed outrightly, under
section 19 of RA 7160, the following requisites must be complied:
1. There must be an ordinance authorizing the local chief executive to file and
exercise the power of eminent domain and eventually file an expropriation
proceeding,
2. Exercised for public welfare or for the benefit of the poor and the landless,
3. Payment of Just compensation.
Important:
Very important, before they file the expropriation proceedings, the
local government unit should have first a valid offer to the owner of
the property sought to be expropriated but the offer was declined.
Judicial Prerogative
In the case of EPSA vs Dulay, which nullified the basis for the just
compensation as based on the assessed value as assessed by the
assessor or by the owner whichever is lower. The matter of
determining the just compensation is a matter of judicial prerogative.
Stages Of Expropriation
There are two stages in expropriation proceedings.
1. To determine the authority of the plaintiff to expropriate, so if after trial the
plaintiff was able to prove the requirements set forth by the rules, we issue an
order of expropriation or condemnation, which case is appealable because now
take note this is the first special civil action where the law allows multiple
appeals, notice of appeal is not allowed there must be a record on appeal
within 30 days to the Court of Appeals.
2. After the issuance of order of expropriation or condemnation, the next step
is the determination of just compensation which under our rules we are to
appoint not less than 3 commissioners which will aide the court in determining
the just compensation and again that order on the just compensation is
likewise appealable to the Court of Appeals.
Q: The order of condemnation or expropriation is appealable, will it prevent
the court from proceeding to the next stage?
Ans: No, even if there is an appeal, the court will still continue on determining
the just compensation because anyway if the order is reversed by the
appellate court there can be appropriate restitution which can be made
pursuant to the rules.
Verified Complaint; Content Thereof.
The verified complaint should contain the following:
1. You state with certainty the right for expropriation and the purpose.
2. Describe the real or personal property sought to be expropriated.
3. Join as defendants all persons owning or claiming to own, occupying any
part of the property or interest therein, showing as far as practicable the
interest of each defendant. If the plaintiff cannot determine the owner, an
averment to that effect must be made in the complaint.
Upon filing of these, summons shall be served to the defendants.
Answer
The Answer of the defendant, if he has an objection he will file his Answer or
maybe raise valid defences. All defences must be alleged in the Answer
otherwise deemed waived, but he may file a leave of court for proper
amendment of Answer.
If the defendant does not have any objection to the complaint or he
does not have any defence on his Answer, he need not file any
Answer, what he will file under the rules is just a notice of appearance
and a manifestation to the court that he offers no objection to the
expropriation proceedings of the property.
Prohibited Pleadings
Unlike in ordinary civil actions, counter claim, cross claim, third party complaint
are not allowed in expropriation proceedings as provided in section 3.
Q: if the defendant in an expropriation proceeding did not file an Answer does
that mean to say that he is already deprived of participating in the subsequent
proceedings?
Ans: No, because he can still participate in the determination of just
compensation even if apparently he did not file his Answer. He is not deprived
by the law of his right to participate as far as the second phase of
expropriation proceedings is concerned and this is the determination of just
compensation.
Entry of the applicant is allowed upon filing of the complaint and if the
applicant under sec 2 of rule 67 was able to deposit with the proper
government agency an amount equivalent of the assessed value of the
property subject of the expropriation. But we have a to make a
qualification in connection with local government units which are the
applicant for expropriation because it requires 15% equivalent to the
assessed value of the property for purposes of taxation however if
this is a nat’l gov’t which the applicant for expropriation, they must
pay the entire value of the property to the owner (so that is the basic
difference, NOTE)
Under rule 67, there can be entry upon deposit to the proper gov’t agency
considered which under our local govt unit is equivalent to 15% but you have
to take note however that as far as nat’l gov’ts are concerned, those
expropriation are covered by RA 8974.
Under RA 8974 when it is the nat’l govt that which will expropriate mga lands
because these are needed for gov’t infrastructure projects and i told you
before that if this is so, courts are not allowed to issue a TPO or Writ of
Preliminary Injunction because under our rules, it is only the SC which is
allowed to issue a WPI or TPO. Between rule 67 and that of RA 8974, you
have to take note that the law says that the nat’l gov’t upon filing of the
complaint and so that it will be able to gain entry into the property upon the
filing of the complaint the law requires that it must immediately pay 100% of
the value of the property based on the current relevant zonal valuation of the
BIR & the value of the improvements and/or structures thereof as determined
by the sec. 7 of RA 8974.
Note: So if the question does not specify my dear students, w/c is the
applicant whether it is an LGU or nat’l govt covered by RA 8974, take
note of the requirements as far as entry of possession is concerned
upon filing of the complaint. This is both allowed in sec 2 of rule 67
and likewise in RA 8974 but there is a difference as far as the deposit
is concerned. But be that as it may whether sec 2 of rule 67 or
whether under RA 8974, there must always be a notice to the
defendant (take note) before court issues the corresponding
writ of possession. In fact in the case of Biglang-Awa which I
think is in the book of Regalado, the moment that the applicant for
expropriation was able to comply with the requirements set forth in
sec 2 for rule 67 & likweise the RA 8974 and there was notice on the
defendant it becomes ministerial on my part as a judge to issue a
corressponding writ of posession, so that’s the recent decision to allow
the applicant to actually gain entry to the property sought to be
expropriated.
Q: what will happen to the 15% in section 2?
Ans: It will serve as an advanced payment of the value of the property in case
the court on the trial of the merit of the case talaga rendered judgement
granting the order of expropriation in favor of the applicant so it constitutes
talaga an advanced payment. Of course if later on you lost in the case, there
will be a proper restitution anyway as provided by the rules but we are talking
here about entry of the applicant upon the filing of the complaint. The
similarity is that there is always notice to the defendant. The difference man
lang is how much.
If the court under trial on the merits is convinced that there is a lawful purpose
for the granting of the expropriation to the petitioner-applicant, the court will
issue an order of expropriation which is appealable because expropriation is
one of the cases on which the law allows multiple appeals. The order actually
is as if a judgement but we dont call it a judgement but an order of
expropriation, my dear students, okay? I repeat, even if the order issued
by the courted granting the expropriation is appealed by the
defendant, that will not prevent the court from proceeding to the
second stage of expropriation proceeding and this is now the
determination of payment of just compensation. And under our rules in
connection with this particular ascertainment of just compensation, very clear
in sec 5 or rule 67 that the court shall appoint not more than three
commissioners to ascertain the appropriate just compensation for the property.
Q: If the party objects, it is given how many days?
Ans: 10 days! Objections to the appointment may be made within 10 days
froms service of the order of the apptment and I repeat parties during the
proceedings are allowed to present their respective evidence to prove their
respective claims on how much is the just compensation of the property.
Remember, I told you in the famous case of EPSA vs DULAY, the
compensation is based on the assessed value as declared by the owner and
the assessed value declared by the accessor whichever is higher is aready
nullified because the matter of whether how much is the JC is actually a
judicial prerogative.
Take note also that the appointment of a commissioner is likewise appealable
including the order on the compensations found out by not more 3
commissioners is likewise appealable, my dear students. In fact under the
rule, after the presentation of evidences before them, they should as soon as
possible make a report within 60 days from the time they were notified
of their respective appointments although the 60-day period may be
extended at the discretion of the court. Upon submission, the parties are
always given copies to this report of the commissioners so that the parties can
actually file their respective objections to the report of the commissioners
which is under our rules they are given 10 days from receipt. The court may
either accept the report or reject or accept part or reject the other part.
If the court accepts the report, the court shall issue a judgement therefor in
accordance with the report pero pag the court rejects the report of the
commissioner, under sec 8 the law says that the court may appoint again new
commissioners or recommit the same to the commissioners for further report
of facts. Here the court would always consider the best interest of all parties
concerned and likewise said the judgement of the court if it accepts the report
of the commissioner is an appealable judgement being a case where the court
allows multiple appeals. Court may also order payment of interest because
from the time of the filing until after the award is actually given by the court,
there is always a lapse of time there and diba in our judgement we also have
to specifiy payment of legal interest from the time property was actually taken
by the applicant. So please note!
Q: what is the effect if the court has already rendered judgement and on the
JC but the JC is not paid? Does that particularly mean that the owner of the
property will recover the property?
Ans: No, but if not paid w/in 5 years, that’s the time my dear students that
the owner concerned now allowed to recover the property. So I repeat,
non-payment of JC as mandated by the rules does not entitle
immediately the owner to of the land to recover possesion of the
exproriated property because under our rules the expropriator is
given 5 yrs from the finality of the judgement in the
expropriation proceeding to pay the same. If there is no
payment, definetly within 5 yrs, this is now the time where the
law allows the landowner to recover possesion of the subject
property. And last lang na concept, title to the property passes from the
owner to the expropriator after full payment of the JC.
RULE 68
FORECLOSURE OF REAL ESTATE MORTGAGE
There are 2 kinds/ modes of foreclosure. One is judicial under rule 68 and
extra judicial.
Of course you know what is a mortgage? Correct? It is an accessory contract.
What is the principle contract? LOAN!
Definitely it is loan as a principle contract tapos if you want to use a real
property by way of security you execute a contract of real estate mortgage.
But if you want to use personal property by way of security to the loan, you
execute a chattel mortgage.
Q: Where lies the difference between the procedural requirements in terms of
real estate mortgage and chattel mortgage?
Ans: For purposes of validity.
Q: Is an unregistered real mortgage null and void?
Ans: Diba registration is only needed to effect as far the whole world or third
person are concerned. Because even if a real estate mortgage is not
registered, it is nevertheless valid and binding between the parties. Okay?
Pero if chattel mortgage if not registered with the chattel mortgage
registry, the chattel becomes null and void because under the Civil Code on
the validity of chattel mortgage, the law says that it must be registered with
the chattel mortgage registry. Failure to register, the chattel mortgage would
mean that the chattel mortgage even between the parties is null and void.
Q: If the loan is covered by a mortgage? What are the two remedies which
can be availed of by the mortgagee in case of non-payment of the loan by the
mortgager?
Ans: 1) Collection of sum of money, or
2) Foreclosure which could either be judicial foreclosure or extrajudicial
foreclosure.

Easiest money is with extrajudicial foreclosure because you only file that with
the office of the clerk of court and everything is done by them, including the
sheriff. Under the court, it will take time because we have to go thru the
ordinary trial because it is also used in judicial foreclosure of mortgages.
There must be a stipulation that in case of non-payment of loan or
violations of the mortgage, you are allowed to resort to extrajudicial
foreclosure under ACT 3135. Without it, you have to resort to judicial
foreclosure. I would just like to remind you that it is not true that
only non payment of loan will justify foreclosure. Any other violations
in the mortgage would actually justify foreclosure.
Q: How come that in case of non-payment of the loan, you really have to
result to foreclousre of mortgage? Can there be a stipulation in the Real Estate
Mortgage that ownership shall be automatically trAnsferred to the mortgagee?
Ans: NO. You call it as pactum commissorium. That is the reason why!
Including upset price---that if property is sold at public auction, it must be sold
at this price, that is called KIPO! So there are two prohibitions in mortgage.
One is pactum commissorium and the other is KIPO or upset price.
Q: Dragnet clause?
Ans: Is a provison in which the mortgage is allowed to secure past, present,
and future indebtedness and that is valid. And the SC has consistently ruled
that mortgages given to secure future advancements is are actually valid and
legal contracts. That is not only limited to that. It can actually secure a future
loan and the law says it is allowed. NOTE PACTUM COMISSORIUM, KIPO,
DRAGNET CLAUSE. First two are not valid. Last one, valid.
Q: Where lies the difference between legal redemption and equity of
redemption?
Take note lang, file a complaint for judicial foreclosure, diba to comply with
the requirements under sec. 1. What are these requirements?
Ans:
a. Date, due execution of mortgage
b. Assignment of mortgage
c. Names and residences of mortgagor and mortgagee, description of
subject property, statement if date of the note and other documentary
evidences by way of evidences to secure the mortgage, the amount
paid and unpaid thereon, and the name and residences of all person
who have or claim interest in the property in question. You must
include all of them because they are required by sec 1 of rule 68.
Like what I said ha, the proceeding are governed just like an ordinary civil
action.
Q: In case you won in the case, the court renders judgment there. And the
judgment should contain what?
Ans:
1. ascertainment of the amount due to the plaintiff including interest and
other charges approved by the court
2. a judgement of the sum due, 3) an order that an amount duly paid by
the court or of the judgement obligee within a period of not less than
90 days no more than 120 days from entry of judgement (note days bec
very important in discussing legal redemption and equity of redemption),
in case of default of such payment, property shall be sold at public
auction to satisfy the decision. Those are supposed to be the dispositive
portion of the court renders a judgment granting of course the the
jducial foreclosure of a particular mortgage.
Q: Are legal redemption and equity of redemption allowed in judicial
foreclosure of mortgage? Are these allowed in extrajudicial foreclosure?
Ans: NO as a general rule. What is only allowed in judicial foreclosure is equity
of redemption unless it involved the mortgage of banks and other quasi-
banking corporations or institution, in which the court allows not only equity of
redemption but also legal redemption. And extrajudicial foreclosure, if it is
legal redemption.
Q: When can mortgagor exercise equity of redemption?
Ans: The law says not less than 90 but not more than 120 from the time of
entry of judgement but it can still be extended as long as the court did not yet
confirm the sale. In legal redemption, it is always one yr from the time of the
registration of the sheriff certificate of sale in the registry of deeds of the city
or province where the property is located.
The concept of EOR & LR will give us the concept of the sale of the mortgaged
property. Now under our rules, if the mortgagor was not able to redeem the
property within a period of 90 -120 days definitely, the mortgagee should file a
motionf or the sale of the mortgaged property because the rule is very clear
that sale can only be ordered by the court upon motion of the morgtagee sec.
3. So if there is no payment within the 90-120 days, if you are counsel of
mortgagee, file a motion for the sale of the mortgaged property because the
court cannot order the sale not unless there is a motion duly filed by the
mortgagee pursuant to sec 3 of rule 68 of what we are discussing tonight.
Q: In connection with a motion for sale of mortgaged property, is it required
that mortgagor must be notified? And what is the effect if the motion was
granted by the court without notice to morgtagor? Would it mean that if the
sale is based upon the order of the court, it becomes null and void?
Ans: NO! It can be granted even without notice to the mortgagor in fact, this
motion for sale of mortgage property because no payment made by the
mortgagor within the 90-120 days is actually considered as a non-litigated
motion. Meaning it can be an ex parte motion. But after court granted order of
the sale of the particular property, the next step is it must be confimed by the
court. This were the law is very strict because as far as confirmation of the
sale is concerned, this requires a notice and hearing because dapat under our
rules, the mortgagor is allowed to show cause while sale shall not be granted
or why the sale shall not be confirmed unlike motion for sale where it can be
done ex parte because it is a non-litigable motion as far as motion for
confirmation of the sale is concerned, the law is very strict, there must be
notice and hearing because if this was not complied then the order confirming
the sale becomes null and void. The reason is to give the mortgagor a chance
to show causes why the sale shall not be confirmed. So there is strict
requirement compared to that of a motion to sale of mortgaged property and
very important too because the cut-off date or exercise of EOR in JF is until
after issuance of the order of court confirming that. It can be within 90-120
but can still be extended until after sale has been actually confirmed by court.
That is another reason why in case of confrmation, it shall only be done by
meAns of notice and hearing.
Just as a review:
Motion on the sale of the property -which can be done ex parte because it
is considered as a non-litigated motion.
Confirmation of the sale -this can only be done if there is notice and
hearing to afford the mortgagor to at least raise certain grounds as to why the
sale should not be confirmed. It is the cut-off period for the exercise of the
equity of redemption on the part of the mortgagor. That is the reason why is it
that that there should be a notice and hearing because if none, the order of
confirmation of sale will be considered as null and void.
Q: What will happen if after the sale of the mortgaged property, there is an
excess/surplus?
Ans: Excess should be returned to the mortgagor.
Q: if there is a deficiency of sale?
Ans: the plaintiff is allowed to file a motion for the purpose of proceeding
against the defendant as far as his unpaid balance is concerned. The recovery
of the deficiency shall only be made by a motion because under settled
jurisprudence, you cannot file a separate independent action to recover
the deficiency. Motion is appealable.
 Once the decision of the court is already final and executory and the
sale is confirmed by the court, the right of equity of redemption has
already lapsed without the mortgagor exercising the same, under the
rules, the mortgagee can file for the motion for the issuance off a writ
of possession.
 A certified true copy of the order confirming the sale is necessary to
be registered in the Registry of Deeds to the city or province where
the property is located because the basis for the cancellation of the
title by the mortgagor in favor of the mortgagee is always anchored to
this particular fact because the mortgagor did not exercise his right of
equity of redemption. This is done after the confirmation of sale
because this is the cut-off period for the mortgagor to exercise his
right of equity of redemption.
Note: Although in judicial foreclosure of mortgage there is no legal
redemption, there is only equity of redemption, there is an exception:
except in cases of mortgages involving banks. Because aside from the
exercise of the equity of redemption, the mortgagor of mortgages with banks
is likewise given the so called legal redemption which under our rules is
given one(1) year from the registration of the Sheriff’s Certificate of RULE 69
sale to the Registry of Deeds of the City or Province where the PARTITION
property is located. I repeat, the equity of redemption is exercised
within 90 days to 120 days but can be extended as long as the sale is CERTAIN PRINCIPLES
not yet confirmed by the court.
* Partition presupposes the existence of co-ownership . If a party who filed the
Summary of Differences: case claims that he is only the absolute owner of the property subject of the
partition, then definitely that should be dismissed. It might be another case
Differences Judicial Foreclosure Extra-Judicial but definitely not a case for partition. It might be a case for recovery of
Foreclosure ownership or possession, reconveyance or quieting of title --- that is not the
1. Governed by Governed by rule 68 Governed by Act 3135 proper subject of partition.
Must be stipulated at
the contract * Co-ownership between two or more persons. That is the meat of the cause
2. Involves Filing of an Does not require the of action of the special civil action (SPA) under Rule 69 which we call as
independent action filing of an action. What partition.
you must do is to make
the application and file * Basic under civil law subjects . In the sense that if a property is co-owned by
to the office of the clerk several persons, under the provision of the New Civil Code of the Philippines
of court (also called (NCC), no co-owner shall remain or obliged to remain in the co-ownership.
foreclosure done by a Therefore, it necessitates one or two to file the SPA for partition, which is
notary public) synonymous with ordinary civil actions in terms of procedure.
3. Redemption Equity of redemption Legal Redemption
only (except in banks) * One co-owner may demand any time that the property be now subjected to
4. Judgment There can be No judgment for partition among them except in the following instances as mandated under
deficiency of deficiency (there can be Art. 494, Art. 495 and Art. 1084 of the NCC.
Judgment deficiency)
5. Recovery of Via motion Filing an independent Art. 494. No co-owner shall be obliged to remain in the co-
Deficiency action (act no. 3135 ownership. Each co-owner may demand at any time the
does not prohibit the partition of the thing owned in common, insofar as his
mortgagee to recover share is concerned. Nevertheless, an agreement to keep
the deficiency) the thing undivided for a certain period of time, not
exceeding ten years, shall be valid. This term may be
extended by a new agreement.
A donor or testator may prohibit partition for a
period which shall not exceed twenty years.
Neither shall there be any partition when it is prohibited
by law.
No prescription shall run in favor of a co-owner or coheir
against his co-owners or co-heirs so long as he expressly or
impliedly recognizes the co-ownership.

Art. 495. Notwithstanding the provisions of the preceding
article, the co-owners cannot demand a physical division of
the thing owned in common, when to do so would
render it unserviceable for the use for which it is
intended. But the co-ownership may be terminated in
accordance with Article 498.
Art. 1084. With the condition imposed upon
voluntary heirs before they can demand partition as not
yet deemed fulfilled.
* In connection with prescription, the right to demand partition and
correspondingly to file an action to demand partition of a property co-owned
cannot be barred by prescription as long as the co-ownership exist. But even
then, while the right to demand partition does not prescribe, there might be
instances when the co-owner might also acquire ownership by meAns of
prescription if he can prove the requirements set forth through prescription
depending on whether you are in good or bad faith:
Good faith – 10 years, bad faith – 30 years; and prove that you were
in open, adverse, and uninterrupted possession from the very beginning.
Based on a written contract, the prescriptive period is 10 years from
the date the contract is entered into.
* Under the rules, there are two ways by which a property co-owned may be
partitioned.
1. Agreement of the parties – justification: actually allowed and authorized
under Sec.12.
Sec. 12. Neither paramount rights nor amicable partition
affected by this Rule — Nothing in this Rule contained shall be
construed so as to prejudice, defeat, or destroy the right or
title of any person claiming the real estate involved by title
under any other person, or by title paramount to the title of
the parties among whom the partition may have been made;
nor so as to restrict or prevent persons holding real estate
jointly or in common from making an amicable partition
thereof by agreement and suitable instruments of conveyance
without recourse to an action. (12a)
2. Legal concept anchored under Rule 69 - if some and not all shall agree to
the partition the property. A consequence of parties’ refusal to actually enter
into agreement of partition.
PROCEDURE
* When you file a case for partition, it should be filed by a co-owner who has a
right to compel the partition of the property and he should include all the co-
owners and those who have interest over the property as indispensable parties
because it might result to the filing of multiplicity of suits which is not allowed
under the rules.
* Specify the property subject of the particular partition among others.
* First stage is governed by ordinary civil action – where the complaint is filed,
then summons shall be served for the defendants to file their Answer, plaintiff
may opt to file a reply, there will be pre-con, pre-trial, and after all of this then
court renders judgment.
Here after trial, the court should consider 1) to determine whether or not the
plaintiff is the real owner of the property in question. After this, 2) the court
will likewise determine WON there is indeed a co-ownership really exist among
the plaintiff and defendants. And that 3) the partition is not prohibited under
Articles 494, 495 and 1084 of the NCC.
* If it is proven, the court will issue an order of partition (judgment of the
court) considered as a final order which is also appealable within 30 days with
notice of appeal and records on appeal.
Q: Where to file?
A: Only at the RTC. Partition is incapable of pecuniary estimation unlike
reconveyance, quieting of title, accion publiciana, reinvidicatoria, even
annulment of contracts if the ultimate objective is to recover ownership and
possession wherein jurisdiction depends on the assessed value.
 *Venue is on the place where the property is located. If there are
several properties situated in different provinces, you can file the
partition in any of the RTC where each of the properties is located.
Q: Usually in a partition action, especially if the property is earning fruits (civil,
natural), would you include that in your complaint as a prayer for accounting
of the proceeds of the property?
A: YES. Because you are not allowed to file a separate civil action for
accounting of the proceeds or fruits of that particular property. Otherwise, it
will forever be barred. If it is included, after the court has already found out
that partition is proper, in the order of partition, the court will likewise issue an
order for the accounting of the proceeds which is also a final order and being
as such is also appealable.
* Actually in the order, the court in its decision will direct that the
parties by themselves will partition the property. If they can agree to
make the partition by themselves, submit that to the court so that the
court will confirm that agreement of partition among the parties.
* The order of partition and the order confirming the partition shall be
registered in the Office of the Registry of Deeds (ROD) in the city or
province where the property is located. It is only when the parties will
not be able agree by themselves to partition the property that the next
step will now come in and the court now will appoint not more than 3
commissioners who are competent and disinterested to make the
partition for the parties. The appointment of commissioners
presupposes that the parties were not able to agree on a partition by
themselves.
* There are instances when the commissioners would found out that
the property cannot be divided without prejudice to the interest of the
parties, in such instance the court may order that the property be
assigned to one of the parties willing to take the same provided he
pays to the other parties such amounts as the commissioners deem
equitable. But if one disagrees that it be assigned, he may also ask
that the property be sold, in which case the court shall order the
commissioners to sell the property at public sale and then divide the
proceeds among themselves. (Sec.5)
* Under the rules, the commissioners shall make… (Sir reading the
provisions)
Sec. 6. Report of commissioners; proceedings not binding
until confirmed — The commissioners shall make a full and
accurate report to the court of all their proceedings as to the
partition, or the assignment of real estate to one of the
parties, or the sale of the same. Upon the filing of such report,
the clerk of court shall serve copies thereof on all the
interested parties with notice that they are allowed ten (10)
days within which to file objections to the findings of the
report, if they so desire. No proceeding had before or
conducted by the commissioners shall pass the title to the
property or bind the parties until the court shall have
accepted the report of the commissioners and rendered
judgment thereon.
Sec. 7. Action of the court upon commissioners’ report — Upon
the expiration of the period of ten (10) days referred to in the
preceding section, or even before the expiration of such
period but after the interested parties have filed their
objections to the report or their statement of agreement
therewith, the court may, upon hearing, accept the report and
render judgment in accordance therewith; or, for cause
shown, recommit the same to the commissioners for further
report of facts; or set aside the report and appoint new
commissioners; or accept the report in part and reject it in
part; and may make such order and render such judgment as
shall effectuate a fair and just partition of the real estate, or
of its value, if assigned or sold as above
provided, between the several owners thereof.
* Take note that Section 7 mandates that upon submission of the report of the
commissioners, the court cannot just automatically accept the report and then
render judgment based on the report without conducting a hearing.
* So we presume that there was a hearing, the court is convinced and the
court now issued a judgment of partition. There is a ruling here allow me to
quote:
“The proceedings had before the commissioners shall not bind the
parties or pass title to property unless the court shall have accepted the report
of the commissioners and rendered judgment thereon. Of course the judgment
shall be recorded in the ROD of the place in which the real estate is situated.”
This can be a basis for the issuance of separate titles as far as the co-owners
are concerned corresponding to their share on the property subject of
partition.
At the end of the day, there are three stages in an action for partition.
1. The order of partition where the propriety of partition is determined.
2. The judgment as to the accounting of the fruits and income of the
property.
3. The judgment of partition.
All of these three are considered final orders and therefore these three are
appealable.
Q: In the action of partition, can the party also determine and compel
expenses incurred for the death of parents or other expenses chargeable to
the estate subject of partition?
A: No. One must file an action for settlement of the estate of the deceased
person. The law does not allow the heirs in the petition matters pertaining to
expenses chargeable against the estate like burial expenses or last illness.
(Feguracion Jerella vs Vioda Defeguracion, August 22, 2006, GR No. 154322)
Q: Can the court refuse to confirm the agreement of the parties?
A: No. The court would always approve it if that is the agreement of the
parties. We should even be happy there because that is less work. Our only
work is to approve and confirm the agreement.
RULE 70
FORCIBLE ENTRY AND UNLAWFUL DETAINER
Forcible Entry and Unlawful Detainer cases are two kinds of accion interdictal
together with accion publiciana and accion reivindicatoria. This 2 cases are
within the exclusive jurisdiction of the first level courts and you file the case
where as venue is concerned in the place where the property or any portion
thereof is situated, these cases are governed by the rules on summary
procedure.
I told you that in forcible entry and unlawful detainer the only issue there is
issue on physical possession although if there is any need for the court to
consider the issue of ownership in order to resolve the issue of physical
possession then the court definitely is allowed to do so. That’s why if the issue
is more or less my dear students on ownership and that is the meat of your
case then definitely it is not proper for you to file an action for forcible entry or
unlawful detainer. It might be an accion reivindicatoria or recovery of
possession as the case may be but definitely not FE or UD cases, take
note of that.
Q: That’s why you notice that even if another case for example is filed and
that case would more or less involves questions of ownership, would that
mean that will prevent from further continuation of the case for FE and UD?
A: No. There can be no res judicata, you cannot moved to dismiss based on
letis pendentia because remember an action for reivindicatoria concerns, I
repeat ownership while FE and UD concerns physical possession so even if
there is cases filed while FE and UD are pending but these cases are more or
less for the recovery of the ownership, that will never affect FE and UD which
were filed. Not even violation of non-forum shopping requirement because it
only involves two cases with the same issue or of the same cause of action.
And definitely, one is for ownership and one is for physical possession so
definitely no violation of non-forum shopping requirement.
These are the cases where even in first level courts can issue a writ of
preliminary injunction or temporary restraining order. In fact this is another
exception to our rule on preliminary injunction that dapat the act is about to
be done because if the act was already done it becomes useless for you to file
a writ of preliminary injunction. One of the Exception is when the act is
continuing in nature, remember, and one of these examples are the
cases of FE and UD. Ok just a review, in connection with preliminary
injunction.
FORCIBLE ENTRY UNLAWFUL DETAINER
1. The possession is illegal from the 1. The possession is legal from the
very beginning because the very beginning, it only becomes illegal
defendant was able to enter when a demand is sent to him by the
possession by meAns of threat, plaintiff for him to vacate the
force, intimidation, stealth and
strategy (grounds)
2. You must alleged in your
complaint that the plaintiff was on
prior physical possession of the
subject property, absence of which
can led to dismissal of the case,
because it is an indispensable
requirement when filing forcible
entry cases
3. Demand is not required as the
entry is illegal from the very
beginning.
Exception: if by meAns of stealth,
demand to vacate is required.
property but despite of the receipt of
the demand letter, the defendant
refuses to vacate. From then on, the
possession of the defendant is
deemed illegal.
2. It is not required.
3. Demand to pay and to vacate is
required (4)because you count the
prescriptive period of one year to file
an unlawful detainer case from the
receipt of last demand.
(Exception: if the subsequent demand
letters were only reminders of the
first demand letter, then the count is
from the first demand letter.)
Exceptions to the rule that demand is
required:
 If the purpose is to terminate
the lease by reason of
expiration of term and not by
non-payment of rentals or he
failed to complied the terms
and conditions of lease.
 The purpose of suit is not for
ejectment but the
enforcement of the terms of
the contract
 Defendant is not a tenant but
a mere intruder.
4. Gen Rule: Prescriptive period is 1 4. You count the prescriptive period
year from the date of actual entry of one year to file an unlawful
by the defendant. detainer case from the receipt of last
demand.
Exception: when the entry is by
meAns of stealth, the count must (Exception: if the subsequent demand
began from the demand to vacate letters were only reminders of the
upon learning of the stealth. first demand letter, then the count is
from the first demand letter.)
(Note: In the two cases, If you did
not file it within the period of 1
year, you’re remedy is now is either
accion publiciana or accion
reivindicatoria )
Note: I repeat, in unlawful detainer cases, the demand should be “demand to
pay rentals and to vacate” or “demand to comply terms and conditions of the
lease and to vacate” because if it is only a demand to vacate or a demand to
pay rentals or demand to comply terms lang, that demand did not comply to
the demand as set forth by the rules and I’m 100 percent sure that you will
lose the case.
In unlawful detainer cases, diba, more often than not, that it usually involves
possession by mere tolerance, ok. So if the possession is by mere tolerance,
don’t file forcible entry you file unlawful detainer but in several decisions of SC,
it decided that—if the ground for the unlawful detainer case is by possession
by mere tolerance, the plaintiff must prove that the tolerance was from the
very beginning because if the entry was first by meAns of threat, force,
intimidation, stealth and strategy tapos upon knowing that the plaintiff just
allowed him to stay by tolerance sorry your case for unlawful detainer will not
prosper, what you should file instead is forcible entry. Ok, please take note of
that.
Oral demand is not sufficient, it must be in writing because if it is in oral, how
will you prove it at the court? And I forgot, in case of land, how many days?
15 days. In case of building, 5. If more than, no problem however if it is less
than 15 days or 5 days then you did not comply the rules.
Q: No problem? Ok. Can the defense of ownership and/or tenancy be raised
by the defendant in a case of forcible entry or unlawful detainer? Yes, he can
raise it but the question is—simply because the defendant raise the defense of,
for example of tenancy and ownership, will it automatically divest the court of
its right to proceed the hearing of Forcible entry or unlawful detainer?
A: No, I told you because the jurisdiction of the court is determined by the
allegation of the complaint and not by the Answer of the defendant. Except
lang, where tenancy is raised as a defense, the court is allowed to conduct a
preliminary hearing on the matter to determine the veracity of the allegation of
tenancy. If during the hearing daw, it is shown that tenancy is the real issue
then the court shall dismiss the case for lack of jurisdiction and the case
should be filed instead in the appropriate court which is the DARAB, but
remember that in summary procedure, motion to dismiss is a prohibited
pleading, except diba if the ground is because the court has no jurisdiction of
the subject matter. This situation is within the exception diba, because tenancy
automatically meAns that your ground is anchored on the ground of lack of
jurisdiction, it should be in the DARAB diba.
When the defense of ownership is raised, like I said, it will not automatically
divest the court of its right to proceed the hearing of FE or UD however the
court is allowed to resolve the issue of ownership but only under the following
conditions:
1. When the issue of possession cannot be resolved without resolving the
issue of ownership
2. The issue of ownership shall be resolved only to determine the issue of
possession.
We presumed that the plaintiff win the case, defendant can appeal within 15
days from the receipt of the judgement, question—diba in other cases if there
is an appeal it will stay the judgement, correct? Except lang if this is certiorari
under rule 65 because to stay the judgement you have to get diba a writ of
preliminary injunction or temporary restraining order, in I repeat FE or UD
cases, will an appeal automatically stay the execution? NO. To stay the
execution, the defendant has to comply with the following:
1. You should first perfect an appeal;
2. File a supersedeas bond to pay for the rents, damages and costs
accruing down to the time of judgement based on the total amount as
awarded in the judgement. (but if the judgement of course did not
award rents, damages, and costs, there’s no need to post a
supersedeas bond, only if there’s an award that was granted);
3. While case is on appeal with the RTC, deposit periodically the
adjudged amount of rent due under the contract, if there’s no
contract, the reasonable value of the use and occupation of the
premises (because if you fail to pay even 1 month, it will be the basis
of the plaintiff to file a motion for execution even pending appeal.
Remember: Failure to comply the requisites will be the basis of the plaintiff to
file a motion for execution even pending appeal.
Q: Now, I ask you, the order of the RTC which affirmed the judgement of the
lower court, what is your remedy?
A: You go to CA by meAns of petition for review under rule 42 because this is
a judgement of the RTC in the exercise of its appelate jurisdiction.
Q: Would dependency of the petition of review before the CA stay the
execution of the judgement? You’ve been paying supersedeas bond, you’ve
been paying rental periodically, is this applied in the CA?
A: No. I told you, this is 1 of the cases that even if the petition is pending, the
decision can now be the subject of execution unless otherwise provided for by
the CA. The one I told you with the supersedeas bond and deposit periodically,
it is only applicable if it is from MTC to RTC, but not applicable if it is from RTC
to CA.
Q: To whom the judgement of FE and UD bind? Will it only bind the persons
impleaded as the defendants, puydi ba? Can they be ejected?
A: As the general rule, No. Judgement is only binding upon persons who are
actually properly impleaded. Exceptions:
1. Sub-Lessee not unless there is prohibition;
2. Guests, successors-in-interests, members of the family of the lessee,
servants and employees;
3. Trespassers, squatters, agents of the defendant fraudulently
occupying the property to frustrate the judgement;
 4. TrAnsferees pendent lite
By the way, very important, if the basis of your entry is contract of lease, diba,
you really have to send a demand letter to vacate to the lessee, because if
there is none, there is automatic implied new contract of lease which we called
tacita recundocion. This is under Article 1670 of Civil Code
Article 1670. If at the end of the contract the lessee should continue
enjoying the thing leased for fifteen days with the acquiescence of the
lessor, and unless a notice to the contrary by either party has
previously been given, it is understood that there is an implied new
lease, not for the period of the original contract, but for the time
established in articles 1682 and 1687. The other terms of the original
contract shall be revived.
xxx
Article 1682. The lease of a piece of rural land, when its duration has
not been fixed, is understood to have been for all the time necessary
for the gathering of the fruits which the whole estate leased may yield
in one year, or which it may yield once, although two or more years
have to elapse for the purpose.
xxx
Article 1687. If the period for the lease has not been fixed, it is
understood to be from year to year, if the rent agreed upon is annual;
from month to month, if it is monthly; from week to week, if the rent
is weekly; and from day to day, if the rent is to be paid daily.
However, even though a monthly rent is paid, and no period for the
lease has been set, the courts may fix a longer term for the lease after
the lessee has occupied the premises for over one year. If the rent is
weekly, the courts may likewise determine a longer period after the
lessee has been in possession for over six months. In case of daily
rent, the courts may also fix a longer period after the lessee has
stayed in the place for over one month.
RULE 71
CONTEMPT
The power to cite the person in contempt is inherent in the court. But not as
far as quasi-judicial agencies are concerned because in such cases the power
to cite a person in contempt depends on whether the law which created that
particular quasi-judicial agency grants them the power to cite one in contempt.
Well it is the disobedience to the court by acting in opposition to
authority, justice and dignity. That’s always the common definition of what
is contempt of court. It signifies not only a willful disregard or
disobedience of the court’s order, but also conduct tending to bring
the authority of the court and the administration of law into
disrepute or, in some manner, to impede the due administration of
justice. That is the perfect definition of what is contempt of court.
Contempt classification according to its nature
(1) Civil - The failure to do something ordered to be done by a court or judge
for the benefit of the opposing party therein.
(2) Criminal - Conduct directed against the authority and dignity of the court
or a judge acting judicially. It is an obstruction in the administration of
justice which tends to bring the court into disrepute or disrespect.
Although the distinction between criminal and civil contempt is so thin but,
nevertheless, you would see that there is one thing you should consider, and
that is civil contempt is always directed against a person. But if the contempt
is directed against the judiciary or the court itself, then automatically it
becomes criminal contempt. That is the major difference between the two.
Classification according to the manner of commission (more common
classification)
(1) Direct - Misbehavior committed in the presence of or so near a
judge so as to obstruct the administration of justice.
(2) Indirect - One committed not in the presence or so near a judge
so as to obstruct the administration of justice.
Very important my dear students to know whether this is direct or indirect
contempt because the procedures on how to file the same and the
appropriate remedies would vary or differ depending on whether
what is committed is direct contempt or indirect contempt.
Unlike direct contempt where the court can immediately mete out the penalty,
in indirect contempt it cannot be done because there has to be a petition for
indirect contempt which is supposed to be filed against that person, EXCEPT
HOWEVER IF THE INDIRECT CONTEMPT PROCEEDS FROM AN ORDER OF THE
COURT MOTU PROPRIO. But even then, even if it is the court which actually
files the indirect contempt by meAns of issuing an order, the respondent is
always given a chance to Answer the allegations, unlike in direct contempt
where automatically, as long as you committed the contemptuous act in the
presence of the judge, the judge automatically can mete out the penalty.
Under our Rules, any of the following would constitute direct contempt
(Sec. 1, Rule 71):
(1) misbehavior in the presence of or so near a court as to obstruct or
interrupt the proceedings therein;
(2) any disrespect toward the court, which includes among others, if
you submit to the court pleadings which contain derogatory and
contemptuous languages;
(3) offensive personalities toward others;
(4) refusal to be sworn as a witness or to Answer as a witness, and
refusal to subscribe an affidavit or deposition when lawfully
required to do so.
Procedural requisites
No formal proceeding is required in direct contempt, meaning it is summary in
nature. Because as long as you commit the contemptuous act before the court,
immediately the court can cite you in direct contempt and mete out the
corresponding penalty as provided for in the Rules. That’s why unlike in
indirect contempt, where there has to be formal proceedings, in direct
contempt, formal proceedings is not actually required.
Penalty for direct contempt
The penalty depends on which court is the direct contempt committed. If it is
committed before the RTC or any higher court, the penalty is a fine not
exceeding P2,000 or imprisonment not exceeding 10 days, or both. If
the direct contempt is committed before a first level court, the penalty is a
fine not exceeding P200 or imprisonment not exceeding 1 day, or
both.
If the contempt consists in the refusal or omission to do an act which
is still within the power of the respondent to perform, the respondent
may be imprisoned by order of the court concerned until he performs
that particular act which is required of him to be performed.
Remedy
Any decision for direct contempt before the RTC or higher is not
appealable (Sec. 2, Rule 71). The remedy is a petition for certiorari or
prohibition which is directed against the court which cited the respondent in
direct contempt. The best is prohibition, so the court is not able to proceed
with the penalty as mandated by the Rules. If it is a first-level court,
appealable to the RTC. But the execution of judgment will not be
suspended not until after he files a bond fixed by the court.
For indirect contempt, it is appealable. First-level courts to the RTC, RTC
to the CA. The appeal will not have the effect of suspending the
judgment, unless and until the respondent files a bond fixed by the
court.
Q: Let’s say this is before the RTC, so the respondent was cited in direct
contempt and thus filed a petition for prohibition before the CA, would that
automatically mean that simply because there is a pending petition for
prohibition, that meting out the penalty on the respondent shall be
suspended?
A: Not necessarily. Not unless the respondent files a bond in an amount to be
fixed by the court. And the bond is conditioned upon his compliance of
the judgment should it be a judgment against him.
Acts which constitute indirect contempt (Sec. 3, Rule 71) are the
following:
(1) Misbehavior committed not in the presence of or so near a judge
so as to obstruct the administration of justice; [The provision in
Sec. 3, Rule 71, however, states: “misbehavior of an officer of a court in
the performance of his official duties or in his official trAnsactions” ]
(2) disobedience of or resistance to a lawful writ, process, order, or
judgment of a court;
(3) any abuse of or any unlawful interference with the processes or
proceedings of a court not constituting direct contempt;
(4) any improper conduct tending, directly or indirectly, to impede,
obstruct, or degrade the administration of justice;
(5) [assuming to be an attorney or an officer of a court, and acting as such
without authority;]
(6) failure to obey a subpoena duly served;
(7) [the rescue, or attempted rescue, of a person or property in the custody of
an officer by virtue of an order or process of a court held by him.]
*Those inside the brackets [] were not mentioned by sir during the
lecture.
There was one decision of the SC that if the client dies while the case is
pending, the lawyer has the obligation to inform the court within 30 days from
death about the death of the client and in the notice of death filed, include the
names of the heirs who will substitute the party. If the lawyer failed to
inform or notify the court of the death of his client, said failure
constitutes as indirect contempt, without prejudice to further
administrative liabilities as sanctioned by the Rules.
As far as indirect contempt is concerned, Sec. 3 is very clear that one can only
be punished after a charge in writing and a hearing.
Requisites before one can be cited for indirect contempt:
(1) Charge in writing which has to be filed;
(2) An opportunity for the person charged to appear and explain his
conduct, and;
(3) The right to be heard by himself and/or counsel.
Two ways by which one can be sued for indirect contempt
(1) By filing a verified petition before the court, or
(2) By order or formal charge initiated by the court itself.
Example: If a subpoena was duly served on the witness for him to appear
on a particular date and he fails to do so without informing the court about
his non-appearance, the court will usually issue an order directing him to
explain in writing why he should not be cited for indirect contempt for
delaying the administration of justice. Take note that even if the contempt
is initiated by an order of the court, the respondent is still given time
within which to Answer the charge or explain his side. He cannot be
declared in indirect contempt automatically, not unless he files his
explanation in writing. If after receipt of the explanation, the court finds
his non-appearance is not justified, that’s the time when an order is issued
citing him in indirect contempt and the corresponding penalty pursuant to
Rule 71 is meted on the respondent.
If the indirect contempt arose out of the same case which is filed before the
court, it may be heard and decided together with the case upon which the
indirect contempt arose (this occurs more often in reality). It may also be
heard and tried separately.
Where it is filed
If the charge for indirect contempt has been committed before the RTC or
a court of equivalent or higher rank, or against an officer appointed by it,
the charge may be filed with such court. Where such contempt has been
committed against a first-level court, the charge may be filed in the RTC of the
place in which the lower court is siting; but the proceedings may also be
instituted in such first-level court subject to appeal to the RTC of such place
(Sec. 5, Rule 71). If it is committed against a quasi-judicial agency, the
indirect contempt shall be filed in the RTC of the place where the contempt
has been committed (Sec. 12, Rule 71).
Punishment for indirect contempt
If the respondent is adjudged guilty of indirect contempt committed against
the RTC or a court of equivalent or higher rank, he may be punished by a
fine not exceeding P30,000 or imprisonment not exceeding 6
months, or both. If he is adjudged guilty of contempt committed against a
first-level court, he may be punished by a fine not exceeding P5,000 or
imprisonment not exceeding 1 month, or both. If the contempt consists
in the violation of a writ of injunction, TRO or status quo order, he may also be
ordered to make complete restitution to the party injured by such violation of
the property involved or such amount as may be alleged and proved (Sec. 7,
Rule 71). If committed against a quasi-judicial agency, the penalty depends
upon the provision of the law which authorizes the filing of indirect contempt
against the respondent.